A landmark court judgment could force women to choose between having a family and pursuing a career
Khadija Magardie
The Labour Appeal Court has ruled that it is fair for employers to reject work applications for senior positions from women because they are pregnant.
The judgment, delivered this week, is the first ever decision by the Labour Appeal Court about unfair discrimination on the grounds of pregnancy. The decision has the effect of forcing women applying for senior positions to choose between career advancement and motherhood.
The majority of the court ruled that it was “economically irrational” for an employer not to take into account the pregnancy of a prospective employee, adding that the recruitment of pregnant women could “impact negatively on the capacity of the economy”.
The head of the legal department at the Commission for Gender Equality (CGE), Liesl Gerntholtz, said that though presiding Judge Nigel Willis may have been making mere observations that companies could not afford to accommodate the pregnancies of senior staff, his statements could be used by other courts to deny employment to women.
While the judgment concentrated on senior positions, it was more vague where job applicants for lowlier positions were concerned.
According to Judge Willis, it is “a simple matter for an employer to accommodate the pregnancy of the shelf- packer in a supermarket, or the seamstress working in the production line”. But, the judge said, “when it comes to executive positions of critical importance, the consequences go beyond imposing a burden on employers”.
The landmark decision arose out of an appeal by retail giant Woolworths against a 1998 ruling that found it had unfairly discriminated against a prospective employee, Beverly Whitehead, because she was pregnant. Whitehead was offered a full- time position in the company’s information technology department, which was withdrawn because she disclosed her pregnancy. She was offered a fixed-term contract instead. The Cape Town Labour Court ordered Woolworths to pay R200E000 compensation to Whitehead.
In a dissenting judgment Judge Johan Conradie, who also heard the appeal, found that Woolworths had indeed unfairly discriminated against the applicant, going against the majority decision of the court that the company was entitled to deny Whitehead the position because she would need to be on maternity leave five months after starting work.
Judge Raymond Zondo, the third judge hearing the case, concurred with Judge Willis, but for different reasons.
The director of the Women’s Legal Centre in Cape Town, Michelle O’Sullivan, which made submissions to the court as an interested party, said the judgment meant that “women who manage to overcome the glass ceiling in business face even further discrimination once they choose to become mothers”.
O’Sullivan questioned the court’s argument that employers would be reluctant to employ and promote women if laws penalised them for refusing to hire pregnant women.
“There have been less than 20 similar cases internationally that we have come across, so this makes no sense,” O’Sullivan said.
She also rejected the notion that South African labour laws offer pregnant women less protection than women in other jurisdictions. In terms of the protocol of the International Labour Organisation, the European Court of Justice and the laws of individual countries such as Canada, there are strict laws in place that prohibit sex discrimination because of pregnancy. In Germany, women are allowed to leave their employment for a period of up to five years to raise a child, without losing seniority or the right to promotion. Judge Willis said such a situation would be “unthinkable” for South Africa.
Whitehead offered to be flexible while on maternity leave, saying she could work from home via telephone, fax or e-mail, and she would attend occasional meetings. But Judge Willis implied that Whitehead should accept her biological fate, instead of fighting for the job.
Rejecting the suggestion that Woolworths could have accommodated the pregnancy, Judge Willis suggested that “Western culture could derive much wisdom from the view prevalent in African, Hindu, Muslim and Chinese cultures that the first few weeks of a child’s life should be a special time with its mother, with both of them freed … from outside distractions”.
He added the courts “should be astute not to cultivate the idea that motherhood is entirely secondary to the greater glories of job satisfaction”.
Representing Woolworths, advocate Martin Brassey, SC, said the law did not single out pregnancy as a condition requiring special protection. He said a pregnant woman was like “a male porn star suffering from erectile dysfunction” who applies for a part in a pornographic film.
“By refusing him the job on account of his condition, the film producer discriminates against him on the basis of a factor that only afflicts men and thus commits an act of sex discrimination,” said Brassey.