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Federal Sex Discrimination Bill - Pregnancy, Potential Pregnancy and Breasfeeding |
On 7 October 2003, the Sex Discrimination Amendment (Pregnancy and Work) Bill 2002 ("the Bill") passed through Federal Parliament. The Bill amends the Sex Discrimination Act 1984 to clarify certain provisions regarding discrimination on the grounds of pregnancy ("the Act"), potential pregnancy and breastfeeding. |
Temporary lapse |
After lapsing due to the calling of the Federal election last October, the Bill was reintroduced to the House of Representatives on 13 February 2002. The Bill 2002 is the same in substance as the Sex Discrimination Amendment Bill (No. 2) 2001 which the Attorney-General introduced on 27 September 2001. |
The main amendments |
It is mindful to note that complaints of discrimination on the basis of pregnancy and potential pregnancy continue to represent a significant percentage of total complaints made to the Human Rights and Equal Opportunity Commission (18% in 1999-2000). |
The Bill addresses concerns raised in the HREOC Report, "Pregnant and Productive: It's a Right not a Privilege to Work While Pregnant" and hope to clarify the areas of the Act that were causing confusion in the community. The main elements of the amendments contained in the Bill clarify that:
- Discrimination against women who are breastfeeding is prohibited by the Act;
- Questions regarding pregnancy or potential pregnancy may not be asked during recruitment processes, and
- That medical information collected from pregnant women may only be used for appropriate purposes, such as for genuine occupational health and safety reasons and not in a discriminatory manner.
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| Breastfeeding |
"The government's legislation makes it clear that discrimination against a woman because she is breastfeeding is prohibited by the Sex Discrimination Act", said Attorney-General Phillip Ruddock. |
Amending the definition of 'sex discrimination', the Bill makes it clear that breastfeeding is a characteristic pertains generally to women and discrimination against a woman on the basis that she is breastfeeding will amount to unlawful discrimination on the grounds of sex.
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Questions about pregnancy |
"The Amendments also make it clear that it is unlawful to ask women for information about pregnancy or potential pregnancy in situations where it is unlawful for women to be discriminated against on those grounds", Mr Ruddock continued. |
In the Bill, a request for information about pregnancy is unlawful if:
- Information about pregnancy or potential pregnancy is requested or required in connection with an act or some future act (eg. an 'act' could be the recruitment process);
- In doing that act, the person providing the information is discriminated against on the grounds of that person's sex, marital status, pregnancy or potential pregnancy; and
- Persons of a different sex or marital status, or who are not pregnant or potentially pregnant are not asked for that information.
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| Medical information about pregnancy
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An exception to the prohibition on requesting or requiring information about pregnancy exists where the information is required for legitimate reasons, such as for OHS purposes. |
The explanatory memorandum to the Bill provides an example of an employer who uses radioactive substances (eg. x-ray equipment), requiring female applicants applying for a position to undergo a medical test and are asked if they are pregnant during that test. This reason is legitimate. |
Coverage |
"These provisions relate not just to the workplace but to other areas where the Act applies, such as when purchasing goods or services or applying for a loan or rental accommodation," Mr Ruddock added. |
The amendments will not expand the operation of the Act. The Act will commence on Royal Assent except for Schedule 1, which will commence 28 days after. |
Peter McNamara |
peter.mcnamara@cmlawyers.com.au |
