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Adams, K Lee --- "The Problem of Voluntariness: Parents and the Anti-Discrimination Principle" [2003] DeakinLawRw 5; (2003) 8(1) Deakin Law Review 91

The Problem of Voluntariness: Parents and the Anti-Discrimination Principle

By K Lee Adams[*]



I. INTRODUCTION

How employees cope with competing demands of work and family responsibilities is a topic of current public concern and debate.[1] The issue of work-family conflict affects a significant number of Australians. In the year 2000, there were 1,381,500 Australian families that had dependent children aged 14 and under and both parents (or the sole parent in single parent families) in the workforce.[2] As seen in such high profile anti-discrimination cases as Hickie v Hunt & Hunt[3] and State of Victoria v Schou,[4] unresolved conflict between work and family obligations can lead to the loss of highly skilled employees to the workforce, and the loss of significant specialised careers for caregivers.

Legislation in Australia has attempted to offer some protection to workers in reconciling family and work conflicts,[5] but with uncertain success.[6] In practice, the social policy behind such legislation often conflicts with traditional models of work and the employment contract,[7] gendered conceptions of working parents,[8] and volenti-type arguments relating to freedom of choice.[9]

Political movements in Australia and the US argue that so-called ‘family-friendly’ work policies are unfair to workers without children.[10] According to Tom Nankivell, a Commonwealth policy analyst, parenthood is a private lifestyle choice, so he questions why the government or the workplace should support one private choice over another.[11]

Although not well articulated by courts and tribunals, arguments going to the voluntariness of becoming a parent continue to raised by defendants.[12] Such sentiments also appear to be popular with a proportion of the electorate and could result in legislative change.[13] Further, explicit anti-discrimination protection for working parents in Australia is relatively new. As such, it is appropriate to examine the theoretical justifications for such protection. This paper is a response to arguments that voluntary choice should negate any adjustment of the workplace to the needs of working parents. It presents preliminary observations on the theoretical legitimacy of considering that workers who are parents are in effect participating in their own problem, using an analogy with the law’s treatment of voluntary conduct within the torts system. It also compares working parents to employees with other protected attributes and examines other factors which impact the justification for protecting working parents.[14]

II. DISCRIMINATION, VOLUNTARINESS AND EMPLOYMENT

Early justifications of equality of treatment in the workplace often focused on the unfairness of basing employment decisions on factors which are ‘beyond an individual’s control.’[15] Characteristics or attributes such as race,[16] age, sex,[17] and national origin fall into this category. The fact that these traits or labels cling to a person despite his or her characteristics as a worker suggests that they are irrelevant to working capacity or performance and thus are an illegitimate basis for employment-related decisions.[18]

Interestingly, some protected traits such as religion or political affiliation are to some degree matters of choice, yet they were protected fairly early on in anti-discrimination legislation.[19] The argument for including these traits seems to be principally the protection of civil liberties, but also the general irrelevance of these traits to the ability of employees to perform most jobs (at least for mainstream religions traditional in common–law countries).[20] In other words, an employee’s religion is perceived as a private choice that does not usually impact on the contract of employment.[21] Thus, it is not the element of choice in and of itself which is problematic in affording anti-discrimination protection to workers with family responsibilities.

Anti-discrimination protection for disability, however, came into the picture only later.[22] The basis for this is, I believe, the fact that disability is an attribute which can often affect the way in which an employee can work. As such, it took a social change and political action to generate the will to legislate into the traditional employment contract. It is specifically because a disability can affect the way in which work is performed that the accommodation principle is used as part of anti-discrimination prohibitions. The accommodation principle is born of the idea that workers with disabilities do not start from an equal point with respect to the average worker. In other words, we may say that, for the worker with a disability, the costs (or effort required) to engage in the same work as an able worker are higher. Thus, disabled workers may require reasonable accommodation so they are not disadvantaged in competing in the labour market.

Similarly, the attribute of family responsibilities often shares with the attribute of disability an impact on an employee’s ability to perform the job in the traditional way. An employee who is also a parent (or has other caring responsibilities) can suffer decreased ability to perform the job in the typical way when caring responsibilities and work responsibilities conflict. Thus, workers with parental responsibilities can require accommodation of their needs (different from those of the ‘average’ worker) in order to perform the job. As such, anti-discrimination protection for both working parents and workers with a disability is in tension with the traditional legal paradigm of the contract of employment. It is this ‘interference’ with the employer’s presumptive benefit of the bargain, coupled with a perceived voluntary choice to have children, which motivates the political rhetoric of those who oppose anti-discrimination protection or accommodation for working parents.

In the context of working parents, the argument goes like this: you chose to have children, therefore you must take the burdens associated with having children into consideration in your work life. Why should paid employment accommodate your choice to have children when both obligations were freely undertaken? In the popular press, recent books and internet sites decry the unfair advantage which employees with children receive in the workplace.[23] Some claim such benefits as flexible hours, the option of working from home, and similar adjustments to traditional employment conditions which are requested by working parents adversely impact fellow employees.[24] Nankivell argues that the choice to have children is no more or less legitimate than a decision to buy a Porche or go on a trip. Thus, he questions why an employee should receive benefits (including flexible work hours) because of a personal choice.[25]

Similar arguments have been raised by respondents in discrimination cases. In Schou v State of Victoria, [26] the Respondent initially raised this argument in the legislative context of whether or not the Complainant was able to comply with a requirement, condition or practice. Respondent State of Victoria argued that Schou chose to have the attribute of parental status and chose to be the primary carer, and such choice was relevant to the determination of whether or not she could comply with a requirement to be at the workplace full time.[27] As the Tribunal noted, the majority of protected attributes in Victoria’s Equal Opportunity Act are attributes of choice.[28] The Tribunal refused to entertain the State’s argument, saying that one could not avoid the operation of the Act by saying that a choice to attain an attribute requires that you ‘live with the unreasonable or uncomfortable consequences’.[29]

Likewise, in Amery v NSW,[30] respondent State of New South Wales argued the limitation to casual status was self-imposed and thus non-discriminatory. The Tribunal considered that Complainants had by choice limited themselves to casual work for family reasons: ‘they abandoned their permanent status, and hence their right to higher increments, to bring up children.’[31] Yet, the tribunal was dissuaded from this argument because the requirement of permanent status would have a disparate impact upon women, who are more likely to have casual status.[32]

A choice-related argument was successful, however, before the Queensland Industrial Relations Commission (QIRComm). The QIRComm rejected a claim that a requirement of part-time and casual employees to work the equivalent of 12 months full time in order to qualify for an incremental salary raise was indirectly discriminatory.[33] Despite the fact that the impact of this requirement fell more heavily on women since part-time and casual positions were primarily filled by women, the Tribunal reasoned that such positions were created at the request of women workers to meet family obligations, and, as such, the system could not be unreasonable.[34]

It seems unsatisfactory on a theoretical level to simply ignore the choice element altogether. Neither is it sufficient to allow a perceived choice to dictate the outcome without further consideration. Either extreme is unlikely to reflect the full dynamics of the employment relation and the stake of society at large in such relationships. As a matter of theory and given the elements of choice in many protected attributes (as noted by the Schou Tribunal) one should be able to articulate the principles and circumstances under which protection and choice should co-exist.

