Derungs v. Wal-Mart Stores

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Derungs, et al. v. Wal-Mart Stores No. 01-3498 ELECTRONIC CITATION: 2004 FED App. 0203P (6th Cir.) File Name: 04a0203p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Susan M. Brasier, FALKE & DUNPHY, Dayton, FOR THE SIXTH CIRCUIT Ohio, for Appellants. Gregory S. Muzingo, Bentonville, _________________ Arizona, for Appellee. ON BRIEF: Susan M. Brasier, FALKE & DUNPHY, Dayton, Ohio, for Appellants. Carolyn DANA R. DERUNGS; DEVIN X K. Seymour, Bradley A. Sherman, DUVIN, CAHN & DERUNGS, a minor; JENNIFER - HUTTON, Cleveland, Ohio, for Appellee. GORE ; AUSTIN GORE , a - - No. 01-3498 _________________ minor; ANGIE BAIRD; - KASSIDEE BAIRD, a minor, > OPINION , _________________ Plaintiffs-Appellants, - - ROSEN, District Judge. v. - - I. INTRODUCTION WAL-MART STORES, INC., - Defendant-Appellee. - Plaintiffs/Appellants Dana Derungs, Jennifer Gore and - Angie Baird appeal the district court’s grant of summary N judgment in favor of Defendant/Appellee Wal-Mart Stores, Inc. (“Wal-Mart”), on their claim that Wal-Mart discriminated Appeal from the United States District Court against them on the basis of their sex in violation of the Ohio for the Southern District of Ohio at Dayton. Public Accommodation statute, Ohio Revised Code No. 99-00190—Walter H. Rice, District Judge. § 4112.02(G), by requiring them to breast-feed their children in a restroom or to leave the store to do so. Because we find Argued: August 5, 2003 that under the specific provisions and legislative history of the Ohio Public Accommodation statute, restrictions on breast- Decided and Filed: June 30, 2004 feeding do not amount to discrimination based on sex, we affirm the district court’s judgment. Before: BOGGS, Chief Judge; RYAN, Circuit Judge; ROSEN, District Judge.* II. PERTINENT FACTS On April 7, 1997, Plaintiff Dana Derungs was shopping at the Wal-Mart store located in Lebanon, Ohio. She attempted to nurse her son, Devin Derungs, on a bench next to a * The Honorable Gerald E. Rosen, United States District Judge for the dressing room. She was prohibited from doing so by a Wal- Eastern District of Michigan, sitting by designation. Mart employee and told that she had the option of breast-

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feeding her son either in the restroom or outside the store. In Inc., 141 F. Supp. 2d 884 (S.D. Ohio 2000). Then, on March response, Ms. Derungs left the store with her son. 15, 2001, Wal-Mart’s Motion for Summary Judgment on the remaining common-law claims was granted, and a Final Plaintiff Jennifer Gore had a similar experience in another Judgment was entered on April 11, 2001. Plaintiffs timely Wal-Mart store. On November 8, 1997, Ms. Gore was filed a Notice of Appeal.1 waiting in a lay-a-way line at a Wal-Mart store in Trotwood, Ohio with her son, Austin Gore. She started to breast-feed III. DISCUSSION Austin but was interrupted by a Wal-Mart employee who told her she was not permitted to breast-feed her son in the store. A. STANDARD OF REVIEW The employee informed Ms. Gore that she could breast-feed her son in the restroom, or she could leave the store. She The standard of review applicable to the district court’s voluntarily left the store with her son. decision to grant Defendant’s Motion for Summary Judgment is de novo. Darrah v. City of Oak Park, 255 F.3d 301, 305 Plaintiff Angie Baird also attempted to breast-feed her child (6th Cir. 2001); see also Peters v. Lincoln Electric Co., 285 in the Trotwood, Ohio Wal-Mart store. On February 18, F.3d 456, 465 (6th Cir. 2002). Summary judgment is proper 1999, Ms. Baird attempted to breast-feed her daughter, if “the pleadings, depositions, answers to interrogatories, and Kassidee Baird, on a bench near the portrait studio in the admissions on file, together with the affidavits, if any, show Trotwood Wal-Mart store. Like her co-plaintiffs, Ms. Baird that there is no genuine issue as to any material fact and that was interrupted by a store employee and informed that she the moving party is entitled to judgment as a matter of law.” could either breast-feed in the restroom or had to leave the See Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, store. She, too, elected to leave the store with her child. 