Pregnancy And Breastfeeding Discrimination
Sex discrimination occurs when a person is treated less favourably than someone of the opposite sex would be treated in the same or similar circumstances. This includes discrimination on the ground of pregnancy or potential pregnancy, and on the ground of breastfeeding.
This Act protects people from such discrimination and aims to “promote recognition and acceptance within the community of the principle of the equality of men and women”. It operates concurrently with corresponding state and territory laws, and a person can be prosecuted for discrimination under either the Act or under those state and territory laws.
The Act makes it illegal to discriminate against a person on the basis of characteristics such as pregnancy or breastfeeding.
The Act covers most areas of public life, including:
- insurance and superannuation;
- goods and services;
- land sales;
- club activities;
- Commonwealth laws and programs.
Pregnancy or potential pregnancy
“Potential pregnancy” includes the fact a woman is capable of having children, has expressed a desire to have children, or is likely or perceived as being likely to become pregnant.
A person will be guilty of discriminating against a woman on the ground of pregnancy or potential pregnancy if they treat that woman less favourably than someone who is not pregnant or potentially pregnant in circumstances that are the same or not materially different. The discrimination can be based on the woman’s pregnancy or potential pregnancy, or on a characteristic generally associated with or imputed to women who are pregnant or potentially pregnant.
This discrimination includes when a person imposes or aims to impose a condition, requirement or practice that has disadvantaged or is likely to disadvantage a woman who is pregnant or potentially pregnant.
“Breastfeeding” includes the act of breastfeeding and breastfeeding over a period of time, as well as the act of expressing milk.
A person will be guilty of discriminating against a woman on the ground of breastfeeding if they treat that woman less favourably than someone who is not breastfeeding in circumstances that are the same or not materially different. The discrimination can be based on the woman’s breastfeeding, or a characteristic generally associated with or imputed to women who are breastfeeding.
This discrimination includes when a person imposes or aims to impose a condition, requirement or practice that has disadvantaged or is likely to disadvantage a woman who is breastfeeding.
In employment, it is unlawful for an employer to discriminate against a pregnant or potentially pregnant, or breastfeeding woman:
- in choosing who should be offered a job;
- in the terms of employment;
- by refusing to offer the woman a job;
- by denying the woman access to promotion, transfer, training or other employment benefits;
- by sacking the woman or otherwise ending her employment.
It is also unlawful for people proposing a partnership to discriminate on those grounds in determining who should be invited to become a partner or in the terms or conditions of the partnership. In an existing partnership, it is unlawful to discriminate on those grounds by denying or limiting the partner’s access to any partnership benefit or by expelling the partner from the partnership.
A registered organisation must not discriminate on those grounds by refusing the woman’s application for membership, or in the terms of membership. The organisation also must not deny or limit access to membership benefits, deprive a member of membership, or vary membership terms. Occupational qualifying bodies are subject to similar rules, in that they must not discriminate when making decisions about a woman’s qualification, including whether to confer, renew, extend, vary, revoke or withdraw the qualification.
If a person imposes or aims to impose a condition, requirement or practice that disadvantages or is likely to disadvantage a woman who is pregnant or potentially pregnant, or a women who is breastfeeding, then the condition, requirement or practice must be reasonable. Factors to be considered in deciding this include:
- the nature and extent of the disadvantage;
- the likelihood of overcoming or mitigating the disadvantage;
- whether the disadvantage is proportionate to the result sought by the condition, requirement or practice.
The Act allows special measures may be taken to achieve equality between women who are pregnant or potentially pregnant and women who are not, and between women who are breastfeeding and those who are not. The special measure can be undertaken solely for that purpose, or in conjunction with other purposes.
Australian Human Rights Commission (AHRC)
The AHRC is a federal government agency that handles complaints of discrimination under the Act. A complaint can be made online or using a hard copy form. The AHRC works with a wide range of groups to prevent discrimination.
Decisions made by the AHRC can be reviewed by the Administrative Appeals Tribunal.
For advice or representation in any legal matter, please contact Armstrong Legal.