Sports Q&A – Maternity leave and equal opportunities

2018 has seen the return of Serena Williams to the tennis court and her recent participation in the Wimbledon Championships. The titan of the sport has just left SW19 with a runners-up medal, but her entry into the Championships was not without controversy. Williams played only three tournaments in the previous year because of the birth of her first child last autumn. She held the #1 world ranking when she went on maternity leave in April 2017 but had fallen to #451 by May 2018. Williams climbed back up to #181 this summer, but was controversially seeded #25 upon entering the 2018 Wimbledon Championships.

The All England Club (AELTC) usually follows the Women's Tennis Association (WTA) ranking, but reserves the right to make a change if it “is necessary to produce a balanced draw”. With the exception of Williams, all women were seeded in line with their WTA ranking. Williams said that players returning from pregnancy should have protected seedings as well as protected rankings. Her seeding meant that the world #32 Dominika Cibulkova lost her seeding to Williams, which Cibulkova said was not fair.

Was it fair for Williams to be seeded like this?

In an employment context, special protections to rectify a woman’s position at work because of maternity leave must be proportionate. It’s acceptable to make special provision for a woman in connection with maternity leave (or pregnancy or childbirth), provided it does not go beyond what’s necessary to remove the disadvantage. The most analogous situation in employment law has been how women on maternity leave should be scored in a redundancy exercise. For example, it is not proportionate to assume the highest level of performance (and so be awarded the highest score) during maternity leave.

If that broad analysis is applied in the context of Williams’s seeding, it would seem that the AELTC tried to act proportionately. Falling outside the seedings would have been a disadvantage that Williams suffered because of her pregnancy and maternity leave. She did not return to her previous #1 ranking and it is more than arguable that being seeded #25 was a proportionate way to remove the disadvantage of maternity leave in a manner consistent with equality law. However, it is worth reflecting on the fact that a tennis tournament is very different to an employment relationship.

After Williams beat Evgeniya Rodina for a place in the quarter finals, she reflected on how rare it is to see two returning mothers playing each other in a Grand Slam tournament. Ensuring equality of opportunity for sporting mothers is vital, so helping women to return after maternity leave should be an important objective. However, sporting integrity must also be preserved. Other maternity returners have not received protective seedings at Wimbledon, such as Victoria Azarenka in 2017 (Azarenka criticised the Williams decision). Returning mother Kim Clijsters went on to win the 2009 US Open without being seeded. True equality of opportunity can surely only occur if there is clear and consistent treatment across the board.

Perhaps now is the time for sports organisations to work together to form a set of consistent and equitable principles that can be applied by federations and tournament operators to give mothers comfort that they can come back from child birth with one less thing to worry about.