III. A TORT ANALYSIS OF VOLUNTARY CONDUCT

Employment discrimination shares certain structural and theoretical similarities with the common law of torts. Structurally, both tort and discrimination actions in common law jurisdictions are based on a model of individual liability providing a private right of action against a wrongdoer. In both types of actions a plaintiff/complainant must establish the element of causation between a defendant’s actions and the harm suffered. Both negligence and anti-discrimination law make use of a concept of ‘reasonable’ behaviour as a standard against which the behaviour complained of is measured.[35] On a theoretical basis, the similarities are even more apparent. The purposes of anti-discrimination law mirror the purposes of the law of torts—retribution, deterrence of socially unacceptable behaviours, compensation of a victim for injury or loss, and the proper distribution of that loss or allocation of the risk of loss in accord with ‘community values’.[36] Further, the interests protected by anti-discrimination law overlap those of tort law to some extent, by protecting interests of personal security and bodily integrity (sexual harassment) as well as dignitary interests (race, sex, disability discrimination).[37]

In acknowledgement of these similarities, employment discrimination law has been recognised in several contexts to be analogous to a tort.[38] The UK Sex Discrimination Act refers to sex discrimination as a ‘statutory tort’.[39] Although not employing this language, the United States Supreme Court has applied tort principles in analysing an employment discrimination action,[40] and other US courts have explicitly drawn a link.[41]

Tort law provides doctrines that take into account a plaintiff’s volitional behaviour in determining whether to impose liability for personal injury. Because of the theoretical and structural similarity of discrimination and tort law, a tort framework can provide a useful way to analyse the role voluntary conduct should play in causing injury within a discrimination context.

Thus, to examine the impact of voluntary behaviour on working parents, let us assume that employment discrimination takes the form of a hypothetical tort, where an employee is legislatively given a private right of action for some personal harm done to him or her in the context of work. For example, in the context of a ‘discrimination tort,’ a worker may find himself disadvantaged in his career because he needs time off to care for a young child. The career disadvantage may be conceived of as an injury received by the worker. Such a career injury could take many forms, such as: termination,[42] demotion,[43] failure to renew a contract,[44] refusal to permit the employee a needed accommodation in order to permit caring duties,[45] relegation to a low-level or ‘backwater’ job,[46] or some different treatment in the terms and conditions of the employment.[47] In an over-simplified model of anti-discrimination doctrine,[48] if this career injury results from a worker’s protected status, such as a parent, ‘carer’,[49] or person with ‘family responsibilities’,[50] such an injury could amount to discrimination and generate liability for this statutory tort. Let us assume for purposes of our discussion that such a career-injury tort can be proven.

However, that does not end the matter. In tort law, an injured party may be wholly or partly responsible for his own injury. As a result, the nature of an injured party’s actions can affect whether such a person should receive a payment of damages from another. Such a principle arises in arguments that workers should have to bear the ‘natural consequences’ on their work life of electing to have children. There are two methods in tort of analysing the part that the actions (choice) of an injured party play in her own injury: volenti[51] or contributory negligence. We consider each in turn.

A Assuming the Risk of Parenting

The doctrine of volenti non fit injuria or voluntary assumption of the risk may usefully illuminate whether it is appropriate to consider the family-worker’s participation in his or her own career injury and thus whether or not there is a need to redress such an ‘injury’ by means of the law. The High Court has adopted as the definition of volenti that ‘the plaintiff must be shown not only to have perceived the existence of danger, for this alone is insufficient, but also that he fully appreciated it and voluntarily accepted the risk.’[52] ‘The basis of assumption of risk is the plaintiff's consent to accept the risk and look out for himself.’[53]

Modern law suggests that, as between an employer and employee, an assumption of risk of physical harm is against public policy due to a disparity in bargaining power between the employer and the employee, and the compulsion of economic necessity on the part of the employee.[54] A disparity in bargaining power can result from many situations and call into question the true freedom of choice on the part of the person said to assume the risk. However, for purposes of our argument, let us assume that such a public policy exception does not apply as a matter of law in the context of non-physical injuries or harms such as our hypothetical ‘career injury.’

Accordingly, classical volenti requires the establishment of two elements: actual knowledge of the risk presented and lack of compulsion.[55] In order to assume a risk, a person must be subjectively fully aware of the risk, and the nature and magnitude of that risk, and freely encounter the whole risk anyway.[56] Let us consider the risk of ‘career injury’ a worker might be found to assume by having a child and working.

1 Knowledge of the Risk

One cannot assume a risk unless she knows it exists. ‘This means that he must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character, and extent which make it unreasonable.’[57] In our hypothetical career injury, agreeing to sell labour to an employer while having a child who requires care may be considered to be the facts giving rise to the danger of conflicting responsibilities. However, more must be understood by our working parent if she is held to assume the risk of a career injury. Importantly, she must understand the extent of the danger, also referred to as the magnitude of the risk.

For purposes of argument, we begin with a case which may be viewed as atypical. Let us assume Ben and his wife Sharon desire a family and have two small children. Sharon contracts Multiple Sclerosis (MS) and becomes bedridden, unable to care for the children on a daily basis and requiring care herself. Ben has a full time job to support his family but he now has to take over the family-work duties that formerly were done by Sharon. When Ben and Sharon decided to have children, was he aware that his children needed care? Yes. Was Ben aware that Sharon might get sick? Yes, probably. Was he aware of the likelihood or probability that she would contract MS or some other debilitating illness? Probably not.

Most cases which discuss assumption of the risk agree that the possibility of a risk occurring in the abstract is insufficient to establish awareness of the magnitude of a risk. Instead, one must be shown to have had some reason to be aware of the probability that a potential risk may eventuate before full knowledge will be demonstrated. The leading case on this issue in Australia offers this analogy:

The inference [of implied voluntary acceptance of a risk] may be more readily drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as for example, when the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking and ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not.[58]

Moreover, risks should not be held to be ‘inherent’ in an activity unless they cannot be guarded against by the exercise of ‘reasonable care and diligence.’[59] In keeping with this manner of examining awareness of risk, a plaintiff was held not to have assumed the risk of injury from a ‘frolic’ involving cars because she had no reason to foresee the likelihood of the driver taking a bend too fast.[60] Similarly, a bicyclist who was injured in a collision with a football player at a velodrome with a football field in its centre was determined not to have assumed the risk of injury:

It does not follow merely from the fact that the respondent appreciated or should have appreciated the dangers of simultaneous dual use that he believed that the touch football players would carelessly walk into the cyclists’ path. . . . A belief that the dangers (of which the respondent has full appreciation) would not materialise, would negative the proposition that he accepted those dangers.[61]

Using this principle, Ben in our example could not have assumed the risk of a career injury if he did not believe that Sharon would become so ill (or any number of other possibilities which could alter their plans for managing family and work issues), at least so long as he was exercising his ordinary powers of observation. Consider a less extreme example: a worker who is content to parent in a two parent family, but finds herself as a single parent, with the massive role changes that situation imposes. Such a worker is unlikely to have subjectively appreciated the nature of the risk of becoming a single parent. Similarly, and ‘more usual’ if you will, any working parent is unlikely to have truly appreciated the nature and extent of the conflict which would arise between work and family at the time the mutual duties are undertaken.

