Bill 379

                    Current Status

Bill Number:               379
Ratification Number:       785
Act Number                 663
Introducing Body:          Senate
Subject:                   Relating to definitions under the "South
                           Carolina Human Affairs Law"

(A663, R785, S379)

AN ACT TO AMEND SECTION 1-13-30, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS UNDER THE "SOUTH CAROLINA HUMAN AFFAIRS LAW", SO AS TO REDEFINE THE TERM "AGE"; TO AMEND SECTION 1-13-80, RELATING TO UNLAWFUL EMPLOYMENT PRACTICES AND EXCEPTIONS UNDER THE "SOUTH CAROLINA HUMAN AFFAIRS LAW", SO AS TO, AMONG OTHER THINGS, PROVIDE THAT NOTHING IN CHAPTER 13 OF TITLE 1 MAY BE CONSTRUED TO PROHIBIT COMPULSORY RETIREMENT OF ANY EMPLOYEE WHO HAS ATTAINED SIXTY-FIVE YEARS OF AGE, RATHER THAN ANY EMPLOYEE "WHO HAS ATTAINED SIXTY-FIVE YEARS OF AGE BUT NOT SEVENTY YEARS OF AGE", AND WHO, FOR THE TWO-YEAR PERIOD IMMEDIATELY BEFORE RETIREMENT, IS EMPLOYED IN A BONA FIDE EXECUTIVE OR HIGH POLICY-MAKING POSITION, IF THE EMPLOYEE IS ENTITLED TO AN IMMEDIATE NONFORFEITABLE ANNUAL RETIREMENT BENEFIT FROM A PENSION, PROFIT SHARING, SAVINGS, OR DEFERRED COMPENSATION PLAN, OR ANY COMBINATION OF SUCH PLANS, OF THE EMPLOYER OF SUCH EMPLOYEE, WHICH EQUALS, IN AGGREGATE, AT LEAST FORTY-FOUR THOUSAND DOLLARS, RATHER THAN TWENTY-SEVEN THOUSAND DOLLARS, TO PROVIDE THAT NOTHING IN CHAPTER 13 OF TITLE 1, RELATING TO AGE DISCRIMINATION IN EMPLOYMENT MAY BE CONSTRUED TO PROHIBIT COMPULSORY RETIREMENT OF ANY EMPLOYEE WHO HAS ATTAINED SEVENTY YEARS OF AGE AND WHO IS SERVING UNDER A CONTRACT OF UNLIMITED TENURE (OR SIMILAR ARRANGEMENT PROVIDING FOR UNLIMITED TENURE) AT AN INSTITUTION OF HIGHER EDUCATION AND PROVIDE THAT THESE PARTICULAR PROVISIONS ARE EFFECTIVE UNTIL DECEMBER 31, 1993, TO PROVIDE THAT IT IS NOT UNLAWFUL FOR AN EMPLOYER WHICH IS THE STATE, A POLITICAL SUBDIVISION OF THE STATE, AN AGENCY OR INSTRUMENTALITY OF THE STATE OR OF A POLITICAL SUBDIVISION OF THE STATE, OR AN INTERSTATE AGENCY TO FAIL OR REFUSE TO HIRE OR TO DISCHARGE ANY INDIVIDUAL BECAUSE OF THE INDIVIDUAL'S AGE IF THE ACTION IS TAKEN (1) WITH RESPECT TO THE EMPLOYMENT OF AN INDIVIDUAL AS A FIREFIGHTER OR AS A LAW ENFORCEMENT OFFICER AND THE INDIVIDUAL HAS ATTAINED THE AGE OF HIRING OR RETIREMENT IN EFFECT UNDER APPLICABLE LAW ON MARCH 3, 1983, AND (2) PURSUANT TO A BONA FIDE HIRING OR RETIREMENT PLAN THAT IS NOT A SUBTERFUGE TO EVADE THE PURPOSES OF CHAPTER 13 OF TITLE 1 AND PROVIDE THAT THESE PARTICULAR PROVISIONS ARE EFFECTIVE UNTIL DECEMBER 31, 1993, AND TO DEFINE THE TERMS "FIREFIGHTER" AND "LAW ENFORCEMENT OFFICER"; AND TO AMEND SECTION 9-1-1530, RELATING TO RETIREMENT AND RETIREMENT BENEFITS UNDER THE SOUTH CAROLINA RETIREMENT SYSTEM AND TO THE REQUIREMENT FOR RETIREMENT FROM EMPLOYMENT AT AGE SEVENTY AND EXCEPTIONS, SO AS TO DELETE REFERENCES TO "TEACHER" AND "TEACHER IN SERVICE" AND TO DEFINE FURTHER THE WORD "EMPLOYEE", AS USED IN THIS SECTION, AS ONE DESCRIBED IN SECTION 1-13-80(h)(8), (10), OR (12).

Be it enacted by the General Assembly of the State of South Carolina:

"Age", definition of; changed

SECTION 1. Section 1-13-30(c) of the 1976 Code is amended to read:

"(c) 'Age' means at least forty years."

