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Originally Posted by kiara7
 Khaoskat quoted federal labor laws that every employer must follow. No state can overrule federal laws for less protection, so Ohio employers must provide the federal minimum in breaks to their employees.
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Originally Posted by carriebft
KimberlyDO- are you, in any way, upset that a precedent setting case now has the language "breastfeeding discrimination is not gender discrimination" in it? does that not bother you at all? do you see the effect this can have on future cases, even if the mom does try to make arrangements beforehand.
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Originally Posted by carriebft
So, the first judgment against her said it was not discrimination and breastfeeding was not gender discrimination and this court upheld that judgment. right?
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Originally Posted by mamajake
No. The trial court did hold that breastfeeding discrimination is not gender discrimination. However, the Ohio Supreme Court decided that the Motion for Summary Judgment could be granted on the basis of her taking unauthorized breaks as an at-will employee and therefore the Court did not have to decide the question of whether lactation is covered by the state's Pregnancy Discrimination Act. So the Ohio Supreme Court made no decision concerning whether lactation discrimination is gender discrimination.
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Originally Posted by khaoskat
Hopefully this wont get me in trouble....
First off, the "Official opinion of the Court" is what is in Paragraph's #1-7 in this link...no way to shorten it to fit the MDC quote requirements. http://www.sconet.state.oh.us/rod/do...-ohio-4231.pdf (This is directly from the Ohio Supreme Court's webpage) Anything after those first seven paragraphs are not officially the opinion of the Court, but rather the opinion of the individual Judge who wrote them, and in some cases another Judge has said that they agree with what that Judge wrote (As with Chief Judge - C.J. - Moyer concurs with Judge O'Conner). The official opinion of the Court is that based upon the information before it, which are basically the depositions filed in the case and the legal briefs on the Motion for Summary Judgement, that Allen could not put forth evidence that would show she was treated differently than any other employee would be if they were caught taking breaks from work without permission. Further, she could not put forth evidence to show that their terminating her for taking breaks without permission was a pre-text (as in a false reason) for discriminating against her because she was lactating. The Court refused to decide the issue of Under 'Ohio law is an employer prohibited from discriminating against an employee because they are lactating'. The refusal was based upon the fact that the Court decided that Allen had not met the burden placed upon her to show that her termination was a pre-text for discrimination against her because she was lactating. As a matter of fact, if you read through several of the concurring opinions, even though they agree that she did not meet the burden required by law, many of the concurring Judges felt that to discriminate against a lactating mother violated Ohio Law. (Judge O'Donnell's opinion was basically because the issue Lactation being covered was not before the Court, because Allen could not prove discrimination, that he could not give an opinion because that would be an advisory opinion which violates presidence. There were 4 Judges who joined O'Donnell in that opinion, so we do not know how they fall with regards to it being covered. Judge O'Connor with him the Chief Justice concurred felt that it was not an "advisory opinion" and put forth that in O'Connors opinion that Lactation was covered. O'Connor's stance is clearly set forth in the above link in Paragraph #14, line #5 - specifically states... I write separately to set forth why I would hold that lactation falls within the scope of R.C. 4112.01(B) and that the statute prohibits employment discrimination against lactating women. R.C. 4112.02. As for links with regards to the gender discrimination quote... Here is the full quote of the text with that quote in it... (I am coloring it and hopefully making it less than 100 words)...this is taken from the above link, full text of Paragraph #22 {¶ 22} In entering summary judgment against Allen, the trial court found that Allen had not been discriminated against on the basis of pregnancy. According to the trial court, “Allen gave birth over five months prior to her termination from [Isotoner]. Pregnant [women] who give birth and chose not to breastfeed or pump their breasts do not continue to lactate for five months. Thus, Allen’s condition of lactating was not a condition relating to pregnancy but rather a condition related to breastfeeding. Breastfeeding discrimination does not constitute gender discrimination. See Derungs v. Wal-Mart Stores Inc., 374 F.3d 428, 439 (6th Cir. 2004).” Upon that finding, the court found that postpartum lactation and the discomfort associated with it are not disabilities. The blue highlight is telling you where the quote is from, the Trial Court. Summary Judgment is entered in the lower/Trial Court and is a Motion with which each party files legal briefs with law and evidence presented to support their position. You cannot just make statements and not have anything to back them up. Basically a statement may look something like this..