DISCRIMINATION DUE TO PREGNANCY

This occurs where a woman is treated unfavourably because she is pregnant, or because she might become pregnant. It includes unfavourable treatment based on a belief about pregnant women in general, for example, that pregnant women are not interested in working. An example would be where an employer reduces a worker’s hours when she becomes pregnant, even though the worker is still quite capable of working her usual hours.

Legislation:

  • Equal Opportunity Act 1984 (SA)
  • Sex Discrimination Act 1984 (Cth)
  • Fair Work Act 2009 (Cth)

Areas of discrimination on basis of pregnancy under SA law

In South Australia it is illegal under the Equal Opportunity Act 1984 (SA) to discriminate on the grounds of pregnancy. This includes discrimination because it is thought likely that the woman may become pregnant.

The following areas of discrimination on the basis of pregnancy are unlawful:

  • education
  • employment
  • accommodation
  • interest in land
  • conferral of qualifications
  • provision of goods and services
  • membership of associations

Exemptions

  • Employment not connected with an employer’s business
  • Employment: in the case of discrimination arising out of dismissal from employment, there is no other work the employer could reasonably be expected to offer and the woman has been offered leave for the period where she would be unable to perform adequately and she has refused to take leave
  • Discrimination based on the fact that a woman would not be able to adequately perform work reasonably required of her or respond to emergencies without endangering herself, the unborn child or others
  • Accommodation:
    • in one’s own household
    • not for profit organisations providing accommodation for particular groups of persons
  • Charities
  • The granting of rights and privileges to women in connection with childbirth or pregnancy

Areas of discrimination on basis of pregnancy and family responsibilities under Commonwealth law

Discrimination on the basis of pregnancy under Commonwealth legislation includes the fact that a woman is capable of bearing children, or has expressed a desire to become pregnant.

Discrimination on the basis of pregnancy (including potential pregnancy) is prohibited in the following areas:

  • employment (applies also to partnerships, contract workers and employment agencies)
  • qualifying bodies (i.e. bodies that award professional and trade qualifications)
  • registered organisations
  • education
  • goods and services
  • accommodation
  • land
  • incorporated clubs and associations
  • administration of Commonwealth laws and programs
  • requests for information – it is unlawful to request information if a person who is not pregnant or potentially pregnant would not be required to provide the same information in the same or similar circumstances

Exemptions

  • Accommodation
    • where the person providing the accommodation or a near relative of theirs intends to reside on the premises and the accommodation is for no more than 3 other persons
    • where provided by a religious body
    • where provided by a charitable organisation for persons of a particular marital status
  • Requests for information – requests for medical history or information on a medical condition

Pregnancy discrimination at work is also unlawful under the Fair Work Act 2009 (Cth) and complaints can be made to the Fair Work Ombudsman.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously. For complaints relating to the Sex Discrimination Act 1984 (Cth) the time period is more than 24 monthsafter the alleged acts, omissions or practices took place.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Livestock manager has job taken away after falling pregnant

Jane was working as a livestock manager in a medium-sized country livestock business. On discovering she was pregnant, her doctor recommended light duties for four weeks and to avoid administering medication to livestock. She told her employer, Keith, and provided a doctor’s certificate.

Keith called a meeting for himself, Jane, and another employee, Jack, and said Jack would now take over from Jane as manager. Jane asked for Keith to put this in writing, which he did, stating, “Jane is now pregnant and I feel in the future she will not be able to have the time necessary to do the job.”

Jane took sick leave and made a complaint to the Equal Opportunity Commissoin. Keith denied that Jane was either demoted or discriminated against. The business had undergone a restructure and Jane’s status in the business had been retained along with her salary package. However, her medical certificate placed some restrictions on her and he was concerned about her safety as they work with heavy animals and chemicals.

Outcome: At conciliation, Keith agreed to pay Jane $2,800 for loss of income and allow Jane to return to work after signing her clarified job description.

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