Pregnancy Discrimination - A Growing Concern
Keynote Address by Susan Halliday, Sex Discrimination Commissioner to the IIR Diversity and EEO Conference, Sydney, 22 March 1999
Insights into the National Pregnancy Inquiry to conclude 31 May 1999
Last week a woman told her boss that she was pregnant. She worked as a senior sales representative. Partly paid by salary and partly by commission on her sales, over the past year she reached the highest level of sales - a result from which her employer reaped much benefit. After mentally processing the news of her pregnancy, her boss stated that, due to the fact she would be leaving soon, he would be unable to pay her any commission on sales she made before she left the company. This is a true story.
What's wrong with what happened here? Yes, the boss has committed a fairly blatant act of discrimination against a staff member; but there's more.
This employee was a top performer. Highly skilled, she has an excellent understanding of the needs of the company's clients. Despite this, her employer has assumed that she would be resigning from her job. He has alienated a valuable staff member. This is discrimination; this is poor management; this is an example of an individual mindset that has the potential and power to displace a highly skilled worker; this is bad for business.
Today I'm addressing workplace pregnancy discrimination. I often hear people say "it's gone too far - I have to run a business." Or to quote a recent 'fan letter': "Your legislation seems to create as much mischief as it seeks to eradicate."
The reality is that discrimination that breaches sex discrimination legislation more often than not involves behaviour that offends, humiliates and undermines employees; behaviour that ultimately affects productivity. Tolerating such behaviour does not equate to running a good business, irrespective of the size or nature of the business.
In my role as the federal Sex Discrimination Commissioner I have been tasked with educating Australians about their rights and responsibilities under the federal Sex Discrimination Act. This major part of my role includes promoting an understanding of the Act in order to increase compliance.
As we celebrate fifteen years since the introduction of the Sex Discrimination Act, I am concerned that women continue to encounter considerable discrimination in the workplace due to pregnancy or because they are deemed to have the potential to fall pregnant in the future.
I am prepared to stand here before you today and say that pregnancy discrimination is a significant problem in the Australian workforce.
Over recent years some 15% of all initial complaints made under the federal Sex Discrimination Act are pregnancy related.
That is a significant percentage when you think of the number of pregnant women in the workforce at any one time.
Then there are complaints made under State and Territory anti-discrimination law, plus unfair dismissal complaints relating to pregnancy made within the industrial arena. Then there are the women who suffer pregnancy discrimination but do not formalise complaints.
Across Australia, pregnancy discrimination costs business money; - financial loss that accumulates due to decreased productivity and disgruntled employees who decide to resign rather than return after having taken maternity leave. Of course many of these women do return to work - but they return somewhere else or utilise their training and skill to start their own businesses.
Pregnancy discrimination also costs business money through compensation associated with legal cases due to breaches of the federal Sex Discrimination Act and other relevant pieces of legislation.
I am currently undertaking an inquiry into pregnancy and work. The inquiry, which covers both pregnancy and potential pregnancy discrimination in the workplace was announced by the federal Attorney-General, Daryl Williams, on 26 August 1998.
The inquiry will culminate in a report to the Attorney-General by the end of May 1999 plus comprehensive guidelines to assist employees, employers and other relevant parties to better understand their rights and responsibilities in relation to pregnancy and potential pregnancy in the workplace.
I would like to speak to you in more detail about the inquiry and some of the industrial relations and discrimination issues that are emerging as a consequence.
Why have an inquiry?
I'd like to reinforce the two major forces underlying the inquiry - human rights and good business. These objectives do not conflict. In fact, the work we have undertaken thus far has merely reinforced how compatible these objectives actually are.
From a human rights perspective, women have the right to be free from discrimination in the work place on the basis of their pregnancy, or deemed potential pregnancy. From a business perspective, women are highly skilled and of great economic value to individual organisations and the nation as a whole.
Women make up approximately 43% of the Australian workforce.1 Substantial contributors to the Australian economy, they continue to join the workforce and seek employment in greater numbers than men.
With a higher proportion of women participating in the paid workforce I do believe there has been increased awareness that women have the right to work in an environment free from discrimination and harassment. But there is still more work to be done, as the complaints that cross my desk evidence on a daily basis.
