Discrimination is not always the moral and commercial wrong it is made out to be

People (rightly) get upset if they are a victim of discrimination in employment or in receiving entitlements from government. In large measure this reflects a widespread conviction that the merit principle should be paramount in such matters. Regretfully, merit and purely commercial considerations are often subverted to other agendas.

There is a perception that human rights legislation and its bureaucratic enablers (despite their rhetoric) are major culprits, who often sacrifice merit in favour of promoting the interests of identified minority groups or ignore issues affecting others. The claimed justification is pursuit of concepts of "fairness" and more equal outcomes, even though "progressive" ideology is commonly the dominant consideration. Anti-discrimination advocates commonly argue that their rules prohibiting discrimination, and promoting equity and diversity make commercial sense because avoiding discrimination and inequality enables the most productive people to be selected, especially over the longer term.

I came face to face with this conflict about six months ago at a Christmas dinner, mainly attended by small business owners, in Canberra of all places. A striking feature of the attitude of businesspeople to recruitment was their strict adherence to merit (at least in their minds), as reflected in their personal assessment of the potential contribution of applicants to their business. While businesspeople had their biases (and I suspect nepotism in favour of family members, as part of succession plans, is also an unspoken consideration), these biases seemed to mostly reflect life experiences with individual groups rather than mere prejudice.

A real estate agent, for example, declared that mature women make the best rental managers. He cited ability to multi-task and the stability and judgment of women with some years of experience dealing with people. A jeweller meanwhile observed that (in her experience) gay men tended to make great salespeople in her shop, because of their interest in the product and their empathy with the customer. The list of observations went on.

Most striking of all was the unanimous view that small businesses would be mad to recruit any prospective employee known to be pregnant or likely to soon become so. Even more noticeable was that female small business owners were the most adamant in this view.

The issue is that, while it is against the law to discriminate on the basis of pregnancy (or potential pregnancy), the reality of how legislated rules apply, can make it very unprofitable and inconvenient to take on someone who will shortly go on leave and who you are not subsequently allowed to replace. Eligible parents until recently received up to 26 weeks of government-funded Paid Parental Leave (PPL) at the national minimum wage. This increased to 30 weeks from 1 July 2026.

In addition, "pregnant persons" (sic) have the following additional legal rights:

• Continuation of work during the 6 weeks leading to birth by providing a medical certificate that it is safe to do so, if they choose not to take birth related leave.
• Transfer to a safe job due to illness or risk due to pregnancy for the 6 week period leading up to their due date, or the right to paid leave if no safe job is available.
• The right to return to work after leave.
• For those employed for at least 12 months, the right to take special maternity leave for a pregnancy-related illness or if pregnancy ends because of a miscarriage or still birth.
• For those employed for at least 12 months, the right to take 12 months unpaid parental leave.
• The Sex Discrimination Act 1984 also protects against being treated less favourably than a person in the same work situation who is not pregnant or potentially pregnant.

The bottom line for employers with small numbers of employees is that it can be both very expensive and highly disruptive to their business to take on someone, who may soon after take extensive leave (seven months is now not uncommon) and who cannot legally be replaced. Worse still, if they take on somebody temporarily, who turns out to be more productive, the employer is obliged to re-engage and retain the employee returning from maternity leave. Employers often also express the view that some women with very young children prioritise their children over work responsibilities, a problem not associated with those with older or no children.

In response to all this, there seems to be a widespread policy within small business of avoiding recruitment of anyone perceived as at high risk of going on maternity leave. While this is against the law, it is very difficult to prove. In effect, anti-discrimination laws and expensive associated entitlements are promoting the very type of discrimination they seek to prevent.

On a broader note, one area where commercial considerations largely do not apply is in the public sector, where altered conditions of service have over recent decades became highly favourable to women. The Albanese government has also seemed to have gone out of its way to appoint women to prominent senior positions, and to provide generous pay rises in female dominated occupations. In the Australian Public Service (APS), women now make up 60.5 per cent of the total workforce, and across state sectors female representation is also high. Women now comprise 68.9 per cent of Queensland public sector employees.

Even greater over-representation in the public sector applies in respect of employment of those of Indigenous descent.