H*4277 Session 111 (1995-1996)
H*4277(Rat #0513, Act #0426 of 1996) General Bill, By Walker, J.M. Baxley and
Fleming
Similar(S 893)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
1-13-85 so as to include in unlawful employment practices the conducting of
medical examinations and inquiries and to provide conditions under which they
may be conducted; to amend Sections 1-13-20, 1-13-30, as amended, 1-13-70,
1-13-80, as amended, 1-13-90, and 1-13-100, relating to the State Human
Affairs Commission and unlawful employment practices and the prohibition
against discrimination in employment based on race, religion, color, sex,
national origin, and age, so as to also prohibit discrimination based on
disability and to define "disability" and to further provide how
discrimination based on a disability is an unlawful employment practice; to
amend Sections 43-33-520, 43-33-530, 43-33-560, and 43-33-570, all relating to
the Bill or Rights for Handicapped Persons, so as to delete provisions
relating to employment; to repeal Section 43-33-550 relating to the
jurisdiction of the State Human Affairs Commission over complaints of
employment discrimination; and to repeal Section 43-33-580 relating to the
exemption of contractors and subcontractors from State discrimination laws
when they are subject to such Federal laws; to add Section 58-9-2550 so as to
authorize the Public Service Commission to establish a distribution system for
the telecommunications devices for the deaf; to amend Section 58-9-2510,
relating to definitions regarding telephone service for hearing and speech
impaired persons, so as to add a definition for "dual sensory impaired person"
and revise the definition of "telecommunications device"; to amend Section
58-9-2520, relating to statewide telephone access programs for persons speech
or hearing impaired, so as to revise the contents of the program; to amend
Section 58-9-2530, relating to changes for a dual party relay telephone system
so as to include in this funding the distribution system for
telecommunications devices for the deaf; and to reauthorize the South Carolina
Educational Television Commission until July 1, 2003.-amended title
05/31/95 House Introduced and read first time HJ-10
05/31/95 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-10
04/10/96 House Committee report: Favorable Medical, Military,
Public and Municipal Affairs HJ-3
04/17/96 House Read second time HJ-21
04/18/96 House Read third time and sent to Senate HJ-14
04/23/96 Senate Introduced and read first time SJ-21
04/23/96 Senate Referred to Committee on Judiciary SJ-21
05/15/96 Senate Committee report: Favorable Judiciary SJ-13
05/16/96 Senate Read second time SJ-38
05/16/96 Senate Ordered to third reading with notice of
amendments SJ-38
05/22/96 Senate Amended SJ-31
05/23/96 Senate Read third time and returned to House with
amendments SJ-104
05/30/96 House Senate amendment amended HJ-55
05/30/96 House Returned to Senate with amendments HJ-55
05/30/96 Senate Concurred in House amendment and enrolled SJ-67
06/13/96 Ratified R 513
06/18/96 Signed By Governor
06/18/96 Effective date 06/18/96
07/02/96 Copies available
07/02/96 Act No. 426
(A426, R513, H4277)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING SECTION 1-13-85 SO AS TO
INCLUDE IN UNLAWFUL EMPLOYMENT PRACTICES THE
CONDUCTING OF MEDICAL EXAMINATIONS AND INQUIRIES
AND TO PROVIDE CONDITIONS UNDER WHICH THEY MAY BE
CONDUCTED; TO AMEND SECTIONS 1-13-20, 1-13-30, AS
AMENDED, 1-13-70, 1-13-80, AS AMENDED, 1-13-90, AND
