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					__________________________
                                    In The

                 Supreme Court of the United States
                            ______________________



                                LaNisha Allen,

                                                  Petitioner,
                                      V.

                          Totes/Isotoner Corporation,

                                                 Respondents.



                             ___________
                     On Writ of Certiorari to the
                    United States Court of Appeals
                         For the First Circuit
                             ___________
                    BRIEF FOR RESPONDENTS
                             ___________




Counsel of Record

Counsel for Respondents
                               TABLE OF CONTENTS
TABLE OF AUTHORITEIS

STATEMENT OF THE ISSUES                                                         1

STATEMENT OF THE CASE                                                           1

ARGUMENT                                                                        3

  I.     The plaintiffs claim does not fall under the Pregnancy
         Discrimination Act.                                                    3
         A. Lactation is considered a condition of breastfeeding,
             not of being pregnant.                                             3
  II.    The plaintiffs claim does not fall under the Federal-
         Employment Discrimination Statute.                                     4
         A. Breastfeeding and lactation are not considered
             disabilities.                                                      4
         B. Breastfeeding and lactation discrimination is not
             considered sex discrimination                                      5
         C. Lactation and breastfeeding is still under debate if it
             should be linked with pregnancy and the Pregnancy
             Discrimination Act                                                 5
         D. Laws of lactation discrimination needs to be clarified              7
  III.   To state that a woman is “disabled” because she is lactating
         provokes the perpetuating stereotypes and attitudes toward
         working women                                                          8
         A. Paternalistic attitudes of working women still exist                8
         B. Women’s rights activists would not agree with treating
             pregnancy as a disability                                          9
  IV.    The plaintiff can’t prove the intent of her termination was due
         to discrimination from her employers                                   9
         A. Failure to follow directions is a legitimate reason for discharge   9
         B. Employers were understanding toward employees condition,
             but their rules were not followed                                  10
         C. The plaintiff was not pregnant at the time of her termination       11
         D. All employees had authorized break times                            11
         E. The plaintiff must prove this is a prima facie case in order to
             prove discrimination                                               12

CONCLUSION                                                                      13



Counsel for Respondents
                                 TABLE OF AUTHORITIES

Cases:

Bond v Sterling Inc and Kay Jewelers Inc 997 F. Supp. 306; 1998 U.S. Dist. LEXIS 3103

Derungs v Walmart 374 F.3d 428; 2004 U.S. App. LEXIS 13439; 2004 FED App.

Nevada Department of Human Resources v. William Hibbs 538 U.S. 721; 123 S. Ct. 1972; 155
      L. Ed. 2d 953; 2003 U.S. LEXIS 4272

Simpson v Des Moines Water Works 425 F.3d 538; 2005 U.S. App. LEXIS 21883; 17 Am.
      Disabilities Cas. (BNA) 225

St Mary’s Honor Ctr. v Hicks 509 U.S. 502; 113 S. Ct. 2742; 125 L. Ed. 2d 407; 1993 U.S.
       LEXIS 4401

Statutes:

Federal-Employment discrimination statute (42 USCS § 1983)

Pregnancy Discrimination Act (7 USCS § 01978)

Law Reviews:

Duke Journal of Gender Law and Policy “Implicit Gender Bias in the Legal Profession: An
Empirical Study” 18 Duke J. Gender L. & Pol'y 1

Georgetown Journal of Gender and the Law “THE CAUSAL RELATIONSHIP OF SEX,
PREGNANCY, LACTATION, AND BREASTFEEDING AND THE MEANING OF
"BECAUSE OF . . . SEX" UNDER TITLE VII” 12 Geo. J. Gender & L. 119

Ohio State Law Journal “Pumping at Work: Protection from Lactation Discrimination in the
Workplace” 71 Ohio St. L.J. 1281




Counsel for Respondents
Counsel for Respondents
                                  STATEMENT OF THE ISSUES

1. Did the plaintiff prove that the reason of termination was a prima facie case?

2. Did the district and appellate courts reasonably rule in favor of the company because the

plaintiffs claims didn’t fall under PDA or FED statute?

3. Did the district and appellate courts reasonably dismiss with prejudice the claim that the

reason for the plaintiffs termination was not discrimination based?

                                   STATEMENT OF THE CASE

        The case of Allen v. Totes/Isotoner Corporation was one that came out of Ohio. LaNisa

Allen was fired from her job after not following authority by taking extra breaks that were

unauthorized from her boss. These breaks were used to pump milk for her child whom was

breastfeeding at the time. Because of this Allen says that the company fired her because of sex

discrimination and claims for wrongful termination. Her argument is that she was lactating,

which is an uncontrollable physiological symptom that is linked with pregnancy. Therefore she

feels this is a violation of the Pregnancy Discrimination Act, as well as sex discrimination

because pregnancy and breast feeding are circumstances that only apply to women.

