Complex to navigate, hard to enforce: Why pregnancy discrimination at work continues

Despite legal protections against workplace pregnancy discrimination, some women continue to encounter it while pregnant or when seeking to return to work.

Supporting women while they’re pregnant, during parental leave and when they’re returning to the workforce is an ongoing issue for Australian employers.

New research from Monash Business School shows that women are not always supported, while employers can be unaware of their legal responsibilities or struggle to navigate complex workplace laws.

Associate Professor Dominique Allen and Ms Adriana Orifici from the Department of Business Law and Taxation worked with community legal centre, JobWatch in a just-released study.

Pregnancy discrimination at work

The researchers accessed anonymised and de-identified JobWatch case studies about women who had experienced pregnancy discrimination at work and contacted JobWatch for information.

As part of the study, they also interviewed four women.

“We wanted to learn more about what action, if any, women take when they experience discrimination while pregnant, during parental leave or when seeking to return to work following the birth of a child,” A/Prof Allen says.

They found that a common strategy was either for women to ‘live with’ the discriminatory treatment until it was time to give birth, find another job, or propose ‘work arounds’ to address the issue.

Pregnancy discrimination continues despite legal changes

Pregnant women often use ‘work-around’ strategies to deal with discriminatory treatment.

And if they chose to do something about it, women preferred to do so through internal processes rather than formal legal mechanisms.

“Our study shows many pregnant women relied on informal discussions with managers and internal complaints processes when they experienced detrimental treatment,” Ms Orifici says.

“It was common for the women themselves to propose and informally implement solutions, when they identified issues. The internalisation of these issues to organisations can be one reason why these types of issues can be overlooked and under-examined.”

Main findings of the study

The study shows that women were no more likely to experience discrimination on the basis of their length of service, seniority, employment status (full-time, part-time or casual employment) or industry.

The most common issues that pregnant women described were termination of employment, changes to terms and conditions of employment that led the employee to experience a detriment, and changes to their employment status (for example, from ongoing full-time to casual employment).

Sometimes employers unilaterally imposed these changes. On other occasions, the women reported agreeing to changes under pressure from their employers.

Many women in the study experienced discrimination comprising of multiple acts or issues, and there were instances where the conduct worsened over time.

There were also cases of employers responding reactively to issues as they arose, rather than considering how to support pregnant workers throughout their journey.

The women also responded to experiences of pregnancy discrimination via legal and non-legal pathways.

Why discrimination remains hidden

The study identified other reasons why pregnancy discrimination can remain ‘under wraps’.

Some of the women in the study who left their jobs chose to ‘hide’ the real reason for their resignations so that their employers would still provide them with positive references.

Very few women pursued a formal legal claim, which is not unusual, according to A/Prof Allen.

“Discrimination claims are difficult to pursue because they’re costly and hard to prove,” she says.

“But when those challenges are combined with being pregnant or caring for a new baby, most women walk away.”

Women also need to navigate a complex framework of rights and protections including under Commonwealth, State and Territory equality laws as well as industrial laws.

Simply choosing a suitable legal pathway can be a daunting task.

Struggling to understand the law

The study found it is not only women who struggle to understand the law.

What the women told the researchers also suggests that some employers find the broad framework of rights and obligations that relate to pregnant workers challenging to navigate.

“Pregnancy discrimination in the workplace is unlawful but employers also have obligations under industrial laws and workplace health and safety laws to accommodate a woman’s pregnancy and keep her safe at work.” Ms Orifici says.

“It is also apparent that there is a lack of clear guidance material for employers on how to manage the range of obligations that arise under different laws,” Ms Orifici says.

The study’s findings show the need for more specific information to be developed for employers by either the Fair Work Ombudsman or the equality agencies in conjunction with workplace health and safety regulators.

“It is important that we have laws and systems in place to support women at each stage of their working life, particularly during pregnancy and return to work,” A/Prof Allen says.

“But equally as important is that employers know what they need to do to support their female workforce.”

Read the full report here.

Published on 8 Sep 2022