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Recent EEOC Notice Seeks to Counter Portions of North Carolina's HB2 Law

    Client Alerts
  • August 02, 2016

As previously reported in EmployNews, the Equal Employment Opportunity Commission has recently taken the administrative and litigation position that the sex discrimination provisions of Title VII directly prohibit discrimination or harassment on the basis of sexual orientation and gender identity. A July 15 EEOC bulletin indicates how the agency will view state and local laws contrary to this interpretation.

The bulletin sets forth the EEOC’s legal basis for its position regarding sexual orientation and gender identity discrimination in employment. The bulletin explains that while existing state and local law prohibitions against such discrimination remain in force, any such laws contrary to this position will not prevent the EEOC from seeking enforcement under Title VII. North Carolina’s HB2 law limits the bases for state or local legal protection against employment discrimination and harassment, and does not include sexual orientation or gender identity. The law replaces the term “sex” as used under Title VII, with “biological sex,” which presumably would not extend to sexual orientation or gender identity discrimination claims. Using the basic tenet of federal preemption, the EEOC says that such laws have no effect on claims for employment discrimination in such states under Title VII.

In its recent legislative session, the North Carolina General Assembly reinstated the right to bring wrongful discharge employment claims based on the named criteria. If the EEOC’s position with regard to coverage under Title VII prevails in federal court, the presumed exclusion of sexual orientation and gender identity would have little impact on employers subject to federal EEOC jurisdiction. The EEOC has reported a large increase in the number of discrimination charges based on sexual orientation discrimination. North Carolina employers should review their equal employment opportunity policies and practices to determine their exposure to possible discrimination and harassment claims based on employees’ sexual orientation and gender identity.