By Julie Wilensky, Director of the California Office of the Civil Rights Education and Enforcement Center (CREEC) and member, National Employment Lawyers Association (NELA)
On March 26, the North Carolina General Assembly convened a special legislative session to preempt a local ordinance passed by the city of Charlotte, which had amended its antidiscrimination law to explicitly include protections based on sexual orientation and gender identity. The state legislature introduced and rapidly passed HB 2, North Carolina’s extraordinarily broad “Bathroom Bill,” which Governor Pat McCrory signed into law the same day. The focus of HB 2, and much of the debate and dialogue surrounding it, is about forcing transgender people to use sex-segregated restrooms according to the sex listed on their birth certificate, instead of the restrooms corresponding to their gender identity. HB 2 also prohibits local governments in North Carolina from enacting their own anti-discrimination protections based on sexual orientation and gender identity and from establishing minimum wages other than for the local government’s own employees.
Advocates have filed suit challenging aspects of HB 2 as violating the U.S. Constitution as well as Title IX, a claim vindicated by the Fourth Circuit’s April 19 decision in G.G. v. Gloucester County School Board. That decision confirms that Title IX, which prohibits sex discrimination in educational programs receiving federal funding, protects the rights of transgender students to use sex-segregated facilities consistent with their gender identity. Quite simply, HB 2 requires North Carolina’s local governments and schools receiving federal funding to discriminate against transgender and gender nonconforming people in violation of federal law.
HB 2 also takes the extreme step of expressly revoking the right for workers to bring state-law discrimination claims in state court North Carolina Equal Employment Practices Act. For many years, the North Carolina courts have recognized a common law right to file suit for wrongful termination based on the public policy under the Act. Taking this right away is an unprecedented and extreme step. While HB 2 states that North Carolina’s Human Relations Commission will have the authority to “investigate and conciliate charges of discrimination,” state officials have not provided guidance on how this will be implemented, and this is no substitute for a worker being able to file a lawsuit in state court.
The option to sue in state court instead of federal court is important to vindicating workplace rights. Historically, the general trend in civil rights enforcement has been to increase the avenues of redress available to people who have experienced discrimination. State courts may provide procedures that are friendlier to people seeking redress from discrimination, often including longer time limits to file suit and lower filing fees. In North Carolina, for example, filing fees in filing fees in state court are less than half the fees for filing in federal court.
HB 2 does further damage to North Carolina’s Equal Employment Practices Act by amending the list of protected characteristics to add the word “biological” before sex, a limitation not in federal Title VII law. This appears to be an attempt to narrow the scope of prohibited conduct, as federal courts for many years have interpreted Title VII to prohibit discrimination based not only on an employee’s “biological” sex, but any “sex-based consideration.” This further highlights HB 2’s targeting of transgender and gender non-conforming people, whose gender identity or expression may not correspond to their “biological” sex.
On April 12, Governor McCrory issued an executive order purporting to scale back some of the effects of HB2. Among other things, it “encourage[s] the General Assembly to restore a State cause of action for wrongful discharge based on unlawful employment discrimination.” This “encouragement” is not the same as passing a law. Even if the legislature were to repeal that aspect of HB 2, the executive order does not come close to undoing the rest of the far-reaching damage of HB 2, which clearly targets LGBT people for discrimination and also harms many other workers as well.
On April 25 and April 27, state lawmakers filed bills to repeal HB 2. While one of the bills appeared to be dead the day after filing, pressure is mounting from rock stars, businesses, North Carolina cities and counties, and public demonstrators for a full repeal.
Most recently, the U.S. Department of Justice weighed in on May 4, issuing three strongly worded letters to Governor McCrory, the North Carolina Department of Public Safety, and the University of North Carolina stating that HB 2’s provisions on sex-segregated facilities violate Title VII and Title IX and that the recipients are engaging in a pattern or practice of discrimination against transgender state employees and students. The letter to Governor McCrory also states that the Governor, in his official capacity, is “engaging in a pattern or practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies.” The letters give the recipients until Monday, May 9 to advise the DOJ whether they will remedy the discrimination by not complying with or implementing HB 2.
The DOJ’s letters are a significant development. The rest of the country is watching what will happen, not only to the LGBT people who are directly targeted by HB 2, but also to the millions of workers in North Carolina who have lost the valuable right to enforce their rights in state court.