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The Employers Penalising You For Being Pregnant

For many women, motherhood means missed career opportunities - and the perception that they're no longer serious players at the office. In the wake of startling new statistics from the Australian Human Rights Commission, we report on the employers still penalising women for getting pregnant.

On a crisp, cloudless winter’s day in 2012, staff from a major Australian hospital gathered over lunch to bid a temporary farewell to their workmate Chloe*. Sometime between main course and dessert at the ritzy Italian restaurant, the group handed Chloe two generous gifts and an oversized card festooned with funny, affectionate messages. Was she having a boy or a girl, – the group – which included Chloe’s extremely supportive boss – playfully debated. 

Thrilled with the afternoon, and excited about the future, Chloe, a highly regarded doctor on a six-figure salary, left for maternity leave on a high. The gifts she received that day weren’t the last from the hospital. When her daughter was born, along with a flood of phone calls and emails, came flowers from her colleagues. About four weeks later, Chloe’s boss visited her at home to see the newborn and offer his congratulations. Amid the whirlwind of goodwill, Chloe came to a happy conclusion: she adored being a mother.

About eight months into her leave, Chloe rang her boss to talk through some routine work matters. As they chatted, she mentioned how much she was enjoying motherhood, and that because of her age – she was 35 – she planned to have a second child soon. Did his tone just turn cool, she wondered, or was she imagining it? A few weeks later, she dropped by his office. “Oh good, I’m glad you’re here. Sit down,” said the man, a senior medical figure.

What happened next landed like a blow. “Clearly you’re not committed to this unit,” he told Chloe. “Clearly you’re not committed to your duties. You’re not leadership material and I need someone else to do your job.” Chloe was stunned. This man had been her mentor. He’d supported and promoted her, and openly anointed her his successor as head of the unit. Now he was saying that he wanted her out. And there was only one possible explanation: her admission that she would be taking maternity leave again soon.

“You’re not leadership material and I need someone else to do your job”

Chloe’s boss

“I kept looking at him as if to say, ‘Come on, this is me!’ I recall saying, ‘I am committed to this job. I love this job. The only difference here is that I’ve had a child and I’m keen to have another one.’ But to me that doesn’t affect my ability to provide an excellent service as a clinician and a teacher,” she says.

It happened two years ago, but for Chloe the memory remains vivid. Her voice is strained as she describes the four months that followed that devastating conversation, which were spent locked in fruitless negotiations. At one stage, the hospital’s HR department told her that the problem was her performance. She countered that they should check her glowing five-year performance review history. They rang me back a few weeks later and said, ‘You’re right, its definitely not about your performance,'” she says, drily.

Lawyers she spoke to confirmed she had a case. But in the end Chloe chose not to take legal action, mostly out of loyalty to her former colleagues. Walking away from her job – and a boss for whom she no longer wanted to work – was simply easier, albeit one of the worst moments of her life.

Chloe’s story has all the hallmarks of a classic pregnancy discrimination case: painful, hard-to-prove and ultimately unresolved. It’s also far from unique. Pregnancy discrimination is the number one reported form of discrimination in Australia. The first-ever national review into the issue, recently carried out by the Australian Human Rights Commission (AHRC), has produced hundreds of submissions from women nationwide that make startling and disquieting reading.

Most shocking of all is the review’s main finding, which reveals that one in two Australian women will face discrimination at work while pregnant, on maternity leave or upon their return to work. Meanwhile, one in three of the women surveyed reported that they had been threatened with redundancy or dismissal, or had in fact lost their jobs, because of pregnancy.

The ramifications of the study are huge – and not just for women considering starting a family. Australia lags far behind most developed countries when it comes to workforce participation among women of child-bearing age. The results of the review beg the question: how many women are silently dropping out of the workforce – or falling a few rungs down the career ladder – because of discrimination?

On a personal scale, pregnancy discrimination can be devastating. Elizabeth Broderick, the federal sex discrimination commissioner, was struck by the deep sense of disempowerment expressed by many of the women she spoke to as part of the review.

