Are discrimination laws secretly hurting women?

Sheryl Sandberg’s recently published book Lean In has been described as the modern manifesto for women in the workplace.

I can also attest that it offers just as much value for men. Despite having worked both with and for women for decades, the book gave me a clearer perspective on the unique challenges and difficult decisions women face while managing their careers.

Lean In also highlights a significant issue faced by employers when it comes to how to retain female employees who decide to start a family, be it in the near or distant future. The problem arises from whether or not employers should be discussing it first.

Australia’s employment and discrimination laws prohibit treating women differently (that is, unfairly) on the basis of pregnancy, breastfeeding and family responsibilities. This is known as ‘adverse action’. Therefore, simply asking employees about their family plans may expose employers to claims of adverse action which are expensive and difficult to defend. Employment lawyers typically advise against asking questions like this during interviews and reviews.

However, in Lean In Sandberg suggests that managers should have an open dialogue with staff regarding their parenting decisions and timing. The idea is that this knowledge allows employers to easily provide the support and opportunities that women need to juggle their family and career. She gives some great examples of ways to keep women engaged at work in order to avoid them “leaving before they have left”, admitting that she has openly asked employees about their parenting plans despite the legal risk.

The book suggests many things employers can do to help overcome these challenges such as special parking for pregnant mothers, child care arrangements, flexible work and more opportunities for women to speak up and support each other.

But how is it possible to implement this extra support in the face of the high risk, potentially contentious conversation which ultimately precedes it? The laws that aim to protect against discrimination appear in this way to be perpetuating it, as they can hinder vital communication between employer and employee. This is a troublesome legal conundrum that Australian legislators need to resolve.

Have you ever experienced a situation where you were afraid to ask an employee a question that would otherwise enable you to provide more support and assistance to an employee?  How did you deal with this situation?

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