[Cite as Allen v. totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231.] 

ALLEN, APPELLANT, v. TOTES/ISOTONER CORPORATION, APPELLEE. 

[Cite as Allen v. totes/Isotoner Corp.,123 Ohio St.3d 216, 2009-Ohio-4231.] 

Employment discrimination — Burden of proof — Summary judgment — Failure 

to follow directions is a legitimate reason for discharge — Judgment 

affirmed. 

(No. 2008-0845 — Submitted March 11, 2009 — Decided August 27, 2009.) 

APPEAL from the Court of Appeals for Butler County, No. CA2007-08-196. 

__________________ 

 Per Curiam. 

{¶ 1} This case arises from a grant of summary judgment in favor of 

totes/Isotoner Corporation, LaNisa Allen’s employer, on a discrimination 

complaint arising out of the Ohio Fair Employment Practices Act, R.C. Chapter 

4112, as amended by the Pregnancy Discrimination Act, 138 Ohio Laws, Part I, 

1430, 1431-1432. We originally accepted Allen’s discretionary appeal, which 

sought review of the issue whether Ohio law prohibits an employer from 

discriminating against a female employee because of or on the basis of lactation. 

For the reasons stated below, we find that summary judgment was properly 

granted for appellee, totes/Isotoner Corporation (“Isotoner”), against appellant, 

LaNisa Allen, on her claims for wrongful termination. Accordingly, we affirm the 

judgment of the court of appeals. 

{¶ 2} In its opinion affirming the grant of summary judgment to the 

employer, the Twelfth District Court of Appeals ruled that Allen had failed to 

establish a prima facie case of sex discrimination on the basis of pregnancy, and it 

concluded that Allen’s termination does not violate Ohio public policy against 

discrimination on the basis of pregnancy. The appellate court ruled that Allen 

“was simply and plainly terminated as an employee at will for taking an 
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2 

unauthorized, extra break.” Allen v. totes/Isotoner (Apr. 7, 2008), Butler App. 

No. CA2007-08-196, ¶ 3. 

{¶ 3} Allen admitted in her deposition that for approximately two weeks, 

she had taken breaks without her employer’s knowledge or authorization to do so 

and that her supervisor had told her that she was being terminated for her failure 

to “follow directions.” 

{¶ 4} As a general matter, if a plaintiff establishes a prima facie case of 

disparate-treatment employment discrimination under R.C. Chapter 4112, the 

burden of production shifts to the employer to articulate a legitimate, 

nondiscriminatory reason for its treatment of the plaintiff. See, e.g., Plumbers & 

Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 

Ohio St.2d 192, 197-198, 20 O.O.3d 200, 421 N.E.2d 128; St. Mary’s Honor Ctr. 

v. Hicks (1993), 509 U.S. 502, 506-507, 113 S.Ct. 2742, 125 L.Ed.2d 407 

(analyzing the federal employment-discrimination statute). The ultimate burden of 

persuading the trier of fact that the employer intentionally discriminated against 

the plaintiff based upon an impermissible category remains on the plaintiff. Id. at 

507. 

{¶ 5} Legitimate, nondiscriminatory reasons in Ohio law include 

insubordination. Hood v. Diamond Prods., Inc. (1996), 74 Ohio St.3d 298, 302, 

658 N.E.2d 738. If the employer carries its burden of articulating a legitimate, 

nondiscriminatory reason for its employment decision, the plaintiff must prove 

that the employer’s stated nondiscriminatory reasons were a pretext for 

impermissible discrimination. Id.; see also St. Mary’s Honor Ctr., 509 U.S. at 

519, 113 S.Ct. 2742, 125 L.Ed.2d 407. If an employment-discrimination plaintiff 

fails to establish a triable factual issue on an essential element of her case, 

summary judgment for the employer is appropriate. See, e.g., Simpson v. Des 

Moines Water Works (C.A.8, 2005), 425 F.3d 538, 542. 
January Term, 2009 

3 

{¶ 6} In this case, the evidence in the record demonstrates that Allen 

took unauthorized breaks from her workstation, and Isotoner discharged her for 

doing so. Thus, the record as it was developed in the trial court fails to provide a 

basis from which a jury could conclude that Isotoner’s articulated legitimate, 

nondiscriminatory reason for Allen’s termination—failure to follow directions—

was a pretext for discrimination based on Allen’s pregnancy or a condition related 

to her pregnancy. This determination defeats Allen’s sex-discrimination claim 

under R.C. 4112.02 as a matter of law, and, accordingly, the trial court properly 

granted summary judgment to Isotoner. Consequently, this court does not reach 

the issue whether alleged discrimination due to lactation is included within the 

scope of Ohio’s employment-discrimination statute, R.C. 4112.02, as sex 

discrimination under R.C. 4112.01(B). 