A significant proportion of women become pregnant during their working lives. The importance of pregnancy as a social function and the right of women to combine work and family are fundamental principles underpinning the federal Sex Discrimination Act. However, despite legislation, women continue to be disadvantaged when attempting to combine their right to work with their choice to fall pregnant.
The 1996 Australian Census shows that while the number of women in the workforce is rising, the number of children born per woman is falling.2
Research also shows that Australian women graduating from secondary school have high expectations about the number of children they wish to have. In reality however, they give birth to approximately half of the number of children originally desired. This outcome is most prevalent amongst women with a post-school qualification.3
The implications of a low national fertility rate have been recently documented by Australian academics such as Peter McDonald from the ANU.4 Australia's current average fertility rate of 1.8 children per woman means that the nation will experience a net decline in population, excluding increases due to immigration, over the long term.5 A declining population is certainly not good for business - a fact currently supported by a number of leading employer associations.
The low national fertility rate also reflects an increasing trend by women actually making a choice between work and family rather than seeking both. And many women verbalise this choice quite openly. Others decide to have only one child.
Article 11 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) requires Australia to "take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same right, in particular - the right to work as an inalienable right of all human beings."
As a signatory to ILO Convention 156 concerning Equal Opportunities and Equal Treatment for Men and Women Workers with Family Responsibilities, Australia is obliged to recognise "the need to create effective equality of opportunity and treatment as between men and women workers with family responsibilities."
The Australian Government acknowledges the right of women to work and have a family, and the importance of childbirth to society. Accordingly, it is important that workplace and institutional structures do not inhibit the choice to have children or discriminate on the basis of pregnancy or potential pregnancy.
From a business perspective, particularly in Australia where the service industry is becoming increasingly important, well qualified and highly trained staff are crucial to a successful business. For women employees who choose to have a family, it is in the interests of employers to understand their rights and responsibilities, accommodate the pregnancy, and encourage employees to remain with them.
During this inquiry we have come across some leading edge organisations that have implemented very successful policies and strategies surrounding pregnancy in the workplace.
One such example is Westpac. Many have heard Westpac stories but as part of our inquiry we met with a group of employees at the Concord Westpac Service Centre in Sydney. The range of benefits, flexible work arrangements and supportive attitudes at the centre reflected a high level of satisfaction and commitment amongst the employees.
We also had the opportunity to work with Australia Post conducting focus groups at different levels. Australia Post took the opportunity to simultaneously launch their updated pregnancy guidelines for employees and managers/supervisors.
Each workplace is different and has different needs. The better employer seeks to understand their own needs determining a level of compatibility between human rights objectives and those of a productive business.
Several other organisations have talked to us about the fact that they are examining recruitment costs for new employees. Taking into account advertising costs, management time, the cost of work not done while the position is vacant and the cost of training a new employee, recruitment costs are substantial.
In fact the recruitment costs resulting from these factual scenarios are of the type, I consider, good employers would seek to avoid:
- A supermarket
refuses to supply a chair to a pregnant woman working at a checkout.
She cannot cope with standing all day while 6 months pregnant, even
though she is quite capable of doing the job. She leaves.
- A pregnant employee
leaves her employment at a department store due to a limit being placed
on the number of toilet breaks she could take. She leaves.
- An employer requires that all employees wear uniforms but fails to provide larger uniforms for pregnant staff, despite the fact that they ask for them. When a pregnant employee comes to work in casual clothes because she has grown out of her allocated uniform, she is sacked.
I have recently heard managers who, let us remember, legally represent the 'mind and will' of their organisations make comments such as "my wife did the right thing by quitting her job when she was 6 months pregnant, why don't you?" and "pregnant women should be at home taking it easy - why don't you finish up a month or two early", when the reality is that the employee is perfectly capable of doing the job she is employed to do. There are so many personal value judgements and assumptions associated with such comments, plus the fact that she is pregnant does not mean she no longer has rent and bills to pay.
These are real life examples of the experiences of pregnant employees. They have suffered unfairly, courtesy of those who believe they have a right to impose their own personal value system in a public arena, ie - the workplace.
