The new law known as House Bill 2 radically alters the rights of everyone in the Tar Heel State. Its most controversial provision, passed in a headlong rush to bar transgender individuals from using the bathroom of their choice, has already caused tremendous damage to our reputation and economy. The courts will probably declare that portion of the law unconstitutional.
A second misguided provision of HB2 prevents a North Carolina city from requiring contractors who work for that city to pay their employees a living wage. This hurts working people and contradicts the conservative idea that local communities should control their own financial affairs. A third provision of the law erases the rights of every employee in this state, by eliminating current protections against employment discrimination.
I am a North Carolinian. I grew up in Charlotte, attended South Mecklenburg High School, Duke University, and UNC Law School. For the past 34 years I have represented employees who have been mistreated at work. Discrimination on the basis of race, gender, sexual orientation, national origin, religion, disability and age occurs every day in our state. In just the past year, I have represented:
▪ A black plumber who left his job after protesting that he was being paid less than his white co-workers and found a noose in his work truck.
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▪ A gay truck driver fired after complaining that his trainer used a slur and said he “acted like a girl.”
▪ A marketing professional fired at age 60, shortly after the vice president of his company announced that they needed “more young people” and “more people with blue hair and tattoos.”
▪ A Native American employee who resigned after the owner of his company repeatedly taunted him by saying white people took his land and his women.
▪ A Muslim computer programmer fired after he took time to attend a service at his mosque in honor of the Muslims who were shot in Chapel Hill.
▪ A female property manager fired less than two weeks after telling her boss she had been diagnosed with breast cancer.
▪ A black factory worker fired after being told “you are just as much a (racial slur) today as you were yesterday.”
Since 1977, a North Carolina statute has stated that, “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgment on account of race, religion, color, national origin, age, sex or handicap ...”
For more than 30 years, our courts have recognized that this public policy supports an employee’s right to bring a wrongful discharge claim under North Carolina law. That has all changed now, because of HB2.
Although Gov. Pat McCrory has publicly stated that HB2 has not “taken away any rights that have currently existed in any city in North Carolina,” this is patently false. HB2 specifically prohibits the residents of all our cities from filing a lawsuit based upon our state anti-discrimination statute.
HB2 turns the North Carolina anti-discrimination statute into what I call a “A flowering dogwood law.” Like the law declaring the flowering dogwood our state flower, the state anti-discrimination law is now a meaningless proclamation. If you cannot go to court to enforce your rights under state law, then you have no rights under state law. As the late Tom Lee, the Chief Superior Court Judge in Durham County once told me, “You don’t have any rights until a lawyer can stand up on his hind legs in court and tell a jury that your rights have been violated.”
What we needed was a statute that specifically provided greater protection for the rights of employees and the rights of the LGBT community, not one that took away everyone’s rights and left in their place a meaningless proclamation.
Some proponents of the new law says it does no harm because there are federal statutes that prohibit discrimination, so employees who suffer discrimination can simply use those statutes if they want to go to court. Easy for them to say.
I regularly litigate cases in both federal and state court. Federal court is more expensive, complicated and time-consuming than state court. Federal claims must be filed within 180 days of the act of discrimination, a very short time to act when you have just lost your job and are more concerned with seeking new work.
The federal laws have caps on damages that do not exist under North Carolina law. And the vast majority of lawyers in North Carolina have never appeared in a federal court and do not understand the steps you must take to bring and win a federal discrimination claim. As a practical matter, many North Carolinians will not be able to fight against discriminatory firings
We are better than this. North Carolina cannot send a message to the rest of the country that we tolerate prejudice and discrimination. Every provision of HB2 needs to be flushed down the toilet.
Stewart W. Fisher is an attorney with the Durham law firm of Glenn, Mills, Fisher & Mahoney, PA.