Ohio Civil Rights Comm'n v. Nursing Care Mgmt. Of America Inc.

• Decision Date: 22 June 2010
• Docket Number: No. 2009-0756.,2009-0756.
• Citation: 126 Ohio St.3d 183,931 N.E.2d 1069
• Parties: McFEE; Ohio Civil Rights Commission, Appellee, v. NURSING CARE MANAGEMENT OF AMERICA, INC., d.b.a. Pataskala Oaks Care Center, Appellant.
• Court: Ohio Supreme Court

126 Ohio St.3d 183

931 N.E.2d 1069

McFEE; Ohio Civil Rights Commission, Appellee,

v.NURSING CARE MANAGEMENT OF AMERICA, INC., d.b.a. Pataskala Oaks Care Center, Appellant.

No. 2009-0756.

Supreme Court of Ohio.

Submitted Jan. 13, 2010.

Decided June 22, 2010.

Syllabus of the Court

An employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, Stephen P. Carney and Emily S. Schlesinger, Deputy Solicitors, and Patrick M. Dull, Assistant Attorney General, for appellee.

Dinsmore & Shohl, L.L.P., Jan E. Hensel, and Patricia Gavigan, Cincinnati, for appellant.

Gordillo & Gordillo, L.L.C., and Gregory A. Gordillo, Cleveland, urging affirmance for amici curiae Ohio Employment Lawyers Association, Ohio Poverty Law Center, and Ohio NOW Legal Defense and Education Fund.

Porter, Wright, Morris & Arthur, L.L.P., and Jeffrey J. Weber, Cleveland, urging reversal for amicus curiae National Federation of Independent Business Small Business Legal Center.

Rolf & Goffman Co., L.P.A., Carol Rolf, Cleveland, and Robert C. Pivonka, urging reversal for amicus curiae Ohio Health Care Association.

Vorys, Sater, Seymour & Pease, L.L.P., Thomas M. Tarpy, and Michael C. Griffaton, Columbus, urging reversal for amicus curiae Ohio Management Lawyers Association.

CUPP, J.

I

{¶ 1} In this case, a pregnant employee who took maternity leave before she was eligible under her employer's uniform minimum-length-of-service requirements for leave eligibility of any kind was terminated for absence from her job. We are asked whether the termination of that employee for violation of the uniform leave policy is direct evidence of sex discrimination under Ohio law.

{¶ 2} For the reasons that follow, we hold that a uniform minimum-length-of-service leave policy is not direct evidence of a violation of R.C. 4112.02(A). The judgment of the court of appeals is reversed.

II

{¶ 3} Tiffany McFee was employed by appellant, Nursing Care Management of America, Inc., d.b.a. Pataskala Oaks Care Center (“Pataskala Oaks”). Upon hire, McFee received an employee handbook that contained Pataskala Oaks' employment policy. That policy required that an employee be employed for a period of one year before he or she would be eligible for any leave for any purpose.

{¶ 4} Approximately eight months later, McFee presented to Pataskala Oaks a doctor's note that stated that she was unable to work due to conditions related to pregnancy. Soon thereafter, McFee gave birth. Three days after the birth, McFee's employment was terminated. The basis for the termination was McFee's absence from her employment before she had become eligible for leave under the written employment policy.

{¶ 5} McFee filed a charge with the Ohio Civil Rights Commission, appellee, claiming that her termination constituted unlawful sex discrimination on the basis of pregnancy. An administrative law judge recommended that the charge be dismissed. Nevertheless, the Civil Rights Commission rejected that recommendation and found instead that Pataskala Oaks' policy constituted unlawful sex discrimination. Pataskala Oaks appealed.

{¶ 6} On review, the Licking County Common Pleas Court held that Pataskala Oaks' leave policy did not violate the antidiscrimination laws of Ohio and reversed the decision of the Civil Rights Commission.

{¶ 7} On further appeal, the Fifth District Court of Appeals reversed the judgment of the common pleas court. The court of appeals held that the antidiscrimination laws of Ohio expressly require that employers provide employees with a reasonable period of maternity leave. Because Pataskala Oaks' leave policy did not provide maternity leave for employees with less than one year of service, the court of appeals held that the policy violated the sex-discrimination laws. The court also held that the policy was direct evidence of discrimination and, therefore, McFee did not have the burden to offer other evidence of sex discrimination. See McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668.

