Is it legal to preferentially hire men instead of women because women can get pregnant?
<p>Let's say Alice &amp; 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?</p>

<p>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 <em>regardless of the job</em> ... which sounds drastic (if it's legal).</p>

<p>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.</p>

<h2>No</h2>

<p>The argument is vacuous in any event because AFAIK all jurisdictions that enforce sex discrimination laws have <em>parental</em> 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.</p>

<p>Notwithstanding, the loopholess you think there are in the laws are simply not there. For example <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s14.html" rel="nofollow noreferrer">s14</a> "Discrimination in employment or in superannuation" of <a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a> <em>Sex Discrimination Act 1984</em> starts with:</p>

<blockquote>
  <p>(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, <strong>pregnancy or potential pregnancy</strong>, breastfeeding or family responsibilities:</p>
</blockquote>

<p>Later in <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s30.html" rel="nofollow noreferrer">s30</a> "Certain discrimination on ground of sex not unlawful" it says:</p>

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

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

employment sex-discrimination