CHAPTER 337

FORMERLY

HOUSE BILL NO. 136

AS AMENDED BY HOUSE AMENDMENT NO. 1, HOUSE AMENDMENT NO. 1

TO

HOUSE AMENDMENT NO. I AND HOUSE AMENDMENT NOS. 2 AND 3

AND SENATE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 7, TITLE 19, DELAWARE CODE, RELATING TO PROHIBITING DISCRIMINATORY PRACTICES IN THE EMPLOYMENT OF THE HANDICAPPED.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 7, Title 19, of the Delaware Code by redesignating Subchapter III as Subchapter IV and redesignating Sections 719, 720, 721, 722, 723, and 724, as they appear therein, as Sections 730, 731, 732, 733, 734, and 735 respectively.

Section 2. Amend Chapter 7, Title 19, of the Delaware Code by adding thereto a new

Subchapter III, which shall read as follows:

"SUBCHAPTER III. HANDICAPPED PERSONS EMPLOYMENT PROTECTIONS

§720. Short title.

This Subchapter may be cited as the "Handicapped Persons Employment Protections Act."

§721. Statement of purpose and interpretation.

(a) This Subchapter is Intended to encourage and enable qualified handicapped persons to engage in remunerative employment which is sought by them in good faith. The General Assembly finds that the practice of employment discrimination based on handicap is contrary to the public Interest and the principles of freedom and equality of opportunity. Such discrimination also deprives many handicapped persons of earnings
necessary to maintain or contribute to a decent standard of living and necessitates their resort to public support.

(b) This Subchapter shall be liberally construed to promote the full employment opportunity of qualified handicapped persons who seek such opportunity in good faith. Furthermore, in defining the scope or extent of any duty Imposed by this Subchapter, including the duty of reasonable accommodation, higher or more comprehensive obligations established by otherwise applicable federal, state, or local enactments may be

considered. Nothing in this Subchapter, however, shall be construed to impose liability upon any employer for selecting, hiring, or promoting in good faith a non-handicapped applicant or employee who Is better qualified than another applicant or employee who is a qualified handicapped person.

§722. Definitions.

As used in this Subchapter, unless the context otherwise requires:

(a) the terms "person", "employee", "employment agency", "labor organization", "Secretary", and "Review Board" are defined in §710 of this Title.

(a) "Employer" means the State or any political subdivision or board,
department, commission or school district thereof and any person employing, within the State, twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.

(b) "Handicap" means any condition or characteristic that renders a person a handicapped person as defined in Subsection (d) of this Section.

(c) "Handicapped person" means any person who:

(I) has a physical or mental impairment which substantially limits one or more major life activities,

(2) has a record of such an Impairment; or

(3) Is regarded as having such an impairment. As used In this Subsection, the term:

a. "Major life activities" means functions such as, but not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

b. Has a record of such impairment" means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits major life activities.

a. Is regarded as having an impairment" means (I) has a physical or
mental impairment that does not substantially limit major life activities but that Is treated as constituting such a limitation; (Ii) has a physical or mental impairment that substantially limits major life activities
because of the attitudes of others; or (iii) does not have a physical or mental impairment but Is treated as having such an impairment. This term
is intended to be interpreted In conformity with the federal Rehabilitation Act of 1973, as amended, and, consistent with §728 of this Subchapter, shall be further defined by the Secretary through regulation to clarify and delimit its scope following adequate public notice and comment.
Enforcement of this Subchapter by persons qualifying for protection solely under §722(d)(3) shall be deferred until the issuance of the Secretary's final regulation.

a. "Substantially limits" means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining, or advancing In employment because of a handicap.

a. "Handicapped person" shall not Include any individual who Is an
alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job In question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.

(e) "Qualified handicapped person" means a handicapped person who, with or without reasonable accommodation, can satisfactorily perform the essential functions of the job In question,

(1) provided that the handicapped person shall not be held to standards of performance of essential job functions different from other employees similarly employed, and

(2) further provided that the handicap does not create an unreasonable and demonstrable risk to the safety or health of the handicapped person, other employees, the employer's customers, or the public.

