federalism's false hope: how state civil rights laws are systematically

FEDERALISM’S FALSE HOPE: HOW STATE

CIVIL RIGHTS LAWS ARE SYSTEMATICALLY

UNDER-ENFORCED IN FEDERAL FORUMS

(AND WHAT CAN BE DONE ABOUT IT)

Steven Andrew Smith

& Adam Hansen

If state and federal civil rights laws had a narrative, it might go

something like this: in the beginning, state governments were the

obstacles to liberty and equality. Since the end of the Civil War,

states—southern states especially—were haunted by the legacy of Jim

Crow—passive enablers of private discrimination at best, active

participants at worst. Although interested in providing relief,

the

federal government was largely powerless to act.

About mid-way through the twentieth century, three key trends

converged to change this status quo, placing vast supervisory authority

in the civil rights arena in the hands of the federal government, and the

federal courts in particular. First, the civil rights movement—led by the

Reverend Martin Luther King, Jr. and others, and projected into the

American living room by Walter Cronkite

—entered the mainstream

American consciousness, cementing itself as a national problem worthy

of a national response.

Second, the legacy of the New Deal left the

federal government with greatly expanded powers to deal with civil

rights violations. As an example, while the Supreme Court in 1883

struck down portions of the Civil Rights Act of 1875 barring

Steven Andrew Smith, J.D. William Mitchell College of Law 1995 (cum laude), is a partner at

Nichols Kaster, PLLP in Minneapolis where he represents employees exclusively in individual,

class, and collective action cases.

Adam Hansen, J.D. University of Minnesota, 2008.

1. See, e.g., Federal Civil Rights Act of 1875, ch. 114, § 4, 18 Stat. 335, 336 (current version

at 18 U.S.C. § 243 (2000)) (stating that a fine will be imposed on anyone who disqualifies a juror on

the basis of their race).

2. See, e.g., The Civil Rights Cases, 109 U.S. 3, 4, 25 (1883) (striking down the Civil Rights

Act of 1875 as beyond the constitutional authority of Congress to enact).

3. See W

ALTER CRONKITE, A REPORTER’S LIFE 289-90, 292-94 (1996).

4. See id. at 294-95.

64 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

discrimination in public accommodations,

the Court—61 years later—

upheld similar provisions in the newly-enacted Civil Rights Act of

1964.

In the intervening period, the Supreme Court had dramatically

changed its understanding of the breadth of Congress’s power to

“regulate Commerce . . . among the several States”

adopting an

expansive view of congressional power during the New Deal—a view

that persisted through the Civil Rights era.

This expanded power, in

turn, gave Congress near carte blanche power to legislate in the name of

preventing civil rights abuses.

Third, a strong political will to pursue

federal civil rights violations through both public

and private

enforcement mechanisms in the 1960s and 1970s led to zealous

enforcement of federal civil rights statutes—effectively narrowing the

gap between abstract legal protections and enforceable legal rights.

this new universe of federal civil rights enforcement, the federal

judiciary played an active role. Initially, under the guidance of the

Warren Court, the federal courts interpreted federal civil rights laws

generously,

often looking to the broad remedial purpose of such laws

in making victims of discrimination whole.

To this day, discrimination

5. The Civil Rights Cases, 109 U.S. at 9-10, 25.

6. Heart of Atlanta Motel v. United States, 379 U.S. 241, 249, 261 (1964) (upholding Title II

of the Civil Rights Act of 1964 as validly applied to the Heart of Atlanta Motel, which wished to

continue its policy of refusing to rent rooms to African Americans); Katzenbach v. McClung, 379

U.S. 294, 297, 298, 304 (1964) (upholding Title II of the Civil Rights Act of 1964 as validly applied

to the Ollie’s Barbeque, a restaurant which wished to continue its policy of refusing to seat African

Americans).

7. U.S. C

ONST. art. I § 8, cl. 3.

8. See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 S

TAN. L. REV.

1189, 1260 (1986) (describing the Supreme Court’s use of the Commerce Clause in establishing

broad federal regulatory power); see also Heart of Atlanta Motel, 379 U.S. at 261; Katzenbach, 379

U.S. at 304, 305.

9. E.g., Civil Rights Act of 1964, 42 U.S.C. §§ 1971, 1975a-1975d, 2000a-2000h-6 (1964);

Fair Housing Act, 42 U.S.C. §§ 3601-3619 (2000).

10. See generally Michael Waterstone, A New Vision of Public Enforcement, 92 M

INN. L.

REV. 434, 449-55 (2007) (describing the effect of public enforcement); U.S. COMM’N ON CIVIL

RIGHTS, FEDERAL CIVIL RIGHTS ENFORCEMENT EFFORT 10 (1971) (recounting how immediately

the Department of Justice reacted after the passage of the Civil Rights Act of 1964); R

ICHARD C.

CORTNER, CIVIL RIGHTS AND PUBLIC ACCOMMODATIONS: THE HEART OF ATLANTA MOTEL AND

MCCLUNG CASES 26-27 (2001) (detailing the composition of the Civil Rights Division of the

Department of Justice upon the passage of the Civil Rights Act of 1964).

11. Waterstone, supra note 10, at 442-43 (describing how even private enforcement of federal

civil rights laws was initially driven largely by public interest groups and federal funding).

12. See Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, 100 N

W. U. L. REV.

1251, 1252-54 (2006) (describing the impact of lawyers on the development of public interest law).

13. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 494-95 (1954) (holding separate but equal

had no place in public education).

14. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 436 (1971) (adopting an

2008] FEDERALISM’S FALSE HOPE 65

victims look primarily to federal civil rights laws and the federal courts

for relief.

Of course, this narrative is correct so far as it goes. But still the full

story remains largely—and surprisingly—untold. At the state level over

the past quarter century, the civil rights landscape has undergone a quiet

revolution. While the federal civil rights regime has weakened,

numerous states, as a substantive matter, have passed civil rights statutes

exceeding federal law in their scope and breadth of protection.

Minnesota, for example, state law affords victims of discrimination

greater protection than they would otherwise receive under federal law.

Persons suffering from sexual harassment, disability discrimination, or

sexual orientation discrimination, for example, all receive greater

protection under Minnesota law than they receive under federal law.

As has been thoroughly documented by other commentators,

federal civil right protections have progressively weakened in recent

years.

As one factor in this federal decline, the federal judiciary has

become increasingly hostile towards discrimination victims and their

lawsuits filed in federal court. The cases of Ledbetter v. Goodyear Tire

& Rubber Co., Inc.

and Buckhannon Board & Care Home, Inc. v. West

Virginia Department of Health and Human Resources

are two recent

examples illustrating this point. Ledbetter all but closed the door on

victims of wage discrimination, holding that issuing a paycheck does not

count as a new act of discrimination, even if the employer decided at an

earlier time to pay certain employees less money because of their race,

expansive interpretation of Title VII; citing the “objective of Congress . . . to achieve equality of

employment opportunities” as a reason for recognizing certain acts of non-intentional discrimination

as a violation of federal civil rights law).

15. See, e.g., Sande L. Buhai, In the Meantime: Sate Protection of Disablity Civil Rights, 37

OY. L.A. L. REV. 1065, 1089-96 (2004) (summarizing examples of where state disability laws are

more protective than parallel federal measures).

16. Compare Minnesota Human Rights Act, M

INN. STAT. ANN. § 363A.02 (West 2000)

(protecting a wide variety of classifications from a broad range of discriminatory practices), with

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)-(e) (2000) (prohibiting discrimination

based on race, color, national origin, sex and religion in various employment contexts), and Age

Discrimination in Employment Act, 29 U.S.C. §§ 623(a)-(e) (2000) (prohibiting discrimination

based on age in various employment contexts), and Americans with Disabilities Act of 1990, 42

U.S.C. §§ 12111-12 (2000) (prohibiting discrimination based on disability in various employment

contexts).

17. See infra Part I (discussing three of the various areas where greater protection is provided

under Minnesota law than under federal law).

18. See generally Waterstone, supra note 10, at 438 & n.14 (citing various commentators to

this effect).

19. 127 S. Ct. 2162 (2007).

20. 532 U.S. 598 (2001).

66 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

sex, or religion.

Buckhannon limited the ability of plaintiffs’ lawyers

to recover attorney’s fees,

making it increasingly difficult for some

plaintiffs to find counsel willing to litigate their discrimination claims,

especially in cases seeking only injunctive relief.

Further examples of

this phenomenon—the narrow reading of federal civil rights statutes by

the federal courts—are discussed in Part I of this Article.

In addition to changes in judicial interpretation of federal civil

rights laws, public enforcement of these laws has waned. The

Department of Justice’s strong public enforcement campaign from the

1960s and 1970s has largely dried up.

The same is true for

enforcement measures brought by public interest organizations, many of

which received public money largely from the Legal Services

Corporation.

Funding for the Legal Services Corporation has been cut

over the last two decades.

Finally, the Supreme Court during the Rehnquist era began to rein

in the constitutional authority of Congress to pass civil rights legislation.

For example, the Court in United States v. Morrison,

ruled that

Congress lacked the authority to pass the Violence Against Women Act

of 1994.

In reaching this holding, the Court articulated new limits on

Congress’s ability to regulate interstate commerce and enforce the

Fourteenth Amendment.

As another example, the Court has

21. Ledbetter, 127 S. Ct. at 2174 (citing Lorance v. AT&T Techs., Inc., 490 U.S. 900, 911

(1989)). The Ledbetter case dealt with unequal pay on the basis of the recipient’s sex, but the

holding of the case naturally extends to unequal pay on the basis of any impermissible

classification. Ledbetter, 127 S. Ct. at 2165, 2168 (citing Delaware State College v. Ricks, 449 U.S.

250, 253-54, 257-58 (1980)) (identifying a case based on racial discrimination as relevant to the

determination of the sex discrimination claims made by Ledbetter). Congress has since enacted

legislation reversing Ledbetter. See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123

Stat. 5 (Jan. 29, 2009) (amending 42 U.S.C. § 2000e-5).

22. Buckhannon, 532 U.S. at 605 (citations omitted).

23. See Catherine R. Albiston & Laura Beth Nielsen, The Procedural Attack on Civil Rights:

The Empirical Reality of Buckhannon for the Private Attorney General, 54 UCLA

L. REV. 1087,

1090-92 (2007) (discussing the negative effects of Buckhannon on private organizations that bring

civil rights cases, specifically, the difficulty in bringing private suits for injunctive relief).

24. See Waterstone, supra note 10, at 457-60.

25. See id. at 442-45; see also Louise G. Trubek, Crossing Boundaries: Legal Education and

the Challenge of the “New Public Interest Law,” 2005 W

IS. L. REV. 455, 456–60 (characterizing

the 1960s and 1970s as “classic” era of public interest law).

26. See ABA, Capitol Building American Bar Association 2002 Legislative and

Governmental Priorities Legal Services Corporation, Jan. 2, 2003,

http://www.abanet.org/poladv/priorities/lsc.html (last visited Dec. 28, 2008).

27. 529 U.S. 598 (2000).

28. Id. at 605, 627.

29. Id. at 617-19 (citations omitted). In many ways, Morrison and its progeny marked a

return to a much older understanding of congressional power. For example, Morrison reaffirmed

2008] FEDERALISM’S FALSE HOPE 67

resurrected its Eleventh Amendment jurisprudence, narrowing the

circumstances under which private individuals can enforce their civil

rights against state violators in federal court.

