State Laws

• Pages: 259-262
• Author: George Rutherglen

259

Chapter 13

STATE LAWS

Just as the modern law of employment discrimination began

with state law, it is fitting to conclude this survey with an account of

where state law stands today. When Title VII was enacted, 21 states

had laws against employment discrimination, limited mainly to

discrimination on the basis of race, national origin, and religion.

1

Discrimination on the basis of sex was generally prohibited only in a

handful of states, although almost half had requirements of equal

pay for equal work. This situation changed rapidly after the passage

of Title VII, whose enforcement provisions established a system of

“cooperative federalism” requiring resort to state and local

administrative remedies before filing a charge under Title VII.

Today, all the states, except a few in the deep South, have laws

prohibiting discrimination on the same grounds as Title VII, and

most of those that do not have joined the remainder of the states in

prohibiting discrimination on the basis of age and disability.

2

A

number of localities have also passed ordinances against

discrimination and have enforced them through agencies that receive

deference from the EEOC.

3

State law initially contributed to the law of employment

discrimination by providing a model for federal laws such as Title

VII. It does so now by extending coverage, in a modest way to smaller

employers, but in a more innovative fashion to additional grounds of

prohibited discrimination, such as marital status and sexual

orientation. Procedurally, state laws have also offered a wider and

more effective array of administrative remedies than federal law. In

all of these respects, state laws continue to provide models for

possible changes in federal law.

A. Substantive Provisions

State laws against employment discrimination generally follow

federal law, both in their explicit provisions and in how those

provisions are interpreted. Only occasionally does state law depart

from federal law in the areas in which both overlap. The most

1

See William M. Landes, The Economics of Fair Employment Laws, 76 J. Pol.

Econ. 507, 507 n.1 (1968).

2

See Bureau of National Affairs, 8A Labor Relat ions Reporter: Fair

Employment Practices Manual 451:52–53 (2016). These figures include the District of

Columbia and Puerto Rico.

3

See 29 C.F.R. § 1601.80 (2019).