Filing an Employment Discrimination Claim in North Carolina

North Carolina Law Regarding Workplace Discrimination

Under N.C. Gen. Stat. § 143-422.2, “[i]t is the public policy of [North Carolina] to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.”

Under N.C. Gen. Stat. § 95-28.1, it is unlawful for an employer to “deny or refuse employment to any person or discharge any person from employment on account of the fact such person possesses sickle cell trait or hemoglobin C trait.”

Under N.C. Gen. Stat § 130A-148, it is illegal to discriminate on the basis of AIDS or HIV condition, but the statute allows an employer to require applicants to take a pre-employment HIV test. Employers are allowed to deny employment based on a positive test result, but may not test or discriminate against current employees.

Lastly, under N.C. Gen. Stat. § 168A-5(a)(1), it is unlawful for an “employer to fail to hire or consider for employment or promotion, to discharge, or otherwise to discriminate against a qualified person with a disability on the basis of a disabling condition with respect to compensation or the terms, conditions, or privileges of employment.

***Please note that under federal law, discrimination is also prohibited under Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; the Employees with Disabilities Act, the Equal Pay Act, and the Civil Rights Act of 1991. 

Where do you File a Discrimination Claim in North Carolina

North Carolina’s state administrative agency does not process claims under the state anti-discrimination law. However, The Office of Administrative Hearings is designated to serve as the State’s deferral agency for cases deferred by the Equal Employment Opportunity Commission (EEOC) to the Office of Administrative Hearings for charges filed by State or local government employees. Deferred claims can be filed with either the EEOC or The Office of Administrative Hearings. Otherwise, in order to file a claim, you will have to contact your closest local EEOC office. The three EEOC offices in North Carolina are located in Charlotte, Greensboro and Raleigh.

What to Include in Your Formal Complaint

  • Your name, address, and telephone number;
  • A short description of the events that you believe were discriminatory (for example, you were terminated, demoted, harassed);
  • The reason you believe you were discriminated against (for example, because of your race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, genetic information or retaliation);
  • A short description of any injury you suffered; and
  • Your signature (or your lawyer’s signature).

 When Should You File?

The short and simple answer is IMMEDIATELY! There are strict time limits in which charges of employment discrimination must be filed with the EEOC. In order to preserve your claim, you must file your complaint with the EEOC within 180 days of the date you believe you were discriminated against. However, you may have other  legal claims with shorter deadlines, so do not wait until the last minute to file your complaint. You may wish to consult with an attorney prior to filing your claim, if possible. Nonetheless, if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

Also, you should  check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination law. There are some cities and counties in North Carolina that have agencies that process claims under local ordinances and may be able to assist you.

What Happens Next?

After successfully filing your complaint employment discrimination complaint with the EEOC, your claim will be investigated. The EEOC will determine whether there is probable cause to believe that you were discriminated against within 180 days from the time that you file your formal complaint. Regardless of the outcome of the investigation, the EEOC will provide you with a “Notice of Right to Sue” letter.

If you choose to pursue your claim further, you must do so in court. However, your lawsuit based on discrimination must be filed in state or federal court within 90 days. Please note that some state claims have different time constraints that determine when a lawsuit must be filed. If your lawsuit is not timely filed, you may lose your opportunity to pursue your discrimination case. For more information about filing your discrimination claim visit www.eeoc.govLearn Your Rights 101. 

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Federal appeals court: North Carolina ultrasound abortion law unconstitutional

Last week, the United States Court of Appeals for the Fourth Circuit ruled that North Carolina’s “Woman’s Right to Know Act” is unconstitutional.

In July 2011, the North Carolina General Assembly passed the “Woman’s Right to Know Act.” The Act amended Chapter 90 of the North Carolina General Statutes, which governs medical and related professions, adding a new article that regulated the steps that must occur before an abortion.

In September 2011, several doctors sued state officials. They argued that the Act’s Real-Time View Requirement amounted to compelled speech in violation of their First Amendment rights. In October 2011, the district court issued a preliminary injunction, which barred the enforcement of one provision of the Act, the Display of Real-Time View Requirement. The same court later struck down the Act because it “impermissibly required physicians to deliver information in support of the state’s philosophic and social position.” Thus, it was unconstitutional content-based regulation. Alternatively, the court found that “if the provision of the Act purposed to further a substantial [North Carolina] interest, [the Display of Real-Time View Requirement] was insufficient because the patient did not have to listen.” They could, for example, cover their ears.