{¶ 7} Because summary judgment was properly entered against Allen, 

we affirm the judgment of the court of appeals. 

Judgment affirmed. 

 LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur. 

 MOYER, C.J., and O’CONNOR, J., concur in judgment only. 

 PFEIFER, J., dissents. 

 LANZINGER, J., would dismiss the appeal as having been improvidently 

accepted. 

__________________ 

O’DONNELL, J., concurring.

{¶ 8} I concur in the judgment affirming the summary judgment in 

totes/Isotoner’s favor, because totes/Isotoner discharged LaNisa Allen for taking 

an unauthorized break from her scheduled employment. That fact is undisputed in 

the record before us, and Allen failed to carry her burden of proving either that 

totes/Isotoner had a discriminatory motive or that its reason for discharging her 

was a pretext for discrimination. Consequently – and necessarily, in accordance 
SUPREME COURT OF OHIO

4 

with long-standing prudential considerations widely utilized by the courts – I 

would not reach the issue whether adverse differential treatment because of 

postpregnancy lactation falls within actionable discrimination as defined by the 

General Assembly in R.C. Chapter 4112. 

{¶ 9} It is the long-standing practice of courts to decide only issues 

presented by the facts and to refrain from deciding issues that the facts do not 

place directly in issue. Because of the relevant and determinative facts of this 

case, the resolution of the dispute of the parties before us does not turn on whether 

R.C. 4112.02 encompasses alleged discrimination due to lactation. Because the 

court need not reach this issue, any opinion expressed on the issue would be 

merely advisory and not in accordance with the long-standing practice of courts to 

decline to render advisory opinions. 

{¶ 10} It is well-settled law that this court will not issue advisory 

opinions. State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio4848, 775 N.E.2d 508, ¶ 18, citing State ex rel Baldzicki v. Cuyahoga Cty. Bd. of 

Elections (2000), 90 Ohio St.3d 238, 242, 736 N.E.2d 893; Egan v. Natl. 

Distillers & Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 

904, syllabus. “It has been long and well established that it is the duty of every 

judicial tribunal to decide actual controversies between parties legitimately 

affected by specific facts and to render judgments which can be carried into 

effect.” Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 

N.E.2d 371. Because the court need not reach the issue of whether discrimination 

on the basis of lactation is prohibited by R.C. 4112.02, it should not do so. See 

PDK Laboratories, Inc. v. United States Drug Enforcement Admin.

(C.A.D.C.2004), 362 F.3d 786, 799 (Roberts, J., concurring in part and 

concurring in the judgment, “if it is not necessary to decide more, it is necessary 

not to decide more”). 

LUNDBERG STRATTON and CUPP, JJ., concur in the foregoing opinion. 
January Term, 2009 

5 

__________________ 

 MOYER, C.J., concurring in judgment only. 

{¶ 11} I agree that summary judgment was properly entered against the 

appellant, LaNisa Allen, and thus I concur in the judgment. Because I also concur 

in Justice O’Connor’s separate discussion of the merits, I join her opinion, not the 

per curiam opinion. 

__________________ 

O’CONNOR, J., concurring in judgment only. 

{¶ 12} LaNisa Allen’s complaint alleged that Isotoner discriminated 

against her on the basis of pregnancy, “a condition of gender,” in violation of 

Ohio’s Fair Employment Practices Act, R.C. Chapter 4112 (“FEPA”), as amended 

by Ohio’s Pregnancy Discrimination Act (“PDA”), 138 Ohio Laws, Part I, 1430, 

1431-1432; that her termination was against public policy; that her “medical 

condition, the act of lactating, constitutes a ‘handicap’ ” for purposes of the 

FEPA; and that she had been discriminated against on the basis of her handicap 

under the Americans with Disabilities Act (“ADA”). 

{¶ 13} We asserted discretionary jurisdiction to review three propositions 

of law that arise from the claims in this case, Allen v. totes/Isotoner Corp., 119 

Ohio St.3d 1443, 2008-Ohio-4487, 893 N.E.2d 515, including the assertion that 

“lactation is a physical condition associated with pregnancy and childbirth, hence 

the FEPA, as amended by the Ohio PDA, prohibits discrimination against females 

because they are lactating.” 

