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Pregnant Brain – The Rise of Pregnancy Related Discrimination

pregnancy discrimination

In this day and age do some employers really believe the IQ of a pregnant woman halves?

As the mother of a small child I am lucky to have flexible employment arrangements and with five babies being born in the Attwood Marshall office to employees this year to date we are all counting our blessings here in that regard.

Toni Thornton, a former Queensland state manager of Investment Bank JB Were is not so lucky. She is bringing proceedings against her former employer claiming she was sexually harassed and bullied to stand down from her job after taking maternity leave to have her two children. Ms Thornton claims, amongst other things in court documents, that she was told by her former employer that “a woman’s IQ halves when she falls pregnant”.

This isn’t the first time this issue has been on the agenda:

In November 2013 the Fair Work Ombudsman announced that for the first time in its history it received more complaints about pregnancy related discrimination than complaints related to discrimination on the grounds of mental or physical disability.

In July 2014 the Human Rights Commission released the Supporting Working Parents: Pregnancy and Return to Work National Review Report (Report). The Report found that one in two (49%) mothers and over a quarter (27%) of the fathers and partners surveyed reported experiencing discrimination in the workplace during pregnancy, parental leave or on return to work.

To prevent such widespread discrimination, employees need to be aware of their rights so they can identify pregnancy discrimination and put a stop to it. In general, if a woman has been working regularly with the same employer for 12 months prior to pregnancy she has the right to take maternity leave and return to her job. If that job does not exist at the end of the maternity leave or has changed the employee must be offered a suitable available job nearest to their old job in pay and status. There are also special rules for employees on fixed term contracts.

Pregnancy discrimination can take the form of the following:

  • failing to let an employee take parental leave;
  • declining to keep a job open;
  • demotion during pregnancy or on return from parental leave;
  • denying training because an employee is pregnant; or
  • refusing to promote an employee because they are pregnant.

In addition, it is also illegal for an employer not to hire an employee because they think they might become pregnant or dismiss or retrench an employee because they are pregnant.
Employees should be aware of these matters and if they have lost their job, apply within 21 days to the Fair Work Commission for recourse.

Conversely, Employers should seek expert legal assistance in drafting policy or in developing staff training programs dealing with pregnancy and other forms of discrimination. It is prudent to have these policies in place from the outset so that the employer is not exposed to any discrimination claims.

Ms Thornton’s case is proceeding in the Federal Court. It will be interesting to keep an eye on the case. One can only hope it will help shine the spotlight on the issue.

If you have been discriminated against, or are an employer who requires assistance drafting policy on these matters, give our expert employment and commercial lawyers a call to assist you.

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Jeff Garrett

Jeff Garrett

  • Legal Practice Director
  • Direct line: 07 5506 8201
  • Mobile: 0419 304 174
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