Pregnancy Discrimination

PREGNANCY DISCRIMINATION UNDER THE PREGNANCY DISCRIMINATION ACT AND FLORIDA STATUTE CHAPTER 760

Pregnancy Discrimination is a protected class under Title VII, and under Florida Law. Florida Law provides that it is illegal for a qualified employer to discriminate based on Age, Gender, Sex, Race, Ethnic Background, and Disability. The brief below was a precursor to the Delva Supreme Court decision which concluded that Pregnancy Discrimination under Florida Law is a protected class based on the Florida Civil Rights Act definition of Sex.

As with all Title VII discrimination laws, an employer must have a minimum of 15 employees in order to be a qualified employer.

Our brief, along with the Florida Supreme Court in Delva, paved the way for pregnancy to be a covered class wherein the employer cannot discriminate against an employee because of their pregnancy. Indeed, even when an employer is trying to “help” or “assist” the pregnant employee, such assistance may be discrimination. For instance, reducing the work hours or limiting the work type that needs to be done. However, the law does not provide better treatment for a pregnant employee, but rather, the law simply requires the employer to treat the pregnant employee the same as it does other employees.

The Arcadier, Biggie & Wood, PLLC brief paved the way for pregnancy to be a covered condition under the law.

Introduction

“There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” Frontiero v. Richardson, 411 US 677, 684 (1973). Indeed, the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. Defendants’ position that pregnancy discrimination is not covered under Florida Statute § 760.10 is simply another example of this fact.

The FCRA Does Prohibit Pregnancy Discrimination

The Florida statute does not expressly protect against “pregnancy” discrimination, and the Florida District Courts of Appeal are not in agreement with regard to whether pregnancy discrimination is actionable under the FCRA. Compare Delva v. Continental Group, Inc., 96 So. 3d 956, 957-58 (Fla. 3d DCA 2012) (concluding a prohibition against pregnancy-based discrimination is not included in Florida law, and following O’Loughlin v. Pinchback, 579 So. 2d 788, 790 (Fla. 1st DCA 1991)), with Carsillo v. City of Lake Worth, 995 So. 2d 1118, 1119 (Fla. 4th DCA 2008) (construing the Florida statute consistently with Title VII, and noting that Congress explained in enacting the PDA that it had intended to prohibit discrimination based on pregnancy when it passed Title VII; thus, pregnancy is a protected class under Florida law), rev. denied, 20 So. 3d 848 (Fla. 2009), cited with approval in Valentine v. Legendary Marine

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FWB,Inc., No. 3:09cv334/MCR/EMT, 2010 WL 1687738 (N.D. Fla. 2010).The court in Delva, which was decided on July 25, 2012, certified to the Florida Supreme Court a conflict with the Carsillo case.

Federal district courts in this circuit are also divided on the issue, and it has not been addressed by the Eleventh Circuit. Compare, e.g., DuChateau v. Camp Dresser & McKee, Inc., 822 F. Supp. 2d 1325 (S.D. Fla. 2011) (concluding the FCRA does not provide a claim for pregnancy discrimination because when the Florida legislature renamed its statute in 1977 and again in 1992, the language was not amended to mirror the language of the PDA), with Terry v. Real Talent, Inc., No. 8:09cv1756, 2009 WL 3494476, at 2 (M.D. Fla. 2009) (construing FCRA consistently with Title VII’s protections, relying on the reasoning of Carsillo) and Martin v. Meadowbrook Golf Group, Inc., No. 3:06cv464/RS (doc. 10) (N.D. Fla. Nov. 2, 2006).

