PREGNANCY DISCRIMINATION AT WORK
3.1. Equity for employees who are pregnant
3.2. Adjustments for employees who are pregnant
3.4. Return to work after maternity leave
3.5. Preventing unlawful harassment
3.6. Other issues
- Pregnant or potentially pregnant employees should be treated in a fair and equitable manner. Employers should not reduce an employee's terms and conditions or deny other benefits on the basis of pregnancy or potential pregnancy.
- Where necessary, employers should make all reasonable adjustments to the workplace to accommodate the normal effects of pregnancy. Employers need to discuss the issues with the pregnant employee to find solutions.
- Where medical issues are associated with a pregnancy or legitimate OH&S issues arise, employers should make reasonable adjustments in the workplace to allow pregnant employees to continue to work.
- It is not discriminatory to accommodate an employee who is pregnant. " In limited cases where medical or OH&S issues cannot be resolved, an employer may need to temporarily transfer a pregnant employee.
- Constant references to an employee's pregnancy, touching her stomach and badgering her about whether she is "really" planning to come back to work are likely to amount to discrimination.
- When an employee has had her position adjusted in some way because of her pregnancy, her benefits should remain the same, although her salary may alter if her hours decrease.
3.1 Equity for employees who are pregnant
Pregnancy discrimination often occurs because people make automatic assumptions about pregnant employees requiring different treatment. However most pregnant employees carry out their work in the same way as they did before they were pregnant.
It is the responsibility of employers to treat pregnant and potentially pregnant employees in a fair and equitable manner that does not discriminate against them. This includes providing pregnant and potentially pregnant employees with the same basic terms and conditions of employment and the same benefits as they would receive if they were not pregnant. It is also the employers' responsibility to ensure other employees treat pregnant and potentially pregnant women in a non-discriminatory way.
Generally this means that an employee cannot be:
" transferred; " demoted; " made part-time if she was full-time or vice versa; " made casual if she was permanent; " given reduced hours of work or increased hours of work; " given less skilled or less demanding work; " denied education or training; " denied promotion; or " denied other employment benefits or opportunities
because of her pregnancy or potential pregnancy without the agreement of the employee.
There are a small number of cases when medical issues associated with pregnancy may require an employer to make some adjustment to work arrangements to allow a pregnant employee to work safely and efficiently. Making these adjustments will help ensure that there is no discrimination against an employee because she is pregnant.
3.2 Adjustments for employees who are pregnant
Some women experience physical effects such as tiredness and nausea during certain stages of pregnancy. In most cases, this does not prevent women performing their work. To avoid discriminating on the basis of pregnancy, employers are encouraged to accommodate the normal effects of pregnancy in the workplace.
Employers should note that anti-discrimination legislation in Tasmania and the Northern Territory has provisions that deal specifically with the accommodation of pregnant employees. 
Do I have an obligation to provide seating?
Providing seating is a simple way to accommodate the needs of some pregnant employees. Failure to provide seating when the work can be reasonably performed sitting down, may be discriminatory. It may also endanger the health of the employee and her unborn child.
What if an employee requires additional toilet breaks?
The physical changes pregnant women experience may mean that some women need increased access to toilet breaks. Denying a pregnant employee adequate toilet breaks is likely to be discrimination.
Can I alter rosters or hours of work?
In most situations an employee who is pregnant will be able to work the same rosters and hours as an employee who is not pregnant. Rosters should not be altered because of pregnancy unless there is a specific reason, such as a pregnancy related illness. Nor should the pregnant employee's hours or normal shifts be altered, unless done in consultation with, and with the legitimate agreement of, the employee. A medical report supporting the changes, stating the reason why the existing rosters cannot be worked and detailing the nature, amount and times that work can be performed, given the circumstances of the pregnancy, is often helpful.
Do I need to provide uniforms for pregnant employees?
Where an employer requires an employee to wear a uniform, uniforms should be provided in sizes sufficient to accommodate pregnancy. Alternatively, an employer may consider waiving the requirement to wear a uniform for the period when suitably sized uniforms are unavailable. Where an inability to wear the uniform causes detriment to the employee, such as denial of access to particular duties, sound workplace management would ensure that this situation is properly addressed to prevent discrimination.
Is there an issue with drinking water?
The body temperature of pregnant women tends to increase more rapidly than that of women who are not pregnant. It is important that pregnant women have access to drinking water while working.
What if an employer fails to make appropriate adjustments for employees who are pregnant?
An employment condition, requirement or practice that unreasonably fails to accommodate pregnancy may disadvantage pregnant employees and therefore constitute indirect discrimination under the federal Sex Discrimination Act.  While the requirement or practice may appear to be non-discriminatory, ultimately it could have the effect of disadvantaging pregnant employees. The fact that an employer did not intend to discriminate is not relevant under the federal Sex Discrimination Act, it is the impact of the requirement or practice that is assessed.
Click here for a definition of reasonableness and case examples.
General advice for employers is to consider all reasonable options when accommodating pregnant employees and to be prepared to discuss these options with employees to find individual solutions.
There is no single answer as to what is required to reach a non-discriminatory outcome as it depends on individual circumstances. Employer decisions taken in consultation and cooperation with the pregnant employee will usually assist in a reasonable outcome. Remember, no two pregnancies are the same and people need to be managed as individuals. Do not make assumptions about what a pregnant woman wants or needs. It is always better to ask her.
What if an employee who is pregnant cannot be accommodated?
It is unlikely that an employee cannot be accommodated. However, problems may occur if there are medical issues in addition to the pregnancy, or where there are particular OH&S issues in the workplace.
Pregnancy discrimination and medical issues
If a pregnant employee has medical issues associated with her pregnancy, such as fatigue or high blood pressure, the employer should consider the medical issues and the need to accommodate them in the broader context of discrimination law. This may involve seeking medical advice, consulting with the employee and acting on the medical advice in a non-discriminatory way.
