Thursday, April 14, 2016

North Carolina’s Bathroom Law and the Loss of State Civil Rights Protection

North Carolina’s much-talked-about Public Facilities Privacy & Security Act (HB2) has been much in the news for its attack on the rights and dignity of the transgendered.  But the larger effect of the law on civil rights more generally in that state remains to be tested.  The provision that mandates that people use the public restroom that corresponds to their sex as specified on their birth certificate has been well publicized, and constitutional challenges are already underway to that part of the law.  

But civil rights lawyers from North Carolina have sounded the alarm regarding another provision of the law that substantially reduces the legal rights of all North Carolina employees to sue for discrimination. The law provides that even those covered under North Carolina’s Equal Employment Practices Act (EEPA) (NCGS 143-422.2) (limited expressly to “race, religion, color, national origin, age, sex, or handicap”) have no private right of action to sue an employer for discrimination under that law.  This means that now, although North Carolina’s state law prohibits employers that regularly employ 15 or more employees from discriminating in employment based on these specifically enumerated categories, employees no longer have the power to enforce their rights under this law.  

For North Carolina, this means in practical terms that employees in that state may sue for discrimination only under federal anti-discrimination laws.  The effects of this new restriction are felt from the start of a claim, when the employee no longer has a generous three years to bring a claim, as before in North Carolina.  Instead, she or he must file with the EEOC within 180 days, as provided under Title VII.  It is likely that the significantly more restrictive time to file will reduce the number of claims for employment discrimination brought in North Carolina.  Claims brought to court under federal laws must be filed in federal court: North Carolinians suing for employment discrimination will no longer have access to the friendlier, faster, and significantly less costly state courts for their discrimination complaints.  Finally, should they prevail in federal court, their damages will be subject to the federal cap on compensatory damages (presently $300,000 for the largest corporations) – North Carolina’s law had not capped damages previously and juries were free to decide compensatory damages based solely on the facts of the case.  Proponents of North Carolina’s new Bathroom Law defend this little-talked-about provision by holding up the federal protections that North Carolina workers continue to enjoy.  Civil rights attorneys in the state, however, are more conscious of what workers have lost when this new law denies them the right to enforce their rights under the state anti-discrimination law.

State anti-discrimination laws matter, even when they at most echo the protections offered under federal law.  In most states — Mississippi has been the exception until now – employees bringing a discrimination claim against their employer have a choice to address discriminatory employment practices under either state anti-discrimination statutes or federal – or both.  At a minimum this means they may choose to pursue their claim through the state court system rather than filing in federal court.  Still more, most states with their own anti-discrimination enforcement regime have arranged with the federal Equal Employment Opportunity Commission to provide an office or offices to serve as Fair Employment Practice Agencies (FEPA) to help process discrimination complaints in the state.  What this means for workers is more time to file a complaint: states with FEPAs allow 300 days for the filing of a claim of discrimination, rather than the statutory 180.  Thus, even if the state laws do not significantly expand the categories accorded civil rights – even if, most significantly, protections is not given to sexual orientation and gender identity – the existence of a state anti-discrimination law and a right to bring a claim under it can significantly enlarge the protections available to employees.   

In our region, Virginia, Maryland, and D.C. all have state human rights laws that expand to some degree the protections offered under federal law and provide a way for workers to bring a claim in state court.  The three states provide agencies that serve as FEPAs with the EEOC, giving  workers 300 days to file their claim of discrimination with the EEOC. Individuals in these states have the right to proceed to court, state or federal, on their claims.  

The protections offered by the three states vary widely: both Maryland and D.C. protect sexual orientation and gender identity, whereas Virginia does not.  Virginia, on the other hand, expands protection to businesses employing five or more employees (Title VII covers employers with 15 or more employees whereas the ADEA covers employers employing 20 or more.), whereas Maryland’s law covers only those employers with 15 or more employees.  D.C. insists that every employer, with few exceptions, is subject to the law.   Of the three, D.C. offers the most expansive list of protected categories:  Race, color, religion national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, political affiliation, physical or mental impairment, matriculation and genetic information. 

Without cataloguing the differences between the separate state laws that govern civil rights protections in Virginia, Maryland, and D.C., what is clear are the benefits enjoyed by workers in our region because they are covered by state civil rights statutes as well as by federal law.   These laws have expanded rights, with some employees gaining  coverage for statii not covered under federal law, such as sexual orientation while others, who work for a business too small to fall under the federal law, find they have protection under their state statute.  All have available to them a process through state agencies and state courts that is closer to home, easier to access and generally less daunting.  

Those who argue that the change to the North Carolina law is insignificant given protections available under federal law, put too little value on the local.  They do not reckon on the effect of taking from employees the right to sue for discrimination by going to a local agency, filing a claim under state law, in state court, at much lower cost.  The North Carolina law will affect more than public bathrooms or even the rights of the transgendered.  It will burden every worker in the state who now may not protect his or her rights without, as they say, making a federal case of it.

This blog was written by Mary Kuntz

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