Posted on 08/02/2008 2:55:34 PM PDT by Lorianne
In what the employment bar is calling a “bombshell decision,” the MCAD has quietly announced it will apply the Massachusetts Maternity Leave Act to both women and men.
The revelation came at a recent Foley Hoag client event at which the guest speaker, MCAD Commissioner Martin B. Ebel, told the crowd of about 200 surprised lawyers and corporate officials that, effective immediately, his office plans to prosecute MMLA cases in a gender-neutral fashion.
In a follow-up interview with Lawyers Weekly, Ebel confirmed that he made the statements and that, for the first time in the history of the statute, the MCAD — based on developments on Beacon Hill and a decision by the Supreme Judicial Court — will now allow men to apply for MMLA maternity leave benefits.
“I’m not going to tell you how we are going to come out on every case, because it depends on the facts and circumstances presented,” he said. “But what we are saying is that if a man now walks in and makes a complaint, we are going to take that complaint and investigate it — which, yes, is something that wouldn’t have happened in the past.”
Ebel said his office has every right to do so even though the law clearly states that it applies only to women.
‘Radical change in the law’
James W. Bucking, a Foley Hoag partner who attended the event at which Ebel spoke in late May, said the announcement represents a complete reversal from previous MCAD interpretations of the statute, which requires that female employees be given eight weeks of unpaid leave when they give birth or adopt a child.
“It was shocking to hear that they are making a conscious decision to apply the law to men even though the statute, on its face, explicitly only applies to women,” he noted. “I said to [Ebel] that it sounds like a radical change in the law by the MCAD, and his answer was, ‘I agree with you, but we think it needs to be done.’”
Ebel denied ever referring to the changes as “radical.”
Regardless, Bucking said the MCAD’s new stance clearly contradicts the agency’s own guidelines on the subject, which state: “The express language of the MMLA provides leave only for female employees. Therefore, the MCAD will not assume jurisdiction over claims by male employees seeking leave.” (See sidebar.)
“Based on what was said at the meeting, I reluctantly stood up and asked [Ebel] some pointed questions, because our concern is that while the MCAD has certain legal authority to interpret the law, they do not have the authority to re-write it, which is what they’ve done here,” he said.
Bucking, who has written a book on Massachusetts employment law, added that the commission cannot “saddle employers with a new benefit that has not been passed by the Legislature. So the idea that a client of mine could be subjected to significant legal fees to defend a complaint that is simply and obviously not covered by the statute is outrageous.”
Unlike the federal Family and Medical Leave Act, which allows for men to take paternity leave but only applies to businesses with 50 or more employees, Bucking said the MMLA covers a much broader class of employers.
Insufficient notice
With so many businesses potentially affected, Bucking said that employers looking to avoid the stigma of an MCAD complaint should make immediate changes to their office policies and employee handbooks.
“We are in the process of putting together a client alert so that those clients that weren’t [at the meeting] will be apprised of this development and made aware of how it could affect them,” he said.
At a minimum, Bucking said, the MCAD should have provided the employment bar and the business community sufficient notice of the changes.
“They’re now saying that employers are going to be liable for violating a maternity-leave law by not giving paternity leave, and an employer would have no way of knowing this unless they went to our seminar,” he said.
John F. Tocci of Boston’s Tocci, Goss & Lee, who served on a Massachusetts Bar Association subcommittee that helped promulgate the MCAD’s most recent guidelines in 2000, also questioned the manner in which the latest development was announced.
“My surprise and concern is that they did so without gathering comments and eliciting feedback from the business community, and at least the bar,” he said. “They have always done that in the past whenever they have made a significant change to the guidelines.”
Shouldn’t come as surprise
In response to concerns about the lack of notice, Ebel said that the news should come as no surprise to attorneys or their clients. “For a long time, savvy lawyers have been informing their clients that there was a potential pitfall here in this area of the law in Massachusetts,” he said. “I’ve heard it at MCLE, where I have been an attendee, not a presenter. And for quite some time, people have suggested in this legal community that there is danger in advising your management clients that the MMLA only applies to women, even though the statute says women, and even though the commission had up until now issued guidelines that said otherwise.”
