Pregnancy or family responsibilities

Legislation:

Equal Opportunity Act 1984 (SA)
Sex Discrimination Act 1984 (Cth)

Areas of discrimination on basis of pregnancy under SA law

In South Australia it is illegal under the Equal Opportunity Act 1984 (SA) to discriminate on the grounds of pregnancy. Although there is provision against discrimination on the grounds of family responsibilities under Commonwealth law, this type of discrimination does not exist under SA law.

The following areas of discrimination on the basis of pregnancy are unlawful:

education
employment
accommodation
interest in land
conferral of qualifications
provision of goods and services
membership of associations
advertising

Exemptions

Employment in a private household
Discrimination based on the fact that a woman would not be able to adequately perform work reasonably required of her or respond to emergencies without endangering herself, the unborn child or others
Disposal of land by way of will or gift
Accommodation:
- where person who provides the accommodation (or a near relative) will live on the premises provided it is for no more than 6 other persons
- not for profit organisations providing accommodation for particular groups of persons
Charities
The granting of rights and privileges to women in connection with childbirth or pregnancy
Religious bodies: ordination and training of priests, ministers, etc.

Areas of discrimination on basis of pregnancy and family responsibilities under Commonwealth law

Pregnancy

Discrimination on the basis of pregnancy under the Commonwealth legislation also includes potential pregnancy, that is the fact that a woman is capable of bearing children or has expressed a desire to become pregnant.

Discrimination on the basis of pregnancy (including potential pregnancy) is prohibited in the following areas:

employment (applies also to partnerships, contract workers and employment agencies)
qualifying bodies (i.e. bodies that award professional and trade qualifications)
registered organisations: see Workplace Relations Act, 1996 (Cth)
education
goods and service
accommodation
land
incorporated clubs and associations
administration of Commonwealth laws and programs
requests for information: it is unlawful to request information if a person who is not pregnant or potentially pregnant would not be required to provide the same information in the same or similar circumstances

Exemptions

Accommodation
- where the person providing the accommodation or a near relative of theirs intends to reside on the premises and the accommodation is for no more than 3 other persons
- where provided by a religious body
- where provided by a charitable organisation for persons of a particular marital status

Requests for information: requests for medical history or information on a medical condition

Family responsibilities

Discrimination on the basis of family responsibilities is also prohibited under Commonwealth law. Family responsibilities include the responsibility to care for or support:

a dependent child of the employee (this includes adopted or step children)
any other member of their immediate family in need of care and support (immediate family includes spouse, or adult child, parent, grandparent or sibling of the employee or their spouse)

Under the Act an employer is taken to have discriminated against an employee on the grounds of family responsibility if they treat the employee less favourably than they treat a person without family responsibilities.

Discrimination on the grounds of family responsibilities is prohibited in the following areas:

dismissal of employees

Making a complaint

Time limits: the Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 12 months previously. The Equal Opportunity Commission requires a complaint to be made within 6 months of the event being complained of.

Livestock manager has job taken away after falling pregnant

Jane was working as a livestock manager in a medium-sized country livestock business. On discovering she was pregnant, her doctor recommended light duties for four weeks and to avoid administering medication to livestock. She told her employer, Keith, and provided a doctor's certificate.

Keith called a meeting for himself, Jane, and another employee, Jack, and said Jack would now take over from Jane as manager. Jane asked for Keith to put this in writing, which he did, stating, "Jane is now pregnant and I feel in the future she will not be able to have the time necessary to do the job."

Jane took sick leave and made a complaint to the Equal Opportunity Commissoin. Keith denied that Jane was either demoted or discriminated against. The business had undergone a restructure and Jane's status in the business had been retained along with her salary package. However, her medical certificate placed some restrictions on her and he was concerned about her safety as they work with heavy animals and chemicals.

Outcome: At conciliation, Keith agreed to pay Jane $2,800 for loss of income and allow Jane to return to work after signing her clarified job description.