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HB2 and LGBT Discrimination Liability: What North Carolina Employers Need to Know

HB2 Does Not Absolve Employers of LGBT Discrimination Liability

With all the recent media attention surrounding North Carolina’s HB2, you may be under the impression that North Carolina’s “at will” employment state laws allow employers to treat LGBT workers differently.  While North Carolina state law does not afford a specific protection against sexual orientation or identity, federal law does through the Title VII of the Civil Rights Act of 1964 (“Title VII”).

Any employer with 15 or more employees, including part-time and temporary workers, is subject to Title VII and its provisions.  Title VII protects against all discrimination based on race, color, sex, religion, and national origin and retaliation against workers who oppose discriminatory employment practices.  An employer who treats LGBT workers any differently than non-LGBT workers in their terms, conditions, or privileges of employment could face a charge of discrimination and a potential federal lawsuit.

The Equal Employment Opportunity Commission (“EEOC”) recently issued a guidance document entitled, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers”, that discusses how the EEOC interprets and enforces Title VII’s prohibition of sex discrimination based on gender identity or sexual orientation regardless of any contrary state or local laws.

Examples of LGBT-related sex discrimination claims outlined in the guidance document include:

  • Failing to hire an applicant because she is a transgender woman.
  • Firing an employee because he is planning or has made a gender transition.
  • Denying an employee equal access to a common restroom corresponding to the employee’s gender identity. This includes requiring an employee to use a specific restroom when others are not required to do so, or having to walk a further distance than other employees to use a specific restroom.
  • Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
  • Denying an employee a promotion because he is gay or straight.
  • Providing a lower salary because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
  • Harassing an employee because of his or her sexual orientation.

An employee has 180 days after the alleged date of discrimination to file a charge with the EEOC.  The EEOC then investigates the claim and seeks to resolve the matter voluntarily through mediation.  If the EEOC is unable to secure a voluntary resolution, it has the authority to file a lawsuit in federal court, or it can release the employee to file the lawsuit themselves.  The employee has 90 days to file a lawsuit after receipt of the EEOC’s notice of the right to sue.

For more information, see the following EEOC fact sheets:

Kerry Everett is an attorney with Sodoma Law, PLLC.  She counsels employers on a wide range of employment matters, providing clear, direct guidance designed to promote legal compliance, while remaining aware of workplace realities.  She also represents employees in many types of discrimination cases in federal and state courts.

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Nicole Sodoma

Founder and Managing Principal

The nicest compliment I’ve ever received about Sodoma Law was from a judge who described us as “smart, tenacious, and compassionate.” When clients come to us in the middle of a divorce or a custody battle, they deserve that blend of qualities from each of our family law attorneys. They need family law attorneys who will fight for them in the courtroom and empower them to achieve their goals at a difficult time in their lives. When I opened the doors to Sodoma Law in 2008, I wanted to build a team who would help every client navigate the hurdles of separation and divorce with empathy and determination – in and out of court. I wanted to surround myself with people who live and breathe family law like I do. This practice is my passion; it’s not my job, but rather, who I am. In hindsight, I have to believe that the events of my childhood led me on this path. I often joke with my family that my experience as a child of parents with “irreconcilable differences” predestined my career. As a family law attorney, I feel the advantage of understanding the experience of separation and divorce through the eyes of an adult and as a young girl. That experience was fraught with anxiety, especially at the beginning. I believe it’s our job, as family law attorneys, to educate our clients on their various legal options so as to reduce that anxiety and allow them to feel more in control of their cases. At our firm, each attorney and staff member believes not only in their ability to make a difference in a client’s life but also their ability to be supportive of a client’s emotional, spiritual and physical well being. After more than two decades of practicing as a family law attorney, I know that when our clients contact us, they are typically making one of the biggest decisions of their lives. They each have somehow empowered themselves enough to make the journey to change what he or she has known… whether it was for one year or twenty years. I understand it is not always hard for everyone, but change affects us all. I see it with my clients. I saw it with my own parents. Working with someone you trust is critical. From the moment we discuss your case, you will know that I will always do my absolute best to handle your concerns as if they are my own.

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