by Eric Ginsburg
The public debate around HB2 has largely ignored provisions that have sweeping implications for a wide swath of workers in North Carolina, reaching far beyond gender expression and identity.
As a preface to his remarks, employment lawyer David Puryear noted that the entirety of the law known as HB2 that passed in emergency session by the state legislature qualifies as “the worst kind of political pandering to our worst instincts.”
Sitting in his Adams Farm law office in southwest Greensboro, Puryear roundly condemned all of HB2, often referred to as “the bathroom bill,” a law portrayed as a rapid reaction to an anti-discrimination ordinance recently passed in Charlotte. But as Puryear quickly realized, “It’s pretty clear that it says a great many things that have nothing to do with bathrooms or who may use them.”
Instead, the law includes provisions that have serious ramifications for workers throughout the state, especially when it comes to their ability to file a lawsuit in state court for discriminatory firing.
The law isn’t just aimed at restricting someone from filing such a state suit claiming to have been fired for their sexual orientation or gender identity, Puryear said; HB2 blocks anyone from suing for wrongful termination on the grounds of any type of discrimination, be it race, national origin, disability, sex, age or religion. State law didn’t explicitly protect against wrongful termination on the basis of sexual orientation before the law, Puryear said, though it could be argued that it is covered under “sex,” but HB2 cut any debate on the matter short.
North Carolina workers can still bring discriminatory firing cases at the federal level, but Puryear said the process is much more difficult and restrictive. Among other things, federal complaints must be filed with the Equal Employment Opportunity Commission within 180 days of the most recent discriminatory employment act, and cases are then investigated to determine if the alleged victim has a right to sue, Puryear said. Other technical aspects make the process more cumbersome for plaintiffs, and there are caps on possible damages plaintiffs can recover, he said. Prior to HB2, residents could bring cases in state court within three years rather than 180 days, the technical restrictions were looser and no cap on damages existed.
In other words, the state provided much better protections to workers who were wrongfully fired — except when it came to sexual orientation — than the federal route does, and HB2 eliminated a key remedy for discriminatory treatment, Puryear said.
“I talk to people every day who’ve been fired whose main concern is the deep sense of unfairness that they didn’t deserve this, “ Puryear said, adding that now he’ll be forced to tell more people that he can’t help them.
That’s not the only way that HB2 undermines workers’ rights. Some attention around the law has acknowledged that municipalities are explicitly barred from raising the minimum wage above the state threshold of $7.25/hour, though this does not affect the ability of cities to raise the floor for their own employees, as Greensboro has done. Puryear condemned that portion of the law as well, arguing that if cities realize that their cost of living is significantly higher than places such as Bertie County, they should be empowered to act. But HB2 limits local governments in other ways, too.
The law bans cities from requiring private contractors that work with the city to pay a living wage, Greensboro City Attorney Tom Carruthers said, adding that he believes it’s doubtful Greensboro would have tried to do so anyway. Carruthers said his read on the new law says the city can still require those it contracts with not to discriminate on the basis of race, sex and other previously protected classes of people, though no such protection exists for gender identity or expression, he said.
The full impact on other municipal-level anti-discrimination practices in unclear — Carruthers said he is doing research to understand whether the law affects portions of the city’s Minority & Women’s Business Enterprises, or MWBE program. The Greensboro City Council frequently discusses the importance of MWBE participation in city contracts, and residents have repeatedly raised concerns that the city doesn’t provide enough anti-discrimination protections for businesses owned by women and people of color that want to participate in city contracting. Carruthers said that the city is explicitly permitted to maintain MWBE participation requirements when it comes to construction contracts that are $300,000 and above, adding that “the vast majority of the MWBE program survives.”
Though HB2 limits the ability of municipalities to raise the citywide minimum wage or require a living wage at companies it contracts with, the law does not affect economic development incentives, Carruthers said. That’s significant, as the city of Greensboro frequently issues incentive grants based on job creation at a specific salary mark, such as the creation of six jobs paying an average of $70,000. Carruthers called the law “overreach.”
Puryear said there are also more ramifications that are unclear or concerning. He said the law appears to allow businesses to discriminate against employees and customers alike on any grounds without any remedy under state law. That could apply to a cab company that won’t pick up from gay bars or a racist employer who only hires white people, Puryear said.
He speculated that state lawmakers included the anti-worker provisions in order to secure support from business conservatives for the law, which many commentators suggest is aimed at whipping up fanatic support from the Republican base in the upcoming election. But the opposite could just as easily be true — the controversial “bathroom bill” portion of the law provides cover for what would otherwise likely be a very unpopular anti-worker law, which could remain in place if the anti-trans part of the law is struck down in court based on how HB2 is written.
Regardless of the specifics, Puryear said the implications are concerning.
“It’s distressing that they took these sorts of steps without any discussion… about what the implications were, although I believe that whoever wrote the language knew exactly what the consequences were,” he said.