WS Chronicle

NC Policy Watch

Rob Schofield

Guest Columnist

There are a lot of mysteries surrounding the recent legislative session in which the North Carolina General Assembly and Gov. Pat McCrory rammed through a radical overhaul of several important state laws and local government ordinances in less than 12 hours.

As was noted in a post on The Progressive Pulse on [March 31] yesterday afternoon, one of the most obvious ones involves the North Carolina Chamber and its deafening public silence:

“Is the Chamber — a group whose fingerprints are on virtually every major piece of legislation that impacts the state’s business community —really completely disinterested?

“Common sense and the rumor mill on Jones Street tell us that this is simply impossible.”

According to numerous observers of the kangaroo special session, there’s a reason that the Chamber stayed quiet — namely, that it was bought off with the broad language added to the bill at the last minute to deep-six local living wage ordinances and to bar all state court lawsuits against employers who fire workers for discriminatory reasons.

“It is a plausible theory. Noxious and revolting, but utterly plausible.”

The Chamber’s silence was rendered all the more striking and perplexing by the release late yesterday of a massive new list of opponents of the new law that features a veritable “who’s who” of the state’s and nation’s business establishment. This is from that letter:

“Discrimination is wrong, and we believe it has no place in North Carolina or anywhere in our country. As companies that pride ourselves on being inclusive and welcoming to all, we strongly urge you and the leadership of North Carolina’s legislature to repeal this law in the upcoming legislative session.”

The religious right’s contradictory stance

Still, for all the confusion surrounding the Chamber’s silence, the most bizarre and seemingly inexplicable aspect of the “Public Facilities Privacy and Security Act” involves conservative Christian groups and their silence over one of the law’s most outrageous and least-well-reported sections.

While much has been made of the law’s treatment of restrooms and other pub-lic accommodations and its affirmative ban on local ordinances that afford protections in those areas to LGBT people, consider the following language from the new law as it amends the state Equal Employment Practices Act:

“This Article 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.”

What that means, in plain English, is that North Carolina has officially joined Mississippi as one of only two states in the U.S. to bar all lawsuits in its state courts for employment discrimination.

That is not a misprint. From now on, North Carolinians who are fired from their job because they are an African-American, a woman or, yes, a conservative Christian, have no right to sue in state court.

Here’s how worker advocates at the North Carolina Justice Center describe the backdrop and impact of this remarkable shift:

“Since 1985, workers in North Carolina who have been fired because of their religion, race, color, national origin, age, sex, or handicap have been able to bring claims in state court under the common law theory of wrongful discharge in violation of public policy, based upon the public policy stated in action based on the North Carolina Equal Employment Practices Act (NCEEPA), N.C. Gen. Stat. § 143-422.1, et seq.

“HB 2 eliminates state law remedies for employees who are fired based on their race, religion, color, national origin, age, sex or handicap. Specifically, section 3.2 of the bill ended an employee’s private right to sue an employer who fires him or her for any one of these discriminatory reasons. As a result, employers can fire their employees simply because they are black, or a female, or Christian, without fear of redress in state courts…

“By eliminating the NCEEPA as the basis for any civil action, the General Assembly has severely restricted victims of discrimination from meaningful redress. As defenders of HB 2 were quick to point out, employees can still bring a claim under federal anti-discrimination laws, but for many victims of workplace discrimination that is not a viable option. Federal courts are much less accessible because of the high cost of filing a claim, time-consuming administrative requirements, and the very short deadline to bring a claim (180 days as com-pared to three years in state court). Moreover, the Human Relations Commission, which the General Assembly has not funded adequately, does not offer victims any redress unless their employer agrees to conciliate.”

Now, consider the fact that this action was taken with the expressed endorsement of groups dedicated to the defense of “Christian” values – groups like the N.C. Family Policy Council, the Christian Action League and the N.C. Values Coalition.

It is, in other words, a truly stunning and almost unfathomable development – at least at first blush. A modern American state has enacted a sweeping statute that takes its law backward on a fundamental premise of human and civil rights (the right not to be fired because of your race, sex or religion) to the mid-20th century (and maybe even the mid-19th century). What’s more, it has done so with the ringing endorsement of conservative Christian advocacy groups

–groups whose members are now, as a result, expressly unprotected in state law because of their religious beliefs!

Making sense of the seemingly nonsensical

So what are we to make of this amazing development? Are the advocates employed by conservative Christian groups utterly incompetent? Have they been (as the Governor complained he was during a truly pathetic moment on Monday [11] when he was asked by reporters about specific controversial provisions), “blindsided” by the actual contents of the bill they helped make law just a few days earlier?

Maybe.

Sadly, however, another more plausible and troubling explanation seems just as likely: namely, that the conservative Christian groups made a knowing and cynical political calculation. Just as the NC Chamber bit its tongue on the question of discrimination against LGBT persons to gain a new power over employees, the religious right held its fire on giving away the right of its members to sue for discrimination so that it could pursue its longstanding holy grail of keeping LGBT persons marginalized and unequal.

Rob Schofield, director of research at N.C. Policy Watch, has three decades of experience as a lawyer, lobbyist, writer, commentator and trainer. At N.C. Policy Watch, Rob writes and edits frequent opinion pieces and blog posts, speaks to various civic groups, appears regularly on TV and radio and helps build and develop movements for change. 

Contact him at rob@ncpolicy-watch.com or 919-861-2065. Follow him @Rob_Schofield