North Carolina Gov. Pat McCrory (R) late Wednesday night signed rushed legislation that, as is widely known, eliminates local governments’ ability to pass anti-discrimination measures to protect gay and transgender individuals. But what received less immediate attention was that the new law guts workplace discrimination protections for virtually everyone.
A section of the new law alters the state’s law that had allowed private sector employees to sue their employers under state discrimination law discrimination on the basis of race, religion, color, national origin, age, sex or handicap.
“It takes away a right that people have had for 30 years,” Bill Rowe, the director of advocacy at the North Carolina Justice Center told TPM on Friday. “It’s a pretty big change that caught us all by surprise.”
Due to differences between filing a suit in federal court, as opposed to state court, this change could discourage people from filing an employment discrimination claim, Rowe said. The statute of limitations for filing in federal court is much shorter, and the court filing fee is higher on the federal level as well. There are also fewer federal district courts in the state, making it less convenient for some workers to sue.
While North Carolina never had a clear anti-discrimination law similar to those in other states, plaintiffs had been able to use a legislative declaration passed in 1977 to file lawsuits against their former employers regarding discrimination based on race, religion, color, national origin, age, sex or handicap.
The new law amends the statute by declaring that it “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.”
Lawyers say that this new language eliminates employees’ ability to use state law to file discrimination suits, leaving them only able to use federal law to sue former employers.
“Based on the plain language of the statute,” Kathryn Sabbeth, a law professor at the university of North Carolina told TPM, “this language does appear to take away a private right of action whose existence has been settled law for decades.”
Carolyn Wheeler, a lawyer in Washington, D.C. who works with employment discrimination cases, described the change as “extraordinary.”
“That in some ways seems even more shocking than the stuff they were specifically debating. It’s more far-reaching,” she said of the provision that eliminates employees ability to file a discrimination lawsuit under state law.
Republican state lawmakers have brushed off concerns that the new bill eliminates an avenue for fired employees to seek legal recourse.
State Rep. Dan Bishop, one of the bill’s sponsors, called the change “an exceedingly minor procedural difference,” according to Charlotte television station WBTV.
He acknowledged to WBTV that the new law will eliminate people’s ability to file workplace discrimination lawsuits on the state level, but noted that individuals can still use federal law to file a suit.
“You’re eliminating the state cause of action, but who cares if you get the exact same result?” he said, according to WBTV.
“The remedies that are available under federal law are far more robust under federal law, as things stand anyway. So, there’s no harm,” Bishop told WRAL.
And during a committee hearing on the bill, Republican state Sen. Buck Newton said that lawmakers did not intentionally change individuals’ right to sue.
“Our intent was to keep the status quo and not create new right of action,” he said, according to the News & Observer. “It doesn’t change anything currently in existing law that relates to the ability to bring a cause of action.”
But losing a state right to sue is significant, lawyers and advocates said.
Geraldine Sumter, an attorney who works with employment discrimination issues in Charlotte, told TPM that losing the ability to sue under state law will be an inconvenience to those looking to file a claim.
Under state law, the statute of limitations for filing a claim is three years, whereas individuals only have 180 days to file a claim at the federal level with the Equal Employment Opportunity Commission (EEOC), Sumter said. And after the EEOC gives an individual the go-ahead to sue the employer, they only have 90 days to file a lawsuit, according to Sumter.
Rowe agreed that the difference in the statutes of limitations could have an impact.
“Any time you reduce the statute of limitations on a claim from three years to basically six months, you’re going to cut some people out of their ability to file a claim,” he told TPM.
Both Sumter and Rowe pointed out that there are fewer federal district courts in the state, which may require individuals to travel outside of the county in which they reside to go to court. And Sumter said that the filing fee in federal court is twice as much as the fee in state court.
Rowe also emphasized how quickly lawmakers decided to eliminate the ability for employees to file lawsuits under state law.
“There’s a process problem here about changing something that’s been the law for 30 years in North Carolina to protect people from discrimination in their state court and changing it in such a manner where there’s little notice about it, little opportunity for discussion or debate or even to understand what the ramifications may be,” he said.