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Changes to Ohio’s pregnancy discrimination rules now in question

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in Discrimination and Harassment,Human Resources,Maternity Leave Laws

In the fall of 2007, the Ohio Civil Rights Commission’s (OCRC) proposed revisions to the rules governing pregnancy discrimination in Ohio became a hot political topic. Due to some unusual political wrangling, the future of the proposed rule revision is very much in question.

In early March, we may learn whether the OCRC intends to pursue its mission of establishing minimum mandated maternity leave for all pregnant employees in Ohio, or whether it will take a different, more business-friendly approach.

Pregnancy discrimination against both state and federal law

There are both federal and state laws in effect that prohibit pregnancy discrimination. The federal Pregnancy Discrimination Act (PDA) requires that pregnant employees be treated the same as other similarly situated employees who are temporarily disabled from working. The PDA does not require employers to grant any special privileges to pregnant employees; it requires only that they be treated the same as other similarly situated, temporarily disabled employees.

The Ohio statute governing employment discrimination prohibits discrimination against employees on the basis of their sex. Since pregnancy is a gender-specific condition, it is illegal to discriminate against pregnant women. The law does not mandate any specific length of leave, or even that leave be given at all. Like the PDA, it merely requires employers to treat pregnant employees the same as other employees who are temporarily unable to work.

Informally, 12 weeks of leave

The current state regulations, previously promulgated by the OCRC, require all Ohio employers to give “reasonable” leave to employees who require time away from work due to pregnancy. It has long been the OCRC’s informal position that a leave period of less than 12 weeks may violate the statute. This informal policy, however, affected only those employers that were faced with defending a charge of discrimination filed with the OCRC.

In July 2007, the OCRC proposed revisions to the pregnancy discrimination rules that would greatly expand the rights of pregnant employees. The two most troubling aspects of the proposed regulation were the requirement that all Ohio employers provide at least 12 weeks’ leave to all employees who require time off due to pregnancy, and the requirement that Ohio employers must provide light-duty positions to their pregnant employees if they make light duty available for any employees.

The political fallout

Although many employer groups expressed their concerns over the new rule, the OCRC refused to reconsider its position. The chair of the OCRC, Barbara Sykes, who was appointed to the position by Gov. Ted Strickland in August, pointedly and publicly refused his request to withdraw the rule from consideration for a 30-day period to allow small business groups an opportunity to express their views about the proposed changes.

The final step of the rule process is a review by the Joint Commission on Agency Rule Review (JCARR), a bipartisan committee of state legislators. JCARR’s authority is limited to a consideration of three specific issues:

  1. Whether the agency exceeded its statutory authority in issuing the proposed rule.
  2. Whether the proposed rule conflicts with other state laws.
  3. Whether the proposing agency completed an accurate and complete “fiscal analysis” of the rule.

JCARR proceedings are normally very low-key affairs. However, on Dec. 3, 2007, the hearing room was packed by proponents, and opponents prepared to give testimony expressing their opinions of the new pregnancy discrimination rule. JCARR, however, heard no testimony.

Instead, by an 8-1 vote, JCARR ruled that OCRC had failed to complete an accurate fiscal analysis of the rule. JCARR required the commission to resubmit the rule, this time including the fiscal analysis. During the hearing, several members of JCARR expressed concern about whether the OCRC had exceeded its authority when it implemented the rule revision.

Just days after the JCARR hearing, Sykes’ appointment to the chair position of the OCRC was slated for state Senate approval. Because of her defiance of his request to delay the process with regard to the pregnancy discrimination rules, Strickland withdrew his support. Sykes resigned rather than face a contentious approval process before the Senate.

The earliest that the OCRC can resubmit the rule is March 3, 2008. Sykes was a strong proponent of the rule. It remains to be seen whether, in light of her resignation, the OCRC will resubmit the revised rule in the same form, or whether it will choose to work with the business community to create a rule that interprets—rather than expands—the pregnancy discrimination law of Ohio, and promotes the best interests of Ohio employers and their employees.

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