By: Dutton H.B. No. 651
73R3248 PB-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prohibition of certain discriminatory employment
1-3 practices.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 1.02, Commission on Human Rights Act
1-6 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
1-7 as follows:
1-8 Sec. 1.02. PURPOSES. The general purposes of this Act are:
1-9 (1) to provide for the execution of the policies
1-10 embodied in Title VII of the federal Civil Rights Act of 1964, as
1-11 amended (42 U.S.C. Section 2000e et seq.), and to create an
1-12 authority that meets the criteria under 42 U.S.C. Section
1-13 2000e-5(c) and 29 U.S.C. Section 633; <and>
1-14 (2) to provide for the execution of the policies
1-15 embodied in Title I of the Americans with Disabilities Act of 1990
1-16 (42 U.S.C. Section 12101 et seq.); and
1-17 (3) to secure for persons within the state, including
1-18 disabled persons, freedom from discrimination in certain
1-19 transactions concerning employment, and thereby to protect the
1-20 personal dignity of persons within the state; and to make available
1-21 to the state the full productive capacities of those persons, to
1-22 secure the state against domestic strife and unrest, to preserve
1-23 the public safety, health, and general welfare, and to promote the
1-24 interests, rights, and privileges of persons within the state.
2-1 SECTION 2. Sections 2.01(4), (6), and (7), Commission on
2-2 Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes),
2-3 are amended to read as follows:
2-4 (4) "Disability" means, with respect to an individual,
2-5 a mental or physical impairment that substantially limits at least
2-6 one major life activity of that individual, <or> a record of such
2-7 an <a mental or physical> impairment, or being regarded as having
2-8 such an impairment. The term does not include:
2-9 (A) a person with a current condition of
2-10 addiction to the use of alcohol or any drug or illegal or federally
2-11 controlled substance; or
2-12 (B) a person with a currently communicable
2-13 disease or infection, including but not limited to acquired immune
2-14 deficiency syndrome or infection with the human immunodeficiency
2-15 virus, that constitutes a direct threat to the health or safety of
2-16 other persons or that makes the affected person unable to perform
2-17 the duties of the person's employment.
2-18 (6) "Employee" means an individual employed by an
2-19 employer, including an individual subject to the civil service laws
2-20 of the state or a political subdivision of the state, except that
2-21 the term "employee" does not include an individual elected <by the
2-22 qualified voters> to public office in the state or a political
2-23 subdivision of the state<, an individual chosen by that officer to
2-24 be on the officer's personal staff, an appointee on the
2-25 policy-making level, or an immediate adviser with respect to the
2-26 exercise of the constitutional or legal powers of public office>.
2-27 (7) "Employer" means:
3-1 (A) a person engaged in an industry affecting
3-2 commerce who has 15 or more employees for each working day in each
3-3 of 20 or more calendar weeks in the current or preceding calendar
3-4 year and any agent of that person; <or>
3-5 (B) an individual elected to public office in
3-6 this state or a political subdivision of this state; or
3-7 (C) a county or municipality or any state agency
3-8 or instrumentality, including public institutions of education,
3-9 regardless of the number of individuals employed.
