Breastfeeding and pregnancy discrimination is unlawful
Breastfeeding your baby is a natural and normal thing to do.
Most mothers work out how and where they are comfortable feeding their babies when they are out.
You are allowed to breastfeed in public places, such as restaurants, hotels, cafes, shopping centres and public transport.
Furthermore, you are also allowed to breastfeed and express milk while you are at work.
In Australia, it is unlawful to be discriminated against on the basis of pregnancy, breastfeeding or expressing milk.
What is breastfeeding discrimination?
Although it is widely accepted that breastfeeding is important for mothers and babies, some people still feel the need to make critical comments.
In addition, others feel the need to confront mothers with unnecessary (and illegal) “rules”.
For example, it may be unlawful discrimination if staff at a cafe tell you “you can’t do that here”.
Or if they ask you to leave because you are breastfeeding.
Discrimination on the basis of breastfeeding can also include humiliating or degrading comments.
As well as unreasonable workplace policies that are impossible for workers who are breastfeeding or expressing milk to comply with.
Workers should not feel they have to resign because they are breastfeeding,
And nor should they feel pressure to give up breastfeeding in order to return to work.
If you are at work, you are entitled to be given:
- breaks so that you can express milk, or feed your baby, and
- a place where you can express or feed comfortably.
What is pregnancy and return to work discrimination?
Discrimination happens when an employee is treated less favourably than another employee, or is somehow disadvantaged, because of:
- potential pregnancy,
- breastfeeding or
- family responsibilities.
- Firing or refusing to hire women based on their pregnancy
- Failing to allow parental leave
- Refusing to promote an employee who is pregnant
- Refusing to create a flexible working arrangement on return to work, such as refusal of part-time work
- Changing a worker’s role to their disadvantage while they are on maternity leave
- Sacking a worker who falls pregnant during probationary periods
Maternity and paternity leave
Employees are entitled to parental leave when a child is born or adopted.
Parental leave entitlements include:
- maternity leave
- paternity and partner leave
- adoption leave
- a right to return to old job
What is parental leave?
Parental leave is leave that can be taken when:
- an employee gives birth
- an employee’s spouse or partner gives birth
- an employee adopts a child under 16 years of age
Employees are entitled to 12 months of unpaid leave.
They can also request an additional 12 months of leave.
Who is eligible for parental leave?
All Australian employees are entitled to parental leave.
Employees are able to take parental leave if they:
- have worked for their employer for at least 12 months
- have or will have responsibility for the care of a child
If you are a casual employee, you will need to have been working for your employer on a regular basis for as least 12 months.
In addition to having a reasonable expectation of continuing work had it not been for the birth or adoption of a child.
What if you are having another child?
Employers who take parental leave don’t have to work for another 12 months to be eligible for another period of leave with that same employer.
However, if they have started working for a new employer:
they will need to work with that employer for at least 12 months before they can take parental leave.
Flexible working arrangements
Flexibility in the workplace allows workers to make arrangements about working conditions that suit them.
This helps employees maintain their work/life balance, and can also help employers improve productivity.
Employers and employees can negotiate flexible working arrangements, so long as minimum entitlements are paid.
For example, changing start and finish times to allow a worker to attend to family responsibilities.
What the law says
The Sex Discrimination Act makes it unlawful to discriminate against a person on the grounds of pregnancy, breastfeeding or expressing milk.
This means it is illegal to take adverse action against a woman who is breastfeeding or pregnant.
Or to treat a pregnant woman or a woman who is breastfeeding less favourably than another who is not in the areas of:
- or when accessing goods and services.
- A woman cannot be told to leave a cafe because she is breastfeeding
- A woman cannot be refused employment, or denied a promotion, because she is breastfeeding, pregnant or plans to get pregnant
- And a woman cannot be expelled from a school or university because she is breastfeeding or pregnant
Breastfeeding and pregnancy discrimination is unlawful when you are:
- a customer (such as at a café, hotel, club, restaurant, or sporting venue)
- a worker, or applying for work
- a student
- accessing government or other services.
Public places including shopping centres, restaurants, gyms, hotels, sporting venues and public transport must allow breastfeeding.
How we can help
Our team of Australian workplace lawyers and industrial advocates can help people who have experienced discrimination on the basis of:
- pregnancy or
- breastfeeding or
- expressing milk.
We take action on behalf of our clients in the Human Rights Commission or any other relevant court or tribunal.
We have extensive experience negotiating large compensation payments for our clients who have experienced discrimination.
For a confidential chat about your options, please call our team today on 1800 437 825.
IMPORTANT: If you are dismissed from employment because of pregnancy or breastfeeding, you only have 21 days to file a claim.
LAST UPDATED: July 2021
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