Pregnancy in the workplace: Employer obligations to pregnant employees
Speech delivered by Sally Moyle, Director Sex Discrimination Unit at the NSW Young Lawyers, Discrimination Seminar Series, NSW Leagues Club, Sydney, 22 October 2002
Thank you for inviting me to speak to you this evening.
As part of this series on discrimination in the workplace, I have been asked to discuss employer obligations in relation to pregnant employers.
You may be wondering what is the connection between workplace discrimination and pregnancy?
At the Human Rights Commission 85 per cent of the complaints under the Sex Discrimination Act we received last year were related to the area of employment. 30 per cent were on the ground of pregnancy discrimination or parental status/family responsibility, a remarkable jump over the previous year of 18 percent! [1]
It still comes as something of a shock for many independent, career oriented women when they discover a whole new world of discrimination or barriers to work when they enter parenthood.
But it shouldn't.
Our social structures were developed around a social model that not only always held women back and limited our choices, but that continues to disadvantage us now.
Not that this is always recognised.
The other day, someone told me he thought Australia, since the Second World War, had been focusing on issues of equality to the detriment of issues of freedom. He appears to think that, at least when taken to extremes, the two are incompatible. I believe he considers that issues of equality require government intervention, where freedom's realisation requires smaller government, greater reward for individual initiative and providing people with the tools to forge their own success.
This argument flourishes when we forget the unequal nature of our social structures, when we treat the current status quo as a universal benchmark, standard, impartial and gender neutral.
Gender norms support a status quo in which one party is placed in a position of advantage and power in relation to the other party and this situation is presented as the natural order of things. [2]
In this situation, the life patterns and needs of men are treated as the norm and women are ignored. As such, gendered structures are created and gendered assumptions being relied upon, yet we accept this framework as presenting a universal, "neutral" truth.
These situations arise because "Human beings both construct and are constructed by a variety of institutions some of which, over time, come to be seen as second nature - just the way things are - rather than as a result of the iteration of conventions." [3] The family is the best example of this - it is seen as timeless and ahistorical.
Likewise, the public - private divide has disadvantaged women. Under capitalism, the free market economy is defined as the only legitimate sphere of economic activity. The activities of the home are defined as non-economic, and therefore as less valuable. The association of women with the family has defined them as non-economic.
This has an impact on women's labour market participation, because women's labour market participation is linked to the way households organise themselves and the care of children.
It is not surprising then when we see that women continue to be disadvantaged in the workforce. It occurs because we operate in a gendered system where the male experience is the norm. Our labour market is structured around this norm. [4]
This situation has partially arisen because Australia's leaders, over recent decades have operated on the assumption that that market can and will correct imbalances.
In the classical and neo classical view of economics, a deregulated labour market would operate efficiently and effectively, such that equal opportunity policies should be limited to addressing pre-market discrimination.
What is becoming more obvious, however, is that the Market is not designed to deliver equality. This is particularly the case in the context of a buyers' labour market. After all, why should it? In fact, what we see is that discrimination is often reinforced by the operation of market forces.
Even for teachers and nurses, professions dominated by women, and facing crisis proportion shortages, there is an apparent inability to restructure hours and conditions to suit women.
In an ABS survey of employment arrangements between April - June 2000, for example, it was found that retail and hospitality employees, in particular shop assistants, secretaries and waitresses were least likely to have access to paid maternity leave.
These industries are dominated by women, yet fewer than one in five women working in those jobs receive paid leave - less than 14 per cent of women working in hospitality; less than 20 per cent of shop assistants and less than 20 per cent of women in basic administrative jobs have access to paid leave. [5]
Increasing women's participation in the labour market has been viewed by many as an avenue of women's liberation and a sign of increased equality.
It can only be a limited liberation as women come to the very public domain of the labour market, still bearing the major responsibilities in the private domain.
The perspective that women 'can have it all' is fast being replaced with yes, women can have it all, but current workplace and societal attitudes and culture means that unlike men, they cannot not have it all at once.
This is no doubt the case at this stage. Women's expectations and options are evolving as a result of the feminist revolution, but without institutional change keeping pace.
Women are squeezed by the change in their workforce behaviour and the failure of any change in gender roles at home.
Something needs to give - with men increasing their contribution to family and home responsibilities at the pace of a glacier's movement, much of the work has focused on changing our work institutions to accept and accommodate women's family responsibilities.
And women, in their daily lives, have been challenging these norms - look at statistics around education and women's workforce participation, and we have been forcing work and family onto the agenda. These challenges are reflected in complaints to the Commission.
