For almost thirty years, North Carolinians who have been fired because of their religion, race, color, national origin, age, sex, or disability have been able to bring claims in North Carolina state courts under the common law theory of wrongful discharge in violation of public policy (“WDPP”). The heart of this claim is our state’s anti-discrimination law, the North Carolina Equal Employment Practices Act (NCEEPA). In the recent “special session”, our legislators enacted a law that guts the heart of WDPP.
Rather slyly embedded into the now notorious “Bathroom Bill” is a provision that prohibits employees from using our anti-discrimination statute to bring a wrongful discharge claim. In other words, this law abolishes an employee’s right to sue in North Carolina state courts for unlawful discriminatory termination. In one 24-hour period, with little public hearing or debate, North Carolina lawmakers and the governor have overturned 30 years of court precedent. By prohibiting NCEEPA as the basis for civil action, this law has essentially eliminated state law sanctions for employers who can now fire its employees on the basis of race, sex, age, religion, or national origin with no state law consequences.
Some might argue that, “why do you need a state right of action when you have a federal claim?” Here are some things to consider:
- Federal claims brought in federal courts are much less accessible to North Carolinians:
- Federal claims must be filed first with a federal agency, the EEOC, before filing in federal court. The EEOC frequently takes 6 months or more to investigate the claims as it is an overburdened and under-resourced federal agency.
- An employee must file his/her EEOC charge within 180 days of the unlawful act. Many employees, unaware of this short timeline, lose their legal rights altogether as a result of missing the deadline.
- Federal court costs more for both employers and employees to litigate employee claims.
- There are fewer federal courts in NC than state courts meaning that it will be more challenging for some parties to litigate claims in federal courts.
- Forcing businesses to litigate employment discrimination claims in federal court is not better for North Carolina companies.
- There are statutory attorneys’ fees available to plaintiffs under federal anti-discrimination laws that are not available under state law. The attorney fee awards in federal court can dwarf the actual compensatory awards. Forcing more cases into federal court could actually cost North Carolina business more money.
- By eliminating employees’ rights to pursue legitimate discrimination claims in North Carolina courts, we unnecessarily force our citizens to the federal government and invite excessive federal intrusion into issues that are better handled at the state level in North Carolina.
- We now join Mississippi as the only two states in the union which do not offer our citizens state law protection against the most basic forms of discrimination in private workplaces. Being considered a state that does not value principles of equal opportunity for its citizens does not help our businesses in the recruitment or retention of a highly skilled workforce.
- Some large businesses have already voiced their opposition to doing business in North Carolina as a result of this law, including Red Hat, Biogen, Dow Chemical, NCAA, American Airlines, ESPN and Paypal.
Finally, the process used to enact this law – a special session convened for the first time in 35 years, limited pubic hearings and debate, no input from experts or stakeholders – violates our notions that law making should be conducted by a well-informed and thoughtful body committed to integrity and fundamental fairness in the execution of its authority.
What we have now is a law that limits our citizen’s access to their state court system of justice, undermines our economic growth prospects and sends the wrong message about North Carolina’s commitment to equal opportunities in the workplace.
In HB 2, our representatives inexplicably chose to protect employers who discriminate against their employees from our state’s system of justice. The solution to the problem created by the statute is simple – eliminate the newly added sentence set out in 422.3 or repeal the law altogether.