Absent express guidance by the Florida Supreme Court and in light of the conflict among the intermediate courts, this Court must do its best to anticipate how the Florida Supreme Court will rule on the issue. See State Farm Mut. Auto. Ins. v. Duckworth, 648 F.3d 1216, 1224 (11th Cir. 2011). The Florida Supreme Court instructs, “it is axiomatic that in construing a statute courts must first look at the actual language used.” Woodham v. Blue Cross and Blue Shield of Fla., Inc., 829 So. 2d 891, 897 (Fla. 2002). The FCRA prohibits discrimination in employment “because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.” Fla. Stat. § 760.10(1)(a). The term “sex” is not explicitly defined. However, the Florida legislature expressly declared that the FCRA “shall be liberally construed to further the general purposes stated in this section.” Fla. Stat. § 760.01(3); see also Woodham, 829 So. 2d at 894. Additionally, the Florida Supreme Court has noted that the FCRA’s “stated purpose and statutory directive are modeled after Title VII.” Woodham, 829 So. 2d at 894 (internal marks omitted). Therefore, the question which must be asked at this stage is, “what is ‘sex’ within the context of the Florida Civil Rights Act?”

In its most basic sense, legislature used the term “Sex” as opposed to “Gender”, suggesting that their intent was to protect discrimination based on a biological disposition as opposed to a societal one. Although Florida Court’s have yet to provide a definition of “Sex”, Black Law Dictionary defines “sex” as, “The sum of the peculiarities of structure and function that distinguish a male from a female organism.” emphasis added Black’s Law Dictionary 1406 (8th ed. 2004). According to Black’s definition, “Sex” is not simply the state of being a male or female organism, but rather encompasses the peculiar functions which distinguish one sex from the other. Pregnancy or the ability to become pregnant is certainly a peculiar function which distinguishes females from their male counterparts.

Although a dictionary might be a reliable resource to determine the meaning of a word used in a statute, just like any other tool of statutory construction, its definition is by no means conclusive, however Florida Court’s have come to the same conclusion. Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995). Florida’s Second District Court of Appeal, quoting the Kansas Supreme Court, has discussed this peculiarity as it related to the issue of post-operative Transsexuals. After discussing the common meaning of the terms “sex”, “male”, and “female”, the court stated “…The plain, ordinary meaning of “persons of the opposite sex” contemplates a biological man and a biological woman …. A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to “produce ova and bear offspring” does not and never did exist. There is no womb, cervix, or ovaries, nor is there any change in his chromosomes.” Kantaras v. Kantaras, 884 So. 2d 155, 159 ( DCA 2nd 2004). In Kantaras, the court focused on the individual’s ability to “produce ova and bear offspring” in determining the sex of that individual. Thus, where “Sex” is defined by the sum of peculiarities, such as the ability to produce and bear offspring, an employer’s discrimination on the basis of those peculiarities is little more than pretext for their underlying motivation; to discriminate on the basis of sex.

The language used in a statute is an important key to what the legislature intended because we presume that the legislature knew what the word meant and intended to employ that meaning. When a particular word is susceptible to more than one meaning, however, one must look at context and other indicia of legislative intent, such as the history of the statutory scheme and our own experiences, logic and common sense. State v. Burris, 875 So.2d 408, 410 (Fla.2004); State v. Hodges, 614 So.2d 653, 654 (Fla. 5th DCA 1993). The ultimate responsibility in construing any statute is to effectuate the intent of the legislature. B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1051 (Fla. 2004) (purpose in construing statutory provision is to give effect to “polestar” of legislative intent). To do so, this Court must give effect to all of the language of the statute and should not adopt a construction that thwarts the clear intent of the legislature or leads to an absurd or unreasonable result. Burris, 875 So.2d at 410.

As the Florida Supreme Court has often has noted, our obligation is to honor the obvious legislative intent and policy behind an enactment, even where that intent requires an interpretation that exceeds the literal language of the statute. E.g., State v. Webb, 398 So.2d 820 (Fla. 1981). Byrd v. Richardson-Greenshields Securities, Inc., 552 So. 2d 1099(Fla. 1989). Guided by these principles, this Court should anticipate that the Florida Supreme Court will agree with the decision of Carsillo, which reasons, because “Congress made clear in 1978 [through the Pregnancy Discrimination Act ] that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination, it was unnecessary for Florida to amend its law to prohibit pregnancy discrimination.” Carsillo, 995 So. 2d at 1120 (citing Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 678-79 (1983)). Therefore, for the arguments raised supra and due to the language of the statute and Congress’ express intent when enacting Title VII, the Florida Civil Rights Act does and always has prohibited pregnancy discrimination.

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