Derungs v. Wal-Mart Stores: Another Door Shut--A Federal Interpretation Excluding Breast-Feeding from the Scope of a State's Sex Discrimination Protection

What is a mother to do when her infant cries for breast milk as she pushes a cart of merchandise through Wal-Mart? After all, the American Academy of Pediatrics recommends that breastfeeding commence as soon as babies show signs of hunger. Indeed, breastfed babies need to be fed eight to ten times daily. To complicate matters, breastfeeding should be free of interruptions and distractions. Inevitably, breastfed babies will demand feeding at inopportune moments.If privacy is a concern, a mother may search for a secluded place to breastfeed. However, if she heeds the advice of the American Academy of Pediatrics, she will look for a convenient place to breastfeed as soon as possible. Any interruption, including a request to move the breast-feeding session, may affect the infant's ability to retain the milk. Such a request is an unwarranted intrusion upon an intimate moment. Federal courts sitting in diversity need not worry about interrupting intimate moments when they decide matters of state law. However, if they impose uniquely federal perspectives on state law issues they may also be labeled unwelcome intruders. For that reason, proper diversity practice requires federal courts to apply state law “in the same manner as would a court of the state whose law applies.” When state law is “unclear or unsettled,” certification to the state's highest court “enables a federal court sitting in diversity definitively to obtain and properly to apply state law.” But what approach is a federal court to take when certification is not man-dated, and federal precedent appears to supply the answer to a question of state law?Derungs v. Wal-Mart Stores forced the Sixth Circuit Court of Appeals to resolve that dilemma. Three breast-feeding women brought the case in 1999 after Ohio Wal-Mart employees restricted their breastfeeding to Wal-Mart restrooms at three distinct stores on separate occasions. The court decided the case on June 30, 2004,and held that breast-feeding restrictions in Ohio's places of public accommodation do not “amount” to sex discrimination. According to the court, Title VII fails to protect breastfeeding because restrictions aimed at the activity do not treat one sex differently than another. As a result, when Ohio Wal-Marts inform their breast-feeding female customers that they may only breastfeed in the stores' restrooms, they do not engage in sex discrimination. Further, even though breast-feeding women engage in an activity in which only women may participate, places of public accommodation that restrict it do not treat women differently than men. Yet in Derungs v. Wal-Mart Stores, the Sixth Circuit did much more than hold that a place of public accommodation may proscribe what is appropriate conduct for breast-feeding women. The court also concluded that it sat at a legal crossroads where state discrimi-nation statutes and federal breast-feeding precedent meet. This Comment first provides a background of the facts and procedural history of Derungs v. Wal-Mart Stores. Second, it summarizes the Sixth Circuit's decision and reasoning. Third, it argues that the court's unwarranted extension of federal analysis into Ohio's public accommodation statute renders its statutory construction unpersuasive. It concedes that the Sixth Circuit's analysis aligns with federal employment law interpreting breast-feeding restrictions. It proposes, however, that the Ohio Supreme Court should have decided whether the federal analysis extends to Ohio's public accommodations statute. Finally, the Comment concludes that the Sixth Circuit's analysis intrudes upon state prerogative and stymies the natural expansion of sex discrimination protection.