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Florida employers may not discriminate on the basis of pregnancy, the state Supreme Court ruled Thursday.

Since pregnancy is “a natural condition unique to only one sex,” workplace discrimination based on pregnancy is sex discrimination and prohibited by the Florida Civil Rights Act, the court ruled by a 6-1 vote.

The decision reverses a Third District Court of Appeal ruling that upheld Miami-Dade Circuit Judge Ronald Dresnick’s dismissal of a sex discrimination case brought by Peguy Delva.

The Third District’s 2012 decision conflicted with a Fourth District decision in 2008, which found protection for pregnant workers under state law.

Employer attorney Mark Neuberger, of counsel at Foley & Lardner in Miami, said employers were concerned about the state case because damages for discrimination are capped in federal court at $300,000.

“Under state law, the amount of damages a plaintiff can recover is much greater because those damages are not capped,” Neuberger said.

Delva worked as a front desk manager for the Continental Group Inc., a property management company. She sued in 2011, alleging Continental conducted heightened scrutiny of her work and refused to let her change shifts or work extra shifts after learning of her pregnancy. She also claimed Continental refused to schedule her for work when she returned from maternity leave.

Justice Barbara Pariente, writing for the majority, said that even though the word pregnancy is not in the 1992 state civil rights law, the legislative intent was to conform with the federal law that does list pregnancy.

With tongue in cheek, Neuberger said Pariente was able to reach this conclusion “because we’re not sea horses,” a species where males get pregnant.

Chief Justice Ricky Polston dissented “because the plain meaning of the (law) does not encompass pregnancy discrimination. “I also note that recourse for pregnancy discrimination unquestionably exists for Floridians under the plain meaning of current federal law,” the Pregnancy Discrimination Act of 1978.

Common Sense

Instead of following the Fourth District in Corsillo v. City of Lake Worth, the Third District agreed with a 1991 First District case that relied on an even older case, General Electric v. Gilbert. This was a 1976 U.S. Supreme Court case that said discrimination on the basis of pregnancy wasn’t sex discrimination under Title VII of the federal Civil Rights Act.

The First District acknowledged the Pregnancy Discrimination Act amended Title VII, but Florida had not similarly amended its law.

Pariente said the state’s 1992 Civil Rights Act was intended to be “liberally construed.”

She took guidance from a Massachusetts Supreme Court decision that found pregnancy a condition unique to women, “thus any classification which relies on pregnancy as the determinative criterion is a distinction based on sex.”

“We embrace the common-sense reasoning” of the Massachusetts court, Pariente said.

The Minnesota Supreme Court similarly found pregnancy discrimination “is subsumed within sex discrimination,” Pariente noted.

“A woman should be no more burdened than a man if she chooses to combine the roles of parent and employee simply because the woman must bear the child,” the Minnesota court said.

Continental attorney Andrew Rodman of Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami said the ruling should have little impact in Florida because employers have operated since 1978 under the federal law banning pregnancy discrimination.

“The main change is they now have another law they can sue under that gives them access to the state court. If you wanted to bring a pregnancy discrimination claim, at least in the Third District you had to go to federal court,” Rodman said.

He noted Pariente took care to note the court did not review the merits of Delva’s claim.

“My client never discriminated against Ms. Delva in any way,” Rodman said. “Continental celebrates its diversity and owes its success in very large part to the diversity of its workforce.”

Delva was represented by Travis Hollifield of Hollifield Legal Centre in Winter Park.

Hollifield, who was retained because he successfully represented Corsillo in the Fourth District, said he was gratified the Supreme Court found his arguments persuasive.

“This puts the exclamation point on what we’ve been arguing for years—only women can become pregnant. If you discriminate against them for that, that means you discriminate against their gender, something they cannot change,” he said.

Delva’s petition also was supported by a friend of the court brief from the National Employment Lawyers Association.