North Carolina’s Terrible Anti-LGBT Law Is Even Worse than We Thought
The problem goes way beyond bathrooms.
By Nina Martin, ProPublica
| Tue Apr. 5, 2016 6:00 AM EDT
AP Photos/Skip Foreman
When North Carolina lawmakers passed what is widely viewed as the most
sweeping anti-LGBT law in the country, supporters said it was needed to fend
off a potential wave of local laws like the transgender-friendly bathroom
ordinance adopted by the city of Charlotte. Opponents have called the new
law a "hostile takeover of human rights."
But all the attention on who can use toilets and locker rooms has
overshadowed what employment rights advocates say is an even more expansive
change made by the law-one that could affect all workers in North Carolina,
not just those who are lesbian, gay, bisexual or transgender.
As has been widely reported, the North Carolina legislature rushed last
month to pass HB 2, the Public Facilities Privacy & Security Act, which
requires transgender people (and everyone else) to use public restrooms
according to the biological sex on their birth certificate. It also bars
local governments from passing ordinances like Charlotte’s.
ADVERTISING
3
The legislation doesn’t stop there, however. Tucked inside is language that
strips North Carolina workers of the ability to sue under a state
anti-discrimination law, a right that has been upheld in court since 1985.
"If you were fired because of your race, fired because of your gender, fired
because of your religion," said Allan Freyer, head of the Workers’ Rights
Project at the North Carolina Justice Center in Raleigh, "you no longer have
a basic remedy."
"The LGBT issues were a Trojan horse...people were so caught up in [the
LGBT] part of the law that this snuck under the radar."
"The LGBT issues were a Trojan horse," added Erika Wilson, a law professor
at the University of North Carolina who co-directs a legal clinic for
low-income plaintiffs with job and housing discrimination claims. The
broader change hasn't received much attention, she said, because "people
were so caught up in [the LGBT] part of the law that this snuck under the
radar."
Conservative-leaning groups have trying for decades to reduce the number of
civil lawsuits in the states. In HB 2, lawmakers accomplished this by adding
a single sentence to the state’s employment discrimination law that says:
"[No] person may bring any civil action based upon the public policy
expressed herein."
The language does not repeal North Carolina’s job-bias law, which continues
to ban discrimination on the basis of race, sex, age, religion, or
disability. But it forces workers seeking redress for discrimination into
the federal system, where access is more difficult, the rules are much more
complicated, and businesses often have significant advantages. Time, in
particular, is on employers’ side: Under federal law, fired workers have
just 180 days to file a claim, versus three years in state court. In the
past, workers who missed the federal deadline - not uncommon for someone in
emotional and economic crisis - could sue under state law instead, said
Raleigh attorney Eric Doggett. Now, he predicted, many will discover they’
re "hosed."
The law’s impact could be "extraordinarily far-reaching," said Julie
Wilensky, California director of the national Civil Rights Education and
Enforcement Center. North Carolina doesn’t keep track of how many
discrimination cases are filed under state law. But from 2009 to 2014,
workers filed more than 28,100 federal "charges" of workplace discrimination
with the U.S. Equal Employment Opportunity Commission, or 4.5 percent of the
U.S. total (the state accounts for 3 percent of the U.S. population). Forty
percent of the complaints involved race; 29 percent involved gender; and 22
percent involved age.
Business groups are playing down the impact of HB 2. Bruce Clarke, CEO of
Raleigh-based Capital Associated Industries, an employers’ association with
more than 1,200 members, contended eliminating the right to sue was "a
technical correction" that brings “clarity to a confusing area of workplace
law” and takes North Carolina’s anti-discrimination statute "back to its
original intent." He said most employment discrimination cases lack merit
and don’t belong in the "mosh pit" of state court. "They're people that are
mad, they've had their feelings hurt, they believe they were treated
unfairly in some way … I view them like divorces," he said.
"They're people that are mad, they've had their feelings hurt, they believe
they were treated unfairly in some way … I view them like divorces."
