A Commissioner at the Massachusetts Commission Against Discrimination (the Commission) has announced that effective immediately the Massachusetts Maternity Leave Act (MMLA) will apply to new parents of either sex. This means that both mothers and fathers (or both parents in gay marriages) in Massachusetts will be entitled under state law to eight weeks of unpaid leave upon the birth or adoption of their child. (The MMLA applies to employers with six or more employees.)
This announcement by the MCAD is startling for many reasons. First, it appears that the Commission, has rewritten a statute that is clearly gender-based (“maternity” rather than “parental”) to be gender-neutral. The Commissioner admitted as much when he said the reason for the Commission’s interpretation is to avoid the following problem:
“If two women are married [as is legal in Massachusetts] 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 Commission says it “enjoys broad discretion” and so it is applying the statute to avoid what it considers to be a state constitutional problem. Of course, the Commission must apply the law in a constitutional manner, but it does seem to have taken a radical step in this instance without a notice and comment period that most major legislation (or legislative changes) undergo before passage. As some lawyers have said, it creates significant obligations for employers overnight, which obligations may not be what the legislature has intended.
Second, the Commission’s interpretation of the statute appears to understand the “discrimination” the MMLA seeks to eradicate as discrimination against parents rather than against women. I don’t know the history behind the MMLA, but its title (and language) suggests that the gist of the law was not to eradicate discrimination against parents but against mothers. (The word “female employee” is all over the statute.)
The big question for me, however, as I read this news is whether I care how startling it is and whether instead I should jump for joy that finally FINALLY some official legal body has recognized in a brave (however radical and oblique) way that gender equality requires that fathers/spouses be equal parents of newborns with mothers. I don’t think it a radical idea (although people I mention it to think it novel and curious) that the disparity in child care in our society — where most women are in charge of child care in their household despite more than sixty percent of mothers working outside of the home — is rooted in maternity leave, a gendered leave policy that creates inequality in the competence and expectations for child care. (To be sure, the FMLA is gender neutral and passed under congress’s section five powers as a remedial and prophylatic measure to combat sexism. But the MMLA targets infant child care specifically where as the FMLA covers diverse family relationships. For a quick comparison of the MMLA and FMLA see here.) By interpreting the MMLA in this way, the Commission has given most fathers/spouses in the Commonwealth the right to stay home with their newborn.
I have long lamented the accommodation of maternity leave – not because I think it unnecessary for mothers but because it creates an expectation that mothers (and not fathers/spouses) will stay home with the baby when born or adopted. In addition to providing time to physical recuperate from labor (which for most women takes between two and four weeks), maternity leave (especially for new moms) is a form of boot-camp, teaching women how to care for an infant by forcing the togetherness. Most women don’t know any better than most men how to calm a fussy baby, how to feed a baby, how to swaddle a baby or put her to sleep. These skills are gender-neutral. When do women become more competent than men at these tasks? When they care for their own newborn during maternity leave (or, admittedly, when they have taken a job caring for children or cared for a sibling or friend’s child prior to having their own child). Maternity leave is a three month (sometimes more) “head start” in the child-care department. And this head-start often sets the parameters for child-care duties in the future. At four months when a mother is back at work, that mother is typically better at soothing and dressing and feeding the baby because she has done it so often the past twelve weeks while her husband/spouse was at work. It makes sense, therefore, at the end of the work day, that when the baby is fussy or hungry that she calms and feeds the baby because she is better at it. This is an efficient division of labor. But it also relegates her to the “second shift,” one that mothers have historically complained about, whereby she works in the office all day and in the house all night. And this gendered child care dynamic is entirely avoidable if fathers/spouses became as competent as mothers in the earliest days of their baby’s life. Three months of total immersion in child care is a long time. Ask any parent: the learning curve is a steep one. And when the baby is crying, you want the most skilled person to calm that baby (i.e., the person who can succeed the fastest at the task). This is often the person who stayed home with the baby, and it is usually the woman.
So back to the Commission’s announcement. What it might accomplish if applied to both parents is to encourage them to become equally competent at caring for their newborn at an early enough stage in the parenting relationship to prevent gender inequality in child care in the future. And it sends the message that both parents are crucial to nurturing the child – which is of course true. How will it apply in practice? Does it allow for the possibility that one parent might stay home for the first eight weeks and the other parent for the second eight weeks? Would it allow for both parents to stay home at the same time? Either way, I hope this significantly changes the parental leave landscape in Massachusetts – for the better. It is long overdue that fathers/spouses be expected to care for their newborns as mothers are expected to. I would bet that many fathers/spouses would relish the idea of a three month leave to care for their new child. And I have no doubt that children will be better off for it. I applaud the Commission.