        This case was first brought to trial in Ohio, in which the court ruled in favor of

Totes/Isotoner. This was due to the fact that breastfeeding discrimination did not fall under Ohio

state law because it was seen as a choice, and not a trait of pregnancy or gender. Accordingly,

the court reasoned: "Because the PDA is part of Title VII and derives its substance and

procedures from the Act as a whole, a claim of pregnancy discrimination, like any other claim of

discrimination under Title VII, may be based either on a theory of disparate treatment or a theory

of disparate impact.” In order to show disparate treatment or disparate impact, the plaintiff must first

show sufficiant evidence that this was a prima facie desperate treatment.



Counsel for Respondents
       The Twelfth District Court of Appeals ruled that Allen had failed to establish a prima

facie case of sex discrimination on the basis of pregnancy, and it concluded that Allen's

termination does not violate Ohio public policy against discrimination on the basis of pregnancy.

In order to establish a prima facie case for disparate treatment based upon pregnancy

discrimination in the workplace, the plaintiff must have show that she was pregnant, that she

satisfactorily performed the duties required by the position for which she was hired, that she was

discharged, and that her position was ultimately filled by an employee who was not pregnant. If

Allen was able to prove all of these things then the burden of production shifts to the employer to

articulate a legitimate, nondiscriminatory reason for its treatment of the plaintiff, however she

failed to complete this task.

       In the case of St Mary’s Honor Ctr. v Hicks, an African American employee was

terminated from his job, and claimed the reason to be intentional racial discrimination which is in

violation of title VII. The court actually reversed the appellate court decision, because after

Hicks proved that this was a prima facie case the employer and his defendants were able to prove

that the reason for termination was not discriminatory or relating to race. The court reversed the

judgment holding that the employee was entitled to judgment as a matter of law. This case is an

example of how intent of the employer is a very important component to cases like this.

        Allen argued that the break policy discriminates against lactating women because other

employees are able to use the bathroom freely to attend to bodily functions like menstruation and

urination. Allen however was not forbidden to take similar breaks, nor had she presented any

evidence that any other employee routinely used the bathroom for 15-minute breaks on a

scheduled basis each day like she did. Thus, the record in this case would not support a

reasonable jury's verdict in Allen's favor on a disparate-treatment theory. Summary judgment



Counsel for Respondents
was properly entered against her. The appellate court ruled that Allen "was simply and plainly

terminated as an employee at will for taking an unauthorized, extra break."

        Upon appeal, Ohio Supreme Court focused on the question of whether or not Allen had

presented enough evidence to discredit Totes/Isotoner’s claim that she was fired for

insubordination. If the employer carries its burden of articulating a legitimate, nondiscriminatory

reason for its employment decision, Allen must then be able to prove that the employer's stated

nondiscriminatory reasons were a pretext for impermissible discrimination. Allen is not only

bringing her claims under Ohio state law, but the Pregnancy Discrimination Act and Title IIV as

well. Because of the most recent appeal, the Supreme Court is to address whether Allen’s

experience breastfeeding at work really does raises the pregnancy and discriminatory issues.


                                          ARGUMENT

   I.      THE PLAINTIFFS CLAIM DOES NOT FALL UNDER THE PREGNANCY

           DISCRIMINATION ACT

               A. Lactation is considered a condition of breastfeeding, not of being

                   pregnant.

               The Pregnancy Discrimination Act “prohibits discrimination on the basis of

        pregnancy.” In this case, Allen was not fired while she was pregnant. This is evidence

        that the employers were not being discriminatory in anyway. Allen gave birth over five

        months prior to her being fired from Isotoner. Pregnant women who give birth and chose

        not to breastfeed or pump their breasts do not continue to lactate for five months.

        Therefore, Allen's condition of lactating was not a condition relating to pregnancy but

        rather a condition related to breastfeeding. Lactation is a physical condition associated

        with pregnancy and childbirth. The FEPA, which was amended by the Ohio PDA,

Counsel for Respondents
        prohibits discrimination against females because they are lactating. Clarification of this

        law is necessary, but if read as it is, it can be interpreted that lactation is not included as a

        part of pregnancy, due to the fact that Allen was no longer pregnant.