Then there's the discrimination against potentially pregnant employees in the workplace. Potential pregnancy means discrimination against employees who may become pregnant or who are believed to be pregnant. Throughout the inquiry we have heard many stories of discrimination on the basis of potential pregnancy, mainly to do with recruitment and promotion. Women are still asked about their plans to start a family in job interviews. This is particularly so I find in interviews for professional positions, although there are examples of this happening to women working in para-professional and trade areas also.
Picture this; a group interview for a secretarial position, where a room full of applicants were repeatedly asked "Are any of you intending to take extended leave in the next twelve months? Now is a good time to make it known."
More blatantly, a highly skilled private sector MBA graduate was recently asked, in three out of six interviews for senior management positions, whether she had children and whether she intended to have more children. Such questions are not only potentially unlawful, they also defeat the purpose of open recruiting by basing selection criteria on irrelevant matters. I guarantee that the male candidates weren't asked these questions.
The pregnancy inquiry concentrates on the period prior to, and during pregnancy. It is not within the scope of the inquiry to examine maternity leave issues. That's a 12 month inquiry in itself.
We have found this to be a positive limitation rather than a negative one. When looking at pre and post birth issues together, it is easy to overlook the seemingly simplistic issues which arise pre-birth. However, it is these issues that often determine the post-birth treatment and negative experiences on return to work. The strict focus of this inquiry has allowed us to thoroughly draw out the issues of concern during this pre-birth period. And they are not simplistic.
The inquiry has attracted much attention, both in Australia and internationally. So far we have received close to 100 written submissions, as well as numerous verbal submissions via focus groups and personal interviews. Not surprisingly, the number of pregnancy complaints received by the Commission has also risen.
The inquiry has been a strong vehicle for publicising the rights and responsibilities of pregnant employees and their employers. We have had many calls from people who have heard about the inquiry on the radio, the television or read about it in the press or a magazine.
Unfortunately, the inquiry has highlighted a considerable lack of knowledge and understanding of the system of anti-discrimination laws in Australia. This is not just for employers, but also employees, some trade unions and community organisations. It appears that the lowest level of awareness exists amongst apprentices and trainees, women from non-English speaking backgrounds, indigenous women and small businesses.
In Australia we have a fairly complex system of laws and protections against discrimination. In relation to pregnancy discrimination, many laws are relevant and many remedies are available.
Pregnancy discrimination is unlawful under anti-discrimination laws at the federal level and at the state and territory level. Most people in Australian workplaces will be covered by the federal Sex Discrimination Act or their state or territory Act, and more often than not both.
Most of the pregnancy discrimination laws at state and territory level are similar to those at the federal level and can operate together. However, it is important to note that fulfilling your obligations under the state or territory legislation, does not automatically fulfil your obligations under the federal Sex Discrimination Act. There are some important differences. Lets use the NSW Anti-Discrimination Act as an example.
The NSW Anti-Discrimination Act includes a specific exemption to allow an employer to discriminate against a woman if she is pregnant on the date she applies for a position or on the date of an interview.6 This provision is in direct conflict with the provisions of the federal Act. For persons and organisations covered by both Acts, the provisions of the federal Act would prevail.
The same point applies if you are exempt from an obligation under a state or territory Act. This exemption does not exclude you from your obligations under the federal Sex Discrimination Act. It is thus most important that people are aware of the laws at the federal level as well as the state and territory level.
Other laws are also relevant. Employees dismissed on the grounds of pregnancy or potential pregnancy may bring an action against their employer of either unlawful or unfair dismissal under federal industrial relations legislation or equivalent state or territory legislation. Industrial relations laws are therefore another area of law which employers and employees should be aware of.
Occupational health and safety legislation also impacts on the management of pregnant employees in the workplace. Our inquiry thus far has found that the interaction of occupational health and safety legislation is perhaps the most puzzling aspect of managing pregnancy in the workplace for employers.
Changes made to a workplace on the basis of occupational health and safety standards must be made in a non-discriminatory manner. This means that it is discriminatory to fire a pregnant employee on the basis that the floor is slippery. All employees should be protected from slippery floors. Get rid of the slippery floor, not the pregnant employee.
Employers are required to reasonably accommodate the needs of pregnant employees. Failure to do so can, in many circumstances, be seen to be discriminatory.
Submissions to our inquiry have indicated that one of the most difficult aspects of reasonably accommodating a pregnant employee is determining which tasks they are able to do and which tasks are unsafe. This is often exacerbated by the fact that the only guide which employers have is a medical certificate stating "light duties".
