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Department of Justice Warns Governor that North Carolina LGBT Law is Unlawful

North Carolina’s law restricting access to restrooms based on an individual’s sex assigned at birth and not based on an individual’s consistent gender identity violates both Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972, the United States Department of Justice has said in a letter to North Carolina Governor Pat McCrory dated May 4, 2016. The DOJ also instructed Governor McCrory that he has until May 9, 2016, to respond by confirming that the state will not implement the law.

North Carolina risks losing hundreds of millions of dollars in federal funding if Governor McCrory defies the warning and continues supporting the law. As of May 5, at least five federal agencies, including the United States Department of Education, which provides federal funds to educational institutions, are weighing whether to withhold federal funds from the North Carolina.

The DOJ’s letter comes on the heels of a flurry of activity from federal agencies as well as a ruling from the U.S. Court of Appeals for the Fourth Circuit, in Richmond, relating to transgender discrimination. In G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 15-2056 (4th Cir. Apr. 19, 2016), the Court, whose jurisdiction encompasses North Carolina, ruled that a lower court improperly dismissed the claim of a transgender male plaintiff who alleged that the Gloucester, Virginia, school district’s policy barring him from the boys’ bathroom violated Title IX. This follows the Department of Education’s directive in recent resolution agreements and findings determining that rules prohibiting transgender individuals from using the bathroom of the sex by which they identify violates Title IX. (See our article, School District Faces Government Sanctions under Title IX for Denying Transgender Female Student Access to Locker Rooms.)

In addition, the Equal Employment Opportunity Commission on May 3, 2016, released a new fact sheet focusing on bathroom access and reminding employers that discrimination based on transgender status is sex discrimination in violation of Title VII. (See our article, EEOC Stresses Title VII Bars Discrimination against Transgender Workers, Including Regarding Bathroom Access.) OSHA also has issued A Guide to Restroom Access for Transgender Workers, identifying what it considers to be best practices.

Both employers and education institutions should stay apprised of both employee and student protections and ensure that their anti-discrimination and anti-retaliation policies comply with the applicable laws.

Finally, the Department of Justice sent similar letters to the North Carolina Department of Public Safety and the University of North Carolina notifying them of the DOJ’s conclusion that “they have engaged in violations of Title VII as well as violations of Title IX” and other regulations.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 126

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Ann H. Smith, Jackson Lewis, Disability Claims Attorney, Shareholder, Raleigh,
Principal

Ann H. Smith is a Shareholder in the Raleigh, North Carolina, office of Jackson Lewis P.C. She has practiced employment law since 1996, and has handled a wide variety of employment matters before federal and state courts and administrative agencies.

Ms. Smith has represented and advised Fortune 250 companies as well as governmental entities. Her litigation experience includes general employment law disputes involving claims pursuant to the ADA, FMLA, FLSA, and Title VII. Ms. Smith has also represented numerous public...

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Michelle E. Phillips, Jackson Lewis Law Firm, Labor Employment Attorney
Principal

Michelle E. Phillips is a Principal in the White Plains, New York, office of Jackson Lewis P.C. She handles various types of employment litigation, with an emphasis on sexual harassment matters.

Ms. Phillips also counsels clients on a variety of labor and employment matters concerning federal and state employment laws. She frequently conducts and advises clients on internal investigations and leads employment discrimination and sexual harassment seminars and in-house diversity training programs for clients.

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Bethany Wagner, NCAA Attorney, Jackson Lewis Law Firm
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Bethany Swaton Wagner is an Associate in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. She practices in the areas of employment and Title IX and NCAA compliance.

In her employment practice, Ms. Wagner focuses on preventative human resource policy development, training, and advice and counseling. She also develops and reviews policy and handbooks, particularly for multi-state issues and compliance. In addition, Ms. Wagner represents employers in employment-related litigation before administrative agencies and courts on the federal and state levels...

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