A law to overturn Charlotte’s effort to extend bathroom rights and other protections to the LGBT community has mushroomed into North Carolina’s latest civil war over culture and the law.
Critics say the state’s new “Public Facilities Privacy & Security Act” discriminates against LBGT North Carolinians while undermining important workplace protections for all workers – rolling back more than 30 years of legal precedent in the process.
The law, introduced by Rep. Dan Bishop, a Charlotte Republican, also prohibits cities from raising the minimum wage or enacting so-called living wages. During a Thursday speech in Charlotte, Mayor Jennifer Roberts said the measure could have a disproportionate impact on women who traditionally are paid less.
Charlotte attorney Jake Sussman said he’s not sure Gov. Pat McCrory or GOP legislative leaders “fully contemplated or understood the havoc this law will create.” He says the law rewrites the state’s workplace discrimination policies, violates Title IX and other federal statutes and throws billions of education dollars and other federal programs into jeopardy.
“That’s what happens when you shove groundbreaking legislation down the throats of your colleagues in only a few hours, and when you legislate based on ugly stereotypes,” said Sussman, whose firm has sued the state over same-sex marriage and other cultural/legal issues in the past.
Sarah Preston, acting executive director of the state office of the American Civil Liberties Union, said that the new law clearly “comes out of a place of animus to discriminate against certain groups” and demands a legal response.
“We’ll be challenging this law,” she said. “What’s especially troubling and interesting to me is the idea that we are not going to trust local government to assess their community and determine what additional protections might be appropriate.”
Bishop said Thursday that his bill corrects a radical change in the state’s public accommodations law that the City of Charlotte had no authority to make. It also clarifies state workplace-discrimination statutes that had been broadened and clouded by the courts, he said. Meanwhile, he dismissed the criticisms of the new law by mostly liberal attorneys as exaggerations, lies and “BS.”
“For those who insist that we’ve made some grand, sweeping changes ... they are lying,” Bishop said, describing the changes as mostly “trivial, marginal and purely procedural.”
While the law eliminates the rights of workers in certain protected groups to sue in state courts over discriminatory employment practices, Bishop said the same legal options remain available in federal courts, with few differences.
At the heart of the debate is language in the law that excludes the LGBT community from the protected classes spelled out in state law. While Bishop and his peers kept wording that upholds a person’s right to hold a job free of discrimination on account of “race, religion, color, national origin, age, biological sex or handicap,” it eliminates the right of those people to sue under common law in state courts if that right is compromised.
In that way, it tracks the original law, which did not authorize a discriminated party’s right to use the state courts. But over the last three decades, federal and state court rulings have allowed workplace-discrimination lawsuits because they involve a breach of public policy, in the same way that a truck driver can’t be fired if he refuses to work hours that jeopardize highway safety.
“Up to now, you couldn’t fire someone in violation of public policy set out in this statute. That’s been taken away in a very sneaky way that had nothing to do with the purpose of this legislation,” says John Gresham, a law partner with Sussman who has taught and practiced employment law for more than 40 years.
Critics acknowledge that employees who feel they have been discriminated against can still file complaints with the U.S. Equal Employment Opportunity Commission, which will investigate and decide whether an individual has a case that can be taken to federal court. But Gresham called the federal process onerous and said it can take years to complete. It also gives employees only a six-month window to file a case, compared with three years in the state.
Charlotte attorney John Wester, a registered Republican, says the new state law sets up a potential confrontation between the state and the U.S. government over school money. Federal law already includes sexual orientation and gender identity under sexual-discrimination statutes, he said. Given the amount of federal dollars that stream into the state’s colleges and universities, Wester wonders if the Department of Education might now use Title IX, which prohibits discrimination in education programs, as “a weapon against North Carolina.”
Bishop, who has announced a bid for the state Senate, says the state’s law eliminates no employment rights that are not readily available through the federal portal.
He said the public facilities act resurrects the original intent of the state’s discrimination laws and guards against a flurry of “invented classes” that could one day demand legal protections they don’t deserve.
Earlier this month, he criticized the Charlotte City Council for “kowtowing to a small group of radical LGBT activists.”
“A small group of far-out progressives should not presume to decide for us all that a cross-dresser’s liberty to express his gender nonconformity trumps the right of women and girls to peace of mind,” he said.
Staff writer Mark Price contributed.