Maternity Leave Discrimination?

Quabbly · January 2014

Hi, this is my first time posting on the boards! I'm due with my first on June 24 and feeling good.

I'm not feeling good about my employer. I work at a small law firm in MA-- less than 50 employees so FMLA doesn't apply, but MA law says companies are required to give employees who've been at the company more than a year (I have) 8 weeks unpaid with job security to return after their leave.

I informed my boss that I was pregnant about a month ago (when I was 13 weeks), and asked him to give me more details on the maternity policy-- which was not given to me when I tried to casually ask about it months ago before we started trying. He hemmed and hawed, said he knew they did 3 weeks paid paternity leave but wasn't sure about maternity leave since they hadn't had many women have babies while working there. I asked him to get back to me as soon as possible.

I then went to speak with the two women at the firm who have given birth while working there and both said they'd been given 3 weeks paid leave and an additional 9 weeks unpaid- 12 weeks total. One of these women is a junior partner in the firm and has had two children during her time here. She indicated to me that I would have the same leave.

So today, a month later, my boss came to me and informed me that the leave policy is 3 weeks paid and then the unpaid leave is decided on a case by case basis. I was stunned. I could barely manage to tell him what both women had told me about their leaves, that I most certainly would not be returning after 3 weeks, and that if indeed it is a case by case situation, he should know my health insurance is through my husband and so they've never paid a cent for my medical expenses.

The more I think about it though, I wonder if doing a case by case maternity policy is discriminatory. Of the other women, one is a junior partner in the firm and the other is an associate- I'm a legal assistant. I started working at the firm before the associate, so length of employment should have no bearing. Both of us are covered by our husbands' health insurance rather than the firm's.

What are your thoughts on this? Has anyone encountered such a policy? I will certainly research this further, but I don't even know where to start. Thank you for any input!

MammaBear81 · January 2014

I don't think this is about health insurance, I think the policy pays for three weeks and then you discuss your plan for the rest of the leave. Not everyone wants the same legnth of leave, not everyone can afford to take unpaid time. Some people want to go back at 6 weeks, others want 6 months. I'd go to him (or HR) with a plan in hand and go from there.

ETA: our policy gives you and extra day of leave each year you are with the company, so its not unheard of for some people to get more leave than others. You also don't know what their accrued PTO and other benefits are.

VitaLuna · January 2014

Did you ask for the 12wks that others have had and have it refused? If not, then you hardly have room to call it discrimination if you never asked.. KWIM?

I don't think it's fair/good practice to have case by case leave policies, but if they provide you what they legally have to (8w, in your case), then that's all they have to do.

Mustardseed2007 · January 2014

It's not a safe policy, but it's not inherently discriminatory either. It just LENDS itself to being discriminatory.

At certain times and certain positions may not lend themselves to someone being spared for the same amount of time as someone else just based on the individual demands of your job. And as a PP said, some people may not need or want the same amount of time as someone else. It seems like a policy of - talk to us about what you want to do and we'll see if we can make it happen kind of thing.

jess9802 · January 2014

I'm an attorney at a small law firm. I was an associate when I was pregnant. They were very clear that the maternity leave they offered me was not firm policy, not an offer they would make to me in the future, nor an offer they would make to any other employee in the future. Part of the reason for that is that at my firm, associates, unlike staff, do not have sick or vacation leave, so I didn't have a leave bank from which I could draw.

I'm not terribly well-versed in labor law (and wouldn't give legal advice on the internet), but attorneys are generally exempt employees. My thinking is that so long as the difference between benefits is due to the difference in job duties and responsibilities (and the firm culture regarding attorneys versus staff), and not arising from the types of discrimination that are illegal, then you're probably a bit stuck. That being said, you should ideally be working with your firm administrator (not the attorney to whom you report), because the firm administrator and the managing partner will make sure they are in compliance with state law and can address any concerns about the length of your leave from a management standpoint.

jf198400 · January 2014

Others have given some great responses already. If I were you I would ask for the 12 weeks off and then if they say no, you can discuss their concerns as to why they can't accommodate that. Legally they have to allow you the 8 weeks off. Even at companies covered by Fmla, you can request a longer leave, and the company will evaluate whether or not they will hold your job. I had hoped to take longer than 12 weeks, and knew women who had done it in the past, but there were budget cuts and there was no guarantee I'd have a job to return to. I hope that they will work with you to determine a leave that is fair and reasonable.

poppyc8 · January 2014

I agree with the pp I would ask for 12 weeks and if they don't agree I would reach out to your state employment board and see if they have a 1800 number to answer discrimination questions.

