NC Governor Proposes Tweaks To Transgender ‘Bathroom’ Law

Law360, New York (March 24, 2016, 9:46 PM ET) — A hastily enacted North Carolina law that undid a Charlotte anti-discrimination ordinance that in part allowed transgender people to use the restroom of their choice could potentially limit access to state courts for employees trying to pursue a wide range of discrimination claims, including those related to race and gender, plaintiffs attorneys say.

Legislators in North Carolina on Wednesday passed H.B. 2 during a special session called to invalidate a Charlotte city ordinance that extended various anti-discrimination protections to lesbian, gay, bisexual and transgender individuals and allowed transgender people to use the restroom of their choice.

But the law could also affect various other forms of discrimination since it bars cities and municipalities from creating any local ordinances that include discrimination protections or employment regulations not proscribed by the state. The law also contains language that attorneys say could limit employees who claim they suffered workplace discrimination from pursuing those claims at the state level.

Tom Spiggle, founder of The Spiggle Law Firm PLLC, an Arlington, Virginia-based plaintiffs firm, told Law360 on Thursday that one of the law’s biggest impacts will be the increased difficulty that employees will have in pursuing discrimination claims in state court.

“Filing suits in federal court will be the only recourse that people will have,” Spiggle said, noting that the law applies to employers with 15 or more workers. “A lot of federal courts have been unfriendly toward workers’ claims.”

Titled the “Public Facilities Privacy and Security Act,” the wide-ranging law in part created a uniform statewide policy that includes protection against discrimination on the basis of race, religion, color, national origin, age, handicap and so-called biological sex, which was defined as the gender listed on a person’s birth certificate. The statewide policy did not mention gay and transgender people.

But employment attorney Kevin P. Murphy of Van Kampen Law PC, a plaintiffs firm located in Charlotte, said the law contains “accidental collateral damage” on nondiscrimination provisions beyond its effects on LGBT protections.

“The [legislators] threw the baby out with the bathwater when it comes to traditional anti-discrimination provisions,” Murphy said, noting that women and minorities could be adversely affected.

Murphy pointed to a sentence in the bill that amended existing North Carolina Equal Employment Practices Act of 1977 to say that it doesn’t “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.”

“Under common law, if you have a claim, you can go to state court, not federal,” Murphy said. “In a single day, that has been nominally wiped out.”

Contrary to the newly enacted statute, Murphy said that state courts in North Carolina have held since the 1980s that common law causes of action pertaining to various forms of employment discrimination are allowed under the NCEEPA.

“To the contrary, the state has now acted to nullify over 30 years of precedent protecting against all kinds of employment discrimination and barred the doors to our state courts for claims of discrimination based on race, religion, color, national origin, age, sex or disability,” Murphy said. “Hopefully, this was unintended collateral damage accidentally inflicted in haste and will soon be corrected by [state lawmakers].”

The flashpoint issue that led to the passage of North Carolina’s law on Wednesday was purportedly the use of restrooms by transgender people.

North Carolina is one of several states and agencies that have taken on the issue in recent months, either through legislation or by other means.

In December, the New York City Commission on Human Rights issued guidance under the city’s Human Rights Law to clarify, among other things, that it is illegal to refuse to allow people to use single-gender facilities, such as restrooms or locker rooms. The guidance also said it is illegal for employers to refuse to hire, promote or terminate an individual because of a person’s actual or perceived gender.

The Occupational Safety and Health Administration weighed in last year by issuing a best practices guide stating that transgender workers should be allowed to use workplace restrooms that match the sex they identify with.

But certain other states have taken different approaches. Arkansas last year enacted a law that, like North Carolina, barred counties and municipalities from adopting anti-discrimination policies that are more protective than state law.

To that point, Spiggle said that “it’s not uncommon for localities to have stronger protections” than the states they are located in while also noting that the law passed by North Carolina’s legislators “is shutting the door for LGBT rights.”

Murphy, meanwhile, noted that North Carolina’s bill is closely tied to the larger debate over Title VII of the Civil Rights Act of 1964, pointing out that the U.S. Equal Opportunity Commission has recently filed suits under the statute against employers for discrimination against transgender people.

“The EEOC … has argued that discrimination against transgender people is discrimination based on gender,” Murphy said. “It’s a novel theory that we think is a good theory on our side of the bar.”

–Editing by Mark Lebetkin and Christine Chun.