Ebel said recent legislative and judicial developments require the statute to be applied to men, despite the fact that it is entitled “maternity” leave.
He cited an MMLA amendment that expanded leave to parents who adopt, and the SJC’s landmark Goodridge v. Dept. of Public Health decision, which legalized same-sex marriage, as grounds for making the modifications.
“If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute,” Ebel pointed out. “That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.”
Ebel added that the decision was made after the MCAD decided in October 2007 to allow a man, Rory Bloom, to pursue an MMLA claim against his employer, Metrowest Medical Center.
Bloom, who is not represented by counsel, declined comment until his MCAD case is decided.
In response to criticism raised by those who believe the MCAD overstepped its bounds by changing the law, Ebel said his office enjoys broad discretion.
“I read my charge broadly from the Legislature, and that is to enforce even-handedly the laws of the commonwealth. And for me that means that it has to include reading a facially gender-biased statute in terms that are gender-neutral,” he said.
Not that government wouldn't be trying some other way to meddle in private affairs if this issue didn't exist ... but still.
If this covered married men only, there would be no problem with it. Fathers are important and should not be denied time with their children during the early phasas of their development by their employers.
On the other hand, if women get to have sex, then go on paid leave...why shouldn’t men get to also?
The only thing worse than courts legislating from the bench is unelected bureaucrats writing laws in direct opposition to the plain language in the measure passed by the legislature.
I’d like to see men carry a child for nine months of indigestion, morning sickness, swollen feet & hands, skin stretched beyond it’s limits, braxton hicks contractions and labor. Then they can have paid leave. :0)
My hubby has trouble with a sore throat!
We’ve had this in California for over 4 years and after paying into state disability insurance for over two decades, I’m glad to have gotten a small portion back recently with the birth of my daughter. The California law allowed me 6 weeks of leave with a maximum benefit of $917 per week (currently).
I left a job as an editor and took a job as a fireman (twenty days off per month) to be with my boys more. I lost thirty thousand per year, but it was a great decision. I am not being self-congratulatory; I could not have done it without my wife (she is the one with the really good job). I just wanted to be the dad I wish I could have had. I think my generation (X that is) is trying to parent better, but we need to remember to be parents and not just a buddy. If dads can get paternity leave like moms get maternity leave I would support it wholeheartedly (as long as no one expects me to pay for their decision to be HOME with their newborn).
I’m glad it worked out for you, but you should not have had to make the financial sacrafice. This should give others in your situation the ability to not choose between their children and their livlihoods.
: Unlike the federal Family and Medical Leave Act, which allows for men to take paternity leave but only applies to businesses with 50 or more employees...
The above is what boils my blood. Allow the decisions made by individual states to be corrected by the flux of people, businesses, and money to and from other states. Federalization is what inhibits this corrective behavior from occurring. Let Massachusetts experiment with state-wide medical coverage. Let California experiment with all of its liberal idiocy. Let Michigan expel its remaining jobs via its insane tax policies. Yes, all these things are antithetical to liberty, but long term, a system of federalism is the only system CAPABLE of preserving liberty and prosperity. It may not, but every other system will necessarily fail.
Ballot-box democracy is worthless, save for theoretically limiting corruption. Voting with our wallets and feet - the natural democracy of capitalism - is what, if anything, can restore and strengthen the treasures of civilization.
My husband was laid off when our baby #6 was about 6 months old, and was unemployed for a year. The kids loved it, and I only had panic attacks about once a month ...
What is troubling is that Ebel has a brain and a job.
First, you have no idea how intense the psychological trauma is putting up with a pregnant woman (and yes, I’ve got three kids) ;)
Second, the statute also applies to ADOPTIONS. When I read that I realized it made sense to apply the law in those cases as often the men bear just as much responsibility for care and feeding as the mom.
On the down side, as others have mentioned, it looks to me like this is the logical conclusion of same-sex marriage.
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