Summary report on discrimination because of pregnancy and motherhood at work
Employers are not permitted to refuse women a job or to treat them differently at
work because they are pregnant or have young children. This has been established in
equal treatment legislation and various human rights treaties. The protection afforded
to pregnant women and women with young children applies to recruitment and
selection, terms and conditions of employment, working conditions, training and
promotion, returning to work after leave, contract termination and the non-renewal of
a temporary contract. If, despite this, employers treat women differently or refuse
them a job because of pregnancy or motherhood, this constitutes discrimination.
In recent years, the Dutch Equal Treatment Commission (CGB) has received a regular
flow of questions and requests for opinions on pregnancy and motherhood from
women and businesses. However, until now a more comprehensive overview on the
magnitude and nature of the problem has not been available. This study is the first to
have been conducted in the Netherlands that focuses on more than just the
complaints. It also looks at the experiences of women and employers relating to this
theme. More than 1,000 women were surveyed as part of the study and in-depth
interviews were conducted with employers and women. The study not only aims to
identify the magnitude and nature of the issue, but also to formulate potential
solutions.
The study reveals that 45% of the women who became mothers and worked and/or
applied for a job in the period 2007 to 2011 experienced a situation that involved
possible discrimination. The study uses the term 'possible discrimination' because the
survey cannot precisely determine the circumstances and context in which a specific
situation may have occurred. However, certain forms of possible discrimination occur
more frequently than others. For example, 38% of the women indicate that their
employment relationship failed to go ahead at the last minute or was subject to
conditions different from those originally agreed. In 44% of cases, women with a
temporary contract say that their contract was not renewed partly or wholly as a result
of their pregnancy. This compares to 3% of women with a permanent contract who say
they were dismissed wholly or partly because of pregnancy.
The study also highlights specific problems faced by pregnant women and mothers of
young children that may not necessarily be a result of discrimination. This is also of
interest since these problems may make it more difficult for women to combine
pregnancy/motherhood and employment effectively. For example, problems can occur
when a mother wishes to breastfeed or express breast milk at work. In some of these
cases one can speak of discrimination, for example when an employer does not give
the time for these activities during working hours (40% of the women who were
breastfeeding say that this has been their experience). In other cases it is not always
evident that discrimination has taken place. For example when there is no access to a
room where the employee can breastfeed in quiet, because they work outside of the
office or because the room for nursing is used for storage.
The employers interviewed said that they generally do not have any major
organisational problems relating to pregnancies at work. They feel that it is essential
to show interest in the pregnant employee and to ensure agreements are made in
good time. However, they also indicate that business interests can sometimes be
affected. For example, this may occur if someone is needed temporarily (in the short
term) and the best applicant is pregnant. In such cases, some employers may prefer to
choose someone else. Also some employers are confronted with extra costs. For
example when a woman with a difficult job or a managerial position goes on
pregnancy leave. In that case the employer will have to recruit replacement for a
longer period of time than the pregnant employee is on leave in order to give time to
master the details of the job or to hand over work. Another example is that it can cost
the employer money when women employees who generate profits go on pregnancy
leave. When the replacement cannot make the same profits immediately this can have
a negative impact on the profits.
The interviews with employers suggest that their dealings with pregnant job
applicants are more likely to be influenced by the particular managers' perspective on
pregnancy than by the type of organisation involved. This is interesting, because the
survey among women shows that the type of organisation, for example profit or nonprofit, does have an influence on a woman's likelihood of facing possible
discrimination.
Many women who have experienced a situation that may involve possible
discrimination do not use the term 'discrimination' to describe it. This may be because
of a lack of information about what is and what is not permitted or may relate to an
often unconscious strategy in dealing with the situation. The survey reveals that
women are not always aware of their rights and responsibilities. When placed in
certain situations, women cannot always effectively assess whether these involve
discrimination or not. Moreover, women find it very important that they maintain a
good relationship with their manager. If they were to use the term 'discrimination' to
describe situations, this may undermine the idea that they are working in a fair
employment relationship. Even if women do describe the situation as discrimination,
many women do not report it to their employer or externally. They feel that this would
have no use, are still too tired in the wake of their pregnancy or think that it could
disadvantage them. Of those women who have reported discrimination, around a half
say that this had a positive effect. Reporting discrimination externally appears to be
slightly more likely to help than reporting it directly to the employer.
There is a kind of funnel effect: almost half of the women have experienced a situation
that suggests discrimination, many fewer women describe it as such and even fewer
report their experience. This also explains why employers indicate that they hardly
ever receive complaints about the way they deal with pregnancy and motherhood. The
failure to report means that the issues that emerge in this study remain invisible to
them.
The study reveals that certain groups of women are at greater risk of encountering
situations that suggest discrimination than others. For example, women in lower-level
professions are more likely to face possible discrimination when entering into a
contract. Women with a managerial position are more likely to face possible
discrimination when returning after leave.
