LaNisa Allen was fired from her job at the totes/Isotoner Corporation after she took “unauthorized” bathroom breaks to pump breast milk. Allen sued for wrongful termination, alleging that she was a victim of sex discrimination on the basis of pregnancy. The trial court disagreed, granting summary judgment to Isotoner, finding that Ms. Allen’s termination was based on her failure to follow company policies (against unauthorized breaks), not for any discriminatory reasons. The appeals court affirmed the lower court’s grant of summary judgment, as did the Ohio Supreme Court yesterday in a per curiam decison (here) in Allen v. totes/Isotoner Corp., Slip Op. No. 2009-Ohio-4231.
I have not read the trial court briefs, but aspects of the Ohio Supreme Court’s decision suggest that perhaps Ms. Allen did not have the strongest case. Nevertheless, the court’s reasoning deserves further analysis. In my reading, the per curiam opinion narrowly focuses on whether the breaks were authorized or not. By implication, pumping breast milk at work is ok, as long as one pumps on a schedule set by the employer. But human milk production does not follow a schedule set by an employer. The court fails to address basic questions about accommodations for breast-feeding employees.
In his dissent, Justice Paul Pfeiffer (the sole dissenter) criticized the court’s opinion:
This is the Supreme Court, and when the opportunity arises, we should answer the questions that Ohioans need answered. In this case, we are asked whether breastfeeding mothers can be fired from their jobs for pumping their breasts in the workplace. That is, in its protection of pregnant workers in R.C. 4112.01(B), did the General Assembly include protection of women who are dealing with the aftereffects of their pregnancy? The lead opinion dodges the opportunity to provide an answer.