O'Loughlin v. Pinchback

• Decision Date: 08 May 1991
• Docket Number: No. 88-2480,88-2480
• Citation: 579 So.2d 788,16 Fla. L. Weekly 1278
• Court: Florida District Court of Appeals
• Parties: 55 Fair Empl.Prac.Cas. (BNA) 1584, 16 Fla. L. Weekly 1278 Francis M. O'LOUGHLIN, Sheriff of Saint Johns County, Florida, Appellant, v. Evelyn PINCHBACK, Appellee.

Page 788

579 So.2d 788

55 Fair Empl.Prac.Cas. (BNA) 1584, 16 Fla. L.

Weekly 1278

Francis M. O'LOUGHLIN, Sheriff of Saint Johns County Florida, Appellant, v. Evelyn PINCHBACK, Appellee.

No. 88-2480.

District Court of Appeal of Florida First District.

May 8, 1991.

Gayle Smith Swedmark of Parker, Skelding, McVoy & Labasky, Tallahassee, for appellant.

William Roberts, Jr. of Roberts & Davis, Jacksonville, for appellee.

NIMMONS, Judge.

The appellant/employer challenges a determination by the Florida Commission on Human Relations (Commission) that the appellee/employee was unlawfully discriminated against when she was terminated due to her pregnancy. We affirm.

THE FACTS

Evelyn Pinchback was employed as a correctional officer at the St. Johns County Jail between March, 1981 and July, 1982. As a correctional officer, Pinchback was responsible for booking and releasing male and female inmates, taking mug shots, obtaining fingerprints, delivering food and mail, and providing general security.

In March, 1982, Pinchback learned that she was approximately two months pregnant, anticipating delivery on October 14, 1982. She immediately informed her supervisor who told her to report to the main office downtown for reassignment, but was subsequently returned to the jail because the officer in charge had no knowledge of the proposed change in assignment. Pinchback was then reassigned as a booking officer in the county jail for approximately two months and then, due to her condition, was reassigned to the canteen where she performed typing, filing, and other clerical duties. During this time, Pinchback's employer made inquiry of Pinchback's physician regarding the latter's assessment of Pinchback's ability to perform her job in her condition. The physician replied that there was no medical reason why Pinchback could not continue working until her estimated delivery date, but declined to evaluate her safety within the parameters of her job classification.

In mid-July, Pinchback was informed by her immediate supervisor, Sergeant (now Lieutenant) Gail Threet, that she must take maternity leave, regardless of Pinchback's desire to continue working. Apparently, there was a misunderstanding because Threet reported to her supervisors that Pinchback agreed to the maternity leave. Pinchback attempted to set the matter straight in a meeting with Captain Janson, Threet, and herself. However, the confusion continued because on July 21, when Pinchback reported for her usual shift, she was informed that she was no longer on the payroll. A week later, by registered mail, Sheriff O'Loughlin notified Pinchback that she had been terminated, stating two reasons: first, that during her work assignments, her health and her expectant baby's health were in obvious danger; and second, that she could no longer perform the duties and responsibilities of a correctional officer. At no point prior to her termination had Pinchback been informed that she was regarded by her employer as being incapable of performing her duties, nor had she received any evaluations to that effect, or Sergeant Threet, who had roughly the same small physical stature as Pinchback, testified that while on duty the correctional officers are essentially unarmed, and that if a disturbance were to occur, outside help would have to be called to the facility. Sergeant Threet also indicated that the correctional officers receive identical training and conceded that if confronted by a strong male prisoner, she would be unable to overpower him. The physical requirements for the position of correctional officer are, therefore, limited. Further, there is no medical evidence to indicate Pinchback was unable to perform her assigned duties when she was discharged.

been advised of any deficiencies in the performance of her duties.

Following her termination, Pinchback filed with the Commission a petition under Florida's Human Rights Act of 1977 (Sections 760.01-760.10, Florida Statutes (1983)) for relief from an unlawful employment practice. After an administrative hearing, the hearing officer found, via his recommended order, that an unlawful employment practice was committed by the employer when Pinchback was discharged on the basis of her pregnancy. This determination was upheld by the Commission in its order which is the subject of the instant appeal.

PRE-EMPTION

In Florida there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. Kidd v. City of Jacksonville, 97 Fla. 297, 120 So. 556 (1929); Massie v. University of Florida, 570 So.2d 963 (Fla. 1st DCA 1990); Holland v. Courtesy Corporation, 563 So.2d 787 (Fla. 1st DCA 1990).

It is undisputed that Florida's Human Rights Act is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2. School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). Section 760.10(1)(a), Florida Statutes, provides in part:

It is an unlawful employment practice for an employer to discharge ... any individual ... because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

In General Electric Company v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. However, in 1978, in response to the Gilbert decision, Congress amended Title VII by enacting the Pregnancy Discrimination Act of 1978 (PDA). 42 U.S.C. Sec. 2000e(k). The PDA specifies that discrimination on the basis of pregnancy is sex discrimination, and therefore violative of Title VII. ¹ Florida has not similarly amended its Human Rights Act to include a prohibition against pregnancy-based discrimination.

In California Federal Savings and Loan Association v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987) the Court discussed the ways in which a federal law can pre-empt a state statute. The Court said:

Federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. Second, congressional intent to pre-empt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation....

* As a third alternative, in those areas where Congress has not completely displaced state regulation, federal law may nonetheless pre-empt state law to the extent it actually conflicts with federal law. Such a conflict occurs either because "compliance with both federal and state regulations is a physical impossibility," or because the state law stands "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." [Citations omitted.]

Id. at 280-281, 107 S.Ct. at 689. In holding that a California statute which requires that employers provide female employees an unpaid pregnancy disability for up to four months was not preempted by Title VII and the PDA, the Court recognized that when Congress enacted the PDA, it intended to extend the principles and objectives sought to be achieved by Title VII to cover pregnancy. Id. at 288-289, 107 S.Ct. at 693.

Under a Guerra pre-emption analysis, 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. Sec. 2000e-2 to the extent that Florida's law offers less protection to its citizens than does the corresponding federal law.

ANALYSIS

In cases of this nature, a plaintiff can assert that the employer's policy is facially discriminatory to which the employer may raise the affirmative defense of "bona fide occupational qualification" (BFOQ). The employee can also present an allegation that the employer's policy is facially neutral but has a disproportionate impact on a Title VII protected class. The employer can assert a business necessity defense to this allegation. Also, if the employee contends the employer's policy is facially discriminatory, the employer can present scientific evidence justifying the policy and demonstrate that it affects the offspring of its employees equally, to which the employee can then assert a case of neutral discrimination with a disproportionate impact. When a case of facially neutral discrimination is presented, an employer can assert a business necessity defense.

The employer in the case at bar asserted that Pinchback's dismissal was based on the affirmative defense of BFOQ. It must be noted, however, that the employer did not have a previously articulated policy per se regarding pregnant employees, nor was there evidence that a similar situation had ever arisen. We agree with the Commission that the heretofore described reassignments of Pinchback by her employer after she revealed her pregnant condition was symptomatic of the lack of any definitive policy regarding pregnant employees.

Title VII, Section 703(e)(1), which provides for the BFOQ defense, states that an employer may discriminate on the basis of "religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or...