HB2 Law Strips Employees’ Right To Sue Over Any Discrimination in NC

Published Monday, March 28, 2016 at 1:12 pm

By Kirk Ross / Carolina Public Press

The legislation pushed through North Carolina’s General Assembly last week, ostensibly over Charlotte public restroom policy, eliminates a key legal right for workers that has been in place in the state for three decades, according to lawyers who specialize in workplace discrimination cases and discussed the new law with Carolina Public Press.

The Public Facilities Privacy and Security Act, also called House Bill 2, passed Wednesday in less than 10 hours during a special session of the state legislature, was aimed at reversing moves by Charlotte to expand the city’s anti-discrimination ordinance.

It has since faced a growing backlash from both LGBT rights advocates and the business community. Civil rights organizations filed suit in federal court to block the law Monday morning.

State policy change

Although most of the focus has been on the law’s impact on protections for transgender individuals and the preemption of local non-discrimination laws, other sections of the bill altered state law on employee protections.

One provision added a single sentence to a longstanding legislative public policy declaration, a change that experts say unravels North Carolina workers’ right to bring action in state court for workplace discrimination on the basis of race, religion, color, national origin, age, sex or disabilities.

“This will have a big impact all across the state,” said Jessica Leaven, an Asheville attorney who specializes in employment discrimination law, in an interview with Carolina Public Press on Saturday. The new law includes an addition to a legislative declaration of public policy on discrimination passed in 1977.

The declaration reads:

“It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgment on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees. It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general.”

During the 39 years since its passage, state courts, including the state Supreme Court, have said the policy statement gives employees the right to bring discrimination cases in state court.

The addition to the legislative declaration passed Wednesday reads: “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.”

Leaven said that effectively wipes out using the policy declaration as a source to back up the right to sue in a state court.

“It’s been a source we can use to protect employees,” she said. “One little sentence undoes that.”

Leaven said the law, which took effect after Gov. Pat McCrory signed it Wednesday night, could affect many ongoing cases across the state. She said that majority of cases in the state are over discrimination because of age, sex and disabilities.

“To gut this in a day with so little discussion is a huge story,” Leaven said.

During debate on the bill last week, proponents argued that employees still bring discrimination cases under federal law, but Leaven how the two court systems handle discrimination involves vast differences.

In federal cases a plaintiff must file a claim with the Equal Employment Opportunity Commission with 180 days while the state allowed three years. A federal case cannot proceed without approval by the EEOC, which can take up to six months to investigate and approve a claim. Once approved, an individual has 90 days to file a case.

Leaven said the initial timeline is too short a time frame for many cases.

“For most people when they are fired they are trying to find ways to pay the bills and take care of their families,” she said. “It’s a traumatic event.”

While in some cases, the discrimination is plainly evident, it might take some time, she said, before a employees realize or discover they were fired because of discrimination.

“It’s very easy to miss the deadlines,” Leaven said.

Another barrier, she said, is that unlike state courts, which are located in every county, there are only a handful of federal courts in the state, which adds travel, time and financial barriers to bringing a case.

Backlash building, lawsuit filed

Over the weekend, as negative reaction to the new law built, more of the state’s major employee groups lined up in opposition to the bill.

In response to the growing backlash, the McCrory administration launched an effort to get its take on the bill out, sending an email to all state employees and press releases from nearly every major state agency titled “Myth vs. Fact” on the new law.

The 1,100-word release, a series of questions and answers on the bill, stresses that the law doesn’t prohibit private employers from adopting non-discrimination practices and that it creates a uniform standard across the state.

But the release did not include an explanation of the change in an employee’s right to sue for discrimination in state court.

Meanwhile, the ACLU of North Carolina and Equality North Carolina filed suit in the U.S. District Court for the Middle District of North Carolina on behalf of two university system employees and a university students against McCrory, Attorney General Roy Cooper, the Board of Governors of the University of North Carolina and board chairman W. Louis Bissette.

These plaintiffs were named due to their function in state government and university system rather than their individual position on the legislation. Cooper, for instance, is a Democrat who is currently running against McCrory for governor.

Protests continue against the law as well. After passage, last week, a handful of demonstrators were arrested at a rally outside the Executive Mansion and local demonstrations continued in several towns.

Asheville Mayor Esther Manheimer, who attended a rally against the law last week, said she understands the outrage.

“We just elected our first openly gay county commissioner,” she said, referring to the March primary victory of Jasmine Beach-Ferrara. “This law is obviously going in the wrong direction.”

Manheimer said she’s concerned that the law sends the wrong message to the business community at a time when recruiting new employers is critical.

“We’ve seen businesses like Marriott, Lowes and IBM come out against the legislation,” she said.

“They understand that you have to have protections for employees. If you don’t have those basic rights in place, they’re going to go somewhere else where they do.”

WNC split along party lines

At Wednesday’s special session western region legislators voted along party lines. In the Senate, which voted 32 to 0 after Democratic Senators staged a walkout, Sens. Tom Apodaca and Jim Davis voted for the bill. Sen. Dan Soucek did not attend the session.

In the 82-26 vote in the House, which included 11 Democrats voting with the majority, Buncombe County Democrats Reps. John Ager and Brian Turner voting no and Republican Reps. Josh Dobson, Jonathan Jordan, Michele Presnell, Roger West and Chris Whitmire voted with the majority. Republican Rep. Chuck McGrady and Democratic Reps. Joe Sam Queen and Susan Fisher did not attend the session.

Queen told Carolina Public Press that he thought the session was “a complete farce.”

“This was grandstanding in a shameful way,” he said.

Fisher said she wanted to attend but is recovering from a severe muscle tear.

Fisher also called the session shameful and said the backlash from around the country is evidence that the consequences were greatly underestimated.

McGrady, one of a handful of Republicans not to join in the call for a special session, did not respond to an email inquiry from CPP by press time.

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