  II.       THE PLAINTIFFS CLAIM DOES NOT FALL UNDER THE FEDERAL-

            EMPLOYMENT DISCRIMINATION STATUTE

            A. Breastfeeding and lactation are not considered disabilities.

                There is an issue of whether pregnancy and lactation are disabilities for purposes

        of disability-discrimination analysis, and I would have to say that they are not. Under the

        Federal Employment Discrimination Statute, it states that it is illegal for employers of

        America to discriminate against age, disability, national origin, race, religion, or sex. In

        this case the only argument that Allen could make is the discrimination based on a

        disability. Breastfeeding however, is not considered a disability. The definition of a

        handicap, or disability, is as follows; A condition that markedly restricts a person's ability

        to function physically, mentally, or socially. Pregnancy has been determined as a

        handicap and there have been acts laws and statutes put in place to include this as a

        restriction. However, after the baby is born, and maternity leave is taken, there is no

        longer a restriction on your ability to function in the work place.

                Like stated earlier, Allen gave birth over five months prior to her being fired from

        Isotoner, therefore she had no restriction on completing her tasks in the work place. In

        the case of Bond v Sterling Inc and Kay Jewlers, the employee brought a claim against

        her employer declaring sex, disability and pregnancy-based discrimination in violation of

        federal and New York State statutes. The employee claimed that her need to breast-feed

        her child constituted a disability and that her dismissal on the basis of the disability was



Counsel for Respondents
     unlawful. The court found that the employee's status as a breast-feeding mother did not

     constitute a disability because there was no abnormal functioning of the body or a tissue

     or organ. This case is evidence that breast feeding is not considered a disability,

     therefore Ms. Allen can’t use disability discrimination to justify her case.

        B. Breastfeeding and lactation discrimination is not considered sex

            discrimination.

            Breastfeeding discrimination does not constitute gender discrimination. In

     Derungs v Walmart, the customers filed a law suit against the owner after they were told

     by store employees that they could not breast-feed their children in the store. They were

     asked to either breast-feed in the restroom or leave the store. The court held that the

     district court properly entered summary judgment in favor of the owner because, under

     the specific provisions and legislative history of the Ohio Public Accommodations

     statute. This case in turn adds to the case of Allen because it ruled that restrictions on

     breast-feeding did not amount to discrimination based on sex.

        C. Lactation and breast feeding is still under debate if it should be linked with

            pregnancy and the Pregnancy Discrimination Act.

            According to the Georgetown Journal of Gender and the Law, the district court

     finds breastfeeding, like that of pregnancy, to be gender-neutral, even though the district

     court specifically recognizes that breastfeeding and pregnancy are "exclusively female

     attributes ," meaning men do not obtain this quality, therefore it can be seen as sexual

     discrimination. Even if lactation, breastfeeding, and expression of milk were not

     considered to be medical conditions related to pregnancy and childbirth, this would




Counsel for Respondents
     simply mean that these actions or conditions were not entitled to the protections against

     discrimination found in the Pregnancy Discrimination Act.


            The duty of accommodation provides important protections to employees beyond

     the protection provided by the anti-discrimination laws; for example, if a duty to

     accommodate pregnancy were explicitly included in or read into the antidiscrimination

     laws, it would no longer be true that pregnant women could be treated as badly as anyone

     else, because employers would be required to take their pregnancy into account in

     making employment decisions, just as employers are required to take an employee's

     religion or disability into account in certain situations. The courts have generally shown

     considerable reluctance to providing rights to lactating and breastfeeding mothers against

     discrimination in the workplace, rejecting those rights by following disfavored and

     overruled precedent and counterintuitive conclusions about the lack of a causal

     relationship between sex, pregnancy, lactation, and breastfeeding.


            The PDA amended Title VII's definition of sex discrimination to include

     pregnancy discrimination: The terms "because of sex" or "on the basis of sex" include,

     but are not limited to, because of or on the basis of pregnancy, childbirth, or related

     medical conditions; and women affected by pregnancy, childbirth, or related medical

     conditions shall be treated the same for all employment-related purposes, as other persons

     not so affected but similar in their ability or inability to work . A focus on lactation,

     rather than breastfeeding, and a plain language argument of the PDA are still necessary to

     ensure that lactating women who choose to exercise their rights under Health Care

     Reform to express milk in the workplace are protected from discrimination on that basis.



Counsel for Respondents
         D. Laws of lactation discrimination needs to be clarified.


