Not All State Employment Discrimination Laws Are Created Equal

Some state laws may protect more categories than others and may apply to businesses with fewer workers

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 15, 2017

HR professionals are usually familiar with federal anti-discrimination statutes—such as Title VII of the Civil Rights Act of 1964—but they also must be aware of similar state laws that may provide more protections for workers.

Federal law establishes the floor for anti-discrimination laws, explained Miriam Edelstein, an attorney with Reed Smith in Philadelphia. "State and city laws often contain more protective language for employees," she said.

Federal laws protect workers from discriminatory employment actions based on classifications such as age, color, disability, national origin, race, religion and sex. Many states have added to the list of protected categories, said Tamara Devitt, an attorney with Haynes and Boone in Orange County, Calif.

For example, she said, California law extends employment protections to workers based on sexual orientation, gender identity and marital status—whereas federal law does not. Furthermore, state laws may apply to businesses with fewer workers.

California's Fair Employment and Housing Act generally applies to businesses with five or more employees. Most federal anti-discrimination statutes aren't triggered unless the business has at least 15 or 20 employees (depending on the statute).

In addition to California, New York laws tend to be employee-friendly, and cities like New York City and San Francisco provide even more employment protections.

Still, some states have laws that largely mirror federal law, while other states don't have any protections for certain categories. For example, Alabama doesn't have a statute that protects workers from race discrimination. That means employees in the state would have to file such claims under federal law.

"When there are differences between federal and state law, usually the one that is more favorable to the employee is going to apply," Devitt said.

She noted that multistate employers need to understand the laws that affect their workforce and figure out the best policy for their organization. Some employers may decide to have different standards in different states, and others may decide to go with the most employee-friendly laws and give workers more protections than they may be entitled to in some states, she said.

The most proactive employers will want to make their anti-discrimination policies as strong as possible regardless of the specific requirements of an individual employee's home jurisdiction, Edelstein said.

[SHRM members-only multistate coverage: Multistate Employer Resources]

Missouri Law Prompts Debate

While some states and cities are passing laws that provide more protections to workers, Missouri recently made its workplace discrimination law more employer-friendly.

The state NAACP said that changes to state law have made it harder for workers to protect themselves from discrimination, harassment and retaliation. Lawmakers who supported the amendments, however, said the statutory changes align Missouri law with many other state laws and the Equal Employment Opportunity Commission's standards.

S.B. 43—which amended the Missouri Human Rights Act (MHRA)—was signed into law in June and took effect on Aug. 28. Among other things, the bill created a higher standard of proof for employees to show that an adverse employment action was based on unlawful discrimination.

Prior to S.B. 43, Missouri had one of the most employee-friendly anti-discrimination statutes in the country, said Charles "Chad" E. Reis, IV, an attorney with Littler in St. Louis. Employees previously had to show that their protected classification (such as race or sex) was "a contributing factor" to an adverse employment action. Now employees must show that their protected classification was "the motivating factor."

The former statutory language caused challenges for employers because of the low standard of proof, Reis said. Plaintiffs' attorneys were arguing that alleged discriminatory conduct didn't have to be the principal factor that caused an employer to take adverse action but merely had to play some part—any part—in the decision, he said.

S.B. 43 requires that "the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action. The person must further prove that such action was the direct proximate cause of the claimed damages."

Furthermore, individual employees in Missouri will no longer be liable for workplace discrimination. Previously, a person acting in the interest of the employer could be sued, Reis explained. For example, he said, if a manager gave an employee a poor performance rating and the employee was fired at least in part because of the review, the manager could have been sued individually in addition to the business. This added to the cost of litigation for an employer, particularly if separate counsel was needed for the individual, Reis said. "The amendments give businesses a fighting chance to defend their employment decisions," he added.  

However, James Richardson, an attorney with Sanford Heisler Sharp in San Francisco, said the changes to the MHRA might create less incentive for employers to prevent workplace discrimination. "There's almost never a smoking gun where a manager says, 'Hey, I'm not going to hire you because you're black,' " he said. "These are difficult cases to prove even when they are completely meritorious, and it will be that much more difficult for employees in Missouri now."

HR's Role

Richardson said that HR professionals shouldn't look at their policies from a perspective of how they can escape liability, but instead how they can create an environment where all employees feel protected and valued. "It makes good business sense to make employees feel protected," he said. "Smart employers want to ensure they are not putting talented workers in a position where they feel like they are being discriminated against."


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