WILMINGTON –– Wilmington City Council is close to joining at least 12 local governments in adopting a post-House Bill 2 nondiscrimination ordinance that would penalize certain businesses for discriminating against customers. Unlike other municipalities, the order does not extend protections to those establishments’ employees.
It was the legal advice of city attorney John Joye to not do as much. Based on his interpretation of past court rulings, Joye said it is unclear whether local governments are authorized to regulate private employment. He suggested it was more likely the courts would strike down any such local act.
If adopted following a second reading, the ordinance would prohibit discrimination in federally defined “public accommodations” –– such as hotels, restaurants and entertainment venues –– on the basis of race, color, religion, nation origin and sex (including sexual orientation, gender identity and pregnancy). It could not regulate bathrooms or locker rooms.
Businesses would face a range of penalties for violating the ordinance, from a one-time warning to a hefty fine. Penalties escalate for each incident, reaching $1,000 by the fourth event.
In a 6-1 vote Tuesday, the ordinance passed first reading. If approved at the next city council meeting, it would go into effect after 30 days. The city manager would enforce the policy.
Council member Kevin Spears was the lone “nay” vote. He indicated he was concerned about the public’s perception that the city was rushing the ordinance, especially after the city- and county-appointed Community Relations Advisory Committee (CRAC) and state LGBTQ advocacy group Equality NC voiced disapproval of the draft.
(Equality NC declined to comment for this article.)
Spears suggested the city return to the drawing board to address some of the community’s concerns, which included the lack of protection for employees and leaving out certain marginalized identities. Other council members and staff preferred to proceed with the ordinance, securing protections for some now and revisiting the apparent gaps when the legal guidance is less blurry.
“I think some of us, and I say this respectfully, are out of touch when it comes to discrimination,,” said Spears, one of two Black council members. “There’s a level of privilege sitting on this dais.”
Knowing the opportunity was soon approaching to adopt an anti-discrimination ordinance, Joye researched the matter for almost 10 months, and ultimately disagreed with the legal opinion of Equality NC’s lawyer.
City staff planned to present an anti-discriminatory ordinance to council following the sunset of House Bill 142. Signed as a compromise to House Bill 2, the legislation temporarily barred local governments from enacting or amending ordinances regulating private employment and public accommodations through December 2020.
Mayor Bill Saffo said the North Carolina metropolitan mayors were in unison about passing ordinances related to discriminatory practices, especially in respect to sex, as soon as the moratorium expired. In recent weeks, many have done so, but the ordinances read differently, from steeper penalties to broader protections.
“There’s some cities that have been much more aggressive about it based on what their attorneys have recommended to them,” Saffo said.
All 12 local ordinances adopted as of Tuesday in North Carolina address discrimination of employees, Joye said. Some included wider protections for identities, sometimes going as far as to include political affiliation and, in one case, source of income.
In a letter to council, CRAC called for the inclusion of gender expression, natural hairstyles, marital or familial status, veteran status and culturally specific dress.
“As a council member with dreadlocks, I think the hair should have been a no-brainer,” Spears said. The councilman shared that, while working a job after high school, his manager verbalized his distaste for Spears’ braids and suggested he change them.
Joye acknowledged the drafted ordinance is narrow. He attributed that to a focus on sexual orientation, gender identity and transgender individuals following the June 2020 ruling of Bostock v. Clayton County. In the case of a female transgender employee who was denied use of the women’s restroom in Hobby Lobby, the Supreme Court determined discrimination on the basis of sex encompasses people who are gay and transgender.
In an emailed statement to Port City Daily, Joye further explained federal law does not define natural hairstyles, marital or familial status, or culturally specific dress as protected classes. Veterans are federally protected, but not in the context of discrimination, the attorney added.
However, based on other case law, the attorney cautioned the city against any attempt to regulate private employment.
In the 2003 case of Williams v. Blue Cross Blue Shield, the North Carolina Supreme Court struck down Orange County’s employment discrimination ordinance, stating the North Carolina Constitution prohibits local acts regulating labor, trade, mining or manufacturing.
Almost 10 years later, in the case of King v. Town of Chapel Hill, the court invalidated the town’s ordinance regulating towing fees. Joye interpreted this to mean the North Carolina Supreme Court would limit local ordinance power.
“I suspect that every municipal attorney around the state is extremely uncomfortable because reasonable, sharp minds can read that case and they can differ,” Joye said.
City staff has committed to keeping watch on potentially precedent-setting cases in the future and revisit the ordinance if and when that time comes. Saffo agreed more work is necessary but advocated for pushing the ordinance forward in the meantime.
“I do not want this to feel that this is the end,” the mayor said. “It’s not.”
Council also passed a resolution 6-1, Spears opposed, affirming the city manager or attorney would not contract with employers with prejudice track records.
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