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View NCGA Bill Details2019-2020 Session
Senate Bill 786 (Public) Filed Thursday, May 14, 2020
Intro. by Smith.

Status: Ref To Com On Rules and Operations of the Senate (Senate action) (May 18 2020)

Bill History:

S 786

Bill Summaries:

  • Summary date: May 18 2020 - View Summary

    Reorganizes GS Chapter 99, Civil Rights. Places existing provisions into new Article 1. Enacts Article 2, Unlawful Discriminatory Practices, as follows. Defines five terms and provides for statutory construction. Titles the Act as the Bringing an End to Harassment by Enhancing and Rejecting Discrimination in the Workplace Act or the BE HEARD in the Workplace Act. States the act's purpose.

    Deems it unlawful discriminatory practice for an employer to subject an individual to harassment because of an individual's protected class status or because the individual has opposed any practices forbidden by the Article, filed a complaint, testified, or assisted in any proceeding under the Article, regardless of whether the harassment would be considered severe or pervasive. Broadly defines protected class status to include 17 categories, including age, creed, disability, domestic violence victim status, gender identity or expression, familial status, lawful source of income (housing), marital status, military status, national origin, predisposing genetic characteristics, pregnancy-related condition, prior arrest or conviction record, race or color, sex, sexual orientation, or retaliation for opposing unlawful discriminatory practices. Further defines protected class status to include other persons with whom an individual who is a class member is or has been associated with and may be based upon a perception or belief, even if inaccurate, concerning an individual's protected class status. Defines employer to include employment agencies and labor organizations. Defines workplace harassment to include conduct-based protected class status regardless of whether it is direct or indirect, verbal or nonverbal, that unreasonably alters an individual's terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment.

    Deems it unlawful discriminatory practice to subject an individual to inferior terms, conditions, or privileges of employment because of membership in a protected category. Does not tie employer liability to whether an employee made a complaint or whether the employee can demonstrate the existence of an individual to whom their treatment must be compared. Provides an affirmative defense for conduct that a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences. 

    Deems it unlawful discriminatory practice to permit discrimination against a nonemployee in the employer's workplace, providing for employer liability for nonemployee contractors and the like, and their agents and employees, providing services under contract in the workplace when the employer, its agents or supervisors should have known that the nonemployee was subjected to an unlawful discriminatory practice in the employer's workplace and failed to take immediate and appropriate corrective action. Requires consideration of the employer's control and other legal responsibility over the conduct of the person engaging in such unlawful conduct.

    Deems an unlawful discriminatory practice to be established when the complaining party demonstrates by meeting the burdens of production and persuasion that their protected class status was a motivating factor for any employment practice, even if combined with other motivating factors. 

    Deems it unlawful discriminatory practice (1) for an employer to require an employee to submit to sexual harassment either explicitly or implicitly as a term or condition of employment; (2) for an employer to base an employment decision affecting an individual's employment upon submission to or rejection of sexual harassment; and (3) when sexual harassment alters an individual's terms, conditions, or privileges of employment, including creating an intimidating, hostile, or offense work environment. Defines sexual harassment as a sexual advance, a request for sexual favors, or any other conduct of a sexual nature. Details rules for determining whether conduct constitutes workplace harassment, including permitting a single incident to constitute workplace harassment, requiring incidents considered in the aggregate, and presenting factors to be considered such as duration of the conduct and whether the conduct was threatening. Specifies that conduct may be workplace harassment regardless of whether the complaining party is the individual harassed, the complaining party acquiesced or otherwise participated in the conduct, the conduct is experienced by others outside the protected class involved, the complaining party was able to continue their duties and responsibilities, the conduct did not cause a tangible or psychological injury, or the conduct occurred outside of the workplace.

    Creates employer liability for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that is unlawful if at the time of the harassment (1) the individual was authorized by the employer to undertake or recommend tangible employment actions affecting the employee or to direct the employee's daily work activities, or (2) the negligence of the employer led to the creation of continuation of that environment.

    Creates a civil right to action to enforce the rights provided in addition to any other legal or equitable remedies. Allows for punitive damages and attorneys' fees to be awarded. Sets the statute of limitations for claims of sexual harassment at three years of the alleged practice, and all other civil actions at one year of the practice. 

    Provides for severability of the Parts of Article 2.

    Directs the Human Relations Commission, the Civil Rights Division of the Office of Administrative Hearings, and the Department of Labor to jointly develop training materials for employers and the public to prevent unlawful discriminatory practices, and to establish grant programs to prevent and respond to workplace discrimination and harassment.

    Amends GS 95-241 to expand retaliatory employment discrimination prohibitions for employees who in good faith do or threaten to file a claim or complaint, or initiate any investigation, inspection or proceeding, or testify or provide any information with respect to GS Chapter 99D, as amended.

    Amends GS 41A-4, making unlawful discriminatory housing practices described apply to discriminatory practices because of a person's protected class status, as defined in GS Chapter 99D, as amended (previously, limited to discrimination because of race, color, religion, sex, national origin, handicapping condition, or familial status). Adds protected class status to the defined terms set out in GS 41A-3. Makes conforming changes to GS 41A-5 and GS 41A-6 regarding proof of violations and exemptions.

    Amends GS 143-422.2 to expand state policy to include protection of the right of all persons to seek, obtain and hold employment without discrimination or abridgment on account of protected class status, as defined in GS Chapter 99D, as amended, by employers who regularly employ one or more employees (previously protected classes included race, religion, color, national origin, age, sex, or handicap; previously applied to employers which regularly employ 15 or more employees).

    Amends GS 126-16 and GS 126-34.02 to expand State employment policy to provide for equal opportunity for employment and compensation without regard to protected class status, as defined in GS Chapter 99D, as amended, to all qualified persons (previously protected classes included race, religion, color, national origin, sex, age, disability, or genetic information). Makes conforming changes to the provisions providing for State employee grievances regarding discrimination, harassment and retaliation.

    Effective January 1, 2021, amends GS 95-25.3 to no longer allow for tips earned by tipped employee to be counted as wages (previously allowed for tips to be counted as wages up to a certain amount if specified notice and record keeping requirements are met).

    Directs the Legislative Research Commission (LRC) to study the use of nondisparagement and nondisclosure agreements in the workplace and report to the 2021 General Assembly upon its convening.

    Appropriates from the General Fund $500,000 to (1) the Human Relations Commission, the Office of Administrative Hearings' Civil Rights Division, and (2) the Department of Labor, for the 2020-21 fiscal year to implement the act.

    Effective July 1, 2020.