What's
it about?
"I think I've done the right thing," said Trudy Gardner outside court last
month, after securing an injunction against Netball Australia. Why was she in court?
Because Netball Australia, a governing body of professional netballers, had banned
pregnant players from the game in order to protect them, and their team-mates, from injury
or exposure to legal action. What started as an exercise in perceived common-sense turned
into a battle fought out on the front pages of the newspapers.
Ms Gardner's obstetrician had been in no doubt about the health of his patient. As
reported in the media, he believed his patient should not be in any undue danger of harm
to her foetus at the 20th week of pregnancy, the time at which Ms Gardner intended to
cease playing. A Federal Magistrate agreed with her, saying, with an eye to a good turn of
phrase, that "pregnancy is not an illness".
Here we go again
This writer listened to a procession of (mainly women) talkback callers, pro and con,
as the story was canvassed on the airwaves. Let's look at some of their arguments:
- It is up to women to make decisions about the best interests of their unborn child;
How come we don't pass a law that makes it illegal for pregnant women to smoke/drink
alcohol/drive too fast/jump out of aeroplanes/go bungee jumping etc etc etc.
You get the idea!
Is it discriminatory
The law has long recognised that women can be placed in an invidious position because
of their biology. The first and most obvious place to look for examples of the law's
interference is in the hiring and firing of women. Imagine a world where there were no
laws operating to inhibit the discriminatory actions of employers, as was the case for so
many decades before the introduction of equal opportunity and discrimination laws. In
those days it was lawful for an employer to ask a prospective worker whether she was
married, and/or intended to have children in the future; or dismiss a worker as soon as it
was learned that she had become pregnant. In fact, in certain professions there was a
general bias against women of child-bearing ages. This in itself contributed to an
imbalance in favour of men in the workforce, and perhaps within society in general.
Almost twenty years ago discrimination against pregnant women became illegal under the
federal Sex Discrimination Act. However, it is important to know that the
legislation does not prohibit all behaviours that discriminate against pregnant
women - the discrimination must take place in areas such as employment, the provision of
goods and services, or the activities of registered clubs.
Sex discrimination occurs when a woman is treated less fairly than others because (in
this case) she is pregnant. Under this definition it is clearly discriminatory to refuse
to allow a woman to work in a sedentary job because she is pregnant, or to force her to
vacate her position. But what of sport? In some ways Ms Gardner, as a sports professional,
may be in her place of work when she steps onto a netball court. That's a matter for the
Courts, or the Human Rights and Equal Opportunity Commission, but let's look at the right
of her professional association to protect its own interests.
It's not just about women
In this case the courts will have to decide who is right, but let's hypothetically look
at the other side of the argument. International airlines will generally refuse to carry
women who are more than about 35 weeks pregnant, and the law often imposes obligations on
employers to ensure that the workplace is safe for pregnant women. And if that is not
possible, the employer may be required to find the employee another job of comparable
status and pay. In other words, in some situations pregnant women are in fact at risk.
But these laws also protect the employer. They force them to take action to protect
women at risk of injury. And you can be sure, where this is not done, there will be a
potential breach of civil law as well. This is because a reasonable employer, knowing a
pregnant woman may be at risk, should not permit her to be placed in that position. Otherwise they risk being sued for negligence if the employee suffers harm that was foreseeable.
Who is right?
Apart from the larger issues, this case makes us think yet again about the place of the
law in our everyday lives. Most of us want the law to interfere as little as possible, but
where necessary we also want to be able to use the courts to enforce our rights or pursue
our claims for redress. This is fair and reasonable, but it comes at a price.
Organisations, employers, clubs and other groups are often caught between a rock and a
hard place. If they follow the spirit of the law, yet also place themselves in a situation
of legal liability, it is reasonable that they should be wary and perhaps err on the side
of caution. This is especially so in a litigious society. On the other hand, women should
enforce their rights to be treated as individuals and not suffer from blanket rules that
are often discriminatory.
What to do? In the case of Ms Gardner, the issue has been (and may continue to be)
litigated in courts and the Human Rights Commission. But the talkback callers, who seemed
to all line up on one side or the other, should do what the best judges do: put yourself
in each party's shoes and see how it look from the other side of the fence. Sometimes you
might be surprised to discover that it's not all one way or the other, or that the shoe
does in fact fit.
By Geoffrey Winn
Creative Director
www.law4u.com.au