Dana R. Derungs v. Wal-Mart Stores, Inc.

*The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0203P (6th Cir.)
File Name: 04a0203p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DANA R. DERUNGS; DEVIN
DERUNGS, a minor; JENNIFER
GORE; AUSTIN GORE, a
minor; ANGIE BAIRD;
KASSIDEE BAIRD, a minor,
Plaintiffs-Appellants,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
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No. 01-3498
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 99-00190—Walter H. Rice, District Judge.
Argued: August 5, 2003
Decided and Filed: June 30, 2004
Before: BOGGS, Chief Judge; RYAN, Circuit Judge;
ROSEN, District Judge.*
2 Derungs, et al. v. Wal-Mart Stores No. 01-3498
_________________
COUNSEL
ARGUED: Susan M. Brasier, FALKE & DUNPHY, Dayton,
Ohio, for Appellants. Gregory S. Muzingo, Bentonville,
Arizona, for Appellee. ON BRIEF: Susan M. Brasier,
FALKE & DUNPHY, Dayton, Ohio, for Appellants. Carolyn
K. Seymour, Bradley A. Sherman, DUVIN, CAHN &
HUTTON, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
ROSEN, District Judge.
I. INTRODUCTION
Plaintiffs/Appellants Dana Derungs, Jennifer Gore and
Angie Baird appeal the district court’s grant of summary
judgment in favor of Defendant/Appellee Wal-Mart Stores,
Inc. (“Wal-Mart”), on their claim that Wal-Mart discriminated
against them on the basis of their sex in violation of the Ohio
Public Accommodation statute, Ohio Revised Code
§ 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
that under the specific provisions and legislative history of the
Ohio Public Accommodation statute, restrictions on breast-
feeding do not amount to discrimination based on sex, we
affirm the district court’s judgment.
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
dressing room. She was prohibited from doing so by a Wal-
Mart employee and told that she had the option of breast-

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 3
feeding her son either in the restroom or outside the store. In
response, Ms. Derungs left the store with her son.
Plaintiff Jennifer Gore had a similar experience in another
Wal-Mart store. On November 8, 1997, Ms. Gore was
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
Austin but was interrupted by a Wal-Mart employee who told
her she was not permitted to breast-feed her son in the store.
The employee informed Ms. Gore that she could breast-feed
her son in the restroom, or she could leave the store. She
voluntarily left the store with her son.
Plaintiff Angie Baird also attempted to breast-feed her child
in the Trotwood, Ohio Wal-Mart store. On February 18,
1999, Ms. Baird attempted to breast-feed her daughter,
Kassidee Baird, on a bench near the portrait studio in the
Trotwood Wal-Mart store. Like her co-plaintiffs, Ms. Baird
was interrupted by a store employee and informed that she
could either breast-feed in the restroom or had to leave the
store. She, too, elected to leave the store with her child.
On March 31, 1999, Dana Derungs, Devin Derungs,
Jennifer Gore and Austin Gore filed a complaint in Ohio state
court alleging that in refusing to permit Ms. Derungs and Ms.
Gore to breast-feed their children, Wal-Mart discriminated
against them on the basis of sex and age under Ohio Revised
Code § 4112.02(G). Plaintiffs also alleged three common-law
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,
as party-plaintiffs. Wal-Mart timely removed the action to
the United States District Court for the Southern District of
Ohio on May 3, 1999 on diversity of citizenship grounds.
On September 26, 2000, the district court granted Wal-
Mart’s Motion for Partial Summary Judgment and dismissed
Plaintiffs’ statutory claims. See Derungs v. Wal-Mart Stores,
4 Derungs, et al. v. Wal-Mart Stores No. 01-3498
1Plaintiffs did no t brief their claims of tortious infliction of emotional
distress, tortious interference with parental rights, or loss of consortium.
Therefore, these claims are considered waived. See Fed. R. App. P.