To put it in terms used by Ipp, AJA, in Taylor’s case, the mere ‘simultaneous dual use’ of duty towards work and one’s family alone is insufficient to assume a risk. It seems reasonable, then, at the time the simultaneous jobs of parenting and work are taken on, a significant number of working parents will not have believed that problems and conflicts between work and family which are known to be within the realm of possibility will occur with the degree or frequency which they do. This is so despite education for expectant parents and an understanding of the facts which may give rise to the problem, because it is difficult to really understand the nature (and particularly the extent) of the demands of being a parent until one is faced with those demands. (A parallel argument that the nature and quality of the work duty was unknowable before experience would apply for one who became a parent before becoming a worker).

One may maintain that such an ‘experience-based’ argument should not hold true for parents of subsequent children. Yet each new child brings a different set and extent of demands to the first, and the average parent may not be fully aware of the additional demands created by subsequent children until they are experienced. The full awareness of the risk must occur prior to the creation of the dangerous event in order to assume a risk.[62] Finally, parenting is not a single event, but a dynamic state which is continually changing. Thus one should take into account that the nature and extent of the demands that children place on one’s time and energy are likely to change over time and, as such, are quite difficult to fully appreciate when one would be required to have assumed the risk. However, let us assume that some parents do have a full understanding of the nature and extent of the risk of work-family conflict. For those parents, we must go on to consider whether they have assumed a known risk voluntarily.

2 Voluntariness

One must consider whether any risk alleged to be assumed was assumed freely and voluntarily. In analysing whether one has freely chosen to assume a risk, one considers the circumstances to ascertain whether there is a basis for compulsion.

Commentators have tended to treat the idea of choice as a discrete act leading to a desired state. For example, Catherine Hakim has argued that having children and choosing to work is ‘a lifestyle choice.’[63] Yet the assumption that voluntariness is a two-state variable (yes or no) leads to misperceptions about what constitutes a free choice. A more complete analysis suggests that whether a matter is voluntary is not a single thing (res) indicating assent to all matters flowing from the res accepted. Instead it is a spectrum or continuum of assent and compulsion,[64] and any one person’s choice can be thought of in terms of a point along this spectrum. It is also important to ask ‘assent or compulsion to do what?’ For a working parent to have assumed the risk, we must examine the degree to which one has voluntarily assumed both the roles of parent and worker.

This is not to imply that parents do not love their children or enjoy parenthood. However, those are separate questions from whether they engaged in a completely voluntary act in becoming a parent or a worker. Bowen notes that ‘paid work and family work are not explained by choice alone; they are influenced by larger contextual effects that constrain pure voluntarism.’[65]

Again, analogising from disability concepts, we do not inquire into whether the disabled individual is enjoying the life he or she has in order to determine if it is appropriate that they should be afforded reasonable accommodation to perform a job. I do not suggest that having children is itself a tort; that is, a parent has been ‘harmed’ or received injury merely through the presence of a child. Instead the question is whether the obligations that a parent has to the child are freely assumed so that the parent has, in effect, contractually agreed to bear his or her own loss with respect to a detriment to her career. Commentators have argued that such a contractual release of responsibility is inappropriate as both an undermining of the rationale behind tort liability and a ‘blame the victim’ argument.[66] However, it is worth examining choice to see if it offers any constructive concepts when systematically considered.

Consider one possible scenario in becoming a parent. Elsa may have wanted to have a child one day, but not at this time, since she desires to further her career. However, human biology does not usually permit precise timing. Suppose she discovers she is pregnant now. It is questionable whether, for her, having a child right now is truly voluntary. It is no answer to say that having the badly-timed child is voluntary because she could obtain an abortion and in that sense she chooses to have a child, because that strains the ordinary meaning of the word ‘choice’.

The idea of choice in either an economic or a philosophical sense is predicated on the choice being freely and voluntarily made—having the ability to do otherwise. There may be for some people a desire to have children which is predicated on family duty, societal expectations or even biological drives. Such people may feel compelled to some degree to become parents. In the event that one’s moral or religious principles preclude terminating a viable pregnancy, it is not really a ‘free’ choice to continue the pregnancy. Whether you define ‘free’ as ‘costless’ or as ‘able to do otherwise’, the result is the same.

In our example, Elsa may continue the pregnancy for any number of reasons, from religious values, to a feeling of obligation to provide her aging parents with grandchildren, to fear of never having another opportunity to have a child. Yet her lived experience is that, for her, there is no choice. She experiences a restraint on the voluntariness of her behaviour. Similarly, some fathers may discover that they are fathers only after a mother has made a decision to keep a child. Those fathers are not confronted with any degree of choice, but with an accomplished fact: they will be parents.

Even in the climate of freely available contraception, there are those for whom contraception fails. If some of those couples elect not to terminate a pregnancy, can we really be sure that they are having the child out of choice? It surely is not the same type or level of voluntariness that occurs when a person or couple is actively trying to have children and has made a conscious, intentional decision to have try to have children. Similarly, suppose that one person of a couple desires a baby but the other does not. Is there not a valid distinction to be drawn between the degree of choice exercised by a person who agrees to have a child to preserve a marriage, or because of a some other feeling of obligation, and the intentional and mutual choice of a couple?

Thus, one can view the voluntariness of having a child along a spectrum from:

Not voluntary-*--------------------------------------------------*-Wholly voluntary.

(man using contraception (man actively desiring children at

informed of existence of child present and trying to conceive)

who will require his care)

Conceiving of choice in this way, as a matter of degree rather than of presence or absence, and considering the many possible sources of compulsion, it is difficult to say—perhaps for most people—that they have chosen parenthood with no compulsion at all.

Even for those who in large degree become parents voluntarily, most people who intentionally conceive specifically want to have a healthy child. If instead they have a child born with a chronic medical problem, they have voluntarily assented to the presence of the child, but not to the separate or additional impact of the child’s illness. As one commentator has noted, ‘[t]he price that women are asked to pay is often greater than they anticipated. The fact that most would willingly pay it again out of love for their children doesn’t mean that they do not feel exploited . . . .’[67] Acceptance of an outcome cannot in any meaningful sense be said to be a choice.

Let us return to the earlier analogy drawn between working parents and workers with disabilities. Like persons with disabilities, carer-employees sometimes operate under constraints not of their own making, such as the illness of a child. Yet the law does not inquire into whether a disabled individual acquired the disability through voluntarily encountering risk.[68] That would require treating a paraplegic who acquired the condition through a swimming accident differently from a paraplegic who acquired the condition through polio. Instead, the legal focus is whether the employee or potential employee requires accommodation in order to enable the worker to perform the essential duties of the job. Whether the individual seeking accommodation had an element of choice in acquiring disability does not surface as one of the circumstances to be considered.

The counter-argument to this is surely that no-one would choose to be disabled. For disabled people there is nothing voluntary about the ultimate condition which requires accommodation (the disability), unlike the condition or status of being a parent, which some people desire. Yet such an analogy is insufficiently specific. It is often not merely the condition of being a parent that generates a need for accommodation in employment conditions, but ‘parent-plus’ (parent with an ill child, parent with a child who requires transport). Consider some of our examples above—if, given a choice before conception, a prospective parent could ‘order’ a baby as if from a restaurant, surely very few would place an order for a chronically ill child.

