The Florida Civil Rights Act’s ban on discrimination based on gender can cover claims of pregnancy discrimination, the Florida Supreme Court has ruled, resolving a conflict among the appellate courts in the state. Delva v. The Continental Group, Inc., No. SC12-231 (Fla. Apr. 14, 2014).
The Florida Civil Rights Act of 1992 (“FCRA”) does not include the word “pregnancy” in the classes of individuals that are protected from employment discrimination. The statute, however, makes it an unlawful employment practice for an employer to discriminate against any individual because of the individual’s sex.
Peguy Delva worked as a front desk manager for The Continental Group, Inc., a property management firm. In 2011, Delva filed a lawsuit against her former employer, alleging that because of her pregnancy, in violation of the FCRA, Continental conducted heightened scrutiny of her work, refused to allow her to change shifts and work extra shifts despite company policy permitting those actions, refused to allow her to cover other workers’ shifts and refused to schedule her for work after she returned from maternity leave.
The trial court dismissed Delva’s complaint for failure to state a cause of action. An intermediate appellate court affirmed the dismissal.
Florida Supreme Court Decision
Ruling the FCRA covers pregnancy, the Florida Supreme Court noted that “pregnancy is a natural condition unique to women and a primary characteristic of the female sex … [and] discrimination based on pregnancy is in fact discrimination based on sex because it is discrimination as to a natural condition unique to only one sex….” In “[l]iberally construing the FCRA to further its purpose to ensure that the women of this state are free from discrimination based on their sex,” the Florida Supreme Court concluded that “discrimination based on pregnancy is subsumed within the prohibition in the FCRA against discrimination based on an individual’s ‘sex.”’ The high court explained, “To conclude that the FCRA does not protect women from discrimination based on pregnancy — a primary characteristic of the female sex — would undermine the very protection provided in the FCRA to prevent an employer from discriminating against women because of their sex.”
Past Conflict in Appellate Court Decisions
The intermediate appellate court, the Third District Court of Appeals, agreed with another Florida appeals court that had rejected a similar pregnancy discrimination claim in 1991. O’Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st D.C.A. 1991). That court based its decision on a U.S. Supreme Court holding “that discrimination on the basis of pregnancy was not sex discrimination under Title VII” of the federal Civil Rights Act of 1964, the statute upon which the FCRA was patterned. In 1978, however, in response to the U.S. Supreme Court holding, Congress amended Title VII by enacting the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k). The PDA specifies that discrimination on the basis of pregnancy is sex discrimination, and therefore violative of Title VII. Since “Florida has not similarly amended its Human Rights Act to include a prohibition against pregnancy-based discrimination,” the earlier decision reasoned, pregnancy discrimination was not proscribed by the FCRA.
The Third District acknowledged, but did not follow, the reasoning of yet another Florida appellate court. Carisillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th D.C.A. 2008). That court found it was unnecessary for the FCRA to be amended in order to cover pregnancy discrimination, because in enacting the PDA, Congress made it clear that it intended to prohibit discrimination based on pregnancy as sex discrimination when it originally enacted Title VII.
Employers should continue to ensure their policies and procedures prohibit discrimination on the basis of sex, including pregnancy, train managers and supervisors on anti-discrimination policies and practices and provide employees an avenue to voice complaints of discrimination.