Under the Fair Work Act, an employer can't take adverse action against you or a job applicant because of pregnancy, sex, marital status or family or carer's responsibilities. That covers not hiring you, treating you differently or changing your job to your disadvantage because of your answer. Federal, state and territory anti-discrimination laws also apply, and this guide sticks to the Fair Work rules.
Which attributes are protected?
The Fair Work Act lists protected attributes that employees and prospective employees can't be treated badly because of. The ones a family plans question touches are:
- sex
- marital status
- family or carer's responsibilities
- pregnancy
- breastfeeding.
The full list also includes age, race, disability, sexual orientation and gender identity, among others.
What counts as adverse action?
Adverse action includes doing, threatening or organising any of these:
- firing an employee
- not giving an employee their legal entitlements, such as pay or leave
- changing an employee's job to their disadvantage
- treating an employee differently from others
- not hiring someone
- offering a potential employee different and unfair terms compared with other employees.
The protection applies to someone applying for a job, a new employee who hasn't started yet and an employee at any point in their employment.
Can an interviewer ask about kids?
The Fair Work Ombudsman's own example is an interview. A manager asks an experienced applicant his age, then rings the next day to say he didn't get the job because the business wants a younger look, and hires someone less qualified. That is discrimination, because the applicant was treated differently because of his age.
The same applies if an answer about pregnancy, marriage or family plans is the reason you don't get a job or are offered worse terms.
What about performance reviews and promotions?
Treating an employee differently from others is adverse action. The Fair Work Ombudsman's example is an account manager who tells her manager she is pregnant and is then told she can't attend a training course the rest of her team can go to. That is discrimination. Being left out of an opportunity because of your answer about family plans would be treating you differently from others.
Organisations also have a positive duty under the Sex Discrimination Act to eliminate, as far as possible, discrimination on the ground of sex in a work context, sex-based harassment and conduct creating a workplace environment that is hostile on the ground of sex.
What can you do if it happens?
- Write down what was asked, when and who was there.
- Raise it. Making a complaint or enquiry about your employment is a workplace right, and an employer can't take adverse action against you for using it.
- If you have been treated badly because of a protected attribute, you may be able to raise a general protections dispute with the Fair Work Commission even if you haven't been dismissed.
- If you lose your job, you have 21 days from the day after the dismissal to apply to the Commission.
If you are pregnant and deciding when to tell work, our guide to telling your employer you're pregnant covers the notice rules and your protections.
What did TAC readers tell us?
We asked our community whether it is ok for male managers to ask female employees about their family plans.
Most said no, whoever is asking. Many said the question turns up at work moments that matter, such as reviews and promotion chats, and that the person asking can't forget the answer.
Got asked last week in my annual performance review what my '5 year plan is', as I'm getting married soon, and kids maybe affect which roles I'm best 'suited for'....
Exact wording was "don't be one of those girls that has babies right after getting married... we need you to work"
Male or female aside, family planning is so personal. And everyone's journey/timeline is so different. And there's just no way a manager doesn't let that knowledge bias opportunities for that person.
Fun fact: I (male) get frequently asked by my boss when I take sick leave when my children are sick, why my wife is not taking care of them instead of me. We live in 2026, is this still appropriate to ask?
If it's just part of a regular conversation and it wouldn't have any impact on their role or career, then probably fine. The second that question is "work-related", massive red flag
You're better off disclosing than risk having everyone guessing behind your back.
This is general information, not legal advice. Anti-discrimination laws outside the Fair Work Act may also apply to your situation.
Sources
- Fair Work Ombudsman, Protection from discrimination at work (protected attributes, adverse action, applicants and new employees, the interview and training course examples, positive duty under the Sex Discrimination Act, last updated 17 June 2026)
- Fair Work Ombudsman, Protections at work (workplace rights, general protections disputes with or without dismissal, 21 days)
- Fair Work Ombudsman, Entitlements while pregnant (can't be fired, demoted or treated differently because pregnant)
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