Unlawful employment practices, exceptions; provisions changed, added

SECTION 2. Section 1-13-80(h) of the 1976 Code is amended to read:

"(h) Notwithstanding any other provision of this chapter:

(1) It is not an unlawful employment practice for an employer to employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

(2) It is not an unlawful employment practice for any party subject to the provisions of this section to compile or assemble such information as may be required pursuant to Section 1-13-70(i) or Federal Equal Employment Opportunity Commission or federal contract compliance requirements, or pursuant to any other law not inconsistent with this chapter.

(3) It is not an unlawful employment practice for an employer to apply different standards of compensation, different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system or a system which measures earnings by quantity or quality of production or to employees who work in different locations so long as such differences are not the result of an intention to discriminate because of race, religion, color, sex, or national origin; nor is it an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test if such test, its administration, or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin. It is not an unlawful employment practice under this chapter for any employer to differentiate upon the basis of sex in determining the amount of wages or compensation paid or to be paid to employees of such employer if the differentiation is authorized by the provisions of Section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)).

(4) Nothing contained in this chapter applies to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.

(5) This chapter does not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. It is not an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if the school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of the school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

(6) Nothing contained in this chapter may be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this chapter to grant preferential treatment to any individual or to any group because of race, color, religion, sex, or national origin of the individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, state, section, or other area, or in the available work force in any community, state, section, or other area.

(7) It is not unlawful for an employer, employment agency, or labor organization:

(i) to take any action otherwise prohibited under this chapter where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age;

(ii) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter except that no such employee benefit plan may excuse the failure to hire any individual.

Notwithstanding the provisions of subitem (ii), no seniority system or employee benefit plan may require or permit the involuntary retirement of any individual covered by the provisions of this chapter relating to age because of the age of the individual; however, in the case of employees covered by a collective bargaining agreement which was in effect on June 30, 1986, and which would otherwise be prohibited by the provisions of this subitem, this subitem takes effect upon the termination of such agreement or on January 1, 1990, whichever occurs first.

(8) Nothing in this chapter may be construed to prohibit compulsory retirement of any employee who has attained sixty-five years of age and who, for the two-year period immediately before retirement, is employed in a bona fide executive or high policy making position, if the employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of the employee, which equals, in aggregate, at least forty-four thousand dollars.

(9) In applying item (8) of this subsection (h) the retirement benefit test, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit must be adjusted in accordance with regulations prescribed by the Commissioner so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.

(10) Nothing in this chapter relating to age discrimination in employment may be construed to prohibit compulsory retirement of any employee who has attained seventy years of age and who is serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure) at an institution of higher education. The provisions of this item are effective until December 31, 1993.

(11) It is an unlawful employment practice for any person to forcibly resist, prevent, impede, or interfere with the Commission or any of its members or representatives in the lawful performance of duty under this chapter.

(12) It is not unlawful for an employer which is the State, a political subdivision of the State, an agency or instrumentality of the State or of a political subdivision of the State, or an interstate agency to fail or refuse to hire or to discharge any individual because of the individual's age if the action is taken (i) with respect to the employment of an individual as a firefighter or as a law enforcement officer and the individual has attained the age of hiring or retirement in effect under applicable law on March 3, 1983, and (ii) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter. The provisions of this item are effective until December 31, 1993.

(13) The term 'firefighter' means an employee the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position.

(14) The term 'law enforcement officer' means an employee the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the State, including an employee engaged in this activity who is transferred to a supervisory

or administrative position. For the purpose of this item (14), 'detention' includes the duties of employees assigned to guard individuals incarcerated in any penal institution.

(15) Nothing contained in items (8), (10), and (12) above may override provisions of Sections 9-1-1530 and 9-1-1537 of the 1976 Code."

"Teacher", "teacher in service" deleted; "employee" defined further

SECTION 3. Section 9-1-1530 of the 1976 Code is amended to read:

"Section 9-1-1530. Any employee, described in Section 1-13-80(h)(8), (10), or (12), who has attained the age of seventy years shall be retired forthwith, except that:

(1) with the approval of his employer he may remain in service until the end of the year following the date on which he attains the age of seventy years;

(2) with the approval of his employer and the Board he may, upon his request therefor, be continued in service for a period of one year following each such request until such employee has reached the age of seventy-two years; and

(3) with the approval of his employer, upon his request therefor, be continued in service for such period of time as may be necessary for such employee to qualify for coverage under the old age and survivors insurance provision of Title II of the Federal Social Security Act, as amended.

It shall be mandatory for any employee, described in Section 1-13-80(h)(8), (10), or (12), whether or not appointed and regardless of whether or not a member of the South Carolina Retirement System to retire no later than the end of the fiscal year in which he reaches his seventy-second birthday.

This section shall not apply to any person holding an elective office.

This section shall take effect July 1, 1969. Provided, however, no person affected by the provisions of this section shall be required to retire prior to July 1, 1971.

Provided, however, that excepting constitutional offices, this section shall not apply to appointive offices receiving per diem or travel allowances as total compensation or to employees of the State Court System when such court employees are employed on a part-time basis."

Time effective

SECTION 4. This act takes effect upon approval by the Governor.