GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1999
SESSION LAW 1999-160
The General Assembly of North Carolina enacts:
Section 1. Chapter 168A of the General Statutes reads as rewritten:
"Chapter 168A.
"Handicapped Persons
With Disabilities Protection Act.
"§ 168A-1. Title.
This Chapter may be cited as the North Carolina Handicapped
Persons With Disabilities Protection Act.
"§ 168A-2. Statement of purpose.
(a) The purpose of this
Chapter is to encourage and enable all handicapped people persons
with disabilities to participate fully to the maximum extent of their
abilities in the social and economic life of the State, to engage in
remunerative employment, to use available public accommodations and public
services, and to otherwise pursue their rights and privileges as inhabitants of
this State.
(b) The General Assembly
finds that: the practice of discrimination based upon a handicapping disabling
condition is contrary to the public interest and to the principles of
freedom and equality of opportunity; the practice of discrimination on the
basis of a handicapping disabling condition threatens the rights
and proper privileges of the inhabitants of this State; and such discrimination
results in a failure to realize the productive capacity of individuals to their
fullest extent.
"§ 168A-3. Definitions.
As used in this Chapter, unless the context otherwise requires,
the term: requires:
(1) "Discriminatory practice" means any practice prohibited by this Chapter.
(2) "Employer" means any person employing 15 or more full-time employees within the State, but excluding a person whose only employees are hired to work as domestic or farm workers at that person's home or farm.
(3) "Employment agency" means a person regularly undertaking with or without compensation to procure for employees opportunities to work for an employer and includes an agent of such a person.
(4) "Handicapped
person" "Person with a disability" means any person
who (i) has a physical or mental impairment which substantially limits one or
more major life activities; (ii) has a record of such an impairment; or (iii)
is regarded as having such an impairment. As used in this subdivision, the
term:
a. "Physical or mental impairment" means (i) any physiological disorder or abnormal condition, cosmetic disfigurement, or anatomical loss, caused by bodily injury, birth defect or illness, affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (ii) any mental disorder, such as mental retardation, organic brain syndrome, mental illness, specific learning disabilities, and other developmental disabilities, but (iii) excludes (A) sexual preferences; (B) active alcoholism or drug addiction or abuse; and (C) any disorder, condition or disfigurement which is temporary in nature leaving no residual impairment.
b. "Major
life activities" means functions such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, and learning. learning,
and working.
c. "Has a record of such an impairment" means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits major life activities.
d. "Is regarded as having an impairment" means (i) has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation; (ii) has a physical or mental impairment that substantially limits major life activities because of the attitudes of others; or (iii) has none of the impairments defined in paragraph a. of this subdivision but is treated as having such an impairment.
(5) "Handicapping "Disabling
condition" means any condition or characteristic that renders a person
a handicapped person. person with a disability.
(6) "Labor organization" means an organization of any kind, an agency or employee representation committee, a group association, or a plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment.
(7) "Person" includes any individual, partnership, association, corporation, labor organization, legal representative, trustee, receiver, and the State and its departments, agencies, and political subdivisions.
(8) "Place of public accommodations" includes, but is not limited to, any place, facility, store, other establishment, hotel, or motel, which supplies goods or services on the premises to the public or which solicits or accepts the patronage or trade of any person.
(9) "Qualified handicapped
person" person with a disability" means:
a. With regard
to employment, a handicapped person with a disability who can
satisfactorily perform the duties of the job in question, with or without
reasonable accommodation, (i) provided that the handicapped person with
a disability shall not be held to standards of performance different from
other employees similarly employed, and (ii) further provided that the handicapping
disabling condition does not create an unreasonable risk to the
safety or health of the handicapped person, person with a disability,
other employees, the employer's customers, or the public;
b. With regard
to places of public accommodation a handicapped person with a
disability who can benefit from the goods or services provided by the place
of public accommodation; and
c. With regard
to public services and public transportation a handicapped person with
a disability who meets prerequisites for participation that are uniformly
applied to all participants, such as income or residence, and that do not have
the effect of discriminating against the handicapped. persons with a
disability.
