GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	1 

HOUSE BILL 555

Short Title:  Fair Employment Act.	(Public)
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Sponsors: Representatives Kennedy; Barnhill, Cunningham, Holt, H. Hunter, Oldham, and Wainwright.
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Referred to:  Economic Expansion.
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April 1, 1991

A BILL TO BE ENTITLED
AN ACT TO PROHIBIT DISCRIMINATION IN EMPLOYMENT BECAUSE OF RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, OR DISABILITY.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 143 of the General Statutes is amended by adding the following new Article:
"ARTICLE 62.
"Employment Discrimination.
"§ 143-575.  Title.
This Article may be cited as the North Carolina Fair Employment Act.
"§ 143-576.  Intent.
Discrimination in employment because of race, color, religion, sex, national origin, age, or disability substantially and adversely affects the interest of employees, employers, and the public in general; deprives North Carolina of the fullest use of its citizens; and limits the State's development.  The General Assembly hereby declares that the practice of employment discrimination against people because of race, color, religion, sex, national origin, age, or disability is unlawful and in conflict with the ideals of North Carolina.  The General Assembly charges the North Carolina Human Relations Commission with the task of seeking to eliminate and prevent such discrimination.  It is the intent of the General Assembly that, as much as is practicable, the provisions of this Article should be interpreted consistently with the provisions of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 2000e, et seq.), the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. §§ 621, et seq.), and the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101, et seq.).
"§ 143-577.  Definitions.
As used in this Article, unless the context requires otherwise:
(1)	'Because of age' or 'on the basis of age' applies to persons 40 years of age or older.
(2)	'Because of sex' or 'on the basis of sex' includes, but is not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.  Women affected by pregnancy, childbirth, or related medical conditions shall 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.
(3)	'Commission' means the North Carolina Human Relations Commission.
(4)	'Compensation, terms, conditions, or privileges of employment' mean all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.
(5)	'Complainant' means a person who has filed a written, sworn complaint with the Commission pursuant to G.S. 143-580.
(6)	'Covered entity' means an employer, employment agency, labor organization, or joint labor-management committee.
(7)	'Direct threat' means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.
(8)	'Disability' means, with respect to an individual:
a.	A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
b.	A record of such an impairment; or
c.	Being regarded as having an impairment as described in a. or b. of this subdivision.
(9)	'Drug' means a controlled substance as defined by section 202 of the Controlled Substances Act (21 U.S.C. § 812).
(10)	'Employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.  Employer does not include:
a.	The State of North Carolina, any of its agencies or departments, or any of its political subdivisions;
b.	The United States or a corporation wholly owned by the government of the United States;
c.	An Indian tribe; or
d.	A bona fide private membership club (other than a labor organization) which is exempt under section 501(c) of the Internal Revenue Code of 1986.
(11)	'Employment agency' means any person regularly undertaking with or without compensation 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.
(12)	'Executive Director' means the Executive Director of the North Carolina Human Relations Commission or his designee.
(13)	'Illegal use of drugs' means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. § 812).  Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of federal law.
(14)	'Labor organization' means a labor organization and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged 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 so engaged which is subordinate to a national or international labor organization.
(15)	'Person' means any individual, association, corporation, partnership, labor union, legal representative, mutual company, joint stock company, trust, trustee in bankruptcy, unincorporated organization, other legal or commercial entity, or organized group of persons.
(16)	'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, desires, or held.  Evidence of the essential function of the employment position is:
a.	The employer's judgment as to what functions of the job are essential, and
b.	If an employer has prepared a written description before advertising or interviewing applicants for the job, this description is evidence of the essential functions of the job.
(17)	'Reasonable accommodation' means:
a.	Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
b.	Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modification of examination, training materials, or policies; providing qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
(18)	'Religion' means all aspects of religious observance and practice, as well as belief, which an employer is able to demonstrate 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.
(19)	'Respondent' means an employer, employment agency, labor organization, or joint labor-management committee against whom a complaint of an unlawful employment practice is filed.