There is no universal definition of "light duties". Accommodating a pregnant employee in a workplace is about good management, particularly in this situation.
Good managers are creative and work with their staff in a supportive environment. They ask: "How can work duties be re-arranged to minimise risk for this employee?" and "How can the team be re-organised to accommodate this employee's needs".
A particularly difficult occupational health and safety issue is the exposure of employees to lead. The current regulation of lead standards and employment policies in the lead industry as far as I'm concerned are ad hoc and at best unclear. We have been requested, as part of our inquiry, to seek some clarity regarding guidelines for employing pregnant or potentially pregnant employees in high lead use workplaces.
Another area where good management comes into play is with sick leave. No two pregnancies are the same. Managers, whether male or female, must manage each pregnancy as individually as the employee.
We have had submissions from employees who were denied sick leave to attend medical appointments or whose jobs were terminated when medical complications arose during their pregnancies. I was personally told of one employee who was in hospital due to pregnancy complications. Her boss came to see her in the hospital and then sacked her at her bedside.
Pregnant employees who become ill during pregnancy are entitled to at least the same sick leave entitlements as other employees. They are also bound by the same obligations relating to sick leave such as providing medical certificates and sick leave qualifying periods. This means that any restriction on the use of sick leave by pregnant employees may be discriminatory and therefore unlawful.
In most cases flexibility and good management will solve issues that arise from sick leave during pregnancy. However, where an employee becomes particularly sick, longer periods of leave (often without pay) or the early commencement of maternity leave may be necessary.
It is sometimes difficult to understand why employers are so afraid of sick leave when it relates to pregnant employees. Any employee can get sick at any time. Would the attitude be different if the employee had broken his leg in serveral places during the weekend's football match, and had to be hospitalised for 2 weeks and unable to work to the same capacity for a further 2 weeks?
Finally, I would like to speak to you about policies and practice. A good, well written pregnancy policy is very important for organisations. This is something we actively encourage. In particular, we hope that the guidelines coming out of this pregnancy inquiry will assist organisations in drafting or reviewing their policies. Your average EEO policy is generally not explicit enough when it comes to appropriate guidelines for managing pregnancy.
A good pregnancy policy in hand however equates to only half of the task completed. Sound implementation is vital.
Organisations with pregnancy policies that we have spoken to, have issues arising from implementation. It is difficult for a small human resources unit based in a head office in Sydney to monitor the implementation of their policy in the Dubbo office. However, this is where implementation is most important.
A policy is not complete without good implementation strategy based on the values and characteristics of the organisation. We have had several submissions to our inquiry from employees who work for organisations with great policies but whose managers have no understanding of the actual policy content, and in turn have engaged in blatantly discriminatory activity despite the existence of the policy.
At the same time, we have also had submissions from organisations about some very interesting implementation strategies, which we will be sharing with you in our guidelines.
Vigilant commitment of managers is essential, irrespective of what their own partners and other family members did when they were pregnant. Pregnant workers have a right to decide what is right for them, themselves. Creating a workplace culture that is amenable to the diverse choices people make, a culture that is open to options rather than quick to pass judgement based on stereotypical assumptions and personal characteristics, is the primary objective. It requires making the content of these guidelines part of the everyday business of every line manager and supervisor.
A working environment free from discrimination enables pregnant employees to focus on their work rather than concern themselves with the uncertainty of job security due to the pregnancy. This makes good business sense.
Bureau of Statistics and Office for the Status of Women, Australian
Women's Yearbook 1997, ABS Canberra 1997, 17.
2 In 1990 the total fertility rate was 1.91. By 1995-96 it had dropped to 1.80.
3 Peter McDonald, "Gender Equity, Social Institutions and the Future of Fertility "Research School of Social Sciences Working Papers in Demography No 69, ANU
5 This is similar to the experience in most developed countries. Fertiility rates are particularly low in southern and eastern European countries and Japan, but higher in the Scandinavian countries that have achieved greater advancements in family-orientated social institutions. P McDonald, "Contemporary Fertility Patterns in Australia: First Data from the 1996 Census" (1998) 6(1) People and Place 1.
6 Section 25(1A) Anti-Discrimination Act 1977 (NSW).