A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "UNIFORM ANTIDISCRIMINATION ACT" BY ADDING SECTION 31-21-65 SO AS TO PROHIBIT DISCRIMINATION IN HOUSING ON THE BASIS OF RACE, COLOR, OR NATIONAL ORIGIN, AND TO DEFINE A NECESSARY TERM; BY ADDING SECTION 45-9-11 SO AS TO PROHIBIT DISCRIMINATION IN PUBLIC ACCOMMODATIONS ON THE BASIS OF RACE, COLOR, OR NATIONAL ORIGIN, AND TO DEFINE A NECESSARY TERM; BY ADDING SECTION 59-63-41 SO AS TO PROHIBIT DISCRIMINATION IN CERTAIN SCHOOL OR SCHOOL ADMINISTRATIVE MATTERS ON THE BASIS OF RACE, COLOR, OR NATIONAL ORIGIN, TO DEFINE A NECESSARY TERM, AND TO LIMIT LIABILITY OF EDUCATION ORGANIZATIONS IN CERTAIN CIRCUMSTANCES; BY AMENDING SECTION 1-13-20, RELATING TO THE POLICY OF THE STATE HUMAN AFFAIRS COMMISSION, SO AS TO EXPAND THE DEFINITION OF "DISCRIMINATION"; BY AMENDING SECTION 1-13-30, RELATING TO DEFINITIONS IN THE SOUTH CAROLINA HUMAN AFFAIRS LAW, SO AS TO CLARIFY A DEFINITION; BY AMENDING SECTION 1-13-80, RELATING TO UNLAWFUL EMPLOYMENT PRACTICES AND EXCEPTIONS UNDER THE SOUTH CAROLINA HUMAN AFFAIRS LAW, SO AS TO PROHIBIT DISCRIMINATION BY AN EMPLOYER ON THE BASIS OF AN INDIVIDUAL'S GENDER IDENTITY OR SEXUAL ORIENTATION, AND TO LIMIT THE LIABILITY OF COVERED EMPLOYERS IN CERTAIN CIRCUMSTANCES; AND BY AMENDING SECTION 1-32-60, RELATING TO APPLICABILITY AND CONSTRUCTION OF THE SOUTH CAROLINA RELIGIOUS FREEDOM ACT, SECTION 31-21-40, RELATING TO DISCRIMINATION IN RELATION TO SALE OR RENTAL OF PROPERTY UNDER THE SOUTH CAROLINA FAIR HOUSING LAW, SECTION 31-21-50, RELATING TO DISCRIMINATION IN RELATION TO MEMBERSHIP OR PARTICIPATION IN CERTAIN REALTOR SERVICES AND ORGANIZATIONS,  SECTION 31-21-60, RELATING TO DISCRIMINATION IN RELATION TO RESIDENTIAL REAL ESTATE-RELATED TRANSACTIONS, SECTION 44-69-80, RELATING TO DISCRIMINATION BY HOME HEALTH AGENCIES ON CERTAIN BASES, SECTION 44-71-90, RELATING TO DISCRIMINATION BY HOSPICES ON CERTAIN BASES, AND SECTION 45-9-10, RELATING TO THE RIGHT TO EQUAL ENJOYMENT OF AND PRIVILEGES TO PUBLIC ACCOMMODATIONS, ALL SO AS TO MAKE CONFORMING CHANGES.

 

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

 

SECTION 1.  This act may be cited as the "Uniform Antidiscrimination Act."

 

SECTION 2.  Chapter 21, Title 31 of the S.C. Code is amended by adding:

 

    Section 31-21-65.  (A) For purposes of this section, "race, color, or national origin" include characteristics associated with race, color, and national origin including, but not limited to, skin color, facial features, hair texture, and natural hairstyles.

    (B) For purposes of applying the provisions of this chapter, it is unlawful and against public policy of this State to discriminate in matters involving housing on the basis of race, color, or national origin as defined in subsection (A).

 

SECTION 3.  Article 1, Chapter 9, Title 45 of the S.C. Code is amended by adding:

 

    Section 45-9-11. (A) For purposes of this section, "race, color, or national origin" includes characteristics associated with race, color, and national origin including, but not limited to, skin color, facial features, hair texture, and natural hairstyles.

    (B)  For purposes of applying the provisions of this chapter, it is unlawful and against public policy of this State to discriminate in matters involving public accommodations on the basis of race, color, or national origin as defined in subsection (A).

 

SECTION 4.  Article 1, Chapter 63, Title 59 of the S.C. Code is amended by adding:

 

    Section 59-63-41.  (A) For purposes this section, "race, color, or national origin" includes characteristics associated with race, color, and national origin, including, but not limited to, skin color, facial features, hair texture, and natural hairstyles.

    (B) In school or school administrative matters, based on a provision of law, policy, rule, or guideline applicable to the institution, it is unlawful and against the public policy of this State to discriminate on the basis of race, color, or national origin as defined in subsection (A) when applying a provision, policy, rule, or guideline.

    (C) An educational organization may not be held liable for unlawful race, color, or national origin discrimination where the organization demonstrates that the reasonable regulation of an impermissible characteristic is necessary to the health and safety of students and that the organization engages in good faith efforts to accommodate the student.

 

SECTION 5.  Section 1-13-20 of the S.C. 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, age, national origin, or disability.

