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.