Federal Preemption of State Employment Discrimination Claims
by John Gause, Esq.
Published: Maine LAWYERS REVIEW, March 25, 2004
It is a good idea for us to keep the issue of federal preemption in the back of our minds when we are prosecuting state employment discrimination claims. Under some circumstances state claims such as those brought under the Maine Human Rights Act (MHRA) will be preempted by federal law. A basic understanding of when preemption will come up may enable us to ward off a potential challenge.
Federal preemption in employment discrimination cases arises most often under three federal statutes: the Labor Management Relations Act (LMRA), the National Labor Relations Act (NLRA), and the Employee Retirement Income Security Act (ERISA). The LMRA creates a federal cause of action for the breach of a private sector collective bargaining agreement. Although the LMRA does not expressly preempt any state claims, the desire for uniformity in labor relations has led the Supreme Court to recognize an implied preemption doctrine. The rule is that if a state law claim cannot be resolved without interpreting a collective bargaining agreement, the state claim is preempted.
Under this standard, most MHRA claims will survive because they are independent of a CBA. For example, if plaintiff—who is subject to a CBA that requires employer to provide a medical leave of absence—alleges that employer violated the MHRA by denying her the reasonable accommodation of a leave of absence for her depression, she can bring the MHRA claim without invoking LMRA preemption. Resolution of the MHRA claim does not require the interpretation of the CBA because plaintiff has the right under the MHRA to a reasonable accommodation regardless of her rights under the CBA.
The result may be different, however, if plaintiff invokes the CBA to support her MHRA claim. For example, if plaintiff alleges that it would not have imposed an “undue hardship” for her employer to provide the leave of absence because it routinely provided medical leaves for employees under the CBA, the court may have to interpret the CBA to determine whether, in fact, the CBA required defendant to provide the leave. This may lead to plaintiff’s MHRA claim being preempted by the LMRA.
The NLRA, which governs private-sector labor relations, gives employees the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employees also have the NLRA right to refrain from engaging in these activities. The NLRA also contains a section that prohibits certain “unfair labor practices,” which include, in part, that employers shall not “interfere with, restrain, or coerce” employees in the exercise of their NLRA rights.
Similar to the LMRA, the NLRA contains no express statutory provision indicating that the NLRA preempts state law. Nevertheless, the Supreme Court has again created a preemption doctrine in order to avoid the danger of state interference with a national labor policy. According to the general rule, first articulated in the 1959 Supreme Court decision, San Diego Building Trades v. Garmon, state laws are preempted if they govern conduct that is “arguably” protected or prohibited by the NLRA.
Applying this standard, the First Circuit Court of Appeals, in Chalk Services, Inc. v. Massachusetts Commission Against Discrimination, held that plaintiff’s state sex discrimination claim was preempted by the NLRA. Plaintiff alleged that defendant harassed her for her involvement in a union organizing campaign but did not harass men who engaged in similar conduct. The court held that the conduct complained of was not only “arguably” but obviously prohibited by the NLRA, and, as such, plaintiff’s state claim was preempted.
Conversely, in Roussel v. St. Joseph Hospital, the United States District Court for the District of Maine held that the NLRA did not preempt plaintiff’s Maine Whistleblowers’ Protection Act claim. Plaintiff alleged that she was terminated because she wrote to defendant that nurses in the emergency room were legally required to receive a thirty-minute break for every six hours worked. Defendant argued that this constituted “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under the NLRA, and, as such, Plaintiff’s WPA claim should be preempted. The court disagreed because plaintiff wrote and delivered the note alone and did not discuss the issue with others prior to writing it.
There are two exceptions to NLRA preemption that may shield a state employment discrimination claim. The NLRA does not preempt a state claim where the conduct at issue is merely of “peripheral concern” to federal labor policy or where the conduct addresses interests “so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, courts cannot infer that Congress has deprived the states of the power to act.” As the Chalk Services holding shows, however, a state employment discrimination claim will not necessarily fall within one of these exceptions.
ERISA regulates employee benefit plans. Most employer-provided pension, health, and disability plans are controlled by ERISA. The general rule of preemption is set forth in ERISA itself: it supersedes “any and all state laws insofar as they may now or hereafter relate to any employee benefit plan.” The Supreme Court has held that a state law “relates to” to an ERISA benefit plan if it has a “connection with or reference to such a plan.”
In the leading Supreme Court case, Shaw v. Delta Airlines, Inc., the Court held that New York’s anti-discrimination statute was preempted by ERISA to the extent that it prohibited employers from structuring their employee benefit plans in a manner that discriminated on the basis of pregnancy. Delta Airlines had a policy of not providing disability leave related to pregnancy. At the time, pregnancy discrimination was not prohibited by Title VII of the Civil Rights Act of 1964. The Court held that the state law was preempted because it “related to” an ERISA benefit plan.
The relevant exception to ERISA preemption is that state laws are not preempted when they are coterminous with their federal counterparts. Accordingly, MHRA claims that track Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act will not be preempted by ERISA. This exception will not apply, however, if plaintiff relies on a provision of the MHRA that provides more protection than federal law. Thus, ERISA preemption may still arise in MHRA cases against employers with less than fifteen employees; if plaintiff invokes the broader definition of disability in the MHRA than that in the ADA; if the claim is based on whistleblower activity, ancestry, or workers’ compensation retaliation, which are not covered by federal law; or in MHRA age discrimination cases where plaintiff is under 40, unlike the ADEA that applies only to discrimination against people who are over 40.
Because of the risk of federal preemption, it is often worth bringing a parallel federal cause of action if one is available. Although Title VII, the ADA, and the ADEA may not provide additional protection or remedies than the MHRA, federal law will not be preempted by the LMRA, the NLRA, or ERISA. The federal claim will act as a backup should the state claim be preempted.
In addition, if we are relying exclusively on the MHRA state claim, we should think twice before making certain arguments. For example, we may not want to refer to plaintiff’s rights under a collective bargaining agreement if doing so will force the court to interpret the agreement. Or it may be risky to argue as a part of an age discrimination case that plaintiff was fired because employer was concerned about the added cost to its insurance premiums; doing so may create an ERISA preemption problem.
With careful planning, preemption can often be avoided. To be safe, we should have a working knowledge of when preemption might arise.
