Author: Melanie Cheek, University of Cincinnati Law Review, Associate Member
Women who choose to breast-feed often make the choice to do so despite social and economic barriers. Although the benefits of breast-feeding have been widely promoted, there are gaps in laws and policies supporting a woman’s decision to breast-feed. This approach seems counterintuitive to the supposed governmental interest in supporting women who choose to breast-feed. Indeed, American policies seem lightyears behind countries such as Canada, where public breast-feeding is not only a woman’s rights issue, but a public health issue. Although there have been advancements in the promotion of women’s right to breast-feed, there are still issues within existing laws and policies that need to be addressed by federal and state legislators, and the judiciary.
Public Brest-feeding Rights in Ohio
Although Ohio has some of the most progressive breast-feeding rights and protective laws in the country, only a little more than a decade ago, Ohio allowed open discrimination toward breast-feeding women. The laws that exist today were legislative responses to two separate court decisions that threatened to undercut federal progress made on women’s breast-feeding rights and protections.
In 1999, three women sued Wal-Mart Stores Inc. after the three women were interrupted while breast-feeding their children and asked to either leave the premises or finish breast-feeding in the public restroom of the store. The women alleged that by doing so, Wal-Mart violated the public accommodations provision of the Ohio Civil Rights Act, which prohibits sex discrimination by places of public accommodations. Wal-Mart did not deny the factual allegations that such incidents took place. Instead, Wal-Mart crafted its argument based on a statutory interpretation of Ohio’s public accommodation statute that would allow places of public accommodations to limit or even prohibit breast-feeding activities on their premises.
Surprisingly, the district court agreed with Wal-Mart’s argument, holding that restrictions on breast-feeding did not constitute discrimination based on sex under Ohio’s public accommodations statute. Unbeknownst to the Plaintiffs when they filed suit, the battle was lost before it even began, resulting in the grant of Wal-Mart’s motion for summary judgment. The district court insisted upon evidence in which members of the male sex who breast-feed were treated differently by Wal-Mart while engaging in the same activities on the store’s premises. Without such evidence, the district court reasoned, Plaintiffs could not show that they were discriminated against because of their sex. To the district court, the incidents were simply illustrations of poor treatment toward the Plaintiffs, rather than discrimination. Ultimately, Defendant Wal-Mart, although a place of public accommodation, had the right to limit breast-feeding activities on its premises.
When the Plaintiffs appealed the case to the Sixth Circuit, the Sixth Circuit affirmed the district court’s decision. Although the Sixth Circuit reviewed the case under Ohio state law, the Court looked to a federal framework to analyze claims of sex discrimination, and relied on the comparability analysis from the 1976 Supreme Court Case General Electric v. Gilbert. In Gilbert, a pregnant employee brought a sex discrimination suit under Title VII against her employer, General Electric, alleging that the company’s disability benefits offered its employees a disability plan for non-occupational sicknesses and accidents, yet discriminated against women by not providing coverage for disability that result from pregnancy. Ultimately, the Supreme Court held that General Electric’s disability plan did not violate Title VII, even though the plan excluded coverage for pregnancy related medical costs, because there was no benefit the plan provided for men, a comparative group, that it did not also provide women. The fact that Gilbert was a federal case that dealt with sex discrimination in the workplace, and not the public accommodations context, makes the Sixth Circuit’s decision to use the Gilbert framework for their analysis of sex discrimination under a state public accommodations statute even more curious.
In its analysis of the trial court’s decision in Derungs, the Sixth Circuit looked to Ohio case law which analyzed discrimination cases based on the evidence of subclasses receiving better treatment than other subclasses. The court reviewed several cases, including a barbershop that was found to discriminate against its white and black customers, and a trailer park operator who ordered a tenant to leave the lot after learning that she associated with black people. All the cases the Sixth Circuit reviewed involved discriminatory incidents that could conceivably produce evidence of an alternate subclass being treated differently than the Plaintiffs in those cases were treated. In contrast, the Plaintiffs in Derungs faced discrimination by engaging in behavior that biology itself restricts to only the female sex, and excludes the alternate subclass of the male sex entirely. Due to this, the Sixth Circuit’s decision to compare Derungs to discrimination cases where evidence of an alternate class receiving better treatment is entirely plausible is contentious.
