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Ellen Belcher is the Dayton Daily News opinion pages editor. She writes about state government, education, the environment, higher education and all things Dayton.
Martin Gottlieb is an editorial writer and columnist for the Dayton Daily News opinion pages. He focuses on the political process itself and does such national issues as war, the economy, taxes and Social Security, as well as a hodge-podge of local and state issues.Home > Blogs > A Matter of Opinion > Archives > 2010 > June > 25
Friday, June 25, 2010
What did dissenter in pregnancy case say?
Excerpts from Justice Paul Pfeifer’s decision disagreeing with the majority’s decision that a pregnant employee can be fired if she becomes ill and hasn’t worked long enough to qualify for an unpaid leave of absence:
“The facts of this case are such that an ordinary citizen would think, ‘There ought to be a law against that.’ Until today there was. …
“Pataskala Oaks (the employer) says that it did not fire (Tiffany) McFee because she was ill, but because she missed work because she was ill. What did the General Assembly mean when it protected women from discharge based upon pregnancy-related illness? Did it intend women not to treat their illness, but instead to go to work ill? … Does not the word ‘illness’ connote missed work time?
“Now as McFee’s child likely is graduating from kindergarten, Pataskala Oaks is finally emerging from litigation. It fought the statutorily mandated decency contained … (in the law) and won. Who is better for it?”
Permalink | Comments (0) | Post your comment | Categories: Civil Rights, Health Care, Ohio government
Editorial: Pregnancy leave not entitlement
Based on a decision about a pregnant woman who was fired, critics might assume that men must be calling all the shots at the Ohio Supreme Court.
In fact, there are three women on the court. All three recently said it was perfectly legal for an employer to fire a pregnant woman who developed medical complications and wasn’t eligible for unpaid sick leave.
The women justices represented a majority within the majority in a 5-1 decision. The case has plenty of people — men and women — on both sides.
First, an administrative law judge said this wasn’t a case of sex discrimination. The Ohio Civil Rights Commission said, oh yes, it was. A trial judge overturned that ruling, only to have the court of appeals say the firing was wrong.
In the end, the high court got it right. Ohio law says pregnant employees must be treated the same way employees who aren’t pregnant are. Tiffany McFee, who took a job at a nursing home in Pataskala outside of Columbus, found herself in the same spot as any newly hired sick worker would be.
Her company had a policy that no one received leave in her or his first year of employment. When she was about eight months pregnant, Ms. McFee’s doctor said she couldn’t work any longer. She stopped reporting for her shifts and, in no time, she gave birth. She was fired three days after her child was born.
Was she entitled to leave even if the rules were followed and she wasn’t treated unusually? Or, because pregnancy is something that only happens to a woman, was it sex discrimination to let her go?
The majority of justices, all of whom are Republicans (as is the one dissenting justice), said the company’s policy was “pregnancy blind.” That is, the company wasn’t singling out the worker — for good or for bad for being pregnant. She was fired not because she was pregnant, but because she took leave she hadn’t earned.
In defense of Ms. McFee, there is ambiguity in the law. Ohio law does say that pregnant women can’t be discriminated against and that they have to be allowed to take reasonable maternity leave. But at the same time, there’s no requirement that employers must offer maternity leave. (The legislature, not a court, should settle that fight.)
Most likely, the explanation for this tension in the law is that, once upon a time, some people argued that women often willingly become pregnant, so pregnancy falls into a different category than an illness. That thinking resulted in protections for women being adopted, laws that explicitly say that pregnancy is a legitimate medical condition that must be covered under sick-leave policies.
But putting that policy in law is not the same as saying that employers have to give pregnant women time off even if no one else is entitled to the benefit.
Keep in mind also that Ms. McFee never complained that the nursing home was using her pregnancy as an excuse to fire her; she just claimed that because she was pregnant, she was entitled to unpaid leave.
There’s a real question whether the nursing home’s policy was too strict for the company’s own good. That, however, is a way different issue than whether the nursing home was doing something illegal.
(Click here for excerpts from the decision by Justice Paul Pfeifer, who dissented in the case.)
Permalink | Comments (3) | Post your comment | Categories: Civil Rights, Editorials, Ellen Belcher, Health Care, Ohio government
