EEO - Discrimination: North Carolina
Federal law and guidance on this subject should be reviewed together with this section.
Author: Michelle Rippon, Constangy, Brooks, Smith & Prophete, LLP
- North Carolina does not have a statute that is analogous to Title VII. North Carolina has an Equal Employment Practices Act which establishes as a matter of public policy that private employers with 15 or more employees are prohibited from discriminating against employees on account of race, religion, color, national origin, age, sex (including pregnancy) or handicap. It does not provide for a private cause of action or offer any remedies. See Equal Employment Practices Act.
- The North Carolina Persons with Disabilities Protection Act prohibits discrimination against any qualified person with a disability. The definition can include both physical and mental disabilities. See North Carolina Persons with Disabilities Protection Act.
- Additional discrimination laws that go beyond the protected categories in Title VII include laws that prohibit discrimination based on the sickle cell trait or the hemoglobin C trait, genetic testing information, and persons having AIDS virus or HIV infection. See Discrimination Based on Sickle Cell Trait or Hemoglobin C Trait; Genetic Testing or Information; AIDS Testing.
- Employees who perform any military duty are protected from discrimination. See Military Personnel.
- Employers may not discriminate against employees for the lawful use of lawful products during nonworking hours (smoker's protection). See Smoking and Lawful Off Duty Conduct.
- Employers are prohibited from asking job applicants about criminal records that have been expunged. See Ban the Box Law.
Equal Employment Practices Act
Note: North Carolina does not have a statute that is analogous to Title VII.
The Equal Employment Practices Act (EEPA) is a combination of the federal antidiscrimination statutes including Title VII of the Civil Rights Act of 1964, the Age in Employment Discrimination Act, and the Americans with Disabilities Act. +N.C. Gen. Stat. § 143-422.2 Although the statute makes it public policy to safeguard against discrimination on account of race, color, religion, national origin, age or sex (including pregnancy) or handicap, unlike Title VII it does not provide a private right of action or offer any remedies. While the Act does give the Human Relations Commission in the Department of Administration the authority to receive charges of discrimination, its powers are limited to investigation and conciliation. Claims under the North Carolina statute are therefore included in federal claims for discrimination and retaliation and governed by the EEOC. The statute may form the basis for a claim of discrimination in violation of public policy and provide an exception to the employment at will doctrine. This can be significant to a wrongful discharge suit under state law.
The EEPA applies to employers with 15 or more employees.
North Carolina Persons With Disabilities Protection Act
North Carolina provides a separate statute prohibiting discrimination based on disabilities. The North Carolina Persons With Disabilities Protection Act (PWDPA) provides that no employer, employment agency or labor organization shall discharge, expel, refuse to hire or otherwise discriminate a qualified person with a disability with respect to compensation or the terms, conditions or privileges of employment. N.C. Gen. Stat. § 168A-1 et seq.
The statute essentially tracks the federal Americans With Disabilities Act. For example, a qualified person with a disability is defined as any person who:
- Has physical or mental impairment which substantially limits one or more major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment. +N.C. Gen. Stat. § 168A-3 (7a).
The definition can include both physical and mental disabilities. Alcohol and drug use are specifically excluded from the definition of disability. +N.C. Gen. Stat. § 168A-3. Employers are prohibited from asking applicants to identify themselves as disabled prior to a conditional offer. +N.C. Gen. Stat. § 168A-5 (4)
Employees are required to request a reasonable accommodation and to make suggestions for those that are feasible. Employers must investigate whether a reasonable accommodation can be made and to accommodate the individual if possible. +N.C. Gen. Stat. § 168A-4.
Statute of Limitations
A civil action must be commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence should have become aware of the alleged discriminatory practice. +N.C. Gen. Stat. § 168A-12.
The PWDPA covers employers with 15 or more employees.
Exceptions to Employer Liability
There are certain exceptions in which an employer is not liable under the PWDPA. These include when an employer:
- Makes an employment decision is made on the basis of law or regulations imposing physical, health, mental or psychological requirements.
- Fails to hire, transfer, promote or discharges an employee based on that individual's history of drug abuse or current use of drugs in a business that is an establishment that handles controlled substances.
