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Pregnancy Discrimination: Hickie v Hunt and Hunt

Speech by Susan Halliday, Sex Discrimination Commissioner to the Business Law Education Centre, Employment Law Conference, Sydney, 23 June 1998

1. Background to Hickie v Hunt & Hunt

The Human Rights and Equal Opportunity Commission decision of Hickie v. Hunt & Hunt was made public in March of this year. The case dealt with the failure of a legal practice to accommodate a woman's family responsibilities. The Hickie case is not so much an example of discrimination on the grounds of "pregnancy" as Ms Hickie was not in effect discriminated against while pregnant. The discrimination, is however, inextricably linked to the fact that Ms Hickie had a child and consequently chose to work part time. It is illustrative of the way in which women in particular can potentially be discriminated against because of their childcare responsibilities. The desire or need for many women to return to work on a part time basis following maternity leave is something that should be expected and managed by employers. For the period of time that women continue to undertake significant responsibility for the caring of children, work practices that prevent women from balancing their work and family responsibilities are likely to be discriminatory. The Hickie case is also very important because it so clearly demonstrates the way in which women can be "indirectly" discriminated against. While most employers are aware of their legal obligation to allow women to return to work at a level mirroring the one they left to take maternity leave, few employers have thought through the need to ensure that women are not subject to detriment because of indirectly discriminatory policies and practices. For example, many women choose to work part time because of their family responsibilities. In Germany, a company's policy of excluding part-time workers from the occupational superannuation scheme was found to be discriminatory because this exclusion affected more women than men.

2. The Sex Discrimination Act 1984

The Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) prohibits direct and indirect discrimination on the grounds of sex, marital status, pregnancy and potential pregnancy (Division 1, Part 2):

84% of complaints made to the Human Rights and Equal Opportunity Commission about such treatment during the 1996-97 financial year concerned employment.

Grounds of Complaints

Sex Discrimination Act
Central Office
NT
Tas
Vic
SA
WA
Total
Sex Discrim. 110 5 7 81 37 3 243
Marital Status 32 4 3 12 3 3 57
Pregnancy 39 1 9 22 22 - 93
Sexual Harassment 143 3 10 126 160 10 452
Family responsibility 10 - - 4 8 - 22
Victimisation 11 - - 43 11 2 67
Total* 345 13 29 288 241 18 934

*One complaint may have multiple grounds.

It is worth noting that sex discrimination need not be the "dominant or substantial" reason for the treatment complained of (s.8). In order for a complaint to be successful it is necessary only to show that sex (or pregnancy or marital status) discrimination was a factor in the treatment giving rise to the complaint.

Definitions

Direct Sex Discrimination
Direct sex discrimination occurs where a person of one sex is treated less favourably than a person of the opposite sex in circumstances that are not materially different (s5(1)). For example, if a woman is sacked because she advises her employer that she is pregnant or is denied access to a promotion or relocation because of gender, this would be "direct" sex discrimination.

Indirect Sex Discrimination
Indirect sex discrimination occurs where a condition, requirement or practice is imposed that has the effect of disadvantaging people of one sex in relation to the other, and this is not reasonable in the circumstances (s.5(2)). For example, a policy that intended to give a wage increase to those employees who had worked continuously for the company for 10 years would indirectly discriminate against women who had interrupted continuous service to have children. It may also have direct and indirect age discrimination possibilities.

Matters to be taken into account in determining whether a condition, requirement or practice that may be indirectly discriminatory is reasonable include:

  1. the nature and extent of the disadvantage;
  2. the feasibility of overcoming or mitigating the disadvantage; and
  3. whether the disadvantage is proportionate to the result sought by the imposition of the condition, requirement or practice.

Pregnancy Discrimination
A woman cannot be discriminated against on the grounds of pregnancy or potential pregnancy.. This includes treating a woman less favourably or imposing a condition or requirement which is likely to have the effect of disadvantaging pregnant or potentially pregnant women. A noteworthy case of discrimination on the ground of potential pregnancy was Wardley v Ansett Transport Industries (Operations) Pty Ltd (1984) EOC 92-002, where a woman was found to have been refused appointment as a trainee pilot by Ansett because of her child bearing potential.

Family Responsibilities
Discrimination on the grounds of family responsibilities under the Sex Discrimination Act, only relates to dismissal of an employee. This includes less favourable treatment than would be given to a person without family responsibilities. Family responsibilities refer to a range of responsibilities a person may have because of being a family member. The "responsibilities" refer to the tasks and duties associated with that "responsibility" eg. caring for a sick partner or child or nursing an elderly relative.

The findings in the Hickie case while related to Ms Hickie's status as a mother with family responsibilities are specifically concerned with a finding of indirect sex discrimination.

