Executive Summary: The Florida Supreme has held that the Florida Civil Rights Act's (FCRA) prohibition against discrimination on the basis of sex includes discrimination based on pregnancy. See Delva v. The Continental Group, 2014 Fla. LEXIS 1316 (April 17, 2014). In reaching this conclusion, the Court noted that pregnancy is a "natural condition and primary characteristic unique to the female sex." The Court's decision resolves a split of authority among the lower courts on this issue.
In Delva, the plaintiff claimed her employer took adverse employment actions against her, including scrutinizing her work more closely and denying her requests for shift changes, after she revealed she was pregnant. The trial court dismissed her lawsuit, and the Third DCA affirmed this decision, finding the FCRA does not prohibit pregnancy discrimination. The court relied in part on the reasoning of O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991), in which the First DCA noted that the FCRA, which is patterned after Title VII, was not amended when Congress amended Title VII by enacting the Pregnancy Discrimination Act. The Third DCA's decision in Delva was in direct conflict with the decision of the Fourth DCA in Carsillo v. City of Lake Worth, 995 So. 2d 1118, 1120 (Fla. 4th DCA 2008), which held that the FCRA does prohibit discrimination based on pregnancy. Accordingly, the Florida Supreme Court agreed to review the Third DCA's decision to resolve this conflict.
The Florida Supreme Court's Decision
In reviewing the Third DCA's decision, the Florida Supreme Court noted that although O'Loughlin stated that the FCRA does not recognize pregnancy discrimination, it ultimately affirmed the plaintiff's recovery on her pregnancy discrimination claim, which was filed only under the FCRA. The Court also noted that reliance on the O'Loughlin decision has produced varying results, as the decision has been interpreted differently by federal district courts analyzing pregnancy discrimination claims under the FCRA.
The Court then analyzed the specific language of the FCRA, which provides that it is unlawful for an employer 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 . . . sex . . ." Fla. Stat. § 760.10. In interpreting this provision, the Court attempted to give effect to legislative intent in enacting the statute by examining the language of the statute and its plain meaning. The FCRA explicitly provides that it should be liberally construed to further the general purposes of the Act and the special purposes of the specific provision involved.
The Court noted that § 760.10 does not specifically include the term "pregnancy" in listing the classes of protected individuals. The Court also noted, however, that the FCRA explicitly makes it unlawful for employers to discriminate against an individual because of that person's sex. Quoting a decision from the Massachusetts Supreme Court analyzing a similar state law, the Court embraced the Massachusetts court's "common-sense reasoning . . . that pregnancy is a natural condition unique to women and a ‘primary characteristic of the female sex.'"
The Court construed the FCRA to further the statute's purpose of ensuring that women in Florida are free from discrimination based on their sex and concluded that pregnancy discrimination is subsumed in the FCRA's prohibition against discrimination based on an individual's sex. The Court quoted with approval a decision of the Minnesota Supreme Court holding that "pregnancy discrimination is subsumed within sex discrimination, as ‘[a] woman should be no more burdened than a man if she chooses to combine the roles of parent and employee, simply because the woman must bear the child.'" The Florida Supreme Court held that "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."
The Court remanded the case with instructions to reinstate the plaintiff's complaint, but did not rule on the merits of her complaint.
Employers' Bottom Line:
The Court's decision resolves a long-standing division among the lower courts on this issue. The Florida legislature is also considering legislation that would amend the FCRA to prohibit discrimination based on pregnancy.
Although Title VII also prohibits pregnancy discrimination, the Court's decision increases the potential recovery for a successful plaintiff who files both a state and federal pregnancy discrimination complaint, because the state law does not have the same damages limits as Title VII. Accordingly, employers should continue to be vigilant in ensuring that their workplaces are free from unlawful discrimination, including discrimination based on pregnancy.