Today Governor McCrory signed Executive Order No. 93 in an effort to walk back some of the effects of House Bill 2, which he signed into law himself just three weeks ago in the evening hours of March 23, 2016. In his order, the Governor states that he “supports and encourages” the General Assembly to take all necessary steps to restore a state cause of action for wrongful discharge based on employment discrimination. This is an important shift from denying that HB2 made such a change and decrying those that raised the issue to the public as liars. However, it is yet to be seen whether the General Assembly will accept the Governor’s recommendation and move forward with restoring the ability of most discrimination victims to pursue their claims in our State’s courts, as the Governor relinquished his ability to unilaterally make such changes when he signed HB2.
Missing from this Order is any statement that discrimination based on sexual orientation or gender identity will be illegal in the Tar Heel State. The Governor says that the State is committed to administering and implementing its human resources policies without unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information or disability. Thus, it appears that the Governor may also be advocating that the General Assemble add sexual orientation and gender identity to the protections of the North Carolina Human Resources Act, N.C. Gen. Stat. § 126-16, which protects only state employees. Such a change would mark the first time that state law protected employees based on LGBT status, however, the Governor’s Order stops short of advocating for such an amendment.
Likewise, no mention is made of adding sexual orientation and gender identity to the North Carolina Equal Employment Practices Act (NCEEPA) so that such protections would be extended to private sector employees. Instead, the Order would allow HB2’s amendment to the NCEEPA to stand; clarifying gender protections to expressly prohibit any inference of protection for LGBT status.
Governor McCrory’s Order also directs cabinet agencies to provide a single occupancy restroom, locker room or shower facility upon request due to “special circumstances” that likely refer to someone’s transgender status. However, the Order does nothing to answer criticism that such an approach treats transgender people as a third sex and reanimates the “separate but equal” mantra from a bygone era.
Likewise, the Order does not advocate that the General Assembly backtrack on its prohibition of living wage ordinances or give power back to municipalities to enact their own non-discrimination ordinances.
In sum, the Governor is suggesting two changes to HB2: (1) non-LGBT North Carolinians should be permitted back into our State’s courts and (2) transgender citizens may use a special single-occupancy restroom in some state buildings if they ask first.
Neither change (even if enacted by the General Assembly) is likely to stem the tide of businesses, entertainers, events, and residents leaving the State, as discrimination against the LGBT community in public accommodations and in private-sector employment would still be legal under the Governor’s Order.
To read the full text of the order, click here.
To read the full text of HB2, click here.