Bearers of rights,not just babies: Pondering pregnancy as an impairment to explore pathways to equality

Abstract

This article takes a novel approach of conceptualising pregnancy as an impairment in order to reconsider how the law responds to pregnant workers. We argue that this understanding may lead to developing more appropriate workplace responses to accommodate the changing body during pregnancy, as well as help to challenge the stigma associated with impairments.

Is pregnancy an impairment? Is it helpful to ask this question? Might conceptualising pregnancy as an impairment allow us to reconsider the legal responses to pregnancy in the workplace? Exploring these questions illuminates how different bodies are perceived and treated in the workplace and could also help to challenge stigma attached to impairments.

In recent decades, disability scholarship has interrogated the notion of disability. ¹ This literature has provided two relevant and related insights. First, impairment and disability should be distinguished: ‘impairment’ is a natural part of the human condition, rather than a deficit, and ‘disability’ is better understood as the limiting social attitudes and structures that occur in response to such human variations. ² This approach holds that social structures in workplaces and wider society – which reflect a narrow normative framework of the human body and mind – are disabling, not the impairments themselves. Secondly, law, policy and practice in response to disability have been based on ‘care, treatment and protection’ ³ which renders people with impairments as objects, rather than subjects of the full range of human rights.

What might we learn by applying these insights to pregnancy? Are limitations experienced by pregnant workers ⁴ the result of social attitudes and structures that reflect an ideal worker norm, ⁵ rather than the pregnant body itself? Further, do legal responses to pregnancy at work, that are focussed on safety, operate to deny pregnant workers the full range of human rights?

We begin this article by articulating the nature of the problem with how equality and labour laws regard pregnant workers, and the limitations of a ‘protective approach’. Most importantly, these laws do not positively require employers to accommodate a worker’s pregnancy by modifying working arrangements or structures, despite how simple these modifications might be. We compare this with the evolution of disability discrimination law which requires adjustments in order to fulfil human rights, and we consider what this reveals about the law’s response to pregnant workers before proposing improvements which could fulfil the rights of pregnant workers.

Is there a problem for pregnant workers?

As they grow a baby, pregnant workers have changing bodies that may look, move, feel and function differently. Such changes could include pregnancy-related illnesses, such as gestational diabetes. ⁶ But, importantly, even apart from illness, the pregnancy can make the worker more tired, in need of more frequent bathroom or rest breaks, or restricted in what and when they might eat and drink, what they might wear and carry, which substances they can deal with, and how they move. These effects can change throughout the pregnancy and are considered normal, as natural variations of the human body during this period.

Currently, the law responds to pregnancy at work in two central ways: by ignoring it and requiring pregnant workers to be treated like non-pregnant workers reflecting formal equality, or by focussing on protection, offering pregnant workers ‘safe’ jobs and removal from the workplace. Both responses are limited and inadequate.

First, formal equality: workplace laws do not require employers to treat pregnant workers differently to non-pregnant workers. Equality laws and the Fair Work Act 2009 (Cth) (‘FWA’) prohibit employers from discriminating against employees because they are pregnant, but such laws predominantly reflect a formal notion of equality that merely requires the same treatment. ⁷ These prohibitions separate the pregnancy, and the pregnant body, from employer decision-making. For example, the FWA prohibits discrimination based on pregnancy, which has been interpreted to mean that a worker’s pregnancy per se is not to affect or inform decision-making detrimentally. ⁸ This requirement does little to accommodate the changing needs of the pregnant body. A substantive notion of equality requires more than same treatment; it could even require special treatment such as adjustments in order to afford equal opportunities or outcomes across a range of dimensions: pay and conditions, respect and voice. ⁹

The second legal response is one of protection: if a pregnant worker cannot safely perform the same job that they could before they were pregnant, the employer must transfer them to a safe job or, if none is available, send them on leave. The FWA provides rights for eligible pregnant employees to access paid or unpaid leave, or to be transferred to a safe job where the physiological effects of pregnancy, or hazards connected to the employee’s job, affect that employee’s capacity to perform their duties as originally performed. ¹⁰ Work health and safety laws also impose obligations on employers to ensure the health (including psychological health) and safety of workers. ¹¹ Addressing the safety of pregnant workers is undoubtedly important, ¹² but this focus on protection can obscure other needs. These include the need for consultation, flexibility and adjustments that might enable workers to continue in their jobs – possibly in a different way – throughout their pregnancy. If pregnant workers are to be equal participants in the workplace, they need more than safety.

