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KillAllCommies

Federal anti-discrimination law vs State anti-discrimination law

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Let's just suppose that a State either repeals or just never had an exception to discrimination law that is present in Federal law, such as the National security or BFOQ exceptions, for example, what would happen?

 

Would an employer be allowed to discriminate based on those reasons? Would Federal law preempt State law on this case?

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45 minutes ago, KillAllCommies said:

Would an employer be allowed to discriminate based on those reasons?

 

To use one of your examples: if a state did not have (or had but repealed) a BFOQ exception, then an employer would be prohibited from discriminating under state law even if there were a perfectly legitimate BFOQ reason for the employer's action such that the employer woudn't be liable for discrimination under the federal law that did recognize a BFOQ exception.  If I'm understanding your question correctly, it is not a question of allowing discrimination -- in fact, it is completely the opposite.

 

If what you're asking is whether an exception in the federal law would apply to a state law that never had (or had repealed) a similar exception, that is a little more complicated.  One would need some more specifics to reach a useful conclusion.

 

 

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26 minutes ago, ElleMD said:

Your question is so vague as to be impossible to answer. If you provide some facts, including what happened and in what state, we can attempt to point you in the right direction.

 

Let's just suppose that, for example, a State either never had or repealed, the BFOQ exception, discrimination based on BFOQ reasons is something allowed under Title VII, so I would like to know if an employer would be allowed to discriminate based on this reason, even though State law didn't allow it but Federal law did.

 

24 minutes ago, MiddlePart said:

 If I'm understanding your question correctly, it is not a question of allowing discrimination -- in fact, it is completely the opposite.

 

 

 

 

I was actually asking if an employer would be allowed to discriminate based on reasons that though are not allowed under the law of a State, but are allowed under Federal law.

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If an employer falls under both a federal and state law (doesn't matter what topic) and something is "legal" under state but not federal, the employer can still be held liable under federal. They don't get a pass because they didn't also violate an existing state law too.

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I think this is what you are asking.


As an example, in the state of Alabama there is no state law prohibiting an employer from discriminating on the basis of race.  It would NOT be legal for an employer is Alabama to discriminate on the basis of race, because it is illegal under Federal law to do so and the employer is required to comply with both. (This presumes the employer is bound by Federal discrimination laws.)

 

Is that what you are asking?

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8 minutes ago, cbg said:

I think this is what you are asking.


As an example, in the state of Alabama there is no state law prohibiting an employer from discriminating on the basis of race.  It would NOT be legal for an employer is Alabama to discriminate on the basis of race, because it is illegal under Federal law to do so and the employer is required to comply with both. (This presumes the employer is bound by Federal discrimination laws.)

 

Is that what you are asking?

 

I was asking if it would be allowed to discriminate based on an exception in Federal law, such as National security or BFOQ, that is not present on State law, which would make it illegal under State law but legal under Federal law.

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If there is a state law that says, It is illegal to do x, then it is illegal to do x in that state even if Federal law allows it.


If there is no state law either way, then if it is legal under Federal law that's all that matters.

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6 minutes ago, cbg said:

If there is a state law that says, It is illegal to do x, then it is illegal to do x in that state even if Federal law allows it.


If there is no state law either way, then if it is legal under Federal law that's all that matters.

 

But doesn't Federal law preempt State law? Why wouldn't this apply to discrimination?

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The rule is, you can have a stricter interpretation or standard under state law than under federal law and the state law would be valid and enforceable the opposite would not be true if you had a state law that lesser standards than federal law, the federal law would preempt the state law and be enforceable..

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6 minutes ago, doucar said:

The rule is, you can have a stricter interpretation or standard under state law than under federal law and the state law would be valid and enforceable the opposite would not be true if you had a state law that lesser standards than federal law, the federal law would preempt the state law and be enforceable..

 

How would this stricter interpretation and standard work?

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Because Federal law does not automatically trump state law. Nor does state law automatically trump Federal.

 

Let's try another example. Minimum wage in my state is $11.00 an hour, much higher than Federal law. If Federal law trumped state law, then employers could all disregard the state law and pay $7.50 an hour. Instead, they are required to follow the law that provides the better of the two benefits. By paying $11.00 an hour, they are in compliance with both, since if the employer is paying $11.00 he's certainly paying $7.50.

