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Published: 04 August 2017
Author: Ryan Carlisle Thomas

Women, work and children: damned if you do, damned if you don't?

When Jacinda Ardern was recently elected as New Zealand’s Labour leader, she had to field questions about whether she planned to have a baby. One journalist even claimed that New Zealanders had a “right to know” whether there was a possibility that their potential prime minister might take maternity leave.

This intrusive approach echoes a similar phenomenon in Australia, with former Prime Minister Julia Gillard’s leadership credentials being questioned because she was (in the words of Senator Heffernan) ‘deliberately barren’.

On the flip side, women politicians with children report being criticised for neglecting their families.

It seems women cannot win. When they have children, they are asked about how they plan to balance their childcare responsibilities with their work. When they do not have children, they are seen as abnormal.

Men do not face the same level of scrutiny about their reproduction or child care responsibilities.

So – are we living in the 21st century or the 1950s? Why is it that when women apply for jobs or secure jobs, some consider it fair game to ask about their reproductive status or plans to reproduce?

What makes this attitude especially disappointing is that anti-discrimination laws, which prohibit such behaviour in the context of employment, have been in place for decades.

Still a struggle, despite anti-discrimination laws

In New Zealand, the Human Rights Act 1993 makes it unlawful for an employer to discriminate on the basis of sex, which includes pregnancy and childbirth. In Australia, the Sex Discrimination Act 1984 (Cth) contains similar provisions and specifically mentions discrimination on the ground of potential pregnancy. States and Territories have similar laws. 

From time to time, women have used these laws, but it has always been a struggle. 

In the late 1970s, Deborah Wardley pioneered the fight by lodging a claim of unlawful sex discrimination after she was refused employment as a pilot by Ansett Airlines, even though she was well qualified for the job.

She was, for example, a flying instructor with over 500 hours flying experience and held a commercial pilot’s licence. However, at an interview, she admitted that she was engaged to be married and intended to have children. This did not go down well with the interview panel. 

In the hearing, it emerged that the panel, in rejecting her application, was negatively influenced by the prospect of her absence in the early years of her career due to pregnancy[1].

Ansett was quite open about its reasons for rejecting the application. Its general manager went so far as to write to the Women’s Electoral Lobby to state:

“We have a good record of employing females in a wide range of positions within our organisation but have adopted a policy of employing only men as pilots. This does not mean women cannot be good pilots, but we are concerned with the provision of the safest and most efficient air service possible. In this regard we feel that an all male crew is safer than one in which the sexes are mixed..(I)n the running of our business we have, along with every other major airline operator in Australia, adopted a similar policy in the past and  this we feel  is significant of itself. ...I am sure you will be pleased to know that I have met Mrs Wardley and find her a very nice person, highly intelligent and no doubt a good pilot, but that is not quite what we are talking about.”2

Deborah Wardley won her claim of sex discrimination after protracted litigation, but it is likely that many other such cases go unchallenged, either because of a lack of awareness about rights or because women self-silence in order not to be seen as troublemakers, or because they are simply too demoralised to take the matter further.

Despite hopes that the community has progressed since the time of the Wardley case, the rate of change seems glacial.

A 2014 report of the Australian Human Rights Commission noted that almost one in two (49%) mothers reported experiencing discrimination in the workplace at some point during pregnancy, parental leave or on return to work3.

And if women as senior as the Prime Minister are subjected to intrusive questioning, one can only guess at the plight of women who work in low-paid and insecure employment. 

The Victorian Equal Opportunity and Human Rights Commission offers useful guidance about non-discriminatory processes for selection of employees, including the development of a set of base interview questions which will be asked of all the candidates, which focus on the skills and abilities they will need to do the job, rather than irrelevant and discriminatory questions4.

Whether the message will penetrate the glass ceiling remains to be seen.

1. Wardley v Ansett Transport Industries (Operations) Pty Ltd (1984) EOC 92-002

2. Ibid

3. The National Prevalence Survey, conducted as part of Supporting Working Parents: Pregnancy and Return to Work National Review – 2014 

4. Guideline for the recruitment industry and employers – Complying with the  Equal Opportunity Act 2010 in recruitment – available from https://www.humanrightscommission.vic.gov.au

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