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Is Discrimination Based on Breastfeeding an Unlawful Employment Practice in Ohio?

| Feb 13, 2013 | Gender Discrimination, pregnancy maternity rights |

One of the newer forms of employment discrimination that employment discrimination attorneys in Ohio deal with is pregnancy discrimination. Under current Ohio law, known as the Ohio Fair Employment Practices Act, or FEPA, it is an unlawful employment practice for an employer, because of the sex of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

In recent years, the Ohio General Assembly amended the FEPA by enacting the Ohio Pregnancy Discrimination Act, PDA. The PDA stated that, under the FEPA, the term “because of sex” includes, but is not limited to, “because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-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 …”

One of the more interesting issues that attorneys will no doubt deal with in the coming years is whether the act of breast-feeding is a protected activity under Ohio’s pregnancy discrimination laws. To date, the Supreme Court of Ohio has not yet recognized such a right, but that may soon be changing. In 2009, in the case Allen v. totes/Isotoner Corporation, the Supreme Court was supposed to reach the issue of whether Ohio’s pregnancy discrimination laws require employers to allow a breastfeeding mother to take unscheduled lactation breaks. However, the Supreme Court refused to decide the issue on procedural grounds. In her concurring opinion, however, Justice O’Connor stated that gender discrimination includes discrimination based on pregnancy and childbirth, which by extension, includes lactation. Justice O’Connor stated that the FEPA, as amended by the Ohio PDA, “prohibits employment discrimination against lactating women.”

Unfortunately, the Supreme Court of Ohio left unanswered the question of whether discrimination on the basis of breastfeeding is a form of gender discrimination proscribed by Ohio law. However, Justice O’Connor’s concurring opinion shows a willingness by at least one Supreme Court justice to extend Ohio’s pregnancy discrimination laws to encompass breastfeeding mothers.

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