Current Status Introducing Body:Senate Bill Number:292 Primary Sponsor:Patterson Type of Legislation:GB Subject:Employment Bill of Rights for Persons with Disabilities Residing Body:House Computer Document Number:436/12683AC.93 Introduced Date:19930126 Date of Last Amendment:19940303 Last History Body:House Last History Date:19940525 Last History Type:Objection withdrawn by Representative Scope of Legislation:Statewide All Sponsors:Patterson Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
____ ______ ____________ ______________________________ ___ ____________
292 House 19940525 Objection withdrawn by Simrill
Representative
292 House 19940524 Objection by Representative Cromer
Vaughn
Cato
Allison
Simrill
Quinn
Kelley
Sharpe
Wright
292 House 19940504 Committee Report: Favorable 26
with amendment
292 House 19940309 Introduced, read first time, 26
referred to Committee
292 Senate 19940308 Read third time, sent to House
292 Senate 19940303 Amended, read second time,
ordered to third reading with
notice of general amendments
292 Senate 19940302 Committee Report: Favorable 11
with amendment
292 Senate 19930126 Introduced, read first time, 11
referred to Committee
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Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
May 4, 1994
S. 292
S. Printed 5/4/94--H.
Read the first time March 9, 1994.
To whom was referred a Bill (S. 292), to amend the Code of Laws of South Carolina, 1976, by adding Article 9 to Chapter 33, Title 43, so as to enact the "Employment Bill of Rights for Persons with Disabilities", etc., respectfully
That they have duly and carefully considered the same, and recommend that the same do pass with amendment:
Amend the bill, as and if amended, Section 43-33-720(A), by adding an appropriately numbered item to read:
/( ) "Employer" means a person who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year and an agent of such a person; however, this term does not include an Indian tribe or a bona fide private membership club other than a labor organization./
Amend further, Section 43-33-720(A)(3)(e), page 3, line 3, by deleting /undue burden/ and inserting /undue hardship/.
Amend further, Section 43-33-720(A)(8), page 4, line 30, by deleting /`undue burden'/ and inserting /`undue hardship'/.
Amend further, page 6, line 9, by deleting /Section 44-33-730/ and inserting /Section 43-33-730/.
Amend further, page 6, line 17, by deleting /Section 44-33-740/ and inserting /Section 43-33-740/.
Amend further, Section 43-33-530, page 10, beginning on line 12, by deleting /Section 43-33-720(A)(8)/ and inserting /the Americans with Disabilities Act, 1990/.
Renumber items to conform.
Amend title to conform.
THOMAS C. ALEXANDER, for Committee.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 9 TO CHAPTER 33, TITLE 43, SO AS TO ENACT THE "EMPLOYMENT BILL OF RIGHTS FOR PERSONS WITH DISABILITIES"; TO AMEND SECTIONS 43-33-510, 43-33-520, 43-33-530, 43-33-540, AND 43-33-560, ALL RELATING TO THE "BILL OF RIGHTS FOR HANDICAPPED PERSONS", SO AS TO DELETE REFERENCES TO EMPLOYMENT AND TO CHANGE THE TERM "HANDICAPPED PERSONS" TO "PERSONS WITH DISABILITIES"; TO CHANGE THE TITLE OF ARTICLE 7, CHAPTER 33, TITLE 43 TO "BILL OF RIGHTS FOR PERSONS WITH DISABILITIES"; TO REPEAL SECTION 43-33-550 RELATING TO JURISDICTION OF THE STATE HUMAN AFFAIRS COMMISSION WITH REGARD TO EMPLOYMENT DISCRIMINATION; TO REPEAL SECTION 43-33-570 RELATING TO THE DEFINITION OF REASONABLE JUSTIFICATION; AND TO REPEAL SECTION 43-33-580 RELATING TO THE EXEMPTION OF CONTRACTORS SUBJECT TO FEDERAL LAW REGARDING EMPLOYMENT DISCRIMINATION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 43, Chapter 33 of the 1976 Code is amended by adding:
Section 43-33-710. This article may be cited as the `Employment Bill of Rights for Persons with Disabilities'.
Section 43-33-720. (A) As used in this article:
(1) `Covered entity' means an employer, employment agency, labor organization, or joint labor-management committee.
(2) `Disability' means with respect to an individual:
(a) a physical or mental impairment that substantially limits one or more of the major life activities of the individual;
(b) a record of this impairment; or
(c) being regarded as having this impairment.
