Hans Bader of the Competitive Enterprise Institute analyzes one flawed piece of the legal challenge against recently enacted House Bill 2.
A lawsuit has now been filed challenging not just the controversial bathroom provisions, but also the statute’s general preemption of local employment regulations, which is perfectly legal and constitutional. (See Carcano v. McCrory.)
The challengers argue that its preemption of local anti-bias ordinances is inherently unconstitutional. In paragraph 154 of their complaint, they claim, “By blocking anti-discrimination protections for LGBT people at the local level, H.B. 2 imposes a different and more burdensome political process on LGBT people than on non-LGBT people who have state protection against identity-based discrimination,” in violation of the Equal Protection Clause.
But this is untrue. First, the statute preempts adding any additional protected classifications beyond that provided by state and federal law—not just sexual orientation. It does not single out gays and lesbians.
This matters because left-leaning cities often meddle in hiring decisions by banning employers from sensibly discriminating based on characteristics that are properly considered in hiring, and which, unlike sexual orientation, reflect the content of the applicant’s character. For example, cities like Boston and Washington, D.C., forbid considering an applicant’s history of criminal convictions, treating felons as a protected class. As Chief Justice Rehnquist noted with concern in Boy Scouts v. Dale (2000), “Some municipal ordinances have even expanded to cover criteria such as prior criminal record, prior psychiatric treatment, military status, personal appearance, source of income, place of residence, and political ideology.” This places serious burdens on employers’ ability to hire based on merit, and undermines freedom of association, freedom of contract, and the ability to make a profit.
There is nothing suspect about preventing localities from banning discrimination against new protected classes, since the Constitution does not prohibit private discrimination at all, or require local governments to outlaw it. (See the Supreme Court’s decisions in San Francisco Arts & Athletics v. United States Olympic Committee (1987), Moose Lodge v. Irvis (1972), United States v. Morrison (2000)).
Nor is this legislation likely to have much long run impact in the area of sexual orientation (an area where I have agreed with these challengers in the past regarding North Carolina law). Sexual orientation discrimination is likely to be banned legislatively at the federal level within a few years—such legislation has previously passed the Senate—and the EEOC claims that such discrimination is already encompassed by federal law’s existing ban on discrimination based on sex, although this is a dubious argument.
Preemption of local employment regulations advances important state interests, and has a compelling economic logic behind it. It thus does not reflect discriminatory “animus” under the Supreme Court’s decision in Romer v. Evans (1996). The North Carolina General Assembly quite properly found that making “that laws and obligations consistent statewide for all businesses, organizations, and employers doing business in the State” will “benefit the businesses, organizations, and employers seeking to do business in the State and attracts new businesses, organizations, and employers to the State.” As Governor McCrory noted, “North Carolina is one of at least 37 states like Virginia where cities and towns cannot pass rules or regulations that exceed the authority given to them by the state.”
HT: George Leef
