The unsettled state of pregnancy discrimination claims under the Florida Civil Rights Act of 1992.

• Author: Eng, Donna L.
• Position: Labor and Employment Law

Florida's employment law practitioners are no doubt aware that employment discrimination actions may be brought under both Title VII of the Civil Rights Act of 1964 (Title VII), (1) and under the Florida Civil Rights Act of 1992 (FCRA). (2) Both sections contain similar verbiage, (3) and for years, courts have held the Florida Civil Rights Act be interpreted in conformity with Title VII. (4) However, the statutes differ in an important respect: While Title VII expressly forbids sex discrimination on the basis of pregnancy, the Florida Civil Rights Act of 1992 does not.

Pregnancy Discrimination Act

In General Electric Co. v. Gilbert, 429 U.S. 125, 145 (1976), the U.S. Supreme Court held that General Electric's disability-benefit plan, which did not cover pregnancy-related disabilities, did not violate Title VII. Two years later, in response to such decision, Congress amended Title VII to provide expressly that the terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. (5)

In so doing, the relevant House and Senate committees expressly declared their disapproval of the majority opinion in Gilbert. (6) As a result of the amendment, it is now well settled under federal law (7) that discrimination on the basis of pregnancy, childbirth, or related medical conditions violates Title VII.

Does the Florida Civil Rights Act of 1992 Provide a Cause of Action for Pregnancy Discrimination?

The Florida Civil Rights Act of 1992 has never been amended to track or otherwise include the language of the federal Pregnancy Discrimination Act. Making matters worse, the Florida Supreme Court has declined to address the FCRA to determine whether pregnancy discrimination is prohibited. (8) As could be expected, the lack of Florida Supreme Court precedent and the lack of an express legislative amendment have given rise to a split in authority as to whether Florida law recognizes claims for pregnancy discrimination. This split in authority exists in both the state and federal courts.

The split in authority originates with O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991). In that case, Pinchback was terminated from her position as a correctional officer based on her pregnancy. (9) After Pinchback filed a petition with the Florida Commission on Human Relations, the commission ruled that Pinchback's employer committed an unlawful employment practice when it terminated her based upon her pregnancy. (10) On appeal, the First District Court of Appeal affirmed such ruling and held that Pinchback was entitled to an award of back pay as a result of her employer's unlawful termination. (11) In support of its holding that Pinchback was entitled to backpay, the court reasoned in part that 1) Florida's Human Rights Act, the predecessor to the FCRA, (12) was patterned after Title VII; 2) Florida's Human Rights Act was not amended to track the passage of the Pregnancy Discrimination Act; and 3) Florida's Human Rights Act, [section] 760.10, was "pre-empted by Title VII of the Civil Rights Act of 1984 [citations omitted] to the extent that Florida's law offers less protection to its citizens than does the corresponding federal law." (13)

A close reading of O'Loughlin shows that the First District did not hold that Florida law does not provide a cause of action for pregnancy discrimination. Rather, the narrow issue considered by the court was whether the commission erred in ruling that Pinchback's employer committed an unlawful employment practice when it terminated her based upon her pregnancy. (14) The court affirmed the ruling of the commission and...