Republican Rep. Dan Bishop, one of the legislation’s sponsors, said in an
email to ProPublica that the lawsuit provision was "incidental" to the
larger effort to revamp North Carolina’s law on public accommodations and
rein in local governments. "The overall function of the law is to restore
the status quo before the City of Charlotte exceeded its legal authority,"
he wrote. The change is not as sweeping as critics claim, he said, because
federal law "provides its own robust remedies and plaintiffs usually allege
both federal and state law claims in the same complaint." He told WBTV in
Charlotte that the "exceedingly minor procedural difference" would have a
minimal effect.
But in a post for lawyers on the Employment & Labor Insider blog,
Winston-Salem attorney Robin Shea, had a different take: "We expect to see a
flurry of summary judgment motions and motions to dismiss wrongful discharge
claims based on this amendment." Shea, partner in a firm that represents
employers, called the change a "bomb."
From the moment that the Charlotte City Council voted on Feb. 22 to expand
protections based on sexual orientation and gender identity, opponents vowed
to strike back. A month later, Republicans who control the legislature
called a one-day, emergency session to take place the next morning, March
23, and waited until just before the first committee hearings to make the
text of the legislation public.
LGBT supporters had feared the bill would be broad, but they were stunned by
just how far it went. In addition to requiring that people use bathrooms
according to their biological sex, the measure preempted local governments
from passing any laws aimed at protecting gay and transgender people, a
provision that immediately nullified more than 20 existing local ordinances.
Another provision banned local minimum wage laws like the $15-an-hour
"living wage" ordinances gaining traction around the country. The state
minimum wage is $7.25 an hour.
The passage affecting discrimination lawsuits amends the North Carolina
Equal Employment Practices Act (1977), which declares that it is against the
state’s "public policy" to discriminate in employment "on account of race,
religion, color, national origin, age, sex or handicap." The act-which
applied to businesses with 15 or more employees-did not contain explicit
language allowing alleged victims of job bias to sue. But since the
mid-1980s, North Carolina courts have held that the "public policy" doctrine
does give people who are wrongfully fired because of discrimination the
right to recover damages under common (non-statutory) law. In the space of
the 12-hour emergency session, HB 2 "wiped out this entire body of law
that’s been in place for the last 30 years," said Chapel Hill lawyer Laura
Noble.
In the space of the 12-hour emergency session, HB 2 "wiped out this entire
body of law that’s been in place for the last 30 years," said Chapel Hill
lawyer Laura Noble.
Dan Blue, an African American lawyer from Raleigh who leads the Senate
Democrats, views HB 2 as part of a pattern of Republican-sponsored measures
that have eroded voting and other rights for low-income people of color in
recent years. "It’s a continuation of…a wide assortment of things that
appear to be rolling back the clock of North Carolina so that it matches the
sordid history of 40 to 50 years ago," he said.
Others pointed to a burgeoning trend in which conservatives are exploiting a
backlash against gay marriage and transgender rights to push legislation
with sweeping ramifications. In Georgia, the governor vetoed a bill allowing
faith-based organizations the ability to refuse to rent property, provide
education or charitable services, or do any hiring that violates their
religious beliefs. In Mississippi, a bill that passed the legislature last
week would permit discrimination against anyone who has nonmarital sex.
HB2 "is more evidence that the forces behind this backlash have a larger
agenda than simply attacking marriage rights for same-sex couples," said
Katherine Franke, director of Columbia Law School’s Center for Gender and
Sexuality Law. "They also seek to unravel protections against race
discrimination in public accommodations and other contexts."
Last week, the ACLU and others went to court to contest the parts of HB 2
that target bathrooms and to overturn local LGBT ordinances, arguing that
they violate the Civil Rights Act and U.S. Supreme Court precedent. But the
complaint doesn’t address the provisions affecting the right to sue under
state law.
Clarke said that if workers-rights advocates and Democrats don’t like what
HB 2 did, they should go back to the legislature. "Go create an agency," he
said. "Go put order to this chaos."