3-10 SECTION 3. Section 3.02(a), Commission on Human Rights Act
3-11 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
3-12 as follows:
3-13 (a) The commission has the following powers:
3-14 (1) to maintain an office in the city of Austin;
3-15 (2) to meet and exercise its powers at any place
3-16 within the state;
3-17 (3) to employ an executive director and authorize the
3-18 employment of other staff members, including any necessary
3-19 attorneys or clerks and other representatives or agents, and to fix
3-20 the compensation of the executive director or other staff members,
3-21 representatives, or agents;
3-22 (4) to promote the creation of local commissions on
3-23 human rights and to cooperate or contract with individuals or
3-24 state, local, or other agencies, both public and private, including
3-25 agencies of the federal government and of other states;
3-26 (5) to accept public grants or private gifts,
3-27 bequests, or other payments;
4-1 (6) to receive, investigate, seek to conciliate, and
4-2 pass on complaints alleging violations of this Act, and file civil
4-3 actions to effectuate the purposes of this Act;
4-4 (7) to request and, if necessary, compel by subpoena
4-5 the attendance of necessary witnesses for examination under oath or
4-6 affirmation, and the production, for inspection and copying, of
4-7 records, documents, and other evidence relevant to the
4-8 investigation of alleged violations of this Act. The commission by
4-9 rule may authorize a commissioner or one of its staff to exercise
4-10 the powers stated in this subdivision on behalf of the commission;
4-11 (8) to furnish technical assistance requested by a
4-12 person subject to this Act to further compliance with the Act or
4-13 with rules or orders issued under this Act;
4-14 (9) to render at least annually a comprehensive
4-15 written report to the governor and to the legislature, which report
4-16 may contain recommendations of the commission for legislative or
4-17 other action to carry out the purposes and policies of this Act;
4-18 <and>
4-19 (10) to adopt, issue, amend, and rescind procedural
4-20 rules to carry out the purposes and policies of this Act;
4-21 (11) to provide educational and outreach activities to
4-22 individuals who have historically been victims of employment
4-23 discrimination; and
4-24 (12) to require state agencies and institutions of
4-25 higher education to develop and implement personnel policies that
4-26 comply with this Act, including personnel selection procedures that
4-27 incorporate a work force diversity program.
5-1 SECTION 4. Section 5.07(a), Commission on Human Rights Act
5-2 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
5-3 as follows:
5-4 (a) Notwithstanding any other provision of this article, it
5-5 is not an unlawful employment practice:
5-6 (1) for an employer to hire and to employ employees,
5-7 for an employment agency to classify or refer for employment an
5-8 individual, for a labor organization to classify its members or to
5-9 classify or refer for employment an individual, or for an employer,
5-10 labor organization, or joint labor-management committee controlling
5-11 an apprenticeship, on-the-job, or other training or retraining
5-12 program to admit or employ an individual in its program, on the
5-13 basis of disability, religion, sex, national origin, or age, if
5-14 disability, religion, sex, national origin, or age is a bona fide
5-15 occupational qualification reasonably necessary to the normal
5-16 operation of the particular business or enterprise;
5-17 (2) for a religious corporation, association, society,
5-18 or educational institution or an educational organization operated,
5-19 supervised, or controlled, in whole or in substantial part, by a
5-20 religious corporation, association, or society to limit employment
5-21 or give preference to members of the same religion;
5-22 (3) for an employer to apply different standards of
5-23 compensation or different terms, conditions, or privileges of
5-24 employment under a bona fide seniority system, bona fide merit
5-25 system, or a bona fide employee benefit plan such as a retirement,
5-26 pension, or insurance plan, which is not a subterfuge to evade this
5-27 Act, or under a system that measures earnings by quantity or
6-1 quality of production if those different standards are not
6-2 discriminatory on the basis of race, color, disability, religion,
6-3 sex, national origin, or age, except that no employee benefit plan
6-4 may excuse a failure to hire on the basis of age and no seniority
6-5 or employee benefit plan may require or permit involuntary
6-6 retirement on the basis of age;
6-7 (4) for an employer to apply to employees who work in
6-8 different locations different standards of compensation or
6-9 different terms, conditions, or privileges of employment if those
6-10 different standards are not discriminatory on the basis of race,
6-11 color, disability, religion, sex, national origin, or age;
6-12 (5) for an employer to impose minimum or maximum age
6-13 requirements for peace officers or fire fighters;
6-14 (6) for a public school official to adopt or implement
6-15 a plan reasonably designed to end discriminatory school practices;
6-16 <or>
6-17 (7) for an employer to engage in any practice that has
6-18 a discriminatory effect and that would otherwise be prohibited by
6-19 this Act if the employer establishes that the practice is not
6-20 intentionally devised or operated to contravene the prohibitions of
6-21 this Act and is justified by business necessity;
6-22 (8) for an employer to adopt a policy prohibiting the
6-23 employment of an individual who currently uses or possesses a
6-24 controlled substance as defined in Schedules I and II of Section
6-25 202, Controlled Substances Act (21 U.S.C. Section 801 et seq.),
6-26 other than the use or possession of a drug taken under the
6-27 supervision of a licensed health care professional or any other use
7-1 or possession authorized by the Controlled Substances Act or any
7-2 other federal or state law unless the policy is adopted or applied
7-3 with an intent to discriminate because of race, color, sex,
7-4 national origin, religion, age, or disability; or
7-5 (9) for an employer to develop and implement personnel
7-6 policies that incorporate work force diversity programs.
