As the debate over North Carolina’s House Bill 2 shifted from who could use which bathroom to its long-term effect on the business climate, Bruce Springsteen on Friday highlighted a part of the law that employment rights advocates have billed as one of its most troubling.
In canceling his Sunday show in Greensboro, Springsteen stated that “the law also attacks the rights of LGBT citizens to sue when their human rights are violated in the workplace.”
What the politically minded rocker didn’t note, though, is how the law, adopted in an emergency session with little debate, eliminates a path in state court for anyone bringing discrimination claims.
Since March 23, when Gov. Pat McCrory signed the bill into law, employment rights advocates have tried to find out why and how a bill that was titled the Public Facilities Privacy & Security Act included a single sentence that strips North Carolina workers of the ability to pursue remedies in state court if they believe they were fired because of their race, gender, religion or age.
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“I’m hopeful that it was an oversight and with awareness, the legislature will go back and fix it,” said Laura Noble, a Chapel Hill lawyer who represents workers in cases filed in state and federal courts.
Amid the flurry of news about HB2, Noble and other attorneys have had to call clients and let them know about how it could affect their cases.
Angel Carey, one of those clients, sat down with Noble and a TV reporter recently and could not hold back tears as she discussed HB2’s impact on her.
“I’m not a political person,” Carey told Russ Bowen, a morning anchor at WNCN. “I just have a sense of what’s right and what’s wrong, and I feel that that’s not going to happen anymore in North Carolina, and it’s sad and it’s disturbing.”
Carey, who said she felt as if she had been “blindsided” twice after North Carolina became one of two states that block such discrimination claims in state court, also pursued her age and disability discrimination case in federal court.
But Noble and other employment rights attorneys say the path through federal court has more stumbling blocks and lower rewards for workers fired for discriminatory reasons.
Under federal law, workers have just 180 days to file a discrimination claim; the state court process had a three-year window.
How employees word their claims in federal court at the start can have a significant impact on the success or failure of the case, attorneys say. Attorneys for the employers will work to pick apart words in the complaint, and many federal cases end up being dismissed before trial.
Number of cases difficult to measure
North Carolina doesn’t keep track of how many discrimination cases are filed under state law, or how many are then settled. But the federal Equal Employment Opportunity Commission does, and from 2009 to 2014, workers filed 28,167 federal charges of workplace discrimination in North Carolina. Race, gender, age and retaliation made up the bulk of the accusations.
North Carolina’s law that protected workers from such discrimination was broadly changed with just one sentence in HB2: “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.”
What that sentence does is amend the North Carolina Equal Employment Practices Act, which has been in place since 1977. The act, which applies to businesses with 15 or more employees, says it is against the state’s “public policy” to discriminate in employment “on account of race, religion, color, national origin, age, sex or handicap.”
Though the act did not include specific remedies, North Carolina courts had held since 1985 that under that public policy doctrine, people who proved discrimination could recover damages in state court under common law.
In one day, that 30-year practice was halted.
“This is a major loss of rights for the citizens,” said Eric Doggett, a Raleigh lawyer who defends employees.
Doggett said lawyers who practice in a field of law that can be complicated, even for them, do not understand why there was no opportunity for those who understand the twists and turns to talk with legislators before the bill was passed.
“I just think it’s political overreach,” said Harold Kennedy, a Winston-Salem lawyer whose firm represents employees in claims against companies.
Blog post and questions
Philip Strach, a Raleigh attorney with Ogletree Deakins, an employment law firm with offices in 27 states and the nation’s capital, has a different take on the law.
Strach, who has represented Republican legislators in challenges to a 2013 election law overhaul and 2011 redistricting, posted a blog entry on the firm’s website the day after HB2 was adopted.
“The act contains a significant provision clarifying North Carolina common law in the area of wrongful termination claims brought under state law,” Strach said in a four-paragraph post that led some to question whether he or others in his firm had anything to do with the provision’s inclusion in HB2.
Strach also said that HB2’s “clear stance” on whether wrongful termination claims can be based on the Equal Employment Practice Act “provides helpful clarity for employers on an issue that has been unresolved for many years.”
On Friday, Strach said he had nothing to do with the wording in HB2, nor did he know about it until the day after McCrory signed the bill.
Thomas Farr, a lawyer at the same firm who was hired as private counsel for the GOP legislative leadership on redistricting and voting rights cases, said Friday that he did not talk with legislators about the language in the bill, nor did he know how it got into the bill.
But Farr said he, too, supports the employment law change. “I think it’s better policy for the state,” Farr said.
Farr, who has represented employers during his career, said he thinks giving employees a three-year window in state court to file a claim does not benefit the employee or the employer. Over time, Farr said, people’s memories fade and employers could have staff changes that make it difficult to bring key players into court.
Both Strach and Farr said they thought that if state leaders in 1977 had wanted employees to be able to pursue claims in state court, they would have included that in the act.
Attorneys dismayed with the legislative action are optimistic that when the General Assembly convenes this month for its scheduled session, HB2 will be overturned or amended.
“Why would you force your citizens to go to federal court?” Noble, the Chapel Hill attorney, asked. “Why wouldn’t you want a state that says we value anti-discrimination laws, and we’re going to enforce them in our state?”