Articles Posted in Maternity Leave

A former attorney for a large law firm in Massachusetts has filed suit against her ex-employer, whom she says fired her for taking leave after an adoption. concentration.jpg

Our Boston employment lawyers know that similar to the protected maternity leave extended to new mothers of biological children, adoptive parents are eligible for the same leave under state law.

The Massachusetts Maternity Leave Act, M.G.L. c. 149, 105D, allows for up to eight weeks of time for which a female employee may be absent from her job for the purpose of either giving birth OR adopting a child and then subsequently caring for that new child. The law stipulates that adoptive parents, just like biological parents, may take time to prepare for and participate in the birth.

The protection extends to adoptive parents who are legally adopting any child under the age of 18 or under the age of 23 if the child is physically or mentally disabled. The law holds that the employee has to give at least two weeks’ notice and employers are not allowed to refuse this time, even in cases where doing so would create a hardship.

MMLA affords this opportunity to female employees, though the law makes note that if employers extend this time only to female workers and not male workers, they may be in violation of federal law, even if they are in compliance with the state law.

In this case, the plaintiff alleges that her law firm employer terminated her shortly after she formalized her adoption of a daughter from China and went on her protected leave period. She alleges that despite a long record of stellar reviews, she received her first negative review shortly after the adoption. Further, she was given a significant reduction in bonus pay.

She now says that she was discriminated against, as one of the firm’s older female employees, for taking a period of leave that was unquestionably protected. In addition to economic damages for back pay and interest, she is seeking $5 million compensation for punitive and compensatory damages, as well as attorneys’ fees.

In backing her claim, the plaintiff alleges that in her seven years working for the firm, only one female employee over the age of 50 was promoted to partner. Mind, you this was an agency that employed more than 1,000 lawyers. The majority of those who were so bestowed were under the age of 40, according to her contentions.

Complaints of gender discrimination can be difficult to prove, and require a legal representative with extensive experience. In many cases, it’s not enough to prove that an employer was dishonest about an employment decision; it must be proven that the dishonesty was intended to conceal discriminatory intent.
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The Equal Employment Opportunity Commission (EEOC) is hoping in the next three years to push reforms that would require companies to accommodate pregnant women in much the same way they must provide for disabled workers. pregnid.jpg

Our Boston employment lawyers know that as it stands, many pregnant employees are forced to take unpaid leave after they have been denied accommodations that are given to others with recognized disabilities. That last part is important, though, because although employers may not discriminate against pregnant workers, per a 1978 amendment to Title VII, they usually don’t have to make any special allowances for pregnant women – unless they do the same for other “similarly situated workers” who have temporary disabilities.

But pregnancy, or at least “ordinary pregnancy,” doesn’t qualify as a disability under the Americans with Disabilities Act.

It seems common sense that employers would need to provide certain accommodations to pregnant workers, particularly later in their term when the physical strains of their position are most likely to result in medical complications. This would reduce the number of potential on-the-job injuries, not to mention reduce the employer’s liability.

But as it stands, many employers will often extend light duty assignments to workers who have been temporarily disabled by on-the-job injuries, but won’t give pregnant workers the same consideration – even when the workers’ doctor restricts them from things like heavy lifting. That’s because pregnant workers aren’t considered disabled, weren’t injured on the job and therefore aren’t considered “similarly situated.” The courts have tended to narrowly define the “similarly situated” provision, meaning it has been tough for plaintiffs to successfully argue for pregnancy accommodations. (One recent case was Reeves v. Swift Transportation in which the 6th Circuit decided in 2006 that pregnancy workers not injured on the job weren’t considered eligible for light duty.)

We could soon see a shift, however. The EEOC is making this issue a priority in its 2012-2016 Strategic Enforcement Plan, naming the accommodation of pregnant workers among the top emerging issues. The draft of this plan indicates employers would be wise to tread carefully on this issue, lest they face legal action.

In one such case, written testimony the EEOC submitted for a discrimination hearing slated to be heard this month asserts that the recently-expanded provisions of the ADAAA require disability accommodations for certain types of pregnancy-related conditions, such as anemia, sciatica, carpal tunnel syndrome and gestational diabetes. So even though pregnancy itself isn’t specifically protected, certain health issues stemming from it very well could be – meaning companies would have a responsibility to make accommodations as necessary. This also could lead to employers changing the policy with regard to light duty, meaning other pregnant workers might be covered as well.

But it’s not just the EEOC taking on this issue. Last fall, the Pregnant Workers Fairness Act was introduced in both the House (H.R. 5647) and Senate (S. 3565). The measure would have made it illegal for employers to refuse to make reasonable accommodations to workers relative to pregnancy, childbirth or any related medical condition. The bill died in committee, but we expect similar proposals to be made in the future.

The bottom line is that company leaders would do well to consider making reasonable accommodations to pregnant workers when possible to avoid possible litigation. And pregnant workers who believe they have been discriminated against should contact a Boston employment lawyer as soon as possible to discuss your options.
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The Massachusetts Supreme Judicial Court ruled, in a recent 4-to-3 decision, that women in Massachusetts who work full time for small businesses have their jobs protected during eight weeks of maternity leave, but the law does not protect them beyond that time.

Women who are promised longer maternity leaves by their employers, usually through company policies or union agreements, can sue for breach of contract if their employer later breaches the policy or agreement and fires them.

Sandy Stephens, a housekeeper for the president of Global NAPs Inc., a small Quincy, MA telecommunications firm, claimed her supervisor told her that, if she gave birth by cesarean section, she could take unpaid maternity leave longer than eight weeks. Stephens ultimately gave birth by cesarean section and claimed that, when she called her supervisor after the eight week period and said she anticipated returning to work after around 11 weeks, she learned she had been fired by her employer.

Stephens’ lawsuit relied on a guideline of the Massachusetts Commission against Discrimination that says employers should notify employees in writing if they do not plan to guarantee benefits beyond eight weeks. The SJC found, however, that the guideline is advisory only and does not have the force of law.

Points:

  • The decision affirmed how the law has generally been applied
  • The ruling is limited to women whose maternity leave falls under state law (typically those who work at smaller companies but with at least six employees).
  • Women who work for employers with 50 or more employees are covered by the federal Family and Medical Leave Act, which provides up to 12 weeks of unpaid leave and job protection. The SJC ruling does not affect the federal law.
  • Employees should obtain all promises in writing with respect to benefits promised beyond what the law provides.
  • Communicate with your employer during any leave to avoid misunderstandings.

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Boston Bar Assosiation