The Disputed Portion of the “Woman’s Right to Know Act”

The Display of Real-Time View Requirement obligates doctors (or technicians) to perform an ultrasound on any woman seeking an abortion at least four but not more than seventy-two hours before the abortion is to take place. The physician must display the sonogram so that the woman can see it, and describe the fetus in detail, “includ[ing] the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted.” The physician must also display and describe in detail “the presence of external members and internal organs [of the fetus], if present and viewable.”

The Single Exception

The Act provides an exception to the Real-Time View Requirement  requirements only in cases of a medical emergency. Physicians who violate the Act are liable for damages and may be stopped from providing further abortions that violate the Act in North Carolina. Furthermore, physicians that violate the Act may lose their medical license.

Why Did the Fourth Circuit Decide the Act was Unconstitutional?

The Fourth Circuit began its analysis by stating that “North Carolina’s avowed intent and the anticipated effect of all aspects of the Requirement are to discourage abortion or at the very least cause the woman to reconsider her decision.” The Fourth Circuit called the Real-time display requirement “quintessential compelled speech.” “It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion.”

More precisely, the Fourth Circuit noted that the “Display of Real-Time View Requirement explicitly promotes a pro-life message by demanding the provision of facts that all fall on one side of the abortion debate – and does so shortly before the time of decision when the intended recipient is most vulnerable.”

“[The Display of Real-Time View Requirement] provision interferes with the physician’s right to free speech beyond the extent permitted for reasonable regulation of the medical profession, while simultaneously threatening harm to the patient’s psychological health, interfering with the physician’s professional judgment, and compromising the doctor-patient relationship.

Finally, the Fourth Circuit noted how the informed consent portion of the Act deviates from traditional informed consent. “The most serious deviation from standard practice [requires] the physician to display an image and provide an explanation and medical description to a woman who has, through ear and eye covering, rendered herself temporarily deaf and blind. This is starkly compelled speech that impedes on the physician’s First Amendment rights with no counterbalancing promotion of state interests. The woman does not receive the information, so it cannot inform her decision.” Moreover, “forced speech to unwilling or incapacitated listeners does not bear the constitutionally necessary connection to the protection of fetal life.”

Implications of the Fourth Circuit’s Decision

Although the Fourth Circuit held that the “Woman’s Right to Know Act” is unconstitutional, the fight between the doctors, that initiated this lawsuit, and the state officials, that enacted this law, is not over. First, the decision by the Fourth Circuit can be appealed to the Supreme Court of the United States. Secondly, the Office of the North Carolina Attorney General has confirmed that it plans to appeal the Fourth Cirucuit’s decision. Lastly, another Circuit ruled that an act similar to the “Woman’s Right to Know Act” was constitutional. Therefore, it is likely that the Supreme Court will agree to hear this case in order to settle the split decisions within the Circuits. Until then, the fight goes on. . . Learn Your Rights 101


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A police officer’s reasonable mistake of law gives rise to reasonable suspicion that justifies a traffic stop under the Fourth Amendment.

On December 15, 2014, the Supreme Court of the United States issued an opinion that held a police officer’s reasonable mistake of law gives rise to reasonable suspicion that justifies a traffic stop. The events that gave rise to the case of Heien v. North Carolina originated on April 29, 2009 near Dobson, North Carolina.

On that morning, Sergeant Matt Darisse of the Surry County Sheriff’s Department noticed and followed a vehicle that only had one brake light working. He then pulled the driver over and issued a warning ticket for the broken brake light. While issuing the ticket, Sergeant Darisse became suspicious of the actions of two occupants and their answers to his questions. After obtaining consent to search the vehicle from the vehicle’s owner, Sergeant Darisse found cocaine and Mr. Heien was arrested and charged with attempted trafficking.

At trial, Mr. Heien made a motion to suppress the evidence that alleged that Sergeant Darisse violated the Fourth Amendment. Nonetheless, the trial court denied Mr. Heien’s motion, concluding that the vehicle’s single faulty brake light gave Sergeant Darisse reasonable suspicion to initiate the stop. The North Carolina Court of Appeals reversed, holding that the relevant code provision only required a single brake lamp – which Mr. Heien’s vehicle had – and therefore Sergeant Darisse’s justification for the stop was justifiably unreasonable. The North Carolina Supreme Court held, assuming that no violation of the state law occurred, Sergeant Darisse’s mistaken understanding of the law was reasonable, and therefore valid.

