Fourth DCA Rules (Again) that the Florida Civil Rights Act Prohibits Pregnancy Discrimination
The Fourth District Court of Appeals has issued a revised opinion in Carsillo v. City of Lake Worth, which I reported on in September. The result is the same under the revised opinion -- the FCRA prohibits pregnancy discrimination -- but the court has refined its analysis. Or maybe refined is not the right term....
First, some background. Some courts, including most recently John Antoon II, United States District Judge for the Middle District of Florida, in the case of Boone v. Total Renal Laboratories, Inc. (Case No. 6:08-cv-562-Orl-28KRS) (a case in which I represented the defendant, and which I reported on here) have held that the Florida Civil Rights Act does not prohibit pregnancy discrimination. The logic of these decisions is as follows: The Florida Human Rights Act (“FHRA”), which subsequently was reenacted and renamed the Florida Civil Rights Act, is patterned after Title VII. In General Electric Co. v. Gilbert, 429 U.S. 125, 136 (1976), the United States Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. Thus, the FHRA did not prohibit pregnancy discrimination, either. In 1978, the PDA amended Title VII to define the phrases “because of sex” and “on the basis of sex” to include disparate treatment of women due to the condition of pregnancy. In 1992, the Florida legislature reenacted the FHRA and renamed it the “Florida Civil Rights Act.” But these amendments failed to include pregnancy as a protected category. Therefore, the FCRA does not prohibit pregnancy discrimination.
In Carsillo, the Fourth DCA rejected this argument, reasoning that "when Congress passed the PDA in 1978, it explained that it had intended to prohibit discrimination based on pregnancy when it enacted Title VII in 1964. Because it was the intent of Congress in 1964 to prohibit this discrimination, and ...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."
I'm not sure this makes sense. As noted above, the U.S. Supreme Court held in Gilbert that sex discrimination did not encompass pregnancy discrimination under the original version of Title VII. Since the Florida Human Rights Act was patterned after the original version of Title VII, how is it relevant that Congress said after Gilbert that it had intended to include pregnancy discrimination within the scope of Title VII? Regardless of Congress' intentions, the high court said that Title VII could not be so construed. And, therefore, it seems to follow that neither can the the Florida Civil Rights Act, which was patterned after Title VII, and was never amended to include pregnancy discrimination.
Oh well, as I predicted in September, it may take the Florida Supreme Court to resolve this issue.
