|Maternity Protection at Work: Revision of the Maternity Protection Convention (ILO, 1997, 122 p.)|
|1. Maternity protection at work|
Maternity protection in the last half century has been marked by progress in law, an evolution in workplace practice and rising social expectations regarding the rights of working women during their child-bearing years. Yet the gains registered have so far failed to resolve the fundamental problem experienced by most, if not all, working women at some point in their professional lives: unequal treatment in employment due to their reproductive role.
Women at work
Such discrimination is felt ever more acutely as more women spend a greater portion of their lives in paid employment. Indeed, among the most remarkable changes to have occurred in the past 50 years has been the rapid rise in labour market participation by women. Their worldwide economic activity rates climbed from 54 per cent in 1950 to 66 per cent in 1990; they are projected to reach almost 70 per cent in the year 2010. In the more developed regions, the growth has been even more dramatic, starting from a lower initial rate of 47 per cent, but expected to climb to over 80 per cent by 2010.
Two generations ago, women typically entered the workforce in the greatest numbers in their early twenties, with many leaving a few years later to bear and raise their children. In 1950, the worldwide economic activity rate for women rose to 59 per cent in the 20 to 24 age bracket, fell to 54 per cent for women ten years older, remained relatively constant for 15 years and then fell rapidly after age 49. By 1990, worldwide economic activity rates had assumed a new pattern of high entry rates for women in their twenties, rising labour market participation throughout their thirties and forties, and declining employment from age 50 onwards. In other words, more women were spending their child-bearing years in paid employment.
FIGURE 1. WOMENS ECONOMIC ACTIVITY RATES FOR THE AGE GROUP 24-50 YEARS FOR 1950, 1970, 1990 AND 2010 (WORLD, MORE DEVELOPED AND LESS DEVELOPED REGIONS)1
FIGURE 2. ECONOMIC ACTIVITY RATES BY SEX AND AGE GROUP FOR 1950, 1970, 1990 AND 2010 (WORLD)
At the regional level, fairly distinct patterns have emerged, demonstrating the impact of differing levels of economic development as well as cultural attitudes towards womens economic role. In Europe and Northern America in 1950, womens working lives were distinguished by relatively high rates of economic activity in the early twenties, by a second, but lower peak in the forties, and with lower rates during the child-bearing years. In the past two decades, however, this pattern has been largely replaced by one marked by high entry rates in the twenties and a continuous rise into the forties, thus coming to resemble more closely the pattern characteristic of male employment.
FIGURE 3. WOMENS ECONOMIC ACTIVITY RATES BY AGE GROUP FOR 1950, 1970, 1990 AND 2010 (EUROPE AND NORTHERN AMERICA)
In Latin America and the Caribbean in 1950, womens highest rate of economic activity was 27 per cent for the 20 to 24 age group, falling to 21 per cent during the remaining child-bearing years. In Oceania in 1950, the initially high activity rate of 64 per cent for the 15- to 19-year age bracket dropped precipitously as women entered their child-bearing years, never to attain more than 27 per cent after age 30. Both these regions have seen womens activity rates more than double and, for some age brackets, almost triple in the intervening 40 years. More women in these regions are spending more of their early child-bearing years in paid employment.
FIGURE 4. WOMENS ECONOMIC ACTIVITY RATES BY AGE GROUP FOR 1950, 1970, 1990 AND 2010 (LATIN AMERICA AND THE CARIBBEAN AND OCEANIA)
Africa and Asia present a different pattern of womens activity rates, since these are high throughout life and have evolved comparatively little since 1950. Nonetheless, a rise in participation is expected by 2010, with African women maintaining 60 to 66 per cent activity rates throughout their principal child-bearing years, and Asian womens rates rising continuously from 67 per cent in the 20 to 24 age group to 75 per cent in the 35 to 39 age group.