871 (6th Cir. 1997), cert. denied, 522 U.S. 1110 (1998); Fed. R. Civ. P. 56(c). In the present case, there is no dispute that On March 31, 1999, Dana Derungs, Devin Derungs, Wal-Mart employees, while in the course of their Jennifer Gore and Austin Gore filed a complaint in Ohio state employment, denied the Plaintiffs the opportunity to breast- court alleging that in refusing to permit Ms. Derungs and Ms. feed in public inside Wal-Mart stores. The question is Gore to breast-feed their children, Wal-Mart discriminated whether this is discriminatory conduct within the meaning of against them on the basis of sex and age under Ohio Revised Ohio Revised Code § 4112.02(G). Therefore, this is strictly Code § 4112.02(G). Plaintiffs also alleged three common-law an issue of statutory construction which is properly resolved claims in their complaint: tortious infliction of emotional distress, tortious interference with parental rights, and loss of consortium. On April 19, 1999, the complaint was amended to add Angie Baird and her infant daughter, Kassidee Baird, 1 as party-plaintiffs. Wal-Mart timely removed the action to Plaintiffs did no t brief their claims of tortious infliction of emotional the United States District Court for the Southern District of distress, tortious interference with parental rights, or loss of consortium. Therefore, these claims are considered waived. See Fed. R. App. P. Ohio on May 3, 1999 on diversity of citizenship grounds. 28(a)(3) and (b); see also Ahlers v. Scheibil, 188 F.3d 365, 374 (6th Cir. 1999); Thaddeus-X v. Blatter, 175 F.3d 378, 403 (6th Cir. 1999) (en On September 26, 2000, the district court granted Wal- banc). In their Reply Brief, Plaintiffs affirmatively stated that they were Mart’s Motion for Partial Summary Judgment and dismissed voluntarily withdrawing their claim for age discrimination and appeal Plaintiffs’ statutory claims. See Derungs v. Wal-Mart Stores, only their sex discrimination claim. See Final Reply Brief of App ellants, p. 12.

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by summary judgment. Royal Geropsychiatric Services, Inc. plaintiff must still prove that the subclass of women was v. Thompkins, 159 F.3d 238 (6th Cir. 1998). unfavorably treated as compared to the corresponding subclass of men. Absent such a subclass, a plaintiff B. THE DISTRICT COURT’S RULING cannot establish sex discrimination. The district court determined that the thrust of the Ohio 141 F. Supp. at 890-91 (citations omitted; emphasis in Public Accommodation statute is the comparability of original). treatment. Finding no federal or Ohio state court decisions addressing the issue of whether a prohibition against breast- After reviewing the language of Section 4112.02(G) and the feeding in a place of public accommodation constitutes sex pertinent federal precedents, and finding no principled basis discrimination under Ohio Revised Code § 4112.02(G), the for distinguishing Ohio’s prohibition on the basis of sex by court looked to federal cases involving the issue of breast- places of public accommodation from the Title VII analysis feeding which addressed this issue in the context of the sex set forth above, the court concluded: discrimination prohibition in Title VII. The court discerned from these cases that [D]rawing distinctions among women. . . on the basis of their participation in breast-feeding activity, simply is not Title VII forbids gender discrimination in employment, the same as drawing distinctions between men and but gender discrimination by definition consists of women. . . . A prohibition against breast-feeding merely favoring men while disadvantaging women or vice versa. divides people into two groups: (1) women who breast- The drawing of distinctions among persons of one gender feed. . . ; and (2) individuals who do not breast-feed. . . . on the basis of criteria that are immaterial to the other, As noted above, although the first group includes while in given cases perhaps deplorable, is not the sort of exclusively women. . . the second group includes behavior covered by Title VII. members of both sexes. . . . If anything, such classifications establish “breast-feeding discrimination,” 141 F. Supp. 2d at 890 (quoting Martinez v. N.B.C., Inc., 49 which. . . is not discrimination on the basis of sex under F. Supp. 2d 305, 309 (S.D.N.Y. 1999)) (emphasis in original). the law. The lower court also determined that even