OPINION: 'I'm a lawyer. This is the discrimination I'm seeing against pregnant women.'

It is widely assumed that pregnancy discrimination is something that occurred in a bygone era.

But an Australian academic has thrust the issue back into the nation’s consciousness by taking legal action against her former employer over such behaviour.

Senior Indigenous Studies researcher Cameo Dalley claims that after she informed her supervisor at Deakin University that she was having a baby, the tone of the meeting abruptly changed and she was asked how she planned to do her job and have a baby.

Dalley had been the senior research associate among a team of academics who were awarded a highly sought after, three-year Indigenous research grant. 

She alleges in legal action she is pursuing in the Victorian Civil and Administrative Tribunal that after informing the supervising professor she was pregnant, the verbal offer she claims she had previously received was rescinded, and she was told she would no longer be offered a contract on the project.

Unfortunately, Dalley’s experience is far from an isolated one. I know this because as an employment lawyer, I regularly receive inquiries from women who have experienced various forms of pregnancy discrimination.

Among the many clients I’ve represented was a woman experiencing a severe form of morning sickness who was given an ultimatum by her employer – resign or agree to attend the office every day. This was despite her providing medical certificates for her absences, and after successfully working from home during COVID lockdowns.

Just last week I met with a single mum who was told by her CEO that based on his wife’s experience as a working mother (in a completely different industry), the company was not willing to grant her request for a flexible working arrangement to accommodate her return to work when her son was six months old.

Since having my own child last year, I’ve joined several online mothers’ forums and regularly come across posts by women about questionable redundancies, demotions and rejected flexibility requests. 

Several have also complained about the lack of facilities at some workplaces to enable new mums to express breast milk somewhere other than inside a toilet cubicle. 

But beyond sharing their frustrations with an empathetic audience, many abstain from taking action because they fear losing their jobs and/or income. 

This is despite the Commonwealth Sex Discrimination Act 1984, and commensurate state laws prohibiting discrimination on the basis of various protected attributes, including pregnancy or potential pregnancy, breastfeeding and family/caring responsibilities.

It takes incredible bravery for anyone to stand up to their employer over unlawful behaviour. 

Women fighting pregnancy discrimination face additional challenges such as the legal costs involved, the likelihood of months of protracted litigation, and relentless gaslighting from employers who frequently attribute their actions to something else.

Reversing the onus of proof in anti-discrimination legislation so that there is a presumption that the discriminatory conduct being claimed actually occurred for the reason claimed, and making the employer demonstrate otherwise, would go a long way towards stamping out these practices. It would also encourage more women to expose their experiences. 

The Commonwealth Fair Work Act 2009 does contain a reverse onus for a limited category of claims (but which include discrimination claims). 

But despite this, the judicial approach has tended to ease the evidential burden on employers, further entrenching the gaslighting that women experience.

I for one am eager to learn the outcome of Dalley’s fight against Deakin when mediation takes place some time this month. 

Sadly, though, I suspect we won’t hear anything more about it, given resolutions in these matters are usually subject to confidentiality agreements to protect the reputation of the employers involved.

This, too, must change so employers are exposed for any pregnancy and related discrimination that occurs under their watch. 

Only then will this widespread problem become something that women experienced in the past.

El Leverington is an Industrial and Employment Law Associate at Slater and Gordon.

Feature Image: Canva/Mamamia.