The law exists to protect women from discrimination, but how? Following on from her chat with Kinderling Conversation, Eliza Sarlos, a solicitor with Hall Payne Lawyers, explains workplace discrimination after falling pregnant.
How does discrimination start?
Statistics show there’s a systemic and pervasive prejudice when a woman hits childbearing age or has kids. From this point in time, it grows and both workplaces and women just don’t seem to overcome that.
The easiest way to see evidence of this is in the gender pay gap. While we interrogate pay equity in many different ways, it'll continue to be a part of workplaces until we address the discrimination faced by pregnant women and new mums at both a legal and cultural level.
For me, these issues tie in to the fact that discrimination around having children is so widespread. While the burden of changing this shouldn’t fall on women, the reality is that until we start enforcing those legal rights we do have at work there won’t be the cultural impetus for change.
The time around having children is so emotionally and physically draining that when things happen at work, the path of least resistance is, at the time, the best option. When you’ve had three hours sleep and your uterus is a punching bag for your future kid, it can be difficult to see past the next 24 hours, let alone to think about your career in the long term.
We know women with kids experience a ‘motherhood penalty’ at work, and this is the point at which that penalty starts to take shape. And that penalty is one of the largest contributors to the gender pay gap – the gap between working mothers and working women without children is larger than the gap between women and men, which demonstrates a bit of what’s going on there. So for me this is a huge feminist issue. And one that we so often ignore because of all the other stresses around having kids.
While the legislation in this area needs to be stronger, the legislation that does exist needs to be used. This stuff happens behind closed doors and it’s so rare to have insight into how pervasive this issue is. Luckily, we’re only a few years on from the ‘Supporting Working Parents’ report, released in 2014, which gives us a few stats to grab on to/ recoil from.
Listen to Eliza's interview on Kinderling Conversation:
How many women are affected?
We all know someone who has been impacted by discrimination associated with having kids. Examples of discrimination that pregnant women experience might be missing out on training, getting looked over for a promotion because you’re going on leave in three months, a prospective employer withdrawing a job offer when they find out you’re pregnant, or your manager reducing your hours after finding out you’re pregnant.
Discrimination may also be a work requirement that means you’re no longer able to do your job because of the pregnancy – like the fact you have to stay on your feet for an eight hour shift in circumstances where sitting on a stool would be reasonable, or a policy that says you can only have two toilet breaks a day when you have a baby sitting on your bladder and definitely need to go more than that.
It’s not a coincidence that you’re familiar with these stories – this kind of stuff happens way too often. Let’s look at some stats:
- 49% of women have experienced discrimination in the workplace at some point during pregnancy, parental leave, or on return to work
- 27% of women experience it during pregnancy, and 32% experience it when requesting or taking parental leave
- Of these women, 37% reported that they had been threatened with redundancy or dismissal, made redundant, were dismissed or didn’t have their contract renewed.
- 49% said that the discrimination they experienced was related to pay, condition and duties.
- 46% said the discrimination related to career advancement opportunities and their performance assessment.
- 40% reported negative comments and/ or attitudes from their manager, employer or colleagues.
With these stats, it’s not difficult to see the link between discrimination around child bearing and rearing, and the manifestation of the gender pay gap. But why is it so hard for policy makers to see that link?
Only 6% of women make a formal complaint to their employer (and only 5% report it to government agencies). We know most women don’t complain about it or talk about it, and it’s easy to see why. At a time when your focus is rightly on your new or growing family, discrimination is a stress you don’t want, or want to do everything you can to move beyond.
As a result, the urgency to change this isn’t there at a policy level, and the pressure isn’t being applied at the judicial level either. In circumstances like this it’s hard to find the circuit breaker needed to change the system.
What is discrimination?
Discrimination occurs when, because of a certain attribute, you’re treated less favourably than someone who doesn’t have that attribute.
Under the Sex Discrimination Act 1984 it is unlawful to discriminate against a woman on the grounds of pregnancy or potential pregnancy. Put simply, pregnancy discrimination occurs in the workplace when you’re treated differently to a colleague because you’re pregnant, you might be pregnant, or you might become pregnant.