In general, the following groups of women run the greatest risk of possible
discrimination: employees in a managerial position, employees with a temporary
contract, employees in the profit sector, women who have suffered frequent illness as
a result of pregnancy, women with complications during childbirth and women with a
child that suffers from health problems.
The picture provided by the empirical research sheds some light on the type of
requests for opinions that the CGB receives. These include many requests on
recruitment and selection, entering into an employment relationship and termination
or dismissal. The survey shows that types of discrimination involving the way people
are treated and conditions of employment are particularly common. This can be
explained by the fact that women are more able to recognise possible discrimination
when entering into an employment relationship or during dismissal than may be the
case when, for example, establishing terms and conditions of employment.
Recommendations
The employers interviewed gave examples of good practice which they believe can
prevent problems relating to pregnancy and early motherhood. Based on these and the
information from the survey of women, a number of recommendations for employers
have been formulated. These are followed by recommendations for the authorities and
for women themselves.
For employers:
1) Gather information about the rights and responsibilities concerning pregnancy
and motherhood.
2) At the start of the pregnancy, make clear agreements with the employee and
adjust these as necessary. They should include agreements on work activities
during pregnancy, when leave will begin, how the replacement will be
arranged, how the work will be handed over, the number of working hours on
returning to work and whether, and in what way, the employee will take
parental leave. Many problems can be prevented if agreements are made at an
early stage. This recommendation is particularly applicable for employees with
pregnancy-related illnesses, those who have complications during childbirth
and women with a child suffering health problems. These groups are more
likely to face possible discrimination in their working conditions and on
returning to work after leave.
3) In the case of employees with a full-time contract and/or in a managerial
position, there is a greater risk of problems occurring when returning to work
after leave. In these positions, it is probably more often necessary to appoint a
replacement, whereas in other positions, the work can be taken on temporarily
by several colleagues. If a replacement is appointed, this person usually takes
over the pregnant employee's duties or even their job. In such situations, it is
even more important that the temporary status of this replacement is clear to
everyone involved.
4) Make sure colleagues know about the agreements reached with the pregnant
employee. This can help prevent unrest or envy.
5) Make it possible for a pregnant employee or one who has just given birth to
work from home occasionally or to adjust her working hours. Of course, this is
only possible in positions that allow for it. This may be a solution if the pregnant
employee or the employee who has recently returned from leave is extremely
tired or has other physical problems. It can prevent these women from needing
to take sick leave.
6) Set up a pool of people to stand in during maternity leaves, possibly in
partnership with other employers. This can be achieved by appointing flexible
staff who stand in at short notice during pregnancy or by using a number of
permanent staff who regularly provide cover during maternity leaves. This can
make it easier to arrange replacements.
7) Comply with the national law that prescribes that a room must be provides
which women employees can use to rest, nurse and express breast milk.
8) Inform female employees (and managers) about their rights and responsibilities
with regard to pregnancy and motherhood at work. This will make them better
able to recognise discrimination and report it.
For authorities:
9) Inform female employees (and managers) about their rights and responsibilities
with regard to pregnancy and motherhood at work. This will make them better
able to recognise discrimination and report it (internally or externally).
10) Encourage employees to report complaints about discrimination on the grounds
of pregnancy or motherhood. In the first instance, they can report it internally
to managers, the Works Council (OR) or the confidential counsellor. If that does
not help, they can report it externally, for example to an anti-discrimination
agency or the CGB. This enables employers to tackle this kind of unlawful
discrimination. It also encourages employers to act on any discrimination
reported by women. Make it clear to employers that it is also prohibited to
disadvantage employees because they have reported discrimination
(victimisation).
For women:
11) Make sure you enter into discussion with your employer at an early stage about
combining pregnancy with work. This ensures you have sufficient time to reach
agreement on what you want and what is possible. It should include
agreements on work activities during pregnancy, when leave will begin, how
the replacement will be arranged, how the work will be handed over, the
number of working hours on returning to work and whether, and in what way,
you will take parental leave. Many problems can be prevented if agreements are
made at an early stage. You should also take the initiative if it appears that
previous agreements are no longer adequate to deal with changes to the
situation.
12) When you become pregnant, find out all about your rights and responsibilities
(www.zwangerenwerk.nl). This will enable you to recognise discrimination
more effectively and report it if necessary.
13) If you experience discrimination, report it. You can do this to your employer,
confidential counsellor, the Works Council (OR) or Participation Council (MR).
Employers are not always aware that they are discriminating. If you report
discrimination, it enables the employer to take measures against it. If this does
not provide a solution, you can also report it externally, to an antidiscrimination agency or, for example, to a trade union. If this still does not
solve the issue, you can of course also turn to the CGB or approach a lawyer
who can provide legal assistance. If it turns out to be a genuine case of
discrimination, you can go to court to ask for compensation.