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Footnotes

[1] These guidelines will not answer every question concerning application of the laws regarding maternity leave. The MCAD exists to enforce Mass. Gen. ch. 151B and ch. 149, §105D, and is not bound by federal law. However, "the Federal guidelines can be used to guide Massachusetts in interpreting G.L. c. 151B." Labonte v. Hutchins & Wheeler, 424 Mass. 813, 823 n. 13 (1997). Sources of guidance under analogous federal law include: the Pregnancy Discrimination Act, 42 U.S.C §2000e, §701(k); EEOC Compliance Manual on the Pregnancy Discrimination Act, §626; The Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §12101 et. seq. ; U.S. Department of Labor Regulations: The Family and Medical Leave Act of 1993, 29 C.F.R §825.100 et. seq.

[2] The commission understands that the words "disabled" and "disability" are the more accepted parlance than the words "handicapped" and "handicap" and therefore utilizes the former terms in these guidelines. Those utilizing these Guidelines should note that the words "handicap" and "handicapped" are utilized in the statutes and regulations governing disability discrimination in employment.

[3] Additional protections apply for employees of the Commonwealth. It is unlawful practice "for the commonwealth and any of its boards, departments and commissions to deny vacation credit to any female employee for the fiscal year during which she is absent due to a maternity leave taken in accordance with [the MMLA] or to impose any other penalty as a result of a maternity leave of absence." G.L.c.151B, §4(11A).

[4] As to certain additional protections applicable to employees of the Commonwealth, see footnote 3, above.

[5] Employers covered by the Family and Medical Leave Act of 1993 ("FMLA") are required to provide and employee with up to twelve weeks of leave. Such employers must, upon an employee's return from FMLA leave, restore the employee to the same or an equivalent position. 29 CFR 825.214

[6] See School Committee of Braintree v. MCAD, 377 Mass. 424, 386 N.E.2d 1251 (1979); White v. Michaud Bus Lines, Inc., 19 MDLR 18, 20 (1997), quoting Lane v. Laminated Papers, Inc., 16 MDLR 1001, 1013 (1994).

[7] See Id.

[8] An employer may, however, make inquiries into the ability of an employee to perform any job-related function, provided that the inquiry is consistent with business necessity and limited to job-related functions. See MCAD Guidelines: Employment Discrimination on the Basis of Handicap, p. 20 (1998).

[9] See Part VII, below.

[10] For example, in International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196 (1991), the Supreme Court struck down an employer's fetal protection policy as a violation of Title VII as amended by the Pregnancy Discrimination Act. The Court found that a policy that prohibits women of childbearing capacity to work in a job that exposes them to certain lead levels was facially discriminatory, and that employing sterile women in these jobs was not a bona fide occupational qualification (BFOQ). Recognizing that the BFOQ test is very narrow, the Court found that fertile women participate in the manufacture of batteries as efficiently as others, and that the concerns about the welfare of future generations cannot be considered the "essence" of the employer's business. "Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them, rather than to the employers who hire those parents." Id. At 206, 111, S.Ct. at 1207.

[11] M.G.L. c. 151B, § 1(17)(definition of "handicapped" person)

[12] For further guidance, see MCAD Guidelines: "Employment Discrimination on the Basis of Handicap- Chapter 151B"

[13] 29 C.F.R. §825.701(a)

[14] 29 C.F.R. §825.701(a)

[15] 29. C.F.R. §825.208

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