*1
Appellee.
Allen, Appellant,
Corporation,
v. totes/Isotoner
Corp.,
[Cite as Allen v.
totes/Isotoner
216,
toner Corporation, LaNisa employer, on a discrimination complaint aris- ing out of Act, the Ohio Fair Employment Practices R.C. Chapter Act, amended Pregnancy Laws, I, Discrimination 138 Ohio Part 1431-1432. We originally accepted Allen’s discretionary appeal, which sought review of the prohibits issue whether Ohio law an employer from discriminating against a female because of or on the basis of lactation. For the below, reasons stated summary we find that judgment properly granted appellee, (“Isotoner”), Corporation against appellant, Allen, LaNisa totes/Isotoner on her claims for wrongful termination. affirm Accordingly, we judgment the court of appeals. opinion its affirming grant of summary judgment to the employer,
the Twelfth District Appeals Court of ruled that Allen had failed to establish prima facie case of sex discrimination on the basis of pregnancy, and concluded that Allen’s termination does not violate public policy against on the basis of pregnancy. court ruled that Allen “was simply and plainly terminated as an employee unauthorized, at will for taking an extra break.” 2008), Allen v. (Apr. CA2007-08-196, Butler App. No. ¶ 3. Allen admitted in deposition weeks, that for approximately two she
had taken breaks without her employer’s knowledge or authorization to do so and supervisor had told her that being she was terminated for her failure to “followdirections.” matter, As a general if a plaintiff establishes a facie prima case of
disparate-treatment discrimination under R.C. Chapter burden of production shifts to the employer legitimate, to articulate a nondiscrim- inatory See, reason for plaintiff. its treatment of the e.g., Plumbers & Steamfit- (1981), 66 Ohio Rights Commt. v. Ohio Civ. Comm. Apprenticeship
ters Joint
192, 197-198,
Ctr. v.
Mary’s
St.
Honor
20 O.O.3d
*2
506-507,
(analyzing
lish triable issue on an essential element of her See, for the is v. Des Moines Works employer appropriate. e.g., Simpson Water (C.A.8, 2005), 542. F.3d case, In this the evidence in the record demonstrates that Allen took workstation,
unauthorized breaks from her and Isotoner her for discharged doing Thus, so. the record as it was in the trial court fails to a basis developed provide jury from which a could conclude that Isotoner’s legitimate, articulated nondis- criminatory reason for Allen’s termination —failure follow directions —was pretext for discrimination based condition related to pregnancy. This determination claim defeats Allen’s sex-discrimination law, and, accordingly, properly under R.C. 4112.02 as a matter of the trial court granted summary judgment Consequently, to Isotoner. this court does not reach alleged issue whether discrimination due to lactation is within included 4112.02, scope statute, of Ohio’s employment-discrimination as sex discrimi- 4112.01(B). nation under R.C. Allen, summary judgment properly Because entered we against
affirm judgment of the court of appeals.
Judgment affirmed. Lundberg Stratton, Cupp, JJ., concur. O’Donnell, Moyer, O’Connor, C.J., J., concur in judgment only.
Pfeifer, J., dissents.
Lanzinger, J., would dismiss the been appeal having improvidently accepted. O’Donnell, J., concurring. judgment affirming summary judgment I concur in the totes/Iso- favor, taking LaNisa Allen for discharged
toner’s because totes/Isotoner That fact employment. undisputed unauthorized break from her scheduled us, either that carry proving the record before and Allen failed to her burden discriminatory discharging motive or that its reason for had pretext Consequently- necessarily, was a for discrimination. accordance —and long-standing widely with considerations utilized the courts —I prudential would not reach the issue whether adverse differential treatment because of lactation falls within actionable discrimination as defined postpregnancy Assembly Chapter in R.C. General It long-standing practice only presented is the of courts decide issues deciding place the facts and to refrain from issues that the facts do not case,
directly
issue. Because
the relevant and determinative facts
*3
dispute
the resolution of the
of the
before us does not turn on whether
parties
R.C. 4112.02
discrimination due to lactation.
encompasses alleged
Because
issue,
court need not reach
any opinion expressed
this
on the issue would be
merely advisory and not in
with
long-standing practice
accordance
of courts
advisory opinions.
to decline to render
It
advisory
is well-settled law that this court will not issue
opinions.
