The horrific new North Carolina law that ensures the right to discriminate against LGBTQ Americans gets even more horrific the more we find out about it.
A section of the new law alters the state's law that had allowed private sector employees to sue their employers under state law discrimination on the basis of of race, religion, color, national origin, age, sex or handicap.
"It takes away a right that people have had for 30 years," Bill Rowe, the director of advocacy at the North Carolina Justice Center told TPM on Friday. "It’s a pretty big change that caught us all by surprise."
Due to differences between filing a suit in federal court, as opposed to state court, this change could discourage people from filing an employment discrimination claim, Rowe said. The statute of limitations for filing in federal court is much shorter, and the court filing fee is higher on the federal level as well. There are also fewer federal district courts in the state, making it less convenient for some workers to sue.
Since 1977, North Carolinians have been able to sue former employers for discrimination based under a legislative declaration that says it "the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees." This new law amends that statute by saying it "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." The upshot of which is any employee who has been discriminated against by their employer can only sue under federal law.
This is a big deal, say a number of lawyers. Like Kathryn Sabbeth, a professor at the University of North Carolina. "Based on the plain language of the statute," she told TMP "this language does appear to take away a private right of action whose existence has been settled law for decades." To repeat—it takes away a private right that had been settled law for decades. That, says Carolyn Wheeler who practices employment law in Washington, DC, is "extraordinary." She added "That in some ways seems even more shocking than the stuff they were specifically debating. It's more far-reaching."
The state legislators who passed say it's no big deal, because there are always the federal laws there to protect people. Except for this part—the North Carolina law has a three year statute of limitations in which a claim can be filed. To file a federal complaint, the individual has just 180 to file a claim at the Equal Employment Opportunity Commission and if the EEOC approves the complaint, just 90 days to file a lawsuit. That is not the same as three years, for any Republican lawmaker reading this who has trouble counting.