On April 17, 2014, the Florida Supreme Court resolved a conflict in Florida law: whether discrimination based on pregnancy constitutes “sex” discrimination in violation of the Florida Civil Rights Act of 1992 (“FCRA”). The Court held that because pregnancy is a “natural condition unique to women and a ‘primary characteristic of the female sex,’” discrimination on the basis of pregnancy is unlawful sex discrimination. Delva v. The Continental Group, Inc., Case No. SC12-2315, 2014 Fla. LEXIS 1316 (Fla. Apr. 17, 2014).
Under Title VII of the federal Civil Rights Act of 1964 (“Title VII”), the federal equivalent of the FCRA, it took a congressional act to make pregnancy discrimination unlawful. In 1976, the U.S. Supreme Court held that Title VII does not prohibit pregnancy discrimination. Two years later, in response to the U.S. Supreme Court, Congress passed the Pregnancy Discrimination Act (“PDA”), which amended Title VII to clarify that discrimination on the basis of pregnancy is sex discrimination and therefore unlawful.
The FCRA was patterned after Title VII. Consequently, Florida courts have held that the FCRA shall be given the same meaning as Title VII. The Florida legislature, however, has not amended the FCRA to include pregnancy discrimination. Because Florida did not amend the FCRA, a conflict developed among Florida courts regarding whether the FCRA prohibits pregnancy-based discrimination.
In Carsillo v. City of Lake Worth, 995 So. 2d 1118, 1121 (Fla. 4th DCA 2008), the Fourth District Court of Appeals (the “4th DCA”) held that the FCRA prohibited pregnancy-based discrimination. Because the PDA explained that Congress intended to prohibit pregnancy discrimination when it first enacted Title VII, the 4th DCA found that the FCRA should likewise be read as originally intending to prohibit pregnancy-based discrimination.
Four years later, the Third District Court of Appeals (the “3d DCA”) addressed the same question and disagreed with the 4th DCA. Because Florida did not amend the FCRA to include pregnancy-based discrimination, the 3d DCA found that the FCRA did not prohibit pregnancy-based discrimination. The 3d DCA consequently certified conflict with the 4th DCA. The Florida Supreme Court recently resolved that conflict in Delva v. The Continental Group, Inc., Case No. SC12-2315, 2014 Fla. LEXIS 1316 (Fla. Apr. 17, 2014).
According to the Florida Supreme Court, the Florida legislature does not have to amend or clarify the FCRA to prohibit pregnancy-based discrimination. Relying on the FCRA’s provision that the FCRA “shall be liberally construed” in favor of victims of employment discrimination, the Florida Supreme Court held in a 6 to 1 decision that discrimination on the basis of pregnancy is sex discrimination. Chief Justice Ricky Polston was the sole dissenter arguing that because the plain meaning of the term “sex” does not encompass pregnancy, the FCRA does not prohibit pregnancy-based discrimination.
It seems, however, that the ultimate outcome might have turned out the same regardless of how the Florida Supreme Court ruled. Less than one month before the Florida Supreme Court’s decision in Delva, the Florida Senate unanimously approved a bill (SB 0220) that would amend the FCRA to expressly include pregnancy-based discrimination as unlawful under the FCRA. Also, just five days before the Florida Supreme Court’s decisions, the judicial committee of the Florida House approved the House version of the bill amending the FCRA (HB 0105).
Peter T. Mavrick has successfully represented many employers in labor and employment matters. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.