In a previous article I mentioned the story of my mother, who upon marriage was given the gift of unemployment. Why? Because she was a woman and no longer needed to work, as it was now her husband’s responsibility. Discrimination? No, not in 1962. Today it would be discrimination based on marital status.
Discrimination in relation to women can take several forms.
The most obvious is gender discrimination– being treated less favourably because they are a woman like not getting the job or promotion or being fired for being a woman.
Another type is discrimination based on parental responsibility– when a woman is denied returning to work on a part-time basis after having had a baby. I wrote an article about this recently in relation to the new amendments to the Fair Work Act which provides greater protection for women to return part-time.
A third type is discrimination based on pregnancy or potential pregnancy. This could occur when a young female employee is denied training opportunities because, “she’s just going to go off and get pregnant, so why invest the money into training her up?” Or when a female employee tells her boss she is pregnant and then gets fired because, “she’s going to leave anyway!”
A recent complaint made by the Maritime Union of Australia in relation to Skilled Group’s medical exam is another example of discrimination based on pregnancy. In this situation a question was asked in the medical assessment as to whether the female applicant was pregnant.
Normally an employer cannot ask if an applicant is pregnant unless it is an inherent requirement of the job that they are not pregnant or there are safety concerns related to being pregnant. Skilled Group have argued that the question was based on its obligations under guidelines set by the Australian Maritime Safety Authority. However, these guidelines are only in relation to the third trimester of pregnancy, not all of the pregnancy and so a better framed question would have narrowed it down to “are you in the third trimester of pregnancy?”
Hard to know if this was a badly phrased but well-meaning question or an attempt to not employ someone who is pregnant. That, no doubt will be decided by the Equal Opportunity Commission.
Employers need to be aware of all of the different types of discrimination that can occur in relation to women and particularly the new laws around flexible work arrangements for parents.
If you are not up to date with them then please contact Franca at EEO Specialists for a complimentary risk assessment.