Discriminating Against Women With Breasts Doesn't Amount to Gender Discrimination

Last month, I roundly criticized a receptionist for peeing on herself. She claimed that her employer wouldn’t allow her to take bathroom breaks. I argued that personal hygiene and basic self respect demanded that she use the bathroom and worry about suing the firm if they actually fired her for it.
A woman in Ohio was in a somewhat analogous situation. She needed additional bathroom breaks so she could go pump breast milk. Evidently her employer objected, but instead of just — I don’t know — leaking in the middle of the office, she took the breaks anyway. She was fired, she sued her company, and an Ohio court held that firing a new mother for taking breaks to pump breast milk wasn’t gender discrimination.
???
True/Slant has the trial court’s decision:

In its verdict in favor of Totes/Isotoner, the trial court found that:
“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.”

On appeal, the trial court’s decision was upheld. And there were women on the appellate panel. Details after the jump.


On appeal, the court ruled held that the employee had to prove that she was being treated differently with respect to bathroom use relative to other (non-lactating) employees:

Justice Evelyn Lundberg Stratton (that’s right, a woman), with two concurring justices, wrote:
“This court does not reach the issue of whether alleged discrimination due to lactation is included within the scope of Ohio’s employment-discrimination statute.”

You’d think that Ohio’s employment-discrimination statutes would protect people from being discriminated against on the basis of being a mammal, but apparently that is not so.
The real shame is that there is an easy fix to this that other companies have already figured out. Lactation stalls! Back in 2007, we reported that Simpson Thacher had special lactation rooms in their offices.
In the meantime, can somebody explain what the woman was supposed to do while being prevented from going to the bathroom?
Ohio Supreme Court to Working Women: Lactate At Home Where You Belong [True/Slant]
Earlier: Biglaw Perk Watch: Lactation Rooms
Lawsuit of the Day: Bathroom Breaks Receptionist

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