HomeMy WebLinkAboutAgenda - 06-06-1994-IX-C i
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ORANGE COUNTY
BOARD OF COMMISSIONERS
Action Agenda
Item No. XL__e_
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 6, 1994
SUBJECT: Revised Civil Rights Ordinance and Accompanying
Recommendations from the Human Relations Commission
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DEPARTMENT: PUBLIC HEARING: Yes x No
Human Relations Commission
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ATTACHMENT(S) : INFORMATION CONTACT:
Revised Ordinance Lucy Lewis, ext 2251
TELEPHONE NUMBER:
Hillsborough - 732-8181
Chapel Hill - 968-4501
Durham - 688-7331
Mebane - 227-2031
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PURPOSE: To approve a revised civil rights ordinance and provide
accompanying recommendations from the Human Relations Commission
to the Board of County Commissioners.
BACKGROUND: The Board of County Commissioners voted to adopt
a civil rights ordinance on December 21, 1993, contingent on
support from a significant number of the municipalities. The
Chapel Hill Town Council held a public hearing on March 2, 1994
and unanimously voted to support the ordinance. The Carrboro
Board of Aldermen held a public hearing on May 10, 1994 and
unanimously voted to support the ordinance. Both bodies also
voted to urge the Board of County Commissioners to seek new
enabling legislation that would include affectional preference as
a protected class. The Hillsborough Town Board has indicated
that they plan to hold a public hearing sometime after June,
1994.
Staff has developed a revised draft of the ordinance based on
comments from the Chapel Hill and Carrboro boards, and from
comments from the Department of Housing and Urban Development
(HUD) ' s preliminary review of the ordinance. The Human Relations
Commission approved the revised draft, with two changes, on May
23. The Human Relations Commission also approved three
accompanying recommendations to the Board of County
Commissioners:
a) The HRC recommends that the first phase of the ordinance
(housing, public accommodations, and bias-related incidents)
become effective as of January 1, 1995, and that the second
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phase (employment) become effective as of January 1 , 1996 .
b) The HRC recommends that the Orange County Board of
Commissioners request that the County' s legislative delegation
introduce in the N.C. General Assembly new enabling
legislation that would authorize the Orange County Civil
Rights Ordinance to allow affectional preference/sexual
orientation as a protected class. The Commission further
recommends that this request be made in a timely manner in
order to allow the enabling legislation to be introduced
during the next long session of the General Assembly and that
it be contingent upon:
• the formation of a coalition of other North Carolina human
relations commissions and community groups that have an
interest in seeing such legislation enacted, and
• the development of a multi-county collaborative effort to
garner support for local enabling legislation that would
include affectional preference/sexual orientation as a
protected class.
c) The HRC recommends that the necessary level of staff support
be provided to effectively implement the civil rights
ordinance, specifically one full-time civil rights
investigator position and one full-time human relations
specialist position to provide community education and support
to the Human Relations Commission.
The manager and the BOCC will discussing staffing and
recommendation (c) from the HRC during the FY94-95 budget
deliberations.
RECOMMENDATION W : The Manager recommends that the Board:
1) Adopt the revised ordinance effective as of January 1 , 1995 ,
per recommendation (a) of the Human Relations Commission,
2 ) Convey the Board's action to the other jurisdictions and ask
them to adopt resolutions permitting the ordinance to be
applicable to their corporate boundaries;
3) Approve recommendation (b) from the Human Relations
Commission.
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ORANGE COUNTY
CIVIL RIGHTS ORDINANCE
(DRAFT)
Prepared by:
Geoffrey E . Gledhill
Mark T. Sheridan
Douglas P . Thoren
Coleman, Gledhill & Hargrave
129 East Tryon Street
Post Office Drawer 1529
Hillsborough, NC 27278
( 919 ) 732-2196
May 12 , 1994
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ORANGE COUNTY CIVIL RIGHTS ORDINANCE
TABLE OF CONTENTS
Page No.
ARTICLE I Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II Findings of Fact, Purpose,
Construction & Severability. . . . . . . . . . . . . . . . . . . 1
ARTICLE III Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV Unfair Employment
Sec . 4 . 1 Unfair Employment Practices . . . . . . . . . 9
Sec . 4 . 2 Exemptions and Defenses . . . . . . . . . . . . . 16
ARTICLE V Unfair Housing
Sec . 5 . 1 Unfair Housing Practices . . . . . . . . . . . . 26
Sec . 5 . 2 Proof of Violation. . . . . . . . . . . . . . . . . . 31
Sec . 5 . 3 Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VI Public Accommodations
Sec . 6 . 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 34
Sec . 6 . 2 Prohibited Practices . . . . . . . . . . . . . . . . 36
Sec . 6 . 3 Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VII Other Prohibited Discriminatory Acts . . . . . . . . . . 37
ARTICLE VIII Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Sec . 8 . 1 Filing of Complaint and
Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Sec . 8 . 2 Reasonable Cause, Conciliation
Efforts, and Right-to-Sue Letters . . . . . . . . 42
Sec . 8 . 3 Referral to Office of
Administrative Hearings . . . . . . . . . . . . . . . . . . 44
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Subdiv. 8 . 3 . 1 Hearings . . . . . . . . . . . . . . . . . . 44
Subdiv. 8 . 3 . 2 Remedies . . . . . . . . . . . . . . . . . . 47
ARTICLE IX Judicial Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE X Civil Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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ORANGE COUNTY
CIVIL RIGHTS ORDINANCE
ARTICLE I Title
Sec. 1. 1 This Ordinance shall be known and may be cited as
the Orange County Civil Rights Ordinance.
ARTICLE II Findings of Fact, Purpose,
Construction, and Severability
Sec . 2 . 1 Findings of Fact
(a) The Orange County Board of Commissioners created the
Orange County Human Relations Commission to: ( 1) study and make
recommendations concerning problems in the field of human
relationships; (2) anticipate and discover practices and customs
most likely to create animosity and unrest and to seek solutions to
problems as they arise; (3) make recommendations designed to
promote goodwill and harmony among r-aelal, ethnic, religleus, and
other greups in the Geunty groups in the County irrespective of
their race, color, creed, religion, ancestry, national origin, sex,
affectional preference, disability, age, marital status or status
with regard to public assistance; (4) monitor complaints involving
discrimination; (5) address and attempt to remedy the violence,
tensions, polarization, and other harm created through the
practices of discrimination, bias, hatred, and civil inequality_;
and (6) promote harmonious relations within the county through
hearings and due process of law; and (Change tracks
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language from Human Relations Commission By-laws . Comments from
the Carrboro Town Board. )
(b) The Orange County Human Relations Commission duly
organized, advertised, and conducted public hearings on
discrimination in the areas of, among others, employment, housing,
and public accommodations; and
(c ) The Orange County Human Relations Commission has
determined that discrimination exists in Orange County in the areas
of, among others , employment, housing, and public accommodations on
the basis of, or because of, race, color, religion, sex, national
origin, age, disability, familial status, marital status , sexual
orientation and veteran status . (Comments from the Carrboro Town
Board. )
Sec . 2 . 2 Purpose
(a) It is the purpose of this Ordinance and the policy of
Orange County to promote the equal treatment of all individuals ; to
prohibit discrimination in Orange County based on race, color,
religion, sex, national origin, age, disability, familial status,
and veteran status; to protect residents , lawful interests and
their personal dignity so as to make available to the County their
full productive and creative capacities , and to prevent public and
domestic strife, crime, and unrest within Orange County.
