South Carolina General Assembly
111th Session, 1995-1996

Bill 893


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                       893
Type of Legislation:               General Bill GB
Introducing Body:                  Senate
Introduced Date:                   19950531
Primary Sponsor:                   Lander 
All Sponsors:                      Lander and Matthews 
Drafted Document Number:           br1\18494ac.95
Residing Body:                     Senate
Current Committee:                 Judiciary Committee 11 SJ
Subject:                           Discrimination in employment,
                                   provisions



History


Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

Senate  19950531  Introduced, read first time,             11 SJ
                  referred to Committee

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

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, 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; 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.

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

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."

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 hereby declares the practice of discrimination against any an individual because of race, religion, color, sex, age, or national origin, or disability as a matter of state concern and declares that such this discrimination is unlawful and in conflict with the ideals of South Carolina and the nation, as such this discrimination interferes with opportunities of the individual to receive employment and to develop according to his the individual's own ability and is degrading to human dignity. The General Assembly further declares that to alleviate such these problems a state agency is created which shall seek to eliminate and prevent discrimination because of race, religion, color, sex, age, or national origin, or disability as is hereinafter provided."

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 faci lities; 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."

SECTION 4. Section 1-13-70(f) of the 1976 Code is amended to read:

"(f) To create or recognize such 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 such 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, or 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. Such These agencies and councils also may also 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. Such These advisory agencies and conciliation councils shall, as far as practicable, must be composed of representative citizens."

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)(A) It shall be is an unlawful employment practice for any an employer:

(1) to fail or refuse to hire, bar, discharge from employment or otherwise discriminate against any an individual with respect to his the individual's compensation, or terms, conditions, or privileges of employment because of such the individual's race, religion, color, sex, age, or national origin, or disability;

(2) to limit, segregate, or classify his employees or applicants for employment in any a way which would deprive or tend to deprive any an individual of employment opportunities, or otherwise adversely affect his the individual's status as an employee, because of such the individual's race, color, religion, sex, age, or national origin, or disability;

(3) to reduce the wage rate of any an employee in order to comply with the provisions of this chapter relating to age.

(b)(B) It shall be is an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any an individual because of his the individual's race, color, religion, sex, age, or national origin, or disability, or to classify or refer for employment any an individual on the basis of his the individual's race, color, religion, sex, age, or national origin, or disability.

(c)(C) It shall be is an unlawful employment practice for a labor organization:

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any an individual because of his the individual's race, color, religion, sex, age, or 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 any an individual in any a way which would deprive or tend to deprive any an individual of employment opportunities or would limit such employment opportunities or otherwise adversely affect his the individual's status as an employee or as an applicant for employment because of such the individual's race, color, religion, sex, age, or 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.

(d)(E) It shall be is an unlawful employment practice for any 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 any an individual because of his the individual's race, color, religion, sex, or national origin, or disability in admission to, or employment in, any a program established to provide apprenticeship or other training.

(e)(F) It shall be is an unlawful employment practice for an employer to discriminate against any of his employees or applicants 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 any an individual, or for a labor organization to discriminate against any a member thereof or applicant for membership because he the individual has opposed any a practice made an unlawful employment practice by this chapter, or because he the individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

(f)(G) It shall be 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 any a notice or advertisement relating to employment by such an the employer or membership in, or any a classification or referral for employment by, such a the labor organization, or relating to any a classification or referral for employment by such an the employment agency, or relating to admission to, or employment in, any a program established to provide apprenticeship or other training by such a the joint labor-management committee indicating any a preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, or disability, except that such a 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.

(g)(H) It shall be is unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any a notice or advertisement relating to employment by such an the employer or membership in, or any a classification or referral for employment by, such a the labor organization, or relating to any a classification or referral for employment by such an the employment agency, indicating any a preference, limitation, specification, or discrimination based on age.

