North Carolina Equal Employment Practices Act: Anti-Discrimination Policy Protections for North Carolina Employees

The North Carolina Equal Employment Practices Act (NCEEPA) prohibits employment discrimination based on race, color, national origin, religion, age, sex, or handicap.

The law is codified at N.C. Gen. Stat. Ann. §§ 143-422.1 to 143-422.3. The NCEEPA applies to employers who regularly employ 15 or more employees. While the statute does not provide a private cause of action, it can be the basis for a common law claim of wrongful discharge in violation of state public policy.

Covered Employers

The NCEEPA covers employers which “regularly employ 15 or more employees.” N.C. Gen. Stat. Ann. §§ 143-422.2(a).

Policy Statement and Protected Classes

The NCEEPA provides that it is the public policy of North Carolina to “protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap[.]” The statute therefore prohibits employment discrimination based on membership in these protected classes. N.C. Gen. Stat. Ann. §§ 143-422.2(a).

The NCEEPA further explains that “the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general. N.C. Gen. Stat. Ann. §§ 143-422.2(b).

Definition and Scope of Discrimination

The NCEEPA does not define what constitutes the prohibited “discrimination or abridgement” on account of the above protected classes. However, it does make clear that the right to be free from discrimination or abridgement applies to both job applicants and current employees (“the right of and opportunity of all persons to seek, obtain, and hold employment…”). N.C. Gen. Stat. Ann. §§ 143-422.2(a).

Administrative Investigations

The NCEEPA provides that the state Human Relations Commission in the Civil Rights Division of the Office of Administrative Hearings has the authority to:

Receive charges of discrimination from the Equal Employment Opportunity Commission (EEOC) pursuant to an agreement under Section 709(b) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-8), Public Law 88-352, as amended by Public Law 92-261, and
Investigate and conciliate charges of discrimination.

N.C. Gen. Stat. Ann. §§ 143-422.3. The law further instructs the agency to use its resources to “effect an amicable resolution of the charges of discrimination.” Id. There are strict time limits on filing charges of discrimination with the EEOC, which investigates violations of certain federal employment discrimination laws. Here is a helpful link to the EEOC website with more information on those time limits.

Enforcement

The NCEEPA does not provide employees with a private right of action. However, the statute’s policy statement can be the basis for a common law claim of wrongful discharge in violation of public policy. See, e.g., Considine v. Compass Grp. USA, Inc., 145 N.C.App. 314, 317, 551 S.E.2d 179, 181 (2001). (“[North Carolina] Courts have recognized an exception to the employment at will doctrine by identifying a cause of action for wrongful discharge in violation of public policy. Under the exception, the employee has the burden of pleading and proving that the employee’s dismissal occurred for a reason that violates public policy.” Id. (collecting cases).

North Carolina courts have held that the limitations period for a claim of wrongful discharge in violation of public policy is three years. See, e.g., Winston v. Livingstone Coll., Inc., 210 N.C. App. 486, 488, 707 S.E.2d 768, 770 (2011) (“The limitations period for a tort action based upon wrongful discharge in violation of public policy is three years.” (citing N.C. Gen. Stat. Ann. § 1-52(1) (2011)); Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 260, 580 S.E.2d 757, 762 (2003) (“The statute of limitations for such a claim [wrongful discharge in violation of public policy] is three years.” (citing N.C. Gen. Stat. Ann. § 1–52(5) (2003)).

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This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Virginia Whistleblower Protection Law: Broad Protections for Whistleblowers

Virginia’s Whistleblower Protection Law (“VWPL”) offers strong protections for Virginia workers who report unlawful practices or refuse an employer’s order to engage in unlawful practices. The law protects a wider range of conduct than that protected under Virginia’s Bowman claim jurisprudence. It covers both internal and external whistleblower activities. It allows courts to award aggrieved employees injunctive relief and reinstatement, compensation for lost wages, benefits, and other remuneration, as well as interest, reasonable attorneys’ fees, and costs. In short, the VWPL t is a powerful law for protecting the rights of Virginia employees who stand up and “blow the whistle” on unlawful practices by their employers.

