HB 2 impacts minority biz owner protectionsBy Yasmine Regester / April 7, 2016
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Nationally referred to as “the bathroom law,” North Carolina House Bill 2, which passed in the General Assembly on March 23, restricts local governments from passing ordinances to protect members of the LGBTQ community. The law also impacts requirements and protections for minority business owners when participating in government contracting.
The Greensboro City Council passed a resolution in an 8 to 1 vote in opposition of HB 2 at its April 5 meeting, with District 5 Councilmember Tony Wilkins voting no. The resolution affirms the city’s stance against discrimination in city services and prohibits discrimination on the basis of sex, race, gender, color, ethnicity, national origin, age, familial status, military status, political affiliation, religion, physical or mental disability, genetic information, sexual orientation, gender expression, or gender identity.
“I am very concerned that what has happened at the state level has been very disrespectful of our citizens,” said District 1 Councilmember Sharon Hightower, who noted the bill also impacts city contracts. “It will affect contracts, and what the city can and cannot require. There’s no way around it.”
District 3 Councilmember and local attorney, Justin Outling also supported the resolution saying, “This [HB 2] is a bad bill all around.”
N.C. House Rep. John Blust spoke in support of the law at the City Council meeting stating, “As the parent of a young daughter, I’m not willing to have her and her friends and her teammates have to undress in front of someone with male anatomy,” said Blust.
Greensboro, as well as other municipalities in the state, had previously passed various ordinances aimed at protecting people in minority groups, including the LGBTQ community, all of which were eliminated by the passage of HB 2. Governor Pat McCrory said in a video news analysis released on April 1, as well as in statements, that House Bill 2 does not take away any existing protections.
“We have not taken away any rights that have currently existed in any city in North Carolina,” said McCrory in a released statement.
However, HB 2 did take away the rights of cities to put certain anti-discrimination requirements on private contractors, and it also took away the rights of cities and counties to pass their own in-house anti-discrimination policies.
Local municipalities have asked the state not to insert control over local government matters, but North Carolina follows what is better known as “Dillon’s Rule,” a common rule allowing the state legislature to control local governments. “Dillon’s Rule” dates back to Reconstruction and is tied to the Tenth Amendment of the U.S. Constitution stating that a sub state government may engage in an activity only if it is specifically sanctioned by the state government. North Carolina and 38 other states have this rule in place.
According to The City of Greensboro’s Minority Women’s Business Enterprise mission statement, the program is designed to “provide minorities and women equal opportunity to participate in all aspects of City contracting and purchasing programs and prohibits discrimination against a person or business in pursuit of these opportunities on the basis of race, color, sex, religion or national origin.”
Although City of Greensboro officials don’t believe HB 2 will change how the M/WBE program operates, Gwen Carr, Greensboro’s M/WBE program coordinator noted that every contract and subcontract contains a nondiscrimination clause that now reads to exclude sexual orientation.
Representatives with the City of Greensboro attorney’s office say they are continuing to examine the law, but as of right now, all of Greensboro’s ordinances on contracting are in conformity with state law, which mandates that cities set development goals for underutilized areas.
HB 2 also takes away the right of everyone in North Carolina to file a state-level lawsuit alleging a discriminatory firing. It would instead be filed in federal court, which gives less time to file a suit and is more costly.
N.C. District 28, Senator Gladys Robinson noted that the legislation refers to gender, which not only impacts the LBGT community, but women as well.
“It keeps folks from being able to file a lawsuit for discriminatory purposes. That takes away rights for all individuals. In terms of cities and local governments being able to issue contracts and decide who has the opportunity to bid and what proportion they will give people, it does impact that. It has far reaching impact on what cities can and can’t do. You can’t determine who is going to come to your city to do business and if they won’t discriminate against other companies,” said Robinson.
Some legislators have stated they want to offer amendments to HB 2 during the short session at the end of the month. According to Robinson, the Democratic delegation has discussed filing a motion to repeal the bill.
“North Carolina is already being impacted. We’re already losing jobs and revenue. It takes away some of the protections everyone has enjoyed,” said Robinson.
Examination of the law by the N.C. General Assembly Legislative Analysis Division explains that state legislation supersedes or trumps regulations by local governments pertaining to employee compensation. However, the law does create exceptions that would allow local government to create employer compensation requirements in some circumstances, such as certain economic development programs.
The N.C. Historically Underutilized Businesses (HUB) office stated that HB 2 has not changed HUB statutes, and all local governments must still comply with them. State law currently requires good faith efforts to solicit and encourage historically underutilized business participation in building construction projects.
State lawmakers return to the General Assembly for the short session on April 25.
Calls made to HB 2 supporters, N.C. House Reps. John Faircloth (R-District 61) and Jon Hardister (R-District 57) were not returned