3. The Facts in Hickie v Hunt & Hunt

Ms Hickie claimed she had been discriminated against on the grounds of sex, marital status, pregnancy, potential pregnancy and family responsibility.

Ms Hickie commenced employment as a solicitor with Hunt & Hunt on 14 November 1988. Working in the insurance group and later moving to the plaintiff practice, headed by a partner Mr Jones, Ms Hickie's skills were publicly recognised by her appointment as an Associate in December 1991. In 1994, she started to do compulsory third party insurance work as well as plaintiff work. On 1 July 1995 she became a contract partner for a term of one year.

At the time of her appointment as a contract partner Ms Hickie was pregnant, a fact known to the firm. She commenced four months maternity leave on 8 September 1995. During her absence on maternity leave most of her plaintiff work was transferred to another partner. At the time Ms Hickie went on maternity leave, she had a mixed plaintiff and defendant practice which consisted of 240 plaintiff files and 20-30 defendant files. There was no locum solicitor appointed to manage her caseload in her absence.

Ms Hickie returned to work part time on 22 January 1996; by then her practice had been reduced to about 25 defendant files. Following a Partner Performance Appraisal in March 1996 it was recommended to the partnership that her contract not be renewed. On 31 May 1996, Hunt and Hunt decided not to renew Ms Hickie's contract as an equity partner beyond its date of termination, 30 June 1996. She was informed of this and on the same day, 31 May, ceased work and left the firm. She was paid for the remainder of her contract term and for a further period of three months.

4. What were the actual findings in the Hickie case?

Ms Hickie claimed discrimination and victimisation occurred.

The Hearing Commissioner found there was no direct discrimination against the complainant in regard to the arrangements established for her maternity leave, or in the decision to remove her plaintiff practice. However, the decision to remove the complainant's practice and the non-renewal of her contract were acts of indirect discrimination.

The decision to remove the whole of Ms Hickie's plaintiff practice in December 1995 was an act of indirect discrimination within the meaning of the Act in that it imposed on her a condition or requirement that in order to maintain her practice she must work full time.

This condition resulted in detriment to Ms Hickie.

The complainant was awarded $95,000 which comprised compensation for lost earnings covering the 12 month period after the termination of her contract at $40,000, future loss of earnings at $30,000 and damages for non-economic loss (humiliation, distress and damage to personal reputation) at $25,000.

The decision adds to the small number of cases that have successfully argued that a requirement to work full time amounts to unlawful indirect sex discrimination. The others include:

Speering v Ministry of Education (1993) EOC 92-573 Western Australia

The WA Equal Opportunity Tribunal found that a policy which required that temporary teachers work one year full time as a probationary period before they could become permanent was found to constitute indirect discrimination on the ground of sex. In this case, the complainant was unable to comply with the required probationary period because of family responsibilities. The Tribunal found that the probationary period was unreasonable in the circumstances, particularly as many temporary teachers were very experienced.

The particulars of the complaint were:

  1. It is a characteristic that appertains generally to females that they have children and have the main responsibility for child rearing. As a result a female is less likely to be able to work full time and substantially fewer females can comply with a requirement of working full time than males.
  2. A greater proportion of temporary teachers are female rather than male. Temporary teachers suffer detriment and less favourable terms and conditions of employment.

The Tribunal ordered that the respondent pay the complainant $4,000.

Nicholls v Ministry for Education (1993) EOC 92 513 Western Australia

The complainant argued that she was unable to work full time because of family responsibilities. She alleged the employment policies of the respondent constituted indirect discrimination on the ground of sex because it required the complainant to work full time in order to regain permanent status. The respondent also required permanency before a teacher could be considered for statewide placement, and had condition that full time vacancies should be filled with permanent teachers in preference to temporary teachers.

The WA Equal Opportunity Tribunal found that employment policies put in place by the Ministry of Education constituted indirect discrimination against the complainant on the ground of her sex. The complainant was unable to comply with the policies because of her family responsibilities and as a result suffered employment detriment.

The complainant was awarded $18,000.

Home Office v Holmes (1984) ICR 678 United Kingdom

A requirement that employees in a particular grade had to work full time was found to indirectly discriminate against women. In a subsequent Scottish case, a health visitor relying on the indirect discrimination provisions of the UK Sex Discrimination Act won the right to return to work on a job sharing basis after maternity leave.

5. What does the Hickie Decision mean?

The decision does not create an automatic right to part time work, but the law will, in appropriate circumstances, provide remedies for women denied access to part time work if they can demonstrate that a condition, requirement or practice is not reasonable in their particular circumstance.

