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.

News Sexual Health

State with Nation’s Highest Chlamydia Rate Enacts New Restrictions on Sex Ed

Nicole Knight Shine

By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.

Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.

The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.

Republicans hold large majorities in both chambers of Alaska’s legislature.

Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.

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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”

Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.

Alaska’s teen pregnancy rate is higher than the national average.

The governor in a statement described his decision as a “very close call.”

“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.

Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”

An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”

Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.

She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”

The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”

Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to Philly.com, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.