(going by the Civil Rules relating to Summary Judgment.) Jane Doe stated she took, for almost two weeks, unauthorized breaks in which to pump. Deposition Jane Doe, pg 12. You cannot just state... Jane Doe told us she took breaks for almost two weeks, and these breaks were not authorized. When reading a Court opinion, whenever you see a sentence that is followed by a reference (as in this Derungs v. Wal-Mart Stores Inc., 374 F.3d 428, 439 (6th Cir. 2004)) that previous sentence is either a direct quote, a partial quote or a restatement of what was said in that case or statute or whatever is being quoted. You would pull up the Deruns case, go to page 439 and on that page you will find that the Court has said that breast feeding does not equate to gender discrimination. Here is a link to the case opinion http://openjurist.org/374/f3d/428/de...art-stores-inc Unfortunately, the link does not give pages, so I cannot tell you where to look. But if you go to your local Library and to the reference section, you can ask the Librian for the Federal Report, 3rd edition. You want Volume 374 F3d. and then turn to page 439 and read through it. When you are taking an idea from another case to support your position, distinguish your position from the other case's decision and facts, support the Court's decision, etc, you must reference it. It goes for more than just case, you must do the same thing for Statues, constitutions and a whole raft of other sources. Ok, if you have any other questions feel free to ask, unfortunately i wont be on for a while as I am off to a volunteer thing and wont be back till after 11 tonight EST. |
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Originally Posted by khaoskat
Technically the Trial Court was follow Star Decises from the Federal Court for Ohio's Southern District, where the Trial Court sits. The Federal Court, after reviewing Ohio Laws found that it was not gender discrimination. But that case is totally different. We are not talking employment situation in the Federal Court. The Federal Court was talking about a nursing mother who was asked to leave Walmart or go to the bathroom to nurse.
Furthermore, at the time of the Federal Court's ruling, Ohio had not enacted its Breastfeeding law making it within the confines of the Discrimination when done in a place of public accomodation. That case was the reason the law went into effect. I can almost say that if the current BF'ing law was in effect at the time the Mothers were asked to leave or use the bathroom, the decision of the Federal Court would have been different and ruled that it was discrimination. |
I know some of the people I work with (mostly women) thought me pumping and breast-feeding was too much work, I was supported to do it, no matter if they agreed with it, and given the space and time. I am thankful for my job and my co-workers
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Originally Posted by mamajake
I am a bit confused by what you are saying. Derungs is inapplicable since it was not interpreting either the state or federal Pregnancy Discrimination Act - both of which apply to the employment context and not to public accommodations. The Ohio public breastfeeding legislation overruled Derungs as to the right to breastfeed in public accommodations in Ohio but did not create an action for gender discrimination in either employment or public accommodations.
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Originally Posted by mamajake
The grant of summary judgment on count 1 makes no mention of her at-will employment status or her taking unauthorized breaks being relevant to the finding.
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Originally Posted by krystyn33
Curious--I may have missed something "upthread" but do any of you here speaking so strongly in favor of this woman being fired for unauthorized pumping breaks have a reference that clearly shows she made no attempt whatsoever to get authorization/approval to pump when she needed? I only read the article that was linked in the OP.
Hashing over the particulars of this situation (was she just a slacker or willfully disobedient or was she really treated unjustly) strikes me as analogous to questioning whether or not a mama harassed for NIP attempted to be discrete. I can't help but give this nursing mama the benefit of the doubt. |
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Originally Posted by 2xy
I'm currently waitressing. I've worked 12 hour double-shifts with no break. There are many days that I work 7 or 8 hours and don't even pee once while I'm there....but I perspire so much that there's nothing really left to pee out, anyway.
That's the nature of the job. I work with a girl who has an almost-2yo, and she nursed the kid for 13 months. Unfortunately, she did have mastitis twice. If she had asked for a break to pump milk, I'm sure she would have been told that she'd have to find time on her own to do it....and in a high-volume restaurant, that's just not going to happen. |
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Originally Posted by indie
If I found out a business was treating its employees this way I would no longer be a customer. Its not acceptable.
If a restaurant doesn't have enough waitresses to allow a break then they need to hire more. I've visited restaurants before where our waitress took a break after informing us that another waitress would be covering for her so we would know who to ask for help. That's the way it should be. I don't want to give my money to businesses that mistreat their employees whether it be a restaurant in the U.S. or some sweatshop in China. |
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Originally Posted by Magali
99% of the restaurants I've worked at do not allow real breaks. If all your tables are happy then maybe u can sneak away and pee, or if u are real lucky you can eat...and most of the time if u have ordered something hot you will be eating it cold. I can only imagine the stir it would have caused had I needed to pump at any of my serving jobs.
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Originally Posted by khaoskat
Derungs was not an employment situation. Derungs was completely based upon a (or multiple) nursing mothers being asked to go to the restroom or leave the store.