7-7 SECTION 5. Article 5, Commission on Human Rights Act
7-8 (Article 5221k, Vernon's Texas Civil Statutes), is amended by
7-9 adding Sections 5.11-5.18 to read as follows:
7-10 Sec. 5.11. BURDEN OF PROOF IN DISPARATE IMPACT CASES. (a)
7-11 An unlawful employment practice based on disparate impact is
7-12 established under this Act only if:
7-13 (1) a complainant demonstrates that a respondent uses
7-14 a particular employment practice that causes a disparate impact on
7-15 the basis of race, color, sex, national origin, religion, age, or
7-16 disability and the respondent fails to demonstrate that the
7-17 challenged practice is job-related for the position in question and
7-18 consistent with business necessity; or
7-19 (2) the complainant makes the demonstration in
7-20 accordance with federal law as that law existed on June 4, 1989,
7-21 with respect to the concept of alternative employment practices,
7-22 and the respondent refuses to adopt such an alternative employment
7-23 practice.
7-24 (b) To demonstrate that a particular employment practice
7-25 causes a disparate impact, the complainant must demonstrate that
7-26 each particular challenged employment practice causes a disparate
7-27 impact, except that if the complainant demonstrates to the
8-1 satisfaction of the court that the elements of a respondent's
8-2 decision-making process are not capable of separation for analysis,
8-3 that decision-making process may be analyzed as one employment
8-4 practice.
8-5 (c) If the respondent demonstrates that a specific practice
8-6 does not cause a disparate impact, the respondent may not be
8-7 required to demonstrate that such a practice is consistent with
8-8 business necessity.
8-9 Sec. 5.12. SCOPE OF DEFENSE. A demonstration that an
8-10 employment practice is consistent with business necessity may not
8-11 be used as a defense under this Act against a complaint of
8-12 intentional discrimination.
8-13 Sec. 5.13. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST
8-14 SCORES. It is an unlawful employment practice for a respondent, in
8-15 connection with the selection or referral of applicants for
8-16 employment or promotion, to adjust the scores of, use different
8-17 cutoff scores for, or otherwise alter the results of
8-18 employment-related tests on the basis of race, color, sex, national
8-19 origin, religion, age, or disability.
8-20 Sec. 5.14. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE
8-21 CONSIDERATION OF RACE, COLOR, SEX, NATIONAL ORIGIN, RELIGION, AGE,
8-22 OR DISABILITY IN EMPLOYMENT PRACTICES. (a) Except as otherwise
8-23 provided in this Act, an unlawful employment practice is
8-24 established when the complainant demonstrates that race, color,
8-25 sex, national origin, religion, age, or disability was a motivating
8-26 factor for an employment practice, even if other factors also
8-27 motivated the practice, unless race, color, sex, national origin,
9-1 religion, age, or disability are combined with objective
9-2 job-related factors to attain diversity within the employer's work
9-3 force.
9-4 (b) In a complaint in which a complainant proves a violation
9-5 under Subsection (a) of this section and a respondent demonstrates
9-6 that the respondent would have taken the same action in the absence
9-7 of the impermissible motivating factor, the court may grant
9-8 declaratory relief, injunctive relief except as otherwise provided
9-9 by this subsection, and attorney's fees and costs demonstrated to
9-10 be directly attributable only to the pursuit of a complaint under
9-11 Subsection (a) of this section but may not award damages or issue
9-12 an order requiring an admission, reinstatement, hiring, promotion,
9-13 or back pay.
9-14 Sec. 5.15. COVERAGE OF PREVIOUSLY EXEMPT EMPLOYEES OF THE
9-15 STATE OR POLITICAL SUBDIVISION OF THE STATE. It is an unlawful
9-16 employment practice for a person elected to public office in this
9-17 state or a political subdivision of this state to discriminate
9-18 because of race, color, sex, national origin, religion, age, or
9-19 disability against an individual who is an employee or applicant
9-20 for employment to serve on the elected official's personal staff,
9-21 to serve the elected official on a policymaking level, or to serve
9-22 the elected official as an immediate advisor with respect to the
9-23 exercise of the constitutional or legal powers of the office.
