Under the Threshold: Gaps in State Employment Discrimination Laws

By: Elisa Teeter, Associate Editor, Vol. 27

The purpose of Title VII of the Civil Rights Act of 1964 is to “improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place.”[i] The law is meant to address a “larger pattern of restriction, exclusion, discrimination, segregation, and inferior treatment of minorities and women in many areas of life.”[ii]

Why aren’t all workers covered by Title VII? Title VII states that “[e]mployers subject to the statute include any person ‘engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.’”[iii] Title VII’s constitutional basis rests on the requirement that the employer be “engaged in an industry affecting commerce.”[iv] Some assume the 15 employee threshold for coverage is a proxy for showing engagement in interstate commerce, but this is not supported by the legislative history.[v] The 15 employee requirement was the result of a political compromise to protect small and ethnic businesses, rather than a Commerce Clause consideration.[vi] Five likely purposes for this small business exemption, as described by Professor Richard Carlson, include: relieving small businesses of the disproportionate costs of compliance, preserving the right of personal relationships beyond Title VII interference, permitting racial or ethnic self-help through family owned businesses, avoiding overextension of the EEOC, and diffusing some of the business opposition to Title VII.[vii]

No matter the purpose, states are left to fill in the gaps left by Title VII.  What happens to employees who are not covered by Title VII? Below are three examples showing that additional protection is needed from the federal government for workers currently only covered by state anti-discrimination laws.

Georgia

Georgia provides little to no protection to workers against race-based discrimination. Official Code of Georgia Annotated § 45-19-21 states that one of the general purposes of the article is “to promote the elimination of discrimination against all individuals in public employment because of such individuals’ race,” among other protected classes.[viii] While Georgia has adopted language similar to that in Title VII regarding racial discrimination, protection on this basis is only afforded to public employees within the state.[ix] Georgia provides limited protection for private employees not covered by Title VII, but only on the basis of sex and disability.[x] Further, these statutes exclude domestic and agricultural employees, the majority of which are people of color.[xi] In January 2021, House Bill 204 was introduced to the Georgia General Assembly.[xii] The Bill aims to provide a comprehensive state civil rights law protecting individuals from discrimination in both public and private employment, among other areas.[xiii] The Bill is currently pending in the Georgia House Judiciary Committee.[xiv]

North Carolina

Rather than prescribing employment discrimination guidelines, North Carolina prefers to leave anti-discrimination practices to businesses. In 2016, the North Carolina legislature issued a declaration on employment discrimination, stating that it was “the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.”[xv] However, this statement was repealed in March of 2017 by 2017 N.C. HB 142 following Executive Order 93 by Governor Pat McCrory.[xvi]

While the Executive Order affirmed that the State was “committed to administering and implementing all State human resources policies, practices and programs fairly and equitably, without unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information, or disability,” this only applies to State employees.[xvii] Regarding protection for private employees, the Executive Order affirmed “that private businesses, nonprofit employers and local governments may establish their own non-discrimination employment policies.”[xviii] Further, 2017 N.C. HB 142 prohibited local governments in North Carolina from enacting or amending ordinances regulating private employment practices or regulating public accommodations.[xix] North Carolina does not currently have a Title VII analogous statute, meaning that employees under the Title VII threshold are not protected from race discrimination.

New Jersey

The state of New Jersey has a strong employment discrimination statute which applies to private employers with one or more employees.[xx] The one employee threshold significantly extends coverage to those not covered by Title VII. However, the statute’s definition of “employee” does not include “any individual employed in the domestic service of any person.”[xxi] Unfortunately, this is not unique to New Jersey. Because the federal government and many states under-regulate domestic labor, the many people of color in these jobs continue to endure abuse and discrimination at the hands of their employers.[xxii] Of the approximately 2.2 million domestic workers in the United States as of 2020, 52% are Black, Hispanic, Asian American, or Pacific Islander women.[xxiii]

Looking Forward

There are a few actions the federal government can take to protect these workers. First, the federal government can eliminate or lower the minimum employee requirement of Title VII, providing a layer for protection for all employees. States that choose to provide additional protection would still be welcome to do so. Second, the federal government can incentivize state laws that cover employees excluded under Title VII.

[i] 29 CFR 1608.1(b)

[ii] Id.

[iii] 42 USC § 2000e.

[iv] Nesbit v. Gears Unlimited, Inc., 347 F.3d 72 (3d Cir. 2003).

[v] Id.

[vi] Id.

[vii] Richard Carlson, The Small Firm Exemption and the Single Employer Doctrine in Employment Discrimination Law, 80 St. John’s L. Rev. 1197, 1205 (2006).

[viii] O.C.G.A. § 45-19-21.

[ix] See id.

[x] O.C.G.A. § 34-5-3; O.C.G.A. § 34-6A-4.

[xi] O.C.G.A. § 34-5-2; Julia Wolfe, Jori Kandra, Lora Engdahl & Heidi Shierholz, domestic workers chartbook (Econ. Pol’y Inst., 2020); Econ. Rsch. Serv., Farm Labor (USDA, 2021).

[xii] 2021 G.A. HB 204.  

[xiii] Id.

[xiv] Id.

[xv] N.C. Gen. Stat. § 143-422.2.

[xvi] North Carolina: Executive Order No. 93 (2016); 2017 N.C. HB 142.

[xvii] North Carolina: Executive Order No. 93 (2016), Section 2.

[xviii] Id.

[xix] 2017 N.C. HB 142.

[xx] N.J. Stat. § 10:5-5(a); 2020 N.J. A.N. 681.

[xxi] N.J. Stat. § 10:5-5(f).

[xxii] Eva Lopez & Leila Rafei, Behind Closed Doors: The Traumas of Domestic Work in the U.S., ACLU (Mar. 15, 2021), https://www.aclu.org/news/immigrants-rights/behind-closed-doors-the-traumas-of-domestic-work-in-the-u-s/.

[xxiii] Wolfe, Kandra, Engdahl, & Shierholz, supra note xi, at 1.