§ 168A-1. Title.

This Chapter may be cited as the North Carolina Persons With Disabilities Protection Act.

History. 1985, c. 571, s. 1; 1999-160, s. 1.

Editor’s Note.

Session Laws 2008-83, s. 2, provides: “The UNC-CH Division TEACCH Autism Program (TEACCH), in consultation with the School of Government and the Autism Society of NC, shall develop a video to raise awareness of autism for those involved in government and public service, including information on recognizing the signs and symptoms of autism spectrum disorders, and contacts for further information on appropriate responses to individuals with autism.”

Session Laws 2009-264, s. 1, provides: “It is the intent of the General Assembly to refer to a person with a disability as a person first when directing the drafting of statutes and resolutions. The Legislative Services Office shall incorporate into its drafting training of legislative drafters the preference to avoid language that implies a person as a whole is disabled, equates a person with his or her condition, or is regarded as derogatory or demeaning. The Arc of North Carolina shall provide a list of nationally recognized descriptors to the Legislative Services Office to be used in this training.”

Session Laws 2009-264, s. 2, provides: “The General Statutes Commission shall recommend to the 2010 reconvened session of the 2009 General Assembly and to the 2011 Regular Session of the General Assembly any statutory changes and drafting policies needed to make the General Statutes and administrative rules refer to a person with a disability as a person first. The goal of such revisions shall be to avoid language that implies a person as a whole is disabled, equates a person with his or her condition, or is regarded as derogatory or demeaning. In making recommendations, the General Statutes Commission shall distinguish those instances where a word or phrase is required by federal law or regulation, is describing a medical diagnosis, or is referring to nonliving entities such as facilities, organizations, programs, services, or zone designations.”

Session Laws 2009-451, s. 10.21D(a)-(i), as amended by Session Laws 2010-31, s. 10.9, provides: “(a) There is established the Joint Study Committee on Autism Spectrum Disorder and Public Safety (Committee). The Committee shall consist of members and co-chairs appointed by the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The Committee and the terms of the members shall expire when the Committee submits a final report to the General Assembly. Members serve at the pleasure of the appointing officer.

“(b) The Committee shall study ways to increase the availability of appropriate autism-specific education and training to public safety personnel, first responder units, judges, district attorneys, magistrates, and related organizations. The Committee may also study any other issue it deems relevant to Autism Spectrum Disorder and public safety.

“(c) The Committee shall meet upon the call of its co-chairs. A quorum of the Committee is a majority of its members. No action may be taken except by a majority vote at a meeting at which a quorum is present.

“(d) The Committee, while in the discharge of its official duties, may exercise all powers provided for under G.S. 120-19 and Article 5A of Chapter 120 of the General Statutes. The Committee may contract for professional, clerical, or consultant services, as provided by G.S. 120-32.02 .

“(e) Members of the Committee shall receive per diem, subsistence, and travel allowance as provided in G.S. 120-3.1 , and G.S. 138-5 and G.S. 138-6 , as appropriate.

“(f) The expenses of the Committee shall be considered expenses incurred for the joint operation of the General Assembly. Funds for the Committee shall be as appropriated to the General Assembly for this purpose.

“(g) The Legislative Services Officer shall assign professional and clerical staff to assist the Committee in its work. The Director of Legislative Assistants of the House of Representatives and the Director of Legislative Assistants of the Senate shall assign clerical support staff to the Committee.

“(h) The Committee may meet at various locations around the State in order to promote greater public participation in its deliberations.

“(i) The Committee may submit an interim report on the results of its study, including any proposed legislation, to the members of the Senate and the House of Representatives on or before May 1, 2010, by filing a copy of the report with the Office of the President Pro Tempore of the Senate, the Office of the Speaker of the House of Representatives, and the Legislative Library. The Committee shall submit a final report on the results of its study, including any proposed legislation, to the members of the Senate and the House of Representatives upon the completion of its work by filing a copy of the report with the Office of the President Pro Tempore of the Senate, the Office of the Speaker of the House of Representatives, and the Legislative Library. The Committee shall terminate upon the completion of its work.”

Session Laws 2009-451, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2009’.”

Session Laws 2009-451, s. 28.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium.”

Session Laws 2009-451, s. 28.5, is a severability clause.

Session Laws 2010-31, s. 1.1, provides: “This act shall be known as the “Current Operations and Capital Improvements Appropriations Act of 2010’.”

Session Laws 2010-31, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year.”

Session Laws 2010-31, s. 32.6, is a severability clause.

Legal Periodicals.

For note on employment discrimination against the handicapped, see 16 Wake Forest L. Rev. 836 (1980).

For comment, “HIV, AIDS & Job Discrimination: North Carolina Failure and Federal Redemption,” see 17 Campbell L. Rev. 115 (1995).

For article, “Wrongful Discharge and the North Carolina Equal Employment Practices Act: The Localization of Federal Discrimination Law,” see 21 N.C. Cent. L.J. 54 (1995).

CASE NOTES

Legislative Intent. —

Both the plain language of its provisions and the legislative history surrounding this act indicate that the legislature did not intend to protect persons infected with human immunodeficiency virus (HIV) under this particular act. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205 , 388 S.E.2d 134, 1990 N.C. LEXIS 11 (1990).