FIGURE 5. WOMENS ECONOMIC ACTIVITY RATES BY AGE GROUP FOR 1950, 1970, 1990 AND 2010 (AFRICA AND ASIA)
The notion that men are the sole providers for women and children has rapidly become a myth of the past. Nowadays, an increasing number of households in all regions of the world depend on two earners to maintain a suitable standard of living. In many countries, womens earned income is vital for the survival of the family. A recent study showed that 59 per cent of European working women and 55 per cent of their counterparts in the United States supplied half or more of their familys household income, with one out of four women in Europe providing the total household income.2 In India, an estimated 60 million people live in households maintained by women. Worldwide, women provide the main source of income in approximately 30 per cent of households, while the vast majority of male-headed households have women members who contribute labour, income and other forms of support.3
What are the implications of these changes? First, the number of women working throughout their child-bearing years is escalating, a fact which makes adequate maternity protection even more imperative. Not only is maternity leave and appropriate medical care essential to enable a woman to retain or regain her health and to return to work, but income replacement during her leave period has become indispensable for the well-being of herself, her child and her family.
Second, as joint breadwinning becomes the norm, discrimination in employment on the basis of actual or potential maternity has implications for the whole of society. Indeed, the positive momentum signalled above can hardly conceal a troubling underlying reality. In all parts of the world, working women who become pregnant are faced with the threat of job loss, suspended earnings and increased health risks due to inadequate safeguards for their employment and the rights which derive therefrom. Their situation has evolved only slowly. As the world approaches the new century, governments and the social partners must face the fact that maternity protection for vast numbers of working women is still barely assured. Protecting their health, ensuring their employment and providing a reasonable level of income to employed women before and after childbirth remains a challenge. A momentous task lies ahead.
Safe motherhood: The global challenge
Most of the 200 million pregnancies which occur worldwide each year result in the birth of a live baby to a healthy mother. In recent decades, tremendous efforts have been deployed to raise womens overall health security and to improve survival rates for infants. The impact of these efforts is evident in the fact that between 1970 and 1994 female life expectancy rose as the total fertility rate declined in all regions of the world.4 Infant mortality rates between 1960 and 1994 dropped precipitously, by three-fifths in the Arab States (from 166 per 1,000 live births to 67), by 70 per cent in East Asia (from 146 to 41), by 65 per cent in Latin America and the Caribbean (from 107 to 38), by more than half in South Asia (from 163 to 73) and by more than 40 per cent in sub-Saharan Africa (from 166 to 97).5 This advance has come about in parallel with high or rising rates of womens employment.
Yet, despite these improvements, maternal and infant mortality rates remain unacceptably high. Indeed, the disparity in maternal mortality rates between rich and poor countries is greater than any other public health indicator. Of the more than 500,000 maternal deaths which are recorded each year, an estimated 99 per cent occur in developing countries.6 Worldwide the maternal mortality rate is currently estimated at 416 per 100,000 live births, with industrial countries experiencing 31 per 100,000 and the least developed countries witnessing 1,030 per 100,000.7 In 1989, the average lifetime risk of dying of a pregnancy-related cause was between one in 15 and one in 50 in the developing world, compared with a risk varying from one in 4,000 to one in 10,000 in the developed world.
These figures, however shocking, represent only the tip of the iceberg. They include only the officially reported deaths and may thus account for only a fraction of the total number. Nor do they make reference to the millions more women who suffer acute or chronic damage to their health from the untreated complications of pregnancy and labour. Some 20 million cases of severe maternal morbidity occur annually. Furthermore, although infant mortality rates have dropped markedly in recent decades, the fact remains that each year some 4 million infants die within the first month of life, two-thirds of these within the first week.8
It is against this backdrop of extensive, largely preventable human suffering that an international Convention seeking to promote maternity protection should be viewed.
The portion of maternal mortality and morbidity affecting women employed in the formal sector is not known. Some observers note, however, that women who remain employed throughout their pregnancy, are granted maternity leave and return to work after that leave are far less likely to suffer negative outcomes of pregnancy thanks to their greater command of economic resources and their greater access to prenatal, confinement and postnatal health care. Indeed, a strengthening of employment rights to avoid dismissal due to pregnancy and to ensure that maternity leave does not result in discriminatory termination of employment is seen as a fundamental element of maternity protection.
