Florida’s Third District Court of Appeal is the latest appellate court in Florida to rule that the Florida Civil Rights Act (“FCRA”) does not prohibit pregnancy discrimination.

In Delva v. The Continental Group, Inc., the court ruled that the plaintiff’s claim of pregnancy discrimination under the FCRA failed to state a cause of action.  The court agreed with the First District Court of Appeal’s decision in O’Loughlin v. Pinchback, 579 So.2d 788, 790 (Fla. 1st DCA 1991), opining that O’Loughlin was “by far [a] better reasoned decision” than Carsillo v. City of Lake Worth, 995 So.2d 1118, 1119 (Fla. 4th DCA 2008), rev. denied, 20 So.3d 348 (Fla. 2009).  In Carsillo, the Fourth DCA held that the FCRA prohibits pregnancy discrimination.

We explained the reasoning behind O’Loughlin and similar cases on this blog in March of this year after a federal court held that the FCRA does not prohibit pregnancy discrimination.  The gist of these rulings is that the FCRA was patterned after Title VII, which, although it always prohibited sex discrimination, was not interpreted to prohibit pregnancy discrimination until it was amended by the Pregnancy Discrimination Act in 1978.  The FCRA was never amended to prohibit pregnancy discrimination.  Therefore, according to the O’Loughlin rationale, courts must apply the original, pre-PDA meaning of sex discrimination under the FCRA, which does not include pregnancy discrimination.

To be clear, pregnant employees in Florida still enjoy the protections of the PDA.  But the issue of whether the FCRA prohibits pregnancy discrimination continues to surface for at least two reasons.  First, many plaintiff’s lawyers prefer to litigate discrimination claims in state court under the FCRA rather than in federal court under Title VII.  In addition, regardless of the court in which a pregnancy discrimination claim is litigated, the FCRA offers an advantage to plaintiffs because it does not cap compensatory damages, whereas Title VII has caps that vary based on the size of the employer.

The issue may soon be resolved definitively, however.  In Delva, the Third DCA certified a conflict with Carsillo, which means that the Florida Supreme Court may decide the issue once and for all – or at least until the Florida legislature amends the FCRA.