Patiently Waiting for the Florida Supreme Court to Decide Whether Pregnant Women Are Protected Under the Florida Civil Rights Act

By Jeannie Liebegott, Esq.*

There is currently a conflict within the Florida circuits on the issue of whether the Florida Civil Rights Act (§§ 760.01-010, Florida Statutes) protects against workplace discrimination based on pregnancy. This issue was heard by the Florida Supreme Court in late May 2013, in the case of Delva v. The Continental Group, Inc., 96 So.3d 956 (Fla. 3^rd DCA 2012), and the ruling is still pending.

The Florida Civil Rights Act of 1992 (FCRA) states in §760.10:

It is an unlawful employment practice for an employer: (a) to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

The Pregnancy Discrimination Act of 1978 (the PDA), 42 U.S.C. § 2000(e)(k), specifically states that discrimination based on pregnancy is sex discrimination and violates Title VII, The PDA directs that “[t]the terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy.” Delva, 96 So.3d at 957.

In Delva, the Third District Court of Appeals held that the FCRA does not prohibit pregnancy discrimination based on the Florida legislature’s failure to add language similar to the PDA [Title VII of the Federal Civil Rights Act as amended by Pregnancy Discrimination Act (PDA)] to the FCRA when it was enacted in 1992. Delva held that the “[l]egislature did not intend to include a proscription on pregnancy discrimination in the FCRA.” The court adopted the rationale by the First District in O’Loughlin v. Pinchback, 579 So.2d. 788 (Fla. 1^st DCA 1991).

Conversely, the Fourth District Court of Appeals reversed the lower court’s ruling in Carsillo v. City of Lake Worth, 995 So.2d 1118 (Fla. 4^th DCA 2008), stating that it is well-established that if a Florida statute is patterned after federal law, the Florida statute will be given the same construction as the federal courts give the federal act. In Carsillo, the employee sued her employer, alleging pregnancy discrimination and retaliation under the FCRA. The employee had requested an accommodation in the fire department because she was pregnant. She was offered a light-duty assignment, but not with the fire department. The employee alleged that other employees with physical restrictions had been accommodated within the fire department.

In Carsillo, the Fourth District Court of Appeals applied Jackson and held that the FCRA has always prohibited pregnancy discrimination, except for the brief period while Gilbert (1976 U.S. Supreme Court opinion which resulted in the PDA being passed by Congress) was good law. The Carsillo court concluded by stating that a prohibition on pregnancy discrimination under the FCRA is consistent with the expressed intent of the legislature and should liberally be construed for victims of employment discrimination. The court focused on the fact that when the legislature enacted the PDA, it clearly explained that it intended to prohibit pregnancy. “Because it was the intent of Congress in 1964 to prohibit this discrimination, and under Jackson [State v. Jackson, 650 So.2d 24 (Fla. 1985)] we construe Florida statutes patterned after federal statutes in the same manner that the federal statutes are construed, it follows that the sex discrimination prohibited in Florida since 1972 included discrimination based on pregnancy.”

This is a matter of first impression for the Florida Supreme Court and will hopefully answer the question of whether pregnant women are, in fact, protected under the Florida Civil Rights Act. As addressed in Carsillo, “The lack of such an amendment [to the FCRA, similar to the PDA] in Florida is what underlies the controversy as to whether Florida prohibits pregnancy discrimination.”

*Jeannie is an associate in our Fort Lauderdale, Florida, office who can be reached at 954.847.4953 or jaliebegott@mdwcg.com.

Defense Digest, Vol. 20, No. 1, March 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.