In March, the North Carolina state legislature rushed through a big, complicated bill known as HB2. It was introduced, passed, and signed all within a single day.
The bill gained the most notoriety for its starkly anti-LGBT provisions, including the erasure of any protections against discrimination based on sexual orientation and gender identity at the local level and a ban on transgender people using bathrooms that match their gender unless they change their birth certificates.
But the state’s new law is much broader than that. Already, it is having ramifications beyond the anti-gay and anti-transgender provisions. Nearly anyone in North Carolina — gay and straight, transgender and cisgender — could be hurt by HB2’s provisions.
Stuck In Limbo
One plank of the law that’s coming home to roost bars individuals from bringing “any civil action” based on state nondiscrimination protections, which includes the Equal Employment Practice Act, a law barring employers with 15 or more employees from discriminating on the basis of race, religion, color, national origin, age, sex, or disability.
That means an employer could fire a worker solely for being black without worrying about a state lawsuit on their hands.
“Before HB2 passed, if your boss fired you because you were black or you were white or because you were a woman or because you were a man, you could sue your employer under state law for redress,” Allan Freyer, director of the Workers’ Rights Project at the North Carolina Justice Center, said. “Now under HB2 those protections are gone. You can be fired for any discrimination.”
What that means is that people who want to bring discrimination cases are stuck in limbo or downright turned away. The lawyers representing potential plaintiffs say they aren’t quite sure what HB2 means, which means clients are free to file a lawsuit and see what the courts determine, explained Laura Noble, managing partner with the employment firm The Noble Law Firm. “They’re hesitant to make their clients the guinea pig in this battle,” she noted.
For their part, attorneys who would defend those accused of discrimination are arguing people don’t have standing to bring a state discrimination case and that it would be dismissed out of hand.
“I know a lot of people who have to tell potential clients, ‘You only have a federal case, you don’t have access to a state law claim anymore,’” Noble said.
And that alone could mean someone has no recourse at all.
Noble recounted the case of one potential client who came to her a couple of weeks ago who had been fired from her position at a parochial school. “She was claiming she was terminated on the basis of her age,” Noble said. “If that’s the case, she may not have a federal claim at all. Title IIV [of the Civil Rights Act] doesn’t apply to her,” given that Title IIV doesn’t enumerate protection from age discrimination, although there are other federal laws that do. “She’s the first one I know who literally has no recourse whatsoever for a discrimination case in North Carolina,” she added.
The Problem With Federal Court
Others can still avail themselves of the federal system. But that is often easier said than done. There are a number of reasons why state courts are often more appealing than the federal system. There are fewer attorneys who practice in the federal courts, making it harder to find representation. The filing fees are typically much larger — in the case of North Carolina versus the federal courts, it’s double.
“That’s not chump change for a lot of people to just start basically — in their minds — a bureaucratic process,” Noble said.
Given that there’s a backlog at the federal judiciary, motions can sit for months before they get any response, something that’s not a problem at the state level. The rules are often administered in such a way at the federal level that plaintiffs have to jump through many more hoops. And cases filed in federal court are instantly posted online, which can expose some employees who don’t want the attention brought to them. “I personally have clients who say, ‘No, no I’m not going to do that, it’s too daunting,” she said.
You can be fired for any discrimination
Meanwhile, the potential payoff in state versus federal court can be completely different. Before HB2, a state age discrimination case in North Carolina could seek remedies for pain and suffering, including the stress of being wrongfully fired. That isn’t true under federal law.
“It really is not fair to say that there’s no state law, no worries, you can go to federal court,” Noble said. “Those are not comparable claims or venues or potential results.”
It’s nearly impossible to know exactly how many state residents have been stymied in their quest for justice through the state court system, especially because the state doesn’t have an agency or depository that would keep track of these kinds of filings, Noble explained. But she did point out that previously, 95 percent of dispositions in North Carolina have been resolved through state courts, rather than federal ones.
The problem may extend beyond people who try and fail to file a claim. Damon Seils, an alderperson in the North Carolina town of Carrboro, worries that it sends a broader message to residents at risk of marginalization.
“It is the policy of the state of North Carolina that we have these categories and you’re protected, but you can’t do anything to ensure that you’re protected,” he said. “They have no remedy and now live in a state that is sort of openly hostile, and also that no longer defines or even allows gender identity or sexual orientation to be legitimate categories for protection.” Many people may not think they are protected from discrimination.
Democratic state lawmakers now say they are working on trying to change HB2, particularly bringing back the ability to sue under state nondiscrimination laws, although other pieces could remain intact. It’s unclear what that will look like and whether it can pass before the session ends.
“It comes down to a battle of wills between people who want to send one kind of message about North Carolina and those of us who want to send another,” Seils said.