Giving these two divergent trends—the expanding body of state

civil rights law in many states, and the shrinking scope of federal civil

rights law—it seems logical to take a hard look at state civil rights law

and ask whether this body of law can do the heavy lifting once

accomplished by federal law. Unfortunately, a third trend in civil rights

law (and the focus of this Article) has developed: the under-enforcement

of state civil rights laws in federal courts. A flip through the pages of

the Federal Reporter reveals a disturbing trend: again and again, when

victims of discrimination press their claims in federal court, federal

judges refuse to treat state civil rights laws seriously, as an independent

body of legal rules.

Instead, these judges prefer to treat state civil

rights law as coextensive with federal law (often incorrectly so, and

usually without any analysis or justification for the practice).

Oftentimes, federal courts seem to ignore state law altogether.

This Article systematically examines this practice and offers a

battery of remedies. We proceed as follows: Parts I and II seek to

demonstrate the existence of a problem: the under-enforcement of state

civil rights laws in federal court. Focusing on Minnesota’s civil rights

laws,

Part I of this Article examines two discrete areas of civil rights

The Civil Rights Cases, 109 U.S. 3 (1883), with its strict dichotomy of private discrimination (which

Congress cannot remedy under the Fourteenth Amendment enforcement power) and public

discrimination (which Congress may address). Morrison, 529 U.S. at 620-21.

In spite of this strict dichotomy, federal civil rights laws have expanded legislatively over the past

twenty-five years to a certain extent. Most notably, the 1990s and the present decade have seen the

passage of the Americans with Disabilities Act (“ADA”), the Civil Rights Act of 1991, and the

Uniformed Services Employment and Reemployment Rights Act. 42 U.S.C. § 12101 (2000); 42

U.S.C. § 2000e (2000); 38 U.S.C. § 4301 (2000). However, it appears that even this relatively

newer legislation has not been immune from the three federal trends identified above: waning

enforcement, narrow judicial construction, and limited constitutional authority to apply the law in

all circumstances.

30. See, e.g., Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360, 363-64,

374 (2001) (holding that private litigant could not bring a damages claim under Title I of the ADA

against Alabama).

31. See discussion infra Part II.B.

32. See discussion infra Part II.C.

33. See discussion infra Part II.C.

34. We chose to narrow our focus to Minnesota civil rights laws for three reasons. First,

Minnesota seemed a particularly well-suited forum for testing our hypothesis that state civil rights

laws are under-enforced in federal courts. Minnesota, as a state, has a long tradition of progressive

state laws and robust civil rights protections. But Minnesota, as a district in the federal court

system, sits in the Eighth Circuit Court of Appeals, one of the more conservative federal courts in

the country. See Yvette K. Shultz, Runaway Train – The Retaliation Scene After Burlington

68 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

law: sexual harassment and disability discrimination. Contrasting the

text, legislative history, and doctrinal development of state and federal

law, this Part shows how Minnesota’s civil rights laws offer greater

substantive protection (in the abstract) when compared to federal civil

rights laws. Part II then turns to the enforcement of civil rights laws in

federal court. Using an analysis of cases decided during the past

seventeen years by the United States Court of Appeals for the Eighth

Circuit, this Part shows that Minnesota’s civil rights laws are chronically

and systematically under-enforced in federal court. Part III offers a

series of measures aimed at restoring state civil rights law as an

independent and vibrant source of protection for victims of

discrimination in federal court. Specifically, this Article makes four

basic recommendations, each one focusing on a different institutional

actor. First, attorneys on the civil rights bar must place a renewed

emphasis on the primacy of state civil rights law in both state and federal

courts. Second, federal courts themselves must make greater use of the

certification procedure, a mechanism by which federal courts can

“certify” questions of state law to be authoritatively construed by the

appropriate state supreme court. Third, state high courts need to help

stem the bleeding. This Article suggests that state supreme courts follow

the framework developed by the Minnesota Supreme Court in Kahn v.

Griffin,

where the court provided a clear and principled roadmap for

interpreting provisions of the Minnesota Constitution more expansively

than the United States Constitution.

This framework should be

imported into the civil rights arena. Finally, Congress and state

legislatures should act to create a scheme where state supreme courts

Northern v. White, 68 LA. L. REV. 1025, 1030 (2008) (the Eighth Circuit adopted the most

conservative view for redress in employer action cases); Howard J. Bashman, 8th Circuit’s Bush

Appointees Confound the Prognosticators, Law.com, June 19, 2006, available at

http://www.law.com/jsp/article.jsp?id=1150448725347 (noting that this is not the “most

conservative of all the federal appellate courts,” but “how conservative a particular federal appellate

court happens to be is a function of how conservative the individual judges serving on the court

are,” and the most conservative and youngest appointees of Bush serve on the 8th Circuit); Matthew

H. Bosworth, “An Innate Sense of Fairness”: State Responses to the U.S. Supreme Court’s

Sovereign Immunity Decisions, 36 P

UBLIUS 393 (June 22, 2006) (“[t]he relatively conservative

Eighth Circuit Court of Appeals may have influenced this assessment”). This combination made

Minnesota an ideal test case for critically examining whether its civil rights laws were being

adequately applied and enforced in federal court. Second, we live and work in Minnesota, and thus

have a better grasp of Minnesota law over the law of any other state. Finally, it made sense as a

practical matter to narrow our focus to a single state in order to keep the Article from becoming

bogged down in hundreds of statutes from dozens of states. We will leave it to other commentators

to support (or contradict) our findings with data from other states.

35. 701 N.W.2d 815 (Minn. 2005).

36. See id. at 828-29.

2008] FEDERALISM’S FALSE HOPE 69

could review questions of state law appealed from United States Courts

of Appeals. Working together, these structural reforms should restore

state civil rights law to its rightful place as a primary protector of

individual rights.

COMPARING STATE AND FEDERAL CIVIL RIGHTS LAWS

The United States and Minnesota each have a discrete set of anti-

discrimination statutes. Some common examples of federal civil rights

statutes include Title VII of the Civil Rights Act of 1964 (“Title VII”),

which generally forbids discrimination on the basis of race, color,

national origin, sex, and religion,

the Age Discrimination in

Employment Act (“ADEA”), which bans discrimination because of

age,

and the Americans with Disabilities Act (“ADA”), which prohibits

a wide range of discrimination aimed at persons with disabilities.

The

Minnesota Human Rights Act is Minnesota’s comprehensive civil rights

statute.

It generally proscribes any discrimination based on race,

national origin, color, religion, sex, age, status with regard to public

assistance, disability, marital status, or sexual orientation.

The goal of

this Part is to closely examine both federal and Minnesota civil rights

laws in two areas—sexual harassment and disability discrimination—

and to demonstrate what many take for granted, that Minnesota civil

rights laws offer greater protection to victims of discrimination than

federal civil rights laws.

A. Sexual Harassment

1. Federal law

Federal civil rights law does not explicitly forbid sexual

harassment. Instead, the bare text of Title VII simply bans sex

discrimination: “It shall be an unlawful employment practice for an

employer (1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because

37. Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) to -2(d) (2000).

38. Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1)-(3) (2000).

39. Americans with Disabilities Act of 1990, 42 U.S.C. § 12101(a)-(b) (2000).

40. M

INN. STAT. ANN. §§ 363A.01 to .02 (West 2004).

41. See id. § 363A.02.

70 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

of such individual’s . . . sex . . . .”

The legislative history for sex discrimination protection under Title

VII is renowned for its lack of meaningful debate. As the Supreme

Court has noted, “the prohibition against discrimination based on sex

was added to Title VII at the last minute on the floor of the House of

Representatives.”

According to many accounts, the one-word floor

amendment adding the word “sex” to the list of protected classifications

was a tactic by opponents to sabotage the entire bill.

Others have

asserted that the last minute amendment was the result of a concerted

lobbying effort by a small, devoted group of women’s rights activists.

Whatever the motivation behind the last-minute amendment, there is

broad consensus that the legislative history is unusually short (especially

for landmark legislation) and mentions nothing of sexual harassment.

On the contrary, the legislative history accompanying the floor

amendment adding “sex” to Title VII focused on more traditional—

economic—forms of sex discrimination.

In offering the amendment,

Representative Smith made this introduction:

I think we all recognize and it is indisputable fact that all throughout

industry women are discriminated against in that just generally

speaking they do not get as high compensation for their work as do the

majority sex. Now, if that is true, I hope that the committee chairman

will accept this amendment.

42. 42 U.S.C. § 2000e-2(a)(1).

43. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986) (citing 110 C

ONG. REC. 2577-

84 (1964)).

44. See, e.g., C

HARLES WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A

LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT 234 (1985) (positing that the eleventh hour

amendment was “the result of a deliberate ploy of foes of the bill to scuttle it”); G

ARY ORFIELD,

THE BROOKINGS INST., CONGRESSIONAL POWER: CONGRESS AND SOCIAL CHANGE 299 (1975)

(“Bitter opponents of the job discrimination title . . . decided to try to load up the bill with

objectionable features that might split the coalition supporting it.”).

45. See, e.g., Jo Freeman, How “Sex” Got Into Title VII: Persistent Opportunism as a Maker

of Public Policy, 9 L

AW & INEQ. 163, 183 (1991) (concluding that the inclusion of the sex

discrimination ban in Title VII was “the product of a small but dedicated group of women, in and

out of Congress, who knew how to take advantage of the momentum generated by a larger social

movement to promote their own goals, and a larger group of Congressmen willing to make an

affirmative statement in favor of women’s rights”).

46. See 110 C

ONG. REC. 2577-84 (1964); see also John B. Attanasio, Equal Justice Under

Chaos: The Developing Law of Sexual Harassment, 51 U. C

IN. L. REV. 1, 2 n.5 (1982) (“None of

the voluminous legislative history of Title VII or its 1972 Amendments specifically pertains to

sexual harassment.”).

47. See 110 C

ONG. REC. 2577-84 (1964).

48. 110 C

ONG. REC. 2577 (1964).

2008] FEDERALISM’S FALSE HOPE 71

Since 1964, federal law has simply forbidden discrimination

“because of . . . sex.”

For over twenty years after the passage of Title

VII, the lower federal courts quarreled among themselves over whether a

plaintiff complaining of hostile work environment sexual harassment

could maintain an action under Title VII.

For example, in 1976, the

United States District Court of New Jersey concluded that sexual

harassment was not sex discrimination within the meaning of Title VII.

The court, in Tomkins v. Public Service Electric & Gas Co.,

considered

the case of Adrienne Tomkins, a woman whose male supervisor at work

subjected her to unwelcome sexual advances and physical threats.

The

court reasoned that “[w]hile sexual desire animated the parties, or at

least one of them, the gender of each is incidental to the claim of

abuse.”

The court then went on to note, somewhat blithely, that “if an

inebriated approach by a supervisor to a subordinate at the office

Christmas party could form the basis of a federal lawsuit for sex

discrimination if a promotion or a raise is later denied to the subordinate,

we would need 4,000 federal trial judges instead of some 400.”

Notwithstanding the Tomkins decision, several lower federal courts,

starting in the early 1980s, began taking sexual harassment claims

seriously. In Bundy v. Jackson,

the D.C. Circuit went out of its way to

hold that sexual harassment can violate Title VII.

Drawing an analogy

to racially hostile work environments, the Bundy court reasoned that:

Racial or ethnic discrimination against a company’s minority clients

may reflect no intent to discriminate directly against the company’s

minority employees, but in poisoning the atmosphere of employment it

violates Title VII . . . . How then can sexual harassment, which injects

the most demeaning sexual stereotypes into the general work

environment and which always represents an intentional assault on an

49. See 42 U.S.C. § 2000e-2(a)(1) (2000).

50. Compare Bundy v. Jackson, 641 F.2d 934, 943-44 (D.C. Cir. 1981) (recognizing that it is

possible to state a claim for hostile work environment sexual harassment under Title VII), with

Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976) (holding that sexual

harassment does not violate Title VII’s ban on sex discrimination), rev’d 568 F.2d 1044 (3d Cir.

1997).

51. Tomkins, 422 F. Supp. at 556.

52. 422 F. Supp. 553 (D.N.J. 1976).

53. Id. at 555.

54. Id. at 556.

55. Id. at 557.

56. 641 F.2d 934 (D.C. Cir. 1981).

57. Id. at 943-44.

72 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

individual’s innermost privacy, not be illegal?

In 1986, the Supreme Court stepped in to resolve the dispute. In

Meritor Savings Bank, FSB v. Vinson,

the respondent, Mechelle

Vinson, alleged that her supervisor, Sidney Taylor, perpetually made

demands for sexual favors, “fondled her in front of other employees,

followed her into the women’s restroom when she went there alone,

exposed himself to her, and even forcibly raped her on several

occasions.”

The Court rejected the view that the Title VII ban on sex

discrimination only applied to “‘tangible loss’ of ‘an economic

character.’”

Rather, the Court concluded that sexual harassment can

create a hostile work environment, which is a violation of Title VII.

But the Meritor Court was careful to limit its holding in order to

stay true to the text of Title VII, which after all, does not explicitly ban

sexual harassment.

First, the Court held that any claim of sexual

harassment must prove that the harassment was “sufficiently severe or

pervasive ‘to alter the conditions of [the victim’s] employment . . . .’”

The Supreme Court went even further in Faragher v. City of Boca

Raton,

where it declared that “[w]e have made it clear that conduct

must be extreme to amount to a change in the terms and conditions of

employment . . . .”

Lower courts evaluating sexual harassment claims

after Meritor have typically examined the level of offensiveness of the

unwelcome acts or words, the frequency of the harassing encounters, the

length of time over which the harassment occurred, and the surrounding

context of the words or acts complained of.

Second, the Court in Meritor held that the complaining party must

demonstrate that the harassment has “create[d] an abusive working

environment.”

The lower federal courts have interpreted this element

58. Id. at 945.

59. 477 U.S. 57 (1986).

60. Id. at 59-60.

61. Id. at 64 (citation omitted).

62. Id. at 65-66.

63. See id. (explaining that it is the EEOC Guidelines which establish the view that sexual

harassment violates Title VII).

64. Id. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

65. 524 U.S. 775 (1998).

66. Id. at 788 (emphasis added).

67. See generally Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir.

2006) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)) (outlining multiple elements to

consider when viewing the totality of the circumstances in order to determine whether a work

environment was sufficiently hostile under Title VII).

68. Meritor, 477 U.S. at 67 (citing Henson, 682 F.2d at 904).

2008] FEDERALISM’S FALSE HOPE 73

to require victims of discrimination to show that the working

environment was both objectively and subjectively offensive.

In other

words, the working environment must be offensive to both the

reasonable person

and the victim of the harassment him- or herself.

Third, the victim of discrimination must show that the harassment

complained of was “unwelcome.”

And finally, the party claiming

harassment must show that the alleged harassment was based on sex (as

in, gender), and not on some other neutral characteristic.

For example,

the “equal opportunity . . . harasser”—the supervisor who doles out

harassment equally to men and women—is generally immune from a

Title VII sexual harassment suit, since it cannot be argued that the

supervisor acted because of sex.

These four elements continue to serve

as the guideposts for establishing a sexual harassment claim under Title

VII.

2. Minnesota Law

Like its federal counterpart, the Minnesota Human Rights Act bans

a wide range of discrimination based on sex.

Unlike Title VII,

however, the Minnesota Human Rights Act explicitly defines and

forbids sexual harassment. Minnesota defines sexual harassment as

follows:

69. See, e.g., Faragher, 524 U.S. at 787 (citing Harris, 510 U.S. at 21-22); Nitsche, 446 F.3d

at 846 (citing Faragher, 524 U.S. at 787).

70. The Ninth Circuit differs slightly from the other federal circuits in that the Ninth Circuit

uses a “reasonable woman” standard. See, e.g., Ellison v. Brady, 924 F.2d 872, 878-80 (9th Cir.

1991) (citations omitted).

71. See, e.g., Nitsche, 446 F.3d at 846 (citing Faragher, 524 U.S. at 787).

72. Meritor, 477 U.S. at 68 (citing 29 C.F.R. § 1604.11(a) (2008)) (“The gravamen of any

sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’”).

73. See id. at 64-66.

74. See, e.g., Holman v. Indiana, 211 F.3d 399, 403 (7th Cir. 2000) (holding that a supervisor

who solicited sex from both male and female subordinates could not be liable under Title VII).

75. See Nitsche, 446 F.3d at 845 (citing McCown v. St. John’s Health Sys., Inc., 349 F.3d

540, 542 (8th Cir. 2003)).

76. Specifically, the Minnesota Human Rights Act states that:

Except when based on a bona fide occupational qualification, it is an unfair employment

practice for an employer, because of . . . sex . . . to:

(a) refuse to hire or to maintain a system of employment which unreasonably excludes a

person seeking employment; or

(b) discharge an employee; or

upgrading, conditions, facilities, or privileges of employment.

INN. STAT. ANN. § 363A.08 subdiv. 2 (West 2004).

74 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

“Sexual harassment” includes unwelcome sexual advances, requests

for sexual favors, sexually motivated physical contact or other verbal

or physical conduct or communication of a sexual nature when:

(1) submission to that conduct or communication is made a term or

condition, either explicitly or implicitly, of obtaining employment,

public accommodations or public services, education, or housing;

(2) submission to or rejection of that conduct or communication by an

individual is used as a factor in decisions affecting that individual’s

employment, public accommodations or public services, education, or

housing; or

(3) that conduct or communication has the purpose or effect of

substantially interfering with an individual’s employment, public

accommodations or public services, education, or housing, or creating

an intimidating, hostile, or offensive employment, public

accommodations, public services, educational, or housing

environment.

This Article will take up the task of contrasting Minnesota’s sexual

harassment statute with Title VII in a moment. First, it is important to

tell the story of how Minnesota got to this point. In 1964, when

Congress passed the Civil Rights Act of 1964, Minnesota had no law

addressing sex discrimination or sexual harassment.

Prior to 1964,

only two states—Hawaii and Wisconsin—outlawed sex discrimination.

Inspired by the new federal law, local reformers convinced the

Minnesota legislature to add “sex” as a suspect classification to its civil

rights laws in 1969.

The early act dealt only with employment, but

clearly and forcefully laid out its legislative mandate: “The opportunity

to obtain employment without discrimination because of sex is also

hereby recognized as and declared to be a civil right.”

As the debate over sexual harassment in the workplace began to

take hold in the late 1970s, the Minnesota Supreme Court accepted

77. MINN. STAT. ANN. § 363A.03 subdiv. 43 (West 2004).

78. See Freeman, supra note 45, at 163.

79. Id.

80. See Act of June 6, 1969, ch. 975, 1969 Minn. Laws 1937, 1938-39 (codified at M

INN.

STAT. ANN. § 363A.08 (West 2004)).

81. Id. at 1948.

2008] FEDERALISM’S FALSE HOPE 75

review of a case in 1980—six years before the U.S. Supreme Court

would do so—to determine whether sexual harassment was actionable

under Minnesota law.

The Minnesota Supreme Court, in Continental

Can Co. v. State,

answered that question in the affirmative.

At the

time of the Continental Can decision, the Minnesota Human Rights Act

prohibited only discrimination because of sex—not sexual harassment—

much like Title VII does today.

In 1982, Minnesota law and federal law parted ways when the

Minnesota legislature added the specific ban on sexual harassment,

including the definition of sexual harassment discussed above.

The

legislative history of the change reveals two purposes in pushing for

comprehensive legislation on sexual harassment. First, it establishes that

the legislature wanted to codify the basic holding in Continental Can—

that sexual harassment is actionable discrimination—into statutory law.

Second, the legislative history displays numerous instances where

Minnesota legislators expressed an intention to go beyond what was

already protected by federal law. For example, Representative

Rodriguez helped prepare a report on sexual harassment that would later

form the basis for the legislative change.

The report noted that under

federal anti-discrimination law, an employee would need to show that

the sexual harassment affected the “terms and conditions of employment

and that these effects were directly linked to sexual harassment.”

The

report further commented on the state of federal law in 1980, stating that

“if the ‘employer can show that there were other reasons for adverse

82. See Cont’l Can Co. v. State, 297 N.W.2d 241, 243, 246-47 (Minn. 1980); see also Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

83. 297 N.W.2d 241 (Minn. 1980).

84. Id. at 249.

85. Compare M

INN. STAT. § 363.03, subdiv. 1(2)(b) & (c) (1978) (“[I]t is an unfair

employment practice: . . . (2) For an employer, because of . . . sex . . . (b) to discharge an employee

. . . or (c) to discriminate against an employee with respect to his hire, tenure, compensation, (or)

upgrading . . . of employment.”), with Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“It shall

be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment because of such individual’s . . . sex . . . .).

86. Act of Mar. 23, 1982, 1982 Minn. Laws 1511.

87. Bradley A. Kletscher, Minnesota’s Sexual Harassment Statute: It’s [sic] History and the

law (Part I), http://www.bgs.com/default.asp?id=80 (last visited Nov. 1, 2008) (statement of Rep.

Rodriguez) (“The prohibition against sex discrimination in the state human rights act includes

sexual harassment directed at an employee by fellow employees which impacts a condition of

employment . . . .” (quoting Cont’l Can, 297 N.W.2d at 249 (Minn. 1980))); see Act of Mar. 23,

1982, ch. 618, 1982 Minn. Laws 1508.

88. Kletscher, supra note 87.

89. Id. (citations omitted).

76 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

employment action, such as excessive absenteeism or poor work

performance, the courts have held that sexual harassment did not

constitute sex discrimination under Title VII.’”

This legislative history is notable for three reasons. First, it makes

little sense to argue that the Minnesota legislature wanted to simply

codify Continental Can without expanding on the decision. Why would

a legislature take the time and effort to amend a statute to reflect a

controlling supreme court decision when it could achieve the same result

by doing nothing? Second, the passing references to federal law in the

legislative history indicate a dissatisfaction with the level of protection

Title VII offered victims of sexual harassment in 1980. And third, the

resulting text of the Minnesota Human Rights Act after the amendment

confirms the view that the legislature wished to provide a relatively

more expansive definition of sexual harassment.

3. Comparing Federal Law with Minnesota Law

In making the comparison between the Minnesota Human Rights

Act and Title VII, Minnesota’s law is more expansive is several ways.

First, Minnesota’s sexual harassment law is textually grounded, while

federal law does not explicitly ban sexual harassment.

Instead, federal

law relies on judicial interpretation, with its “severe or pervasive”

requirement necessary to remain faithful to the text of the statute.

Second, the Minnesota Human Rights Act contains an explicit rule

of construction instructing courts that “[t]he provisions of this chapter

shall be construed liberally for the accomplishment of the purposes

thereof.”

Although the Supreme Court often mentions the “remedial

purpose” of Title VII,

there is no textual provision of Title VII

mentioning a liberal construction of the federal statute.

Third, many of the doctrinal developments developed in Meritor

and after do not seem to apply to Minnesota’s law. For example, the

Meritor Court held that the sexual harassment must be “sufficiently

severe or pervasive ‘to alter the conditions of [the victim’s] employment

90. Id. (citations omitted).

91. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-66 (1986).

92. Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (1982)).

93. M

INN. STAT. ANN. § 363A.04 (West 2004).

94. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121 (2002) (citing Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 398 (1982)).

95. See generally Civil Rights Act, 42 U.S.C. §§ 1971, 1975a-1975d, 2000a-2000h-6 (2000).

2008] FEDERALISM’S FALSE HOPE 77

. . .’” in order to be covered by Title VII.

This is simply not required

under Minnesota law. Although subsections (1) and (2) of Minnesota’s

sexual harassment definition deal with terms and conditions,

subsection (3) does not. The third subsection bans “conduct or

communication [which] has the purpose or effect of substantially

interfering with an individual’s employment, public accommodations or

public services, education, or housing, or creating an intimidating,

hostile, or offensive employment, public accommodations, public

services, educational, or housing environment.”

On the face of the

statute, liability can attach for “substantially interfering with an

individual’s employment,” or for “creating an intimidating, hostile or

offensive . . . environment.”

Also, culpable behavior includes that

which has the “purpose or effect” of bringing about these situations.

100

The plain reading of the statute simply does not require that the

harassment be “severe or pervasive,” nor does the statute necessarily

require that the alleged harassment affect a term or condition of

employment.

101

Fourth, the Court in Meritor held that the complaining party must

demonstrate that the harassment has “create[d] an abusive working

environment,”

102

which requires a showing that the working

environment is both objectively and subjectively offensive.

103

In other

words, the working environment must be offensive to both the

reasonable person, and the victim of the harassment him- or herself.

104

But the Minnesota definition of sexual harassment does not appear to

require a showing of subjective offensiveness.

105

Why else would the

Minnesota Human Rights Act forbid “conduct or communication

[which] has the purpose . . . of substantially interfering with an

individual’s employment . . .”?

106

The only possible situation where a

96. Meritor, 477 U.S. at 67 (alteration in original) (quoting Henson, 682 F.2d at 904).

97. See M

INN. STAT. ANN. § 363A.03 subdivs. 43(1)-(2) (West 2004).

98. M

INN. STAT. ANN. § 363A.03. subdiv. 43(3).

99. Id. (emphasis added).

100. Id. (emphasis added).

101. Compare M

INN. STAT. ANN. § 363A.03 subdiv. 42(1)-(3) (containing no minimum

standard for a harassment claim), with Meritor, 477 U.S. at 67 (quoting Henson, 682 F.2d at 904)

(establishing that sexual harassment must be “severe or pervasive” to be actionable).

102. Meritor, 477 U.S. at 67 (quoting Henson, 682 F.2d at 904).

103. See, e.g., Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir. 2006)

(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

104. Id.

105. See generally M

INN. STAT. ANN. § 363A.03 subdiv. 43(1)-(3) (containing no requirement

of subjective offensiveness in defining “Sexual Harassment”).

106. M

INN. STAT. ANN. § 363.03A subdiv. 43(3) (emphasis added).

78 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

would-be harasser manifests the purpose but not the effect (only one of

which is required) of creating a hostile workplace environment is that of

the unsuccessful harasser: the manager who attempts to sexually harass a

subordinate worker but is laughed off as joking or harmless. In such a

situation, the would-be victim is clearly not subjectively offended by the

manager’s conduct, but if the manager acted with purpose of sexually

harassing the subordinate employee, then the conduct qualifies as sexual

harassment under the Minnesota definition.

107

Moving beyond the “unsuccessful harasser,” the Title VII

requirement of subjective offensiveness can cause problems for victims

of harassment. As an evidentiary matter, it is usually not enough for

such victims to state in a deposition or to testify at trial that they were

subjectively offended.

108

Take the case of Cottrill v. MFA,

109

where the

Eighth Circuit affirmed a grant of summary judgment in favor of the

employer because the plaintiffs, a group of women, were not

subjectively offended (according to the court) by their employer’s

behavior.

110

According to the Cottrill court, the plaintiffs did not show

sufficient evidence that they were subjectively offended by their

supervisor’s behavior, which included spying on the women in the

107. Although we conclude that the Minnesota Human Rights Act does not require a showing

of subjective offensiveness, two outlier Minnesota courts have endorsed subjective offensiveness as

an element of a sexual harassment claim under the Minnesota Human Rights Act. These courts are

in error. The first to mention the requirement was the court in Police Officers Federation of

Minneapolis v. City of Minneapolis. No. C4-99-2041, 2000 WL 719860 at *2 (Minn. Ct. App. June

6, 2000) (unpublished opinion). The court in Police Officers Federation cited another Minnesota

Court of Appeals case, Johns v. Harborage I, LTD, which merely recited the Title VII standard. Id.

(citing Johns, 585 N.W.2d 853, 861 (Minn. Ct. App. 1998) (quoting Meritor, 477 U.S. at 66)).

Thus, Police Officers Federation’s reliance on precedent was misplaced. The second Minnesota

court to explicitly require a showing of subjective offensiveness is another unpublished, and thus

not precedential, opinion, Monson v. Northern Habilitative Services, Inc. No. A05-1102, 2006 WL

771919 at *7 (Minn. Ct. App. May 24, 2006) (unpublished opinion). Like the Police Officers

Federation court, the court in Monson applied the wrong precedent. Monson cited the Minnesota

Supreme Court case of Goins v. West Group, 635 N.W.2d 717, 724-25 (Minn. 2001), where the

Supreme Court adopted the Title VII offensiveness standards for hostile work environment claims

based on the plaintiff’s sexual orientation. Id. (quoting Faragher, 524 U.S. at 787). The Goins

opinion had nothing to do with sexual harassment. See Goins, 635 N.W.2d at 720. The Monson

court was wrong to import the standards from a sexual orientation case to a sexual harassment case,

because Minnesota sexual harassment cases are decided under Minnesota’s detailed sexual

orientation statute. See, e.g., M

INN. STAT. ANN. § 363A.08 subdiv. 1 (“Except when based on a

bona fide occupational qualification, it is an unfair employment practice for a labor organization,

because of . . . sexual orientation . . . .”).

108. See, e.g., Cottrill v. MFA, Inc., 443 F.3d 629, 636-37 (8th Cir. 2006) (finding that in order

to be subjectively offensive, the plaintiff must be aware of the activity at the time it was occurring).

109. 443 F.3d 629 (8th Cir. 2006).

110. Id. at 636, 638-39.

2008] FEDERALISM’S FALSE HOPE 79

bathroom, and planting urine, an unidentified sticky substance, and what

was believed to be poison ivy on the women’s toilet seats, leading to

severe, painful, and, in one case permanent rashes and other skin

conditions.

111

Such evidentiary burdens should not present problems

under Minnesota law, however, since victims of discrimination need not

show, under the Minnesota Human Rights Act, that the behavior

complained of is subjectively offensive.

Fifth (and last), under federal law, the party claiming harassment

must show that the alleged harassment was based on sex, and not on

some other neutral characteristic.

112

But again, Minnesota does not

follow this requirement. The Minnesota Supreme Court explicitly

rejected this requirement in Cummings v. Koehnen,

113

where the Court

held that sexual harassment need not affect one sex more than the

other.

114

The court reasoned that:

Requiring a plaintiff to show that conduct . . . resulted in the

differential treatment of male and female employees would lead to

absurd results. Such a requirement would leave two classes of

employees unprotected from sexual harassment in the workplace:

employees who work in a single-gender workplace and employees who

work with an “equal opportunity harasser,” who harasses sexually both

males and females. There is nothing in the [Minnesota Human Rights

Act] to indicate the legislature intended to leave these classes of

employees unprotected, and we cannot presume the legislature

intended such an absurd result.

115

Importantly, the Minnesota Supreme Court accepted in Cummings

the notion that the Minnesota Human Rights Act’s sexual harassment

provisions outlawed more conduct than did the simple ban on sex

discrimination in effect in Minnesota between 1969 and 1982.

116

The

appellant in Cummings cited Continental Can “for the proposition that

sexual harassment must have a disparate effect on one gender to be

actionable under the Minnesota Human Rights Act.”

117

The Court

rejected this argument, noting that “Continental Can interpreted an

111. See id. at 631-33, 638-39, 641.

112. See id. at 636 (citing Schoffstall v. Henderson, 223 F.3d 818, 826-27 (8th Cir. 2000)).

113. 568 N.W.2d 418 (Minn. 1997).

114. See id. at 422, 424.

115. Id. at 422-23 (citing M

INN. STAT. ANN. § 645.17(1) (West 2004) (requiring that when

interpreting statutes, there must be a presumption by the courts that “the legislature did not intend a

result that is absurd”)).

116. See id. at 423-24.

117. Id. at 423 n.6.

80 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

earlier version of the [Minnesota Human Rights Act], and is therefore

not dispositive of the issue before us. At the time Continental Can was

decided, the [Minnesota Human Rights Act] did not prohibit sexual

harassment specifically.”

118

The court went on to conclude that given

the statutory definition of sexual harassment under the current

Minnesota Human Rights Act, the legislature did not intend for victims

of sexual harassment to prove that the harassment was aimed at one

particular sex.

119

In sum, the Minnesota Human Rights Act affords victims of

discrimination greater substantive protections when compared to federal

law. Minnesota law contains a textual ban on sexual harassment, a

clause directing courts to interpret the statute liberally, no requirement

that the harassment be “extreme,” “severe or pervasive,” or “affect a

term or condition of employment,” no requirement that the complaining

party prove he or she was subjectively offended, and, finally, no

requirement that the victim demonstrate that the harasser makes a

disparate impact on one sex over the other.

B. Disability Discrimination

Sexual harassment is not the exclusive area where Minnesota’s civil

rights laws offer greater protection than their federal counterparts.

Minnesota also offers broader protection for the disabled. This extra

protection is largely accomplished by defining a much larger group of

people as “disabled,” as compared to federal law.

1. Federal Disability Law

Federal law defines disability as: “a physical or mental impairment

that substantially limits one or more of the major life activities of such

individual; a record of such an impairment; or being regarded as having

such an impairment.”

120

Although this definition comes from the ADA,

which Congress passed in 1990,

121

the definition of “disability” was

drawn nearly verbatim from the Rehabilitation Act of 1973.

122

The

Equal Employment Opportunity Commission (“EEOC”) has issued

118. Id.

119. See id. at 424.

120. Americans with Disabilities Act of 1990, 42 U.S.C. § 12102(2) (2000).

121. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990)

(codified at 42 U.S.C. §§

12101-12300 (2000)).

122. 29 U.S.C. §

705(9)(B) (2000).

2008] FEDERALISM’S FALSE HOPE 81

guidelines to help define the concept of “substantially limits.”

According to the EEOC,

the term “substantially limits” means: [u]nable to perform a major life

activity that the average person in the general population can perform;

or [s]ignificantly restricted as to the condition, manner or duration

under which an individual can perform a particular major life activity

as compared to the condition, manner, or duration under which the

average person in the general population can perform that same major

life activity.

123

Since the ADA was passed, the federal courts have interpreted the

“substantially limits” requirement strictly, drastically limiting the

number of people who qualify for protection under the ADA. For

example, in Sutton v. United Air Lines, Inc.,

124

the Supreme Court ruled

that two severely myopic twin sisters were not disabled within the

meaning of the ADA because their vision problems did not

“substantially limit” the sisters’ major life activity of working.

125

The

Court went on to note that the “substantially limits” requirement meant

that the sisters must be unable to “work in a broad class of jobs.”

126

Similarly, in Murphy v. United Parcel Service, Inc.,

127

the Court rejected

the plaintiff’s argument that he was disabled because his high blood

pressure kept him from doing his job as a UPS mechanic.