Equality in employment: Proclaimed everywhere, fully realized nowhere
While womens employment rates have risen in many regions of the world, the quality of their employment remains far below that of men. Compared to men, women still face unequal hiring standards, unequal opportunities for training and retraining, unequal pay for work of equal value, and unequal promotion prospects. They also face a greater likelihood of experiencing unemployment and poverty.9
These inequities are so widely recognized that more than 150 countries have assumed international obligations to take all appropriate measures to eliminate discrimination against women in the field of employment, in particular by ensuring the right to the same employment opportunities, including the application of the same criteria for selection...; the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining...; the right to equal remuneration... and to equal treatment in respect of work of equal value, among other rights.10
Major international conferences have further highlighted the need to eliminate gender discrimination in employment, notably the World Summit for Social Development (Copenhagen, 1995)11 and the Fourth World Conference on Women (Beijing, 1995).12 The International Conference on Population and Development (Cairo, 1994) specifically called for the elimination of discriminatory practices by employers against women, such as those based on proof of contraceptive use or pregnancy status.13
Discriminatory hiring based on potential or actual maternity may involve practices which enter deeply into the private lives of the workers involved. In some countries, employers may require a negative pregnancy test, a gynaecological examination, or a medical certificate attesting to sterilization as a condition of employment. For example, the ILO Committee of Experts reporting on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. Ill), noted from a report that, in one country, numerous employers, with impunity, require[d] women seeking employment or wishing to keep their jobs to furnish certificates attesting to their sterilization.14 In a number of countries, the elimination of such practices has become the subject of legislative action. Brazil, for example, has recently passed legislation imposing strong penalties on employers who require a certificate of sterilization as a condition of employment.15 Colombia has issued a resolution which restricts the employers right to demand a pregnancy test of a jobseeker to employment or occupations where pregnancies might be at risk.16 The Ministry of Labour of Chile has prepared draft legislation which would prohibit employers from demanding medical certificates to establish non-pregnancy at the time of recruitment or requiring a commitment from the employee that she will not become pregnant during her contract.17
In some countries, employers inquire about candidates intentions with regard to child-bearing during the recruitment process. Intrusive questions may be asked regarding sexual activity or the use of birth control.18 Some countries are making efforts to put an end to such practices. In the United Kingdom, for example, the Equal Opportunities Commission has issued a Code of Practice for the elimination of discrimination on the ground of sex and marriage and the promotion of equal opportunity in employment. The code recommends that interview questions be related to the requirements of the job and that questions about marriage plans or family intentions should not be asked, as they could be construed as showing bias against women. Information necessary for personal records can be collected after a job offer has been made.19
Once hired, women face potential job loss should they become pregnant and their pregnancy become known. Termination of employment on the grounds of pregnancy is said to occur even in countries which outlaw the practice.20 In the United Kingdom, more than one in eight of the inquiries received by the Equal Opportunities Commission relate to dismissal due to pregnancy.21 In Spain, the General Union of Workers (UGT) observed that employers dismissed women or did not renew their contracts on account of pregnancy and, in certain situations, employers offered temporary workers employment for an indefinite period if they relinquished their maternity rights. This was said to occur despite the availability of procedures of redress for victims of such discrimination.22
The vulnerability of women workers to dismissal during maternity leave is an ongoing concern. According to the data of the Directorate of Public Prosecutions and Labour Inspection of the Russian Federation, the number of violations of womens labour rights has increased significantly in recent years. The unlawful dismissal of women during maternity leave or during the period of nursing has become a common fact, particularly when enterprises are restructured or change ownership.23 Dismissal during maternity leave was prohibited in Maternity Protection Conventions Nos. 3 and 103, and the period of protection was extended from the notification of pregnancy through at least the first month after return to work in Recommendation No. 95.
