As an update to my previous post on this case, the Ohio Supreme Court last week released an opinion in Ohio Civ. Rights Comm’n v. Nursing Care Mgmt. of Am., Inc., reversing the decision of the Ohio Fifth District Court of Appeals, which previously held that an employer unlawfully discriminated by terminating an employee requiring pregnancy-related leave who did not meet the length of service requirement of the employer’s general leave policy. The Court held that pregnant employees must only be treated the same as all other employees under an employer’s leave policy and can be terminated while on a pregnancy-related leave pursuant to a neutral policy.


In Nursing Care, employee Tiffany McFee requested leave for a pregnancy-related medical disability after being employed only eight months. Under the policy of her employer, Pataskala Oaks, employees became eligible for twelve weeks of leave after one year of service. Employees with less than one year of service were ineligible for leave. As a result, Pataskala Oaks terminated Ms. McFee’s employment because she did not qualify for leave. The termination came approximately one week after her request for leave and three days after she gave birth.


Procedural History:

McFee first filed a charge of discrimination with the Ohio Civil Rights Commission (OCRC). The Commission determined that McFee’s termination was unlawful and took the view that Ohio law requires that an employer provide a reasonable maternity leave regardless of the employer’s policy and regardless of length of service.  Pataskala Oaks appealed and argued that employers may place a length of service requirement on leaves of absence, including those for pregnancy, so long as the requirement is applied evenly to leaves for pregnancy and leaves for other medical conditions. The Fifth District upheld the OCRC’s decision, finding such a termination to be “direct evidence” of discrimination, eliminating the need for an employee to prove discriminatory intent. Pataskala Oaks appealed to the Ohio Supreme Court.


Ohio Supreme Court Opinion:

The Ohio Supreme Court held that the phrase “treated the same” in the Ohio pregnancy discrimination statute means just that—pregnant women must be accorded equal, not preferential, treatment under employer leave policies. An employer may terminate a pregnant employee who takes leave and does not qualify for FMLA or the employer-provided leave, so long as the employer applies the rule evenly to all employees “similar in their ability or inability to work.” An employee may still, however, bring a pregnancy discrimination claim. The Ohio Supreme Court merely shifted the presumption from one automatically assuming discrimination anytime an employer discharges a pregnant employee for taking leave to one where the employee must demonstrate discriminatory intent, which restored the normal burden of proof in discrimination cases.


The Ohio Supreme Court looked to OAC 4112-5-05(G)(5), that states that a female employee “must be granted a reasonable leave on account of childbearing” only “if she meets the equally applied minimum length of service requirements for leave time.” The Court concluded that if an employee qualifies for leave, she must be allowed to take a reasonable amount of it on account of pregnancy. If she does not qualify for leave, however, she may be terminated for taking it as long as the policy is applied to all types of medical leaves in a nondiscriminatory way.


The Implications for Ohio Employers:

The Ohio Supreme Court’s decision achieves greater predictability for employers, for instance, by allowing them to model their leave policies, as Pataskala Oaks did, on the mandatory leave provisions of the FMLA. It is likely, however, given the public policy implications of terminating employees while on pregnancy leave, that legislation will be introduced to overturn this decision.