(20)	'Undue hardship' means an action requiring significant difficulty or expense, when considered in light of the following factors:
a.	The nature and cost of the accommodation needed pursuant to this Article;
b.	The overall financial resources of the facility involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
c.	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
d.	The type of operation of the covered entity, including the composition, structure, and functions of the work force of such entity; the geographic separateness, administrative, or fiscal relationship of the facility to the covered entity.
"§ 143-578.  Unlawful employment practices.
(a)	It is unlawful for an employer:
(1)	To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, national origin, or age;
(2)	To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of the individual's race, color, religion, sex, national origin, or age; or
(3)	To reduce the wage rate of any employee in order to comply with this Article.
(b)	It is unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, national origin, or age, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, national origin, or age.
(c)	It is unlawful for a labor organization to:
(1)	Exclude or to expel from its membership, or otherwise to discriminate against, any individual because of the individual's race, color, religion, sex, national origin, or age;
(2)	Limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of the individual's race, color, religion, sex, national origin, or age; or
(3)	Cause or attempt to cause an employer to discriminate against an individual in violation of this Article.
(d)	It is unlawful for any 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 individual because of the individual's race, color, religion, sex, national origin, or age in admission to, or employment in, any program established to provide apprenticeship or other training.
(e)	It is unlawful 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 notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, or relating to admission to, or employment in, any program established to provide apprenticeship or other training by such a joint labor-management committee, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, national origin, or age, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, national origin, or age when religion, sex, national origin or age is a bona fide occupational qualification for employment.
(f)	It is unlawful for an employer to discriminate against any of his employees or applicants 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 individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this Article, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Article. It is unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this Article.
(g)	It is unlawful for a covered entity to discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. As used in this subsection, the term 'discriminate' includes:
(1)	Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of the applicant or employee;
(2)	Participating in a contractual or other relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this Article.  Such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs;
(3)	Using standards, criteria, or methods of administration that:
a.	Have the effect of discrimination on the basis of disability; or
b.	Perpetuate the discrimination of others who are subject to common administrative control;
(4)	Excluding or otherwise denying jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
(5)	Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.  Nothing in this Article shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit which such individual chooses not to accept;
(6)	Denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;
(7)	Using qualification standards, employment tests or other criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability or a class of individuals with disabilities.  It is a defense to a complaint of discrimination under this subdivision if the covered entity shows that the standard, test or other selection criteria, as used by the covered entity, is job related for the position in question, is consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this Article;
(8)	Failing to select and administer tests concerning employment in the most effective manner to ensure that, when such 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 such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of the employee or applicant, except where such skills are the factors that the test purports to measure;
(9)	Conducting a medical examination or making inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.  However, a covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions, may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of the applicant, and may condition an offer of employment on the results of the examination, if:
a.	All entering employees are subjected to such an examination regardless of disability;
b.	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:
1.	Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
2.	First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
3.	Government officials investigating compliance with this Article shall be provided relevant information on request;
c.	The results of the examination are used only in accordance with this Article.
(10)	Requiring a medical examination or making inquiries of an employee as to whether such 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.  A covered entity may make inquiries into the ability of an employee to perform job-related functions, and may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at the work site.  Information obtained in such medical examinations or medical histories is subject to the same restrictions and requirements as information obtained pursuant to preemployment medical examinations, as described in sub-subdivisions (9)b. and (9)c. of this subsection.
(h)	(1)	Except as provided in this subsection, it shall be unlawful for an employer, an employment agency, a labor organization, or any combination thereof to establish or maintain an employee pension benefit plan which requires or permits:
a.	In the case of a defined benefit plan, the cessation of an employee's benefit accrual, or the reduction of the rate of an employee's benefit accrual, because of age; or
b.	In the case of a defined contribution plan, the cessation of allocations to an employee's account, or the reduction of the rate at which amounts are allocated to an employee's account, because of age.
(2)	Nothing in this subsection shall be construed to prohibit an employer, employment agency, or labor organization from observing any provision of an employee pension benefit plan to the extent that such provision imposes, without regard to age, a limitation on the amount of benefits that the plan provides or a limitation on the number of years of service or years of participation which are taken into account for purposes of determining benefit accrual under the plan.
