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Is Pregnancy Discrimination Illegal Under Florida Law? Courts Are Divided.

The Florida Civil Rights Act, which. among other things, prohibits sex discrimination in employment, does not prohibit pregnancy discrimination, according to a recent decision by a federal judge in Florida.

If you think that sounds crazy, think again. The court’s decision in Duchateau v. Camp Dresser & McKee, Inc., Case No. 10-6-0712-CIV-ZLOCH/ROSENBAUM (S.D. Fla., October 4, 2011) is supported by logic and precedent. However, courts are divided on this issue.

Here’s the logic. Congress enacted Title VII in 1964, thereby prohibiting sex discrimination in employment. Five years later, the Florida legislature passed the Florida Human Relations Act, which prohibited discrimination based on "race, color, religion, or national origin."In 1972, the Florida legislature amended the Florida Human Relations Act to ensure "freedom from discrimination because of sex." In 1976, the Supreme Court ruled in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) that Title VII did not prohibit pregnancy discrimination. Because Florida law provides that a Florida statute patterned after a federal law will be given the same construction as the federal courts give the federal act, it was clear after Gilbert that the Florida Human Relations Act did not prohibit pregnancy discrimination, either. Subsequent amendments to the Florida Human Relations Act (including changing its name to the Florida Human Rights Act ("FHRA") did not add pregnancy as a protected status, despite the Supreme Court’s decision in Gilbert.

In 1978, in response to Gilbert, Congress enacted the Pregnancy Discrimination Act ("PDA"), which amended Title VII by re-defining sex discrimination to include discrimination on the basis of pregnancy. Yet Florida did not amend the FHRA in the years following the enactment of the PDA. In 1991, Florida’s First District Court of Appeal in O’Loughlin v. Pinchback, 579 So. 2d 788, 791-92 (Fla. 1st DCA 1991), concluded that the FHRA did not prohibit pregnancy discrimination.

In 1992, the Florida legislature amended the FHRA, including changing its name to the Florida Civil Rights Act of 1992. Still, despite O’Loughlin, these amendments did not modify the statute’s references to sex discrimination or otherwise suggest an intention to prohibit pregnancy discrimination. The language of the FCRA prohibiting discrimination on the basis of sex continued to include the pre-PDA language of Title VII. Thus, the Florida Civil Rights Act does not prohibit pregnancy discrimination.

That’s the logic, anyway. In Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), Florida’s Fourth District Court of Appeals reached a different conclusion. Noting that when Congress enacted the PDA, it "expressed its disapproval of both the holding and the reasoning of Gilbert," the Fourth DCA concluded that "Congress made clear in 1978 that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination." Because the FCRA is patterned after Title VII, the Fourth District reasoned, "it follows that the sex discrimination prohibited in Florida since 1972 included discrimination based on pregnancy[.]"

I don’t believe Carsillo makes sense. Whether Congress intended to prohibit pregnancy discrimination when it enacted Title VII would seem to be irrelevant in light of the U.S. Supreme Court’s holding in Gilbert that Title VII did not prohibit pregnancy discrimination. The Supreme Court is the final word on this issue. That’s why it took an amendment to Title VII, the PDA, to prohibit pregnancy discrimination under Title VII. Because the Florida statute was patterned after the pre-PDA version of Title VII, and was never amended to prohibit pregnancy discrimination, it would seem to follow that the Florida Civil Rights Act does not prohibit pregnancy discrimination.

That is not to suggest that women are without recourse in Florida if they are discriminated against because of their pregnancy: they can always sue under Title VII. But until the Florida Supreme Court decides the issue, whether a woman can state a cause of action for pregnancy discrimination under the Florida Civil Rights Act will depend on the court in which she litigates her case. In addition to the split among the First and Fourth district courts of appeal, federal courts in Florida are also divided on this issue. Compare Boone v. Total Renal Labs., Inc., 565 F. Supp. 2d 1323, 1326-27 (M.D. Fla. 2008) (holding that the FCRA does not provide a claim for pregnancy discrimination), Whiteman v. Cingular Wireless, LLC, Case No. 04-80389-CIV-PAINE, D.E. 114 at 11 (S.D. Fla. May 3, 2006) (same), aff’d, 273 F. App’x 841 (11th Cir. 2008) (per curiam), and Frazier v. T-Mobile USA, Inc., 495 F. Supp. 2d 1185, 1187 (M.D. Fla. 2003) (same), with Constable v. Agilysys, Inc., 2011 WL 2446605, at *6 (M.D. Fla. June 15, 2011) (concluding that the FCRA does provide a cause of action for pregnancy discrimination), and Terry v. Real Talent, Inc., 2009 WL 3494476, at *2 (M.D. Fla. Oct. 27, 2009) (same).


Title VII Claims Barred by Res Judicata Effect of Arbitrator’s Civil Service Ruling

An arbitrator’s decision upholding an employee’s termination under civil service rules barred, under the doctrine of res judicata, the employee’s subsequent Title VII claims, according to a recent decision by a Florida federal judge in Palmer v. Miami-Dade County, Florida (Case No. 10-23478-CIV-COOKE/TURNOFF (S.D. Fla., April 25, 2011).  The decision sheds light on when Title VII claims are barred by earlier state court proceedings. 