if analyzed as a Id. at 893. “sex-plus” case, Plaintiffs failed to make out a prima facie claim of sex discrimination. Id. The court explained the Title Plaintiffs argue that the district court erred in applying a VII approach to “sex-plus” claims: Title VII analysis and argue here, as they did before the lower court, that the Public Accommodation statute is broader than “[S]ex-plus” discrimination. . . exists when a person is those provisions of the Ohio Civil Rights law prohibiting subjected to disparate treatment based not only on her employment discrimination, which they concede, are sex, but on her sex considered in conjunction with a analogous to Title VII. They claim that Section 4112.02(G) second characteristic. . . . does not require a showing that Wal-Mart discriminates against all women. It is enough, they argue, to show that . . . [I]n a “sex-plus” or “gender-plus” case, the Wal-Mart denies some women (i.e., women who wish to protected class need not include all women [but] the

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engage in breast-feeding) the full use and enjoyment of its Ohio Rev. Code § 4112.01(9) (emphasis added). facilities. When a federal court interprets state law, the substantive C. OHIO’S TEST FOR SEX DISCRIMINATION UNDER law of the state in which the district court sits must be § 4112.02(G) applied. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817 (1938); Jim White Agency Co. v. Nissan Motor Corp. in As an initial matter, we note, as did the district court, that USA, 126 F.3d 832 (6th Cir. 1997). If the state supreme court this case presents an issue of first impression, i.e., does a has spoken on the issue, its decision should be followed; if, prohibition against breast-feeding in a place of public however, the only precedent is from the state’s intermediate accommodation constitute unlawful discrimination under appellate courts, the intermediate court’s decision should be Ohio law. Plaintiffs here argue that the prohibition against followed absent a strong showing that the state supreme court sex discrimination in the Ohio Public Accommodation would act in a different manner. Lawler v. Fireman’s Fund statute, Ohio Rev. Code § 4112.02(G), should be construed so Ins. Co., 322 F.3d 900, 903 (6th Cir. 2003). as to render breast-feeding by a woman a protected activity under the statute. Both the Ohio State Legislature and the Ohio Supreme Court have stated that the Ohio civil rights statutes should be § 4112.02(G) of the Ohio Revised Code prohibits liberally construed. Ohio Rev. Code § 4112.08; Ohio Civil discrimination in places of public accommodation: Rights Commission v. Lysyj, 38 Ohio St. 2d 217, 220, 313 N.E.2d 3, 6 (1974), superseded by statute on other grounds, It shall be an unlawful discriminatory practice: Rice v. CertainTeed, Corp., 84 Ohio St. 3d 417, 704 N.E.2d 1217 (1999). There is, however, only one Ohio Supreme For any proprietor or any employee, keeper, or manager of Court case that has directly interpreted this particular section a place of public accommodation to deny to any person, of Chapter 4112. In Lysyj, 38 Ohio St. 2d at 217, the plaintiff except for reasons applicable alike to all persons regardless was a white woman who lived in a trailer park and was visited of race, color, religion, sex, national origin, disability, age by a black man at her trailer. She was asked that night to or ancestry, the full enjoyment of the accommodations, move out of the trailer park by the end of the month, and she advantages, facilities, or privileges of the place of public subsequently sued under § 4112.02(G). The Ohio Supreme accommodation. Court held that she had been discriminated against on account of her race. In reaching this conclusion, the Ohio court Ohio Rev. Code § 4112.(G). explained: “Place of public accommodation” is defined in When determining whether there has been unlawful § 4112.01(9) as discrimination under R.C. 4112.02(G), the test is simply any inn, restaurant, eating house, barbershop, public whether the proprietor, keeper, manager, or employee of conveyance by air, land, or water, theater, store, other a place of public accommodation has denied to any place for the sale of merchandise, or any other place of person the full enjoyment of such place for reasons not public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.

