29 Pages Posted: 14 Oct 2007
Many states have their own antidiscrimination statute that, like federal law, prohibit discrimination in employment because of prohibited characteristics such as race, sex, age, religion, national origin, and disability. In certain cases, a particular set of facts involving sexual, racial, or disability harassment could satisfy the required elements of a state common law tort and a state statutory antidiscrimination claim. It benefits the aggrieved plaintiff to pursue both a common law tort action and a state statutory discrimination action against the employer when the common law tort provides for greater remedies, as is sometimes the case. But when a common law tort claim is asserted, employers often argue that the presence of the state antidiscrimination statute impliedly preempts the common law tort claim.
In the absence of specific preemption language in a state antidiscrimination statute, principles must be established for determining whether the antidiscrimination statute preempts the common law. My article, State Anti-Discrimination Statutes and Implied Preemption of Common Law Torts: Valuing the Common Law, argues that the legal analysis for determining whether a state antidiscrimination statute preempts common law tort claims based on employment discrimination or discriminatory harassment should depend on the type of common law tort in question. It identifies separate categories of common law torts, each of which is given different treatment. Torts that have an existence separate and apart from employment discrimination are not impliedly preempted by the mere presence of a state antidiscrimination statute. Torts that do not have an existence separate and apart from employment discrimination are impliedly preempted if they have no recognition under a state's common law prior to the enactment of the state antidiscrimination statute. Recognized common-law wrongful discharge torts that exist prior to the enactment of a state antidiscrimination statute are not impliedly preempted.
Suggested Citation: Suggested Citation
Gonzalez, Jarod Spencer, State Anti-Discrimination Statutes and Implied Preemption of Common Law Torts: Valuing the Common Law. South Carolina Law Review, Vol. 59, No. 1, 2007. Available at SSRN: https://ssrn.com/abstract=1019646