While safety rights address safety concerns, and provide valuable options to those pregnant workers who experience pregnancy-related conditions, they separate pregnant workers from the workplace or from their jobs. ¹³ The framework is underpinned by an idea that pregnant workers only have a right to continue in their jobs while they resemble ‘ideal’ workers – their non-pregnant selves, unencumbered by the manifestations and characteristics of pregnancy. ¹⁴ The law looks neutral but operates to isolate the public realm of work from the broader reality of a worker’s life. For a pregnant worker, this isolation can be unhelpful because the broader reality of bearing a child, which entails changes to the worker’s body and needs, inherently connects their engagement with the public realm of paid work to the constructs of the private realm. ¹⁵

What becomes evident is that neither of these legal responses afford pregnant workers the right to adjustments they might need to do their jobs in their changing bodies. There is effectively no explicit duty on employers to enable pregnant workers to continue in their existing jobs by making adjustments or accommodations under equality law, ¹⁶ or labour law. ¹⁷ Of course, many employers will be flexible and offer adjustments but, by law, pregnant workers are essentially required to perform their jobs as non-pregnant workers (in the sense that they are treated the same as other workers, and as if the pregnancy was not happening), or be moved to a safe job if they are unable to do their job because of the pregnancy.

Pregnant workers may encounter a range of problems when seeking to navigate work and the needs of their changing bodies during the pregnancy period. For example, a pregnant worker may experience detriment for taking more frequent snack or rest breaks. ¹⁸ The difficulties can also relate to unhelpful employer assumptions and beliefs about pregnancy and work, from assumptions that pregnancy does not require accommodation because it is not an ‘illness’, ¹⁹ to beliefs that a pregnant worker is less productive than a non-pregnant worker. ²⁰

A legal response that focuses on same treatment and safety arguably remains ‘disembodied and disconnected’ from the broader reality of life. ²¹ In what way might an approach that prioritises ‘same treatment’ and, at best, safety and protection be a problem and undermine substantive equality for pregnant workers? Disability legal studies might help us to answer this question given its rich body of scholarship on how different bodies are conceptualised and treated.

Understanding the problem of disability

In disability studies, an insightful distinction has been drawn between impairment and disability. An impairment is a biological manifestation and recognised as a natural variation of the human body, not abnormal but one aspect of the human condition. ²² Disability is something that is imposed on impairments: it is the attitudes, stereotypes, assumptions and social structures that operate to disable those with particular bodily manifestations that are seen as impairments. Together these represent ‘ableism’, which is a normative standard that idealises a narrow range of bodies and minds, and that treats as inferior those who are labelled outside this standard. ²³ As with other power relations, such as racism and sexism, ableism can manifest overtly or covertly, and can reflect conscious or unconscious biases.

The distinction between bodily variations (impairments) and disabling structures has been critical in conceptualising disability in society. The ‘problem’ has been seen as the ‘individual impairment, with little or no recognition of the role of the social environment in disabling persons with impairments’. ²⁴ This model of disability – the medical model – characterises the individual as deficient due to their impairment. The policy responses are for ‘care, treatment and protection’, ²⁵ usually in separate parallel institutions and services in isolation to mainstream systems. ²⁶ This segregation – in schools and other social institutions – excludes the needs and voices of people with impairments from mainstream public policies and policy making. ²⁷ These responses appear benign and benevolent because they are cast as protective for people with disability, but operate to deny human rights rather than fulfil them. ²⁸ By focusing on protection, people with impairment can be devalued because they are treated as objects of protection rather than the agentic bearers of the full range of human rights.

In contrast, the social model of disability locates the problem within social environments and public policies rather than the impairments. It is the social response to impairments, reflecting and reinforcing ableist norms about bodies, that creates discrimination and inequality. When people are seen only as their impairment and that impairment is seen only as a deficit, the response is limited to one of taking ‘care’ of, or protecting, the person, rather than making adjustments or changing the norms. The social model of disability highlights how public policy choices – about everything from transport to building design, from communication modes to education – reflect the dominant norms about idealised bodies and minds.

