NC Legislature’s Tweak Leaves Bathroom Law Mostly Intact

By Kelly Knaub

Law360, New York (July 5, 2016, 6:04 PM ET) — North Carolina lawmakers have largely left intact a controversial transgender bathroom law that blocks local governments from granting civil rights protections to LGBT individuals, but restored the ability to sue for discriminatory termination in
state courts and gave workers one year to bring such claims.

The state’s General Assembly on Friday passed H.B. 169, which restores the ability to sue for wrongful discharge under the state’s Equal Employment Practices Act on the basis of race, gender and other characteristics — an ability that had been taken away when the North Carolina
Legislature in March passed the contentious H.B. 2.

Prior to the passage of H.B. 2, which requires individuals to use bathrooms that match the gender listed on their birth certificates, North Carolinians could sue under the EEPA for wrongful termination based on race, color, age, religious, disability, national origin and gender, for up to
three years from the date they were fired, according to Van Kampen Law PC attorney Kevin Murphy.

While restoring that right to sue, H.B. 169 trimmed the statute of limitations from three years to one, he said.

“This change will force discrimination victims to file suit on their state claims long before the [U.S. Equal Employment Opportunity Commission] has completed its investigation and bar state actions by such victims if they wait until after the EEOC acts before contacting an attorney or filing suit pro se,” Murphy said.

He noted that the newly passed law did not address any other portion of H.B. 2 and did nothing to restore the civil rights granted to LGBT North Carolinians by many of the state’s cities and counties before its passage.

The primary sponsor of H.B. 169, Rep. Mike Hager, R-Rutherford, did not respond to a request for comment Tuesday by Law360. Friday’s bill cleared the state House of Representatives with an 85-15 vote and the state Senate with a 27-14 vote.

H.B. 2 had been enacted on March 23, just hours after it was introduced during a special session, to invalidate a Charlotte city ordinance set to take effect April 1 that extended anti-discrimination protections to lesbian, gay, bisexual and transgender individuals and allowed transgender people to use the bathroom of their choice.

In addition to requiring that individuals use bathrooms that match the gender listed on their birth certificates, H.B. 2 preempts any local ordinances that include anti-discrimination or employment regulations, including minimum wages, not proscribed by the state. The bill says that it supersedes any ordinance or policy adopted by local governments “that regulates or imposes any requirement upon an employer pertaining to compensation of employees.”

Such ordinances could include minimum-wage levels, hours of labor, payment of earned wages, benefits, leave, or well-being of minors in the workforce, according to the bill. The measure also prevents counties and municipalities from requiring government contractors to abide by regulations on their employment practices as a condition of bidding on a contract.

Titled the “Public Facilities Privacy and Security Act,” H.B. 2 created a statewide anti-discrimination policy that included protection against discrimination on the basis of race, religion, color, national origin, age or handicap.

The bill also includes protection from discrimination for 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.

Within the span of a day, the bill ripped through the House 82-26, cleared the Senate 32-0 after Democrats in the chamber walked out in protest, and was signed into law by Republican Gov. Pat McCrory.