Workplace discrimination based on pregnancy can be a difficult area for employers to navigate, and it can be hard to know the specific legislation surrounding this issue. According to the Australian Human Rights Commission, one in two Australian mothers have experienced pregnancy-related workplace discrimination, either during the pregnancy itself, the period of parental leave or upon return to work.
What is pregnancy or parental discrimination?
The basis of treating someone unfavourably because they are pregnant is an example of ‘direct discrimination’ and is unlawful under the Sex Discrimination Act 1984, the Fair Work Act 2009 and a raft of State-based legislation. Employers may resort to this form of discrimination due to negative assumptions made about a person who is pregnant being a burden or unreliable in the workplace.
It is important to note that a person who is pregnant is not required to disclose their pregnancy during the hiring process. While it might not be common for an applicant to choose not to disclose their pregnancy in the later stages, you cannot assume to know the individuals circumstances. This may seem shocking to employers, but an individual’s rights regarding whether or not to disclose their pregnancy must be respected.
Discrimination during hiring
The first touchpoint where pregnancy discrimination can occur is before a worker is even hired, during the interview process. If a woman feels as though she is being asked leading or invasive questions regarding pregnancy, or is not being hired for reasons relating to this, then the candidate is within their rights to claim discrimination.
Many prospective employers still fall into the trap of asking inappropriate and potentially discriminatory questions during the interview process. And while it might feel like harmless questioning, it can in fact be a serious breach of legislation.
As an employer or hiring manager, it is important to know that a prospective employee should only ever feel compelled to disclose information during an interview that they feel comfortable with. The days of directly asking young female candidates when they are expecting to get married or have a baby are long gone.
Questions directly relating to pregnancy or a woman’s plans to start a family should generally be avoided, unless there are very clear reasons relating to the inherent requirements of the role.
Furthermore, if you do believe an applicant is pregnant during the hiring process, be mindful not to judge them if they have chosen not to disclose this information. They may have faced discrimination from potential employers before you, which has contributed to their decision.
Discrimination based on inference
Discrimination doesn’t only occur on the basis of direct questioning, but also as a follow-up or implied meaning taken from a conversation. This often arises due to Work, Health & Safety (WHS) concerns, when an employer might ask a question that appears to be concerned with an individual’s health and safety, or because they care or are worried about someone’s health. Even if this is done with best intentions, it may be interpreted in a discriminatory tone. This is because discrimination is not judged on what the intentions behind the words or actions were, rulings are made on the basis of how the receiving party feels and whether it has caused them offence.
If you are genuinely concerned over a prospective employee’s health once they are introduced into the workplace, you can simply ask whether there are any reasonable adjustments that can be made to accommodate the candidate.
In this instance, even if you have the prospective worker’s best interests at heart, it is important that they feel as though the fact they are pregnant is not going to be considered a liability by the employer.
Do not make assumptions
Often an employer believes they are doing the candidate a favour, assuming that the pressure of the job will be too much to handle in combination with family and parental responsibilities. But what if the candidate is not planning on taking major time off? What if they don’t plan on being the primary caregiver of the child?
This type of thinking can lead to what is known as ‘indirect discrimination’, which manifests itself as a rule or condition that applies to everyone, but in practice treats a group or individuals adversely. From a liability perspective, this holds no less weight than direct discrimination for an employer.
The most important message to take away from this is the following – don’t assume what you believe is true will be what actually takes place. People apply for roles for a variety of reasons and the hiring manager’s role is not to judge the motives behind someone applying for a job, only to determine whether they are the best candidate based on the requirements of the position.
Examples of discriminatory questions to avoid when interviewing
Below are some examples of questions that employers and hiring managers should avoid when interviewing a candidate for a position.
- Are you pregnant?
- When is your baby due?
- How long have you known you are pregnant?
- Do you plan on having children any time soon?
- When do you plan on having children?
- This role involves a little bit of running around, are you going to be able to handle that in your condition?
- Will the demands involved in the role be something you’d be able to handle during your pregnancy?
- This role involves a lot of travel and time away from home, is that something you can cope with in your current condition/with a family?
While you can ask a person if they have any planned leave requirements as part of the hiring process, keep in mind that if you then choose not to hire them on this basis, unless you have a really reason (i.e. timeframes of projects that are made clear throughout the hiring process), this line of questioning may create additional risk for your business.
Not asking these questions may seem obvious, but it is common for people to try to ‘discretely’ hint around this issue. The reality is, you can’t!
For further information on this and other aspects of interviewing, download our Employer Interview Guide.
