Ohio’s ‘Pregnancy-Blind’ Policies


This post was updated on 6/24/10, 4:41pm, EST

What is going on in Ohio?

According to the Ohio Employers Law Blog, Ohio businesses “were handed a huge victory” today when a court ruled that pregnant women do not have the right to take leave of any kind unless they meet the same specifications other employees must, for leave. In a 5-1 decision, the Ohio Supreme Court ruled that the Pataskala Oaks Care Center, a nursing home where employee Tiffany McFee worked for 8 months, did not discriminate on the basis of gender when it fired McFee, three days after the birth of her newborn, since she did not return to work. The center has a policy in place that allows employees to take up to twelve weeks of unpaid leave only after they’ve been employed there for one year.

It comes down to this: The center fired McFee because, although she had just given birth, she hadn’t met the criteria for taking family leave yet. Therefore she was entitled to no leave. Nothing. Not one day.

The Columbus Dispatch reports that McFee “filed a gender-discrimination complaint with the Ohio Civil Rights Commission, which ruled in her favor” in 2004. Though a judge dismissed the claim, an appeals court held that the state’s “antidiscrimination laws require that employers provide employees with a reasonable period of maternity leave, and the at-issue policy that denied McFee leave was direct evidence of sex discrimination.”

When the nursing home took the case to the Ohio Supreme Court, the court ruled that the center’s policy was “pregnancy-blind” and treated all employees equally. The court interpreted Ohio’s pregnancy discrimination provisions in a way that, writes the Ohio Employer’s Law Blog, mandates businesses must have a “neutral leave policy” if they have a policy at all, so “that when a woman qualifies for leave, the leave provided for childbearing must be reasonable” and when 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.” 

In Ohio (as it is around the country), the Family Medical Leave Act (FMLA) requires that businesses with fifty or more employees provide up to 12 weeks of “job protected, unpaid leave” to employees who have worked for at least twelve months minimum for said employer. But this is simply the base minimum and certainly each business can create its own policy, using these as guidelines. For businesses with less than 50 employees, there are no federal mandates of any kind. Employees do not need to be given leave to care for a sick child, after the birth of a child, to care for a sick or dying parent; they don’t even need to be given a minimum number of paid sick days.

Now, I understand that some people’s initial reaction to this case will be “Well, of course! Why should pregnant women be given “special’ treatment under the law?!” This apparently comes from the “anti-pregnancy” folks out there who must believe being pregnant, experiencing childbirth and parenting is a luxury in which only the elite partake. But for most Americans, especially those who consider themselves supportive of what should be basic labor standards and human rights for families and newborns, ensuring that pregnant employees are able to take family leave post-childbirth is crucial.

A few years ago, at a town hall meeting here in Seattle convened by the advocacy organization, MomsRising, and facilitated by Washington state’s House Speaker Frank Chopp, a group of concerned citizens came together to discuss the importance of paid family leave legislation in Washington state (and around the country).

I remember new mother after new mother coming to the front of the church-basement room to relay stories of needing to head right back to work just days after childbirth. Most had no family leave available – and absolutely zero paid family leave. One woman told a heart wrenching story of needing to head back to work while her newborn was in NICU (Neonatal Intensive Care Unit); but she feared losing her job and really didn’t have a choice.

Somehow we’ve come to equate, in this country, family leave (never mind paid leave!) with some sort of “free” vacation. It’s as if we’re giving new parents – new mothers in particular – a “freebie” (even the article in the Columbus Dispatch, on this particular case, calls this type of leave “taking time off,” as if women are really just looking for a way to skirt work for a few weeks). How dare women who have just given birth request “special leave” to care for their newborn babies!  After all, it’s women who fought so long and hard, and continue to struggle, to be seen as “equals” professionally. As well, it’s spoken of as a hardship that businesses must shoulder when a woman takes family leave.

Maybe not surprisingly, these declarations are not only discriminatory, they make for poorly run businesses and do nothing to help lay the foundation for happy, healthy families.

The truth is, McFee was taking time off to be the best mother she could be. Yes, she had not been at the center for the length of time required to use the family leave benefit. But what makes the most sense in this scenario? Allowing a new mother time to parent her newborn baby – time in which to establish a critical breastfeeding relationship, time to bond and adjust as a family, and time to set up a child-care situation that works for both family and employer – so that she may come back to her job feeling secure that her child is well cared for and prepared to continue working for an employer by which she feels valued? Or firing said employee, with a dependent newborn, a woman who had been with the center for eight months, who was trained and committed to her position only to then devote unnecessary time and energy into another hiring process and a new employee?

As Kristin Rowe-Finkbeiner, Executive Director & Co-Founder of MomsRising stated in an interview with RH Reality Check:

“At a time when 1 in 4 children in our nation are experiencing food scarcity due to family economic limitations, this ruling goes in the absolute wrong direction.  With women now 50 percent of the entire labor force, and 80 percent of American women having children by the time they’re forty-four years old, it’s time to expand family-friendly policies, not curb them.”

On the other side, Tom Tarpy, a lawyer in Ohio who represents employers, frames it this way:

“Whether or not a person’s unexpected leave is due to pregnancy or a heart condition or a broken leg, those circumstances affect small businesses very differently when you have one-fifth of your work force out on leave,” Tarpy said.

In this scenario, then, women who have been at a job for less than one year, who give birth, place their jobs in jeopardy simply by becoming mothers and have absolutely no recourse. With this Ohio ruling, pregnant women who have worked for an employer for less than a year have no guarantee of a job once giving birth. It’s hard not to interpret that as sex discrimination.

As Kellie Copeland, executive director of NARAL Pro-Choice Ohio told the Columbus-Dispatch:

“This is appalling,” Copeland said. “We should be having policies in place that allow people to have children and not lose their jobs because they choose to have a child. This illustrates a major hole in Ohio law – there is no protection for women in this type of situation.”

It’s a case that has the potential to push the new “conservative feminists” to confront feminism head-on. Feminists have fought long and hard for equality and justice for women and girls in this country, and wonder how Sarah Palin can call herself a feminist with no examples of policies she’s helped put in place to address core feminist principles like gender discrimination. This case might be a turning-point, then.

Lawyer, blogger and suburban city council member in Northeast Ohio, Jill Zimon, calls this case “critical” and ” a “real test” for conservative, female political candidates around the country:

“It’s exactly these kinds of cases that right-of-center female political candidates must address and come down on the side of the pregnant worker if they want to be seen as women who support women. If [Meg] Whitman, [Nikki] Haley et al cannot express outrage at such decisions, then they absolutely do not deserve the support of women who are genuinely interested in having more women in political office.”

Copeland told RH Reality Check that she hopes Ohio voters, in particular,  pay attention:

This ruling should be a wake-up call to Ohioans that the Ohio Supreme Court has been stacked with justices who have repeatedly ignored the basic health and dignity of Ohio women. Members of the Ohio Supreme Court are elected. Ohio voters should remember this ruling in November and vote accordingly.

 This case is an outrageous display of gender discrimination. If women can now be fired for having a baby before her employer is “ready,” then said business has no policy in place that protects the pregnant employee’s rights.

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  • bei1052

    The law, as you’ve pointed out, doesn’t state that no one women is given unpaid leave due to pregnancy ever, but rather to receive unpaid leave due to pregnancy you must be employed with the employer for at least twelve months.  It’s a noteworthy distinction, and one that makes your claims about sex discrimination moot. Now, you can argue at what point in time a woman should be afforded unpaid leave but that’s immaterial to the actual issue you’re actually speaking of, that being whether or not the business discriminated against the women. In that regard, I totally agree with the Ohio Supreme Court, as the law is applied to all employees and isn’t just relative to pregnancy issues.

     

    The lesson here: Learn what policies the company you’re going to work for has in place beforehand. You’ll save yourself a hell of a lot of trouble down the road.

  • crowepps

    There seems to me to be a contradiction between all the angst about women being urged to continue their pregnancies to ‘save the life of the innocent fetus’ and the dismissal of the actual childbirth itself as a ‘life-style option’ which shouldn’t be allowed to have a negative impact on the bottom line.

     

    I don’t think I’ve ever seen a clearer demonstration of how all the concern for the fetus evaporates as soon as its born.  ‘Buy some bottles and formula, dump that baby in daycare and back to work at once!  No UNPAID leave for you!’

  • jrm83

    Aww, come on.  Now you’re just expecting to much.  They already did their part by making sure she didn’t have an abortion, now you want them to make sure she can spend time with her baby and  keep her job?  There’s only so much an employer can be expected to do.  Besides, they’ve already made sure that she will have plenty of time to spend with her family by firing her.  If they let her keep her job then she’d never learn how to “pull herself up by her own bootstraps” and then what kind of ”compassionate conservatives” would they be? 

  • bei1052

    Now, I know that it makes you feel as warm and tingly inside to make this out to be an issue of pro-life vs. pro-choice, but this has nothing to do with any such divide. This is merely an issue of a woman not liking a company’s policy, and suing once they fired her for violating it (Or, in this case, for not showing into work).

     

    In reaching this decision, the Court pointed out that the pregnancy discrimination laws do not require preferential treatment for pregnant employees. They merely mandate that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work.

     

    Emphasis mine. There’s that whole equality thing I keep going on about.