128

The Supreme Court has further narrowed the scope of the ADA’s

coverage by holding that a person’s corrective measures must be taken

into account before determining whether that person is disabled.

129

Sutton, the Court explicitly held that “if a person is taking measures to

correct for, or mitigate, a physical or mental impairment, the effects of

those measures . . . must be taken into account when judging whether

that person is ‘substantially limited’ in a major life activity and thus

‘disabled’ under the [ADA].”

130

Finally, in 2002, the Supreme Court

123. 29 C.F.R. § 1630.2(j)(1)(i)-(ii) (2007).

124. 527 U.S. 471 (1999).

125. Id. at 475, 488-89, 492-93.

126. Id. at 491.

127. 527 U.S. 516 (1999).

128. Id. at 519, 521.

129. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565 (citing Sutton, 527 U.S. at 482);

see also Murphy, 527 U.S. at 521.

130. Sutton, 527 U.S. at 482; see also Albertson’s, 527 U.S. at 565-66 (reasoning that the

extent to which a person has learned to compensate for his limitation by making subconscious

adjustments should be considered in deciding whether the person is disabled within the meaning of

the ADA).

82 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

gave the ADA its stingiest construction yet, holding that a plaintiff

invoking the ADA’s protection “must have an impairment that prevents

or severely restricts the individual from doing activities that are of a

central importance to most people’s lives.”

131

Several commentators have criticized these decisions for narrowing

the scope of the ADA beyond recognition.

132

Some commentators have

reached the conclusion that the Supreme Court’s recent ADA

jurisprudence is so out of balance that only immediate legislative action

by Congress can save the ADA.

133

Very recently, Congress amended the

ADA to effectively legislatively reverse some of the Supreme Court’s

interpretations of the law. The ADA Amendments Act of 2008

134

(“ADAAA”), which took effect January 1, 2009, has directed courts to

ignore most mitigating measures when evaluating whether a particular

person is disabled. The ADAAA also “reject[ed] the standards

enunciated by the Supreme Court in Toyota Motor Manufacturing,

Kentucky, Inc. v. Williams . . . that the terms ‘substantially’ and ‘major’

in the definition of disability under the ADA ‘need to be interpreted

strictly to create a demanding standard for qualifying as disabled . . .

.’”

135

It is too early to gauge the effect of the new law. But it is worth

noting, as a general matter, that piecemeal legislative fixes to civil rights

laws are a limited remedy for narrow judicial interpretation. First, such

changes are relatively rare. Second, civil rights amendments can exact a

131. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195-98 (2002) (emphasis added)

(citing 42 U.S.C. § 12102(2)(A) (2000).

132. See, e.g., Waterstone, supra note 10, at 448; Robert Burgdorf, Jr., “Substantially Limited”

Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of

the Definition of Disability, 42 V

ILL. L. REV. 409, 539 (1997) (discussing the courts’

misapprehension of the ADA’s definition of disability); Aviam Soifer, The Disability Term:

Dignity, Default, and Negative Capability, 47 UCLA L. R

EV. 1279, 1299-1308 (2000) (detailing the

federal courts’ restrictive interpretations of the definition of disability); Bonnie Poitras Tucker, The

Supreme Court’s Definition of Disability Under the ADA: A Return to the Dark Ages, 52 A

LA. L.

REV. 321, 325 (2000) (recounting the legislative history supporting defining disability without

regard to mitigating measures).

133. See N

AT’L COUNCIL ON DISABILITY, RIGHTING THE ADA 99-123 (2004), available at

http://www.ncd.gov/newsroom/publications/2004/pdf/righting_ada.pdf (calling for an “ADA

Restoration Act,” and pointing out that “[i]ncisive and forceful legislative action is needed to

address the dramatic narrowing and weakening of the protection provided by the ADA ”); see also

Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What

Happened? Why? And What Can We Do About It? 21 B

ERKELEY J. EMP. & LAB. L. 91, 91-92, 162

(2000) (suggesting that Congress should amend the definition of disability found in the ADA).

134. Pub. L. No. 110-325, 122 Stat. 3553 (codified as amended at 42 U.S.C § 12101, and 29

U.S.C. § 705 (2008)).

135. Id.

2008] FEDERALISM’S FALSE HOPE 83

political toll on members of Congress who answer to business and other

interests. Finally, and most fundamentally, such remedial legislation

does nothing more than plug a few holes. The underlying problem—the

interpretive methodology that leads many jurists to interpret civil rights

laws narrowly remains in effect.

2. Minnesota Disability Law

Minnesota first banned discrimination on the basis of disability in

1973,

136

the same year Congress passed the Rehabilitation Act of 1973.

Initially, Minnesota law defined the term “disability” more or less

identically to federal law.

137

But in 1989, one year before the passage of

the ADA, the Minnesota legislature made a one word change to the

definition of disability in the Minnesota Human Rights Act.

138

The

legislature changed the definition from “substantially limiting a major

life activity” to “materially limiting a major life activity.”

139

So how

much difference can one word make? A lot, it turns out.

The Minnesota Supreme Court has confirmed that the Minnesota

legislature intended to depart from the federal definition of disability and

define the term more expansively.

140

In the words of the Minnesota

Supreme Court, “The [Minnesota Human Rights Act] originally required

the impairment to substantially limit one or more life activities. In 1989,

the legislature amended the word substantially to materially, thus

lowering the standard in which the impairment impacts on one or more

life activities. This standard now is different from the applicable federal

standard.”

141

The Minnesota Supreme Court applied this broad

definition in Hoover v. Norwest Private Mortgage Banking,

142

where the

court held that fibromyalgia qualified as a disability under Minnesota

136. Act of May 21, 1973, ch. 729, 1973 Minn. Laws 2161-66.

137. Compare sec. 1 subdiv. 25 (defining disability as “a mental or physical condition which

constitutes a handicap”), with Rehabilitation Act of 1973, 29 U.S.C. § 705(9)(A) (defining disability

as “physical or mental impairment that constitutes or results in substantial impairment to

employment”).

138. Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 n.3 (Minn. 1995) (citing

Act of May 25, 1989, ch. 280 § 1, 1989 Minn. Laws. 1099, 1100 (1989)); Americans with

Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§

12101-12300 (2000)).

139. Sigurdson, 532 N.W.2d at 228 n.3; see also Robert Whereatt, Legislators Gave Disabled

People New Protections, Accommodations, S

TAR TRIBUNE, May 26, 1989 (explaining the effect of

the changes to the Minnesota Human Rights Act).

140. See Sigurdson, 532 N.W.2d at 228 & 228 n.3.

141. Id. at 228 n.3.

142. 632 N.W.2d 534 (Minn. 2001).

84 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

law, even though the same condition often failed to qualify as a

disability under federal law.

143

Held up together, Minnesota and federal disability laws are two

ships moving in opposite directions. While the Minnesota legislature

has acted to broaden the definition of disability in Minnesota, the

Supreme Court has acted to narrow the definition of disability under

federal law.

By highlighting these two discrete areas of anti-discrimination

law—sexual harassment and disability discrimination—we do not mean

to provide an exhaustive list areas where Minnesota civil rights law

provides greater protection to plaintiffs than federal civil rights law.

These areas are illustrative. They serve as examples, meant to shed light

on a basic truth: held together, Minnesota’s civil rights laws offer more

depth, breadth, and scope of substantive protection than analogous

federal laws.

II.

THE UNDER-ENFORCEMENT OF MINNESOTA’S CIVIL RIGHTS LAWS IN

FEDERAL COURTS

Consider the story of Rashid Arraleh, a black Muslim immigrant

from Somalia.

144

Mr. Arraleh brought a claim for harassment because of

race and national origin in the Federal District Court of Minnesota.

145

According to Arraleh, during the six months he worked for Ramsey

County in St. Paul, he was subjected to a hostile and offensive work

environment.

146

Among the litany of comments directed at Arraleh or

made in his presence:

• “Today, your skin doesn’t look as white as it normally does”;

• Being referred to as “Mr. Cocoa”;

• “Is your hair for real?”;

• “It’s very difficult to work with you people”;

• African-Americans are “very difficult to work with” because

143. See id. at 543 n.5, 544 (Minn. 2001) (citations omitted).

144. See Arraleh v. County of Ramsey, 461 F.3d 967, 971 (8th Cir. 2006).

145. Id. at 970-71.

146. Id. at 970-73, 980.

2008] FEDERALISM’S FALSE HOPE 85

they are “very emotional” and “take things too personally”;

• “[B]lack people are expected to leave their blackness

behind”;

147

and

• “Giving [Arraleh] a job is like raising terrorist kids.”

148

Like many litigants, Arraleh brought discrimination claims under

both state and federal law.

149

This is not surprising. The somewhat

complex rules of jurisdiction in civil rights cases dictate that most cases

will end up in federal court.

150

If a plaintiff has both federal and state

causes of action arising out of the same set of factual circumstances (in

this case, the hostile work environment), the plaintiff must bring all his

claims in one lawsuit, or else the latent claims will be forfeited.

151

For

example, Arraleh could not bring a discrimination suit in federal court

based on federal civil rights law, lose, and then simply file another suit

in state court alleging state causes of action. The doctrine of res judicata

would bar the second suit.

152

This is not to say that federal law and state

law would always yield the same result, but rather that if a plaintiff

invokes the power of the courts to resolve a dispute, he should bring all

his potential claims together in one forum, rather than piecemeal. This

res judicata concern may explain why most victims of discrimination

bring claims under both federal and state law where both are

available.

153

Many plaintiffs file in federal court. Others end up in

federal court when the defendant removes the action.

154

Because of

147. Id. at 978 n.4, 980 (Heaney, J., dissenting).

148. Id. at 973.

149. Id. at 970-71.

150. See 42 U.S.C. § 1988 (a) (2000) (discussing the complex rules of civil rights jurisdiction

and the impact on federal versus state jurisdiction).

151. See, e.g., Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466-67 (1982) (holding that

seeking review of an administrative decision in state court on the plaintiff’s civil rights charge

barred a subsequent federal suit).

152. See id. at 463, 466-67, 485.

153. See Snyder v. Murray City Corp., 73 P.3d 325, 332 (Utah 2003) (articulating the elements

and concerns of res judicata). See also Sandra F. Sperino, Recreating Diversity in Employment Law

by Debunking the Myth of the McDonnell Douglas Monolith, 44 H

OUS. L. REV. 349, 353-60 (2007)

(discussing discrimination under both state and federal law).

154. Defendants have the power to “remove” cases originally filed in state court to federal

court in most civil rights actions. See 28 U.S.C. § 1441(a) (2000). “[A]ny civil action brought in a

State court of which the district courts of the United States have original jurisdiction, may be

removed by the defendant or defendants, to the district court of the United States for the district and

division embracing the place where such action is pending.” Id. In other words, defendants can

remove to federal courts if there is diversity of citizenship between the parties, see 28 U.S.C. §

1332(a) (2000), or a federal question involved, see 28 U.S.C. § 1331. Put another way, it is only the

86 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

these procedural rules, many discrimination claims based on state law

theories end up litigated in federal court.

155

In the end, Arraleh lost his court battle when the Eighth Circuit

ruled that no reasonable juror could conclude that Arraleh was subjected

to a racially hostile work environment,

156

an inappropriate

157

but

unsurprising result. But here comes the interesting part. Throughout the

main text of Eighth Circuit’s opinion, there is no reference to Arraleh’s

state law discrimination claims.

158

The court simply disposes of

Arraleh’s federal claims one by one.

