The Supreme Court of Ohio has upheld a lower court's decision to dismiss a lawsuit filed by an employee who was fired for taking unauthorized breaks to express breast milk for her infant.

The case involved a former employee who filed a discrimination lawsuit against totes/Isotoner, Inc. In her deposition, the woman admitted that over a two-week span, she took breaks from her workstation without her employer's permission. When firing the employee, her supervisor said that she was being terminated for failing to “follow directions.” A lower court had dismissed the lawsuit.

The Supreme Court of Ohio ruled that it was appropriate for the lower court to dismiss the lawsuit because the woman failed to produce evidence that the company had a discriminatory motive in firing her or that the company's articulated reason for firing her (that is, failure to follow directions) was merely pretext for discrimination based on her pregnancy or a condition related to her pregnancy. The woman had argued that that the break policy discriminates against lactating women, but the court rejected that argument saying she was able to take similar breaks to all other employees and that she produced no evidence that any other employee took long breaks without permission. Therefore, the court said, there was no record on which a jury could find in her favor.

Left unanswered by the court's judgment is whether alleged discrimination due to lactation is included within the scope of Ohio's law prohibiting discrimination based on sex and pregnancy. However, one of the judges did write an opinion explaining why she believes that the state law prohibits employment discrimination against lactating women. The opinion is significant because the trial court in the case had said lactation was a condition related to breastfeeding and not pregnancy--and that discrimination based on lactation is not the same as discrimination based on pregnancy. The Supreme Court justice found that conclusion "curious and inaccurate."