It may be argued that few parents are actually faced with the pressures of caring for chronically ill children. What about the parent who has just a ‘normal’ child who needs intermittent accommodation? Consider a temporarily illness as happens to all children from time to time. The condition of temporary illness is surely analogous to that of chronic illness, though not as severe. No one would seek out illness in the child, even temporarily. There is no ‘choice’ element in whether or not to become ill. Suppose that the working parent has ‘chosen’ for the child to be placed in day care when well. When the temporary illness occurs, the child is excluded from day care and the parent is required to collect him. Exclusion from day care is no more what the parent chooses (desires, works toward) in this example than the illness itself. Considered in this way, even temporary illness is not reasonably voluntary.

The parent who actively desires ‘merely’ to spend more time with child rearing is certainly engaging in conduct closer to the voluntary end of the spectrum. However, in most situations of work-family conflict, there is a specific, and, if you will, acute need to engage in caring activities for the benefit of the child on a short-term basis. According to a Queensland survey, the greatest need identified by working parents (54%) was help with ‘emergency’ childcare.[69] These ‘acute-need’ activities will, again, fall along a spectrum in terms of their regularity and the importance of the demand. Consider medical appointments, school transportation, teacher conferences, swimming lessons, participation in sporting events. Depending on a function of the regularity and relative importance of the acute-need event, we may attach a variable level of voluntariness to these actions as well.

We may also address the voluntariness of working as falling along a similar spectrum.

Often the question of voluntariness of working is confined to women’s employment, as if they are the sole sex who has a ‘choice’ to work. However, one can look at choice and compulsion for all workers—male and female—in the way we examined choice and compulsion towards parenthood—with regard to the degree of voluntariness and consideration of many potential sources of compulsion.

As with parenthood, societal expectations play a great part in feelings of obligation to work. Women have been responsible for unpaid domestic work, including childcare, traditionally at the expense of paid work outside the home.[70] Certainly for men in our society, the expectation that men will engage in paid employment outside the home is quite high. A man may feel compelled to work outside the home for pay no matter what his inclination. He may feel that the ‘choice’ of not working outside the home is not open to him. More generally, feelings of worth and recognition are related to paid work outside the home. One may feel required to work in order to generate worth outside the sphere of the family.

As noted earlier, it has been recognised that the employment relationship itself can be a great source of compulsion to the worker.[71] Prominent scholars have long considered that there is a power disparity between employer and employee.[72] Employees are under a common law duty to obey the employer.[73] In order to maintain job security, the employee may feel pressure to always prioritise her work responsibilities over her family obligations, thus engaging in less caring time or activity.

Economic pressures, too, can create compulsion to work. Many people must work in order to support themselves. Importantly, the state of parenthood often causes the state of working for largely economic reasons. Although it is possible with government aid, hereditary wealth, or the support of their extended families for some nuclear families to have no parent in the workforce,[74] most families with able-bodied members would not be entitled to sufficient amounts of government aid (or have access to inherited wealth) to enable them to choose to stay home with the children. Raising children is expensive; someone in the family must work. Thus, we must add the status of being a parent to the list of potential compulsions behind a ‘choice’ to engage in work outside the home for pay.

Based on the foregoing analysis, a considerable number of working parents could not be said to have completely voluntarily assumed the roles of both parent and worker. These parents, even if they understood the nature and extent of the risk of career injury from the conflicting roles they faced, did not undertake the conflicting obligations without some degree of compulsion.

B Children + Work = Contributory Negligence?

As stated above, conduct involving volitional behaviour on the part of a plaintiff may sometimes be analysed in terms of either assumption of the risk or contributory negligence.[75] Contributory negligence may be found although no assumption of risk occurred, and is in fact easier of proof because the subjective knowledge element is not present. For example, in Taylor’s case, although he had not assumed the risk, Mr Taylor was held to be negligent in his conduct, thus preventing recovery.[76]

The American Restatement of Torts gives a very useful example of when choice-related behaviour might invoke principles of contributory fault.

The same conduct on the part of the plaintiff may thus amount to both assumption of risk and contributory negligence, and may subject him to both defenses [sic]. His conduct in accepting the risk may be unreasonable and thus negligent, because the danger is out of all proportion to the interest he is seeking to advance, as where he consents to ride with a drunken driver in an unlighted car on a dark night, or dashes into a burning building to save his hat. Likewise, even after accepting an entirely reasonable risk, he may fail to exercise reasonable care for his own protection against that risk. [77]

These principles are consistent with English and Australian cases on contributory negligence.[78] As such, one might be contributorily negligent through choice because the risk taken is grossly out of proportion to the possible beneficial conduct (a risk-benefit balance) or because one fails to protect oneself reasonably against a risk. Alternatively, we could consider simply whether working parents are acting unreasonably or contrary to an accepted standard of conduct in simultaneously taking on the potentially conflicting obligations of parenthood and work.

C Imbalance of Risk-Benefit

In terms of a risk-benefit calculus, we must first identify the benefit to be gained and the risk taken. Let us identify the potential risk taken as the most extreme of career injuries—termination. The potential ‘care’ benefit might vary from caring for a sick child too young or too ill to be left alone, to making the child feel secure through the presence of the parent,[79] to providing the child transport to school or a doctor.[80] To find if there is contributory negligence in this scenario, one should weigh up the risk of termination against the identified benefit and determine not whether there is a balance, but whether the relationship between the two is grossly imbalanced. Caring for a sick child too young or too ill to be left alone would probably not be considered grossly out of proportion to the risk taken. What is ultimately at stake in this scenario is the life or health of a child, which is utterly unlike risking one’s life for a hat, a replaceable and low-cost item.

Moving down the spectrum, the child’s school transport is perhaps viewed as less necessary. A child must attend school by law and, at least until a certain age, cannot obtain transport on her own, yet the health and safety of the child is not at risk. Having a job may be viewed as being of equal weight to the child’s obligation to attend school (which requires facilitation by a parent or other private source where the state does not provide transport, such as bussing). This roughly equivalent balance does not trigger contributory negligence, as it is not grossly disproportionate. In contrast, where the potential benefit is considerably less necessary, such as the parent’s attendance at a school party, the benefit may be seen as grossly out of proportion to the risk of termination.

Thus, negligence through a disproportionate risk-benefit is possible, dependent upon the nature of the potential benefit. Whether a parent may be contributorily negligent and thus not entitled to a remedy for his own career injury is dependent upon the reason that the caring activities are performed. Presumably, however, frequent trips to view school plays or sporting events do not form the majority of work-parenting conflicts.

