April 29, 2016
Private: North Carolina Flushes Right to File Discrimination Claims in Its State Courts
Geraldine Sumter
by Geraldine Sumter, attorney, Ferguson Chambers & Sumter, P.A., Charlotte, North Carolina
In a Special Session on March 23, 2016, the state of North Carolina enacted House Bill 2 (“HB2”) which ensured that an ordinance passed by the City of Charlotte to recognize the human rights of the LGBT community would not become law. That ordinance contained a provision which allowed transgender persons to use the bathroom which corresponded with their gender identity. The General Assembly, riding on a wave of unfounded hysteria about child molestation in bathrooms, enacted HB2 in one day. The text of this bill was not released to the public in advance of the opening of the special session. It was signed into law by the governor within hours of its passage. Since the passage of HB2, there has been considerable attention given to the bathroom issue.
An equally devastating result of HB2 is that it deprives every citizen of the state of North Carolina who might have a claim involving illegal discrimination in the work place (race, sex, age, national origin, religious belief, or disability) from suing in state court. Since 1985 when the North Carolina Supreme Court recognized a common law cause of action for wrongful discharge in violation of public policy, North Carolina citizens have been able to pursue claims for wrongful discharge in state court. The General Assembly abolished that right when it enacted HB2. The North Carolina General Assembly now forces its citizens to resort to federal court to pursue claims that they may have involving wrongful discharge against their employers.
One may think that the availability of the federal remedy renders concern about the deprivation of the right to pursue these claims in state court as being trivial. However, a review of the differences in the access to the courts shows the harm that the enactment of HB2 will have on North Carolina citizens.
Generally, under Title VII of the Civil Rights Act of 1964, the ADEA and the ADAAA, North Carolina citizens must file their charge of discrimination with the Equal Employment Opportunity Commission within 180 days. Despite the fact that each employer with more than 15 employees has an obligation to post a workplace flyer advising workers of their rights to file claims of discrimination, many workers do not understand the time restrictions on the filing of a claim with the EEOC. Once the EEOC issues a Right-to-Sue letter, a charging party has only 90 days in which to file a lawsuit in court under Title VII. Most litigants have a difficult time getting a lawyer who then must investigate the claim and file a complaint. Quite often, 90 days is not sufficient time in which to file those lawsuits. Damages under the federal statutes are also limited.
On the other hand, North Carolina residents who were wrongfully terminated from their employment who believed that it was based on discrimination had three years in which to file a lawsuit in state court. There is no cap on damages under state law.
Perhaps one of the most critical results of the passage of HB2 is the fact that North Carolina citizens are no longer allowed to utilize their local superior court. There is a Superior Court located in each county in North Carolina. Litigants forced to pursue their claims in federal court often have to travel long distances through several counties to get to the court house. Likewise, the burden of getting witnesses to travel that far is also greater.
Federal litigation is more costly for most litigants. Litigants pursuing claims in federal court must pay a $400 filing fee. The filing fee for North Carolina Superior Court is $200. To a discharged litigant, the difference between $200 and $400 is significant.
In federal court, civil juries consist of eight persons. (Verdicts may be reached by as few as six people. There are no alternates.) In North Carolina civil courts, 12 persons are seated for a jury with alternates selected. A verdict must be reached by 12 persons. The opportunity to have a jury of 12 peers is no longer available to the North Carolina litigant who wishes to pursue a wrongful discharge claim.
The General Assembly began its short session on April 23, 2016. There initially was some discussion about the provision in HB2 which removed citizens’ rights to pursue their claims having been a mistake and that a correction could be made in the short session. As of this writing, that change has not happened.
The governor, in response to the economic and political uproar about the passage of HB2 and its discriminatory animus, issued an executive order that “seeks legislation to reinstate the right to sue for discrimination.” It remains to be seen whether the General Assembly will pass such legislation. In the meantime, numerous citizens with cases pending and who had hopes of filing claims under state law are without a remedy if they did not or cannot file a charge with the EEOC under one of the federal statutes.