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Pregnancy and parental discrimination in the modern workforce

29/10/2020

Pregnancy discrimination has long been illegal in Australia and it is one form of discrimination that social rejects most strongly. However, notwithstanding this rejection, there is still significant amounts of pregnancy discrimination in the workforce.

Thankfully the obvious forms of pregnancy discrimination are rare, although still present – for example, in Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 a pregancny employee was told it was ‘was not a good look’ for customers to see pregnancy woman working and she could no longer conduct photoshoots – and the more prevalent forms of pregnancy discrimination are more subtle.

Discrimination can start with comments by supervisors, such as that parental leave was a ‘holiday’ or that an employee’s need to leave to collect a child was a burden on other employees. This conduct is illegal however it is often difficult for an employee to obtain a remedy because making a complaint can be seen as rocking the boat.

Further, there can often be difficulties in returning to work. Parents have a right to seek flexible working arrangements and primary carer’s who previously worked full time often seek a part-time arrangement when returning from parental leave. This can often be met with resistance, and while requests for flexibility can be rejected with genuine business grounds often employers are only concerned with general convenience. Sometimes arrangements can be implemented but returning employees are punished with effective demotions as employer push the part-time employee into a more junior role while passing more senior duties to another employee.

Pregnancy discrimination is solely applied against women and it is often women that bear the brunt of discrimination over parental responsibilities, although it is possible to discriminate against a male parent.

These discriminatory attitudes are rarely part of company policy, especially in larger organizations, however no matter what the pristine policies say it is the application of policies by middle management that has most effect. So while a large company might assert that it supports flexibility for returning parents, if a middle manager holds discriminatory biases the employee will be treated less favourably.

The most common form of pregnancy discrimination, however, comes in the form of redundancies during or after parental leave. While employers rarely set out with the stated intention of removing employees on the leave, the effect of a restructure process often dis-favours absent mothers. The company may implement a restructure and not tell the employee so they find out their role doesn’t exit when they seek to return to work. Had the employee been consulted during the process they may have been able to secure a role, and in any event the employer has an obligation to hold open the employee’s role (or a similar role) during their absence.

What can also occur is that an employer puts in place a temporary arrangement that it then favours. So an employee may go on leave and have duties distributed amongst other employee and/or a temporary employee. If an employer favours this arrangement they then advise the employee on leave that their role no longer exists – which is technically true however clearly motivated by pregnancy and/or maternity leave.

Whilst it can be difficult to obtain a remedy during employment because of the fear of retribution for making a complaint there are options for employees who suffer from discrimination. If the discrimination results in dismissal, either by way of redundancy or otherwise, the employee has clear avenues to bring a claim and should consult with a lawyer.