The Third District Court of Appeals recently held that the Florida Civil Rights Act of 1992 does not protect pregnant women as a class from employment discrimination. The Third District also certified conflict to the Supreme Court with a contrary opinion issued by the Fourth DCA. In Delva v. Continental Group, Inc., an employee filed an action against her employer, alleging she was discriminated against and treated different from her male counterparts on the basis of her pregnancy. Under federal law, pregnancy is considered a protected class. Specifically, the Pregnancy Discrimination Act of 1978 includes pregnancy among protected classes of race, color, religion, sex, or national origin. However, Florida has never passed similar legislation. Although, Plaintiff’s complaint originally plead violation of federal claims, those claims were ultimately abandoned. As a result, the Third District adopted the reasoning in the First DCA’s opinion in O’Loughlin v. Pinchback, in which it reasoned that since the Florida Legislature did not amend its Human Rights Act to specify that discrimination on the basis of pregnancy as the U.S. Legislature has done, there is no prohibition against pregnancy-based discrimination in Florida. It is important to note that the Plaintiff in Delva did not raise a federal pre-emption analysis. The Supreme Court will now have to resolve the conflict.
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