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→ Gay Rights
North Carolina’s Terrible Anti-LGBT Law Is Even Worse than We Thought
The problem goes way beyond bathrooms.
By Nina Martin, ProPublica
| Tue Apr. 5, 2016 6:00 AM EDT
* Email
* 355
* /print/301151
* AP Photos/Skip Foreman
When North Carolina lawmakers passed what is widely viewed as the most
sweeping anti-LGBT law in the country, supporters said it was needed to fend
off a potential wave of local laws like the transgender-friendly bathroom
ordinance adopted by the city of Charlotte. Opponents have called the new
law a "hostile takeover of human rights."
But all the attention on who can use toilets and locker rooms has
overshadowed what employment rights advocates say is an even more expansive
change made by the law-one that could affect all workers in North Carolina,
not just those who are lesbian, gay, bisexual or transgender.
As has been widely reported, the North Carolina legislature rushed last
month to pass HB 2, the Public Facilities Privacy & Security Act, which
requires transgender people (and everyone else) to use public restrooms
according to the biological sex on their birth certificate. It also bars
local governments from passing ordinances like Charlotte’s.
ADVERTISING
3
Error! Hyperlink reference not valid.
The legislation doesn’t stop there, however. Tucked inside is language that
strips North Carolina workers of the ability to sue under a state
anti-discrimination law, a right that has been upheld in court since 1985.
"If you were fired because of your race, fired because of your gender, fired
because of your religion," said Allan Freyer, head of the Workers’ Rights
Project at the North Carolina Justice Center in Raleigh, "you no longer have
a basic remedy."
"The LGBT issues were a Trojan horse...people were so caught up in [the
LGBT] part of the law that this snuck under the radar."
"The LGBT issues were a Trojan horse," added Erika Wilson, a law professor
at the University of North Carolina who co-directs a legal clinic for
low-income plaintiffs with job and housing discrimination claims. The
broader change hasn't received much attention, she said, because "people
were so caught up in [the LGBT] part of the law that this snuck under the
radar."
Conservative-leaning groups have trying for decades to reduce the number of
civil lawsuits in the states. In HB 2, lawmakers accomplished this by adding
a single sentence to the state’s employment discrimination law that says:
"[No] person may bring any civil action based upon the public policy
expressed herein."
The language does not repeal North Carolina’s job-bias law, which continues
to ban discrimination on the basis of race, sex, age, religion, or
disability. But it forces workers seeking redress for discrimination into
the federal system, where access is more difficult, the rules are much more
complicated, and businesses often have significant advantages. Time, in
particular, is on employers’ side: Under federal law, fired workers have
just 180 days to file a claim, versus three years in state court. In the
past, workers who missed the federal deadline - not uncommon for someone in
emotional and economic crisis - could sue under state law instead, said
Raleigh attorney Eric Doggett. Now, he predicted, many will discover they’
re "hosed."
The law’s impact could be "extraordinarily far-reaching," said Julie
Wilensky, California director of the national Civil Rights Education and
Enforcement Center. North Carolina doesn’t keep track of how many
discrimination cases are filed under state law. But from 2009 to 2014,
workers filed more than 28,100 federal "charges" of workplace discrimination
with the U.S. Equal Employment Opportunity Commission, or 4.5 percent of the
U.S. total (the state accounts for 3 percent of the U.S. population). Forty
percent of the complaints involved race; 29 percent involved gender; and 22
percent involved age.
Business groups are playing down the impact of HB 2. Bruce Clarke, CEO of
Raleigh-based Capital Associated Industries, an employers’ association with
more than 1,200 members, contended eliminating the right to sue was "a
technical correction" that brings “clarity to a confusing area of workplace
law” and takes North Carolina’s anti-discrimination statute "back to its
original intent." He said most employment discrimination cases lack merit
and don’t belong in the "mosh pit" of state court. "They're people that are
mad, they've had their feelings hurt, they believe they were treated
unfairly in some way … I view them like divorces," he said.
"They're people that are mad, they've had their feelings hurt, they believe
they were treated unfairly in some way … I view them like divorces."