(f) "Reasonable accommodation" means making reasonab'e changes In the work place, including, bu' not limited to, making facilities accessible, modifying equipment and providing mechanical aids to assist in operating equipment, or making reasonable changes In the schedules or duties of the job In question that would accommodate the known handicaps of a handicapped person by enabling such person to satisfactorily perform the essential duties of the job In question; provided that "reasonable accommodation", unless otherwise p.escribed by applicable law, does not require that an employer:

(1) 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; or

(2) reassign duties of the job In question to other employees without assigning to the handicapped employee duties that would compensate for those reassigned; or

(3) reassign duties of the job In question to one or more other employees where such reassignment would significantly Increase the skill, effort or responsibility required of such other employee or employees from that required prior to the change In duties; or

(1) make changes to accommodate a handicapped person where:

a. for a new employee the cost of such changes would exceed five percent of the annual salary or annualized hourly wage of the job in question; or

b. for an existing employee the total cost of the changes would bring the total cost of changes made to accommodate the employee's handicaps since the employee's initial acceptance of employment with the employer to greater than five percent of the employee's current salary or current annualized hourly wage; or

(5) make any changes that would impose on the employer an undue hardship, provided that the costs of less than five percent of an employee's salary or annualized wage as determined In Subsection (4) above shall be presumed not to be an undue hardship.

§723. Reasonable accommodation duties.

(a) A qualified handicapped person requesting a reasonable accommodation in a good faith effort to seek an employment opportunity must apprise the employer, employment agency, or labor organization of his handicap, submit any necessary medical
documentation, make suggestions for such possible accommodations as are known to such handicapped person, and cooperate in any ensuing discussion and evaluation aimed at determining possible or feasible accommodations.

(b) Once a qualified handicapped person has requested an accommodation, or if a potential accommodation is obvious in the circumstances, an employer, employment agency, or labor organization shall investigate whether there are reasonable accommodations that can be made and make reasonable accommodations as defined in §722(f) of this Title. If affirmatively requested in writing by the employer, employment agency, or labor organization, the handicapped person may be required to accept the employment opportunity in writing as a precondition to the initiation of such investigation.

§724. Unlawful employment practices.

(a) Employer prohibitions.

It shall be an unlawful employment practice for an employer because of handicap to:

(I) fall or refuse to hire, recruit, or promote a qualified handicapped person who seeks such an employment opportunity in good faith;

(2) discharge or otherwise discriminate against qualified handicapped persons with respect to compensation, terms, conditions, or privileges of employment;

(3) limit, segregate, or classify an employee or applicant for employment In a way which deprives or tends to deprive a qualified handicapped person of employment opportunities or otherwise adversely affects his or her status as an employee;

(4) fall or refuse to hire, recruit, or promote a qualified handicapped person who seeks such an employment opportunity in good faith on the basis of physical, mental or other examinations that are not directly related to the essential functions of the job;

(5) discharge or take other discriminatory action against a qualified handicapped person on the basis of physical, mental or other examinations that are not directly related to the essential functions of the job.

(b) Employment agency prohibitions.

It shall be an unlawful employment practice for an employment agency to refuse or fall to accept, register, classify properly, refer for employment, or otherwise to discriminate against a qualified handicapped person because of handicap.

(c) Labor organization prohibitions.

It shall be an unlawful employment practice for a labor organization because of handicap to:

(2) limit, segregate or classify its membership or to classify or fall or refuse to refer for employment any qualified handicapped person in any way which would deprive or tend to deprive any such person of employment opportunities or would limit such employment opportunities or otherwise adversely affect his status as an employee or an applicant for employment; or

(1) cause or attempt to cause an employer to discriminate against a qualified handicapped person in violation of this Section;

(1) fail to cooperate with an employer's efforts to provide reasonable accommodation to a qualified handicapped person to the extent it controls job structure and other employment conditions.

(d) Training program prohibitions.

It shall be an unlawful employment practice for any employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any qualified handicapped person because of handicap In admission to or employment in any program established to provide apprenticeship or other training.

(e) Other prohibitions.

(1) It shall be an unlawful employment practice for an employer or employment agency to require an applicant to identify himself as handicapped prior to a conditional offer of employment; however, any employer may invite an applicant to identify himself as handicapped In order to act affirmatively on his behalf.

(2) It shall be an unlawful employment practice for an employer, labor organization, or employment agency to fall to meet the duties imposed on them by §723(b) of this Title.

(f) Exceptions.

It shall not be considered a violation of this Section 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, mental, health or educational job requirements;

(2) to make pre-employment or pre-promotional inquiries which are directly related to an applicant's ability to perform essential job-related functions;

(3) to terminate or change the employment status of any person who is unable to adequately perform his or her essential job functions, or to discriminate among persons on the basis of competence or performance In essential job functions If the employer, employment agency, or labor organization has complied with §723(b) of this Title;

(4) 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 handicap, provided

(a) 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

(b) that the examination, unless limited to determining the extent to which a person's handicap 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 handicap, Is required of all persons offered employment for the same position regardless of handicap;

(5) to administer pre-employment tests, provided that the tests (a) measure only job-related abilities.

