It is widely assumed that pregnancy discrimination is a thing of the past.  However, earlier this year an Australian academic thrust the issue back into the nation’s consciousness by taking legal action against her former employer over alleged discriminatory behaviour.

In January, Senior Indigenous Studies researcher, Cameo Dalley, commenced proceedings in the Victorian Civil and Administrative Tribunal (VCAT) against Deakin University.  Ms Dalley claimed that she was discriminated against on the basis of her pregnancy.

Ms Dalley had been the senior research associate among a team of academics who were awarded a highly sought after, three-year Indigenous research grant. In her application to VCAT, Ms Dalley alleges that after informing the supervising professor she was pregnant, the verbal offer she claims she had previously received was rescinded and she was told she would no longer be offered a contract on the project. Ms Dalley also alleges that the supervisor asked how she planned to do her job and have a baby.

Unfortunately, Ms Dalley’s experience is far from an isolated one. As an employment lawyer, I regularly receive inquiries from women who have experienced various forms of discrimination in their workplaces on the basis of their pregnancy or caring responsibilities.  For example:

• A woman experiencing a severe form of morning sickness during a twin pregnancy was given an ultimatum by her employer – resign or agree to attend the office every day. This was despite her having provided medical certificates and having successfully worked from home during COVID lockdowns. 
• A single mum was told by her CEO that based on his wife’s experience as a working mother (in a completely different industry), the company was not willing to grant her request for a flexible working arrangement to accommodate her return to work when her son was six months’ old.  
• A senior marketing specialist in a major financial institution was not consulted about a major restructure whilst she was on parental leave and was deployed into a role in which she is significantly restricted from seeking promotion.  
• A new mum whose workplace lacked facilities to enable her to express breast milk was forced to express several times per day in a toilet cubicle.

In addition, pregnant women and those with caring responsibilities disproportionately face questionable redundancies, demotions and rejected flexibility requests. Many abstain from speaking up because they fear losing their jobs and associated income.

The Sex Discrimination Act 1984 (Cth) and commensurate state laws* prohibit discrimination on the basis of various protected attributes, including pregnancy or potential pregnancy, breastfeeding and family/caring responsibilities. 

It takes incredible bravery for anyone to stand up to their employer over unlawful behaviour. Women fighting pregnancy discrimination face additional challenges such as the legal costs involved, the likelihood of months of protracted litigation, and relentless gaslighting from employers who frequently attribute their actions to something else.

Reversing the onus of proof in anti-discrimination legislation so that there is a presumption that the discriminatory conduct being claimed actually occurred for the reason claimed, and making the employer demonstrate otherwise, would go a long way towards stamping out such practices. It would also encourage more women to expose their experiences.

I was eager to learn the outcome of Dalley’s fight against Deakin.  However, I suspect that we haven’t and won’t hear anything more about it given resolutions in these matters are usually subject to confidentiality agreements to protect the reputation of the employers involved.  This too must change so employers are exposed for any pregnancy and related discrimination that occurs under their watch.

The reality is that our society is wholly dependent on working mothers.  Our economy has evolved to rely on the majority of families having two working parents, and at a fundamental and biological level, we need women to grow and birth children to continue the human race.

If you feel that you are facing discrimination in your workplace, I encourage you to seek advice from an employment lawyer.

^*In Victoria, the Equal Opportunity Act 2010 (Vic)

El Leverington is a Senior Associate practising in Industrial and Employment Law at Slater and Gordon Lawyers.