Of the 130 new laws that went into effect in Florida as of July 1, 2015, the two likely to be of most significance to Florida employers are amendments to (1) Florida’s law protecting disabled individuals applying for public employment, and (2) the Florida Civil Rights Act (FCRA). Florida employers need to understand these amendments, review their related policies and procedures, and make changes to policies and/or implementation of policies as needed.
Expanded Protection for Disabled Individuals Applying for Public Employment
A public employee is defined as one “employed in the service of the state or political subdivisions of the state, in the public schools, and in all other employment supported in whole or in part by public funds.” Fla. Stat. § 413.08(5). In such places of employment, the employer may not refuse employment to an individual with a disability, unless it is shown that the particular disability prevents the satisfactory performance of the work. This prohibition is not new and should not take Florida’s public employers by surprise.
Florida’s public employers should be aware, however, that the amendments to Fla. Stat. § 413.08 broaden the definition of an “individual with a disability” as a protected class in places of public employment. Prior to July 1, 2015, the protected class of individuals with a disability, for purposes of section 413.08, was defined narrowly as a person who is “deaf, hard of hearing, blind, visually impaired, or otherwise physically disable.” The July 1, 2015 amendment redefines and broadens the class of protected individuals to those with “a physical or mental impairment that substantially limits one or more major life activities of the individual,” which includes “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” The term “physical or mental impairment” is also specifically defined to include:
“a. A physiological disorder or condition, disfigurement, or anatomical loss that affects one or more bodily functions; or
- A mental or psychological disorder that meets one of the diagnostic categories specified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, such as an intellectual or developmental disability, organic brain syndrome, traumatic brain injury, posttraumatic stress disorder, or an emotional or mental illness.”
With 130 new laws enacted in Florida as of July 1, 2015, it would be easy for public employers to skim past these amendments, which primarily affect the rights of individuals to utilize service animals in places of public accommodation. However, the expanded definition of an “individual with a disability” greatly expands the category of individuals to whom public employers must not refuse employment, unless it is shown that the particular disability prevents the satisfactory performance of the work.
Pregnancy is Now Specifically a Protected Class under FCRA
Also effective July 1, 2015, the FCRA now specifically includes pregnancy as a protected class. Prior to this amendment, pregnant employees had to file any discrimination claims as sex discrimination claims, which often led to inconsistent decisions in Florida courts. The amendment does not alter the types of protections required, but only adds pregnancy as a protected class, thus codifying the prohibition of employment discrimination on the basis of pregnancy. Of course, as with the other protected classes under the FCRA, it is not an unlawful employment practice for an employer to take or fail to take any actions on the basis of pregnancy in those certain instances where the condition of pregnancy relates to “a bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related.” Fla. Stat. §760.10(8)(a). This amendment is, essentially, the codification of a 2014 Florida Supreme Court decision that discrimination based on pregnancy is covered under the FCRA’s prohibition on sex discrimination. The amendment, thus, does not substantively alter Florida employers’ obligations as related to pregnant employees.
Pregnancy Discrimination is Being Evaluated Nationwide
However, the FCRA amendment is worth noting as further evidence that pregnancy discrimination is becoming a hot topic in employment law nationwide. In April 2015, the U.S. Supreme Court issued its holding in Young v. United Parcel Service, which held that, under the Pregnancy Discrimination Act, a plaintiff can establish a prima facie case of discrimination by showing that (a) she was pregnant, (b) she requested an accommodation, (c) her employer did not accommodate her, and (d) the employer did accommodate others with similar abilities or inabilities to work. The employer can then seek to justify its refusal to accommodate by showing legitimate, nondiscriminatory reasons for denying the requested accommodation.
In June 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued three new publications concerning pregnancy discrimination:
- “Enforcement Guidance: Pregnancy Discrimination and Related Issues”
- “Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues”
- “Fact Sheet for Small Business: Pregnancy Discrimination”
There is also an increase in both federal and state legislation being proposed and enacted to specifically address pregnancy discrimination. In June, the Pregnancy Workers Fairness Act was introduced in Congress, attempting to clarify employers’ duties toward pregnant employees. Florida is just one of many states which have adopted legislation either increasing or codifying protections for pregnant employees.
In light of this increased attention and recent revisions to the FCRA, Florida employers are well-advised to review their policies regarding reasonable accommodations and discrimination to ensure compliance with both state and federal law as related and applied to pregnant employees. Employers may also want to review their company’s handling of past requests for accommodation to evaluate whether there have been any discrepancies in handling among different classes of employees (e.g., pregnancy-related requests versus other types of requests). After conducting these reviews, employers should train supervisors and human resources professionals regarding pregnancy discrimination.
Melissa M. Whitehead, Attorney at Law | Weintraub Tobin