Text of NC H 1049 (2009)

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2009 H 1 HOUSE BILL 1049 Short Title: Nondiscrimination in State/Teacher Emp. (Public) Sponsors: Representatives Luebke, Bryant, M. Alexander, Womble (Primary Sponsors); Bell, Cotham, Fisher, Hall, Harrell, Harrison, Insko, Lucas, Mackey, Parmon, Ross, and Weiss. Referred to: Education, if favorable, State Government/State Personnel. April 6, 2009 *H1049-v-1* A BILL TO BE ENTITLED 1 AN ACT AMENDING THE STATE PERSONNEL ACT TO INCLUDE SEXUAL 2 ORIENTATION AND GENDER IDENTITY OR EXPRESSION TO THE LIST OF 3 CLASSIFICATIONS COVERED BY THE STATE'S EQUAL EMPLOYMENT 4 OPPORTUNITY LAW AND REQUIRING LOCAL BOARDS OF EDUCATION TO 5 ADOPT POLICIES FOR NONDISCRIMINATION IN EMPLOYMENT INCLUDING 6 SEXUAL ORIENTATION AND GENDER IDENTITY OR EXPRESSION AMONG THE 7 COVERED CLASSIFICATIONS. 8 The General Assembly of North Carolina enacts: 9 SECTION 1. G.S. 126-16 reads as rewritten: 10 "§ 126-16. Equal opportunity for employment and compensation by State departments 11 and agencies and local political subdivisions. 12 All State departments and agencies and all local political subdivisions of North Carolina 13 shall give equal opportunity for employment and compensation, without regard to race, 14 religion, color, creed, national origin, sex, age, sexual orientation, gender identity or 15 expression, or handicapping condition as defined in G.S. 168A-3 to all persons otherwise 16 qualified, except where specific age, sex or physical requirements constitute bona fide 17 occupational qualifications necessary to proper and efficient administration. This section with 18 respect to equal opportunity as to age shall be limited to individuals who are at least 40 years of 19 age." 20 SECTION 2. G.S. 126-34.1 reads as rewritten: 21 "§ 126-34.1. Grounds for contested case under the State Personnel Act defined. 22 (a) A State employee or former State employee may file in the Office of Administrative 23 Hearings a contested case under Article 3 of Chapter 150B of the General Statutes only as to 24 the following personnel actions or issues: 25 (1) Dismissal, demotion, or suspension without pay based upon an alleged 26 violation of G.S. 126-35, if the employee is a career State employee. 27 (2) An alleged unlawful State employment practice constituting discrimination, 28 as proscribed by G.S. 126-36, including: 29 a. Denial of promotion, transfer, or training, on account of the 30 employee's age, sex, race, color, national origin, religion, creed, 31 political affiliation, sexual orientation, gender identity or expression, 32 or handicapping condition as defined by Chapter 168A of the 33 General Statutes. 34 General Assembly of North Carolina Session 2009 Page 2 House Bill 1049-First Edition b. Demotion, reduction in force, or termination of an employee in 1 retaliation for the employee's opposition to alleged discrimination on 2 account of the employee's age, sex, race, color, national origin, 3 religion, creed, political affiliation, sexual orientation, gender 4 identity or expression, or handicapping condition as defined by 5 Chapter 168A of the General Statutes. 6 (3) Retaliation against an employee, as proscribed by G.S. 126-17, for protesting 7 an alleged violation of G.S. 126-16. 8 (4) Denial of the veteran's preference granted in accordance with Article 13 of 9 this Chapter in initial State employment or in connection with a reduction in 10 force, for an eligible veteran as defined by G.S. 126-81. 11 (5) Denial of promotion for failure to post or failure to give priority 12 consideration for promotion or reemployment, to a career State employee as 13 required by G.S. 126-7.1 and G.S. 126-36.2. 14 (6) Denial of an employee's request for removal of allegedly inaccurate or 15 misleading information from the employee's personnel file as provided by 16 G.S. 126-25. 17 (7) Any retaliatory personnel action that violates G.S. 126-85. 18 (8) Denial of promotion in violation of G.S. 126-14.2, where an initial 19 determination found probable cause to believe there has been a violation of 20 G.S. 126-14.2. 21 (9) Denial of employment in violation of G.S. 126-14.2, where an initial 22 determination found probable cause to believe that there has been a violation 23 of G.S. 126-14.2. 24 (10) Harassment in the workplace based upon age, sex, race, color, national 25 origin, religion, creed, sexual orientation, gender identity or expression, or 26 handicapping condition, whether the harassment is based upon the creation 27 of a hostile work environment or upon a quid pro quo. 28 (11) Violation of any of the following federal statutes as applied to the employee: 29 a. The Fair Labor Standards Act, 29 U.S.C. § 201, et seq. 30 b. The Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. 31 c. The Family Medical Leave Act, 29 U.S.C. § 2601, et seq. 32 d. The Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. 33 (b) An applicant for initial State employment may file in the Office of Administrative 34 Hearings a contested case under Article 3 of Chapter 150B of the General Statutes based upon: 35 (1) Alleged denial of employment in violation of G.S. 126-16. 36 (2) Denial of the applicant's request for removal of allegedly inaccurate or 37 misleading information from the personnel file as provided by G.S. 126-25. 