PRIVATE EMPLOYMENT
North Carolina law does not guarantee anyone the right to a job. The basic legal concept that governs the relationship between employer and employee is called "employment at will." This means that an employer may fire an employee at any time, for any reason, as long as it does not discriminate on the basis of a few categories specified in federal and North Carolina law: age, sex, race, religion, national origin or disability. The other side of the coin is that an employee can quit at any time, for any reason. Although recent cases have suggested that an employee may be able to sue for money damages if his or her firing "violates public policy," the chance that this will be applied to lesbians and gay men in the near future is not likely.
Thus, homosexual persons are not a "protected class." However, since the beginning of the AIDS crisis, some gay men have been fired out of a suspicion that they had AIDS. Individuals in this situation might have a claim under state and federal laws (N.C. Gen. Stat. § 130-148 and the Americans with Disabilities Act) that protect against discrimination for having or being perceived to have HIV/AIDS. Also, men and women who have been fired arbitrarily can, in some cases, successfully claim sex discrimination. Further, if the claim involves sexual or gender harassment, Title VII may be used.
Neither federal nor North Carolina civil rights laws have been extended to protect persons from discrimination based on homosexuality (or heterosexuality, for that matter). So if discrimination is purely on the basis of sexual orientation, civil rights laws currently afford no protection. However, many American cities, the District of Columbia and the States of California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont and Wisconsin have enacted civil rights protections for lesbians and gay men. An employee of a company headquartered in one of these areas may be entitled to such protections. Also, the Employment Non-Discrimination Act (ENDA), currently pending in Congress, would extend federal employment discrimination protections to sexual orientation. Also, the Human Rights Campaign urged Congress to add “gender identity and gender expression” to this legislation.
North Carolina has an interesting law (§95-28.2) whose purpose is to protect smokers against discrimination, but it may also provide some protection to gay or lesbian employees. This law makes it unlawful for a private employer with three or more employees to discriminate against employees or prospective employees because of "the lawful use of lawful products" away from work. Rainbow flags, pink triangles, T-shirts, bumper stickers, etc. are all lawful products. In many cases, the only way an employer would know that someone is gay or lesbian is by their association with one of these products away from the employer's premises. Therefore, an employer who actually said that an employee was fired for carrying a protest banner at a pride event is presumably in violation of this statute, although we are not aware of any cases in North Carolina construing the statute this way.
Some employees have an individual contract with the employer or a union contract. Individual employment contracts and union contracts usually prohibit discharge except "for cause." These provisions may protect employees when their sexual orientation does not relate to job performance. Some contracts even provide specific protection against discrimination based on sexual orientation. In North Carolina, corporate personnel policies by themselves do not give an employee the legal right to a job. However, this is a rapidly changing area of the law, and if you are fired because of your sexual orientation, you should check with an employment lawyer immediately.
A number of large corporations have stated on record that they will not discriminate on the basis of sexual orientation. If you are uncomfortable asking your supervisor about the company policy regarding homosexual persons, ask someone to make the inquiry for you anonymously and relay the information to you. While these policies will not give an employee the right to sue in North Carolina, they may provide protection within the corporation against arbitrary action.
It is often difficult for an isolated individual to prove that he or she was fired solely because of sexual orientation. In fact, not only do anti-discrimination claims often not result in getting the job back, the publicity sometimes stigmatizes the individual, making it harder for him or her to get another job. While businesses can (and often do) claim that any one person was not discriminated against, it is harder for them to shrug off a number of documented cases of discrimination.
In recent years there have been a number of cases brought by coworkers of gay employees, who claim that the employer violated their right to free expression of religion by forcing them to tolerate homosexuality. Typically, these lawsuits arise when the company institutes diversity training designed to encourage the employees to get along with their gay and lesbian coworkers. Many of these suits have been encouraged by Pat Robertson's legal advocacy group, the American Center for Law and Justice. In other cases, coworkers have made claims under the sexual harassment laws when they were made uncomfortable by "open expressions of homosexuality" in the workplace. Given that homophobic employees seem to be quicker to sue than their gay and lesbian coworkers are, these lawsuits have made it harder for businesses to make the workplace fairer for their gay and lesbian employees.
Fear of discrimination can keep many gay men and lesbians from even applying for many jobs, but there are no North Carolina or federal laws that prohibit a lesbian or gay man from holding any government job outside of the military. As a general rule, employees in the public sector have greater protection from discrimination than do employees of private institutions. In most instances, a person cannot be removed from a government job for any allegedly "immoral" conduct unless it can be shown that the conduct has an actual effect on job performance.
The protections afforded to government employees vary depending on whether the job is subject to Civil Service or other laws, or entails a contract granting tenure or the right not to be fired except for cause.
Federal courts exercise jurisdiction over federal employees. There has been a rapid change in the law from the 1960's, when a federal employee could be dismissed merely for being homosexual. By the late 1970's, courts generally held that a federal Civil Service employee could be discharged only for conduct which actually affected job performance. These decisions have been embodied in Civil Service regulations that recognize the right of employees to be protected against inquiries into or actions based upon conduct not related to the job. Sexual orientation is specified as not job-related.
