Ethics@Work: Counterproductive deterrence

By ASHER MEIR
November 23, 2006 22:20

The suggested change provides a suitable opportunity to discuss job protection for pregnant women.




pregnant belly 88

pregnant belly 88. (photo credit: )

The headline is ominous: "New law: Six-month imprisonment for an employer for firing a pregnant worker." It sounds like, as of now, any employer with a pregnant employee will be helpless to get any work out of her lest he be sent directly to jail. The reality is a little less intimidating. The "new law" is only a suggested law; a Knesset committee approved the law and now the Knesset will be called upon to vote. As of now the entire Knesset has not had a chance to judge or even discuss the issue. Furthermore, the revolution is not as great as it seems. Existing Israeli law forbids firing a worker because she is pregnant, and establishes a maximum penalty of one-month imprisonment. The new law would expand the maximum sentence to six months and also extend the statute of limitations to five years, by which time the youngster will be in mandatory kindergarten and the beleaguered mother will have a few spare minutes to file suit. Even so, the suggested change provides a suitable opportunity to discuss job protection for pregnant women. These protections have been controversial for at least a century. A landmark case was tried in the US in 1908 in Muller vs. Oregon, which upheld an Oregon statute which forbade employing women for long hours. The judge explained: "That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious." This decision was considered by many a key victory in the struggle for women's rights in the workplace, yet some feminists opposed the law as their idea of "women's rights" was workplace equality, which the Oregon statute violated by preventing women from working the same number of hours as men. The intervening century has seen continuing tension between the effort to advance women's welfare by having institutions take into account their special needs and trying to advance it by merely eliminating artificial obstacles to their progress (that is, overt discrimination). The pregnancy protection laws in Israel, like those in most post-industrial countries, do a little of both. On the one hand, they outlaw discriminating against an employee or job seeker merely because they are pregnant. This may sound like a basic protection, but it was once common to fire women from their jobs as soon as it became known they were pregnant, even if the pregnancy was not expected to have any impact whatsoever on job performance. (In the US, school teachers in particular were once forbidden to work when pregnant.) On the other hand, the laws give special protections to pregnant workers. This is done in practice by giving pregnancy, complications of pregnancy and maternity leave the status of a temporary disability, which give all workers the right to a certain amount of accommodation in the workplace and paid leave. Pregnancy is generally a matter of choice and not an ordinary "disability," and we normally wouldn't want labor law to give people an incentive to acquire disabilities by choice. But this way of drafting the law precisely emphasizes that we don't want to view pregnancy as something that needs to be avoided, but rather as something that is inevitable and needs to be accommodated like any other event that temporarily impacts effectiveness at work. The law is not meant to enable pregnant women to take advantage of employers by slacking off at work when they become pregnant - it is permissible to fire a pregnant employee for poor performance or because of downsizing just like any other worker. But the facts are not so simple. The burden of proof does not fall squarely on the worker to prove discrimination, and even if the employer fires a pregnant worker for slacking off the employee might still threaten a suit and may well be able to convince a judge that discrimination played a role in the dismissal. Furthermore, excessive penalties can have the same result as weak burdens of proof. Before firing a nonproductive worker, the employer will be asking himself (or herself) what the likelihood is that the firing will be found improper, and what the price of such a finding would be. So exaggerated penalties can make it difficult to fire a pregnant employee for even a valid reason. Research confirms what common sense suggests: any time workers are hard to fire, they will find it hard to find work. For instance, countries like France, which make it very difficult to fire workers, suffer from high unemployment. Likewise, overly "empowering" women will ultimately boomerang by making it more difficult for women with a high chance of having children (presumably younger women with partners) to find jobs. I think that the general pattern of legislation in Western countries does an adequate job of balancing the need to enable women to have families while participating in the workplace with the need of employers to keep control of their work force and their payrolls through the right to discharge workers. But I think the Israeli law is out of balance.

  • Prison sentences are completely inappropriate for a violation that is completely monetary in nature. Women who lose their jobs can always get them back if the court so decides, and can always be reimbursed for their lost income. I see no justification for prison sentences for any transgression that doesn't involve irreparable loss.
  • If courts take the prison option seriously, the threat of prison is likely to over-deter, and make it too difficult to fire workers when dismissal is really justified. This, in turn, will create a real deterrent to hiring women who are likely to become pregnant, thus making the law totally counterproductive.
  • I don't see how prison sentences could ever be enforced against a corporation. How can you incarcerate an abstract legal person? Thus, the law seems to discriminate against small business, which is already the most beleaguered and disadvantaged sector of the Israeli economy. Laws giving pregnant employees special protections are problematic in the first case since they limit the freedom of the employer to use his own resources to hire an effective work force. Despite this problem, such laws have been effective in enabling women to combine workplace participation and family life and, in general, are a reasonable and acceptable compromise. But extreme punitive measures like imprisonment are unfair. It is inequitable to impose prison sentences, a punitive measure, for a purely monetary transgression. There is a likelihood that the law will put the most severe burden on Israel's most vulnerable employers and such a severe punishment is likely to over-deter, which will be detrimental to the very women the law is meant to protect. The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology. ethics-at-work@besr.org


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