Act Does Not Protect Asymptomatic Persons Infected with HIV. —

A person who is infected with human immunodeficiency virus (HIV), but who is otherwise asymptomatic, is not entitled to protection under the provisions of this act. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205 , 388 S.E.2d 134, 1990 N.C. LEXIS 11 (1990).

Plaintiff’s claim was not filed within a reasonable time after the former Handicapped Persons Act right to employment statute was repealed and the new Act was enacted; since “reasonable time” cannot exceed the limitations period allowed under the new law, plaintiff had 180 days after the new Act became effective in which to sue, and plaintiff failed to file within that time period. Spaulding v. R.J. Reynolds Tobacco Co., 93 N.C. App. 770, 379 S.E.2d 49, 1989 N.C. App. LEXIS 376 (1989), aff'd, 326 N.C. 44 , 387 S.E.2d 168, 1990 N.C. LEXIS 5 (1990).

School Suspension of ADHD Student Justified. —

Plaintiffs, student’s parents, offered no evidence to show a violation of any North Carolina statute or the North Carolina Constitution where student diagnosed with attention deficit hyperactivity disorder admitted that he had a gun clip with live bullets in school and he was subjected to external school suspension, his parents attended and participated in disciplinary proceedings, and he was assigned to management school which could accommodate his specialized needs. Glen ex rel. Glen v. Charlotte-Mecklenburg Sch. Bd. of Educ., 903 F. Supp. 918, 1995 U.S. Dist. LEXIS 15080 (W.D.N.C. 1995).

Failure to Rehire Actionable. —

An employee had an actionable claim under the NCPDPA for employment discrimination based on an employer’s failure to rehire solely for unlawful motives. On remand, there was to be a hearing to determine damages, costs and attorney’s fees. Johnson v. Bd. of Trs. of Durham Tech. Cmty. College, 157 N.C. App. 38, 577 S.E.2d 670, 2003 N.C. App. LEXIS 370 (2003).

§ 168A-2. Statement of purpose.

1. The purpose of this Chapter is to ensure equality of opportunity, to promote independent living, self-determination, and economic self-sufficiency, and to encourage and enable all persons with disabilities to participate fully to the maximum extent of their abilities in the social and economic life of the State, to engage in remunerative employment, to use available public accommodations and public services, and to otherwise pursue their rights and privileges as inhabitants of this State.
2. The General Assembly finds that: the practice of discrimination based upon a disabling condition is contrary to the public interest and to the principles of freedom and equality of opportunity; the practice of discrimination on the basis of a disabling condition threatens the rights and proper privileges of the inhabitants of this State; and such discrimination results in a failure to realize the productive capacity of individuals to their fullest extent.

History. 1985, c. 571, s. 1; 1999-160, s. 1; 2002-163, s. 1.

Legal Periodicals.

For comment, “HIV, AIDS & Job Discrimination: North Carolina Failure and Federal Redemption,” see 17 Campbell L. Rev. 115 (1995).

For comment, “Outsourcing Our Children: The Failure to Treat Mental Illness In-State,” see 36 N.C. Cent. L. Rev. 66 (2013).

CASE NOTES

Remedy Precludes Action Under State Constitution. —

A visually impaired plaintiff could not bring suit under Article I, § 19 of the North Carolina Constitution, as this section provides an adequate state remedy for the plaintiff’s allegation that a judge discriminated against him by refusing to allow his companion dog to accompany him into the judge’s courtroom, and having failed to timely use this remedy, he could not call on the court to fashion one under the state constitution. Stroud v. Harrison, 131 N.C. App. 480, 508 S.E.2d 527, 1998 N.C. App. LEXIS 1386 (1998).

Construction with Other Laws. —

The Employment Act, enacted in 1977, and The Handicapped Act, enacted in 1985, although enacted at different times, relate to the same subject matter, employment discrimination against handicapped persons, and must be construed together to ascertain legislative intent. McCullough v. Branch Banking & Trust Co., 136 N.C. App. 340, 524 S.E.2d 569, 2000 N.C. App. LEXIS 17 (2000).

§ 168A-3. Definitions.

The following definitions apply in this Chapter:

1. Covered governmental entity. — Any State department, institution, agency, or any political subdivision of the State or any person that contracts with a State department, institution, agency, or political subdivision of the State for the delivery of public services, including, but not limited to, education, health, social services, recreation, and rehabilitation.

   (1a) Disabling condition. — Any condition or characteristic that renders a person a person with a disability.

   (1b) Discriminatory practice. — Any practice prohibited by this Chapter.

2. Employer. — Any person employing 15 or more full-time employees within the State, but excluding a person whose only employees are hired to work as domestic or farm workers at that person’s home or farm.
3. Employment agency. — A person regularly undertaking with or without compensation to procure for employees opportunities to work for an employer and includes an agent of such a person.
4. Recodified as G.S. 168A-3(7a) . (4a) Information technology. — As defined in G.S. 143B-1320. The term also specifically includes information transaction machines.
5. Recodified as G.S. 168A-3(1) .
6. Labor organization. — An organization of any kind, an agency or employee representation committee, a group association, or a plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment.
7. Person. — Any individual, partnership, association, corporation, labor organization, legal representative, trustee, receiver, and the State and its departments, agencies, and political subdivisions.