9-24 Sec. 5.16. EXPANSION OF RIGHTS TO CHALLENGE DISCRIMINATORY
9-25 SENIORITY SYSTEMS. With respect to a seniority system adopted for
9-26 an intentionally discriminatory purpose in violation of this Act,
9-27 whether that discriminatory purpose is apparent on the face of the
10-1 seniority provision, an unlawful employment practice occurs when:
10-2 (1) the seniority system is adopted;
10-3 (2) an individual becomes subject to the system; or
10-4 (3) an individual is injured by the application of the
10-5 system or a provision of the system.
10-6 Sec. 5.17. REASONABLE ACCOMMODATION; GOOD FAITH EFFORT.
10-7 (a) It is an unlawful employment practice for a respondent covered
10-8 under this Act to fail or refuse to make a reasonable workplace
10-9 accommodation to a known physical or mental limitation of an
10-10 otherwise qualified individual with a disability who is an employee
10-11 or applicant for employment, unless the respondent demonstrates
10-12 that the accommodation would impose an undue hardship on the
10-13 operation of the business of the respondent.
10-14 (b) A showing of undue hardship by the respondent is a
10-15 defense to a complaint of discrimination made by an otherwise
10-16 qualified individual with a disability. In considering a complaint
10-17 based on a disability, the commission shall consider the
10-18 reasonableness of the cost of any necessary workplace accommodation
10-19 and the availability of alternatives or other appropriate relief.
10-20 (c) In a complaint in which a discriminatory employment
10-21 practice involves the provision of a reasonable workplace
10-22 accommodation under this Act, damages may not be awarded under
10-23 Section 7.01 of this Act if the respondent demonstrates good faith
10-24 efforts, in consultation with the otherwise qualified individual
10-25 with a disability who has informed the respondent that
10-26 accommodation is needed, to identify and make a reasonable
10-27 workplace accommodation that would provide the individual with an
11-1 equally effective opportunity and would not cause an undue hardship
11-2 on the operation of the business.
11-3 Sec. 5.18. COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION
11-4 AGREEMENTS, AND CONCILIATION AGREEMENTS NOT AFFECTED. This Act may
11-5 not be construed to affect court-ordered remedies, affirmative
11-6 action agreements, or conciliation agreements made in accordance
11-7 with law.
11-8 SECTION 6. Section 6.01, Commission on Human Rights Act
11-9 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
11-10 as follows:
11-11 Sec. 6.01. Complaints; Temporary Relief. (a) A person
11-12 claiming to be aggrieved by an unlawful employment practice, or
11-13 that person's agent, may file with the commission a complaint,
11-14 which must be in writing under oath or affirmation, stating that an
11-15 unlawful employment practice has been committed, setting forth the
11-16 facts on which the complaint is based, including the date, place,
11-17 and circumstances of the alleged unlawful employment practice, and
11-18 setting forth facts sufficient to enable the commission to identify
11-19 the person charged (hereinafter referred to as the respondent).
11-20 The executive director or his designee shall within 10 days serve
11-21 the respondent with a copy of the complaint and, if the complaint
11-22 is amended, a copy of the perfected complaint <shall invite both
11-23 the complainant and respondent to attempt voluntarily to resolve
11-24 their dispute prior to initiation and completion of an
11-25 investigation>. A complaint may be amended to cure technical
11-26 defects or omissions, including a failure to verify the complaint
11-27 and to clarify and amplify allegations made in the complaint. An
12-1 amendment alleging additional acts that constitute unlawful
12-2 employment practices related to or arising from the subject matter
12-3 of the original complaint relates back to the date on which the
12-4 complaint was first received by the commission. If a perfected
12-5 complaint is not received by the commission before the 181st day
12-6 after the date on which the alleged unlawful employment practice
12-7 occurred, the commission shall notify the respondent that a
12-8 complaint has been filed and that the process of perfecting the
12-9 complaint is in progress. A complaint under this section must be
12-10 filed within 180 days after the date the alleged unlawful
12-11 employment practice occurred; untimely complaints shall be
12-12 dismissed by the commission.