There is further information on sick leave here and medical advice here.
Pregnancy discrimination and OH&S
When complying with the responsibility to accommodate pregnancy at work, employers must be aware of OH&S requirements, as well as the prohibition of discrimination against pregnant employees. 
Where OH&S risks to pregnant employees cannot be controlled or eliminated, the employer may need to transfer a pregnant employee to an alternative job within the organisation.
See Appendix C for further discussion of OH&S and pregnancy.
Under the federal Sex Discrimination Act, any transfer must be done in a way that does not discriminate against a pregnant employee. For example, the transfer should not result in loss of opportunities for promotion, training, financial loss, extra travel time or exposing the pregnant employee to harassment by fellow workers.
Maternity leave provisions under some State and federal laws, awards or agreements require an employer to consider such a transfer on the production of a medical certificate.  These laws also generally provide that a woman be returned to her original job, not the job she was transferred to while pregnant, upon her return from maternity leave. 
The role of medical advice in managing pregnancy at work
Nurses, health care workers, midwives, general practitioners and obstetricians, among others, can provide advice about managing pregnancy in the workplace. In-house medical advisers and doctors can also provide general advice, however employees should also seek independent advice.
Medical certificates are usually required when an employee needs to transfer to safer or lighter duties, to reduce working hours, or where special maternity leave is required.  The federal Sex Discrimination Act states that it is not unlawful to request or require a person who is pregnant to provide medical information concerning the pregnancy. 
Of concern to some employers is the inadequacy or limited nature of the information provided in medical certificates. Of particular concern is the phrase 'light duties'. Employers are encouraged to request that medical certificates address the actual duties that would be appropriate for the pregnant employee.
An employee should discuss with her medical adviser the detail required in a medical certificate. To assist this process, employers may consider developing a simple information sheet to obtain the relevant information.
Information sheets could contain information about current duties, hazards particular to the workplace or the work being performed, and seek any relevant information about the particular circumstances of the pregnancy and possible alternative duties.Information sheets should be compiled in a non-discriminatory manner, concentrating on OH&S criteria.
The limits of workplace adjustment There are, on very rare occasions, circumstances where a pregnant employee can no longer perform her job even after workplace adjustments and there are no alternative tasks or available transfers. In such circumstances, the employer can provide extended leave with or without pay or the pregnant employee could commence unpaid maternity leave early.
It may, after careful consideration, be lawful to terminate the employment contract where the pregnant employee is no longer able to meet the terms and conditions of the position. It is very rare for these circumstances to arise. If such a situation did arise, sound management practice would ensure that there was adequate documentation to demonstrate that no other alternative options existed and that all requirements of anti-discrimination, industrial relations and OH&S legislation had been met. Employers would be well advised to discuss the situation and appropriate responses with a specialist adviser or relevant government agency.
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A kennel assistant alleged she was discriminated against when she fell pregnant and resigned because her employer could not provide alternative duties that did not involve working with cats. Cats' faeces carry the toxoplasmosis infection which is dangerous for a human foetus.
The Tribunal accepted that the employer imposed a requirement on the employee to work with cats. The risk to her unborn child gave the employee no choice but to resign. However, the Tribunal stated that the requirement was reasonable in all of the circumstances.
Evidence presented to the Tribunal by the employer satisfied the Tribunal that the efficiency and effectiveness of running the animal refuge meant that it was impossible to organise the work to ensure that the employee was not exposed to cats. There was no alternative method of work available, as the entire animal refuge was a high risk area for exposure to the toxoplasmosis infection. The complaint was dismissed.
Parker v North Queensland Animal Refuge Inc (1998) EOC 92-926
Sex Discrimination Commissioner Comment: In most cases entire workplaces will not pose a risk to a pregnant woman or her unborn child. Employers should generally consider adjustments to the duties, transferring the employee or providing some form of leave. Employers should also note the high level of evidence that may be required to defend a claim of discrimination such as this.
- Minimum maternity leave provisions are set in industrial relations laws and awards and agreements. Employee entitlements and notice requirements should be checked as they differ from workplace to workplace.
- Minimum leave entitlements for non-casual employees include:
- up to 12 months unpaid maternity leave after 12 months service; and
- access to sick leave when ill during pregnancy.
- Some casuals qualify for unpaid maternity leave.
- Pregnant employees who do not qualify for maternity leave are still protected by the federal Sex Discrimination Act. Employers and employees can negotiate a fair and reasonable period of leave for those who do not qualify for maternity leave.
- Employers and co-workers should not assume that pregnant employees will automatically take 12 months maternity leave, as women take varying amounts. Some women take no maternity leave at all, preferring to utilise paid annual leave or long service leave. " Generally, employees are entitled to return to their former position after maternity leave.
Taking maternity leave
Who has a right to maternity leave?
All employees, except for some casual employees, who have completed 12 months continuous service, are entitled to 12 months unpaid maternity leave. Long-term casual employees are entitled to maternity leave in some States. 
Maternity leave entitlements under other federal, State and Territory legislation, awards and agreements can be more beneficial than the minimum standards in the Workplace Relations Act 1996 (Cth). Where this is the case, they may apply rather than the minimum standard.  Some employers also provide additional benefits that have been individually negotiated or feature in an organisation's employment policy.
What happens when an employee is not entitled to maternity leave?
Where an employee is not entitled to maternity leave, for example an employee with less than 12 months service or some casuals, an employer remains bound by the federal Sex Discrimination Act and must ensure that a pregnant employee is not discriminated against. Dismissal in these circumstances is likely to be unlawful under the federal Sex Discrimination Act.
Therefore while some pregnant employees may not qualify for maternity leave, employers at a minimum must not discriminate unlawfully and may consider:
- providing access to other forms of leave (such as annual leave or leave without pay);
- discussing a reasonable period of absence having regard to the needs of both the employer and the employee; and
- if leave is refused, providing the employee with reasons why the employer is unable to grant leave without pay or why other options are impracticable.
