Even though Gov. Roy Cooper has allowed open salons and barber shops to reopen partially this week, salon owners still may file a lawsuit challenging the constitutionality of his COVID-19 orders. 

The Hair Is Essential Association would base its challenge on the state constitution’s clause ensuring the right of North Carolinians to the “enjoyment of the fruits of their labor.” The group started with Raleigh salon owners, but by Thursday, May 21, it had racked up more than 950 followers on its Facebook page

Raleigh lawyer Chuck Kitchen, who represents the group, said the lawsuit could reach beyond personal care businesses, but he didn’t elaborate when he spoke with Carolina Journal Tuesday. He didn’t respond to a follow-up question Wednesday after Cooper included salons in Phase Two.

Association members are debating whether to continue with the lawsuit and what to do with the money they raised for the challenge, said Adele Ange, salon owner and the association’s spokeswoman. The state’s new orders will restrict salons to operating at half capacity.

“Our whole goal in this lawsuit wasn’t money,” said Ange. “This is to set a law in place for us to have rights. We feel all Americans are essential. People have to work to earn a living and provide for their families.” 

“What I’m hoping to achieve is real simple: a decision upholding the North Carolina Constitution’s right to work,” Kitchen said Tuesday. “You have an unavailable right to work. It is directly in the constitution.”

State Health and Human Services Secretary Mandy Cohen defended the orders, saying they protected public safety by restarting only outdoor activities and mobile indoor activities. Cohen cited concerns about silent spreaders, or people infected with the virus who show no symptoms.

This virus is transmitted when people come within close contact with each other over a prolonged period of time,” Cohen said during a Tuesday news briefing. “When you get your hair done, you are literally right on top of someone. And it is over a period of time, so it is one of the higher risk scenarios, both for patrons and employees.”

North Carolina had 20,122 confirmed coronavirus cases, with 554 hospitalizations and 702 deaths. Nursing homes and assisted living facilities have been hard hit by the virus, with links to 61% of deaths, as of Wednesday. 

More than 1 million unemployment claims have been filed with the N.C. Division of Employment Security. Of the some 900,000 people who made those claims, fewer than 538,000 have actually received unemployment benefits since March 15. 

“I’ve heard from a lot of people that we need to get our restaurants and personal care salons open. That’s going to happen now, and it’s going to be done in a safe way,” Cooper said during a Wednesday news briefing. “We must take a cautious approach to make sure this works the right way, to keep our curve flat and make sure we don’t encourage the spread of this virus.”

Salon owners worry they won’t be able to stay in business if they can operate at no more than 50% capacity. 

Cooper’s decision to add salons under Phase Two would make it tougher to prevail in a lawsuit against the statewide order, said Jeanette Doran, president and general counsel of the North Carolina Institute for Constitutional Law. “They could try to argue that the restrictions are so severe that for all practical purposes they are shut down,” Doran said. “They could still try to make that argument, but it wouldn’t be very likely to succeed.”

But a lawsuit challenging local orders that have maintained a salon shutdown and other tighter restrictions than the statewide order may fare better, she said.

The Nerdy Colorist Salon owner Tiffany Benedict of Greensboro said Tuesday she has mixed feelings about the lawsuit. She hoped it would draw the governor’s attention, but she also feared backlash. 

“We’re out here. We can’t work,” Benedict said. “[The state] took that away, but also haven’t made any accommodations for us to survive, whether it is with our business or with unemployment. Unemployment is so hard to get.”

Benedict says she’s one of the lucky ones. After waiting several weeks to get through to the Division of Employment Security, she qualified for benefits and for a Economic Injury Disaster Loan to cover her utilities and rent. 

“But that money is gone. I’ve been closed for two-and-a-half months. It’s very scary times,” Benedict said. “I’ve got two kids at home, I’m a single parent. It’s just me. I’m afraid that if I can’t generate the same amount of money, it’s going to cut into my kids’ time and my ability to take care of them.”

If filed, the lawsuit would join an earlier lawsuit that overthrew Cooper’s ban on indoor worship services. Doran expects more lawsuits to follow, especially against the local governments that continue shuttering businesses. 

“I’m honestly surprised it’s taken so long to see these kinds of cases,” Doran said. “I think we can expect that we will see litigation in the next several days or weeks if we don’t get some relief from these edicts.”