The opinion
Grey, P.J.,
dissenting. I respectfully dissent.
I agree with the majority opinion that in a close case, the decision of the administrator must be upheld. However, any decision must be lawful, reasonable, and supported by some competent credible evidence.
The referee found that Tyler quit after being yelled at by her boss, and that this was not justification for quitting. Were this the only evidence in the case, I too would affirm. However, the
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record is replete with other evidence which mandates a finding of justification.
On the day of her firing, Tyler was about eight weeks pregnant and suffering from nausea and vomiting. She had to lie down and twice was refused permission to leave work. Finally, when the nausea and illness overcame Tyler she informed her boss, Castle, that she “was sick and was going home.” The fact that such a declaration by Tyler came on the heels of an altercation between Castle and herself in no way diminishes the fact that Tyler’s voluntary quit was for just cause.
R.C. 4112.02(A) provides:
“It shall be an unlawful discriminatory practice:
“(A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.”
Clearly, to flagrantly discriminate against a woman merely because she is pregnant is a violation of R.C. 4112.02(A). However, certain actions of employers, while not on their face discriminatory, may patently discriminate against pregnant women. Here, for example, to demand that a pregnant employee remain on the job when it is obvious that she is physically unable to do so, eventually causing her to voluntarily quit, clearly violates the spirit if not the letter of the above statute.
Thus, a pregnant woman or any individual with a temporary, debilitating illness is, in essence, caught between a rock and a hard place. A sick employee, if refused permission by a superior to leave work, has one of two choices. The individual can leave the workplace despite his superior’s orders. In that instance, the individual is deemed to have voluntarily quit without just cause and is ineligible for unemployment benefits. In the alternative, the employee can stay on the job, but because of the illness be unable to perform adequately. In that instance, the employee would be fired for just cause and again be ineligible for unemployment benefits.
Either way, the pregnant employee loses. I am firmly convinced that if men had babies, or if the employee’s medical condition was one common to middle-aged men such as angina, the result in this case would be exactly the opposite.
Thus I dissent.