159

However, within a footnote to

the opinion’s one line conclusion, the court begins and ends its

discussion of state law: “Because [Arraleh’s] claims under the Missouri

Human Rights Act are premised on the same factual bases as his

[federal] claims, they must also fail.”

160

What’s troubling is that Arraleh

did not bring any claims under the Missouri Human Rights Act. He

brought several claims under the Minnesota Human Rights Act.

161

This

makes sense, after all, since Arraleh worked for Ramsey County, a

subdivision of the state of Minnesota.

It would be easy to cast the Arraleh court’s mistake as a one-time

mess-up—a cut-and-paste error, maybe the handiwork of a law clerk

working long hours at the federal courthouse. However, in federal court,

such carelessness and utter disregard for the primacy of state law is not

the exception; it is the rule. A casual flip through the pages of the

Federal Reporter seems to reveal a disturbing trend: again and again,

when victims of discrimination press their claims in federal court,

federal judges refuse to treat state civil rights laws seriously, as an

independent body of legal rules.

162

Instead, these judges prefer to treat

state civil rights law as coextensive with federal law (often incorrectly

rare case where (1) the plaintiff files suit in state court, (2) there is no diversity between the parties,

and (3) no federal question is raised, that the defendant would lack the power to remove the action

to federal court.

155. See 28 U.S.C. § 1367 (2000) (granting federal courts supplementary jurisdiction over

pendent state law claims).

156. See Arraleh v. County of Ramsey, 461 F.3d 967, 980 (8th Cir. 2006). The Eighth Circuit

upheld a grant of summary judgment in favor of Ramsey County, concluding that no reasonable

juror could conclude that Arraleh was subjected to a racially hostile work environment. See id.

157. Id. at 980 (Heaney, J., dissenting).

158. See id. at 970-80 (citations omitted) (discussing only the federal law claim).

159. See id. at 974-80 (citation omitted).

160. Id. at 980 n.5 (quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999)

(analyzing a claim brought under the Missouri Human Rights Act and the ADA)).

161. Id. at 970-71.

162. Federal judges are required to faithfully apply the substance of state laws. See Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78-80 (1938).

2008] FEDERALISM’S FALSE HOPE 87

so, and usually without any analysis or justification for the practice).

Oftentimes, federal courts seem to ignore state law altogether.

This Part seeks to move beyond anecdotes and provide concrete

evidence that federal courts systematically under enforce Minnesota’s

civil rights laws.

A. Methodology

The basic methodology of this Article’s analysis is simple. Our

goal was to locate and code every Eighth Circuit decision between 1990

and 2007 that decided any issue under both federal and Minnesota civil

rights law.

163

After locating the relevant decisions, we coded each

decision along two dimensions.

164

First, did Minnesota law and federal

law yield the same result or a different result? If the results were

different, which law offered broader protection? Second, what depth of

treatment was given to state law in the court’s analysis? In answering

this second question, we grouped the cases into three categories: a full

and separate analysis of state law, a “collapsed” analysis of state law,

meaning the court simply asserts, as the Arraleh court did, that state law

issues are decided under federal standards, and, finally, no analysis of

state law.

165

B. Results

The results are damning. In no case did the Minnesota Human

Rights Act perform any better than its federal counterpart. Surprisingly,

two cases, representing less than 2% of the total cases reviewed, actually

held that the Minnesota Human Rights Act protected fewer substantive

rights than federal law. The first is Bevan v. Honeywell, Inc.,

166

where

the Eighth Circuit affirmed a verdict for the plaintiff on a claim brought

163. We performed the initial task of locating these decisions by conducting a Westlaw search

in the Eight Circuit’s database for “Minnesota Human Rights Act,” and then weeding out each case

that did not directly address an issue under both the Minnesota Human Rights Act and its federal

analogue.

164. This coding process is inherently subjective. We did our best to stay true to the

descriptive characteristics of the categories.

165. See Arraleh, 461 F.3d at 974-75, 977, 980 n.5. We are drawing conclusions about the

federal court’s interpretation of state law based on how one particular court has interpreted the law

of one specific state. We make the assumption that this sample is somewhat representative of larger

national trends. Others are encouraged to replicate this methodology using other courts and other

bodies of state law.

166. 118 F.3d 603 (8th Cir. 1997).

88 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

under the ADEA and also affirmed a verdict for the defendant on a claim

of age discrimination arising under the Minnesota Human Rights Act.

167

Both claims arose out of the same set of facts.

168

The second case is

Todd v. Ortho Biotech, Inc.,

169

where the Eighth Circuit interpreted the

Minnesota Human Rights Act to impose a more stringent standard for

showing an employer defendant’s vicarious liability (as compared to

federal law) in a sexual harassment case.

170

The Todd court’s cramped

reading of Minnesota’s civil rights laws directly led to an amendment by

the Minnesota legislature in 2001, which had the result of legislatively

reversing the Todd decision insofar as it interpreted Minnesota law.

171

The primary result is this: in not a single case did the Eighth

Circuit interpret the Minnesota Human Rights Act to protect more

substantive rights than are protected by federal civil rights law.

172

The

Eighth circuit approached a full depth of discussion of state law issues in

less than 3% of this type of case. In 63% of these cases, the Eighth

Circuit gave Minnesota law only a brief mention, without any

meaningful analysis. Finally, in 34% of the relevant cases, the Eighth

Circuit completely ignored state law.

173

The goal of this Article is not to

167. See id. at 612-13, 614 (citations omitted). This case may reflect more of a factual

distinction than a legal distinction. While the federal claim was tried to a jury, the state law claim

was decided by a judge. Id. at 608. It is possible that both the jury and judge applied the same legal

standards but simply reached opposite result because of divergent interpretations of the facts.

168. See id. at 605-08.

169. 138 F.3d 733 (8th Cir. 1998).

170. Id. at 737-38 (citations omitted). The Eighth Circuit originally applied the same, more

stringent, standard to both the state and federal claims. However, even after the court’s decision on

the federal claim was vacated and remanded by the Supreme Court, forcing it to alter its decision on

the federal claim, the Eighth Circuit stood by its original, cramped reading of the Minnesota Human

Rights Act. Id., vacated, 525 U.S. 802 (1998), remanded to 175 F.3d 595 (8th Cir. 1999).

171. Gagliardi v. Ortho-Midwest, Inc., 733 N.W.2d 171, 176, 184 (Minn. Ct. App. 2007).

172. In a 2005 case, the Eighth Circuit invalidated an arbitration award on the grounds that the

award violated the public policy contained in the Minnesota Human Rights Act’s ban on age

discrimination. Ace Elec. Contractors, Inc. v. Int’l. Bhd. of Elec. Workers, Local Union No. 292,

A.F.L.-C.I.O., 414 F.3d 896, 898 (8th Cir. 2005). In reaching this conclusion, the court appeared to

read the Minnesota Human Rights Act to ban so-called reverse age discrimination (favoring older

workers vis-à-vis younger workers). Id. at 901. Because the Supreme Court ruled in 2004 that the

federal ADEA did not authorize a cause of action for reverse age discrimination, see Gen. Dynamics

Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004), the Eighth Circuit by necessity interpreted the

Minnesota Human Rights Act more broadly than the ADEA. Ace Electrical is notable because this

result is highly unusual. However, we did not include Ace Electrical in our analysis because the

case did not fit our methodology: there was no plaintiff seeking the protection of both federal and

state discrimination law.

173. It is possible that in some of these decisions, the appellant did not appeal the adverse

lower court decisions made on state law grounds. In many cases, it is impossible to tell for sure

based on the court of appeals’ opinion. We assume that in most cases, the appellant sought review

of both his state and federal claims.

2008] FEDERALISM’S FALSE HOPE 89

systematically relitigate these cases, demonstrating one by one why and

how each one erred. Rather, our goal is to look at these data in the

aggregate, and draw broad conclusions about the enforcement of state

law in federal courts.

Many of the decisions ignore distinctions between state and federal

civil rights law discussed in Part I of this Article. For example, the

Eighth Circuit regularly applies the federal standards for sexual

harassment cases to claims of sexual harassment arising under the

Minnesota Human Rights Act.

174

Clearwater v. Independent School

District No. 166,

175

is one such example. In that case, the Eighth Circuit

declared, quite improperly that “[Clearwater’s] hostile work

environment [sexual harassment] claim is based on Title VII and the

[Minnesota Human Rights Act]. We review these state and federal

claims under the same standards . . . .”

176

There are numerous cases where the Eighth Circuit has incorrectly

applied federal standards for state law disability claims.

177

For example,

in Somers v. City of Minneapolis,

178

the Court stated that “[u]nder the

ADA, Somers is disabled if he has ‘a physical or mental impairment that

substantially limits one or more of the major life activities of such

174. See, e.g., Peterson v. Scott County, 406 F.3d 515, 521 (8th Cir. 2005); Erenberg v.

Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004) (citing Breeding v. Arthur J. Gallagher & Co.,

164 F.3d 1151, 1156 (8th Cir. 1999); Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d

534, 542 (Minn. 2001)); Wilson v. Brinker Int’l, Inc., 382 F.3d 765, 768 (8th Cir. 2004); Walsh v.

Nat’l Computer Sys., Inc., 332 F.3d 1150, 1154 (8th Cir. 2003); Thorn v. Amalgamated Transit

Union, 305 F.3d 826, 830 (8th Cir. 2002); Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122,

1124 n.2 (8th Cir. 2000).

175. 231 F.3d 1122 (8th Cir. 2000).

176. Id. at 1124 n.2.

177. See, e.g., Thao v. City of St. Paul, 481 F.3d 565, 567 n.3 (8th Cir. 2007) (citing M

INN.

STAT. § 363A.12, subdiv. 1; Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998); Roberts v.

KinderCare Learning Ctrs., 86 F.3d 844, 846 n.2 (8th Cir. 1996)); Liljedahl v. Ryder Student

Transp. Servs., Inc. 341 F.3d 836, 841 (8th Cir. 2003) (“Claims arising under the [Minnesota

Human Rights Act] are analyzed using the same standard applied to ADA claims.”) (citations

omitted); Longen v. Waterous Co., 347 F.3d 685, 688 n.2 (8th Cir. 2003) (“The [Minnesota Human

Rights Act] parallels the ADA. Thus, we analyze the claims at the same time.”) (citations omitted);

Heisler v. Metro. Council, 339 F.3d 622, 625 (8th Cir. 2003) (incorrectly asserting that “Minnesota

courts facing disability claims under the [Minnesota Human Rights Act] apply the same standards

federal courts apply to ADA claims”) (quoting Somers v. City of Minneapolis, 245 F.3d 782, 788

(8th Cir. 2001)); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 n.3 (8th Cir. 2003) (“Claims arising

under the [Minnesota Human Rights Act] are analyzed using the same standard applied to ADA

claims.”) (citing Maziarka v. Mills Fleet Farm Inc., 245 F.3d 675, 679 n.3 (8th Cir. 2001); Fenney

v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 n.5 (8th Cir. 2003) (“We have noted that the

[Minnesota Human Rights Act] parallels the ADA, and thus we conclude that the District Court

properly treated Fenney’s [Minnesota Human Rights Act] claim as co-extensive with his ADA

claims.”) (citations omitted).

178. 245 F.3d 782 (8th Cir. 2001).

90 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

individual’ or is ‘regarded as having such an impairment.’ Claims under

the [Minnesota Human Rights Act] are analyzed the same as claims

under the ADA.”

179

As discussed in Part I, and contrary to the court’s

assertion, disability discrimination claims brought under state law are

not analyzed using the same standards developed under federal law.

