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Keep pushing...we're almost there

Sex Discrimination

Keep pushing...we're almost
there

By Susan Halliday, Sex Discrimination
Commissioner to the National Baha'i Office for the Advancement of Women,
International Women's Conference '99, 17 September 1999

The recent Report
of the National Pregnancy and Work Inquiry tabled in parliament and launched
on 25 August 1999 is the focus of my contribution to this conference.
The Inquiry was granted to the Human Rights and Equal Opportunity Commission
under the auspices of the federal Sex Discrimination Act by the Attorney-General,
Daryl Williams, in August 1998.

The findings of this
report are quite disturbing, affecting women and their partners. Pregnancy
discrimination is "alive and kicking".

Before I elaborate
on the findings of the Pregnancy Inquiry and the challenges facing us,
I'd like to reflect on how far we've come. Ensuring sex discrimination
is constantly on the agenda has not been easy. Many people have fought
long and hard to gain the ground others take for granted.

We need only to look
back to the early 1980's when the federal Sex Discrimination Act was proposed.
One of the longest debated, and most passionately contested Bills ever
to go through the Commonwealth Parliament, the objections to the proposed
Sex Discrimination Bill included that it defied nature, that it would
destroy the family, greatly devalue women's traditional role and push
women into the workforce against their will.

That the debated
Bill was passed, was in itself, a victory. And the women and men who pushed
so hard for its acceptance should be congratulated - we owe them much.

Some 15 years on
the Sex Discrimination Act continues to operate well, providing legal
guidance, education and redress for thousands. Internationally, the Act
is held in high regard and utilised by many nations initiating similar
legislation.

There are those in
Australia however, who'd be very comfortable returning to previous eras
when the broader community supported and encouraged men's dominance over
women. There are those in the community who believe my role "rots the
fabric of society". But the regular stream of complaints that cross my
desk indicate otherwise - we have the legislation for good reasons, and
the role of the Sex Discrimination Commissioner for a clear and necessary
purpose. Statistics show the Act and the role are essential.

While men also face
discrimination and harassment, some 84% of complaints lodged under the
Sex Discrimination Act in the 1998-99 financial year were made by, or
on behalf of women. For the 1998-99 year over 80% of all complaints were
employment related.

Complaints relating
to pregnancy or potential pregnancy discrimination make up a significant
proportion of complaints. In 1997-98 complaints to the Human Rights and
Equal Opportunity Commission (HREOC) on the ground of pregnancy or potential
pregnancy made under the Sex Discrimination Act constituted some 15% of
all complaints. In the 1998-99 financial year this increased to 18%.

This type of discrimination
is more widespread than this figure suggests however. State and territory
anti-discrimination bodies also receive complaints independently. Plus
other cases are dealt with by private mediators, internal company procedures
and unions. Additionally, as indicated - then evidenced - by the Pregnancy
Inquiry, many women do not report instances of discrimination because
they fear retribution or are overwhelmed by their pregnancy or newborn
child and are unable to expend extensive energy going through the formal
complaint process.

The Inquiry received
well over 100 written submissions. Extensive consultations with women's
organisations, other non-government organisations, unions, employer groups,
and individual women also provided a wealth of additional valuable data.

Entitled Pregnant
and Productive: It's a right not a privilege to work while pregnant
,
the report was released on 25 August 1999.

Case studies

  • An employer dismissed
    a pregnant bar attendant on the basis that she might fall on the slippery
    floors and injure her unborn child.1 Floors should be safe
    for all employees.

  • A Judge's Associate
    who was eight months pregnant was told by the Judge that he wasn't going
    to support her application for maternity leave because she had chosen
    a new career. He believed women should stay at home with their children.2

  • One worker was
    given repeated assurances that a permanent position would only be advertised
    internally, so that if she still wanted the job permanently it would
    be hers. However when the employer found out she was pregnant the position
    was advertised externally and the woman did not get the job.3

  • A casual receptionist
    became pregnant and needed some time off from work to see her doctor.
    Although she gave her employer two weeks notice of her unavailability
    on the day of her appointment, her employer threatened to sack her if
    she did not turn up at work on that day. She went to the doctor as planned
    and two weeks later she was dismissed.4

  • A contract worker
    with five years of service with the same employer informed her boss
    that she was pregnant. She requested maternity leave and her employer
    refused, saying that contract workers did not get maternity leave and
    added that if anyone was to be dismissed, she'd be the "first to go".5

  • A car manufacturing
    company repeatedly refused to provide a pregnant worker with seating,
    despite the employee providing several medical certificates requesting
    seating due to bleeding and extreme pain. Seven months into the pregnancy,
    the employee collapsed at work; her child was born by Caesarean, seven
    weeks premature with an underdeveloped heart.6

  • A TAFE Casual
    Supply teacher had been teaching continuously for two years. Her teaching
    load was 4 days, 4 hours and 15 minutes. This is half an hour short
    of a full-time teaching load. The teacher applied for maternity leave
    payment but was denied on the basis that she was a casual teacher who
    had not taught a full load.7

These are not isolated
stories. They represent a sprinkling of the experiences detailed about
poor workplace management of pregnancy.

