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Confusion Around North Carolina's Newest Law Goes Beyond Bathrooms

Nick de la Canal
Thursday, March 24, 2016, people gathered at the government center in Charlotte to protest the passage of House Bill 2.

The North Carolina legislature’s response to Charlotte’s expanded non-discrimination ordinance, House Bill 2, is a broad measure that addresses more than just the much debated "bathroom" provision. And now there’s a lot of confusion about certain aspects of the bill.

Republican lawmakers say the bill establishes consistent, statewide policies on discrimination, minimum wage, and single-sex bathrooms. They say they called themselves into special session this week because, in their interpretation, Charlotte’s ordinance was sloppily written and essentially did away with all single-sex bathrooms in the city.

"Courts don’t read laws based on the subjective and secret intentions of people who were there or people who were only halfway paying attention to what they do. That’s one reason cities are not fit, not suited, and not authorized to do legislation like this," Rep. Dan Bishop (R-Mecklenburg), a primary sponsor of the measure, said, "They don’t have a committee process, where errors like this are caught. They don’t have to go through a bicameral legislature—two houses—they don’t have to get a signature of a governor. It is not for them to do."

But many critics of House Bill 2 say state lawmakers rushed the legislation and did it in a secretive manner. It was only made public Wednesday morning just as the special session began. Governor McCrory signed it that night.

The bill includes a bathroom provision that’s a direct response to Charlotte’s ordinance prohibiting discrimination based on sexual orientation or gender identity at any place open to the public. Another part prevents local governments from imposing higher wage standards on employers. And, it also establishes a statewide non-discrimination policy for employment and places of public accommodation. But the legislature limits those protections to race, religion, color, national origin, age, biological sex, or handicap; sexual orientation and gender identity are not included.

The legislation also specifically prohibits people from using the non-discrimination law as a basis for civil lawsuits. Charlotte employment attorney Luke Largess says this means "they have eliminated the right of anyone in North Carolina to bring a discrimination lawsuit in state court."

The law gives sole authority to resolve employment discrimination claims to the state Human Relations Commission in the Department of Administration. A department spokesman says the Commission only handles claims of housing discrimination; it refers people with employment claims to the federal Equal Employment Opportunity Commission—or the EEOC. The commission is reviewing the new law, he says, but for now it will continue to refer those claims to the federal government.

That’s important, Largess says, because the statute of limitations for an employment discrimination suit in North Carolina courts has been 3 years. Most people only have 6 months to file a claim with the federal EEOC.

"They’ve created this public accommodation right that didn’t exist before in state law, but they’re taking away the right to enforce it," Largess says.

There’s also confusion over whether local governments can set broader non-discrimination policies for their own employees. The North Carolina League of Municipalities and city attorneys for Charlotte and Asheville wouldn’t talk on tape because they’re still trying to figure out the bill. Charlotte, Asheville, Raleigh, and seven other cities and towns, and five counties including Mecklenburg all include sexual orientation in their non-discrimination policies.

The bill’s opponents also point out the non-discrimination policy puts the state at odds with Title IX protections, which ensure equal access to schools that get federal money. They say that could jeopardize more than $4 billion in funding from the U.S. Department of Education.

The issue isn’t over, says Chris Sgro of Equality NC. He says his organization and others plan to challenge House Bill 2 in court.

In fact, the federal Equal Employment Opportunity Commission this month filed its first cases that charge employers with discrimination against gay and lesbian employees under the federal Civil Rights Act. It’s safe to say LGBT activists will try to get the EEOC to pay attention to the new North Carolina law.