In 2016, North Carolina was in the national spotlight. Bruce Springsteen was canceling concerts. The NBA All-Star game was moved from Charlotte, and the NCAA and the ACC wouldn’t play their tournaments in the state. It was all because of the “bathroom bill,” also known as House Bill (HB) 2.
Bathroom Bill Fallout
HB 2 was prompted by the desire to overturn a Charlotte ordinance that (1) banned discrimination against LGBT people in the providing of public accommodations and (2) allowed transgender individuals to use the bathroom of their choice, but its actual scope was much wider. The bill created huge controversy and was the subject of a year-long political battle.
Ultimately, HB 2 was repealed and replaced with HB 142, a compromise. While the replacement bill repealed HB 2’s bathroom provision, it also provided that no local government could enact an ordinance regulating private employment practices or public accommodations. The latter provision was scheduled to remain in place until December 1, 2020.
Cities, Counties Begin to Act
Now that the expiration date has come and gone, several local governments have moved ahead to establish nondiscrimination ordinances covering businesses within their jurisdictions. Ordinances have been approved in Chapel Hill, Carrboro, Hillsborough, Durham, Greensboro, and Orange County. Additionally, Charlotte has an antidiscrimination ordinance on its agenda for a future meeting.
The ordinances cover the traditional protected categories such as race, sex, and national origin, but many also add new categories not explicitly covered by federal or state law:
- Durham’s ordinance prohibits discrimination based on familial status, sexual orientation, gender identity, and “protected hairstyle,” which is defined as “any hairstyle, hair type, or hair texture historically associated with race, such as, but not limited to, braids, locks, twists, tight coils or curls, cornrows, Bantu knots and afros.”
- Greensboro’s ordinance also prohibits discrimination based on hairstyles associated with a particular race or national origin.
- Chapel Hill and Carrboro add protected categories of creed, gender identity and expression, and marital or familial status.
- Orange County lists “source of income” and “political affiliation” as protected categories.
Greensboro and Durham have created processes for discrimination charges similar to the Equal Employment Opportunity Commission (EEOC), and Greensboro recognizes a private claim for alleged violations.
The ordinances in Chapel Hill, Carrboro, Hillsborough, and Orange County are now in effect. The ordinances in Greensboro and Durham become effective July 1, 2021.
If you have employees who work in the above locations, you should review the ordinances that apply to you and determine what legal obligations you now have. We expect other cities and counties will jump on the bandwagon, so we will continue to monitor new ordinances.
While the sentiment behind the ordinances is laudable, they do create the unfortunate effect of not having uniform legal obligations across the state. You now must pay attention not just to federal and state law but also whether a local law effects your employment law obligations.