By Tim Fuller
In the United States (California, of course), a model on the game show The New Price is Right alleged she was discriminated against due to the effects of her pregnancy, and sued for unfair dismissal. But the trial judge ruled that she had not produced sufficient evidence that her pregnancy, and any effects resulting from it, were the reason her employment was terminated. Her claim was dismissed.
This unsuccessful lawsuit in the United States reminds us of the challenging circumstances that pregnant women face in the workplace. That is particularly the case for sportswomen, and the landmark Australian case in this area of sports law is Gardiner v All Australia Netball Association Ltd [2003] FMRC 81.
In 2001, Netball Australia ("NA") decided to ban pregnant players. The reason given for the decision was to prevent NA from possible legal action if a pregnant woman and/or her unborn foetus was hurt during a game. Trudy Gardiner was prevented from playing netball after she disclosed her pregnancy. The Court held that the overall ban was discriminatory towards pregnant women under the Sex Discrimination Act 1984 (Cth).
To discriminate against a female athlete based on her state of pregnancy is unlawful, but the law of negligence requires that employers must satisfy a very high standard of the duty of care to prevent any harm to its employees. Since Gardiner, guidelines have been put in place to balance the rights of sportswomen to play their desired sport and the rights of sporting organisations to protect themselves from potential liability issues in this area.
In the world of professional sport, in an era of increasing athlete salaries and endorsements (where the player's financial commitments might be the overriding consideration on whether to play or stand down), policy decisions of each sport's governing body need to be made very carefully. Any such decisions from the governing body, or its lower-level administrators, that impact on the ability of an athlete to compete in the sport could lead to a claim for restraint of trade or discrimination. It is essential that all participants in every organised sport are mindful of their obligations to other stakeholders in the sport.
Equally important is that decision makers ensure that their decisions comply not just with the rules and regulations of their sport but also with more general areas of law which could impact on those decisions. With the ever expanding growth of "social" legislation focussed on the rights of individuals, specialist legal advice will often be the only way to navigate that minefield.
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