(3) `Discriminate' includes:
(a) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because of the disability of the applicant or employee;
(b) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this article; a relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs;
(c) utilizing standards, criteria, or methods of administration:
(i) that have the effect of discrimination on the basis of disability; or
(ii) that perpetuate the discrimination of others who are subject to common administrative control;
(d) excluding or denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
(e) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue burden on the operation of the business of the covered entity;
(f) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if the denial is based on the need of the covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;
(g) using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity;
(h) failing to select and administer tests concerning employment in the most effective manner to ensure that when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of the employee or applicant, except where these skills are the factors that the test purports to measure;
(i) retaliating against, interfering with or coercing an individual in the exercise or enjoyment of or on account of the individual having aided or encouraged any other individual in the exercise or enjoyment of a right granted or protected under this article; or retaliating against an individual who has opposed an act or practice made unlawful by this article or for making a charge, testifying, or assisting or participating in any manner in an investigation, proceeding, or hearing under this article.
(4) `Drugs' means a controlled substance as defined in Section 44-53-110.
(5) `Illegal use of drugs' means the use of drugs, the possession or distribution of which is unlawful under Chapter 53, Title 44 of the 1976 Code of Laws of South Carolina, as amended. This term does not include the use of a drug taken under supervision by a licensed health care professional or other lawful uses.
(6) `Qualified individual with a disability' means an individual with a disability, who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires. Consideration must be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description must be considered evidence of the essential functions of the job.
(7) `Reasonable accommodation' may include:
(a) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(b) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(8) `Undue burden' means an action requiring significant difficulty or expense, when considered in light of:
(a) the nature and cost of the accommodation needed;
(b) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at the facility; the effect on expenses and resources, or the impact otherwise of the accommodation upon the operation of the facility;
(c) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; and the number, type, and location of its facilities; and
(d) the type of operation or operations of the covered entity, including the composition, structure, and functions of the work-force of the entity; the geographic separateness or the administrative or fiscal relationship of the facility or facilities in question to the covered entity.
(B) These terms as defined in Section 1-13-30 apply to this article:
(1) person;
(2) employer;
(3) employment agency;
(4) labor organization;
(5) employee.
(C) As used in this article, the term `disability' does not include:
(1) homosexuality, bisexuality, transvestism, transsexualism, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania;
(3) psychoactive substance use disorders resulting from current illegal use of drugs; or
(4) an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. Nothing in this item shall be construed to exclude as an individual with a disability an individual who:
(a) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
(b) is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(c) is erroneously regarded as engaging in such use, but is not engaging in such use.
Provided, however, it shall not be unlawful for a covered entity to adopt or administer reasonable policies or procedures, including, but not limited to, drug testing, designed to ensure that an individual described in subitems (a) or (b) is no longer engaging in the illegal use of drugs. Nothing in this item shall be construed to encourage, prohibit, restrict, or authorize the conducting of testing of the illegal use of drugs.
Section 44-33-730. No covered entity may discriminate against a qualified individual with a disability because of the disability of the individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
Section 44-33-740. (A) A covered entity may not conduct a pre-employment medical examination and may not make inquiries of an applicant as to whether the applicant is an individual with a disability or as to the nature or severity of the disability. However, a covered entity may:
(1) make pre-employment inquiries into the ability of an applicant to perform job-related functions;
(2) require a medical examination after an offer of employment has been made to a job applicant and before commencement of the employment duties of the applicant;
(3) condition an offer of employment on the results of the examination if all entering employees are subjected to the examination regardless of disability.
(B) A covered entity may not require a medical examination and may not make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability unless the examination or inquiry is shown to be job-related and consistent with business necessity.
(C) A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site and may make inquiries into the ability of an employee to perform job-related functions.
(D) Information obtained under this section regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and must be treated as a confidential medical record. However, supervisors and managers may be informed regarding necessary work or duty restrictions of the employee and necessary accommodations; first aid and safety personnel, when appropriate, may be informed if the disability might require emergency treatment; and upon request, government officials investigating compliance with this law must be provided relevant information.
Section 43-33-750. A covered entity may:
(1) prohibit the illegal use of drugs and the use of alcohol at the work place by all employees;
(2) require that employees not be under the influence of alcohol or engage in the illegal use of drugs at the work place;
(3) require that employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988, 41 U.S.C. 701 et seq., and the State Drug-Free Workplace Act, Title 44, Chapter 107;
(4) hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that the entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee; and
(5) require that, with respect to federal regulations regarding alcohol and the illegal use of drugs:
(a) employees comply with the standards established in regulations of the Department of Defense, if the employees of the covered entity are employed in an industry subject to these regulations;
(b) employees comply with the standards established in the regulations of the Nuclear Regulatory Commission, if the employees of the covered entity are employed in an industry subject to these regulations; and
(c) employees comply with the standards established in regulations of the Department of Transportation, if the employees of the covered entity are employed in a transportation industry subject to these regulations;
(d) a test to determine the illegal use of drugs is not considered a medical examination.