{¶ 14} I agree that appellee Allen failed to develop a record from which a 

jury could find in her favor. But because the trial and appellate courts 

erroneously applied inapposite federal precedent in their analysis of Allen’s 

claims, I believe that this court should reach the merits to clarify the law. I 

therefore concur in judgment only. 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 
SUPREME COURT OF OHIO

6 

prohibits employment discrimination against lactating women. R.C. 4112.02. In 

doing so, I am fully aware of the assertion that my opinion is advisory. I disagree. 

The lead opinion’s failure to address the legal framework in which this case arises 

is disappointing, and it is even more troubling that we fail to address the scope of 

Ohio law under the guise that reaching the merits would result in an advisory 

opinion. 

{¶ 15} The bald assertion that any opinion analyzing Allen’s claim would 

be advisory is patently unpersuasive. Indeed, the cases cited by the concurring 

opinion, essentially, are ones in which we found an issue to be moot on appeal 

and therefore refused to provide advisory opinions. The cases cited are wholly 

distinguishable from this appeal, however. See State ex rel. White v. Kilbane 

Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18 (holding that 

relators’ appeal, which arose from the denial of extraordinary writs to prevent a 

trial judge from proceeding with a temporary restraining order that enjoined 

relators from using taxpayer funds to communicate with the public about an 

election issue, was moot because the election had passed); State ex rel. Baldzicki 

v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 242, 736 N.E.2d 

893 (declining to reach the merits of the relators’ claim for a writ of prohibition in 

an election protest after concluding that the writ would not lie because the 

respondents had not engaged in quasi-judicial acts); Egan v. Natl. Distillers & 

Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 904, syllabus 

(in an employer-intentional-tort claim, holding, “Where the grant of summary 

judgment favorable to a defendant neither considers nor awards damages, an issue 

pertaining to damage setoffs raised by the defendant-appellant for the first time on 

appeal to the Supreme Court will not be entertained because it is not a justiciable 

issue”). 
January Term, 2009 

7 

{¶ 16} In the cases cited, we properly refused to entertain the question 

presented because the question need not be answered to give proper resolution to 

the case. But that is not the dynamic in this case. 

{¶ 17} A case or controversy is lacking and the “ ‘case is moot when the 

issues presented are no longer “live” or the parties lack a legally cognizable 

interest in the outcome.’ ” Los Angeles Cty. v. Davis (1979), 440 U.S. 625, 631, 

99 S.Ct. 1379, 59 L.Ed.2d 642, quoting Powell v. McCormack (1969), 395 U.S. 

486, 489, 89 S.Ct. 1944, 23 L.Ed.2d 491. “Not every conceivable controversy is 

an actual one. * * * [I]n order for a justiciable question to exist, ‘[t]he danger or 

dilemma of the plaintiff must be present, not contingent on the happening of 

hypothetical future events * * * and the threat to [her] position must be actual and 

genuine and not merely possible or remote.’ ” Mid-American Fire & Cas. Co. v. 

Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9, citing 

League for Preservation of Civ. Rights & Internal Tranquility, Inc. v. Cincinnati 

(1940), 64 Ohio App. 195, 197, 17 O.O. 424, 28 N.E.2d 660, quoting Borchard, 

Declaratory Judgments (1934) 40. 

{¶ 18} “ ‘No actual controversy exists where a case has been rendered 

moot by an outside event. “It is not the duty of the court to answer moot 

questions, and when, pending proceedings in error in this court, an event occurs, 

without the fault of either party, which renders it impossible for the court to grant 

any relief, it will dismiss the petition in error.” Miner v. Witt (1910), 82 Ohio St. 

237, 92 N.E. 21, syllabus.’ ” McClead v. McClead, Washington App. No. 

06CA67, 2007-Ohio-4624, ¶ 13, quoting Tschantz v. Ferguson (1991), 57 Ohio 

St.3d 131, 133, 566 N.E.2d 655. “ ‘A cause will become moot only when it 

becomes impossible for a tribunal to grant meaningful relief, even if it were to 

rule in favor of the party seeking relief.’ ” Id., quoting Joys v. Toledo (Apr. 29, 

1997), Franklin App. No. 96APE08-1040, 1997 WL 217581, *3. 
SUPREME COURT OF OHIO

8 

{¶ 19} In this appeal, the issues are live ones, not remote possibilities or 

based on controversies that may never occur. See Heasley, 113 Ohio St.3d 133, 

2007-Ohio-1248, 863 N.E.2d 142, at ¶ 11, quoting Bilyeu v Motorists Mut. Ins. 