1-13-100, RELATING TO THE STATE HUMAN AFFAIRS
COMMISSION AND UNLAWFUL EMPLOYMENT PRACTICES AND
THE PROHIBITION AGAINST DISCRIMINATION IN
EMPLOYMENT BASED ON RACE, RELIGION, COLOR, SEX,
NATIONAL ORIGIN, AND AGE, SO AS TO ALSO PROHIBIT
DISCRIMINATION BASED ON DISABILITY AND TO DEFINE
"DISABILITY" AND TO FURTHER PROVIDE HOW
DISCRIMINATION BASED ON A DISABILITY IS AN UNLAWFUL
EMPLOYMENT PRACTICE; TO AMEND SECTIONS 43-33-520,
43-33-530, 43-33-560, AND 43-33-570, ALL RELATING TO THE
BILL OF RIGHTS FOR HANDICAPPED PERSONS, SO AS TO
DELETE PROVISIONS RELATING TO EMPLOYMENT; TO REPEAL
SECTION 43-33-550 RELATING TO THE JURISDICTION OF THE
STATE HUMAN AFFAIRS COMMISSION OVER COMPLAINTS OF
EMPLOYMENT DISCRIMINATION; TO REPEAL SECTION
43-33-580 RELATING TO THE EXEMPTION OF CONTRACTORS
AND SUBCONTRACTORS FROM STATE DISCRIMINATION LAWS
WHEN THEY ARE SUBJECT TO SUCH FEDERAL LAWS; TO ADD
SECTION 58-9-2550 SO AS TO AUTHORIZE THE PUBLIC SERVICE
COMMISSION TO ESTABLISH A DISTRIBUTION SYSTEM FOR
TELECOMMUNICATIONS DEVICES FOR THE DEAF; TO AMEND
SECTION 58-9-2510, RELATING TO DEFINITIONS REGARDING
TELEPHONE SERVICE FOR HEARING AND SPEECH IMPAIRED
PERSONS, SO AS TO ADD A DEFINITION FOR "DUAL
SENSORY IMPAIRED PERSON" AND REVISE THE
DEFINITION OF "TELECOMMUNICATIONS DEVICE";
TO AMEND SECTION 58-9-2520, RELATING TO STATEWIDE
TELEPHONE ACCESS PROGRAMS FOR PERSONS SPEECH OR
HEARING IMPAIRED, SO AS TO REVISE THE CONTENTS OF THE
PROGRAM; TO AMEND SECTION 58-9-2530, RELATING TO
CHANGES FOR A DUAL PARTY RELAY TELEPHONE SYSTEM,
SO AS TO INCLUDE IN THIS FUNDING THE DISTRIBUTION
SYSTEM FOR TELECOMMUNICATIONS DEVICES FOR THE
DEAF; AND TO REAUTHORIZE THE SOUTH CAROLINA
EDUCATIONAL TELEVISION COMMISSION UNTIL JULY 1,
2003.
Be it enacted by the General Assembly of the State of South
Carolina:
Unlawful employment practices; medical examinations and inquiries
conditions for
SECTION 1. The 1976 Code is amended by adding:
"Section 1-13-85. (A) The prohibition against unlawful
employment practices set forth in Section 1-13-80 (a) through (d)
includes the prohibition against conducting medical examinations and
inquiries except as provided for in this section.
(B) Except as provided in subsection (C), a covered entity must not
conduct a medical examination or make inquiries of a job applicant as to
whether the applicant is an individual with a disability or as to the nature
or severity of the disability. A covered entity may make preemployment
inquiries into the ability of an applicant to perform job-related
functions.
(C) A covered entity may require a medical examination after an offer
of employment has been made to a job applicant and before the
commencement of the employment duties of the applicant, and may
condition an offer of employment on the results of the examination,
if:
(1) all entering employees are subjected to the examination
regardless of disability;
(2) information obtained regarding the medical condition or history
of the applicant is collected and maintained on separate forms and in
separate medical files and is treated as a confidential medical record,
except that:
(a) supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;
(b) first aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment;
(c) government officials investigating compliance with this chapter
must be provided relevant information on request; and
(3) the results of the examination are used only in accordance with
this chapter.
(D) For purposes of this chapter, drug and alcohol exams, tests, or
screens may not be considered a medical examination.
