MCGREGOR
DISCRIMINATION IS most often referred to in the context of race, sex or age. In this article, we explore one type of workplace discrimination which is seldom discussed - pregnancy discrimination.
Pregnancy discrimination exists when:
Women of child-bearing age are denied jobs on the basis that they may require time off from work due to pregnancy.
A woman is fired because she is pregnant.
A woman is denied a promotion because she is pregnant.
A woman is denied benefits for pregnancy because she is unmarried.
There was a recent item of news involving an unmarried pre-school teacher in New York who was fired after advising her Catholic employer that she was pregnant. Given the state of our existing legislation, this could also happen in Jamaica.
THE MATERNITY LEAVE ACT, 1979
Amazingly, our Constitution does not prohibit discrimination on the basis of gender and we have no specific pregnancy discrimination legislation. We have a Maternity Leave Act, which prevents some forms of discrimination against certain categories of pregnant women. A worker is entitled to 12 weeks' maternity leave, which may be extended by her employer. However, in order to qualify for maternity leave with pay, she:
Must be 18 years or older;
Must not be a domestic worker;
Must have been continuously employed to the employer for at least 52 weeks prior to the date on which her maternity leave begins;
Must have informed her employer that she is pregnant in advance of the date of her expected confinement.
Generally, she is also entitled to maternity pay for the first eight weeks of her maternity leave. But, if she had already received paid maternity leave from the same employer in respect of three pregnancies, she is not entitled to more maternity pay from that employer.
ENTITLEMENTS
The act also provides that an employer is required to allow a worker to return to work at the end of maternity leave in the capacity in which she was employed and on the same terms and conditions as she enjoyed prior to her absence on maternity leave.
An employer who does not allow a worker to take maternity leave in accordance with the act or who fails to pay maternity pay may be convicted before a Resident Magistrate to a fine not exceeding $500 or to a period of imprisonment not exceeding four months. An employer who terminates a worker's employment wholly or partly because of her pregnancy may be convicted before a Resident Magistrate to a fine not exceeding $1,000 or for a period of imprisonment not exceeding six months.
Based on the provisions of the act, it is unlawful for an employer to dismiss a woman on grounds that she is pregnant. However, a paltry fine of $1,000 is hardly an adequate deterrent. Further, there is no provision in the act to prevent a potential employer from choosing not to employ a woman because she is of child-bearing age, or that she is, in fact, pregnant.
DEFICIENCIES
Whereas one must accept that there are genuine economic challenges encountered by businesses which may be obliged to pay maternity pay for the absent worker, as well as wages to her replacement, clear legislative guidelines are required to address the fact that there are methods of discriminating against pregnant women which are not contemplated by the Maternity Leave Act or any other local legislation.
Discrimination in any form is reprehensible, and the Maternity Leave Act must be revised and due consideration needs to be given to whether there is need for additional companion legislation.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
