Pregnancy and breastfeeding discrimination

    What does the law say about pregnancy and breastfeeding discrimination?

    It is generally against the law in NSW to treat you unfairly or harass you because you are

    • pregnant
    • breastfeeding your baby
    • expressing milk
    • making arrangements to breastfeed or express milk.

    It is also against the law to treat you unfairly or harass you because you have a relative, friend, associate or work colleague who is pregnant or breastfeeding.

    Pregnancy and breastfeeding discrimination are classified as a type of sex discrimination under NSW law.

    Indirect pregnancy and breastfeeding discrimination are also against the law. This occurs when there is a rule or requirement that disadvantages people who are pregnant or breastfeeding more than people who are not - unless it can be shown that the rule or requirement is 'reasonable in all the circumstances'. Some examples of indirect discrimination are included in the following sections.

    When does this law apply?

    Pregnancy and breastfeeding discrimination are against the law in the following areas:

    • in employment - when you apply for a job or for a licence or registration to perform a job, when you are at work, or when you leave a job
    • when you get or try to get most types of goods or services - for example, from shops, banks, lawyers, government departments, the police, public transport, local councils, doctors, hospitals and other medical services, hotels, sporting venues and entertainment venues
    • when you apply to get into or study in any State educational institution, which includes any government school, college or university
    • when you rent accommodation such as houses, units, flats, hotel or motel rooms and commercial premises
    • when you try to enter or join a registered club, or when you get services from one. A registered club is a club that sells alcohol or has gambling machines.

    What are my rights at work?

    Pregnancy discrimination

    Our statistics show that most discrimination against pregnant women occurs in employment.

    Generally, employers must treat pregnant employees the same way as they treat all their other employees. They must do this whether you are permanent, full-time, part-time or casual. They can only treat you differently if there's a legal reason for them to do so.

    For example, it is generally against the law to:

    • not hire you because they think you might become pregnant
    • dismiss or retrench you because you are pregnant
    • harass you, or allow other employees to harass you, because of your pregnancy
    • not provide you with larger sizes of uniforms - if they normally provide your uniform
    • transfer you to another job 'out of sight' because you are pregnant - unless you willingly agree to the transfer
    • transfer you to another job where they think a pregnant woman will be safer - unless there are valid medical or safety reasons for this
    • deny you training just because you are pregnant
    • stop you being promoted just because you are pregnant
    • not give you the same or a similar job when you return from maternity leave.

    Generally, if you've been working regularly for 12 months with the same employer, you have the right to take maternity leave and return to your job afterwards. For full information about maternity leave, contact your employer, your union or NSW Industrial Relations on 131 628.

    The NSW law allows employers not to hire a woman if she is pregnant at the time of application or interview. However, in most cases it will be against the federal law not to hire you because you are pregnant. For more information, contact the Australian Human Rights Commission - phone (02) 9284 9600.

    Breastfeeding discrimination

    It is generally against the law to refuse to make arrangements to assist you to breastfeed at work, if these are reasonable. For example, it may be discrimination if:

    • your employer does not provide you with suitable facilities for breastfeeding or expressing milk
    • you are not allowed to organise your work breaks to facilitate breastfeeding or expressing milk
    • your employer insists that you work night shift when other shifts are available that would allow you to continue breastfeeding
    • you are told that you must wean your baby before you can return to work.

    Carer's responsibilities discrimination

    If you are treated unfairly or harassed at work because you caring for or supporting a child, you may have been unlawfully discriminated against. More about carer's responsibilities discrimination....

    What are my rights in other situations?

    It is generally against the law to tell you that you can't go somewhere or do something because you are pregnant, in any of the other situations listed under 'When does this law apply?', unless there are valid medical or safety reasons why you shouldn't do this.

    It's also against the law to harass you for being pregnant in any of these situations. For example, it could be against the law for a restaurant proprietor to tell you that you shouldn't wear a particular type of clothing in their restaurant because you are pregnant, if other customers are wearing similar clothing.

    It is also generally against the law to tell you not to breastfeed or express milk in any of the situations listed under 'When does this law apply?'. For example, it could be against the law to tell you not to breastfeed at a sporting facility such as a gym or swimming pool, at a cinema or club, in a shopping mall, in a restaurant or in an aeroplane.

    It may be against the law to tell you that you have to breastfeed in a particular place, if this disadvantages you in some way. For example, telling a student that they must breastfeed outside the classroom and therefore miss their lecture may be discrimination.