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applicable alike to all persons irrespective of race, color, of such a place in the same manner as all other religion, national origin or ancestry.2 customers. Id. at 221. Applying this construction of the statute, the Lysyj Meyers, 131 Ohio App. 3d at 104, 721 N.E.2d at 1083.3 court found that the discrimination at issue in the case was Notably, in both Meyers and Gegner there was a comparable based on the fact that a white resident was free to entertain class of people (males and whites, respectively) with which white guests without reprisal, but when the guest was black, to compare the plaintiffs, and the courts used a comparability the resident was ordered to leave the trailer park. Id. analysis in determining whether or not discrimination under the Public Accommodation statute occurred. Lower Ohio courts have also weighed in on the meaning of Ohio’s Public Accommodation statute. The first such case, D. TITLE VII AND THE OHIO PUBLIC Gegner v. Graham, 1 Ohio App. 2d 442, 205 N.E.2d 69 ACCOMMODATION STATUTE (1964), dealt with a black man who was refused service at a barbershop. The court interpreted the statute to be applicable The Ohio Supreme Court has adopted the federal courts’ to barbershops, and held that refusal to cut the hair of Title VII4 analysis when deciding employment discrimination someone that is black solely for the reason that he is black is claims under the Ohio Civil Rights statute. See Plumbers & plainly prohibited by § 4112.02(G). The Ohio Court of Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Appeals was also called upon to construe the statute in Comm’n, 66 Ohio St. 2d 192, 196, 421 N.E.2d 128, 131 Meyers v. Hot Bagels Factory, Inc., 131 Ohio App. 3d 82, (1981); see also Peters v. Lincoln Electric Co., 285 F.3d 456, 721 N.E.2d 1068 (1999). Meyers involved a woman’s claim 469 (6th Cir. 2002). Although the application of federal law that she was verbally harassed by the owner of a bagel shop is well settled in the context of employment discrimination, while in his store. While this decision only repeats the test for it has not been definitively settled by the Ohio courts in the discrimination that was provided in Lysyj, it does offer a context of discrimination in places of public accommodation. definition of what constitutes “full enjoyment of the accommodations, advantages, facilities, or privileges” within Our task is complicated by the fact that the Ohio legislature the meaning of § 4112.02(G): used different language in constructing Section 4112.02(G) than it used in constructing the other parts of Section 4112.02. We believe “full enjoyment” of the accommodations, That is, the other parts of the Section are phrased in the facilities, advantages, or privileges of a place of public language of Title VII in that they prohibit discrimination “on accommodation means the right to purchase all services or products of a place of public accommodation, the right to be admitted to any place of public accommodation, 3 One other unpub lished appe llate case , Lov e v. Ohio C ivil Rights and the right to have access to the services and products Comm’n, 1983 W L 6548 (Ohio App. 5 Dist.), also speaks to this issue. This case, however, only desc ribes “full enjoyment” as either denial of services or in terms of the treatment accorded. This was noted, considered, and incorporated into the definition adopted by the appe llate court in Meyers. 131 Ohio App. 3d at 104. 2 § 4112.02(G) was later am ended to include sex and age. It is 4 undisputed that the test announced in Lysyj is still applicable a fter this Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. amendm ent. §2000e.

