For purposes of this blog post, I must note I am not licensed to practice law in North Carolina, and any opinions given herein are solely personal, not intended to be legal advice. If you require assistance with a legal matter in North Carolina, please discuss with an attorney licensed in that State.
The news has focused on North Carolina’s recent law regarding restrooms and discrimination. The city of Charlotte enacted an anti-discrimination ordinance expanding the protected persons to include gay, lesbian and transgender people. In response, the North Carolina Legislature quickly passed a statute–HB2 (.pdf)–superseding any lower government—such as Charlotte—from imposing a law or ordinance protecting gay, lesbian and transgender people.
Additionally, the statute prohibited any lower governmental entity from raising the state minimum wage above the North Carolina Legislature’s determined amount.
The focus has been on the LGBT aspect, but in reviewing the law, we find interesting phrasing. Article 142-422.2(a) of the North Carolina Statues states “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, biological sex or handicap by employers which regularly employ 15 or more employees.”
The first reaction being, “Is North Carolina not interested in protecting persons against discrimination if the employer has only 14 employees?” Why is it completely acceptable to North Carolina to discriminate based on race, religion or color if one only employees 10 people? What makes “15” the magic number whereby the state of North Carolina suddenly jumps up, loudly proclaiming, “Hey! Now we are concerned about you not hiring someone because they are a Christian. Now you shouldn’t fire someone because they are Black. Or shouldn’t demote them because they are female. Back when you had 10 or 12 employees—that was perfectly acceptable. But now…NOW…you have 15 employees, and it is not.”
Does that seem odd to you? It gets more bizarre….
The newly passed legislation added the following language to Article 143-422.3: “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.”
Get it? Even if the employer discriminates against you, the Statute removes any right for you to do anything about it under State law! Of course, one can always pursue an action under Federal Law, which supersedes North Carolina law, much like North Carolina is doing to Charlotte. But these actions must be taken in Federal court—generally far more difficult with less likelihood of recovery.
So this long-winded Statute pontificates about the “wonderful” public policy of North Carolina against discrimination in the workplace, and then says you can’t do anything about it in North Carolina Courts. Making the “15 or more employees” requirement even more puzzling.
Reading the statute as written, North Carolina, as a public policy, is not interested in protecting employees against discrimination if the employer regularly employs 14 or less employees. And if the employer does discriminate, North Carolina won’t do anything about it. North Carolina, as a public policy is interested in protecting persons against discrimination on the workplace when there are 15 or more employed persons. But North Carolina still won’t do anything about it, if discrimination occurs.
Making one wonder why even have the 15 person differentiation in the first place? The “public policy” is mere verbiage and empty promises—one’s only recourse is in the Federal system.
In Michigan, we have the Elliott-Larson Civil Rights Act prohibiting discrimination on certain protected classes. (While Michigan, as a State, does not protect sexual orientation, we are unusual in protecting persons on the basis of height and weight. You can’t be fired for being too short.) Our statute enforces the stated civil right.
While Michigan’s statute does not make specific reference to “public policy,” it is a strong argument Michigan demonstrates an actual desire to prohibit discrimination, whereas North Carolina has…and continues to…give it lip service with no real intent.
In this rush for litigation, North Carolina has exposed its ambivalence to discrimination far beyond bathrooms and transgender people. People often discover the law does not provide a remedy for their particular hurt or damage, and I explain, “I am a slave to the law, not a master of it. If you have a problem with the law—as written—the person to change it is your legislator, not your attorney.” (Although we often find ways to work around the law as best we can.)
I wonder when North Carolinians will start requiring their legislators to put actions behind the words; to enforce the “public policy” they claim to uphold.