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
banc). In their Reply Brief, Plaintiffs affirmatively stated that they were
voluntarily withdrawing their claim for age discrimination and appeal
only their sex discrimination claim. See Final Reply Brief of App ellants,
p. 12.
Inc., 141 F. Supp. 2d 884 (S.D. Ohio 2000). Then, on March
15, 2001, Wal-Mart’s Motion for Summary Judgment on the
remaining common-law claims was granted, and a Final
Judgment was entered on April 11, 2001. Plaintiffs timely
filed a Notice of Appeal.1
III. DISCUSSION
A. STANDARD OF REVIEW
The standard of review applicable to the district court’s
decision to grant Defendant’s Motion for Summary Judgment
is de novo. Darrah v. City of Oak Park, 255 F.3d 301, 305
(6th Cir. 2001); see also Peters v. Lincoln Electric Co., 285
F.3d 456, 465 (6th Cir. 2002). Summary judgment is proper
if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.”
See Blankenship v. Parke Care Centers, Inc., 123 F.3d 868,
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
Wal-Mart employees, while in the course of their
employment, denied the Plaintiffs the opportunity to breast-
feed in public inside Wal-Mart stores. The question is
whether this is discriminatory conduct within the meaning of
Ohio Revised Code § 4112.02(G). Therefore, this is strictly
an issue of statutory construction which is properly resolved

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 5
by summary judgment. Royal Geropsychiatric Services, Inc.
v. Thompkins, 159 F.3d 238 (6th Cir. 1998).
B. THE DISTRICT COURT’S RULING
The district court determined that the thrust of the Ohio
Public Accommodation statute is the comparability of
treatment. Finding no federal or Ohio state court decisions
addressing the issue of whether a prohibition against breast-
feeding in a place of public accommodation constitutes sex
discrimination under Ohio Revised Code § 4112.02(G), the
court looked to federal cases involving the issue of breast-
feeding which addressed this issue in the context of the sex
discrimination prohibition in Title VII. The court discerned
from these cases that
Title VII forbids gender discrimination in employment,
but gender discrimination by definition consists of
favoring men while disadvantaging women or vice versa.
The drawing of distinctions among persons of one gender
on the basis of criteria that are immaterial to the other,
while in given cases perhaps deplorable, is not the sort of
behavior covered by Title VII.
141 F. Supp. 2d at 890 (quoting Martinez v. N.B.C., Inc., 49
F. Supp. 2d 305, 309 (S.D.N.Y. 1999)) (emphasis in original).
The lower court also determined that even if analyzed as a
“sex-plus” case, Plaintiffs failed to make out a prima facie
claim of sex discrimination. Id. The court explained the Title
VII approach to “sex-plus” claims:
“[S]ex-plus” discrimination. . . exists when a person is
subjected to disparate treatment based not only on her
sex, but on her sex considered in conjunction with a
second characteristic. . . .
. . . [I]n a “sex-plus” or “gender-plus” case, the
protected class need not include all women [but] the
6 Derungs, et al. v. Wal-Mart Stores No. 01-3498
plaintiff must still prove that the subclass of women was
unfavorably treated as compared to the corresponding
subclass of men. Absent such a subclass, a plaintiff
cannot establish sex discrimination.
141 F. Supp. at 890-91 (citations omitted; emphasis in
original).
After reviewing the language of Section 4112.02(G) and the
pertinent federal precedents, and finding no principled basis
for distinguishing Ohio’s prohibition on the basis of sex by
places of public accommodation from the Title VII analysis
set forth above, the court concluded:
[D]rawing distinctions among women. . . on the basis of
their participation in breast-feeding activity, simply is not
the same as drawing distinctions between men and
women. . . . A prohibition against breast-feeding merely
divides people into two groups: (1) women who breast-
feed. . . ; and (2) individuals who do not breast-feed. . . .
As noted above, although the first group includes
exclusively women. . . the second group includes
members of both sexes. . . . If anything, such
classifications establish “breast-feeding discrimination,”
which. . . is not discrimination on the basis of sex under
the law.