(10) "Reasonable accommodations" means:
a. With regard
to employment, making reasonable physical changes in the workplace, including,
but not limited to, making facilities accessible, modifying equipment and
providing mechanical aids to assist in operating equipment, or making
reasonable changes in the duties of the job in question that would accommodate
the known handicapping disabling conditions of the handicapped
person with a disability seeking the job in question by enabling him
or her to satisfactorily perform the duties of that job; provided that
"reasonable accommodation" does not require that an employer:
1. Hire one or
more employees, other than the handicapped person, person with a
disability, for the purpose, in whole or in part, of enabling the handicapped
person with a disability to be employed; or
2. Reassign
duties of the job in question to other employees without assigning to the handicapped
employee with a disability duties that would compensate for those
reassigned; or
3. Reassign duties of the job in question to one or more other employees where such reassignment would increase the skill, effort or responsibility required of such other employee or employees from that required prior to the change in duties; or
4. Alter, modify, change or deviate from bona fide seniority policies or practices; or
5. Provide accommodations of a personal nature, including, but not limited to, eyeglasses, hearing aids, or prostheses, except under the same terms and conditions as such items are provided to the employer's employees generally; or
6. Make
physical changes to accommodate a handicapped person with a
disability where:
I. For a new employee the cost of such changes would exceed five percent (5%) of the annual salary or annualized hourly wage for the job in question; or
II. For an existing employee the cost of the changes would bring the total cost of physical beginning of the employee's employment with the employer to greater than five percent (5%) of the employee's current salary or current annualized hourly wage; or
7. Make any changes that would impose on the employer an undue hardship, provided that the costs of less than five percent (5%) of an employee's salary or annualized wage as determined in subsection (6) above shall be presumed not to be an undue hardship.
b. With regard
to a place of public accommodations, making reasonable efforts to accommodate
the handicapping disabling conditions of a handicapped person,
person with a disability, including, but not limited to, making
facilities accessible to and usable by handicapped persons, persons
with a disability, redesigning equipment, provide mechanical aids or other
assistance, or using alternative accessible locations, provided that reasonable
accommodations does not require efforts which would impose an undue hardship on
the entity involved.
"§ 168A-4. Reasonable accommodation duties.
(a) A qualified handicapped
person with a disability requesting a reasonable accommodation
must apprise the employer, employment agency, labor organization, or place of
public accommodation of his or her handicapping disabling condition,
submit any necessary medical documentation, make suggestions for such possible
accommodations as are known to such handicapped person, person with a
disability, and cooperate in any ensuing discussion and evaluation aimed at
determining possible or feasible accommodations.
(b) Once a qualified handicapped
person with a disability has requested an accommodation, or if a
potential accommodation is obvious in the circumstances, an employer,
employment agency, labor organization or place of public accommodation shall
investigate whether there are reasonable accommodations that can be made and
make reasonable accommodations as defined in G.S. 168A-3(10).
"§ 168A-5. Discrimination in employment; exemptions.
(a) Discriminatory practices. - It is a discriminatory practice for:
(1) An employer to fail to
hire or consider for employment or promotion, to discharge, or otherwise to
discriminate against a qualified handicapped person with a disability
on the basis of a handicapping disabling condition with
respect to compensation or the terms, conditions, or privileges of employment;
(2) An employment agency
to fail or refuse to refer for employment, or otherwise to discriminate against
a qualified handicapped person with a disability on the basis of
a handicapping disabling condition;
(3) A person controlling
an apprenticeship, on-the-job, or other training or retraining program,
to discriminate against a qualified handicapped person with a
disability on the basis of a handicapping disabling condition
in admission to, or employment in, a program established to provide
apprenticeship or other training; or
(4) An employer or
employment agency to require an applicant to identify himself as handicapped
a person with a disability prior to a conditional offer of
employment; however, any employer may invite an applicant to identify himself
as handicapped a person with a disability in order to act
affirmatively on his behalf. behalf; or
(5) An employer, labor organization, or employment agency to fail to meet the duties imposed on them by G.S. 168A-4(b).