Koch,
395,
State ex rel. White v. Kilbane
96 Ohio St.3d
¶
508, 18, citing
N.E.2d
State ex rel Baldzicki v.
Bd. Elections
Cuyahoga Cty.
Egan
Ohio St.3d
736 N.E.2d
v. Natl. Distillers & Chem.
Corp.
syllabus.
25 OBR
495 N.E.2d
“It has
long
been
and well
that it
duty
every judicial
established
is the
tribunal to
decide actual
parties legitimately
by specific
controversies between
facts
and to
can
judgments
render
which
be carried into effect.” Fortner v. Thomas
51 O.O.2d
Lundberg concur Stratton Moyer, C.J., judgment only. concurring in summary I agree judgment properly against entered Allen, LaNisa thus I concur in I also
appellant, judgment. Because merits, I join opinion, of the her separate in O’Connor’s discussion concur Justice per opinion. not the curiam J., concurring judgment only. in
O’Connor, complaint alleged against LaNisa Allen’s that Isotoner discriminated Fair gender,” “a condition of violation Ohio’s pregnancy, on the basis Act, (“FEPA”), Practices as amended Ohio’s Employment Chapter 1431-1432; (“PDA”), Laws, I, 1430, Act Part Pregnancy Discrimination condition, that her “medical against public policy; that her termination was ” FEPA; and that she lactating, ‘handicap’ purposes act of constitutes under the Americans against handicap had been discriminated on the basis (“ADA”). with Disabilities Act discretionary jurisdiction propositions We asserted to review three case, Corp., claims in Allen v. 119 Ohio
law
arise
1443,
could find her favor. because the courts claims, I applied inapposite precedent analysis federal their of Allen’s believe clarify that this court should reach the merits to the law. therefore concur *4 I forth I hold that lactation judgment only. separately why write to set would 4112.01(B) scope prohibits employ- falls within the of R.C. and that the statute so, In I doing ment discrimination women. R.C. 4112.02. am against fully my opinion advisory. disagree. aware of the assertion that is The lead framework in which this case arises is opinion’s legal failure to address it fail to address the disappointing, troubling scope is even more we advisory law under the merits would result in an guise reaching opinion. any analyzing The bald assertion that Allen’s claim would be opinion Indeed, concurring the cases cited
advisory
patently unpersuasive.
is
ones in which
found an
to moot on
opinion, essentially,
appeal
are
we
issue
be
wholly
are
provide advisory opinions.
therefore refused to
The cases cited
appeal,
from this
however. See State ex rel. White v. Kilbane
distinguishable
¶
Koch,
395,
presented give proper because the need not be answered to resolution to question But that dynamic the case. is not the this case. “ A controversy lacking case or is and the ‘case is moot when the issues
presented
longer
parties
legally cognizable
are no
“live” or the
lack a
interest in
”
(1979),
Angeles Cty.
the outcome.’ Los
v. Davis
440 U.S.
1379,
642,
489,
486,
quoting
L.Ed.2d
Powell McCormack
395 U.S.
every
when,
court,
occurs,
in error in this
pending proceedings
event
without the
relief,
fault of either
which
court
party,
impossible
grant any
renders
it will
petition
dismiss the
error.” Miner Witt
82 Ohio St.
”
McClead,
06CA67,
syllabus.’
Washington App.
N.E.
McClead v.
No.
2007-
¶
*5
Ohio-4624,
2570735, 13,
Ferguson
2007 WL
Tschantz v.