The quest for equality focuses on evolving these institutions to reflect the real lives of the women in this country. Women will not achieve the freedom (fairly naively referred to) by the man I referred to at the beginning, without first achieving equality. Equality is a necessary condition of freedom for women.
And equality cannot be achieved while women are still defined, restricted and disadvantaged because they perform a unique reproductive function - they bear children.
Consider for example, the workplace disadvantage women experience during a pregnancy.
During pregnancy, there are still many employers who consider that women's brains turn to mush, that they do not work as productively, while pregnant- they either demote or dismiss them, deny them training or otherwise allow their careers to stagnate.
This behaviour is unlawful. It is the responsibility of employers to treat pregnant women in a fair and equitable manner that does not discriminate against them.
In a case in the NSW anti-discrimination jurisdiction in 1992, a pregnant female convention supervisor was transferred to a position as a telephonist because her employer thought that it did not look good for a pregnant women to be carrying film projectors. [6]
Although her salary remained the same, the Tribunal found that the employer was found to have discriminated against the woman, as it had demoted the employee because of her pregnancy.
It is now 2002. Ten years later and not a lot has changed.
At a paid maternity leave consultation held with union representatives in Tasmania earlier this year, a union representative relayed the experience of a member, who was forced to move to a different work area (away from the public eye) when she was pregnant as her employer felt that her 'bulge' showed that she led an active sexual life!
This discriminatory treatment does not end after the birth.
For women who want and choose to breast-feed, many work places cannot or will not provide suitable conditions for the expressing of milk.
Women often experience a lack of sufficient financial support during maternity, no guarantee that their job will be there when they return from maternity leave, difficulty accessing affordable childcare, difficulty finding hours that suit their families, or poor access to flexible work conditions which would allow them to occasionally take time off for family reasons.
It is this last issue, the access, or lack thereof, to flexible work conditions and in particular part-time work that I would like to focus on.
Part-time work is an increasing phenomenon in Australia today.
Apart from students and trainees, the largest group of part time and casual workers are mothers.
In August 2001, 45 per cent of employed women worked in part time employment. [7]
Part time work and casual work is a double edged sword for women.
It gives women the opportunity to fit around their family responsibilities and remains the preferred form of work for women with families, yet it is difficult to find well paid part time or casual work (the bulk is in hospitality and retail) and extremely difficult to find it at the professional or managerial end of the labour market.
In addition, finding formal child care on a part-time or shift basis is almost impossible.
Despite having a high proportion of part time and casual workers, Australia does not have a systemic approach to part time work. This means part time work is offered - and at the employer's discretion.
In this respect Australia is lagging behind. From April 2003 in the UK employers will have an explicit duty to properly consider mother's and father's requests to work part time. This measure will be introduced as part of a government commitment to increasing access to flexible working practices.
Four and a half years ago, with the Equal Opportunity Commission decision in Hickie v Hunt and Hunt [8] it appeared that Australia was moving towards a similar legal recognition of the right to part time work.
This case involved a female solicitor at a law firm who had been nominated for advancement to contract partner.
After the nomination, the woman advised the firm that she was pregnant it was agreed that she would take three months off work after the birth and then work three days per week on her return.
Shortly before her scheduled return several of the firm's partners met with the solicitor and suggested that she reduce her practice and give up a number of her case files.
She did not agree with this proposal and the firm then refused her request for a temporary replacement. She returned to work, working three days from the office and two days from home.
In a subsequent performance assessment the woman received an unfavourable review. It noted "I do not believe you can run a practice and service clients three days per week."
The woman's partnership contract was not renewed and she complained that the statement concerning part time work was in effect a requirement that she must work full time to maintain her position and that such a requirement was indirect discrimination on the grounds of sex.
The firm responded to this by saying that full time work was inherent to the position.
Hearing Commissioner, Elizabeth Evatt, found that the requirement to work full time would inevitably disadvantage women practitioners, especially those aspiring to be partners and that the requirement to work full time imposed on the solicitor in order to maintain her position was not reasonable in the circumstances.
At the time this case was heralded as establishing a right to part time work.
Recent litigation on this issue suggests that this is right is yet to be established, and as the following examples illustrate, access to part time work remains difficult for women returning to work from maternity leave:
Example
1:
Bogle v Metropolitan Health Service Board (2000) EOC 93-069
Following a period of adoption leave, a dental clinic nurse sought to return to work on a part time job share basis.
