You might have noticed one of the topics taking over your social feed this week has been the #WeAreNotThis hashtag. And, while many are using this trend to discuss the implications this has for the transgender population (as reported by the Charlotte Observer), there are also broader implications from North Carolina House Bill 2 that have serious legal implications for NC workers & businesses.
From the North Carolina Advocates for Justice,
Buried in North Carolina House Bill 2 is a provision that gives state court immunity to employers who discriminate against workers based on race, gender, age, and other protected class status. We’re fighting against that discrimination and will continue to do all we can to protect workers’ rights and all people’s rights in North Carolina.
As a direct result of this bill’s passage, employees in NC can no longer sue a business for discrimination, at least at the state level. Discrimination, while still illegal, is now a legal issue that has to be pursued at the federal level. Taking a case to federal court can be time-consuming, complicated, and costly.
The immediate target for this emergency session was to overturn Charlotte’s ordinance for transgender identity relating to public restrooms. However, there are many other issues raised by this piece of legislation. As members of the NCAJ have identified, here are three main concerns:
- There are no state law sanctions for employers who discriminate because of race, sex, age, religion, national origin, or disability. Neither the federal agency, the EEOC, nor the State Human Resources Commission has the authority to enforce anti-discrimination laws. All they can do is seek voluntary compliance from employers.
- With the passage of this bill, NC lawmakers and the governor have overturned at least 15 years of court precedents that allow employees to bring discrimination claims to state court. This means that if an employer doesn’t voluntarily agree not to discriminate, an employee must take the claim to federal court. In addition to costing twice as much as state court, federal claims must be brought within six months. Most employees who are fired do not have the resources to take on a lawsuit within six months of being fired.
- NC now joins Mississippi as the only two states in the union which do not offer our citizens state law protection against the most basic forms of discrimination. This matters, certainly, from a humanitarian perspective, however it also has financial consequences for the state. A number of large businesses have already voiced their opposition to doing business in NC as a direct result of the lack of protection, including Red Hat, Biogen, and Dow Chemical.
While many have looked at the immediate issue affecting Charlotte, there are various implications from a legal, financial, and legislative perspective that may impact a larger audience than the initial target. It will be of increasing interest to watch what happens with federal funding for public schools in the state, as this bill directly violates Title IX of the Education Amendments of 1972 and could, subsequently, place funding in jeopardy.
Read and hear other legal takes on impact of HB2 in the links below: