Under the Dome

Bill raises uncertainty over recourse for discriminatory firing in NC

A provision in the North Carolina legislature’s bill that would keep local governments from passing nondiscrimination ordinances has raised an unexpected concern – that it would eliminate a legal recourse for private sector employees who claim their firing was discriminatory.

North Carolina law allows employees to be fired for any reason, so long as the reason is not against the law or public policy. That isn’t part of a statute but has been part of common law for nearly four decades.

One sentence in the bill passed Wednesday says that no one could file a civil action based on the public policy outlined in the legislation.

Rep. Darren Jackson, a Wake County Democrat, pressed bill sponsor Rep. Dan Bishop, a Charlotte Republican, on that question during the House floor debate. Bishop said anyone still would have a right to file a federal action, which would be a more “robust” option.

But other Democrats echoed Jackson’s concern and said it was more difficult to make an Equal Employment Opportunity Commission claim than to sue under state law. Bishop acknowledged that the result could be fewer claims and fewer potential legal avenues.

Asked about that in a subsequent Senate committee hearing, Sen. Buck Newton, a Republican from Wilson, said the bill drafters didn’t intend to take away any current rights.

“Our intent was to keep the status quo and not create new right of action,” Newton said. “It doesn’t change anything currently in existing law that relates to the ability to bring a cause of action.”

Newton said others might have a different opinion.

Sen. Paul Lowe, a Democrat from Winston-Salem, unsuccessfully tried to remove that provision from the bill.

“There’s no recourse if a person is being discriminated against; they would have to automatically go to the federal level,” Lowe said. “I have a real problem with discrimination at any level.”

Newton added that the intention was to add language to help the bill pass.

“We felt like that would be problematic in trying to get support for this provision if we created a brand new way to sue,” he said.

In an interview Wednesday evening, Raleigh attorney Reagan Weaver, who has handled employment discrimination cases, said the provision seemed ill-advised.

The state’s equal employment act, established in 1977, applies to employers with 15 or more workers.

“It has been the public policy on which many claims of wrongful discharge have been prosecuted for approximately the last three decades,” Weaver said. “The provision of the bill being considered today appears to be trying to make a significant change in North Carolina tort law.”

Democrats cited the uncertainty as an example of the rushed nature of the legislation, which was drafted this week and given to the full House and Senate on Wednesday. GOP lawmakers were intent on getting the law on the books before Charlotte’s nondiscrimination ordinance takes effect April 1.

Craig Jarvis: 919-829-4576, @CraigJ_NandO

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