The Massachusetts Commission Against Discrimination has quietly announced it is now applying the Massachusetts Maternity Leave Act to both women and men – a move that will force employers throughout the state to update their employment policies and handbooks.
The revelation came at a recent Foley Hoag client event at which the guest speaker – MCAD Com-missioner Martin B. Ebel – told the crowd of about 200 surprised lawyers and corporate officials his office plans to prosecute MMLA cases in a gender-neutral fashion.
In a follow-up interview, Ebel said the MCAD – based on developments in the Massachusetts Legislature and a decision by the Massachusetts 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.
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,” Bucking said. “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 employers looking to avoid the stigma of an MCAD complaint should make immediate changes to their office policies and employee handbooks.
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 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 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 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 discrimination in Massachusetts.”
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.