Types of Retaliation Prohibited

The VWPL protects employees who engage in protected whistleblower activities from retaliation in most aspects of the employment relationship. Specifically, the law prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee, or from taking other retaliatory action with respect to the employee’s compensation, terms, conditions, location, or privileges of employment, because the employee engages in a protected activity. VA Code § 40.1-27.3(A).

Protected Activities Under the VWPL

The VWPL includes a list of employee whistleblower activities that it protects from employer retaliation. These “protected activities” are:

The employee, or a person acting on behalf of the employee, in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
The employee is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
The employee refuses to engage in a criminal act that would subject the employee to criminal liability;
The employee refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or
The employee provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of a federal or state law or regulation.

VA Code § 40.1-27.3(A)(1)-(5) (emphasis added). The law prohibits employers from retaliating against employees for engaging in any of these activities.

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Garcetti v. Ceballos: Private Citizen Speech, Public Employment, and the First Amendment

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court reaffirmed its prior decisions that the First Amendment to the U.S. Constitution protects government employees from retaliation for speaking out as private citizens on matters of public concern. But when public employees make statements pursuant to their official duties, they are not speaking as private citizens for First Amendment purposes, and the Constitution does not protect their communications from employer discipline.

Facts

Ceballos was a supervising deputy district attorney for the Los Angeles County District Attorney’s Office, also known as a “calendar deputy.” A defense attorney asked Ceballos to review a case in which, the defense attorney claimed, police obtained a search warrant using an inaccurate affidavit. After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations.

After relaying his findings to his supervisors at the District Attorney’s Office, Ceballos followed up with a disposition memorandum recommending that the case be dismissed. The District Attorney’s Office nevertheless moved forward with prosecuting the case.

At a court hearing on the defendant’s motion to challenge the search warrant, Ceballos repeated his observations about the inaccurate affidavit. The trial court rejected the challenge.

Ceballos claimed that in the aftermath of these events, he was subjected to a series of retaliatory employment actions. These actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion.

Claiming that his supervisors at the District Attorney’s Office retaliated against him for his memorandum, in violation of his First Amendment and Fourteenth Amendment free speech rights, Ceballos filed suit. The District Court granted summary judgment against Ceballos, ruling, among other things, that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. The Ninth Circuit reversed, holding that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). The District Attorney’s Office appealed. Garcetti at 413-417.

The Court’s Decision

The Garcetti Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and therefore the Constitution does not insulate their communications from employer discipline. The Court then determined that Ceballos did not speak as a citizen when he wrote his memo and, therefore, his speech was not protected by the First Amendment.

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Comcast v. NAAAM: Law of Causation in 1981 Claims

In Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171, __ U.S. __ (March 23, 2020), the Supreme Court held that race-discrimination claims brought under the Civil Rights Act of 1886, 42 U.S.C. § 1981, are subject to a but-for standard of causation.

Background

The Civil Rights Act of 1886, now codified at 42 U.S.C. § 1981, provides that “[a]ll persons … shall have the same right … to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.]” The law has been interpreted as, inter alia, prohibiting discrimination because of race in employment and other kinds of contractual relationships.

A similar discrimination law, Title VII of the Civil Rights Act, specifically provides for a “motivating factor” causation standard — that is, an employee can prevail on a Title VII race discrimination claim by proving that her race was a “motivating factor for any employment practice, even though other factors also motivated that practice.” 42 U.S.C. § 2000e-2(m).

The statutory language of 42 U.S.C. § 1981, however, does not specify the causation standard for proving race discrimination under § 1981.

The causation standard under § 1981 is important for employees because this law is, in some ways, more powerful than Title VII. For example, while Title VII race discrimination claims are subject to caps on compensatory and punitive damages, see 42 U.S.C. § 1981a, race discrimination claims under § 1981 are not subject to damages caps.

Read about this case’s facts at TimCoffieldAttorney.com.