(0) are required of all applicants for the same position unless such tests are limited to determining the extent to which a person's handicapping condition would Interfere with his or her ability to safely and satisfactorily perform the duties of the job In question or the possible accommodation of the job In question, and

(c) accurately measure the applicant's aptitude, achievement level, or whatever factors they purport to measure rather than reflecting the handicapped person's Impaired sensory, manual or speaking skills except when those skills are requirements of the job In question.

§725. Affirmative defenses.

In defense of any action to enforce §724 of this Title a respondent may assert affirmative defenses, including, but not limited to, the following:

(a) Despite reasonable accommodation, a handicapped person cannot satisfactorily perform the essential functions of the job in question;

(a) Employment of a handicapped person creates an unreasonable and demonstrable risk to the safety or health of the handicapped person, other employees, the employer's customers, or the public;

(a) Any of the enumerated exceptions to reasonable accommodation set forth In §722(f), including undue hardship, are applicable.

§726. Retaliation prohibited.

It shall be an unlawful employment practice for any employer to discharge, refuse to hire, or otherwise discriminate against any person or applicant for employment, or any employment agency to discriminate against any person, or any labor organization to discriminate against any member or applicant for membership because such person has opposed any practice prohibited by this Subchapter or because he has testified, assisted or participated In any manner In proceedings to enforce the provisions of this Subchapter.

§727. Enforcement provisions and election remedies.

(a) Enforcement of this Subchapter shall be In accordance with the procedures for enforcement of rights secured by Subchapter II of this Chapter.

(b) Enforcement of this Subchapter as authorized by Title 19 Del.0 §712 shalt be barred If the complainant has commenced federal judicial or administrative proceedings under Sections 503 or 504 of the Rehabilitation Act of 1973, as amended, or regulations promulgated thereunder, based upon substantially common facts. If such federal
proceedings are commenced subsequent to the filing of a charge pursuant to this Subchapter, any administrative and judicial proceedings authorized by §712 shall be dismissed upon application of the respondent. Provided, however, that If complainant's
federal action Is dismissed on jurisdictional grounds, including the lack of federal contractor status or federal program funding, the Secretary Is authorized to accept a charge under §712 and waive the limitations period of §712(d) upon a finding that the complainant commenced his federal action In good faith.

§728. Regulations.

The Secretary shall adopt such rules and regulations as may be necessary and proper to implement the policies of this Subchapter."

Section 3. Amend §712(a), Chapter 7, Title 19, of the Delaware Code by striking the

phrase "§7Il of this Title" and substituting In lieu thereof the phrase and punctuation "§§711, 723, and 725 of this Title.".

section 4. Amend §712(j), Chapter 7, Title 19, of the Delaware Code by striking the phrase "this Subchapter" and substituting In lieu thereof the phrase "Subchapters Il or III of this Title".

Section 5. Amend §713(a), Chapter 7, Title 19, of the Delaware Code by striking the phrase "this Subchapter" and substituting In lieu thereof the phrase "subchapters II or III of this Title".

Section 6. Amend §714, Chapti ,, Title 19, of the Delaware Code, by striking the phrase this Subchapter" wherever it appea•; therein and substituting in lieu thereof the phrase "Subchapters II or III of this Title".

Section 7. Amend §715(d), Chapter 7, Title 19, of the Delaware Code by striking the phrase this Subchapter" and substituting in lieu thereof the phrase "Subchapters II or III of this Title".

Section 8. Amend §716(a), Chapte- 7, Title 19, of the Delaware Code, by striking the phrase "this Subchapter" and substituting in lieu thereof the phrase "Subchapters II and III of this Title".

Section 9. Amend 5717, Chapter 7, Title 19, of the Delaware Code by striking the phrase "this Subchapter" and substituting in lieu thereof "Subchapters II or III of this Title".

Section 10. Amend 5718, Chapter 7, Title 19, of the Delaware Code, by striking the phrase "this Subchapter" and substituting in lieu thereof the phrase and punctuation "subchapters II and III of this Title.".

Section 11. Severability.

If any provision of this Act or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

Section 12. Effective date.

This Act shall become effective 120 days after enactment.

Approved July 11, 1988.