Discrimination law fails pregnant women who lose their jobs

Despite laws protecting their rights to work, research shows pregnant women are still being discriminated against with court decisions often being unfavourable to the few bringing legal claims. Legal change is needed if as a society we are to share the costs and consequences of care rather than leaving them to mothers.

Currently at federal level, the Fair Work Act and the Sex Discrimination Act outlaw pregnancy and related discrimination. This is where a worker is treated unfavourably due to pregnancy, leave taking or refusal to create a flexible working arrangement on return to work for example refusal of part-time work.

Essentially the law forbids discrimination if the employer’s motives for their actions were in part because the worker was pregnant. Though the Fair Work Act and the Sex Discrimination Act approach this in very different ways, court decisions suggest that effectively a pregnant employee needs to disprove the employer’s stated reason for their unfavourable treatment. This is very difficult for employees especially in redundancy situations where judges are reluctant to deny an employer’s right to manage their business as they see fit.

Our research, published in the Australian Journal of Labour Law, looked at the 10 pregnancy-related discrimination court decisions from 2010 until 2014 brought by employees who had been dismissed. We found that not a single employee had won their case where the employer claimed redundancy had been the reason for the dismissal.

For example, in two cases (involving a facilities manager and a marketing manager with the same employer) the court conceded that just by their absence from work in a restructure context, they risked redundancy. The court did not consider, in either case, that this had led to discrimination.

The court believed the redundancies were genuine as hypothetically anyone absent for whatever reason would have been treated the same. There was no recognition of how less favourably employers may view a maternity absence, to that say of an extended holiday, with the likely flow on consequences of a returning new mother seeking part-time work.

Another two cases had similar results. One women was about to go on leave and one return from it when cost-cutting occurred in the international company which employed them. Their job duties were redistributed or abolished. The court accepted employer evidence that parental leave did not figure in the decisions to make them redundant.

Another case featured a firm facing financial problems, where the pregnant employee, a merchandise manager, was made redundant after she made her pregnancy known. Evidence was given from the person who used to work in the employee’s role that she had successfully returned part-time from maternity leave to the firm.

The court didn’t comment that this was to a lesser status casual position, so as to enable her to work part-time. Yet this is arguably relevant contextual material about workplace attitudes to maternity.

Pregnancy or parental leave dismissals need always to be viewed in that context given the difficulties women face navigating this. Research by our colleagues Marian Baird and Rae Cooper highlights the difficulties faced by “lucky” women who obtain part-time or flexible work after having a baby. A paid parental leave evaluationfound that though 77% went back to work after childbirth – only 33% returned to the same job pay and conditions.

Pregnant women and new mothers are understandably reluctant to pursue their rights: a 2014 survey by the Australian Human Rights Commission (AHRC) found that nearly half experienced some form of unfavourable treatment during pregnancy, maternity leave or on return, yet only 4% reported this to a government body.

The profound reluctance the courts display in questioning employer discretion leaves a yawning gap in protection of pregnant women and new mothers. This was also shown in the AHRC survey which showed 18% of new mothers reported being made redundant, restructured, dismissed or that their contract was not renewed while pregnant, on leave or on arrival back at work. This suggests discrimination on an industrial scale, a finding recently replicated in the UK.

Currently discrimination protections for pregnant women and new mothers depend on what the court finds to be the employer motives for dismissal suggesting these protections needs rethinking. Explicit rights in the Fair Work Act such as the right to return to one’s job after parental leave (though problematic as it stands) provide a model for protections.

Society needs to agree the jobs of pregnant women are worth protecting, that they have a valid role at the workplace. And that the costs of replacing someone absent from work need to be shared by society as a whole – not just by women nor principally by employers of women in what is a very sex segregated labour market.

Government action to facilitate this is needed. We would suggest encouraging the retention of pregnant employees and employees returning to work after parental leave by a direct payment or tax incentive. This is somewhat similar to a UK arrangement for small employers – they receive 104% of the statutory maternity pay they give.

Stronger protection under law is needed for women who are pregnant and on return from work, such as protections provided in some European laws. For example, prohibit dismissal of pregnant employees or new mothers (unless an employer goes bust) till one year after return to work.

There could also be more resources for the Fair Work Ombudsman to enforce the law. The ombudsman has pursued a few pregnancy discrimination cases for women complainants, all successful. She has also, in other cases, obtained “enforceable undertakings” providing remedies to assist future pregnant employees in the workplaces concerned.