Employment Law

Massachusetts’ Expanded Parental Leave Law Provides Equal Parental Leave to Men and Women and Increases Protections for Employees Who Take Leave

Published on: April 7, 2015 | by Emma Quinn-Judge

Massachusetts’ expanded parental leave law, An Act Relative to Parental Leave, goes into effect today. The revised statute makes several significant changes to state law. First, it removes any doubt about whether men are entitled to leave. The amended law is gender neutral: men and women who work for employers with six or more employees are entitled to the same parental leave. Employees who have completed an initial probationary period – as set by the employer, but not to exceed three months – are entitled to 8 weeks unpaid parental leave. An employee who intends to take leave under the statute must provide 2 weeks’ notice of his or her anticipated departure date and intention to return, or provide such notice as soon as practicable if the reason for delay in providing notice is beyond the employee’s control. An employee who takes leave under the statute must be reinstated to the same position or a similar position, meaning one that is comparable in terms of factors such as status and pay.

The second major change in the law clarifies when an employee is eligible for reinstatement. While the state law mandates at least 8 weeks of unpaid leave, many employers offer benefits that exceed the minimum provided for under the state statute. In 2010, the state’s highest court concluded that an employee who took more than the eight weeks leave provided for in the statute was not covered by the law’s reinstatement requirement. The amended parental leave act clarifies that an employee is entitled to reinstatement unless the employer informs the employee – in writing, before the start of the employee’s leave and before any subsequent extension of that leave – that taking more than 8 weeks leave will result in denial of reinstatement or the loss of other rights and benefits. In other words, the default is that employees are entitled to reinstatement and an employer who wishes to exclude an employee from this provision of the law must make its intention to do so clear.

Supreme Court: Employers Cannot Exclude Pregnant Women from Broad Accommodation Policies

Published on: March 31, 2015 | by Zalkind Duncan & Bernstein LLP

Eight years ago, Peggy Young lost her medical coverage after she was forced to take an extended leave of absence from her job at UPS, because UPS would not accommodate her pregnancy-related weight-lifting restriction (her doctor limited her to lifting no more than 10-20 pounds during pregnancy). Although UPS accommodated other employees with restrictions stemming from a wide range of sources—including a disability; an on-the-job injury; or loss of a commercial driver’s license due to a drunk driving charge—the company placed pregnancy in the narrower field of conditions for which they were not willing to make accommodations.

Young sued, asserting that UPS violated the Pregnancy Discrimination Act (“PDA”) by treating her differently than other similarly situated employees because of her pregnancy. Her case was heard by the Supreme Court in December 2014; we discussed the case, its factual background, and its possible outcomes, here. This week, the Supreme Court, in a 6-3 vote, issued a ruling favorable to Young: it rejected the lower court’s narrow reading of the Pregnancy Discrimination Act, reversed its dismissal of Young’s case, and sent the case back to the appeals court for further review.

The Gender Wage Gap Persists, But There Are Legal Solutions to Pay Inequality

Published on: March 6, 2015 | by Ruth O'Meara-Costello

At this year’s Academy Awards, Patricia Arquette used the platform she gained as a Best Supporting Actress winner to speak about pay inequality, saying, “It is our time to have wage equality once and for all and equal rights for women in the United States of America.” Persistent gender discrimination in employment is a barrier to that goal, but for women who experience pay discrimination at work, there are a variety of possible legal remedies. This post explores some of the laws available to help address wage inequality under federal and Massachusetts law and outlines some of the ways that they do–and do not–protect female workers from unfair pay.

A federal law, the Equal Pay Act of 1963, 29 U.S.C. § 206(d), forbids employers from discriminating in the payment of wages on the basis of sex by paying employees of one sex less “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Equal pay is required even for employees whose jobs are not identical, so long as they are substantially equal. There are numerous exceptions to the equal pay requirement: an employer can justify unequal wages if it can demonstrate that the difference results from “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”

Breastfeeding-Related Discrimination Should Be Protected By Law (Even if Men Can Lactate)

Published on: February 19, 2015 | by Emma Quinn-Judge

Angela Ames resigned from her position at Nationwide Mutual Insurance Company just three hours after she returned from maternity leave. Upon her return, she sought access to the company’s lactation rooms and was informed that she would have to wait three days for permission to use a room. She was also told that since none of her work had been completed during her maternity leave, she would have to complete eight weeks worth of work during her first two weeks back or face discipline. When she asked her manager to help her find a place to pump milk, the manager told Ames, “You know, I think it’s best that you go home to be with your babies,” handed Ames a piece of paper and a pen, and dictated what she should write in her resignation letter.

Ames resigned, and both a federal trial court and a federal appeals court threw out Ames’ discrimination case. These decisions relied in large part on the fact that Ames failed to stay in her job and fight the treatment she was receiving. The trial court, however, also concluded that lactation is not a pregnancy-related condition – and therefore not protected by the Pregnancy Discrimination Act – because some men can lactate. When the Supreme Court recently refused to hear Ames’ case, it was male lactation that attracted numerous headlines. The Supreme Court, however, was not asked to weigh in on male lactation. It was asked to consider whether the appeals court correctly assessed when an employee can hold an employer liable for forcing her to quit, and – as in the vast majority of cases that come before it – the Supreme Court declined to review the case.