     

    This entire victim mentality, while humorous, is getting old.

  • amie-newman

    What you see as “victim mentality” and “just be quiet and be happy you’ve got what you’ve got” is exactly why the so-called “pro-life” crowd is entirely non-credible.

    I’ll tell you why this case is absurd. Because we are one of a handful of industrialized nations that have no form of paid family leave. It’s antithetical to maintaining a happy, healthy society; let alone a dedicated workforce. And to say that – hey, pregnant women get the leave everyone else gets is to ignore that, in fact, pregnancy IS a different “condition” requiring different workplace policies. It’s precisely why most other developed nations have much more humane laws mandating paid family leave.

    As I wrote in my piece, what you’re saying, in effect, is that if a workplace does not have family leave but a woman who plans to become pregnant, or is pregnant, desperately needs the job she just loses out on taking any sort of leave to care for her newborn. How is this pro-family? Or “pro-life”?!

    And, yes, this has a lot to do with the farce that is the anti-choice movement that hides behind an anti-abortion shield while doing NOTHING to make life better for pregnant women, mothers and babies who are post-born. If the anti-choice movement were credible, it would fight for humane laws regarding pregnant employees, ensure paid family leave for mothers and fathers, and related issues like universal childcare.

    These issues are all linked. Victim mentality? Hardly. This is about ensuring that pregnant women are not discriminated against. This is about protecting the rights of pregnant employees who need to work AND should have the right to keep their job as well as care for themselves (especially if, for example, they’ve gone through a c-section and need at least 6 weeks to recover) and their newborn babies.

  • bei1052

    1.) The victim mentality is trying to turn every little thing into a “war on (pregnant) women”, even when it’s not.

     

    2.) This case had nothing to do with paid leave, as the woman in question didn’t even request paid leave. Did you even bother to read the links you provided? No, the case had to do with whether or not Pataskala Oaks Care Center discriminated against the pregnant women by firing her on account that she did not come into work. The Ohio Supreme Court ruled that there was no discrimination, as to the woman was not fired because she was pregnant nor because she gave birth, but because she did not come in to work, and that these rules apply to everyone regardless. What this means is that, in the same way that Bill doesn’t get six-weeks unpaid leave from work if he happens to have back surgery within his first twelve months of employment, nor does Joe get six-weeks unpaid leave from work he happens to fall down the stairs and breaks every bone in his body within the first twelve months of employment, neither do pregnant women get six-weeks unpaid leave from work if they happen to give birth within their first twelve months of employment. It’s a standard applied to everyone equally. Of course, if both Bill and Joe were given six-weeks unpaid leave absent a length-of-service requirement while the pregnant woman wasn’t, then there’d be an issue of discrimination. It’s explained in the first link you provided. As it is, this is a non-issue because the rule is unilaterally applied to everyone and doesn’t distinguish based on circumstance, race, sex, etc. etc. etc.

     

    3.) Sure, new parents– both men and women– should get family leave, but that’s not what this issue is about.

     

    4.) And, finally, could you show me what parties in the case were, as you like to call them, anti-choice and which were pro-choice, as well as and how you know the judges that formed the majority opinion were anti-choice? I ask, because you obviously know as you’re contiously making this a pro-life vs. pro-choice thing, so I’d like to see where you’re getting your information from.

  • equalist

    Honestly, it should be illegal to fire any employee for any medical circumstance, whether it’s pregnancy, or something else.  I’ve worked for companies that have fired women for giving birth before the required time to take leave, and even one company that fired an employee for having a heart attack in the office, and another for having open heart surgery.  I’ve seen employees showing up to work for weeks with walking pneumonia for fear of losing their jobs.  A company should not have the right to force its employees to choose between coming to work with life threatening illnesses, or avoid treatment for illnesses or else lose their jobs.  Yes, most companies make allowances for “excused” absenses from work, but what you don’t hear about are companies not giving their employees time before the firing procedure is completed to bring in such excuses.  I was recently fired from a job for missing too many “unexcused” days from work.  I missed three days (which would have counted as one occurrance, and allowed me to keep my job when I turned in the work excuse), and on the third day was on my way to the ER for treatment for symptoms of a back injury that had kept me in bed for days when I was told that even though I was going to a doctor for treatment, and would be able to bring an excuse in, the paperwork had already been filed, and there was nothing that could be done.  Companies don’t care about the health of their employees.  It’s far too easy to create loopholes in company policy that allow for employees to be fired and a new employee trained to take their place for less money.  Especially in the current economy when everyone is scrambling for work, and more and more job seekers are willing to take bottom dollar for positions previously filled by employees that have been with companies for long enough to get promotions, raises and seniority.