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the basis of . . . .” Section 4112.02(G), on the other hand, The Plan, in effect (and for all that appears), is nothing prohibits any place of public accommodation from denying to more than an insurance package, which covers some any person the full enjoyment of the accommodations, risks but excludes others. . . . The “package” going to advantages, facilities, or privileges of the place of public relevant identifiable groups we are presently concerned accommodation, “except for reasons applicable alike to all with -- General Electric’s male and female employees -- persons regardless of race, color, religion, sex, national origin, covers exactly the same categories of risk, and is facially disability, age or ancestry.” Ohio Rev. Code § 4112.02(G). nondiscriminatory in the sense that there is no risk from Ohio courts have not considered whether federal courts’ Title which men are protected and women are not. Likewise, VII analysis is equally applicable to Section 4112.02(G). there is no risk from which women are protected and men Nevertheless, a close analysis of the statute and its history are not. As there is no proof that the package is in fact reveals the likely legislative intent with respect to this aspect worth more to men than to women, it is impossible to of the statute. find any gender-based discriminatory effect in this scheme simply because women disabled as a result of 1. The Supreme Court’s Gilbert Decision, the Federal pregnancy do not receive benefits. . . . Pregnancy Discrimination Act, and the 1980 Amendments to the Ohio Civil Rights Statute Id. at 138 (internal citations and footnote omitted.) In dismissing the Plaintiffs’ claims in this case, the district Plaintiffs here claim that the district court’s reliance on the court relied on the Supreme Court’s decision in the rationale of this case was specifically erroneous because employment discrimination case of General Electric Co. v. Gilbert has been overruled by statute and subsequent Gilbert, 429 U.S. 125, 97 S. Ct. 401 (1976), and subsequent Supreme Court decisions. While the Plaintiffs are correct that lower federal court decisions specifically involving breast- the Court’s holding in Gilbert has been overruled, they are feeding. mistaken that the comparability analysis used by the Supreme Court has been completely obliterated in all factual contexts. In Gilbert, the Court held that discrimination based on pregnancy was not discrimination within the meaning of Title In 1978, in response to the Supreme Court’s decision in VII. The specific issue in Gilbert was whether Title VII Gilbert, Congress passed the Pregnancy Discrimination Act prohibits excluding pregnancy-related disabilities from an (the “PDA”), 42 U.S.C. § 2000e(k), which effectively employer’s disability benefit plan. Upon review, the Supreme overruled the holding in Gilbert. The PDA provides that, for Court concluded that such an exclusion did not constitute purposes of employment discrimination under Title VII, the unlawful discrimination on the basis of sex. In reaching this phrases “because of sex” and “on the basis of sex” conclusion, the Gilbert Court stated that “we have here no specifically include pregnancy, childbirth, and related medical question of excluding a disease or disability comparable in all conditions.5 other respects to covered diseases or disabilities and yet confined to the members of one race or sex.” Gilbert, 429 U.S. at 136. The Court noted that pregnancy is confined to 5 42 U .S.C. § 20 00e(k) provide s, in pertinent part, as follows: women, but reasoned that the disability insurance package did not discriminate against women by virtue of its exclusion of For purposes of this subchapter [i.e., Subchapter VI of Title VII, pregnancy-related disabilities from its coverage explaining: “Equal Emplo yment Opportunities”] --

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The first Supreme Court case that subsequently interpreted to the passage of the Civil Rights Act of 1964. After the the PDA was Newport News Shipbuilding & Dry Dock Co. v. Supreme Court’s 1976 decision in Gilbert and Congressional EEOC, 462 U.S. 669, 675, 103 S.Ct. 2622 (1983). In passage of the PDA in 1978, the Ohio legislature adopted Newport News, the Court was faced with an employer’s § 4112.01(B) in 1980. This amendment to the definitions benefit plan that covered both employees and spouses, but section of Chapter 4112 redefined the terms “because of sex” gave pregnancy benefits only to female employees, and did and “on the basis of sex” to incorporate the language of the not cover pregnancy for the (female) spouses of male PDA, yet in doing so made the new definition applicable only employees. The Court held that Title VII mandates to § 4112.02(A) – (F), and thus not to the public pregnancy benefit coverage for either both employees and accommodation section, § 4112.02(G).6 However, when the spouses of employees, or neither employees nor spouses. In Ohio Legislature amended the “because of sex” and “on the so doing, the Court specifically construed the Congressional basis of sex” definition, Gilbert had not been expressly history of the PDA and determined that the intent of Congress overruled by the Supreme Court. Newport News came three in adopting the PDA was to specifically overrule Gilbert. years later. But after Newport News, the Legislature again The Court found that, although congressional discussion of declined the opportunity to extend the amended “because of the PDA focused on the needs of female members of the work sex” and “on the basis of sex” definition to places of public force rather than spouses of male employees, “[t]his d[id] not accommodation.7 create a ‘negative inference’ limiting the scope of the Act to the specific problem that motivated its enactment.” 462 U.S. Having incorporated the PDA’s language almost verbatim at 679, 103 S.Ct. at 2629. Thus, the Court concluded that the into the definitional provisions of § 4112, it is clear to us that Newport News benefit plan discriminated against male the Ohio Legislature was aware of the meaning and rationale employees “because of their sex” because it afforded less comprehensive protection to married male employees than it afforded to married female employees. 6 § 41 12.0 1(B ) provides, in pertine nt part: The timing of this sequence of development of law concerning the inclusion of pregnancy discrimination within For the purposes of divisions (A) to (F) of Section 4112.02 of the Revised Code, the terms “because of sex” or “on the basis of sex” the scope of federal employment discrimination law is include, but are not limited to, because of or on the basis of important in determining the Ohio Legislature’s intent pregnancy, any illness arising out of and occurring d uring the course regarding Section 4112.02(G). Ohio adopted § 4112.02 prior of a pregnancy, childb irth, or related m edical cond itions. W omen affected by pregnancy, childbirth, or related medical cond itions shall be treated the same for all emplo yment-related purp oses . . . .

