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April 01, 2014

State Antidiscrimination Laws and the Search for the Single Courageous State

by Marsha Chien

Justice Louis Brandeis once famously observed, “[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

For many, however, the United States’ legal system—with its overlapping (and sometimes-conflicting) scheme of federal and state laws—remains a curious one. Certainly, in terms of state antidiscrimination laws, identifying the “single courageous State” is rife with complications. It is baffling the number and variety of laws across states that protect individuals from discrimination. Although federal laws prohibiting discrimination based on race, sex, age, disability, national origin, and religion are well established and commonly referenced, the multiplicity of state antidiscrimination laws is often unnoticed.

State laws provide an opportunity for states to create a society free from the discrimination its citizens find most abhorrent. California, for example, prohibits discrimination based on sexual orientation and gender identity, Cal. Gov. Code § 12940, as do 14 other states. See, e.g., Colo. Rev. Stat. § 24-34-401; Me. Rev. Stat. tit. 5, § 4571; Minn. Stat. § 363A.03. Delaware prohibits employers from discriminating against users of legal marijuana. Del. Code tit. 16, § 4905A. Other state antidiscrimination laws prohibit employer consideration of one’s AIDS/HIV status, credit history, domestic violence status, and genetic test results and limit employer use of lie detector tests and drug tests. See, e.g., Ariz. Rev. Stat. § 41-1401 et seq. (genetic tests); Conn. Gen. Stat. §§ 46a-51 to 46a-99 (lie detector tests, drug tests); Haw. Rev. Stat. §§ 378-1 to 378-69 (credit history, HIV testing); Idaho Code Ann. § 44-903 (lie detector tests); N.Y. Exec. Law § 296 et seq. (domestic violence status).

And the diversity of “experiments” is not limited to the substantive law. Differences in how states enforce their discrimination laws are even more stark. Some states restrict an individual’s right to seek judicial redress for workplace discrimination—either by placing the sole responsibility for adjudicating claims with the state Fair Employment Practice (FEP) agency, not the courts, or by requiring complete administrative exhaustion before allowing suit. See, e.g., Ga. Code Ann. § 45-19-39(b)(5)–(6) (providing that the state court shall uphold the special master’s determination unless it is arbitrary, capricious, or an abuse of discretion). Other states impose less stringent restrictions, merely requiring that an individual wait for a period of time before filing suit. See, e.g., Conn. Gen. Stat. § 46a-100 (allowing a plaintiff to file a civil action after timely filing a complaint with the state’s FEP agency and receiving a release, the equivalent to a right-to-sue letter after 210 days from the date of filing with the FEP agency).

Still other states place no restriction on an individual’s right to seek judicial redress at all and, perhaps fittingly in our system of “laboratories,” unfettered access to judicial redress is achieved in myriad ways. Some states allow claimants to choose redress from either an administrative agency or a judicial forum, see, e.g., N.Y. Exec. Law § 297 (9), Marine Midland Bank v. N.Y. State Div. of Human Rights, 551 N.E.2d 558 (N.Y. 1989) (holding that when a state FEP agency dismisses a claim for administrative convenience, the plaintiff may bring an action in state court). Other states, such as Mississippi, Alabama, and Arkansas, effectively require individuals to file suit by not establishing a state FEP agency at all. See, e.g., Ala. Code §§ 21-7-1, 21-7-8 (protecting the visually handicapped and physically disabled only from discrimination and making no reference to a state FEP agency).

Interestingly, identifying the single courageous state is further complicated by the role of federal antidiscrimination laws. Procedurally, for example, in states without a state FEP agency, federal law requires that individuals file their federal charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the violation. 42 U.S.C. § 2000e-5(e). On the other hand, in states with their own state FEP agencies, also known as “deferral” states, EEOC charges may be filed by the earlier of 300 days after the violation or 30 days after the state FEP dismissed the charge. Id.

Moreover, state and federal antidiscrimination laws interact substantively. For example, in April 2012, the EEOC strengthened its enforcement guidance regarding employer consideration of an employee’s criminal history. See Consideration of Arrest & Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, 2012 WL 1499883 (EEOC Guidance Apr. 25, 2012) [hereinafter EEOC Guidance]. In doing so, the EEOC Guidance recognized that some states may actually prohibit employment of individuals with certain criminal records and explicitly states, “the fact that [an employer’s exclusionary policy or practice] was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.”

In short, considering the variety and breadth of state antidiscrimination laws, determining where one is most protected from discrimination may be near impossible. Yet, there still may be a good reason to prefer a system where the “novel social . . . experiment[s]” are confined to one state and pose no “risk” to the rest of the country. See, e.g., Ind. Code §§ 34-28-8-6, 34-28-7 (prohibiting employers from discriminating against employees and applicants based on their gun ownership but protecting employees’ right to bring their gun to work); Miss. Code. Ann. § 33-1-15 (providing no state protections from discrimination by private employers other than for those employees who are serving or once served in the military).

As certain states rightists’ like to say: If a person does not like his or her state’s chosen laws, then he or she is free to leave. For my part, I might not have identified the “single courageous state,” but I certainly do not imagine leaving California any time soon.

Marsha Chien is a Skadden Fellow at The Legal Aid Society–Employment Law Center’s National Origin, Immigration, and Language Rights Program where she represents, educates, and advises low-income, limited-English proficient (LEP) workers arbitrarily barred from equal employment opportunities.