             The record, as it was developed in the trial court, fails to provide a basis from

     which a jury could come to the conclusion that Isotoner's legitimate, nondiscriminatory

     reason for Allen's termination, failure to follow directions, was a pretext for

     discrimination based on Allen's pregnancy or a condition related to her pregnancy. This

     determination defeats Allen's sex-discrimination claim under as a matter of law, and,

     accordingly, the trial court properly granted summary judgment to Isotoner.

     Consequently, this court does not reach the issue whether alleged discrimination due to

     lactation is included within the scope of Ohio's employment-discrimination statute, as sex

     discrimination under Derungs v Walmart that was referred to earlier. In the finding of

     this case, the court found that postpartum lactation and the discomfort associated with it

     are not disabilities.

             The federal PDA explicitly expanded the terms that “women affected by

     pregnancy, childbirth, or related medical conditions shall be treated the same for all

     employment-related purposes as other persons not so affected but similar in their ability

     or inability to work,” however, the court is very reluctant in considering lactation a

     medical condition related to pregnancy due to the fact that it is not a physical handicap

     that will affect the way the job is done in the work place. The Ohio PDA generally states

     the same thing, and like the federal PDA, the language is very broad and neither

     incorporates or excludes lactation from this statute.

             As the trial court found, lactation is obviously is linked to breastfeeding. But

     given the physiological aspects of lactation, there can be trouble in trying to conclude that

     lactation also has a clear, undeniable relationship with that of pregnancy and with that of


Counsel for Respondents
         childbirth. Therefore, it necessarily follows that lactation is "because of or on the basis of

         pregnancy" and that women who are lactating are women "affected by pregnancy or

         childbirth." The fact of the matter however, is the time frame aspect. Five months after

         giving birth is when she was officially terminated. She was given proper maternity leave

         time to take care of family needs. Five months there should be no affect on Allen from

         pregnancy or child birth.



  III.      TO STATE THAT A WOMAN IS “DISABLED” BECAUSE SHE IS

            LACTATING PROVOKES THE PERPETUATING STEREOTYPES AND

            ATTITUDES TOWARDS WORKING WOMEN

            A. Paternalistic attitudes of working women still exist.

                According to Duke Journal of Gender law and policy, Commentators have been in

         complete amazement at the ongoing lack of gender diversity in the legal professions and

         most honored positions. There was indeed an achievement of near equal numbers of

         male and female law school graduates for roughly the past two decades. There have also

         been approximately equal numbers in the gap between men and women in law firms,

         legal academia, and the judiciary remains stark. Many scholars have debated that due to

         the negative stereotypes portraying women either as “workplace cutthroats” or, on the

         contrary, as secretaries or housewives, decision-makers, and those in high positions

         continue to subordinate, and make women feel inferior to men in the highest levels of the

         legal profession. The study that was performed had results that were both concerning,

         but at the same time hopeful. As the researchers had predicted, they found that implicit

         biases were pervasive. A diverse group of both male and female law students implicitly



Counsel for Respondents
        associated judges with men, and associated women with the home and family.

        Participants were often able to resist the implicit biases and make decisions in gender

        neutral ways.

           B. Women’s rights activists would not agree with treating pregnancy as a

               disability.

               Like it was shown in the Duke Journal of Law and Policy, there is still a

        perpetuating stereotype of women in the work place. Women’s rights activists and many

        other women would agree that they would not want lactation, or pregnancy for that

        matter to be considered a disability. When fighting for women’s rights, these ladies

        claimed that as long as there is the reproduction factor there will be discrimination in

        which women will be the “lesser” of men. The fact that the court doesn’t view

        breastfeeding as a disability is actually doing the opposite of what Allen claims to be as

        discrimination, and it is making greater moves towards the equality in every aspect.

  IV.      THE PLAINTIFF CAN NOT PROVE THE INTENT OF HER TERMINATION

           WAS DUE TO DISCRIMINATION FROM HER EMPLOYERS

           A. Failure to follow directions is a legitimate reason for discharge.

               In the case of Simpson v Des Moines Water Works, the employee had sustained a

        permanent head injury with associated cognitive difficulties with post-traumatic stress

        disorder and claimed that this was the reason why he was terminated from his job. The

        employee pointed to no direct evidence that his mental impairment was a motivating

        factor in his discipline and eventual termination. It was actually undisputed that all

        employment action was the direct result of actions the employee took or failed to take.

        The employer stated that the disciplinary actions and ultimate termination were the result



Counsel for Respondents
     of his unexcused absences from work, his misuse of sick leave his leaving work early

     without supervisor approval and the findings of an investigation into a co-worker's

     allegations of sexual harassment. The employee was fired due to disobeying the rules of

     employment in which no discrimination was shown.