She says they used words like ‘demeaning’ and ‘demoralising’ to describe what had happened to them, and also told her they’d started doubting themselves and their abilities. “Some of the women were highly qualified professionals,” emphasises Broderick. “A lot of them are left with quite significant trauma some years on. So there has been a very significant impact on their self-esteem and confidence.”

How nasty does it get? Very. Some women, told bluntly by their managers that they had a choice – their job or the baby – were left wondering whether they were being asked to terminate the pregnancy. Fortunately, that sort of discrimination isn’t widespread. “It’s more nuanced than that,” says Broderick, who has heard many stories about sham restructures. Women were phoned while on maternity leave and told there had been a restructuring and unfortunately their job no longer existed. Then, a couple of months later, they would find out that they were the only ones who’d been restructured.

Others were bewildered by the way their history of exceptional performance appraisals became a thing of the past. Suddenly, because they had family responsibilities, they were no longer regarded as serious players.

“So you’re denied access to training. You fail to be promoted,” says Broderick, who agrees that the 24/7 workplace, now the predominant model of work, is part of the equation as well. “I think at the heart of it is an unconscious belief in the gender stereotype that a carer can’t be a committed worker,” she adds. Women told Broderick about pay cuts; others revealed they’d returned to work only to have their rostered schedules changed in ways that made childcare arrangements difficult, if not impossible; several were informed that overseas travel was now required even when it hadn’t been part of the job before.

“There’s a belief that a carer can’t be a committed worker”

Liz Broderick, Federal Sex Discrimination Commissioner

Broderick heard from top performers who were suddenly excluded from meetings; told it was pointless to complete upcoming performance reviews because they were about to go on maternity leave; or given a full workload despite negotiating a return to part-time hours and a matching part-time salary. In some of the worst cases, women who said they were pregnant got their marching orders instantly, or after they went on maternity leave – or they were dismissed when they returned to work. Financial hardship often followed. Kristen Hilton, of Civil Justice Access and Equity at Victoria Legal Aid, describes the case of a young woman who had been given a glowing performance review the day before telling her boss she was pregnant: she was immediately given the boot.

Then there’s Julie , 24, who worked for a retail business in Melbourne. Her manager, who had behaved coldly towards her the moment she told him late last year she was pregnant, became infuriated when she developed terrible morning sickness – clicking his fingers at her if she sat down, and sending her text messages when she was in the bathroom telling her to hurry up because there were customers waiting to be served. In fear of losing her job, Julie put up with the treatment. Twice, she was admitted to hospital because of dehydration. When she was three months pregnant, Julie’s doctor wrote a medical certificate, which she gave to her manager, requesting that she be given shorter working hours so she wasn’t standing on her feet eight hours a day. He ignored it.

Julie’s boss called her three days later and told her he couldn’t agree to the doctors request because the business wasn’t in a position to let him. “I said, ‘Basically Ive got no choice but to leave’. He said ‘Yes, pretty much'”, says Julie.

So she resigned. Unable to get another job since, she isn’t eligible for paid maternity leave. Her baby is due and her financial situation is precarious.

Victoria Legal Aid has taken up her case, though Hilton points out that Julie’s situation highlights another aspect of pregnancy discrimination – the adjustments often needed to working conditions because of the physical symptoms of pregnancy. “If a woman needs extra toilet breaks, or she’s really ill and she needs time off during the day, under the current legislation in Victoria there’s no positive obligation on employers to make reasonable adjustments for a woman during pregnancy,” says Hilton.

This is in contrast to existing requirements that reasonable adjustments be made for workers with a disability. A woman can try to claim that normal pregnancy symptoms amount to a disability for the purposes of the legislation, but that’s quite difficult to do.

In fact, looking at the statistics, prosecutions for pregnancy discrimination are rare. In the past four years, the Fair Work Ombudsman’s Office has investigated 133 cases of pregnancy discrimination. Only five went to court.