C. Analysis

These results are disturbing for several reasons. First, and most

obviously, the Eighth Circuit is often misapplying substantive Minnesota

law. But more subtly, the extremely poor depth of treatment of state law

issues is troubling and problematic—a practice evincing disrespect for

the primacy of state civil rights law. On this point, the problem goes far

beyond reaching the “correct” result in any given case; after all, a court

that happens to reach the correct result in a given case by flipping a coin

could not justify its methodology after the fact based on the correctness

of the result.

At the level of the individual plaintiff, this under-enforcement

undermines one of the primary functions of courts in society: providing

those who feel wronged with a fair hearing.

180

Even to the civil rights

plaintiff who loses his case, there is a cathartic value in airing his

grievances before a neutral decision-maker. The plaintiff can move on

knowing that his voice was heard. But when state law claims are not

treated seriously, this value is undermined. A plaintiff’s original

grievance is only compounded by a sense that he was not treated fairly

in court.

At the systemic level, the under-enforcement of state civil rights

law in federal court poses further problems. First, the problem is self

perpetuating. As a matter of precedent, the practice of under-

enforcement is entrenched, with each passing case supplying another

citation used to justify the practice in the next case. Second, the practice

of under-enforcement undermines the principles and values of

federalism. When Congress passed the Civil Rights Act of 1964, the

drafters made explicit their wish to leave budding state anti-

discrimination regimes alone—not preempted in any way by federal

law.

181

The practice of under-enforcement described in this Part

179. Id. at 788 (citing 42 U.S.C. § 12102(2); Treanor v. MCI Telecomm. Corp., 200 F.3d 570,

574 (8th Cir. 2000)).

180. The constitution guarantees every citizen’s right to present a claim or defense in court.

See U.S.

CONST. art. III, § 2; U.S. CONST. amend. VI & VII.

181. See 42 U.S.C. § 2000e-7 (2000) (“Nothing in this subchapter shall be deemed to exempt

2008] FEDERALISM’S FALSE HOPE 91

operates as a kind of de facto federal preemption, removing the incentive

for passing civil rights legislation at the state level and undermining the

states’ role as laboratories of democracy.

182

While the under-enforcement of state civil rights law in federal

court appears prevalent as a descriptive matter, we can only speculate as

to the cause of the problem. For practicing members of the civil rights

bar, there is little incentive to spend finite time and energy separately

litigating state law claims that will not gain clients any currency above

and beyond the result that can already be achieved on the federal claims.

In several of the analyzed opinions, there are hints that the plaintiffs’

lawyers did not press their state law claims very forcefully, and in some

cases probably acquiesced to having their client’s state law claims

subsumed into their federal claims.

183

Plaintiffs’ lawyers’ behavior in

this respect is essentially strategic. After all, these attorneys operate in

an environment that exists independently of them, and they are (and

should be) more concerned with the outcome for their particular client

than with the development of case law within the federal judiciary. This

might mean not wasting time and resources making a stink over a state

law claim, when the time and energy is better spent elsewhere. Given

federal courts poor record in interpreting state law, lawyers making such

a strategic decision seem to be vindicated.

But the civil rights bar is certainly not entirely to blame for the

under-enforcement of state civil rights laws in federal courts. The

federal courts themselves deserve a share of the blame. One possible

explanation for the under-enforcement is that federal courts are slowly

making a return—at least in the area of civil rights—to Swift v. Tyson,

184

or relieve any person from any liability, duty, penalty, or punishment provided by any present or

future law of any State or political subdivision of a State . . . .”).

182. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

See generally Kathleen M. Sullivan, From States’ Rights Blues to Blue States’ Rights: Federalism

After the Rehnquist Court, 75. F

ORDHAM L. REV. 799, 802, 808 (2006).

183. See, e.g., Fenney v. Dakota, Minnesota & E. R.R. Co., 327 F.3d 707, 711 n.5 (8th Cir.

2003) (noting that neither party contested the district court’s decision to treat the Minnesota Human

Rights Act as co-extensive with the ADA) (citing Maziarka v. Mills Fleet Farm Inc., 245 F.3d 675,

678 n.3 (8th Cir. 2001)); Brief of Appellant at 1-8, Rush v. Metro. Council Transit Operations, 13 F.

App’x. 477 (8th Cir. 2001) (citations omitted) (acknowledging that both statutes are treated under

the same standards, but making no attempt to argue that the Minnesota Human Rights Act’s

definition of disability is less stringent than the ADA’s); Heaser v. Toro Co., 247 F.3d 826, 830 n.2

(8th Cir. 2001) (“We have noted that the [Minnesota Human Rights Act] parallels the ADA, and

neither party contests the district court’s treatment of Heaser’s [Minnesota Human Rights Act]

claims as co-extensive with her ADA claims.”) (citing Wilking v. County of Ramsey, 153 F.3d 869,

872 (8th Cir. 1998)) (citations omitted).

184. 41 U.S. 1 (1842).

92 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

where the Supreme Court held that federal courts hearing cases brought

under their diversity jurisdiction should develop and apply a federal

common law.

185

Another possibility is that the federal courts are

especially likely to ignore state law in this area because the applicable

body of precedent is underdeveloped. As discussed above, many civil

rights cases end up in federal court for jurisdictional reasons, either filed

there by the plaintiff, or removed there by the defendant.

186

Because of

this, the body of Minnesota cases authoritatively construing the

Minnesota Human Rights Act is far less developed than the Minnesota

cases interpreting contractual disputes, or tort liability, for example.

This relative scarcity of case law interpreting the Minnesota Human

Rights Act surely creates a temptation to simply follow the well-

developed body of precedent built up over a generation of interpreting

federal anti-discrimination statutes. Finally, it is possible that some

federal judges are simply disdainful of state civil rights law.

Whatever the cause, the result is clear. By now, the practice of

under-enforcing Minnesota’s civil rights law is deeply ingrained in the

federal judiciary, both psychologically and as matter of precedent.

These mutually reinforcing problems need immediate attention if

Minnesota’s civil rights laws are to carry forward into the future with

any substantive force.

III.

REVERSING THE TREND: A BATTERY OF SOLUTIONS FOR RESTORING

STATE CIVIL RIGHTS LAW

The situation is not hopeless. There are several measures that can

be taken with the aim of restoring state civil rights law as an independent

and vibrant source of protection for victims of discrimination. First,

attorneys on the civil rights bar must make a renewed emphasis on the

primacy of state civil rights law in federal court. Second, federal courts

themselves must make greater use of the certification procedure, a

mechanism by which federal courts can “certify” questions of state law

to be authoritatively construed by the appropriate state supreme court.

187

Third, state high courts need to help stem the bleeding. State supreme

courts should follow the framework developed by the Minnesota

Supreme Court in Kahn v. Griffin,

188

where the court provided a clear

185. Id. at 18-19.

186. See supra notes 149-50 and accompanying text.

187. See, e.g., Todd v. Societe BIC, S.A., 9 F.3d 1216, 1222 (7th Cir. 1993).

188. 701 N.W. 2d 815 (Minn. 2005).

2008] FEDERALISM’S FALSE HOPE 93

and principled roadmap for interpreting provisions of the Minnesota

Constitution more expansively than the United States Constitution.

189

This framework should be imported into the civil rights arena. Finally,

Congress and state legislatures should act to create a scheme where state

supreme courts could review questions of state law appealed from the

United States Courts of Appeals. Working together, these structural

reforms should restore state civil rights law to its rightful place as a

primary protector of individual rights.

A. A Renewed Emphasis on State Law by the Civil Rights Bar

As discussed above, plaintiffs’ attorneys should not be blamed

entirely for the under-enforcement of Minnesota’s civil rights laws in

federal courts. If anything, the findings of this Article provide

justification to the attorney who makes little or no attempt to focus on

state anti-discrimination law in a federal forum. But, in the adversarial

system, courts cannot be expected to change course on their own. Here,

the civil rights bar, both public and private, has a role to play. These

attorneys should make a renewed emphasis on the primacy of state civil

rights law in their briefs and arguments.

The obvious drawback to this solution is that it presents major

collective action and free rider problems. If only one segment of the

civil rights bar undertakes this renewed emphasis on state civil rights

law, the entire civil rights bar will reap the diffuse benefits of the

renewed effort. And, if only a handful of attorneys make an effort to

renew the federal courts’ attention on state civil rights laws, the effort

will likely not be successful in bringing about systemic change—and the

lawyer making the effort will feel like she wasted her time and money

(not to mention that of her client). While a renewed emphasis on state

law by the civil rights bar is an important part of the solution to the

under-enforcement problem, it is far from sufficient by itself. Other

measures must be taken.

B. Federal Courts Should Make Greater Use of the Certification

Procedure

A relatively recent invention in American law, the federal

certification procedure allows a federal court to “certify” a question of

state law to be authoritatively answered by the appropriate state supreme

189. Id. at 828.

94 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

court.

190

The Supreme Court has approved of the certification procedure

as a model of judicial federalism and an economical way to get an

authoritative interpretation when difficult issues of state law are at

issue.

191

More and more states, including Minnesota, have also

approved of the procedure, making it easier than ever before to certify

questions of state law to state supreme courts.

192

The decision to invoke

the certification procedure lies entirely within the discretion of the

federal court.

193

However, some federal courts have listed a series of

factors which demonstrate that a particular state law question is a good

candidate for certification. The factors can be broken down into three

basic inquiries: (1) how close is the question of state law; (2) how

sufficient are the sources of law (such as precedent) upon which the

federal court must rely; and, (3) how do considerations of comity come

into play in light of the particular issue and case to be decided.

194

The

closer the question, the less sufficient the sources, the greater the need

for comity, the more likely the federal court is to certify the issue of state

law.

195

Federal courts should make greater use of the certification

procedure because state civil rights laws and civil rights issues often

meet these factors. Not every question will be close, but discrimination

claims often contain rich factual scenarios with multiple inferences

capable of being drawn from the available evidence. As discussed

earlier, the body of law federal courts must look to is often

insufficient.

196

Finally, state civil rights laws are not just garden variety

state statutes; they embody broad concepts of public policy. In this

circumstance, the need for comity from the federal courts is at its highest

ebb.

The certification procedure, however, like the renewed emphasis on

state law by the civil rights bar, suffers from a serious practical defect:

190. See, e.g., Todd, 9 F.3d at 1222.

191. Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 212 (1960) (citing Allegheny County v.

Mashuda Co., 360 U.S. 185, 189 (1959)).

192. See 17A C

HARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER & VIKRAM

DAVID AMAR, § 4248, 496-97 n.31-33 (3rd ed. 2007) (lists states and their corresponding

certification procedures).

193. Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).

194. See, e.g., Marston v. Red River Levee & Drainage Dist., 632 F.2d 466, 468 n.3 (5th Cir.

1980).

195. Id.

196. See, e.g., McAdams v. United Parcel Serv., Inc., 30 F.3d 1027, 1029 n.3 (8th Cir. 1994)

(“Because of the paucity of published caselaw on the [Minnesota Human Rights Act], we look to

precedent arising from similar federal laws . . . .”) (citations omitted).

2008] FEDERALISM’S FALSE HOPE 95

the self-selection problem. Because certification is discretionary, the

only federal courts that would ever certify a question of state law to the

state’s supreme court are courts which are mindful of state law in the

first place.

197

Remember Arraleh? It is unlikely that a court which

cannot correctly identify what state’s civil rights laws are before it will

entertain the idea of certifying a question of state law to the appropriate

state court. So, while greater use of the certification procedure would

surely help federal courts apply state civil rights laws by building up the

body of state law precedent, this certification procedure would likely do

little to change matters for the intransigent or uninterested federal court.

