Ralph F. Abbott, Jr., Editor; Susan G. Fentin and Marylou V. Fabbo, Associate Editor
Skoler, Abbott, & Presser

Vol. 19, No. 5
August 2008

EMPLOYEE RIGHTS

To grant leave or not: Are men eligible for MMLA time off?

The Massachusetts Maternity Leave Act (MMLA), which provides for eight weeks of unpaid leave to give birth, adopt a child under 18, or adopt a physically or mentally disabled child under 23, clearly states that it applies only to "women." But that doesn't necessarily mean you should refuse MMLA leave to men should they request it. In fact, providing leave to members of one gender but not the other may be a form of sex discrimination. The commissioner of the Massachusetts Commission Against Discrimination (MCAD), Martin B. Ebel, recently announced his office's intention to begin applying the MMLA equally to women and men. To find out what effect that new directive has, read on.

New take on an old law

The statutory language of the MMLA is unambiguous: Maternity leave applies to women only. In keeping with the statute, MCAD had previously taken the position that men weren't entitled to "paternity" leave under state law and that women-only maternity leave policies weren't discriminatory. Although the statutory language remains unchanged, MCAD recently decided to flip its position to now require gender neutrality in all parental leave policies.

Indeed, under Commissioner Ebel's new directive, MCAD will entertain sex discrimination claims against employers that adopt women-only maternity leave policies. The commissioner recently warned that if employers adopt maternity leave policies that apply to women only or if they deny men leave under a valid parental leave policy, MCAD will deem their conduct discriminatory under state law.

The commissioner's newly announced directive will likely have implications for same-sex spouses in the Commonwealth as well. According to MCAD's previous position, two women in a same-sex marriage would have each been entitled to take leave under the MMLA, while two married men, like all men, wouldn't. Under the directive, that no longer is the case.

The commissioner stated that he was aware of and "troubled" by the inequities that existed for same-sex parents under MCAD's old policy, and he based the new directive, at least in part, on the reasoning of Goodridge v. Dept. of Public Health, the landmark case that legalized same-sex marriage in Massachusetts. Under the directive, MCAD has taken the position that all parents should be entitled to MMLA leave, regardless of gender and sexual orientation.

Can MCAD even do this?

Although Commissioner Ebel's po- sition provides guidance on what MCAD will do when faced with male employees claiming denial of parental leave, the courts and the legislature have the final word on whether men are truly protected by a statute that expressly applies only to women. Indeed, some view the new directive as the agency overstepping its bounds, while others view it as the agency's attempt to efficiently bring an archaic law up to date with societal norms. Whatever the case may be, you should be aware of MCAD's change in position to avoid facing potential liability for not providing MMLA leave equally.

Perhaps not that big a surprise

Although the commissioner's new stance is a significant change in how MCAD will look at parental leave cases, it's by no means unexpected. The Equal Employment Opportunity Commission (EEOC), the state agency's federal counterpart, has stated for years that women-only maternity leave policies are a form of sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

Indeed, until now, your maternity leave policy could have been lawful in the eyes of MCAD, yet subject to liability at the EEOC. Since Massachusetts is generally at the forefront of employee-friendly workplace regulation, it's surprising that it actually took this long to catch up.

Don't believe everything on the Internet

The commissioner informally announced the new MMLA directive to a crowd of surprised attorneys in early June and stressed that the policy would go into immediate effect. However, MCAD has yet to update its website, which still advises employers that they can deny men maternity leave without facing liability under state law. As a result, employers that weren't within earshot of the commissioner during his announcement may be getting misinformation from the government website and unknowingly violating the MCAD's position on the law.

What should you do now?

Now that you're aware of MCAD's position, consider granting employees leave under the MMLA regardless of their gender to avoid any discrimination claims. In addition, review your MMLA policy to make sure it complies with the change.

Timothy C. Cavazza is an associate at the firm of Skoler, Abbott & Presser, P.C. He can be reached at (413) 737-4753 or tcavazza@skoler-abbott.com.

You can research parental leave or any other employment law topic in the subscribers' area of www.HRhero.com, the website for Massachusetts Employment Law Letter. Access to this online library is included in your newsletter subscription at no additional charge.

Copyright 2008 M. Lee Smith Publishers LLC

MASSACHUSETTS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Massachusetts employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.