(E)(1) 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.
(2) 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. A covered
entity may make inquiries into the ability of an employee to perform
job-related functions.
(3) Information obtained under subsection (E)(2) regarding the
medical condition or history of an employee is subject to the
requirements of subsection (C)(2) and (3).
(F)(1) It may be a defense to a charge of discrimination under this
chapter that an alleged application of qualification standards, tests, or
selection criteria that screens out or tends to screen out or otherwise
denies a job or benefit to an individual with a disability has been shown
to be job related and consistent with business necessity, and the
performance cannot be accomplished by reasonable accommodation, as
required under this title.
(2) The term `qualification standards' may include a requirement
that an individual may not pose a direct threat to the safety of that
individual or of other individuals in the workplace.
(3) This chapter may not prohibit a religious corporation,
association, educational institution, or society from giving preference in
employment to individuals of a particular religion to perform work
connected with the carrying on of its activities by the corporation,
association, educational institution, or society. Under this chapter, a
religious organization may require that all applicants and employees
conform to the religious tenets of the organization.
(4) If an individual has an infectious or communicable disease that
is transmitted to others through the handling of food, that is included on
the list developed by the Secretary of Health and Human Services
pursuant to the requirements of the Americans with Disabilities Act of
1990, Public Law 101-336, and which cannot be eliminated by
reasonable accommodation, a covered entity may refuse to assign or
continue to assign the individual to a job involving food handling.
Nothing in this chapter may be construed to preempt, modify, or
amend a 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
and 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."
Prohibited discrimination to include disability
SECTION 2. Section 1-13-20 of the 1976 Code is amended to read:
"Section 1-13-20. This chapter is an expression of the concern
of the State for the promotion of harmony and the betterment of human
affairs. The General Assembly declares the practice of discrimination
against an individual because of race, religion, color, sex, age, national
origin, or disability as a matter of state concern and declares that this
discrimination is unlawful and in conflict with the ideals of South
Carolina and the nation, as this discrimination interferes with
opportunities of the individual to receive employment and to develop
according to the individual's own ability and is degrading to human
dignity. The General Assembly further declares that to alleviate these
problems a state agency is created which shall seek to eliminate and
prevent discrimination because of race, religion, color, sex, age, national
origin, or disability."
Definitions
SECTION 3. Section 1-13-30 of the 1976 Code, as last amended by Act
663 of 1988, is further amended by adding at the end:
"(M) `Covered entity' means an employer, employment agency,
labor organization, or joint labor-management committee.
(N) `Disability' means with respect to an individual:
(1) a physical or mental impairment that substantially limits one or
more of the major life activities of the individual;
(2) a record of an impairment; or
(3) being regarded as having an impairment.
The definition of `disability' must be interpreted in a manner
consistent with federal regulations promulgated pursuant to the
Americans with Disabilities Act of 1990, as amended, Public Law
101-336.
(O) `Auxiliary aids and services' means:
(1) qualified interpreters or other effective methods of making
aurally delivered materials available to individuals with hearing
impairments;
(2) qualified readers, taped texts, or other effective methods of
making visually delivered materials available to individuals with visual
impairments;
(3) acquisition or modification of equipment or devices; and
(4) other similar services and actions.
(P) `Direct threat' means a significant risk to the health or safety of
the employee or of others that cannot be eliminated by reasonable
accommodation.
(Q) `Illegal use of drugs' means the use of drugs, the possession and
distribution of which is unlawful under Chapter 53, Title 44. This term
does not include the use of a drug taken under supervision by a licensed
health care professional or other lawful uses. Nothing in this chapter
prohibits a covered entity from requiring employees to conform to
drug-free workplace laws and regulations or from establishing and
enforcing rules, policies, or guidelines concerning use of alcohol or
illegal drugs in the workplace.
(R) `Drug' means a controlled substance as defined in Section
44-53-10.