Her employer offered her either her old job back on a full time basis or a part time job with lesser status and responsibility.
According to the employer, the position of charge nurse, which this woman held, could not be shared, had always been performed on a full time basis.
The woman made a complaint before the Equal Opportunity Commission who found that the requirement to work full time imposed on employees undertaking supervisory positions disproportionately affected women and employees with family responsibilities.
This requirement was found to be unreasonable as the employer had failed to consider the employee's job share proposal.
Example 2:
Song v Ainsworth Game Technology Pty Ltd [2000] FMCA 31
A full time female employee, asked her employer if she could take a later lunch break, enabling her to leave work in the afternoon to pick up her child from pre school and drop the child at a carer.
She was unable to reach a suitable arrangement with her employer - who said that she could only make this arrangement if she worked part time.
The woman complained of discrimination on the basis of family responsibilities to the Federal Magistrates Service.
The Federal Magistrate found that unilaterally altering the employee's employment from full-time to part-time amounted to a 'dismissal' for the purposes of section 14(3A) of the Sex Discrimination Act.
This decision was appealed by the employer and the case subsequently settled, so the earlier decision stands.
It highlights the inflexibility women face in the workplace as they try to balance work and family responsibilities.
Example 3:
Escobar v Rainbow Printing Pty Ltd [2002] FMCA 22
In a case before the Federal Magistrates Court in July 2002, it was found that an employer had unlawfully discriminated against a female employee in refusing her request to work part time after she returned from maternity leave so that she may meet family responsibilities.
Example 4:
Schou Deborah v State of Victoria [1999] VCAT 631
A woman was employed full time as a sub editor on the Hansard reports at Parliament house. She wanted to continue working full time, however work two days of every week from home so that she may fulfill her family responsibilities.
Her employer would not agree to this arrangement and she complained before the Victorian Civil & Administrative Tribunal. It held that an employee's parental or carer responsibilities should be considered in determining whether a work from home arrangement is viable.
In this situation it was not reasonable to insist that the employee attend her workplace everyday. A modem could be installed at the woman's home, at modest cost and without difficulty, enabling her to work from home.
The decisions in these cases suggest that there is a de facto right to part time work in Australia.
The attitudes of employers in these cases suggests however that even if this right is recognised legally it is not adhered to in reality.
How do we make this leap then - from legal dicta to real life practice?
First, we need to see a case decided at a senior court level that says that there is a right to at least serious consideration by the employer of a request for part time work. That is has to be provided by employers, not only as a reaction to a request by a woman trying to juggle both work and family, or as an exception to the norm but that is a presumption that it be provided.
Second, we need to see cultural change at a workplace and societal level.
We need to see part time work across a range of industries, positions and levels of seniority become the standard.
We do this as part of a restructuring of the workforce in a way that makes it work for women - as women make up 44 per cent of the overall labour force it becomes increasingly important that we do this. [9]
A workforce that works for women is one that recognises that women work and women have children and like men they have a right to do both.
It recognises that women do not enter the workforce at age 20, to work full time for 20 or 30 or 40 years, up through the ranks of a company or industry and then retire.
Women need a workforce that accommodates a less linear path - one that allows them to enter and leave at various points in their life, without having to give up their career aspirations, and one that allows them to work and care for children simultaneously.
The current workforce does not allow them to do this - in fact it is structured in a way that discriminates against women. It forces them to be grateful when they aren't sacked but only lose a current and lifetime earning capacity should they leave the workforce for a period of time to have a child.
What will work for women and families is a workforce that offers flexible work practices and hours, makes it easy for parents to access child care and offers paid maternity leave.
1.
HREOC Annual Report 2001-02.
2. Moira Gatens "Institutions, embodiment and sexual
difference" in M Gatens and A McKinnon Gender and Institutions
Cambridge University Press 1998, 3.
3. Moira Gatens "Institutions, embodiment and sexual
difference" in M Gatens and A McKinnon Gender and Institutions
Cambridge University Press 1998, 3.
4. Belinda Probert 'Grateful slaves or 'self made women':
A matter of choice or policy?' Clare Burton Memorial Lecture 2001,
3.
5. Jason Frenkel 'Poor need baby leave' Sydney Morning
Herald, 16 September 2002, 15.
6. Duggan v Shore Inn Pty Ltd (1992) EOC 92-457.
7. ABS6203.0 Labour Force Australia August 2001,
14.
8. (1998) EOC 92-910
9. ABS 6203.0 Labour Force Australia August 2001,
26.