Id. at 893.
Plaintiffs argue that the district court erred in applying a
Title VII analysis and argue here, as they did before the lower
court, that the Public Accommodation statute is broader than
those provisions of the Ohio Civil Rights law prohibiting
employment discrimination, which they concede, are
analogous to Title VII. They claim that Section 4112.02(G)
does not require a showing that Wal-Mart discriminates
against all women. It is enough, they argue, to show that
Wal-Mart denies some women (i.e., women who wish to

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 7
engage in breast-feeding) the full use and enjoyment of its
facilities.
C. OHIO’S TEST FOR SEX DISCRIMINATION UNDER
§ 4112.02(G)
As an initial matter, we note, as did the district court, that
this case presents an issue of first impression, i.e., does a
prohibition against breast-feeding in a place of public
accommodation constitute unlawful discrimination under
Ohio law. Plaintiffs here argue that the prohibition against
sex discrimination in the Ohio Public Accommodation
statute, Ohio Rev. Code § 4112.02(G), should be construed so
as to render breast-feeding by a woman a protected activity
under the statute.
§ 4112.02(G) of the Ohio Revised Code prohibits
discrimination in places of public accommodation:
It shall be an unlawful discriminatory practice:
For any proprietor or any employee, keeper, or manager of
a place of public accommodation to deny to any person,
except for reasons applicable alike to all persons regardless
of race, color, religion, sex, national origin, disability, age
or ancestry, the full enjoyment of the accommodations,
advantages, facilities, or privileges of the place of public
accommodation.
Ohio Rev. Code § 4112.(G).
“Place of public accommodation” is defined in
§ 4112.01(9) as
any inn, restaurant, eating house, barbershop, public
conveyance by air, land, or water, theater, store, other
place for the sale of merchandise, or any other place of
public accommodation or amusement of which the
accommodations, advantages, facilities, or privileges are
available to the public.
8 Derungs, et al. v. Wal-Mart Stores No. 01-3498
Ohio Rev. Code § 4112.01(9) (emphasis added).
When a federal court interprets state law, the substantive
law of the state in which the district court sits must be
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
USA, 126 F.3d 832 (6th Cir. 1997). If the state supreme court
has spoken on the issue, its decision should be followed; if,
however, the only precedent is from the state’s intermediate
appellate courts, the intermediate court’s decision should be
followed absent a strong showing that the state supreme court
would act in a different manner. Lawler v. Fireman’s Fund
Ins. Co., 322 F.3d 900, 903 (6th Cir. 2003).
Both the Ohio State Legislature and the Ohio Supreme
Court have stated that the Ohio civil rights statutes should be
liberally construed. Ohio Rev. Code § 4112.08; Ohio Civil
Rights Commission v. Lysyj, 38 Ohio St. 2d 217, 220, 313
N.E.2d 3, 6 (1974), superseded by statute on other grounds,
Rice v. CertainTeed, Corp., 84 Ohio St. 3d 417, 704 N.E.2d
1217 (1999). There is, however, only one Ohio Supreme
Court case that has directly interpreted this particular section
of Chapter 4112. In Lysyj, 38 Ohio St. 2d at 217, the plaintiff
was a white woman who lived in a trailer park and was visited
by a black man at her trailer. She was asked that night to
move out of the trailer park by the end of the month, and she
subsequently sued under § 4112.02(G). The Ohio Supreme
Court held that she had been discriminated against on account
of her race. In reaching this conclusion, the Ohio court
explained:
When determining whether there has been unlawful
discrimination under R.C. 4112.02(G), the test is simply
whether the proprietor, keeper, manager, or employee of
a place of public accommodation has denied to any
person the full enjoyment of such place for reasons not

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 9
2§ 4112.02(G) was later am ended to include sex and age. It is
undisputed that the test announced in Lysyj is still applicable after this
amendm ent.
applicable alike to all persons irrespective of race, color,
religion, national origin or ancestry.2
Id. at 221. Applying this construction of the statute, the Lysyj
court found that the discrimination at issue in the case was
based on the fact that a white resident was free to entertain
white guests without reprisal, but when the guest was black,
the resident was ordered to leave the trailer park. Id.
