Pregnancy Leave in Massachusetts: Understanding the Maternity Act

The Massachusetts Maternity Leave (MMLA) experienced a set back with the Supreme Judicial Court’s ruling in Global NAPs v. Awiszus. I had the opportunity to provide my thoughts about the decision to WBZ’s Diane Stern.

As background, the MMLA, which is codified under M.G.L. c. 149, §105D, guarantees “eligible” employees 8 weeks of unpaid leave for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. To learn more about the MMLA’s eligibility requirements and for a summary of the key differences between the MMLA and the Family & Medical Leave Act (FMLA), please visit our previous post, Medical Leave Eligibility and Handicap Status in the Workplace Explored.

In Stephens v. Global NAPs, Sandy Stephens worked for Global’s president as a housekeeper. In late 1999, she informed her supervisor of her pregnancy and that her last day of work before maternity leave would be July 14, 2000. Under the MMLA, Ms. Stephens was guaranteed 8 weeks of unpaid maternity leave. Her employer, however, promised her an additional 3 weeks of unpaid leave if she required a Cesarean section, which she did. Unfortunately, when Ms. Stephens tried to return after 11 weeks, Global reneged on its promise and informed her that she no longer had a job. Ms. Stephens brought suit under the MMLA and a jury found against Global for compensatory damages in the amount of $1,366,165 and punitive damages in the amount of $1,000,000.

The question before the SJC was whether Ms. Stephens could properly state a claim under the MMLA. According to the Massachusetts Commission Against Discrimination (MCAD), the Commonwealth’s chief civil rights agency charged with interpreting and enforcing the law in question, the answer is “yes.” In fact, the MCAD’s Maternity Leave Act Guidelines explicitly address this issue:

An employer may grant a longer maternity leave than required under the MMLA. If the employer does not intend for full MMLA rights to apply to the period beyond eight weeks, however, it must clearly so inform the employee in writing prior to the commencement of the leave.

Although the SJC has previously acknowledged that such guidelines “represent the MCAD’s interpretation … and are entitled to substantial deference,” it abandoned the MCAD’s interpretation of the MMLA. Specifically, despite the employer’s promise that Ms. Stephens could take an extra 3 weeks off, the SJC held that she “was not entitled to the protections afforded by the MMLA, given that she was absent from employment for more than eight weeks.” As the SJC noted, however, the employer’s broken promise may give rise to a claim “for breach of contract, breach of oral representations, detrimental reliance, or the like.” For reasons beyond the scope of this discussion, such claims may be more difficult for an employee to pursue.

In light of the Awiszus decision, employees are well-advised to understand their rights under the MMLA. As the SJC has made clear, relying solely on the word of an employer that promises more maternity leave than the MMLA contemplates may leave you unemployed.

Proving Workplace Discrimination Through Circumstantial Evidence: A Review Of Thermo King

Claims for unlawful workplace discrimination are typically proven through two types of evidence: direct and circumstantial. Direct evidence is often referred to as “smoking gun” evidence where, for example, a company informs an employee that he or she is being terminated because of his or her age. Circumstantial evidence is much more subtle. As a great trial lawyer once said, “We better know there is a fire whence we see much smoke rising than we could know it by one or two witnesses swearing to it. The witnesses may commit perjury, but the smoke cannot.” Abraham Lincoln, Unsent Letter to J.R. Underwood and Henry Grider, October 26, 1864. Thus, in an age discrimination case, circumstantial evidence may take the form of an older employee (who is at least 40 years old) who is terminated without explanation.

This brings us to the case of Vélez v. Thermo King de Puerto Rico. There, the employer terminated a 56 year old employee without explanation. The company finally provided a reason for the termination after the employee filed a claim for age discrimination with the Equal Employment Opportunity Commission. The employer changed its reason thereafter. The First Circuit found the employer’s initial silence to constitute circumstantial evidence of discrimination:

Thermo King did not initially provide Vélez with any reason for firing him. One month later, Soto told the ADU and the EEOC that Vélez had been fired for violating the company’s policy on receiving gifts from suppliers. It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.

In my interview with Massachusetts Lawyers Weekly, I discussed the significance of the Thermo King decision:

It appears to be the first time the 1st Circuit has held that an employer’s failure to articulate the reasons for a termination before litigation equals pretext for discrimination.

Our prediction is that the Thermo King decision will encourage more transparency. Employers are now incentivized to articulate a clear reason as to why an employee is being terminated from the outset or risk an inference of discriminatory motive.

