Text of NC H 1789 (2007)

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2007 H 1 HOUSE BILL 1789* Short Title: Nondiscrimination in State Employment. (Public) Sponsors: Representatives Luebke, Womble (Primary Sponsors); Adams, Alexander, Carney, Coleman, Cotham, Cunningham, Farmer-Butterfield, Fisher, Glazier, Goodwin, Hall, T. Harrell, Harrison, Insko, Jones, Martin, Mobley, Pierce, Ross, Wainwright, Weiss, and Wray. Referred to: State Personnel, if favorable, Judiciary I. April 19, 2007 A BILL TO BE ENTITLED 1 AN ACT AMENDING THE NONDISCRIMINATION AND EQUAL 2 OPPORTUNITY PROVISIONS OF THE STATE PERSONNEL ACT TO COVER 3 SEXUAL ORIENTATION AND CLARIFYING THE PERSONNEL POLICIES 4 OF THE GENERAL ASSEMBLY. 5 The General Assembly of North Carolina enacts: 6 SECTION 1. Article 7 of Chapter 120 of the General Statutes is amended by 7 adding a new section to read: 8 "§ 120-32.04. Legislative personnel nondiscrimination policy. 9 The General Assembly shall not discriminate in any of its personnel policies, 10 practices, or benefits on the basis of race, religion, color, national origin, age, sex, 11 sexual orientation, or disability." 12 SECTION 2. G.S. 126-16 reads as rewritten: 13 "§ 126-16. Equal opportunity for employment and compensation by State 14 departments and agencies and local political subdivisions. 15 All State departments and agencies and all local political subdivisions of North 16 Carolina shall give equal opportunity for employment and compensation, without regard 17 to race, religion, color, creed, national origin, sex, age, sexual orientation, or 18 handicapping condition as defined in G.S. 168A-3 to all persons otherwise qualified, 19 except where specific age, sex or physical requirements constitute bona fide 20 occupational qualifications necessary to proper and efficient administration. This 21 section with respect to equal opportunity as to age shall be limited to individuals who 22 are at least 40 years of age." 23 SECTION 3. G.S. 126-34.1 reads as rewritten: 24 "§ 126-34.1. Grounds for contested case under the State Personnel Act defined. 25 General Assembly of North Carolina Session 2007 Page 2 House Bill 1789*-First Edition (a) A State employee or former State employee may file in the Office of 1 Administrative Hearings a contested case under Article 3 of Chapter 150B of the 2 General Statutes only as to the following personnel actions or issues: 3 (1) Dismissal, demotion, or suspension without pay based upon an alleged 4 violation of G.S. 126-35, if the employee is a career State employee. 5 (2) An alleged unlawful State employment practice constituting 6 discrimination, as proscribed by G.S. 126-36, including: 7 a. Denial of promotion, transfer, or training, on account of the 8 employee's age, sex, race, color, national origin, religion, creed, 9 political affiliation, sexual orientation, or handicapping 10 condition as defined by Chapter 168A of the General Statutes. 11 b. Demotion, reduction in force, or termination of an employee in 12 retaliation for the employee's opposition to alleged 13 discrimination on account of the employee's age, sex, race, 14 color, national origin, religion, creed, political affiliation, sexual 15 orientation, or handicapping condition as defined by Chapter 16 168A of the General Statutes. 17 (3) Retaliation against an employee, as proscribed by G.S. 126-17, for 18 protesting an alleged violation of G.S. 126-16. 19 (4) Denial of the veteran's preference granted in accordance with Article 20 13 of this Chapter in initial State employment or in connection with a 21 reduction in force, for an eligible veteran as defined by G.S. 126-81. 22 (5) Denial of promotion for failure to post or failure to give priority 23 consideration for promotion or reemployment, to a career State 24 employee as required by G.S. 126-7.1 and G.S. 126-36.2. 25 (6) Denial of an employee's request for removal of allegedly inaccurate or 26 misleading information from the employee's personnel file as provided 27 by G.S. 126-25. 28 (7) Any retaliatory personnel action that violates G.S. 126-85. 29 (8) Denial of promotion in violation of G.S. 126-14.2, where an initial 30 determination found probable cause to believe there has been a 31 violation of G.S. 126-14.2. 32 (9) Denial of employment in violation of G.S. 126-14.2, where an initial 33 determination found probable cause to believe that there has been a 34 violation of G.S. 126-14.2. 35 (10) Harassment in the workplace based upon age, sex, race, color, national 36 origin, religion, creed, sexual orientation, or handicapping condition, 37 whether the harassment is based upon the creation of a hostile work 38 environment or upon a quid pro quo. 39 (11) Violation of any of the following federal statutes as applied to the 40 employee: 41 a. The Fair Labor Standards Act, 29 U.S.C. § 201, et seq. 42 b. The Age Discrimination in Employment Act, 29 U.S.C. § 621, 43 et seq. 44 General Assembly of North Carolina Session 2007 House Bill 1789*-First Edition Page 3 c. The Family Medical Leave Act, 29 U.S.C. § 2601, et seq. 1 d. The Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. 