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Where am I now? Lawlink > Anti-Discrimination Board > Publications > Pregnancy in the workplace - Equal Time, November 2002
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Pregnancy in the workplace - Equal Time, November 2002
 Introduction
Recruitment
Pregnancy During Employment
Termination of Employment
Maternity Leave
Management of Restructuring and Redundancy
Introduction
Recent statistics show that seven out of ten women in the 15-44 years age group are now in the work force. At the same time, the Anti-Discrimination Board has seen a 150% rise in complaints of pregnancy discrimination since 1997/98. It is therefore critical for employers to understand the legal framework relating to pregnancy in the workplace.
It is unlawful to discriminate against a woman on the grounds that she is pregnant or may become pregnant under both the Anti-Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984 (Cth). Both Acts use a broad definition of employment which covers partnerships, part-time, casual and temporary work, and work under a contract for services or done on commission.
Both Acts have some exceptions. The NSW Anti-Discrimination Act may not apply to employment in federal agencies, and provides exceptions where the employer employs five or less employees, is a private educational authority or where the employment is in a private household. The Commonwealth Sex Discrimination Act does not cover employment in State Government departments or instrumentalities.
Both the 1993 Anti-Discrimination Board Inquiry into Pregnancy Related Discrimination and the more recent Human Rights and Equal Opportunity Commission National Pregnancy and Work Inquiry revealed a disturbing amount of discrimination against pregnant women at work. Stereotyped reactions to women who are pregnant or may become pregnant result in reduced opportunities to obtain work or gain promotion, denial of training, lack of cooperation with medical requirements and in some cases dismissal from work. 
Under the Commonwealth Sex Discrimination Act, it is unlawful to discriminate against a pregnant women or a potentially pregnant woman in determining who to offer employment, or in the conditions of employment.
The NSW Anti-Discrimination Act covers pregnancy under sex discrimination, but provides an exception allowing employers to discriminate against a women if she is pregnant at the date of application for employment or the date of interview. However, the Commonwealth Sex Discrimination Act does not contain this exception. Under both Acts, it is unlawful to discriminate against a woman on the basis that she may become pregnant.
Questions about intentions to have children or childcare should be avoided during recruitment. These kinds of questions can lead to a perception of discrimination even if they are not intended to screen people out, and in some instances Courts and Tribunals have found them to be discriminatory.
Pregnancy During Employment
Both the NSW Anti-Discrimination Act and the Commonwealth Sex Discrimination Act make it unlawful to discriminate against a pregnant women in conditions of employment, in access to promotion, transfer and training, or by subjecting her to other detriment.
The kinds of treatment that pregnant women have complained to the Anti-Discrimination Board about include denial of pay increases, bonuses or other remuneration; denial of shifts or decreases in hours of work; denial of opportunities to attend training; denial of opportunities for promotion or transfer; harassment on the basis of pregnancy; complaints about work performance following disclosure of pregnancy; and removal from front line contact or more demanding tasks when the pregnancy becomes visible.
Employers should be mindful of their obligations under occupational health and safety legislation to ensure the health, safety and welfare of pregnant employees. This should be done in a non-discriminatory fashion, by identifying and reducing hazards rather than automatically excluding pregnant workers. Often the measures needed to ensure the health and safety of all employees at work are sufficient to protect pregnant employees.
The NSW Anti-Discrimination Act provides that the Act does not apply to anything that is necessary to comply with another law, such as occupational health and safety law. In this case the onus is on the employer to show that any discriminatory actions were necessary to comply with occupational health and safety legislation, and to date no employer has successfully argued this in a pregnancy discrimination case.
The NSW Industrial Relations Act requires an employer to temporarily adjust an pregnant employee's working conditions or hours to avoid exposure to a risk to her health and safety or that of her unborn child. If adjustment is not feasible, then the employee must be transferred to appropriate work that is as near as possible to her present work in status and pay. If transfer is not feasible, then the employer must give the employee maternity leave or any available sick leave.
