Discrimination- Bust the Myths with Data


We reflect on why its important for the courts do more to prosecute workplace discrimination cases.

A $52,000 fine, imposed on an employer for denying an employee’s request for flexible hours after returning from parental leave and instead making her redundant, has been widely reported today.  And with good reason: employers rarely lose cases brought against them with regards to pregnancy related discrimination.
“…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.”
In their analysis of 10 pregnancy-related discrimination court decisions from 2010 until 2014 brought by employees who had been dismissed, researchers Alexandra Herron and Sara Charlseworth further found that not a single employee had won their case where the employer claimed redundancy had been the reason for the dismissal. As a lawyer, it’s tempting to go into a thorough legal analysis as to why this case was different, but that information isn’t really going to help anyone, other than defendant lawyers. The real problem we need to address is the existence and prevalence of pregnancy related discrimination. In 2014, the Australian Human Rights Commission’s Supporting Working Parents report revealed discrimination related to pregnancy, parental leave, and on return to work after parental leave is a systemic and widespread issue that places an economic impost on employers, shareholders and the Australian economy – particularly to the extent that it contributes to women’s under-participation or withdrawal from the workforce. Key to this, is addressing the attitudes and myths commonly held by far too many Australians. In a report conducted jointly by EY and the Property Council of Australia, the authors revealed some of the “flexibility myths” – or discriminatory attitudes:
“To get ahead you need to work hard and put in long hours. Women who come back to work after having a family need to make sure they don’t cut corners. They need to make sure they don’t just ‘get the work done’ then go.” Executive, large property owner/developer.
Addressing workplace discrimination is a not only a priority in its own right – affecting a mothers’ health, finances, career, job opportunities and family – but is supported by a clear business case for addressing it.  And that is the narrative we need to focus on. Research shows that the rise in the female employment rate since 1974 has boosted economic activity by 22%. In fact, the Grattan Institute has estimated that if women’s workforce participation in Australia increased by 6%, the national GDP would be approximately $25 billion higher. What’s it going to take to get people to believe the business case?  The WGEA’s analysis of all reporting organisations suggests we still have a way to go to convince many workplaces that the business case stacks up:
  • Less than 50% of employers have a policy aimed at supporting employees with family or caring responsibilities;
  • Just 14.6% of employers have a strategy aimed at supporting employees with family or caring responsibilities;
  • 48.2% of employers offer paid primary carer leave, with the average being 10.5 weeks, while just 38.4% offer secondary carer’s leave, with the average being 1.5 weeks;
  • 18.1% of employers provide information packs to support new parents and/or those with elder care responsibilities.
So what happens if you do believe the business case, and put in place policies, strategies, paid parental leave (equal for mothers and fathers)? Well, when we speak with our clients, it seems the impact is only ever positive, especially to  the bottom line. Learn about how we can help you.