(b) It is the further purpose of this Ordinance to carry out
in Orange County the policies provided for in various federal
rules , regulations , and laws prohibiting discrimination in, among
other areas , housing, employment, and public accommodations .
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Sec . 2 . 3 Construction
(a) This Ordinance shall be liberally construed according to
the fair import of its terms , with full and careful consideration
given to its humanitarian nature and remedial purpose.
(b) Words importing the masculine gender shall include the
feminine and words importing the feminine gender shall include the
masculine .
Sec . 2 . 4 Severability
Should any provision of this Ordinance be found to be
unconstitutional by a court of law, such provision shall be severed
from the remainder of the Ordinance, and such action shall not
effect the enforceability of the remaining provisions of the
Ordinance .
ARTICLE III Definitions
Unless otherwise defined, as used in this Ordinance:
"Because of age" or "on the basis of age" applies to persons
40 years of age or older.
"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 .
"Board" means the Orange County Board of Commissioners .
"Commission" means the Orange County Human Relations
Commission.
"Commission staff: means the person or persons employed by
Orange County to administer this Ordinance.
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"Complainant" means a person who has filed a written, signed,
and verified Complaint with the Commission pursuant to this
Ordinance.
"Covered entity" means an employer, employment agency, labor
organization, or joint labor-management committee.
"Covered multifamily dwelling" means
a . a building, including all units and common use areas , in
which there are four or more units if the building has one or
more elevators; or
b. ground floor units and ground floor common use areas in
a building with four or more units .
"Direct threat" means a significant risk to the health or
safety of others that cannot be eliminated by reasonable
accommodation.
"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 having such an impairment; or
C . Being regarded as having such an impairment as
described in a. or b. of this definition.
"Drug" means a controlled substance as defined by section 202
of the Controlled Substances Act (21 U.S.C . S 812 ) .
"Employer" means a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each
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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 , er any ef its—pew eat ub s;
(Change to clarify that units of local government with a
situs in Orange County are covered by the employment
provisions of this Ordinance. )
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 .
"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.
"Familial status " means one or more persons who have not
attained the age of 18 years being domiciled with:
a. A parent or another person having legal custody of the
person or persons; or
b. The designee of the parent or other person having such
custody, provided the designee has the written permission of
the parent or other person.
The protections against discrimination on the basis of
familial status shall apply to any person who is pregnant or is in
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the process of securing legal custody of any individual who has not
attained the age of 18 years .
"Family" includes a single individual .
"Financial institution" means any banking corporation or trust
company, savings and loan association, credit union, insurance
company, or related corporation, partnership, foundation, or other
institution engaged primarily in lending or investing funds ;
"Housing accommodation" means any improved or unimproved real
property, or part thereof, which is used or occupied, or is
intended, arranged, or designed to be used or occupied, as the home
or residence of one or more individuals ;
"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.
"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
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council so engaged which is subordinate to a national or
international labor organization.
"Person" means any individual, association, corporation,
partnership, labor union, legal representative, receiver,
fiduciary, mutual company, joint stock company, trust, trustee in
bankruptcy, unincorporated organization, or other legal or
commercial entity. (HUD comments. )
"Public accommodation" means any place or facility, of
whatever nature, located in Orange County which is open to the
public .
"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. For purposes of this
Ordinance, consideration shall be given to the employer's judgment
as to what functions of a job are essential, and if an employer has
prepared a written description before advertising or interviewing
applicants for the job, this description shall be considered
evidence of the essential functions of the job.
"Real estate transaction" means the sale, exchange, rental
or lease of real property, or any policy, practice, decision, act,
or failure to act that affects the availability of real property or
the conditions under which real property is available or is
occupied for residential purposes .
"Real property" means a building, structure, real estate,
land, tenement, leasehold, interest in real estate cooperatives,
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condominium, and hereditament, corporeal and incorporeal, or any
interest therein.
"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 examinations , training
materials or policies; the provision of qualified readers
or interpreters; and other similar accommodations for
individuals with disabilities .
"Religion" means all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates that
he is unable to reasonably accommodate an employee's or prospective
employee's religious observance or practice without undue hardship
on the conduct of the employer's business .
"Respondent" means a person, employer, employment agency,
labor organization, e-r joint labor-management committee_, or other
entity against whom a Complaint has been filed pursuant to this
Ordinance . (HUD comments. )
"Right-to-sue letter" means a letter issued by the Commission
to a Complainant which authorizes the Complainant to bring a civil
action against the Respondent in the Superior Court.
"Superior Court" means the Orange County Superior Court.
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"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 under
this Ordinance;
b. The overall financial resources of the facility or
facilities 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 or operations 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 or facilities in question to
the covered entity.
"Veteran status " means past service as an employee or member
of the United States military, or any agency, or subdivision
thereof . Nothing contained in this Ordinance shall be construed to
repeal or modify any local law or policy creating special rights or
preferences for veterans . Nothing contained in this Ordinance
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shall be construed to repeal, modify, or prevent any employer
practice creating special rights or preferences for veterans .
(Concerns expressed by the Chapel Hill Town Council, language
adapted from 42 U. S. C.A. §2000e-11 . )
ARTICLE IV Unfair Employment
Sec . 4 . 1 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 such individual ' s race, color, religion,
sex, national origin, age, disability, familial status, or veteran
status .
(2 ) To limit, segregate, or classify employees or
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect an individual ' s status as an employee, because of
such individual ' s race, color, religion, sex, national origin, age,
disability, familial status , or veteran status;
( 3) To reduce the wage rate of any employee in order to
comply with this Article; or
(4 ) To discriminate against any woman affected by
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
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other persons not so affected but similar in their ability or
inability to work.
(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 the individual 's race, color, religion, sex,
national origin, age, disability, familial status , or veteran
status , or to classify or refer for employment any individual on
the basis of race, color, religion, sex, national origin, age,
disability, familial status, or veteran status .
(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, age,
disability, familial status, or veteran status;
(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 such individual 's status as an employee or as an applicant
for employment, because of the individual 's race, color, religion,
sex, national origin, age, disability, familial status, or veteran
status ; or
( 3) Cause or attempt to cause an employer to
discriminate against an individual in violation of this Ordinance.
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(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, age,
disability, familial status , or veteran status in admission to, or
employment in, any program established to provide apprenticeship or
other training.
(e) 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 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, age, disability, familial status,
or veteran status . Notwithstanding the foregoing, an employer may
indicate a preference based on disability or veteran status .
( f) It is unlawful for an employer to discriminate against
any employee or applicant for employment, for an employment agency
or joint labor-management committee controlling apprenticeship or
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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 or she has opposed any
practice made an unlawful employment practice by this Ordinance, or
because he or she has filed a Complaint, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this Ordinance.
Furthermore, it is unlawful to coerce, intimidate, threaten,
or interfere with any individual in the exercise or enjoyment of,
or on account of such individual having aided or encouraged any
other individual in the exercise or enjoyment of, any right granted
or protected by this Ordinance .
(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
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applicant or employee with a disability to the discrimination
prohibited by this Ordinance . 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 a disability; or
b. perpetuate the discrimination of others who are
subject to common administrative control;
( 4) excluding or otherwise denying equal 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;
( 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
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entity to make reasonable accommodation to the physical or mental
impairments of the employee or applicant;
(7 ) using qualification standards, employment tests , or
other selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test, or other selection
criteria, as used by the covered entity, is shown to be job related
for the position in question, is consistent with business
necessity, and cannot be accomplished by reasonable accommodation
as required under this Ordinance;
( 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.
( 10) a covered entity may make pre-employment inquiries
into the ability of an applicant to perform job-related functions,
may require a medical examination after an offer of employment has
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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, provided that:
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 section shall be
provided relevant information on request;
C . The results of the examination are used only in
accordance with this section; and
( 11) a covered entity shall not require a medical
examination and shall not make 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
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inquiry is shown to be job-related and consistent with business
necessity.
( 12 ) a covered entity may, however, 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 requirement as information obtained pursuant
to pre-employment medical examinations, as described in subsections
9 (b) and 9 (c) of this section.
Sec . 4 . 2 Exemptions and Defenses
(a) Notwithstanding any other provision of this Article, it
is not unlawful for:
( 1) a covered entity to employ, admit, classify, or
refer any individual on the basis of religion, sex, national
origin, age, familial status , or veteran status, in those certain
instances where religion, sex, national origin, age, familial
status , or veteran status is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular
business or enterprise .
(2 ) a covered entity to print or publish, or caused to
be printed or published, any notice or advertisement indicating any
preference, limitation, specification, or discrimination, based on
religion, sex, national origin, age, familial status, or veteran
status, in such instances when religion, sex, national origin, age,
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disability, familial status, or veteran status is a bona fide
occupation qualification for employment.
( 3) 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.
(4) 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, age,
disability, familial status, or veteran status .
( 5) 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, national origin, age, familial status, or veteran status .
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( 6 ) an 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) ) .
( 7 ) a covered entity to refuse to assign or continue to
assign an individual to a job involving food handling in any case
in which such individual has an infectious or communicable disease
that is : (i) transmitted to others through the handling of food;
(ii) is 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 (iii) cannot be eliminated by
reasonable accommodation. 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.
(b) ( 1) For purposes of this Article the term "qualified
,individual with a disability" shall not include any employee or
applicant who is currently engaging in the illegal use of drugs,
when the covered entity acts on the basis of such use. However, an
individual shall . not be excluded as a qualified individual with a
disability who:
a. 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; or
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b. is participating in a supervised rehabilitation
program and is no longer engaging in such use; or
C . is erroneously regarded as engaging in such
use .
(b) (2 ) It is not a violation of this Ordinance 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 (a) or (b) of
this subsection is no longer engaging in the illegal use of drugs .
(c) 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 . SS 701 et, seg. ) ;
(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 employees comply
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with the standards established in federal regulations of the
Department of Defense, the Nuclear Regulatory Commission, and/or
the Department of Transportation, if the employees of the covered
entity are employed in an industry subject to the regulations of
any such federal agency.
(d) For the purposes of this Ordinance, a test to determine
the illegal use of drugs shall not be considered a medical exam.
Furthermore, nothing in this Ordinance 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 .
(e) The prohibitions in this Ordinance against discrimination
based upon disability shall not be construed to prohibit or
restrict:
( 1) An insurer, hospital, 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 Ordinance
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 Ordinance
from establishing, sponsoring, observing, or administering the
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terms of a bona fide benefit plan that is not subject to State laws
that regulate insurance.
Subsections ( 1) , ( 2) , and ( 3) of this section shall not be
used as a subterfuge to evade the purposes of this Ordinance.
( f) Nothing in this Ordinance 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;
(g) Nothing contained in this Ordinance 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 or she is an Indian living on or near
a reservation.
(h) Nothing contained in this Ordinance 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 .
( i) Nothing contained in this Ordinance shall be interpreted
to require any covered entity to grant preferential treatment to
any individual or to any group because of the race, color,
religion, sex, national origin, age, or marital statue familial
status , or veteran status of such individual or group on account of
an imbalance which may exist with respect to the total number or
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percentage of persons of any race, color, religion, sex, national
origin, age, or manta' statua familial status , or veteran status
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, national origin, age, er raarital status- familial
status , or veteran status in the community, State, section, or
other area. (Correction to include all Ordinance protected
classes. )
( j ) With respect to discrimination based on age, it is not
unlawful for a covered entity to take any action otherwise
prohibited under subsections (a) , (b) , (c) , (d) or (e) of Section 4 . 1
of this Article:
( 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 the involuntary
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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 purposes of this Ordinance.
C . Notwithstanding the provisions of subsection 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 . A covered entity
acting under subdivision ( 3) or subdivision (4 ) of this section,
shall have the burden of proving that such actions are lawful in
any proceeding brought pursuant to this Ordinance; or
( 5 ) To discharge or otherwise discipline an individual
for good cause .
(k) Notwithstanding the provisions of subdivision (4) of
subsection ( j ) above:
(1) ( 1) Nothing in this Ordinance shall be construed to
prohibit compulsory retirement of any employee who has attained 65
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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 such amount as is prescribed in the Age
Discrimination Act of 1967 as amended from time to time (this
amount is $44 , 000 - on the effective
date of this Ordinance) . (Clarification to avoid the need to amend
the Ordinance if there is a change in the federal law dollar
threshhold. )
(1) (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 .
(m) An unlawful employment practice based on disparate impact
is established under this Ordinance only if :
( 1) a complaining party demonstrates that a respondent
uses a particular employment practice that causes a disparate
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impact on the basis of race, color, religion, sex, national origin,
age, disability, familial status, or veteran status and the
respondent fails to demonstrate that the challenged practice is job
related for the position in question and consistent with business
necessity; or
(2 ) the complaining party makes a demonstration with
respect to an alternative employment practice and the respondent
refuses to adopt such alternative employment practice. A
"demonstration with respect to an alternative employment practice"
shall be in accordance with the law as it existed on June 4 , 1989 .
( 3) a. With respect to demonstrating that a particular
employment practice causes a disparate impact as described herein,
the complaining party shall demonstrate that each particular
challenged employment practice causes a disparate impact, except
that if the complaining party can demonstrate to the court that the
elements of a respondent's decision making process are not capable
of separation for analysis , the decision making process may be
analyzed as one employment practice.
(3) b. If the respondent demonstrates that a specific
employment practice does not cause the disparate impact, the
respondent shall not be required to demonstrate that such practice
is required by business necessity.
(n) A demonstration that an employment practice is required
by business necessity may not be used as a defense against a claim
of intentional discrimination under this Ordinance.
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(o) Notwithstanding any other provision of this title, a rule
barring the employment of an individual who currently and knowingly
uses or possesses a controlled substance, as defined in schedules
I and II of Section 812 of the Controlled Substances Act ( 21 U.S .C .
§812 ) other than the use or possession of a drug taken under the
supervision of a licensed health care professional, or any other
use or possession authorized by the Controlled Substances Act or
any other provision of Federal law, shall be considered an unlawful
employment practice under this Ordinance only if such rule is
adopted or applied with an intent to discriminate because of race,
I
color, religion, sex, national origin, age, disability, familial
status , or veteran status .
(p) Except as otherwise provided in this Article, an unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, sex, national origin, age,
disability, familial status, or veteran status was a motivating
factor for any employment practice, even though other factors also
motivated the practice.
(q) On a claim in which an individual proves a violation
under subsection (p) and a respondent demonstrates that the
respondent would have taken the same action in the absence of the
impermissible motivating factor, the court:
( 1) may grant declaratory relief, injunctive relief and
attorney' s fees and costs demonstrated to be directly attributable
only to the pursuit of a claim under section (p) ; and
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(2) shall not award damages or issue an order requiring
any admission, reinstatement, hiring, promotion, or payment, as
described in Article VIII of this Ordinance.
jj�j Nothing contained in this Article shall be construed to
affect court entered remedies affirmative action or conciliation
agreements , that are in accordance with the law. (This language
was added to make the Employment Article of the Ordinance
consistent with federal law. It tracts Section 116 of the Civil
Rights Act of 1991 . )
.ARTICLE V Unfair Housing
Sec . 5 . 1 Unlawful Housing Practices
(a) It is an unlawful discriminatory housing practice for any
person, because of race, color, religion, sex, national origin,
age, disability, familial status, or veteran status to:
( 1) Refuse to engage in a real estate transaction;
(2 ) Discriminate against a person in the terms,
conditions , or privileges of a real estate transaction or in the
furnishing of facilities or services in connection therewith;
( 3 ) Refuse to permit, at the expense of a qualified
individual with a disability, reasonable modifications of existing
premises occupied or to be occupied by the individual if the
modifications are necessary to such individual ' s full enjoyment of
the premises ; except that, in the case of a rental unit, the
landlord may, where it is reasonable to do so, condition permission
for modifications on agreement by the renter to restore the
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interior of the premises to the condition that existed before the
modifications , reasonable wear and tear excepted, if six
eend ti^- . The landlord shall have the burden of showing that the
unit could not be relet within the six month period because of the
modifications rather than for some other reason or reasons; (HUD
comments. )
( 4) Refuse to make reasonable accommodations in rules,
policies , practices , or services , when these accommodations may be
necessary to a disabled person' s equal use and enjoyment of a
dwelling, including public and common use areas; (HUD comments. )
(5) Fail to design and construct covered multifamily
dwellings available for first occupancy after March 13, 1991, so
that:
a. The dwellings have at least one building
entrance on an accessible route, unless it is impractical to do so
because of terrain or unusual site characteristics; or
b. With respect to dwellings with a building
entrance on an accessible route:
1 . The public and common use portions are
readily accessible to and usable by
individuals with a disability;
2 . There is an accessible route into and
through all dwellings and units ;
3 . All doors designed to allow passage into,
within, and through these dwellings and
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individual units are wide enough for
wheelchairs ;
4 . Light switches, electrical switches ,
electrical outlets , thermostats, and
other environmental controls are in
accessible locations ;
5 . Bathroom walls are reinforced to allow
later insulation of grab bars; and
6 . Kitchens and bathrooms have space for an
individual in a wheelchair to maneuver.
C . Compliance with the appropriate requirements of
the American National Standard for buildings and facilities
providing accessibility and usability for physically handicapped
people (commonly cited as "ANSI A117 . 1" as amended or revised from
time to time) suffices to satisfy the requirements of Section
5 . 1(a) ( 5 ) of this Ordinance. (HUD comments. )
( 6) Refuse to receive or fail to transmit a bona fide
offer to engage in a real estate transaction;
( 7 ) Refuse to negotiate for a real estate transaction;
( 8 ) Represent to a person that real property is not
available for inspection, sale, rental, or lease when in fact it is
so available, or fail to bring a property listing to such person's
attention, or refuse to permit such person to inspect real
property;
( 9 ) Make, print, circulate, post, or mail, or cause to
be so published, a statement, advertisement, or sign, or use a form
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or application for a real estate transaction, or make a record or
inquiry in connection with a prospective real estate transaction,
which indicates directly or indirectly, an intent to make a
limitation, specification, preference, or discrimination with
respect thereto;
( 10) Offer, solicit, accept, use, or retain a listing of
real property with the understanding that any person may be
discriminated against in a real estate transaction or in the
furnishing of facilities or services in connection therewith; or
( 11) Otherwise make unavailable or deny housing.
(b) It is an unlawful discriminatory housing practice for any
person or other entity whose business includes engaging in
residential real estate related transactions to discriminate
against any person in making available such a transaction, because
of race, color, religion, sex, national origin, age, disability,
familial status , or veteran status .
As used in this subsection, "residential real estate related
transaction" means :
( 1) The making or purchasing of loans or providing
financial assistance (i) for purchasing, constructing, improving,
repairing, or maintaining a dwelling, or (ii) where the security is
residential real estate; or
(2) The selling, brokering, or appraising of residential
real estate.
The provision of this subsection shall not prohibit any
financial institution from using a loan application which inquires
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into a person's financial and dependent obligations or from basing
its actions on the income or financial abilities of any person.
(c) It is an unlawful discriminatory housing practice for a
person to induce or attempt to induce another to enter into a real
estate transaction from which such person may profit:
( 1) By representing that a change has occurred, or may
occur in the composition of the residents of the block,
neighborhood, or area in which the real property is located with
respect to the race, color, religion, sex, national origin, age,
disability, familial status, or veteran status of the owners or
occupants ; or
(2 ) By representing that a change has resulted, or may
or will result in the lowering of property values , an increase in
criminal or antisocial behavior, or a decline in the quality of
schools in the block, neighborhood, or area in which the real
property is located.
(d) It is an unlawful housing practice to deny any person,
who is otherwise qualified by State law, access to or membership or
participation in any real estate brokers ' organization, multiple
listing service, or other service, organization, or facility
relating to the business of engaging in real estate transactions,
or to discriminate in the terms or conditions of such access ,
membership, or participation because of race, color, religion, sex,
national origin, age, disability, familial status, or veteran
status .
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(e) It is an unlawful housing practice to coerce, intimidate, 38
threaten, or interfere with any person in the exercise or enjoyment
of, on account of having exercised or enjoyed, or on account of
having aided or encouraged any other person in the exercise or
enjoyment of any right granted or protected by this Ordinance .
