Encumbered Workers: A Socio-Legal Study of Motherhood, Discrimination and Job Loss

Abstract

In Australia, approximately one in five working mothers are reported to lose their job as a result of discrimination during pregnancy, parental leave or on return to work. This is despite employment based discrimination against pregnant women and those with family or parental responsibilities being prohibited by anti-discrimination legislation in all Australian jurisdictions as well as by the Fair Work Act 2009. The policy challenges that arise from the intersection of motherhood and paid labour are well documented, but discriminatory job loss is an under-explored aspect of this gender inequality landscape. Little is known about the nature of discriminatory job loss, who is most vulnerable to experiencing it, why it is so prevalent and the effectiveness of the labour law framework in addressing it. The aim of this thesis is to advance knowledge about the nature, extent, causes and consequences of discriminatory job loss experienced by pregnant women and mothers in Australia. Drawing on feminist legal theory, nationally representative survey data, in-depth semi-structured interviews with 38 mothers who have experienced discriminatory job loss and analysis of legal frameworks, this thesis argues that discriminatory job loss occurs, and occurs frequently, because of a socio-legal system of work and care that disadvantages mothers. This argument is divided into three parts that broadly correspond with three research questions. In the first part, I argue that conventional approaches to measuring the prevalence of discriminatory job loss reinforce a liberal understanding of discrimination as something that is both relational and individual, rather than systemic. These approaches overlook job loss that occurs because of gendered inequalities in the labour market and the home as well as obscuring the relationship between job loss, economic precarity, legal regulation and access to services (such as childcare). The second part of the thesis argues that labour laws are an integral part of a socio-legal system that creates and sustains inequality for mothers and carers. This is so for a number of reasons. First, labour laws offer pregnant women and carers legal entitlements that allow care work to be accommodated, but do not disrupt the underlying ideal unencumbered worker norm. Although many of these entitlements are gender neutral, it is overwhelmingly mothers who use them. The institution of motherhood (and particularly dominant ideologies of 'good' mothering) shape and constrain the 'choices' made by parents in relation to how they share and manage paid work and unpaid care, resulting in more mothers seeking workplace accommodations and more fathers conforming to ideal worker practices. Second, mothers are discriminated against by a legal system that privileges employer discretion to determine the terms and conditions of employment and to justify job loss by reference to managerial prerogative. Third, labour laws place considerable burdens on individuals to advocate for and seek enforcement of workplace rights. This both heightens their vulnerability to job loss as well as creating multiple barriers to accessing justice for job loss that has occurred. The third part of the thesis examines the consequences of discriminatory job loss for the personal and professional lives of Australian mothers. I argue, not only that discriminatory job loss has a significant impact on the self-esteem, confidence, mental health and finances of mothers, but also that it detrimentally effects their re-entry into, and equal participation in, the labour market. This thesis concludes by exploring how labour law could be recentred around a carer norm and whether this might hold promise for disrupting discriminatory practices and advancing gender equality. Show more