57
quoting
Ohio
“
131, 133,
221 ones, or based possibilities In issues are live not remote appeal, this {¶ 19} 133, 2007- Heasley, occur. 113 Ohio St.3d may on controversies that never See ¶ 11, Ins. Ohio-1248, v. Motorists Mut. Co. quoting Bilyeu Allen, a lactating N.E.2d 871. 65 O.O.2d i.e., for following for not employment was terminated from employee, directions — to use a breast from work station order taking an unauthorized break in a was lawful cannot be made The determination of whether that action pump. Rather, marshals as well as on the facts she depends vacuum. the determination Ohio, law as defined the federal of the law in not the state of federal the state courts. restraint, necessary that “if it is not to decide principle judicial The Laboratories, more,”
more, it PDK Inc. United necessary not decide (Roberts, J., (C.A.D.C.2004), Admin. 362 F.3d Drug States Enforcement here, But it is judgment), important and in is an one. concurring part necessary because it is to decide “more.” inapplicable discrimination claims based question recognizes whether Ohio law Isotoner, lactation Allen and as well as all great general on is one of interest. guidance are entitled to the answer and to employees employers, Ohio’s duty provide guidance the contours of laws. It is our Ohio’s questions posed controversy. and to answer the Fortner v. Thomas (“it duty every is the O.O.2d N.E.2d actual judicial parties legitimately tribunal to decide controversies between facts and to render which can be carried into specific judgments effect”). I proceed. thus Allen, trial court found that entering summary judgment against against pregnancy. According
Allen had been discriminated on the basis court, to the trial “Allen birth over five months to her termination gave prior who and chose not to breastfeed Pregnant give birth [Isotoner]. [women] Thus, pump their breasts do not continue to lactate for five months. relating pregnancy condition of was not a condition but rather a condition related to discrimination does not consti- breastfeeding. Breastfeeding Inc., gender Derungs tute discrimination. See v. Wal-Mart Stores 374 F.3d (6th Cir.2004).” Upon finding, postpartum the court found that lactation and the discomfort associated with are not disabilities. decision, In a appeals conclusory The court of affirmed. it held presented prima
Allen had not facie case of sex discrimination on the basis of did not offend Allen v. public policy. her termination 7, 2008), No. Corp. (Apr. App. According Butler CA2007-08-196. appeals, “appellant lactating, to the court was not terminated because she *6 222 Rather, milk, breast milk.
pumping pump breast or needed take break at an simply plainly taking she was terminated as will for (unlike unauthorized, which were authorized and extra break the restroom breaks included).” to all of employees, appellant available II Objects
Pregnancy and Lactation as Sex Discrimination FEPA Among things, prohibits employer discharging other tenure, terms, conditions, or discriminating against person privileges 4112.02(A). person’s disability. because of the sex or R.C. FEPA, 1980, PDA Through the amendments to the which became effective Assembly statutory phrases General has made clear “because sex” and “on all pregnancy, the basis sex” include claims “because of or on the basis of out of any arising occurring during pregnancy, illness the course of a childbirth, or related medical conditions. pregnancy, Women affected child- birth, or employment- related medical conditions shall be treated the same for all * * 4112.01(B). related purposes statutory The amended framework now FEPA developed similarly embodied Ohio’s to its federal counterpart, 1964, 2000e(k), 42, U.S.Code, Title VII of the Civil Act of section Rights Title Pregnancy federal Discrimination Act of 1978. In the wake the controversial decision Gen. Elec. Co. v. Gilbert 125, 139-140, 343,
429 97 U.S. S.Ct. 50 L.Ed.2d which the United States Supreme rejected Court a disparate-treatment sex-discrimination claim based on a disability plan’s disabilities, insurance refusal to cover pregnancy-related Con- gress amended Title VII to make clear that sex-discrimination includes discrimi- See, nation based on pregnancy. e.g., Fed. S. & L. Assn. v. Guerra California 272, 284-285, 479 U.S. 107 Newport S.Ct. 93 L.Ed.2d News Shipbuilding Dry & Dock v. Equal Emp. Opportunity Co. Comm.
U.S.