Sec . 5 . 2 Proof of Violation
(a) It is a violation of this Article if:
( 1) A person by his act or failure to act intends to
discriminate against a person. A person intends to discriminate
if, in committing an unlawful housing practice in Section 5 . 1 of
this Article i-f he or she was motivated in full, or in any part at
all, by race, color, religion, sex, national origin, age,
disability, familial status, or veteran status . An intent to
discriminate may be established by direct or circumstantial
evidence; or
(2 ) A person's act or failure to act has the effect,
regardless of intent, of discriminating, as set forth in Section
5 . 1 of this Article, against a person of a particular race, color,
religion, sex, national origin, age, disability, familial status,
or veteran status .
(b) However, it is not a violation of this Article if a
person whose action or inaction has an unintended discriminatory
effect, proves that his or her action or inaction was motivated and
justified by business necessity.
(c) It shall be no defense to a violation of this Ordinance
that the violation was requested, sought, or otherwise procured by
another person.
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Sec . 5 . 3 Exemptions
(a) Nothing in this Article (other than subsection (9 ) of
Section 5 . 1) shall apply to the following:
( 1) The rental of rooms or units in dwellings containing
living quarters occupied or intended to be occupied by no more than
four families living independently of each other, if the owner
actually maintains and occupies one of such living quarters as his
residence;
(2 ) A religious organization, association, or society,
or any nonprofit institution or organization operated, supervised
or controlled by, or in conjunction with a religious organization,
association, or society, from limiting the sale, rental, or
occupancy of dwellings which it owns or operates for other than a
commercial purpose to persons of the same religion, or from giving
preference to such persons of the same religion, er-- from
preferenee to sue ^ persons , unless membership in such religion is
restricted on account of race, color, or national origin. (HUD
comments. )
(3 ) Private clubs, not in fact open to the public , which
as an incident to their primary purpose or purposes provide lodging
which they own or operate for other than a commercial purpose, -fe-r
from limiting the rental or occupancy of such lodgings to its
members or from giving preference to its members; (Human Relations
commission member comments. )
(b) Nothing in Subsection (a) ( 3) , (4) , or (5) of Section 5 . 1
of this Article shall require that a dwelling be made available to
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an individual whose tenancy would constitute a direct threat to the
health or safety of other individuals or whose tenancy would result
in substantial physical damage to the property of others .
(c) No provision of this Ordinance limits the applicability
of any reasenab lawful local or state restriction regarding the
maximum number of occupants permitted to occupy a dwelling unit .
(Comments of Mr. Karpinos, Chapel Hill attorney. )
(d) Nothing in this Ordinance shall be deemed to nullify any
provisions of the North Carolina Building Code applicable to the
construction of residential housing for the handicapped.
(e) No provision of this Ordinance regarding familial status
applies with respect to housing for older persons . "Housing for
older persons " mean housing:
( 1) Provided under any state or federal program
specifically designed and operated to assist elderly persons as
defined in the program;
(2 ) Intended for and solely occupied by person 62 years
or older. Housing satisfies the requirements of this subdivision
even though there are persons residing in such housing on September
13 , 1988 , who are under 62 years of age, provided that all new
occupants after September 13 , 1988 , are 62 years or older; or
( 3) Intended for and operated for occupancy by at least
one person 55 years of age or older per unit as shown by such
mandatory factors as (i) the existence of significant facilities
and services specifically designed to meet the physical and social
needs of older persons or, if this is not practicable, that the
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housing provides important housing opportunities for older persons ;
(ii) at least eighty percent ( 80%) of the units are occupied by at
least one person 55 years of age or older per unit; and (iii) the
publication of and adherence to policies and procedures which
demonstrate an intent by the owner or manager to provide housing
for persons 55 years of age or older. Housing satisfies the
requirements of this subdivision even though on September 13, 1988,
under eighty percent ( 80%) of the units in the housing facility are
occupied by at least one person 55 years or older per unit,
provided that eighty percent ( 80%) of the units that are occupied
by new tenants after September 13, 1988, are occupied by at least
one person 55 years or older per unit such time as eighty percent
( 80%) of all the units in the housing facility are occupied by at
least one person 55 years or older. Housing facilities newly
constructed for first occupancy after March 12 , 1989 , shall satisfy
the requirements of this subdivision if (i) when twenty-five
percent ( 25%) of the units are occupied, eighty percent (80%) of
the occupied units are occupied by at least one person 55 years or
older, and thereafter (ii) eighty percent ( 80%) of all newly
occupied units are occupied by at least one person 55 years or
older until such time as eighty percent ( 80%) of all the units in
the housing facility are occupied by at least one person 55 years
of age or older.
Housing satisfies the requirements of subdivisions ( 2) and ( 3)
of this subsection even though there are units occupied by
employees of the housing facility who are under the minimum age or
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family members of the employees residing in the same unit who are 42
under the minimum age, provided the employees perform substantial
duties directly related to the management of the housing.
ARTICLE VI Public Accommodations
Sec . 6 . 1 Definitions
A place of public accommodation includes , but is not limited
to, each of the following establishments located in Orange County
which caters or offers its services or facilities or goods to the
general public :
( 1) any inn, hotel, motel, or other establishment which
provides lodging to transient guests;
(2 ) a n y r estau ran t, c afeteria, lunchroo m, lunch counter, soda
fountain, bar, or other establishment engaged in the selling or
serving of food or drink;
( 3 ) any motion picture house, theater, concert hall, sports
arena, stadium, or other place of exhibition or entertainment;
( 4) any auditorium, convention center, lecture hall, or other
place of public gathering;
(5 ) any bakery, grocery store, clothing store, hardware
store, shopping center, or other sales or rental establishment;
( 6 ) any Laundromat, dry-cleaner, bank, barber shop, beauty
shop, travel service, shoe repair service, funeral parlor, gas
station, office of an accountant or lawyer, pharmacy, insurance
office, professional office of a health care provider, hospital, or
other service establishment;
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(7 ) any terminal, depot, or other station used for specified
public transportation;
(8 ) any museum, library, gallery, or other place of public
display or collection;
( 9 ) any park, zoo, amusement park, or other place of
recreation;
( 10 ) any nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of education;
( 11) any day care center, senior citizen center, homeless
shelter, food bank, adoption agency, or other social service center
establishment;
( 12 ) any gymnasium, health spa, bowling alley, golf course, or
other place of exercise or recreation.
( 13 ) any establishment offering the viewing, sale, use, lease,
or hire of printed matter, audiotapes , videotapes , phonograph
records, compact discs, videotape or film loops, or other such
establishment;
( 14 ) any area or structure provided for the purpose of storing
personal property; and
( 15) any other establishment which is (a) (i) physically
located within the premises of any establishment otherwise covered
by this section, or ( ii) within the premises of which is physically
located any such covered establishment, and (b) which holds itself
out as serving patrons of such establishment.
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Sec . 6 . 2 Prohibited Practices
(a) All persons shall be entitled to the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination
or segregation on the basis of race, color, religion, sex, national
origin, age, disability, familial status, or veteran status .
