It is against the law to discriminate against any female in the workplace because she is pregnant, might be pregnant or may become pregnant, or because she needs to breastfeed or express milk.
Discrimination on the basis of pregnancy and breastfeeding can also include degrading or humiliating comments from interviewers, co-workers or managers, as well as unreasonable workplace policies and practices that an employee who is pregnant or breastfeeding cannot fulfil.
Examples of pregnancy and breastfeeding discrimination
Sharon is an area manager of an engineering company and responsible for negotiating large corporate contracts. After she becomes pregnant with her second child, her employer tries to demote her to a bookkeeping position of far less pay and status. Sharon’s employer tells her he does not believe it is suitable for a pregnant woman to represent the organisation.
April is asked at a job interview if she is planning to have children. The interviewer says he is not interested in ‘investing in a woman who is going to cost the business money by taking maternity leave.’
Anne is a stockbroker and expresses milk during her breaks at work and stores the bottles in the fridge. James, a co-worker, makes rude remarks to Anne about the expressed milk and also complains at the staff meeting about it. Anne feels humiliated and insulted by James’s behaviour.
Health and safety
It is against the law to dismiss an employee who breastfeeds or expresses milk because of assumed health and safety risks in the workplace.
These health risks rarely affect only employees who need to breastfeed or express milk and employers are obliged to make reasonable adjustments to the workplace to ensure the health and safety of all workers.
Full-time, part-time and casual employees are entitled to unpaid parental leave if they will have responsibility for care of the child.
Unpaid parental leave is available to same-sex, married and de-facto partners with primary responsibility for the care of the child.
After leave, an employee has the right to:
- return to the position they held before going on leave, including any promotion granted while on parental leave,
- or, if that position no longer exists, an available position for which they are qualified and suited, which is nearest in status and pay to their pre-parental leave position.
Full-time and part-time employees
Permanent full-time and part-time employees with at least 12 months service are entitled to 52 weeks unpaid leave if they will have responsibility for care of the child. They also have the right to request a further 12 months unpaid leave.
Casual employees are entitled to parental leave if they have 12 months regular and systematic service and a reasonable expectation of it continuing.
Employees with school age children
Employees with responsibility to care of a child under school age, or a child aged under 18 years with disability, also have the right to request flexible work arrangements under the National Employment Standards.
These standards are set out in the Fair Work Act 2009 and apply to employees who have worked for an organisation for at least 12 months.
An employer may refuse the request but only on ‘reasonable business grounds’.
Are there any exceptions?
The Equal Opportunity Act 2010 includes some general exceptions. This means that discrimination may not be against the law in particular circumstances.
An employer may also discriminate against a woman based on pregnancy when it is reasonably necessary in order to protect her health and safety or the safety of others. The measures taken must be reasonable and a proportionate response to the risk posed to health and safety.
Discriminatory measures should only be taken where there is a real likelihood of risk to health and safety. Employers who choose to discriminate on this basis should also consider any less discriminatory ways to achieve the desired outcome.
Employers may be vicariously liable for their employees’ acts of discrimination or sexual harassment. Employers can also be directly liable. Find out more about who is liable for discrimination and harassment.
Employers also have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.
Complaints of discrimination made to the Commission are resolved through a process called conciliation. Find out more about our process for resolving complaints.