The law says an employer has no right to know you’re pregnant at the time of an interview. But what's the cost of keeping quiet?
Nina Mandrake* maintained her composure as her potential new boss grilled her about her management experience. She answered most of the questions easily: of course she enjoyed mentoring juniors, attention to detail was definitely one of her strengths, and here were some strong examples of crises she had averted in her previous roles. To an outsider she looked confident, professional and more than qualified for the job on offer.
Although a sharp-eyed observer may have noticed the couple of times Nina unconsciously tugged at the loose, empire-line top she'd chosen for her interview, or that once she ran her hand quickly over the small curve of her belly. Her voice wavered only slightly as she acknowledged the well-dressed female executives she had passed on the way up to the boss's office; their neat button-down shirts tucked into slim grey skirts and pants. Had she made a mistake with the outfit? Floaty linen tops weren’t really appropriate for this sort of gig – they’re more the sort of thing you wear at a picnic or a weekend lunch date with friends. Or if you are trying to hide a pregnancy.
She hadn't planned it like this – who in her right mind would choose to apply for a role as the head of a marketing department in a major multinational bank nearing her second trimester? But life, says Nina later with a certain resignation, doesn’t always run to schedule.
“Of course it’s not ideal that both these things came along at the same time," recalls the 31 year old, now mother to 18-month-old Lily*. She’d been trying for a baby with her husband, Luke*, a finance analyst, for six months when the position she had long coveted opened at the bank where he worked. "But in the time it had taken for applications to close, candidates narrowed down, and interviews locked in, I was nine weeks pregnant – joyfully, thrillingly nine weeks pregnant, I should add. I wanted the job and the baby very badly, and neither was going to wait for a more convenient time."
In fact, now the role had twice the attraction: it was the job she’d been eyeing for years, plus she and Luke could access childcare in the same building, so both could easily visit their child after they returned to work. Nina would do whatever it took to get this job.
It's possibly the most fraught dilemma a woman already struggling with the interminable challenges of work-life balance could face. Should she reveal her pregnancy during a job application process and almost certainly consign herself to the "thanks, but no thanks" pile, or is it worth keeping quiet and risk the trust and goodwill of her boss and other colleagues when she has to come clean almost as soon as the ink is dry on the contract?
The law is certainly clear on the matter. An employer can't lawfully refuse to hire a woman on the basis of either prospective pregnancy (whether she admits to wanting to become pregnant, or if she is simply of childbearing age), or because she is pregnant at the time of the application, in accordance with both state and commonwealth anti-discrimination laws and the Fair Work Act 2009. “Working when pregnant is a right, not a privilege," explains sex discrimination commissioner Elizabeth Broderick, and employers are expected to comply with this sentiment or face serious consequences.
In a dream world, Nina should have been able to disclose her pregnancy to her new boss, and, providing she was the best person for the job, sail into her coveted corner office without a hitch.
But the reality tells a different story. "Unfortunately, pregnancy discrimination is alive and well in Australia," says Broderick. In fact, a complaint about pregnancy discrimination was made to the Australian Human Rights Commission an average of every two to three days in 2010–2011, making up nearly 20 per cent of total complaints made under the Sex Discrimination Act during this time.
The odds of Nina's impending motherhood – and her necessary absence from the workplace for the birth, plus parental leave and possible flexible time when she returned – would be enough to make most employers suddenly find the merits in the CVs of every other candidate except hers.
For this reason, ethicist and author Dr Leslie Cannold says Nina was both entitled and wise to keep her pregnancy to herself. "You're not lying when you don’t disclose your pregnancy during an interview, in the same way you’re not lying because you choose not to reveal you used to have an eating disorder, or you once had a panic attack,” she states. "It's not lying. It’s just non-disclosure of information [that the interviewer] is not entitled to know."
But this state of blissful reticence can't last forever, and the conversation a pregnant woman will have to have with her boss very shortly after a job is secured is never going to be an easy one. "I'd be furious if an employee didn't tell me she was pregnant during an interview," says a manager who spoke to marie claire on condition of anonymity. "If the woman was right for the job I would have hired her anyway. But if it happened this way, I’d feel like I couldn’t trust her in this or anything else."
Sure, says Dr Cannold, that’s easy for a boss to claim with the benefit of hindsight. "I don’t really accept they would have given her the job," she says. “Business owners want to have it both ways: on one hand, they claim that they wouldn’t have taken a woman’s pregnancy into account when they made a hiring decision. But what they’re really saying is they wish they’d been given the information in the first place … because they want to take it into account when they make their hiring decision!"
