North Carolina Equal Employment Practices Act — scope and protected classes
North Carolina's Equal Employment Practices Act (NCEEPA) declares the state's public policy to prohibit employment discrimination on the basis of race, religion, color, national origin, age, sex, or handicap by employers that regularly employ 15 or more employees. ("Handicap" is the term used in the NCEEPA text and not defined in parallel to the federal ADA.) The NCEEPA does not create a private right of action. However, North Carolina courts recognize the NCEEPA's public-policy declaration as a basis for common-law wrongful discharge claims under the exception to the at-will employment doctrine.
While Coman v. Thomas Mfg. Co., 325 N.C. 172 (1989), established the general public policy exception to at-will employment, it did not address NCEEPA-based discrimination claims specifically. Later decisions, such as Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 551 S.E.2d 179 (2001), confirm that NCEEPA's anti-discrimination policy is recognized as public policy supporting wrongful discharge claims when an employee alleges discharge for reasons prohibited by the Act.
Source: N.C. Gen. Stat. § 143-422.2; Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 551 S.E.2d 179 (2001)
NCEEPA employer coverage — 15-employee threshold
The North Carolina Equal Employment Practices Act applies only to employers that "regularly employ 15 or more employees." The statute does not define "regularly employ" or specify a calculation method for determining whether the threshold is met. Employers below the 15-employee threshold are not subject to the NCEEPA's public-policy declaration against discrimination, though they remain subject to federal anti-discrimination laws that have independent coverage thresholds.
Source: N.C. Gen. Stat. § 143-422.2(a)
NCEEPA administrative enforcement — Human Relations Commission process
Statutory basis and core process N.C. Gen. Stat. § 143-422.3 states that the North Carolina Human Relations Commission (HRC) is authorized to "receive and investigate complaints of discrimination" and "effect an amicable resolution" when potential discrimination under NCEEPA is alleged. The HRC may attempt conciliation—meaning informal resolution or settlement—if the parties agree. However, the statute does not provide the Commission with authority to adjudicate, impose penalties, or order reinstatement, back pay, or other remedies. There is no formal administrative hearing or determination process outlined in the statute or in any implementing regulation issued by the HRC.
No administrative remedy or exhaustion requirement Filing a complaint with the HRC is voluntary, not mandatory. The NCEEPA does not require employees to exhaust the HRC process before pursuing common-law wrongful discharge claims in court based on the Act's public policy. North Carolina courts have held that there is no NCEEPA-based private right of action (direct suit under the Act), but discharge in violation of the NCEEPA can support a court action for wrongful discharge in violation of public policy. The existence of the HRC's process does not bar, delay, or substitute for the availability of that common-law remedy.
Relationship to common-law wrongful discharge Because the HRC cannot provide a direct remedy (such as damages or reinstatement), employees seeking such relief must rely on the common-law claim for wrongful discharge in violation of NCEEPA public policy. The public policy stated in N.C. Gen. Stat. § 143-422.2 thus primarily functions as a foundation for court claims, not for HRC administrative enforcement. The agency's role is strictly limited to informal investigation and attempted conciliation.
Source: N.C. Gen. Stat. § 143-422.3
HB 2 amendment and repeal — NCEEPA wrongful-discharge private right and retroactivity, March 2016–2017
March 2016 (HB 2 amendment) In March 2016, the North Carolina General Assembly enacted HB 2 (Session Law 2016-3, 2nd Extra Session), adding subsection (c) to N.C. Gen. Stat. § 143-422.2 to state that the North Carolina Equal Employment Practices Act (NCEEPA) “does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” This amendment eliminated common-law wrongful-discharge-in-violation-of-public-policy (WDPP) claims grounded in the NCEEPA for causes of action arising during the period the statute was in force.