How much notice does the employee need to provide before taking maternity leave?
Federal, State and Territory industrial relations laws, awards and agreements determine the minimum notice for maternity leave.
The federal Workplace Relations Act 1996 requires:
- notice of the employee's intention to take maternity leave ten weeks prior to the estimated date of birth;
- a medical certificate stating the expected date of birth and an application for maternity leave at least four weeks prior to the first day of maternity leave; and
- a statutory declaration saying the employee will be the child's primary caregiver and will not do anything inconsistent with her contract of employment. 
The federal Workplace Relations Act 1996 also states that the required notice of intention to take maternity leave, the provision of documents and application for leave will not be strictly applied if it is not reasonably practicable for an employee to give this notice, for example, if a child is born prematurely. 
Similar provisions exist in other industrial relations laws, awards and agreements, although they vary slightly.  The applicable provisions most beneficial to employees should always be applied.
Generally, there is no obligation for a pregnant employee to take maternity leave if she chooses not to.  Accumulated annual leave or other forms of leave may be used instead of, or in conjunction with, maternity leave, subject to the usual requirements for taking such leave.
Does a medical certificate have to be provided?
Under industrial relations laws, awards and agreements, an employee planning to take any maternity leave must provide a doctor's certificate confirming the pregnancy and the expected date of birth, prior to taking the maternity leave. 
Medical certificates may also be required when an employee requests to transfer to safer or light duties, or to reduce work hours due to a medical condition related to pregnancy, or where sick leave or special maternity leave is taken.
Can an employer require a pregnant employee to commence maternity leave prior to the birth?
Some laws, awards and agreements allow employers to request employees who have applied for maternity leave to commence leave before the birth of the child.  Usually this arises if it can be demonstrated that continuing to work poses a genuine OH&S risk.
If commencing maternity leave disadvantages an employee, the employer must be able to demonstrate that a thorough examination of alternative duties, options for job modification and availability of positions for transfer have been undertaken in consultation with the employee. It would be most unwise, even if State legislation allows it, to require an employee to commence maternity leave early if she had a medical certificate that stated that she was able to continue working.
Can an employer require an employee to take maternity leave after the birth?
Some laws, awards and agreements require employees who are taking maternity leave to take a mandatory period of leave after the birth of the child.  If an employee is disadvantaged by this requirement a complaint under the federal Sex Discrimination Act could still be made. The award or agreement prescribing the mandatory period of maternity leave would then be referred to the Australian Industrial Relations Commission ("the AIRC") for review. 
For more information about alternative forums for complaint click here.
Using sick leave during pregnancy
Pregnant employees who become ill during pregnancy have the same sick leave rights and entitlements as well as the same responsibilities as other employees.
Pregnant employees are entitled to use sick leave to attend regular prenatal medical appointments or special appointments associated with pregnancy complications, subject to the same conditions that apply to sick leave generally. Any restriction on the use of sick leave to attend these appointments, or unreasonable restrictions on actually attending such appointments could amount to discriminatory treatment under the federal Sex Discrimination Act, or a possible breach of an award or a certified agreement. 
Some laws, awards and agreements make provision for unpaid special maternity leave prior to the birth where a medical practitioner certifies it to be necessary.  Special maternity leave is taken instead of, or in conjunction with, paid sick leave and in most cases employees can choose which form of leave to use.
Where sick leave is limited, it is a good idea for pregnant employees, in consultation with their employers, to take the necessary leave in hourly increments rather than whole days. If sick leave runs out and a pregnant employee is still unwell, employers may consider exploring other leave arrangements, such as annual leave, time off in lieu, long service leave or leave without pay in place of sick leave.
Using sick leave during maternity leave
The birth of a child does not, by itself, constitute an illness and does not provide an entitlement to sick leave. However, in some circumstances a pregnant employee or an employee who has just given birth may also be sick. The availability of sick leave in this situation will depend largely on the relevant law, award or agreement covering the given workplace and the pregnant employee's medical certificate. It also depends on how closely the illness and the pregnancy are connected.
In 1999, the South Australian Industrial Relations Commission decided that if a pregnant employee becomes ill and, as a result, the child is born prematurely, the employee might be able to claim sick leave until the child is able to leave hospital, and then commence maternity leave.
SA Commission for Catholic Schools v Association of Non-Government Education Employees SA (1999) 88 IR 130
3.4 Return to work after maternity leave
Under industrial relations laws, awards and agreements as well as the federal Sex Discrimination Act, an employee is generally entitled to return to the position she held prior to commencing leave or to a comparable available position if her original job has ceased to exist. However, where the pregnancy has required some temporary adjustment or accommodation to the normal role prior to commencing maternity leave (such as part-time employment or change in shifts), the employee is entitled to return to the position or job she held immediately prior to the temporary accommodation.
An employee returning from maternity leave may also wish to work part-time or on a job share basis. Awards, agreements, and some State laws specifically allow for a return to part-time work after maternity leave by agreement with the employer. In some situations, an employer may be deemed to have made a discriminatory decision if a reasonable request for part-time work is refused.
|Sex Discrimination Commissioner Comment: There is a growth of precedent in this area. Employers should be aware that in both the industrial relations and anti-discrimination jurisdictions there is an increase in the number of findings that state women returning from maternity leave should have access to part-time employment.
An employee requested a job share arrangement, relying on an award provision that allowed for job sharing arrangements by agreement. The employer rejected the request arguing that job share arrangements were inefficient. The NSW Industrial Relations Commission found that women, as primary care givers to children, may need to seek flexible work arrangements to accommodate their carer responsibilities. The employer's decision was found to indirectly discriminate against the employee on the basis of sex and the Commissioner recommended that the employer trial a job share arrangement.