In July 2014, well after the trial court issued its decision in Ames’ case, the federal Equal Employment Opportunity Commission (EEOC) made clear that lactation is a pregnancy-related medical condition and that treating an employee less favorably because she is breastfeeding is therefore discrimination. Likewise, harassing an employee because of her breastfeeding is illegal if the harassment is severe or pervasive. Any workplace policy or practice that singles out breastfeeding for less favorable treatment is discrimination because, the EEOC notes, breastfeeding is a condition that only affects women. It would, for example, violate Title VII, to permit an employee to use her break time for personal reasons, but to have a policy preventing her from pumping or expressing milk during her break time.

US DOJ Adds its Interpretation of Title VII to List of Federal Entities Recognizing Protection for Transgender Rights

Published on: January 12, 2015 | by Rachel Stroup

The United States Justice Department (DOJ) recently announced that it will interpret Title VII of the Civil Rights Act of 1964 as protecting transgender employees from discrimination in the workplace. In a December 15, 2014 memo to U.S. Attorneys, Attorney General Eric Holder stated that he has “determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.” The memo acknowledges that this interpretation constitutes an evolution of the DOJ’s thinking on the issue; as recently as 2006 the DOJ defended the Library of Congress’ decision to refuse to hire the most qualified candidate for a position upon learning that she was transgender. This interpretation should influence all actions taken by the DOJ, both through its U.S. Attorneys, who defend the United States when it is a party in civil suits, and through its Employment Litigation Section which enforces Title VII against state and local governments.

The DOJ’s new Title VII interpretation brings it in line with various other federal entities’ recent interpretations of federal anti-discrimination law. In 2011 the Office of Personnel Management issued a notice stating that the government’s policy of non-discrimination on the basis of sex in the federal workplace includes non-discrimination based on gender identity. In 2012 the Equal Employment Opportunity Commission (EEOC) held that discrimination on the basis of gender identity is a form of discrimination on the basis of sex. Most recently, in July of 2014 President Obama issued an executive order stating that discrimination based on gender identity is prohibited for purposes of federal employment and government contracting. Previously the Department of Education and the Department of Justice had already determined that Title IX, the federal law that prohibits discrimination on the basis of sex in education, applies to gender identity claims brought by students.

Supreme Court: Your Boss Can Waste Your Time Without Paying You

Published on: December 10, 2014 | by David Russcol

Yesterday, the United States Supreme Court ruled that, under federal law, employees only have to be paid for time spent working or on activities necessary to perform their jobs – even if their employers require them to be there longer. In Integrity Staffing Solutions, Inc. v. Busk, employees of a contractor for Amazon.com were not paid for time spent, after the ends of their shifts, waiting for an anti-theft security screening. Although the employees claimed that the employer could have eliminated the wait time by using more metal detectors or staggering shifts, it did not do so, and so they waited as much as 25 minutes every day without pay.

The Fair Labor Standards Act (FLSA) sets a national minimum wage and provides that employers, with some exceptions, must pay time-and-a-half for overtime (more than 40 hours per work week). In general, a work week includes all the time that an employee is required to be at the office or work location. However, a 1947 law called the Portal-to-Portal Act carved out exceptions to this principle. At issue in the Busk case is an exception for activities “preliminary to or postliminary to” an employee’s “principal activity or activities.” The “principal activity” is whatever the employee is hired to do – so in the Busk case, the “principal activity” is finding items in a warehouse and shipping them to Amazon customers. The “principal activity” also includes activities that are necessary to perform the job safely (putting on a protective suit in a chemical factory) or effectively (sharpening a knife in a butcher shop).

Pregnant Women Are Entitled to Reasonable Accommodations in the Workplace Under the Americans with Disabilities Act

Published on: December 5, 2014 | by Emma Quinn-Judge

On Wednesday, the Supreme Court heard oral argument in Young v. UPS, a case that examines what protections pregnant workers have under the Pregnancy Discrimination Act (“PDA”). As I explained in detail earlier this week, the issue in Young is whether an employer who accommodates some of its workers by providing light duty or modified work assignments is required to provide pregnant workers who are “similar in their ability or inability to work” with the same accommodations it voluntarily provides its other workers. Oral argument was lively and we’ll know by June at the very latest how the Supreme Court will decide this case. (One court-watcher predicts a ruling in favor of UPS, but hedges that his “confidence level is not high on this prediction.”)

