Last week in Delva v. The Continental Group, Inc., the Third District Court of Appeal held that the Florida Civil Rights Act ("FCRA") does not prohibit pregnancy discrimination. In this blog last year, we discussed and analyzed the status of this issue.
The Third DCA's decision is good for employers, and is in line with the First DCA and most federal courts that have reached this issue. But, it is in conflict with the 4th DCA's Carsillo decision from 2008. In Delva, the Third DCA certified a conflict with Carsillo, which may prompt the Florida Supreme Court to resolve this question once and for all.
The Third DCA covers Miami-Dade County, while the Fourth DCA covers Broward and Palm Beach. So, this conflict is of particular import to South Florida employment attorneys and their clients.
Some may ask why this is a big deal. Women who believe they have a pregnancy discrimination claim can always sue under federal law. But, if they file under federal law, employers will have a right to litigate the case in federal court. Some plaintiff's attorneys want to litigate in state court exclusively, and are hesitant to take cases that may require them to be in federal court. The Delva decision should dissuade those attorneys from filing pregnancy discrimination claims in Miami-Dade County.
So, while Delva doesn't resolve the ultimate question, it takes us one step closer to clarity.