Pregnancy Discrimination Case in the Ohio Supreme Court

On March 11, 2009, the Ohio Supreme Court heard oral arguments in Allen v. Totes/Isotoner Corp., Case No. 2008-0845. The employer had terminated an employee who pumped milk from her breasts in the women's bathroom on unauthorized breaks. The employee claimed that the employer had discriminated against her on account of her gender and her pregnancy. She claimed that lactating women - as opposed to breastfeeding women - are a protected class. According to the employee, breastfeeding is the social act of nursing an infant while lactation is the secretion of milk from the mammary glands and is an aspect of pregnancy or childbirth. She also claimed that other workers were permitted to take unscheduled breaks to tend to bodily functions or discomfort, but lactating women were not permitted to do so.

The employer countered those arguments and claimed that the employee was terminated because she unilaterally added a paid work break to her schedule. According to the employer, the parties had agreed to a break schedule that took into account the employee's desire to pump milk from her breasts so that she could continue breastfeeding her infant at home. The employer argued that if the break schedule did not suit her body's lactation schedule, she could have requested a change to her break schedule. The employer also argued that lactation is not an aspect of pregnancy that is protected by the Ohio or Federal Pregnancy Discrimination Act.

The Supreme Court is expected to address whether breast-pumping in the workplace is protected under the Ohio Pregnancy Discrimination Act, and if so, what kind of accommodations must an employer make to lactating women.