Firing woman for taking unauthorized breaks to pump breast milk OK, Ohio top court rules

[ccharles000]

A Cincinnati-area company didn't discriminate against a new mother when it fired her for taking unauthorized breaks to pump milk from her breasts, the Ohio Supreme Court ruled this morning.

Totes/Isotoner, an outerwear manufacturer in West Chester, did not violate Ohio's pregnancy-discrimination law by firing general laborer LaNisa Allen for taking lactation breaks four hours into her shift.

Allen argued that her breasts ached five hours into her shift, when she was allowed a lunch break.

The court, however, said Totes/Isotoner was within its rights to fire Allen for "failure to follow directions."

Justice Paul E. Pfeifer dissented, and Justice Judith Ann Lanzinger said the Supreme Court should not have taken the case.

In an unsigned opinion, the court said Allen's status as a lactating mother isn't relevant to the dispute.

"In this case, the evidence in the record demonstrates that Allen took unauthorized breaks from her workstation, and Isotoner discharged her for doing so," the court wrote.

"Thus, the record as it was developed in the trial court fails to provide a basis from which a jury could conclude that Isotoner's articulated legitimate, nondiscriminatory reason for Allen's termination -- failure to follow directions - was a pretext for discrimination based on Allen's pregnancy or a condition related to her pregnancy."

http://www.dispatch.com/live/content/local_news/stories/2009/08/27/abreast.html?type=rss&cat=&sid=101

[Union Yes]

1. America is a nation devoid of compassion.

[Lorien]

33. There's plenty of "compassion" for wealthy corporate overlords

and authoritarians, but not a scrap for the rest of us.

[DebbieCDC]

2. I hope this gets appealed

Who would a 'puke justice serve: the corporate paymaster or the family values new mother?

[moriah]

3. What about failure to make accomidations?

Now, I've never pumped, but how long does at least a small session take, at least enough to stop pain? Does that interfere with production to do it like that instead of fully emptying the breast?

I'd always hoped that if I had a child that I could manage to pump on my 15 minute break as well as my lunch. Were they not giving her that?

[ProgressiveProfessor]

16. Required for some things including religon and disabilities, lactation is neither

[Robb]

23. Depends on the state, actually.

Colorado, for example and oddly enough, requires employers to do a great deal to accommodate pumping mothers.

[nashville_brook]

31. then, this is the area where pressure should be applied b/c clearly, lactation should be accomodated

by corporations -- otherwise, they are putting an undue burden on women who choose to have children.

[Hekate]

28. If you pump too little you start the process of drying up. A baby will nurse for 20 minutes...

... by which time nearly all the milk will be gone, thus signaling the mother's body that more milk is needed. About 4 hours later, she'll be full again -- and aching, and leaking. When babies are weaned (including weaning themselves) they nurse for shorter amounts of time, thus signaling the mother's body that less milk is needed next time. Gradually the breasts dry up.

What this employer is doing is signaling all the workers that they are interchangeable units of whom strict conformity to the employer's needs is required. Babies' needs are not part of the picture. Their policies don't discriminate against nursing mothers because they strictly enforce a one-size-fits-all policy. The same reasoning applies to refusing to put a ramp alongside a steep staircase: the staircase is not discriminatory because people in wheelchairs have the same right to use the staircase as does everyone else.

The problem with one-size-fits-all policies is that they require neither a heart nor a brain to enforce. I hope this poor woman has financial backing to pursue her case to a higher court, because this one gave a verdict that (excuse the pun) sucked.

Hekate

[Orrex]

4. I wonder if the company allows smokers to take smoke breaks?

Nothing against smokers, but if the company accommodated them, then I don't see why they couldn't make time for Ms. Allen.

For that matter, what if she'd had a bladder condition requiring frequent trips to the bathroom?

[MadMaddie]

20. Bet you they do!

[CurtEastPoint]

5. Tell'em. Here's contact info.

[e-mail]

[Lorien]

34. Done

I've purchased plenty of Totes items over the years, but I'm done now. I'm sick of the compassion free here in America. Enough already!

[proud patriot]

6. please let this employer be in the worst person segment tonight

[MercutioATC]

7. There's more to the story.

Her firing was upheld because she took the breaks on her own without asking her employer first.

"Justice O’Conner published a lengthy concurrence – with which Chief Justice Moyer concurs – that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy. However, because Allen did not obtain her employer’s permission before taking her lactation breaks, her claim failed:

Although Allen’s unauthorized breaks may have been to pump milk, Allen could not properly engage in such actions without her employer’s knowledge and permission. The mandate that an employer treat pregnancy with neutrality, but not preferentially.

http://ohioemploymentlaw.blogspot.com/


This decision seems to state that if she had asked for the extra breaks and been denied or fired, Isotoner would have been in violation of Ohio law. However, she took the breaks without even asking...for two weeks...at which point she (and she was a temp, not a permanent employee) was fired.

[moriah]

10. Well, as much as I dislike comparisons between nursing and elimination...

... I do think that the questions one of the judges brought up in the opinion, that if unscheduled restroom breaks were allowed that there was a question of fact as to whether there were discriminatory overtones. In other words, if both were to get bodily fluids out of the body... ugh.