   (7a) Person with a disability. — Any person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. The following definitions apply in this subdivision:

   1. Physical or mental impairment. — Any of the following:
      1. Any physiological disorder or abnormal condition, cosmetic disfigurement, or anatomical loss, caused by bodily injury, birth defect, or illness, affecting a body system, including, but not limited to, neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine.

      2. Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.

         “Physical or mental impairment” excludes (i) sexual preferences; (ii) active alcoholism or drug addiction or abuse; and (iii) any disorder, condition, or disfigurement which is temporary in nature, lasting six months or fewer, and leaving no residual impairment. A disorder, condition, or disfigurement that is episodic or in remission is a physical or mental impairment if it would substantially limit a major life activity when active.

   2. Major life activities. — Functions, including, but not limited to, caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, eating, sleeping, lifting, bending, standing, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
   3. Has a record of such an impairment. — Has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits major life activities.
   4. Is regarded as having an impairment. — Any of the following:
      1. Has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation.
      2. Has a physical or mental impairment that substantially limits major life activities because of the attitudes of others.
      3. Has none of the impairments defined in sub-subdivision a. of this subdivision but is treated as having such an impairment.

         The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as (i) medication, medical supplies, equipment, or appliances, low-vision devices, which do not include ordinary eyeglasses or contact lenses, prosthetics, including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (ii) use of assistive technology; (iii) reasonable accommodations or auxiliary aids or services; or (iv) learned behavioral or adaptive neurological modifications.

8. Place of public accommodations. — Includes, but is not limited to, any place, facility, store, other establishment, hotel, or motel, which supplies goods or services on the premises to the public or which solicits or accepts the patronage or trade of any person.
9. Qualified person with a disability. — All of the following:
   1. With regard to employment, a person with a disability who can satisfactorily perform the duties of the job in question, with or without reasonable accommodation, (i) provided that the person with a disability shall not be held to standards of performance different from other employees similarly employed, and (ii) further provided that the disabling condition does not create an unreasonable risk to the safety or health of the person with a disability, other employees, the employer’s customers, or the public.
   2. With regard to places of public accommodation a person with a disability who can benefit from the goods or services provided by the place of public accommodation.
   3. With regard to public services and public transportation a person with a disability who meets prerequisites for participation that are uniformly applied to all participants, such as income or residence, and that do not have the effect of discriminating against persons with a disability.
10. Reasonable accommodations. — All of the following:
    1. With regard to employment, making reasonable physical changes in the workplace, including, but not limited to, making facilities accessible, modifying equipment and providing mechanical aids to assist in operating equipment, or making reasonable changes in the duties of the job in question that would accommodate the known disabling conditions of the person with a disability seeking the job in question by enabling him or her to satisfactorily perform the duties of that job. “Reasonable accommodation” does not require that an employer do any of the following:
       1. Hire one or more employees, other than the person with a disability, for the purpose, in whole or in part, of enabling the person with a disability to be employed.
       2. Reassign duties of the job in question to other employees without assigning to the employee with a disability duties that would compensate for those reassigned.
       3. Reassign duties of the job in question to one or more other employees where the reassignment would increase the skill, effort, or responsibility required of the other employee or employees from that required prior to the change in duties.
       4. Alter, modify, change, or deviate from bona fide seniority policies or practices.
       5. Provide accommodations of a personal nature, including, but not limited to, eyeglasses, hearing aids, or prostheses, except under the same terms and conditions as such items are provided to the employer’s employees generally.
       6. Repealed by Session Laws 2002-163, s. 2, effective January 1, 2003.
       7. Make any changes that would impose on the employer an undue hardship.
    2. With regard to a place of public accommodations and a covered governmental entity, making reasonable efforts to accommodate the disabling conditions of a person with a disability, including, but not limited to, making facilities accessible to and usable by persons with a disability, redesigning equipment, providing auxiliary aids and services needed to make aurally and visually delivered materials available, as needed, to individuals with hearing or sight impairments, providing mechanical aids or other assistance, or using alternative accessible locations. Reasonable accommodations do not require efforts which would impose an undue hardship on the entity involved.
11. Undue hardship. — A significant difficulty or expense. The following factors shall be considered in determining whether an accommodation would impose an undue hardship:
    1. The nature and cost of the accommodations needed under this Chapter.
    2. The overall financial resources of the particular facility or facilities involved in the provision of the accommodation, the number of persons employed at the facility, the effect on expenses and resources at the facility, and any other impact on the operation of the facility.
    3. The overall effect on the financial resources of the covered entity, the number of persons employed by the covered entity, and the number, type, and location of the covered entity’s facilities.
    4. The type of operations of the covered entity, including the composition, structure, and functions of the workforce of the entity, the geographic separateness of the particular facility to the covered entity, and the administrative or fiscal relationship of the particular facility to the covered entity.

History. 1985, c. 571, s. 1; 1999-160, s. 1; 1999-456, s. 44; 2002-163, s. 2; 2011-94, s. 1; 2015-241, s. 7A.4(hh); 2018-47, s. 14.

Editor’s Note.

Session Laws 2002-163, s. 2, in repealing sub-subdivision (10)a.6, redesignated sub-subdivision (10)a.7 as (10)a.6. The numbering of the sub-subdivisions has been retained pursuant to the direction of the Revisor of Statutes.

