28 September 2023

KFC breastfeeding case should put employers on notice

| Ian Bushnell
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KFC Tuggeranong

The franchise owner behind Tuggeranong KFC was found to have indirectly discriminated against a woman trying to return to work while breastfeeding. Photo: KFC.

The finding that a KFC franchise discriminated against a female employee by not supporting her bid to keep breastfeeding after her return to work from maternity leave is a warning to employers.

The young mother, who required space and time to express her milk during her shift, met the kind of resistance and pressure from her male managers that left her humiliated and distressed, and which deters mothers from continuing to breastfeed and returning to work.

The experience, which included her employer providing a fold-out chair and “smallish tentlike cover [used] for a camping toilet” in the unlocked back storeroom, led to her developing an anxiety disorder and she eventually resigned.

But she went to the ACT Human Rights Commission and the matter ended up in the ACT Civil and Administrative Tribunal where the facts of the case have been laid bare, reflecting poorly on her employer and showing that, despite the legal protections for women returning to the workplace, some bosses still don’t get it.

“The respondent has not adjusted to the needs of a modern workplace where women can give birth, breastfeed their children, and return to the workforce in a welcoming and accommodating fashion,” ACAT said.

“The attitude of the respondent … is not likely to encourage women of childbearing age to consider [them] as a long-term employer.”

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The KFC franchise she worked for might like to see itself as a small business that could not afford to make the kinds of accommodations that were required, but the employer was Southern Restaurants (VIC) Pty Ltd, the largest private KFC franchise owner in Australia.

It would not have been a “disproportionate burden”, and “catering to the needs of breastfeeding employees is not an outlandish demand”, ACAT found.

But the response from KFC was more reflective of the chorus of their current advertisements (“I don’t care …”)

From a legal standpoint, ACAT points out that the Discrimination Act 1991 (Discrimination Act) protects persons with certain “protected attributes” from direct or indirect discrimination in certain areas of public life, including employment. One of the protected attributes is breastfeeding.

But it appears there are no reported cases in any of the anti-discrimination jurisdictions of Australia concerning breastfeeding parents at work.

This may be because many women in a similar position don’t complain for fear of losing their job and accept having to express in substandard spaces such as the toilet, as was heard in ACAT.

Or they simply stop breastfeeding.

There are two issues at play here.

Breastfeeding is one of the most important public health measures there is. The benefits to both baby and mother are well documented and undeniable, as well as reducing costs to the health system.

Employer attitudes such as those revealed in this case undermine breastfeeding rates and the public good that follows.

Only one in three Australian babies are breastfed exclusively for six months. WHO and UNICEF recommend mothers continue breastfeeding in some form up to two years of age or beyond.

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The second issue is workforce participation and the obvious benefits of women in the labour market.

Most women will bear children, but it is not they but the jobs landscape that needs to adjust to this, as it has with the establishment of maternity leave.

“Family friendly” should not just be a slogan but have real substance to support women and the value they bring to the workplace.

It would be nice to think that KFC, in this instance, is an outlier, but employers should take note.

The ACAT case and decision confirm discrimination law and should provide confidence to working mothers to assert their rights.

Employers should be proactive in establishing policies and procedures that will support their staff, conform with the law and avoid reputational damage.

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Coming from a one income family I realise that we need to encourage mothers to return to work. I think the employers were trying and I’m aware it wasn’t a glamorous attempt and yeah, I think they could have done better but the question is what else could they have done?

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