KillAllCommies

Federal anti-discrimination law vs State anti-discrimination law

87 posts in this topic

2 minutes ago, cbg said:

No, it's the exact opposite, The employee is entitled to ALL the protections offered by BOTH state and Federal law. If there is a protection offered by state law but not by Federal, the employee is still entitled to that protection even if it's not offered by Federal law. An employer may always offer more protections than the law requires, but not less. So the law that trumps is the law that offers the most protections.

 

 

 

Does this mean then that the exception only applies to Federal protections, and that the State must have the exception in order for it to also apply to State protections ?

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Look, forget Federal and state. They're totally unimportant to this question. Nor is it a case of "exceptions". You seem to have a very mistaken idea how this works.


It's very simple. If either state law or Federal law offers a protection, the employee is entitled to and the employer must offer that protection. Period. In  no case does Federal law get to say, Employers don't have to honor that state law. In no case does state law get to say, Employers don't have to honor that Federal law. Federal law is not a ceiling. It's a floor.

 

IF THERE IS A PROTECTION OFFERED BY LAW, REGARDLESS OF WHAT LAW IT IS, THE EMPLOYEE GETS THAT PROTECTION. Whether a different legislation has chosen to provide it or not.

 

 

 

 

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1 minute ago, cbg said:

Look, forget Federal and state. They're totally unimportant to this question. Nor is it a case of "exceptions". You seem to have a very mistaken idea how this works.


It's very simple. If either state law or Federal law offers a protection, the employee is entitled to and the employer must offer that protection. Period. In  no case does Federal law get to say, Employers don't have to honor that state law. In no case does state law get to say, Employers don't have to honor that Federal law. Federal law is not a ceiling. It's a floor.

 

IF THERE IS A PROTECTION OFFERED BY LAW, REGARDLESS OF WHAT LAW IT IS, THE EMPLOYEE GETS THAT PROTECTION. Whether a different legislation has chosen to provide it or not.

 

 

 

 

 

But Federal law does not provide protection for those who are members of the Communist Party, so how am I mistaken in this case?

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Because while Federal law does not mandate such protection, it does not prohibit it either. There is no law saying, "You cannot offer protection to members of the Communist Party"; it simply does not address the matter. Any more than it addresses protections for Republicans or Democrats - it's simply not mentioned.  If a state wants to offer protection to members of a political party, it can; Federal law does not say it can't. It simply has chosen not to provide such a protection itself. There is a very, very long distance between, "We have chosen not to offer protection" and "It is illegal to offer protection".

 

 

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2 minutes ago, cbg said:

Because while Federal law does not mandate such protection, it does not prohibit it either. There is no law saying, "You cannot offer protection to members of the Communist Party"; it simply does not address the matter. Any more than it addresses protections for Republicans or Democrats - it's simply not mentioned.  If a state wants to offer protection to members of a political party, it can; Federal law does not say it can't. It simply has chosen not to provide such a protection itself. There is a very, very long distance between, "We have chosen not to offer protection" and "It is illegal to offer protection".

 

 

 

You seem to be interpreting it to be merely discrimination based on political beliefs, Federal law doesn't protect members of the Communist Party from any type of discrimination!

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But despite your assumption, Federal law still does not trump state law. You're still assuming that if there is no explicit and express protection, offering such protection is prohibited. You are wrong in that assumption.

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1 minute ago, cbg said:

But despite your assumption, Federal law still does not trump state law. You're still assuming that if there is no explicit and express protection, offering such protection is prohibited. You are wrong in that assumption.

 

But there isn't any State law that explicitly protects members of the Communist Party, so while one could argue that a State could enact one, since there isn't doesn't this mean then that you can discriminate against them in pretty much every State?

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There are a few states, not many I will grant you, but some, that offer protection on the basis of political affiliation.  So no, not in every state.

 

In states that do not offer such protections, yes, you could. In the same way you could discriminate against Republicans. Or Democrats. Or LIbertarians. Or Members of the Green Party. Or any other political affiliation.

 

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1 minute ago, cbg said:

There are a few states, not many I will grant you, but some, that offer protection on the basis of political affiliation.  So no, not in every state.

 

In states that do not offer such protections, yes, you could. In the same way you could discriminate against Republicans. Or Democrats. Or LIbertarians. Or Members of the Green Party. Or any other political affiliation.

 

 

But as I said, it is every type of discrimination, not merely political affiliation, so I doubt that you could, unless the exception only applies to Federally protected classes.

