UPDATE(s): Totes responds re: OH Supreme Court, breastfeeding & pregnancy

A few updates/notes:

1. Buckeye State Blog was indeed the first (and only one of two Ohio political blogs anywhere on the spectrum) to write about the case, Allen v. totes/Isotoner Corp.. On that day, I did pass its link on through women-focused listservs and it has been picked up since then, including on Change.org’s Friday Femme Fatale round-up – many thanks.

2. The decision came out just as OSU’s Institute on Women, Gender and Public Policy released a report on how poorly Ohio is doing vis a vis women.

3. That Danielle blogs here about her exchange of emails with totes (yes, small T) regarding the Allen case.  For those catching up, this case says that breastfeeding does not constitute part of pregnancy and therefore is not protected under Ohio’s pregnancy discrimination law, since, you know, breastfeeding isn’t part of pregnancy.

4. Danielle then goes even further in this post, digging in and discussing the lower court opinions, facts and then the Ohio Supremes’ abject failure to deal with biology.

5. You can read the opinion, but especially please read the dissent by Judge Pfeifer.

6. As a lawyer, a social worker and a mom who worked through all three of her pregnancies and pumped at work during two of them whenever I needed to within reason, including in airport bathrooms and during conference sessions when my mother would bring my infant to me, I have to tell you – there is almost nothing totes could say that would change my mind regarding how bad a legal decision the all-Republican Ohio Supreme Court made.

I agree that the facts do have relevance and importance, however, it is the crux – this idea that breastfeeding has no connection or not enough of a connection to pregnancy as to be connected to pregnancy discrimination that baffles most people who read the opinion.  It is just a completely nonsensical, impractical and not reality-based reading of the law and life.

Additionally, it is the arguments that Judge Pfeifer raises that should have been asked and answered at the lower court:

Any court’s method of analyzing cases should be (1) whether the plaintiff stated a cognizable cause of action and (2) whether the facts of the case support the alleged cause of action. It is unclear why, on this question of great general interest, this court has embarked on a backwards analysis, letting stand the appellate court’s holding that LaNisa Allen was fired for leaving her post without permission rather than for pumping her breasts in the employee washroom, thus leaving unanswered the question of whether she even asserted a cognizable cause of action. The trial court proceeded properly, although its conclusion was
incorrect: it found as a matter of law that Ohio’s pregnancy discrimination laws do not apply to protect breastfeeding mothers once their babies are born. It did as it should in ruling on a summary judgment motion: it gave the benefit of the facts to Allen and ruled on the law.

Somehow, the appellate court lost its way, and this court has followed. In its six-paragraph decision, the appellate court concludes that Allen was not fired for pumping her breasts: “Rather, she was simply and plainly terminated as an employee at will for taking an unauthorized, extra break (unlike the restroom breaks which were authorized and available to all of the employees, appellant included).” Allen v. totes/Isotoner Corp. (Apr. 7, 2008) Butler App. No. CA2007-08-196. The appellate court does not explain why Allen’s trips to the restroom outside scheduled break times were different from the restroom trips
other employees made outside scheduled break times. There is no evidence in the record about any limit on the length of unscheduled restroom breaks and no evidence that employees had to seek permission from a supervisor to take an unscheduled restroom break. There is evidence only that unscheduled bathroom breaks were allowed and that LaNisa Allen was fired for taking them. What made her breaks different?

We accept cases not necessarily because of how the result might affect the parties in the individual case, but because of how a holding might affect other persons similarly situated. Ohio’s working mothers who endure the uncomfortable sacrifice of privacy that almost necessarily accompanies their attempt to remain on the job and nourish their children deserve to know whether Ohio’s pregnancy-discrimination laws protect them.

I would hold in this case that employment discrimination due to lactation is unlawful pursuant to R.C. 4112.01(B), that clear public policy justifies an exception to the employment-at-will doctrine for women fired for reasons relating to lactation, and that LaNisa Allen deserves the opportunity—due to the state of the record—to prove her claim before a jury.

7. So – Ohio state legislators – who is going to be the first to produce a bill to redress this situation?  Or are you really going to make me run for the Ohio House 17th in order to get this done?

8. How many more reminders do we need that we have got to elect more diverse judges to the high court in Ohio?

9. And last but not least, I’ll be on Live from the Left Coast with Angie Coiro in about 45 minutes to discuss this case.  You can follow in the live-chat here or you can listen here, or do both.

5 thoughts on “UPDATE(s): Totes responds re: OH Supreme Court, breastfeeding & pregnancy

  1. Jill- I guess it matters as to what kind of diversity you mean for the Court given that the two female justices currently on the Court wrote the majority and concurring opinions.

  2. Pingback: Feminist Peace Network » Ohio Supreme Court: Breastfeeding Not “A Condition Related To Pregnancy”

  3. Josh – I really appreciate that! No question, I get passionate about a lot of different issues, and I will come down left of center more often than not. On the other hand, I do not support gambling or casinos (because of negative effects and net loss to us all, not because of any moral opposition) and I get hawkish on the Middle East from time to time, though I’m more or less a peacenik. I’m sure there are other issues! But mostly, I do want to hear/consider other positions because it not only can help me figure out my position better, but you never know – it can change a mind – or more.

    Thanks for stopping by – I’ll check yours out too.

  4. I just came across your blog and like your writing. I have a blog where I write about politics http://www.deconstructingthenews.com but it has a more conservative approach. I like that you make reasonable arguments and don’t just spit out the stuff I see on the Ed Show or bash Rush. I won’t agree with you much but it’s nice to read some differing opinions that actually make sense.

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