S 292 Session 110 (1993-1994)
S 0292 General Bill, By Patterson
A Bill 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.
01/26/93 Senate Introduced and read first time SJ-27
01/26/93 Senate Referred to Committee on Judiciary SJ-27
03/02/94 Senate Committee report: Favorable with amendment
Judiciary SJ-12
03/03/94 Senate Amended SJ-23
03/03/94 Senate Read second time SJ-25
03/03/94 Senate Ordered to third reading with notice of
amendments SJ-25
03/08/94 Senate Read third time and sent to House SJ-9
03/09/94 House Introduced and read first time HJ-6
03/09/94 House Referred to Committee on Labor, Commerce and
Industry HJ-6
05/04/94 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-10
05/24/94 House Objection by Rep. Cromer, Vaughn, Cato, Allison,
Simrill, Quinn, HJ-26
05/24/94 House Objection by Rep. Kelley, Sharpe & Wright HJ-26
05/25/94 House Objection withdrawn by Rep. Simrill HJ-22
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
May 4, 1994
S. 292
Introduced by SENATOR Patterson
S. Printed 5/4/94--H.
Read the first time March 9, 1994.
THE COMMITTEE ON
LABOR, COMMERCE AND INDUSTRY
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
REPORT:
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.
A BILL
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:
"Article 9
Employment Bill of Rights
for Persons with Disabilities
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.
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