Subdivisions (4) and (5) were recodified as subdivisions (7a) and (1), respectively, at the direction of the Revisor of Statutes, in order to order the definitions alphabetically.

The reference in subdivision (4a) to “G.S. 143B-1320” was substituted for “G.S. 143B-1300” to conform to the renumbering of that section at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Effect of Amendments.

Session Laws 2011-94, s. 1, effective May 26, 2011, added subdivision (1); redesignated former subdivisions (1) and (1a) as present subdivisions (1a) and (1b), respectively; in subdivision (7a)a., in the first sentence, substituted “affecting a body system, including, but not limited to” for “affecting one or more of the following body systems” in (i), inserted “lasting six months or fewer, and” in (iii)(C), and added the last sentence; in subdivision (7a)b., in the first sentence, substituted “means functions, including, but not limited to” for “means functions such as” and inserted “eating, sleeping, lifting, bending, standing” and “reading, concentrating, thinking, communicating,” and added the last sentence; added the last paragraph in subdivision (7a); and in subdivision (10)b., inserted “and a covered governmental entity” and “providing auxiliary aids and services needed to make aurally and visually delivered materials available, as needed, to individuals with hearing or sight impairments,” and made a minor grammatical change.

Session Laws 2015-241, s. 7A.4(hh), effective September 18, 2015, substituted “G.S. 143B-1300 (now 143B-1320)” for “G.S. 147-33.81” in subsection (4a).

Session Laws 2018-47, s. 14, effective June 22, 2018, rewrote the introductory language, subdivision (7a), and the introductory language of subdivisions (10) and (10)a; and made stylistic changes throughout the section.

Legal Periodicals.

For note on AIDS and employment discrimination, see 23 Wake Forest L. Rev. 305 (1988).

For note, “North Carolina’s New AIDS Discrimination Protection: Who Do They Think They’re Fooling?,” see 12 Campbell L. Rev. 475 (1990).

For note, “Rights of HIV-Infected Employees and Job Applicants Under North Carolina Law: Lots of Legislative Activity, But Just How Much Protection Does It Afford?,” see 68 N.C. L. Rev. 1193 (1990).

For comment, “HIV, AIDS & Job Discrimination: North Carolina Failure and Federal Redemption,” see 17 Campbell L. Rev. 115 (1995).

CASE NOTES

Construction with Other Law. —

Plaintiff was required to have commenced proceedings under state law before commencing proceedings with the EEOC where the North Carolina Persons With Disabilities Protection Act (NCPDPA) provided plaintiff with a remedy under state law. Metts v. North Carolina Dep't of Revenue, 2000 U.S. Dist. LEXIS 2567 (E.D.N.C. Jan. 5, 2000), aff'd, 230 F.3d 1353, 2000 U.S. App. LEXIS 30890 (4th Cir. 2000).

Person with Disability. —

Employee’s act of completing forms indicating that medications were administered to emotionally disturbed youths before medications were actually administered violated state law and justified termination of employment; employee did not establish that his employment was terminated in violation of the North Carolina Persons with Disabilities Protection Act, G.S. 168A-1 to 168A-12, or the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., because his conduct was related to problems the employee was having with depression, migraines, and a sleeping disorder. Leeks v. Cumberland County Mental Health Developmental Disability & Substance Abuse Facility, 154 N.C. App. 71, 571 S.E.2d 684, 2002 N.C. App. LEXIS 1415 (2002).

Insurance investigator’s wrongful-discharge claim on the basis of disability under North Carolina law failed because he could not show that he was regarded as disabled under North Carolina law since his employer continued to employ him and even increased his salary after it removed large-loss claims from his job responsibilities. Rishel v. Nationwide Mut. Ins. Co., 297 F. Supp. 2d 854, 2003 U.S. Dist. LEXIS 23463 (M.D.N.C. 2003).

Person who had eye disease but whose vision was functioning normally with glasses was not visually disabled within the meaning of G.S. 168-1 and thus was not a “handicapped person” who was granted a right of employment by former G.S. 168-6 . Burgess v. Joseph Schlitz Brewing Co., 298 N.C. 520 , 259 S.E.2d 248, 1979 N.C. LEXIS 1376 (1979).

Impaired Vision Due to Diabetes. —

Appellate court affirmed the finding that an employee with severely impaired vision due to diabetes was a handicapped person, and his firing based on inability to keep up with his case load, was discrimination based on his disability. State Dep't of HHS v. Maxwell, 156 N.C. App. 260, 576 S.E.2d 688, 2003 N.C. App. LEXIS 131 (2003).

Plaintiff’s rhinitis was not a “physical impairment” under this section because his medical records established that his condition was temporary; nor did his condition render him “handicapped” under this section. Simmons v. Chemol Corp., 137 N.C. App. 319, 528 S.E.2d 368, 2000 N.C. App. LEXIS 311 (2000).

Lower Back Pain. —

Where plaintiff experienced some pain in her lower back upon repetitive “twisting, turning, reaching, stooping, bending,” her physical impairment did not limit a “major life activity” so as to bring her under the purview of subdivision (4)(i) of this section. Gravitte v. Mitsubishi Semiconductor Am., Inc., 109 N.C. App. 466, 428 S.E.2d 254, 1993 N.C. App. LEXIS 358 (1993).

