The appointment of a female CEO to the embattled Yahoo was enough to cause a stir. Just like in Australia, only a small percentage of listed companies globally have a female leader in the top job. Add to the mix the news that 37-year old Marissa Mayer was six months pregnant when she got the top job, and it was nothing short of an all-in media frenzy.
The whirlwind of commentary which followed the announcement was in itself evidence that employment and pregnancy is a red-hot issue. For one management expert, it’s a situation which needs to be assessed on a case-by-case basis, but ultimately employers cannot discriminate against someone who is pregnant. “Obviously Yahoo realised the situation they were in, and thought ‘well, the costs and benefits of [this hire] are likely to outweigh the negatives’, and they’ve made that decision that in the long-term it’s going to be better for them to have that key person,” Associate Professor Peter Holland from Monash University told HC.
According to Holland, in making a hiring decision about a pregnant candidate, the principle question is the same as it would be for anyone else. It’s about taking on someone who has the right skills and experience. “[A candidate] might be asking for 20 weeks off in two months’ time, but you may have them for five, six or even 10 years – and if you think they’re the right person for your company, are you looking at the short-term implications rather than the long-term return?” Holland said.
It seems the danger of discrimination lies in the slippery slope of making judgment calls and arbitrarily deciding on a candidate’s availability. For example, a candidate may be observed having a cigarette outside before their interview and this may lead to assumptions about health, propensity to take sick leave, and taking extra breaks.
According to a 2012 factsheet compiled by the Australian Human Rights Commission regarding sex discrimination, the Sex Discrimination Act makes it against the law to treat candidates unfairly because of a person’s sex, marital status, family responsibilities, because they are pregnant or might become pregnant, or because they are breastfeeding. All stages of employment are protected, including recruitment, staff selection, workplace terms and conditions and dismissal.
The Victorian Human Rights and Equal Opportunity Commission set out the following tips to avoid pregnancy discrimination in recruitment:
Identify the essential requirements of the job and ask all applicants about their capacity to fulfil these. Consider whether any reasonable workplace adjustments can be made so an applicant can meet the requirements.
Ask applicants about their skills and abilities. Avoid assumptions about what pregnant women can and cannot do, or their ongoing commitment to the job.
Do not ask an applicant questions about pregnancy unless there is a clear non-discriminatory reason to do so.
Select the person best suited to the job.
There are some exceptions that mean that discrimination may not be against the law in particular circumstances. A person may discriminate against a woman based on pregnancy when it is unavoidable in order to protect the health and safety of the pregnant woman and/or her unborn child. However, the measures taken must be reasonable and a proportionate response to the risk posed to health and safety.
Discriminatory measures should only be taken where there is a real likelihood of risk to the health and safety of either the pregnant woman and/or her unborn child. Persons or bodies seeking to discriminate on this basis should also consider whether there is any less-discriminatory means of achieving the desired outcome and consult legal assistance.