(h)(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 any an individual, for a labor organization to classify its membership or to classify or refer for employment any 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 any an individual in any such a program on the basis of his 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 any a 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 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 so long as if such the differences are not the result of an intention to discriminate because of race, religion, color, sex, or national origin, or disability; nor is it an unlawful employment practice for an employer to give and to act upon the results of any a professionally developed ability test if such the 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, or disability. It is not an unlawful employment practice under this chapter for any 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 such the 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 a business or enterprise on or near an Indian reservation with respect to any a publicly announced employment practice of such the business or enterprise under which a preferential treatment is given to any an individual because he 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 such 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 any an employer, employment agency, labor organization, or joint labor-management committee subject to this chapter to grant preferential treatment to any an individual or to any a group because of race, color, religion, sex, or 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 any a race, color, religion, sex, or national origin, or disability employed by any an employer, referred or classified for employment by any an employment agency or labor organization, admitted to membership or classified by any a labor organization, or admitted to, or employed in, any an apprenticeship or other training program, in comparison with the total number or percentage of persons of such the race, color, religion, sex, or national origin, or disability in any a community, state, section, or other area, or in the available work force in any a community, state, section, or other area.

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

(i) to take any 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 any 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 such employee benefit plan may excuse the failure to hire any an individual.

Notwithstanding the provisions of subitem (ii), no seniority system or employee benefit plan may require or permit the involuntary retirement of any an 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 the agreement or on January 1, 1990, whichever occurs first.

(8) Nothing in this chapter may be construed to prohibit compulsory retirement of any 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 any a combination of such these 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)(I)(8), the retirement benefit test, if any such a retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such a plan or make rollover contributions, such 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 any 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. The provisions of this This item are is effective until December 31, 1993.

(11) It is an unlawful employment practice for any 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 any 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.

The provisions of this This item are is 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 a 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."

SECTION 6. Section 1-13-90(e) of the 1976 Code is amended to read:

"(e) For complaints of the existence or occurrence of any a practice asserted to be discriminatory on the basis of race, religion, color, age, sex or, 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 shall be 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, such the resolution to be embodied in a conciliation agreement, which shall include such provisions as are agreed upon by the complainant and the respondent. In the event If the employee or agent so assigned is unable after reasonable efforts to resolve the complaint, he the employee or agent shall withdraw from the matter and not participate further therein and the commission file of the complaint shall must be closed. If the complainant and the respondent thereafter resolve the complaint and submit a record of such the resolution to the commission, such the record shall must be entered into the commission file of the complaint."

SECTION 7. Section 1-13-100 of the 1976 Code is amended to read:

"Section 1-13-100. Nothing in this chapter shall may be construed to create any a cause of action other than those specifically described in Section 1-13-90 of this chapter. Nothing in this chapter shall may be construed to create any 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 shall may be construed to create any 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."

SECTION 8. 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 is guaranteed by this article and is a civil right."

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 employment, public accommodations, public services, or housing without reasonable justification. No protection or right of access provided by law for handicapped persons are reduced or eliminated by the provisions of this section."

SECTION 10. Section 43-33-560 of the 1976 Code is amended to read:

"Section 43-33-560. Notwithstanding the provisions of Section 2-7-35 of the 1976 Code, the terms `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, 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 an individual who is an alcohol, drug, narcotic, or other substance abuser, or who is only regarded as being handicapped. The term `mental impairment' shall does not include mental illness."

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' means, in the context of employment, that the handicapped person's mental and physical limitation interferes with the performance of the work involved. Reasonable justification in the context of employment, housing, and public services shall must be determined in light of the following factors, among others: (1) safety; (2) efficiency; and (3) cost. An employer's determination that reasonable justification exists will be given substantial deference unless the determination is made to circumvent the purpose of this article."

SECTION 12. Sections 43-33-550 and 43-33-580 of the 1976 Code are repealed.

SECTION 13. This act takes effect upon approval by the Governor.

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