Lower Ohio courts have also weighed in on the meaning of
Ohio’s Public Accommodation statute. The first such case,
Gegner v. Graham, 1 Ohio App. 2d 442, 205 N.E.2d 69
(1964), dealt with a black man who was refused service at a
barbershop. The court interpreted the statute to be applicable
to barbershops, and held that refusal to cut the hair of
someone that is black solely for the reason that he is black is
plainly prohibited by § 4112.02(G). The Ohio Court of
Appeals was also called upon to construe the statute in
Meyers v. Hot Bagels Factory, Inc., 131 Ohio App. 3d 82,
721 N.E.2d 1068 (1999). Meyers involved a woman’s claim
that she was verbally harassed by the owner of a bagel shop
while in his store. While this decision only repeats the test for
discrimination that was provided in Lysyj, it does offer a
definition of what constitutes “full enjoyment of the
accommodations, advantages, facilities, or privileges” within
the meaning of § 4112.02(G):
We believe “full enjoyment” of the accommodations,
facilities, advantages, or privileges of a place of public
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,
and the right to have access to the services and products
10 Derungs, et al. v. Wal-Mart Stores No. 01-3498
3One other unpub lished appe llate case, Love v. Ohio C ivil Rights
Comm’n, 1983 W L 6548 (Ohio App. 5 Dist.), also speaks to this issue.
This case, however, only describes “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.
4Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§2000e.
of such a place in the same manner as all other
customers.
Meyers, 131 Ohio App. 3d at 104, 721 N.E.2d at 1083.3
Notably, in both Meyers and Gegner there was a comparable
class of people (males and whites, respectively) with which
to compare the plaintiffs, and the courts used a comparability
analysis in determining whether or not discrimination under
the Public Accommodation statute occurred.
D. TITLE VII AND THE OHIO PUBLIC
ACCOMMODATION STATUTE
The Ohio Supreme Court has adopted the federal courts’
Title VII4 analysis when deciding employment discrimination
claims under the Ohio Civil Rights statute. See Plumbers &
Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights
Comm’n, 66 Ohio St. 2d 192, 196, 421 N.E.2d 128, 131
(1981); see also Peters v. Lincoln Electric Co., 285 F.3d 456,
469 (6th Cir. 2002). Although the application of federal law
is well settled in the context of employment discrimination,
it has not been definitively settled by the Ohio courts in the
context of discrimination in places of public accommodation.
Our task is complicated by the fact that the Ohio legislature
used different language in constructing Section 4112.02(G)
than it used in constructing the other parts of Section 4112.02.
That is, the other parts of the Section are phrased in the
language of Title VII in that they prohibit discrimination “on

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 11
the basis of . . . .” Section 4112.02(G), on the other hand,
prohibits any place of public accommodation from denying to
any person the full enjoyment of the accommodations,
advantages, facilities, or privileges of the place of public
accommodation, “except for reasons applicable alike to all
persons regardless of race, color, religion, sex, national origin,
disability, age or ancestry.” Ohio Rev. Code § 4112.02(G).
Ohio courts have not considered whether federal courts’ Title
VII analysis is equally applicable to Section 4112.02(G).
Nevertheless, a close analysis of the statute and its history
reveals the likely legislative intent with respect to this aspect
of the statute.
1. The Supreme Court’s Gilbert Decision, the Federal
Pregnancy Discrimination Act, and the 1980
Amendments to the Ohio Civil Rights Statute
In dismissing the Plaintiffs’ claims in this case, the district
court relied on the Supreme Court’s decision in the
employment discrimination case of General Electric Co. v.
Gilbert, 429 U.S. 125, 97 S. Ct. 401 (1976), and subsequent
lower federal court decisions specifically involving breast-
feeding.