July 2016 repeal and restoration (HB 169 / SL 2016-99) In July 2016, the General Assembly enacted Session Law 2016-99 (HB 169), which repealed the private-right ban and restored the cause of action for wrongful discharge under NCEEPA, effective retroactively to March 23, 2016—the original effective date of HB 2. The statute also imposed a new one-year statute of limitations on such claims.
Retroactivity and effect on claims Federal district courts interpreting this history held that HB 2’s ban did not apply retroactively to bar WDPP claims that accrued before its enactment. In Jackson v. Tyco Electronics Corp., the court denied a motion to dismiss a claim that arose before March 23, 2016, clarifying that vested rights to the tort were not affected by HB 2. HB 169 was understood as restoring the common-law claim, not creating a brand new one.
Practical summary
- March 23–July 18, 2016: No new NCEEPA-based wrongful-discharge claims could be brought (private right was suspended).
- Pre-March 23, 2016 claims: Not extinguished by HB 2.
- After July 18, 2016: Statute restored the claim, now subject to a one-year limitations period.
Source: N.C. Gen. Stat. § 143-422.2, Session Law 2016-3, 2nd Extra Session Source: Summary of Session Law 2016-99 (HB 169) Source: Jackson v. Tyco Electronics Corp., 5:16-cv-00873, E.D.N.C. May 2017
Scope of wrongful discharge remedy under NCEEPA public policy
What conduct is actionable? A North Carolina wrongful discharge claim based on the public policy of the North Carolina Equal Employment Practices Act (NCEEPA) is limited to actual or constructive terminations of employment. North Carolina appellate courts have repeatedly held that NCEEPA-based wrongful discharge in violation of public policy (WDPP) claims do not provide a remedy for discrimination in hiring, promotion, demotion, pay, harassment, or other adverse employment actions short of discharge or constructive discharge.
Key cases and holdings:
- In Brackett v. SGL Carbon Corp., the North Carolina Court of Appeals held that "the common law claim of wrongful discharge in violation of public policy is limited to actual or constructive discharge from employment." The court expressly rejected attempts to extend the tort to hostile work environment, harassment, or other adverse actions that do not end the employment relationship.
- Similarly, the Fourth Circuit in McLean v. Patten Communities, Inc. applying North Carolina law, reaffirmed that "virtually all wrongful discharge claims under North Carolina law arise from actual or constructive discharge."
No remedy for lesser adverse employment actions: Plaintiffs cannot bring a wrongful discharge claim under North Carolina public policy for discrimination or retaliation in hiring, pay, assignment, demotion, or harassment—unless these facts create conditions so intolerable as to amount to a constructive discharge.
Source: Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003) Source: McLean v. Patten Communities, Inc., 332 F.3d 714 (4th Cir. 2003)
‘Regularly employ’ threshold under NCEEPA — Title VII payroll method applied
North Carolina’s Equal Employment Practices Act (NCEEPA) applies to employers who “regularly employ 15 or more employees” (N.C. Gen. Stat. § 143‑422.2(a)). The statute does not define “regularly employ,” but North Carolina’s Court of Appeals has explicitly adopted the federal Title VII method—often called the “payroll method”—for determining whether that threshold is met.
In Walker v. Town of Stoneville, 211 N.C. App. 24 (2011), the court held that “constancy of employment is evidenced by the requisite number of individuals appearing on the employer’s payroll each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” It stated that under Title VII, “an employee is counted for each working day after arrival and before departure,” whether or not the employee actually works or is paid on that day, “so long as he or she appears on the company payroll.” Thus, NCEEPA uses the same test. (nccourts.gov)
In practical terms, you count any individual who appears on the payroll each working day for at least 20 workweeks in the current or preceding calendar year; only such individuals count toward the 15‑employee threshold. This means NCEEPA coverage requires sustained payroll presence, not just episodic or annual headcount spikes.
Source:
- N.C. Gen. Stat. § 143‑422.2(a)
- Walker v. Town of Stoneville, 211 N.C. App. 24 (2011) (adopting Title VII payroll method under NCEEPA) (nccourts.gov)