(3)	In the case of any employee who, as of the end of any plan year under a defined benefit plan, has attained normal retirement age under such plan:
a.	If distribution of benefits under the plan with respect to the employee has commenced as of the end of the plan year, then any requirement of this subsection for continued accrual of benefits under the plan with respect to the employee during the plan year shall be treated as satisfied to the extent of the actuarial equivalent of in-service distribution of benefits, and;
b.	If distribution of benefits under the plan with respect to the employee has not commenced as of the end of the year in accordance with section 206(a)(3) of the Employee Retirement Income Security Act of 1974 and section 401(a)(14)(C) of the Internal Revenue Code of 1986, and the payment of benefits under the plan with respect to the employee is not suspended during the plan year pursuant to section 203(a)(3)(B) of the Employment Retirement Income Security Act of 1974 or section 411(a)(3)(B) of the Internal Revenue Code of 1986, then any requirement of this subsection for continued accrual of benefits under the plan with respect to the employee during the plan year shall be treated as satisfied to the extent of any adjustment in the benefit payable under the plan during the plan year attributable to the delay in the distribution of benefits after attainment of normal retirement age.
	The provisions of this subdivision apply in accordance with regulations of the United States Secretary of the Treasury, pursuant to 29 U.S.C. § 623(i)(3).
(4)	Compliance with the requirements of this subsection with respect to an employee pension benefit plan shall constitute compliance with the requirements of this subsection relating to benefit accrual under such plan.
(5)	Subdivision (1) of this subsection does not apply to any employee who is a highly compensated employee within the meaning of section 414(q) of the Internal Revenue Code of 1986 to the extent provided in regulations prescribed by the United States Secretary of the Treasury for purposes of precluding discrimination in favor of highly compensated employees within the meaning of subchapter D of chapter 1 of the Internal Revenue Code of 1986.
(6)	A plan shall not be treated as failing to meet the requirements of subdivision (1) of this subsection solely because the subsidized portion of any early retirement benefit is disregarded in determining benefit accruals.
(7)	Any regulations prescribed by the United States Secretary of the Treasury pursuant to clause (v) of section 411(b)(1)(H) of the Internal Revenue Code of 1986 and subparagraphs (C) and (D) of section 411(b)(2) of the Internal Revenue Code apply to the requirements of this subsection in the same manner and to the same extent as such regulations apply to the requirements of sections 411(b)(1)(H) and 411(b)(2).
(8)	A plan shall not be treated as failing to meet the requirements of this subsection solely because the plan provides a normal retirement age described in section 3(24)(B) of the Employee Retirement Income Security Act of 1974 and section 411(a)(8)(B) of the Internal Revenue Code of 1986.
(9)	A seniority system or employee benefit plan must comply with this Article regardless of the date of adoption of such system or plan.
(10)	For purposes of this subsection:
a.	'Defined contribution plan', 'employee pension benefit plan', and 'normal retirement age' have the same meanings provided in section 3 of the Employee Retirement Security Act of 1974 (29 U.S.C. § 1002).
b.	'Compensation' has the same meaning provided in section 414(s) of the Internal Revenue Code of 1986.
"§ 143-579. Exemptions; defenses.
(a)	Notwithstanding any other provision of this Article, it is not unlawful for:
(1)	An employer to hire and employ employees,
(2)	An employment agency to classify or refer for employment any individual,
(3)	A labor organization to classify its membership or to classify or refer for employment any individual, or
(4)	An employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs
to admit or employ any individual in any such program, on the basis of his religion, sex, national origin, or age in those certain instances where religion, sex, national origin, or age is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.  Notwithstanding any other provision of this Article, it is not unlawful for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such 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 such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
(b)	With regard to discrimination based on race, color, religion, sex, or national origin, it is not unlawful 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 the differences are not the result of an intention to discriminate because of race, color, religion, sex, national origin.  It is not unlawful for an employer to give and to act upon the results of any professionally developed ability test provided that 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.  It is not unlawful for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of 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).
(c)	In any case in which an individual has an infectious or communicable disease that is:
(1)	Transmitted to others through the handling of food,
(2)	Included on the list developed by the Secretary of the United States Department of Health and Human Services pursuant to section 103(d) of the Americans with Disabilities Act of 1990, (42 U.S.C. §§ 12101, et seq.), and
(3)	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 subsection shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling.
