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07/03/14 It's The Law: Employer Cannot Discriminate Due to Preganancy

It's The Law

Employer Cannot Discriminate Due to Pregnancy



My wife is pregnant. Her employer is giving her a hard time, made her move to a new position and has refused to allow her overtime even though she worked overtime a lot before becoming pregnant. Can the employer do that?


Title VII of the Federal Civil Rights Act of 1964 made it illegal for employers to discriminate on basis of sex. In 1976, the Supreme Court in General Electric Company v. Gilbert ruled that discrimination based on pregnancy was not sex discrimination under Title VII. Congress later amended Title VII by adopting the Pregnancy Discrimination Act of 1978. The Pregnancy Discrimination Act made it clear that discrimination based on pregnancy is sex discrimination under Title VII.

Some years later, Florida adopted the Florida Civil Rights Act of 1992 (FCRA). That Act was patterned after the federal law and includes a ban on employer discrimination based on an individual's sex. Unlike the federal law, it does not contain a specific prohibition against discrimination based on pregnancy.

Because FCRA does not contain a specific prohibition against pregnancy discrimination, Florida appellate courts disagreed on whether discrimination based on pregnancy was a violation of FCRA. In 2008, Florida's Fourth District Court of Appeal ruled that discrimination based upon pregnancy was discrimination based upon sex. It reasoned only women could get pregnant so it was discrimination based on sex. In 2012, Florida's Third District Court of Appeal reached the opposite conclusion and certified conflict with the Fourth District Court of Appeals decision. Florida's Supreme Court accepted the appeal and agreed to resolve the conflict in the case of Delva v. Continental Group, Inc.

In that case, Peguy Delva filed suit against her former employer, the Continental Group, Inc. She claimed that Continental Group discriminated against her due to her pregnancy, including heightened scrutiny of her work, refusal to allow her to change shifts and work extra shifts despite Continental's policy permitting those actions, refusing to allow her to cover other worker's shifts and refusing to schedule her for work after she returned from maternity leave. The trial court dismissed the complaint and the appellate court agreed, following the reasoning of the United States Supreme Court in General Electric Company v. Gilbert.

Florida's Supreme Court explained that a court attempts to give effect to the legislature's intent when construing a statute. First, the court looks to the actual language used in the statute for its plain meaning. In construing the FCRA, the court was further guided by the stated statutory purpose which provided "Florida Civil Rights Act of 1992 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provision involved." The court noted the statute stated its purpose as securing "freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status…."

The court agreed that the statute did not specifically include the word pregnancy as a protected class. But, the court noted that pregnancy is a natural condition unique to women and a "primary characteristic of the female sex."

Liberally construing the FCRA to further its purpose, the court concluded that discrimination based on pregnancy is included within the prohibition of the FCRA against discrimination based on an individual's sex. It reject the Third District Court of Appeal's attachment of significance to the Florida legislature's failure to amend the FCRA to specifically include pregnancy to Title VII. The case was remanded for the trial court to reinstate the complaint and provide Peguy Delva with her day in court.

The only hitch in these cases and the statutes is that both FCRA and Title VII only apply to employers with 15 or more employees. If your wife's employer does not have that many employees, the protection of the statutes will not be available. The facts of your case may open the doors to other remedies. For that reason, your wife should consult with an experienced attorney.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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