It’s easy to understand why many women shy away from legal action. The stress and uncertainty of a court case during what is already a stressful time, as well as fear of the impact that it would have on their professional reputation (especially if they work in a specialised field), are just some of the reasons women walk away rather than go to court.

Broderick says she was struck by the absolute fear of victimisation that many women had in reporting their experiences. “We had the highest level of submissions that we’ve ever had. But so many of those women would not agree to their submissions being made public [and] would only talk on a one-to-one basis,” she says. That few cases are successfully prosecuted is a fact that wont have escaped the attention of unscrupulous employers.

The new Australian Human Rights Commission review dealt only with discrimination during or after pregnancy. But it’s a testament to the insidious nature of the problem that it can taint the career prospects of all women in their 20s or 30s.

Countless studies suggest that employers are less likely to hire women of child-bearing age for fear they’ll go on maternity leave before their feet are under the desk. (In fact, only 10 per cent of women leave their jobs after less than a year to go on maternity leave.)

And you’re not out of the woods if you already have children. A study by New York’s Cornell University found that women with children are seen as less committed and are therefore paid less than women without children thanks to the motherhood penalty. Researchers sent out hundreds of fictional CVs – and indicated on half that the applicants were parents (by mentioning, for example, that the applicant was involved with the PTA). The recommended salaries for mothers turned out to be $11,000 less than for non-mothers.

One widely reported UK study last year found that women are so afraid they’ll be discriminated against that one in three removes their wedding ring before job interviews or at work – in fear that their relationship status would harm their employment status.

On one level, it’s easy to understand employers concerns. Innes Willox, chief executive of the Australian Industry Group, believes that most employers try to do the right thing by their workforces. “However,” he says, “It’s a balancing act for business because they have to ensure that they continue to get their product out and sustain their workforce.”

“It’s a balancing act for business … they have to to get their product out.”

Innes Willox, Australian Industry Group, Chief Executive

 Small businesses can be particularly impacted when women take maternity leave. Lynda Davis is the owner of a day spa in the Blue Mountains west of Sydney, and with eight employees – two have taken maternity leave in the past couple of years, and a third will go soon – believes in creating a supportive environment for pregnant workers. She points out, though, that it takes time to train people to work at the spa, and replacing them temporarily isn’t ideal either for the business or for the person employed casually to fill in who has no long-term job security.

Recommendations following the national review are due out in July. But Broderick, for one, believes that flexible work arrangements are key to the future, and that until flexible work becomes as ubiquitous as full-time work, this form of discrimination won’t disappear.

In the meantime, pregnancy discrimination continues to bring some careers to an abrupt halt. Anna* was a senior employee at an ASX 50 company when she became pregnant with her third child at 39. Previously, shed had no problems taking maternity leave.

But this time, her new boss, a woman, was unsympathetic in the extreme. Anna was given a full workload despite negotiating a three-month period of part-time hours (and a part-time salary). She was told she was no longer talented despite having won two awards for the company. At meetings, in front of junior colleagues, her boss gave her menial tasks, such as revising table placements at events she was attending. And then there were the phone calls.

On the day that Anna worked at home, her boss would ring every couple of hours to ask where she was and what she was doing. “It was extreme harassment,” says Anna, who lodged a complaint against her boss, but finally left for another – top-level – job. It took her a long time to recover from the treatment she suffered and, not surprisingly, she believes many Australian companies pay lip-service to both the idea of working mothers and flexible work arrangements: “I actually don’t think Australia is ready for senior women having children and taking time off.”

Then again, one Sydney woman, Jane*, who had a good job in IT, found the perfect solution after she was made redundant on her third day back at work after maternity leave a few years ago. She went out and started her own company in the healthcare industry.

Today, she has 60 employees. Six of them have been pregnant so far. Jane says she thoroughly enjoyed the conversations she had with each woman before they went on maternity leave. “I talked about flexible work arrangements and I said that they could change their minds about how they wanted to work it. I said, ‘I support whatever you want to do. It’s completely your choice.’ I don’t even see it as an issue.”

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