           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-

                                   1
No. 01-3498          Derungs, et al. v. Wal-Mart Stores        3    4       Derungs, et al. v. Wal-Mart Stores                     No. 01-3498

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.
No. 01-3498         Derungs, et al. v. Wal-Mart Stores          5   6      Derungs, et al. v. Wal-Mart Stores            No. 01-3498

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
No. 01-3498          Derungs, et al. v. Wal-Mart Stores        7    8      Derungs, et al. v. Wal-Mart Stores         No. 01-3498

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.
No. 01-3498             Derungs, et al. v. Wal-Mart Stores               9    10       Derungs, et al. v. Wal-Mart Stores               No. 01-3498

  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.
No. 01-3498          Derungs, et al. v. Wal-Mart Stores        11    12        Derungs, et al. v. Wal-Mart Stores                   No. 01-3498

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”] --
No. 01-3498             Derungs, et al. v. Wal-Mart Stores                 13   14        Derungs, et al. v. Wal-Mart Stores                No. 01-3498

   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).
No. 01-3498          Derungs, et al. v. Wal-Mart Stores       15    16    Derungs, et al. v. Wal-Mart Stores            No. 01-3498

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
No. 01-3498            Derungs, et al. v. Wal-Mart Stores    17   18       Derungs, et al. v. Wal-Mart Stores               No. 01-3498

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).
No. 01-3498          Derungs, et al. v. Wal-Mart Stores      19    20    Derungs, et al. v. Wal-Mart Stores           No. 01-3498

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
