Federalism Issues and Title VII: Kremer v. Chemical Construction Corp.


Title VII of the Civil Rights Act of 1964 was enacted to provide a sweeping remedy for the intractable societal evil of discrimination in employment. From the beginning, Congress conceived of Title VII as a tool to be used by unschooled litigants, a right of action to ensure that complaints of invidious discrimination could be heard fairly and expeditiously. Although it required resort to both state anti-discrimination agencies and to the federal antidiscrimination agency, the Equal Employment Opportunity Commission (EEOC), the statute was a federal response to a problem perceived as national in scope. The enforcement of the statute was primarily, if not exclusively, entrusted by Congress to the federal courts.

Nonetheless, in its recent decisions the Supreme Court has increased the likelihood that an individual who wishes to pursue a discrimination claim in federal court will be precluded from doing so for reasons of form rather than substance. In Kremer v. Chemical Construction Corporation, the Court held that prior state administrative proceedings, if appealed into state court, might preclude the Title VII plaintiff from receiving a full hearing on her discrimination claim in federal court or, indeed, anywhere. This decision marks an intensification of the Court’s concern for federal-state comity and procedural nicety even where the litigant’s opportunity to vindicate her civil rights claims in federal court may be sacrificed as a result.

The Court in Kremer denied plaintiff the right to a de novo federal court hearing on his Title VII claim because he had previously sought state court review of the state anti-discrimination agency’s finding of “no probable cause” to believe that the plaintiff had been the victim of discrimination. The fact that plaintiff Kremer’s claim was submitted to the state agency for consideration solely because of Title VII’s requirement that such “deferral” agencies be given a limited “first shot” opportunity to act on Title VII claims was not deemed relevant by the Court. Nor did the Kremer Court consider dispositive the primary Title VII enforcement role given to federal courts by Congress. Rather, the Court deemphasized earlier case authority and legislative history that had preserved the primacy of federal de novo hearings on discrimination claims in the face of potential threats of preclusion from prior proceedings.

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