Introduction
On March 23, 2016, the North Carolina legislature convened in a special session to pass the “Public Facilities Privacy and Security Act.” Many referred to it as House Bill 2, HB2, or even “The Bathroom Bill.” Many people reacted to Part I of the bill and its impact on transgender rights. Artists such as Bruce Springsteen and Jimmy Buffet publicly condemned the bill; PayPal halted their expansion into North Carolina. Amid the controversies, most people did not realize that, in one sweeping sentence, the North Carolina legislature also changed a 39-year old state employment discrimination law in HB2.
In 1977, North Carolina adopted the Equal Employment Practices Act. The Act protected workers and employees from discrimination based on race, religion, age, sex, among other factors. For more than 30 years, North Carolina allowed discriminated individuals to bring a private right of action against employers. This means that if you felt you have been wrongfully terminated due to your race, religion, age, or sex, you will have three years to file a discrimination suit against your employer in North Carolina state courts. HB2 took away that course of action.
Impact of HB2 on Workplace Discrimination [See update above]
In regards to employee discrimination, Part III of HB2 included this paragraph: “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.” This means that you will no longer be able to sue your employer in state courts for wrongful termination due to discrimination. It is a little puzzling why the North Carolina legislature included that language since, in the preceding paragraphs, it condemned any sort of employment discrimination based on “race, religion, color, national origin, age, biological sex, or handicap.”
You have, however, other legal remedies if you believed that you have been wrongfully terminated and discriminated against at your workplace. Title VII of the Civil Rights Act prohibits workplace discrimination based on sex, race, color, national origin, or religion. The federal government also recognizes discrimination against sexual orientation and gender identity as sex discrimination; those forms of workplace discrimination are equally unlawful under federal law. The federal government and the federal court system do offer legal remedies, though the process is a little more complicated and a lot more time consuming.
David Donovan, writing for North Carolina Lawyers Weekly, detailed several disadvantages of pursuing a wrongful termination due to discrimination through the federal system. First, discriminated individuals must first file a charge with the U.S. Equal Employment Opportunity Office (EEOC). The EEOC will then investigate the charge; sometimes, those investigations can take well over a year. Only after the EEOC dismissed the charge and sent out a “Notice-of-Right-to-Sue,” do discriminated individuals have a right to sue their employer in federal court. By that time, evidence can become lost. He also noted that pursuing a claim in federal court is generally more time-consuming and expensive than pursuing the claims in state courts. You can view his article regarding this matter at: http://nclawyersweekly.com/2016/03/30/hb2-eliminates-cause-of-action-for-workplace-discrimination/.
What You Should Do
Here are some tips of what you should do if you believe that you have been wrongfully terminated due to your sex, race, color, national origin, or religion in North Carolina:
- You should first file a charge with U.S. Equal Employment Opportunity Commission (EEOC). You will not be able file a suit against your employer if you do not process your claims with the EEOC first. You can visit their website for more information: https://www.eeoc.gov/employees/charge.cfm
- You must file a charge with EEOC within 180 days of your discharge. You can visit https://www.eeoc.gov/employees/timeliness.cfm for more information on deadlines
- You can sue your employer in federal court after EEOC has completed its investigation and gives you a “Notice-of-Right-to-Sue”
- If you wish to file a lawsuit before EEOC completes its investigation, you must request a Notice-of-Right-to-Sue.
- If more than 180 days have passed from the date you filed your charge, EEOC is required by law to give you the notice if you ask for it.
- If less than 180 days have passed, EEOC will only give you the notice if it is unable to finish the investigation within 180 days.
- Once you have received a “Notice-of-Right-to-Sue”, you will have 90 days to file your lawsuit. If you do not file your suit within that time, you may be prevented from going forward with your suit
It is important for you to pay very close attention to the procedural requirements and deadlines. If you filed a lawsuit before filing a charge with EEOC or before receiving a Notice-of-Right-to-Sue, the court may not even hear your claim. In addition to that, if you filed a suit before receiving notice from the EEOC, the EECO will stop investigating your charge. It is very important to be patient and follow the administrative rules. You do not want to be left without any legal recourse.
Conclusion
It is easy to forget, amid the controversies, that HB2 has implications that extend beyond transgender rights. It fundamentally changed how individuals can challenge wrongful termination due to discrimination in North Carolina. It is very important that you are aware of these changes because anybody can be a victim of workplace discrimination. Please contact a local attorney if you feel there is discrimination at your workplace. You do not want to take the wrong steps and be left without any legal recourse.