Federated Municipal and Shire Council Employee's Union of Australia (NSW) v Nambucca Shire Council (NSW IRC 6771 of 1997, 26/8/1998)
A dental clinic charge nurse sought to return to work on a part-time job share basis following adoption leave. Her employer offered her either her old job back on a full-time basis or a part-time job with lesser status and responsibility.
The employer indicated that the position of charge nurse could not be shared, noting that the position had always been performed on a full-time basis.
The Tribunal found that there was a requirement to work full-time imposed on employees undertaking supervisory positions and that this disproportionately affected women and employees with family responsibilities. The requirement was found to be unreasonable, as the employer had failed to conduct any proper analysis or evaluation of the employee's job share proposal.
Bogle v Metropolitan Health Service Board (2000) EOC 93-069
3.5 Preventing unlawful harassment
Pregnant employees are sometimes subjected to behaviour at work that is inappropriate and may be discriminatory. Examples of inappropriate behaviour include constant references to the pregnancy, touching the employee's stomach, badgering the employee about her ability to cope with the workload, or continually questioning the employee about whether she 'really' intends to come back to work. Where such conduct constitutes less favourable treatment of the pregnant employee, it will amount to unlawful discrimination under the federal Sex Discrimination Act. See Appendix A for further information. Employers could be liable for their employees' inappropriate conduct unless they took reasonable steps to prevent it. 
Harassment of pregnant women may also amount to sexual harassment for the purposes of the federal Sex Discrimination Act, where the conduct is of a sexual nature, for example, touching a pregnant woman's abdomen or breasts.  In cases of sexual harassment the person who harasses may be found to be directly liable.  An employer may also be vicariously liable for sexual harassment unless they have taken all reasonable steps to prevent the harassment. 
Appendix B provides advice to employers on how to take adequate steps to prevent discrimination and harassment of pregnant employees.
3.6 Other issues
Miscarriage, still birth or the death of a newborn child
Discrimination against employees who suffer a miscarriage, a still birth or the death of a newborn child is likely to be unlawful under the pregnancy discrimination provisions of the federal Sex Discrimination Act. 
Where a pregnancy has ended due to a miscarriage, or an employee has suffered a still birth or the death of a newborn child, employers can generally cancel maternity leave if it has not commenced, or limit the leave if it has already commenced.  However, employees are usually entitled to special maternity leave or sick leave in such circumstances, subject to the provision of a medical certificate. 
Extended leave after a miscarriage, a still birth or the death of a newborn child is in some cases left to the discretion of the employer.  However, any discrimination, including the denial of entitlements, may be found to be unlawful under the federal Sex Discrimination Act.
Discrimination against employees who terminate a pregnancy may be unlawful under the pregnancy discrimination provisions of the federal Sex Discrimination Act. 
Employees who terminate a pregnancy are entitled to access their sick leave, subject to meeting eligibility requirements under the relevant legislation, award or agreement. Extended leave after a termination is at the discretion of an employer.
Discrimination against employees on the basis that they are undertaking fertility treatment, such as in-vitro fertilisation (IVF), may be found to be unlawful under the potential pregnancy discrimination provisions of the federal Sex Discrimination Act. This may include, for example, denial of training or promotional opportunities on the basis that the employee may become pregnant. 
In considering whether the conduct would be discriminatory for the purposes of the federal Sex Discrimination Act, the marital status of the employee in question is irrelevant to the situation.
The provisions of the federal Sex Discrimination Act relating to pregnancy discrimination do not cover adoption. However, some types of discrimination against employees who have adopted or plan to adopt children could be unlawful discrimination on other grounds.  It would be wise for employers to adopt non-discriminatory practices relating to recruitment, selection, terms and conditions of employment and termination of employment when managing employees who are adopting children.
17. See sections 24 and 58 Anti-Discrimination Act 1992 (NT) and section 28 Anti-Discrimination Act 1998 (Tas).
18. Matters taken into account in assessing reasonableness are contained in section 7B(2) Sex Discrimination Act 1984 (Cth).
These factors should be considered in all the circumstances.
Examples of indirect discrimination
- A policy that employees may apply for a promotion only after two years of uninterrupted service may be indirectly discriminatory to female employees who break their term of service for maternity leave.
- A policy requiring all employees to stand while working at a cash register or counter may be indirectly discriminatory to employees who are pregnant and unable to stand for several hours without a break.
Case example: Indirect discrimination and the requirement to work full-time
A solicitor was nominated for advancement to contract partner. She then advised the firm that she was pregnant. In the following month her arrangements for maternity leave were agreed; she would take three months off work after the birth and then work three days per week on her return. Shortly before her scheduled return several of the firm's partners met with the solicitor and suggested that she reduce her practice and give up a number of her case files. She did not agree to this proposal and the firm then refused her request for a temporary replacement. She returned to work, working three days from the office and two days from home. She subsequently received an unfavourable performance assessment that noted "I do not believe you can run a practice and service clients three days per week." Her partnership contract was not renewed.
The solicitor's complaint was that the statement concerning part-time work was in effect a requirement that she must work full-time to maintain her position and that such a requirement was indirect discrimination on the ground of sex. The firm responded that full-time work was inherent to the position. The Hearing Commissioner found that the requirement to work full-time would inevitably disadvantage women practitioners, especially those aspiring to be partners and that the requirement to work full-time imposed on the solicitor in order to maintain her position was not reasonable in the circumstances. The Hearing Commissioner also noted the importance of the firm having clearly defined maternity leave and part-time work policies to ensure minimum standards of fair and equal treatment, including matters such as changes to personnel or to the practice and decisions about recruitment.
Hickie v Hunt & Hunt (1998) EOC 92-910
Case example: Indirect discrimination and the requirement for permanent employment
The complainant, a teacher, claimed that the requirement for long standing temporary teachers to work one year full-time "probation" in order to obtain permanency was discriminatory. The complainant had taken leave to have a baby and then resigned and worked as a part-time teacher and a relief teacher. In this capacity, she was not entitled to maternity leave when she became pregnant a second time and she left work. She later began teaching part-time, as she was not able to work full-time. The complainant gave evidence about the disadvantages of temporary status including lack of continuity and security of employment, no annual 'performance appraisal' and the preference for permanent staff when professional development opportunities were available. She said permanent employment had the advantages of continuity of employment, entitlement to apply for leave without pay, study leave, plus employment within the central office and promotion, as well as higher status within the school's staff.
The Tribunal found the "probation" requirement not reasonable in view of evidence that temporary teachers were largely very experienced and highly skilled and had already completed two years probation after graduation. The Tribunal found that the requirement was unreasonable in the circumstances and referred to the less favourable position of temporary teachers and the stress the complainant experienced as a result of the discriminatory policy and the comparative advancement of her contemporaries. The Tribunal awarded financial compensation to the complainant.
Speering v Ministry of Education (1993) EOC 92-513
1.5 Employers' liability for others' conduct
Employers can be held liable for discrimination committed by their employees in the course of employment. The federal Sex Discrimination Act makes employers and principals liable for the conduct of their employees or agents.  This is referred to as vicarious liability. Vicarious liability means that if an employee harasses or discriminates against a co-worker, client or customer, the employer can be held legally responsible and may be liable for damages.
The vicarious liability provisions in the federal Sex Discrimination Act also provide employers with a defence. Vicarious liability can be minimised if an employer can show that 'all reasonable steps' were taken to prevent the harassment or discrimination. To reduce or avoid liability, employers could implement policies and practices to minimise the risk of unlawful workplace behaviour occurring and informing staff about established procedures to address complaints of discrimination.
Avoiding vicarious liability
Employers can limit their vicarious liability and should note three important principles that have emerged from vicarious liability cases:
- 'reasonable steps' must be active, preventative measures;
- the obligation to prove that 'all reasonable steps' were taken rests with the employer; and
- lack of awareness that the discrimination or harassment was occurring is not a defence for employers.
The Federal Court has indicated reasonable steps for employers to take to minimise vicarious liability under the federal Sex Discrimination Act. While this information was provided in the context of a sexual harassment matter, the principles apply equally to pregnancy and potential pregnancy discrimination.
Case example: Reasonable steps
An employee alleged sexual harassment by a co-worker. The employer argued that reasonable steps to prevent the harassment had been taken.
The Court said "it may be more difficult for a small employer, with few employees, to put in place a satisfactory sexual harassment regime than for a large employer with skilled human resources personnel and formal training procedures. But the [federal Sex Discrimination] Act does not distinguish between large and small employers". The Court noted that a "simple procedure" involving the preparation of a brief document setting out the nature of discrimination and harassment, the sanctions that attach to it and the course to be followed by an employee who suffers discrimination or harassment should be provided to each employee on recruitment as a matter of routine.
Such a document "would go some distance towards reducing the chance of sexual harassment [or discrimination] at the employer's workplace and a long way toward enabling the employer (in the absence of knowledge of an actual problem) to make out a defence."
Gilroy v Angelov and Botting and Botting trading as C&T Botting Cleaning, (unreported) No. 465 of 2000, Federal Court, 8 December 2000, per Wilcox J.
Principals and their agents
The federal Sex Discrimination Act also makes a principal vicariously liable for the unlawful conduct of agents.  An agent is a person authorised to act on behalf of another (referred to as the principal). If the agent is acting in accordance with the express, implied or ostensible authority conferred on them, the principal is bound by its actions and can be held vicariously liable for its wrongs. Depending on the particular situation, agents in the area of employment could include:
- volunteer workers;
- recruitment agents;
- holders of unpaid honorary positions;
- boards of directors; or
- contractors and consultants.
1.6 Which actions in the workplace can be discriminatory?
It is unlawful to discriminate on the ground of pregnancy or potential pregnancy:
- in the arrangements made for and in determining who should be offered employment, engaged as a commission agent or partner or the terms or conditions on which employment, engagement as a commission agent or partnership is offered; 
- in the terms and conditions provided to the employee, commission agent, contract worker or partner; 
- by denying or limiting access to opportunities for promotion, transfer, training or to any other benefits associated with the employment to the employee, commission agent, contract worker or partner; 
- by dismissing the employee, terminating the engagement of the commission agent or contract worker, or expelling a partner;  or
- by subjecting the employee, commission agent, contract worker or partner to any other detriment. 
What are 'terms and conditions' of employment?
'Terms and conditions' of employment may be found in agreements, policies and practices that govern the employment relationship. These may be implied by law or arise from:
- a contract of employment or appointment (which can be written, verbal or a combination of both);
- the terms set out in awards and agreements;
- employment policies,  whether in staffing manuals or accepted custom and practice, such as a policy on uniforms;  or
- day to day decisions made by an employer  about the workplace and individual employees. 
What is limiting or denying access to benefits?
The term 'benefits' has been defined broadly, and may include:
- loss of income, including "in kind" income such as access to housing, cars, telephones, salary packages;
- opportunities for promotion, transfer or training;
- intangible benefits such as freedom from physical intrusion or harassment;
- voluntary benefits that may not be enforceable at law, such as voluntary severance payments;
- performance and bonus payments; or
It is not necessary to prove that the pregnant or potentially pregnant employee would have received a particular benefit, such as a promotion, if the discrimination had not occurred. It is enough to show that the opportunity to apply for the benefit was denied, to show that discrimination occurred. 