D Lack of Reasonable Protection Against Risk

Let us consider whether working parents may be said to be contributorily negligent through failing to protect themselves reasonably against risk. This could occur, for example, by neglecting to make any arrangements for care of a child who requires the parent’s attention while the parent is performing work. The reasonableness of such an arrangement would, of course, depend on the age and relative healthiness of the child at the time, as well as the nature of the work to be performed. The availability (including cost) of childcare or similar services in the area would also be relevant to a determination of reasonableness.[81]

Consider a slightly different application of this principle. Suppose the risk at issue is that the principle childcare arrangements already in place may fail. This could happen in several possible ways, as when a child is excluded from formal day care due to illness, or, if informal day care is being used, when the carer is personally ill. The pertinent question then becomes how far must a working parent protect himself against the risk that the principle childcare arrangement will fail in order to be reasonably protected against risk?

In such a situation, a calculus of negligence approach would consider the availability and costs (expenditure of money, time, and effort on the part of the parent) of obtaining alternative child care against the probability that the relevant risk (loss of primary child care) would eventuate. This is the classic Hand Formula, B < PL,[82] although ‘community concepts of justice, health, life and freedom of conduct’ should also be taken into account.[83]

For many workers, alternative childcare is extremely difficult to obtain.[84] There may be no formal care arrangements in an area which cater for sick children. Only 7% of children in formal care can attend when sick.[85] One cannot often arrange for any care—formal or otherwise—at the last minute.[86] If the problem is absence of an informal carer, nearby childcare centres may have no available casual placements or the hours of operation may not match the needs of the worker.[87] Even if a casual place is available, parents are often reluctant to leave a child in an unfamiliar environment, cared for by people whom the child does not know.

Although Buchanan and Thornthwaite report that informal care structures, such as care by grandparents, are used by many parents on an emergency basis,[88] it is inappropriate to assume that most parents have access to this kind of care. The greater mobility of families today means that grandparents may not always reside in the nearby area. Also, as it has become more frequent for women with dependents to engage in paid labour outside the home, grandmothers who may in previous generations have been home and able to care for grandchildren may now be part of the paid workforce and thus unable to do so, absent leave provisions.

Given the burdens associated with alternative childcare noted above, the probability of a need for that care on any given day would have to be high to make it reasonable to depend on alternative care arrangements other than the parent taking some form of leave from paid employment. Likely for the majority of working parents, they are behaving reasonably in managing the risk of loss of primary care arrangements through taking leave.

E Failing to Conform to Accepted Standard of Behaviour

Perhaps the most difficult argument to address emerges from a view that the working parent is behaving unreasonably or failing to conform to an accepted standard of conduct in attending to family obligations. This standard for contributory negligence is a failure to take reasonable care—objective conformance to the standard of the reasonable person.[89] However, not all failure of care amounts to negligence.[90] In the context of employment discrimination, one must examine the actions of the working parent against the background of the employer’s allegedly discriminatory practices.[91]

Consider the standard of conduct usually required of an employee in the employment relationship. At common law, the employee is required to obey lawful and reasonable orders of the employer and is subject to employer prerogative.[92] The accepted standard of conduct is that the employee should put the needs of work first. This tradition appears to be the motivating force behind the Schou decision’s insistence on the primacy of the employment contract.[93] Yet a working parent is not always able to put the needs of work first, where there is conflict between obligations arising from work and obligations arising from family responsibilities.

Western industrialised societies have tended to view the ‘ideal worker’ as one who

works full time and overtime and takes little or no time off for childbearing or child rearing. When work is structured in this way, caregivers often cannot perform as ideal workers.[94]

However, the ‘ideal worker’ model requires the typically unpaid work of another person at home to tend to the worker’s family or personal obligations in order to enable ‘ideal worker’ behaviour. This fact is frequently ignored.[95] When it is considered that really two individuals are needed to enable the work of the ‘ideal worker’, such work takes on a much less ‘efficient’ and reasonable character. Analogously, the fact that we normally confine our legal study of work and our economic study of labour only to paid labour suggests the invisibility of most caring work to the academic sector. Certainly consideration must be paid to the interests of the state, producers, and consumers in unpaid caring or ‘family labour’. As research has noted, ‘caring labour’ is performed disproportionately by women, and state policies which devolve care of disabled or ill citizens back upon individuals depend upon such caring labour for their operation.[96]

Importantly, the differential impact of the ‘ideal worker norm’ on women in the workplace must be addressed. Rosemary Hunter has pointed out that ‘many organisational criteria have been designed to suit the behaviour patters of traditionally dominant groups in the workforce.’[97] Thus, the needs or concerns of women as workers have not traditionally been considered in the evolution of the ideal worker norm.

For concrete examples of how family obligations affect work in a gendered way, Buchanan and Thornthwaite report an increase of mothers’ full-time work from 26% when their youngest child is preschool age, to 62% for mothers of teenagers. The age of children has no such corresponding effect for fathers.[98] Similarly, a study by the Organization for Economic Cooperation and Development (OECD) found that the earnings gap between university-educated Australian men and women is greater between the ages of 30-44 (prime child bearing and rearing years) than between the ages of 55-64.[99] Such gender effects continue into the upper levels of employment. Surveys of other industrialised nations show a clear disparity between the percentages of men and women managers who have children.[100] These figures are particularly important given the significant increase in employment of women in their childbearing years in Australia.[101]

The paradigm of the worker who puts in full-time and overtime at the workplace is based on gender roles which are inapplicable to today’s society and indeed which entrench gender discrimination by failing to recognise and value unpaid domestic and caring labour.[102] ‘[E]xpectations that women are, or should be, “family primary”’[103] have two outcomes. First, such an expectation tends to define and restrict women’s roles in paid employment. Second, it removes the motivation for reform of the unrealistic ‘ideal worker’ model in order to better facilitate the roles of working and caring, regardless of gender.

Because of the differential impact on women and the ignored realities of domestic labour, the Western model of the ‘ideal worker’ is in essence an unrealistic model. Thus, failure to conform to the ideal model should not be held to be unreasonable, since the model itself does not reflect a reasonable standard.

It is no answer to argue that a return to sex-based division of labour (men to paid public work and women to private unpaid work) should be reinstituted in order to avoid family and work conflict. Given the rise in labour force participation of women[104] and the rise in single-parent households, workers having family obligations comprise a significant part of the labour force. As noted by Drago, et al, Australia’s economy could not survive a withdrawal of the labour of mothers.[105] There is evidence that a labour market divided by sex increases unemployment, reduces global competitiveness, and reduces family formation.[106] A failure to grapple with the deficiencies of the ideal worker norm in our society will leave not only individuals and families with decreased ability to combine roles, but it could leave our country poorer as a result.

Finally, the question of whether working parents are violating an acceptable standard of conduct must have regard to social policy expressed through legislation and international agreements. Such international conventions as the International Labour Organisation (ILO) Convention 156 on Workers with Family Responsibilities, and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[107] recognise a principle that engagement in caring activities should not be inconsistent with work commitments and suggest that new conceptions of work, family, and society are required to adequately address this issue.

Convention 156 makes it

an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities. [108]

Australia is a signatory to Convention 156, and Commonwealth legislation reflects the adoption of the social policy expressed in the Convention into Australian legal and social policy.[109] Some tribunals have recognised the need to consider state policy designed to balance work and family obligations in their explorations of the legal obligations of employers and employees.[110] In addition, consideration should be had to the beneficial purposes behind anti-discrimination legislation which is seeking to gain equality within our society.[111] As such, working parents reasonably should be able to combine work and family responsibilities without being seen as the authors of their own misfortune when conflicts occur.