Marginalised women
clearly face great challenges in the workplace. Some young women for example,
who work as apprentices and trainees face blatant discrimination on the
ground of pregnancy or potential pregnancy, especially if they work in
male-dominated areas. For example, 45% of workers surveyed at a construction
site for the Inquiry said that if they were the boss they would be less
likely to employ a tradeswoman or female apprentice of child bearing age
than a man. This is outrageous blatant discriminatory stereotyping, not
to mention illegal! But this is reality on the ground. The thought that
almost half of the respondents would not employ a young woman because
she might become pregnant sometime in the next 20 years says an awful
lot about the industry, the 1950s mindset that operate within it, and
in turn reflects the biased attitudes that prevail in parts of our society.

The Inquiry found
that a significant number of young women have limited knowledge of anti-discrimination
laws, and that when they are aware of their rights, they are reluctant
to speak out in fear of losing their apprenticeship or traineeship; past
experience and the treatment they've witnessed colleagues suffer clearly
dictates their silence.

During a TAFE focus
group, it was reported that most women in the group had been told directly
at some stage in their working lives that "It's a waste of time giving
you an apprenticeship 'cos you're going to get pregnant."
8

Denying a woman the
opportunity to start or complete an apprenticeship or traineeship because
of pregnancy results in both short and long term disadvantage.

The Pregnancy Inquiry
also evidenced that women living in rural and isolated areas also face
additional difficulties, including lack of access to basic prenatal services.
The inquiry was told these difficulties result in some women and their
partners deciding not to have children, or the decision to limit the size
of the family. These circumstances add to the complexities of attracting
and keeping skilled workers in rural areas.

For example, the
Australian Education Union cited pregnancy and work related difficulties
as a major reason why women educators of child bearing age often refuse
work in rural areas.

A different example
was evidenced by the story of a long-term temporary employee of Queensland
Health who was working in a remote location. She was unable to secure
permanent employment there because she was pregnant. Permanent positions
were available but, until her union intervened, her managers were not
going to offer her one. This is even more extraordinary given the difficulty
the management had recruiting nurses to this remote location.9

Government, industry
and local residents need to make a long term commitment in order to achieve
the cultural change needed; it can only benefit both workers and the community.
However, as submissions to the Inquiry indicated, there are some short
term practical solutions which would assist pregnant employees in rural
and remote areas. Improved communications to rural areas, based on Internet
and satellite technology and a national mobile phone network would dramatically
increase women's access to services and information.10

The Inquiry indicated
women from culturally and linguistically diverse backgrounds require information
that is culturally astute and sensitive. During the Inquiry, barriers
that still operate to exclude women from culturally and linguistically
diverse backgrounds became apparent. These women also stated that they
were often reluctant to seek information when pregnant.

Barriers included
language proficiency, cultural differences, migrant status, skills and
qualifications recognition and a lack of awareness of procedures and services.11
For some women, a fear of government, police, or other authority figures,
management for example, ultimately prevented them from seeking information
about their rights, let alone doing anything to enforce such rights.12

A project undertaken
by the New South Wales Indo-China Chinese Association found that, on average,
60.7% of Chinese women interviewed had no knowledge of agencies that offer
assistance in work-related discrimination issues.13 To address
issues such as these, the Inquiry recommended that strategic action be
taken to educate and empower all women using many different mechanisms
about their rights and responsibilities in relation to pregnancy and potential
pregnancy.

The Inquiry evidenced
that many Aboriginal and Torres Strait Islander women were also unaware
of anti-discrimination laws covering pregnancy and potential pregnancy
at work.

It is common for
Aboriginal and Torres Strait Islander women to want/need to return home
for the birth of their child. They want to have their babies where they
were born.14 To travel the required distance many women have
to use part of their unpaid maternity leave. For some this impacted upon/reduced
their options when returning to work.