(b) It shall be an unlawful discriminatory practice under
this Ordinance for any person to ( 1) withhold, deny, or attempt to
withhold or deny, or deprive or attempt to deprive, any person of
any right or privilege secured by subsection (a) of this section,
or (2 ) intimidate, threaten, or coerce, or attempt to intimidate,
threaten, or coerce any person with the purpose of interfering with
any right or privilege secured by subsection (a) of this Section,
or ( 3 ) punish or attempt to punish any person for exercising or
attempting to exercise any right or privilege secured by subsection
(a) of this Section.
Sec . 6 . 3 Exemptions
The provisions of this Article shall not apply to a private
club or other establishment not in fact open to the public .
Article VII Other Prohibited Discriminatory Acts_
(a) It shall be unlawful for any person to intentionally or
knowingly:
( 1) Perform or attempt to perform any act which directly
or indirectly results in an individual's bodily injury or property
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damage where such act is directed at an individual or a group of
individuals because of that person's or that group's perceived or
actual race, color, religion, sex, national origin, age,
disability, familial status, or veteran status in the United States
armed services .
( 2 ) Solicit, encourage, compensate, assist, or, conspire
with another to perform or attempt to perform any act which
directly or indirectly results in an individual ' s bodily injury or
property damage where such act is directed at an individual or a
group of individuals because of that person' s or that group's
perceived or actual race, color, religion, sex, national origin,
age, disability, familial status, or veteran status in the United
States armed services .
(b) No person shall be found to have violated this Ordinaneen
Article solely on the basis of the content of any speech or
communication used by such person. (Comments of Mr. Karpinos,
Chapel Hill attorney. )
Article VIII Enforcement
Sec . 8 . 1 Filing of Complaint and Investigation
(a) Any person who claims to have been injured, er maims to
by eurrently being inju d or claims he or she is currently being
injured, or who reasonably believes that he or she will be injured,
by any practice made unlawful under this Ordinance may file a
Complaint with the Commission. (HUD comments. )
(b) Complaints shall be in writing, signed and verified by
the Complainant. Complaints shall state the facts upon which the
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allegation of an unlawful discriminatory practice is based and
shall contain such other information and be in such form as the
Commission requires .
Commission staff shall assist Complainants, if necessary, in
reducing Complaints to writing and shall assist in setting forth
the information in the Complaint as may be required by the
Commission.
(c) ( 1) A Complaint that alleges an unlawful employment
practice under this Ordinance must be filed with the Commission no
later than 180 days after the occurrence, or cessation of the
alleged unlawful employment practice.
(c) ( 2) A Complaint that alleges any practice made unlawful
under this Ordinance, other than an unlawful employment practice,
must be filed with the Commission no later than one ( 1) year from
the date of the occurrence, or cessation of the alleged unlawful
practice.
(d) The Commission staff shall serve upon the Respondent, in
accordance with the North Carolina Rules of Civil Procedure, a copy
of the Complaint and a notice advising the Respondent of his or her
procedural rights and obligations under this Ordinance within ten
( 10) days after the Complaint is filed with the Commission.
(e) A Respondent may file an answer to the Complaint within
ten ( 10) days after receiving a copy of the Complaint . Answers
shall be signed and verified by the Respondent and shall be filed
with the Commission.
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( f) With leave of the Commission staff, which leave shall be
granted whenever it would be reasonable and fair to do so,
Complaints and Answers may be amended at any time. Amendments
shall be reduced to writing, signed, verified, and filed with the
Commission. Amendments shall relate back to the date the original
Complaint or Answer was filed.
(g) The Commission staff shall, within 30 days after the
filing of a Complaint, commence an investigation into the
allegations contained in the Complaint.
(h) In conducting an investigation, the Commission staff
shall have access at all reasonable times to premises , records,
documents , individuals , and other evidence or possible sources of
evidence to ascertain the factual basis of the allegations
contained in the Complaint.
Further, the Commission staff 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.
(i) In conducting an investigation, the Commission staff may,
in accordance with the North Carolina Rules of Civil Procedure:
( 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 the Commission staff;
( 3) issue subpoenas compelling witnesses, including any
party, to appear and give testimony at a deposition;
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( 4) take depositions of witnesses, including any party;
and
(5) issue interrogatories to a Respondent.
( j ) Upon written application to the Commission staff, a
Respondent shall be entitled to the issuance of interrogatories
directed to the Complainant, to the issuance of a reasonable number
of subpoenas for the taking of depositions , and to the issuance of
a reasonable number of subpoenas for the production of evidence.
(k) 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 the
Commission staff pursuant to this section, the Commission staff or
the Respondent may make a motion in the Superior Court to compel a
person to obey the subpoena, answer the interrogatory, or answer
the question. The North Carolina Rules of Civil Procedure shall
apply to the making of such motions . 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.
(1) Whenever the Commission staff concludes on the basis of
a preliminary investigation of a Complaint that prompt judicial
action is necessary to carry out the purposes of this Ordinance,
the Commission may commence a civil action in the Superior Court
for injunctive relief pending final disposition of the Complaint.
Any injunctive relief shall be ordered in accordance with Rule 65
of the North Carolina Rules of Civil Procedure .
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The commencement of a civil action to obtain injunctive relief
shall not affect the continuation of the Commission staff 's
investigation or the initiation of a separate civil action provided
for in this Ordinance.
(m) Complaints may be resolved at any time by informal
conference, conciliation, or persuasion. Nothing said or done in
the course of such informal procedure may be made public by the
Commission or used as evidence in any subsequent proceeding without
the written consent of the person concerned. However, all
resolutions of complaints shall be reduced to writing, shall be
signed by the Complainant, the Respondent, and by the Commission
staff and shall be enforceable as a binding contract by the
Commission pursuant to the applicable provisions of North Carolina
law, statutory and common.
Sec . 8 . 2 Reasonable Cause, Conciliation Efforts,
and Right to Sue Letters
(a) If the Complaint is not sooner resolved, the Commission
staff shall, upon completion of the investigation, determine
whether or not there is reasonable cause to believe that an
unlawful discriminatory practice has occurred, is occurring, or is
going to occur.
(b) The Commission staff shall make its determination on
reasonable cause as promptly as possible and, so far as
practicable, no later than 100 days after the Complaint was filed.
If the Commission staff is unable to complete the investigation
within 100 days after the filing of the complaint the Commission
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staff shall notify the complainant and respondent in writing of the
reasons for not doing so. (HUD comments. )
,Lq l At the end of each investigation, a final investigative
report will be prepared and, notwithstanding the prohibitions and
requirements with respect to disclosure of information, the report
will be made available to the parties upon request. (HUD comments. )
(d) If the Commission staff determines that there is not
reasonable cause to believe that an unlawful discriminatory
practice has occurred, is occurring, or is going to occur, it shall
dismiss the Complaint and notify the Complainant and the Respondent
of its decision. At the same time, the Commission staff shall
issue a right-to-sue letter to the Complainant.