 

Basically what it comes down to is, if EITHER state or Federal law says you can't discriminate based on x, then you can't.

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3 minutes ago, cbg said:

Because Federal law does not automatically trump state law. Nor does state law automatically trump Federal.

 

Let's try another example. Minimum wage in my state is $11.00 an hour, much higher than Federal law. If Federal law trumped state law, then employers could all disregard the state law and pay $7.50 an hour. Instead, they are required to follow the law that provides the better of the two benefits. By paying $11.00 an hour, they are in compliance with both, since if the employer is paying $11.00 he's certainly paying $7.50.

 

Basically what it comes down to is, if EITHER state or Federal law says you can't discriminate based on x, then you can't.

 

So, in which cases would Federal law trump State law, at least when it comes to discrimination? Would this apply to other exceptions such as, the National security exception, for example?

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What national security exception?  Basically, when the federal law is stricter than state law.  say, state law did not require Miranda warnings before police questioning, but federal law does.  Federal law would trump state law.

If state law did not include race as a basis in its discrimination laws, but federal law does, federal law trumps state law.

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2 minutes ago, doucar said:

What national security exception?

 

"(g) National security Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if—

(1)
the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and
(2)
such individual has not fulfilled or has ceased to fulfill that requirement." - 42 U.S. Code § 2000e-2 - Unlawful employment practices

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Give us an actual example and stop playing the vague hypothetical game. Jane applied for Job ____________ in __________ state as a ________. She was turned down for ___________ reason.

 

The section you cite refers to it being legal to not hire someone for a job requiring a security clearance who can't obtain a security clearance. This has nothing to do with illegal discrimination.

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16 minutes ago, ElleMD said:

Give us an actual example and stop playing the vague hypothetical game. Jane applied for Job ____________ in __________ state as a ________. She was turned down for ___________ reason.

 

The section you cite refers to it being legal to not hire someone for a job requiring a security clearance who can't obtain a security clearance. This has nothing to do with illegal discrimination.

 

A Muslim decides to join a Christian organization in the State of Nevada, the Christian organization however, decides to not accept him because of his religion.

 

This is allowed under Title VII, but the State of Nevada however, repealed this exception, as such, Nevada law does not allow it (this is just hypothetical, not saying that this actually happened).

 

In this case, which law would prevail, Federal or State?

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3 minutes ago, LegalwriterOne said:

Bad example because the feds won't get involved with a religious organization. 

 

A White person working on an Indian reservation is fired to give preference to another Indian.

 

This is allowed under Title VII, the State of Arizona repealed this exception, as such, Arizona law does not allow it (once again, just hypothetical).

 

Would Federal law trump State law in this case?

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3 minutes ago, KillAllCommies said:

 

A White person working on an Indian reservation is fired to give preference to another Indian.

 

This is allowed under Title VII, the State of Arizona repealed this exception, as such, Arizona law does not allow it (once again, just hypothetical).

 

Would Federal law trump State law in this case?

 

Arizona law does not apply on Indian reservations.  Only tribal and federal law matter.

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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.

 

I would be wiling to bet folding money that you have a very specific situation in mind; that you have a very specific answer that you want; and you're asking questions that are designed to give you the answer you want. Once you have it, you'll then be prepared to play, "Gotcha!" with someone.

 

Either give us that specific situation, or I'm out until you convince me I'm wrong. I will not be easily convinced.

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3 minutes 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.

 

I would be wiling to bet folding money that you have a very specific situation in mind; that you have a very specific answer that you want; and you're asking questions that are designed to give you the answer you want. Once you have it, you'll then be prepared to play, "Gotcha!" with someone.

 

Either give us that specific situation, or I'm out until you convince me I'm wrong. I will not be easily convinced.

 

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?

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1 minute ago, cbg said:

No. In this case the state law offers the greater protection; therefore state law would rule.

 

I'm curious, what is the standard used to apply this? Is it like, that if a State law has more protected classes than Federal law, then it doesn't apply?

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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.

 

 

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