12-13 (b) If appropriate, and to the extent authorized by law, the
12-14 use of alternative means of dispute resolution, including
12-15 settlement negotiations, conciliation, facilitation, mediation,
12-16 fact-finding, minitrials, and arbitration, is encouraged to resolve
12-17 disputes arising under this Act or provisions of state law amended
12-18 by this Act. The settlement of a disputed claim under this Act
12-19 that results from the use of traditional or alternative means of
12-20 dispute resolution is binding on the parties to the claim.
12-21 (c) The commission shall establish an office of alternative
12-22 dispute resolution. At any time after a complaint is received
12-23 under Subsection (a) of this section, at the request of a party or
12-24 at the direction of the commission the matter may be referred to
12-25 the office of alternative dispute resolution for arbitration or
12-26 mediation.
12-27 (d) The executive director or any other staff member of the
13-1 commission designated by the executive director shall investigate a
13-2 complaint and determine if there is reasonable cause to believe
13-3 that the respondent has engaged in an unlawful employment practice
13-4 as alleged in the complaint. If the federal government has
13-5 referred the complaint to the commission or has deferred
13-6 jurisdiction over the subject matter of the complaint to the
13-7 commission, the executive director or his designee shall promptly
13-8 investigate the allegations set forth in the complaint.
13-9 (e) <(b)> If, after an investigation, the executive director
13-10 or his designee determines that there is not reasonable cause to
13-11 believe that the respondent has engaged in an unlawful employment
13-12 practice, as alleged in the complaint, the executive director or
13-13 his designee shall issue a written determination incorporating his
13-14 finding that the evidence does not support the complaint and
13-15 dismissing the complaint and shall serve a copy of the
13-16 determination on the complainant, the respondent, and other
13-17 agencies as required by law.
13-18 (f) <(c)> If, after an investigation, the executive director
13-19 or his designee determines that there is reasonable cause to
13-20 believe that the respondent has engaged in an unlawful employment
13-21 practice, as alleged in the complaint, the executive director or
13-22 his designee shall review the evidence in the record with a panel
13-23 of three commissioners. If, after the review, at least two of the
13-24 three commissioners determine that there is reasonable cause to
13-25 believe that the respondent has engaged in an unlawful employment
13-26 practice, the executive director shall issue a written
13-27 determination incorporating his finding that the evidence supports
14-1 the complaint and shall serve a copy of the determination on the
14-2 complainant, the respondent, and other agencies as required by law.
14-3 The commission shall endeavor to eliminate the alleged unlawful
14-4 employment practice by informal methods of conference,
14-5 conciliation, and persuasion. The commission, its executive
14-6 director, or its other officers or employees may not make public,
14-7 without the written consent of the complainant and respondent,
14-8 information about the efforts in a particular case to resolve an
14-9 alleged discriminatory practice by conference, conciliation, or
14-10 persuasion, whether or not there is a determination of reasonable
14-11 cause.
14-12 <(d) A showing of undue hardship by the respondent is a
14-13 defense to a complaint of discrimination made by an employee or
14-14 applicant based on disability. With respect to a complaint based
14-15 on disability, the commission's order must take into account the
14-16 reasonableness of the cost of any necessary work place
14-17 accommodation and the availability of alternatives or other
14-18 appropriate relief.>
14-19 (g) <(e)> If the commission concludes, on the basis of
14-20 preliminary investigation of an alleged unlawful employment
14-21 practice contained in a complaint, that prompt judicial action is
14-22 necessary to carry out the purposes of this Act, the commission
14-23 shall file a petition in the district court in a county in which
14-24 the alleged unlawful employment practice that is the subject of the
14-25 complaint occurred, or in a county in which the respondent resides,
14-26 seeking appropriate temporary relief against the respondent,
14-27 pending final determination of proceedings under this Act. No
15-1 temporary injunctive relief may issue absent a showing by the
15-2 commission of substantial likelihood of success on the merits and
15-3 irreparable harm to the complainant, in the absence of the
15-4 preliminary relief, pending final determination on the merits.