In Gilbert, the Court held that discrimination based on
pregnancy was not discrimination within the meaning of Title
VII. The specific issue in Gilbert was whether Title VII
prohibits excluding pregnancy-related disabilities from an
employer’s disability benefit plan. Upon review, the Supreme
Court concluded that such an exclusion did not constitute
unlawful discrimination on the basis of sex. In reaching this
conclusion, the Gilbert Court stated that “we have here no
question of excluding a disease or disability comparable in all
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
women, but reasoned that the disability insurance package did
not discriminate against women by virtue of its exclusion of
pregnancy-related disabilities from its coverage explaining:
12 Derungs, et al. v. Wal-Mart Stores No. 01-3498
542 U .S.C. § 20 00e(k) provide s, in pertinent part, as follows:
For purposes of this subchapter [i.e., Subchapter VI of Title VII,
“Equal Emplo yment Opportunities”] --
The Plan, in effect (and for all that appears), is nothing
more than an insurance package, which covers some
risks but excludes others. . . . The “package” going to
relevant identifiable groups we are presently concerned
with -- General Electric’s male and female employees --
covers exactly the same categories of risk, and is facially
nondiscriminatory in the sense that there is no risk from
which men are protected and women are not. Likewise,
there is no risk from which women are protected and men
are not. As there is no proof that the package is in fact
worth more to men than to women, it is impossible to
find any gender-based discriminatory effect in this
scheme simply because women disabled as a result of
pregnancy do not receive benefits. . . .
Id. at 138 (internal citations and footnote omitted.)
Plaintiffs here claim that the district court’s reliance on the
rationale of this case was specifically erroneous because
Gilbert has been overruled by statute and subsequent
Supreme Court decisions. While the Plaintiffs are correct that
the Court’s holding in Gilbert has been overruled, they are
mistaken that the comparability analysis used by the Supreme
Court has been completely obliterated in all factual contexts.
In 1978, in response to the Supreme Court’s decision in
Gilbert, Congress passed the Pregnancy Discrimination Act
(the “PDA”), 42 U.S.C. § 2000e(k), which effectively
overruled the holding in Gilbert. The PDA provides that, for
purposes of employment discrimination under Title VII, the
phrases “because of sex” and “on the basis of sex”
specifically include pregnancy, childbirth, and related medical
conditions.5

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 13
The terms “because of sex” or “on the basis of sex” include, but
are not limited to, beca use of or on the basis of pregnancy,
childb irth or related medical conditions; and women affected by
pregnancy, childbirth or related medical conditions shall be
treated the same for all employme nt-related purpo ses, including
receipt of benefits under fringe benefit programs, as other
persons not so affected but similar in their ability or inability to
work, and nothing in section 20002 -2(h) o f this title shall be
interpreted to perm it otherwise. . . .
The first Supreme Court case that subsequently interpreted
the PDA was Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U.S. 669, 675, 103 S.Ct. 2622 (1983). In
Newport News, the Court was faced with an employer’s
benefit plan that covered both employees and spouses, but
gave pregnancy benefits only to female employees, and did
not cover pregnancy for the (female) spouses of male
employees. The Court held that Title VII mandates
pregnancy benefit coverage for either both employees and
spouses of employees, or neither employees nor spouses. In
so doing, the Court specifically construed the Congressional
history of the PDA and determined that the intent of Congress
in adopting the PDA was to specifically overrule Gilbert.
The Court found that, although congressional discussion of
the PDA focused on the needs of female members of the work
force rather than spouses of male employees, “[t]his d[id] not
create a ‘negative inference’ limiting the scope of the Act to
the specific problem that motivated its enactment.” 462 U.S.
at 679, 103 S.Ct. at 2629. Thus, the Court concluded that the
Newport News benefit plan discriminated against male
employees “because of their sex” because it afforded less
comprehensive protection to married male employees than it
afforded to married female employees.
