We all become sick of mornings at some point, whether it’s 'Mondayitis' or extreme regret at signing up for 5am corporate boot-camp with your colleagues. However, a recent decision in Victoria has recognised severe morning sickness (the legitimate, pregnancy-related kind) as a disability for the purposes of State anti-discrimination laws, awarding $10,000 in general damages for associated discrimination.
Severe morning sickness a disability
The employee in this case was successful in her initial claim that she was being discriminated against by her employer because she was suffering from severe morning sickness, when comments about taking sick leave and toilet breaks were made by her employer. This discrimination was based on the employee's pregnancy, which is not particularly ground-breaking as discrimination based on pregnancy is already prohibited by all states' anti-discrimination laws. However, the Tribunal found that this severe form of morning sickness (named "Hypermesis Gravidarum" to the medically-minded) is a 'disability' because the symptoms involve functions of the body failing to function properly.
The finding that symptoms of pregnancy can be a disability is important because disabilities are often treated differently to other attributes under anti-discrimination laws. For example in Victoria employers are under a heavy burden to make reasonable adjustments for an employee with a disability, whereas the burden is less for pregnant employees. There are also federal laws which create obligations in respect of pregnant employees, or employees with a disability under federal laws, although this case concerned Victorian laws.
The employee received a general damages award of $10,000 for hurt and humiliation. However, she was unsuccessful in her claim that the employer failed to make reasonable adjustments to her working hours for her disability, because there was no medical evidence that she required such an adjustment.
Are wacky pregnancy cravings also a disability?
Probably not. It was said that ordinarily a pregnant woman is not considered to have a disability. This suggests that ordinary pregnancy symptoms do not constitute a disability unless the symptoms involve certain functions of the body failing to function properly.
The upshot of this case and damages award is that employers may need to have regard to relevant disability legislation in their treatment of pregnant employees – in addition to pregnancy-specific protections under the Fair Work Act 2009 (Cth) and relevant sex discrimination laws, if an employee has indicated that functions of her body are failing to function properly as a result of the pregnancy.
Whilst the employee has been awarded $10,000 in damages, she is appealing the merits of the original decision in the Victorian Supreme Court, so stay tuned.
See: Bevilacqua v Telco Business Solutions (Watergardens)PL No. 2 (Human Rights)  VCAT 693 (28 May 2015) and the original decision Bevilacqua v Telco Business Solutions (Watergardens)PL (Human Rights)  VCAT 269 (11 March 2015)