Workplace examples: Denial or limitation of access to benefits
Performance reviews: Where a performance review is linked to salary increases or promotional opportunities, failing to provide a pregnant employee with a performance review at the same time as other staff on the basis that the pregnant employee will be commencing maternity leave soon, may be unlawful discrimination. If the employee is on maternity leave when performance reviews are conducted, failing to make arrangements to assess the portion of the annual review period that the employee worked, on either their return or during maternity leave, may also be unlawful discrimination.
Voluntary severance payments: An employer who voluntarily provides severance payments to retrenched employees would generally need to provide the benefit on the same basis to all employees in the same situation, for example, all retrenched employees irrespective of whether they are pregnant or on maternity leave.
Conciliated complaint example: Failing to provide a pregnant employee with a performance review
In March an existing employee was offered a new position as an 'after-hours' consultant, with the idea that she could work from home. The employee claimed that, although the employer knew she was pregnant at the time of offering her the job, the offer was withdrawn in May on the grounds that she was unsuitable for the position as she was pregnant and that working from home would be a worker's compensation risk to the company. She continued to work in her old position, attending the workplace. The complainant also claimed she was denied a pay increase and bonus from an annual performance review in September as a result of her impending maternity leave break in October. A conciliation agreement was reached between the parties and the woman received financial compensation and a written work reference.
HREOC conciliation, 1996.
What does 'any other detriment' mean?
'Any other detriment' has been interpreted broadly by Courts and Tribunals to include a disadvantage of any kind so long as it is not a trivial disadvantage.  Employers are advised to carefully consider the disadvantages that pregnant employees may suffer, due to existing or new policies, practices and procedures. Some framework considerations include:
- detriment can comprise economic loss such as lost salary or promotional opportunities;
- detriment can also include non-economic loss such as loss of reputation, the impact of a hostile work environment, injury to feelings, humiliation, distress and other consequences to health and well being;  or
- in some instances, the personal preference of an employee may be relevant,  for example, an employee's objection to being transferred to a new position during her pregnancy may be relevant in determining if she has suffered detriment.
Examples of detriment
- employer actions that have adverse consequences for the health and well being of the employee or her child;
- financial loss through denial of promised promotion or pay increase;
- financial loss through denial of casual shifts or denial of overtime;
- financial loss and loss of status through demotion upon return to work;
- termination of employment;
- personal inconvenience or additional costs through transfer to a work location further from the complainant's home;
- unreasonable refusal to consider a pregnant employee's request to work part-time;
- loss of status or negative impact on career advancement through relegation to less interesting and fulfilling 'back room' duties;
- withdrawal of an offer of employment;
- exclusion from consideration for promotion or permanent employment or individual or team development opportunities;
- scheduling a regular group meeting at a time when a pregnant employee must attend a regular medical appointment;
- bullying, harassment and humiliating behaviour, acts and gestures that create a hostile work environment;
- alteration of the terms or conditions of the job without the agreement of the employee;
- failure to accommodate the physical requirements of a pregnant employee, for example, through not providing seating or a maternity uniform;
- a standard policy that all pregnant workers move to 'light duties' irrespective of individual circumstances;
- not providing information on maternity leave; and excluding pregnant women from office activities.
Case example: Non-economic detriment
The complainant was transferred to another position on her return from maternity leave. While she was on maternity leave the department in which she had been working was restructured. She was not told of the transfer until the day she returned to work. The complainant alleged that she was arbitrarily returned to a lesser position and that this constituted detriment because the duties did not relate to her area of specialisation, her number of clients dropped drastically and there was not the same scope for interstate travel.
The Hearing Commissioner decided that the complainant should have been consulted about the changes affecting her role in the department. The fact that the changes did not involve salary or conditions did not prevent a finding of discrimination on the basis that the 'lesser position' was detrimental to the complainant. The Hearing Commissioner found that the complainant's pregnancy must have been a factor leading to the arbitrary change in the complainant's duties. It was her pregnancy that led to her absence on leave. If she had not been on leave, she would have been consulted about the restructure, irrespective of whether or not her transfer to other duties would have taken place. The complainant was awarded financial compensation.
Gibbs v Australian Wool Corporation (1990) EOC 92-32
2. Does the federal Sex Discrimination Act cover your employment relationship?
Federal Sex Discrimination Act coverage of pregnancy and potential pregnancy discrimination includes:
- full-time employees;
- part-time employees;
- casual employees;
- shift workers;
- seasonal employees;
- employees on fixed-term contracts;
- apprentices and trainees;
- commission agents;
- temporary employees;
- employment of partners in partnerships of six or more persons; and
- the services of employment agencies.
2.1 Casual employees
Some casual employees do not have a legislative right to unpaid maternity leave  or other leave entitlements and have restricted access to the unfair dismissal and unlawful termination provisions of the Workplace Relations Act 1996 (Cth). 
Courts and Tribunals have adopted various tests for determining entitlements of casual employees. The Full Bench of the AIRC has held that the nature of the actual employment arrangements under which an employee is employed determines whether they are casual employees.  More recently, the Full Federal Court decided that the status (or legal character) of employment is determined by the original contract and changes indicating that work has become more regular are irrelevant.  This means that the Court can look at the terms of the original contract without necessarily considering any other factors of the employment.
Despite this, all casual and other temporary employees are fully covered by the federal Sex Discrimination Act.  This means that if a casual employee is dismissed or treated less favourably or suffers other forms of detriment as a result of her pregnancy or potential pregnancy, she is entitled to pursue a claim for unlawful discrimination under the federal Sex Discrimination Act.
While a casual employee may not have a legislative entitlement to maternity leave, employers should be aware of discrimination issues for casual employees. Employers could avoid discrimination by:
- discussing a reasonable period of absence, having regard to the needs of both the employer and the employee; and
- if leave is refused, providing the casual employee with reasons why the employer is unable to grant leave without pay or why other options are impracticable.