{¶ 8} Pataskala Oaks appeals here from the decision of the Fifth District. It asserts that (1) an employer's uniform minimum-length-of-service leave policy does not constitute direct evidence of a sex-discrimination violation, even when it is applied to employees who require leave for reasons related to pregnancy, (2) the laws in question cannot be interpreted to mandate maternity leave for employees who are not yet otherwise eligible for any leave, and (3) the McDonnell Douglas burden-shifting framework applies in cases alleging sex discrimination on the basis of pregnancy leave, thus requiring the claimant to offer evidence of discriminatory intent in a claim based on an employment policy that is nondiscriminatory on its face.

III

{¶ 9} R.C. 4112.02(A) provides that pregnant employees must be treated the same for employment-related purposes as employees who are not pregnant but who are similar in their ability or inability to work. See also R.C. 4112.01(B). Because the Ohio Administrative Code Sections promulgated by the Civil Rights Commission must be harmonized with this policy preference of the General Assembly, a mandatory maternity-leave requirement is absent from Ohio Adm.Code 4112-5-05(G)(2). This means that a uniform minimum-length-of-service leave policy is not direct evidence of sex discrimination and the McDonnell Douglas burden-shifting analysis should be applied in cases involving such a policy.

A. R.C. Chapter 4112 does not prohibit uniformly applied minimum-length-of-service leave requirements.

{¶ 10} McFee was terminated from employment because she took leave from her job before she was eligible under Pataskala Oaks' uniform leave policy. Regarding termination, R.C. 4112.02(A) provides: “It shall be an unlawful discriminatory practice * * * [f]or any 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.”

{¶ 11} R.C. 4112.01(B) provides that the term “because of sex” in R.C. 4112.02(A) “include[s], 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.” The second sentence of R.C. 4112.01(B) directs that pregnant women “shall be treated the same for all employment-related purposes * * * as other persons not so affected but similar in their ability or inability to work.”

{¶ 12} Read together, those statutes provide that it is an unlawful discriminatory practice for an employer to terminate an employee because of pregnancy or a related condition without just cause. Because R.C. 4112.02(A) allows an employer to terminate an employee for any nondiscriminatory reason and R.C. 4112.01(B) directs that pregnant employees be treated “the same for all employment-related purposes * * * as other persons not so affected but similar in their ability or inability to work,” the statutes do not impose a per se ban on the termination of every employee affected by pregnancy.

{¶ 13} The phrase “treated the same” in R.C. 4112.01(B) ensures that pregnant employees will receive the same consideration as other employees “not so affected but similar in their ability or inability to work.” Thus, the statute does not provide greater protections for pregnant employees than nonpregnant employees. Other courts that have considered this issue have also applied this interpretation of R.C. 4112.01(B).

{¶ 14} The wording of the Ohio pregnancy-discrimination statute mirrors its federal counterpart, including the phrase “treated the same,” which appears in both Section 2000e(k), Title 42, U.S.Code, and R.C. 4112.01(B). Decisions of federal courts provide guidance in interpretation of the Pregnancy Discrimination Act. Plumbers & Steamfitters Joint Apprenticeship Committee v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 196, 20 O.O.3d 200, 421 N.E.2d 128.

{¶ 15} Federal courts agree that “the Pregnancy Discrimination Act does not require preferential treatment for pregnant employees. Rather, it mandates that employers treat pregnant employees the same as nonpregnant employees who are similarly situated with respect to their ability to work.” (Emphasis sic.) Tysinger v. Zanesville Police Dept. (C.A.6, 2006), 463 F.3d 569, 575. Accord Mullet v. Wayne-Dalton Corp. (N.D.Ohio 2004), 338 F.Supp.2d 806, 811; Armstrong v. Flowers Hosp., Inc. (C.A.11, 1994), 33 F.3d 1308, 1316-1317, and cases cited therein.

{¶ 16} Ohio courts have reached the same conclusion. As stated by the Tenth District Court of Appeals, “Ohio courts implicitly * * * and expressly * * * recognize that an employer need not accommodate pregnant women to the extent that such accommodation amounts to preferential treatment. Accordingly, to prevail on her pregnancy discrimination claim, plaintiff must show that defendant treated her differently because of her pregnancy.” Priest v. TFH-EB, Inc. (1998), 127 Ohio App.3d 159, 165-166, 711 N.E.2d 1070.

{¶ 17} Pataskala Oaks' length-of-service requirements treat all employees the same. Every employee must reach 12 months of employment before becoming eligible for leave. In this sense, the policy is “pregnancy-blind.”

Reeves v. Swift Transp. Co. (C.A.6, 2006), 446 F.3d 637, 640-641. Thus, a pregnant employee may be terminated for unauthorized absence just like any other employee who has not yet met the minimum-length-of-service requirement but takes leave based upon a similar inability to work. Unless there is other evidence of...