<b><i>Commentary:</i></b> Recent LGBTQ Laws Have Broader Effect on All Workers

Tucked inside is language that strips all North Carolina workers of the ability to sue under a state anti-discrimination law, a right that has been upheld in court since 1985. Allan Freyer, head of the Workers' Rights Project at the North Carolina Justice Center in Raleigh, stated that previously, if you were fired because of your race, gender or religion you could sue, but now, no one in North Carolina has that basic remedy.

Apparently, conservative-leaning groups feel as though there is too much discrimination litigation in North Carolina and have been trying for decades to reduce the number of civil lawsuits in the states. In HB 2, lawmakers finally accomplished this by adding 14 words ' a single sentence ' to the state's employment discrimination law that says: “No person may bring any civil action based upon the public policy expressed herein.”

The language does not repeal North Carolina's law that bans discrimination on the basis of race, sex, age, religion, or disability, but instead forces workers to seek redress only in the federal system, where access is more difficult, the rules are much more complicated, and businesses often have significant advantages. As an attorney who practices civil rights, I always try to stay in the state-court system, where juries are more reflective of the area and dockets move faster. Meanwhile, defendants always try to remove the case to federal court. For employers, time is a big issue. Under federal law, fired workers have 180 days to file a claim, versus three years in state court. Also, if a worker misses the federal deadline, which is not uncommon, s/he can still sue under state law. Presently in North Carolina, that will no longer be true'it is likely they will be barred from bringing a claim at all.

Legislation in Other States

Also on the anti-LGBTQ front, the Mississippi House of Representatives passed a sweeping anti-LGBTQ law that was signed into law by the governor in April. The law, more sweeping than North Carolina's and presently the worst in the country, makes it easier to discriminate against gender and sexual minorities in the state.

Mississippi's Religious Liberty Accommodations Act is meant to protect people, businesses and organizations with “sincerely held” religious beliefs about the sanctity of traditional marriage. The bill also says gender is determined by “an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.” The measure is more discriminatory than North Carolina's because it essentially makes it impossible to sue for gender or sexuality discrimination if the motivation for the discrimination was religion ' again, affecting more people than just LGBTQ individuals.

Here are some of the bill's provisions that will likely be the focus of months to come.

• Any organization can decline “to provide services, accommodations, facilities, goods or privileges for a purpose related to the solemnization, formation, celebration or recognition of any marriage.”
• Employers can make a “decision whether or not to hire, terminate or discipline an individual whose conduct or religious beliefs are inconsistent with those of the religious organization.”
• Mississippians can deny housing based on religious beliefs.
• Foster care organizations and adoption agencies can “decline to provide any adoption or foster care service” without fear of retribution.
• The state can't prosecute any person who “declines to participate in the provision of treatments, counseling, or surgeries related to sex reassignment or gender identity transitioning or declines to participate in the provision of psychological, counseling or fertility services” or any wedding- or marriage-related services.
• Schools and business owners can establish “sex-specific standards or policies concerning employee or student dress or grooming, or concerning access to restrooms, spas, baths, showers, dressing rooms, locker rooms, or other intimate facilities or settings.”

The bill overwhelmingly passed the House by an 85-24 vote. The Senate also approved the measure, sending it to Gov. Phil Bryant, who signed it into law April 5. The Act went into effect in July.

Analysis

The 14th Amendment promises equal protection under the law, meaning that governments can't single out and punish groups of people for no reason. But the U.S. Supreme Court has been consistently vague about what that means for LGBTQ people. That may change soon. The Department of Justice (DOJ) has filed suit against the state, backed in part by American Civil Liberties Union, Lambda Legal and Equality North Carolina, along with notable businesses and organizations. The lawsuit states that North Carolina's new law “violates the most basic guarantees of equal treatment and the U.S. Constitution.” Legal experts say this will be a tough case to litigate, but if it proceeds, it has the potential to set a landmark precedent. It may force the Supreme Court to confront a question that for decades it has stubbornly refused to answer: What does the U.S. Constitution actually imply about gay rights?

The trend I've seen since marriage equality is that laws like these are passed: The media creates a firestorm, companies and activists respond, and then the law is “tweaked” to assuage the firestorm ' but ultimately, the law remains intact and the media (and therefore the attention) moves on. Until the Supreme Court is squarely faced with a case to decide, we must all remain vigilant to protect the LGBTQ individuals in these states and not become complacent or forget about the egregiousness of these laws whether or not we are directly impacted by them.

Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real estate law and civil rights. Her website is http://www.giampololaw.com and she maintains two blogs, http://www.phillygaylawyer.com and www.lifeinhouse.com. Contact her at [email protected]. This article also appeared in The Legal Intelligencer, an ALM sibling publication of this newsletter.