In North Carolina the only governmental bodies that provide explicit protection for gay and lesbian public employees are the municipalities of Chapel Hill, Carrboro, Durham, Raleigh and High Point. The City of Asheville also probably protects gay and lesbian municipal employees through language prohibiting discrimination for reasons unrelated to occupational qualifications.
North Carolina courts generally hold that in order for conduct to justify discharge from a government job, the conduct must have an actual effect on job performance. In one appellate case dealing with the issue, the court found a person's sexual orientation, in and of itself, irrelevant to the duties of a government job. In Warren v. City of Asheville, 74 N. C. App. 402, 328 S.E.2d 859 (1985), the state court of appeals held that a police officer could not be discharged for refusing to take a polygraph test that asked whether he was a homosexual and whether he had ever had a "homosexual encounter" in the Asheville area. The court upheld a jury's finding that the officer was wrongfully dismissed in spite of undisputed evidence that he had asked his male roommate to engage in oral sex.
By contrast, in Truesdale v. University of North Carolina, 91 N.C. App. 186, 371 S.E.2d 503 (1988), the court of appeals found that a polygraph examination required prior to permanent employment as a state university police officer did not violate the officer's constitutional right to privacy, even though questions addressed the officer's sexual practices, preferences and partners. The court said that such activities were not entitled to protection as a "fundamental right". One explanation of the differing results in Warren and in Truesdale may be that Ms. Truesdale was a probationary employee who had not been hired permanently (as a security guard at Winston-Salem State University). (This decision was overruled by Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992), insofar as it stated that §1983 actions against state institutions are barred by the doctrine of sovereign immunity.)
Whether a person's sexual orientation will be determined to affect his or her job performance is difficult to predict in any particular case. Similarly, it is difficult to predict whether a public acknowledgment of homosexuality will be seen to have an adverse impact on job performance. It has even been found, on rare occasions, that acknowledging one's homosexuality has been positively related to job performance. Several years ago the National Security Agency told a gay male employee that he could keep his job and security clearance if he acknowledged his homosexuality by "coming out" to his family. The explanation was that he would then not be subject to blackmail, which was one of the justifications for refusing security clearance to lesbians and gay men in the past.
Courts in other states have often held that a teacher's job performance has been adversely affected when students learned he or she was gay. Since there has been no similar litigation specifically addressing the rights of gay-identified teachers in North Carolina, it is unclear how the courts here would decide.
PROFESSIONAL LICENSES
North Carolina, like other states, licenses individuals for practice in many professions and occupations. In addition to the educational, scholastic, and training requirements for licensing, the state often considers the personal character of licensees in deciding whether they possess the necessary fitness and competency to practice their specialties. As a result, the law governing the issuance, suspension, revocation, or renewal of many professional licenses often includes the licensee's "moral character" as a factor in such licensing decisions.
In the past, many licensees in professions traditionally held to high moral and ethical standards, such as medicine and law, have been reluctant to let their homosexuality be known. Many gay men and lesbians who could not hide their sexual orientation never bothered to apply for such licenses. However, because of the inherent vagueness of these "good moral character" standards and the changing views of the morality of homosexual conduct in general, it is highly unlikely that anyone would be denied a license just for being gay or lesbian. NC GALA has several student members who took the bar exam and were licensed as attorneys despite informing the North Carolina State Bar of their membership in NC GALA. Likewise, the bar has approved NC GALA as a sponsor of the continuing legal education courses that all North Carolina lawyers must take to keep their licenses.
We are aware of no case in which a prospective licensee was denied a North Carolina license solely on account of his or her homosexuality. In cases where the license was initially denied, if the applicant took action to challenge the adverse decision, the license was granted. For example, in the early 1980's one gay applicant for a license from the Alarms System Licensing Board had to use the Administrative Procedures Act to get his license after the board initially said that his homosexuality was grounds to deny him a license.
In Hodgkin's v. North Carolina Real Estate Commission, 130 N.C. App. 626, 504 S.E.2d 789 (1998), the state court of appeals upheld the denial of a real estate license to a man who had pled guilty to a "crime against nature" solicitation charge five years before. The court found that this conviction by itself was sufficient to show that the applicant did not possess the "requisite integrity for licensure as a real estate salesman." The court's decision was affected by the apparently public nature of solicitation. The petitioner argued that the "solicitation" consisted of a private conversation between two apparently consenting adults that occurred in a public place, whereas the act itself was to occur in a secluded area. The court nevertheless described this as "activity conducted in public" and found that "such conduct becomes relevant to determine an applicant's integrity as it reflects on his willingness and ability to abide by the law."
In 2003, the landmark case Lawrence v. Texas, 123 S. Ct. 2472 (2003), overturned all laws criminalizing sodomy. Now that sodomy is not a crime, it will presumably be harder for a licensing board to deny a license based on the assumption that an applicant's moral character is questionable if he or she is gay or lesbian.”