A legal exemption that allows employers to refuse to hire someone who knew they were pregnant when they applied for the job is being targeted for abolition.
Two subsections in the NSW Anti-Discrimination Act 1977 allow employers to dismiss women who knew they were pregnant when they applied for a job.
NSW Greens MP and spokesperson for the status of women, Mehreen Faruqi, will introduce a new bill to Parliament to repeal the sections.
“It’s time for NSW to come into step with all other state and federal laws on sex discrimination and remove these exemptions that protect employers who have been discriminatory towards pregnant women,” Dr Faruqi said.
“We know pregnancy discrimination at work is still a huge problem in and many women suffer in silence.
“The fact that NSW has these exceptions means that they are turned away from the NSW Anti-Discrimination Commission which is unacceptable. We urgently need to change this law to protect pregnant women from discrimination.”
A woman who made a complaint to Dr Faruqi’s office but did not want her name published told Fairfax Media she was pregnant when she recently applied for a communications strategy job.
She did three face-to-face interviews and submitted essays and examples of her work before being offered a job when she was about 4?? months pregnant.
“I didn’t hide my pregnancy, but I didn’t tell them that I was pregnant,” she said.
After being hired the woman called the CEO of the company and told him she was pregnant “as a courtesy” and said she would need four months of maternity leave.
“Then I could jump back into it. We were launching a product, but the launch would have been happening in June and I would have been on maternity leave from September.”
The CEO then offered to put her on a temporary four-month contract instead of the full-time job she had been offered.
Within days after starting work she was dismissed on the basis that she lived 45 minutes away from the office.
After the woman tried to lodge a complaint about the employer, she was told exemptions under the Anti-Discrimination Act applied.
Subsections 25 (1A) and 25 (2A) of the act have exemptions that allow an employer to refuse to hire or to fire an employee who was pregnant at the time of applying for the job, at the time of interview or at the time of hiring. There is an exception for a woman who did not know and could not reasonably be expected to have known that she was pregnant.
“It makes no sense to me. I’m the one being discriminated against,” the woman said.
Dr Faruqi said the NSW Law Reform Commission reviewed the Anti-Discrimination Act in 2009 and proposed a draft bill that removed the exemptions and included pregnancy protections. However, this recommendation had not been adopted.
“We know we still live in a society where too many people think pregnancy and motherhood are incompatible with work,” she said.
“On top of this, we have these laws that protect employers who discriminate against pregnant women, when we should be making it easier for women to overcome discrimination wherever and whenever it happens.
“It is unacceptable that these discriminatory laws have been left unchanged after several reviews have recommended otherwise.”
Belinda Smith, associate professor of law at the University of Sydney and an expert on sex discrimination laws, said NSW was lagging behind federal and other state legislation in addressing pregnancy.
“While we may appreciate that some employers are disheartened to hear that a relatively new employee is pregnant, the fact that someone is pregnant when they are being recruited or hired should not allow discrimination,” she said. “[O]ther acts provide for suitable tailored exceptions rather than this carte blanche one.
Dr Smith said the recent n Human Rights Commission inquiry into pregnancy and maternity discrimination had revealed that even after decades of anti-discrimination laws, pregnancy and maternity discrimination is still “remarkably pervasive”.
She said the NSW protections were limited by not having pregnancy as a separate ground or attribute. Pregnancy had been provided for as a characteristic pertaining generally to women which meant it effectively only provided for direct not indirect discrimination.
“To allow the defence provided for in these sections significantly waters down an already limited protection,” she said.
“Some women would be able to pursue protection under the federal Sex Discrimination Act 1984, but this does not apply to state public servants (who only have the NSW Anti-Discrimination Act available), and entails much greater litigation risks (because for hearings of federal discrimination matters in court, the default costs rule applies, which means the loser pays all).
“In any event, that some women have some protections under federal law is not a good reason for NSW to have such backward and limited state protections.”
Fairfax Media on Tuesday reported a case involving an employer who had made an employee redundant two days before she was due to start maternity leave. This was found to be unlawful because of its timing.