On June 22, 2010, in a 5-1 decision, the Ohio Supreme Court reversed the 5th District Court of Appeals and rejected the Ohio Civil Rights Commission’s (“OCRC”) position that a “reasonable” amount of maternity leave for pregnant employees regardless of an employee’s length of service with the employer was mandated by Ohio law. Justice Cupp, writing on behalf of the majority, held that minimum length of service requirements for leave eligibility may be applied uniformly to non-pregnant and pregnant employees alike.

In McFee v. Nursing Care Management of America, Inc. d/b/a Pataskala Oaks Care Center, Tiffany McFee was hired to work for Pataskala Oaks. Upon hire, she received an employee handbook that outlined Pataskala’s eligibility requirements for leave. Specifically, that policy required an employee to be employed for a period of one year before he or she would be eligible for leave for any purpose. After only working there for eight months, McFee applied for but was denied maternity leave. Because of her length of service, she was not eligible for leave under FMLA. After missing work due to pregnancy-related medical reasons and childbirth, she was fired for being absent without leave. She filed a claim with the OCRC alleging unlawful sex discrimination. OCRC found in McFee’s favor and the employer appealed. The trial court determined that the employer’s leave policy was not discriminatory. The appellate court disagreed, and ruled in McFee’s favor. On appeal, the Ohio Supreme Court upheld her termination, finding that Pataskala Oaks’ policy was on its face not discriminatory against pregnant employees.

In reviewing Ohio’s statutes prohibiting discrimination, the Court concluded that when “[r]ead together, those statutes provide that it is an unlawful discriminatory practice for an employer to terminate an employee because of pregnancy or a related condition without cause. Because R.C. 4112.02(A) allows an employer to terminate an employee for any non-discriminatory reason and R.C. 4112.01(B) directs that pregnant employees be treated ‘the same for all employment related purposes * * * as other persons not so affected but similar in their ability to work,’ the statutes do not impose a per se ban on the termination of every employee affected by pregnancy.”

Here, the Court determined that the employer’s leave policy was pregnancy-blind and treated all employees the same with minimum length of service requirements, and that McFee was not terminated on the basis of pregnancy, but because she took unauthorized leave from her employment.

In construing the application of OAC 4112-5-05(G)(2), which prohibits termination of an employee under a policy that provides insufficient leave for pregnancy or a related condition, the Court determined that this OAC Section “instructs 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.”

This ruling brings some clarity for Ohio employers. However, employers who condition or intend to condition employee leave eligibility on a minimum length of service must still maintain policies that fall within the shield of this holding to avoid unnecessary litigation. For more information on the impact of this ruling on your company, please contact Jeffrey M. Embleton, John F. Burke, III, Amy L. Kullik or James A. Budzik in the Labor and Employment Group at Mansour, Gavin, Gerlack & Manos Co., L.P.A., at (216) 523-1500.