Wednesday, September 9, 2009

Ohio gets a bad case of Lactate Intolerance

In some ways, a recent Ohio Supreme Court case is one of the most boring employment law cases ever. After all, "the evidence in the record demonstrates that [the Plaintiff] took unauthorized breaks from her workstation, and Isotoner discharged her for doing so" hardly sounds controversial. Wow, someone was skipping out on work and got canned, how interesting.

Why then, does The Juggle on WSJ report an "angry buzz among bloggers?"Martha Neil on the reports the case is "igniting controversy on the Internet." And the Columbus Dispatch article has drawn 135 comments at the time of this blogging. The reason? The Plaintiff, LaNisa Allen, was leaving work, without telling anyone, to pump her breasts for milk to later feed her child.

The case is Allen v. totes/Isotoner, Corp., 2009-Ohio-4231. Understandably, people viewed this case as a test for whether Ohio's pregnancy anti-discrimination law covered lactating mothers. As the concurring opinion points out, however:
"It is the long-standing practice of courts to decide only issues presented by the facts and to refrain from deciding issues that the facts do not place directly in issue."
As described above, Isotoner had a legitimate non-discriminatory reason for terminating Ms. Allen, her breaks were unauthorized. Ms. Allen presented no evidence that Isotoner's reason was just a pre-text for discrimination, and by law she must lose on summary judgment. Therefore, whether breast-pumping is covered by Ohio law was irrelevant in deciding the case.

The Court did not address the issue. At all. Period. The Dispatch article cites the executive director of NARAL Pro-Choice Ohio as hoping "employers won't interpret the ruling as an invitation to deny new mothers breaks for breast-pumping." As the issue was not addressed I see no reason why they would. The Dispatch also describes the holding as:
"The state law banning discrimination against pregnant women does not protect new mothers who take unauthorized breaks to use a breast pump."
I suppose that's technically correct, though I would bold, italicize, triple underline, and change the font to 24 point for the word "unauthorized."