IV. CONCLUSION

This paper has shown that, despite an element of choice in becoming working parents, that element of choice should not equate to responsibility for their own career injury. Few, if any, working parents can be said to have voluntarily assumed such a risk, particularly when matters of choice are considered by degree rather than as a binary state. Also, although some working parents might be viewed as quasi-contributorily negligent by putting non-vital family commitments ahead of work, most acute demands for family care would not rise to a level which should reduce the liability of an otherwise discriminatory actor. More fundamentally, the general expectation that a worker’s family commitments should never impinge upon work obligations is based on an unrealistic and essentially unreasonable norm. Accordingly, the principle of protecting working parents from employment discrimination as a result of work and family conflicts is appropriate.

Perhaps the view that working parents are not largely responsible for their own predicament, despite their conflicting responsibilities affecting work, points to the responsibility of the state in decreasing the conflict between working and caring obligations. The state has an interest in maintaining and increasing productivity through paid work and, in states with declining populations like Australia, in maintaining or increasing the birth rate and thus the future tax base.[112] It may be that the state has a prominent role to play in assisting the development of new working paradigms which can allow working parents to attain their goals of being both dedicated workers and caring parents.


[*] Lecturer, School of Law, Deakin University. This research was supported in part by a grant from the Deakin School of Law. An earlier version of this paper was presented at the National Postgraduate Law Students Conference (NPLSC), University of Melbourne, June 28, 2002. I wish to thank the NPLSC participants, the participants at Deakin’s Law School Research Seminars, the Deakin Law Review referees, and Anna Chapman, Trisha Yates-McShane, and Chris Geller for useful comments. Thanks also go to Cherie Ford for research assistance.

[1] See, for example, Human Rights and Equal Opportunity Commission, Sex Discrimination Unit, Final Report, ‘A Time to Value: Proposal for a National Paid Maternity Leave Scheme’ (December 2002), available from <http://www.hreoc.gov.au> (on file with author) [hereinafter ‘A Time to Value’]; John Buchanan and Louise Thornthwaite, Paid Work and Parenting: Charting a New Course for Australian Families, ACIRRT Working Paper no 70, 2001 (downloadable from <http;//www.acirrt.com>) (on file with author); Shirley Dex and Fiona Scheibl, ‘Flexible and Family-Friendly Working Arrangements in UK-Based SMEs: Business Cases’ (2001) 39 British Journal of Industrial Relations 411; Martin Canoy, Sustaining the New Economy: Work, Family and Community in the Information Age (2000); Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It (2000); Jane Cadzow, ‘Kids? What kids?’ The Age Magazine: Good Weekend (Melbourne), August 17, 2002, 20; Natasha Skrivankova, ‘Baby Drought Threat: Crean pushes family–friendly policies’ Geelong Advertiser, May 8, 2002, 11; Sue Williams, ‘Why I Don’t Like Working With Mothers’, SHE (December 2001) 42.

[2] Australian Bureau of Statistics Publication 6224.0, Labour Force Status and Other Characteristics of Families June 2000, Tables 13 and 19. Certainly the issues of workers with family responsibilities are broader than the issues of working parents alone; however, this paper focuses only on working parents, as it is the choice to have children which has generated much of the debate surrounding this issue. There is no such choice element associated with, for example, the obligation to care for aging parents.

[3] [1998] HREOCA 8 (9 March 1998).

[4] [2001] VSC 321 (31 August 2001).

[5] See, for example, Sex Discrimination Act 1984 (Cth) s 7A (included by amendment in 1992); Workplace Relations Act 1996 (Cth) Pt VIA, Div 5, Sch 14 (inserted by amendment in 1993); Anti-Discrimination Act 1977 (NSW) s 49V(included by amendment in 2000); Equal Opportunity Act 1995 (Vic), s 6(ea) (included by amendment in 2000).

[6] See, for example, Beth Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ [2002] MelbULawRw 18; (2002) 26 Melbourne University Law Review 325, 326-329.

[7] See State of Victoria v Schou [2001] VSC 321 (31 August 2001); Joan Williams, above note 2 at 5.

[8] Ibid. Also Kenneth Simons, ‘The Logic of Egalitarian Norms’ (2000) 80 Boston University Law Review 693, 767.

[9] See, for example, Tom Nankivell, ‘You Propagate, You Pay’ (Sunday 17 June 2001) (available at <http://home.cogeco.ca/~dcahill14/YouPropogateYouPay.html> ) (accessed 13 September 2002, on file with author); see also Beth Gaze, ‘Working Part Time: Reflections on “Practicing” the Work-Family Juggling Act’ (2001) 1 Queensland University of Technology Law and Justice Journal 199, 208 (noting the argument).

[10] See ibid (AU); Susan and David More, Child Free Zone: Why More People Are Choosing Not to be Parents (2002) (AU); Elinor Burkett, The Baby Boon: How Family Friendly America Cheats the Childless (2000) (US). As Joan Williams has noted, above n 2 at 89, co-workers can feel that '[i]f you’re working part-time, I have to work harder.'

[11] Sue Williams, above n 2, 44 (quoting Nankivell).

[12] See below, Section 1.

[13] See above n 9 and 10, and Williams, above note 2. Some commentators, however, have concluded that the ‘family-friendly backlash’ is ‘overblown’. Robert Drago, Rosanna Scutella and Amy Varner, ‘Work and Family Directions in the US and Australia: A Policy Research Agenda’, Melbourne Institute of Applied Economic and Social Research Working Paper No 12/02 (July 2002) 3 (available from <http://www.melbourneinstitute.com> ) (on file with author).

[14] Throughout this paper, I will often refer to parents balancing work and family responsibilities in terms of each sex alternately. In this, I do not mean to exclude parents of the other gender when using terms like ‘she’ or ‘his’. I find that continually providing the singular alternative (his or her) or using the plural is sometimes awkward and often obscures meaning. Thus, I will from time to time assign a hypothetical worker a sex/gender. While women still bear a significantly greater load of child care responsibilities than do males, I think it is a mistake to conceive of the problem as solely a ‘women’s issue,’ so I have deliberately used the male gender in some non-traditional contexts in order to challenge cultural preconceptions.

[15] L Thurow, The Zero-Sum Society (1980)184-87; Alan H Goldman, Justice and Reverse Discrimination (1979) 63.

[16] Race is usually conceived as an attribute beyond one’s control. However, because race is not a biological or anthropological construct but a social construct, many find self-identification with a certain race to be a matter of choice.

[17] With modern medicine, changes in sex are certainly possible; however, the genetic sex, or sex one is born with, remains beyond that individual’s control.

[18] See Waters v Public Transport Corp of Victoria [1991] HCA 49; (1991) 173 CLR 349, 363 (Mason & Gaudron, JJ).

[19] See The Civil Rights Act 1964 (US), Title VII, 42 US 2000e (religion); Equal Opportunity Act 1984 (WA) (religious or political conviction).

[20] See Larson on Employment Discrimination (2002) s 2.04 (noting prior economic disadvantage does not appear to have motivated the protection of religion).

