The Florida Supreme Court held today in Delva v. Continental Group, Inc. (SC12-2315), that the Florida Civil Rights Act (FCRA), sections 760.01-760.11, Fla. Stat. , which in part prohibits discrimination in employment on the basis of sex, encompasses discrimination on the basis of pregnancy.

A previous post provides a background to the case and summarizes oral arguments.

The uncertainty as to whether pregnancy discrimination was covered under FCRA arose from the fact that FCRA and its predecessor were modeled in part on Title VII of the Federal Civil Rights Act of 1964, which was found to not prohibit discrimination on the basis of pregnancy as a per se form of sex discrimination by the U.S. Supreme Court in General Electric Co. v. Gilbert, 429 U.S. 125, 145 (1976). Title VII was subsequently amended by Congress to specifically include pregnancy discrimination as a form of sex discrimination, while FCRA’s predecessor statute was not.

Florida’s Third and Fourth District Courts of Appeal were divided on how to interpret this revision to Title VII and its impact on FCRA. The Fourth District Court of Appeal in Carsillo v. City of Lake Worth found that since the Congressional amendment to Title VII was presented as clarifying the original intent behind the law, and since FCRA is patterned after Title VII, FCRA encompasses discrimination on the basis of pregnancy as well. 995 So.2d 1118 (Fla. 4th DCA 2008). By contrast, the Third District Court of Appeal in Delva v. Continental Group, Inc., held below in this case that FCRA does not cover pregnancy discrimination because it was not modified to include it explicitly, as was Title VII. 96 So.3d 956 (Fla. 3d DCA 2012).

In considering the scope of the prohibition on sex discrimination under FCRA, Justice Pariente, writing for the majority, found that “the statutory phrase making it an “unlawful employment practice for an employer . . . to discriminate . . . because of . . . sex,” as used in the FCRA, includes discrimination based on pregnancy, which is a natural condition and primary characteristic unique to the female sex.” (Op. at 2).

The Court pointed out that the expressed legislative intent is for FCRA to be interpreted liberally. Section 760.01(3), Fla. Stat. The Court adopted the reasoning of the Massachusetts Supreme Court in Mass. Elec. Co. v. Mass. Comm’n Against Discrimination, which when considering a similar law held that because the ability to become pregnant is a primary characteristic of the female sex, and is unique to it, any discrimination on the basis of pregnancy is discrimination that uses sex as the basis of discrimination. 375 N.E.2d 1192, 1198 (Mass. 1978).

The Court asserted that 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.”

The lone dissent by Chief Justice Polston posited that the term “pregnancy” should not be read into FCRA as it was not explicitly included in the statute.