Ohio Supreme Court Rules State Law Does Not Prohibit Uniformly Applied Length-of-Service Leave Requirements as Applied to Pregnancy

In a 5-1 decision, the Ohio Supreme Court finally put a “partial” stop to the Ohio Civil Rights Commission’s (OCRC) attempts to read special pregnancy entitlements (such as a requirement that all employers with at least four employees provide 12 weeks of pregnancy-related leave) into Ohio’s discrimination laws. Although the court’s ruling did not specifically address the 12-week requirement argued by the OCRC, its ruling is simple and powerful – Ohio discrimination law does not prohibit the uniform application of length-of-service requirements in leave policies, whether applied to leave necessitated by pregnancy or otherwise. McFee v. Nursing Care Mgt. of Am., Inc., No. 2010-Ohio-2744, Ohio Supreme Court (June 23, 2010).

Factual Background

This case arose when Tiffany McFee applied for but was denied maternity leave during her first year of employment at the Pataskala Oaks Care Center. McFee was subsequently terminated from her position based on her absence from work without leave. McFee filed a sex discrimination complaint with the OCRC, alleging that Pataskala Oaks had violated the Ohio Civil Rights Act codified at R.C. 4112.02 et seq, which requires employers to grant leave for a “reasonable” period of time to workers who must be absent from their jobs due to pregnancy or childbirth. After conciliation of the dispute failed, the OCRC issued an administrative complaint charging Pataskala Oaks with sex discrimination based on pregnancy. The trial judge dismissed the complaint.

On appeal, the Fifth District Court of Appeals found that the company’s admission that it had fired McFee for the sole reason that she was absent from work because of pregnancy constituted a prima facie violation of R.C. 4112.02, which it interpreted to require all Ohio employers to grant employees a reasonable term of pregnancy leave notwithstanding any company practice or policy to the contrary.

Legal Analysis

Before the Ohio Supreme Court, attorneys for Pataskala Oaks argued that the Fifth District erred in holding that R.C. 4112.02 imposes an absolute and unconditional requirement that employers grant leave to any pregnant worker who requests it. The attorneys also pointed out that the Ohio Civil Rights Act does not mandate what benefits must be provided to workers, but rather prohibits discrimination against individuals based on their sex, race, age and other specified factors. They argued that the Fifth District’s opinion should be reversed and the trial judge’s affirmed because the company uniformly denies eligibility for any type of leave to any employee during his or her first year of employment with the company. Thus, it cannot be guilty of sex discrimination by applying that policy uniformly to a first-year employee who requests leave based on pregnancy or childbirth.

The OCRC, on the other hand, argued that the company’s admission that they discharged McFee for the sole reason that she was absent from work as a result of pregnancy violated the plain language of R.C. 4112.02, which prohibits firing an employee “because of … pregnancy, childbirth, or related medical conditions.” They also argued that in taking that action rather than providing McFee with any minimal, reasonable period of leave for childbirth and medical recovery, the company violated the Ohio Civil Rights Act.

In reversing the appellate court, the Ohio Supreme Court explained: “The phrase ‘treated the same’ in R.C. 4112.01(B) ensures that pregnant employees will receive the same consideration as other employees ‘not so affected but similar in their ability or inability to work.’ Thus, the statute does not provide greater protections for pregnant employees than nonpregnant employees.”

However, in seeming contradiction to this passage, the Supreme Court did not invalidate the OCRC’s rules that appear to give pregnant women special leave entitlements once they qualify under an employer policy for leave. Instead, it construed the OCRC rules to impose two special entitlements for pregnant women. First, the court construed Ohio Adm. Code 4112-5-05(G)(2) as follows: “[W]hen an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave for temporary disability due to pregnancy or a related condition.” Second, the court construed Ohio Adm. Code 4112-5-05(G)(5) as follows: “[W]hen a woman qualifies for leave, the leave provided for childbearing must be reasonable.”

Practical Impact

While it appears Ohio employers are still saddled with the requirement of having a leave policy that provides “sufficient” leave for a pregnancy-related temporary disability and for providing “reasonable” leave for childbearing, they are allowed to implement and enforce uniform length-of-service requirements.

Ironically, employers that do not provide leave until the employee qualifies for Family and Medical Leave Act (FMLA) leave (i.e., having one year of seniority and 1,250 hours of service in the prior year) have the easiest time of it. The FMLA entitlements would appear to satisfy the “sufficiency” requirements of the OCRC regulations (unless the “childbearing” requirement is construed to require “reasonable” leave amounts no matter how much FMLA leave the employee has already used for other purposes).

On the other hand, employers that provide leave entitlements to employees based on less than one year of service are saddled with the obligation to provide “sufficient” leave for a pregnancy-related temporary disability and “reasonable” leave for childbearing. Thus, as it was before this decision, the FMLA leave entitlements appear to be the “safe harbor” for employer leave policies that have length of service requirements of less than one year.