If a regular casual employee is not granted a reasonable period of leave after the birth of her child enabling her to return to her regular casual role, the employer may be subject to a claim of pregnancy discrimination. Well documented and well grounded reasons for not granting a period of leave will assist the employer if a complaint is made.
Sex Discrimination Commissioner Comment: NSW, Queensland and Tasmania have moved to allow casual employees access to parental leave. The AIRC is considering whether to extend federal award entitlements to parental leave to regular casual employees. Employers should check whether the outcome affects awards applying at their workplace.
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2.2 Employees on fixed short-term contracts
Fixed short-term contracts are often for a duration of less than 12 months, however they may cover longer periods. It is not uncommon for a person to be employed on a series of short-term contracts, with each term intended to be a new term, independent of the previous term.
Failing to renew or terminating an employee's fixed-term contract because of her pregnancy or potential pregnancy is unlawful. However, a failure to renew may not be discriminatory if the contract is for a set period of time or a one-off specified task with a deadline and the pregnant employee will be absent for a significant part of the time. Employers wishing to avoid discrimination or acts that appear to discriminate should ensure that all other avenues are considered before a contract is terminated, and that written documents supporting the relevant decision are kept.
A short-term contract worker who has 12 months service with the employer is eligible for maternity leave, although a period of maternity leave will not extend beyond the expiry date of the short-term contract.
Where an employer is using short-term contracts to avoid the rights of pregnant or potentially pregnant employees, such as reappointment or maternity leave, the employer is likely to be in breach of the federal Sex Discrimination Act.
2.3 Unpaid workers
The federal Sex Discrimination Act does not expressly cover unpaid workers. However, unpaid workers may be covered if they fall within the definition of an 'employee'. Employers and employees should consider the individual circumstances of each case.
An 'employee' is someone who has an employment contract with an employer. An employment contract need not be in writing. An employment contract consists of a mutual exchange of benefit and an intention to create a legally binding relationship. Although a mutual exchange of benefit generally consists of work in exchange for remuneration, a mutual benefit may also be found when the worker is not being paid. For example, where a person is required to perform a certain amount of work experience to obtain qualifications, the benefit exchanged can be a period of unpaid work in exchange for supervision and experience. 
It is also possible that if unpaid workers do not fall within the ambit of an employment relationship, they may fall within the provision of the federal Sex Discrimination Act that prohibits discrimination on the basis of pregnancy or potential pregnancy in the provision of goods, services or facilities, whether for payment or not.  Refusing to provide pregnant or potentially pregnant unpaid workers with access to facilities that are accessed by non-pregnant unpaid workers may be unlawful discrimination.
The provisions of the federal Sex Discrimination Act dealing with Commonwealth laws and programs cover workers participating in unpaid work schemes initiated, funded or administered by the Commonwealth Government.  This includes the 'Work for the Dole' Scheme and the Community Development Employment Projects Scheme.
2.4 Commonwealth laws and programs
The federal Sex Discrimination Act makes it unlawful for an individual or organisation exercising power under a Commonwealth law or program to discriminate on the ground of pregnancy or potential pregnancy.  The federal Sex Discrimination Act would apply to the way in which a Commonwealth Government program is conducted, such as in the allocation of places for a training program and whether a pregnant or potentially pregnant person is offered a place.
2.5 Licence agreements and franchise agreements
While currently it is unlikely that a licensor or franchisor (the individuals or organisations controlling the whole chain of franchises) could be deemed an employer under the federal Sex Discrimination Act, there may be some circumstances where they may be held vicariously liable.
Generally, when a franchise is purchased the franchisee not the franchisor is the employer and therefore legally responsible for the employees. The franchisor may however be held responsible when:
- the franchisor is seen to be contractually retaining employment rights or responsibilities over employees within the franchise  (this may be evident from the content of the franchise agreement or the role of the franchisor in establishing employment directions and policies towards franchise employees); or
- the franchisor is seen to cause, instruct, induce, aid or permit the franchise, the franchisee or a franchise employee to do a discriminatory act. 
For example, if a franchisor directs franchise employees to continue to wear a uniform while pregnant, but does not provide uniforms to accommodate the changing shape of a pregnant woman, the franchisor and the franchisee could be held jointly liable for this act, which is likely to be unlawful pregnancy discrimination.
3. Exemptions and special measures
Not all unfair treatment is unlawful. Unlawful discrimination occurs when the discriminatory act, and the individuals or organisations involved in the discriminatory act, are covered by the federal Sex Discrimination Act and an exemption or an exception does not apply.
3.1 Permanent exemptions 
There are a number of exemptions under the federal Sex Discrimination Act that exclude certain acts and practices from coverage. These include:
- rights or privileges granted to a woman connected with pregnancy or childbirth, for example, maternity leave and transfer to safe work during pregnancy; 
- the employment of staff performing residential domestic duties; 
- the employment of staff at educational institutions founded on doctrines, tenets, beliefs or teachings of a particular religion or creed, where the discrimination occurs in good faith to avoid injury to the religious susceptibilities of adherents to that religion; 
- discrimination on the ground of sex where it is a genuine occupational qualification of the position to be a person of a particular sex;  and
- acts which comply with orders, awards or certified agreements. 
3.2 Temporary exemptions
The federal Sex Discrimination Act gives the Human Rights and Equal Opportunity Commission power to grant temporary exemptions from the operation of the federal Sex Discrimination Act. The effect of an exemption is that the actions or circumstances covered are not unlawful under the federal Sex Discrimination Act while the exemption remains in force. Exemptions are limited in time and scope. For guidance on how to apply for a temporary exemption see the Human Rights and Equal Opportunity Commission's Guidelines on Applications for Temporary Exemption under the federal Sex Discrimination Act on the Commission's website at www.humanrights.gov.au.
