Carsillo v. City of Lake Worth
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2008
AMY CARSILLO,
Appellant,
v.
CITY OF LAKE WORTH,
Appellee.
No. 4D07-4236
December 3, 2008
KLEIN, J.
We withdraw our opinion filed on September 10, 2008 and replace it
with this opinion.
Carsillo, a firefighter/paramedic, sued her employer, the City of Lake
Worth, under the Florida Civil Rights Act, alleging a claim for pregnancy
discrimination and retaliation. The trial court granted the city’s motion
for summary judgment, holding that the Florida statute, although
prohibiting sex discrimination, does not prohibit discrimination based on
pregnancy. We conclude that, because the Florida statute is patterned
after the Federal Civil Rights Act, which considers pregnancy
discrimination to b e sex discrimination, the Florida Act bars such
discrimination.
The facts, in brief, are that Carsillo, who had requested light duty in
the fire department as a result of her pregnancy, was offered a light duty
assignment which was not within the fire department. Carsillo initially
objected a n d to o k some vacation days rather t h a n accept the
assignment, but ultimately returned to light duty assignments in other
departments. This lawsuit, which Carsillo filed under the Florida Civil
Rights Act, section 760.01-10, Florida Statutes (2004) (FCRA), alleged
discrimination in that other employees with physical restrictions had
been accommodated with light duty in the fire department.
The Florida Civil Rights Act of 1992 (FCRA) provides in section
760.10:
It is an unlawful employment practice for an employer: (a) to
discharge or to fail or refuse to hire any individual, or
otherwise to discriminate against any individual with respect
to compensation, terms, conditions, or privileges of
employment, because of s u c h individual’s race, color,
religion, sex, national origin, age, handicap, or marital
status.
This provision is identical to the Civil Rights Act of 1964, as amended
(Title VII), 42 U.S.C. § 2000e, which states:
It shall be an unlawful employment practice for an employer
. . . to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color,
religion, sex, or national origin.
It is well-established that if a Florida statute is patterned after a
federal law, the Florida statute will be given the same construction as the
federal courts give the federal act. State v. Jackson, 650 So. 2d 24 (Fla.
1995). This is easier said than done, because of a decision of the United
States Supreme Court, holding that an employer’s disability insurance
plan, which did not cover disabilities arising from pregnancy, did not
violate Title VII. General Elec. Co. v. Gilbert, 429 U.S. 125 (1976). Gilbert
was a controversial five-to-four decision to which Congress responded by
enacting the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k),
(PDA) which specified that discrimination because of pregnancy is sex
discrimination and violative of Title VII. Most significantly, when it
enacted this amendment, Congress expressed its disapproval of both the
holding and the reasoning of Gilbert. Newport News Shipbuilding & Dry
Dock Co. v. EEOC, 462 U.S. 669 (1983) (recognizing that the holding of
the majority in Gilbert was contrary to the intent of Congress when Title
VII was enacted in 1964 and overruling Gilbert). See also Armstrong v.
Flowers Hosp., Inc., 33 F.3d 1308, 1312 (11th Cir. 1994) (“Rather than
introducing new substantive provisions protecting the rights of pregnant
women, the PDA brought discrimination on the basis of pregnancy within
the existing statutory framework prohibiting sex-based discrimination.”).
The Florida statute, unlike the federal statute, h a s never been
amended to specifically state that pregnancy discrimination is sex
discrimination. It is the lack of such an amendment in Florida which
underlies the controversy as to whether Florida prohibits pregnancy
discrimination.
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O’Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991), affirmed
an award of back pay for a pregnancy discrimination claim under the
Florida Act; however, O’Loughlin has been interpreted differently by
federal district courts in which pregnancy discrimination claims have
been asserted under the Florida Act. Boone v. Total Renal Labs., Inc.,
565 F. Supp. 2d 1323 (M.D. Fla. 2008), cites many of those cases.
It is the preemption discussion in O’Loughlin which has resulted in
the conflict. After noting that the original acts were identical, and that
Congress amended the federal law after Gilbert, but Florida has not
amended its act, the court stated:
Under a Guerra pre-emption analysis [California Federal
Savings and Loan Association v. Guerra, 479 U.S. 272, 107
S. Ct. 683, 93 L. Ed. 2d 613 (1987)], Florida's law stands as
an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress by not recognizing that
discrimination against pregnant employees is sex-based
discrimination. The protections afforded by Title VII and the
PDA cannot be eroded by the Florida Act which does not
contain a similar provision. Thus, we conclude that the
Florida Human Rights Act, specifically Section 760.10,
Florida Statutes, is pre-empted by Title VII of the Civil Rights
Act of 1984, 42 U.S.C. § 2000e-2 to the extent that Florida's
law offers less protection to its citizens than d o e s the
corresponding federal law.