When the case reached the highest Court of the land, the Supreme Court of the United States agreed with North Carolina’s high court. The Court began its analysis by noting that it had repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” The Court also cited  Brinegar v. United States noting that the Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials “fair leeway for enforcing the law.”

The Court also cited Michigan v. DeFillippo, where it held that an arrest was supported by probable cause even though the statute that justified the rest was later held unconstitutional. In that case the search of the defendant produced illegal drugs. The defendant argued that the results of the search should be suppressed because the arrest was based on an unconstitutional statute. The Court in DeFillippo, however examined the purpose of the exclusionary rule,  which is to deter police misconduct. Since there was no evidence of such misconduct, the Court in DeFillippo held that the evidence of drugs should not have been suppressed. Here, in Heien v. North Carolina, the Court applied the same concept that it did in DeFillippo and opposed Mr. Heien’s argument that if police officers are given such leeway, then they will have an incentive to be oblivious to the law.

Ultimately, the Supreme Court reached its holding due to the uncertainty of meaning in the North Carolina vehicle code. It requires “a stop lamp” and also proves that the lamp “may be incorporated into a unit with one or more other rear lamps.” N.C. Gen. Stat. § 20-129(g). The vehicle code also requires that “all originally equipped rear lamps” must be “in good working order.” N.C. Gen. Stat. § 20-19(d). The United States Supreme Court noted that although the North Carolina Court of Appeals held that “rear lamps” do not include brake lights, the word “other,” along with the lack of state-court precedent interpreting the specific vehicle code provision at issue, made it objectively reasonable to thing that a faulty brake light constituted a violation of statute.

Moving forward, it seems that since the North Carolina Court of Appeals has interpreted the brake light statute, a traffic stop by law enforcement officers resulting from one faulty brake light would not be objectively reasonable. Learn Your Rights 101.

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“At-will employment,” what does it really mean?

The first time I ever heard the term “at-will employee” was right after I was hired as a “bag-boy” for a local supermarket chain named Ingles. However, it was not until I worked with an employment law firm and took a course in Employment Discrimination during law school that I truly understood the ramifications of at-will employment.

North Carolina is an at-will employment state, which means that an at-will employee may quit or be fired at any time for any reason. As a 16-year-old “bag-boy,” I understood that much, but what I did not fully understand was that there are two significant exceptions to the at-will employment general rule. Those two exceptions can occur by (1) an employer’s conduct or (2) by words or documents that create an employment contract.

Employment Contract

If an employer and an employee agree that the employee will be employed for a definite term, the employee is no longer an at-will employee. The key component of a contract for a definite term is a specific period of time during which the employee will be employed. The courts have historically applied the same rules of contract construction with respect to employment agreements as they do to other agreements. Therefore, the courts have deemed that the parties’ intentions control, and have looked to their course of conduct. Moreover, employment contracts can be either written or oral.

Employer’s Conduct

North Carolina recognizes a narrow exception to the employment-at-will doctrine known as the “public policy exception.” The public policy exception has been narrowly construed and is grounded in considerations designed either to prohibit status-based discrimination or to ensure the integrity of the judicial process and enforcement of the law. Accordingly, in order to trigger the public policy exception, the discharge must violate a specific “North Carolina public policy” expressed in an explicit North Carolina statutory or constitutional provision, or the discharge must have been the result of the employee’s refusal to “violate any law that might result in potential harm to the public.” Furthermore, an employer cannot hide behind at-will employment  when it has acted in a manner that is in violation of federal employment laws such as Title VII.

If you are an employee in North Carolina, know your rights. Although you are likely an at-will employee, your employer must act consistently with North Carolina’s public policy and with federal employment laws.

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If you get hurt at work, notify your employer in writing immediately!

If you suffer a workplace injury, I’m sure that your first instinct may be to conceal your injury because you do not want to look bad to your fellow employees and/or your employer. Or, you may have some other reason for concealing your injury in order to maintain your employment position. However, you must report your injury in writing to your employer immediately or you may lose any claim that you have that could result in workers’ compensation benefits.

In fact, under N.C. Gen. Stat. § 97-22, when an accident occurs, an injured employee must immediately, or as soon thereafter as possible, give a written notice of the accident to the employer. Furthermore, no compensation will be payable unless such written notice is given within 30 days after the occurrence of the accident, unless the industrial commission (the organization responsible for determining the outcome of workers’ compensation cases) is satisfied that the employer is not prejudiced and the employee had a reasonable excuse for failure to provide adequate notice.