(d)	The provisions of this Article do not apply to any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of that use.  However, an individual shall not be excluded as a qualified individual with a disability if he:
(1)	Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
(2)	Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(3)	Is erroneously regarded as engaging in such use.
It is not a violation of this Article for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in subdivision (1) or (2) of this  subsection is no longer engaging in the illegal use of drugs.
(e)	A covered entity may:
(1)	Prohibit the illegal use of drugs and the use of alcohol at the workplace by employees;
(2)	Require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
(3)	Require that employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C. §§ 701 et seq.);
(4)	Hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that the entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee; and
(5)	With respect to federal regulations regarding alcohol and the illegal use of drugs, require that:
a.	Employees comply with the standards established in federal regulations of the Department of Defense, if the employees of the covered entity are employed in an industry subject to those regulations, including complying with regulations, if any, that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in those positions, as defined in the regulations of the Department of Defense;
b.	Employees comply with the standards established in federal regulations of the Nuclear Regulatory Commission, if the employees of the covered entity are employed in an industry subject to those regulations, including complying with regulations, if any, that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in those positions, as defined in the regulations of the Nuclear Regulatory Commission; and
c.	Employees comply with the standards established in federal regulations of the United States Department of Transportation, if the employees of the covered entity are employed in a transportation industry subject to those regulations, including complying with those regulations, if any, that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in those positions, as defined in the regulations of the Department of Transportation.
(f)	For the purposes of this Article, a test to determine the illegal use of drugs shall not be considered a medical exam.  Nothing in this Article shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results.
(g)	Nothing in this Article shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the United States Department of Transportation of authority to:
(1)	Test employees of such entities in, and applicants, for positions involving safety-sensitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and
(2)	Remove such persons who test positive for illegal use of drugs and on-duty impairment by alcohol pursuant to subdivision (1) of this subsection from safety-sensitive duties in implementing subsection (e).
(h)	The prohibitions in this Article against discrimination based upon disability shall not be construed to prohibit or restrict:
(1)	An insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or
(2)	A person or organization covered by this Article from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering those risks that are based on or not inconsistent with State law; or
(3)	A person or organization covered by this Article from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.
Subdivisions (1), (2), and (3) of this subsection shall not be used as a subterfuge to evade the purposes of this Article.
(i)	It shall not be a violation of this Article for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if on the basis of race, color, religion, sex, or national origin:
(1)	The occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive Order of the President; and
(2)	Such individual has not fulfilled or has ceased to fulfill that requirement.
(j)	Nothing contained in this Article shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which preferential treatment is given to any individual because he is an Indian living on or near a reservation.
(k)	Nothing contained in this Article shall 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 corporation, association, educational institution, or society of its activities.
(l)	Nothing contained in this Article shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this Article to grant preferential treatment to any individual or to any group because of race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, state, section, or other area, or in the available work force in any community, state, section, or other area.
(m)	With respect to discrimination based on age, it is not unlawful for an employer, employment agency, or labor organization to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of G.S. 143-578:
(1)	Where the differentiation is based on reasonable factors other than age;
(2)	Where such practices involve an employee in a workplace in a foreign country, and compliance with those subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located; or
(3)	To observe the terms of a bona fide seniority system that is not intended to evade the purposes of this Article, except that no such seniority system shall require or permit the involuntary retirement of any individual who is at least 40 years of age because of the age of such individual; or
(4)	To observe the terms of a bona fide employee benefit plan:
a.	Where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker, as permissible under section  1625.10, Title 29, Code of Federal Regulations, as in effect on June 22, 1989; or
b.	That is a voluntary early retirement incentive plan consistent with the relevant purpose of this Article.
	Notwithstanding the provision of sub-subdivision a. or b. of this subdivision, no employee benefit plan or voluntary early retirement incentive plan shall excuse the failure to hire any individual, and no such employee benefit plan shall require or permit the involuntary retirement of any individual age 40 or older, because of the age of such individual.  An employer, employment agency, or labor organization acting under subdivision (3) or subdivision (4), shall have the burden of proving that such actions are lawful in any civil enforcement proceeding brought under this Article; or
(5)	To discharge or otherwise discipline an individual for good cause.
(n)	Notwithstanding the provisions of subdivision (4) of subsection (m) of this section:
(1)	It is not a violation of subsection (a), (b), (c), or (e) of G.S. 143-578 solely because:
a.	An employee pension benefit plan, as defined in section 3(2) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1002(2)), provides for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits; or
b.	A defined benefit plan, as defined in section 3(35) of such Act, provides for:
1.	Payments that constitute the subsidized portion of an early retirement benefit; or
2.	Social security supplements for plan participants that commence before that age and terminate at the age (specified by the plan) when participants are eligible to receive reduced or unreduced old-age insurance benefits under Title II of the Social Security Act (42 U.S.C. §§ 401 et seq.), and that do not exceed such old-age insurance benefits.
(2)	a.	It is not a violation of subsection (a), (b), (c), or (e) of G.S. 143-578 solely because, following a contingent event unrelated to age:
1.	The value of any retiree health benefits received by an individual eligible for an immediate pension;
2.	The value of any additional pension benefits that are made available solely as a result of the contingent event unrelated to age and following which the individual is eligible for not less than an immediate and unreduced pension; or
3.	The sum of the values described in both subparts 1. and 2. of this sub-subdivision
	are deducted from severance pay made available as a result of the contingent event unrelated to age.
b.	For an individual who receives immediate pension benefits that are actuarially reduced under subpart a.1. of this subdivision, the amount of the deduction available pursuant to subpart a.1. shall be reduced by the same percentage as the reduction in the pension benefits.
c.	For purposes of this subdivision, severance pay shall include that portion of supplemental unemployment compensation benefits, as described in section 501(c)(17) of the Internal Revenue Code of 1986, that:
1.	Constitutes additional benefits of up to 52 weeks;
2.	Has the primary purpose and effect of continuing benefits until an individual becomes eligible for an immediate and unreduced pension; and
3.	Is discontinued once the individual becomes eligible for an immediate and unreduced pension.
d.	For purposes of this subdivision and solely in order to make the deduction authorized under this paragraph, the term 'retiree health benefit' means benefits provided pursuant to a group health plan covering retirees, for which (determined as of the contingent event unrelated to age).  The package of benefits provided by the employer:
1.	For the retirees who are below age 65 is at least comparable to benefits provided under Title XVIII of the Social Security Act (42 U.S.C. §§ 1395 et seq.); or
2.	For the retirees who are age 65 and above is at least comparable to that offered under a plan that provides a benefit package with one-fourth the value of benefits provided under Title XVIII of the Social Security Act;
e.	1.	If the obligation of the employer to provide retiree health benefits is of limited duration, the value for each individual shall be calculated at a rate of three thousand dollars ($3,000) per year for benefit years before age 65, and seven hundred fifty dollars ($750.00) per year for benefit years beginning at age 65 and above.
2.	If the obligation of the employer to provide retiree health benefits is of unlimited duration, the value for each individual shall be calculated at a rate of forty-eight thousand dollars ($48,000) for individuals below age 65, and twenty-four thousand dollars ($24,000) for individuals age 65 and above.
3.	The values described in subparts 1. and 2. of this sub-subdivision shall be calculated based on the age of the individual as of the date of the contingent event unrelated to age.  The values are effective on the date of enactment of this subsection, and shall be adjusted on an annual basis, with respect to a contingent event that occurred subsequent to the first year after the date of enactment of this subsection, based on the medical component of the Consumer Price Index for all-urban consumers published by the United States Department of Labor.
4.	If an individual is required to pay a premium for retiree health benefits, the value calculated pursuant to this sub-subdivision shall be reduced by whatever percentage of the overall premium the individual is required to pay.
f.	If an employer that has implemented a deduction pursuant to sub-subdivision a. of this subdivision fails to fulfill the obligation described in sub-subdivision e., any aggrieved individual may bring an action for specific performance of the obligation described in sub-subdivision e.  The relief shall be in addition to any other remedies provided under this Article.
(3)	It is not a violation of subsection (a), (b), (c), or (e) of G.S. 143-578 solely because an employer provides a bona fide employee benefit plan under which long-term disability benefits received by an individual are reduced by any pension benefits, other than those attributable to employee contributions:
a.	Paid to the individual that the individual voluntarily elects to receive; or
b.	For which an individual who has attained the later of age 62 or normal retirement age is eligible.
(o)	(1)	If an employer controls a corporation whose place of incorporation is in a foreign country, any act of age discrimination by such corporation prohibited by this Article shall be presumed to be an act by that employer.
(2)	The prohibitions of this Article with respect to discrimination based on age do not apply where the employer is a foreign person not controlled by an American employer.
(3)	For the purpose of this subsection, the determination of whether an employer controls a corporation shall be based upon the:
a.	Interrelation of operations,
b.	Common management,
c.	Centralized control of labor relations, and
d.	Common ownership or financial control of the employer and the corporation.
(p)	(1)	Nothing in this Article shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the two-year period immediately before retirement, is employed in a bona fide executive or high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least forty-four thousand dollars ($44,000).
(2)	In applying the retirement benefit test of subdivision (1) of this subsection, if any such retirement benefit is in a form other than a straight life annuity, with no ancillary benefits, or if employees contribute to any such plan or make rollover contributions, the benefit shall be adjusted in accordance with regulations prescribed by the Equal Employment Opportunity Commission, pursuant to 29 U.S.C. § 631(c)(2), 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.
"§ 143-580.  Enforcement.
(a)	A complaint alleging an unlawful employment practice may be filed with the Commission by any person who claims to be aggrieved by an unlawful employment practice, any person who reasonably believes that he will be aggrieved by an unlawful employment practice, or a member of the Commission.  Complaints shall be in writing, shall state the facts upon which the allegation of an unlawful employment practice is based, shall be signed by the complainant and verified, and shall contain such other information and be in a form as the Commission requires.  Commission employees shall assist complainants in reducing complaints to writing and shall assist in setting forth the information in the complaint as may be required by the Commission.
(b)	A complaint under subsection (a) may be filed no later than 180 days after the cessation of the unlawful employment practice.  However, during any period in which the Commission is subject to a complaint deferral agreement with the Equal Employment Opportunity Commission pursuant to 42 U.S.C. § 2000e-(5)(c) and 42 U.S.C. § 2000e-(8)(b), a complaint may be filed not later than 300 days after the cessation of the unlawful employment practice.
(c)	The Executive Director shall serve a copy of the complaint upon the respondent within 10 days after the complaint is filed with the Commission.
(d)	A respondent may file an answer to the complaint against him within 10 days after receiving a copy of the complaint.  Answers shall be signed by the respondent and verified.
(e)	With the leave of the Executive Director, the answer may be amended at any time. The Executive Director shall grant leave to amend the complaint whenever it would be reasonable and fair to do so.  Amendments shall be signed and verified.  An amendment shall be considered to have been filed on the date on which the original complaint or answer was filed.  Amendments to complaints may add to, correct, or delete the information contained in the original complaint, and may add or delete the names of respondents.  The Executive Director shall serve a copy of all amended complaints upon all respondents, and shall provide the respondents a reasonable amount of time to respond.  Any respondent added by an amendment to a complaint shall be given a reasonable amount of time to file an answer.
(f)	The Commission, through its Executive Director and his employees and agents, shall investigate the complaint to ascertain the facts relating to the alleged unlawful employment practice.  In conducting an investigation, the Executive Director and his employees and agents shall have access at all reasonable times to premises, records, documents, individuals, and other evidence or possible sources of evidence and may examine, record, and copy such materials and take and record the testimony or statements of such persons as reasonably necessary for the furtherance of the investigation.
(g)	In conducting an investigation, the Executive Director may:
(1)	Issue subpoenas compelling access to or production of documents, materials, or other evidence;
(2)	Issue subpoenas compelling witnesses, including any party, to appear and give testimony before a Commission employee or agent;
(3)	Issue subpoenas compelling witnesses, including any party, to appear and give testimony at a deposition;
(4)	Take depositions of witnesses, including any party; and
(5)	Issue interrogatories to a respondent.
Subpoenas issued by the Executive Director shall be issued in accordance with the same rules of notice and service as govern the issuance of subpoenas in civil actions.  The Executive Director may take depositions and issue interrogatories to the same extent and subject to the same limitations as would apply if the deposition were taken or the interrogatories were issued in aid of a civil action.  However, the Executive Director may require that a respondent:
(1)	Serve a copy of answers to interrogatories within 15 days after service of the interrogatories on the respondent, and
(2)	Allow access to or produce documents or other evidence within 15 days after service of a request to do so.
(h)	Upon written application to the Executive Director, a respondent shall be entitled to the issuance of a reasonable number of subpoenas for the taking of depositions and the production of evidence subject to the same limitations as subpoenas issued by the Executive Director.  Subpoenas issued at the request of a respondent shall show on their face the name and address of such respondent and shall state that they were issued at his request.
(i)	In the case of refusal to obey a subpoena, answer an interrogatory, answer a question propounded in a deposition, or answer a question propounded during an interview conducted by a Commission employee pursuant to subdivision (g)(2) of this section, the Commission or the respondent may make a motion compelling a person to obey the subpoena, answer the interrogatory, or answer the question.  A motion made pursuant to this subsection shall be made in the superior court for the district in which the person to whom the subpoena, interrogatory, or question was directed resides, was served, or transacts business.  The court may, in its discretion, issue an order granting or denying the motion in whole or in part.  If a person fails to obey an order issued pursuant to this subsection, the court may apply any or all of the sanctions available in Rule 37 of the North Carolina Rules of Civil Procedure.
(j)	The complaint may be resolved at any time by conference, conciliation, and persuasion.  Positions taken by a party in connection with such efforts toward conciliation shall not be made public or used against the interest of the witness in a subsequent proceeding.
(k)	If the complaint is not sooner resolved, upon completion of the investigation the Executive Director shall determine whether there is reasonable cause to believe that an unlawful employment practice has occurred or is going to occur.  The Executive Director shall make his determination on reasonable cause as promptly as possible and, so far as practicable, no later than 120 days after the complaint was filed.
(l)	If the Executive Director determines that there is not reasonable cause to believe that an unlawful employment practice has occurred or is going to occur, he shall dismiss the complaint and so notify the complainant and the respondent.  At the same time the Executive Director shall issue to the complainant a right-to-sue letter which will enable the complainant to bring a civil action in superior court.
(m)	If the Executive Director determines that there is reasonable cause to believe that an unlawful employment practice has occurred or is going to occur, he shall notify the complainant and the respondent and shall attempt to resolve the complaint by conciliation and persuasion.  A conciliation agreement signed by the parties is an enforceable contract.  The Commission may be a party to conciliation agreements which resolve complaints.  The Executive Director may sign conciliation agreements on behalf of the Commission.
(n)	If the Executive Director is unable to resolve the complaint, he may declare that conciliation efforts have failed.  Upon making such a declaration, the Commission may:
(1)	Dismiss the complaint and issue to the complainant a right-to-sue letter which will enable him to bring a civil action against the respondent in superior court; or
(2)	Commence a civil action against the respondent in superior court in its own name or in its own name on behalf of the complainant.  Such an action shall be commenced no later than 90 days after the declaration of conciliation failure.  In such an action, the plaintiff or plaintiffs shall be represented by an attorney employed by the Commission and the provisions of G.S. 114-2 shall not apply.
(o)	If more than 240 days have elapsed since a complaint was filed, the Commission has failed to resolve the complaint or issue a right-to-sue letter, the Executive Director shall, upon written request of the complainant, issue a right-to-sue letter to the complainant which will enable him to bring a civil action in superior court.  Issuance of a letter under this subsection shall not prevent the Commission from commencing a civil action in its own name under subsection (n)(2) of this section, which action shall be consolidated with any action filed by the complainant.  Such an action by the Commission shall be filed no later than 90 days after the Commission issues the requested right-to-sue letter to the complainant.
(p)	Civil actions brought by a complainant after the issuance of a right-to-sue letter by the Commission may be filed no later than 90 days after the issuance of the letter.
