That Danielle

I am outraged by Totes/Isotoner’s employment termination of lactating mom LaNisa Allen for “insubordination” because she failed to request her supervisor’s permission to pump her breastmilk but also by something radically stupid that the Ohio Supreme Court affirmed in their decision that this termination was not related to gender discrimination. Beyond the fact that it’s extremely discriminatory not to allow a woman to take breaks to pump her milk for her child (when all employees are allowed to take breaks to use the bathroom and smoke), the Ohio Trial, Appellate and Supreme Courts need to be schooled in biology because they seem to think that breastfeeding is not related to pregnancy. (For the full text of the decision, click here to download the twenty page PDF.)

Here’s what happened prior to LaNisa being terminated, as taken from the opening argument previews published on the Ohio Supreme Court website.

In this case, LaNisa Allen was hired by a contract employment agency to work as a general laborer at a Totes/Isotoner Corporation warehouse  in West Chester. The position was advertised as temporary, with the possibility of becoming permanent after 90 days. At the end of a new employee orientation session, Allen told the agency supervisor that she was still breastfeeding her five month old child, and would need to pump her breasts to empty them of milk during the work day. Allen asked that the company identify a private area at the warehouse with an electrical outlet where she could perform this activity. The supervisor contacted Allen at home later that day and told her that she had been assigned a 6 a.m. to 2:30 p.m. shift and could pump her breasts in the women’s restroom during her lunch break, which was scheduled for 11 a.m.

After starting work at the plant, Allen, whose practice was to breastfeed her baby just before leaving for work at 5:30 a.m. and whose breasts subsequently re-filled with milk in 3-4 hours, found that her 10-minute break at 8 a.m. was too short to allow her to use the pump, but that waiting until her 11 a.m. lunch period caused her to become engorged with milk to the point of physical pain and leakage.  After several days of this experience, Allen began taking an unscheduled restroom break at approximately 10 a.m. each day to use the breast pump.

Approximately two weeks after she began taking these breaks, the agency supervisor she had spoken to at orientation came into the restroom and told Allen she was violating work rules by not waiting until her 11 a.m. lunch break to use the breast pump. Later that day Allen met with the Totes/Isotoner supervisor for her work area and asked if her 8 a.m. break could be extended from 10 to 15 minutes to allow her to use the breast pump at that time.  After checking with higher management that afternoon, the Totes supervisor called Allen into her office at the end of her shift and told her that the company no longer needed her services.  Allen asked if her firing was based on her use of the breast pump, but received no reply.

She then filed suit alleging that she was discriminated on the basis of lactation and that action constituted illegal discrimination under provisions of Ohio’s civil rights laws that bar discrimination based on gender and discrimination based on any medical condition arising from pregnancy or childbirth.

Totes/Isotoner’s response to LaNisa’s claims are as follows, denying that lactation is related to pregnancy and childbirth.

Attorneys for Totes/Isotoner cite multiple court decisions that they say have held that an employer’s failure to extend additional leave or otherwise change workplace policies to accommodate women to facilitate the  breastfeeding of infants was not discriminatory because breastfeeding does not fall within the definitions of an “illness” or  “medical condition” arising from pregnancy or childbirth.

In their decision in the original case, the Trial Court wrote:

Allen gave birth over five months prior to her termination from [Isotoner]. Pregnant [women] who give birth and choose 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).

First of all, “lactating [is] … a condition of breastfeeding.” Really??? But mostly, ALL women lactate following pregnancy. It’s a natural part of the process. The fact that not all women CHOOSE to breastfeed in the United States is another issue but that does not remove the indisputable fact that breastfeeding is a natural and normal part of the pregnancy cycle. That not all women CHOOSE to breastfeed is directly connected to the anti-baby and breastfeeding policies and attitudes against breastfeeding women by companies such as Totes/Isotoners and branches of the US government, such as the Ohio Appellate and Supreme Courts. If laws and society were more respectful of the natural cycle of life, it would be a no-brainer that women like LaNisa should get the time and space she needs to express her milk for her child since it is the BEST and MOST NORMAL food for infants (formula is but an inferior approximation).

The trial court found for Totes/Isotoner in a summary judgment (which is a final decision made by a judge prior to trial), which LaNisa then appealed to the 12^th District Court of Appeals but they affirmed the trial court’s decision. LaNisa’s attorneys then obtained Supreme Court review of the previous rulings.

Unfortunately, the Supreme Court overlooked the main issues, affirming that breastfeeding is not related to pregnancy and instead focusing on the fact that LaNisa admitted she took an additional break and that “insubordination” was the sole cause for her dismissal and not discrimination.

The sole dissenting opinion from Justice Pfeifer, coincidentally the only one written by a male judge, calls out his fellow Justices for not seeing the forest for the trees.

This is the Supreme Court, and when the opportunity arises, we
should answer the questions that Ohioans need answered.  In this case, we are asked whether breastfeeding mothers can be fired from their jobs for pumping their breasts in the workplace.  That is, in its protection of pregnant workers in R.C. 4112.01(B), did the General Assembly include protection of women who are dealing with the aftereffects of their pregnancy?  The lead opinion dodges the opportunity to provide an answer.

He recognizes the reason why the Supreme Court accepted this case in the first place — because it affects other people in similar situations — and that LaNisa is entitled to the trial by jury that the summary judgment precluded.

Ohio’s working mothers who endure the uncomfortable sacrifice of privacy that almost necessarily accompanies their attempt to remain on the job and nourish their children deserve to know whether
Ohio’s pregnancy-discrimination laws protect them.

I would hold in this case that employment discrimination due to lactation is unlawful pursuant to R.C. 4112.01(B), that clear public policy justifies an exception to the employment-at-will doctrine for women fired for reasons relating to lactation, and that LaNisa Allen deserves the opportunity—due to the state of the record—to prove her claim before a jury.

Bravo to Justice Pfeiffer but shame on the Ohio Trial, Appellate and Supreme Court for not recognizing that breastfeeding is indeed related to pregnancy and that by not allowing LaNisa Allen to take the proper time to express her breastmilk that Totes/Isotoner is guilty of discrimination.

For more information about this case, read:

• Official written opinion on the LaNisa Allen vs Isotoner/Totes #firedforpumping case
• Writes Like She Talks
• The Buckeye State Blog
• Salon.com
• Columbus Dispatch
• Video of Supreme Court statements

Let Isotoner/Totes know you’re mad. Send a letter of complaint and feel free to use my letter as a template.