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Pregnancy Discrimination - A Growing Concern

Discrimination Sex Discrimination

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:

  1. 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.

  2. 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.

  3. 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.

Conclusion

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.

Footnotes

1 Australian
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
4 ibid.
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).

Last
updated 1 December 2001