In good news for Florida employers, the latest state appellate court to address whether the Florida Civil Rights Act (FCRA), which prohibits discrimination based on race, color, creed, sex, nationality, age, disability, or sexual orientation, covers pregnancy discrimination has found the FCRA does not prohibit pregnancy discrimination. Delva v. Continental Group, Inc., 2012 Fla. App. LEXIS 11966 (Fla. 3d DCA July 25, 2012).

This is one of only three Florida appeals court decisions on the issue; however, it aligns with one, but is in conflict with the other. See Carisillo v. City of Lake Worth, No. 502004-CA-010584-XXXMBAJ (Fla. 4th DCA Sept. 10, 2008); O’Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991). Delva is in conflict with Carisillo, in which the court found the claim essentially equal to gender discrimination. The Delva court has certified a conflict with Carsillo, meaning the Florida Supreme Court may decide the issue and end the conflict. The conflict has particular significance for employers in South Florida. The Third DCA, covering Miami-Dade County, is neighbor to the Fourth DCA, which covers Broward and Palm Beach. Therefore, whether a female employee can bring a cause of action under the FCRA for pregnancy discrimination depends on the court in which she files her case.

The Delva court examined both O’Loughlin and Carisillo, ultimately agreeing with the reasoning in O’Loughlin. The O’Loughlin court relied heavily on the U.S. Supreme Court’s General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which determined that discrimination based on pregnancy was not sex discrimination under Title VII of the Civil Rights Act. Later, the Pregnancy Discrimination Act of 1978 (PDA) amended Title VII to prohibit discrimination based on pregnancy. The OLoughlin court found it significant that the Florida Legislature did not amend the state law to include such a prohibition.

Pregnant employees in Florida may bring an action under the PDA. However, many plaintiffs prefer the FCRA, with its four-year statute of limitations (in contrast, Title VII requires filing suit within 90 days after receiving a right-to-sue letter from the Equal Employment Opportunity Commission) and no cap on compensatory damages (Title VII caps vary based on the size of the employer).

We will keep you posted as this issue continues to develop in the appellate courts