(S) `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. For the purposes of this chapter, 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 job description
before advertising or interviewing applicants for the job, this description
must be considered evidence of the essential functions of the job.
`Qualified individual with a disability' does not include an employee or
applicant who is currently engaging in the illegal use of drugs when the
covered entity acts on the basis of the use.
(T) `Reasonable accommodation' may include:
(1) making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and
(2) job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of qualified
readers or interpreters, and other similar accommodations for individuals
with disabilities.
(U) `Undue hardship' means an action requiring significant difficulty
or expense, when considered in light of the following factors:
(1) the nature and cost of the accommodation needed under this
chapter;
(2) the overall financial resources of the facility 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;
(3) 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, the number, type, and location of its facilities; and
(4) the type of operation of the covered entity, including the
composition, structure, and functions of the workforce of the entity, the
geographic separateness and the administrative or fiscal relationship of
the facility in question to the covered entity."
Prohibited discrimination to include disability
SECTION 4. Section 1-13-70(f) of the 1976 Code is amended to
read:
"(f) To create or recognize advisory agencies and conciliation
councils, local, regional, or statewide, as will aid in effectuating the
purposes of this chapter and of Section 3 of Article I of the Constitution
of this State. The commission may empower these agencies and councils
to study problems of discrimination in all or specific fields of human
affairs or in specific instances of discrimination because of race, religion,
color, sex, age, national origin, or disability and to foster through
community effort, or otherwise, goodwill, cooperation, and conciliation
among the groups and elements of the population of the State. These
agencies and councils also may make recommendations to the
commission for the development of policies and procedures in general
and in specific instances and for programs of formal or informal
education which the commission may in turn recommend to the
appropriate state agency. These advisory agencies and conciliation
councils, as far as practicable, must be composed of representative
citizens."
Prohibited discrimination to include disability
SECTION 5. Section 1-13-80 of the 1976 Code, as last amended by Act
663 of 1988, is further amended to read:
"Section 1-13-80. (A) It is an unlawful employment practice for
an employer:
(1) to fail or refuse to hire, bar, discharge from employment or
otherwise discriminate against an individual with respect to the
individual's compensation or terms, conditions, or privileges of
employment because of the individual's race, religion, color, sex, age,
national origin, or disability;
(2) to limit, segregate, or classify employees or applicants for
employment in a way which would deprive or tend to deprive an
individual of employment opportunities, or otherwise adversely affect the
individual's status as an employee, because of the individual's race,
color, religion, sex, age, national origin, or disability;
(3) to reduce the wage rate of an employee in order to comply with
the provisions of this chapter relating to age.
(B) It is an unlawful employment practice for an employment agency
to fail or refuse to refer for employment or otherwise to discriminate
against an individual because of the individual's race, color, religion, sex,
age, national origin, or disability, or to classify or refer for employment
an individual on the basis of the individual's race, color, religion, sex,
age, national origin, or disability.
(C) It is an unlawful employment practice for a labor
organization:
(1) to exclude or to expel from its membership or otherwise to
discriminate against an individual because of the individual's race, color,
religion, sex, age, national origin, or disability;
(2) to limit, segregate, or classify its membership or applicants for
membership or to classify or fail or refuse to refer for employment an
individual in a way which would deprive or tend to deprive an individual
of employment opportunities or would limit employment opportunities or
otherwise adversely affect the individual's status as an employee or as an
applicant for employment because of the individual's race, color,
religion, sex, age, national origin, or disability;
(3) to cause or attempt to cause an employer to discriminate against
an individual in violation of this section.
(D) It is an unlawful employment practice for a covered entity:
(1) to exclude or otherwise deny equal jobs or benefits to a qualified
individual because of a known disability of an individual with whom the
qualified individual is known to have a relationship or association;
(2) to fail or make 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 hardship on
the operations of the business of the covered entity; or to deny
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;
(3) to use 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;
(4) to fail 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 the
skills are the factors that the test purports to measure.