Consultations with
Working Women's Centres revealed some Indigenous women resigned when they
became pregnant because they believed there was no alternative. These
women were not aware of laws covering pregnancy or their right to unpaid
maternity leave.

The fact that Indigenous
women resign when they become pregnant, or in some cases terminate their
pregnancy rather than risk losing their job, is tragic.

The Inquiry found
much of the current resource material on workplace pregnancy is too complex
and culturally alienating.

This discourages
many women and in particular Indigenous women from seeking information
themselves when employers who have a legal responsibility to provide the
relevant information have failed to do so.

The Inquiry recommended
that culturally specific material for Indigenous women and their families
be produced.

The needs of partners
also featured in Inquiry findings. Pregnancy is rarely the sole preserve
of the pregnant woman, it usually involves partners, relatives and friends.

Unfortunately however,
there are some employers who refuse to acknowledge partners' needs in
such circumstances.

Not only have men
been denied leave to attend significant medical appointments with their
pregnant partners - they have been denied leave to attend the birth!

Even in situations
where an industrial award or company policy is family friendly, men noted
they are often reluctant to use the policies for fear of covert discrimination
or being labelled as uncommitted. Unfortunately real life doesn't mirror
the policy rhetoric in certain organisations (both public and private
sectors). Australian workplace cultures continue to make it hard for men
to ask for time off to support their pregnant partners and some men have
made it clear that it's in their best interests at work not to mention
their family.

Men need and should
be encouraged to be involved in family life. They should not be penalised
for parenting.

Finally, I would
like to reflect on the title of this speech - "Keep Pushing...we're almost
there". This title has a ring of optimism, heralding in a new and unprecedented
time of equality and prosperity for women. But I'm afraid that we're going
to need more than just a "little push" to make the progress desired. I'm
concerned that the labour pains of equality have not advanced far enough
to deliver us workplaces free from pregnancy discrimination. And while
we are closer than we were fifteen years ago when the Sex Discrimination
Act was introduced, we still have a way to go.

I look forward to
continuing my work in the pregnancy discrimination arena and ask that
each of you, in your own unique way, contribute what you can in order
to ensure that all women find themselves in a position to continue to
work while pregnant; after all this is a human right not a privilege.

Endnotes

1 Allegretta
v Prime Holdings Pty Ltd t/a Phoenix Hotel & Anor
(1991) EOC 92-364,
78, 506, quoted in Human Rights and Equal Opportunity Commission. Pregnant
and Productive: It's a right not a privilege to work while pregnant
,
HREOC, Sydney, 1999, 128.

2 Public Service Association of New South Wales (Submission
no 92) quoted in Human Rights and Equal Opportunity Commission. Pregnant
and Productive: It's a right not a privilege to work while pregnant
,
HREOC, Sydney, 1999, 46.

3 Australian Nursing Federation (Submission no 45) quoted in
Human Rights and Equal Opportunity Commission. Pregnant and Productive:
It's a right not a privilege to work while pregnant
, HREOC, Sydney,
1999.

4 Job Watch Inc (Submission no 60) quoted in Human Rights and
Equal Opportunity Commission. Pregnant and Productive: It's a right
not a privilege to work while pregnant
, HREOC, Sydney, 1999 143.

5 Job Watch Inc (Submission no 60) quoted in Human Rights and
Equal Opportunity Commission. Pregnant and Productive: It's a right
not a privilege to work while pregnant
, HREOC, Sydney, 1999, 145.

6 Australian Manufacturing Workers Union, National Office (Submission
no 57) quoted in Human Rights and Equal Opportunity Commission. Pregnant
and Productive: It's a right not a privilege to work while pregnant
,
HREOC, Sydney, 1999, 186.

7 New South Wales Teachers Federation (Submission no 70).

8 TAFE Queensland and Group Training Australia (Focus Group,
10 March 1999).

9 Queensland Nurses' Union (Submission no 37).

10 Australian Women in Agriculture (Submission no 55).

11 Department of Immigration and Multicultural Affairs (Submission
no 28); Townsville Community Legal Service (Submission no 78); New South
Wales Government (Submission no 99).

12 Immigrant Women's Speakout (Focus Group, 22 February 1999).

13 W Tse Women and Paid Work Project - Recommendation report
on work-related issues of Chinese women
, NSW Department for Women,
Sydney 1997, 13.

14 New South Wales Teachers Federation (Submission no 70);
Tranby College (Focus Group 8 February 1999).

Last
updated 1 December 2001