The certification procedure can also take a good deal of time to

complete. According to one study of the Ohio Supreme Court’s

handling of certified questions, the time between federal court

certification and Ohio Supreme Court resolution averaged nearly one

year.

198

Despite these shortcomings, greater reliance on the certification

procedure in close cases would help dislodge state civil rights law from

its current position of near irrelevance in federal forums.

C. State Supreme Courts Should Import the Framework Developed by

the Minnesota Supreme Court in Kahn v. Griffin into the Civil Rights

Arena

State supreme courts also have a role to play. By developing

principled standards for interpreting state civil rights law in light of

federal precedent, state supreme courts can help encourage a thoughtful

and thorough approach to applying state civil rights law—without

actually reviewing dozens of cases. Such standards would go a long

way towards filling the vacuum left by the relative absence of case law

interpreting state civil rights statutes.

The interpretation of the state constitutions provides an excellent

analogy to the interpretation of state civil rights law. In the case of

Minnesota, the state Constitution contains many provisions that are

similar (if not identical) to the federal Constitution. Although the

197. Wendy L. Watson, McKinzie Craig, & Daniel Orion Davis, Federal Court Certification

of State-Law Questions: Active Judicial Federalism, 28 J

UST. SYS. J. 98, 101 (2007) (“[T]he

certification procedure is a classic case of the fox guarding the hen-house; it gives federal courts

complete control over which questions to certify and thus allows federal courts to determine the

circumstances under which state courts can interpret state law.”).

198. Id. at 102 (citing Rebecca A. Cochran, Federal Court Certification of Questions of State

Law to State Courts: A Theoretical and Empirical Study, 29 J.

LEGIS. 157, 217 (2003)).

96 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

Minnesota Supreme Court has always maintained the position that the

Minnesota Constitution could be interpreted more broadly than the U.S.

Constitution,

199

the court was often criticized for not using a principled

basis for deciding whether or not the Minnesota Constitution protected

more rights than its federal counterpart.

200

One commentator, writing

about state constitutional law in general, wrote: “[S]ystematic studies

demonstrate that most state courts, when presented with the opportunity,

have chosen not to depart from federal precedents when interpreting the

rights-granting provisions of state constitutions . . . . [T]he majority of

state courts, on most issues, engage in an analysis in lockstep with their

federal counterparts.”

201

In Kahn, a federal district court in Minneapolis certified the

question: “Does the Minnesota Constitution provide greater protections

to the right to vote than does the United States Constitution such that

failure to hold prompt elections following decennial redistricting violates

. . . the Minnesota Constitution . . . [or state statutory law]?”

202

In Kahn, the Minnesota Supreme Court took the opportunity to go

beyond the question presented, and adopted a decision tree methodology

to decide—in a principled fashion—whether a particular provision of the

Minnesota Constitution protected more rights than the analogous section

of the U.S. Constitution.

203

The court summarized its approach like this:

[W]e will not, on some slight implication and vague conjecture, depart

from federal precedent . . . . But, when we reach a clear and strong

conviction that there is a principled basis for greater protection of the

individual civil and political rights of our citizens under the Minnesota

Constitution, we will not hesitate to interpret the constitution to

independently safeguard those rights . . . . [W]e are most inclined to

look to the Minnesota Constitution when we determine that our state

199. Kahn v. Griffin, 701 N.W.2d 815, 828 (2005) (citing Minnesota v. Harris, 590 N.W.2d

90, 97 (Minn. 1999); Minnesota v. Fuller, 374 N.W.2d 722, 726 (1985)).

200. Compare Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 186-87 (Minn. 1994)

(holding that random sobriety checkpoints, without the police having an objective individualized

articulable suspicion of criminal activity before stopping a driver, violate the state constitutional

protection against unreasonable searches and seizures, although the Supreme Court, in Michigan

Dep’t of State Police v. Stitz, 496 U.S. 444, 447, 455 (1990), had held such checkpoints do not

violate the Fourth Amendment), with Kahn, 701 N.W. 2d at 836 (holding that given the particular

facts and circumstances presented by the certified question, the Minnesota Constitution did not

provide greater protections to the right to vote than does the U.S. Constitution).

201. Michael E. Solimine, Supreme Court Monitoring of State Courts in the Twenty First

Century, 35 I

ND. L. REV. 335, 335, 338 (2002).

202. Kahn, 701 N.W.2d at 818.

203. See id. at 828-29.

2008] FEDERALISM’S FALSE HOPE 97

constitution’s language is different from the language used in the U.S.

Constitution or that state constitutional language guarantees a

fundamental right that is not enumerated in the U.S. Constitution . . . .

We take a more restrained approach when both constitutions use

identical or substantially similar language. But we will look to the

Minnesota Constitution when we conclude that the United States

Supreme Court has made a sharp or radical departure from its previous

decisions or approach to the law and when we discern no persuasive

reason to follow such a departure . . . . We also will apply the state

constitution if we determine that the Supreme Court has retrenched on

Bill of Rights issues, or if we determine that federal precedent does not

adequately protect our citizens’ basic rights and liberties.

204

Although it may seem odd at first blush to interpret a state

constitution at least partially by reference to the U.S. Constitution, the

Kahn framework deserves credit for acknowledging—and dealing

with—the elephant in the room: the federal precedent that seemed too

often to dictate the interpretation of Minnesota’s Constitution. The

Minnesota Supreme Court in Kahn acknowledged explicitly for the first

time federalism’s “double source of protection for . . . rights,”

205

the role

of “the highest court of this state”

206

in providing “the first line of

defense for individual liberties,”

207

and the important role of private

litigants in the development of state constitutional law.

208

State supreme courts should adopt the Kahn methodology to help

courts decide when to interpret state civil rights laws more expansively

than federal civil rights laws. First, such a holding would make clear

that textual differences between the laws, for example, the difference

between Minnesota’s sexual harassment statute and Title VII’s ban on

sex discrimination, would be treated differently under the analysis. The

same is true for the textual differences between Minnesota and federal

law in the areas of sexual orientation and disability discrimination.

Second, such a framework would protect Minnesota’s civil rights laws in

federal courts from getting swept away when the federal courts

“retrench” on a federal civil rights issue. This part of the analysis would

204. Id. at 828 (citations omitted); see also Paul H. Anderson & Julie A. Oseid, A Decision

Tree Takes Root in the Land of 10,000 Lakes: Minnesota’s Approach to Judicial Federalism, 70

LB. L. REV. 865, 866-68, 912-16 (2007).

205. Kahn, 701 N.W.2d at 824 (internal quotations omitted) (quoting William J. Brennan, Jr.,

The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual

Rights, 61 N.Y.U. L. R

EV. 535, 552 (1986)).

206. Id. at 828.

207. Id.

208. Id. at 829.

98 HOFSTRA LABOR & EMPLOYMENT LAW JOURNAL [Vol. 26:63

shield Minnesota’s civil rights law from automatically meeting the same

fate as federal civil rights laws in the Supreme Court’s recent civil rights

jurisprudence; Minnesota law would not automatically fall in lockstep

behind cases like Ledbetter and Buckhannon. Third, the final prong of

the Minnesota Supreme Court’s framework—“if we determine that

federal precedent does not adequately protect our citizens’ basic rights

and liberties”—would leave courts free to unhinge state civil rights law

from federal law entirely if federal law simply failed to offer the

protection contemplated by the state civil rights regime.

It is too soon to adequately gauge the success of the Kahn

framework as a matter of state constitutional law, but the methodology

adopted in that case shows a great deal of promise and naturally lends

itself to extension into the state civil rights arena. By providing the

appropriate framework for evaluating state civil rights claims in light of

federal precedent, state high courts can send a strong message that state

civil rights law be taken seriously in every forum.

D. The Nuclear Option: Giving States the Power to Review Federal

Appellate Decisions

If the solutions discussed so far do not solve the under-enforcement

problems in federal courts, it may be time for drastic measures. One

such measure would be giving state supreme courts the ability to review

purely state law issues decided by federal appellate courts.

Generally speaking, the United States Supreme Court does not

review matters of purely state law.

209

Therefore, when a civil rights

plaintiff receives an appellate decision involving both state and federal

claims, she has usually reached the end of the road on the state law issue.

By contrast, she is free to petition the Supreme Court for a writ of

certiorari on any federal issue.

210

Giving the state supreme courts the

power to review questions of purely state law would give such a plaintiff

the opportunity to appeal the state law decisions to the ultimate

interpreting state supreme court, just as she can appeal any federal issues

to the ultimate interpreter of federal law: the United States Supreme

Court.

Such a scheme would require legislation action by both Congress

209. See Int’l Longshoremen’s Ass’n, AFL-CIO v. Davis, 476 U.S. 380, 387 (1986) (“[W]e

have no authority to review state determinations of purely state law.”).

210. See, e.g., Todd v. Ortho Biotech, Inc., 138 F.3d 733 738 (8th Cir. 1998) (holding that

under Title VII and Minnesota law, an employer may escape liability for its supervisor’s act of

sexual harassment by taking appropriate action in a timely manner).

2008] FEDERALISM’S FALSE HOPE 99

and the states who wished to participate, much like the certification

procedure required under this dual legislative action. To be sure, if a

state tried to adopt such a scheme unilaterally, such action would be pre-

empted by several federal statutes, most notably by the statute granting

the Supreme Court exclusive jurisdiction over appeals from the United

States Courts of Appeals.

211

These federal statutes would need to be

amended. Even if both Congress and the states got behind such a

scheme, it is possible that such a scheme could be found unconstitutional

by the Supreme Court for violating the Diversity Clause or the doctrines

of federalism and separation of powers.

212

But giving the state court the ultimate authority to interpret state

law would serve to enhance cooperative federalism and restore state civil

rights to plaintiffs in federal courts. The under-enforcement problem

would be fixed if state supreme courts could step in and review the

federal court’s most egregious errors.

ONCLUSION

Federal and state civil rights laws are not coextensive. In

Minnesota’s case, state civil rights laws offer numerous substantive

protections to victims of discrimination unavailable under federal civil

rights law. Focusing on sexual harassment and disability discrimination,

this Article has tried to demonstrate that these state laws are

systematically and chronically under-enforced in federal court. In

addressing this pervasive problem, this Article offers a variety of

remedial measures aimed at restoring Minnesota’s civil rights laws to

their position as an independent and vibrant body of legal protections.

Working together at these changes, lawyers, judges, and legislators can

change a broken system and renew the promise of federalism in the civil

211. See 28 U.S.C. § 1254 (2000).

212. The Diversity Clause states that: “The judicial power shall extend to all cases, in law and

equity, arising under this Constitution, the laws of the United States . . . to controversies . . .

between citizens of different states . . . .” U.S.

CONST. art. III, § 2 cl. 1. Although some would

likely argue that the Diversity Clause guarantees an absolute right to a federal forum, this position is

undermined by the current state of the law, which limits diversity jurisdiction to cases where more

the $75,000 is in controversy. 28 U.S.C. § 1332(a) (2000). If the diversity statute is constitutional,

then it should stand for the proposition that there is no absolute, vested right to a federal forum. In

addition, several commentators have suggested abolishing diversity jurisdiction, a plan which is

presumable not unconstitutional. See, e.g., Warren E. Burger, Chief Justice, U.S. Supreme Court,

Address to the American Law Institute (May 20-23, 1975), in 52 A.L.I. Proc. 29, 36-38 (1975)

(stating that “something must be done” about the court’s docket and recommending that Congress

abolish diversity of citizenship, eliminate three-judge district courts, and remove all mandatory

jurisdiction of the Supreme Court not constitutionally required).

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rights arena once again.