(E) It is an unlawful employment practice for an employer, labor
organization, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job
training programs, to discriminate against an individual because of the
individual's race, color, religion, sex, national origin, or disability in
admission to or employment in a program established to provide
apprenticeship or other training.
(F) It is an unlawful employment practice for an employer to
discriminate against an employee or applicant for employment, for an
employment agency, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job
training programs, to discriminate against an individual or for a labor
organization to discriminate against a member or applicant for
membership because the individual has opposed a practice made an
unlawful employment practice by this chapter or because the individual
has made a charge, testified, assisted, or participated in an investigation,
proceeding, or hearing under this chapter.
(G) It is an unlawful employment practice for an employer, labor
organization, employment agency, or joint labor-management committee
controlling apprenticeship or other training or retraining, including
on-the-job training programs, to print or publish or cause to be printed or
published a notice or advertisement relating to employment by the
employer or membership in or a classification or referral for employment
by the labor organization or relating to a classification or referral for
employment by the employment agency or relating to admission to or
employment in a program established to provide apprenticeship or other
training by the joint labor-management committee indicating a
preference, limitation, specification, or discrimination based on race,
color, religion, sex, national origin, or disability, except that the notice or
advertisement may indicate a preference, limitation, specification, or
discrimination based on religion, sex, or national origin when religion,
sex, or national origin is a bona fide occupational qualification for
employment.
(H) It is unlawful for an employer, labor organization, or employment
agency to print or publish or cause to be printed or published a notice or
advertisement relating to employment by the employer or membership in
or a classification or referral for employment by the labor organization or
relating to a classification or referral for employment by the employment
agency indicating a preference, limitation, specification, or discrimination
based on age.
(I) 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 an individual, for a labor organization to classify its
membership or to classify or refer for employment an individual, or for
an employer, labor organization, or joint labor-management committee
controlling apprenticeship or other training or retraining programs to
admit or employ an individual in a program on the basis of the
individual's 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 a party subject to
the provisions of this section to compile or assemble 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 another law not inconsistent with this chapter.
(3) It is not an unlawful employment practice for an employer to
apply different standards of compensation or 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 if the
differences are not the result of an intention to discriminate because of
race, religion, color, sex, national origin, or disability; nor is it an
unlawful employment practice for an employer to give and to act upon
the results of a professionally developed ability test if the test, its
administration, or action upon the results is not designed, intended, or
used to discriminate because of race, color, religion, sex, national origin,
or disability. It is not an unlawful employment practice under this chapter
for an employer to differentiate upon the basis of sex in determining the
amount of wages or compensation paid or to be paid to employees of the
employer if the differentiation is authorized by 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 a business or
enterprise on or near an Indian reservation with respect to a publicly
announced employment practice of the business or enterprise under which
a preferential treatment is given to an individual because the individual 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 the 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
an employer, employment agency, labor organization, or joint
labor-management committee subject to this chapter to grant preferential
treatment to an individual or to a group because of race, color, religion,
sex, national origin, or disability of the individual or group on account of
an imbalance which may exist with respect to the total number or
percentage of persons of a race, color, religion, sex, national origin, or
disability employed by an employer, referred or classified for
employment by an employment agency or labor organization admitted to
membership or classified by a labor organization, or admitted to, or
employed in, an apprenticeship or other training program in comparison
with the total number or percentage of persons of the race, color,
religion, sex, national origin, or disability in a community, state, section,
or other area or in the available work force in a community, state,
section, or other area.
(7) It is not unlawful for an employer, employment agency, or labor
organization:
(i) to take an 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 a 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 employee benefit plan may excuse the failure to hire an
individual.
Notwithstanding the provisions of subitem (ii), no seniority system or
employee benefit plan may require or permit the involuntary retirement
of an individual covered by the provisions of this chapter relating to age
because of the age of the individual; however, 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 the agreement
or on January 1, 1990, whichever occurs first.