foregoing history. a woman who had brought by in case Derungs, public-accommodations decision near a sitting infant while on bench breast-feeding prohibited been (S.D.Ohio Derungs in a Walmart store. v. Wal-Mart Stores Inc. dressing room case, 2000), granted partial In that the district court F.Supp.2d 886. age for plaintiffs in favor of Walmart on the claims sex summary judgment 4112.02(G), affirmed. of R.C. Sixth Circuit discrimination violation F.3d at Derungs, 374 440. decisions, applied the Gilbert rendering In their federal courts
{¶29} the Ohio rejected Congress that had both analysis expressly been so, doing at the federal Derungs, F.Supp.2d 889-892. Legislature. See at the case on federal case law. Id. 889-893. courts decided here, involve Derungs did not Significantly purposes for discrimination, rather, a claim discrimination accommodations. public but Assembly passed when General recognized, as the federal courts the Ohio And PDA, Chapter public-accommodations portion not R.C. it did amend at Derungs, fn. 374 F.3d Derungs, F.Supp.2d 4112. see also See here its significant. Derungs inapposite I is because find fact 31} {¶ was not amended portion Chapter of R.C. analysis revolves around law: legislators’ view of the Derungs PDA. did not reflect Ohio evidently, And 3781.55, decided, Assembly General enacted R.C. Derungs after place public in a accommoda- permits a mother to breast-feed child which tion. is inconsis- analysis Derungs I courts’ not recognize that the federal notwithstanding on Gilbert with the federal courts’ continued reliance
tent may PDA. differ Reasonable minds about merit the rule set forth given Gilbert. But our legislature’s unambiguous rejection clear and Gilbert in our analysis, apply analysis pregnancy- decline those rationales brought claims the gender-equity prong under of the FEPA.1 clarity Given the with which our legislature spoken has this issue and its gender-based insistence that discrimination can discrim- pregnancy-based include ination, in a engage meaningful analysis we should centered on the statutory language. PDA protection employees Ohio’s affords “because of or on the basis childbirth, pregnancy” by pregnancy, states or “[w]omen
related medical conditions shall be treated the for all employment-related same * * * purposes as other similar in persons ability so affected but their or * * 4112.01(B). inability to work That language broad. expansive “Related” and “affected” are terms. “Related” means “con- relation,” nected of an reason established or discoverable and “relation” means (as resemblance) “an aspect quality that connects two or things parts more *8 as being or or belonging working together being or as of same the kind.” (10th Ed.1993) Dictionary “Affected,” Merriam-Webster’s Collegiate 987. the “affect,” past tense of “[having] means an effect produce[d] upon” and “[having] produce[d] a material influence at upon.” Id. 19. Despite this language, broad the trial court found that discrimination on
the basis of lactation is not the same on as discrimination the of pregnancy basis because “Allen’s condition of not a lactating was condition to relating but rather a condition relating to breastfeeding.” I find that conclusion curious and inaccurate.
(¶ Lactation —the formation milk by and secretion of the mammary 36} glands Russ, believed to be stimulated by prolactin, Freeman, a hormone. 1 —is & McQuade, Attorneys (Aug.2008) Medical Advisor During Section 4:5. pregnan- cy, prolactin the level of in a woman is inhibited by high levels of estrogen and progesterone. Id. at Section 14:228. Following delivery, levels of estrogen and progesterone fall the woman prolactin while the level of high. remains Id. at Section milk. 14:26. Prolactin then stimulates and maintains the production of Id. at 4:5. Section Colostnim, a substance that protein contains more less fat
{¶ and and 37} sugar milk, than breast is secreted the by during breasts pregnancy breast-feeding reviews, am divergent aware debates that surround in forums as as law public journals, press. popular judges health and the But our role as not to substitute our own legislature they Rather, views of issues for those those of the as are embodied the Revised Code. legislature we interpret must follow the laws as written accordingly. them Russ, Milk production Section 14:228. immediately following childbirth. days milk and breast thereafter, day, or fourth usually postpartum on third begins 14:26. at Section appears. Id. found, breast-feeding. obviously is linked trial lactation As the court 38}
{¶ lactation, concluding I have little trouble aspects of given physiological But clear, and with with pregnancy also undeniable nexus that lactation has on the lactation is “because Therefore, it follows that necessarily childbirth. are are women “affected and that women who pregnancy” basis Pacourek, 1402, quoting F.Supp. childbirth.” Accord pregnancy [or] 95-948, that Congress, concluding 2d Session No. 95th Report House history, its proper, given legislative federal PDA is construction liberal “ range to the whole protection makes clear its extends ‘the bill ” I would hold Accordingly, concerning childbearing process.’ matters from lactation are under Ohio’s arising cognizable claims gender-discrimination does not end with analysis appeal PDA. But the FEPA amended that conclusion. on a predicated disparate- of discrimination appear Allen’s claims asserts, allegedly workrule that violated theory. [she]
treatment She “The milk to lunch pump the time could her breast the one that restricted she who any restrictions on other needed placed employee break. Totes no such discomfort, only bodily bodily his to a function leave or her workstation tend discriminatory, placed The work rule was itself since upon lactating women. experiencing physical pregnancy.” act of extra restrictions women claim, holding simply that Allen “was implicitly court addressed unauthorized, taking at will for extra plainly terminated as (unlike authorized and available to all break the restroom breaks which were included).” Allen, CA2007-08-196, 2-3. appellant App. Butler No. employees,
Ill
facie
disparate
In order to establish
case for
treatment based
prima
40}
{¶
(1)
must
workplace,
plaintiff
discrimination
the
the
show
upon pregnancy
(2)
the
satisfactorily performed
required by
was
she
the duties
pregnant,
she
(3)
(4)
hired,
position
she
was
was
position
discharged,
for which
was
she
and
v. Am.