7 The terms “because of sex” or “on the basis of sex” include, but It is not as if the O hio Le gislature has igno red the Civil Rights are not limited to, beca use of or on the basis of pre gnancy, statute. The Ohio Le gislature, in fact, has thrice amended the C ivil Rights childb irth or related medical conditions; and women affected by statute since adding the PD A language to the definitional section of the pregnancy, childbirth or related medical conditions shall be statute. See 1990 H 314 (amending provisions o f the civil rights statute’s treated the same for all employme nt-related purpo ses, including provisions regarding age disc rimination); see also 199 9 H 264 , eff. receipt of benefits under fringe benefit programs, as other 3-17-00 (changing the statutory term “handicap” to “disability”); 1992 H persons not so affected but similar in their ab ility or inability to 321, eff. 6-30-92 (adding provisions prohibiting discrimination in housing work, and nothing in section 20002 -2(h) o f this title shall be accommo dations on the basis of familial status, and provisions prohibiting interpreted to perm it otherwise. . . . additional forms of housing discrimination against handicapped persons).

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of Gilbert, as well as being aware of the PDA. The First, contrary to the Plaintiffs’ reading, the statutory Legislature made a conscious choice to extend the definition language plainly requires a comparable class of people for of discrimination to include pregnancy even though there comparison to demonstrate discrimination. For a prohibition cannot be a class of similarly situated males. In making this to be permissible if it is “applicable alike to all persons,” there choice, however, the Legislature extended the definition of is a linguistic necessity for a comparison. Therefore, for there discrimination in the employment context only. Because of to be impermissible sex discrimination, there must be one the timing and language of § 4112.01(B), it appears that the gender that is treated differently than another. Feeding Ohio Legislature purposely chose to limit the scope of infants is not something that only one parent may accomplish, protection of “pregnancy, childbirth and related medical and even the feeding of breast milk may be done by either conditions” to the employment context and not to extend that parent from a bottle. Because the only restriction Wal-Mart protection to places of public accommodation. It would be placed on their business invitees was a prohibition on the particularly inappropriate for this federal court to legislate place and manner of feeding that has no comparable class for additional protection in an area where the state legislature has comparison, Wal-Mart’s prohibition does not violate the plain chosen not to extend protection. Therefore, to the extent that language of § 4112.02(G). breast-feeding may be deemed to be a pregnancy-related activity, there is no protection for such an activity under Ohio The second reason that the Plaintiff’s expansive reading Revised Code § 4112.02(G). fails is that in the few Ohio cases that have dealt with this statutory language, the courts have consistently relied on a E. THE DISTRICT COURT DID NOT ERR IN USING A comparison analysis to demonstrate or deny discrimination. TITLE VII COMPARABILITY ANALYSIS IN RULING For example, in the leading case of Ohio Civil Rights ON DEFENDANT’S MOTION FOR SUMMARY Commission v. Lysyj, supra, 38 Ohio St. 2d 217, 318 N.E.2d JUDGMENT 3, the Ohio Supreme Court found that a trailer park operator had engaged in unlawful discrimination under § 4112.02(G) 1. Ohio Courts Apply a Comparability Analysis in Deciding by comparing the treatment afforded a white trailer park Cases Brought Under Ohio Revised Code § 4112.02(G). resident after she was visited by white guests to the treatment she was afforded after being visited by a black person. Id., 38 The district court used a traditional Title VII disparate Ohio St. 2d at 221, 313 N.E.2d at 6. Similarly, in Gegner v. treatment comparability analysis in deciding that Plaintiffs Graham, supra, 1 Ohio App. 2d 442, 205 N.E.2d 69, the Ohio had not made out any legally cognizable claim of sex Court of Appeals