(b) Exemptions. - It is not a discriminatory action for an employer, employment agency, or labor organization:
(1) To make an employment decision on the basis of State and federal laws or regulations imposing physical, health, mental or psychological job requirements;
(2) To fail to hire,
transfer or promote, or to discharge a handicapped person with a
disability who has a history of drug abuse or who is unlawfully using drugs
where the job in question is in an establishment that manufactures,
distributes, dispenses, conducts research, stores, sells or otherwise handles
controlled substances regulated by the North Carolina Controlled Substances
Act, G.S. 90-86 et seq.;
(3) To fail to hire,
transfer, or promote, or to discharge a handicapped person with a
disability because the person has a communicable disease which would
disqualify a non-handicapped person without a disability from
similar employment;
(4) To fail to make
reasonable accommodations where the handicapped person with a
disability has not fulfilled the duties imposed by G.S. 168A-4;
(5) To inquire whether a person has the ability to perform the duties of the job in question;
(6) To require or request
a person to undergo a medical examination, which may include a medical history,
for the purpose of determining the person's ability or capacity to safely and
satisfactorily perform the duties of available jobs for which the person is
otherwise qualified, or to aid in determining possible accommodations for a handicapping
disabling condition, provided (i) that an offer of employment has
been made on the condition that the person meets the physical and mental
requirements of the job with or without reasonable accommodation; and (ii) that
the examination, unless limited to determining the extent to which a person's handicapping
disabling condition would interfere with his or her ability or
capacity to safely and satisfactorily perform the duties of the the job in
question or the possible accommodations for a handicapping disabling condition,
is required of all persons conditionally offered employment for the same
position regardless of handicapping disabling condition;
(7) To obtain medical information or to require or request a medical examination where such information or examination is for the purpose of establishing an employee health record;
(8) To administer
pre-employment tests, provided that the tests (i) measure only job-related
abilities, (ii) are required of all applicants for the same position unless
such tests are limited to determining the extent to which the person's handicapping
disabling condition would interfere with his or her ability to
safely and satisfactorily perform the duties of the job in question or the
possible accommodations for the job in question, and (iii) accurately measure
the applicant's aptitude, achievement level, or whatever factors they purport
to measure rather than reflecting the handicapped person's impaired
sensory, manual or speaking skills of a person with a disability except
when those skills are requirements of the job in question, provided that an
employer shall not be liable for improper testing which was administered by a
State agency acting as an employment agency.
"§ 168A-6. Discrimination in public accommodations.
It is a discriminatory practice for a person to deny a
qualified handicapped person with a disability the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and
accommodations of a place of public accommodation on the basis of a handicapping
disabling condition. In the area of structural modifications, this
section may be satisfied by compliance with the North Carolina Building Code.
"§ 168A-7. Discrimination in public service.
It is a discriminatory practice for a State department,
institution, or agency, or any political subdivision of the State or any person
that contracts with the above for the delivery of public services including but
not limited to education, health, social services, recreation, and
rehabilitation, to refuse to provide reasonable aids and adaptations necessary
for a known qualified handicapped person with a disability to use
or benefit from existing public services operated by such entity; provided that
the aids and adaptations do not impose an undue hardship on the entity
involved.
"§ 168A-8. Discrimination in public transportation.
It is a discriminatory practice for any transportation system
providing transportation to the general public to fail to ensure access to and
the benefits of public transportation to a qualified handicapped person; person
with a disability; however, public transportation systems may use
alternative methods to provide transportation for handicapped persons, persons
with a disability, as long as handicapped persons with a
disability are offered transportation that, in relation to the
transportation offered to other persons, is:
(1) In a similar geographic area of operation;
(2) For fares not greater in price;
(3) With similar or no restrictions as to trip purpose;
(4) With reasonable response time; and
(5) With similar hours of operations.
