S*379 Session 107 (1987-1988)
S*0379(Rat #0785, Act #0663 of 1988) General Bill, By I.E. Lourie, W.W. Doar and
P.B. McLeod
Similar(H 2407)
A Bill 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).-amended
title
02/11/87 Senate Introduced and read first time
02/11/87 Senate Referred to Committee on Judiciary
02/25/87 Senate Committee report: Majority favorable with amend.,
minority unfavorable Judiciary SJ-659
02/26/87 Senate Special order SJ-710
03/04/87 Senate Amended SJ-769
03/04/87 Senate Read second time SJ-776
03/04/87 Senate Ordered to third reading with notice of
amendments SJ-776
03/10/87 Senate Special order SJ-840
03/12/87 Senate Read third time and sent to House SJ-900
03/16/87 House Introduced and read first time HJ-1031
03/16/87 House Referred to Committee on Labor, Commerce and
Industry HJ-1031
04/15/87 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-1870
04/21/87 House Debate adjourned HJ-2050
04/22/87 House Debate adjourned until Tuesday, April 28, 1987 HJ-207
04/28/87 House Debate adjourned HJ-2185
04/29/87 House Debate adjourned HJ-2244
04/30/87 House Amended HJ-2365
04/30/87 House Read second time HJ-2365
05/05/87 House Read third time HJ-2420
05/05/87 House Returned HJ-2420
05/05/87 House Reconsider vote whereby read third time HJ-2423
05/06/87 House Committed to Committee on Ways and Means HJ-2466
01/14/88 House Committee report: Favorable Ways and Means HJ-401
01/19/88 House Read third time HJ-370
01/19/88 House Returned HJ-370
01/20/88 Senate Concurred in House amendment and enrolled SJ-14
01/28/88 Senate Recalled from Legislative Council SJ-4
01/28/88 Senate Reconsidered SJ-4
03/22/88 Senate House amendment amended SJ-26
03/22/88 Senate Returned SJ-26
04/13/88 House Senate amendment amended HJ-2727
04/13/88 House Returned HJ-2727
04/14/88 Senate House can't amend to 3rd degree; ret.to H; out
of orde SJ-173
04/20/88 House Debate adjourned until Tuesday, April 26, 1988 HJ-307
04/20/88 Senate Recalled from House SJ-15
04/20/88 House Returned HJ-3125
04/27/88 Senate House amendment amended SJ-18
04/27/88 Senate Returned SJ-18
05/04/88 House Debate adjourned HJ-3545
05/26/88 House Senate amendment amended HJ-4140
05/26/88 House Returned HJ-4141
06/02/88 Senate Concurred in House amendment and enrolled SJ-84
06/20/88 Ratified R 785
07/25/88 Signed By Governor
07/25/88 Effective date 07/25/88
07/25/88 Act No. 663
08/09/88 Copies available
(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. |