3.3 Special measures
The federal Sex Discrimination Act provides that it is not discriminatory to take special measures to achieve substantive equality between women who are pregnant or potentially pregnant, and people who are not pregnant or potentially pregnant.  One example of a special measure to achieve equality between pregnant women and non-pregnant people would be providing a mentoring program specifically for pregnant women. For further information, see the Human Rights and Equal Opportunity Commission's 1996 Guidelines for Special Measures under the Sex Discrimination Act 1984
1. See discussion in the Pregnancy Report, HREOC, 1999, paras 4.11-4.17.
2. Bear v Norwood Private Hospital (1984) EOC 92-019 at 75,467 found these physical conditions to be characteristics appertaining to pregnant women. Section 7 Sex Discrimination Act 1984 (Cth) includes in the definition of pregnancy discrimination characteristics appertaining to pregnant women or a characteristic generally imputed to pregnant women.
3. Milevski v Boral Building Services (1994) unreported, HREOC, 1 September 1994.
4. Bear v Norwood Private Hospital (1984) EOC 92-019.
5. Gibbs v Australian Wool Corporation (1990) EOC 92-327 at 78,220.
6.Milevski v Boral Building Services Pty Ltd (1994) unreported, HREOC, 1 September 1994.
7. Section 4B Sex Discrimination Act 1984 (Cth).
8. Section 7(1) Sex Discrimination Act 1984 (Cth).
9. Waters & Ors v Public Transport Corporation (1991) EOC 92-390; R v Birmingham City Council; Ex parte Equal Opportunities Commission (1989) 2 WLR 520 at 525-526.
10. Section 7(2) Sex Discrimination Act 1984 (Cth).
11. Section 7B Sex Discrimination Act 1984 (Cth).
12. For a more detailed discussion, see the Pregnancy Report, HREOC, 1999, paras 4.31-4.36.
13. Section 7B(1) Sex Discrimination Act 1984 (Cth).
14. Section 7B(2) Sex Discrimination Act 1984 (Cth).
15. Section 106 Sex Discrimination Act 1984 (Cth).
16. Section 106 Sex Discrimination Act 1984 (Cth).
17. Sections 14(1), 15(1), 17(1) Sex Discrimination Act 1984 (Cth).
18. Sections 14(2)(a), 15(2)(a), 16(a) Sex Discrimination Act 1984 (Cth).
19. Sections 14(2)(b), 15(2)(b), 16(c), 17(3)(a) Sex Discrimination Act 1984 (Cth).
20. Sections 14(2)(c),15(2)(c), 16(b), 17(3)(b) Sex Discrimination Act 1984 (Cth).
21. Sections 14 (2)(d), 15(2)(d), 16(d), 17(3)(c) Sex Discrimination Act 1984 (Cth).
22. Appeal by the Commissioner of Police (1984) EOC 92-017.
23. See discussion in the Pregnancy Report, HREOC, 1999, para 12.62.
24. In this context, an employer would include an individual granted the right to represent the mind and will of the employer, such as a supervisor or manager.
25. O'Callaghan v Loder & Anor (1984) EOC 92-023.
26. Glynn v Gillette Australia Pty Ltd, unreported, NSW Equal Opportunity Tribunal, No 13/1996, 10 September 1996.
27. Leonard v Youth Hostels Association of Australia (1995) EOC 92-763 at 78,651. See also O'Callaghan v Loder & Anor (1984) EOC 92-023; Langley v University of New South Wales (1984) EOC 92-018 at 75,467.
28. Hill v Water Resources Commission (1985) EOC 92-127.
29. Dopking v Department of Defence (1995) EOC 92-669; Sullivan & Ors v Department of Defence (1992) EOC 92-421 at 79,005.
30. NSW and Queensland have introduced a right to unpaid maternity leave for employees engaged as regular casuals for at least two years with their employer: section 16(1)(a) Industrial Relations Act 1999 (Qld); section 53(1) Industrial Relations Act 1996 (NSW).
31.Casual employees are excluded from making a complaint of unfair dismissal or unlawful termination under the Workplace Relations Act 1996 (Cth) if they have been employed for less than 12 months: regulations 30B(1)(d) and 30B(3) Workplace Relations Regulations 1996 (Cth).
32. Australian Municipal, Administrative, Clerical and Services Union v Auscript (1998) 43 AILR 3-756.
33. Community and Public Sector Union v State of Victoria  FCA 759.
34. Section 4 Sex Discrimination Act 1984 (Cth) defines 'employment' to include temporary employment. This classification includes casual employees. For a full discussion of the definition of casual employment and the issues surrounding casuals, see the Pregnancy Report, HREOC, 1999, paras 10.5-10.39.
35. Section 14 Sex Discrimination Act 1984 (Cth). An employee on a short-term contract may also have access to protection under unfair dismissal and unlawful termination laws under s170CK Workplace Relations Act 1996 (Cth) if the contract is terminated due to pregnancy.
36. Morian v South West Area Health Service (1996) EOC 92-799.
37. Section 22 Sex Discrimination Act 1984 (Cth).
38. Section 26 Sex Discrimination Act 1984 (Cth).
39. Section 26 Sex Discrimination Act 1984 (Cth).
40. Section 106 Sex Discrimination Act 1984 (Cth).
41. Section 105 Sex Discrimination Act 1984 (Cth).
42. For further information about permanent exemptions to the Sex Discrimination Act 1984 (Cth), see the Pregnancy Report, HREOC, 1999, paras 5.37-5.58.
43. Section 31 Sex Discrimination Act 1984 (Cth).
44. Section 14(3) Sex Discrimination Act 1984 (Cth).
45. Section 38(1) Sex Discrimination Act 1984 (Cth); see also section 38(2) Sex Discrimination Act 1984 (Cth).
46. Section 30 Sex Discrimination Act 1984 (Cth).
47. Section 40(1) Sex Discrimination Act 1984 (Cth).
48. Section 7D(1)(c) and (d) Sex Discrimination Act 1984 (Cth).