- Fails to hire, transfer or promote, or to discharge a person with a disability because the person has a communicable disease which would disqualify a person without a disability from similar employment.
- Fails to make reasonable accommodations where the person with a disability has not requested a reasonable accommodation by informing the employer of the disabling condition, submitted necessary medical documentation, made suggestions for a reasonable accommodation and cooperated in determining a feasible accommodation.
- Inquires whether a person has the ability to perform the duties of the job in question.
- Makes the individual undergo a medical examination to determine his ability to work if an employment offer has been made on the condition that the person meets the physical and mental requirements of the job with or without reasonable accommodation and that the examination is required of all persons conditionally offered employment for the same position regardless of the disabling condition.
- Obtains medical information or requires a medical examination where such information is for the purpose of establishing an employee health record.
- Requires preemployment test that test job-related abilities, are required of all applicants for the same position, and accurately measure the applicant's aptitude and not the disability.
Possible affirmative defenses include:
- The failure of the qualified person with a disability to comply with or meet the employer's work rules, policies or standards, provided that such person is not held to rules or standards different from other employees without a disability and similarly employed.
- The excessive, willful, or habitual tardiness or absence of a qualified person with a disability, provided that the standard the employer uses is the same as applied to other similarly situated employees without a disability.
- A bona fide seniority or merit system, or a system which measures earnings by quantity or quality of work.
The Act establishes a civil remedy limited to declaratory or injunctive relief. Liability for back pay is also possible. +N.C. Gen. Stat. § 168A-11.
Discrimination Based on Sickle Cell Trait or Hemoglobin C Trait
In North Carolina both private and public employers are prohibited from denying or refusing employment or from discharging employment to any person if that person possesses the sickle cell trait or hemoglobin C trait as defined and described in the statute. The statute has never been addressed by a court of law in North Carolina. +N. C. Gen. Stat. § 95-28.1
Genetic Testing or Information
Private and public employers are also prohibited from denying or refusing employment or from discharging employment to any person because the person had requested genetic testing or counseling services, or on the basis of genetic information obtained concerning the person or a person's family. The statute defines genetic test, genetic characteristic, and genetic information. The statute has never been addressed by a court of law in North Carolina. +N. C. Gen. Stat. § 95-28.1A.
+N.C. Gen. Stat. § 130A-148 covers the conditions under which testing for the AIDS virus may be conducted and how the tests must be performed. Included in this statute is a provision which protects persons with the AIDS virus or HIV infection from discrimination in determining suitability for continued employment. Employers cannot require an HIV test to determine suitability of continued employment, nor can they discriminate against any person having HIV or AIDS on account of that infection determining suitability for continued employment. Employers can, however, require an HIV test of job applicants in preemployment medical examinations. Employment can be denied to a job applicant based solely on a confirmed positive test. Also, an HIV test performed in the course of an annual medical examination is allowed if the employer requires such examinations as part of the employment policies. In that case, a positive test allows an employer to take appropriate employment action including reassignment or termination if the employee would pose a significant risk to his or her health, the health of co-workers or the health of the public; or if the employee is unable to perform employment duties.
The case must be commenced within 180 days after the date in which the aggrieved party became aware or should have become aware of the discriminatory practice. It must be brought in superior court and tried without a jury. The court may award back pay. Attorney fees may be awarded.
Employers cannot discriminate against anyone based on their membership in the military. Adverse employment action against any person because of the performance of any emergency military duty is prohibited. Violation of these provisions is a Class 2 misdemeanor. +N.C. Gen. Stat. § 127B-10.
Employees who apply for or perform service in the North Carolina National Guard are protected from discrimination or retaliation on the basis of their service if the discriminatory or retaliatory action is a motivating factor in the action unless the employer can demonstrate by the greater weight of the evidence that the same action would have been taken in the absence of the service member's participation in the National Guard. National Guard Reemployment rights, +N. C. Gen. Stat. § 127A-202.1
Smoking and Lawful Off Duty Conduct
Employers may not discriminate against a current employee or refuse to hire a prospective employee because he or she engages in, or has engaged in, the lawful use of lawful products as long as the activity occurs off premises during nonworking hours and does not adversely affect job performance or the safety of other employees. Employers may, however, restrict the use for bona fide occupational requirements or fundamental objectives of the organization. Employers may offer different insurance rates (as for example for smokers) under certain circumstances. +N. C. Gen. Stat. § 95-28.2.
