Governor McCrory announced an Executive Order yesterday that claims to fix some of the problems with HB2 but in reality fails to live up to the hype.
Despite vociferous criticism of HB2 from businesses owners and citizens across the state, the Governor’s new Executive Order essentially reinforces many of the bill’s most objectionable provisions, while offering up insufficient opportunities to improve it. In short the executive order maintains HB2’s provisions restricting transgender access to bathrooms in public accommodations, allowing local businesses to discriminate on the basis of sexual orientation and gender identity, and prohibiting local governments from enacting anti-discrimination or living wage ordinances that cover private businesses, including public contractors.
And unfortunately, the few steps away from discrimination taken by the order—notably, stating a policy against discrimination based on sexual orientation and gender identity for state government employees and calling on the General Assembly to restore state employment non-discrimination protections for private sector workers—are practically nonexistent.
This what the executive order means in practice for North Carolina’s residents:
- Private businesses are still permitted to turn away customers because they are LGBTQ. Local governments still may not adopt policies that go beyond state anti-discrimination law to provide protection to LGBTQ individuals or other classes of people, either in public accommodations, private employment, or local government contracting. Local governments may enact anti-discrimination policies that go beyond state policy, but only for their own public employees.
- State government agencies, public schools, and state universities are still required to discriminate against transgender individuals in bathrooms and changing facilities. While the Executive Order does invite these agencies to make reasonable accommodations if requested , there is no way to ensure that agencies will follow through on these invitations, or make the actual accommodations requested, and it is unclear that HB2 would allow them to do so.
- It is still unclear whether State employees receive any meaningful additional protections against discrimination based on sexual orientation or gender identity. While the order updated the State Employee non-discrimination policy to include these protections, the Governor did not answer the question of whether state employees can sue the State when they feel they have been unfairly discriminated against based on sexual orientation and gender identity. So in effect, it’s possible that the executive order may have promised workers something that they can’t actually use. And even if the new protections work as advertised, this still does nothing for the majority of the state’s workforce employed in private sector businesses.
- Private employers can still fire their workers for reasons of race, color, national origin, religion, biological sex, and age without being subject to a lawsuit in state court. In the final provision, the order officially urges the legislature to repeal the sections of HB2 that eliminated state protections for employees who are fired based on their race, religion, color, national origin, age, or biological sex. Unfortunately, the Executive Order does only that—beg the legislature to act. And it is still unclear whether the legislature will agree.
So while the Governor’s change of heart on permitting workplace discrimination is good news, it would have been better for North Carolina’s workers if he had raised these objections before he signed the bill last month. Instead, workers are now living in a world where their bosses can fire them for being black, white, male, female, , or even an evangelical Christian without protections under state law.
While we should all welcome Governor McCrory’s promise to improve worker anti-discrimination laws, the problem with his executive order is it just doesn’t deliver on its promise.