John Brand
Last week’s “Bosses mustn’t have babies”, was a shocking story. The shock, however, lay in the reporting, not the judgment. The story was a litany of twists and distortions, distressing enough in themselves but made doubly so when read in the light of the editorial, a few pages on, that employed the ringing words of Alexis de Tocqueville to condemn journalistic perversions of the truth.
The Labour Appeal Court, the highest court on labour matters, comprises judges of skill and ability who have been appointed after years of successful practice in the legal profession. The three judges who decided this case all met this standard. Two of them, in addition, are experienced arbitrators and the third has an enviable reputation as a high court judge. Male they may be, but none of them are deranged. How, one wonders, could they have told bosses not to have babies?
The answer, of course, is that they did not. They said quite the opposite.
In the case, Woolworths contended that it declined to appoint Beverly Whitehead because it had a better applicant for the job. She was, it said, a suitable candidate but a better one was available. Pregnant or not, she would not have landed the job.
After examining the evidence, Judges Raymond Zondo and Nigel Willis were forced to agree and their decision, being in the majority, carried the day. This was enough to dispose of Whitehead’s claim, which was based on the loss of a job she would supposedly have got. The matter was as simple as that.
But both judges went on to consider whether unfair sex discrimination had been proved. Though a decision on the question was unnecessary for the ultimate resolution of the case, they gave their views on it anyway.
Judge Willis said that Woolworths had done nothing remotely to suggest that “we do not want women who are or who may fall pregnant to work for us”. The company’s evidence was that it needed someone who could provide continuity over the ensuing 18 months in heading up a very troubled department. This, the company argued, made the case a special and wholly exceptional one.
Judge Willis accepted this argument. The employer had been influenced, not by the pregnancy as such, but by a range of factors including Whitehead’s availability. Profitability, he emphasised, cannot “dictate whether or not discrimination is unfair – nevertheless, profitability is a relevant consideration”. A balance had to be struck and, in this case, the company’s need for continuity of performance in the job outweighed Whitehead’s right to equal treatment.
Judge Zondo disagreed. He considered that Woolworths’ need for continuous service was not enough to justify the refusal to make the appointment. The evidence on the point was much too thin, he concluded.
Judge Johan Conradie was equally unpersuaded. The evidence, he believed, showed that Woolworths was about to offer Whitehead the job, and would have done so but for her pregnancy. Since he saw no justification for the company’s stance, he held that Woolworths was guilty of unfair sex discrimination.
In the Mail & Guardian article not a word is said about the true reason for the failure of her claim – namely, that she had been squarely beaten by a better candidate. Instead we have a heading that vies for absurdity with “I was seduced by a Martian” and “Thabo is a closet white”. We also have a chronicle of specific and equally absurd mistakes that follow.
Mistake 1: The court “has ruled that it is fair for employers to reject work applicants for senior positions because they are pregnant”. This is nonsense. The judges all said that this would not be permissible unless the circumstances were exceptional. Even the Women’s Trust, which had intervened to promote women’s rights, agreed that, in exceptional cases, pregnancy might justify a refusal to appoint a female job applicant.
Mistake 2: The court’s “decision has the effect of forcing women applying for senior positions to choose between career advancement and motherhood”. More nonsense. The court held that it was only in exceptional cases that women might find themselves having to make such a choice. As a matter of fact, two of the judges actually held that the circumstances of this case did not satisfy this exceptional test.
Mistake 3: “Judge Willis implied that Whitehead should accept biological fate, instead of fighting for her job”. More nonsense still. The record of evidence shows that Whitehead had voluntarily resigned from a job at BMW and was now a consultant on the open-market and fending for herself. She had no job she could call her own. To re-enter the job market, she naturally had to compete with others for employment. In the contest, which Judge Willis fully accepted she had the right to compete in, she came second. It happens. All the judge did was to remind her, and the rest of us, that child-rearing is important, too.
Mistake 4: “Representing Woolworths, advocate Martin Brassey SC, said a pregnant woman was like a ‘male porn-star’.” For those who want the truth, here it is. One argument in support of Whitehead’s claim was that pregnancy is a protected interest because childbirth is important to the reproduction of society. In answer to this, Brassey pointed out that pregnancy receives no specific protection under the Labour Relations Act. Taking pregnancy into consideration might expose the decision maker to a sex discrimination claim, but that was as far as it went. Structurally, the position was the same as if a male porn star was refused a job because he was temporarily impotent. At best he would have a sex discrimination claim: what he couldn’t claim was that his condition of impotence in itself deserved statutory protection.
The comparison, needless to say, was at the level of structure and nowhere did Brassey attempt to equate the pregnant woman and the porn star as people. To suggest that he did, is either rank foolishness, or deliberate malice.
Women’s rights are important, so is equality generally. Decisions by the courts in this field deserve intelligent examination. Last week’s story failed dismally on this score.
John Brand is a Johannesburg lawyer and arbitrator