Section 43-33-760. (A) It is a defense to a charge of discrimination under this article that an alleged application of qualification standards, tests, or selection criteria that screen out, tend to screen out, or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity and performance cannot be accomplished by reasonable accommodation, as required under this article.
(B) For purposes of this section the term `qualification standards' includes a requirement that an individual may not pose a direct threat to the health or safety of others in the workplace that cannot be eliminated by reasonable accommodation.
Section 43-33-770. (A) Nothing in this article prohibits a religious corporation, association, educational institution, or society from giving preference in employment to an individual of a particular religion to perform work connected with the carrying on by the corporation, association, educational institution, or society of its activities.
(B) A religious organization may require that all applicants and employees conform to the religious tenets of the organization.
Section 43-33-780. (A) If an individual has an infectious or communicable disease that is transmitted to others through the handling of food, which cannot be eliminated by reasonable accommodation, and the disease is included on the list developed by the Secretary of Health and Human Services pursuant to the Americans with Disabilities Act, a covered entity may refuse to assign or continue to assign the individual to a job involving food handling.
(B) Nothing in this article may be construed to preempt, modify, or amend any state, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the Secretary of Health and Human Services.
Section 43-33-790. Jurisdiction over complaints of discrimination in violation of this article is vested with the State Human Affairs Commission, and complaints brought under this article must be processed and investigated in accordance with Title 1, Chapter 13. Discrimination under this article is an unlawful employment practice as prescribed in Title 1, Chapter 13, and the provisions, procedures, and remedies of Title 1, Chapter 13 apply to discrimination under this article."
SECTION 2. Section 43-33-510 of the 1976 Code is amended to read:
"Section 43-33-510. This article may be cited as the South Carolina Bill of Rights for Handicapped Persons with Disabilities."
SECTION 3. Section 43-33-520 of the 1976 Code is amended to read:
"Section 43-33-520. The opportunity to obtain employment, housing, full and equal use of public accommodations, public services, and to make use of educational facilities without discrimination because of a handicap disability is guaranteed by this article and is a civil right."
SECTION 4. Section 43-33-530 of the 1976 Code is amended to read:
"Section 43-33-530. No person may discriminate against a handicapped person with a disability with respect to employment, public accommodations, public services, or housing without reasonable justification unless the requested action would create an undue burden as defined in Section 43-33-720(A)(8). If the requested accommodation would create an undue burden, the public accommodation, public service, or provider of housing shall take other measures to provide equivalent access. No protections or right of access provided by law for handicapped persons with disabilities are reduced or eliminated by the provisions of this section."
SECTION 5. Section 43-33-540 of the 1976 Code is amended to read:
"Section 43-33-540. A handicapped person with a disability aggrieved by the discrimination prohibited by this article has the right to seek injunctive relief or civil damages, not to exceed five thousand dollars actual damages, plus his attorney's fee fees and costs, in the court of common pleas."
SECTION 6. Section 43-33-560 of the 1976 Code is amended to read:
"Section 43-33-560. (A) Notwithstanding the provisions of Section 2-7-35 of the 1976 Code, the terms `handicap' `disability' and `handicapped' `disabled' as used in this article mean a substantial physical or mental impairment, whether congenital or acquired by accident, injury, or disease, where the impairment is verified by medical findings and appears reasonably certain to continue throughout the lifetime of the individual without substantial improvement, but, with respect to employment, which is unrelated to the individual's ability to engage in a particular job or occupation. This does not include any individual who is an alcohol, drug, narcotic, or other substance abuser, or who is only regarded as being handicapped. The term `mental impairment' shall not include mental illness. with respect to a person:
(1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual;
(2) a record of such an impairment; or
(3) being regarded as having such an impairment.
(B) Under this article, the term `disability' or `disabled' does not include:
(1) homosexuality, bisexuality, transvestism, transsexualism, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania;
(3) psychoactive substance use disorders resulting from current illegal use of drugs; or
(4) an individual who is currently engaging in the illegal use of drugs. Nothing in this item shall be construed to exclude as an individual with a disability an individual who:
(a) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
(b) is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(c) is erroneously regarded as engaging in such use, but is not engaging in such use."
SECTION 7. The title of Article 7 of Chapter 33, Title 43 of the 1976 Code is changed from "Bill of Rights for Handicapped Persons" to the "Bill of Rights for Persons with Disabilities".
SECTION 8. Sections 43-33-550, 43-33-570, and 43-33-580 of the 1976 Code are repealed.
SECTION 9. This act takes effect on July 26, 1994.