McFee v. Nursing Care Mgmt. of Am., Inc., 2010-Ohio-2744
Employers struggle with the issue of when it is permissible to deny an employee leave under the employer’s leave policy. For example, when an employer’s leave policy requires an employee to obtain one year of service prior to being entitled to leave, can an employer deny a pregnant employee leave when she has not reached the length-of-service requirement contained within the leave policy?
In Ohio, employers are not required to offer leave to employees but may do so on a voluntary basis. Federal law, however, mandates that an eligible employee is entitled to 12 weeks of leave for family and medical reasons under the Family Medical Leave Act. To be eligible for leave, the employee must have worked for the employer for at least 12 months and worked at least 1,250 hours for that employer in the 12 consecutive months prior to leave. The FMLA only applies to those employers with at least 50 employees.
In addressing the issue of pregnancy leave under Ohio law, the Fifth District Court of Appeals found that Ohio employers are required to provide employees with a reasonable period of maternity leave even if the employee was not eligible for leave under the employer’s uniform leave policy requiring a year of service prior to obtaining eligibility for any leave. Because the employee in this case had not worked for the employer for 12 months, she was not entitled to leave under the FMLA.
In McFee v. Nursing Care Mgmt. of Am., Inc., 2010-Ohio-2744, the Supreme Court of Ohio reviewed the Fifth District’s decision. The employee was denied pregnancy leave because she had not worked the requisite one year to be entitled to leave under the employer’s leave policy. After the birth of her child, the employee failed to return to work and she subsequently was terminated for taking unauthorized leave.
In overruling the Fifth District’s decision, the Supreme Court of Ohio reviewed Ohio’s anti-discrimination statutes. Although the “statutes provide that it is an unlawful discriminatory practice for an employer to terminate an employee because of pregnancy or a related condition without just cause,” the Court held that “the statutes do no impose a per se ban on the termination of every employee affected by pregnancy.” The Court further held that the anti-discrimination statutes do not provided greater protection to pregnant employees than nonpregnant employees. Rather, the statutory scheme simply ensures that pregnant employees will receive the same consideration as other employees
The employee argued and the Fifth District held that the Ohio Administrative Code entitles, without qualification, pregnant employees to a reasonable period of pregnancy leave. Although the Court recognized that the language of the code section intimates that leave unequivocally is required for pregnant employees, the Court found that reading the code in such a manner would unconstitutionally usurp the legislative function. Thus, the Court interpreted the code section in conjunction with the anti-discrimination statutes to find that the code “must mean that 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.”
Based upon this rationale, the Court analyzed the employer’s uniform leave policy which required all employees to reach one year of service prior to being eligible for any leave. Because the policy was equally applicable to all employees in that no employee would be entitled to leave until reaching the length-of-service requirement, the Court held that “the policy is ‘pregnancy-blind.’” The Court, therefore, held that when a leave policy is pregnancy-blind, “a pregnant employee may be terminated for unauthorized absences just as any other employee who has not yet met the minimum-length-of-service requirement but takes leave based upon a similar inability to work.”
In such circumstances, a pregnant employee is not terminated on the basis of pregnancy but instead the termination is based upon taking unauthorized leave. Thus, the termination of a pregnant employee who fails to meet the minimum-length-of-service requirement of the employer’s leave policy does not constitute “direct evidence of sex discrimination.”
The Court’s holding does not mean that a pregnant employee terminated for unauthorized leave can never establish a valid gender discrimination claim when she is terminated for taking unauthorized leave. The employee, however, would be required to establish that the reason given for her termination, i.e. unauthorized leave under the employer’s uniform leave policy, was nothing more than a pretext for discrimination. In other words, the employer simply utilized the policy as grounds for termination when the actual reason for termination was the fact that the employee was pregnant.
In practice, an employer with a similar length-of-service requirement in its leave policy must uniformly apply the policy requirement to all employees regardless of the employee’s race, color, national origin, ancestry, religion, age, disability, sex, military status, pregnancy or any other protected class. By taking this uniform approach, an employer will protect itself from claims of discrimination relating to the employer’s application of its neutral leave policy.
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