compared the treatment of a barbershop’s discrimination. Plaintiffs claim that this was erroneous and black customers and white customers in finding sufficient argue here, as they did in the lower court, that the disparate evidence of record to support the Civil Rights Commission’s treatment analysis should play no role in deciding claims determination that denying a black man a haircut on account under Ohio Revised Code § 4112.02(G). They argue that the of his race was discrimination within the meaning of statute is unique and that because it precludes discrimination § 4112.02(G). Id., 1 Ohio App. 2d at 446, 205 N.E.2d at 72. “except for reasons alike to all persons” the statute is intended Finally, in Meyers v. Hot Bagels Factory, Inc., supra, 131 to be more expansive than its employment discrimination and Ohio App. 3d 82, 72 N.E.2d 1068, a comparison was made like counterparts in sub-sections (A)-(F) of the Civil Rights between male customers and female customers of the bagel Act, and, therefore, no comparability analysis is required. We shop. Id., 131 Ohio App. 3d at 103, 721 N.E.2d at 1082. cannot credit this argument. Furthermore, the Meyers court specifically construed the

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statute as requiring a comparability analysis: “The thrust of We specifically used a comparability analysis in our the statute [§ 4112.02(G)], by its terms, is the comparability unpublished decision affirming the district court’s judgment of treatment.” Id. (emphasis added). In sum, there have been in Wallace (“[B]ecause Wallace fails to cite evidence showing no cases decided by any Ohio court which have advocated or that [her employer] treated women less favorably than men adopted Plaintiff’s interpretation that a comparison of with respect to requests for leaves of absence, she does not treatment is not required in order to find discrimination under meet her burden.” 1991 WL 270823 at *2). § 4112.02(G). Furthermore, when breast-feeding has come up in 2. Other “Breast-feeding Discrimination” Cases Apply a employment contexts outside of the Sixth Circuit, it has also Comparability Analysis been deemed outside the bounds of sex discrimination. In Martinez v. N.B.C., Inc., 49 F. Supp. 2d 305 (S.D.N.Y. 1999), The necessity of a comparability analysis has been the plaintiff alleged sex discrimination based on her universally accepted in other breast-feeding cases in the employer’s failure to provide a location for her to pump employment context. In the leading case within the Sixth breast milk. The district court there analyzed her claim as a Circuit, Wallace v. Pyro Mining Co., 789 F. Supp. 867 (W.D. “sex-plus” type of discrimination,8 utilizing the traditional Ky. 1990), aff’d, 951 F.2d 351, 1991 WL 270823 (6th Cir. McDonnell Douglas/Burdine9 disparate treatment paradigm. 1991) (unpublished decision; text available on WESTLAW), The court ultimately granted the employer’s motion for the court considered a plaintiff’s claim that she was summary judgment finding that the lack of a similarly- discriminated against when her employer denied her personal situated class of men was fatal to the plaintiff’s claim: “[I]f leave to continue breast-feeding her child once her maternity there is no comparable subclass of members of the opposite leave was exhausted. In that case, the district court applied gender, the requisite comparison to the opposite gender is the analysis used by the Supreme Court in Gilbert and impossible.” 49 F. Supp. 2d at 310. The Tenth Circuit has determined that the employer’s denial of the plaintiff’s made a similar determination: “[G]ender-plus plaintiffs can request for personal leave to continue breast-feeding did not never be successful if there is no corresponding subclass of constitute discrimination on the basis of sex or violate the members of the opposite gender. Such plaintiffs cannot make PDA explaining: We see no significant difference between the situation in Gilbert and the case here. Pyro’s decision does not 8 “Sex-plus” discrim ination e xists when a person is subjec ted to deny anyone personal leave on the basis of sex -- it disparate treatment based not only on her sex, but on her sex considered merely removes one situation, breast-feeding, from