(e) In the event the Commission staff determines that
reasonable cause does not exist, the Complainant may make a written
request to the Commission that such decision be reconsidered. Such
request shall be filed with the Commission staff within thirty ( 30)
days of the date the Commission staff issued its finding of no
reasonable cause. The request for reconsideration shall be heard
by a panel of three Commission members . The panel members shall be
selected by the Commission. As a prerequisite to serving on this
panel, the Commission member shall receive appropriate training by
the North Carolina Human Relations Commission. Such training shall
include ordinance coverage and scope, how to prove if
discrimination has occurred, and how to determine appropriate
remedies if discrimination is proved. (Clarification. )
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( f) If the Commission staff, or the Commission panel
following request by the Complainant to the Commission for
reconsideration of the Commission staff finding of no reasonable
cause, determines that reasonable cause exists, it the Commission
staff shall notify the Complainant and the Respondent and shall
attempt to resolve the Complaint by conference, conciliation,
and/or persuasion. (Clarification. )
(g) All conciliation agreements shall be signed by the
Complainant and the Respondent and shall be recognized as a legally
enforceable contract . The Commission shall also be a party to all
conciliation agreements which resolve Complaints . The Commission
shall have the authority to enforce conciliation agreements
pursuant to the applicable provisions of North Carolina law,
statutory and common law. Each conciliation agreement shall be
made public unless the complainant and respondent otherwise agree
and the Commission determines that disclosure is not required to
further the purposes of this Ordinance. (HUD comments. )
(h) If the Commission staff, after making a finding of
reasonable cause, is unable to resolve the Complaint by conference,
conciliation, or persuasion, it shall issue a written declaration
that conciliation efforts have failed. (Clarification. )
(i) If the Commission staff issues a written declaration that
conciliation efforts have failed, the Commission staff shall, upon
written request of the Complainant, issue a right-to-sue letter to
the Complainant. Such written request shall be filed with the
Commission staff by the Complainant within fifteen ( 15) days of the
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date the declaration of conciliation failure is served on the
Complainant.
( j ) ( 1) Upon making a declaration of conciliation failure,
the Commission staff may, in cases arising under Article IV (Fair
Employment) , Article VI (Public Accommodations ) , and Article VII
(Other Prohibited Discriminatory Acts ) apply to the Director of the
Office of Administrative Hearings, pursuant to N.C.G.S . §7A-758,
for the designation of an administrative law judge to preside at a
hearing of the case.
( j ) (2 ) In cases arising under Article V (Fair Housing) in
which the Commission has issued a declaration of conciliation
failure, the Commission must apply to the Director of the Office of
Administrative Hearings , pursuant to N.C.G.S . §7A-758, for the
designation of an administrative law judge to preside at a hearing
of the case. (HUD Comments seek a civil action remedy, wherein the
Commission would provide counsel for the Complainant, at the
election of the Complainant or Respondent This is contrary to the
remedy provisions in this Ordinance which are designed to be less
costly and more efficient Clarification on this point will be
pursued with HUD. )
( j ) ( 3) In the event the Commission ehea makes
application to the Office of Administrative Hearings , it shall do
so within thirty (30) days of the date the Commission staff issued
its written declaration of conciliation failure . (Clarification. )
(k) If within 130 days from the date the Complaint was filed,
the Commission staff has failed to make a determination on the
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issue of reasonable cause, the Commission staff shall, upon written
request of the Complainant, issue a right-to-sue letter to the
Complainant.
If within one year from the date the Complaint was filed,
the Commission has not made its final administrative disposition of
the complaint, it must notify the Complainant and the Respondent in
writing of reasons for delay. (HUD comments. )
Sec . 8 . 3 Referral to Office of Administrative Hearings
Subdiv. 8 . 3 . 1 Hearings
(a) Upon receipt of an application for a hearing from the
Commission, the Director of the Office of Administrative Hearings
shall, without undue delay, assign an administrative law judge to
hear the case . Under this subsection, references to "parties "
means "the Commission" and "the Respondent" and any other party the
administrative law judge permits to intervene. It shall be within
the sound discretion of the administrative law judge to allow or
disallow such motion.
(b) All hearings under this Ordinance shall be de novo, open
to the public , and shall be conducted in an impartial manner.
(c) Venue of cases heard by an administrative law judge under
this Ordinance shall be in Orange County.
(d) If at any time after the commencement of a hearing of a
case under this section, but before the administrative law judge
issues a final decision, the parties successfully conciliate the
Complaint, the Commission shall file a stipulation of settlement or
notice of voluntary dismissal with the presiding administrative law
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judge. Upon receipt of such stipulation or notice, the
administrative law judge and the Office of Administrative Hearings
shall take no further action regarding the Complaint.
(e) All hearings held before an administrative law judge
shall, except as provided elsewhere in this Ordinance, be held in
accordance with the provisions of Article 3 , Chapter 150B
(Administrative Procedures Act) and in accordance with Chapter 3 of
Title 26 of the North Carolina Administrative Code .
( f) The case in support of the Commission shall be presented
at the hearing by the Commission's attorney.
(g) The administrative law judge shall make a recommended
decision, which shall contain findings of fact, conclusions of law,
and recommended relief if appropriate.
(h) ( 1) A panel consisting of three members of the
Commission shall review the findings of fact, conclusions of law,
and relief granted, if any, set forth in the administrative law
judge 's recommended decision and affirm, modify or reverse the
recommended decision. Such decision by the Commission panel shall
constitute the final agency decision of the Commission_. Prior to
making its final decision, the Commission panel shall permit the
Complainant and Respondent the opportunity to submit written
exceptions to the recommended decision and shall permit them to
present oral argument as to why the recommended decision should be
affirmed, modified, or reversed. The decision of the
administrative law judge shall become final and binding unless the
Commission acts within 30 days of the date of the recommended
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decision to modify or reverse it. (Changed to conform to enabling
legislation. )
(h) (2) Sueh review shall be e0fapleted by the GeRunissi
panel z-not-later crran-S-imty ( ) days after- the ____----_______ ___-�_---
Is ± slarn. (Changed to conform to enabling legislation. )
(h) ( 3) The Gemmission panel may affirm, Faedify, er reverse
shall--eenstitute the final ageney dee-sien of the
(Changed to conform to enabling legislation. )
(h) (2 ) In the event the Commission panel modifies or
reverses the recommended decision of the administrative law judge,
it shall set forth in writing the specific reasons it has reached
a decision different from that of the administrative law judge.
