The Florida Civil Rights Act, which. among other things, prohibits sex discrimination in employment, does not prohibit pregnancy discrimination, according to a recent decision by a federal judge in Florida.
If you think that sounds crazy, think again. The court’s decision in Duchateau v. Camp Dresser & McKee, Inc., Case No. 10-6-0712-CIV-ZLOCH/ROSENBAUM (S.D. Fla., October 4, 2011) is supported by logic and precedent. However, courts are divided on this issue.
Here’s the logic. Congress enacted Title VII in 1964, thereby prohibiting sex discrimination in employment. Five years later, the Florida legislature passed the Florida Human Relations Act, which prohibited discrimination based on "race, color, religion, or national origin."In 1972, the Florida legislature amended the Florida Human Relations Act to ensure "freedom from discrimination because of sex." In 1976, the Supreme Court ruled in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) that Title VII did not prohibit pregnancy discrimination. Because Florida law provides that a Florida statute patterned after a federal law will be given the same construction as the federal courts give the federal act, it was clear after Gilbert that the Florida Human Relations Act did not prohibit pregnancy discrimination, either. Subsequent amendments to the Florida Human Relations Act (including changing its name to the Florida Human Rights Act ("FHRA") did not add pregnancy as a protected status, despite the Supreme Court’s decision in Gilbert.
In 1978, in response to Gilbert, Congress enacted the Pregnancy Discrimination Act ("PDA"), which amended Title VII by re-defining sex discrimination to include discrimination on the basis of pregnancy. Yet Florida did not amend the FHRA in the years following the enactment of the PDA. In 1991, Florida’s First District Court of Appeal in O’Loughlin v. Pinchback, 579 So. 2d 788, 791-92 (Fla. 1st DCA 1991), concluded that the FHRA did not prohibit pregnancy discrimination.
In 1992, the Florida legislature amended the FHRA, including changing its name to the Florida Civil Rights Act of 1992. Still, despite O’Loughlin, these amendments did not modify the statute’s references to sex discrimination or otherwise suggest an intention to prohibit pregnancy discrimination. The language of the FCRA prohibiting discrimination on the basis of sex continued to include the pre-PDA language of Title VII. Thus, the Florida Civil Rights Act does not prohibit pregnancy discrimination.
That’s the logic, anyway. In Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), Florida’s Fourth District Court of Appeals reached a different conclusion. Noting that when Congress enacted the PDA, it "expressed its disapproval of both the holding and the reasoning of Gilbert," the Fourth DCA concluded that "Congress made clear in 1978 that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination." Because the FCRA is patterned after Title VII, the Fourth District reasoned, "it follows that the sex discrimination prohibited in Florida since 1972 included discrimination based on pregnancy[.]"
I don’t believe Carsillo makes sense. Whether Congress intended to prohibit pregnancy discrimination when it enacted Title VII would seem to be irrelevant in light of the U.S. Supreme Court’s holding in Gilbert that Title VII did not prohibit pregnancy discrimination. The Supreme Court is the final word on this issue. That’s why it took an amendment to Title VII, the PDA, to prohibit pregnancy discrimination under Title VII. Because the Florida statute was patterned after the pre-PDA version of Title VII, and was never amended to prohibit pregnancy discrimination, it would seem to follow that the Florida Civil Rights Act does not prohibit pregnancy discrimination.
That is not to suggest that women are without recourse in Florida if they are discriminated against because of their pregnancy: they can always sue under Title VII. But until the Florida Supreme Court decides the issue, whether a woman can state a cause of action for pregnancy discrimination under the Florida Civil Rights Act will depend on the court in which she litigates her case. In addition to the split among the First and Fourth district courts of appeal, federal courts in Florida are also divided on this issue. Compare Boone v. Total Renal Labs., Inc., 565 F. Supp. 2d 1323, 1326-27 (M.D. Fla. 2008) (holding that the FCRA does not provide a claim for pregnancy discrimination), Whiteman v. Cingular Wireless, LLC, Case No. 04-80389-CIV-PAINE, D.E. 114 at 11 (S.D. Fla. May 3, 2006) (same), aff’d, 273 F. App’x 841 (11th Cir. 2008) (per curiam), and Frazier v. T-Mobile USA, Inc., 495 F. Supp. 2d 1185, 1187 (M.D. Fla. 2003) (same), with Constable v. Agilysys, Inc., 2011 WL 2446605, at *6 (M.D. Fla. June 15, 2011) (concluding that the FCRA does provide a cause of action for pregnancy discrimination), and Terry v. Real Talent, Inc., 2009 WL 3494476, at *2 (M.D. Fla. Oct. 27, 2009) (same).