It’s important to remember that discrimination includes what is commonly called ‘indirect discrimination’, which is where a condition or requirement or practice is imposed which has, or is likely to have, the effect of disadvantaging you because you’re pregnant.
What this means is that a whole range of behaviours that pregnant women encounter could be considered discriminatory, in certain circumstances.
How can the law protect me?
Broadly speaking two areas of law protect women during pregnancy; discrimination law (when looking at pregnancy, this is the Sex Discrimination Act ) and workplace law ( Fair Work Act ), with each having different ‘remedies’, or ways to address unlawful behaviour.
As well as it being unlawful to discriminate against a woman because she is pregnant, workplace law offers protection to workers exercising a workplace right.
This includes continuing to work while pregnant, and also taking parental leave. Your employer can’t treat you negatively for either.
While pregnant, you should have access to all benefits of employment that another peer has, such incremental pay increases, training opportunities promotions, and all your regular entitlements. It doesn’t matter if you’re about to go on parental leave.
If you think you’re not getting treated fairly, you should raise this with your employer, contact your union, or seek legal advice.
The Fair Work Act also requires your employer to provide you with a safe job or, if that’s not possible, they must give you what is called ‘no safe job leave.’ If you provide them with evidence (like a medical certificate) that says you’re fit to work but there are risks arising out of your pregnancy or hazards connected to your job, and there is an appropriate safe job available, then you are entitled to be transferred to that job. If you’re transferred to a job that usually has lower pay, you are entitled to the pay, hours and other entitlements you would get in your normal job.
If there isn’t a safe job for you to transfer to you will generally be entitled to paid ‘no safe job leave’, which is paid at your base salary rate. If you will not have completed 12 months of service with your employer by your due date this option won’t be available to you.
I’m pregnant, do I have to tell my employer?
In most circumstances you don’t have to tell your employer until you’re at the point of needing to let them know you’ll be taking leave. Apart from this there’s no requirement to tell them, although you may decide for other reasons that it’s useful for them to know.
To take unpaid parental leave, you are required to give ten weeks notice, so that will be when you’re around 30 weeks pregnant. Of course, things may be pretty obvious by then!
Can my employer ask if I’m pregnant?
Generally speaking, your employer cannot ask you if you are pregnant, nor can an interviewer ask if you’re planning to start a family. There are some exceptions to this – particularly if you’re in a job where there may be risks involved by working while pregnant.
Can my employer direct me to take leave?
Within six weeks of your due date your employer can ask you for a medical certificate that confirms that you’re still able to work, and that it’s safe for you to do your normal job. If the certificate establishes it’s safe for you to continue work, then your employer can’t direct you to take leave.
If the certificate says that you’re fit to work, but that you can’t continue in your job for safety reasons, that’s where you and your employer might look at a transfer to a safe job, or where ‘no safe job leave’ will be appropriate.
Can I take time off for appointments?
Strictly speaking, there’s no obligation for your employer to give you time off and because pregnancy isn’t an illness, the use of personal leave will depend on your circumstances. That said, some awards, enterprise agreements or workplace policies may allow you to use personal leave to attend pre-natal or medical appointments – you should definitely check. You can also try to come to an arrangement with your employer.
If your workplace has been flexible with other people for other purposes, they should give you that same flexibility.
What if I need to take time off for illness?
While pregnancy is not considered an illness, pregnancy-related illness is. You can take personal leave (sometimes known as sick leave) if you can’t work because of something like back or leg pain, gestational diabetes, or pre-eclampsia. If you’re eligible for unpaid parental leave you may also be able to take unpaid special maternity leave if you have a pregnancy-related illness.
Where can I turn for help and to find out more?
- Supporting Working Parents
- Fair Work Ombudsman
- Hall Payne Lawyers
- Union (if you’re a member)
- Women’s Legal services
- Top End Women’s Legal Service (NT)
- Kingsford Legal Centre (NSW)
- Caxton Legal Centre (QLD)
- Employment Law Centre of WA
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