The North Carolina Supreme Court has stated that the purpose of the notice requirement is to provide a prompt diagnosis and treatment in order to reduce the seriousness of the injury and to allow the employer to immediately investigate the claim.Why risk the possibility of being left without a remedy for your workplace injury? Notify your employer immediately in writing when you are hurt at work!

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NEW North Carolina Criminal Laws Effective 10/1/2014

The North Carolina General Assembly has made some changes to North Carolina’s criminal laws that will take effect on October 1, 2014.

Changes that are relevant to the substance covered in Learn Your Rights 101 blog relate to Session Law 2014-119, which modifies various criminal laws.

  • Session Law 2014-119
    • Expunctions of certain misdemeanors and felonies
      • The North Carolina General Assembly added four offenses that if committed by a person, will no longer qualify for expunction as a non-violent misdemeanor or non-violent felony offense. These offenses include:
        1. breaking or entering any building with intent to commit any felony or larceny;
        2. breaking or entering any building with intent to terrorize or injure an occupant of the building;
        3. breaking or entering any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind with the intent to commit any larceny therein; and
        4. an attempt to commit any of the above-listed offenses or any other offense already enumerated in N.C. Gen. Stat. § 15A-145.5 (1)-(8).
    • Conditional discharge may occur whenever a person pleads guilty to or is found guilty of a Class H or I felony or a misdemeanor. The court may, on joint motion of the defendant and the prosecutor, and without entering a judgment of guilt and with consent of the person, defer further proceedings and place the person on probation for the purpose of allowing the defendant to demonstrate good conduct if the court finds:
      1. each known victim of the crime has been notified of the motion for probation and has been given an opportunity to be heard;
      2. the defendant has not been convicted of any felony or of any misdemeanor involving moral turpitude (any conduct that is contrary to community standards of justice, honesty and good morals);
      3. the defendant has not previously been placed on probation; and
      4. the defendant is unlikely to commit another offense other than a class 3 misdemeanor.
    • Conditional discharge for the Purpose of Drug Treatment Program. When a defendant is eligible for a Drug Treatment Court Program under Article 62 of Chapter 7A of the North Carolina General Statutes, the court may defer further proceedings and place the defendant on probation without entering a judgment of guilt in order to allow the defendant to participate in and successfully complete the Drug Treatment Court Program.
    • Compliance with the terms of conditional discharge. The court may find the defendant guilty upon violation of a term or condition of conditional discharge. However, upon completing the terms and conditions of a conditional discharge, any plea or finding of guilt previously entered shall be withdrawn. The court must discharge the person and dismiss the proceeding against the person.
    • Possession of marijuana drug paraphernalia. It is unlawful for any person to knowingly use, or to possess with the intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal marijuana or to inject, ingest, inhale, or otherwise introduce marijuana into the body. A violation of this new law will result in a Class 3 misdemeanor.
    • Penalty increase for inmate cell phone possession. Any inmate in the custody of the Division of Adult Correction of the Department of Public Safety or an inmate in local confinement who possesses a mobile telephone or other wireless communication device shall be guilty of a Class H felony.
    • Remote video testimony by forensic and chemical analyst allowed. In any criminal proceeding, the remote testimony (method by which an analyst testifies from a location other than the location where the hearing or trial is being conducted and outside of the presence of a party or parties) of an analyst regarding the results of forensic test or chemical analysis shall be permitted if:
      1. the State has provided a copy of the report to the attorney of record or defendant (if no attorney);
      2. the State notifies the attorney of record or defendant (if no attorney) at least 15 days before the proceeding that the evidence would be introduced using remote testimony; and
      3. defendant’s attorney or defendant (if no attorney) fails to file a written objection with the court and prosecutor at least five (5) days before the proceeding at which testimony will be presented using remote testimony. If the defendant’s attorney or defendant (if no attorney) fail to file a written objection then remote testimony will be allowed.
    • Increase penalty for second offense of carrying a concealed weapon that is a firearm. Any person found guilty of carrying a concealed weapon without a permit for the second time will now be guilty of a Class H felony instead of a Class I felony.
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Welcome to the Learn Your Legal Rights 101 Blog! This blog is for everyone; however, it is especially helpful for citizens of North Carolina. Its main purpose is to explain laws that deal primarily with criminal defendants, employees, and families. The information derived here is from real court decisions and statutes, and is intended to help everyday folks understand the complex worlds of criminal, employment, and family law. Please note, however, that nothing presented here is intended as legal advice.

Disclaimer: Nothing presented here is intended to be legal advice. See the disclaimer.

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