Gov. Cooper’s Executive Order On LGBTQ Employment Rights: An Effective Mandate For State Agencies and Contractors Or a Toothless Tiger?

By Logan H. Shipman

On Oct. 18, 2017, Gov. Roy Cooper signed Executive Order No. 24, and he tweeted that North Carolina was taking “another step forward” in making North Carolina a more “welcoming place to all.”  The EO prohibits discrimination, harassment, or retaliation on the basis of any of the following protected classes:

race, color, ethnicity, national origin, age, disability, sex, pregnancy, religion, National Guard or veteran status, sexual orientation, and gender identity or expression.

The EO applies to State agencies, boards, commissions, and departments under the jurisdiction of the Office of the Governor.  It also applies to contractors and subcontractors contracting with the state through the Department of Administration (DOA) for (i) construction of public buildings, (ii) other public works, and (iii) goods or services.  As a result, the EO affects more than 55,000 state employees as well as 3,000 vendors who contract with the state and their employees.  It is expected to impact up to $1.5 billion worth of contracts.

The DOA is directed by the EO to establish consequences for state contractors and subcontractors who discriminate, harass, or retaliate based upon the protected classes outlined above.  These consequences could include contract termination and exclusion from consideration for future state contracts and subcontracts.  The DOA may also identify the circumstances under which vendors contracting with the state would be required to attest that they will not violate the EO prior to providing goods and services to the state.

Similarly, the Office of State Human Resources (OSHR) is charged with imposing consequences on grantees and sub-grantees receiving funds from state agencies that violate the EO.  The consequences established by the OSHR could include grant revocation and exclusion from consideration for future state grants.

The EO supersedes and rescinds Executive Order No. 93 that was signed by Gov. McCrory on April 12, 2016, which also prohibited discrimination by state agencies based on sexual orientation and gender identity among other grounds. Importantly, that EO did not apply to those who contracted with the state, nor did the EO specify consequences for non-compliance as does Gov. Cooper’s EO.  The reach of the current EO is therefore much broader.

Also, Gov. McCrory’s EO required public facilities be used only by persons based on their biological sex while Governor Cooper’s EO No. 24 forbids state agencies, boards, commissions, and departments under the jurisdiction of the Office of the Governor from hindering an individual’s access to public facilities in accordance with that individual’s gender identity.  The EO does, however, specify that it “does not create a private cause of action.”

Much of the media coverage of the EO (see Charlotte Observer’s coverage and Daily Tar Heel) omits any discussion of the fact that the EO creates no private right of action and appears to contain no “teeth” by which the EO could be enforced.  While publicity about nondiscrimination may draw positive attention to North Carolina, without a private enforcement mechanism, the EO’s effectiveness in combating the discrimination targeted by the order remains questionable.