United States: What North Carolina Employers Need To Know About New "Bathroom Law"

Last Updated: April 19 2016
Article by Adam Bridgers and Lisa McGlynn

On April 12, 2016, North Carolina Governor Pat McCrory issued an Executive Order to clarify and somewhat lessen the impact of what has widely been referred to as the state's new "bathroom law." The new law, passed a few weeks ago, makes clear that the state government, located in Raleigh, will set uniform antidiscrimination laws for the entire state. Hence, North Carolina cities and counties cannot pass their own antidiscrimination laws, including any that would provide greater protections to LGBT individuals (most specifically those who are transgender).

While the Executive Order seeks to provide some measure of relief against sexual orientation and gender identity discrimination, critics are already deriding the action as a poor effort. What do North Carolina employers need to know about what has widely been referred to as the "bathroom law" and the subsequent Executive Order?

What Changed With The New State Law?

Employers and places of public accommodation in North Carolina have long been prohibited by state law from discriminating based upon someone's race, religion, national origin, color, age, sex, and handicap. On March 23, 2016, the state General Assembly passed and the Governor signed into law House Bill 2 (HB2), which primarily prevents local governments from passing their own laws expanding the state's antidiscrimination protections. HB2 defined the statewide protected classes as race, religion, national origin, color, age, handicap, and biological sex, which the law defines as the sex designated on a person's birth certificate.

Further, North Carolina has long tied its minimum wage to the federal minimum wage (currently both sit at $7.25 per hour). HB2 also prevents cities and counties in the state from increasing the minimum wage beyond that level.

Why The Change?

The passage of HB2 is largely seen as a response to a February 22, 2016 ordinance passed by the Charlotte City Council which would have granted additional protections to LGBT people in places of public accommodation. This ordinance, which would have gone into effect on April 1, would have legally protected transgender people who used public restrooms based on the gender with which they identify.

Why Is It Called The "Bathroom Law?"

In other words, a transgender female (someone who was biologically born a male but identifies as a female) would have had the legally protected right in Charlotte to use the woman's restroom at any place of public accommodation. However, by passing HB2, the General Assembly effectively reversed Charlotte's ordinance before it even went into effect, and also preempted any similar attempts that other local governments may have been contemplating.

What Else Is Covered?

However, the law goes much further than just covering bathrooms and public bathrooms. Subject to limited exceptions, HB2 also specifies that local boards of education and public agencies "shall require every multiple occupancy bathroom or changing facility" be designated for and only used by individuals based on their biological sex.

More importantly for employers, the new law also limited how people pursue claims of discrimination. Prior to HB2, individuals in North Carolina could maintain common law cause of action for wrongful discharge based on the state's antidiscrimination statute. HB2 eliminated that claim.

How Does The Executive Order Change Things Further?

North Carolina has been facing pressure from advocacy groups and businesses that believe the new law permits discrimination against individuals based on sexual orientation and gender identity. In an attempt to clarify and improve the law, the Governor signed Executive Order No. 93 on April 12, 2016, "To Protect Privacy and Equality." The Executive Order addresses several issues related to the new law.

First, the Executive Order expands the state's employment policy for public employees to cover sexual orientation and gender identity. This provision of the Order only impacts government employers and workers, and does not affect private businesses.

Second, Executive Order No. 93 affirms that private business, nonprofit employers, and local governments may establish their own nondiscrimination employment policies covering their own employees.

Third, while state law continues to hold that every multiple occupancy restroom, locker room, or shower facility located in a cabinet agency must be used only by persons based upon their biological sex, the Executive Order states that the agencies shall make the "reasonable accommodation" of a single occupancy restroom, locker room, or shower facility upon a request due to "special circumstances."

It also calls for the General Assembly to "take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination." Whether the General Assembly will do so remains to be seen. Executive Order No. 93 did not address HB2's prohibition on local governments from setting their own minimum wage.

How Does This Impact Employers?

The Executive Order does not appear to substantively change HB2. It makes clear that, if you are a private business in North Carolina, as far as the state is concerned, you can establish your own practice concerning LGBT employees and customers. If you choose to create and enforce a policy or practice prohibiting discrimination based on sexual orientation, gender identity, or transgender status, you may do so without running afoul of state law. Similarly, you may still choose to allow people to use the restroom of their choice.

The Executive Order also clarifies that local governments have the right to establish nondiscrimination policies for their own employees. If you are a state employer, you should know that your equal employment policy now includes sexual orientation and gender identity. Nonetheless, the extent to which this provides any real protection to state employees remains to be seen, as the Executive Order did not appear to provide any substantive rights under state law.

Do Employers Now Have Freedom To Discriminate?

If you believe that the "bathroom law" gives you license to discriminate against applicants or workers without consequence, think again. You could still find yourself in legal hot water if you do so. Notwithstanding the new state law, you need to consider federal law before taking action on the basis of someone's gender identity or sexual orientation. Importantly, the law does not affect federal discrimination claims. Thus, aggrieved individuals may still turn to federal courts in cases of discrimination.

For example, Title VII, which applies to businesses that have 15 or more employees, prohibits discrimination on the basis of one's sex (among other things). Over the years, courts and the EEOC have interpreted the term "sex" to mean gender identity and to include any type of bias based on sex (including same sex). As recently as last month, in fact, the EEOC filed several lawsuits against employers arguing that Title VII covers sexual orientation discrimination (read more here).

Additionally, OSHA may assess fines against businesses for creating conditions that lead to health and safety problems, or otherwise make employees feel unsafe. This could include mandating that employees use the restroom that corresponds with their anatomy at birth instead of their gender identity (read more here).

Moreover, government contractors should tread carefully. A 2014 Executive Order extends antidiscrimination protection to members of the LGBT community, meaning that you have additional obligations regardless of state law (read more here).

What Happens From Here?

Other states have also recently taken action with regard to legislation impacting the LGBT community and restroom use. Mississippi's "Religious Freedom" law is one such example (read more here). These laws have also brought a great deal of public attention, and in some cases backlash and threats of legal challenges and boycotts.

North Carolina has not escaped this controversy. For example, Bruce Springsteen recently cancelled his concert in Greensboro because of his disagreement with HB2, and several prominent businesses have announced their decision to rethink or curtail their dealings in the state. Such public scrutiny has already resulted in the Governor clarifying and suggesting improvements to the bathroom law through the Executive Order. A similar response to public scrutiny happened in 2015 with Indiana's Religious Freedom Restoration Act.

It does not appear as if the Executive Order has entirely solved this debate. The local ACLU chapter immediately announced that the Governor's action was a "poor effort" to address the matter and fell short of addressing its concerns. The General Assembly, which will soon convene in a short session, may be called upon to take further action in the not-too-distant future. Unless and until that happens, however, HB2 and the Executive Order are the law of the land in North Carolina.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Adam Bridgers
Lisa McGlynn
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.