Discrimination & Equal Rights
The Mat Leave Question
Sex discrimination in hiring and promotion
Premium
foundational
7 minutes
The Situation
What They Said
“We need someone reliable for this role. We worry about mat leave and all that.”
This comment — or a version of it — is among the most common forms of sex discrimination in Australian workplaces. It is often delivered in an interview or performance review as a candid aside, as though the speaker is doing the woman a favour by being honest. The implication is that being female, particularly of childbearing age, is a liability. The woman is made to feel that her biology is a legitimate business concern rather than a protected attribute under federal law.
The economic consequences are significant. Women who are passed over for roles or promotions because of assumptions about pregnancy or parental leave lose income, superannuation, professional standing, and career momentum. The impact compounds over years. Research consistently shows that this form of discrimination contributes materially to Australia's gender pay gap.
Under Australian law, assumptions about future pregnancy, maternity leave, or parental responsibility cannot be used — directly or indirectly — as a basis for hiring, promotion, or any other employment decision. The law is clear. The challenge is that this comment is so normalised that many women who hear it do not realise they have just been told something unlawful.
The Fallacy
Biological Liability Fallacy — Treating Womanhood as an Operational Risk
The statement assumes that because a woman may become pregnant or take parental leave, she is inherently less reliable than a male counterpart. This is a textbook example of direct sex discrimination: the characteristic of being female is being used as the basis for a less favourable employment outcome. No equivalent concern would be raised about a male applicant, despite the fact that men are also entitled to parental leave under Australian law.
The fallacy compounds by dressing up discrimination as prudent business planning. 'Reliability' sounds like a legitimate criterion. But reliability has nothing to do with whether someone will eventually take parental leave — which is a legal entitlement, not a personal failing. Framing the exercise of a legal right as a reliability concern is not neutral; it is discriminatory reasoning.
Critically, Australian courts have found that discrimination based on a characteristic generally associated with a sex — including the capacity to become pregnant — constitutes sex discrimination even when it is not directed at the individual's specific situation. You do not need to be pregnant to be discriminated against on the basis of pregnancy.
What the Law Says
Your Legal Foundation
Sex Discrimination Act 1984 (Cth)
Section 14 — Discrimination in employment or in superannuation
“It is unlawful for an employer to discriminate against a person on the ground of the person's sex, pregnancy or potential pregnancy, marital or relationship status or family responsibilities — in the arrangements the employer makes for the purpose of determining who should be offered employment; or in determining who should be offered employment; or in the terms or conditions on which employment is offered.”
A hiring or promotion decision influenced by concern about maternity leave or pregnancy directly engages Section 14. The employer's own statement — 'we worry about mat leave' — is evidence of exactly the discriminatory reasoning the section prohibits. Both the direct refusal and the mere expression of concern at interview stage may constitute unlawful discrimination.
Sex Discrimination Act 1984 (Cth)
Section 7 — Discrimination on the ground of pregnancy or potential pregnancy
“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 pregnancy or potential pregnancy if, by reason of the aggrieved woman's pregnancy or potential pregnancy, the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person who is not pregnant.”
The explicit reference to 'potential pregnancy' is critical here. You do not need to be pregnant for this protection to apply. The concern expressed by the employer — about a woman's future reproductive choices — falls squarely within this definition. The comparator is a person who is not pregnant or at potential risk of pregnancy: typically, a man of similar age and qualifications.
Sex Discrimination Act 1984 (Cth)
Section 28A — Meaning of sexual harassment
“For the purposes of this Act, 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.”
Where comments about pregnancy are accompanied by remarks about a woman's physical appearance, reproductive status, or sexuality, the conduct may extend beyond discrimination into sexual harassment under s.28A. The threshold is unwelcome conduct of a sexual nature that a reasonable person would anticipate could offend or humiliate.
What Scripture Says
God's Word on This
Proverbs 31:25 (NIV)
“She is clothed with strength and dignity; she can laugh at the days to come.”
The woman described in Proverbs 31 is not diminished by her femininity — she is defined by capability, wisdom, and productive contribution. Her worth is not contingent on whether she conforms to a male-defined standard of availability. This verse stands as a direct counterpoint to any system that treats a woman's biology as a disqualification rather than a dimension of her full humanity.
Luke 1:45 (NIV)
“Blessed is she who has believed that the Lord would fulfil his promises to her!”
God honours women as bearers of promise and purpose. A woman's capacity to carry life is not a liability in the divine economy — it is regarded as a gift. No employer has the moral authority to penalise what God has honoured. Standing firm against this discrimination is an assertion of God-given dignity, not mere legal manoeuvring.
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What They'll Say Next
Common Counter-Arguments
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They might say: “This is just a normal business question about stability and commitment. Stop making it about gender.”
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They might say: “Men take paternity leave too. We'd ask the same question of them.”
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They might say: “You haven't been rejected yet. You're creating a problem where there isn't one.”
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