Women who return to work after childbirth face the task of reconciling their professional lives with their new family roles. Most will cope with the strains of a double day: fulfilling performance requirements on the job while striving to meet the needs of their child for nurturing. Some will discover, however, that their return to work is marked by resentment from colleagues or less favourable treatment by employers.24 A recent study of 793 Chilean workers who returned to work after maternity leave found that 24 per cent of them had experienced some type of negative treatment. Most frequently, this included transfer to a lower position, job loss, verbal abuse, social isolation or shunning.25
Professional women may find themselves subtly or directly placed in job assignments which carry less status and offer fewer opportunities for advancement. Unspoken obstacles - from early evening business meetings to the assumption of disinterest in more challenging work assignments - may effectively prevent full reintegration on the job, causing some women to renounce their ambitions and to resign themselves to lesser employment prospects than their qualifications would warrant. Forfeited career opportunities represent not only long-term earnings loss for the woman and her family, but in cumulative terms, a tremendous reduction of womens potential contribution to economic growth.26 Discrimination on the basis of maternity is costly: to women, their families and society as a whole.
Maternity protection: A condition for equality
In the past 50 years, the principle of equality between men and women has been firmly anchored in the constitutions and national legislations of countries around the world. Its embodiment in law has compelled a profound rethinking of the status of women, their role in society and their contribution to the economy. It has forged the recognition that the improvement of womens employment situation may depend less on protective measures than on equal opportunity and treatment in the workplace. Women need to have their work remunerated at rates established without discrimination based on sex to establish the material basis for equality. The adoption by the ILO of the Equal Remuneration Convention, 1951 (No. 100), and its accompanying Recommendation (No. 90) established the principle of non-discrimination between men and women in respect of remuneration to ensure equal pay for work of equal value.
The principle of non-discrimination was taken a step further with the adoption of the Discrimination (Employment and Occupation) Convention, 1958 (No. Ill), and its accompanying Recommendation (No. 111). Discrimination was defined in Article 1, paragraph 1, to include:
(a) any distinction, exclusion or preference made on the basis of... sex... which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
In Article 2, ratifying member States were required to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating discrimination.
Since the adoption of that Convention, a gradual shift has occurred in the social and labour legislation governing womens employment. There has been a discernible move away from a purely protective approach, aimed at limiting womens exposure to the hazards of the industrial workplace, to one based on equal rights in employment and the elimination of unfair practices. The protective legislation which characterized the first half of the century has been revisited, questioned and, in some instances, overturned in light of its discriminatory effects. This includes the general prohibition of night work for women, the gender-based limitation of working hours, and the exclusion of women from certain occupations or activities due to sex rather than to their capacity to perform the job.
In 1975, ILO member States adopted a Declaration on Equality of Opportunity and Treatment for Women Workers, which linked the prohibition of discrimination against women on the grounds of pregnancy and childbirth with the right to employment protection during pregnancy and maternity leave as well as the specific protections provided in Convention No. 103. Article 8, paragraphs 1 and 3, of the Declaration provided:
1. There shall be no discrimination against women workers on the grounds of pregnancy and childbirth and women bearing a child shall be protected from dismissal on such grounds during the entire period of pregnancy and maternity leave. They shall have the right to resume their employment without loss of acquired rights....
2. Because maternity is a social function, all women workers shall be entitled to full maternity protection in line with the minimum standards set forth in the Maternity Protection Convention (Revised), 1952 (No. 103), and the Maternity Protection Recommendation, 1952 (No. 95), the costs of which should be borne by social security or other public funds or by means of collective agreements.
Through this Declaration, ILO member States expressed their belief that equality of opportunity and treatment of women workers can only be achieved through a combination of legal measures: the elimination of maternity as a source of discrimination; employment security throughout pregnancy; the right to maternity leave and benefits; and the right to return to work without loss of acquired rights. The special protection afforded to women workers during pregnancy and after childbirth was not seen as an exception to equal treatment, but rather a condition for non-discrimination in employment.
The challenge for member States is clear: to ensure that in the 21st century, maternity protection achieves the double goal of safeguarding health and ensuring employment rights in order to enable men and women to work together on the basis of equality.
1 Data used for the figures in this chapter were taken from ILO, Bureau of Labour Statistics: Economically active population, 1950-2010, fourth edition (Geneva, December 1996).
2 H. Wilkinson and I. Briscoe: Parental leave: The price of family values? (London, DEMOS, 1996), p. 7.
3 H. OConnell: Women and the family (London, Zed Books, 1994), p. 67.
4 UNDP: Human Development Report 1997 (New York, 1997), No. 47, Table 10: Regional aggregates of human development indicators.
5 ibid., Table 8: Trends in human development.
6 United Nations: Women: Challenges to the year 2000 (New York, 1991), p. 20.
7 UNDP, op. cit.. Table 12: Child survival and development.
8 WHO: Mother-hahy package: Implementing safe motherhood in countries, document no. WHO/FHE/MSM/94.11(Rev.1) (Geneva, 1996), p. 7.
9 L.L. Lim: More and better jobs for women (Geneva, ILO, 1996).
10 These and other rights are included in Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women. As of 25 March 1997, 97 countries have signed and 156 have ratified or acceded to this Convention.
11 Paragraph 56(b) of the Copenhagen Declaration and Programme of Action includes eliminating gender discrimination... in hiring, wages, access to credit, benefits, promotion, training, career development, job assignment, working conditions, job security and social security benefits.
12 The Beijing Declaration and Platform for Action included as strategic objective P.5 the elimination of occupational segregation and all forms of employment discrimination. Paragraph 178(c) encourages member States of the United Nations to enact and enforce laws and develop workplace policies against gender discrimination in the labour market,... in hiring and promotion, and in the extension of employment benefits and social security, as well as regarding discriminatory working conditions and sexual harassment. In addition, mechanisms should be developed for the regular review and monitoring of such laws.
13 Programme of Action adopted at the International Conference on Population and Development (Cairo. 5-13 September 1994), para. 4.4(f).
14 Report presented to the Federal Senate by a Joint Parliamentary Committee of Investigation on the Incidence of Massive Sterilization of Brazilian Women, cited in ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4A), International Labour Conference, 80th Session, 1993, p. 321.
15 Act No. 9029 to prohibit the requirement of a certificate of pregnancy or sterilization and other discriminatory practices, for the purposes of admission to work or maintenance of the legal employment relationship, dated 13 April 1995 (Dio Oficial, No. 73. 17 April 1995, p. 1).
16 Ministry of Labour and Social Security Resolution No. 3716 restricting the requirement of a pregnancy test for obtaining employment in both the private and public sectors to employment or occupations where pregnancies might be at risk, dated 3 November 1994. Committee of Experts on the Application of Conventions and Recommendations: Individual observation concerning the Discrimination (Employment and Occupation) Convention, 1958 (No. Ill), in ILOLEX 1997 database (Geneva, ILO, February 1995).
17 M.R. Veluez: Four workers representatives speak, in Spotlight, No. 14, June 1997. p. 2 (newsletter of the Labour and Population Programme, Development Policies Department. ILO, Geneva).
18 See ILO: Protection of workers personal data: An ILO code of practice (Geneva, 1997) which states that An employer should not collect personal data concerning a workers sex life (para. 6.5) and that medical personal data should not be collected except in conformity with national legislation (para. 6.7). If a worker is asked questions inconsistent with these principles and the worker gives an inaccurate or incomplete answer, the worker should not be subject to termination of the employment relationship or other disciplinary measure (para. 6.8). In so doing, the code shares the view of many national courts that, especially in connection with hiring procedures, workers are justified in refusing to answer questions that are incompatible with the code (para. 6.8).
19 C. Palmer: Maternity rights (London, Legal Action Group. 1996), p. 26.
20 The Termination of Employment Convention, 1982 (No. 158), specifies in Article 5 that pregnancy shall not constitute a valid reason for termination.
21 Pregnancy and dismissal, in Labour Research (London), July 1966, p. 23.
22 ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4A), International Labour Conference, 80th Session (Geneva. 1993), pp. 366-367.
23 Information provided to the ILO by the Ministry of Labour and Social Development of the Russian Federation, March 1997.
24 The Beijing Platform of Action calls for the elimination of discriminatory practices by employers on the basis of womens reproductive roles and functions, paragraph 178(d).
25 H. Henrez, V. Riquelme and T. Cenas: Las normas que protegen la maternidad en Chile: El comportamiento de las empresas (Santiago, Direcciel Trabajo, Departamento de Estudios, 1996).
26 ILO: Breaking through the glass ceiling: Women in management (Geneva, 1997).