EXPLAINER: What Gov. McCrory’s executive order does and doesn’t do with HB2

EXPLAINER: What Gov. McCrory’s executive order does and doesn’t do with HB2
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As pressure from the business community continued to mount over a new state law that repealed Charlotte’s nondiscrimination ordinance, Gov. Pat McCrory issued an executive order Tuesday that seeks to take some of the heat off.

It clarified that city governments can have nondiscrimination ordinances for their own employees. For the first time, it protects LGBT state government employees from discrimination. And it asks the state legislature to repeal one particularly controversial provision.

Here’s a guide to what actually happened.

Wait, how did we get here?

1) Charlotte passed an ordinance that makes LGBT categories protected class throughout the entire city. It also allowed transgender people to use the bathroom of their gender expression.

2) The state legislature convened in an emergency session to pass a bill repealing the bathroom provisions. But the bill they came up with — House Bill 2 — went significantly further. It eliminated cities’ ability to pass nondiscrimination ordinances and eliminated individuals’ right to sue in state court for discrimination complaints.

Read this piece for more background — EXPLAINER: What happened in Raleigh with Charlotte’s LGBT nondiscrimination ordinance.

3) The business world was not happy. Major companies like IBM, Facebook and Red Ventures decried the law. PayPal announced it would no longer bring the 400 jobs they announced in the University City area. And the NBA said they would evaluate whether to hold the All-Star Game in Charlotte in 2017.

[Agenda story: PayPal left Charlotte. Could more businesses be next?]

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That fallout continued statewide. Just yesterday, Deutsche Bank said they were freezing plans to expand by 250 workers in Cary (Raleigh area).

The main business argument? That companies are trying to build inclusive work environments where top talent feels comfortable and welcome.

What does McCrory’s executive order say?

It reads like it’s addressing concerns that CEOs would have.

  • Reassures companies that they can still have nondiscrimination policies of their own for their workforces.
  • Says private companies can also do what they wish with bathroom signage.
  • Tells cities and counties that they can have nondiscrimination policies for their own employees. They just can’t have them to cover all residents of their jurisdiction.

At the same time, it doubles down on requirements that public agencies and schools have male and female bathrooms and require people to use the one of their biological sex. (Agencies/schools can, however, make “reasonable accommodations” with single-occupancy restrooms or something like that.)

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The biggest change: Sexual orientation and gender identity are now protected classes for state government employees. They cannot be fired simply for being gay or transgender.

Another big thing: McCrory is asking the legislature to repeal the part of the law that eliminates the individual right to sue over discrimination. He wants people to be able to sue in state court for wrongful termination over discrimination.

You can read the official document yourself here if you’d like.

McCrory said the order has “the goal of achieving that fine balance.”

What discrimination is still legal?

Private companies can decide to fire people solely because they are gay or transgender. They can also refuse service to people for being gay or transgender.

What’s the reaction from the business and political world?

Muted. Likely still in panic mode from the past few weeks, Charlotte Chamber CEO Bob Morgan immediately put out a statement that the executive order “sends a positive message.” The Chamber’s executive committee, made up of Charlotte’s business elite, had a similar message.

Mayor Jennifer Roberts, who pleaded with McCrory not to sign the bill into law, said on Twitter she was pleased.

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At this point, few big companies have made a statement.

What about opponents?

They say it doesn’t go far enough. They’re calling for nothing less than a full repeal of the law.

Some Democratic leaders also pointed out the seeming discrepancy in eliminating LGBT protections in major cities but adopting them for state government employees.

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What are the big remaining questions?

  • Will this placate Corporate America and convince them to stop pulling business from the state?
  • Will Republican leaders be on board with reestablishing the individual right to sue in state court?
  • What will happen with a private business discriminates against the LGBT community?
  • What impact will this have on the gubernatorial election in November?

And what I think is the biggest one:

Will North Carolina make LGBT categories protected classes across the state?

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