O’Loughlin, 579 So. 2d at 792 (emphasis added).
Although O’Loughlin involved a claim for pregnancy discrimination
under the Florida Act, some federal district courts have interpreted
O’Loughlin as not allowing relief under the Florida Act for discrimination
based on pregnancy, because the Florida Act was not amended. See,
e.g., Boone. This demonstrates, according to the city, that the Florida
legislature did not intend to protect pregnancy discrimination as sex
discrimination. We d o not agree. We conclude that the fact 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, it was unnecessary for Florida to amend its law to
prohibit pregnancy discrimination.
Our reasoning is based on the principle of Gay v. Canada Dry Bottling
Co. of Florida, 59 So. 2d 788 (Fla. 1952), in which our Supreme Court
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had to decide if a transaction was taxable as a retail sale under a 1949
statute. By the time the case had come to the court, the legislature had
in 1951 clarified that the legislative intent was to tax such a transaction.
The court adopted the principle from other jurisdictions that “the court
had the right and the duty, in arriving at the correct meaning of a prior
statute, to consider subsequent legislation.” Id. at 790. See also State v.
Lanier, 464 So. 2d 1192 (Fla. 1985).
The Florida statute was originally enacted as the Florida Human
Relations Act in 1969 and it prohibited discrimination based on “race,
color, religion, or national origin.” Ch. 69-287, Laws of Fla. (July 1,
1969). An amendment added a prohibition against “sex” discrimination
in 1972. Ch. 73-48, Laws of Fla. Other classifications were added in
1977, when the legislature renamed it the Human Rights Act of 1977. It
was renamed the Florida Civil Rights Act in 1992. As we noted earlier,
the Florida statute has been patterned after the federal statute, and
under Jackson, 650 So. 2d 24, this means that the Florida statute will be
given the same construction as the federal statute.
A s we noted earlier, when Congress passed the PDA in 1978, it
explained that it had intended to prohibit discrimination based on
pregnancy when it enacted Title VII in 1964. Because it was the intent of
Congress in 1964 to prohibit this discrimination, and under Jackson we
construe Florida statutes patterned after federal statutes in the same
manner that the federal statutes are construed, it follows that the sex
discrimination prohibited in Florida since 1972 included discrimination
based on pregnancy.
This conclusion is also consistent with the
expressed intent of our legislature that our statute is to be liberally
construed for victims of employment discrimination. § 760.01(3), Fla.
Stat.; Maggio v. Fla. Dep’t of Labor & Employment Sec., 899 So. 2d 1074
(Fla. 2005); Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So. 2d
891 (Fla. 2002).
Courts in other jurisdictions, in which the state civil rights statute
prohibited sex discrimination, b u t not specifically pregnancy
discrimination, have also interpreted sex discrimination to include
pregnancy discrimination. Lapeyronnie v. Dimitri Eye Ctr., Inc., 693 So.
2d 236 (La. App. 4 Cir. 1997); Brennan v. Nat’l Tel. Dir. Corp., 850 F.
Supp. 331 (E.D. Pa. 1994); Gorman v. Wells Mfg. Corp., 209 F. Supp. 2d
970 (S.D. Iowa 2002).
The summary judgment is reversed.
TAYLOR and DAMOORGIAN, JJ., concur.
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*
*
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; R o b i n L. Rosenberg, Judge; L.T. Case No.
502004CA010584XXXMBAJ.
Isidro M. Garcia of the Garcia Law Firm, P.A., West Palm Beach, for
appellant.
Susan Potter Norton and Jessica T. Travers of Allen, Norton & Blue,
P.A., Coral Gables, for appellee.
Travis R. Hollifield, Winter Park, for Amicu s Curiae National
Employment Lawyers Association Florida Charter.
Not final until disposition of timely filed motion for rehearing.
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