Employees who have been discharged or otherwise discriminated against may bring a civil action within one year of the alleged violation for lost wages and benefits, for reinstatement or for an offer of employment.
Equal Opportunity for Employment and Compensation by State Departments, Agencies and Local Political Subdivisions
North Carolina requires all state and local governmental agencies to afford employees equal opportunity in employment to without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition. +N.C. Gen Stat. § 126-16.
North Carolina's Retaliatory Employment Discrimination Act (REDA) provides that employers generally cannot discriminate or retaliate against employees who file or threaten to file complaints or who testify, cause, or otherwise participate in inquiries, investigations, proceedings, or other actions related to the protections complaints. +N.C. Gen. Stat. § 95-240.
Ban the Box Law
Effective December 1, 2013, North Carolina bars employers from asking applicants on a job application, during an interview "or otherwise" about criminal convictions, charges or arrests that have been expunged (eliminated completely). +2013 Bill Text NC S.B. 91.
While neither applicants nor employees may sue an employer under the measure, it gives the North Carolina Labor Commissioner the power to issue written warnings to employers for a first violation plus issue penalties of up to $500 for each additional violation.
Employers in the state may still ask applicants about criminal convictions or charges that remain part of the public record. Additionally, the law does not apply to state or local law enforcement agencies that are authorized by North Carolina law to obtain confidential information for employment purposes.
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.
North Carolina Governor signed HB 2, which attempted to prevent local governments from passing their own antidiscrimination laws (affecting both the private and public sector) beyond state protections and required individuals to use the restroom associated with their biological sex. +2015 Bill Text NC H.B. 169. Further, HB 2 provided that no person may bring any civil action or wrongful discharge claim based upon the public policy expressed North Carolina Equal Employment Practices Act. Accordingly, North Carolina employees are limited to bringing claims of race, age, gender, and religious discrimination under federal laws, such as Title VII and the ADEA. Employees may still file suit in North Carolina state court based on other state statutes containing recognized public policies like the North Carolina Wage and Hour Act. An Executive Order modified this and provides that while bathroom use in state agencies may be restricted to an individual's biological sex, state agencies may provide reasonable accommodations based on special circumstances and that private companies could continue to establish their own rules for bathrooms and locker rooms. Further, it states that local governments may establish antidiscrimination policies for their own employees and that state employees who identify as LGBT are protected from discrimination.
On July 18, 2016, North Carolina Governor signed HB 169 restoring the ability of individuals to sue for wrongful discharge under the state's Equal Employment Practices Act and claim that he or she was illegally fired based on race, religion, color, national origin, age, sex, or disability. This cause of action has a one year statute of limitations, reduced from the previous three year period. All other aspects of the wrongful discharge claim, including no cap on potential damages, have been restored. +2015 Bill Text NC H.B. 169.
On March 30, 2017, North Carolina enacted a law repealing state statutes prohibiting local governments from enacting laws concerning employee compensation, leave, benefits, public accommodation, minors, and discriminatory practices providing greater benefits than those provided under federal or state law and replaced it with a new law preempting any local government in North Carolina from enacting or amending an ordinance regulating private employment practices or public accommodations. The new law includes an automatic expiration date of December 1, 2020. +2017 Bill Text NC H.B. 142.
Additionally, the law repeals the "bathroom bill" and states that unless in accordance with an act of the General Assembly, no state agencies, boards, offices, departments, institutions, branches of government (including public universities) and political subdivisions of the state (including local boards of education) may regulate access to multiple occupancy restrooms, showers or changing facilities.
Lactation/Breastfeeding Protections and Accommodations
A woman has the right to breastfeed in any public or private location, and that she is not in violation of indecent exposure laws.. +N.C. Gen. Stat. § 14-190.9.
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