            The Ohio state law journal states that if employees attempted to attend to the need

     of breast feeding at work, they could be fired for it, as Allen was. The Breastfeeding

     Promotion Act had two major goals: One, to require employers to accommodate the

     needs of working mothers to express milk in the workplace, and two, to prohibit

     discrimination on the basis of breastfeeding and expressing milk in the workplace.

     However, the employers of Totes/Isotoner had no discriminatory motivations to the

     termination of Allen besides her disobeying their rules of employment. If Allen was

     taking unauthorized breaks for any other reason, not just for breast feeding, she still

     would have been fired for being insubordinate.


        B. Employers were understanding toward the employees’ condition, but their

            rules were not followed.


            In the case of Nevada Department of Human Resources v Hibbs, the employee

     sought leave under the Family and Medical Leave Act to care for his wife. Petitioners

     granted the employee's request but terminated him when he failed to return to work. The

     District Court determined that the employee could sue the State for money damages in

     federal court for violation of FMLA. The United States Court of Appeals for the Ninth

     Circuit reversed the district court's grant of summary judgment in favor of petitioners. In

     this case, congress also enacted the prophylactic legislation in order to prevent and deter


Counsel for Respondents
     gender-based discrimination in the work place. Corporations and companies, like that of

     Totes/Isotoner can be very understanding of family needs, but these needs should not be

     taken for granted. In the case of Allen, like the Nevada case, she abused her privileges

     by taking these breaks unauthorized.

        C. The plaintiff was not pregnant at the time of her termination.

            Many doctors can argue that lactation, which is the formation and secretion of

     milk by the mammary glands, is uncontrollable by the female body. They can argue that

     the production of milk is stimulated by the hormone prolactin. During pregnancy, the

     level of prolactin in a woman is inhibited by high levels of estrogen and progesterone.

     After delivery, levels of estrogen and progesterone in the woman fall while the level of

     prolactin remains high. Prolactin then stimulates and maintains the production of milk.

     All this is true of the female human body however this all refers to “during pregnancy.”

     Like mentioned before, Allen was fired well after she was pregnant, so her body

     physiologically and physically were not continuing these processes.

        D. All employees had authorized break times.

            Allen's claims of discrimination towards this company are based on a disparate-

     treatment theory. She declared that "the rule of work that she supposedly violated was

     the one that restricted the time she could pump her breast milk to her lunch break.” Allen

     states that Totes placed no restrictions on any other employee who needed to leave his or

     her workstation to tend to a bodily function or bodily discomfort, and claimed it was

     “only upon lactating women” and that the work rule was itself discriminatory, since it

     placed extra restrictions on women experiencing a physical act of pregnancy. The

     appellate court implicitly addressed that claim, saying that Allen "was simply and plainly



Counsel for Respondents
     terminated as an employee at will for taking an unauthorized, extra breaks that were

     unlike the restroom breaks that were authorized and available to all of the employees.”

     This is an obvious showing that Allen was fired due to the lack of following authority,

     which is in fact a general rule of thumb for being an employee. If in fact her breaks were

     authorized and she was still fired, then this would be a different case and in fact she

     would be able to bring this to the court as discrimination.


            Although Allen's unauthorized breaks may have been to pump milk, Allen could

     not properly engage in such actions without her employer's knowledge and permission.

     The FEPA and the PDA mandate that an employer treat pregnancy with neutrality, but

     not preferentially. The undisputed evidence is that Allen took unauthorized breaks from

     her work station, and Isotoner affirms that it discharged her for doing so, meaning there

     was no intent for discriminatory actions.

     E. The plaintiff must prove this is a prima facie case in order to prove

     discrimination.

            To establish a prima facie case of disability discrimination, the plaintiff must

     demonstrate (1) that she is disabled, (2) that an adverse employment action was taken by

     an employer, at least in part, because of the disability, and (3) that the plaintiff, though

     disabled, can safely and substantially perform the essential functions of the job in

     question.


            Legitimate, nondiscriminatory reasons in Ohio law include insubordination… If

     the employer carries its burden of articulating a legitimate, nondiscriminatory reason for




Counsel for Respondents
     its employment decision, the plaintiff must prove that the employer's stated

     nondiscriminatory reasons were a pretext for impermissible discrimination.


                                      CONCLUSION


            For the foregoing reasons, the District Court and Circuit Court of Appeals

     decisions should be affirmed.


            Respectfully submitted this 17th day of November, 2011.




Counsel for Respondents

				
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