Then again if that comparison is left to stand employers will argue that a woman should have to pump in the bathroom.

[MercutioATC]

11. It's an interesting legal issue until we're confronted with the lack of notification.

She told her employer that she needed to pump. The employer accommodated her stated pumping needs.

She discovered that her break schedule didn't fit her pumping needs, so she began to take unauthorized breaks without even informing her employer of the problem.

She was fired.

(It's also of note that she was a temp, not a permanent employee. I'm not certain that temp agency employees have the same standing as actual permanent employees.)

[BalancedGoat]

12. It's an interesting position

I admit that I had never thought to view the two in a similar light. It's unfortunate that those questions the dissenting judge raised remain unanswered. If the company does allow unapproved bathroom breaks for the usual purposes it would certainly make for a good argument that this was discrimination. I feel that the fact that the woman's lawyer did not raise this issue at the trial court provides some reason to believe that the answers to those questions would not have been favorable to the woman's claim.

From the little I've read about the case I've seen no evidence that the firing was discriminatory as defined by the law. Certainly many of us here might disagree with the company's policy in this regard but that doesn't make it unlawful. It is my hope that this case and cases like it, instead of simply causing people to complain about the ruling, actually motivates them to work towards bringing the law more into alignment with what we think is fair and just.

[moriah]

15. From the opinion:

"Allen argues that the break policy discriminates against lactating women because other employees are able to use the bathroom freely to attend to bodily functions like menstruation and urination. But Allen was not forbidden to take similar breaks, nor has she presented any evidence that any other employee routinely used the bathroom for 15-minute breaks on a scheduled basis each day."

Well, in my office, that would not be a problem to prove.

And if her breaks were only 15 minutes to pump... it sounds like she either had the SuperSucker or wasn't doing a full pump session, just enough to relieve pain.

[Robb]

25. Actually

Mrs. Robb claims to handle it two or three times a day, 10 minutes each break. Double guns, though, if you follow. Quite a balancing act. :D

[Parche]

8. I hope that company goes Tits Up

:rofl: :rofl::hi: :loveya::hug:

[femrap]

21. Since I'm pretty

sure that males hold the executive positions, I hope the company goes dick down! :evilgrin:


Ohio is the most backward damn state...I don't know what happened to it. Well there was that 16 years of constant repugnant rule, but still.....

Stupid and backward.

[Parche]

37. yes good answer!!

:hi:

[Starry Messenger]

9. Ugh. What is happening to our country?

"Failure to follow directions" is such a weasel phrase. Why couldn't they pre-authorize a saner break schedule?

[nashville_brook]

30. we have a winner! "weasel words" is right -- she had actually arranged "permission"

then, the goal post is moved: she has to arrange permission for each and every trip, which is a suckass burden -- designed to deny her the break.

[MineralMan]

13. The Isotoner management is a bunch of boobs, it seems.

Sorry...:hide:

[femrap]

24. All of their products are

manufactured in China...umbrellas, gloves, slippers. I haven't bought a fucking thing from them for years.

You're too kind...these guys are too cruel to be boobs. They're more along the line of sadist dirty assholes. May viagra blind them all.

[barbtries]

14. i think the milk in her breasts

was directly related to her pregnancy. that sucks.

[tsuki]

17. Five will get you ten, the owner is an anti-abortionist. nt

[girl gone mad]

19. Probably.

"Pro-life" until they're born and then they can just starve to death.

[omega minimo]

18. Charles Deming and Total Quality Management didn't take lactation into account.

[Canuckistanian]

22. WTF is an "unsigned decision"?

Does that mean that no single Ohio Supreme Court Justice want to have their name on this piece of shit decision?

"Not relevant to the dispute"?

Fucking heartless bastards for Isotoner to contest the lawsuit.

Even MORE heartless for the Ohio SC to rule this way.

SHAME!

[unblock]

26. sounds to me like her lawyers fucked up.

my guess is that they didn't have a case for wrongful dismissal under ohio's pregnancy-discrimination law (perhaps the law was written too narrowly) but did have a case under the federal americans with disabilities act (lactation breaks would seem to me to be "reasonable accomodation".) on the other hand, perhaps they still have a chance to make that argument in another jurisdiction.

[taterguy]

32. I would love to see someone argue that lactating is a disability

OTOH, I really shouldn't post when I've been drinking

[unblock]

38. it's odd given the title of the law, but pregnancy is covered by the americans with disabilities act

[undeterred]

27. A company who values their employees

provides a place and time for nursing mothers to privately pump milk.

[Jazzgirl]

29. ccharles...you really find some interesting and

challenging articles. Damn, this really pisses me off and I have never had children but I know and have known a lot of lactating women. I don't understand why women have to keep putting up with this shit.

[sl8]

35. More info ...

LaNisa Allen v. Totes/Isotoner Corp., Case no. 2008-0845

Oral arguments preview:
http://www.sconet.state.oh.us/PIO/oralArguments/09/0311/0311.asp

Oral arguments video:
http://www.ohiochannel.org/multimedia/organizations/media.cfm?file_id=118782&organization_id=4

[Vidar]

36. More misogynist bullshit.