Friday, April 15, 2016

North Carolina, HB2, and the Right to Sue for Employment Discrimination

    Meanwhile, back in North Carolina, there is still no private right of action for employment discrimination under North Carolina law—except now, North Carolina Governor Pat McCrory says he wants to “restore” it.  There is, however, a third way.

    By now, you’ve heard the story: On a single day (March 23), the North Carolina House and Senate passed, and the Governor signed, HB2 into law.  Many have blasted HB2’s bathroom provisions as motivated by prejudice against transgender people and as unconstitutional, too.  HB2 also preempts local anti-discrimination ordinances, including those that had covered sexual orientation and gender identity, as well as local wage and hour laws. 

    But as a few quickly noticed, HB2 had also supplanted existing law affording a private right of action to enforce the North Carolina Equal Employment Practices Act (EEPA).  Before HB2, EEPA had declared:

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 abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.

As originally passed in 1977, EEPA had declared such a “public policy” but afforded no real enforcement mechanism.  Years later, however, some judges began letting plaintiffs use the common-law tort of wrongful discharge to sue for violation of EEPA’s expressed public policy.  Not everyone was happy with this.  For example, Cohen (1995, p. 55) complained that, by letting plaintiffs use the tort of wrongful discharge to enforce EEPA, judges had changed EEPAfrom a toothless legislative compromise into an apparently limitless source of employment discrimination claims”—something the legislators that originally passed EEPA in 1977 wouldn’t have wanted. 

    Then came HB2, which supplanted the existing legal grounds for private tort suits to enforce EEPA by adding this to EEPA itself:

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.

The reaction, however varied (e.g., here, here and here, and also this interview with fellow law professor Brian Clarke), generally hasn’t been favorable.

    So, now to our latest episode, in which Governor McCrory issues an Executive Order No. 93, dated April 12, 2016, which includes this statement: “I support and encourage the General Assembly to take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination.”  And from the Governor’s accompanying video statement: “I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts.”  Who put HB2’s no-civil-action sentence in there in the first place?  The Governor didn’t say, and no one else is talking—for now, that’s an unsolved mystery. 

    What will North Carolina’s legislators do now?  Repeal HB2’s no-civil-action sentence?  Do nothing?  There is a third way. Amend HB2’s no-civil-action sentence like this:

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 any person may bring any civil action based upon the public policy expressed herein.

Instead of just restoring the law to pre-HB2 days, now—almost forty years after North Carolina passed EEPA as a “toothless legislative compromise”— maybe it’s finally time for EEPA to get some teeth of its own.

 

 

--Sachin Pandya

https://lawprofessors.typepad.com/laborprof_blog/2016/04/north-carolina-hb2-and-the-right-to-sue-for-employment-discrimination.html

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