Ohio Supreme Court decides on mandatory pregnancy/maternity leave
By Admin

June 23, 2010


By: Lois A. Gruhin*

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In a long-awaited decision, the Ohio Supreme Court rejected the Ohio Civil Rights Commission’s (“OCRC”) attempt to require all employers with four or more employees to provide reasonable pregnancy and/or maternity leave regardless of the employee’s length of service.  In McFee v. Nursing Care Management of America, Inc., 2010-Ohio-2744 (June 22, 2010), the Court held that, “[a]n employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112.”

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Eight months into her employment, the plaintiff presented a doctor’s statement, indicating that the plaintiff could not work due to a pregnancy-related condition.  The employer’s leave of absence policy contained a no-exception, minimum twelve-month employment eligibility requirement.  The plaintiff left work, and the employer terminated her employment for taking an unauthorized leave.  The plaintiff filed a discrimination charge with the OCRC, which ruled that the denial of pregnancy leave constituted gender discrimination.  The common pleas court reversed the OCRC, but the Fifth District Court of Appeals reversed the common pleas court.

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At issue were a statutory provision in R.C. Chapter 4112 and two provisions in an OCRC administrative regulation.  R.C. Section 4112.02(B) requires that employers treat pregnant employees the same for employment purposes as employees who are not pregnant, and therefore, prohibits an employee’s discharge because of pregnancy or related condition.  O.A.C. Rule 4112-5-05(G)(2) provides that, “[w]here termination of employment of an employee who is temporarily disabled due to pregnancy or related condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.”  O.A.C. Rule 4112-5-05(G)(5) provides that women shall not be penalized in the conditions of their employment when they take time off for childbearing, if they are eligible to do so.

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The Court first held that R.C. Chapter 4112 does not prohibit uniformly applied minimum-length-of-service requirements.  The statutory requirement that pregnant employees be “treated the same” as non-pregnant employees “does not provide greater protections for pregnant employees than non-pregnant employees.”  Since the employer’s length-of-service requirement treated all employees the same, the policy is “pregnancy blind.”

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The Court then rejected the OCRC’s interpretation of its own administrative regulation.  Harmonizing Rule 4112-5-05(G)(2) and (G)(5), the Court held that (G)(2) “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 due to temporary disability due to pregnancy or a related condition.”  (emphasis in original)

Finally, the Court held that the plaintiff could not prove gender discrimination in her termination.  The parties agreed that the employer terminated the plaintiff’s employment because she took leave from work even though she was not eligible for it, and not because she had become pregnant.

This decision provides two important directives to Ohio employers.  R.C. Chapter 4112 does not require employers to provide pregnancy/maternity leave when it provides no other leave or to waive or ignore minimum-length-of-service eligibility requirements for obtaining a leave of absence when an employee requests pregnancy/maternity leave.  However, if an employer provides leave benefits and an employee meets all eligibility requirements (including length-of-service requirements), the employer must extend the leave benefits to include pregnancy/ maternity leave and cannot terminate an employee for attempting to take pregnancy/maternity leave under that policy.

In light of this decision, an employer should consult with legal counsel and review its leave of absence policies to ensure that such policies comply with Ohio’s anti-discrimination laws.

*Lois Gruhin, a member of the firm’s Columbus office, is a former General Counsel for Schottenstein Stores Corporation and has extensive experience in leave law and all other aspects of employment law. For more information about leave law or any other employment matter, please contact Lois (lag@zrlaw.com) at 614.224.4411.

As taken from the newsletter of  Zashin & Rich Co., LPA Cleveland/Columbus



  1. [...] for employers’ ability to not support working women: R.C. Chapter 4112 does not require employers to provide pregnancy/maternity leave when it provides [...]

    • Actually as I understood the case the Supreme Court ruled that if an employer has a “term” policy in place – that means one must work there X amount of days before they are eligible for leave benefits then the policy holds. In this case, the company did in fact have a term policy in place and the employee had not worked there long enough to receive that benefit.
      The Court also ruled that if a policy was in place in absolutely needs to be granted to all no matter what the reason including pregnancy and maternity leave. Why do you think they didn’t use FMLA instead?

  2. Policies are great, but there are always exceptions! One, male or female, can’t control when or if they are going to have a health issue arise. If this was a valued employee, why not just get some interim help until she could return? That option would have been far less costly than all these legal fees! There are other options besides termination for issues such as a leave.

    • Less expensive to use interim help but more importantly more humane to allow the leave. The interim employee would know they are there short term. Plus you never know, if they were wonderful the employer would have found a wonderful candidate to move into their next opening. No time would be wasted on training as they know the ropes already.

  3. Hmmmm…also sounds like the “…Plaintiff left work” meant she walked out, probably after having some sort of non-pleasant discussion, without any understanding or negotiation. Sounds like both sides really didn’t “talk”. Another Human Resources VICTORY!!! Guard that policy! Say NO, then ask questions. That is why HR calls what they do “Practitioner”: Work In Progress?

    • What I don’t understand Robert is why they didn’t use their FMLA option as it is a federal mandate and must be applied across the board to all. The employer would have had to grant it regardless of “term”.

      • Trisha

        Not everyone can Be eligable for FMLA- Ive worked at my job in a Hospital for 9 months and still do NOT qualify for FMLA- I have been half time employee with benefits since hire

  4. Barbara — the FMLA requires that an employee have worked for the employer for at least 12 months and for at least 1,250 hours during the period immediately preceding the commencement of the leave. So it also imposes a minimum term requirement.

    • Thank you Paula for your clarification, this is not my expertise. I just wish there were another way to force the hand of employers to be more respectful of their employees without the heavy hand of the law. Have we stepped so far beyond our own humanness that we aren’t even capable of recognizing anothers worth unless we’re forced to by the courts? I dare say that we’ve forgotten our past in particular the suffrage movement. Women came together and made it happen and then the law became law. Have we forgotten our voice? Have we forgotten to stand by each other in our own workplaces? I haven’t an answer.

  5. vel

    Whether or not there is a term policy in place, you can’t plan for the future. A woman might gain employment, not know she’s pregnant, find out a month later and bam! what does she do then? These term policies don’t trump discrimination laws, so if the employer wants to try and be an a$$ then let them go right ahead. They will end up losing more money then if they had just let the woman go on maternity leave.

    On a side note, why is maternity leave so short throughout the USA? Most places offer 6-8 weeks, whereas other western industrialized countries give a woman up to a year of maternity leave, with most benefits and income taken care of. (In Canada for instance I believe it’s 10-12 months of leave, with 60% of your pay).

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