Last night, Governor Pat McCrory signed House Bill 2 into law, a mere 10 hours after it was first revealed to the public. In their haste to strike down Charlotte’s Non-Discrimination Ordinance, the General Assembly and Governor enacted a law that does far more than prohibit transgender and gender nonconforming Charlotteans from using public restrooms. Instead, House Bill 2, as currently drafted, serves to bar the doors to North Carolina’s state courts to victims of all brands of discrimination, including: race, color, religion, age, biological sex (as the Bill now refers to gender), disability, and national origin. The Bill does this through a single sentence amending the North Carolina Equal Employment Practices Act of 1977 (“NCEEPA”), N.C. Gen. Stat. § 143-422.3: “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.”
NC House Bill 2
Contrary to House Bill 2’s pronouncement, North Carolina Courts have held since 1983 that the NCEEPA does support a common law cause of action to vindicate employment discrimination on account of race, religion, color, national origin, age, sex or disability. Unless it is revised, House Bill 2 would wipe away over 30 years of this precedent and leave many victims of all types of discrimination with no remedy whatsoever. While federal law has also protected against employment discrimination since 1964, these laws require victims of discrimination to file a claim within 180 days. Employees often don’t reach out to a lawyer until this time has already passed, as they hope to quickly find another job and move on with their lives instead. Likewise, federal courts draw their juries from outside a plaintiff’s home county and are run by an appointee from Washington, D.C., rather than a judge elected by their neighbors. Filing in federal court is also twice as expensive as our local courts. Even more troubling are the potentially disastrous effects on employees who have already waived their federal claims in reliance on their ability to rely on state law.
The Charlotte City Council Non-Discrimination Ordinance
When the Charlotte City Council was considering its Non-Discrimination Ordinance, Governor McCrory warned that the State would quickly act to nullify the law if Charlotte went forward. A promise he has fulfilled with devastating speed and effect. But the Governor also promised that “the only issue I think the State needs to be involved in is the issue regarding locker rooms and restrooms, that’s the one that draws concern that has ramifications beyond city limits.” However, HB 2, as currently written, would nullify over 30 years of precedent protecting against all kinds of employment discrimination and bar the doors to our state courts for claims of discrimination based on race, religion, color, national origin, age, sex or disability. Hopefully, this was unintended collateral damage accidentally inflicted in haste and will soon be corrected by the General Assembly.
Click here to locate contact information for your representative to ensure the doors of our state courts are re-opened to discrimination victims:
Click here to see the full text of House Bill 2: