3

Let's say Alice & Bob apply for a job, and both of them are equally good. The company they're applying to decides they'll hire Bob because Alice can potentially get pregnant, which means they'll have to pay for maternity leave (or if maternity leave is unpaid, have to cover for the downtime). Is this legal?

The laws on gender discrimination I've seen generally say that it's not discrimination if there are physical reasons to prefer one sex to the other - for example if the job involves lifting heavy loads, it's not discrimination to preferentially hire men instead of women. But if we accept that, then pregnancy becomes a physical reason to prefer men to women regardless of the job ... which sounds drastic (if it's legal).

If the country matters, assume the EU. We can also assume that Alice is relatively young: if she's post menopause and therefore can no longer get pregnant, the company doesn't discriminate.

Improve this question

1 Answer 1

Reset to default
7

No

The argument is vacuous in any event because AFAIK all jurisdictions that enforce sex discrimination laws have parental leave (paid or unpaid), not maternity leave so a man is just as likely to need it as a woman. This, of course, raises the issue of discrimination by marital status (on the basis that unmarried people are arguably less likely to have children) or age (on the basis that people outside 'childbearing' age are less likely to have children; fortunately these types of discrimination are also illegal.

Notwithstanding, the loopholess you think there are in the laws are simply not there. For example s14 "Discrimination in employment or in superannuation" of Sex Discrimination Act 1984 starts with:

(1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

Later in s30 "Certain discrimination on ground of sex not unlawful" it says:

(2) (a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of a different sex from the relevant sex;

If the job requires excessive strength or stamina, then you test your recruits for the level of strength or stamina the job requires.

Improve this answer
9
  • 1
    And if there was a requirement to lift 20lb bags of bird seed, that would be the requirement, not an assumption that a female, per se, could not do it.
    – George White
    Jan 9, 2020 at 4:25
  • In the U.S. age discrimination begins at 40, before that point age is not a federal issue.
    – George White
    Jan 9, 2020 at 4:27
  • I feel like the last sentence isn't justified: the quoted paragraph is saying that kind of discrimination is lawful. That said s14 answers the question, so I'm accepting this answer.
    – Allure
    Jan 9, 2020 at 4:45
  • 7
    @Allure they've moved on to functional tests, rather than using gender as a proxy for physical requirements. For example, in my locale, applicants for firefighter positions are tested to see if they can do things like raising a 24ft ladder against a wall, hand over hand, or carry a 40lb hose up 3 floors while wearing full bunker gear. Some women can fulfill those functions, and quite a few men can't. The relevance for the job is pretty clear.
    – Charles E. Grant
    Jan 9, 2020 at 5:27
  • 1
    @Allure they test the applicant’s physicality.
    – Dale M ♦
    Jan 9, 2020 at 8:59

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .