S.C. Code § 1-13-30

Current through 2024 Act No. 225.

Section 1-13-30 - Definitions

The following words and phrases used herein shall be construed as follows:

(a) "Commission" means the State Human Affairs Commission.

(b) "National origin" includes ancestry.

(c) "Age" means at least forty years.

(d) "Person" means individuals, labor unions and organizations, joint apprenticeship committees, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, other legal or commercial entities located in part or in whole in the State or doing business in the State, the State and any of its agencies and departments or local subdivisions of state agencies and departments; and municipalities, counties, special purpose districts, school districts and other local governments.

(e) "Employer" means any person who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include an Indian tribe or a bona fide private membership club other than a labor organization.

(f) "Employment agency" means any person regularly undertaking to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

(g) "Labor organization" means any agent of a labor organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or 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, and any conference, general committee, joint or system board, or joint council which is subordinate to a national or international labor organization.

(h) "Employee" means an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in this State, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy-making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of the State or any of its agencies, departments, local subdivisions, or political subdivisions of the State, local government, or local governmental agencies.

(i) "Complainant" means an individual alleging to have been aggrieved by an employment practice which is unlawful under this chapter.

(j) "Respondent" means a person against whom a charge of violation has been filed.

(k) The term "religion" means all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

(l) The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions, including, but not limited to, lactation, and women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in item (3) of subsection (h) of Section 1-13-80 must be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion. However, nothing in this subsection shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion. This subsection shall not apply to any fringe benefit fund or insurance program which was in effect on October 31, 1978, until April 30, 1979. Until after October 31, 1979 or, if there was an applicable collective bargaining agreement in effect on October 31, 1978, until the termination of that agreement, no person who, on October 31, 1978, was providing either by direct payment or by making contributions to a fringe benefit fund or insurance program, benefits in violation of the provisions of this chapter relating to sex discrimination in employment shall, in order to come into compliance with such provisions, reduce the benefits or the compensation provided any employee on October 31, 1978, either directly or by failing to provide sufficient contributions to a fringe benefit fund or insurance program, except that where the costs of such benefits on October 31, 1978 are apportioned between employers and employees, the payments or contributions required to comply with the provisions of this chapter relating to sex discrimination in employment may be made by employers and employees in the same proportion. Nothing in this section shall prevent the readjustment of benefits or compensation for reasons unrelated to compliance with the provisions of this chapter relating to sex discrimination in employment.

(n) "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 individuals with medical needs arising from pregnancy, childbirth, or related medical conditions provided the employer shall not be required to construct a permanent, dedicated space for expressing milk; however, nothing in this section exempts an employer from providing other reasonable accommodations; and

(2)

(a) for individuals with disabilities: 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; or

(b) for individuals with medical needs arising from pregnancy, childbirth, or related medical conditions providing more frequent or longer break periods; providing more frequent bathroom breaks; providing a private place, other than a bathroom stall for the purpose of expressing milk; modifying food or drink policy; providing seating or allowing the employee to sit more frequently if the job requires the employee to stand; providing assistance with manual labor and limits on lifting; temporarily transferring the employee to a less strenuous or hazardous vacant position, if qualified; providing job restructuring or light duty, if available; acquiring or modifying equipment or devices necessary for performing essential job functions; modifying work schedules; however, the employer is not required to do the following, unless the employer does or would do so for other employees or classes of employees that need a reasonable accommodation:

(i) hire new employees that the employer would not have otherwise hired;

(ii) discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job;

(iii) create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee; or

(iv) compensate an employee for more frequent or longer break periods, unless the employee uses a break period which would otherwise be compensated.

(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.

S.C. Code § 1-13-30

Amended by 2018 S.C. Acts, Act No. 244 (HB 3865),s 3, eff. 5/17/2018.

Amended by 2018 S.C. Acts, Act No. 244 (HB 3865),s 3, eff. 5/17/2018.

1996 Act No. 426, Section 3; 1988 Act No. 663, Section 1; 1979 Act No. 24, Section 2; 1973 (58) 698; 1972 (57) 2651; 1962 Code Section 1-360.23.

2018 Act No. 244, Sections 1, 2, 5, and 6 provide as follows:

"SECTION 1. This act is known and may be cited as the 'South Carolina Pregnancy Accommodations Act'.

"SECTION 2. It is the intent of the General Assembly by this act to combat pregnancy discrimination, promote public health, and ensure full and equal participation for women in the labor force by requiring employers to provide reasonable accommodations to employees for medical needs arising from pregnancy, childbirth, or related medical conditions. Current workplace laws are inadequate to protect pregnant women from being forced out or fired when they need a simple, reasonable accommodation in order to stay on the job. Many pregnant women are single mothers or the primary breadwinners for their families; if they lose their jobs then the whole family will suffer. This is not an outcome that families can afford in today's difficult economy."

"SECTION 5. The South Carolina Human Affairs Commission may promulgate regulations to carry out this act, provided the regulations do not exceed the definition of 'reasonable accommodation' requirements for employers under federal or state law. These regulations may identify some reasonable accommodations addressing medical needs arising from pregnancy, childbirth, or related medical conditions that must be provided to a job applicant or employee affected by these known limitations, unless the employer can demonstrate that doing so would impose an undue hardship.

"SECTION 6. Nothing in this act shall be construed to preempt, limit, diminish or otherwise affect any other provision of federal, state, or local law relating to discrimination based on sex or pregnancy, or to invalidate or limit the remedies, rights, and procedures of any federal, state, or local law that provides greater or equal protection for employees affected by pregnancy, childbirth, or related conditions."