Employeees Who Suffer Workplace Discrimination Gain Clarification On Obtaining Punitive Damages

Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone’s future earnings are reduced by discrimination), back pay (the plaintiff’s lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney’s fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge’s decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court (“SJC”) agreed with the plaintiff that the trial court’s decision to take away the jury’s award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge’s order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant’s conduct is outrageous or egregious. In determining whether the defendant’s conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant’s conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.
You can watch a video of the oral arguments in the Haddad case on Suffolk Law’s website.

Seventh Circuit Issues Employee-Friendly Pregnancy Discrimination Act Decision

In 1978, Congress passed The Pregnancy Discrimination Act of 1978, which acts as an amendment to
Title VII of the Civil Rights Act of 1964. The Act makes clear that “[d]iscrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII.” The Act further states that “[w]omen affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.”

Recently, the Seventh Circuit in Hall v. Nalco interpreted the Act to apply to women who undergo infertility treatments. In that case, the plaintiff, Cheryl Hall, was allegedly discharged after requesting further time off to undergo vitro fertilization. In 2003, Ms. Hall underwent an embryo transfer. To ensure adequate time to recuperate, her physician recommended that she take time off after the procedure. Unfortunately, the embryo transfer failed, necessitating a second procedure. Despite receiving approval for a second leave of absence, Ms. Hall’s supervisors allegedly laid her off due to absenteeism associated with her infertility treatments.

If Ms. Hall had taken time off to give birth or prepare for her child’s birth, there would have been little question that her employer’s decision to terminate her employment violated The Pregnancy Discrimination Act of 1978. This case, however, hinged on Ms. Hall’s infertility treatment. Not surprisingly, the Seventh Circuit allowed Ms. Hall’s case to proceed forward to a jury trial, reasoning that infertility is not a gender-neutral condition:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

According to statistics published by the MayoClinic, estimates reveal that 10% to 15% of couples suffer from infertility, with female infertility accounting for 40% to 50%. The Seventh Circuit’s decision will no doubt benefit thousands of employees nationwide.

Family Rights Discrimination Continues to be a Hot Button Issue

Family rights discrimination (FRD) — discrimination against an employee who serves as a caregiver to a family member — continues to be a hot button issue in the workplace. According to the Center for WorkLife Law (CWL), there were a total of just 8 FRD cases filed in the 1970s. The number significantly increased over the next several years, with a total of 97 FRD cases filed from 1986 to 1995. Unfortunately, FRD has shown little sign of abatement. From 1986 to 2005, FRD filings totaled 481; an increase of approximately 400%.

While smaller businesses present the highest incidence of FRD, large companies — even those recognized by Fortune as “Best Companies to Work For” — have been sued for such discrimination. According to the CWL, the success rate of FRD cases is relatively high, coming in at greater than 50% versus 20% for other types of discrimination cases. Notably, the average award for FRD cases is slightly over $100,000 with a high of $25 million.

Not surprisingly, women are plaintiffs in the overwhelming majority of FRD cases. It is not uncommon for such cases to arise in the context of pregnancy. A recent article featured in Forbes entitled How To Balance Work and Pregnancy, highlights two scenarios of which employees should be mindful:

Be Conscientious
If you do all this and notice your boss is restricting the types of projects you work on or has taken you off the partnership track, address it with him. In the best scenario, the boss is trying to make things easy on you (albeit unfairly). Document all of these changes and then say something to him. In most cases, it’s a misunderstanding that will be rectified by your bringing it to his attention.

Be Wary
If it’s a more serious situation, such as the boss making offhand comments about your pregnancy affecting your work, continue to document those instances. Also keep note of the change in assignments you’re getting. First, go to your boss and ask if there’s a problem with the quality of your work. If it doesn’t improve, bring all the examples to human resources. Discriminating against someone because they’re pregnant is illegal, and most companies will handle the situation immediately.

When in doubt, consult with an attorney who concentrates in employment law. You owe it to yourself, your family, and your career.

Massachusetts Maternity Leave Act Applies to Men

The Massachusetts Commission Against Discrimination (MCAD) recently announced that the Massachusetts Maternity Leave Act (MMLA), M.G.L. c. 149, s. 105D, must be viewed as gender neutral. Originally, the MMLA provided female employees with eight weeks of leave relating to the birth or adoption of a child. Recognizing the disparate treatment that the MMLA created, the MCAD Guidelines warned that “an employer who provides leave to female employees only, and not to male employees, may violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA” (See Answer 11).

