Abracadabra! Protections disappear

The Observer editorial board

Rep. Dan Bishop of Mecklenburg County outlines his legislation during the special session last month.
Rep. Dan Bishop of Mecklenburg County outlines his legislation during the special session last month. rwillett@newsobserver.com

Magicians, brain scientists and N.C. legislators understand a fundamental truth about humans: We can only focus on one thing at a time. We may think we’re paying attention, but really we’re easily distracted.

It’s how a magician makes a coin reappear out of your ear. And it’s how N.C. legislators, nearly unnoticed, made workplace discrimination protections that had stood for 31 years vanish.

Lawmakers said the Charlotte City Council forced them to convene an emergency special session last month by passing an LGBT ordinance that included a transgender bathroom provision. That provision posed such a threat that immediate, targeted action was urgently required.

While we were fixated on the anti-LGBT left hand, the right hand was fumbling around in its pocket, feeling for this:

“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.”

That impenetrable legalese means that employees – for the first time in decades – can no longer use state law for protection if they are fired because of age, race, color, national origin, religion or gender.

North Carolina becomes the only state in the nation to remove such protections. It joins Mississippi as the only states without them.

Many thousands of N.C. workers file workplace discrimination charges each year. Suddenly, fired workers can do so only under federal, not state, law. That’s an important change because such cases are more expensive and more time-consuming, involve more procedural hurdles and impose much stricter caps on damage awards. Corporate employers generally have more money and time than fired employees who are usually busy just trying to find another job and stay afloat.

Under the old state law, a worker had three years to file a claim. Once he did, his case often worked its way through the court system relatively quickly.

Now, state law gives workers no avenue to act. Instead, they have six months to file a complaint with the federal Equal Employment Opportunity Commission. The EEOC will then take a year or two before, perhaps, granting the right to sue. The worker then has 90 days to do so.

Once the suit is filed, it can take years to be resolved. And while the old state law had no caps on damages, fired workers at firms with 15 to 100 employees face federal caps of just $50,000 even for egregious discrimination.

State law still says that discriminatory firing is wrong. But in practice, the change snuck through by the General Assembly leaves workers with dramatically less recourse in court.

Even aside from this being a ruthless policy change, there was no urgency to do it in the one-day special session. It easily could have waited – and received genuine debate – in a regular session.

What did it have to do with Charlotte bathrooms, anyway? Nothing at all. But the hand is quicker than the eye.