An Ohio Appellate Court held this month that an employer’s application of a minimum length of service requirement to qualify for maternity leave is unlawful. Nursing Care Mgt. of America, Inc. dba Pataskala Oaks v. OCRC, (Licking Cty. 2009).

Facts

Pataskala Oaks Care Center had a leave policy that permitted 12 weeks of leave for employees with at least one year of service, regardless of the condition. In June 2003, Pataskala Oaks hired Tiffany McFee. About eight months later, McFee gave birth and requested six weeks of maternity leave. Because McFee had not yet satisfied the one-year service requirement, Pataskala Oaks denied McFee’s leave request and terminated her employment when she stopped reporting to work after the birth of her child.

McFee filed a charge of pregnancy discrimination with the Ohio Civil Rights Commission (the Commission), which issued an order that Pataskala Oaks had engaged in unlawful pregnancy discrimination. Pataskala Oaks sought judicial review of the order, arguing that length of service requirements may lawfully be applied to pregnant employees so long as such requirements are equally applied to all non-pregnancy related requests for leave. The trial court agreed and reversed the Commission’s order. The Licking County Court of Appeals, however, rejected the reasoning and affirmed the Commission’s finding of pregnancy discrimination.

Commission Regulations

Ohio Revised Code Chapter 4112 makes it unlawful for employers to discriminate on the basis of pregnancy. Ohio administrative regulations carrying out this prohibition contain the following relevant provisions:

“Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.” OAC 4112-5-05(G)(2).

“Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer’s leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. For example, if the female meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing….” OAC 4112- 5-05(G)(5)(emphasis added).

“Notwithstanding paragraphs (G)(1) to (G)(5) of this rule, if the employer has no leave policy, childbearing must be considered by the employer to be a justification for leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original position or to a position of like status and pay, without loss of service credits. OAC 4112-5-05(G)(6).

The Decision

Pataskala Oaks argued that the (G)(5) provision permitted it to terminate McFee because she did not qualify for leave under its neutral leave policy. It further noted that, had McFee sought leave for any other reason, her request would have been denied. In other words, because Pataskala Oaks treated pregnancy-related conditions the same as all other conditions: it did not discriminate on the basis of pregnancy.

Siding with the Commission, the Appellate Court rejected this argument. The Court reasoned that, because McFee’s termination was due to an unavailability of pregnancy leave, the termination was per se unlawful under section (G)(2), irrespective of the “equal application” provision in (G)(5). The Court found this interpretation to be “consistent with goals of [federal and Ohio law] by promoting equal employment opportunity by ensuring that women will not lose their jobs on account of pregnancy disability.” Although the Court acknowledged that this result effectively requires preferential treatment of pregnant employees, the Court held that preferential treatment is permissible in light of the general purpose of Ohio’s pregnancy discrimination law and its federal counterpart.

Upon close inspection, however, this decision and the regulation upon which it is based appear to contradict the express language of Ohio’s pregnancy discrimination statute: “…Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employed-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work…”1 Hopefully, the Ohio Supreme Court will have an opportunity to rule on this apparent conflict between the Ohio statute and the administrative regulations in the near future.

Practical Implications

Most Ohio employers require some minimum length of employment before an employee is eligible to take time off work. This case serves as a reminder to Ohio employers that, at present, in the eyes of the Commission and some courts, female employees are entitled to reasonable leave for pregnancy or a related medical condition, regardless of length of service. As this decision highlights, enforcement of a length-ofservice policy to deny pregnancy-related requests for leave will expose employers to liability for pregnancy discrimination, even if the employer similarly applies its policy to other types of leave requests.