Zero Tolerance for Pregnancy Discrimination

Author: Harrison HR | Blog

Not for the first time, I had a client call asking for advice around an employee who had recently started with them and just told them she was pregnant. Could they sack her? They say, she should have told them at the interview that she was pregnant. As business owners and employers, what would you do in this situation?

In this case, the woman said she had been made redundant from her job about the same time she realised she was pregnant, and when she disclosed her pregnancy to other prospective employers at interview she had been unsuccessful. As women and mothers what would you have done in the employee’s situation?

I have personal experience of pregnancy discrimination so empathise with the many women experiencing it. Of course, there are inconveniences and potentially costs surrounding pregnancy in the workplace, especially for small businesses. I employ working mothers so understand the challenges as a business owner but working mothers are more productive so any inconvenience is a worthwhile investment. A study by Ernst & Young found women working part-time waste the least amount of time at work of all workers, just 11.1% compared to 14.5% for the rest of the workforce. (Interestingly, they also wasted less time than their male part-time counterparts, who wasted 14.2% of their working time.)

Current low fertility rates (1.86 children per woman) indicate a growing trend by women to make a choice between work and family rather than seeking both. Such choices are still necessary partly because of the failure of workplace practices to accommodate the realities of pregnancy and family responsibilities. It is therefore timely to remind ourselves of the legal rights of women having babies – because someone has to have them.

Preventing Discrimination

There are three areas of the Sex Discrimination Act that aim to protect women having babies:

  1. Pregnancy discrimination happens when a woman is treated less favourably because she is pregnant or may become pregnant
  2. Breastfeeding discrimination happens when a woman is treated less favourably because she is breastfeeding or needs to breastfeed over a period of time
  3. Family responsibilities discrimination occurs when a person is treated less favourably because the person has family responsibilities

Although highly unusual, an employer may have an acceptable basis to lawfully refuse to employ a pregnant applicant if she is unable to adequately perform the duties required for the position; where there may be safety issues in the workplace that cannot be resolved, e.g. pregnant women working with babies in an early education centre may need to be moved to an older room for her pregnancy.

Leave Entitlements

The Fair Work Act covers the leave requirements for women having babies, which include:

  1. Parental Leave – 12 months of unpaid parental leave. They can also request an additional 12 months of leave.
  2. Sick Leave – Pregnant employees still get their ordinary sick leave entitlements. If a woman experiences a pregnancy-related illness or injury, sick leave can be taken.
  3. Special Maternity Leave – For a pregnancy-related illness or her pregnancy ends after 12 weeks because of a miscarriage, termination or stillbirth.
  4. Safe jobs – Move to a safe job if it isn’t safe for them to do their usual job because of their pregnancy.

Today I read another high-profile case of a well-known woman working in the media industry who was pushed out of her job after having a baby! I wish I had the courage to pursue my own case of pregnancy discrimination. It infuriates me that women who have babies continue to be punished for doing so. Whether it’s not being given time off for medical appointments, not being given leave for pregnancy-related symptoms, being rushed back to work in fear of losing their job, or being sacked after notifying of their pregnancy or on return to work – it needs to stop.

First published on herbusiness.com

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