The Florida Supreme Court has granted review to resolve a conflict between two of Florida’s district courts of appeal on whether the Florida Civil Rights Act (FCRA) prohibits pregnancy discrimination. In Delva v. Continental Group, Inc., 96 So. 3d 956 (Fla. 3d DCA 2012), the Third District Court of Appeal concluded that the FCRA, which provides that it is unlawful for an employer to discriminate against an individual on the basis of sex, does not prohibit pregnancy discrimination. The Third District certified conflict with the Fourth District Court of Appeal’s decision in Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), which held the opposite.
The FCRA (formerly known as the Florida Human Relations Act and the Florida Human Rights Act) was enacted five years after the Civil Rights Act of 1964 (Title VII), and is patterned after it. In 1978, Congress enacted the Pregnancy Discrimination Act, which amended Title VII by redefining sex discrimination to include discrimination on the basis of pregnancy: “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.” 42 U.S.C § 2000e(k). The FCRA, unlike the federal statute, has never been amended to specifically say that pregnancy discrimination is sex discrimination. In Delva, the Third District, relying on an earlier Florida decision, O’Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991), held that because Florida has not amended the Florida Civil Rights Act to add language similar to the Pregnancy Discrimination Act, the Florida legislature did not intend to include pregnancy discrimination in the FCRA. But the Fourth District, in Carsillo, reasoned that because the FCRA was patterned after Title VII, which considers pregnancy discrimination to be sex discrimination, the FCRA does bar pregnancy discrimination. “Congress made clear in 1978 that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination[.] [I]t was [therefore] unnecessary for Florida to amend its law to prohibit pregnancy discrimination.” The Carsillo court based its decision on the principle that Florida courts have “the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation,” citing Gay v. Canada Dry Bottling Co. of Florida, 59 So. 2d 788, 790 (Fla. 1952).
Florida federal district courts are also divided, some following the O’Loughlin decision (on which Delva was based), but others following Carsillo based on their predictions that the Florida Supreme Court would adopt Carsillo’s reasoning. A decision from Florida’s highest court will finally resolve this significant issue.
The supreme court granted review of the case on May 2, 2013 and assigned it Case No. SC12-2315. Briefing is complete, and oral argument is to be set. For the current status of the case, click on the case number above.