The element of 'reasonableness' is the major obstacle to establishing unlawful indirect discrimination. In this case, the existence of part time work at Hunt & Hunt and the lack of evidence to show that Ms Hickie couldn't complete all duties allocated to her showed that the requirement to work full time was unreasonable.

Anti-discrimination laws state that unlawful indirect discrimination occurs where a condition, requirement or practice is imposed that has the effect of disadvantaging a group of people in relation to the other, and this is "not reasonable in the circumstances of the case". It is impossible to state definitively what would be reasonable or unreasonable in any particular case as circumstances will be unique to individual cases.

The notion of reasonableness cannot therefore be discussed other than in general terms, because the individual circumstances of each case will determine the degree of reasonableness. Reasonableness is a question of fact, not of law. Indirect discrimination may not be deliberate, but the burden of proof of determining that the condition or policy is not discriminatory lies with the respondent. That is, once a complainant has shown that indirect discrimination has occurred, it is up to the respondent employer to show that discrimination was reasonable under the circumstances. Reasonableness can thus be thought of as a kind of defence to indirect sex discrimination.

In her book, Indirect Discrimination in the Workforce, Rosemary Hunter states

The treatment of part time workers as second-class citizens stems from the fact that within the masculine universe, part time work is regarded as synonymous with optional, short-term and/or casual work. For many women, however, part time work is a permanent and necessary arrangement that allows them adequately to fulfil both domestic and financial and/or intellectual imperatives.

It is the case that women are far more likely to work part time than men.

Organisational culture and work practices that prevent women from balancing work and family responsibilities are likely to continue to be deemed discriminatory. It may be that as incidences of direct discrimination diminish (assuming that over time we see the benefits of improved policy and practice and increased community awareness) that we will increasingly be confronted with more incidences of "indirect" discrimination, as people attempt to confront the difficulties posed by structural and more systemic discrimination.

Ultimately, it is still about defining new frontiers that embrace best practice. As Rosemary Hunter states

...even if the maintenance of a discriminatory employment criterion appeared to be reasonable in the circumstances of a particular case, it would still be open to the employer to find ways of reducing its impact in accordance with any affirmative action requirements they may be subject to.

6. The future after Hickie

The case illustrates a number of important object lessons for employers and individual managers:

  1. Employers should ensure that they do not indirectly discriminate against employees working part time by setting requirements or creating conditions with which part time workers cannot comply, ie. that to be an effective partner or to manage clients effectively, a woman must be in the office on a full time basis. In the Hickie case it was found that

  • the removal of Ms Hickie's practice occurred partly because she intended to work part time on her return and could not manage such a large practice without supporting staff.... the removal of her practice can be regarded as the consequence of her inability to meet a requirement that she work full time or manage staff while absent as a condition of maintaining her plaintiff practice. What the firm was saying in effect was that because she was not intending to return to full time work for some time, they would not make an effort to find other alternatives to support her in maintaining all or part of her plaintiff practice, but would remove all of it. Her intention to work part time after her maternity leave was seen as a basis for stripping her completely of work she had built up over several years.

  • The requirement to work full time, is a requirement with which a substantially higher proportion of men comply or are able to comply. In making this conclusion, I rely on the evidence of the respondent about the substantial number of women in their firm who had periods of maternity leave and part time work as well as my general knowledge and experience of employment in the legal profession. It is a requirement with which the complainant could not comply, due to her family responsibilities, said the Hearing Commissioner, Justice Evatt.
  1. Employers should ensure that they work with staff prior to the commencement of maternity leave making adequate arrangements for on-going workload, and staff management in order to cover the period of time on maternity leave. Employers also need to ensure they have clear maternity leave policies; and to have looked at available part time options would also be in their best interest.
  • I am inclined to agree with Ms Hickie that there is a need for clearly defined maternity leave and part time work policies. These, ideally, would form the basis for a flexible approach to the individual case and would help to avoid possible unfairness which might result from dealing with each person on a case by case approach, said Justice Evatt.
  1. Employers should ensure that women on maternity leave are not subjected to a detriment while they are on maternity leave. For example, where there may be difficulties with the completion of work or the management of the staff of a woman on maternity leave, it is the employer's responsibility to deal with the issues through an agreed and mutually beneficial course of action after adequate consultation with the person on maternity leave. That course of action should not include an outcome imposed on the employee by the employer, without the employee's consent, especially when such outcomes could not have occurred if the person was not on maternity leave.

What rights do employees have?

An employer has to ensure that a woman returning from maternity leave comes back to the same or an equivalent job.

In 1990, the federal Industrial Relations Commission decided to recognise the option of fathers being the primary care givers rather than mothers. The Paternity Leave case 1990 AILR 284 also gave all working parents a right to work part time for a limited period to care for their children. This parental leave clause, which covers maternity, paternity and adoption leave as well as part time employment is now starting to be utilised throughout Australia.

