Expiration of State Preemption of Anti-Discrimination Ordinances Prompts North Carolina Counties and Cities to Enhance Protections at the Local Level

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A vestige of the aftermath of North Carolina’s infamous 2016 “House Bill 2” (also known as “the Bathroom Bill”) expired on December 1, 2020, paving the way for local North Carolina governments to pass or reinstate anti-discrimination ordinances.

In March 2017, House Bill 142 (also known as “the Compromise Bill”) repealed House Bill 2, which had required individuals to use the public bathroom that corresponded with the sex on their birth certificate.  As a compromise, House Bill 142 prevented local governments from enacting or amending an ordinance regulating private employment practices or regulating public accommodation.1 This prohibition expired on December 1, 2020.2 Since then, Carrboro, Chapel Hill, Durham, Greensboro, Hillsborough, and Orange County have passed local anti-discrimination ordinances.

Chapel Hill,3 Hillsborough,4 and Carrboro5 were the first local governments to adopt anti-discrimination ordinances following expiration of the state preemption law. On January 19, 2021, Orange County, Durham, and Greensboro passed similar ordinances.

Durham’s anti-discrimination ordinance protects individuals from discrimination in employment because of race, color, religion, national origin, sex, disability, familial status, military status, sexual orientation, gender identity and protected hairstyle.6  “Protected hairstyle” is defined as “any hairstyle, hair type, or hair texture historically associated with race, such as, but not limited to, braids, locks, twists, tight coils or curls, cornrows, Bantu knots and afros.” The Durham ordinance also provides a private cause of action for enforcement of the anti-discrimination provision. Specifically, those found in violation of the ordinance may be ordered to correct the discrimination via an injunction. The ordinance takes effect on July 1, 2021.

Orange County’s Non-Discrimination Ordinance provides an expanded definition of protected class, including: age (40 years of age or older), race, ethnicity, color, national origin, religion, creed, sex, sexual orientation, gender, gender identity, gender expression, marital status, familial status, source of income, disability, political affiliation, veteran status and disabled veteran status.7 While Orange County’s ordinance does not explicitly prohibit discriminatory conduct in employment, it provides that Orange County will not enter into a contract with any business that has discriminated against any protected class in the solicitation, selection, hiring or treatment of vendors and suppliers. Further, it prohibits the denial of public accommodations to an individual on the basis of a protected status. The ordinance took effect on January 19, 2021.

The Greensboro ordinance prohibits employers with 15 or more employees from failing to or refusing to hire, discharging, or discriminating against an individual with respect to compensation or other privileges of employment because of the individual’s race, color, religion, sex or national origin.8 The definitions of “race” and “national origin” include hair texture and hairstyles that are commonly associated with race or national origin. The term “sex” includes sexual orientation, gender expression and gender identity. Individuals may file a complaint within 60 days after an alleged violation with the Greensboro Human Rights Department, which will then investigate and potentially work with the parties to mediate and resolve the issue. If mediation is unsuccessful, the individual will then have a private right of action against the employer. The Greensboro ordinance takes effect on July 1, 2021.

As more local governments in North Carolina follow suit with such anti-discrimination provisions, we will report on significant developments.

Footnotes

1 N.C. Gen. Stat. § 143-760(3).

2 N.C. Gen. Stat. § 143-760(4).

3 Chapel Hill’s ordinance prevents employers from refusing to hire or from otherwise discriminating against any person with respect to the privileges of employment on the basis of race, ethnicity, creed, color, sex, sexual orientation, gender identity, gender expression, national origin, national ancestry, marital status, familiar status, pregnancy, veteran status, religion, religious belief or non-belief, age or disability. Chapel Hill Code of Ord. § 10-245. The Chapel Hill Ordinance took effect on January 13, 2021.

4 Hillsborough’s Title VII Nondiscrimination Policy prohibits discrimination in any employment resulting from a program, a primary objective of which is to provide employment, and requires, at minimum, adherence to Title VII and related requirements. Town of Hillsborough, Title VII Nondiscrimination Policy Statement, January 11, 2021.

5 Carrboro’s ordinance prohibits employers from refusing to hire or otherwise discriminating against any person with respect to the privileges of employment on the basis of race, natural hair or hairstyles, ethnicity, creed, color, sex, sexual orientation, gender identity or expression, national origin or ancestry, marital or familial status, pregnancy, veteran status, religious belief or non-belief, age or disability. Carrboro Code of Ord. § 8-83. The Carrboro ordinance took effect on January 12, 2021.

6 “Employment and Public Accommodations Ordinance of the City of Durham” Durham City Ord. § 34-93.

7 Orange Cnty. Code of Ord. §§ 12-50, 12-52(c).

8 Greensboro Code of Ord. § 12-114.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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