The Anti-Discrimination Act 1977 has been amended to strengthen the prohibition on discrimination against women who are breastfeeding

Discrimination on the ground of breastfeeding is now officially unlawful discrimination on the ground of sex. Along with pregnancy, breastfeeding has long been considered ‘a characteristic that appertains generally to persons of a particular sex’. A recent amendment to the Anti-Discrimination Act makes it clear.

Under the new law, ‘breastfeeding’ is defined as including the act of expressing milk.

Pregnancy
Bad Attitudes
Pregnancy is not an illness
Accommodating the needs of pregnant employees
After birth
Cares' responsibilities
Only women have babies

Pregnancy

According to one study, more than one in five pregnant workers encounter at least one ‘difficulty at work during their pregnancy:

• 9% received negative or inappropriate comments

• 9% missed training and development opportunities

• 7% missed opportunities for promotion 1

A range of issues have been raised in cases before the courts and tribunals. Some employers, faced with a pregnant employee, have actively tried to ‘persuade’ her to leave. This is despite the many financial benefits of keeping a valued employee in a job: loyalty, commitment, retention of experience and expertise, training investment, avoidance of recruitment costs and gaining ‘preferred employer’ status.

Employers must treat pregnant women the same as they would any other employee unless there is a legal reason to treat them differently. If they normally supply employees’ uniforms, for example, they should supply a larger size to a pregnant employee if necessary. They should not transfer a pregnant woman to a job ‘out of sight’ against her will, or to a ‘safer’ job unless there are real medical or safety issues for doing so.

They must not treat women whom they think are likely to become pregnant less favourably, either. Unfortunately, many young women report less favourable treatment when, for example, they marry.

Under NSW law, an employer does not have to employ someone who is pregnant at the time of the job interview. In most cases, however, this is unlawful under federal law.

In one case2, a pregnant hairdressing apprentice claimed her manager’s attitude changed when she became pregnant: criticising; setting menial tasks; and so on. The real difficulty, however, was her manager’s decision that she could no longer work in one salon. She was required to travel to different salons from day to day.

As her pregnancy progressed, her obstetrician gave her a medical certificate stating that she could only do 8-hour shifts. The manager ignored this and required her to work 12-hour shifts. She was forced to leave her job. The Queensland Administrative Decisions Tribunal found that she had been treated less favourably because of her pregnancy and she was awarded $9,257.50 for humiliation, distress and lost wages.

Another case3 concerned a teacher who lost her job-share position as registrar at a private school, when the school decided the arrangement wasn’t working.

The registrar’s job was advertised and filled as a full-time position. The woman applied, and was willing to work full-time, but did not get the job.

The Queensland tribunal found that the decision that the Registrar’s position should be full-time was genuine, based on operational requirements, and not discriminatory. The tribunal was satisfied, however, that the real reason for refusing her the job was because of her parental responsibilities and pregnancy and this was discriminatory.

It also found that it was unreasonable to require the woman to work full-time or lose her job. It was also irrational to refuse to offer her a teaching job when many were available for which she was qualified. Instead, the school had directly discriminated against her because she was offered a low status, low paid job because she was pregnant.

The woman was awarded $42,250.

Maybe not, but the Federal Magistrate’s Court found that Qantas discriminated against a flight attendant by refusing to allow her to access her sick leave on the grounds that she was pregnant rather than sick4 .

Flight attendants have to stop flying at a certain stage of their pregnancy due to the potential radiation danger. In this case there were no ground-based jobs at an equivalent salary level, so the woman asked to use her sick leave. Qantas said she must accept a clerical position on offer or go on unpaid maternity leave.

The employee successfully argued that Qantas’ refusal of her sick leave claim meant that she was treated less favourably than another hypothetical employee who was not pregnant but was also unable to perform flying duties by reason of a medical certificate.

Employers need to have in place appropriate policies for dealing with the needs of pregnant employees. A woman who was seven months pregnant asked for ‘light duties’ because she was having trouble coping.5 She was told that there were no temporary positions for her to fill, and if she could not do her job, she would have to take leave.

The tribunal found that there was no direct discrimination. The woman was not treated less favourably than other employees who needed to be on light duties because of her pregnancy.

The tribunal, however, considered whether or not she had been indirectly discriminated against. It had to decide if requiring her to take leave if she couldn’t do her job was reasonable and whether a substantially higher proportion of men could comply with such a requirement than women in the late stages of pregnancy.

The tribunal found that, on the face of it, the requirement was reasonable. In all the circumstances, however, it was not reasonable. It pointed to a lack of written policies to deal with requests such as Ms Jordon’s, the lack of any training as to how the request should be handled; and no system for exploring options.

The Tribunal awarded the woman $7,500 for having to take leave before, rather than after her baby was born.

After birth

Mothers are entitled to return to work after maternity leave. If their old job is not available, they are entitled to expect that they will be offered something comparable in terms of such things as salary, status, or responsibilities. One woman agreed to return to a ‘different but comparable’ role.6

She was, however, placed in an inferior job with no budget, less responsibility, and no line management responsibilities or development opportunities. She later moved to better position, but it still carried a loss of status. She claimed that this was sex discrimination

The magistrate agreed that she had been discriminated against on the ground of sex. He found that she was treated less favourably than people who took leave for other reasons.

She was awarded $10,000 plus an apology.

It is unlawful to discriminate against a person because they are the prime carer for a family member, including a child, grandchild, parent, grand parent, partner, sibling or any of those relatives of a sibling. A carer is also entitled to ‘reasonable accommodation’ for their caring responsibilities.

A carer can be male or female, but accommodations are often sought by mothers returning from maternity leave.

In a recent case7 an employee returned to work after maternity leave to find that her job had been divided into two positions. She was given the more junior role. The senior role included most of her previous responsibilities.

The employer claimed that the senior role was given to the better candidate.

The Tribunal did not believe this because:

• It being the job she had held, it was not sensible to give it to someone else

• The manager had expressed concern about how women with children managed their time.

• He had told the woman to spend as much time as possible with the baby

• He had sent an email to other employees after her return saying ‘Please welcome Sally back to the office and if she s p e l l s e v e r y t h i n g o u t when talking to you, please be patient’.

The Tribunal was satisfied that she did not get the senior job because of the sales manager’s beliefs about the effect of childcare responsibilities on performance.

She was awarded $19, 685

A woman who is returning from maternity leave does not have an absolute right to return part-time. The carer’s responsibilities ground, however, entitles her to expect that her employer will give proper consideration to the question of whether or not this is possible.

A manager and long term employee, sought to return to work part-time after her maternity leave. Her request was refused. Her employer insisting that the job was full-time and that they had no obligation to assist her to manage her personal affairs.

She offered to work on the three busiest days of the week and to be on standby on the other two. The employer reiterated its refusal without negotiation.

The woman succeeded in her claim of discrimination on the ground of carer’s responsibilities, pregnancy and gender. The tribunal found that her employer had not given due consideration to her request and that requiring her to return full time was not reasonable in all the circumstances.

She was awarded $16,385 for loss of income, stress and humiliation.

Only women have babies

Finally, since only women have babies, discrimination against a woman because she is pregnant (or could become pregnant), or because she is breastfeeding, is sex discrimination. The breastfeeding amendment specifically states that it is not discrimination against men to make particular arrangements for breastfeeding women!