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Originally Posted by khaoskat
Why should I have to prove a gender discrimination against a company on an issue of public accommodations. Under the new breastfeeding law, all I would have to do is show that I was asked to use the restroom or leave because I was nursing my child or I was told to cover up or leave. The new law, in and of itself creates a protected class of persons - breastfeeding mothers and babies. That in and of itself gives right for the claim of action, there is no need to prove that the store discriminated against you because you were female...now all you have to show is that you were discriminated against because you were a nursing mother/baby.
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Originally Posted by khaoskat
In the end, when it comes to discrimination cases the burden is first on the individual seeking relief to put forth enough evidence to show that s/he has been discriminated against. Once that burden has been met, it is then placed upon the person whom relief is being sought against (in this case the employer) to put forth enough credible evidence to show that there was a compelling reason for the action that was alleged to be discriminatory, and that the result that happened would have happened regardless who the individual was (ie in this case male or female; lactating or not lactating - whomever took unauthorized breaks would be terminated). Once that burden has been met, the burden then shifts back to the individual seeking relief. They have to then prove that the other side is using this "reason" (in this case unauthorized breaks) as a shame to cover the real reason - the fact that she was lactating.
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Originally Posted by khaoskat
A few key pointers when it comes to moving through the legal system.
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Originally Posted by khaoskat
Trial Court - makes their determination based upon what is before them. If a party wishes to appeal, they assign on appeal the errors to the Court of Appeals. The Court can only rule on what errors were assigned in the appellate briefs. So, if an issue was not addressed as an error on Appeal, then the Court cannot rule on it. If a party does not like the outcome from the Court of Appeals, they appeal to the Supreme Court, which may or may not accept jurisdiction to hear the case. Then you have even narrower errors on appeal. You can only assign as an error what was addressed in the original appeal. If you don't address an issue, then it is not up for discussion/decision by the Court.
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Originally Posted by khaoskat
Basically the Supreme Court had two issues before
1) If Ms. Allen met her burden of proof for discrimination. If she did, then did her employer meet their burden of proof to show a compelling reason. If they did, can Ms. Allen put forth evidence to show that the compelling reason was a pre-text to discrimination. - The court ruled she met her initial burden. |
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Originally Posted by khaoskat
They also ruled that the employer put forth evidence to show it had a compelling reason (the court did not address each individual claim as to pregnancy, state interest, etc). They then ruled Ms. Allen could not put forth evidence, because of her actions in not seeking permission, to show it was a pre-text for discrimination.
2) If Ms. Allen met the pre-text burden, is Lactation covered under Ohio's Discrimination Laws. - Here the Court refused to rule, because it had ruled Ms. Allen did not and could not meet the pre-text burden. As such, the second question before the Supreme Court was moot and not ripe for decision. |
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Originally Posted by khaoskat
What everyone is getting confused on, is the fact that they are reading the "concurring" and "dissenting"' opinions and putting those forth as the opinion of the Court, and they simply are not, nor are they binding or even a primary legal source when referencing the case in another case.
AGAIN - the Decision of the Court is only Paragraph's #1-#7. Everything else is either an opinion concurring that she could not prove the pre-text and then stating what they feel with regards to the second issue (4 of which state that they are not able to give an advisory opinion and 2 or 3 of which state that they believe that Lactation is covered under Ohio Discrimination laws for employment purposes.) |
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Originally Posted by khaoskat
If you read through some of the concurring opinions or dissenting opinions attached to the Supreme Court's Decision, you will see at least one quote from a Deposition of her, where she states that she took unauthorized breaks without asking permission or letting anyone know where she was.
From reading the concurring opinions of a few of the Justices, had she put forth evidence to show that she had made an attempt to seek permission and that permission was unreasonably denied (since they had already made accomodations when she returned to work to give her a 10 min break around 8 am - several hours after she got to work) I believe we would have had a different outcome. My reason for this belief is as follows: 1) If she had sought permission and it was denied, then went on to take the breaks, she could show that the denial was potentially because she was nursing and as such, that her termination was because she was lactating (her pre-text/shame requirement for their compelling reason). 2) Many of the Justices, in either their concurring or dissenting opinions stated that their decision would have been different if she had put forth enough evidence to show the pre-text factor. As for the reference to Derung, Justice O'Conner felt it was wrong applied to this case by the Trial Court and Court of Appeals. As for your anology about being discrete, I totally disagree. I think in this case, common sense should have prevailed. Instead of just walking away from her post without asking to do so or without notifying anyone, she is creating a hazard. I think someone previously mentioned it was in the warehouse for Totes. What if her walking away from her job, caused another individual to get hurt or violation of OSHA or Safety protocols. The employer has a right to expect that when they assign an employee to a particular spot that they will be there unless they are authorized to step away. |
