Pregnancy discrimination at work still alive and well

| August 9, 2012

When new Yahoo! CEO Marissa Mayer announced she was pregnant before she even started her high profile job it re-opened an old dialogue about pregnancy and women’s rights in the workplace. Eliza Bateman says it is surprising that in 2012 it still creates controversy.

On 16 July 2012, Marissa Mayer was appointed CEO of Yahoo! Three hours after her appointment was announced, Mayer disclosed that she was six months pregnant. When asked about maternity leave, Mayer said: "I like to stay in the rhythm of things… My maternity leave will be a few weeks long and I’ll work throughout it."

Mayer’s disclosure of her pregnancy led to a storm of media commentary, raising the same old debates of whether employers really want to employ women planning a pregnancy, whether women ‘should’ disclose their pregnancy or their intention to have children, and whether people who have children work as effectively as people who do not.

I was genuinely surprised by the tone of the debate about Mayer’s disclosure, and the fact that one woman’s choice for a professional role and a family had been such a lightning rod for emotive critiques of pregnancy, women in employment, and their right to work.

For example: some articles have seriously questioned whether Mayer will be able to properly discharge her obligations as CEO, as she will need to balance her job with family responsibilities. In one Forbes article, Francine McKenna linked pregnancy with medical conditions such as cancer and heart disease as potentially relevant issues for CEOs of public companies to disclose to protect shareholders. McKenna went on to comment that Mayer’s age (she is 37) put her in a ‘higher risk category’ for pregnancy risks than younger women, and that Yahoo! should publicly disclose what ‘contingency planning’ it has in place should anything go wrong during Mayer’s pregnancy.

Sadly, the tenor of this debate reflects the reality that pregnancy discrimination in employment is still a live public policy issue for women, including Australian women. In Australia, pregnancy discrimination continues to be a significant concern for women in the workplace, particularly women working part time, in contract positions or on a casual basis.

The Fair Work Ombudsman reported that in 2009-2010, pregnancy ranked second of all investigations conducted by the watchdog, with 74 substantive complaints.  In the 2010-2011, the number of complaints of pregnancy discrimination rose to 96 (8% of all complaints lodged).

In Australia in 2012, women should be able to have children and to work in a fulfilling job, and should not be marginalised or disadvantaged for wanting to do both of those things.  In fact, for many families, it is a necessity that there are two incomes.

Anti-discrimination law recognises this: and it’s important to keep that in mind when discussing the issues of pregnancy, discrimination, recruitment and employment.  Employers and employees should know that it is against the law in Australia for an employer to discriminate (directly or indirectly) against a woman because she is pregnant or planning to get pregnant, because she is breastfeeding, or because of her responsibilities as a parent. Employers will be liable for the unlawful actions of their employees unless they can show they have taken all reasonable steps to prevent the discrimination from occurring.

There is no Australian law that requires a woman to disclose her intention to become pregnant to an employer or a prospective employer. However, it is against the law for an employer not to hire a woman merely because they think she might be or become pregnant, or to dismiss or retrench someone for this reason. This means that pregnant women should be able to safely disclose their pregnancy to their employer without fearing repercussions such as demotion or dismissal.

 

Eliza Bateman is a Senior Lawyer in the Equality Law Program at Victoria Legal Aid.

(Victoria Legal Aid receives many inquiries about pregnancy discrimination each year, and they provide advice and legal representation to women in anti-discrimination disputes.  If you think that you have been discriminated against because you are pregnant or thinking of becoming pregnant, or because of your parental responsibilities, you can contact Victoria Legal Aid on our help line: (03) 9269 0120 or 1800 677 402.)

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