Why employers cannot discriminate against breastfeeding

by The FindLaw Team

In 2011 a number of amendments were made to the Sex Discrimination Act 1984 (the Act) that strengthened the protections available in regards to workplace sex discrimination and sexual harassment.

The key amendments for the purposes of this piece relate to:

  • breastfeeding;
  • family responsibilities;
  • sexual harassment.

What are the amendments regarding breastfeeding?

With the implementation of the amendments, breastfeeding has been recognised as a separate ground for discrimination whether it is direct or indirect under s 7AA of the Act. The section states that an employer discriminates against an aggrieved woman if:

                 "(a) the aggrieved woman's breastfeeding; or

                  (b)  a characteristic that appertains generally to women who are breastfeeding; or

                  (c)  a characteristic that is generally imputed to women who are breastfeeding;

the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not breastfeeding.

             (2)  For the purposes of this Act, a person (the discriminator ) discriminates against a woman (the aggrieved woman ) on the ground of the aggrieved woman's breastfeeding if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are breastfeeding.

             (3)  To avoid doubt, a reference in this Act to breastfeeding includes the act of expressing milk.

             (4)  To avoid doubt, a reference in this Act to breastfeeding includes:

                  (a)  an act of breastfeeding; and

                  (b) breastfeeding over a period of time.”

The expressing of milk is also an example that is provided in the explanatory memorandum to the amendments which states that employers who prevents employees from taking breaks for set periods during the working day would disadvantage in particular, women who need to express milk.

However, we should also point out that the explanatory memorandum also highlights an example of when the requirement not to take breaks during certain periods can be considered as reasonable – such as instances when an employee is operating dangerous machinery which cannot be left unintended, as an instance of reasonableness.

How have the family responsibilities provisions changed with the amendments?

Before the amendments, protections that were available in regards to family responsibilities only made it unlawful for an employer to discriminate against an employee on the grounds of their family responsibilities if the person had been dismissed. However, with the amendments, the protections afforded in regards to family responsibilities has been expanded, and it is now unlawful for an employer to discriminate against an employee on family responsibilities grounds in all areas of work under s 7A of the Act:

Discrimination on the ground of family responsibilities


                   For the purposes of this Act, an employer discriminates against an employee on the ground of the employee's family responsibilities if:

                     (a)  the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and

                     (b)  the less favourable treatment is by reason of:

                              (i)  the family responsibilities of the employee; or

                             (ii)  a characteristic that appertains generally to persons with family responsibilities; or

                            (iii) a characteristic that is generally imputed to persons with family responsibilities.”

Unlike the amendments relating to discrimination against breastfeeding, which makes it unlawful for an employer to discriminate on direct and indirect grounds – discriminating against an employee in regards to family responsibilities only applies to direct discrimination.

The amendments and sexual harassment

The amendments have broadened the definition of ‘sexual harassment’ under s 28(1) of the Act, and ‘sexual harassment’ is now taken to mean that a person sexually harasses another person if:

  • the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • engages in other unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

What is the reasonable person test in relation to sexual harassment?

Under s 28(1A) of the Act, the circumstances that are to be taken into account in the context of the reasonable person – with the circumstances being:

  • sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;
  • the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
  • any disability of the person harassed;
  • any other relevant circumstance.

The amendments to the Act makes it unlawful for a ‘workplace participant’ (meaning an employer, employee, commission agent, contract worker or agent) to sexually harass another workplace participant in a workplace of either, or both of those persons. What this means is that previously, the parties have had to work in the same place of employment for an action to be bought, however, with the amendments that is no longer a requirement.

Workplace discrimination can sometimes arise and if you find yourself in a situation where you need help, please seek the assistance of a lawyer who will be able to advise you on the proper course of action you may be able to take.



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