Pregnant employees are entitled to use their sick leave in the same way as any other employee. For example, restriction of an employee's use of sick leave to attend prenatal checkups may amount to discrimination. The NSW Industrial Relations Act also provides for special unpaid maternity leave for any period a doctor certifies as necessary for any pregnancy-related illness.
State and federal discrimination laws also provide an exception for an employer to give women rights or privileges connected with childbirth and pregnancy. This means, for example, that it is lawful to provide a pregnant woman with extra breaks if required, but not to provide the same conditions to men. Termination of Employment
In general, it is unlawful to terminate a woman's employment on the grounds that she is pregnant or may become pregnant, even if this is only one of the grounds for dismissal.
Many pregnancy discrimination complaints concern dismissal and constructive dismissal, that is, making working conditions so intolerable for the employee that they resign. In some instances women are dismissed because of an employer's attitudes or beliefs about pregnant women, for example that they shouldn't be working at all, or that they should not be serving customers.
Poor work performance is often given as a reason for dismissal. There is nothing in anti-discrimination law to preclude an employer dismissing an employee for poor work performance, even if they are pregnant. However, employers are likely to face liability for discrimination if work performance issues have never been raised with the person until they became pregnant, or where a non-pregnant employee with the same level of performance was not dismissed.
The NSW Anti-Discrimination Act provides a defence to a discrimination complaint regarding dismissal of a pregnant women if the woman knew she was pregnant when she applied for the position or attended an interview for it, but this defence does not apply under the Commonwealth Sex Discrimination Act. Under the Commonwealth Workplace Relations Act there is an exemption to the prohibition of termination during pregnancy if the woman cannot perform the inherent requirements of the particular employment.
Maternity Leave
In NSW a female employee who is employed on a full time or part-time basis with twelve months continuous service (including authorised leave or absence) is entitled to maternity leave. This has been recently extended to include regular casual employees, that is, casual employees who work for an employer on a regular and systematic basis and have a reasonable expectation of ongoing employment on that basis.
Under both the NSW Industrial Relations Act and the Commonwealth Workplace Relations Act an employee is entitled to return to the position she held before going on maternity leave. If that position no longer exists, for example because of a genuine restructure, and there are other positions that the employee is capable of performing, then she is entitled to be employed in an available position that is as nearly as possible comparable in status and pay to her former position.
Employers should take care with the definition of casual. In many instances a position that an employer has termed casual may not actually be 'casual' in the legal sense. For example, a person who has regularly worked a full week for a number of years is unlikely to be classified as a casual by a Court or Tribunal and may have some entitlement to maternity leave.
Management of Restructuring and Redundancy
Many pregnancy and sex discrimination complaints arise because pregnancy, or the fact that the person is on maternity leave, has been taken into account in decisionmaking about restructures and redundancies. It is not unlawful to restructure or abolish positions of pregnant employees or those on maternity leave, as long as the pregnancy or maternity leave does not form part of the decision making.
Another common cause of complaint is that employers have failed to consult with people on maternity leave about restructuring issues, when they have consulted with other employees. Particular concerns arise where positions are being advertised and those on maternity leave are not given an opportunity to apply.
When women return to work after maternity leave, they are likely to have carers' responsibilities, and it is unlawful to discriminate against a person on the basis of carers' responsibilities under the NSW Anti Discrimination Act. For further details refer to the Board's website at www.lawlink.nsw.gov.au/adb or refer to future issues of Equal Time.
In order to avoid direct or indirect discrimination on the ground of pregnancy, it is essential that all managers and staff are certain about people's entitlements and responsibilities. Timely and accessible grievance handling policies and training of all staff in their use is also essential.
There are many organisations that can assist you with determining whether workplace conditions are likely to be discriminatory or not. The Anti-Discrimination Board offers a free Employers Advisory Service, guidelines setting out employers' obligations and providing advice about developing policies, and education programs for management and staff.
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