Co. (1973), 36 Ohio St.2d 35, 37, 65 O.O.2d 179, 303 N.E.2d 871. Allen, a 

lactating employee, was terminated from employment for not following directions 

— i.e., for taking an unauthorized break from her work station in order to use a 

breast pump. The determination of whether that action was lawful cannot be 

made in a vacuum. Rather, the determination depends on the facts she marshals 

as well as the state of the law in Ohio, not the state of federal law as defined in the 

federal courts. 

{¶ 20} The principle of judicial restraint, that “ if it is not necessary to 

decide more, it is necessary not to decide more,” PDK Laboratories, Inc. v. 

United States Drug Enforcement Admin. (C.A.D.C.2004), 362 F.3d 786, 799 

(Roberts, J., concurring in part and in judgment), is an important one. But here, it 

is inapplicable because it is necessary to decide “more.” 

{¶ 21} The question whether Ohio law recognizes discrimination claims 

based on lactation is one of great general interest. Allen and Isotoner, as well as 

all Ohio’s employees and employers, are entitled to the answer and to guidance on 

the contours of Ohio’s employment laws. It is our duty to provide that guidance 

and to answer the questions posed in this controversy. Fortner v. Thomas (1970), 

22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371 (“it is the duty of every 

judicial tribunal to decide actual controversies between parties legitimately 

affected by specific facts and to render judgments which can be carried into 

effect”). I thus proceed. 

I 

{¶ 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 
January Term, 2009 

9 

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. 

{¶ 23} The court of appeals affirmed. In a conclusory decision, it held 

that Allen had not presented a prima facie case of sex discrimination on the basis 

of pregnancy and that her termination did not offend Ohio public policy. Allen v. 

totes/Isotoner Corp. (Apr. 7, 2008), Butler App. No. CA2007-08-196. According 

to the court of appeals, “appellant was not terminated because she was lactating, 

pumping breast milk, or needed to take a break to pump breast milk. Rather, she 

was simply and plainly terminated as an employee at will for taking an 

unauthorized, extra break (unlike the restroom breaks which were authorized and 

available to all of the employees, appellant included).” 

II 

Pregnancy and Lactation as Objects of Sex Discrimination 

{¶ 24} Among other things, the FEPA prohibits an employer from 

discharging or discriminating against a person in the tenure, terms, conditions, or 

privileges of employment because of the person’s sex or disability. R.C. 

4112.02(A). Through the PDA amendments to the FEPA, which became 

effective in 1980, the General Assembly has made clear that the statutory phrases 

“because of sex” and “on the basis of sex” include all claims “because of or on the 

basis of pregnancy, any illness arising out of and occurring during the course of a 

pregnancy, childbirth, or related medical conditions. Women affected by 

pregnancy, childbirth, or related medical conditions shall be treated the same for 

all employment-related purposes * * *.” R.C. 4112.01(B). The amended 
SUPREME COURT OF OHIO

10 

statutory framework now embodied in Ohio’s FEPA developed similarly to its 

federal counterpart, Title VII of the Civil Rights Act of 1964, section 2000e(k), 

Title 42, U.S.Code, the federal Pregnancy Discrimination Act of 1978. 

{¶ 25} In the wake of the controversial decision Gen. Elec. Co. v. Gilbert

(1976), 429 U.S. 125, 139-140, 97 S.Ct. 401, 50 L.Ed.2d 343, in which the United 

States Supreme Court rejected a disparate-treatment sex-discrimination claim 

based on a disability insurance plan’s refusal to cover pregnancy-related 

disabilities, Congress amended Title VII to make clear that sex-discrimination 

includes discrimination based on pregnancy. See, e.g., California Fed. S. & L. 

Assn. v. Guerra (1987), 479 U.S. 272, 284-285, 107 S.Ct. 683, 93 L.Ed.2d 613; 

Newport News Shipbuilding & Dry Dock Co. v. Equal Emp. Opportunity Comm.

(1983), 462 U.S. 669, 678, 103 S.Ct. 2622, 77 L.Ed.2d 89. 