(h) (3 ) The panel members shall be selected by the
Commission. As a prerequisite to serving on this panel, a t4ie
Commission member shall receive appropriate training by the North
Carolina Human Relations Commission. Such training shall include
ordinance coverage and scope, how to prove if discrimination has
occurred, and how to determine appropriate remedies if
discrimination is proved. (Clarification. )
JU 14� No Commission member shall participate in the review
of the recommended decision of the administrative law Judge in any
Complaint if , in the same Complaint, that Commission member has
previously served on the three member panel reviewing a
determination of no reasonable cause under Section 8 .2 (e) of this
Ordinance. (Comments from Mr. Brough, Carrboro attorney. )
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( i) The Office of Administrative Hearings shall prepare an
official record of the case that includes :
( 1) Notices , pleadings, motions , and intermediate
rulings ;
(2 ) Questions and offers of proof, objections , and
rulings thereon;
( 3) Evidence presented;
(4 ) Matters officially noticed, except matters so
obvious that a statement of them would serve no useful purpose; and
( 5) The administrative law judge 's recommended decision.
( j ) The Office of Administrative Hearings shall forward the
official record to the Commission and shall forward a copy of its
recommended decision to each party.
(k) The Commission shall have the authority to enforce any
award made to a Complainant pursuant to the applicable provisions
of North Carolina law, statutory and common.
Subdiv. 8 . 3 . 2 Remedies
(a) If the administrative law judge, in its recommended
decision, finds that a Respondent has violated, is violating, or is
about to violate any provision of this Ordinance, he may recommend
such affirmative action as may be appropriate, including:
( 1) Injunctive relief as provided for in Rule 65 of the
North Carolina Rules of Civil Procedure;
( 2 ) compensatory damages;
( 3 ) punitive damages ; and
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(4) any other relief as the administrative law judge
deems appropriate.
(b) Punitive damages against a respondent Jother than a
government, government agency or political subdivisions may be
recommended by the administrative law judge only if the complaining
party (or parties) demonstrate(s ) that the Respondent engaged in a
practice made unlawful under this Ordinance with malice or with
reckless indifference to the protected rights of the Complainant .
(Comments of Mr. Brough, Carrboro attorney. This is the way
Section 177A (b) (1) of the Civil Rights Act of 1991 reads, which is
what Subdiv. 8.3 .2 (b) tracts. )
(c) In the case of a finding by the administrative law judge
that the Respondent has committed an unfair employment practice,
then the following provisions shall also apply:
( 1) the administrative law judge may recommend, in
addition to any of the remedies set forth above, any one or more of
the following:
r
a. reinstatement or hiring of an employee;
b. back pay; provided that it shall not accrue
from a date more than two years prior to the filing of the
complaint with the Commission; and provided further that interim
earnings or amounts earnable with reasonable diligence by the
person discriminated against shall operate to reduce the back pay
otherwise allowable.
( 2 ) Compensatory damages shall not include backpay or
interest on backpay.
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( 3) The sum of the amount of compensatory damages
allowed for future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other
pecuniary losses , and the amount of punitive damages awarded under
this section shall not exceed, for each complaining party:
a. In the case of a Respondent who has more than
14 and fewer than 101 employees in each of 20 or more calendar
weeks in the current or preceding calendar year, $50, 000 ; and
b. In the case of a Respondent who has more than
100 and fewer than 201 employees in each of 20 or more calendar
weeks in the current or preceding calendar year, $100,000; and
C . In the case of a Respondent who has more than
200 and fewer than 501 employees in each of 20 or more calendar
weeks in the current or preceding calendar year, $200, 000; and
d. In the case of a Respondent who has more than
500 employees in each of 20 or more calendar weeks in the current
or preceding calendar year, $300 , 000 .
(4 ) In cases where an unlawful employment practice
involves the provision of a reasonable accommodation, neither
compensatory nor punitive damages may be awarded where the
Respondent demonstrates good faith efforts, in consultation with
the person with the disability who has informed the covered entity
that accommodation is needed, to identify and make a reasonable
accommodation that would provide such individual with an equally
effective opportunity and would not cause an undue hardship on the
operation of the Respondent's business .
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(d) In the case of a finding that the Respondent has
committed, with malice or with reckless indifference to the
protected rights of the Complainant, a violation of this Ordinance,
then the following provisions shall also apply:
( 1) the amount of punitive damages awarded under this
section shall not exceed, for each complaining party:
a. In an amount not exceeding ten thousand dollars
( $10, 000) if the Respondent has not been adjudged to have committed
any prior unlawful discriminatory act;
b. In an amount not exceeding twenty-f ive thousand
dollars ($25 , 000 ) if the Respondent has been adjudged to have
committed one other unlawful discriminatory acts during the five-
year period ending on the date of the filing of the Complaint; or
C . In an amount not exceeding fifty thousand
dollars ( $50 ,000) if the Respondent has been adjudged to have
committed two or more unlawful discriminatory acts during the
seven-year period ending on the date of the filing of the
complaint.
If the act constituting an unlawful violation is committed by
the same natural person who has been previously adjudged to have
committed an act or acts constituting an unlawful discriminatory
practice in violation of this Ordinance, then the punitive damages
set forth above may be imposed without regard to the period of time
within which any subsequent discriminatory practice or act
occurred.
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ARTICLE IX Judicial Review
(a) Judicial review of the final decision of the Commission
shall be in accordance with the provisions provided for judicial
review of agency decisions as set forth in Article 4 , §150B of the
North Carolina General Statutes .
(b) In reviewing the final decision of the Commission, the
court may affirm the decision or remand the case for further
proceedings . It may also reverse or modify the final decision of
the Commission if the substantial rights of the petitioner may have
been prejudiced because the Commission's findings, inferences,
conclusions, or decisions are:
( 1) In violation of constitutional provisions ;
(2 ) In excess of the statutory authority or jurisdiction
of the agency;
( 3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence; or
( 6 ) Arbitrary or capricious .
(c) The court in a review proceeding may:
( 1) Affirm, modify, or reverse the Commission's
decision;
(2 ) Remand the case to the Commission for further
proceedings;
( 3) Grant to any party such temporary relief,
restraining order, or other order as it deems appropriate; or
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(4) Issue an order to enforce the Commission's decision
to the extent that the decision is affirmed or modified.
(d) A party to a review proceeding in Superior Court may
appeal to the appellate division from the final judgment of the
Superior Court as provided in G.S. 7A-27 . Pending the outcome of
an appeal, an appealing party may apply to the court that issued
the judgment under appeal for a stay of that judgment or a stay of
the decision that is the subject of the appeal, as appropriate.
ARTICLE X Civil Actions
(a) Civil actions brought by a Complainant after the issuance
of a right-to-sue letter by the Commission shall be filed in the
Superior Court no later than 90 days one ( 1) year after issuance of
the right-to-sue letter. (HUD comments. )
(b) Parties to a civil action brought pursuant to this
Article shall have the right to a jury trial as provided for by the
North Carolina Rules of Civil Procedure.
(c) Upon application by the Complainant and in such
circumstances as the court may deem just, the court may authorize
the commencement of the action without the payment of fees, costs,
or security.
(d) 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
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(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.
(e) If the court finds that the Respondent has violated, is
violating, or is about to violate this Ordinance, it may order such
affirmative action as may be appropriate, including each of the
remedies that may be recommended by an administrative law judge
under this Ordinance.
(f) No order of the court shall require the admission or
reinstatement, or promotion 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, familial status,
or veteran status in the United States armed services .
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