JURIST Guest Columnist Mary Ziegler of the Florida State University College of Law discusses the Florida Supreme Court’s recent decision recognizing that employers cannot discriminate against pregnant women …

As JURIST reported, Florida recently joined a handful of states that recognize pregnancy-based bias as sex discrimination when the relevant state civil-rights law does not directly speak to the issue. The Florida Supreme Court considered the case of Peggy Delva, a front desk manager who complained of biased treatment at work during her pregnancy, including extra scrutiny of her work, denials of her requests to work extra shifts or cover those of other workers and refusals of her request to return to work after maternity leave. Resolving a conflict in the lower courts, the Florida Supreme Court held that the Florida Civil Rights Act, which reaches sex discrimination, prohibits pregnancy bias, since pregnancy is “a natural condition and primary characteristic unique to the female sex.”

First, Delva v. the Continental Group, Inc. [PDF] reminds us that the Supreme Court’s decision in General Electric Co. v. Gilbert still matters, even if the federal Pregnancy Discrimination Act (PDA) seems to have transformed the law. In the pair of cases, the Supreme Court held that pregnancy discrimination violated neither the Equal Protection Clause of the Fourteenth Amendment nor Title VII of the Civil Rights Act of 1964.

Even after Congress rejected the holding of Gilbert, the case continues to cast its shadow over state law. The employer in Delva argued that in light of Gilbert, Florida’s silence on the question of pregnancy disability meant something. Gilbert set the baseline: sex discrimination and pregnancy bias were two different things. Delva’s employer assumed that state lawmakers would have acted if they wanted to change the status quo that Gilbert had created. In other words, if Florida legislators wanted to ban pregnancy discrimination, they would have said so.

That the Florida Supreme Court rejected this argument raises just as many questions as it answers. If Florida law prohibits pregnancy discrimination, what does that mean? For the most part, federal courts interpreting the PDA have carved out a narrow and sometimes contradictory set of protections for pregnant workers. These employees enjoy what amounts to a right to an individualized assessment of their capacity to work, free from stereotypical judgments about childbearing, childrearing and gender. What pregnant workers don’t get is more striking. If employers choose not to accommodate any workers, they have no obligation to help pregnant employees.

More surprisingly, many federal courts have signed off on pregnancy-blind policies—employer rules that make no mention of pregnancy but effectively exclude all workers seeking accommodation on that basis. Consider a policy that requires employers to step up for workers injured on the job. Since women rarely conceive children at the office, such a policy would leave out pregnant workers, regardless of whether they had the same capacity to work as other employees offered accommodation.

Commentators have questioned whether pregnancy blindness is compatible with the original intent of the PDA, and members of Congress have proposed a bill, the Pregnant Workers Fairness Act, that would require employers to make reasonable accommodations for pregnant workers unless doing so would impose an undue hardship. As Delva makes clear, however, state and local governments will likely have their own say about the future of pregnancy-discrimination law.

In Delva, the Florida Supreme Court chose a different path from the one followed by the federal courts. For better or worse, state courts rarely do so. In Florida, for example, judges often fall back on cases interpreting the federal Civil Rights Act when resolving problems at the state level. Even when it comes to pregnancy discrimination, state courts in Massachusetts and Minnesota that have taken the same approach as Delva—holding that state civil rights law implicitly includes pregnancy under the umbrella of sex discrimination—have cut short any experimentation with a different vision of civil rights law. Often absent legislation to the contrary, states treat the PDA as the ceiling for pregnant workers rather than the floor.

If the legislative arena is the best bet for pregnant workers, that might not be any reason to despair. Pregnancy-discrimination legislation has long created strange alliances—pro-lifers and feminists, Republicans and Democrats, social conservatives and progressives. Just look at the history of the PDA. Abortion opponents backed the law, arguing that poverty, sex discrimination at work, and a lack of adequate child care and healthcare all but forced women to terminate pregnancies rather than bring them to term. Feminists viewed pregnancy disability statutes as a way to dislodge longstanding stereotypes linking women’s reproductive capacity and parenting roles. Broader pregnancy-discrimination protections do many things for a variety of constituencies: they redistribute the costs of reproduction, reflect social respect for family and care-taking and help put an end to a reality where women choose between childbearing and career.

A similar group of strange bedfellows seems to support contemporary efforts to expand protections for pregnant workers. Those supporting the Pregnant Workers Fairness Act include a pro-life Democrat and a prominent feminist. More importantly, at the state and local level, lawmakers have already gravitated toward the solution proposed in Congress. Twelve states and two cities have already introduced laws requiring employers to offer reasonable accommodations to pregnant workers, and more seem to be on the way.

Of course, accommodation laws may not be a perfect solution. Scholars studying the Americans with Disabilities Act have questioned whether employers offset the costs of special protections for one class of workers by cutting pay or reducing hiring. And a duty to accommodate only goes so far. Employers can defend themselves by pleading ignorance of a pregnant worker’s limitations or by proving that any accommodation would create an undue hardship. As is often the case with anti-discrimination law, protections leave some workers out altogether—including the undocumented, workers at businesses with too few employees, and those who count as independent contractors rather than employees.

Whether or not accommodations will solve pregnant workers’ problems, the states still have reason to try out solutions rejected by the federal courts. Without experimenting, state and local lawmakers will never know if there are better ways to balance the needs of workers and their employers. Delva is a step in the right direction. Pregnancy discrimination can mean many things, regardless of the views articulated by the federal courts.

Mary Ziegler is a professor at the Florida State University College of Law. She uses legal history to probe the assumptions underlying current debates. Her work focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care. She received her J.D. from Harvard Law School in 2007. Her book, The Lost History of the Abortion Debate, will be published by Harvard University Press in Spring 2015.

Suggested Citation:Mary Ziegler, , JURIST – Forum, Apr. 28, 2014, http://jurist.org/forum/2014/04/mary-ziegler-florida-pregnancy.php.