15-5 (h) <(f)> No person who has initiated any action in a court
15-6 of competent jurisdiction or who has an action pending before any
15-7 administrative agency under any other law or any local ordinance of
15-8 any political subdivision of the state based on an act that would
15-9 be an unlawful employment practice under this article may file a
15-10 complaint under this section with respect to the same grievance.
15-11 SECTION 7. Section 7.01, Commission on Human Rights Act
15-12 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
15-13 as follows:
15-14 Sec. 7.01. Judicial Action; Enforcement. (a) If the
15-15 commission has made a determination that there is reasonable cause
15-16 to believe that the respondent has engaged in an unlawful
15-17 employment practice, and the commission's efforts to resolve the
15-18 discriminatory practice to the satisfaction of the complainant and
15-19 respondent through conciliation have been unsuccessful, the
15-20 commission may bring a civil action against the respondent named in
15-21 the charge if a majority of the commissioners determine that the
15-22 civil action may effectuate the purposes of this Act. The
15-23 complainant has the right to intervene in a civil action brought by
15-24 the commission. If the complaint filed with the commission
15-25 pursuant to Section 6.01 of this Act is dismissed by the
15-26 commission, or is not resolved before the expiration of the 180th
15-27 day after the date of filing of the complaint, the commission shall
16-1 so inform the complainant in writing by certified mail. A
16-2 complainant who is so informed is entitled to request from the
16-3 commission a written notice of the complainant's right to file a
16-4 civil action. The complainant must request the notice in writing.
16-5 On receipt of a written request by a complainant, the commission
16-6 shall issue the notice of the right to file a civil action before
16-7 the expiration of the 180th day after the date the complaint was
16-8 filed if the complainant alleges an unlawful employment practice
16-9 based on the complainant's status as an individual with a
16-10 life-threatening illness, as confirmed in writing by a physician
16-11 licensed to practice medicine in this state, or if the executive
16-12 director certifies that administrative processing of the complaint
16-13 cannot be completed before the expiration of the 180th day after
16-14 the date the complaint was filed. The commission shall issue the
16-15 expedited notice by certified mail not later than the fifth
16-16 business day after the date the commission receives the written
16-17 request. The executive director may issue the notice on behalf of
16-18 the commission. Within 60 days after the date of receipt of the
16-19 notice, a civil action may be brought by the complainant against
16-20 the respondent named in the charge. After timely application, the
16-21 court may in its discretion permit the commission to intervene in
16-22 any civil action filed under this subsection on certification that
16-23 the case is of general public importance and if the commission has,
16-24 before commencement of the civil action by the complainant, issued
16-25 a determination of reasonable cause to believe that the Act has
16-26 been violated. In no event may any action be brought pursuant to
16-27 this article more than two years <one year> after the date of
17-1 filing of the complaint to which the action relates.
17-2 (b) The court shall assign any action brought under this
17-3 article for hearing at the earliest practicable date to expedite
17-4 the action.
17-5 (c) If the court finds that the respondent has engaged in an
17-6 unlawful employment practice as alleged in the complaint, the court
17-7 may enjoin the respondent from engaging in an unlawful employment
17-8 practice and order such additional equitable relief as may be
17-9 appropriate.
17-10 (d) Additional equitable relief may include but is not
17-11 limited to:
17-12 (1) the hiring or reinstatement, with or without back
17-13 pay, but back pay liability may not accrue for any date more than
17-14 two years before the date of filing of a complaint with the
17-15 commission, and interim earnings, workers' compensation benefits,
17-16 and unemployment compensation benefits received shall operate to
17-17 reduce the back pay otherwise allowable;
17-18 (2) the upgrading of employees with or without pay;
17-19 (3) the admission or restoration of union membership;
17-20 (4) the admission to or participation in a guidance
17-21 program, apprenticeship, on-the-job, or other training or
17-22 retraining program, with the use of objective job-related criteria
17-23 in the admission of individuals to these programs;
17-24 (5) the reporting on the manner of compliance with the
17-25 terms of a final order issued under this Act; and
17-26 (6) the payment of court costs.