We are all different in so many ways, but only some differences are made to matter. ²⁹ Social arrangements are key to whether a variation of the human body is considered an impairment and a disability. As Kayess and Smith noted,

It is the perception and labelling of traits that do not sit comfortably within dominant social arrangements, regardless of whether those traits would be irrelevant with different social arrangements, that makes them matter. ³⁰

For example, at what point on a continuum of visual acuity does someone identify as having an impairment? Spectacles that are readily available and normalised often provide those whose vision is less than 20/20 with an adjustment that means the impairment is not experienced as a disability. Software on all our electronic devices, allowing text to be magnified easily, further normalises a range of vision acuity in day-to-day life. Similarly, elevators – in contrast to stairs – operate to normalise a variety of mobility modes and capacities; a walker and a wheelchair user can equally access a building with an elevator. Having adjustable desks and seats similarly make a user’s height matter less.

Disability equality advocates have had some success in illuminating how dominant structures need to be challenged and changed, or adjustments provided, to enable those with impairments to participate equally. This is reflected in the inclusion of a ‘reasonable adjustment’ obligation in equality laws in respect of disability. ³¹ In Australia, this duty to provide reasonable adjustments has been limited primarily to disability, rather than applying to all groups that are cast outside the norm and experience discrimination, such as pregnant workers. Even in respect of disability, when this duty is imposed on private actors, such as employers, the obligation is always very qualified, requiring only ‘reasonable’ adjustments – those that would not impose an ‘unjustifiable hardship’ on the duty holder. ³² Judicial interpretation of the reasonable adjustment obligation in the Disability Discrimination Act 1992 (Cth) (‘DDA’) has further fundamentally undermined its effectiveness. ³³

Disability advocates have helped to show that, without an effective obligation to check and change exclusionary norms or provide adjustments to neutralise them, it is difficult to see how equality can be achieved.

Shedding a light on pregnancy?

The dichotomy between impairment and disability could help us interrogate workplace responses to pregnant workers. It could help us conceptualise pregnancy as also having both a biological manifestation in the changing body and a limiting social response as seen in work norms and structures (and laws).

As with disability, pregnant workers can be seen as a problem in the workplace because their bodies fall outside the idealised norm. Common bodily experiences during pregnancy can include anaemia, constipation, haemorrhoids, indigestion, backache, leg cramps, swollen ankles, varicose veins, feeling faint and feeling warmer than usual. ³⁴ Workplace requirements, conditions and norms that are rigid and do not allow for such bodily changes, reflect and idealise a non-pregnant body. Without adjustments, such rigid requirements can be disabling, operating to limit equal participation of pregnant workers by requiring them to perform as if they are not pregnant or to leave.

Often all that is needed to accommodate the effects of pregnancy is a simple modification. For example, a pregnant woman interviewed for a study conducted by Orifici and Allen had asked her manager for less work-related travel and to relocate to an office closer to home because travel exacerbated her morning sickness, but her requests were refused. ³⁵

As noted above, equality and labour laws have not imposed an explicit obligation on employers to make adjustments that would enable pregnant workers to perform their jobs. This explains why the few pregnancy discrimination cases that have come before the courts are about workers who have been dismissed or made redundant, not about workers who had requests for adjustments denied. Reasonable adjustments are owed to workers with disability, but not pregnancy per se. ³⁶ To obtain adjustments the pregnant worker would have to show that what they were experiencing during their pregnancy constituted a disability. ³⁷ It might not be difficult to perceive pregnancy-related illnesses as a disability, because disability is associated with illness, but many disabilities are not health related – consider down syndrome, quadriplegia and deafness. Collectively, however, disabilities are seen as a deficit and stigmatised. ³⁸ This stigmatisation of disability might make a pregnant worker reluctant to argue that their pregnancy symptoms constitute a disability. Arguably, it is this stigmatisation of disability, reflecting ableism, that underpins unease and objection to conceptualising pregnancy as an impairment. It is this stigmatisation that needs to be unpacked and challenged.

Bearing rights – objects or subjects?

