Barbaric!

Photo by Sharon McCutcheon on Unsplash

We may think that in Western societies we’ve come a long way regarding the advances made by women.

Then, before we get too smug, something happens which forces us to confront the fact that we’re not quite as enlightened or civilised as we like to think.

Such an incident occurred last week in the United States of America when it was reported that a the authorities were negligent when Diana Sanchez, a pregnant woman who was being held in Denver County Jail, was denied proper medical treatment. The woman’s cries for help were allegedly ignored for 5 hours and she was forced to give birth to her son in the prison cell.

Had something similar occurred in the UK, lawyers might have been looking at Section 17 of the Equality Act 2010 (pregnancy and maternity discrimination: non-work cases) to provide grounds for a legal challenge against the operators of a prison. Clearly, this sort of failure by the authorities to implement a basic duty of care could be viewed as blatant sex discrimination.

In 2019, would have been too difficult for the Denver County Jail authorities to have ensured that this particular inmate had access to to the appropriate medical facilities? Surely, given her condition, this was not asking too much?

Lawyers for Ms Sanchez are now, unsurprisingly, pursuing a civil action against Denver County Sheriff’s Department.

A link to the story as reported by Sky News can be found below:

http://news.sky.com/story/woman-who-gave-birth-alone-in-denver-prison-cell-files-lawsuit-11797438

Copyright Seán J Crossan, 10 September 2019

The trouble with pregnancy …

Photo by Xavier Mouton Photographie on Unsplash

According to a study just published by the Young Women’s Trust, it would appear that, in 2019, pregnancy discrimination in employment is more common than you might have thought.

The figures seem to show that 10% of those employers who were questioned would be very hesitant to hire a female candidate because of fears that she may decide to have a child in the near to long term future. Male bosses were much more likely to discriminate against female employees in this manner.

Section 18 of the Equality Act 2010 makes it illegal for employers to treat a woman less favourably in relation to pregnancy and maternity. Thankfully, there is no longer a requirement for a women to identify a male comparator in cases of alleged pregnancy and maternity discrimination (Section 17 of the Act deals with discrimination in non-work cases).

The Equality Act was particularly significant for women. Probably, for the first time in UK anti-discrimination law, less favourable treatment in relation to the issues of maternity and pregnancy would be dealt with in a more comprehensive and integrated fashion. Under the older equality laws, such as the now defunct Sex Discrimination Act 1975, women could not always be confident that they would receive protection under the law in connection with these important issues. Regrettably, repeated failures by the UK Parliament in this area meant that the intervention of the European Union had to be called upon when domestic law was found to be inadequate.

Ultimately the Court of Justice of the European Union would improve the legal situation for pregnant women (see Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus [1991] IRLR 27, a case which originated in the Netherlands).

In Dekker, the Court of Justice stated unequivocally that it is always direct discrimination to refuse to offer employment to a woman for reason of her pregnancy. The Court also made it clear that a pregnant woman does not have to compare herself to that of a male co-worker/employee.

The provisions of Section 18 of the Equality Act implement the European Union’s Equal Treatment Directive (2002/73) in relation to maternity and pregnancy.

The Directive contained far stronger rules expressly forbidding discrimination on the grounds of pregnancy and maternity leave. This should mean that pregnant women now receive much stronger legal protection in employment. Pregnant employees must, however, prove that the less favourable treatment suffered by them was by reason of their pregnancy.

An employer will also commit an act of direct sex discrimination if a female employee is dismissed by reason of her pregnancy (see O’Neill v Governors of St Thomas More [1996] IRLR 27). The dismissal can also be challenged on the grounds that it is automatically unfair in terms of Section 99 of the Employment Rights Act 1996.

Yet, despite all this legal protection, we still hear stories about the prevalence of pregnancy and maternity discrimination in the work-place. The one bright spot in the story is that the number of employers who stated that they would be reluctant to hire a female employee due to pregnancy concerns had actually decreased. That, at least, is a small crumb of comfort, but still not much to be overjoyed about.

Links to the story can be found below

http://news.sky.com/story/dinosaur-bosses-reluctant-to-hire-women-who-may-get-pregnant-11790837

https://www.youngwomenstrust.org/what_we_do/media_centre/press_releases/1011_employers_say_theyd_be_reluctant_to_hire_women_who_may_have_children

Copyright Seán J Crossan, 22 August 2019

Don’t do it!

george-pagan-iii-624417-unsplash.jpg

Don’t do what? Get pregnant, it would seem if you’re a female athlete who receives sponsorship from one of the planet’s most visible sporting brands.

