Pregnancy and breastfeeding
More women with children are in the workforce today than twenty years ago. And, thankfully, gone are the days when pregnant women were expected to resign before they started to ‘show too much’. However, one in two mothers reported experiencing workplace discrimination because of their pregnancy, parental leave or on their return to work. Fortunately, there are laws to protect us.
What is pregnancy and breastfeeding discrimination?
Pregnancy or breastfeeding discrimination is when someone treats you unfairly, including bullying you, because of your pregnancy or need to breastfeed.
The law also protects you from discrimination because someone assumes you are pregnant or breastfeeding.
Examples of pregnancy or breastfeeding discrimination
- A workplace refusing to consider a woman for promotion because she is pregnant or on parental leave.
- A gallery attendant asking a mother not to breastfeed her baby in the exhibition room.
- A university not allowing someone who is pregnant to continue with their course.
How does the law protect me?
Discrimination is against the law if it happens in an area of public life such as:
- school, TAFE or university
- a club or sporting organisation
- shops and restaurants
- aged care, hotels or rental properties.
Under the Equal Opportunity Act, duty holders (such as employers, schools, and goods and service providers) have a positive duty to eliminate discrimination, sexual harassment and victimisation in these areas, as far as possible.
It is also against the law to victimise a person, which means treat them badly, because they have made complaint about discrimination or helped someone else make a complaint.
You can make a complaint
Get help from the Victorian Equal Opportunity and Human Rights Commission.
You can make a complaint to us if you think you have experienced:
If you wish, someone else can make a complaint for you. Find out how the Commission helps people resolve complaints.
We can also give you information about your rights.
Pregnancy and breastfeeding discrimination at work
All breastfeeding discrimination complaints that came to us in 2020-21 were work related (2 in 2020-21). The number of complaints has dropped over recent years which could be attributed to the shift to working from home due to COVID-19.
Almost all pregnancy discrimination complaints that come to us are work related (92.1% in 2020-21).
While a person is responsible for their own unlawful behaviour, employers can also be held responsible.
Under the Equal Opportunity Act, employers have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.
Victoria is unique in having a positive duty, which creates an opportunity to prevent unlawful behaviour. It helps organisations put a healthy workplace culture in place, just as occupational health and safety laws require employers to take appropriate steps to ensure injuries don’t occur.
To ensure they are complying with the positive duty, organisations should also put measures in place to ensure that complaints are responded to swiftly and appropriately when they do arise.
The positive duty applies to employers of all sizes, regardless of whether they are a major company or a small cafe, and covers all types of workers:
- full-time, part-time and casual employees
- agents and contract workers
- trainees and apprentices.
It applies to all stages of employment, including:
- advertising jobs and recruitment
- returning to work after injury, illness or pregnancy
- dismissal and retrenchment.
Examples of pregnancy or breastfeeding discrimination in the workplace
- an employer refusing to provide a private, clean space for a mother to express breastmilk.
- an employer dismissing a woman when she tells her manager she’s pregnant.
- a pregnant staff member being pressured not to take time off to attend scheduled check ups.
- refusing to consider reasonable adjustments, such as allowing a pregnant staff member to sit down while working
- an organisation restructuring its roles to make a pregnant woman redundant.
Health and safety
It is against the law to dismiss an employee who breastfeeds or expresses milk because of assumed health and safety risks in the workplace.
These health risks rarely affect only employees who need to breastfeed or express milk and employers are obliged to make reasonable adjustments to the workplace to ensure the health and safety of all workers.
Under Australia’s National Employment Standards full-time, part-time and casual employees are entitled to unpaid parental leave if they will have responsibility for the care of a child.
Unpaid parental leave is available to same-sex, married and de-facto partners with primary responsibility for the care of the child.
Permanent full-time and part-time employees with at least 12 months service are entitled to 52 weeks unpaid leave. They also have the right to request a further 12 months unpaid leave.
Casual employees are entitled to parental leave if they have 12 months regular and systematic service and a reasonable expectation of it continuing.
After leave, an employee has the right to:
- return to the position they held before going on leave, including any promotion granted while on parental leave, or
- if that position no longer exists, an available position for which they are qualified and suited, and is nearest in status and pay to their pre-parental leave position.
Visit the Fair Work Ombudsman website for more information.
Are there any exceptions to the law?
There are some exceptions in the Equal Opportunity Act that mean it’s not against the law to discriminate in particular circumstances. For example, discrimination is not against the law if there is a real risk to someone’s health, safety or property.
Find out more about exceptions.
My human rights under the Charter
Every Victorian has the right to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.
Victoria’s Charter of Human Rights and Responsibilities contains 20 basic rights that promote and protect the values of freedom, respect, equality, and dignity.
The Victorian Government, local councils and other public authorities must always consider Charter rights, including the right to equality, when they create laws, develop policies and deliver their services.
Find out more about your human rights under the Charter and what to do if you think they have been breached.
More women with children are in the workforce today than twenty years ago. Since the 1996 Census, the proportion of mothers who are active in the workforce has increased from 46.1 per cent to 53.4 per cent.
One in two mothers reported experiencing workplace discrimination because of their pregnancy, parental leave or on their return to work.