The age discrimination lawsuits filed by Maryanne White and Rick Compton were both kicked out North Carolina state court recently - but not because they lost their cases. They were kicked out because of North Carolina’s infamous transgender bathroom law.
“I had no idea that there were two additional addendum attached to this bill,” Maryanne White said. And we didn’t either. It turns out, the law, aka HB 2, contains some “extra” sections, which have been almost completely ignored in the national conversation about this law. Writes Pro Publica/Mother Jones, among those provisions “tucked inside is language that strips North Carolina workers of the ability to sue under a state anti-discrimination law, a right that has been upheld in court since 1985.” In other words, North Carolina still prohibits race, sex, religion, age, national origin, and disability employment discrimination. But HB 2 removes any way for victims to enforce this law in state court. From now on, discrimination victims in North Carolina must sue only under federal civil rights laws, and only in federal court. This is no small problem.
Advocates explain that the federal system is more difficult to access, rules are more complicated, and businesses often have “significant advantages.” Compared to filing in a North Carolina court, for example, bringing a federal civil rights claim is nearly twice as expensive, victims are subject to an arbitrary cap on damages, filing procedures are more complicated, time frames are more restrictive, and there are only a handful of federal courthouses across the state. Ultimately, experts claim, these factors will discourage most victims from filing any employment discrimination cases at all. As “Erika Wilson, a law professor at the University of North Carolina who co-directs a legal clinic for low-income plaintiffs with job and housing discrimination claims” put it, “The LGBT issues were a Trojan horse.… [P]eople were so caught up in [the LGBT] part of the law that this snuck under the radar.”
Conservative-leaning groups have been trying for decades to reduce the number of civil lawsuits in the states. In HB2, lawmakers accomplished this by adding a single sentence to the state’s employment discrimination law that says: “[No] person may bring any civil action based upon the public policy expressed herein.”
Democracy North Carolina executive director, Bob Hall, explains that he too sees this legislation as a continuation of an agenda by the North Carolina Chamber of Commerce and conservative North Carolina lawmakers.
State chambers of commerce in Georgia, Indiana, Mississippi and South Carolina have all come out against similar anti-LGBT legislation, but unlike proposals in other states, House Bill 2 includes provisions that make it much harder for workers to sue for job discrimination and that bans local governments from requiring contractors to pay a certain wage. Both are key priorities for the N.C. Chamber, Hall said.
"These are the kind of things they like. They want to get rid of liability," Hall said.…
After being conspicuously silent on the matter for over a month, declining to comment when asked if they played a part in drafting the new bill, the North Carolina Chamber of Commerce issued a statement calling for reopening the path to sue for employment discrimination in state court. But instead of calling for a return to the previous law, “the Chamber proposal create[s] a new bureaucratic maze for workers unlawfully terminated.” In fact, they model their suggestions on the already inadequate federal protections.
According to Dick Taylor, head of N.C. Advocates for Justice,
The proposal would essentially graft complications of federal litigation onto state claims and create a new and expensive bureaucracy within the N.C. Department of Labor. The Chamber seeks to create new barriers for employees terminated unlawfully and new protections for employers violating the law.
And what if the U.S. Justice Department wins its case and gets a court to strike down the law? As to the “right to sue” section, a big nothing happens. As Laura Coates put it for CNN, “[U]ltimately, the reality is that the bill itself is likely a Trojan horse. Focusing on a visceral emotional response to the social policies … will allow the remaining provisions … to infiltrate unnoticed.”