Today, Florida’s Third District Court of Appeal issued an employment ruling very favorable to employers, but certified conflict with the Fourth District on the same issue. The decision is Delva v. The Continental Group. You can read a copy of the Opinion here.
The issue, specifically, relates to whether the Florida Civil Rights Act (FCRA) prohibits discrimination on the basis of pregnancy. The Third District concluded it does not. This ruling is important not because companies today are looking for a basis to discriminate (Title VII, as amended by the Pregnancy Discrimination Act, specifically prohibits such discrimination), but rather because plaintiffs are forever trying to file such claims in state court to avoid the more favorable summary judgment standard available to employers in federal court. By relying solely on FCRA, plaintiffs can avoid having the case removed to federal court.
The Third District’s decision effectively forces plaintiffs asserting pregnancy discrimination claims to file in federal court, since relief may not be obtained under FCRA. The Fourth District reached the opposite conclusion in Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), and the Florida Supreme Court denied review, despite a pre-existing contrary decision from the First District in O’Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991). Supreme Court review of the O’Loughlin decision was not sought. Since then, federal courts have tended to side with the First District in concluding that FCRA does not prohibit pregnancy discrimination.
Because the Third District has certified conflict with the Fourth, it is likely the plaintiff will seek review at the Florida Supreme Court. Given the Supreme Court’s general interest in tort claims, even in the employment context, there’s a decent chance review will be granted.
While WSH did not represent the employer in this case, our Labor and Employment Law Group represents a significant number of employers in Florida. Our Appellate Practice Group and Litigation Division have begun the process of considering possible amicus support for the employer in Delva. Please feel free to share this with your HR departments, legal, and any other defense oriented organizations operating in Florida whose members have significant employment liability exposure in Florida.
Of course, we’re available to discuss this with any interested party.
Author(s): Edward G. Guedes
