POSTED BY RICHARD D. TUSCHMAN ON FEBRUARY 26, 2013
I just read an article
entitled "Florida lawmakers look to end discrimination against expecting mothers." Posted on the website of a Fox News affiliate, the article begins by stating:
Pregnant women throughout the United States are protected from employment discrimination under federal law, but that's not necessarily the case in Florida. Two state lawmakers are now trying to change that fact.
The article goes on to quote one of the legislators who want to amend the Florida Civil Rights Act (FCRA) to prohibit pregnancy discrimination:
"Some (of the pregnant women) are terminated from their jobs or they go into a hostile work environment because of their pregnancy so we want to make sure we eliminate those kinds of things," said State Sen. Geraldine Thompson, D-Orlando.
Don't be misled by Senator Thompson or the Fox News article. Pregnancy discrimination is illegal in Florida, as it is in every other state.
It is true that courts disagree as to whether the FCRA prohibits pregnancy discrimination. I wrote about this issue on this blog last year. The proposed legislation attempts to end that debate.
But make no mistake, federal law, specifically Title VII of the Civil Rights Act of 1964, has prohibited pregnancy discrimination since 1978, when the Pregnancy Discrimination Act amended Title VII.
Employers with 15 or more employees are covered by Title VII. Employees of such employers – including employees in Florida – are therefore protected from pregnancy discrimination. That's because under the Supremacy Clause of the U.S. Constitution, federal law takes precedence over conflicting state laws.
The FCRA also covers employers with 15 or more employees. And the proposed amendments to the FCRA would not change that. So really, the issue of whether the FCRA prohibits pregnancy discrimination does not make a substantive difference.
So why is this an issue? Well, a cynic might argue that it’s about political grandstanding. Most voters don't understand the nuances of state versus federal law. And most, I suspect, would be glad to hear that their representative voted for a law that prohibits pregnancy discrimination in employment. For a legislator, supporting such a law would seem to be a no-brainer.
There would be a practical effect to the legislation, though. Many plaintiff-side lawyers prefer to litigate discrimination cases in state court, which is generally seen as more plaintiff-friendly. If the proposed legislation is enacted into law, we will see more pregnancy discrimination cases filed in state court (under the FCRA) rather than in federal court (under Title VII). That’s not an insignificant fact. But it’s hardly a major civil rights issue, despite what the press and some legislators would like you to believe.