 

To try to explain, it basically works like that, if an employee is fired for being black or a woman, both of which are forbidden by Federal law, if the employee is a member of the Communist Party, there is nothing the employee would be able to do.

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If you are trying to say that it is legal to discriminate against Communists but not against Republicans, etc., then you are wrong. That's all Communism is in this context - a political affiliation. There is no Federal law saying you can't discriminate against Republicans, either. Therefore, unless a state offers some protections for political affiliations, you can discriminate against a Republican and again, there would be nothing an employee could do.

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53 minutes ago, cbg said:

If you are trying to say that it is legal to discriminate against Communists but not against Republicans, etc., then you are wrong. That's all Communism is in this context - a political affiliation. There is no Federal law saying you can't discriminate against Republicans, either. Therefore, unless a state offers some protections for political affiliations, you can discriminate against a Republican and again, there would be nothing an employee could do.

 

Here is the exception:

 

"(f) Members of Communist Party or Communist-action or Communist-front organizations

As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.]." - 42 U.S. Code § 2000e-2 - Unlawful employment practices

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Again we are going around in circles. It is not an exception it is federal law. But if a state wanted to provide protection on the basis of political affiliation, it could. Federal law says you can't be liable under federal law. It says nothing about state law.

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Fine. You want it to be an exception, it's an exception. I've explained the law to you and you either cannot or refuse to understand it. So you go right ahead believing what you are determined to believe. I'm done trying to pound correct answers into your head. Have a nice day.

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The Subversive Activities Control Board? Seriously? You mean the one that was ruled unconstitutional and disbanded decades ago? That Subversive Activities Control Board? Are you the ghost of McCarthy? A troll? Or a really terrible history student? Even in the 50's when it was relevant, it was not an employment/labor law based piece of legislation.

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50 U.S. Code § 781 - Repealed. Pub. L. 103–199, title VIII, § 803(1), Dec. 17, 1993, 107 Stat. 2329

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15 hours ago, KillAllCommies said:

Ok then, under Title VII, "unlawful employment practices" does not apply to persons who are members of the Communist Party, I don't know how many states had this exception in the past, but Nevada was one of them, and Nevada repealed it in 2013.

 

If this exception somehow gets invoked in Nevada for example, would Federal law trump State law in this case?

 

For starters, and without researching this, I would be shocked if the exception in question would pass scrutiny in the event of a constitutional challenge.  However, for purposes of this discussion, I'll assume that the statute would be enforced as written.

 

With that assumption in mind, otherwise unlawful employment practices taken against "an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist­-action or Communist-­front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950" would not violate Title VII.  In a state such as Nevada, however, such an action would violate state law.  The intricacies of federal preemption analysis are way beyond the scope of a message board, so it suffices to say that there would be no preemption for something like this.  However, the statement that "state law would rule" is not really accurate.  The employment practice in question still would not violate Title VII.  It's just that federal preemption would not prevent the applicable state law from being enforced.

 

 

15 hours ago, KillAllCommies said:

Is it like, that if a State law has more protected classes than Federal law, then it doesn't apply?

 

There is no such thing as a "protected class."

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13 hours ago, cbg said:

If you are trying to say that it is legal to discriminate against Communists but not against Republicans, etc., then you are wrong.

 

1 hour ago, ElleMD said:

The Subversive Activities Control Board? Seriously? You mean the one that was ruled unconstitutional and disbanded decades ago? That Subversive Activities Control Board? Are you the ghost of McCarthy? A troll? Or a really terrible history student? Even in the 50's when it was relevant, it was not an employment/labor law based piece of legislation.

 

53 minutes ago, doucar said:

50 U.S. Code § 781 - Repealed. Pub. L. 103–199, title VIII, § 803(1), Dec. 17, 1993, 107 Stat. 2329

 

Folks...just to be clear, the "communist exception" that the OP is talking is very much on the books.

 

42 U.S.C. section 2000e-2(f) provides as follows:  "As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950."


The fact that we all think it's silly doesn't change that.  Nor does the fact that the Subversive Activities Control Act of 1950 change that since the quoted text refers to members

"of the Communist Part of the United States or any other organization required to register. . . ."  It is, however, worth pointing out that, as written, this exception applies not to all persons who are communists, but rather, only to persons who are members "of the Communist Party of the United States."

 

Addressing the OP's inquiry as though this law isn't actually on the books is not terribly productive.  That said, I suspect that, if an employer attempted to rely on this exception, a court would not be hesitant to rule that this sub-section is unconstitutional.

