Pregnancy discrimination in the workplace is unlawful under Australian law. Employers must understand their legal obligations, and employees should know their rights if they experience unfair treatment due to pregnancy or parental responsibilities.
In this article, our employment lawyers, explain what pregnancy discrimination is, what the law says, and what employees can do if they feel they are treated unfairly due to pregnancy or parental responsibilities. We also outline tips for employers to avoid discriminating against pregnant employees.
Key Takeaways
Pregnancy discrimination is unlawful under the Sex Discrimination Act 1984 and the Fair Work Act 2009.
Discrimination can occur before, during, or after pregnancy – including during parental leave and return to work.
Employees have rights to unpaid parental leave, flexible work arrangements, and protection from adverse action.
Employers must implement lawful policies, provide training, and avoid discriminatory conduct.
Legal updates in 2024 enhanced parental leave entitlements and strengthened anti-discrimination protections.
What is Pregnancy Discrimination?
Pregnancy discrimination happens when an employee is treated unfairly because they are pregnant, might become pregnant, or have recently given birth. This includes being overlooked for promotion, losing shifts, being demoted, or being dismissed.
Even well-meaning actions, like moving a pregnant employee off customer-facing duties “for her own good”, can amount to discrimination if the result is unfavourable treatment.
Direct vs Indirect Discrimination
Direct discrimination involves clear, unfavourable treatment due to pregnancy
Indirect discrimination occurs when a seemingly neutral policy or requirement disadvantages pregnant employees and is not reasonable in the circumstances
For example, a rule requiring all employees to lift heavy boxes could be indirectly discriminatory if pregnant employees are medically advised not to lift heavy items and no reasonable adjustments are offered.
Key Legal Protections for Pregnant Employees in Australia
Pregnancy discrimination is prohibited under several key laws:
- Sex Discrimination Act 1984 (Cth) – makes it unlawful to discriminate based on pregnancy, potential pregnancy, and family responsibilities
- Fair Work Act 2009 (Cth) – protects against adverse action due to pregnancy and provides specific workplace rights such as unpaid parental leave, safe job transfers, and flexible working arrangements
- State and Territory Laws – for example, the Anti-Discrimination Act 1991 (Qld) and Equal Opportunity Act 2010 (Vic), which also prohibit discrimination on the ground of pregnancy
These laws operate together to give pregnant employees comprehensive legal protection in the workplace.
Employers can learn more about employees with parental responsibilities in our guide.
Recent Legal Changes (2024)
Recent changes to the Fair Work Act have offered stronger protection for pregnant employees, including:
Increased flexibility for unpaid parental leave
Stronger procedural fairness requirements before changing roles post-leave
Reinforced protections for casuals and fixed-term employees
Summary of Legal Rights of Pregnant Employees
Pregnant employees in Australia have several key entitlements under the Fair Work Act:
- Up to 12 months of unpaid parental leave (with a right to request an extra 12 months)
- The right to return to the same job or a comparable role after parental leave
- Special maternity leave for pregnancy-related illness or loss
- Transfer to a safe job if the current job is unsafe during pregnancy
- Paid or unpaid leave if no safe job is available
- Protection from being fired or treated unfairly because of pregnancy or parental leave
How Employers Can Avoid Pregnancy Discrimination
To comply with the law and support pregnant employees, employers should:
- Treat pregnant employees fairly and equally, even when they’re on parental leave
- Provide reasonable adjustments, such as flexible hours or alternate duties
- Transfer the employee to a safe job if required
- Avoid adverse actions linked to pregnancy (e.g. demotions or dismissals)
- Keep accurate records of performance and decisions unrelated to pregnancy
- Offer clear anti-discrimination employees, complaint procedures and anti-discrimination training to key staff
When an Employers Actions May Be Lawful
Certain actions may be lawful if:
- The role has inherent requirements the pregnant employee can no longer perform, and no reasonable adjustments can be made
- There are genuine safety risks that cannot be mitigated
- The action is permitted by other laws (e.g. health and safety legislation)
However, these exceptions are narrow. Employers must always try to accommodate the employee first.
Employers can learn more about defending discrimination claims in our guide.
Real-Life Pregnancy Discrimination Cases
Sagona v R & C Piccoli Investments Pty Ltd
A long-time pregnant employee was demoted, denied flexible work, and later dismissed while on parental leave. The Court found this was unlawful discrimination and adverse action under the Sex Discrimination Act and Fair Work Act. Ms Sagona was awarded over $164,000 in compensation.
Fair Work Ombudsman v A Dalley Holdings Pty Ltd
An employer dismissed a pregnant worker who had requested unpaid parental leave under the National Employment Standards. The Court held this was adverse action and imposed a $17,820 penalty on the employer.
Frequently Asked Questions
Does an employee have to tell their employer they're pregnant?
No, but the employee must give notice to the employer if they want to take parental leave. It’s generally recommended to inform the employer early to allow planning and ensure a safe work environment.
Can I be fired for being pregnant?
No. It is unlawful for your employer to terminate your employment because you are pregnant or planning to take parental leave.
Employers may still terminate your employment if the dismissal is unrelated to your pregnancy and the employer can demonstrate valid, lawful grounds.
If you believe you’ve been unlawfully dismissed, please to our general protections employment lawyers.
What should I do if I think I’ve been discriminated against?
If you think you’re experiencing discrimination, it’s important to:
Keep records (emails, meeting notes, text messages)
Raise your concerns with your employer first
Seek legal advice or lodge a complaint with:
The Fair Work Ombudsman
The Australian Human Rights Commission
Your state anti-discrimination body
What if my job becomes unsafe during pregnancy?
You have the right to be transferred to a safe job. If none is available, you may be entitled to paid or unpaid leave depending on your circumstances.
Can my employer change my duties while I’m pregnant?
Only if your usual duties are unsafe and you agree to the change, or if there’s medical evidence supporting a safe job transfer.