The timing of this sequence of development of law
concerning the inclusion of pregnancy discrimination within
the scope of federal employment discrimination law is
important in determining the Ohio Legislature’s intent
regarding Section 4112.02(G). Ohio adopted § 4112.02 prior
14 Derungs, et al. v. Wal-Mart Stores No. 01-3498
6§ 41 12.0 1(B ) provides, in pertinent part:
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”
include, but are not limited to, because of or on the basis of
pregnancy, any illness arising out of and occurring during the course
of a pregnancy, childbirth, 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 . . . .
7It is not as if the O hio Le gislature has igno red the Civil Rights
statute. The Ohio Le gislature, in fact, has thrice amended the C ivil Rights
statute since adding the PD A language to the definitional section of the
statute. See 1990 H 314 (amending provisions o f the civil rights statute’s
provisions regarding age discrimination); see also 199 9 H 264 , eff.
3-17-00 (changing the statutory term “handicap” to “disability”); 1992 H
321, eff. 6-30-92 (adding provisions prohibiting discrimination in housing
accommo dations on the basis of familial status, and provisions prohibiting
additional forms of housing discrimination against handicapped persons).
to the passage of the Civil Rights Act of 1964. After the
Supreme Court’s 1976 decision in Gilbert and Congressional
passage of the PDA in 1978, the Ohio legislature adopted
§ 4112.01(B) in 1980. This amendment to the definitions
section of Chapter 4112 redefined the terms “because of sex”
and “on the basis of sex” to incorporate the language of the
PDA, yet in doing so made the new definition applicable only
to § 4112.02(A) – (F), and thus not to the public
accommodation section, § 4112.02(G).6 However, when the
Ohio Legislature amended the “because of sex” and “on the
basis of sex” definition, Gilbert had not been expressly
overruled by the Supreme Court. Newport News came three
years later. But after Newport News, the Legislature again
declined the opportunity to extend the amended “because of
sex” and “on the basis of sex” definition to places of public
accommodation.7
Having incorporated the PDA’s language almost verbatim
into the definitional provisions of § 4112, it is clear to us that
the Ohio Legislature was aware of the meaning and rationale

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 15
of Gilbert, as well as being aware of the PDA. The
Legislature made a conscious choice to extend the definition
of discrimination to include pregnancy even though there
cannot be a class of similarly situated males. In making this
choice, however, the Legislature extended the definition of
discrimination in the employment context only. Because of
the timing and language of § 4112.01(B), it appears that the
Ohio Legislature purposely chose to limit the scope of
protection of “pregnancy, childbirth and related medical
conditions” to the employment context and not to extend that
protection to places of public accommodation. It would be
particularly inappropriate for this federal court to legislate
additional protection in an area where the state legislature has
chosen not to extend protection. Therefore, to the extent that
breast-feeding may be deemed to be a pregnancy-related
activity, there is no protection for such an activity under Ohio
Revised Code § 4112.02(G).
E. THE DISTRICT COURT DID NOT ERR IN USING A
TITLE VII COMPARABILITY ANALYSIS IN RULING
ON DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
1. Ohio Courts Apply a Comparability Analysis in Deciding
Cases Brought Under Ohio Revised Code § 4112.02(G).
The district court used a traditional Title VII disparate
treatment comparability analysis in deciding that Plaintiffs
had not made out any legally cognizable claim of sex
discrimination. Plaintiffs claim that this was erroneous and
argue here, as they did in the lower court, that the disparate
treatment analysis should play no role in deciding claims
under Ohio Revised Code § 4112.02(G). They argue that the
statute is unique and that because it precludes discrimination
“except for reasons alike to all persons” the statute is intended
to be more expansive than its employment discrimination and
like counterparts in sub-sections (A)-(F) of the Civil Rights
Act, and, therefore, no comparability analysis is required. We
cannot credit this argument.
