Employment Law Daily North Carolina law passed in record time bars antidiscrimination protections based on gender identity
Monday, March 28, 2016

North Carolina law passed in record time bars antidiscrimination protections based on gender identity

By Pamela Wolf, J.D. North Carolina Governor Pat McCrory on March 23 gave his stamp of approval to same-day legislation that will bar and negate any state or local law extending antidiscrimination protections in employment and public accommodations to transgender individuals. In particular, the measure, H 2, rolls back a Charlotte ordinance, finalized by its city council on February 22, which extends antidiscrimination protections to LGBT individuals in the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations in a place of public accommodation to LGBT individuals. That ordinance permits use of public restrooms that are consistent with an individual’s gender identity. The measure also preempts employment practices and local wage-hour ordinances. The state legislation, which cleared the legislature the same day it was introduced and signed by the governor, is clearly a reaction to the Charlotte ordinance, which would have gone into effect April 1: “The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte,” McCrory said in a statement. “This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.” The proposed bill cleared the state house by an 82-26 vote, with only 11 Democrats favoring it. In the senate, the ballot was 31-11, favored only by Republicans. State to regulate public accommodations. H 2 will override protections extended in the Charlotte ordinance because it makes the regulation of discriminatory practices in places of public accommodations an issue of general statewide concern and supersedes and preempts local ordinances and regulations pertaining to the regulation of discriminatory practices of employers in a place of public accommodation. Moreover, H 2, which was effective immediately, specifically requires that local boards of education and public agencies designate and require the use of single-sex multiple occupancy bathrooms and changing facilities based on an individual’s biological sex as stated on that person’s birth certificate. That’s not all. H 2 goes further to limit employment discrimination protections currently based on “sex” to expressly mean “biological sex.” Under the new law, regulation of discriminatory employment practices is left to the state, and state laws and regulations supersede local ones, except to the extent they regulate the local body’s own personnel and do not otherwise conflict with state law. But wait, there’s more. The new law also makes regulation of wage and hour matters the province of the state. State laws and regulations supersede and preempt local laws and regulations of employers regarding compensation of employees, except for local government employees, among other exceptions. In public contracts, H 2 prohibit counties and cities from requiring private contractors to abide by any regulations or controls on the contractor's employment practices or mandates or prohibitions on the provision of goods, services, or accommodations to any member of the public, except as provided under state law.

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