Republican Rep. Dan Bishop, one of the legislation’s sponsors, said in an
email to ProPublica that the lawsuit provision was "incidental" to the
larger effort to revamp North Carolina’s law on public accommodations and
rein in local governments. "The overall function of the law is to restore
the status quo before the City of Charlotte exceeded its legal authority,"
he wrote. The change is not as sweeping as critics claim, he said, because
federal law "provides its own robust remedies and plaintiffs usually allege
both federal and state law claims in the same complaint." He told WBTV in
Charlotte that the "exceedingly minor procedural difference" would have a
minimal effect.
But in a post for lawyers on the Employment & Labor Insider blog,
Winston-Salem attorney Robin Shea, had a different take: "We expect to see a
flurry of summary judgment motions and motions to dismiss wrongful discharge
claims based on this amendment." Shea, partner in a firm that represents
employers, called the change a "bomb."
From the moment that the Charlotte City Council voted on Feb. 22 to expand
protections based on sexual orientation and gender identity, opponents vowed
to strike back. A month later, Republicans who control the legislature
called a one-day, emergency session to take place the next morning, March
23, and waited until just before the first committee hearings to make the
text of the legislation public.
LGBT supporters had feared the bill would be broad, but they were stunned by
just how far it went. In addition to requiring that people use bathrooms
according to their biological sex, the measure preempted local governments
from passing any laws aimed at protecting gay and transgender people, a
provision that immediately nullified more than 20 existing local ordinances.
Another provision banned local minimum wage laws like the $15-an-hour
"living wage" ordinances gaining traction around the country. The state
minimum wage is $7.25 an hour.
The passage affecting discrimination lawsuits amends the North Carolina
Equal Employment Practices Act (1977), which declares that it is against the
state’s "public policy" to discriminate in employment "on account of race,
religion, color, national origin, age, sex or handicap." The act-which
applied to businesses with 15 or more employees-did not contain explicit
language allowing alleged victims of job bias to sue. But since the
mid-1980s, North Carolina courts have held that the "public policy" doctrine
does give people who are wrongfully fired because of discrimination the
right to recover damages under common (non-statutory) law. In the space of
the 12-hour emergency session, HB 2 "wiped out this entire body of law
that’s been in place for the last 30 years," said Chapel Hill lawyer Laura
Noble.
In the space of the 12-hour emergency session, HB 2 "wiped out this entire
body of law that’s been in place for the last 30 years," said Chapel Hill
lawyer Laura Noble.
Dan Blue, an African American lawyer from Raleigh who leads the Senate
Democrats, views HB 2 as part of a pattern of Republican-sponsored measures
that have eroded voting and other rights for low-income people of color in
recent years. "It’s a continuation of…a wide assortment of things that
appear to be rolling back the clock of North Carolina so that it matches the
sordid history of 40 to 50 years ago," he said.
Others pointed to a burgeoning trend in which conservatives are exploiting a
backlash against gay marriage and transgender rights to push legislation
with sweeping ramifications. In Georgia, the governor vetoed a bill allowing
faith-based organizations the ability to refuse to rent property, provide
education or charitable services, or do any hiring that violates their
religious beliefs. In Mississippi, a bill that passed the legislature last
week would permit discrimination against anyone who has nonmarital sex.
HB2 "is more evidence that the forces behind this backlash have a larger
agenda than simply attacking marriage rights for same-sex couples," said
Katherine Franke, director of Columbia Law School’s Center for Gender and
Sexuality Law. "They also seek to unravel protections against race
discrimination in public accommodations and other contexts."
Last week, the ACLU and others went to court to contest the parts of HB 2
that target bathrooms and to overturn local LGBT ordinances, arguing that
they violate the Civil Rights Act and U.S. Supreme Court precedent. But the
complaint doesn’t address the provisions affecting the right to sue under
state law.
Clarke said that if workers-rights advocates and Democrats don’t like what
HB 2 did, they should go back to the legislature. "Go create an agency," he
said. "Go put order to this chaos."