Just this week, allegations have been made by a number of female athletes that Nike withdrew sponsorship after they discovered that they were pregnant.

Now, if the allegations are true, this would certainly represent an example of unlawful, less favourable treatment. Pregnancy and maternity discrimination are prohibited in terms of Sections 17 (non-work cases) and 18 (work cases) of the Equality Act 2010. They are very specific forms of sex discrimination (a person’s sex or gender is a protected characteristic in terms of Section 11 of the Act).

In 2019, you might have been forgiven for thinking that pregnancy discrimination was a thing of the past…

The Sex Discrimination Act 1975

The (now repealed) Sex Discrimination Act 1975, which was held up as a significant advance for woman’s equality, was fundamentally flawed when it addressed the issue of pregnancy and maternity discrimination.

When the Act of 1975 was first introduced, cases involving alleged discrimination connected to a woman’s pregnancy encountered an unexpected problem, which the Parliamentary draftsmen had not taken into account: how could it be valid to attempt a comparison between that of a pregnant woman’s situation with that of a man? A strict application of the legislation meant that this was not a valid comparison and, therefore, many of the earliest sex discrimination claims failed because some judges applied the literal approach to the interpretation of the Act – even if this made the law something of an ass and, more seriously, led to blatant injustice.

This Act made it very clear that central to the success of any claim was the complainant’s ability to compare his or her allegedly less favourable treatment to an actual or hypothetical male/female comparator. If he or she could not do this, the claim would fail. A woman claiming that she had suffered discrimination on the grounds of her sex must have been able to carry out a like with like comparison.

The woman’s circumstances and those of her male comparator must have been broadly the same (they should not have been materially different) otherwise a meaningful comparison could not be made.

The European Union

This situation really continued into the 1990s and, it was only when the Court of Justice of the European Union resolved the matter in Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), that things started to improve. Dekker clearly established that there was no requirement for pregnant women to identify a male comparator when they were alleging that they had experienced unlawful, less favourable treatment.

The Equality Act 2010 now, in theory, affords pregnant women and mothers much stronger legal protection than the Sex Discrimination Act 1975 ever did, but yet examples of pregnancy and maternity discrimination still arise.

It was as recently as 2016 that the Equalities and Women Committee of the House of Commons exposed the shocking extent of pregnancy and maternity discrimination in the UK. Maria Miller MP, chair of the Committee stated:

Our 2016 report laid bare the significant discrimination and poor treatment faced by 54,000 pregnant women and mothers at work each year.”

A link to the Committee’s Report can be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/pregnancy-maternity-discrimination-2-statement-17-19/

Just do it?

Being deadly serious, the above slogan (of Nike) will hardly sit well with those female athletes in receipt of sponsorship from the company. That said, should we really be surprised that stories of this nature emerge when read against the Report of the Women and Equalities Committee?

A link to the article about alleged pregnancy discrimination as reported by Sky News can be found below:

Pregnant athletes ‘punished’ by Nike, says champion British runner Jo Pavey
http://news.sky.com/story/pregnant-athletes-punished-by-nike-says-champion-british-runner-jo-pavey-11721817

In 2018, Nike was praised for endorsing Colin Kaepernick, the former African American Football star who had actively campaigned to raise awareness of racial inequality. Now with these sex discrimination allegations, is it a case of one step forward, ten steps back for Nike?

Postscript

On 26 May 2019, The Independent reported that Nike had promised not to impose financial penalties on those female athletes who became pregnant and who were in receipt of sponsorship from the corporation. This was undoubtedly due to the considerable, adverse publicity which the story had generated around the world.

A link to the article in The Independent can be found below:


https://edition.independent.co.uk/editions/uk.co.independent.issue.260519/data/8930341/index.html

On 17 August 2019, the BBC reported that Nike had removed the offensive clause from its contracts with female athletes.

A link to the story can be found below:

Allyson Felix: Nike changes policy for pregnant athletes

Six-time Olympic gold medallist Allyson Felix says female athletes will “no longer be financially penalised for having a child” after Nike changed its sponsorship contracts.

Copyright Seán J Crossan, 17 & 26 May and 17 August 2019