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The Law Offices of Robin Bresky Boca Raton & West Palm Beach Appellate Attorney
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Florida Supreme Court: State Law Prohibits Discrimination on the Basis of Pregnancy

Florida Supreme Court: State Law Prohibits Discrimination on the Basis of Pregnancy

On April 17, 2014, the Florida Supreme Court decided that “discrimination because of sex” under the Florida Civil Rights Act (“FCRA”) includes discrimination based on pregnancy, which is a “natural condition and primary characteristic unique to the female sex.” Delva v. Continental Group, Inc., 39 Fla. L. Weekly S 246 (Fla. 2014).

Although the Pregnancy Discrimination Act of 1978 had long ago specified that discrimination on the basis of pregnancy constitutes prohibited sex discrimination under federal law, the appellate courts in Florida had been divided as to whether the prohibition on sex discrimination by employers under Florida law included pregnancy.

In 1991 the First District Court of Appeal in Tallahassee apparently decided that pregnancy was not covered by the FCRA (we say “apparently” because other courts have interpreted the First DCA’s opinion in different ways). In 2008 the Fourth District Court of Appeal in West Palm Beach held that discrimination on the basis of pregnancy is prohibited by the FCRA. In 2012 the Third District Court of Appeal in Miami held that the FCRA does not prohibit discrimination on the basis of pregnancy.

The Third DCA case arose from a trial court’s dismissal of a woman’s pregnancy-discrimination complaint. The trial court concluded that she failed to state a cause of action because there was no right to non-discrimination based on pregnancy under Florida law and she had not made a claim under federal law. Although section 760.10(1)(a), Florida Statutes, prohibits discrimination on the basis of sex, the trial court reasoned that the statute had not been amended to specify pregnancy. The Third DCA affirmed the trial court’s order dismissing the complaint.

However, the Third DCA certified that its decision was in direct conflict with the Fourth DCA’s 2008 decision that the sex-discrimination provision in the Florida Civil Rights Act includes discrimination based on pregnancy. The Florida Supreme Court accepted jurisdiction to resolve that conflict.

The Florida Supreme Court disagreed with the Third DCA’s view that the statute would have to be amended to specify pregnancy. The Supreme Court concluded that the Legislature intended for the FCRA to be liberally construed to further its purpose of ensuring that the women of Florida are free from discrimination based on their 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 and that arises ‘because of [an] individual’s . . . sex’” under section 760.10(1)(a), Florida Statutes. The Supreme Court held that the FCRA “makes [it] clear that discrimination based on pregnancy, a natural condition unique to females and a primary characteristic of the female sex, is subsumed within the prohibition in the FCRA against sex discrimination in employment practices.”

Thus, the Supreme Court decided that the Miami-Dade County plaintiff had stated a cause of action under the FCRA and the trial court had erred in dismissing her complaint. The Supreme Court remanded the case with directions for the trial court to reinstate the plaintiff’s complaint.

While the Delva decision makes it clear that employers cannot discriminate against female employees on the basis of pregnancy, there may be some debate as to how this decision will affect women who suffered pregnancy-based discrimination before the Delva opinion was issued on April 17, 2014. Employers might assert the “pipeline doctrine” (the idea that, when a state’s highest court interprets a statute and does not specify that the decision is retroactive, it will apply to future claims and to cases that are already in progress in the trial courts or appellate courts). But the Fourth DCA’s Carsillo decision, of which the Florida Supreme Court largely approved, concluded in 2008 that the Florida statute has always meant that sex discrimination includes pregnancy discrimination. And the Florida Supreme Court has previously recognized, in a different context, a “general rule . . . that a Supreme Court decision is retrospective . . . in its application unless declared by the opinion to have prospective effect only.” Melendez v. Dreis & Krump Mfg. Co., 515 So. 2d 735, 736 (Fla. 1987) (internal quotes and citation omitted). Moreover, the Fourth DCA’s 2008 decision probably was applicable in most districts of Florida because of the principle that a decision in one appellate district will apply in other districts that have not yet decided the issue. Thus, the 2008 decision of the Fourth District probably applied throughout the state, except perhaps in the First District, until the Third DCA issued its opinion in 2012.

Considering these potential issues, it will be interesting to see if the courts recognize a right to sue under the Florida Civil Rights Act for pregnancy-based discrimination that occurred, outside of the Fourth District, before the Supreme Court’s Delva decision.

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