Title I of the Americans with Disabilities Act: Protections for Employees with Disabilities

Enacted in 1990, the Americans with Disabilities Act is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life. This includes jobs, schools, transportation, and all public and private places that are open to the general public. Similar to laws that prohibit discrimination based on race, gender, or religion, the ADA’s purpose is to ensure that people with disabilities have the same rights and opportunities as those who do not. This protects disabled individuals by guaranteeing equal opportunities in public accommodations, transportation, state and local government services, telecommunications, and employment. The ADA is divided into five titles. The first four titles each address a different sphere of public life, and the fifth section contains laws that apply generally to the first four, including protections against retaliation for people who seek to exercise their rights under the ADA:

Title I: Equal Employment Opportunities for Individuals With Disabilities;
Title II: Nondiscrimination on the Basis of Disability in State and Local Government Services;
Title III: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities;
Title IV: Telecommunications;
Title V: Miscellaneous, including protections against retaliation.

Title I of the ADA is intended to ensure disabled individuals have access to the same employment opportunities as people without disabilities. This part of the law is enforced by the Equal Employment Opportunity Commission. Among other things, this part of the law requires employers to provide reasonable accommodations to assist employees that qualify as disabled under the ADA. For example, an employer may need to provide a deaf employee with access to sign language interpreters, provide ramps for employees who use wheelchairs, or under some circumstances provide disabled employees with ergonomic desks or modified workstations.

Read the full article at TimCoffieldAttorney.net.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Tyson Foods v. Bouaphakeo: Representative Proof in Wage Classes

In Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016), the Supreme Court held that representative proof from a sample, based on an expert witness’s estimation of average time that employees spent donning and doffing protective gear, could be used to show predominance of common questions of law or fact for purposes of class certification. The Court also reaffirmed the long-held FLSA principle that where an employer fails to keep accurate time records, an employee can meet her burden by providing evidence showing hours worked as a matter of just and reasonable inference.

Facts

The plaintiffs worked for Tyson Foods. These employees worked in the kill, cut, and retrim departments of a Tyson’s pork processing plant in Iowa. Their work required them to wear protective gear, but the exact composition of the gear depended on the tasks a worker performed on a given day. Tyson compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities.

The employees filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that Tyson’s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). They also raised a claim under an Iowa state wage law.

Learn more about this case at TimCoffieldAttorney.com.

Bostock v. Clayton County: Title VII Protections for LGBTQ Employees

In the landmark Bostock v. Clayton County, No. 17–1618, 590 U.S. ___ (2020), the Supreme Court held that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

Facts

In each of three consolidated cases, an employer fired an employee at least in part for being

homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee when began playing a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. R.G. & G.R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed the company that she planned to “live and work full-time as a woman.”

Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The employees’ cases shared a common theory: that Title VII’s prohibition of workplace discrimination “because of sex” prohibited discrimination because an employee is homosexual or transgender. Their respective Circuit Courts reached conflicting conclusions. The Eleventh Circuit allowed the dismissal of Bostock’s suit, holding that Title VII does not prohibit employers from firing employees for being gay. The Second and Sixth Circuits, however, allowed Zarda’s and Stephens’ sex discrimination claims, respectively, to proceed under Title VII.

Read about the court’s decision at TimCoffieldAttorney.com.

Steiner v. Mitchell: Integral and Indispensable Equals Compensable

In the oldie-but-goldie decision of Steiner v. Mitchell, 350 U.S. 247 (1956), the Supreme Court held that time workers spend on activities performed before or after regular working hours is compensable under the Fair Labor Standards Act, if the activities are “integral and indispensable parts of the principal activity” of the worker’s employment. This holding, and the reasoning behind it, is an important principle of “donning and doffing,” equipment preparation, security screening, and similar cases, where workers seek compensation for time spent performing work-related activities off the clock or outside of regular work hours.

Facts

Steiner operated a car-battery manufacturing plant. The plant’s production employees worked with some toxic chemicals. These included lead and sulphuric acid. In the manufacturing process, some of the materials gave off dangerous fumes. Some were inevitably spilled or dropped, becoming a part of the dust in the air. In general, the chemicals permeated the entire plant and everything and everyone in it. Id. at 249-50.

In an effort to make the plant safer and thereby increase the efficiency of its operation, Steiner equipped it with shower facilities and a locker room with separate lockers for work and street clothing. Also, Steiner furnished work clothes for the employees to wear. The cost of providing their own work clothing would be prohibitive for the employees, since the acid caused such rapid deterioration that the clothes sometimes lasted only a few days. The employees regularly changed into work clothes before the beginning of the productive work period, and showered and changed back at the end of that period. In addition, the company required the employees to take afternoon baths to minimize the amount of lead oxide absorbed into their blood. These measures were thought to protect the company and the employees. Id. at 250-52.

