Filed: Sep. 18, 2012
Latest Update: Sep. 18, 2012
Summary: SCHWARTZ, Senior Judge. The discrete, single issue in this case is whether the Florida Civil Rights Act, section 760.10, Florida Statute, 1 prohibits discrimination in employment on the basis of pregnancy. 2 Although there was no doubt as to the sufficiency of the allegation that the plaintiff was discriminated against on this basis, 3 the trial judge dismissed the complaint for failure to state a cause of action on the ground that there was no such right. We agree. Two district courts have
Summary: SCHWARTZ, Senior Judge. The discrete, single issue in this case is whether the Florida Civil Rights Act, section 760.10, Florida Statute, 1 prohibits discrimination in employment on the basis of pregnancy. 2 Although there was no doubt as to the sufficiency of the allegation that the plaintiff was discriminated against on this basis, 3 the trial judge dismissed the complaint for failure to state a cause of action on the ground that there was no such right. We agree. Two district courts have ..
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SCHWARTZ, Senior Judge.
The discrete, single issue in this case is whether the Florida Civil Rights Act, section 760.10, Florida Statute,1 prohibits discrimination in employment on the basis of pregnancy.2 Although there was no doubt as to the sufficiency of the allegation that the plaintiff was discriminated against on this basis,3 the trial judge dismissed the complaint for failure to state a cause of action on the ground that there was no such right. We agree.
Two district courts have addressed this question. In Carsillo v. City of Lake Worth, 995 So.2d 1118, 1119 (Fla. 4th DCA 2008), review denied, 20 So.3d 848 (Fla. 2009), the Fourth District held that there was such a right. In O'Loughlin v. Pinchback, 579 So.2d 788, 790 (Fla. 1st DCA 1991), the First District held that there was not, stating:
In General Electric Company v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. However, in 1978, in response to the Gilbert decision, Congress amended Title VII by enacting the Pregnancy Discrimination Act of 1978 (PDA). 42 U.S.C. § 2000e(k). The PDA specifies that discrimination on the basis of pregnancy is sex discrimination, and therefore violative of Title VII. Florida has not similarly amended its Human Rights Act to include a prohibition against pregnancy-based discrimination.
O'Loughlin, 579 So.2d at 791 (footnote omitted).
We believe this holding in O'Loughlin4 is in accord with the Act, and is by far the better reasoned decision. We therefore adopt it as our own. Accord DuChateau v. Camp Dresser & McKee, Inc., 822 F.Supp.2d 1325 (S.D.Fla.2011); Whiteman v. Cingular Wireless, LLC, 273 Fed.Appx. 841 (11th Cir.2008) (affirming summary judgment for employer where district court found that pregnancy was not a protected class under the Florida Civil Rights Act); Boone v. Total Renal Labs., Inc., 565 F.Supp.2d 1323, 1326 (M.D.Fla.2008) ("This Court agrees with those courts that have found that because the Florida legislature did not add language similar to the PDA [Title VII of the Federal Civil Rights Act as amended by Pregnancy Discrimination Act (PDA) ] to the FCRA when it was enacted in 1992 — after O'Loughlin — the legislature did not intend to include a proscription on pregnancy discrimination in the FCRA."); Fernandez v. Copperleaf Golf Club Cmty. Ass'n, No. 05-286, 2005 WL 2277591 at *1 (M.D.Fla.2005) ("While plaintiff may be correct that the Florida Civil Rights Act allows a more extensive remedy than under the federal statute, the fact remains that pregnancy discrimination is not prohibited by the Florida Civil Rights Act and therefore the state statute provides no remedy for pregnancy discrimination."); Frazier v. T-Mobile USA, Inc., 495 F.Supp.2d 1185, 1187 (M.D.Fla.2003) ("This Court is of the opinion that the FCRA does not provide for a claim of pregnancy-based discrimination."); Swiney v. Lazy Days R.V. Ctr. Inc., No. 00-1356, 2000 WL 1392101 (M.D.Fla.2000) (relying on O'Loughlin and dismissing claim for pregnancy discrimination under FCRA); Zemetskus v. Eckerd Corp., No. 8:02-CV-1939-T-27TBM (M.D.Fla. Apr. 1, 2003) (citing O'Loughlin and dismissing FCRA-based pregnancy discrimination-claim); Perrin v. Sterling Realty Mgmt., Inc., No. 3:02-CV-8044-20HTS (M.D.Fla. Nov. 4, 2002) ("As the legislature did not include the language from the PDA, it is presumed that it was aware of the O'Loughlin opinion and did not intend to include pregnancy-based discrimination in the FCRA."); Hammons v. Durango Steakhouse of Bradenton, No. 8:01-CV-2165-T-23MAP (M.D.Fla. Mar. 7, 2002).
We certify conflict with Carsillo.
Affirmed.
