Ohio’s ‘Pregnancy-Blind’ Policies

Amie Newman

A new mother in Ohio is fired for taking leave days after the birth of her baby. The Ohio Supreme Court rules the termination is perfectly legal.

This post was updated on 6/24/10, 4:41pm, EST

What is going on in Ohio?

According to the Ohio Employers Law Blog, Ohio businesses “were handed a huge victory” today when a court ruled that pregnant women do not have the right to take leave of any kind unless they meet the same specifications other employees must, for leave. In a 5-1 decision, the Ohio Supreme Court ruled that the Pataskala Oaks Care Center, a nursing home where employee Tiffany McFee worked for 8 months, did not discriminate on the basis of gender when it fired McFee, three days after the birth of her newborn, since she did not return to work. The center has a policy in place that allows employees to take up to twelve weeks of unpaid leave only after they’ve been employed there for one year.

It comes down to this: The center fired McFee because, although she had just given birth, she hadn’t met the criteria for taking family leave yet. Therefore she was entitled to no leave. Nothing. Not one day.

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The Columbus Dispatch reports that McFee “filed a gender-discrimination complaint with the Ohio Civil Rights Commission, which ruled in her favor” in 2004. Though a judge dismissed the claim, an appeals court held that the state’s “antidiscrimination laws require that employers provide employees with a reasonable period of maternity leave, and the at-issue policy that denied McFee leave was direct evidence of sex discrimination.”

When the nursing home took the case to the Ohio Supreme Court, the court ruled that the center’s policy was “pregnancy-blind” and treated all employees equally. The court interpreted Ohio’s pregnancy discrimination provisions in a way that, writes the Ohio Employer’s Law Blog, mandates businesses must have a “neutral leave policy” if they have a policy at all, so “that when a woman qualifies for leave, the leave provided for childbearing must be reasonable” and when an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave for temporary disability due to pregnancy or a related condition.” 

In Ohio (as it is around the country), the Family Medical Leave Act (FMLA) requires that businesses with fifty or more employees provide up to 12 weeks of “job protected, unpaid leave” to employees who have worked for at least twelve months minimum for said employer. But this is simply the base minimum and certainly each business can create its own policy, using these as guidelines. For businesses with less than 50 employees, there are no federal mandates of any kind. Employees do not need to be given leave to care for a sick child, after the birth of a child, to care for a sick or dying parent; they don’t even need to be given a minimum number of paid sick days.

Now, I understand that some people’s initial reaction to this case will be “Well, of course! Why should pregnant women be given “special’ treatment under the law?!” This apparently comes from the “anti-pregnancy” folks out there who must believe being pregnant, experiencing childbirth and parenting is a luxury in which only the elite partake. But for most Americans, especially those who consider themselves supportive of what should be basic labor standards and human rights for families and newborns, ensuring that pregnant employees are able to take family leave post-childbirth is crucial.

A few years ago, at a town hall meeting here in Seattle convened by the advocacy organization, MomsRising, and facilitated by Washington state’s House Speaker Frank Chopp, a group of concerned citizens came together to discuss the importance of paid family leave legislation in Washington state (and around the country).

I remember new mother after new mother coming to the front of the church-basement room to relay stories of needing to head right back to work just days after childbirth. Most had no family leave available – and absolutely zero paid family leave. One woman told a heart wrenching story of needing to head back to work while her newborn was in NICU (Neonatal Intensive Care Unit); but she feared losing her job and really didn’t have a choice.

Somehow we’ve come to equate, in this country, family leave (never mind paid leave!) with some sort of “free” vacation. It’s as if we’re giving new parents – new mothers in particular – a “freebie” (even the article in the Columbus Dispatch, on this particular case, calls this type of leave “taking time off,” as if women are really just looking for a way to skirt work for a few weeks). How dare women who have just given birth request “special leave” to care for their newborn babies!  After all, it’s women who fought so long and hard, and continue to struggle, to be seen as “equals” professionally. As well, it’s spoken of as a hardship that businesses must shoulder when a woman takes family leave.

Maybe not surprisingly, these declarations are not only discriminatory, they make for poorly run businesses and do nothing to help lay the foundation for happy, healthy families.

The truth is, McFee was taking time off to be the best mother she could be. Yes, she had not been at the center for the length of time required to use the family leave benefit. But what makes the most sense in this scenario? Allowing a new mother time to parent her newborn baby – time in which to establish a critical breastfeeding relationship, time to bond and adjust as a family, and time to set up a child-care situation that works for both family and employer – so that she may come back to her job feeling secure that her child is well cared for and prepared to continue working for an employer by which she feels valued? Or firing said employee, with a dependent newborn, a woman who had been with the center for eight months, who was trained and committed to her position only to then devote unnecessary time and energy into another hiring process and a new employee?

As Kristin Rowe-Finkbeiner, Executive Director & Co-Founder of MomsRising stated in an interview with Rewire:

“At a time when 1 in 4 children in our nation are experiencing food scarcity due to family economic limitations, this ruling goes in the absolute wrong direction.  With women now 50 percent of the entire labor force, and 80 percent of American women having children by the time they’re forty-four years old, it’s time to expand family-friendly policies, not curb them.”

On the other side, Tom Tarpy, a lawyer in Ohio who represents employers, frames it this way:

“Whether or not a person’s unexpected leave is due to pregnancy or a heart condition or a broken leg, those circumstances affect small businesses very differently when you have one-fifth of your work force out on leave,” Tarpy said.

In this scenario, then, women who have been at a job for less than one year, who give birth, place their jobs in jeopardy simply by becoming mothers and have absolutely no recourse. With this Ohio ruling, pregnant women who have worked for an employer for less than a year have no guarantee of a job once giving birth. It’s hard not to interpret that as sex discrimination.

As Kellie Copeland, executive director of NARAL Pro-Choice Ohio told the Columbus-Dispatch:

“This is appalling,” Copeland said. “We should be having policies in place that allow people to have children and not lose their jobs because they choose to have a child. This illustrates a major hole in Ohio law – there is no protection for women in this type of situation.”

It’s a case that has the potential to push the new “conservative feminists” to confront feminism head-on. Feminists have fought long and hard for equality and justice for women and girls in this country, and wonder how Sarah Palin can call herself a feminist with no examples of policies she’s helped put in place to address core feminist principles like gender discrimination. This case might be a turning-point, then.

Lawyer, blogger and suburban city council member in Northeast Ohio, Jill Zimon, calls this case “critical” and ” a “real test” for conservative, female political candidates around the country:

“It’s exactly these kinds of cases that right-of-center female political candidates must address and come down on the side of the pregnant worker if they want to be seen as women who support women. If [Meg] Whitman, [Nikki] Haley et al cannot express outrage at such decisions, then they absolutely do not deserve the support of women who are genuinely interested in having more women in political office.”

Copeland told Rewire that she hopes Ohio voters, in particular,  pay attention:

This ruling should be a wake-up call to Ohioans that the Ohio Supreme Court has been stacked with justices who have repeatedly ignored the basic health and dignity of Ohio women. Members of the Ohio Supreme Court are elected. Ohio voters should remember this ruling in November and vote accordingly.

 This case is an outrageous display of gender discrimination. If women can now be fired for having a baby before her employer is “ready,” then said business has no policy in place that protects the pregnant employee’s rights.

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