[21] Certainly for several religious groups, practices and beliefs can conflict with work obligations, such as Seventh Day Adventists who observe Saturday as the Sabbath, or Muslims who engage in daily prayer. It is notable that United States law requires employers to reasonably accommodate an employee’s religious practices unless doing so would constitute and undue hardship. Religion is the only attribute so protected under the US Civil Rights Act itself. Ibid at ss 2.04 & 3.06.

[22] See, for example, Disability Discrimination Act 1992 (Cth); Americans With Disabilities Act 1991 (US).

[23] See, for example, above n 10; <http://www.childfree.com.au> . Folbre suggests one way in which allegations of inequality between parents and non-parents in workplace accommodation can be lessened is to define support for family labour in broad terms not limited to the family. Nancy Folbre, Who pays for the Kids: Gender and the Structures of Constraint (1994) 115. This concept is consistent with the definition of ‘carer’ under Victoria’s Equal Opportunity Act 1995 (Vic), who can be a person engaged in any unpaid form of caring. EOA, s 4.

[24] Sue Williams, above note 2.

[25] Ibid, 44.

[26] [2000] EOC 93-100 (first tribunal decision).

[27] Ibid.

[28] Attributes with some element of choice include breastfeeding, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, political belief or activity, pregnancy, religious belief or activity, and personal association. Equal Opportunity Act 1995 (Vic), s 6.

[29] Schou v State of Victoria [2000] EOC 93-100 (first tribunal decision), overturned on other grounds State of Victoria v Schou, [2001] VSC 321 (31 August 2001).

[30] [2001] NSWADT 37 (12 March 2001).

[31] Ibid, 40.

[32] Ibid.

[33] QPSU v State of Queensland [2000] QIRComm 182 (21 December 2000).

[34] Ibid. Such a stance has been criticised. See Rosemary Hunter, ‘Part-Time Work and Indirect Discrimination’ (1996) 21 Alternative Law Journal 220.

[35] See, for example, Sex Discrimination Act 1984 (Cth) s 7B.

[36] See John G Fleming, The Law of Torts (9th Ed 1998) 3-7; R P Balkin and J L R Davis, Law of Torts (2d ed, 1996) 8-15. Compare with Sex Discrimination Act 1984 (Cth) s 3; Equal Opportunity Act 1995 (Vic), s 3.

[37] See Fleming, above n 35, 3-7.

[38] See Mark C Weber, ‘Beyond Price Waterhouse v Hopkins: A New Approach to Mixed Motive Discrimination’ (1990) 68 North Carolina Law Review 495, 538.

[39] Sex Discrimination Act 1977 (UK) ss 65 and 66; Hall v Woolston Hall Leisure Ltd [2001] 1 WLR 225, [2000] IRIR 578.

[40] Burlington Industries v Ellerth, [1998] USSC 83; 524 US 742, 765 (1998).

[41] Eg, Jansen v Packaging Corp of America[1997] USCA7 855; , 123 F3d 490, 506 (Posner, CJ, concurring and dissenting); Miller v Bank of America, [1979] USCA9 693; 600 F2d 211, 213 (9th Cir 1979); Fenton v Hisan, Inc, [1999] USCA6 162; 174 F3d 827, 829 (6th Cir 1989).

[42] Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31 (8 March 2002); Escobar v Rainbow Printing Pty Ltd (No.2) [2002] FMCA 122 (5 July 2002).

[43] Bogle v Metropolitan Health Service Board, WAEOC, EOC 93-069 (7 January 2000).

[44] Hickie v Hunt & Hunt [1998] HREOCA 8 (9 March 1998).

[45] State of Victoria v Schou [2001] VSC 321 (31 August 2001).

[46] See Leonie V Still, ‘Glass Ceilings and Sticky Floors: Barriers to the Careers of Women in the Australian Finance Industry’, HREOC Report (1997), available at <http://www:hreoc.gov.au/sex_discrimination/workplace/glass_ceilings.html> (on file with author).

[47] See, for example, Commonwealth Bank of Australia v HREOC [1997] FCA 1311 (28 November 1997) (alleged denial of access to ‘retrenchment opportunity’); Queensland Public Sector Union of Employees v State of Queensland [2000] QIRComm 182 (21 December 2000) (access to salary increments).

[48] Here I am not addressing the important distinctions between direct and indirect discrimination and their accompanying proof schemes. I am simply trying to make more concrete the connection between a tort-type concept of injury and the harms addressed by anti-discrimination law.

[49] Equal Opportunity Act 1995 (Vic) s 6.

[50] Sex Discrimination Act 1986 (Cth) s 7A.

[51] This is the typical shorthand term for the Latin maxim volenti not fit injuria, to one who is willing, no wrong is done. 23 Halsbury’s Laws of England (2nd ed) 716-718.

[52] Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292, 300 (quoting 23 Halsbury’s Laws of England (2nd ed) 716-718).

[53] Restatement (Second) of Torts, s 496D, comment b.

[54] Restatement (Second) of Torts, s 496B, comments f & j and s 496C(2); Workers Compensation Act 1987 (NSW) s 151O; Cvetkovic v Princes Holdings (1989) 51 SASR 365; Cianciarulo v HP Products Pty Ltd [1959] VicRp 25; [1959] VR 170; Tingle v JB Hinz & Sons [1970] Qd R 108; Bowater v Rowley Regis Corporation [1944] KB 476, 480-481 (Goddard, LJ).

[55] 23 Halsbury’s Laws of England (2nd ed), 716-718.

[56] See Halsbury’s Laws of Australia, s 300-140 (1998); Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292, 300.

[57] Restatement (Second) of Torts, s 496D, comment b.

[58] Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292, 300 (HCA).

[59] Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9, para 125 (opinion of Kirby, J).

[60] Kent v Scattini (1961) WAR 74 (Full Court); accord State Government Insurance Commission v Hitchcock (1996) BC9700650, 104 of 1996 (Full Court) (pillion passenger on motorcycle did not assume risk of drunk driver of motorcycle because there was no evidence that the passenger should have been aware of the intoxication of the driver).

[61] Canterbury Municipal Council v Taylor [2002] NSWCA 24. But see Imperial Chemical Industries Ltd v Shatwell [1964] UKHL 2; [1965] AC 656, opinion of Lord Reid (refusal to believe what one is told does not preclude assumption of the risk).

[62] Duncan v Bell [1967] Qd R 425, 430 (per Mack, J); see also Willis v Bell [2001] QSC 444, para 99.

[63] Catherine Hakim, Work-Lifestyle Choices in the 21st Century: Preference Theory (2000) 73.

[64] See generally, the work of Antonio Gramsci, quoted in Lears, ‘The Concept of Cultural Hegemony: Problems and Possibilities’ (1985) 90 American Historical Review 567, 570, and J Williams, ‘Deconstructing Gender’ (1989) 87 Michigan Law Review 797; compare Vicki Schultz, ‘Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument’ (1990) 103 Harvard Law Review 1749.

[65] Gary L Bowen, ‘Workplace Programs and Policies That Address Work-Family and Gender Equity Issues in the United States’ in Linda L Haas, Philip Hwang and Graeme Russell, eds, Organizational Change and Gender Equity: International Perspectives on Mothers and Fathers at the Workplace (2000) 79-98, 84.