Steiner did not pay the employees for the time they spent in these activities, which together amounted to about 30 minutes per day. Steiner conceded that the employees’ clothes-changing and showering activities were indispensable to and integrally related to the performance of their productive work. Steiner, however, contended that these activities fell outside the concept of a “‘principal activity’ and that, being performed off the production line and before or after regular shift hours, the time employees spent doing them was not compensable time under the Fair Labor Standards Act. Id. at 250-52.

Read the full analysis at TimCoffieldAttorney.com

Title VII of the Civil Rights Act of 1964: Protecting Employees from Race, Sex, Religion, and National Origin Discrimination

The Civil Rights Act of 1964 is a federal law enacted to prevent discrimination based on an individual’s race, color, sex, religion, or national origin. Title VII of the Civil Rights Act of the 1964 protects individuals against discrimination in employment. Under Title VII, an employer may not discriminate against employees or job applicants based on characteristics such as race, color, sex, religion, or national origin. Title VII also prohibits employers from retaliating against employees who participate in complaints or investigations of discrimination, or who otherwise oppose various kinds of discrimination. These provisions apply to all employers in both the private and public sectors, including federal, state, and local governments, that employ 15 or more individuals. In general, Title VII protects employees from discrimination or retaliation in a wide variety of employment processes and circumstances, including:

Recruiting
Hiring
Promoting
Training
Transferring
Disciplining
Discharging
Assigning work
Measuring performance
Providing benefits

Under Title VII, covered employees or job applicants cannot cannot be treated differently based on their race, religion, sex, or national origin. Additionally, the law provides that employers cannot discriminate against other employees because of their association with co-workers who may be discriminated against based on these protected characteristics. An employer’s policies and practices may be considered discriminatory under Title VII based on disparate treatment or disparate impact. Disparate treatment typically involves an employer’s intentional discrimination against an employee based on his or her protected characteristics. Disparate impact, by contrast, does not necessarily require discriminatory intent. Rather, under a disparate impact theory, an employer’s policy or practice might run afoul of Title VII if it disproportionately harms employees of certain gender or race (for example) as compared to other employees of a different gender or race — regardless of whether the employer intended the policy or practice to have a discriminatory effect.

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Genesis Healthcare v. Symczyk: Rule 68 and Collective Actions

In Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013), the Supreme Court held that a putative Fair Labor Standards Act collective action brought by one employee on behalf of others was no longer justiciable when, as conceded by the employee, her individual claim became moot before others joined the case.

Facts

Symzcyk worked for Genesis Healthcare as a registered nurse. In 2009, Symczyk brought a putative collective action under the FLSA on behalf of herself and “other employees similarly situated.” 29 U.S.C. § 216(b). She alleged Genesis violated the FLSA by automatically deducting 30 minutes of time worked per shift for meal breaks for certain employees, even when the employees performed compensable work during those breaks. Symcyzk, who remained the sole plaintiff throughout the case, sought statutory damages for the alleged violations.

After Symczyk filed suit, but before any other employees joined the suit, the employer sent Symczyk an offer of judgment under Federal Rule of Civil Procedure 68, which Symczyk ignored. The offer had proposed to pay all of her statutory damages, plus costs and reasonable attorney’s fees. The District Court, finding that no one else had joined the case, and that the Rule 68 offer fully satisfied Symczyk’s claim, concluded that Symczyk’s suit was moot. The court therefore dismissed the case for lack of subject-matter jurisdiction.

The Third Circuit reversed, holding that while Symczyk’s individual claim was moot, the collective action on behalf of other similar employees was not. The Third Circuit reasoned that allowing employers to use calculated Rule 68 offers to “pick off” named plaintiff-employees before certification would frustrate the goals of collective actions. The court therefore remanded the case to the trial court, with instructions to allow Symczyk to seek conditional certification of the collective action and move forward with the case on behalf of other employees who might join. See 569 U.S. at 69-71.

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