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Sean Herrmann is an associate at Charlotte law firm Van Kampen Law, PC.
North Carolina has a massive problem. Last week, its employees suffered a tremendous blow and few realize it. What’s more, the way that blow came about reveals an even darker problem that should make us all think long and hard about the condition of our state government.
HB2 was about more than bathrooms and LGBT protections. It turned back the clock on well-established forms of workplace discrimination. Simply put, it impeded progress like a brick wall and sent us ricocheting into the past.
In the 1970s, North Carolina passed a law protecting its citizens from workplace discrimination. Due to the way it was written, that law had very little actual effect because it did not provide for a means to take discrimination issues to court. It was largely symbolic. In the 1980s, that law gained teeth and wrongfully terminated employees could turn to North Carolina courts to be made whole for termination decisions made on the basis of race, sex, national origin, religion, disability, and age. In other words, discriminatory employers could be held accountable. The State made clear that its public policy was to protect against workplace discrimination. Indeed, countless North Carolinians have used this as a means to protect themselves from these specific forms of discrimination.
That all went out the door on Wednesday. Buried deep in the much-discussed and debated HB2 is this seemingly innocuous language:
“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.”
Eliminating “civil actions” simply means “cannot sue” and not being able to sue, or go to court, puts workers right back where they were in the 1970s. That is, for the first time in decades, North Carolina courts closed their doors to those fired because of their race, sex, age, disability, national origin, or religion. Those wrongfully terminated are left with only federal discrimination laws, which are largely inferior to the now defunct state discrimination claims. North Carolina joins Mississippi as the only two states that do not offer their citizens state law protection against the most basic forms of discrimination. Let that sink in.
HB2 is catastrophic for all North Carolinians, not only those discriminated against by their employers. For a state that loves to talk about growth, North Carolina is doing all that it can to turn off the very people it is, or at least should be, trying to attract. Forward-thinking, talented people won’t want to live in a state that blatantly encourages LGBT discrimination and now effectively sanctions basic forms of workplace discrimination. And the business community isn’t exactly thrilled, either — companies like Google, PayPal, American Airlines, Red Hat, Biogen, Dow Chemical, and others have already come out against HB2. The NCAA is “monitoring the situation.” NBA Commissioner Adam Silver should be strongly reconsidering his decision that Charlotte host next season’s NBA All-Star Weekend. I would be shocked if these conversations aren’t happening right now.
But the way in which this change came about might be even worse. The General Assembly didn’t hold a special session for the first time in 35 years to respond to Charlotte’s nondiscrimination ordinance —it used it as a diversion to roll back back rights for North Carolina employees. When lawmakers framed the debate as one about “bathrooms” they had already won. Calling House Bill 2 a Trojan horse is misleading. Trojan horses are far less deceptive. It’s more like a plague infested rat scurrying into a sleepy Medieval European town. The rats were pests, to be sure. But the hidden disease was far more destructive. The General Assembly and our Governor passed a rat of a Bill that, itself, is quite disgusting. Unfortunately for North Carolinians, that rat carried something even more sinister.
The rest of the world is condemning our rat problem, and it certainly deserves the condemnation. But the plague hiding beneath is even more grave. HB2 is an enormous problem and it isn’t going to fix itself. There are two essential things that you can do.
First, visit http://www.ncleg.net/representation/WhoRepresentsMe.aspx to locate contact information for your representative and ask him or her to ensure that the doors of our state courts are re-opened to discrimination victims of all kinds.
Second, vote! Find out who supported HB2 and get them out of office.