2 (b) An applicant for initial State employment may file in the Office of 3 Administrative Hearings a contested case under Article 3 of Chapter 150B of the 4 General Statutes based upon: 5 (1) Alleged denial of employment in violation of G.S. 126-16. 6 (2) Denial of the applicant's request for removal of allegedly inaccurate or 7 misleading information from the personnel file as provided by 8 G.S. 126-25. 9 (3) Denial of equal opportunity for employment and compensation on 10 account of the employee's age, sex, race, color, national origin, 11 religion, creed, political affiliation, sexual orientation, or handicapping 12 condition as defined by Chapter 168A of the General Statutes. This 13 subsection with respect to equal opportunity as to age shall be limited 14 to persons who are at least 40 years of age. An applicant may not, 15 however, file a contested case where political affiliation was the reason 16 for the person's nonselection for (i) an exempt policymaking position 17 as defined in G.S. 126-5(b)(3), (ii) a chief deputy or chief 18 administrative assistant position under G.S. 126-5(c)(4), or (iii) a 19 confidential assistant or confidential secretary position under 20 G.S. 126-5(c)(2). 21 (4) Denial of the veteran's preference in initial State employment provided 22 by Article 13 of this Chapter, for an eligible veteran as defined by 23 G.S. 126-81. 24 (5) Denial of employment in violation of G.S. 126-14.2, where an initial 25 determination found probable cause to believe that there has been a 26 violation of G.S. 126-14.2. 27 (c) In the case of a dispute as to whether a State employee's position is properly 28 exempted from the State Personnel Act under G.S. 126-5, the employee may file in the 29 Office of Administrative Hearings a contested case under Article 3 of Chapter 150B of 30 the General Statutes. 31 (d) A State employee or applicant for State employment may file in the Office of 32 Administrative Hearings a contested case under Article 3 of Chapter 150B of the 33 General Statutes based upon a false accusation regarding, or disciplinary action relating 34 to, the employee's alleged violation of G.S. 126-14 or G.S. 126-14.1. 35 (e) Any issue for which appeal to the State Personnel Commission through the 36 filing of a contested case under Article 3 of Chapter 150B of the General Statutes has 37 not been specifically authorized by this section shall not be grounds for a contested case 38 under Chapter 126." 39 SECTION 4. G.S. 126-36 reads as rewritten: 40 "§ 126-36. Appeal of unlawful State employment practice. 41 (a) Any State employee or former State employee who has reason to believe that 42 employment, promotion, training, or transfer was denied the employee or that demotion, 43 layoff, transfer, or termination of employment was forced upon the employee in 44 General Assembly of North Carolina Session 2007 Page 4 House Bill 1789*-First Edition retaliation for opposition to alleged discrimination or because of the employee's age, 1 sex, race, color, national origin, religion, creed, political affiliation, sexual orientation, 2 or handicapping condition as defined by G.S. 168A-3 except where specific age, sex or 3 physical requirements constitute a bona fide occupational qualification necessary to 4 proper and efficient administration, shall have the right to appeal directly to the State 5 Personnel Commission. 6 (b) Subject to the requirements of G.S. 126-34, any State employee or former 7 State employee who has reason to believe that the employee has been subjected to any 8 of the following shall have the right to appeal directly to the State Personnel 9 Commission: 10 (1) Harassment in the workplace based upon age, sex, race, color, national 11 origin, religion, creed, sexual orientation, or handicapping condition, 12 whether the harassment is based upon the creation of a hostile work 13 environment or upon a quid pro quo. 14 (2) Retaliation for opposition to harassment in the workplace based upon 15 age, sex, race, color, national origin, religion, creed, or handicapping 16 condition, whether the harassment is based upon the creation of a 17 hostile work environment or upon a quid pro quo." 18 SECTION 5. G.S. 12-3 is amended by adding a new subdivision to read: 19 "(14) 'Sexual orientation.' – The phrase 'sexual orientation' means actual or 20 perceived heterosexuality, homosexuality, or bisexuality, or a person's 21 gender-related identity or expression." 22 SECTION 6. This act is effective when it becomes law. 23