ultimately
employee
pregnant.
filled
who was
See Donaldson
(D.Colo.1996),
citing
Inc.
McDonnell
Corp.,
F.Supp.
Banco
792,
(1973),
1817,
v.
93 S.Ct.
{¶ to production the the defen- presumption of discrimination and shifts burden dant a legitimate, nondiseriminatory to articulate reason for its treatment of the 506-507, plaintiff. Mary’s Ctr. v. St. Honor Hicks 509 U.S. nondiseriminatory L.Ed.2d 407. Legitimate, reasons for the action employer taken include part insubordination Prods., claiming Hood v. discrimination. Diamond Inc.
302,
from her work station. Isotoner that it discharged asserts doing so. Although Allen’s may milk, unauthorized breaks have been pump
{¶ 44} Allen could not properly engage such actions her employer’s without knowl- edge permission. and The FEPA the PDA mandate that an employer treat pregnancy neutrality, with but not preferentially. Allen argues that policy break discriminates against
{¶ 45} women because other employees are to use able the bathroom freely attend to bodily functions like menstruation and urination. But Allen was not forbidden to breaks, take similar nor presented any has she that any evidence other employee routinely used the bathroom for 15-minute breaks on a scheduled basis each day. Thus, the record this case support would not jury’s reasonable verdict in on a Allen’s favor disparate-treatment theory. Summary judgment was properly entered against her.
IY Pregnancy Disability and Lactation as I turn now issue of whether lactation are disabilities for purposes disability-discrimination analysis. I would hold that they are not. To establish a facie prima disability discrimination, case plaintiff (1) (2) disabled,
must demonstrate that she is that an adverse employment action (3) was taken employer, least in part, because of the disability, disabled, plaintiff, can though safely substantially perform the essential job Chevrolet, functions of the question. Hazlett Martin Inc. 25 Ohio Here, 25 OBR 496 N.E.2d 478. there showing is no *10 Allen test, i.e., satisfied the first prong that by she disabled virtue of pregnancy lactation.
227 uniformly have found have considered this issue courts that ADA claims because itself, se for disability per purposes is not a pregnancy, not limiting and do substantially not term, restrictions are temporary “[s]hort (D.Conn.2007), v. Furniture Rental Kucharski Cort person a disabled.” render (D.Conn.2008), F.Supp.2d 594 196, 202, grounds, on other reversed F.Supp.2d 536 (D.Md.1996), F.Supp. 940 v. NationsBank 207. See also Wenzlaff (S.D.Tex.1995), Constructors, F.Supp. 152. Inc. v. J.E. Merit Villarreal Equal guidelines issued interpretative is supported That conclusion such as Commission, preg which that conditions state Opportunity Employment Id., impairments. and are not a disorder nancy physiological are not the result of 1630.2(h). a Furthermore, language defines express the ADA’s citing C.F.R. substantially one or limits impairment or mental disability “physical as 12102(1)(A),Title life activities of individual.” Section major more of the [an] conclusion, rejecting courts the same have reached U.S.Code.2 State laws under state cognizable claims are pregnancy-discrimination arguments Co., See, e.g., Hegwine Longview v. Fibre forbidding disability discrimination. (“An 340, 344, 172 to hire employer P.3d 688 who refuses Inc. 162 Wash.2d * * *, sex is liable for discrimination job applicant pregnancy because of * * * disability related analysis applicable like that to accommodation claims”). employment discrimination persuasive is reasoning these decisions agree. implicit I “The condition, Gudenkauf, is but not disorder.” physiological Pregnancy
sound. simply to contend a woman’s Similarly, preposterous at 473. is F.Supp. “[i]t Sterling, is v. Inc. abnormally lactating.” because she Bond body functioning is (N.D.N.Y.1998), 306, 311. F.Supp. she pregnant hold that a woman is “disabled” because is To were working women that judicial attitudes toward paternalistic
evokes the
See,
Oregon
early
e.g.,
cases.
