By Ashtin Henninger

UPDATE: The Court has issued its opinion in this case. It is discussed here.

In Delva v. The Continental Group, Inc. (SC12-2315), argued on November 7, 2013, the Florida Supreme Court heard arguments about whether the Florida Civil Rights Act prohibits pregnancy discrimination as a form of sex discrimination.

Delva, the plaintiff, worked at a residual property managed by her former employer. The Continental Group, Inc. (“Continental”). After informing the company that she was pregnant, she was allegedly not allowed to change shifts based on pregnancy-related needs, cover other employees’ shifts, or scheduled for work following maternity leave. Delva filed suit against Continental in Miami-Dade Circuit Court, alleging Continental’s actions were due to her pregnancy, and that they violated the prohibition against sex discrimination in the Florida Civil Rights Act of 1992 (FCRA), section 760.01 Fla. Stat., et seq. Continental was granted a motion to dismiss with prejudice after arguing that pregnancy discrimination was not prohibited by FCRA. The trail court’s decision was affirmed by the Third DCA, which held that FCRA does not prohibit pregnancy discrimination.

At the Florida Supreme Court, Delva argued pregnancy discrimination should be treated as a form of sex discrimination under FCRA. Delva argued that because the FCRA is modeled after Title VII of the Civil Rights Act of 1964, it should be afforded the same construction. Delva claimed that although Title VII was interpreted by the U.S. Supreme Court as not prohibiting pregnancy discrimination as a form of sex discrimination, General Elec. Co. v. Gilbert, 429 U.S. 125 (1976), the Pregnancy Discrimination Act of 1978 (PDA), which clarified Title VII to specifically include pregnancy discrimination in the definition of sex discrimination, must be considered when interpreting the FCRA. Delva argued that Florida’s legislature did not need to amend the FCRA because state courts must construe FCRA to provide at least the same level of protection as Title VII. Delva contended that Title VII, even prior to the PDA amendment, permitted claims of pregnancy discrimination as a form of sex discrimination, just not on a per se basis (that is to say, an act that discriminated on the basis of pregnancy might still be used to show impermissible sex discrimination). Delva contended that the legislature intended pregnancy discrimination as a viable action under state law after the adoption of the PDA, evident by the reenactment of the FCRA following O’Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991) (the court held that FCRA was preempted by Title VII to the extent it did not recognize pregnancy discrimination as sex discrimination). According to Delva, the legislature was presumed to have knowledge of the judicial construction and intended to adopt it, absent explicit exclusion.

Continental argued that pregnancy discrimination is not covered under FCRA because the plain and ordinary language of the term “sex” does not encompass “pregnancy”. Continental asserted that if the Legislature intended “pregnancy” to be included under “sex” in FCRA it would have included “pregnancy” under the definitions section after the PDA amendment to Title VII, in spite of amending FCRA several times.

The decision of the Florida Supreme Court will resolve a split between the First and Fourth DCAs on the one hand, which hold that FCRA prohibits discrimination on the basis of pregnancy as a form of sex discrimination, with the Third, which held that the prohibition on sex discrimination in FCRA does not apply to discrimination based on pregnancy. Compare O’Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991); Carsillo v. City of Lake Worth, 995 So.2d 1118 (Fla. 4th DCA 2008); and Delva v. The Continental Group, Inc., 96 So.3d 956 (3rd DCA 2012).

Video of the oral argument is available from WFSU here.

Florida Supreme Court Considers Whether Pregnancy Discrimination is Prohibited as a Form of Sex Discrimination Under State Law

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