Authors: Nisha K. Cocchiarella
July 15, 2008 - Until recently, the Massachusetts Maternity Leave Act (MMLA) had been interpreted to require employers with six or more employees to grant female employees eight weeks leave for the birth or adoption of a child. This interpretation has been called into question by the recent announcement of the Massachusetts Commission Against Discrimination (MCAD) that the MMLA should be applied in a gender neutral fashion. In other words, male employees should be granted the same leave benefits as female employees. The MCAD’s statement comes as a surprise to many because the MMLA, as written, clearly states that female employees are entitled to leave, but does not refer to or mention male employees or paternity leave.

The MCAD has expressed that, despite the specific language of the MMLA, granting leave to female employees, and not to men, likely constitutes gender discrimination under the Commonwealth’s anti-discrimination statute (G. L. c. 151B). By way of example, the MCAD notes that women in a same-sex marriage would be entitled to leave, while men would not, and that such a result is inequitable. On the flip side are those who contend the MCAD has no right to make new law, and that any change to the language of the MMLA should be made through the legislature, not the MCAD.

The Massachusetts courts have not issued any decisions granting MMLA leave to a male employee. The MCAD has advised, however, that, depending on the circumstances, it will pursue a claim filed by a male employee who contends he has been denied leave under the MMLA.

Given the MCAD’s current position, employers should tread cautiously. We suggest that employers review their parental leave policies and practices to ensure compliance with the MCAD’s current position. We would be happy to review your employment policies with you.