Being Childless as a Condition of Employment

Just as an employer may argue that its discriminating against an employee is justified by its affirmative action measures and its aim to achieve equitable representation in the workplace, the employer could also argue that discrimination is justified by the inherent requirements of the job. But could it be argued that an employee’s not being pregnant constitutes an inherent requirement of the job? This is the argument the employer presented to the Labour Court in Wallace v Du Toit (2006) 15 LC 6.12.2. The parents, two busy professionals, engaged a child minder (an au pair) to assist with looking after their three-year old. The parents and the child minder got along well and a few years later another child was born; the employee’s duties were extended. She no longer worked only weekday afternoons, but also some mornings. She had a good relationship with both the parents and the children in her care.

At the time she began working for the couple, the employee was single and she had no immediate intention of having her own children. The issue was raised during her initial job interview — the employer (an attorney) held the view that a child minder who was helping bringing up his children should not have children of her own because this would affect (in essence diminish) the attention and devotion to his children. He felt that a child minder who had children would not put his children first. Nor would she be as flexible as an employee who had no parenting responsibilities of her own. Well, you can guess what happened next. When she informed her employer that she was expecting her own child, she was told that the employment relationship had come to an end. The employer congratulated her on her pregnancy but at the same time told her that her services were no longer required.

The employer argued that there was a resolutive condition in the employment contract (the condition being that the employee not fall pregnant) and when this happened, the contract terminated. The employee flatly denied that there was such a term in the (verbal) contract of employment — that her pregnancy would also mean the end of the employment relationship. But she admitted that the employer had asked questions during the interview relating to her marital status and whether she planned having a family of her own. At the time, of course, she was single and did not intend having children. She stated that she had never agreed that her employment would come to an end if she fell pregnant; nor could she see any reason why her pregnancy or motherhood would detrimentally affect her ability to do her job well.

The employee argued, first, that her dismissal was automatically unfair in terms of the Labour Relations Act, and, second, that she was entitled to damages in terms of section 50(1)(e) of the Employment Equity Act. The employer’s counter-argument was that there had been no dismissal and that the employment relationship had been ended by agreement between the parties. The employer also argued that the dismissal was justified because it was an inherent requirement of the job that the employee not have her own children.

As is to be expected, the Labour Court would have none of this and it did not hesitate to find that the dismissal, related as it was to the employee’s pregnancy, was an automatically unfair dismissal in terms of section 187 of the Labour Relations Act. Nor does it come as any surprise that the Labour Court found the employer in breach of section 6 of the Employment Equity Act (prohibiting unfair discrimination). It was certainly unfair of the employer not to consider whether the employee would be able to continue to do her job as a child minder and do it well — instead, the employer simply presumed that she would no longer be able to fulfill her job function effectively.

The Labour Court structured the employee’s relief on two grounds. Firstly, there was R25 000 — as damages for the impairment of the employee’s dignity and self-esteem flowing from the discrimination on the grounds of her pregnancy (the employee was earning R4500 a month at the time of her dismissal). This figure also had a punitive element, underscoring the dim view the Court took of the employer’s approach in relation to the dismissal. Secondly, the Court also awarded the employee compensation for the financial losses she had suffered as a result of the employer’s discrimination. In total, the employee was awarded R71 500 in damages.

Perhaps the facts are exceptional and no doubt it is exceptional for an employer to take the view that an employee can be dismissed for any reason relating to her pregnancy. The informal and loose approach of the employer to the employment relationship (there was no written contract, for instance) may have lulled the employer into a false sense of security that the employee would not seek to challenge what amounted to a dismissal (even though the employer, as a labour attorney, sought to rely on contractual grounds for the termination of the contract). And, as this case again shows, discrimination may well carry a hefty price tag.