Pregnancy discrimination -- Mom’s apple pie

Pregnancy discrimination is a form of sex discrimination, rules the Fourth District Court of Appeal: some holiday cheer for women employees and some depressing news for employers.

On December 2008, the Fourth District Court of Appeal ruled, in a revised opinion, in Carsillo v. City of Lake Worth, 33 Fla. L. Weekly D2768 (Fla. 4th DCA Dec. 3, 2008), that the Florida Civil Rights Act bars pregnancy discrimination as a form of sex discrimination (substitution of opinion reported at 33 Fla. L. Weekly D2154). The issue arose because Carsillo was a firefighter/paramedic who requested light duty within the fire department after becoming pregnant and was, in response, given light duty in other departments. The problem was that the Florida Civil Rights Act (FCRA), enacted in 1977 (then call the Florida Human Rights Act), was modeled after Title VII. The U.S. Supreme Court held in 1976, in a case called Gen’l Elec. Co. v. Gilbert, 429 U.S. 125 (1976), that discrimination on the basis of pregnancy was not sex discrimination under Title VII. So the FCRA was also understood to not prohibit pregnancy discrimination as a form of sex discrimination. Congress, in response to Gilbert, enacted the federal Pregnancy Discrimination Act of 1978, and that Act specified that discrimination because of pregnancy was sex discrimination violative of Title VII. However, FCRA was not amended until 1992 and when it was, it did not incorporate the federal Pregnancy Discrimination Act language. So many federal courts concluded that the FCRA, unlike Title VII and the PDA, did not prohibit pregnancy discrimination as a form of sex discrimination. The Fourth District disagreed and held that the FCRA is to be construed the same way that Title VII is currently construed and that includes prohibiting pregnancy discrimination as a form of sex discrimination.

Florida has required most employers to comply with Title VII’s prohibition against pregnancy discrimination, but the Carsillo decision means that Florida employees can now sue for pregnancy discrimination and retaliation under both Title VII and the FCRA. Given the number of federal courts that have construed the FCRA to not prohibit pregnancy discrimination as a form of sex discrimination, this may likely be an issue that the Florida Supreme Court will be asked to resolve conclusively.


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