Although the types of discrimination in the cases the Sixth Circuit reviewed differed from the discrimination alleged in Derungs on a biological level, the Circuit inevitably affirmed the district court’s decision. The rationale was that Plaintiffs’ case was a “sex plus” case, where the alleged discrimination was not only based on sex, but on sex considered in conjunction with a second characteristic. Since Plaintiffs could not provide evidence of a subclass of men who were treated differently by Wal-Mart when engaged in breast-feeding, the Circuit held that there was no showing that Wal-Mart had engaged in sex based discrimination.
Ohio’s Breast-feeding Statute
In 2005, after the Sixth Circuits disappointing decision in Derungs, the Ohio legislator amended the Ohio Revised Code (ORC) to include a breast-feeding statute that explicitly and affirmatively provided for a woman’s right to breast-feed in places of public accommodations in Ohio. However carving out an affirmative right to breast-feed in the ORC did not invalidate the Sixth Circuit’s reasoning in its decision. Unfortunately, the analysis behind the Derungs decision is still good law, and has been cited to following the amendment.
The fact that Derungs is still good law is notable, specifically because Congress responded to the Supreme Court’s decision in Gilbert by amending Title VII through the Pregnancy Discrimination Act. Just as the Ohio legislator did in response to Derungs, following the Gilbert decision, Congress amended Title VII to include plain English protection for women against pregnancy-based sex discrimination. Unfortunately, just as Congress’s amendment to Title VII did not prohibit the Sixth Circuit from employing Gilbert’s outdated framework, there is nothing to prevent other jurisdictions from looking to Derungs. The Ohio amendment also differs from Congress’s reaction to Gilbert in that Congress reacted by amending the very definition of sex discrimination under Title VII. On the other hand, the Ohio legislators merely amended the ORC to include an affirmative breast-feeding right under a general provision, and left the Ohio Civil Rights Act unchanged.
The fact that the analysis behind Derungs is still good law, and the fact that the Ohio amendment was made under a general provision, makes amendment a small, albeit important, step in overcoming the indifferent attitude that governments and the judiciary have toward women’s breast-feeding rights.
Equity to Produce Fairness
The Equal Protection clause that birthed civil rights laws dictates that all people be treated equally under the law. Courts undoubtedly struggle with the application of equality when it comes to the differences that typically exist between the male and female sex. However, overly rigid frameworks result in legal loopholes where sex discrimination can thrive. Strict interpretations of equal protection that do not recognize such differences dictate sex discrimination, undermining the very purpose of laws that prohibit sex discrimination.
The district court and the Sixth Circuit’s hairsplitting reasoning in Derungs that discrimination resulting from the female population’s distinctive ability to become pregnant is not sex discrimination, is disappointing. Pregnancy and the effects of pregnancy, such as lactation, are conditions that are confined strictly to the female sex. Those who become pregnant and lactate can do so solely because of their sex.
However, the Supreme Court in Gilbert, and the district court and Sixth Circuit in Derungs, chose to dismiss this distinction in favor of a strict interpretation and application of equal treatment
In the pursuit of strict interpretations of equal protection standards, courts have come up with unrealistic and impracticable standards of comparisons. A policy that disproportionally impacts only one sex in grossly negative ways should not be glossed over as gender-neutral policies that satisfy equality. Courts must become comfortable with the notion that there can be instances where the existence of a policy could be inconsequential to one group but could produce extreme hardships and burdens for another if it did not exist. Anti-discrimination protection for breast-feeding women is one such instance where the rights of the male sex are entirely unaffected by existence of laws and policies that protect pregnancy. As such, the analysis in such instances should not be whether laws and policies affect both sexes equally, but whether such laws and policies have a disparate impact on only one sex. By doing so, courts will find that many policies that seem fair on the surface are not gender-neutral after all.
Denying that pregnancy-based discrimination is sex discrimination is a dangerous proposition. Courts are understandably unsure how to approach the differences between the male and female sex. However, previous decisions such as Gilbert and Derungs unapologetically blanket the issue of sex discrimination faced by millions of women. Ironically, insisting that equal treatment and differences in how sexes are discriminated against are mutually exclusive is what impedes the equitable application of anti-discrimination statutes. The biological differences between the female and male sex calls for certain kinds of differences in the laws that protect the interests and liberties of each sex. This fact is something courts must become comfortable with if the promotion of equality and anti-discrimination is truly a goal.