those in conjunction with a second characteristic. See e.g., Phillips v. M artin for which personal leave will be granted. While breast- Ma rietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496 (19 71). Under a “sex- plus” theory o f discrimination, it is imperm issible to treat men feeding, like pregnancy, is a uniquely female attribute, characterized by some additional characteristic more or less favora bly excluding breast-feeding from those circumstances for than women with the same adde d cha racteristic. See, Fischer v. Vassar which Pyro will grant personal leave is not impermissible College, 70 F.3d 142 0, 14 48 (2d C ir. 199 5), on reh’g en banc, 114 F.3d gender discrimination, under the principles set forth in 133 2 (2d Cir. 199 7), cert. denied, 522 U.S. 107 5 (1998 ). Gilbert. 9 Mc Do nne ll Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 789 F. Supp. at 869. (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (198 1).

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the requisite showing that they were treated differently from medically required to breast-feed her child that was born with similarly situated members of the opposite gender.” Coleman a cleft lip and palate in order for the child to survive. Despite v. B-G Maintenance Management, 108 F.3d 1199, 1204 (10th this, the court rejected Plaintiff’s PDA claim because the Cir. 1997). PDA was held to only protect medical conditions of the mother, not of the child. All of the above-cited cases arose pursuant to Title VII and the expansive “because of sex” and “on the basis of sex” The significance of these decisions lies in the fact that the definition PDA, which, as shown, has not been incorporated PDA is meant to be more expansive in scope than the into Section 4112.02(G). Yet it is worth noting that, despite language in Ohio Revised Code § 4112.02(G), as explained the application of the expansive PDA language, none of the above. Nevertheless, breast-feeding was still consistently district or appellate courts found that breast-feeding fell found to be outside its broad coverage. If breast-feeding is not within the scope of gender discrimination because of the covered by the PDA, which specifically overturned Gilbert absence of a comparable class. Indeed, both Wallace and and widened the protective umbrella of Title VII, we find it Martinez directly cite to Gilbert as controlling authority for extremely unlikely that in the context of public their decisions even though they deal with employment cases accommodation, which appears to still be governed by after the passage of the PDA. Gilbert under Ohio law, an Ohio court would find regulation of breast-feeding to be prohibited as sex discrimination. It is clear from the foregoing, that no judicial body thus far has been willing to take the expansive interpretive leap to IV. CONCLUSION include rules concerning breast-feeding within the scope of sex discrimination. For all of the foregoing reasons, we conclude that the district court did not err in determining that Wal-Mart’s Finally, it is instructive to observe that in other cases prohibition against breast-feeding in a place of public involving discretionary leaves of absence for breast-feeding accommodation did not violate Ohio Revised Code purposes, courts have uniformly held that rules relating to § 4112.02(G). Accordingly, the district court’s grant of regulation of breast-feeding do not violate the PDA or Title summary judgment in favor of Defendant is AFFIRMED. VII. For example, in Barrash v. Bowen, 846 F.2d 927 (4th Cir. 1988), a female employee claimed that she had been discriminated against within the meaning of the PDA by being denied leave to breast-feed, and subsequently being terminated for failure to return to work. The Fourth Circuit disposed of her PDA claim in a single sentence: “Under the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k), pregnancy and related conditions must be treated as illnesses only when incapacitating.” Id. at 931. Even in cases where there was a medical necessity to breast-feed, an employer did not run afoul of the PDA when an employee was denied leave to do so. In McNill v. New York City Dep’t of Correction, 950 F.Supp. 564 (S.D.N.Y. 1996), the Plaintiff mother was