State personnel commission’s [State Human Resources Commission’s] determination that state employee who had severe asthma was not “qualified person with a disability” was not supported by substantial evidence where the fact that her solution for a clean work environment was a job transfer did not support a conclusion that employee did not properly prove that she could perform her job with reasonable accommodations. Campbell v. N.C. DOT - DMV, 155 N.C. App. 652, 575 S.E.2d 54, 2003 N.C. App. LEXIS 24 (2003).

Duty of Employer to Make Accommodations. —

Because petitioner was not a “qualified handicapped person,” respondent was under no duty to make accommodations for petitioner’s physical condition. White v. North Carolina Dep't of Cor., 117 N.C. App. 521, 451 S.E.2d 876, 1995 N.C. App. LEXIS 13 (1995).

A discussion of reasonable accommodations under this section is irrelevant where plaintiff’s claim is based on wrongful discharge in violation of public policy under G.S. 143-422.2 . Simmons v. Chemol Corp., 137 N.C. App. 319, 528 S.E.2d 368, 2000 N.C. App. LEXIS 311 (2000).

§ 168A-4. Reasonable accommodation duties.

1. A qualified person with a disability requesting a reasonable accommodation must apprise the employer, employment agency, labor organization, place of public accommodation, or covered governmental entity of his or her disabling condition, submit any necessary medical documentation, make suggestions for such possible accommodations as are known to such person with a disability, and cooperate in any ensuing discussion and evaluation aimed at determining possible or feasible accommodations.
2. Once a qualified person with a disability has requested an accommodation, or if a potential accommodation is obvious in the circumstances, an employer, employment agency, labor organization, place of public accommodation, or covered governmental entity shall investigate whether there are reasonable accommodations that can be made and make reasonable accommodations as defined in G.S. 168A-3(10) .

History. 1985, c. 571, s. 1; 1999-160, s. 1; 2011-94, s. 2.

Effect of Amendments.

Session Laws 2011-94, s. 2, effective May 26, 2011, in subsections (a) and (b), inserted “or covered governmental entity” and made a minor stylistic change.

CASE NOTES

Evidence Insufficient to Support Finding of Reasonable Accommodation. —

State personnel commission’s [State Human Resources Commission’s] determination that state employers offers to accommodate employee with severe asthma, which included providing her with a facemask and removing her if painting was to occur in her area, was not supported by substantial evidence in light of the severity of the employee’s last asthma attack, which nearly caused her death and required five days of hospitalization. Campbell v. N.C. DOT - DMV, 155 N.C. App. 652, 575 S.E.2d 54, 2003 N.C. App. LEXIS 24 (2003).

§ 168A-5. Discrimination in employment; exemptions.

1. Discriminatory practices. —  It is a discriminatory practice for:
   1. An employer to fail to hire or consider for employment or promotion, to discharge, or otherwise to discriminate against a qualified person with a disability on the basis of a disabling condition with respect to compensation or the terms, conditions, or privileges of employment;
   2. An employment agency to fail or refuse to refer for employment, or otherwise to discriminate against a qualified person with a disability on the basis of a disabling condition;
   3. A person controlling an apprenticeship, on-the-job, or other training or retraining program, to discriminate against a qualified person with a disability on the basis of a disabling condition in admission to, or employment in, a program established to provide apprenticeship or other training;
   4. An employer or employment agency to require an applicant to identify himself as a person with a disability prior to a conditional offer of employment; however, any employer may invite an applicant to identify himself as a person with a disability in order to act affirmatively on his behalf; or
   5. An employer, labor organization, or employment agency to fail to meet the duties imposed on them by G.S. 168A-4(b) .
2. Exemptions. —  It is not a discriminatory action for an employer, employment agency, or labor organization:
   1. To make an employment decision on the basis of State and federal laws or regulations imposing physical, health, mental or psychological job requirements;
   2. To fail to hire, transfer or promote, or to discharge a person with a disability who has a history of drug abuse or who is unlawfully using drugs where the job in question is in an establishment that manufactures, distributes, dispenses, conducts research, stores, sells or otherwise handles controlled substances regulated by the North Carolina Controlled Substances Act, G.S. 90-86 et seq.;
   3. To fail to hire, transfer, or promote, or to discharge a person with a disability because the person has a communicable disease which would disqualify a person without a disability from similar employment;
   4. To fail to make reasonable accommodations where the person with a disability has not fulfilled the duties imposed by G.S. 168A-4 ;
   5. To inquire whether a person has the ability to perform the duties of the job in question;
   6. To require or request a person to undergo a medical examination, which may include a medical history, for the purpose of determining the person’s ability or capacity to safely and satisfactorily perform the duties of available jobs for which the person is otherwise qualified, or to aid in determining possible accommodations for a disabling condition, provided (i) that an offer of employment has been made on the condition that the person meets the physical and mental requirements of the job with or without reasonable accommodation; and (ii) that the examination, unless limited to determining the extent to which a person’s disabling condition would interfere with his or her ability or capacity to safely and satisfactorily perform the duties of the job in question or the possible accommodations for a disabling condition, is required of all persons conditionally offered employment for the same position regardless of disabling condition;
   7. To obtain medical information or to require or request a medical examination where such information or examination is for the purpose of establishing an employee health record;
   8. To administer pre-employment tests, provided that the tests (i) measure only job-related abilities, (ii) are required of all applicants for the same position unless such tests are limited to determining the extent to which the person’s disabling condition would interfere with his or her ability to safely and satisfactorily perform the duties of the job in question or the possible accommodations for the job in question, and (iii) accurately measure the applicant’s aptitude, achievement level, or whatever factors they purport to measure rather than reflecting the impaired sensory, manual or speaking skills of a person with a disability except when those skills are requirements of the job in question, provided that an employer shall not be liable for improper testing which was administered by a State agency acting as an employment agency.

