In April 2014, the Florida Supreme Court held in Delva v. The Continental Group, Inc. that pregnancy discrimination was encompassed within “sex” discrimination as protected in the then-enacted version of the Florida Civil Rights Act (the “FCRA”), even though it was not explicitly mentioned in the FCRA. In response to this holding, the Florida legislature has now passed Senate Bill 982, which expressly makes pregnancy a protected class under the Florida Civil Rights Act. The bill was approved by the governor on May 21, 2015, and it becomes effective on July 1, 2015.
As part of this amendment, the FCRA will include pregnancy in its statement that it is not unlawful for an employer to “take or fail to take any action” on the basis of a protected characteristic where the action “is a bona fide occupational qualification [“BFOQ”] reasonably necessary for the performance of the particular employment.” But this defense to a claim of discrimination carries with it a burden that is very difficult for employers to meet. An employer must prove that the employee’s pregnancy interferes with the employee’s performance of the specific job duties of her position, including whether the actual skills required for the position are actually affected by the employee’s pregnancy. Thus, as the Equal Employment Opportunity Commission (the “EEOC”) has opined, an employer cannot prove a BFOQ based solely upon an assumption that harm may result to the employee and her unborn child or that liability may result for any such injury or harm. Florida courts have interpreted the FCRA to follow closely the decisions of federal courts interpreting Title VII, and the EEOC’s analysis of the BFOQ defense under Title VII may prove especially persuasive to a Florida court.
Finally, the recent amendment to the FCRA also makes the prohibition of pregnancy discrimination applicable more generally to “places of public accommodation” under Florida law.