17-27 (e) If the court finds that the respondent has engaged in
18-1 unlawful intentional discrimination as alleged in the complaint,
18-2 the court may award compensatory and punitive damages as provided
18-3 by this subsection. A complainant may recover punitive damages
18-4 against a respondent, other than a respondent that is a
18-5 governmental entity, if the complainant demonstrates that the
18-6 respondent engaged in a discriminatory practice with malice or with
18-7 reckless indifference to the state-protected rights of an aggrieved
18-8 individual. Compensatory damages awarded under this subsection may
18-9 not include back pay, interest on back pay, or other types of
18-10 relief authorized under Subsection (d) of this section. The sum of
18-11 the amount of compensatory damages awarded under this subsection
18-12 for future pecuniary losses, emotional pain, suffering,
18-13 inconvenience, mental anguish, loss of enjoyment of life, and other
18-14 nonpecuniary losses, and the amount of punitive damages awarded
18-15 under this subsection may not exceed, for each complainant:
18-16 (1) in the case of a respondent who has more than 14
18-17 and fewer than 101 employees in each of 20 or more calendar weeks
18-18 in the current or preceding calendar year, $50,000;
18-19 (2) in the case of a respondent who has more than 100
18-20 and fewer than 201 employees in each of 20 or more calendar weeks
18-21 in the current or preceding calendar year, $100,000;
18-22 (3) in the case of a respondent who has more than 200
18-23 and fewer than 501 employees in each of 20 or more calendar weeks
18-24 in the current or preceding calendar year, $200,000; and
18-25 (4) in the case of a respondent who has more than 500
18-26 employees in each of 20 or more calendar weeks in the current or
18-27 preceding calendar year, $300,000.
19-1 (f) In any action or proceeding under this Act, the court in
19-2 its discretion may allow the prevailing party, other than the
19-3 commission, a reasonable attorney's fee as part of the costs. The
19-4 state or an agency or a political subdivision of the state is
19-5 liable for costs, including attorney's fees, to the same extent as
19-6 a private person. In awarding costs and attorney's fees, the court
19-7 may include reasonable expert witness fees and other expenses.
19-8 (g) <(f)> In the case of disabled employees or applicants,
19-9 the court must take into account the undue hardship defense,
19-10 including the reasonableness of the cost of any necessary work
19-11 place accommodation and the availability of alternatives or other
19-12 appropriate relief.
19-13 (h) <(g)> In any case in which an employer, employment
19-14 agency, or labor organization fails to comply with an order of a
19-15 court issued in a civil action brought under this article, a party
19-16 to the action or the commission, on the written request of a person
19-17 aggrieved by the failure, may commence proceedings to compel
19-18 compliance with the order.
19-19 (i) <(h)> All judicial proceedings under this Act shall be
19-20 by trial de novo, and no commission findings, recommendations,
19-21 determinations, or other actions are binding on any court.
19-22 (j) <(i)> A failure to issue the notice of the complainant's
19-23 right to file a civil action does not affect a complainant's right
19-24 under Subsection (a) of this section to bring a civil action
19-25 against the respondent.
19-26 SECTION 8. Article 10, Commission on Human Rights Act
19-27 (Article 5221k, Vernon's Texas Civil Statutes), is amended by
20-1 adding Section 10.06 to read as follows:
20-2 Sec. 10.06. PRIVILEGED COMMUNICATION; IMMUNITY. An oral or
20-3 written statement made to a commissioner or an employee of the
20-4 commission in connection with the discharge of the commissioner's
20-5 or employee's duties under this Act may not be the basis for an
20-6 action for defamation of character.
20-7 SECTION 9. This Act takes effect September 1, 1993, and
20-8 applies only to a complaint filed with the Commission on Human
20-9 Rights on or after that date. A complaint filed before that date
20-10 is governed by the law in effect on the date the complaint was
20-11 filed, and the former law is continued in effect for that purpose.
20-12 SECTION 10. The importance of this legislation and the
20-13 crowded condition of the calendars in both houses create an
20-14 emergency and an imperative public necessity that the
20-15 constitutional rule requiring bills to be read on three several
20-16 days in each house be suspended, and this rule is hereby suspended.