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15 hours ago, cbg said:

After answering questions on this and like boards for close to 20 years, you start to get a feeling about some threads. And I'm getting a feeling about this one.

 

Same here.

 

The feeling I get is TROLL.

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It is, however, also true that there are only a very few states where political affiliation is protected. Making it legal, in the other states, to discriminate against Republicans, Democrats, Libertarians et al. I frankly don't see the difference. Either way, you're still discriminating based on political party.

 

What I'm wondering, however, if the OP is planning to have any proof  before firing people for Communism, or if he plans to pick up where Joe McCarthy left off and fire everyone who was required to read Tolstoy in their European Literature course.

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16 hours ago, pg1067 said:

 

For starters, and without researching this, I would be shocked if the exception in question would pass scrutiny in the event of a constitutional challenge.  However, for purposes of this discussion, I'll assume that the statute would be enforced as written.

 

With that assumption in mind, otherwise unlawful employment practices taken against "an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist­-action or Communist-­front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950" would not violate Title VII.  In a state such as Nevada, however, such an action would violate state law.  The intricacies of federal preemption analysis are way beyond the scope of a message board, so it suffices to say that there would be no preemption for something like this.  However, the statement that "state law would rule" is not really accurate.  The employment practice in question still would not violate Title VII.  It's just that federal preemption would not prevent the applicable state law from being enforced.

 

Thank you for answering my question, I would like though, that you could answer just another one, and I hope that you or others here don't mind this.

 

Nebraska was another State that had this exception but repealed it back in 2015, I would like to know, in Nebraska's specific case, if the exception would preempt State law, and if yes, why would it preempt Nebraska's law, but not Nevada's?

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7 hours ago, KillAllCommies said:

I would like to know, in Nebraska's specific case, if the exception would preempt State law, and if yes, why would it preempt Nebraska's law, but not Nevada's?

 

As phrased, this makes little sense (in particular, the part about "the exception . . . preempt[ing] State law."  In any event, what I wrote previously was not state specific.  Assuming the "communist exception" in Title VII is actually enforceable, then discrimination falling within its ambit would not violate Title VII.  However, if such discrimination violates state law, then the exception found in Title VII would not affect that.  Whether Nebraska has a law that prohibits discrimination based on political affiliation or ideology is something I don't know.

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14 minutes ago, pg1067 said:

 

As phrased, this makes little sense (in particular, the part about "the exception . . . preempt[ing] State law."  In any event, what I wrote previously was not state specific.  Assuming the "communist exception" in Title VII is actually enforceable, then discrimination falling within its ambit would not violate Title VII.  However, if such discrimination violates state law, then the exception found in Title VII would not affect that.  Whether Nebraska has a law that prohibits discrimination based on political affiliation or ideology is something I don't know.

 

Only California, New York, and D.C., have such a law.

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On 5/1/2018 at 11:26 AM, pg1067 said:

Folks...just to be clear, the "communist exception" that the OP is talking is very much on the books.

 

42 U.S.C. section 2000e-2(f) provides as follows:  "As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950.

 

The key to understanding this provision is the the first clause, “as used in this subchapter.” That refers to Title 42, chapter 21, subchapter VI. That subchapter is simply the codification of Title VII of the Civil Rights Act of 1964. Title VII is the law that defines what is illegal discrimination in employment under federal law. So, in short, all the above provision does is make it clear that that an employer discriminating against members of the Communist Party of the United States does not amount to illegal discrimination under Title VII. In short, it just says that this form of discrimination by an employer won’t violate federal law. Nothing more. States remain free to say that sort of discrimination violates their laws.

 

On 5/1/2018 at 11:26 AM, pg1067 said:

That said, I suspect that, if an employer attempted to rely on this exception, a court would not be hesitant to rule that this sub-section is unconstitutional.

 

I disagree. I'm curious how you conclude that it is so obviously unconstitutional. It wasn’t illegal for (at least private) employers to discriminate against Communist Party members under federal law before Title VII was enacted and it is not illegal for private employers to discriminate against them under Title VII, either, as the subsection you quoted makes clear. The subsection you quoted does not require nor bar employers from hiring Communist Party members. That decision is up the employer, as has always been the case. The Constitution does not require the federal government to protect Communist Party members (or any other group for that matter) from discrimination by private employers. So I fail to see any argument for saying that it is unconstitutional, let alone that it is as crystal clear as you seem to believe. I'd like to hear your argument for why it would be unconstitutional.

 

If you want to make the argument for government employment, there might well be an argument that government cannot constitutionally discriminate against Communist Party members.

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