38 (3) Denial of equal opportunity for employment and compensation on account 39 of the employee's age, sex, race, color, national origin, religion, creed, 40 political affiliation, sexual orientation, gender identity or expression, or 41 handicapping condition as defined by Chapter 168A of the General Statutes. 42 This subsection with respect to equal opportunity as to age shall be limited 43 to persons who are at least 40 years of age. An applicant may not, however, 44 file a contested case where political affiliation was the reason for the 45 person's nonselection for (i) an exempt policymaking position as defined in 46 G.S. 126-5(b)(3), (ii) a chief deputy or chief administrative assistant position 47 under G.S. 126-5(c)(4), or (iii) a confidential assistant or confidential 48 secretary position under G.S. 126-5(c)(2). 49 (4) Denial of the veteran's preference in initial State employment provided by 50 Article 13 of this Chapter, for an eligible veteran as defined by G.S. 126-81. 51 General Assembly of North Carolina Session 2009 House Bill 1049-First Edition Page 3 (5) Denial of employment in violation of G.S. 126-14.2, where an initial 1 determination found probable cause to believe that there has been a violation 2 of G.S. 126-14.2. 3 (c) In the case of a dispute as to whether a State employee's position is properly 4 exempted from the State Personnel Act under G.S. 126-5, the employee may file in the Office 5 of Administrative Hearings a contested case under Article 3 of Chapter 150B of the General 6 Statutes. 7 (d) A State employee or applicant for State employment may file in the Office of 8 Administrative Hearings a contested case under Article 3 of Chapter 150B of the General 9 Statutes based upon a false accusation regarding, or disciplinary action relating to, the 10 employee's alleged violation of G.S. 126-14 or G.S. 126-14.1. 11 (e) Any issue for which appeal to the State Personnel Commission through the filing of 12 a contested case under Article 3 of Chapter 150B of the General Statutes has not been 13 specifically authorized by this section shall not be grounds for a contested case under Chapter 14 126." 15 SECTION 3. G.S. 126-36 reads as rewritten: 16 "§ 126-36. Appeal of unlawful State employment practice. 17 (a) Any State employee or former State employee who has reason to believe that 18 employment, promotion, training, or transfer was denied the employee or that demotion, layoff, 19 transfer, or termination of employment was forced upon the employee in retaliation for 20 opposition to alleged discrimination or because of the employee's age, sex, race, color, national 21 origin, religion, creed, political affiliation, sexual orientation, gender identity or expression, or 22 handicapping condition as defined by G.S. 168A-3 except where specific age, sex or physical 23 requirements constitute a bona fide occupational qualification necessary to proper and efficient 24 administration, shall have the right to appeal directly to the State Personnel Commission. 25 (b) Subject to the requirements of G.S. 126-34, any State employee or former State 26 employee who has reason to believe that the employee has been subjected to any of the 27 following shall have the right to appeal directly to the State Personnel Commission: 28 (1) Harassment in the workplace based upon age, sex, race, color, national 29 origin, religion, creed, sexual orientation, gender identity or expression, or 30 handicapping condition, whether the harassment is based upon the creation 31 of a hostile work environment or upon a quid pro quo. 32 (2) Retaliation for opposition to harassment in the workplace based upon age, 33 sex, race, color, national origin, religion, creed, sexual orientation, gender 34 identity or expression, or handicapping condition, whether the harassment is 35 based upon the creation of a hostile work environment or upon a quid pro 36 quo." 37 SECTION 4. Article 22 of Chapter 115C of the General Statutes is amended by 38 adding a new part to read: 39 "Part 9. Nondiscrimination in School Employment. 40 "§ 115C-335.10. School personnel nondiscrimination policy. 41 (a) Each local board of education shall adopt a policy of nondiscrimination in its 42 personnel policies and practices on the basis of race, religion, color, national origin, age, sex, 43 sexual orientation, gender identity or expression, or disability. 44 (b) For the purposes of this section, the term "school personnel" means any (i) 45 employee of a local board of education whether full-time or part-time or (ii) independent 46 contractor or employee of an independent contractor of a local board of education, if the 47 independent contractor carries out duties customarily performed by school personnel, whether 48 paid with federal, State, local, or other funds. The term includes substitute teachers, driver 49 training teachers, bus drivers, clerical staff, and custodians." 50 General Assembly of North Carolina Session 2009 Page 4 House Bill 1049-First Edition SECTION 5. Nothing in this act shall be construed as requiring the State, or any 1 employer, employment agency, or labor organization to give preferential treatment or special 2 rights based on sexual orientation, gender identity or expression, or to implement special 3 affirmative action policies or programs based on sexual orientation, gender identity or 4 expression. 5 SECTION 6. This act is effective when it becomes law. 6