 CENTERS FOR DISEASE CONTROL AND PRESENTATION. (stating that one of the most highly effective preventive measures a mother can take to protect the health of her infant is to breast-feed), at https://www.cdc.gov/breastfeeding/promotion/index.htm (last visited Mar. 10, 2017).
 Patricia Spurles, A Qualitative study of Attitudes toward Public Breastfeeding Among Young Canadian Men and Women, 2 J Hum. Lact. 131-37 (2011).
 Heather M. Kolinksy, Respecting Working Mothers With Infant Children: The Need For Increased Federal Intervention to Develop, Protect, & Support a Breastfeeding Culture in the United States 17 Duke J. of Gender L. & Pol’y 333, 361 n.224 (2010).
 Derungs v. Wal-Mart Stores Inc., 141 F. Supp. 2d 885, 886 (S.D. Ohio 2001).
 Places of public accommodations include any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public. Ohio Rev. Code Ann. § 4112.01 (Page, Lexis Advance through file 178 (HB 532)).
 Ohio Rev. Code Ann. § 4112.02 (Page, Lexis Advance through file 178 (HB 532)).
 Derungs, 141 F. Supp. 2d at 888.
 Id. at 886.
 The suit was removed to federal court after Wal-Mart filed a notice for removal based on diversity jurisdiction.
 Derungs, 141 F. Supp. 2d at 894.
 Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 437 (6th Cir. 2004).
 The comparability analysis evaluates discrimination by looking to evidence of members of a comparable group receiving better treatment. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127-30 (1976).
 Gen. Elec. Co. v. Gilbert, 429 U.S. at 126.
 Id. at 130.
 Derungs v. Wal-Mart Stores, Inc., 374 F.3d at 433.
 See Gegner v. Graham, 1 Ohio App. 2d 442, 205 N.E.2d 69 (1964).
 See Ohio Civil Rights Com. v. Lysyj, N.E.2d 3, 7 (1974).
 Benjamin B. Wolman, Adolescence: Biological and Psychological Perspectives 74 (1998).
 Derungs v. Wal-Mart Stores, Inc., 374 F.3d.
 Id. at 432.
 Derungs v. Wal-Mart Stores, Inc., 374 F.3d at 437.
 Ohio Rev. Code Ann. § 3781.55 (Page, Lexis Advance through file 178 (HB 532)).
 The Ohio legislator did not amend § 4112.02. Instead the legislator created a new breast-feeding statute, separate from the statute that was analyzed in Derungs.
 See Philipsen v. Univ. of Mich. Bd. of Regents, No. 06-CV-11977-DT, 2007 U.S. Dist. LEXIS 25898 (E.D. Mich. Mar. 22, 2007).
 Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 UC Davis Law Review 961, 963 (2013) (stating that Congress disagreed with the Court’s decision in Gilbert and quickly superseded the decision by enacting the Pregnancy Discrimination Act).
 Pub. L. No. 95-555, 92 Stat. 2076 (1978).
 U.S. Const. amend. XIV, § 1.
 Benjamin B. Wolman, Adolescence: Biological and Psychological Perspectives 74 (1998).
 Recognition of this distinctions between the sexes is aligned with the Seventh Circuit’s decision in Hivley v. Ivy Tech, where the court held that “[d]iscrimination on the basis of sexual orientation is a form of sex discrimination.” Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017). The court rejected the notion that the test for sex discrimination was whether a member of the opposite sex would face discrimination in the same way, and instead held that “the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.” Id. However, the Sixth Circuit very recently rejected the Hivley court’s reasoning as having no authoritative precedent in the Sixth Circuit. See Grimsley v. Am. Showa, Inc., No. 3:17-cv-24, 2017 U.S. Dist. LEXIS 133350, at *10 (S.D. Ohio Aug. 21, 2017).
 Gen. Elec. Co. v. Gilbert, 429 U.S. 147-60. (Brennan, J., dissenting that the Court should have analyzed General Electric’s disability policy considering the company’s history of downgrading the role of women in the workforce, and its policy was clearly not gender-neutral).