The facts of the case are as follows.  Defendant, Miami-Dade County, employed Plaintiff, Sebrina Palmer, as a police sergeant. On August 22, 2008, Defendant terminated Plaintiff's employment. Plaintiff is an African-American female. Defendant stated, as grounds for her termination, that Plaintiff falsified payroll records. Plaintiff challenged her termination pursuant to Miami-Dade County Code § 2-47, the County's classified civil service hearing process. An arbitrator was appointed.  After a two-day hearing, he wrote a report concluding that Plaintiff violated County rules by failing to take reasonable steps to ensure that the payroll documents she submitted were accurate. The arbitrator recommended that Plaintiff's termination be upheld. The County Manager sustained the arbitrator’s decision and confirmed Plaintiff's dismissal. Plaintiff appealed the County Manager's final order to the Appellate Division of the Circuit Court for the Eleventh Judicial Circuit of Florida. The Appellate Division, upon review of the entire administrative record, issued a mandate affirming the County Manager's decision. 

Plaintiff subsequently brought suit in federal court, alleging that her termination was racially and sexually discriminatory in violation of Title VII.  Defendant moved for summary judgment, arguing, among other things, that Plaintiff’s claim was barred by res judicata, otherwise known as claim preclusion.

The court agreed.  The court began its analysis by noting that the doctrine of res judicata may bar Title VII claims where a state court affirms an administrative agency's decision, and two criteria are met: (1) the state court would grant preclusive effect to the judgment, and (2) the state proceedings comport with the procedural requirements of the Fourteenth Amendment's Due Process Clause.  The court held that the first criterion was met because Florida courts grant preclusive effect to quasi-judicial administrative decisions.  The court held that the second criterion was met because  state proceedings comport with the procedural requirements of the Fourteenth Amendment's Due Process Clause. Under Miami-Dade County Rules §§ 2-47 and 2-47.1, a dismissed employee is entitled to notice, an opportunity for a full hearing, compulsory process and representation by counsel before the hearing examiner, with layers of administrative and judicial review.

Turning to Florida law, the court held that the doctrine of res judicata applies if four conditions exist: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality in the person for or against whom the claim is made.  When the four identities are present, res judicata attaches to all matters which were or could have been determined.

The outcome of the case turned mainly on the second factor:  Were Plaintiff’s administrative proceeding and her Title VII action the “same” cause of action for res judicata purposes? 

The court held that they were: Plaintiff's administrative proceeding and this federal action consist of the same cause of action for purposes of res judicata analysis under Florida law. “The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.” Albrecht, 444 So. 2d at 12. In the administrative proceeding, Plaintiff challenged the propriety of her dismissal. Here, she also argues that Defendant improperly dismissed her. In both proceedings, Plaintiff must proffer evidence regarding her dismissal. In both proceedings, Plaintiff argues that she was subject to disparate treatment, and therefore her dismissal was improper. Thus, the facts and evidence are the same in both causes of action -- Plaintiff must proffer evidence and show facts to support her contention that Defendant improperly dismissed her because it had a discriminatory intent and the County's reasons for dismissing her were pretextual and illegitimate. The court went on to hold that Plaintiff could, and did, litigate the issue of disparate treatment in her administrative proceeding.  Thus, res judicata barred the re-litigation of her claims in U.S. District Court.

But what happens when the opposite situation presents itself, i.e. when a plaintiff litigates her Title VII claim in federal court, and then attempts to litigate a similar discrimination claim under state law? 

According to Florida’s Fourth District Court of Appeals, the state law claim may or may not be barred by res judicata, depending on whether the plaintiff also litigated state law claims in federal court. 

In Andujar v. Nat'l Prop. & Cas. Underwriters, 659 So. 2d 1214 (Fla. 4th DCA 1995), the Fourth DCA held that a federal court’s dismissal on the merits of Title VII claim did not bar a claim arising from the same core of operative facts asserted under the Florida Human Rights Act.  The court reasoned that because the plaintiff did  not allege any state law claims in her first action, and thus did not seek to have the federal district court assert jurisdiction over such claims under its pendent jurisdiction, the federal and state claims were separate and distinct for purposes of federal claim preclusion rules.

Less than a year later, however, the Fourth DCA considered a similar situation in Dalbon v. Women's Specialty Retailing Group, 674 So. 2d 799, 801 (Fla. 4th DCA 1996), and reached a different result.  In Dalbon, the plaintiff, in addition to asserting a Title VII claim, had asserted a state law claim for intentional infliction of emotional distress, which the federal court dismissed on summary judgment.  The federal court subsequently dismissed the Title VII claim after a trial on the merits.  Plaintiff subsequently filed state law claims in state court for negligent misrepresentation and negligent supervision and retention.  On appeal, the Fourth DCA held that the new claims were barred by res judicata. The court reasoned that “[h]aving presented one of her state law claims arising from the termination of her employment to the federal court, plaintiff cannot now attempt to raise new state law claims in state court arising from the same facts and from the same primary rights and duties as were litigated previously.” 


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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.