Pregnancy Discrimination: it’s against the law – or is it?

Image taken from Qsimple’s photostream on Flickr under Creative Commons License

Publicly available literature about sex and pregnancy discrimination in NSW promotes a glossy picture. It is illegal: end of problem. The ADB fact sheet states that sex discrimination is against the law:

  • in employment — when you apply for a job or for a licence or registration to perform a job, when you are at work, or when you leave a job;
  • when you get or try to get most types of goods or services — for example, from shops, banks, lawyers, government departments, the police, public transport, local councils, doctors, hospitals and other medical services, hotels, sporting venues and entertainment venues;
  • when you apply to get into or study in any State educational institution, which includes any government school, college or university. Sexual harassment is also against the law in independent (private) educational institutions, but other types of sex discrimination are not;
  • when you rent accommodation such as houses, units, flats, hotel or motel rooms and commercial premises; and
  • when you try to enter or join a registered club, or when you get services from one. A registered club is a club that sells alcohol or has gambling machines.

These sound like good protections. However, there are two issues. Firstly – in reality the law does not often protect women. Most discrimination against pregnant women happens in the workplace. The Women’s Employment Rights Project submission (‘A Pregnant Pause’) to the Paid Maternity, Paternity and Parental leave Enquiry shows many examples where ‘Employers can, and do, easily flout the existing regulations, which are meant to provide rights and protections to women during pregnancy’.

Anti-Discrimination Board statistics showed that in 1997/1998 to 2002 there had been a 150% increase in complaints of pregnancy discrimination. Perhaps pregnancy discrimination is actually on the rise or perhaps more women are simply taking a stand to report it. Nevertheless, it is a serious issue. The case studies in ‘A Pregnant Pause’ show that current legislation is not enough to protect women against pregnancy discrimination. There are clear examples of employers who flout measures in the Act designed to protect women, but more disturbingly there is a second issue with pregnancy discrimination in NSW: the Anti-Discrimination Act actually legitimises pregnancy discrimination in certain circumstances. Yes – you heard right – the Anti-Discrimination Act actually allows employers to legally discriminate against pregnant women!

Late last year I was astounded to come across Section 25 1A and 2A of the NSW Anti-Discrimination Act 1977 which states that:

25 Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of sex:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(1A) Nothing in subsection (1) renders unlawful discrimination by an employer against a woman on the ground of sex if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman is pregnant.

(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

(2A) Nothing in subsection (2) (c) renders unlawful discrimination by an employer against a woman on the ground of sex in respect of the dismissal by an employer of a woman who is pregnant if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman was pregnant, unless, at that date, the woman did not know and could not reasonably be expected to have known that she was pregnant.

(3) Subsections (1) and (2) do not apply to employment:

(a) for the purposes of a private household,

(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or

(c) by a private educational authority.

(4) For the purposes of subsection (3) (b), a corporation shall be regarded as the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

—————————————-

The Act is legalising discrimination against pregnant women applying for jobs! I could not believe that in 2012 we would have such antiquated legislation!

Recently the ABC Radio Program Lifematters aired a section on pregnancy discrimination with the Sex Discrimination Commissioner Elizabeth Broderick.  She led listeners to believer that everyone was covered by the (Commonwealth) Sex Discrimination Act 1984 under which it is unlawful to discriminate against a pregnant (or potentially pregnant) woman in determining who to offer employment to.

In some circumstances the Commonwealth Act would override the State Act however the Commonwealth Act does not apply to employees of a State. The NSW Public Service employs approximately 444000 people (almost one quarter of all public sector employees in Australia) and in 2010 employed 11.09% of all employed people in NSW (Public Administration and politics in NSW: A statistical profile 2012). 61% (approx 268000!) of the NSW Public Sector are women, and thus potentially subject to discrimination under Section 25 1A or 2A.

Very few people seem to be aware of Section 25 1A and 2A in the NSW Anti-Discrimination Act 1977 and most are flabbergasted to find that these sections exist. It is likely that these sections have not often been, and will not be used often in the future. Thankfully most sections of our society can identify them as being discriminatory and would not touch them with a barge poll. But regardless, it ought to be a huge concern that our legislation allows for such blatant discrimination against women.

Does this get your goat? Do you find it rather unfathomable that our legislation allows for this?

If so, consider writing to your local MP and/or the Minister for Women to let them know that in 2012 no form of pregnancy discrimination ought to be legal!

Ms Pru Goward, MP

Minister for Women
Level 34 Governor Macquarie Tower
1 Farrer Place
SYDNEY NSW 2000

office@goward.minister.nsw.gov.au

This post was first published on Settle Petal – the new feminist blog. Check it out  and posts on a whole range of important (and sometimes flabbergasting issues!) at www.settlepetal.org.au

Image from http://www.flickr.com/photos/qsimple/6784812456/sizes/l/in/photostream/ with thanks to SimpleQ.

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About greenleftyidealist

Green, left and idealistic. A mum, a runner, a rogainer, a public servant and wanna be writer. My dog is golden.
This entry was posted in equity, feminism, parenting, women, work and tagged , , , , . Bookmark the permalink.

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