By Lev Craig
On April 13, we wrote about North Carolina’s Public Facilities Privacy & Security Act, more commonly known as “HB 2,” in a blog titled “North Carolina Passes a Controversial Law That Overturns City Anti–LGBT Discrimination Laws.” HB 2 establishes that public schools and public agencies are required to segregate restrooms by biological sex, defined by the statute as the sex listed on an individual’s birth certificate. Consequently, HB 2 effectively denies many transgender people the right to use the bathroom consistent with their gender identity, as a transgender person’s gender presentation is likely to differ from the sex indicated by their birth certificate. The National Transgender Discrimination Survey, the most comprehensive and large-scale survey of transgender Americans to date, found that only 24% of respondents had been able to update their birth certificate to reflect their gender identity.
On March 23, HB 2 was passed in a special session of the North Carolina General Assembly (the first called by the state’s legislature in 35 years), where the bill was introduced, debated, and voted upon over the course of just 12 hours. On May 9, the United States filed suit against the state of North Carolina, Governor Pat McCrory, the North Carolina Department of Public Safety, and the University of North Carolina and its Board of Governors, alleging that the bathroom regulation provision of HB 2 violates Title VII, Title IX, and the Violence Against Women Reauthorization Act of 2013.
But while the bulk of the media coverage of HB 2 has focused on the bathroom regulation component of the bill, as well as the ongoing lawsuit, there’s another part of HB 2, related to employment discrimination lawsuits, which has received relatively little attention – and which isn’t addressed by the United States’ complaint. HB2 also eliminates the private right of action in North Carolina’s Equal Employment Practices Act (“EEPA”).
The EEPA states, “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, biological sex or handicap by employers which regularly employ 15 or more employees.” The EEPA was passed in 1977, and for decades, North Carolina citizens have been able to bring state claims in wrongful termination cases on the grounds that such discrimination violates this public policy.
However, HB 2 amended the EEPA to add that “no person may bring any civil action based upon the public policy expressed herein.” That is, the law prevents North Carolina employees alleging wrongful termination based on discrimination from bringing state claims. Post–HB 2, the only recourse employees have under the EEPA is to make a “telephone call, letter, [or] walk-in” complaint to the North Carolina Human Relations Commission, which will then seek an “amicable resolution of the charges of discrimination.”
And while North Carolina employees can still bring federal claims, there are important differences between state claims and federal claims, including statutes of limitations and damages caps. For instance, while the relevant statute of limitations for state claims is three years, the EEOC requires an employee to file a charge within 180 days of their termination – meaning that a North Carolina employee who has missed the EEOC deadline can no longer make use of the extended statute of limitations for state claims. Moreover, it is more difficult for poor and/or rural North Carolina citizens to pursue federal claims than state claims, as federal litigation is more expensive and plaintiffs may have to travel to a different county in order to reach a federal courthouse.
Governor McCrory “[encouraged] the General Assembly to take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination” in Executive Order 93. But for now, as HB 2’s amendment to the EEPA stands, the law still limits North Carolina citizens’ rights to sue employers for discrimination.
If you have been discriminated against by your employer because of your gender identity, contact The Harman Firm, LLP.