16 Derungs, et al. v. Wal-Mart Stores No. 01-3498
First, contrary to the Plaintiffs’ reading, the statutory
language plainly requires a comparable class of people for
comparison to demonstrate discrimination. For a prohibition
to be permissible if it is “applicable alike to all persons,” there
is a linguistic necessity for a comparison. Therefore, for there
to be impermissible sex discrimination, there must be one
gender that is treated differently than another. Feeding
infants is not something that only one parent may accomplish,
and even the feeding of breast milk may be done by either
parent from a bottle. Because the only restriction Wal-Mart
placed on their business invitees was a prohibition on the
place and manner of feeding that has no comparable class for
comparison, Wal-Mart’s prohibition does not violate the plain
language of § 4112.02(G).
The second reason that the Plaintiff’s expansive reading
fails is that in the few Ohio cases that have dealt with this
statutory language, the courts have consistently relied on a
comparison analysis to demonstrate or deny discrimination.
For example, in the leading case of Ohio Civil Rights
Commission v. Lysyj, supra, 38 Ohio St. 2d 217, 318 N.E.2d
3, the Ohio Supreme Court found that a trailer park operator
had engaged in unlawful discrimination under § 4112.02(G)
by comparing the treatment afforded a white trailer park
resident after she was visited by white guests to the treatment
she was afforded after being visited by a black person. Id., 38
Ohio St. 2d at 221, 313 N.E.2d at 6. Similarly, in Gegner v.
Graham, supra, 1 Ohio App. 2d 442, 205 N.E.2d 69, the Ohio
Court of Appeals compared the treatment of a barbershop’s
black customers and white customers in finding sufficient
evidence of record to support the Civil Rights Commission’s
determination that denying a black man a haircut on account
of his race was discrimination within the meaning of
§ 4112.02(G). Id., 1 Ohio App. 2d at 446, 205 N.E.2d at 72.
Finally, in Meyers v. Hot Bagels Factory, Inc., supra, 131
Ohio App. 3d 82, 72 N.E.2d 1068, a comparison was made
between male customers and female customers of the bagel
shop. Id., 131 Ohio App. 3d at 103, 721 N.E.2d at 1082.
Furthermore, the Meyers court specifically construed the

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 17
statute as requiring a comparability analysis: “The thrust of
the statute [§ 4112.02(G)], by its terms, is the comparability
of treatment.” Id. (emphasis added). In sum, there have been
no cases decided by any Ohio court which have advocated or
adopted Plaintiff’s interpretation that a comparison of
treatment is not required in order to find discrimination under
§ 4112.02(G).
2. Other “Breast-feeding Discrimination” Cases Apply a
Comparability Analysis
The necessity of a comparability analysis has been
universally accepted in other breast-feeding cases in the
employment context. In the leading case within the Sixth
Circuit, Wallace v. Pyro Mining Co., 789 F. Supp. 867 (W.D.
Ky. 1990), aff’d, 951 F.2d 351, 1991 WL 270823 (6th Cir.
1991) (unpublished decision; text available on WESTLAW),
the court considered a plaintiff’s claim that she was
discriminated against when her employer denied her personal
leave to continue breast-feeding her child once her maternity
leave was exhausted. In that case, the district court applied
the analysis used by the Supreme Court in Gilbert and
determined that the employer’s denial of the plaintiff’s
request for personal leave to continue breast-feeding did not
constitute discrimination on the basis of sex or violate the
PDA explaining:
We see no significant difference between the situation
in Gilbert and the case here. Pyro’s decision does not
deny anyone personal leave on the basis of sex -- it
merely removes one situation, breast-feeding, from those
for which personal leave will be granted. While breast-
feeding, like pregnancy, is a uniquely female attribute,
excluding breast-feeding from those circumstances for
which Pyro will grant personal leave is not impermissible
gender discrimination, under the principles set forth in
Gilbert.
