With more and more women entering the workplace, South Africa’s labour laws have developed and evolved significantly to ensure the protection, and progression, of women’s rights in the workplace. However, despite the extensive developments in labour law, many women in the workplace are still subjected to bias and prejudice as a result of their pregnancies, due to shortfalls in labour legislation.
Subsequent to the promulgation of our new constitutional dispensation in 1994, various pieces of legislation were enacted to ensure equity, on the basis of gender, in the workplace. The Constitution provides:
“Everyone is equal before the law and has the right to equal protection and benefit of the law.”
As a result, employment legislation has been enacted in order to give effect to the Constitution and to protect all employees, including women in the workplace. This included the Labour Relations Act 66 of 1995, the Basic Conditions of Employment Act 75 of 1997, and the Employment Equity Act 55 of 1998. The above-mentioned legislation was integral in ensuring the levelling of the playing field and improving access of women to the workplace.
How do these Acts protect employees?
Firstly, the Employment Equity Act 55 of 1998 (“the EEA”) protects employees from unfair discrimination on listed grounds including gender, sex, pregnancy, marital status, family responsibility and any other arbitrary grounds. The EEA was recently amended to introduce the “equal pay for work of equal value” principle.
The amendment stipulates that a difference in the terms and conditions of employment between employees of the same employer performing the same or substantially the same work, or work of equal value that is based directly or indirectly on any one or more of the listed grounds or on any other arbitrary ground, is unfair discrimination.
s187(1)(e) of the Labour Relations Act provides protection to pregnant women, and provides that:
“A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is:
(e) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;…”
Should an employer be found to be guilty of an automatically unfair dismissal based on s187(1)(e), they can attract an order of reinstatement or compensation, up to 24 months’ salary.
Furthermore, in terms of the Basic Conditions of Employment Act (“the BCEA”), an employee has the right to four consecutive months’ unpaid maternity leave. Additionally, during this time period the Unemployment Insurance Fund provides for payment of maternity benefits.
While South Africa’s labour legislation has improved gender equality in the workplace, our labour laws have proven to be flawed, especially in ensuring that pregnant women are not subjected to prejudice and bias as a result of their pregnancies.
Woolworths vs Whitehead
In the case of Woolworths (Pty) Ltd v Whitehead 2000 21 ILJ 571 (LAC) (“the Woolworths case”), Woolworths advertised a vacancy for a position termed “Human Resources: Information and Technology Generalist”. Whitehead was subsequently offered the position; however, after Whitehead disclosed that she was pregnant Woolworths revoked the offer. Whitehead contended that she was passed over due to her pregnancy.
Woolworths’ case was argued on the basis that it conceded that it had discriminated against Whitehead but it challenged the contention that such discrimination had been unfair. It was contended by Woolworths that by virtue of her pregnancy, Whitehead would not be able to meet the Woolworths’ continuity requirement.
The Labour Appeal Court held that the court had erred in holding that employers could not be guaranteed that any employee would be able to serve for an uninterrupted time and for that reason the pregnancy could not be taken into account. The court further held that employers had to base their commercial decisions on reasonable probabilities. The Labour Appeal Court further held that to find that the pregnancy of a prospective employee cannot be taken into account in deciding whether or not to offer her employment might seem to be fair to prospective employees but it would certainly be unfair to employers.
The Woolworths’ judgement was heavily criticised for the male gaze and bias applied in the judgement. Furthermore, the judgement set an extremely dangerous precedent whereby employers were allowed to justify discrimination on the basis of pregnancy, on the grounds of profit and operational requirements.
The court superseded a company’s profits over a fundamental and entrenched constitutional right of a woman to not be discriminated against on the basis of her pregnancy. The Woolworths judgement explicitly exhibited how, despite a legislative framework protecting women’s rights in the workplace, employers are able to bypass their constitutional responsibilities and contravene the rights of pregnant women in a subversive manner.
Lack of statutory provisions
While the BCEA entitles pregnant women to four months’ maternity leave, pregnant women are not entitled to be paid during this time by their employers. The lack of statutory provisions compelling employers to provide some sort of remuneration during their maternity leave severely disadvantages pregnant women.
As women are the only people that can take maternity leave, women are the only people placed in a situation whereby their remuneration could possibly be reduced or halted altogether. For that reason, pregnant women are more susceptible to facing severe financial road bumps during a time where the remuneration would be most needed. The lack of statutory provisions compelling employers to provide some sort of remuneration during their maternity leave is inherently gendered and prejudices pregnant women.
To make matters worse, pregnant women are often scorned by their employers and colleagues subsequent to falling pregnant and especially after taking maternity leave. This is especially true for the professional corporate atmosphere, such as the legal field. Upon their return from maternity leave, women are often snubbed for lucrative work, promotions and opportunities by their employers. Employers further often create a hostile and demanding work environment which places new mothers in a compromising position where they are unable to adequately and satisfactorily balance their work and home lives. Single mothers are especially adversely affected by this prejudice.
In conclusion
Essentially, while the law in theory protects pregnant women in the workplace, reality is often a stark contrast compared to the ideal painted by the law. Labour legislation, in its current form, is inadequate in ensuring equity in the workplace. Labour legislation needs to be adapted, and expanded, to impose stricter obligations on employers in ensuring that pregnant women are protected and are in an environment which will enable them to thrive.
Unfortunately, until these changes are enacted, pregnant women in SA can expect to be subjected to prejudice and bias while expecting.