§ 168A-5. Discrimination in employment; exemptions.
§ 168A‑5. Discrimination in employment; exemptions.
(a) Discriminatory practices. It is a discriminatory practicefor:
(1) An employer to fail to hire or consider for employment orpromotion, to discharge, or otherwise to discriminate against a qualifiedperson with a disability on the basis of a disabling condition with respect tocompensation or the terms, conditions, or privileges of employment;
(2) An employment agency to fail or refuse to refer foremployment, or otherwise to discriminate against a qualified person with adisability 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 qualifiedperson with a disability on the basis of a disabling condition in admission to,or employment in, a program established to provide apprenticeship or othertraining;
(4) An employer or employment agency to require an applicant toidentify himself as a person with a disability prior to a conditional offer ofemployment; however, any employer may invite an applicant to identify himselfas a person with a disability in order to act affirmatively on his behalf; or
(5) An employer, labor organization, or employment agency tofail to meet the duties imposed on them by G.S. 168A‑4(b).
(b) Exemptions. It is not a discriminatory action for anemployer, employment agency, or labor organization:
(1) To make an employment decision on the basis of State andfederal laws or regulations imposing physical, health, mental or psychologicaljob requirements;
(2) To fail to hire, transfer or promote, or to discharge aperson with a disability who has a history of drug abuse or who is unlawfullyusing drugs where the job in question is in an establishment that manufactures,distributes, dispenses, conducts research, stores, sells or otherwise handlescontrolled substances regulated by the North Carolina Controlled SubstancesAct, G.S. 90‑86 et seq.;
(3) To fail to hire, transfer, or promote, or to discharge aperson with a disability because the person has a communicable disease whichwould disqualify a person without a disability from similar employment;
(4) To fail to make reasonable accommodations where the personwith a disability has not fulfilled the duties imposed by G.S. 168A‑4;
(5) To inquire whether a person has the ability to perform theduties of the job in question;
(6) To require or request a person to undergo a medicalexamination, which may include a medical history, for the purpose ofdetermining the person's ability or capacity to safely and satisfactorilyperform the duties of available jobs for which the person is otherwisequalified, or to aid in determining possible accommodations for a disablingcondition, provided (i) that an offer of employment has been made on thecondition that the person meets the physical and mental requirements of the jobwith or without reasonable accommodation; and (ii) that the examination, unlesslimited to determining the extent to which a person's disabling condition wouldinterfere with his or her ability or capacity to safely and satisfactorilyperform the duties of the job in question or the possible accommodations for adisabling condition, is required of all persons conditionally offeredemployment for the same position regardless of disabling condition;
(7) To obtain medical information or to require or request amedical examination where such information or examination is for the purpose ofestablishing an employee health record;
(8) To administer pre‑employment tests, provided that thetests (i) measure only job‑related abilities, (ii) are required of allapplicants for the same position unless such tests are limited to determiningthe extent to which the person's disabling condition would interfere with hisor her ability to safely and satisfactorily perform the duties of the job inquestion or the possible accommodations for the job in question, and (iii)accurately measure the applicant's aptitude, achievement level, or whateverfactors they purport to measure rather than reflecting the impaired sensory,manual or speaking skills of a person with a disability except when thoseskills are requirements of the job in question, provided that an employer shallnot be liable for improper testing which was administered by a State agencyacting as an employment agency. (1985, c. 571, s. 1; 1999‑160, s. 1.)