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Ever since North Carolina passed a new state law banning cities and counties from enacting their own ordinances on discrimination laws, minimum wages and more, Republican leaders have been on the defensive in the face of national attention.
A major talking point has been that, even despite the new law, nothing has actually changed. Gov. Pat McCrory has said as much in person as well as in written statements. Other GOP leaders who supported the bill have done the same.
"We have not taken away any rights that have currently existed in any city in North Carolina, from Raleigh to Durham to Chapel Hill to Charlotte," McCrory said at a press conference Monday. "Every city and every corporation has the exact same discrimination policy this week as they had two weeks ago."
We’re going to focus specifically on the claim about cities. When asked about it at that press conference Monday, McCrory said he was blindsided by the question and couldn’t answer it.
The reporter had asked, specifically, about the status of a housing discrimination ordinance in Greensboro and a policy in Raleigh that said any contractors who wanted to do business with the local government needed to have policies forbidding discrimination against gay or transgender people.
Carrboro also has a similar policy for contractors.
A spokesman for the governor later said local housing ordinances wouldn’t be affected, citing a part of the bill that exempts "any private club or other establishment not, in fact, open to the public."
But he had no answers about Carrboro and Raleigh on Monday. He didn’t respond to a follow-up email sent Wednesday. Another spokesman responded only to say he wasn’t the right person to ask.
Perhaps that’s because the law does invalidate those ordinances.
"He’s completely wrong about that, unfortunately," said Carrboro’s town attorney, Nick Herman, about McCrory’s claim that the law doesn’t take away any existing rights.
Herman said the governor’s comments surprised him. Carrboro, for years, has had a policy that contractors paid by the town must have anti-discrimination policies that include sexual orientation or gender identity. And HB2 specifically says that local governments do not have the right to put any such requirements on contractors.
"I was absolutely shocked to hear that the governor – I give him all presumption of good faith – but for him to claim this bill does not change existing law means he is not being adequately advised," Herman said.
More towns and counties around the state also had in-house anti-discrimination policies that protected local government employees on the basis of sexual orientation and/or gender identity.
McCrory has also said those won’t go away, although some of the officials in those municipalities say they’re skeptical. We interviewed three law professors about it; two disagreed with McCrory and one agreed with him.
No more state claims for discrimination
Taking a broader look at the law, it also took away a right that had previously been available to residents of any and every city in the state – the ability to file a state lawsuit over discriminatory firing.
Such claims had been accepted by state courts since the 1980s, but they are no longer valid under HB2.
"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," the law states.
"This is a seismic issue," said Eric Doggett, a Raleigh lawyer who works in employment discrimination. "It’s huge. It’s a massive loss of rights, and it happened with almost no debate."
Laura Noble, a Chapel Hill employment discrimination lawyer, agreed.
"I won’t refer to this as a ‘bathroom bill’ because that's really not what it's about," she said. "It’s about the elimination of discrimination protections."
The law does say people who believe they were fired for discriminatory reasons can still bring suits to the state executive branch’s Human Resource Commission.
But Doggett said that group doesn’t have the ability to award damages, like the state courts did until last Wednesday.
"There’s no remedy," he said. "They have no teeth. … If we state it's the public policy of this state not to discriminate on those bases, it doesn’t mean anything if we can't enforce it."
Noble concurred, saying that no matter the state discrimination policy is now, it’s largely meaningless.
"What's the point of having it on the books if there's no sanctions if someone violates it?" She said.
People can still file federal discrimination lawsuits. However, both attorneys said federal courts have a much shorter statute of limitations than state courts – less than six months, compared to three years – which often stops plaintiffs from suing if they have a case but waited too long.
Debbie Durban, a corporate attorney with Nelson Mullins who practices in North and South Carolina, has experience defending businesses from discrimination claims. She also said her understanding of the bill is that it takes away state lawsuits, although she said most state claims eventually end up at the federal level anyway.
McCrory said that with the passage of HB2, "we have not taken away any rights that have currently existed in any city in North Carolina."
That is not true. It took away the rights of cities to put certain anti-discrimination requirements on private contractors, and it nullified existing policies like in Carrboro and Raleigh. It might have also taken away the rights of cities and counties to pass their own in-house anti-discrimination policies, depending on which lawyer you ask.
And it takes away the right of everyone in North Carolina to file a state-level lawsuit alleging a discriminatory firing, according to attorneys who represent both employers and employees in those cases.
But even if you discount the discrimination lawsuit changes and only focus on municipal government powers and rights, McCrory is still wrong.
We rate this claim False.
The News & Observer, March 28, 2016, "Raleigh mayor: City supports transgender community"
The News & Observer, March 28, 2016, "Chapel Hill Town Council urges repeal of House Bill 2"
The News & Observer, March 28, 2016, "McCrory blames ‘inaccurate’ news stories for backlash against NC LGBT law"
The News & Observer, video, "Governor responds to questions about HB2"
Greensboro Fair Housing Ordinance
Email interview with Debbie Durban, Nelson Mullins partner
Phone interview with Eric Doggett, The Doggett Law Offices
Phone interview with Laura Noble, The Noble Law Firm
Phone interview with Nick Herman, Town Attorney, Carrboro NC
Email interview with Katharine T. Bartlett, professor, Duke University School of Law
Phone interview with Michael Gerhardt, professor, UNC-Chapel Hill School of Law
Phone interview with Enrique Armijo, professor, Elon University School of Law
Email from Graham Wilson, spokesman for Gov. Pat McCrory
Email from Ricky Diaz, campaign spokesman for Gov. Pat McCrory
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