Muller v.
apparent
century
twentieth
Where,
here,
there
not a medical
2.
look to federal
We
interpretation
apply
of federal statutes
“Although
are
federal court
law.
we
not bound
statutes,
considering
analogous
ease law when
claims of
have looked to federal
Ohio
we
N.A.,
Coryell
brought
Trust
Ohio
Code.”
Bank One
Co.
under the
Revised
¶
175,
{¶ 51} questions case, answer the that Ohioans need answered. we are asked can jobs whether mothers who be pumping breast-feed fired then- for their is, in breasts in the That its workplace. protection pregnant of workers 4112.01(B), did Assembly protection the General include of women who are the dealing with aftereffects of their lead pregnancy? opinion dodges The the to opportunity provide an answer. (1) Any court’s method of cases should ask analyzing whether the (2) stated a
plaintiff cognizable cause action and whether the facts the case support alleged the cause of It why, action. is unclear on this question great interest, general this court has embarked on a analysis, letting backwards stand appellate the court’s holding that LaNisa Allen was for leaving post fired without permission rather than for pumping breasts the wash- employee room, leaving thus question unanswered the whether she even asserted a cognizable cause of action. trial proceeded court properly, although its conclusion it was incorrect: found as a matter of law Ohio’s pregnancy apply protect discrimination laws do not to mothers who breast-feed their babies. ruling It did as it on summary should judgment gave motion: the benefit of the facts to Allen and ruled on law. the Somehow, appellate court lost way, its and this court has followed. decision,
In its six-paragraph appellate court concludes that Allen was not “Rather, fired for pumping her breasts: she was simply plainly terminated as unauthorized, (unlike an at will taking extra break the restroom breaks which were authorized to all and available of the employees, appellant included).” 7, 2008) Allen v. Corp. Butler (Apr. App. No. CA2007- 08-196. The court not explain why does trips to the restroom outside scheduled break times were different from trips the restroom other employees made outside scheduled break times. There no evidence any record length about limit of unscheduled restroom breaks and no employees evidence that had to permission seek from a to supervisor take an restroom unscheduled break. There is only evidence that unscheduled bathroom breaks were allowed and that LaNisa Allen was taking fired for them. What made her breaks different? accept We not necessarily cases because of might how the result affect
the parties case, in the individual but how a holding might because of affect other persons similarly working situated. Ohio’s mothers who endure the uncomforta- ble sacrifice privacy necessarily almost accompanies their attempt to remain job on the and nourish their children deserve to know whether Ohio’s pregnancy-discrimination laws protect them. due lactation in this I would hold case 4112.01(B), justifies public policy that clear to R.C. pursuant
is unlawful
relating
for reasons
for women fired
employment-at-will
doctrine
exception to
state
lactation,
deserves
opportunity
LaNisa Allen
—due
jury.
her claim
prove
before
record—to
*12
III,
Cook,
H.
for
Forg
appellant.
Ltd. and John
Pagan,
Repper,
Hollister,
Reilly,
Hoying,
appellee.
and Daniel J.
Taft,
Timothy
&
Stettinius
Atty.
Appellee,
Cordray,
Gen.,
ex
State
rel.
Appellant.
Rawlins,
Marshall,
Judge;
Cordray Marshall,
rel.
[Cite as State ex
229,
General Richard writ Rawlins, immediately and to Adrian appellant, to vacate certain entries favor County of Common Pleas compels return him to The writ Scioto Court prison. attorney general originally and has been continued then Jim Petro This ease was instituted Attorney attorneys up including General Richard general, to and current successor various X(2) 25(D)(1). Cordray. See S.Ct.Prac.R. and Civ.R.