The United Nations (UN) Convention on the Rights of Persons with Disabilities (‘CRPD’) ³⁹ reflects a re-conceptualisation of disability and a ‘paradigm shift’. The UN High Commissioner for Human Rights described this shift as one of rejecting the view of ‘persons with disabilities as “objects” of charity, medical treatment and social protection’ and as affirming ‘persons with disabilities as “subjects” with rights, who are capable of claiming those rights … as … active members of society’. ⁴⁰

In respect of pregnant workers, might the focus on protection and safety similarly reflect and reinforce a gendered and diminished understanding of their humanity, characterising them merely as objects worthy of protection, but not entitled to the full gamut of human rights?

Assumptions and stereotyping about pregnant workers – what they can or cannot, should or should not do – can reflect an objectification of pregnant workers, limiting their participation. Pregnant workers who took part in research by the Australian Human Rights Commission into pregnancy discrimination said their career ambitions were not taken as seriously once they announced their pregnancy; they were side-lined in the workplace and kept away from customers. ⁴¹ Some pregnant workers described encountering unhelpful assumptions from managers and colleagues about their capacity for, and commitment to, work. ⁴² For example, one respondent said that her colleagues ‘would make comments about how [she] couldn’t work long hours, how [she] couldn’t move fast enough ([she] was 7 months pregnant at the time), how “useless” [she] was at work.’ ⁴³

Employers may also unhelpfully assume that pregnant workers have less tolerance towards stress or work-related pressure. For example, in a pregnancy discrimination case determined by the Federal Circuit Court of Australia, a manager provided evidence that he made decisions which detrimentally affected a pregnant worker’s employment because he was ‘cognisant of the [worker’s] … pregnancy and did not want to cause any more stress than was absolutely necessary’. ⁴⁴ This was an assumption made by the manager, without participation by the pregnant worker, about what was stressful to them or their preferences.

Conclusion

Conceptualising pregnancy as an impairment can help us to see the limitations and possibilities of a legal response to pregnancy in work. Disability studies scholarship shows us how reasonable adjustments are needed to enable and promote equality when societal norms disable people with impairments. Similarly, adjustments could play the same role for pregnant workers when the bodily manifestations of pregnancy come into conflict with requirements and structures that reflect an ‘ideal worker’. Job requirements and work facilities reflect norms, and norms inherently cast some people as ‘other’ or not normal. Adjustments can help to level the playing field and facilitate inclusion, regardless of the attribute or basis of marginalisation.

To promote equality for pregnant workers, a key priority is for equality and labour laws to be amended to include explicit obligations on employers to provide reasonable adjustments in respect of pregnancy. These obligations would promote the human rights of pregnant workers and depart from approaches that merely require the same treatment or prioritise protection and/or exclusion of pregnancy from the public sphere of work where the worker does not conform with the image of the ideal (non-pregnant) worker.

Two recent changes to Commonwealth laws signify a potentially promising change of focus within this legal framework. First, the right to request flexible working arrangements in s 65 of the FWA was amended from 6 June 2023 to allow requests on the ground that ‘the employee is pregnant’. ⁴⁵ Employers must consider, and respond to, requests for flexibility according to a prescribed process. ⁴⁶ The inclusion of pregnancy as a ground on which an employee can make a request for a flexible working arrangement departs from the largely protective response to pregnancy at work under the FWA. It enables eligible pregnant employees to request that their employers make temporary changes as to how they perform their duties to address their changing bodies and needs and requires employers to not refuse unreasonably.

Second, the SDA was amended to include a positive duty on employers (and others) to take ‘reasonable and proportionate measures to eliminate, as far as possible’ conduct including sex discrimination. ⁴⁷ The introduction of the positive duty is a significant development that shifts focus to a proactive model for achieving substantive gender equality including for pregnant workers. It requires employers to adopt proactive steps and risk-mitigation strategies to address sex discrimination, which includes discrimination based on pregnancy. It is not yet known whether the positive duty will be judicially interpreted as requiring an employer to provide reasonable accommodation or adjustments to a pregnant worker as required to eliminate, as far as possible, sex discrimination.

Finally, conceptualising pregnancy as an impairment could help to challenge ableism. Norms inherently cast some people as ‘other’ or not normal, and the ‘abnormal’ is commonly stigmatised. The stigma associated with disability reflects ableism and this is what needs to be challenged. Like pregnancy, impairment is merely a bodily manifestation, a natural aspect of the human condition, and needs to be seen not as a problem, but a difference that should be accommodated and even celebrated.