Effective July 1, 2015, the Florida Civil Rights Act (FCRA) will include an amendment expressly prohibiting pregnancy-based discrimination in employment practices and places of public accommodation. See Ch. 2015-68, §§ 1-8, Laws of Fla. The bill codifies and extends the Florida Supreme Court’s 2014 ruling, Delva v. Continental Group, Inc., in which the Court held that the FCRA’s prohibition against sex discrimination in employment practices includes a ban on pregnancy-based discrimination. See 137 So. 3d 371 (Fla. 2014) (hereinafter Delva II); Ch. 2015-68, §§ 2-6, Laws of Fla. The Court’s decision did not address whether the same rule applies as to pregnancy discrimination in places of public accommodation. However, the recent amendment to the FCRA clarifies that it does.

The FCRA is patterned after Title VII of the federal Civil Rights Act of 1964, and prohibits “discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status.” See § 760.01(2), Fla. Stat. (emphasis added). Congress passed the Pregnancy Discrimination Act (PDA) in 1978, which amended Title VII to expressly include pregnancy status as a component of sex discrimination. The FCRA did not contain a similar provision until the Florida Legislature’s recent amendment. Because of this, state and federal courts were historically divided as to whether discrimination based on pregnancy was an unlawful practice under the FCRA.

This question was resolved in Delva II, which clarified that the FCRA’s prohibition against sex discrimination prevents an employer from discriminating based on pregnancy, a natural condition that is unique to women. In so concluding, the Florida Supreme Court reasoned that to hold otherwise would undermine the purpose of the FCRA—to secure for all individuals within the state freedom from discrimination because of sex. The Court rejected arguments that the Florida Legislature’s failure to amend the FCRA to include an express pregnancy protection indicated an intent not to include pregnancy within the meaning of employment sex discrimination.

Taking its cue from the Florida Supreme Court, the Florida Legislature has left no room for disagreement about whether the FCRA’s prohibition against sex discrimination includes pregnancy, whether in the context of employment or public accommodation. The amendment to the FCRA, approved by Governor Rick Scott on May 21, 2015, codifies and extends the prohibition against unlawful employment practices as to pregnant women announced in Delva IIby specifically and expressly protecting against “pregnancy” discrimination in both contexts.

What this Means for Employers with Florida Employees

The 2015 amendment to the FCRA specifically provides that an employer may not discriminate against a woman affected by pregnancy, provided that the discriminatory act constitutes an unlawful employment practice. Such unlawful employment practices continue to include the following:

  • Discharging or failing to hire an individual, or otherwise discriminating against an individual with respect to compensation, terms, conditions, or privileges of employment;
  • Limiting, segregating, or classifying employees or applicants for employment in ways that would deprive such individuals of employment opportunities or adversely affect an individual's status as an employee;
  • Failing or refusing to refer an individual for employment;
  • Excluding or expelling an individual from membership in a labor organization or limiting, segregating, or classifying the membership of a labor organization;
  • Discriminating in admission to, or employment in, any program established to provide apprenticeship or other training for a profession, occupation, or trade;
  • Discriminating in licensing, certification, credentials, examinations, or an organizational membership required to engage in a profession, occupation, or trade; and
  • Printing or publishing ads related to membership in certain labor organizations or employment that indicate a preference, limitation, specification, or discrimination.

§ 760.10, Fla. Stat.

Employers in Florida should prepare for the FCRA amendment by considering pregnancy-related conditions that the amendment may implicate, reviewing their current policies, and training their supervisors to be mindful that Florida law now expressly prohibits employers from discriminating based on pregnancy.