MCAD Commissioner, Martin Ebel, defended the change as not only necessary to ensure equal treatment between male and female employees, but also to guarantee equality between same-sex couples:

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. 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.

The MCAD’s long-awaited stance on the MMLA is a welcome change. Restricting the MMLA to female employees reflects the archaic perception that a woman’s career should take a backseat after giving birth. Granting equal maternity leave benefits to both men and women finally brings the statute into the 21st century.

For more information about the change to the Massachusetts Maternity Leave Act, please visit the Massachusetts Lawyers Weekly article entitled, Men now eligible for maternity benefits

Pregnancy Discrimination Lawsuit Filed Against Bloomberg L.P.

Pregnancy discrimination, which is a form of gender discrimination, is becoming a hot button issue in 2008. The Equal Employment Opportunity Commission (EEOC) has filed a class-action lawsuit against Bloomberg L.P., the financial-services and media company founded by Mayor Michael R. Bloomberg, on behalf of at least 54 women who accuse the firm of discriminating against pregnant employees. The suit puts Bloomberg L.P. in a familiar position, representing the latest in a series of discrimination and sexual harassment complaints filed against the firm since the 1990s.

According to EEOC lawyer, Raechel L. Adams, the number of women represented in the class action is likely to grow. As part of its continuing investigation, the EEOC is interviewing 478 Bloomberg L.P. female employees who took maternity leave at some point from 2002 to the present.

Monica Prestia is among those represented in the suit. According to the lawsuit, Ms. Prestia received the worst performance review of her career after giving birth to her first child in 2005. Thereafter, the suite alleges, she experienced hostility from a supervisor who could not have children and was asked by a different supervisor: “What is this, your third baby?”

Although Mayor Bloomberg remains the firm’s majority shareholder, the suit does not name him as a defendant. For more information about this issue, please visit the New York Times article entitled, 54 More Women Accuse Bloomberg Firm of Bias.

Pregnancy Discrimination Complaints on the Rise According to the EEOC

Pregnancy discrimination may be on the rise. The Equal Employment Opportunity Commission (EEOC) has reported an up-tick in such complaints. Over the past year, complaints of pregnancy discrimination complaints rose 14% to 5,587. This represents the biggest annual increase in 13 years. Even more alarming, the number of pregnancy discrimination complaints has surged 40% from a decade ago. To read more about this trend, check out Sue Shellenbarger’s informative article in the Wall Street Journal entitled, More Women Pursue Claims of Pregnancy Discrimination.

Pregnancy discrimination, also known as family rights discrimination, has certainly picked up steam in the past two years. In December 2007, for instance, the New York Times published a sampling of newly minted buzzwords. Included in the list was “maternal profiling,” which the Times defined as:

Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.

(The article is entitled, All We Are Saying)

Surprisingly, the Massachusetts Fair Employment Practices statute (M.G.L. c. 151B, §4) does not explicitly prohibit discrimination based upon parenthood. In 2006, a Massachusetts Superior Court in Sivieri v. Commonwealth of Massachusetts interpreted the statute to include such a prohibition. Under Sivieri, pregnancy discrimination constitutes gender discrimination.

In Sivieri, the plaintiff worked as a paralegal for the state Department of Transitional Assistance (DTA). In November 1999, Sivieri gave birth to her daughter. After returning from maternity leave, Sivieri’s direct supervisor allegedly made numerous negative comments about her pregnancy. In one instance, her supervisor allegedly remarked that their work unit would maintain its productivity as long as no other employees became pregnant. Thereafter, Sivieri was passed up for a promotion for which she believed she was qualified.

In 2002, Sivieri filed suit on the basis that DTA’s failure to promote her constituted unlawful gender discrimination. Relying on the plain language of M.G.L. c. 151B, §4, DTA moved for summary judgment, arguing that the alleged discrimination related to parental status vs. gender, and parents are not members of a protected category under Chapter 151. The Superior Court rejected DTA’s position, holding that her supervisor’s negative remarks toward pregnancy and child rearing was based on gender stereotypes and, therefore, constituted gender discrimination.

The Sivieri decision is undoubtedly a step in the right direction. As the EEOC’s statistics indicate, however, there is still much progress to be made.

Job Discrimination Complaints Jump 9%

Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

Medical Leave Eligibility and Handicap Status in the Workplace Explored

An all-to-common employment law issue was raised in today’s Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor’s FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination’s (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD’s MMLA Guidelines for more information.