Pregnant worker alleges discrimination
Dear Mrs Macaulay, I am pregnant and recently informed my employer. Shortly after, I was demoted in a subtle way, and given fewer work hours without explanation, which also means lower pay. I suspect this is due to my pregnancy. What legal actions can I take to fight this discrimination?
Your situation is interesting and complex because you have qualified your demotion as having been done in a ‘subtle’ way. This means that you have recognised the difficulty which you would face, if you decide to seek redress against your employer for demoting you and giving you fewer hours of work after you told him/her or they of the fact of your pregnancy.
The Constitution does in the Fundamental Rights and Freedoms Chapter ( Chapter 111),recognises that all persons have a responsibility to respect and uphold the rights of others which are recognised in this Chapter and one is the right to equality before the law, which means that even though you are pregnant, you are entitled to enjoy the same rights and freedoms as all other persons in Jamaica. Then it also recognises the right to freedom from discrimination on the ground of being a male or a female, so under this, if as a pregnant woman you are treated differently from male employees, this would be aground for you to complain of being discriminated against, However there may be circumstances when as a pregnant woman, action is taken to move you from work or a working area where you have to deal with dangerous chemicals or there are dangerous fumes – BUT – such decisions must be made following discussions with you and your acquiescence to be moved elsewhere for your good health and that of your unborn child.
Historically, pregnancies were treated as disabilities but this was thrown aside many years ago, for instance the Disabilities Act of 2014 safeguards disabled persons rights by recognising their rights to be protected from discrimination in their employment conditions, in their education and generally in their access to obtain goods and services. But this Act does not apply to you but can be used in argument to augment your own circumstance of discrimination in your employment. You also have the Employment (Equal Pay for Men and Women) Act 1975 which prohibits discrimination in Employment.
As you must know, before you engage in any legal action against your employer or anyone in fact, you must be sure that you have a not only reasonable chance of success but a very good chance of it. In fact, I would go so far as to say that you should have an unassailable case against your employer before you embark on any legal action against them. Your description of your employer’s action in domoting you and giving you less hours of work, as meaning that you yourself recognise, as a fact, that you would have an uphill task to prove that their action was actual discrimination.
I would therefore suggest that before you expend money and time in filing a claim against your employer for redress, that is to say, damages and reinstatement of you back to your former position and number of hours, that you should do some research about the viability of your assertion that your employer’s action is discriminatory of you because you informed them of your pregnancy. You would, while seeking their conclusion on your circumstances, provide them with information on which you would rely in proof of your assertion of discrimination, which you have not provided in your letter to me. I therefore strongly suggest that you go and do your checking at the Ministry of Labour and Social Services and the Industrial Disputes Tribunal (IDT) which have the widest experiences with many circumstance of discriminatory actions by employers against employees and the strength and weakness of your case.
I am suggesting this because even though I myself concluded upon reading your letter that you it was clearly possible that you were demoted and your hours were cut because, this would lower your employer’s pay bill for you during your pregnancy and during your 8 weeks maternity leave payments. However, this is not enough for a court of law, for you to succeed in a claim for redress as I have stated above against your employer. A possibility or suspicion are not enough for evidential proof for you to succeed in such a claim.. You will need to provide clear factual evidence to prove your claim, for instance, if other pregnant employees had been treated in the same way as you have been during their employment with your employer, who agree to give evidence in your case in support of your claim, and which can be used to cross examine your employer, these would be very good and powerful. BUT, I feel despondent that this is not so for you, because of your use of the word “subtle”.
So before you embark on a legal claim course of action which would most likely fail, please check with the labour entities I have stated above and obtain their decision and their advice on your facts. So that you do not jeopardize your continuing employment Please go to the offices I have suggested.
All the very best,
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
