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43 Pt. 2 Indus. L.J. (Juta) 1473 (2022)
Pregnancy and Marital Status Discrimination

handle is hein.journals/iljuta55 and id is 41 raw text is: Pregnancy and Marital Status Discrimination MAIUS VAN STADEN* AMANDA BONIFACE** ABSTRACT Despite constitutional and legislative protections against unfair pregnancy and marital discrimination, it is argued that in practice these grounds have not yet developed into fully-fledged grounds of discrimination. Rather, they are often determined with reference to factors such as sex and gender. This phenomenon continues to perpetuate sex and gender stereotypes. With recourse to comparative examples, the article critically considers the legal mechanisms that South Africa has implemented to address these forms of discrimination. It is argued that aspects of the legal provisions enacted to prohibit the above forms of discrimination have the consequence of maintaining sex and gender stereotypes, fostering discrimination against (mainly) women in the workplace, men at home, and homosexual and transgender people's parenting ambitions. The article makes several recommendations for law reform that move beyond a legislative framework centred around sex and gender in order to protect such persons from discrimination based on pregnancy and marital status. It argues that pregnant women should be granted more freedom to plan and structure their maternity leave and that they should be able to transfer a portion of their maternity leave to their partners. Parental, adoption and surrogacy leave should be extended, and pregnancy and marital status discrimination protection should be extended to men, homosexual partners and transgender persons. Legal fragmentation and the exclusion of informal and atypical workers from current protection should also be addressed. 1 INTRODUCTION For many employees, the pleasure and joy they feel upon the birth or adoption of a child is rapidly followed by anxiety about the impact of their life decisions on their work. Despite the protection against pregnancy and marital status discrimination following the advent of a constitutional democracy in South Africa, employees still fear being subject to discrimination on these grounds. This arises in part * Associate Professor, Department of Public Law, University ofJohannesburg. ** Associate Professor, Department of Private Law, University ofJohannesburg. 1473