(8) Nothing in this chapter may be construed to prohibit compulsory
retirement of an 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 policymaking position, if the employee
is entitled to an immediate nonforfeitable annual retirement benefit from
a pension, profit sharing, savings, or deferred compensation plan or a
combination of these plans of the employer of the employee which equals
in aggregate at least forty-four thousand dollars.
(9) In applying subsection (I)(8), the retirement benefit test, if a
retirement benefit is in a form other than a straight life annuity with no
ancillary benefits or if employees contribute to a plan or make rollover
contributions, the 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 an
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. This item is
effective until December 31, 1993.
(11) It is an unlawful employment practice for a 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 an 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;
(ii) pursuant to a bona fide hiring or retirement plan that is not a
subterfuge to evade the purposes of this chapter.
This item is effective until December 31, 1993.
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.
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, `detention' includes the duties of employees assigned to guard
individuals incarcerated in a penal institution.
Nothing contained in items (8), (10), and (12) may override Sections
9-1-1530 and 9-1-1537."
Prohibited discrimination to include disability
SECTION 6. Section 1-13-90(e) of the 1976 Code is amended to
read:
"(e) For complaints of the existence or occurrence of a practice
asserted to be discriminatory on the basis of race, religion, color, age,
sex, national origin, or disability, other than those discriminatory
practices declared unlawful by Section 1-13-80, or of any other dispute
regarding human affairs, the procedure of the commission is as
follows:
The commissioner shall assign one or more of the commission's
employees or agents who may resolve the complaint by conference,
conciliation, and persuasion with the complainant and the respondent, the
resolution to be embodied in a conciliation agreement which shall include
such provisions as are agreed upon by the complainant and the
respondent. If the employee or agent is unable after reasonable efforts to
resolve the complaint, the employee or agent shall withdraw from the
matter and not participate further and the commission file of the
complaint must be closed. If the complainant and the respondent
thereafter resolve the complaint and submit a record of the resolution to
the commission, the record must be entered into the commission file of
the complaint."
Application of chapter
SECTION 7. Section 1-13-100 of the 1976 Code is amended to read:
"Section 1-13-100. Nothing in this chapter may be construed to
create a cause of action other than those specifically described in Section
1-13-90 of this chapter. Nothing in this chapter may be construed to
create a cause of action against a person not covered by Title VII of the
Civil Rights Act of 1964, as amended, 42 U. S. C. Section 2000e et seq.,
if the cause of action arises from discrimination on the basis of race,
color, religion, sex, or national origin. Nothing in this chapter may be
construed to create a cause of action against a person not covered by the
Age Discrimination in Employment Act of 1967, as amended, 29 U. S.
C. Section 621 et seq., if the cause of action arises from discrimination
on the basis of age. Nothing in this chapter may be construed to create a
cause of action against a person not covered by the Americans with
Disabilities Act of 1990, as amended, Public Law 101-336."
Employment right deleted
SECTION 8. Section 43-33-520 of the 1976 Code is amended to
read:
"Section 43-33-520. The opportunity to obtain housing, full and
equal use of public accommodations, public services, and to make use of
educational facilities without discrimination because of a handicap is
guaranteed by this article and is a civil right."
Discrimination concerning employment deleted
SECTION 9. 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 respect to public accommodations, public
services, or housing without reasonable justification. No protection or
right of access provided by law for handicapped persons is reduced or
eliminated by the provisions of this section."
Employment provision deleted
SECTION 10. Section 43-33-560 of the 1976 Code is amended to
read:
"Section 43-33-560. Notwithstanding Section 2-7-35, `handicap'
and `handicapped' 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. This does not include an individual
who is an alcohol, drug, narcotic, or other substance abuser or who is
only regarded as being handicapped. The term `mental impairment' does
not include mental illness."