Nothing in this section shall apply to privately owned, local transit or transportation systems existing on October 1, 1985, or to interstate air carriers complying with federal regulations promulgated by the Civil Aeronautics Board and administered by the United States Department of Transportation.
"§ 168A-9. Affirmative defenses.
Any employer may assert affirmative defenses in any action brought under this Chapter. This section shall not create any inference that an employment action which is not listed as an affirmative defense is therefore, by implication, a discriminatory practice, so long as the employment action is not otherwise prohibited by this Chapter. The following is a non-exclusive list of affirmative defenses:
(1) The qualified
handicapped person's failure of the qualified person with a disability to
comply with or meet the employer's work rules and policies or performance
standards, provided that such person is not held to rules or standards
different from other non-handicapped employees without a disability similarly
employed;
(2) The qualified
handicapped person's excessive, willful or habitual tardiness or absence,
absence of a qualified person with a disability, provided that the
standard used by the employer in determining whether such tardiness or absence
is excessive is the same as that applied by the employer to non-handicapped employees
without a disability similarly employed; or
(3) A bona fide seniority or merit system, or a system which measures earnings by quantity or quality of work or production, or differences in location of employment.
"§ 168A-10. Retaliation prohibited.
No employer shall discharge, expel, refuse to hire, or otherwise discriminate against any person or applicant for employment, nor shall any employment agency discriminate against any person, nor shall a labor organization discriminate against any member or applicant for membership because such person has opposed any practice made a discriminatory practice by this Chapter or because he has testified, assisted or participated in any manner in proceedings under this Chapter.
"§ 168A-11. Civil action.
(a) A handicapped person
with a disability aggrieved by a discriminatory practice prohibited by
G.S. 168A-5 through 168A-8, or a person aggrieved by conduct prohibited by G.S.
168A-10, may bring a civil action to enforce rights granted or protected by
this Chapter against any person described in G.S. 168A-5 through 168A-8 or in
G.S. 168A-10 who is alleged to have committed such practices or engaged in such
conduct. The action shall be commenced in superior court in the county where
the alleged discriminatory practice or prohibited conduct occurred or where the
plaintiff or defendant resides. Such action shall be tried to the court without
a jury.
(b) Any relief granted by the court shall be limited to declaratory and injunctive relief, including orders to hire or reinstate an aggrieved person or admit such person to a labor organization. In a civil action brought to enforce provisions of this Chapter relating to employment, the court may award back pay. Any such back pay liability shall not accrue from a date more than two years prior to the filing of an action under this Chapter. Interim earnings or amounts earnable with reasonable diligence by the aggrieved person shall operate to reduce the back pay otherwise allowable.
(c) No court shall have
jurisdiction over an action filed under this Chapter where the plaintiff has
commenced federal judicial or administrative proceedings under Section 503 or
Section 504 of the Vocational Rehabilitation Act of 1973, 29 U.S.C. §§ 793 and
794, as amended, or federal regulations promulgated thereunder, under
those sections; or under the Americans with Disabilities Act of 1990, 42 U.S.C.
§ 12101, et seq., as amended, or federal regulations promulgated under that
Act, involving or arising out of the facts and circumstances involved in
the alleged discriminatory practice under this Chapter. If such proceedings are
commenced after a civil action has been commenced under this Chapter, the State
court's jurisdiction over the civil action shall end and the action shall be
forthwith dismissed.
(d) In any civil action brought under this Chapter, the court, in its discretion, may award reasonable attorney's fees to the substantially prevailing party as part of costs.
"§ 168A-12. Statute of limitations.
A civil action regarding employment discrimination brought pursuant to this Chapter shall be commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct. A civil action brought pursuant to this Chapter regarding any other complaint of discrimination shall be commenced within two years after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct."
Section 2. This act becomes effective October 1, 1999, and applies to actions filed on or after that date.
In the General Assembly read three times and ratified this the 31st day of May, 1999.
s/ Marc Basnight
President Pro Tempore of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ James B. Hunt, Jr.
Governor
Approved 5:25 p.m. this 8th day of June, 1999