Factsheet: Pregnancy and Discrimination at Work

HREOC has provided a good deal of information about pregnancy and discrimination in the workplace

Pregnancy and Discrimination

1. 18% of complaints received by HREOC in 1999-2000 concerned alleged discrimination on the basis of pregnancy or potential pregnancy.

2. In 1998, 3.7 million women were employed and approximately 250,000 live births were recorded in Australia.

3. The average age of women at the birth of their first child is 29 years.

4. This is also the age of greatest career progression and when women are entering their prime earning years.

5. Increasing numbers of women put off having children in many cases due to work pressures and the expectation of women's primary role in child-care. The percentage of Australian women over 40 without children has grown in 10 years from 8% to 12% and that proportion is set to increase.

6. A massive 54% of women in one study believed that their careers have been affected by taking maternity leave. A further 44.1% say their salaries stall, 30.4% believe their careers take a backward step and 29.9% say they sacrificed their careers when they gave birth.

7. Current low fertility rates (1.86 children per woman) indicate a growing trend by women to make a choice between work and family rather than seeking both. Such choices are still necessary partly because of the failure of workplace practices to accommodate the realities of pregnancy and family responsibilities.

To what extent do I as an employer have to accommodate an employee's pregnancy?
Employers should consider making all reasonable adjustments to the workplace to accommodate the normal effects of pregnancy. Employers need to discuss the issues with the pregnant employee to find solutions.

When can I lawfully refuse to employ a pregnant applicant?
An employer can lawfully refuse to employ a pregnant applicant if she is unable to adequately perform the duties required for the position; where there may be OH&S issues in the workplace that cannot be resolved and if the position required the completion of a specific project and the applicant would be unable to meet the deadlines. This is unusual.

My workplace has an equal opportunity policy.....isn't that enough?
All employers regardless of size or industry type can benefit from developing anti-discrimination policies. Wise employers ensure that all employees are familiar with the policy and are educated about their rights and responsibilities. However, the existence of equal opportunity policies does not necessarily mean that the employer will be automatically protected in the event of a complaint of discrimination. Amongst other things, the employer should be able to show that the policies are practically and continually implemented in the workplace.

If an employee of mine discriminates, then that's their problem isn't it?
An employer may be vicariously liable for the actions of an employee or may be directly liable if it is found that it allowed, encouraged or contributed to the discrimination and did not have adequate policies and procedures in place to prevent and deal with discriminatory attitudes and practices in the workplace.

What am I meant to do when an employee of mine is a casual, is pregnant, but doesn't have a right to maternity leave?
Some casual employees qualify for unpaid maternity leave. Moreover, pregnant employees who do not qualify for maternity leave are still protected by the federal Sex Discrimination Act. Employers and employees can negotiate a fair and reasonable period of leave for those who do not qualify for maternity leave. For example the employer could provide access to other forms of leave (annual leave or unpaid leave).

What if my employee returns to work after maternity leave and I just can't give her the same old job back because of changes in the workplace?
An employee is generally entitled to return to the position she held prior to commencing leave or to a comparable position if her original job has ceased to exist. Employers should note that an employee may wish to return to work on a part-time basis, and some State laws specifically allow for return to part-time work after maternity leave by agreement with the employer. In some situations, an employer may be deemed to have discriminated if a reasonable request for part-time work is refused.

Copyright © Commonwealth of Australia 2001 ISBN 0 642 26976 9 Human Rights and Equal Opportunity Commission, Sydney, March 2001
Copying is permissible provided acknowledgement is made to the Human Rights and Equal Opportunity Commission

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Factsheet: Pregnancy & Discrimination at Work

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