{¶ 26} The federal PDA explicitly expanded the terms “because of sex” 

and “on the basis of sex” to include the concepts “because of or on the basis of 

pregnancy, childbirth, or other related conditions” and to affirm that “ ‘women 

affected by pregnancy, childbirth, or related medical conditions shall be treated 

the same for all employment-related purposes * * * as other persons not so 

affected but similar in their ability or inability to work.’ ” Fortier v. U.S. Steel 

Corp. (June 4, 2002), W.D.Pa. No. 01-cv-2029, 2002 WL 1797796,* 3, quoting 

Section 2000e(k), Title 42, U.S.Code. The essential command of the PDA is that 

an employer must maintain the same neutrality toward an employee’s pregnancy 

as it would an employee’s race, gender, or other protected-class status. Pacourek 

v. Inland Steel Co. (N.D.Ill.1994), 858 F.Supp. 1393, 1400. And the legislative 

history of the federal PDA suggests strongly that neutrality must be maintained 

before, during, and after a pregnancy. Id. at 1402, citing 123 Congressional 

Record 29385 (1977). 

{¶ 27} Soon after Congress enacted the PDA amendments to Title VII, 

Ohio followed suit. Derungs, 374 F.3d at 436 (after Gilbert and the passage of 
January Term, 2009 

11 

the federal PDA, the Ohio General Assembly amended R.C. 4112.02(A) by 

adopting the Ohio PDA, R.C. 4112.01(B), in 1980). The Ohio General 

Assembly’s unambiguous intent in passing the Ohio PDA is well understood. 

“Having incorporated the [federal] PDA’s language almost verbatim into the 

definitional provisions of § 4112, it is clear to us that the Ohio Legislature was 

aware of the meaning and rationale of Gilbert, as well as being aware of the PDA. 

The Legislature made a conscious choice to extend the definition of 

discrimination to include pregnancy even though there cannot be a class of 

similarly situated males.” Derungs, 374 F.3d at 436. 

{¶ 28} In evaluating Allen’s claims, the trial and appellate courts ignored 

the foregoing history. Rather, central to both courts’ analysis is the Sixth 

Circuit’s decision in Derungs, a public-accommodations case brought by a 

woman who had been prohibited from breast-feeding her infant while sitting on a 

bench near a dressing room in a Walmart store. Derungs v. Wal-Mart Stores Inc. 

(S.D.Ohio 2000), 141 F.Supp.2d 884, 886. In that case, the district court granted 

partial summary judgment in favor of Walmart on the plaintiff’s claims for sex 

and age discrimination in violation of R.C. 4112.02(G), and the Sixth Circuit 

affirmed. Derungs, 374 F.3d at 440. 

{¶ 29} In rendering their decisions, the federal courts applied the Gilbert

analysis that had been rejected expressly by both Congress and the Ohio 

Legislature. See Derungs, 141 F.Supp.2d at 889-892. In doing so, the federal 

courts decided the case on federal case law. Id. at 889-893. 

{¶ 30} Significantly for purposes here, Derungs did not involve 

employment discrimination, but rather, a claim for discrimination in public 

accommodations. And as the federal courts recognized, when the Ohio General 

Assembly passed the PDA, it did not amend the public-accommodations portion 

of R.C. Chapter 4112. See Derungs, 141 F.Supp.2d at 889, fn. 7; see also 

Derungs, 374 F.3d at 436. 
SUPREME COURT OF OHIO

12 

{¶ 31} I find that fact significant. Derungs is inapposite here because its 

analysis revolves around a portion of R.C. Chapter 4112 that was not amended by 

the PDA. And evidently, Derungs did not reflect Ohio legislators’ view of the 

law: after Derungs was decided, the Ohio General Assembly enacted R.C. 

3781.55, which permits a mother to breast-feed her child in a place of public 

accommodation. 

{¶ 32} I recognize that the federal courts’ analysis in Derungs is not 

inconsistent with the federal courts’ continued reliance on Gilbert

notwithstanding the PDA. Reasonable minds may differ about the merit of the 

rule set forth in Gilbert. But given our legislature’s clear and unambiguous 

rejection of the Gilbert analysis, I decline to apply those rationales in our analysis 

of pregnancy-discrimination claims brought under the gender-equity prong of the 

FEPA.1

 Given the clarity with which our legislature has spoken on this issue and 

its insistence that gender-based discrimination can include pregnancy-based 

discrimination, we should engage in a meaningful analysis centered on the 

statutory language. 

