Maternity Leave & Pregnancy Discrimination

The Human Rights associated with childbirth are essential pillars in Australian discrimination law which often interact with the rights of females, the rights of persons with family and carer responsibilities, and the rights of females as they relate to the actual pregnancy or any potential pregnancy.

Under the Sex Discrimination act of 1984, it is unlawful to discriminate against a person on the basis of their pregnancy, or potential pregnancy.

Under section 4B of the Sex Discrimination Act, a potential pregnancy of a woman includes a reference to;

  • (a) the fact that the woman is or may be capable of bearing children; or
  • (b) the fact that the woman has expressed a desire to become pregnant; or
  • (c) the fact that the woman is likely, or is perceived as being likely, to become pregnant.

Section 14 of the Sex Discrimination Act of 1984, gives protection to female employees who are or may potentially be pregnant, by making it unlawful for any employer to discriminate against them, including in the terms and conditions of employment, denying them opportunities for promotion, subjecting them to any detriment including for example, being counseled for their absences and indeed prohibits the termination for any job.

As defined in sections 5 (Sex Discrimination), section 7 (potential pregnancy), and section 7A (family responsibilities), the sex discrimination act 1984 prohibits both direct and indirect forms of discrimination.

Furthermore, a pregnant, or potentially pregnant employee has further legal protection under the Fair Work Act (2009), including but not limited to the following;

  • (a) rights under the national employment standards, including parental leave and related entitlements such as an entitlement to unpaid parental leave;
  • (b) section 351 which prohibits discrimination and adverse action on the basis of the employee’s sex, family or carer responsibilities, or pregnancy;
  • (c) section 352, which protects absences from work including absences that may be related to the pregnancy;
  • (d) section 340, which protects adverse action against an employee who exercises a workplace right such as making a request for pregnancy and birth-related leave and/or flexible working arrangements.

The following hypothetical scenarios shed more light on this area of discrimination, please see the below question and answers․

As a casual employee, if you have been employed for less than 12 months, you would not be entitled to any unpaid parental leave. However, you have protections in law against discrimination on the basis of your pregnancy. If your employer has removed you from their roster because they have found out you are pregnant and consider that your future absences will affect their food manufacturing operations, then they have contravened section 14 of the Sex Discrimination Act. On that basis, you will be entitled to file a complaint with the Australian Human Rights Commission, alleging that your employer has taken unlawful discrimination against you on the basis of your pregnancy. Your employer will have to explain on what basis they have stopped giving you work, why for example they were providing work to other casuals, and if there was a connection between the roster changes and your pregnancy. Often employers will defer any actual dismissal to protect themselves from unlawful dismissal cases and simply elect not to roster a casual employee for prohibited reasons. It is open for you to claim that you have been dismissed or in the alternative that your employer has subjected you to less favorable work conditions including by removing you from paid work on the roster.

The Sex Discrimination act prohibits any unfavorable treatment which could amount to a detriment in your employment. That includes, for example, an employer providing a workplace warning, and can even include an employer verbally abusing the employee. The verbal abuse causes you to be upset, hurt and humiliated. Often pregnant employees need to take time off work to attend unavoidable medical appointments and for which protections exist by law to enable the worker to participate in those medical appointments without being discriminated against. Furthermore, for example, the employer might have a policy or practice that no employee can be absent from work without providing 24 hours notice. Such a policy would indirectly discriminate against pregnant females in the workforce who may suddenly feel unwell, or require urgent medical treatment and cannot comply with that poly or procedure.

Section 14 of the Sex Discrimination Act makes it unlawful for an employer to withhold or deny employment opportunities for promotion such as for example, a promotion from an account manager to a regional manager. The employer made unlawful assumptions and implemented discriminatory criteria in assessing your suitability for the regional manager position because they denied you an opportunity for promotion on the basis of the characteristic (imputed) to females that they will be unable to work long hours and days because of pregnancy or potential pregnancy. They also discriminated against you directly because they did not promote you due to your potential pregnancy, which was clearly in their mind as they had asked you about your future plans in relation to your pregnancy.