Maternity Leave ≠ Sitting on Your A**
By Fiona W. Ong - Shawe Rosenthal LLP
January 19, 2023
So some of you may have seen the recent uproar over a senior (labor and employment) attorney’s text message to an associate who found another job while she was on maternity leave. Many, including me, found the text to be wildly offensive and inappropriate. And because I’m a nerd, I also found a lot of lessons for employers.
For those of you who missed it, the senior (labor and employment, let me emphasize) attorney, among other things, equated maternity leave to “sitting on your ass,” indicated that he had suggested firing her while on maternity leave, and threatened to malign her to future employers. In case you’re curious, here is the actual message text:
"I had suspicions you were interviewing two months ago and I told Stephen then to ask you about it. I also told him to cut you loose at that time if confirmed. He was too nice of a guy to do so. What you did - collecting salary from the firm while sitting on your ass, except to find time to interview for another job - says everything one needs to know about your character. Karma's a bitch. Rest assured regarding anyone who inquires, they will hear the truth from me about what a soul-less and morally bankrupt person you are."
So after this became public (and that’s lesson #1 – remember that your “private” communications could end up in the national news), the senior (labor and employment, did I mention that?) attorney’s firm issued a weak statement that, while acknowledging that the text should not have been sent, also characterized the text as a “heat of the moment” error, gave itself kudos for having paid maternity leave, and vaguely promised “corrective action,” according to a scathing Above the Law article on this situation (the statement is no longer on the firm’s LinkedIn page, but the article quotes freely from it). As Above the Law noted, there was no actual apology. (And here’s lesson #2 – apologize when it’s warranted. No excuses. And #3 – be really thoughtful about your public statements – comments like “I stand on our firm’s record of how we treat our employees” don’t really strike the right tone when someone has clearly been egregiously mistreated.)
The firm then issued a second statement later that day, as Above the Law then reported (they were really on top of this developing story!). The firm started off by saying the senior (yes, labor and employment) attorney was no longer with the firm. And it finally apologized to the associate. (See lessons #2 and 3).
We don’t know if the senior (labor and employment) associate was fired or whether he chose to resign in light of the appalling publicity he brought to the firm. But if it was a termination, some have suggested that perhaps wasn’t necessary – that lesser options like a written warning, maybe with a suspension and/or training requirements might have been reasonable alternatives. So here’s lesson #4 – in general, employers should try to be consistent when doling out discipline – but they also have a great deal of latitude when dealing with unusual situations. The firm could have decided to coach the senior (labor and employment!) attorney in lieu of termination – assuming they have coached other employees for making inappropriate or discriminatory/harassing statements. However, bringing a torrent of negative publicity onto your employer can certainly be considered a terminable offense.
Now, you’ve noticed, of course, that I am harping on the fact that the senior attorney was a labor and employment attorney. That’s because he certainly should have known better. His statement could arguably have violated multiple federal and state anti-discrimination and leave laws – ones that he presumably provided advice to clients about. Let’s run down some of them, shall we?
• Title VII protects employees from discrimination on the basis of sex, while the Pregnancy Discrimination Act prohibits discrimination on the basis of pregnancy, childbirth and related conditions. The employee was on maternity leave because she is a female who gave birth. Presumably the senior attorney would not have been so angered if the associate had not been on maternity leave when she interviewed for and obtained another job. I think we can safely assume that other associates who were not on maternity leave have left the firm for other opportunities – and did not receive vicious text messages about doing so. So singling this associate out for this kind of treatment can suggest sex/pregnancy discrimination.
• The Family and Medical Leave Act allows eligible employees to take up to 12 weeks of leave after the birth of a child. Employers may not interfere with the use of such leave or retaliate against an employee for exercising their right to leave. Here, the senior attorney (assuming he had some authority over the associate) was certainly threatening retaliatory action and, by trying to get her fired during her protected leave, was arguably trying to interfere with her leave.
• State pregnancy accommodations and parental leave laws provide employees with leave rights and also generally protect them from adverse actions – including termination and threats of future reprisal – in connection with their use of leave.
• The brand-new federal Pregnant Workers Fairness Act prohibits adverse actions against employees using reasonable accommodations – which can include leave – for “known limitations” related to pregnancy, childbirth, or related conditions. If the associate had complications from the birth of her child that caused limitations, she might also have fallen under the protection of this new law – once it takes effect this summer.
So lesson #5 is to make sure you’re thinking about and complying with the applicable laws. Even in the heat of the moment. Which leads to lesson #6 – beyond legal compliance (which sets a floor for behavior), employers should think about what kind of culture they wish to create for their employees (which sets a goal for behavior) – an issue of increasing importance to today’s workforce. (And honestly, given the apparent culture at that firm, even with paid maternity leave, it’s no wonder the associate wanted to leave).
And finally, as someone who has given birth, I can most certainly assure you that maternity leave is not “sitting on your ass.” To be honest, before I had my first child, I thought I’d be able to get all sorts of projects done during my leave (like organizing all my photos and negatives). The reality was very different – there were days when getting a shower in was a major accomplishment. (Apparently, if this senior attorney had any children, he was NOT involved in their care. And I would encourage the mother of his children, if any, to smack him with a 2×4.) The last lesson is that taking care of a baby is hard. Really, really hard. My photos are still unorganized, 26 years later…