The PDA, however, is not the only law that protects pregnant workers. As the Equal Employment Opportunity Commission (“EEOC”) made clear in the updated pregnancy guidance it released this summer, pregnant women are not exempt from the protections of the ADA. Pregnant workers who have medical conditions that would trigger ADA protection are entitled to reasonable accommodations on the same terms as any other workers who have ADA-protected medical conditions. In order to be covered by the ADA, a pregnant woman must establish that she has a pregnancy-related condition that substantially limits one or more major life activities; the EEOC clarifies that even “impairments of short duration that are sufficiently limiting can be disabilities.” Numerous medical conditions associated with pregnancy may qualify for protection under this test. These include carpal tunnel syndrome, cervix problems, sciatica, pelvic inflammation, gestational diabetes, preeclampsia, nausea that causes severe dehydration, abnormal heart rhythms, swelling, or depression. Moreover, even a non-specific pregnancy-related condition – such as a doctor’s opinion that a pregnancy is “high risk” and therefore requires certain limitations, even where there is no diagnosis of a specific medical impairment –may able to obtain protections under the ADA. The ADA also protects pregnant women who are “regarded as” having disabilities. If an employer takes adverse action against a pregnant woman – for example, it refuses to hire her, terminates her, or reassigns her to a low-paying position against her will – the employer may also be liable under the ADA for disability discrimination.

Supreme Court Will Decide Scope of Protection for Pregnant Workers in Young v. UPS

Published on: December 3, 2014 | by Emma Quinn-Judge

When she became pregnant in 2006, Peggy Young’s doctor told her not to lift more than 20 pounds during the early part of her pregnancy, and no more than 10 thereafter. Upon hearing of this restriction, Young’s employer, UPS, refused to let her stay in her job, as she occasionally – albeit rarely – needed to lift packages more than 20 pounds. Young responded that she could keep working: she could do her “regular job” with occasional assistance from willing coworkers or she could be assigned to “light duty” like other employees to whom UPS offered light duty when they faced similar work restrictions. UPS refused to accommodate Young; a division manager told her she was “too much of a liability” while pregnant and instructed her not to return until she “was no longer pregnant.” Young took an extended unpaid leave of absence and eventually lost her medical coverage.

The Supreme Court today hears oral argument in Young v. UPS, Young’s case alleging that UPS violated the Pregnancy Discrimination Act (“PDA”) by failing to provide her with the same accommodations it provided non-pregnant workers who were similar to Young in their ability to work. (The many briefs in the case are here.) The PDA, which was enacted in 1978, amended Title VII to clarify that discrimination based on pregnancy is a form of sex discrimination; the statute further provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Young argues that the PDA requires an employer that accommodates non-pregnant employees with work limitations to provide pregnant women who are “similar in their ability or inability to work” with the same accommodations.

Harvard Business School Study Shows that Subtle Gender Discrimination in Workplace Can Lead to Significant Disparities in Senior Leadership Roles

Published on: November 20, 2014 | by Monica Shah

Researchers at Harvard Business School (HBS) and Hunter College recently issued a report based on their survey of more than 25,000 HBS graduates on issues related to work, family responsibilities, and the gender gap in senior management positions in the workplace. The study concludes that these highly educated and ambitious professional women are and have been “leaning in,” well before Sheryl Sandberg coined the phrase, despite having significantly more childcare responsibilities than their male peers. Yet, these women have not earned senior management roles at the same pace as their male counterparts. These results make clear that gender discrimination is still rampant in the workplace, even in the upper echelons of corporate America.

The survey showed that HBS men have been given more powerful leadership roles than their female counterparts. Specifically, the men were significantly more likely than women to have direct reports, profit-and-loss responsibility, and positions in senior management. However, the gender gap between men and women cannot be explained by the conventional wisdom that women “opt out” of ambitious career tracks to be home with their children. Approximately 74 percent of HBS women in Gen X (ages 32 to 48) are working full time, and of both Gen X and Baby Boomers (ages 49-67), only 11 percent of women surveyed stayed at home full-time to take care of their children. Interestingly, these figures are almost identical to a study conducted almost two decades earlier by Deloitte & Touche, which showed that 70% of women who left Deloitte continued to be employed full time and fewer than 10% were out of the workforce to care for children.

The Federal and Massachusetts Anti-Discrimination Agencies Both Say That Parental Leave Must Be Provided Equally to Men and Women

Published on: November 13, 2014 | by Emma Quinn-Judge

Just over 36 years ago, on October 31, 1978, the Pregnancy Discrimination Act (“PDA”) was signed into law, extending the protections of Title VII to pregnant women. This summer, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance on pregnancy discrimination, explaining how both the PDA/Title VII and the Americans with Disabilities Act provide protections for pregnant women in the workplace.

While much of the response to the EEOC’s new enforcement guidance has focused on the provisions that require employers to provide reasonable accommodations to pregnant women, another important aspect of the guidance – one that affects both men and women – has received substantially less attention. In the new guidance, the EEOC clarifies that under Title VII men and women are entitled to parental leave on an equal basis. To be precise, “similarly situated men and women” must receive parental leave “on the same terms.” What does this mean? It means that any leave provided to a new mother that extends beyond the “period of recuperation from childbirth” must also be provided to a new father. In other words, any leave provided for the purpose of bonding with a child or providing care for a young child – as opposed to leave that is provided for the purpose of recuperating from childbirth – must be provided equally to men and women. Moms and dads get the opportunity to bond with and care for their babies.