Laurence M. Vance
March 18, 2014
Lawmakers in the House and Senate in my state of Florida have proposed two bills (HB 717 & SB 774) that would amend the Florida Civil Rights Act (FCRA) to prohibit pregnancy discrimination. Penalties would include back pay and punitive damages up to $100,000.
“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). “Let’s not allow employers to prevent women from doing their jobs,” added State Rep. Lori Berman (D-Lantana).
There are three major problems with this political grandstanding.
One, pregnancy discrimination is already illegal in Florida. Two, if there is any form of discrimination that should not be prohibited, it is pregnancy discrimination. And three, no discrimination should be prohibited in the first place.
Pregnancy discrimination is already illegal in Florida. Title VII of the Civil Rights Act of 1964 prohibited sex discrimination in employment. Employers with 15 or more employees are covered by Title VII. In 1976, in the case of General Electric Co. v. Gilbert, the U.S. Supreme Court ruled that Title VII did not prohibit pregnancy discrimination. In response to this, Congress in 1978 amended Title VII with the Pregnancy Discrimination Act to also prohibit discrimination on the basis of pregnancy. In 1969, the Florida legislature passed the Florida Human Relations Act (FHRA). This prohibited discrimination based on “race, color, religion, or national origin.”
The FHRA was amended in 1972 to also prohibit “freedom from discrimination because of sex.” Subsequent amendments to the FHRA (now called the Florida Civil Rights Act or FCRA) did not add a pregnancy clause. Thus, pregnancy discrimination appears to be legal in Florida—but it’s not. Florida courts are divided, depending on whether decisions are based on the letter of the law or the original intent of Title VII of the Civil Rights Act. But either way, discrimination on the basis of pregnancy is prohibited under federal law, which means that it is prohibited in Florida.
If there is any form of discrimination that should not be prohibited, it is pregnancy discrimination. Even opponents of discrimination on the basis on sex might agree. Does anyone really think that coal mines and fire departments should be forced to hire pregnant women to work underground extracting coal or up on ladders fighting fires? But aside from safety issues, does anyone really think that Hooters should be prohibited from refusing to hire pregnant waitresses and Sports Illustrated should be prohibited from refusing to hire pregnant bikini models? And don’t think that some pregnant women wouldn’t bother applying for any of these jobs. Being pregnant does not automatically make a woman intelligent. Most men discriminate against pregnant women all the time and no one thinks anything of it—including pregnant women. When looking for a girlfriend or a wife most men immediately discriminate against any woman that is pregnant (unless, of course, she is pregnant with his child).
No discrimination should be prohibited in the first place. Discrimination is not a dirty word. We discriminate every day when we choose Coke over Pepsi, Chevy over Ford, chocolate over vanilla, Wal-Mart over K-mart, cake over pie, wheat bread over rye bread, etc., etc., etc. And like it or not, we also discriminate against people. Like attracts like, whether it is political preference, financial condition, sexual orientation, social standing, religious piety, or skin color. What bothers people is the reasons people discriminate against other people or on what basis they discriminate. Some people don’t mind discrimination if they think it is rational, logical, and reasonable. But if they think it is irrational, illogical, and unreasonable, or based on race, color, religion, sex, national origin, age, sexual orientation, gender identity, disability, or pregnancy, and is therefore hateful, unfair, wrong, immoral, bigoted, insensitive, racist, sexist, xenophobic, or homophobic, then it should be prohibited. But in a free society, as Future of Freedom Foundation president Jacob Hornberger explains:
A person has the fundamental right to associate with anyone he chooses and on any basis he chooses. He might be the biggest bigot in the world, choosing only to associate with white supremacists, but that’s what freedom is all about — the right to make whatever choices one wants in his life, so long as his conduct is peaceful — i.e., no murder, rape, theft, fraud, or other violent assaults against others.
To ban discrimination is to ban freedom of thought and freedom of association. Everyone in a free society should have the right to think whatever he wants to think about anyone else and to choose to associate or not associate, in both personal or business relationships, with anyone on the basis of those thoughts. His thoughts may be erroneous, illogical, irrational, or unreasonable, his opinions may be based on stereotypes, prejudice, bigotry, or racism—but in a free society everyone is entitled to his own thoughts and opinions.
Even though opponents of individual liberty and a free society don’t want to hear it, and even though some defenders of these things shy away from the issue, a truly free society must include the freedom to discriminate against any individual or group—including pregnant women—and on any basis and for any reason—including pregnancy.