(q)	All civil actions brought pursuant to this Article shall be commenced in the county where the alleged unlawful employment practice occurred.
(r)	In an action brought in superior court pursuant to this Article, if the court finds that the defendant has committed an unlawful employment practice, the court may enjoin the defendant from engaging in unlawful employment practices, and order such affirmative action as may be appropriate, which may include, but is not not limited to, reinstatement or hiring or employees, with or without back pay payable by the defendant responsible for the unlawful employment practice, or any other equitable relief as the court deems appropriate.  Back pay liability shall not accrue from a date more than two years prior to the filing of the complaint with the Commission.  Interim earnings or amounts earnable with reasonable diligence by the person discriminated against shall operate to reduce the back pay otherwise allowable.  Nor order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, national origin, age, disability, or in violation of G.S. 143-578(f).  The court may award court costs and reasonable attorney's fees to the prevailing party with the following limitations:
(1)	Attorney's fees may not be awarded to the Commission; and
(2)	A prevailing respondent may be awarded court costs and reasonable attorney's fees only upon a showing that the case is frivolous, unreasonable, or without foundation.
(s)	Whenever the Commission concludes on the basis of a preliminary investigation of a complaint that prompt judicial action is necessary to carry out the purposes of this Article, the Commission may bring an action in superior court for appropriate temporary or preliminary relief pending final disposition of the complaint.  Any temporary relief shall be issued in accordance with Rule 65 of the North Carolina Rules of Civil Procedure.  It shall be the duty of a court having jurisdiction over proceedings under this subsection to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited.  The commencement of a civil action under this subsection does not affect the continuation of the Commission's investigation or the initiation of a separate civil action pursuant to other subsections of this section.
"§ 143-581.  Local government authority.
(a)	The governing bodies of cities, towns, or counties are authorized to adopt ordinances:
(1)	Prohibiting employment discrimination within their jurisdictions to the extent that it is prohibited by this Article;
(2)	Authorizing the governing body or a designated agency to enforce such ordinances in a manner similar to the procedures described in this Article; and
(3)	Providing for remedies for violations of such ordinances that are similar to the remedies described in this Article.
(b)	Whenever another agency of the State or any unit of local government has jurisdiction over the subject matter of any complaint filed under this Article, and such agency or unit of local government has legal authority equivalent to or greater than the authority under this Article to investigate or act upon the complaint, the Commission shall be divested of jurisdiction over the complaint.  The Commission shall, within 30 days, notify the agency or unit of local government of the apparent unlawful employment practice, and request that the complaint be investigated in accordance with its authority."
Sec. 2.  G.S. 143B-391 reads as rewritten:
"§ 143B-391. North Carolina Human Relations Commission – creation; powers and duties.
There is hereby created the North Carolina Human Relations  Commission of the Department of Administration. The North Carolina Human Relations Commission shall have the following functions and duties:
(1)	To study problems concerning human relations;
(2)	To promote equality of opportunity for all citizens;
(3)	To promote understanding, respect, and goodwill among all citizens;
(4)	To provide channels of communication among the races;
(5)	To encourage the employment of qualified people without regard to race;
(6)	To encourage youths to become better trained and qualified for employment;
(7)	To receive on behalf of the Department of Administration and  to recommend expenditure of gifts and grants from public and private donors;
(8)	To enlist the cooperation and assistance of all State and local government officials in the attainment of the objectives of the Commission;
(9)	To assist local good neighborhood councils and biracial human relations committees in promoting activities related to the functions of the Commission enumerated above;
(10)	To advise the Secretary of Administration upon any matter the Secretary may refer to it; 
(11)	To administer the provisions of the State Fair Housing Act as outlined in Chapter 41A of the General Statutes;
(12)	To administer the provisions of Article 62 of Chapter 143 of the General Statutes; and
(13)	To adopt rules to implement and interpret the provisions of Article 62 of Chapter 143 of the General Statutes."
Sec. 3.  The provisions of Article 62 of Chapter 143 of the General Statutes as enacted by Section 1 of this act regarding discrimination based upon disability become effective July 26, 1992.  The remainder of this act becomes effective October 1, 1991.