The State of Florida through chapter 760 of the Florida Statutes provides vital protection against discrimination for individuals on the basis of several categories, including sex, color, and religion. One category of individuals noticeably missing from such beneficial protection is pregnant women. Federal law has afforded them protection since 1978. Over the last decade, there have been multiple attempts to amend Florida law to include pregnant women as a protected class; however to date, including this legislative session, all such attempts have failed.
The main issue preventing the amending of the statute is the apparent ambiguity within Florida’s Civil Rights Act. Legal opinions from lower courts throughout the state are far from conclusive in their interpretation of this Act and, in many instances, contradictory. While some courts afford pregnant women remedies for being victims of discrimination, other courts completely deny pregnant women any protection under the Act.
Recently, the Florida Supreme Court ruled that pregnancy is a covered basis for discrimination under Chapter 760, F.S. Because of this ruling, the Florida House decided that there was no need to bring to the House Floor clarifying legislation (CS/HB 105 and CS/SB 220). Both bills made substantial progress through this year’s legislative session — passing out of seven committees in both houses, and ultimately voted out by the full Senate, where it passed unanimously. The Senate version sat in Messages to the House, while its House companion languished in the House Rules Committee. All that needed to be done was for the House to take up the Senate bill out of Messages, vote on it and send it to the governor!
For clarification purposes, the provision needs to be codified in the Florida Statutes, especially given Justice Ricky Polston’s dissenting opinion stating that pregnancy is not specifically covered in current law. Case law is open to interpretation, so any decision made by the current court can be readily reversed by future courts as new judges are seated (four judges are retiring in the next five years and four judges constitute the majority of the Supreme Court). Such reversal or change of opinion would mean that the Florida Civil Rights Act would no longer include pregnancy as a basis for discrimination. Should this happen, the Florida Legislature will, once again, be considering legislation to clarify that Florida law includes pregnancy as a basis of discrimination.
While the judiciary exists to interpret, construe and apply the laws as written, the Legislature is the lawmaking branch of government. Chapter 760, F.S., as currently written, has been interpreted differently by various courts over the past several years with regard to the pregnancy issue. Does the Legislature really want the courts making the laws for our state?
Mario Valle, chair, Florida Commission on Human Relations, Tallahassee