North Carolina’s new law aimed at blocking discrimination based on race, biological sex, color, religion and national orientation — but not sexual or gender identity — is creating a national firestorm.
We asked two employment-law experts in North Carolina for their perspectives. Luke Largess, a Charlotte lawyer with Tin Fulton Walker & Owen, was a lead lawyer for the plaintiffs in the 2014 case that successfully challenged North Carolina’s ban on same-sex marriages. Gregory Wallace is a constitutional law professor at Campbell University School of Law.
They have very different opinions of the House Bill 2. But they agree on these aspects of the law:
- If a business owner wants to discriminate against gay, lesbian or transgender people, he may do so without recourse from the state of North Carolina.
- North Carolina previously did not have a “public accommodations” law involving how to deal with discrimination in the public realm.
- Since 1986, North Carolina has had an employment-practices act that allowed people to bring discrimination claims in state courts. These state-level claims are often attached to federal lawsuits involving alleged discrimination. That is no longer permitted.
Wallace makes these additional points:
- North Carolina is among 32 states in the U.S. that do not provide any anti-discrimination protections for gays, lesbians or transgender people.
- For those who are protected and want to complain, the new law sets up a state government agency to resolve complaints of discrimination in public situations. It is akin to the federal Equal Employment Opportunity Commission, which must issue a “right to sue” opinion before a complaint can be filed at the federal level.
- The law is unclear about whether state government may sue a business for alleged discrimination. The person who is aggrieved may not sue.
- The new law also does not provide protections based on age, pregnancy, marital status and military service. For example, a health club may deny membership to a senior citizen simply because it prefers to only enroll younger people.
Largess makes these additional points:
- The trend in federal courts is to provide more protections to prevent discrimination based on sexual orientation.
- Precedent from Supreme Court decisions makes it very likely the North Carolina bill will be struck down.
- Spiteful comments about transgender people by N.C. lawmakers show their disrespect and discriminatory views.
Final comments:
“This law puts North Carolina in the mainstream of public accommodations and other anti-discrimination laws,” Wallace says. “The political rhetoric on both sides is quite intense.”
“The General Assembly is refusing to recognize that sexual orientation and gender identity are core issues of people’s being, rather than being a choice similar to favoring the Yankees over the Red Sox,” Largess says. “It’s also a bizarre ratcheting down of everyone’s rights in the process of declaring that gay and lesbian people don’t have their rights.”