Revitalizing State Discrimination Law
University of Cincinnati College of Law
July 9, 2012
George Mason Law Review, Forthcoming
U of Cincinnati Public Law Research Paper No. 12-09
Over the past few decades, federal discrimination law has become captive to an increasingly complex web of analytical frameworks. The courts have been unable to articulate a consistent causation or intent standard for federal law or to provide a uniform account of the type of injury the plaintiff is required to suffer. Part of this failure is demonstrated in the ever-increasing rift between how courts construct the discrimination inquiry for federal age discrimination claims and claims based on other traits, such as sex and race.
Unfortunately, the courts are unnecessarily taking state employment discrimination claims into this federal morass. When considering state claims, courts often construe state statutes to adhere to federal standards without any principled basis for doing so.
This article makes three central contributions. First, it describes how complex frameworks mold the federal discrimination inquiry. Second, it provides a historical narrative regarding the development of state employment discrimination law. This narrative demonstrates that much of the precedent used to justify importing federal standards to state claims should not apply to many of the cases in which it is used. It also shows that there are fundamental differences between state and federal statutes that militate in favor of interpreting them differently. Finally, the paper demonstrates how state law could become a model for further reform of federal anti-discrimination statutes.
Interpreting state statutes in tandem with federal law creates state regimes that are unmoored from their statutory language and ignores key differences between federal and state protections. More importantly, the ongoing dialogue regarding causation and harm is largely driven by underlying assumptions about whether discrimination is still happening, about how it manifests itself, and about how and whether society should address such concerns. The proof structures the courts have designed to think about these issues in the federal context frame the discrimination inquiry narrowly and are procedurally confusing. Ignoring that states may have different preferences raises serious concerns about the proper role of federalism in employment discrimination law.
Importantly, if courts would look at the way state statutes are constructed, they could discover a more elegant, unified way of considering discrimination claims, a way not marred by the recent disarray of federal law. Many states chose to prohibit a myriad of protected traits within one statutory regime. Further, many state employment discrimination statutes address not only employment, but also other areas such as fair housing.
Number of Pages in PDF File: 45
Keywords: employment discrimination, civil rights
JEL Classification: J70, J71Accepted Paper Series
Date posted: July 9, 2012 ; Last revised: August 26, 2012
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