The NSW State Government intends to remove two exemptions/defences from the Anti-Discrimination Act which (currently) permit employers to discriminate against pregnant workers.
The changes proposed by the NSW State Government in the first half of 2018 are summarised as follows:
- section 25 of the Anti-Discrimination Act currently prohibits discrimination in employment on the basis of sex
- however, sections 25(1A) and 25(2A) of that legislation contain exemptions where the discrimination is because of the employee or potential employee’s pregnancy status
- the proposal to remove sections 25(1A) and 25(2A) means an employee or potential employee would be protected from discrimination because of their pregnancy status
Employers need to be aware that irrespective of whether the above occurs, protections for pregnant workers already exists. For example:
- the Fair Work Act contains specific and detailed rights for pregnant workers and those taking parental leave
- section 351 of the Fair Work Act prohibits discrimination in employment on the basis of pregnancy status, however, that section also contains a limited exemption for discrimination ‘that is not unlawful under any anti-discrimination law in force where the action is taken’ – the proposed amendments to the Anti-Discrimination Act will therefore strengthen this particular protection
Employers should always tread carefully and seek legal advice:
- when employing, disciplining, terminating or otherwise dealing with pregnant employees
- when employing, disciplining, terminating or otherwise dealing with any other employees who are protected at law (including injured workers)
- when drafting employment policies as a provision that might seem fair at face value may nevertheless fall foul of “indirect” discrimination laws
