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Third District Court of Appeal Holds Florida Civil Rights Act Does Not Prohibit Pregnancy Discrimination

By:  Dana Chang, an associate at Clarke Silverglate, P.A. in Miami, Florida

In a recent decision, Delva v. Cont’l Group, Inc., 2012 WL 3022986 (Fla. 3d DCA 2012), the Third District Court of Appeal[1] joined the First District Court of Appeal, holding that the Florida Civil Rights Act (“FCRA”) does not prohibit pregnancy discrimination. This decision is at odds with a Fourth District Court of Appeal decision, Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008).

The Court adopted the reasoning in O’Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991), where the court determined that because the FCRA was not amended to reflect the language of the Pregnancy Discrimination Act of 1978 (“PDA”), the Florida legislature did not intend to include a proscription on pregnancy discrimination.

The PDA was enacted in response to a U.S. Supreme Court case, General Electric Company v. Gilbert, 429 U.S. 125 (1976), which held that pregnancy discrimination was not sex-based discrimination and, therefore, was not protected under Title VII. The PDA amended Title VII, explicitly providing that sex-based discrimination includes “pregnancy, child birth, or related medical conditions.” 42 U.S.C. § 2000e. The FCRA was patterned after Title VII and maintains the original language of Title VII’s employment discrimination provisions.[2]

The Delva Court certified conflict with Carsillo.  The Florida Supreme Court has not yet resolved the conflict.

Bottom Line: Until the Florida Supreme Court decides the issue or the Florida legislature amends the FCRA, the treatment of pregnancy discrimination under the FCRA will depend on where the case is filed.  While the viability of a pregnancy discrimination claim brought under FCRA varies by court, Title VII continues to prohibit pregnancy discrimination.  Accordingly, employers should continue to comply with Title VII’s proscription on pregnancy discrimination.




[1] The Third District Court of Appeal hears appeals from Miami-Dade and Monroe Counties.

[2] FCRA prohibits an employer from discriminating against an individual based on “race, color, religion, sex, national origin, age, handicap, or marital status.” Fla. Stat. § 760.10(1)(a).

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