Emma Samras*, 27, will never truly know whether she was the victim of discrimination when she applied for a senior role at a Brisbane interior design firm when she was eight weeks pregnant. "There’s no way I wouldn’t have mentioned my pregnancy in the interview,” she says. "It’s the right thing to do. Imagine if I had to go in there as soon as I got the job and tell my boss I was pregnant? And then take months off work, and have my workmates get to know a temp better than they knew me?" It wasn’t, she felt, something she could ever be comfortable with.
She didn’t get the job. Instead, her boss offered her a more junior, part-time role, taking great pains to insist her pregnancy was irrelevant to her final decision. Did Emma smell a rat? "No, I really don’t think so. Perhaps I wasn't the best person for that senior role." She hesitates briefly before continuing. "Or even if I was, I can’t blame my boss for not wanting to have to re-hire so soon after hiring for this job. I would have done the same in her position. What she did offer turned out to be a much better fit for both of us."
Every situation is different, and a lot depends on existing relationships or whether or not an employer is generally female-friendly. But David Bates, managing director of employment relations service Workforce Guardian, says honesty is probably the best policy, and despite what the law says, a failure to be up-front in the beginning will most likely backfire down the track.
Then there's the problem of leave entitlements. In order to qualify for up to 52 weeks unpaid parental leave, a person must have worked for the same employer for at least 12 months – which won't be possible if she's pregnant at the time of hiring. If you don’t think of your employer’s needs during the interview process, he or she probably won’t be in too much of a hurry to think of yours when it comes to granting leave out of the goodness of their hearts.
Nina Mandrake put the conversation off as long as she could – though her increasingly voluminous tops made her the Jessica Simpson of pregnancy concealment: by the time she confessed to management when she was five months along, she was fooling no-one. Her action plan was to prove to her superiors that she was such a hard worker and of such value to the company in the time leading up to her revelation that they’d do what they could to accommodate her situation.
Which proved to be the case. She ended up taking three weeks holiday when Lily was born, plus an extra two weeks of sick leave – significantly more than her contract entitled her to take so soon into her employment. (In fact, the law doesn’t consider giving birth to be a "sickness" – so Nina's boss was under no obligation to grant sick leave.) Partly it was because she was a good worker. Partly her male boss didn’t do the maths and work out what she already knew.
Workplace lawyer Andrew Bland says Nina was lucky. An unsympathetic boss who realised Nina knew she was pregnant during the hiring process may have found a loophole that allowed him to fire her. "Were any questions asked during the interview about length of employment, or about events that the applicant may have been required for in nine, 10 months time? Or does the job require heavy lifting or flying or anything else that may injure a pregnant employee?" he asks, rhetorically.
Critics of the "keep quiet" option say this behaviour fuels employers' suspicion of mothers-to-be as duplicitous and self-serving, making them less inclined towards hiring women overall.
"Well, we know that’s the case anyway," argues Dr Leslie Cannold. "There's gender discrimination, otherwise we wouldn't need legislation to counter it. If we had a society where things were more equal then we'd have employers who weren't only wary of reproductive females, but men of reproductive age, too. As it is they're not too worried about men because they know they don't do their fair share [of childcare].
"So what we're saying in this scenario is, you already have an unfair load and now you have to make your life worse by cancelling out your opportunities, either for the general principle of disclosure of non-relevant information or for the greater betterment of women?" Look after yourself, says Dr Cannold, because no-one else will.
Principles and fairness are one thing, reality is another. Nina's decision was a risk that could have backfired. "If my boss hadn't given me the leave I needed, or if I'd decided I wanted to stay at home with Lily for longer, I could have been out of work," she admits. Would she take the gamble again if she had to? "I won't have to," she says, smiling. "I'm exactly where I want to be."
Your pregnancy rights when applying for jobs
1. Pregnant or potentially pregnant women must be treated the same as any other potential employee during the recruitment process. However, if a pregnant applicant is genuinely unable to perform the requirements of the job – if heavy lifting is required, for example – it is not discriminatory to refuse her the job.
2. Employers must ensure their workplace accommodates pregnant women, for instance, providing adequate toilet breaks and seating, or larger uniforms.
3. It's not illegal for an interviewer to ask a woman whether she is pregnant. However, a job applicant is not obliged to answer. She may also be able to point to the question being asked as evidence of discrimination if she is refused the job.
4. A woman is under no obligation to inform an employer about an intention to take maternity leave until 10 weeks prior to the estimated date of birth. Some awards and agreements require a woman to begin her maternity leave prior to the date of birth, if it can be demonstrated that continuing to work poses a genuine occupational health and safety risk.
5. Parental leave laws apply not just to birth parents, but also to parents intending to adopt.