{¶ 33} Ohio’s PDA affords protection to employees “because of or on the 

basis of pregnancy” and states that “[w]omen affected by pregnancy, childbirth, 

or related medical conditions shall be treated the same for all employment-related 

purposes * * * as other persons not so affected but similar in their ability or 

inability to work * * *.” R.C. 4112.01(B). That language is broad. 

{¶ 34} “Related” and “affected” are expansive terms. “Related” means 

“connected by reason of an established or discoverable relation,” and “relation” 

means “an aspect or quality (as resemblance) that connects two or more things or 

parts as being or belonging or working together or as being of the same kind.” 

 

1. I am aware of the debates that surround breast-feeding in forums as divergent as law reviews, 

public health journals, and the popular press. But our role as judges is not to substitute our own 

views of those issues for those of the legislature as they are embodied in the Revised Code. 

Rather, we must follow the laws as written by the legislature and interpret them accordingly. 
January Term, 2009 

13 

Merriam-Webster’s Collegiate Dictionary (10th Ed.1993) 987. “Affected,” the 

past tense of “affect,” means “[having] produce[d] an effect upon” and “[having] 

produce[d] a material influence upon.” Id. at 19. 

{¶ 35} Despite this broad language, the trial court found that 

discrimination on the basis of lactation is not the same as discrimination on the 

basis of pregnancy because “Allen’s condition of lactating was not a condition 

relating to pregnancy but rather a condition relating to breastfeeding.” I find that 

conclusion curious and inaccurate. 

{¶ 36} Lactation – the formation and secretion of milk by the mammary 

glands – is believed to be stimulated by prolactin, a hormone. 1 Russ, Freeman, & 

McQuade, Attorneys Medical Advisor (Aug.2008) Section 4:5. During 

pregnancy, the level of prolactin in a woman is inhibited by high levels of 

estrogen and progesterone. Id. at Section 14:228. Following delivery, levels of 

estrogen and progesterone in the woman fall while the level of prolactin remains 

high. Id. at Section 14:26. Prolactin then stimulates and maintains the production 

of milk. Id. at Section 4:5. 

{¶ 37} Colostrum, a substance that contains more protein and less fat and 

sugar than breast milk, is secreted by the breasts during pregnancy and in the days 

immediately following childbirth. Russ, Section 14:228. Milk production begins 

thereafter, usually on the third or fourth postpartum day, and breast milk appears. 

Id. at Section 14:26. 

{¶ 38} As the trial court found, lactation obviously is linked to breastfeeding. But given the physiological aspects of lactation, I have little trouble 

concluding that lactation also has a clear, undeniable nexus with pregnancy and 

with childbirth. Therefore, it necessarily follows that lactation is “because of or 

on the basis of pregnancy” and that women who are lactating are women 

“affected by pregnancy [or] childbirth.” Accord Pacourek, 858 F.Supp. at 1402, 

quoting House Report (1978), No. 95-948, 95th Congress, 2d Session 5, 
SUPREME COURT OF OHIO

14 

concluding that a liberal construction of the federal PDA is proper, given its 

legislative history, and that “ ‘the bill makes clear that its protection extends to the 

whole range of matters concerning the childbearing process.’ ” Accordingly, I 

would hold that gender-discrimination claims arising from lactation are 

cognizable under Ohio’s FEPA as amended by the PDA. But the analysis of this 

appeal does not end with that conclusion. 

{¶ 39} Allen’s claims of discrimination appear predicated on a disparatetreatment theory. She asserts, “The workrule that [she] allegedly violated was the 

one that restricted the time she could pump her breast milk to her lunch break. 

Totes placed no such restrictions on any other employee who needed to leave his 

or her workstation to tend to a bodily function or bodily discomfort, only upon 

lactating women. The work rule was itself discriminatory, since it placed extra 

restrictions on women experiencing a physical act of pregnancy.” The appellate 

court implicitly addressed that claim, holding that Allen “was simply and plainly 

terminated as an employee at will for taking an unauthorized, extra break (unlike 

the restroom breaks which were authorized and available to all of the employees, 

appellant included).” Allen, Butler App. No. CA2007-08-196, 2-3. 

III 

{¶ 40} In order to establish a prima facie case for disparate treatment 

based upon pregnancy discrimination in the workplace, the plaintiff must show 

that (1) she was pregnant, (2) she satisfactorily performed the duties required by 

the position for which she was hired, (3) she was discharged, and (4) her position 

was ultimately filled by an employee who was not pregnant. See Donaldson v. 

