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Amendment to "Bathroom Bill" Would Restore Employees

Amendment to "Bathroom Bill" Would Restore Employees' Ability to Bring State Law Wrongful Discharge Claims

The Inside Perspective
(July 7, 2016)

The North Carolina Public Facilities Privacy & Security Act—more commonly known as the "Bathroom Bill" or House Bill 2 ("HB2")—remained in the headlines over the Fourth of July. State legislators approved certain changes to the law, which they sent to Governor Pat McCrory on July 1. The Governor is expected to approve amendments to HB2 that would (again) allow employees to bring North Carolina state law discrimination claims for "wrongful discharge in violation of public policy," this time under a one-year statute of limitation. That right was previously eliminated when HB2 became law in spring 2016.

Legislators did not approve changes to other portions of HB2, including the law's requirement that transgender individuals in government facilities use bathrooms matching the gender on their birth certificates.

The ongoing attention HB2 has received in the news, on social media, and on the campaign trail has made it difficult for some North Carolina employers to discern how the law impacts their businesses. After one sorts through the rhetoric, the following points are clear:

  • HB2 does not add new legal burdens to private employers' workplace policies. Widespread interest in HB2, however, has prompted many employers to evaluate and revise their policies concerning sexual orientation and gender identity.
  • Workplace protections available to employees under federal law remain unchanged by HB2 and its amendments. HB2 does not displace discrimination laws enforced by the Equal Employment Opportunity Commission, which has taken the position that Title VII protects transgender individuals from discrimination in the workplace on the basis of their sex or gender identity.
  • The statute of limitations for state law claims of "wrongful discharge" based on race, religion, color, national origin, age, biological sex or handicap has been shortened from three years to one year in the HB2 amendments.

As debate about HB2 continues in both federal court and in the court of public opinion (e.g., the Department of Justice sought an injunction this week to block HB2), issues concerning workplace protections and gender identity are top of mind for many employees and fodder for editorial pages.  HR managers who stay current with these issues will help their companies avoid legal pitfalls and ensure that workplace decisions are based on merit or other legitimate considerations.

Note: As expected, Governor McCrory signed the proposed HB2 Amendment into law on July 18, 2016.

TIP: Pending amendments to HB2 will restore the right to pursue discrimination claims for discharge in state court. Note that unlike Title VII actions, EEOC charges are not a prerequisite for state law "wrongful discharge" actions.


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