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NC HB2 Law: Law Discriminates On More Than Gender Identification

NC HB2 Law Has Consequences Beyond Transgender Bathrooms

The N.C. General Assembly passed a new discrimination law, HB2, on March 23, 2016. The media has focused on the HB2 law's prohibition of transgendered persons from using bathrooms and other sex segregated facilities. The HB2 law requires that transgendered persons use facilities that correspond to their birth gender. The law, however, has wider reaching implications for all North Carolina workers. Namely, the law has now stripped all North Carolina workers from using state courts to protect their rights against any form of employment discrimination.

NC Previously Allowed Workers The Right To Sue In State Court

Prior to HB2, if a worker was discriminated against on the basis of "race, religion, color, national origin, age, sex or handicap", the worker could bring a lawsuit in North Carolina courts. This right was granted by the Equal Employment Practices Act (N.C. Gen. Stat. §143-422.2). North Carolina courts had jurisdiction under this law to hear these employment discrimination cases. Citizens of North Carolina pay taxes to support this court system.

HB2 Changes All Workplace Discrimination Law

HB2 was passed in an emergency session of the N.C. General Assembly. The NC General Assembly was responding to a Charlotte, NC ordinance forbidding discrimination in public accommodations against transgendered persons. Lt. Gov. Dan Forrest told CNBC in a recent interview that the bill's purpose was to "defend women and children from predators in bathrooms".

But while the public's and media attention was focused on the transgender debate, the legislators inserted additional language into the bill. This insert stripped all workers in discrimination cases from enforcing state anti-discrimination laws. This change to the Equal Employment Practices Act reads as follows:

"This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein."

What this change means for workers is that they cannot use their own state courts to enforce state law even when they are discriminated against for illegal reasons. For example, if a religious minority worker who was fired solely because of his religion, he could no longer sue his employer in N.C. courts.

HB2 Law And The N C Advocates

The N.C. Advocates for Justices, an organization comprised of attorneys who represent injured workers, discrimination victims and other citizens are alarmed over the law's change. Some attorneys have speculated that the language must have been accidental. These lawyers speculate that many legislators did not realize the language's impact. HB2 was hurriedly passed and had limited debate time. However, the N.C. General Assembly members have not indicated that this language was not intentional. None have indicated that they would correct the language when given the opportunity.

Similarly, David Gantt, Chairman of the Buncombe County Commissioners and a practicing attorney, noted that the new law was akin to the state imposing a speed limit of 65 mph and then telling every motorist that there was no enforcement of speed limits. He planned to bring a resolution before the Commission condemning the bill.

On April 12, 2016, Governor Patrick McCory issued a statement asking the legislature to amend HB2 and restore a state cause of action based on wrongful employment discrimination. Unfortunately, this "support and encouragement" does nothing to restore worker's rights. Had Governor McCory vetoed HB2 because of this language, the provision would not have become law. Once the governor signed the bill, he gave up any power to change it. At this point, the legislature is solely in control of amending the law.

Federal Court Often Inferior To State Court

If the law stands, then workers in NC will have no recourse outside of federal law to enforce their rights. Federal laws such as the Equal Protection Act, the Americans with Disabilities Act, and the Equal Pay Act do provide recourse for discrimination in federal courts. Unfortunately, it is more expensive and demanding to sue in federal court. A worker must often first report their case to the Equal Employment Opportunity Commission (EEOC) before he can file suit. If the EEOC fails to act, the worker is issued a right to sue letter. The worker then has only 90 days to hire counsel and file his lawsuit. Additionally, a worker must bring his case to the EEOC within 180 days of the time he learned or should have known of the discrimination. For example, if a worker was passed over for a promotion due to her sex and 181 days later, her boss admitted the company didn't promote her because she was a woman, the woman may be barred from bringing any claim. The Court may rule the employee should have known of the discrimination at the time the promotion happened. North Carolina law, by contrast, allowed workers typically three (3) years to bring suit from the date of the discrimination. The costs of pursuing a claim in state court was also much less expensive, usually half the filing fee of federal court. Remedies in state court were also often more favorable than those in federal court.

N.C In Extreme Minority In Denying Its Citizens Right To Sue

Mississippi and North Carolina are now the only two states that forbid employment discrimination but have no method of enforcing the law.

In the passing of HB2, the N.C. General Assembly has accomplished a magician's act. While the public focused on the magician's right hand while it debated transgender bathroom issues, the public ignored the magician's left hand as it removed worker's rights.

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