 

SECTION 6. Section 1-13-30 of the S.C. Code is amended by adding:

 

    (V) "Race, color, or national origin" includes characteristics associated with race, color, and national origin including, but not limited to, skin color, facial features, hair texture, and natural hairstyles.

 

SECTION 7.  Section 1-13-80 of the S.C. Code is 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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;

       (4)(a) to fail or refuse to make reasonable accommodations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer;

           (b) to deny employment opportunities to a job applicant or employee, if the denial is based on the need of the employer to make reasonable accommodations to the known limitations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee;

           (c) to require an applicant for employment or an employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that the applicant or employee chooses not to accept, if the applicant or employee does not have a known limitation related to pregnancy, or if the accommodation is unnecessary for the applicant or employee to perform the essential duties of her job;

           (d) to require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known limitations for medical needs arising from pregnancy, childbirth, or related medical conditions; or

           (e) to take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations for medical needs arising from pregnancy, childbirth, or related medical conditions.

    For the purposes of this item:

       (i) An employer shall provide written notice of the right to be free from discrimination for medical needs arising from pregnancy, childbirth, or related medical conditions, pursuant to this item to new employees at the commencement of employment, and existing employees within one hundred twenty days after the effective date of this item.

       (ii) The notice required by subsubitem (i) also must be conspicuously posted at an employer's place of business in an area accessible to employees.

    The commission shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies, and applicants for employment about their rights and responsibilities under this item.

    (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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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, gender identity, sexual orientation, 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)(a) 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)(b) 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)(b), 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)(a) 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)(b) 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.

       (13) It is not an unlawful employment practice for a private employer to give preference in employment to a veteran. This preference is also extended to the veteran's spouse if the veteran has a service-connected permanent and total disability. A private employer who gives a preference in employment provided by this item does not violate any other provision of this chapter by virtue of giving the preference. For purposes of this item, "veteran" has the same meaning as provided in Section 25-11-40.

       (14) A covered employer may not be held liable for unlawful race, color, or national origin discrimination where the employer demonstrates that the reasonable regulation of an impermissible characteristic is necessary to the health and safety of the employee and that the employer engages in good faith efforts to accommodate the applicant or employee.

 

SECTION 8.  Section 1-32-60 of the S.C. Code is amended by adding:

 

    (E) Nothing in this chapter may be construed to authorize a person to discriminate against an individual based on the individual's race, religion, color, sex, gender identity, sexual orientation, age, national origin, or disability.

 

SECTION 9.  Section 31-21-40 of the S.C. Code is amended to read:

 

    Section 31-21-40.  It is unlawful:

    (1) to refuse to sell or rent after the making of a bona fide offer, to refuse to negotiate for the sale or rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, religion, sex, gender identity, sexual orientation, familial status, or national origin;

    (2) to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with it, because of race, color, religion, sex, gender identity, sexual orientation, familial status, or national origin;

    (3) to make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, gender identity, sexual orientation, handicap, familial status, or national origin or an intention to make the preference, limitation, or discrimination;

    (4) to represent to any person because of race, color, religion, sex, gender identity, sexual orientation, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when the dwelling is available;

    (5) for profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, gender identity, sexual orientation, handicap, familial status, or national origin;

    (6) to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of:

       (a) that buyer or renter;

       (b) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available;  or

       (c) any person associated with that buyer or renter;

    (7) to discriminate against a person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with the dwelling, because of a handicap of:

       (a) that person;

       (b) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available;  or

       (c) any person associated with that person.

 

SECTION 10. Section 31-21-50 of the S.C. Code is amended to read:

 

    Section 31-21-50.  It is unlawful to deny any person access to, or membership or participation in, any multiple-listing service, real estate brokers' organization, or other service, organization, or facility relating to the business of selling or renting dwellings or to discriminate against him in the terms or conditions of the access, membership, or participation on account of race, color, religion, sex, gender identity, sexual orientation, handicap, familial status, or national origin.

 

SECTION 11. Section 31-21-60 of the S.C. Code is amended to read:

 

    Section 31-21-60.  (A) It is unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of the transaction, because of race, color, religion, sex, gender identity, sexual orientation, handicap, familial status, or national origin.

    (B) As used in this section, "residential real estate-related transaction" means any of the following:

       (1) the making or purchasing of loans or providing other financial assistance:

           (a) for purchasing, constructing, improving, repairing, or maintaining a dwelling;  or

           (b) secured by residential real estate;

       (2) the selling, brokering, or appraising of residential real property.

    (C) Nothing in this chapter prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, gender identity, sexual orientation, handicap, or familial status.

 

SECTION 12. Section 44-69-80 of the S.C. Code is amended to read:

 

    Section 44-69-80.  Home health agencies shall not discriminate based on age, sex, gender identity, sexual orientation, race, color, or source of payment in the recruitment, location of patient, acceptance or provision of goods and services to patients or potential patients, provided that payment offered is not less than the cost of providing services.

 

SECTION 13. Section 44-71-90 of the S.C. Code is amended to read:

 

    Section 44-71-90.  Hospices must not discriminate based on age, sex, gender identity, sexual orientation, race, color, religion, or source of payment, location of patient, acceptance or provision of goods and services to patients or potential patients.

 

SECTION 14. Section 45-9-10(A) of the S.C. Code is amended to read:

 

    (A) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in Article 1 of this chapter, without discrimination or segregation on the groundgrounds of race sex, gender identity, sexual orientation, color, religion, or national origin.

 

SECTION 15. This act takes effect upon approval by the Governor.

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