Am. Banco Corp., Inc. (D.Colo.1996), 945 F.Supp. 1456, 1463, citing McDonnell 

Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 

668. I would find that a plaintiff may satisfy the first element of this prima facie 

test by showing that she was affected by pregnancy or an illness or medical 

condition related to pregnancy. 
January Term, 2009 

15 

{¶ 41} As with other discrimination claims, a prima facie case gives rise 

to a presumption of discrimination and shifts the burden of production to the 

defendant to articulate a legitimate, nondiscriminatory reason for its treatment of 

the plaintiff. St. Mary’s Honor Ctr. v. Hicks (1993), 509 U.S. 502, 506-507, 113 

S.Ct. 2742, 125 L.Ed.2d 407. Legitimate, nondiscriminatory reasons for the 

action taken by the employer include insubordination on the part of the employee 

claiming discrimination. Hood v. Diamond Prods., Inc. (1996), 74 Ohio St.3d 

298, 302, 658 N.E.2d 738. 

{¶ 42} If the defendant carries that burden of production, the presumption 

of discrimination drops from the case. Gudenkauf v. Stauffer Communications, 

Inc. (D.Kan.1996), 922 F.Supp. 465, 471, fn. 7. The plaintiff must then directly 

prove that the employer acted on a discriminatory motive or indirectly prove that 

the employer’s reasons were a pretext for discrimination. Id. If she fails to do so, 

summary judgment is appropriate. Id. 

{¶ 43} The undisputed evidence here is that Allen took unauthorized 

breaks from her work station. Isotoner asserts that it discharged her for doing so. 

{¶ 44} Although Allen’s unauthorized breaks may have been to pump 

milk, Allen could not properly engage in such actions without her employer’s 

knowledge and permission. The FEPA and the PDA mandate that an employer 

treat pregnancy with neutrality, but not preferentially. 

{¶ 45} Allen argues that the break policy discriminates against lactating 

women because other employees are able to use the bathroom freely to attend to 

bodily functions like menstruation and urination. But Allen was not forbidden to 

take similar breaks, nor has she presented any evidence that any other employee 

routinely used the bathroom for 15-minute breaks on a scheduled basis each day. 

Thus, the record in this case would not support a reasonable jury’s verdict in 

Allen’s favor on a disparate-treatment theory. Summary judgment was properly 

entered against her. 
SUPREME COURT OF OHIO

16 

IV 

Pregnancy and Lactation as Disability 

{¶ 46} I turn now to the issue of whether pregnancy and lactation are 

disabilities for purposes of disability-discrimination analysis. I would hold that 

they are not. 

{¶ 47} To establish a prima facie case of disability discrimination, the 

plaintiff must demonstrate (1) that she is disabled, (2) that an adverse employment 

action was taken by an employer, at least in part, because of the disability, and (3) 

that the plaintiff, though disabled, can safely and substantially perform the 

essential functions of the job in question. Hazlett v. Martin Chevrolet, Inc. (1986), 

25 Ohio St.3d 279, 281, 25 OBR 331, 496 N.E.2d 478. Here, there is no showing 

that Allen satisfied the first prong of the test, i.e., that she was disabled by virtue 

of her pregnancy or lactation. 

{¶ 48} The courts that have considered this issue have found uniformly 

that pregnancy, by itself, is not a disability per se for purposes of ADA claims 

because “[s]hort term, temporary restrictions are not substantially limiting and do 

not render a person disabled.” Kucharski v. Cort Furniture Rental

(D.Conn.2007), 536 F.Supp.2d 196, 202, reversed on other grounds, 

(D.Conn.2008), 594 F.Supp.2d 207. See also Wenzlaff v. NationsBank

(D.Md.1996), 940 F. Supp. 889, 890; Villarreal v. J.E. Merit Constructors, Inc.

(S.D.Tex.1995), 895 F.Supp. 149, 152. That conclusion is supported by the 

interpretative guidelines issued by the Equal Employment Opportunity 

Commission, which state that conditions such as pregnancy are not the result of a 

physiological disorder and are not impairments. Id., citing 29 C.F.R. 1630.2(h). 

