ABSTRACT
Pregnancy discrimination is something very obviously a target of a sex discrimination law, but not neatly accommodated by the direct/indirect dichotomy, a limitation unforeseen by the drafters. This chapter explores the many attempts to explain the legal response to pregnancy discrimination. An early conundrum for the courts was how to analyse pregnancy discrimination within the framework of sex discrimination law. Alternatively, it was because, in pregnancy discrimination scenarios, the but for test cannot distinguish between direct and indirect discrimination. Thus, commentators attempted to reconcile pregnancy discrimination with the traditional direct/indirect model by preserving a comparative element. To maintain a comparative element, pregnancy discrimination could work with a new form of 'self comparison', where the comparator is 'pared down' to a (hypothetical) person without the reason (pregnancy) for the treatment. A more common scenario, dubbed ‘needs based pregnancy discrimination’, occurs where, say, an employer treats all workers unfavourably for absenteeism.
