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08/16/12 It's The Law: Termination For Pregnancy May Be Legal

Question:

My boss fired me because I was pregnant. Isn't that a violation of Florida law?

Answer:

There is no Common Law prohibition against employment discrimination based on pregnancy. That means, any rights you have will be based on statute or ordinance.

Florida's Human Rights Act is patterned after Title VII but it is not identical. The primary statutes in this area are Title VII of the Federal Civil Rights Act of 1964 and the Florida Civil Rights Act. Both of those laws generally apply to employers with fifteen (15) or more employees. Some counties and cities in Florida have adopted ordinances applicable to smaller employers. [If your employment arrangement does not fall within a statute or ordinance, you likely have no claim for discharge as Florida is an employment at will state. That means, an employer can discharge an employee for any reason whatsoever, as long as it is not prohibited by statute or a specific contract.]

In 1976, the U.S. Supreme Court ruled that discrimination based on pregnancy was not sex discrimination under Title VII. In response, Congress amended Title VII by enacting the Pregnancy Discrimination Act of 1978. That Act made it clear that discrimination based on pregnancy is sex discrimination under Title VII.

Florida did not pass a similar amendment to its Human Rights Act. Consequently, Florida appellate courts have split on whether pregnancy is a protected "class" under the Florida Human Rights Act.

The Florida courts all agree that interpretation of a Florida statute modeled on a federal statute should be consistent with the federal statute. The First and Third District Courts of Appeal agree that because Florida did not amend the Florida Civil Rights Act, it should be applied in accordance with the Supreme Court's decision interpreting Title VII prior to adoption of the Pregnancy Discrimination Act. Those decisions are consistent with federal court decisions in Florida interpreting the Florida statute.

The Fourth District Court of Appeal disagrees. The Fourth District recognizes that Florida has not amended its statute, but concluded the unamended statute does prohibit discrimination based on pregnancy. It relied on legislative history of the Pregnancy Discrimination Act in which congress explained it intended in Title VII to prohibit pregnancy discrimination when Title VII was enacted. Congress passed the Pregnancy Discrimination Act solely in response to the Supreme Court's decision. Hence, the Fourth District concluded pregnancy discrimination was intended to be part of Title VII all along and therefore should be included as a protection under Florida's Civil Rights Act. Florida's Supreme Court has not settled the conflict between appellate courts.

Because Florida law is unsettled, it might be preferable to pursue action under Title VII. There are similarities in proceedings under both statutes, but there can be important differences.

Under both statutes, a precondition to filing suit is filing with the appropriate administrative agency. Deadline for filing claims under Florida's statute is 365 days. The deadline for Floridians under Title VII is 300 days. The administrative agency processes the application to a certain point and depending upon how that processing is done by the agency, the filer can either pursue civil litigation or continue with an administrative hearing. Either option can recover damages and/or reinstatement and attorney's fees.

Under both statutory frameworks, you must generally exhaust your efforts to recover through the administrative process. You must do that timely and you must exercise all appeal rights. Otherwise, you may be barred from court action.

The intricacies of this process make good legal advice important. You should consult with an experienced attorney without delay.

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