[66] See Danuta Mendelson, Torts (2nd ed 2000) 277; Joan Williams, ‘Deconstructing Gender’ (1989) 87 Michigan Law Review 797.

[67] Nancy Folbre, Who Pays for the Kids: Gender and the Structures of Constraint (1994) 110.

[68] K Lee Adams, ‘A Step Backward in Job Protection For Carers’ (2002) 15 Australian Journal of Labour Law 93, 102.

[69] Buchanan and Thornthwaite, above n 2, 27.

[70] See Rosemary Owens, ‘The Traditional Labour Law Framework: A Critical Evaluation’ in Richard Mitchell (ed), Redefining Labour Law: New Perspectives on the Future of Teaching and Research (1995) 3, 4 and 11.

[71] See above n 45 and 46; cf. McLean v Tedman (1984) 155 CLR 306 (noting that plaintiff required to perform risky act to retain his employment).

[72] Otto Kahn-Freund, Labour and the Law (2nd ed. 1977) 6.

[73] Adami v Maison de Luxe (1924) 35 CLR 143.

[74] According to ABS statistics, less than 8% of families with dependent children aged 14 and under had no parent in the labour force. Source: Australian Bureau of Statistics Publication 6224.0, Labour Force Status and Other Characteristics of Families June 2000, Tables 14 & 20.

[75] Of course in modern jurisdictions, a plaintiff’s contributory negligence is no longer a complete defence to a negligence action but is treated in a comparative fashion. See, for example, Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 10; Wrongs Act 1958 (Vic) s 26; Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 15. Here we will simply consider classical contributory negligence as an analytical principle.

[76] Canterbury Municipal Council v Taylor [2002] NSWCA 24.

[77] Restatement (Second) of Torts, s 496A comment d (emphasis added).

[78] Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, 324-25 (failure to use care for one’s own protection) (Denning LJ); Ryan v Fisher (1976) 51 ALJR 125, 126 (discussing riskiness of conduct); see also Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529, para 10; Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 (CA) 523-24 (McHugh J); Caterson v Commissioner for Railways [1973] HCA 12; (1973) 128 CLR 99 (Gibbs J).

[79] This was an issue in Schou’s case, as the impetus for rearrangement of Ms Schou’s work was an asthmatic toddler who was suffering separation anxiety. State of Victoria v Schou [2001] VSC 321 (31 August 2001). See also Therese MacDermott and Rosemary Owens, ‘Equality and Flexibility for Workers with Family Responsibilities: A Troubled Union?’ (2000) 13 Australian Journal of Labour Law 278.

[80] School transport was the issue in Song’s case. Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31 (8 March 2002).

[81] It was noted in Community and Public Sector Union v CSL Ltd, AIRC, PR 921278 (13 August 2002), that the lack of after school care services in the employee’s area was an appropriate factor to consider in determining whether a requirement to work past 3pm was reasonable.

[82] United States v Carroll Towing Co, 159 F2d 169, 173 (2d Cir 1947). In the Hand formula, the B stands for the total burden or cost involved, P stands for probability of the risk’s occurrence, and L represents the relevant loss. Thus, one considers whether the burden or cost of avoiding the risk is less than the probable loss resulting from the risk.

[83] Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 (CA) 523-524 (Mc Hugh J).

[84] See above n 57 (indicating survey need for emergency care).

[85] Buchanan and Thornthwaite, above note 2, 25.

[86] In Laz v Downer Group Ltd [2000] FCA 1390 (11 October 2000), the court determined that the employee’s chief need to permit balancing of family responsibilities was prior notice when required to work after hours in order to make alternative childcare arrangements. Ibid at para 33.

[87] Buchanan and Thornthwaite, above note 2 at 26.

[88] Ibid, at 12.

[89] See eg, McLean v Tedman (1984) 155 CLR 306.

[90] Ibid.

[91] Ibid.

[92] Australian Telecommunications Commission v Hart [1982] FCA 185; (1982) 43 ALR 165; Adami v Maison de Luxe (1924) 35 CLR 143.

[93] State of Victoria v Schou [2001] VSC 321, para 22.

[94] Joan Williams, above note 2 at 1. See also Drago, at al, above n 12, 3.

[95] Susan Moller Okin, Justice, Gender and the Family (1989) 155.

[96] Grazyna Zajdow, Women and Work: Current Issues and Debates (Deakin University Press 1995) 32-33 and studies cited therein.

[97] Rosemary Hunter, Indirect Discrimination in the Workplace (1992) 203.

[98] Buchanan and Thornthwaite, above n 2, 20-21.

[99] Linda Wirth, Breaking Through the Glass Ceiling: Women in Management (ILO 2001) 17 (1995-96 data).

[100] Ibid at 18 (quoting 1997 UK and German surveys).

[101] See A Time to Value, above note 2, 13; Australian Bureau of Statistics, ABS Pub 4102.0 Australian Social Trends 2001, 135. For women aged 25-34, the employment rate increased 16% between 1980 and 2000. Ibid.

[102] See, for example, International Labour Organization, ABC of Women Workers Rights and Gender Equality (2000) 42.

[103] Lotte Balin, Rhona Rapoport, and Joyce Fletcher, ‘Moving Corporations in the United States Toward Gender Equity: A Cautionary Tale’ in Linda L Haas, Philip Hwang and Graeme Russell, eds, Organizational Change and Gender Equity: International Perspectives on Mothers and Fathers at the Workplace (2000) 167-179, 169.

[104] 70-80% of women aged 25-54 participated in the Australian labour force during 2000-2001. Source: Australian Bureau of Statistics, Labour Force Experience, Australia, Pub no 6206.0, at 2. In Victoria during November 2001, a clear majority of women with children under 15 participated in the labour force. Source: Australian Bureau of Statistics, Labour Force, Victoria, Pub 6202.2, Table 5. See also Drago, et al, above n 12, 1 (‘a majority of mothers of dependent children are employed’).

[105] Drago et al, above n 12, 3.

[106] Martin Canoy, ‘The Family, Flexible Work and Social Cohesion at Risk’ in Martha Fetherolf Loutfi, ed, Women, Gender and Work (ILO 2001) 305, 309.

[107] CEDAW, GA res 34/180, 34 UN GAOR Supp (No 46) at 193, UN Doc A/34/46, entered into force 3 September 1981.

[108] International Labour Organization Convention 156, Workers with Family Responsibilities, art 3(1), Sess 67, International Labour Conference, entered into force 11/08/1983.

[109] Workplace Relations Act 1996 (Cth) s 170CK(1)(b).

[110] See Bogle v Metropolitan Health Service Board, WAEOC, EOC 93-069 (7 January 2000).

[111] Waters v Public Transport Corporation of Victoria [1991] HCA 49; (1991) 173 CLR 349, 359 (Mason, CJ and Gaudron, J). As has been pointed out, Deane J, generally agreed with this approach. Glenn Patmore, ‘Moving Towards a Substantive Conception of the Anti-Discrimination Principle: Waters v Public Transport Corporation of Victoria Reconsidered’ [1999] MelbULawRw 4; (1999) 23 Melbourne University Law Review 121, n 40.

[112] See A Time to Value, above n 2, passim..


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