In a 1980s era tourism campaign, Florida proclaimed that “The Rules Are Different Here!” The campaign’s goal was to highlight hassle-free vacationing in Florida.  Today, the slogan can be equally applied to the state of the law with respect to accommodating pregnant employees.  While the responsibilities of an employer under federal law to accommodate pregnant employees is unsettled, it has been decided under Florida law.  On April 17, 2014, the Florida Supreme Court issued its decision in Delva v. Continental Group, Inc. holding that even though the Florida Civil Rights Act (the name having been changed several times through the years) does not mention pregnancy, it nevertheless prohibits discrimination based on pregnancy.

Fifty years ago, Congress adopted Title VII of the Civil Rights Act making it unlawful for employers to discriminate in compensation, terms, conditions, or privileges in employment based on race, ethnic origin, religion and sex.  Following Congress’ lead, in 1969 the Florida legislature adopted the Florida Human Relations Act likewise prohibiting discrimination based on race, color, religion or national origin.  Neither law, however, stated whether discrimination based on pregnancy was prohibited.

In 1976 in General Elec. v. Gilbert, the United States Supreme Court ruled that an employer’s refusal to cover pregnancy in an employer provided disability-benefits plan did not violate the federal Civil Rights Act.  In 1978, Congress adopted the Pregnancy Discrimination Act to overturn Gilbert.  That Act provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”  Although Florida’s Civil Rights Act was patterned on the federal Civil Rights Act, Florida’s law was never amended to specifically prohibit discrimination based on pregnancy.

On December 3, 2014, the United States Supreme Court heard oral arguments in Young v. United Parcel Service, Inc. which questions whether an employer who provides work accommodations to nonpregnant employees with work limitations is required to provide those same accommodations to pregnant employees.   The trial court granted summary judgment against the plaintiff’s claim for discrimination and was affirmed by the Fourth Circuit Court of Appeals.  The Justices’ questions at oral argument suggest a clear divide among them Court on the extent of the protections under the Pregnancy Discrimination Act.

In Delva the Florida Supreme wrote that “the statutory phrase making it an ‘unlawful employment practice for an employer … to discriminate … because of … sex’ as used in the FCRA includes discrimination based on pregnancy, which is a natural condition and primacy characteristic unique to the female sex.”  On this conclusion, the Florida Supreme Court said that an employer is required to provide accommodations to pregnant employees.

Notwithstanding how the United States Supreme Court rules in Young, because Delva was decided on a statutory interpretation of Florida’s Civil Rights Act, the Delva decision is the law of Florida.

Florida: The Rules Are Still Different Here!