History. 1985, c. 571, s. 1; 1999-160, s. 1.

Legal Periodicals.

For note on AIDS and employment discrimination, see 23 Wake Forest L. Rev. 305 (1988).

For comment, “HIV, AIDS & Job Discrimination: North Carolina Failure and Federal Redemption,” see 17 Campbell L. Rev. 115 (1995).

For article, “When the Duty to Provide a Reasonable Accommodation Seems Unreasonable: Accommodating and Managing Employees with Episodic Impairments or Impairments in Remission Under the ADA Amendments Act of 2008,” see 32 N.C. Cent. L. Rev. 1 (2009).

CASE NOTES

Claim based on former G.S. 168-6 was not subject to dismissal under former G.S. 1A-1 , Rule 12 (b)(6), notwithstanding the repeal of G.S. 168-6 , where it was clear that the complaint was sufficient to put the defendants on notice of the events or transactions which produced the claim, and even though the General Assembly did not include a saving clause in the repeal of G.S. 168-6, the same remedy was immediately available to the plaintiff for the same injury in the new act, without any intervening period in which the plaintiff’s claim was without legal redress. It would be a grave injustice to foreclose the remedy of the plaintiff and other similarly situated persons when the General Assembly so clearly did not intend this particular cause of action to expire. Buchanan v. Hunter Douglas, Inc., 87 N.C. App. 84, 359 S.E.2d 271, 1987 N.C. App. LEXIS 2958 (1987) (decided under former G.S. 168-6).

Failure to Rehire Actionable. —

An employee had an actionable claim for employment discrimination based on an employer’s failure to rehire solely for unlawful motives. Johnson v. Bd. of Trs. of Durham Tech. Cmty. College, 157 N.C. App. 38, 577 S.E.2d 670, 2003 N.C. App. LEXIS 370 (2003).

Construction with Americans with Disabilities Act. —

The standards under this act are narrower than under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101-12213, and if a person is not disabled for the purposes of the ADA, she similarly is not disabled for the purposes of this act. Williams v. Channel Master Satellite Sys., 101 F.3d 346, 1996 U.S. App. LEXIS 30888 (4th Cir. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137 L. Ed. 2d 1048, 1997 U.S. LEXIS 3270 (1997).

§ 168A-6. Discrimination in public accommodations.

It is a discriminatory practice for a person to deny a qualified person with a disability the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of a disabling condition. In the area of structural modifications, this section may be satisfied by compliance with the North Carolina Building Code.

History. 1985, c. 571, s. 1; 1999-160, s. 1.

§ 168A-7. Discrimination in public service.

1. It is a discriminatory practice for a covered governmental entity to exclude a qualified person with a disability from participation in or deny the benefits of services, programs, or activities because of a disability or to refuse to provide reasonable accommodations, including auxiliary aids and services necessary for a known qualified person with a disability to use or benefit from existing public services operated by such entity; provided that the accommodations do not impose an undue hardship on the entity involved. This subsection includes equivalent services provided via information technology.
2. A covered governmental entity shall administer its services, programs, and activities in the most integrated setting appropriate to the needs of persons with disabilities.

History. 1985, c. 571, s. 1; 1999-160, s. 1; 2002-163, s. 3; 2011-94, s. 3.

Effect of Amendments.

Session Laws 2011-94, s. 3, effective May 26, 2011, in subsection (a), substituted “for a covered governmental entity to exclude a qualified person with a disability from participation in or deny the benefits of services, programs, or activities because of a disability or to refuse” for “for a State department, institution, or agency, or any political subdivision of the State or any person that contracts with the above for the delivery of public services including but not limited to education, health, social services, recreation, and rehabilitation to refuse,” “accommodations, including auxiliary aids and services” for “aids and adaptations,” and “accommodations do not impose an undue hardship” for “aids and adaptations do not impose an undue hardship”; and in subsection (b), substituted “A covered governmental entity” for “A State department, institution, or agency, any political subdivision of the State, and any person that contracts with these entities for the delivery of public services” and made a minor grammatical change.

§ 168A-8. Discrimination in public transportation.

It is a discriminatory practice for any transportation system providing transportation to the general public to fail to ensure access to and the benefits of public transportation to a qualified person with a disability; however, public transportation systems may use alternative methods to provide transportation for persons with a disability, as long as persons with a disability are offered transportation that, in relation to the transportation offered to other persons, is:

1. In a similar geographic area of operation;
2. For fares not greater in price;
3. With similar or no restrictions as to trip purpose;
4. With reasonable response time; and
5. With similar hours of operations.

