Greater Employment Equalities in the New South Through New Constitutional Guarantees
Parness, Jeffrey A.
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Most American state constitutions contain equal protection clauses. The words in these clauses often follow the words in the equal protection clause of the federal constitution. Not surprisingly perhaps, many state courts read their own clauses as providing no greater equalities than are afforded federally, following "in lockstep". But some American state constitutions have special equality provisions having no federal counterparts. Such clauses not only facilitate, but seemingly require, greater independent state constitutionalism. For example, in Illinois there are three special equality provisions beyond the general equal protection clause. They deal with employment, housing, local government and school districts. Of course, special provisions can extend, but never diminish, federal constitutional, statutory and regulatory equalities. In Illinois and elsewhere in the United States, constitutional equalities are promoted by provisions guaranteeing the equal protection of the laws and insuring freedom from discrimination. These two types of provisions typically are read as seeking comparable forms of equality and anticipating similar types of remedies. State Human Rights Commissions and their equivalents have been broadly delegated powers in many states regarding both equal protection and nondiscrimination. Nevertheless, there are sometimes reasons to treat differently equality and nondiscrimination provisions. Equality duties are often limited to governmental acts, as in the federal constitution, while nondiscrimination responsibilities are extended at times to private acts. As well, even where laws treat people and entities equally, discrimination may continue or arise. Antidiscrimination provisions can be read to impose upon government some affirmative duties to end discrimination not caused by government. This paper was first presented on January 16, 2009 at a symposium sponsored by the Charleston Law School and the Riley Institute at Furman that was entitled, "State Constitutional Reform in the New South." The paper explores the extent to which American states in the New South should promote greater constitutional equalities and nondiscrimination than are afforded federally. It begins by examining the benefits of special equality and nondiscrimination guarantees. It then examines American state experiences inside and outside the New South. Finally, it explores arenas where new explicit guarantees seem warranted, finding one special Illinois equality provision particularly inviting.