NC professor explains implications of HB2

North Carolina Capitol (WNCN)

BOONE, N.C. (WBTV) – Students at Appalachian State University are protesting against House Bill 2. It’s the latest round of protests against the bill that has put North Carolina firmly in the national spotlight.

Many have reached out to WBTV for a deeper explanation of what the law means.

“HB2 affects everyone,” said law professor Brian Clarke. Clark said if you face discrimination at work, you can no longer go straight to the courthouse and sue your employer.

“Trying to put it in normal human terms rather than in civil procedure terms – it’s much easier to file a case in state court,” Clarke said.

protesters
SLIDESHOW: Follow the major events since the signing of House Bill 2

HB2 delivered on what state lawmakers promised.

“It creates a state-wide non-discrimination ordinance and public accommodations which we’ve never had before, which is a perfectly good thing to do,” Clarke said. “But it, of course, limits the protection categories to race, age, national origin, religion, color and biological sex to avoid any potential expansion of that in the courts.”

Clarke said the law goes beyond the stated goals.

“Then it deals with employment, so it deals with things that are utterly unrelated to LGBT rights, to bathroom usage, to public accommodations. And it deals specifically and directly with employment,” Clarke said.

The law addresses the minimum wage, and does not allow any local government to set a minimum wage.

“The legislature took that power expressly away, so forbade any local government from raising the minimum wage beyond what federal and state law require,” Clarke said.

Clarke teaches employment law at the Charlotte School of Law after being an employment lawyer for 11 years. He says one sentence in the law was very big.

The law states, “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 on the public policy expressed herein.”

“In a very hidden way, it eliminated the ability for employees in North Carolina to file claims under state law for employment discrimination on the basis of race, sex, national origin, color and age,” Clarke said, “And that’s a right that North Carolina employees have had since 1982… and it’s gone.”

Clarke said North Carolina is now only one of two states that don’t provide these employment protections.

“Mississippi has never had a state anti-discrimination law. We had one and had one since 1977, but now we don’t anymore. The words are still in the statute book but there’s no way to enforce them,” Clarke said.

Proponents of the law point to the federal protections, but Clarke says the remedy under federal and the old state law were not the same.

“Under federal law you have 180 days to go to the EOCC [Equal Employment Opportunity Commission]. Under North Carolina law, as it existed before HB2, if you were fired based on discrimination you had three years to file that claim. You didn’t have to go to any government agency you just went and filed your claim at the courthouse,” Clarke said.

The old state law also allowed an employee to file within three years versus the federal law that state within 180 days. Also, under the federal law, Clarke explained there are caps on damages up to $300,000. The state law had no cap.

“I was a management side employment lawyer for more than a decade, and I can’t see the ‘why,’” Clarke said.

A couple of weeks ago, Representative Dan Bishop – who drafted the law – said the federal system still protects people. Governor McCrory has also said HB2 does not take away any rights.

Clarke disagrees. He told his students that the lawsuit the LGBT community has filed could only allow the courts to overturn the parts of HB2 dealing with those rights.

“Even if that lawsuit is successful, the rights taken away on the employment side of things are not going to be affected,” Clarke said. “Those are the law unless they are specifically repealed.”

Copyright 2016 WBTV. All rights reserved.

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