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  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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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