Pregnancy discrimination, as defined by the Sex Discrimination Act 1984, is illegal in Australia. Nonetheless, almost half of Australian mothers believe that they have experienced less favourable treatment at work during pregnancy, parental leave or once they have returned to work.
It can be a very confusing situation – sometimes very subtle, sometimes astonishingly brazen. But you have legal protections, and you have remedies. It is important to know how to use them. If internal company processes are unsuccessful, it may be time to seek legal advice and lodge a formal complaint with the appropriate commission.
What is pregnancy discrimination?
It may take the form of rude comments about your changing body, of course. But it can also take the form of unspoken assumptions about your future professionalism or lack of commitment to the organisation. Were you passed over for a promotion, a raise, a professional development opportunity or client contact that might otherwise have made sense in context? Have any of these things happened to you, not because you are pregnant, but because your boss thinks that you might want to start a family in the future?
All of these are forms of pregnancy discrimination. The key concept is “less favourable treatment” because of pregnancy or potential pregnancy.
Know your rights!
All employees in Australia are entitled to 12 months of unpaid parental leave if they will have responsibility for the care of a child and have completed at least 12 months of continuous service with their employer. Additionally, the government will pay up to 18 weeks of Parental Leave Pay at the national minimum wage for primary carers of a newborn or adopted child. To be eligible, employees must be:
- Australian residents;
- earning less than $150,000 a year; and
- not working while receiving the payment.
The National Employment Standards allow you to return to the same position you held before you began parental leave. If upon your return to work your position no longer exists, you must be transferred to a similar role if possible. It is legal for your employer to make your position redundant while you are on parental leave, as long as this is not a pretext for terminating you.
Take action
If you are concerned you are or could be a target of pregnancy-related discrimination, the first step is to start keeping a contemporaneous written record of comments or actions that you believe are discriminatory – the more detail, the better.
If internal complaint mechanisms exist, that may be the most effective place to turn first. Even without a formal complaint mechanism, senior human resources colleagues may be very helpful. Be sure to document these interactions carefully, as well. Send follow-up memoranda confirming your understanding of the actions to be taken.
Even if you grow frustrated, try not to quit. That will likely complicate your situation.
Ultimately, if these steps are not successful in resolving the situation, you may file a formal complaint with the Australian Human Rights Commission for complaints under the Sex Discrimination Act or the Fair Work Commission for a general discrimination complaint, unfair dismissal, or relation claim. At this stage, it may be extremely helpful to have the advice of legal counsel.
Remember it’s never ok to be treated unfavourably at work due to pregnancy or potential pregnancy. If this is happening to you, you have options to redress it.