789 F. Supp. at 869.
18 Derungs, et al. v. Wal-Mart Stores No. 01-3498
8“Sex-plus” discrim ination exists when a person is subjected to
disparate treatment based not only on her sex, but on her sex considered
in conjunction with a second characteristic. See e.g., Phillips v. M artin
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
characterized by some additional characteristic more or less favora bly
than women with the same adde d cha racteristic. See, Fischer v. Vassar
College, 70 F.3d 142 0, 14 48 (2d C ir. 199 5), on reh’g en banc, 114 F.3d
133 2 (2d Cir. 199 7), cert. denied, 522 U.S. 107 5 (1998 ).
9Mc Do nne ll Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817
(1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101
S.Ct. 1089 (198 1).
We specifically used a comparability analysis in our
unpublished decision affirming the district court’s judgment
in Wallace (“[B]ecause Wallace fails to cite evidence showing
that [her employer] treated women less favorably than men
with respect to requests for leaves of absence, she does not
meet her burden.” 1991 WL 270823 at *2).
Furthermore, when breast-feeding has come up in
employment contexts outside of the Sixth Circuit, it has also
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 plaintiff alleged sex discrimination based on her
employer’s failure to provide a location for her to pump
breast milk. The district court there analyzed her claim as a
“sex-plus” type of discrimination,8 utilizing the traditional
McDonnell Douglas/Burdine9 disparate treatment paradigm.
The court ultimately granted the employer’s motion for
summary judgment finding that the lack of a similarly-
situated class of men was fatal to the plaintiff’s claim: “[I]f
there is no comparable subclass of members of the opposite
gender, the requisite comparison to the opposite gender is
impossible.” 49 F. Supp. 2d at 310. The Tenth Circuit has
made a similar determination: “[G]ender-plus plaintiffs can
never be successful if there is no corresponding subclass of
members of the opposite gender. Such plaintiffs cannot make

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No. 01-3498 Derungs, et al. v. Wal-Mart Stores 19
the requisite showing that they were treated differently from
similarly situated members of the opposite gender.” Coleman
v. B-G Maintenance Management, 108 F.3d 1199, 1204 (10th
Cir. 1997).
All of the above-cited cases arose pursuant to Title VII and
the expansive “because of sex” and “on the basis of sex”
definition PDA, which, as shown, has not been incorporated
into Section 4112.02(G). Yet it is worth noting that, despite
the application of the expansive PDA language, none of the
district or appellate courts found that breast-feeding fell
within the scope of gender discrimination because of the
absence of a comparable class. Indeed, both Wallace and
Martinez directly cite to Gilbert as controlling authority for
their decisions even though they deal with employment cases
after the passage of the PDA.
It is clear from the foregoing, that no judicial body thus far
has been willing to take the expansive interpretive leap to
include rules concerning breast-feeding within the scope of
sex discrimination.
Finally, it is instructive to observe that in other cases
involving discretionary leaves of absence for breast-feeding
purposes, courts have uniformly held that rules relating to
regulation of breast-feeding do not violate the PDA or Title
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
20 Derungs, et al. v. Wal-Mart Stores No. 01-3498
medically required to breast-feed her child that was born with
a cleft lip and palate in order for the child to survive. Despite
this, the court rejected Plaintiff’s PDA claim because the
PDA was held to only protect medical conditions of the
mother, not of the child.
The significance of these decisions lies in the fact that the
PDA is meant to be more expansive in scope than the
language in Ohio Revised Code § 4112.02(G), as explained
above. Nevertheless, breast-feeding was still consistently
found to be outside its broad coverage. If breast-feeding is not
covered by the PDA, which specifically overturned Gilbert
and widened the protective umbrella of Title VII, we find it
extremely unlikely that in the context of public
accommodation, which appears to still be governed by
Gilbert under Ohio law, an Ohio court would find regulation
of breast-feeding to be prohibited as sex discrimination.
IV. CONCLUSION
For all of the foregoing reasons, we conclude that the
district court did not err in determining that Wal-Mart’s
prohibition against breast-feeding in a place of public
accommodation did not violate Ohio Revised Code
§ 4112.02(G). Accordingly, the district court’s grant of
summary judgment in favor of Defendant is AFFIRMED.

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