New Charlotte Ordinance Expands Employment Non-Discrimination Protections

Seyfarth Synopsis: On August 9, 2021, the Charlotte City Council voted unanimously to expand the protections under the City’s non-discrimination ordinance to include additional protected categories.

On August 9, 2021, the Charlotte City Council voted unanimously to expand the protections under the City’s non-discrimination ordinance by adding familial status, sexual orientation, gender identity and gender expression, veteran status, pregnancy, and natural hairstyle to the list of protected classes. The employment protections become effective January 1, 2022.

The ordinance, however, also includes a number of exceptions to the employment discrimination prohibitions:

• A Religious Organization that employs a person to perform work associated with the Religious Organization and that insist employees adhere to the tenets of the Religious Organization as a condition of employment are exempted from the ordinance.

Employees are still permitted to express sincerely held religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way so long as the expression is not in direct conflict with the essential business interests or needs of the employer.

• Employers are not required to hire or retain unqualified employees when there is a legitimate non-discriminatory or non-retaliatory reason for not doing so.
• Employers are permitted to require employees to adhere to reasonable dress or grooming standards during their hours of work due to a business necessity and that are not prohibited by federal, state, or local law.
• Employers are still permitted to adhere to the conditions of a bona fide seniority system or affirmative action plan that is not a pretext to evade the purposes of the employment discrimination prohibitions.

Implications for Employers:

• The ordinance applies to all employers in the City.
• Employees do not have a private right of action under the ordinance. Instead, an employee may file a complaint with the conciliation division of the City of Charlotte Community Relations Committee (“CRC”) within 180 days of the alleged incident.  The CRC will review the complaint to first determine if it should be forwarded to the appropriate federal (EEOC) or state authority for review and appropriate action.
• The ordinance is intended to address gaps in employment protections not provided by federal or state law. For example, existing state and federal anti-discrimination laws only apply to employers with 15 or more employees.  If the federal or state agencies do not have jurisdiction or authority over a complaint or otherwise decide not take up a complaint, the CRC shall address and investigate the complaint.  An investigator will make a finding within 100 business days of the development of an investigation plan and submit it to the CRC Director for review.
• If the CRC Director finds no cause to believe the employer violated the non-discrimination ordinance, the CRC Director will close the case. If the CRC finds reasonable cause, the CRC will attempt to conciliate the matter.  If the parties enter into a conciliation agreement, the CRC will monitor compliance for one year.  If there is a failure to conciliate, the matter will proceed to a public hearing before a CRC panel that will issue a cause or no cause finding. If the panel issues a cause finding, the parties may enter into a conciliation agreement.  If there is a failure to conciliate after the panel’s cause finding, the CRC will refer the matter to the City Attorney’s Office for appropriate action, which may include civil fines and penalties.