   Nothing in this section shall apply to privately owned, local transit or transportation systems existing on October 1, 1985, or to interstate air carriers complying with federal regulations promulgated by the Civil Aeronautics Board and administered by the United States Department of Transportation.

History. 1985, c. 571, s. 1; 1999-160, s. 1.

§ 168A-9. Affirmative defenses.

Any employer may assert affirmative defenses in any action brought under this Chapter. This section shall not create any inference that an employment action which is not listed as an affirmative defense is therefore, by implication, a discriminatory practice, so long as the employment action is not otherwise prohibited by this Chapter. The following is a non-exclusive list of affirmative defenses:

1. The failure of the qualified person with a disability to comply with or meet the employer’s work rules and policies or performance standards, absent a reasonable accommodation excusing noncompliance, provided that the person is not held to rules or standards different from other employees without a disability similarly employed;
2. The excessive, willful or habitual tardiness or absence of a qualified person with a disability, absent a reasonable accommodation that allows for flexible working hours, provided that the standard used by the employer in determining whether such tardiness or absence is excessive is the same as that applied by the employer to employees without a disability similarly employed; or
3. A bona fide seniority or merit system, or a system which measures earnings by quantity or quality of work or production, or differences in location of employment.

History. 1985, c. 571, s. 1; 1999-160, s. 1; 2011-94, s. 4.

Effect of Amendments.

Session Laws 2011-94, s. 4, effective May 26, 2011, in subdivision (1), inserted “absent a reasonable accommodation excusing noncompliance” and substituted “the person” for “such person”; and in subdivision (2), inserted “absent a reasonable accommodation that allows for flexible working hours.”

Legal Periodicals.

For note on AIDS and employment discrimination, see 23 Wake Forest L. Rev. 305 (1988).

For article, “North Carolina Employment Law After Coman: Reaffirming Basic Rights in the Workplace,” see 24 Wake Forest L. Rev. 905 (1989).

§ 168A-10. Retaliation prohibited.

1. No employer shall discharge, expel, refuse to hire, or otherwise discriminate against any person or applicant for employment, nor shall any employment agency discriminate against any person, nor shall a labor organization discriminate against any member or applicant for membership because the person has opposed any practice made a discriminatory practice by this Chapter or because the person has testified, assisted or participated in any manner in proceedings under this Chapter.
2. No entity or person covered under this Chapter shall retaliate against or coerce, intimidate, threaten, or interfere with a person who exercises rights under this Chapter or assists a person in exercising the person’s rights under this Chapter.

History. 1985, c. 571, s. 1; 2011-94, s. 5.

Effect of Amendments.

Session Laws 2011-94, s. 5, effective May 26, 2011, added the subsection (a) designation, and therein made minor stylistic changes; and added subsection (b).

§ 168A-10.1. Dispute resolution in public services discrimination cases.

The North Carolina Office on the Americans with Disabilities Act shall adopt rules to provide a consistent and comprehensive mechanism for accommodating requests regarding accessibility to public services, and shall adopt dispute resolution procedures to govern responsiveness to those requests. This section does not authorize the North Carolina Office on the Americans with Disabilities Act to adopt rules or procedures that apply to the resolution of matters constituting grounds for a contested case under Chapter 126 of the General Statutes.

History. 2002-163, s. 4.

§ 168A-11. Civil action.

1. A person with a disability aggrieved by a discriminatory practice prohibited by G.S. 168A-5 through 168A-8, or a person aggrieved by conduct prohibited by G.S. 168A-10 , may bring a civil action to enforce rights granted or protected by this Chapter against any person described in G.S. 168A-5 through 168A-8 or in G.S. 168A-10 who is alleged to have committed such practices or engaged in such conduct. The action shall be commenced in superior court in the county where the alleged discriminatory practice or prohibited conduct occurred or where the plaintiff or defendant resides. Such action shall be tried to the court without a jury.
2. Any relief granted by the court shall be limited to declaratory and injunctive relief, including orders to hire or reinstate an aggrieved person or admit such person to a labor organization. In a civil action brought to enforce provisions of this Chapter relating to employment, the court may award back pay. Any such back pay liability shall not accrue from a date more than two years prior to the filing of an action under this Chapter. Interim earnings or amounts earnable with reasonable diligence by the aggrieved person shall operate to reduce the back pay otherwise allowable.
3. No court shall have jurisdiction over an action filed under this Chapter where the plaintiff has commenced federal judicial or administrative proceedings under Section 503 or Section 504 of the Vocational Rehabilitation Act of 1973, 29 U.S.C. §§ 793 and 794, as amended, or federal regulations promulgated under those sections; or under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., as amended, or federal regulations promulgated under that Act, involving or arising out of the facts and circumstances involved in the alleged discriminatory practice under this Chapter. If such proceedings are commenced after a civil action has been commenced under this Chapter, the State court’s jurisdiction over the civil action shall end and the action shall be forthwith dismissed.
4. In any civil action brought under this Chapter, the court, in its discretion, may award reasonable attorney’s fees to the substantially prevailing party as part of costs.

History. 1985, c. 571, s. 1; 1999-160, s. 1.