Employment provisions deleted
SECTION 11. Section 43-33-570 of the 1976 Code is amended to
read:
"Section 43-33-570. For purposes of this article, `reasonable
justification' in the context of housing and public services must be
determined in light of the following factors, among others: (1) safety; (2)
efficiency; and (3) cost."
Repeal
SECTION 12. Sections 43-33-550 and 43-33-580 of the 1976 Code are
repealed.
Distribution system for telecommunications devices for deaf, hearing,
and speech impaired persons
SECTION 13. Article 21, Chapter 9, Title 58 of the 1976 Code is
amended by adding:
"Section 58-9-2550. The commission may establish a
distribution system for TTY and other related telecommunications
devices. In establishing this program, the commission may:
(1) select an administrator through the State Budget and Control
Board procurement process to purchase, store, distribute, and maintain
telecommunications devices for persons qualified to receive such
equipment. In addition, the administrator must be responsible for
providing user training and assistance.
(2) establish qualifications for eligibility for individuals to receive
TTY's and other related telecommunications devices under a distribution
system of TTY's and other related telecommunications devices.
Qualifications shall include certifications as hearing impaired, speech
impaired, or dual sensory impaired."
Definitions
SECTION 14. A. Section 58-9-2510 of the 1976 Code, as added by
Act 488 of 1990, is amended by adding:
"(3.5) `Dual sensory impaired person' means an individual who
is deaf/blind or has both a permanent hearing impairment and a
permanent visual impairment."
B. Section 58-9-2510(8) of the 1976 Code, as added by Act 488 of
1990, is amended to read:
"(8) `Telecommunications device' or `telecommunications
device for the deaf, hearing, or speech impaired' or `TDD' or `TTY'
means a keyboard mechanism attached to or in place of a standard
telephone by some coupling device used to transmit or receive signals
through telephone lines."
Program contents
SECTION 15. Section 58-9-2520(B) of the 1976 Code, as added by Act
488 of 1990, is amended to read:
"(B) The program may include, but is not limited to:
(1) a statewide dual party relay service;
(2) selection of a service provider to provide a statewide relay
system to handle all intrastate TDD calls;
(3) a distribution system of TTY's and other related
telecommunications devices; and
(4) prescribing or promulgating procedures, regulations, guidelines,
and criteria to establish, implement, administer, regulate, and promote all
aspects of the dual party relay service and the distribution of TTY and
other related telecommunications devices, and the establishment of a
funding mechanism to cover all associated costs of these services and this
article where not prohibited by law."
Charges to cover distribution system for telecommunications devices
for deaf, hearing, and speech impaired persons
SECTION 16. Section 58-9-2530(A) of the 1976 Code, as added by Act
488 of 1990, is amended to read:
"(A) The commission may require all local exchange telephone
companies operating in this State to impose a monthly charge not to
exceed twenty-five cents on all residential and business local exchange
access facilities as necessary to fund the establishment and operation of a
dual party relay system and a distribution system of TTY's and other
related telecommunications devices in this State. The amount of the
charge must be determined by the commission based upon the amount of
funding necessary to accomplish the purposes of this article and provide
dual party telephone relay services on a continuous basis. If assessed, the
local exchange companies shall collect the charge from their customers
and transfer the monies collected to the operating fund. The charge
collected and remitted by the local exchange companies is not subject to
any tax, fee, or assessment, nor may it be considered revenue of the local
exchange companies. The commission may provide for the funding of
the dual party relay system through contributions from other sources.
The fund must be established, invested, and managed for the exclusive
purpose of implementing the provisions of this article according to
regulations promulgated by the commission."
South Carolina Educational Television Commission
reauthorized
SECTION 17. In accordance with Section 1-20-60 of the 1976 Code,
the existence of the South Carolina Educational Television Commission
is reauthorized until July 1, 2003.
Time effective
SECTION 18. This act takes effect upon approval by the Governor.
Approved the 18th day of June, 1996. |