There has been a ton of news coverage regarding North Carolina’s new bathroom access law included within HB-2. I’ve written several posts on bathroom access and employment litigation regarding bathroom access. See my posts here (OSHA guidance on bathroom access), here (EEOC settlement of litigation which included bathroom access claims), here (11th Circuit Court of Appeals overturned summary judgment in favor of employer in discrimination claim that involved restroom access), here (addressing Houston’s bathroom access ordinance) and here (litigation involving Hobby Lobby that included restroom access claims).
Somewhat lost in the hub-bub over the bathroom and locker-room access restrictions, is the more important news that North Carolina’s recent changes to its discrimination laws included a dramatic change that likely removed a private right of action for all North Carolina employees who may have complaints or claims regarding any type of discrimination. While the LGBT community has been protesting these changes, there has been little focus on the fact that HB-2 has changed the rights of all North Carolina employees to bring discrimination lawsuits based on race, religion, color, national origin, age, biological sex or handicap pursuant to state law.
Specifically, North Carolina Statute § 143-422.3 was amended to provide that
This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.
That change likely translates, in practice, to mean that North Carolina employees will have to file complaints with the United States Equal Employment Opportunity Commission (“EEOC”) and thereafter file their lawsuits solely in Federal Court. While the North Carolina local politicians shrug off these implications, this change in law will likely mean fewer employment discrimination lawsuits in North Carolina due to statute of limitation differences between federal and state law.
Additionally, HB-2, also limits home rule by towns, cities and counties in North Carolina that want to provide greater protection and rights to their citizens. Changes to local ordinances to include explicit protection to the LGBT community has been a successful way for this community to gain more protection county by county and town by town in Florida. See more on this issue over on Fox’s Employment Discrimination Report blog.
Legal challenges to North Carolina HB-2 are already under way. In fact, one of my former law school professors, Angela Gilmore, is a named Plaintiff is a lawsuit already filed by the ACLU. I took my first year Real Property course with Professor Gilmore and received an A.