I know in California they have strict maternity laws and you are not allowed to offer different maternity plans to people even if one employee is a Vice President etc. you have to offer the same plan to all. But not sure about your state.

EastCoastBride · January 2014

Well, it sounds like they have to give you 8 weeks by law. It sounds like outside of that, they have decided to give 3 weeks paid- which is awesome in that many women don't even get that. So - at a minimum, you'd only have 5 weeks unpaid.

As for the additional 4 weeks - as said, ask. If they say no, ask why.

But I do agree- the type of job you have could play a role. BUT - I find it hard to believe they'll give attorney's 12 weeks off but the support staff gets 8. I would expect it - IF there is a difference - to be the opposite!

And ditto- this has nothing to do w/ your insurance. Don't bring that up. It only confuses the issue.

FemShep · January 2014

OP, I responded to your question in 3rd Tri. Essentially, you need to make a formal request for the leave you want and see what happens. Also, it's polite to mark a topic when you've cross-posted it to other boards.

Quabbly · January 2014

Thanks everyone for your responses. Given all your input, I've got a few ideas on how to move forward. I was completely stunned when my boss told me this yesterday and still feel quite raw and emotional about it. I know I shouldn't be, but I'm just amazed at how self interested some employers can be.

MammaBear81 · January 2014

Quabbly said:

Thanks everyone for your responses. Given all your input, I've got a few ideas on how to move forward. I was completely stunned when my boss told me this yesterday and still feel quite raw and emotional about it. I know I shouldn't be, but I'm just amazed at how self interested some employers can be.

This isn't meant to be crass, but remember, if the business your working for isn't "looking out for itself" then it's not going to make money, leaving you without a job. I'm not saying they shouldn't give leave, but they aren't going to do something that isn't going to be OK company wise.

VitaLuna · January 2014

Quabbly said:
Thanks everyone for your responses. Given all your input, I've got a few ideas on how to move forward. I was completely stunned when my boss told me this yesterday and still feel quite raw and emotional about it. I know I shouldn't be, but I'm just amazed at how self interested some employers can be.

Not trying to be rude, but if you didn't ask, how can you be so upset about it? You don't know until you ask. You may ask for 12w and they say no problem. Try not to get overwhelmed and upset about something that *could* happen when you haven't even asked.

Quabbly · January 2014

A little background: there are normally two legal assistants at my firm, and the other gave due notice and left in early August. They have yet to replace her, but claim to be trying. So the idea that they can't manage without me for 12 weeks when I've been managing as the only legal assistant for 5 months is infuriating.

I understand you all saying 'it's business.' But for me, it's obviously quite personal-- how long I get to stay at home and care for my newborn. I don't expect them to make bad business choices out of the goodness of their hearts (I have very low expectations in that regard)-- I just want to be sure I'm taking advantage of what should be provided to me by law, and not getting steamrolled by greedy lawyers.

I have been clear that I would like 12 weeks, though not in writing. I will do that tomorrow.

While I appreciate everyone's input, I have to say-- if you have to preface a statement with 'not trying to be rude'... consider that it probably is rude or insensitive.

VitaLuna · January 2014

Quabbly said:

I understand you all saying 'it's business.' But for me, it's obviously quite personal-- how long I get to stay at home and care for my newborn. I don't expect them to make bad business choices out of the goodness of their hearts (I have very low expectations in that regard)-- I just want to be sure I'm taking advantage of what should be provided to me by law, and not getting steamrolled by greedy lawyers.

I have been clear that I would like 12 weeks, though not in writing. I will do that tomorrow.

While I appreciate everyone's input, I have to say-- if you have to preface a statement with 'not trying to be rude'... consider that it probably is rude or insensitive.

If you already asked for 12w, then what did they say? You never indicated that before now, which is why I suggested (not rudely) that you not stress yourself out before getting an answer.

And, as a side note, I'm not so sure the greedy lawyers bit will earn you many points here.

thedash · January 2014

I think three weeks paid sounds like an awesome benefit. I've never had that kind of benefit when on maternity leave and I am a greedy lawyer. I guess I've been doing it wrong.

I can understand being annoyed and frustrated with how your boss initially handled this. But now it's on you to set up a plan and propose it in a professional way. There will be many more times that you will have to balance what you want for your family and what your employer wants from you. This is good practice.

DiveFrog · January 2014

Quabbly said:

A little background: there are normally two legal assistants at my firm, and the other gave due notice and left in early August. They have yet to replace her, but claim to be trying. So the idea that they can't manage without me for 12 weeks when I've been managing as the only legal assistant for 5 months is infuriating.

I understand you all saying 'it's business.' But for me, it's obviously quite personal-- how long I get to stay at home and care for my newborn. I don't expect them to make bad business choices out of the goodness of their hearts (I have very low expectations in that regard)-- I just want to be sure I'm taking advantage of what should be provided to me by law, and not getting steamrolled by greedy lawyers.

I have been clear that I would like 12 weeks, though not in writing. I will do that tomorrow.

While I appreciate everyone's input, I have to say-- if you have to preface a statement with 'not trying to be rude'... consider that it probably is rude or insensitive.

So based on this you have a very critical role at the firm as the ONLY assistant. I can certainly see from the employers perspective why it would not make business sense to allow you any more time off then legally required (8weeks). If you truly would like that extra 4 weeks I think you absolutely MUST submit a coverage plan and show how you taking the time will not have a negative effect in any way on the business. And the answer is most likely not 'backfilling' the empty assistant job as you have shown over the last 5months a second assistant isn't necessary.

The answer may be a temp that you train before you leave, it may be working some hours from home those last few weeks of leave, or working a few less hours at work for your first few weeks back at work. Or it may be a combination of these or some other arrangement. try to think outside the box and make things work for both sides of the equation you and your employer.

ASmallWonder · January 2014

OP, I think most places would take requests beyond what is required by law on a case by case basis. Even at my job where I am covered for 12 weeks FMLA, anyone who wishes anything beyond that has to submit their request to their boss and to HR. They are reviewed on a case by case basis just like any leave of absence would be.

cecilyandgautam · January 2014

You could treat this like a negotiation. Say that you appreciate the company's policy of 3 weeks paid but counter with 8 weeks. Right now they haven't said you get 3 & only 3, right? They've said you definitely get 3 and the rest will be determined later. Could you counter with it would be easier for you to plan your return to work, plan for childcare, etc if you could get certainty around having at least 8 weeks? Most childcare facilities will not accept an infant before 6-8 weeks; most doctors will not consider a postpartum woman fully abled again until 6-8 weeks postpartum (what if you have a c-section? you really will not be in a position to work at 3 weeks pp); and as you mentioned, MA regulations seem to set the bar for firms like yours at 8 weeks. Since you need to get on daycare waitlists and give them a desired start date, budget for your unpaid time off, etc you need to know sooner rather than later how many weeks you're going to get in addition to the 3.

btw - I'm sorry you're going through this. I can't imagine how I would plan for my family, or my workload even, without certainty regarding how long my leave is and I would not be able to make 3 weeks work. Only a nanny would be willing to watch a 3 week old infant and that's out of our price range; probably for you as well it sounds.

Iblamethebeer · January 2014

I agree with treating this as a negotiation.
To help you structure your argument though, you should know that there is nothing more frustrating for an attorney than hearing a support staff member complain about how unfair it is that she doesn't get some benefit the attorney gets... and then watch her walk out the door at 5 pm or schedule a vacation-that's-actually-a-vacation while the attorney stays at the office until midnight or stands around Disney World on conference calls while mouthing "I'm sorry" to spouse and kids.
Attorney and staff are just different jobs, with different sets of expectations and different benefits. We have staff who get really snippy about attorneys "coming in late" (when we're at home because our calls for the day started at 6 am) or sniffing that it must be nice to have the option to work from home when the weather is bad (but failing to notice that when the weather is really bad and the office closes, they get an actual day off and we're stuck balancing normal work-from-home expectations and childcare).
You aren't going to win any points with anyone by claiming that you should get 12 weeks because a partner did, so don't frame your argument that way.

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