The Louisiana Employment Discrimination Law (RS 23:301 et seq.) makes it unlawful for employers to discharge an employee because of the individual's age (RS 23:312), disability (RS 23:323), or race, color, religion, sex or national origin (RS 13:332).  However, in 1999, then state Senator John J. Hainkel Jr. (1938-2005) created new laws that defined classes of employers and provided that the Louisiana Employment Discrimination Law "does not apply to employment by a private educational or religious institution or any nonprofit corporation" (See RS 23:302 PDF).¹  Since then, plaintiffs who sue Tulane University or other private institutions for discriminatory discharge can no longer state a claim for damages under state law, and federal judges can now dismiss claims against private employers arising from such state laws that are subject to their supplemental jurisdiction.²

RS 23:302 may not be constitutional because the restriction it provides appears to conflict with the 14th Amendment³ which states, in pertinent part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Moreover, RS 23:302 conflicts with various federal statues.  For example, the Age Discrimination in Employment Act, U.S.C. 29 § 623(a) states that:

It shall be unlawful for an employer–

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

More generally, U.S.C. 42 § 2000(e)(2)(a) provides, in pertinent part:

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 race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Institutions such as Tulane University receive many millions of dollars each year in federal grants and other forms of federal assistance and thus are subject to federal laws that specifically prohibit discrimination.  U.S.C. 29 § 2938(a) provides, in pertinent part:

(1) Federal financial assistance

For the purpose of applying the prohibitions against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. § 6101 et seq.), on the basis of disability under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), on the basis of sex under title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.), or on the basis of race, color, or national origin under title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), programs and activities funded or otherwise financially assisted in whole or in part under this Act are considered to be programs and activities receiving Federal financial assistance.

(2) Prohibition of discrimination regarding participation, benefits, and employment

No individual shall be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with, any such program or activity because of race, color, religion, sex (except as otherwise permitted under title IX of the Education Amendments of 1972 [20 U.S.C. § 1681 et seq.]), national origin, age, disability, or political affiliation or belief.

Finally, U.S.C. 42 § 1983 provides, in pertinent part:

Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...

Clearly, state law cannot preempt federal law, but until the 1999 restriction of the Louisiana Employment Discrimination Law is challenged in court, both state and federal judges will continue to invoke Louisiana RS 23:302 to dismiss claims of employment discrimination by individuals who have been discharged on that basis by private employers and nonprofit corporations.  Sadly, it is through the actions of such "public servants" as Senator Hainkel that the rights of Louisiana employees have been eroded to the point of near servitude.  One day we may wake up to discover that local government has left us with few rights, the Constitution notwithstanding.

Endnotes

1. Louisiana laws, including the Revised Statutes, can be accessed at: http://www.legis.state.la.us/lss/tsrssearch.htm, accessed 09/21/10.

2. See for example: Jackson v. Xavier University, Civil Action 01-1659 (E.D. La. 2002); Karcioglu v. Tulane University, Civil Action 07-3352 (E.D. La. 2008); and Hartz v. Farrugia, et al., Civil Action 06-3164 (E.D. La. 2009).

3. Federal laws can be accessed at the Cornell Legal Information Institute: http://www.law.cornell.edu/, accessed 09/21/10.