A tribunal has ruled that severe morning sickness is a disability, and therefore those affected are protected by anti-discrimination laws.
The Victorian Civil and Administrative Tribunal made the ruling in a case involving a pregnant phone shop worker.
Tribunal rules severe morning sickness a disability after phone shop case
The worker filed a civil lawsuit against her employers, alleging they discriminated against her for being pregnant.
VCAT heard the woman suffered from Hyperemesis Gravidarum, which is a severe form of morning sickness.
As a result of her condition, the woman suffered migraines, back pain, ankle pain and foot pain, which restricted her body from functioning properly.
The worker claimed the company did not make “reasonable adjustments” to accommodate her morning sickness.
She said her employer’s actions amounted to discrimination.
- sick leave,
- lifting boxes,
- sitting during work hours
- and toilet breaks.
Additionally, the woman’s manager sent her text messages after taking a number of days off which read:
- “I’m f**king sick of this”,
- and “You better f**king come in”.
Symptoms constitute disability under law
VCAT Senior Member Ian Proctor said in “ordinary life” a pregnant woman suffering morning sickness would not constitute a disability.
However, he said the symptoms of Hyperemesis Gravidarum are so severe, it constitutes a disability under the law.
As a result, VCAT found the store managers breached the state’s Equal Opportunity Act by sending the abusive text messages.
Furthermore, it found the manager directly discriminated against the woman by commenting about her taking lengthy toilet breaks.
Discrimination on basis of illness or disability unlawful
Christiaan van Oeveren from Discrimination Claims says it’s unlawful for employers to discriminate against employees on the basis of illness or disability.
“It’s not the employer’s prerogative to decide the impacts of a medical condition, regardless of what their understanding of the condition might be,” he said.
“It’s up to medical experts to determine whether a person has a medical condition and how it might affect their capacity to work.”
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