CASE NOTES

Claim based on former G.S. 168-6 was not subject to dismissal under G.S. 1A-1 , Rule 12 (b)(6), notwithstanding the repeal of G.S. 168-6 , where it was clear that the complaint was sufficient to put the defendants on notice of the events or transactions which produced the claim, and even though the General Assembly did not include a saving clause in the repeal of G.S. 168-6, the same remedy was immediately available to the plaintiff for the same injury in the new act, without any intervening period in which the plaintiff’s claim was without legal redress. It would be a grave injustice to foreclose the remedy of the plaintiff and other similarly situated persons when the General Assembly so clearly did not intend this particular cause of action to expire. Buchanan v. Hunter Douglas, Inc., 87 N.C. App. 84, 359 S.E.2d 271, 1987 N.C. App. LEXIS 2958 (1987) (decided under former G.S. 168-6).

Relation to Federal Laws. —

Where plaintiff student’s claims against defendant school district under the North Carolina Persons with Disabilities Protection Act, G.S. 168A-1 et seq., arose from the same facts and circumstances as the Americans with Disabilities Act of 1990, 42 U.S.C.S. § 12181 et seq., and the Rehabilitation Act of 1973 claims, which had failed, the student’s claims under G.S. 168A-1 1(a) also failed. Cone ex rel Cone v. Randolph County Sch., 302 F. Supp. 2d 500, 2004 U.S. Dist. LEXIS 1727 (M.D.N.C.), aff'd, 103 Fed. Appx. 731, 2004 U.S. App. LEXIS 14682 (4th Cir. 2004).

G.S. 168A-11(c) required dismissal of the pharmacist’s claim under the Persons with Disabilities Protection Act because the pharmacist had already commenced a federal administrative proceeding when he filed a claim with the EEOC. Bowling v. Margaret R. Pardee Mem'l Hosp., 179 N.C. App. 815, 635 S.E.2d 624, 2006 N.C. App. LEXIS 2115 (2006).

Status Essential to Cause of Action. —

In order to state a cause of action for violation of the right to employment granted in former G.S. 168-6 , plaintiff was required to establish that he was a “handicapped person” to whom such rights are granted. Burgess v. Joseph Schlitz Brewing Co., 298 N.C. 520 , 259 S.E.2d 248, 1979 N.C. LEXIS 1376 (1979).

When Judgment Denied Conduct of Hearing on Remand Ordered. —

Where judgment should have been entered for an employee, on remand the trial court was to conduct a hearing on damages, costs and attorney’s fees that should be awarded to the employee under G.S. 168A-11 and caselaw. Johnson v. Bd. of Trs. of Durham Tech. Cmty. College, 157 N.C. App. 38, 577 S.E.2d 670, 2003 N.C. App. LEXIS 370 (2003).

§ 168A-12. Statute of limitations.

A civil action regarding employment discrimination brought pursuant to this Chapter shall be commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct. A civil action brought pursuant to this Chapter regarding any other complaint of discrimination shall be commenced within two years after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct.

History. 1985, c. 571, s. 1; 1999-160, s. 1.

CASE NOTES

Action Under Federal Rehabilitation Act. —

When a state has enacted a counterpart to the federal Rehabilitation Act, the statute of limitations of the state counterpart and not the personal injury statute is most analogous and therefore, the most appropriate limitations period. Because this Act is the most analogous statute to the Rehabilitation Act, an action under the federal act must be brought within this section’s 180-day period. McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 1994 U.S. App. LEXIS 25009 (4th Cir. 1994), cert. denied, 513 U.S. 1151, 115 S. Ct. 1101, 130 L. Ed. 2d 1069, 1995 U.S. LEXIS 1056 (1995).

Suit Under Americans with Disabilities Act. —

A visually impaired man’s discrimination suit was barred by the 180-day limitations period of this section, where he alleged that a judge barred his companion dog from the courtroom in violation of G.S. 168-4.2 and federal law. Stroud v. Harrison, 131 N.C. App. 480, 508 S.E.2d 527, 1998 N.C. App. LEXIS 1386 (1998).

Where a former graduate student sued a state university and several of its officers (defendants) alleging that she was dismissed from the program due to her disability in violation of the ADA, the Rehabilitation Act, 29 U.S.C.S. § 701 et seq., and common law, dismissal based on the statute of limitations was not warranted because defendants did not show that the student’s allegations of disability would have been sufficient to state a claim before enactment of the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553, and thus application of a two-year limitations period under North Carolina law, rather than a four-year limitation period under 28 U.S.C.S. § 1658, was not warranted. Dickinson v. Univ. of N.C. 91 F. Supp. 3d 755, 2015 U.S. Dist. LEXIS 31721 (M.D.N.C. 2015).

Claim Barred. —

Where former employee was officially aware of his termination on January 7, 1993, when he received COBRA eligibility form, but did not file suit until January 31, 1994, his claim was time-barred; he should have filed action within 180 days of January 7, 1993, in order to seek relief. Gower v. Wrenn Handling, Inc., 892 F. Supp. 724, 1995 U.S. Dist. LEXIS 4014 (M.D.N.C. 1995).

Because the employee did not file his claim under the NCPDPA until 273 days after the last alleged discriminatory act, the employee’s claim was time-barred by the 180 day statute of limitations set forth in G.S. 168A-12 . Gottesman v. J. H. Batten, Inc., 286 F. Supp. 2d 604, 2003 U.S. Dist. LEXIS 18228 (M.D.N.C. 2003).