In a letter to the editor published in this week’s Massachusetts Lawyers Weekly, the MCAD clarified its position regarding the application of the Massachusetts Maternity Leave Act (“MMLA”) to men. The clarification was an apparent attempt to quell the uproar sparked by Commissioner Ebel’s comments at the 11th Annual Foley Hoag Labor & Employment Seminar that the MMLA should be viewed as gender neutral. Although the language of the statute specifically refers to women, Commissioner Ebel had stated at the seminar that men also are entitled to eight weeks of leave for the birth or adoption of a child.
The MCAD now appears to be backing away from Commissioner Ebel’s remarks. According to the letter to the editor, the MCAD has not determined that the MMLA requires employers to provide paternity leave. Instead, the MCAD’s position is that an employer engages in gender discrimination when it provides benefits to pregnant women in excess of those required by the MMLA but does not provide those same benefits to men.
The MCAD did not say that the MMLA does not apply to men. Instead, its position is that a case raising the issue has not yet arisen. Characterizing parental leave as an evolving area of the law, the MCAD noted in its letter that it is reviewing its guidelines regarding the MMLA and advises employers that the failure to provide equal parental leave benefits to men and women may constitute gender discrimination under federal law, if not state law.