These parental leave provisions seek to give effect to Australia's obligations under two international agreements made by the ILO:

  1. the Workers with Family Responsibilities Convention, 1981 and
  2. the Workers with Family Responsibilities Recommendation, 1981.

As things currently stand, the legal liability in relation to provisions for workers returning from parental leave remains untested.

Is an employer ever able to require full time work?

Yes, but only if that is reasonable in all the circumstances.

Requirements that all employees work full time, standard hours have an adverse impact on women workers, although... award prescriptions may hamper attempts to achieve more flexible arrangements. Otherwise, even apart from equal opportunity considerations, the provision of flexible work options makes economic sense in terms of increased productivity, reduced turnover rates and absenteeism, the attraction of quality staff and improved staff morale. states Hunter.

What could the Hickie case mean for fathers?

The findings in the Hickie case have no real legal application to fathers. The reason the case does not directly apply to men is because the findings relate to discrimination on the grounds of sex. Ms Hickie could not comply with the requirement to work full time because of her child care responsibilities. It is the fact that women are generally primary carers and consequently the majority of part time employees that enabled the Hearing Commissioner to reach a conclusion that Ms Hickie had been indirectly discriminated against. The requirement to work full time resulted in the detriment of Ms Hickie.

The case does of course, raise the issue of what accommodation we provide for fathers in the workforce and how we can better educate employers, society and fathers themselves about the fact that fathers too have a right to fulfil the role of carer. Flexible work practices should be an option for all employees with family responsibilities. Employees irrespective of gender should be encouraged not penalised for parenting. Enabling fathers to assume more of the caring responsibilities would lead to healthier work patterns for both men and women. Many men currently feel they have no choice when it comes to adopting more flexible work patterns with some suffering detriment when attempting to do so.

7. Conclusion

Positive Examples
The changing nature of the workforce and the need for greater flexibility have mainstreamed work and family issues for many organisations. Family friendly environments are not merely about limiting the incidents of discrimination against women in the workforce, but rather are about enhancing fairness and equity as well as developing and fostering organisational culture which facilitates change and effective work performance.

During the past 30 years, the labour force has changed significantly. Women's participation has increased markedly, particularly married women and mothers. The part time sector of employment has also increased and women continue to represent the majority of the part time labour force. Change must occur in workplace environments that will encourage women to enter and remain in the workforce if they choose to do so.

While some argue there are substantial costs associated with developing and implementing family-friendly policies and practices, leading edge organisations who have progressed in this area both here and overseas report favourable outcomes, including:

A number of recent case studies illustrate successful implementation of family-friendly policies.

Westpac
Westpac has made a concerted effort to have women return to work after maternity leave. By providing appropriate services to women retuning to work, such as the provision of creches, Westpac was able to reduce absenteeism and achieve higher retention rates which resulted in substantial savings to the organisation. Westpac estimates that it costs between $65,000 and $80,000 to re-train a person to the same level of experience as someone who leaves the bank after seven to ten years of service. The higher retention rates more than offset the costs of providing appropriate services.

Department of Foreign Affairs and Trade
The Department of Foreign Affairs and Trade opened its Currawong Childcare Centre in Canberra in 1997.

Foreign Affairs joins the ranks of an increasing number of agencies that have reported the establishment of childcare and / or family rooms for use by staff. These facilities have been successful in reducing absenteeism and have generally assisted staff to balance their work and family commitments. Some have received Mother Friendly Workplace Awards by the Nursing Mothers Association of Australia.

ICI Australia
ICI Australia had problems of high absenteeism and low staff morale in the early 1990s. It introduced health cover, child care, superannuation and parental leave and sponsored 10 child care places. As a result, "two senior women in Melbourne decided to stay with the company" and many executives realised the pay-off dollar in terms from these family initiatives could be both immediate and substantial.

There is a need for greater recognition of the fact that workers do not stop being family members during working hours. The roles of both worker and family member are legitimate at nay hour of the day. We need to acknowledge that employees often hold both roles simultaneously, and that this, at times, causes conflicts for the employee that ultimately affect work performance and productivity in some way. There must be a way of ensuring that work and family roles complement rather than interfere with each other, to reduce employee stress and increase business efficiency and competitiveness.

It is my opinion that many of the unequal pay outcomes and frustrations for working women can be attributed to the fact that work practices and cultures do not work for women with family responsibilities. In many cases, work culture itself often male oriented and women, whether or not they have time consuming family responsibilities, may feel alienated. I believe we as a society increasingly have to focus on ensuring that our work practices suit all people. If we don't meet this challenge, we will never achieve real equality between the sexes.

Last updated 1 December 2001