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Points to Consider About Pregnancy Discrimination in the Workplace

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Unfortunately, unlawful workplace discrimination is not a thing of the past. It can crop up in day-to-day business activity and have detrimental effects on your employees’ physical and mental well-being. More broadly, and in the context of the Fair Work Act 2009 (Cth), workplace discrimination occurs when an employer takes ‘adverse action’ against an employee or prospective employee because of the employee’s race, sex, age, physical or mental ability, sexual orientation, religion or pregnancy status. To help explain these ideas in more detail, this article outlines some points to consider about pregnancy discrimination in the workplace.

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What is ‘Adverse Action’?

Adverse action covers a range of activities in the workplace that, if taken for a discriminatory reason, can be unlawful. A person can unlawfully discriminate against another person if they:

  • treat them less favourably than other people based on certain factors like their sex or pregnancy status; or 
  • require them to comply with certain rules or conditions that may be unreasonable due to their personal attributes.

When it comes to pregnancy discrimination in the workplace, an employer who threatens, organises, or does any of the following can be deemed to have taken adverse action:

  • dismisses an employee because they fall pregnant;
  • demotes or alters an employee’s position to their detriment because they are pregnant;
  • refuses to employ a prospective employee based on their pregnancy status; or
  • discriminates against the prospective employee based on the terms in the offer of employment.

You should note that treating someone differently does not necessarily mean you are committing unlawful discrimination. For example, suppose you chose to place a pregnant employee on performance management to develop their skills rather than based on their pregnancy status. In that case, a court might not consider this unlawful. The key focus when determining if an employer discriminated against their employee is the employer’s reasoning behind the decision. If the reason for the action is lawful, employers will have a much better case where employees bring an adverse action claim.  

Ultimately, a court will only consider an employer’s action as adverse if it occurs on the basis of someone’s gender or other attributes. So, if the action occurs on another basis, this might not be considered an act of unlawful discrimination.

Who is Protected?

The Fair Work Act protects most workers irrespective of their work status. So, regardless of whether a pregnant woman works full-time, part-time, or as a casual worker, they should not be discriminated against in the workplace.

Other employment statuses which the Fair Work Act protect include:

  • probationary employees;
  • apprentices and trainees;
  • contractors; and
  • prospective employees.

As mentioned above, it is unlawful not to hire a prospective employee based on their pregnancy status. Additionally, the inclusion of discriminatory terms and conditions in an employment contract for a prospective employee can also be considered unlawful workplace discrimination.

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Creating a Safe Work Environment

As an employer, it is your responsibility to create a safe workplace for all your employees. Not only does this mean keeping your employees free from discrimination, but also reassessing their working conditions based on their needs. When it comes to pregnant employees, it might be necessary to reconsider how their work responsibilities need to change during their pregnancy. For example, if your workplace typically involves lifting heavy things, it might be best to reconsider your worker’s duties. 

Beyond your employee’s job duties, other areas which you might change to create a safer workplace include:

  • being flexible with hours of work, only by agreement with the employee;
  • limiting the use of certain work equipment; and
  • supporting alternative travel arrangements.

In any event, it is paramount that you are considerate of your employees during their pregnancy. By giving your employee a chance to renegotiate their workplace responsibilities to suit their needs and responding to them accordingly, you can create a safer work environment for them.

Where the employee’s job is not considered safe and there is no alternative position they can transfer to, they may be entitled to ‘no safe job’ leave. Whether this leave is paid or unpaid is dependent on whether the employee is entitled to take unpaid parental leave. If the leave is paid, both permanent and casual employees will be entitled to their base rate of pay for ordinary hours worked. The leave may continue until the employee is able to return to work or until their parental leave begins.

Special Maternity and Compassionate Leave 

Employment law entitles pregnant to take two days of paid compassionate leave in the instance of a miscarriage. In addition, pregnant employees who are eligible for unpaid parental leave may also be entitled to unpaid special maternity leave.

This category of leave entitles pregnant employees who are experiencing a pregnancy-related illness or miscarriage to take unpaid leave. The leave may continue until the employee is fit to return to work. Importantly, this leave will not reduce the amount of unpaid parental leave the employee is entitled to take. 

Consequences of Unlawful Discrimination

Workplace discrimination is no light fare. Not only can it have detrimental impacts on the person on the receiving end of discrimination, but it can also normalise further behaviour in the workplace. For this reason, there are serious consequences for committing unlawful workplace discrimination against a pregnant employee.

If an employee is discriminated against, they can lodge a complaint with the Fair Work Commission. Under the Fair Work Act, the maximum penalty is roughly $16,500 for a knowingly or recklessly involved individual and $82,500 for a company. for an individual employer. If the matter goes to court, the court can make any order that it considers appropriate, including:

  • orders for injunctions, preventing parties from engaging in certain conduct; or
  • compensation for the employee who was discriminated against.

Ultimately, it is your responsibility to take discrimination issues in the workplace seriously. If you find yourself facing pregnancy discrimination issues in your workplace, you should seek legal advice to take steps to resolve the matter. 

Key Takeaways

Workplace discrimination can occur when an employer takes ‘adverse action’ against an employee or prospective employee based on their pregnancy status. For example, if an employer dismisses or demotes an employee on the basis of their pregnancy, a court can consider this as unlawful workplace discrimination. As an employer, it is your responsibility to ensure that your employees work in a safe environment. So, you should avoid engaging in discriminatory conduct. 

If you need help understanding pregnancy discrimination in the workplace, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

Do casual workers receive legal protection from discrimination?

Regardless of whether someone is a casual, part-time or probationary worker, they will receive legal protection from unlawful discrimination.

What is special maternity leave?

Generally, special maternity leave is unpaid for employees who experience a pregnancy-related illness or a miscarriage. However, you should note that special maternity leave does not reduce the amount of unpaid parental leave that an employee is entitled to receive. 

Eleanor Kenny

Eleanor Kenny

Law Graduate

Eleanor is a graduate lawyer in LegalVision’s Employment team. She graduated in 2020 with a Bachelor of Business and a Bachelor of Laws from the University of Technology Sydney. She began her career working in an international professional services firm providing corporate clients with regulatory tax advice in relation to their globally mobile employees.

Qualifications: Bachelor of Laws, Bachelor of Business, University of Technology Sydney. 

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