Companies that offer to freeze their employees’ eggs risk opening ‘Pandora’s Box’, says lawyer
Wed 29 November 2017 - 10:23 amEmployment Legislation | Featured | HR | Legal | Small Business
In the United States, it is becoming vogue for companies to pay for female employees to freeze their eggs, with the likes of Apple, Facebook and Google introducing the policy. It’s being sold as a means for women to further their careers, free of pressure to have children at a particular point in time.
However, Andrew Jewell, Principal lawyer with employment law firm McDonald Murholme, believes it would be difficult for employers in Australia to implement such a policy in a safe, non-discriminatory and legal manner due to a “Pandora’s Box of concerns”. In conversation with Dynamic Business, Jewell identified the risks employers face when seeking to implement a policy of offering to free their employees’ eggs.
DB: What is the appeal of such a policy for employers?
Jewell: Presumably employers are considering this policy to ensure that employees continue to work during what are traditionally years which mothers are absent from the workplace. While this could be seen as a positive, even saving employees anywhere between $8000 and $10,000 (plus an annual $5000 storage fee)*, it does seem like employers are seeking to take their pound of flesh during an employees’ “prime years” which then under-values the work of older employees and return to work mothers.
DB: How could employers potentially fall afoul of the law?
Jewell: Pregnancy is a protected attribute and maternity leave is a workplace right so any adverse action (which is a broad concept) that is linked to pregnancy or maternity leave would be a breach of the Fair Work Act 2009 (Cth). This includes demotion or dismissal but could also include a decision not to promote or not to provide discretionary benefits such as bonuses.
DB: Does such a policy discriminate against male employees?
Jewell: I do not think the policy itself would be considered discriminatory; however, it may be if a male employee asked for similar treatment. For example, if a male employee was planning on being the primary carer of children and asked to have an employer fund the freezing of his partners eggs, a refusal could be seen as discriminatory.
Further, the policy discriminates against those employees who do not wish to start families. Perhaps they should have the option of other elective medical procedures.
DB: What other tricky scenarios could such a policy lead to?
Jewell: I believe the trickiest scenario is the initial conversation. For example, it is inherently discriminatory to ask a recently married person if they wish to start a family because it discriminates against unmarried couples who start a family as well as discriminating against the recently married female. While open discussions at work are a good thing and starting a family has an effect on employment, starting a family is a protected right and a private affair that is not the domain of the workplace.
Further, there are medical complications in which employers should not be getting involved. For example, if a female took up the option of freezing her eggs due to the employer’s policy and then later discovers she cannot have children there are broad social, morale and legal consequences. According to fertility experts Genea, data being used internationally indicates an overall success rate ranging from five to 50 per cent depending on the number of eggs vitrified and the age at which you froze them.
DB: Could you delve into the possible implications around privacy?
Jewell: Employers are not doctors and would need to have extensive medical checks which are necessarily invasive and not the domain of the workplace. For example, if an employer wished to have medical checks to ensure freezing was viable, what happens if tests reveal the employee cannot have children? The employer would then become aware of an intensely private matter.
DB: How could employers safely administer such a policy?
Jewell: In my opinion, there is no way to administer this policy in a manner that is not discriminatory. However, if an employer was wishing to implement such a policy it would need to be strictly on a volunteer basis and the employer would need to fund extensive medical tests to ensure the option is viable for the individual in question. However, even in this scenario there is a grave risk that if a future pregnancy is not successful that the employer will, justifiably, be blamed.