Boston Employment Lawyer Blog

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.

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, 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 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, the 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 made numerous negative comments about her pregnancy. In one instance, her supervisor 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 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.

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

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.

Continue reading "Medical Leave Eligibility and Handicap Status in the Workplace Explored" »