Furthermore, the ADA’s express language defines a disability as a “physical or 

mental impairment that substantially limits one or more of the major life activities 
January Term, 2009 

17 

of [an] individual.” Section 12102(1)(A), Title 42, U.S.Code.2 State appellate 

courts have reached the same conclusion, rejecting arguments that pregnancydiscrimination claims are cognizable under state laws forbidding disability 

discrimination. See, e.g., Hegwine v. Longview Fibre Co., Inc. (2007), 162 

Wash.2d 340, 344, 172 P.3d 688 (“An employer who refuses to hire a job 

applicant because of her pregnancy is liable for sex discrimination * * *, not * * * 

accommodation analysis like that applicable to disability related employment 

discrimination claims”). 

{¶ 49} I agree. “The implicit reasoning in these decisions is persuasive 

and sound. Pregnancy is a physiological condition, but not a disorder.” 

Gudenkauf, 922 F. Supp. at 473. Similarly, “[i]t is simply preposterous to 

contend a woman’s body is functioning abnormally because she is lactating.” 

Bond v. Sterling, Inc. (N.D.N.Y.1998), 997 F. Supp. 306, 311. 

{¶ 50} To hold that a woman is “disabled” because she is pregnant or 

lactating evokes the paternalistic judicial attitudes toward working women that 

were apparent in early twentieth century cases. See, e.g., Muller v. Oregon

(1908), 208 U.S. 412, 422, 28 S.Ct. 324, 52 L.Ed. 551. Where, as here, there is 

not a medical condition related to pregnancy that would satisfy the definition of 

disability, I would hold that pregnancy-related discrimination claims are not 

cognizable under the disability-discrimination provisions in the ADA. 

MOYER, C.J., concurs in the foregoing opinion. 

__________________ 

PFEIFER, J., dissenting. 

 

2. We may look to federal regulations and case law for guidance in interpreting comparable Ohio 

law. “Although we are not bound to apply federal court interpretation of federal statutes to 

analogous Ohio statutes, we have looked to federal case law when considering claims of 

employment discrimination brought under the Ohio Revised Code.” Coryell v. Bank One Trust 

Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, 803 N.E.2d 781, ¶ 15. See also Columbus Civ. 

Serv. Comm. v. McGlone (1998), 82 Ohio St.3d 569, 573, 697 N.E.2d 204. 
SUPREME COURT OF OHIO

18 

{¶ 51} 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 mothers who breast-feed 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. 

{¶ 52} Any court’s method of analyzing cases should ask (1) whether the 

plaintiff stated a cognizable cause of action and (2) whether the facts of the case 

support the alleged cause of action. It is unclear why, on this question of great 

general interest, this court has embarked on a backwards analysis, letting stand the 

appellate court’s holding that LaNisa Allen was fired for leaving her post without 

permission rather than for pumping her breasts in the employee washroom, thus 

leaving unanswered the question of whether she even asserted a cognizable cause 

of action. The trial court proceeded properly, although its conclusion was 

incorrect: it found as a matter of law that Ohio’s pregnancy discrimination laws 

do not apply to protect mothers who breast-feed their babies. It did as it should in 

ruling on a summary judgment motion: it gave the benefit of the facts to Allen 

and ruled on the law. 

{¶ 53} Somehow, the appellate court lost its way, and this court has 

followed. In its six-paragraph decision, the appellate court concludes that Allen 

was not fired for pumping her breasts: “Rather, she was simply and plainly 

terminated as an employee at will for taking an unauthorized, extra break (unlike 

the restroom breaks which were authorized and available to all of the employees, 

appellant included).” Allen v. totes/Isotoner Corp. (Apr. 7, 2008) Butler App. No. 

CA2007-08-196. The appellate court does not explain why Allen’s trips to the 

restroom outside scheduled break times were different from the restroom trips 

other employees made outside scheduled break times. There is no evidence in the 
January Term, 2009 

19 

record about any limit on the length of unscheduled restroom breaks and no 

evidence that employees had to seek permission from a supervisor to take an 

unscheduled restroom break. There is evidence only that unscheduled bathroom 

breaks were allowed and that LaNisa Allen was fired for taking them. What made 

her breaks different? 

{¶ 54} We accept cases not necessarily because of how the result might 

affect the parties in the individual case, but because of how a holding might affect 

other persons similarly situated. 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. 

{¶ 55} 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. 

__________________ 

 Repper, Pagan, Cook, Ltd. and John H. Forg III, for appellant. 

 Taft, Stettinius & Hollister, Timothy Reilly, and Daniel J. Hoying, for 

appellee. 

______________________