73R7714 PB-D
By Delco, Eckels, et al. H.B. No. 860
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 its subsequent amendments;
1-17 and
1-18 (3) to secure for persons within the state, including
1-19 disabled persons, freedom from discrimination in certain
1-20 transactions concerning employment, and thereby to protect the
1-21 personal dignity of persons within the state; and to make available
1-22 to the state the full productive capacities of those persons, to
1-23 secure the state against domestic strife and unrest, to preserve
1-24 the public safety, health, and general welfare, and to promote the
2-1 interests, rights, and privileges of persons within the state.
2-2 SECTION 2. Section 2.01, Commission on Human Rights Act
2-3 (Article 5221k, Vernon's Texas Civil Statutes), is amended by
2-4 amending Subdivisions (4), (6), and (7) and by adding Subdivisions
2-5 (15), (16), and (17) to read as follows:
2-6 (4) "Disability" means, with respect to an individual,
2-7 a mental or physical impairment that substantially limits at least
2-8 one major life activity of that individual, <or> a record of such
2-9 an <a mental or physical> impairment, or being regarded as having
2-10 such an impairment. The term does not include:
2-11 (A) a person with a current condition of
2-12 addiction to the use of alcohol or any drug or illegal or federally
2-13 controlled substance; or
2-14 (B) a person with a currently communicable
2-15 disease or infection, including but not limited to acquired immune
2-16 deficiency syndrome or infection with the human immunodeficiency
2-17 virus, that constitutes a direct threat to the health or safety of
2-18 other persons or that makes the affected person unable to perform
2-19 the duties of the person's employment.
2-20 (6) "Employee" means an individual employed by an
2-21 employer, including an individual subject to the civil service laws
2-22 of the state or a political subdivision of the state, except that
2-23 the term "employee" does not include an individual elected <by the
2-24 qualified voters> to public office in the state or a political
2-25 subdivision of the state<, an individual chosen by that officer to
2-26 be on the officer's personal staff, an appointee on the
2-27 policy-making level, or an immediate adviser with respect to the
3-1 exercise of the constitutional or legal powers of public office>.
3-2 (7) "Employer" means:
3-3 (A) a person engaged in an industry affecting
3-4 commerce who has 15 or more employees for each working day in each
3-5 of 20 or more calendar weeks in the current or preceding calendar
3-6 year and any agent of that person; <or>
3-7 (B) an individual elected to public office in
3-8 this state or a political subdivision of this state; or
3-9 (C) a county or municipality or any state agency
3-10 or instrumentality, including public institutions of education,
3-11 regardless of the number of individuals employed.
3-12 (15) "Complainant" means an individual who brings an
3-13 action or proceeding under this Act.
3-14 (16) "Demonstrates" means meets the burdens of
3-15 production and persuasion.
3-16 (17) "Respondent" means an employer, employment
3-17 agency, labor organization, or joint labor-management committee
3-18 that controls an apprenticeship or other training or retraining
3-19 program, including an on-the-job training program.
3-20 SECTION 3. Section 3.02(a), Commission on Human Rights Act
3-21 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
3-22 as follows:
3-23 (a) The commission has the following powers:
3-24 (1) to maintain an office in the city of Austin;
3-25 (2) to meet and exercise its powers at any place
3-26 within the state;
3-27 (3) to employ an executive director and authorize the
4-1 employment of other staff members, including any necessary
4-2 attorneys or clerks and other representatives or agents, and to fix
4-3 the compensation of the executive director or other staff members,
4-4 representatives, or agents;
4-5 (4) to promote the creation of local commissions on
4-6 human rights and to cooperate or contract with individuals or
4-7 state, local, or other agencies, both public and private, including
4-8 agencies of the federal government and of other states;
4-9 (5) to accept public grants or private gifts,
4-10 bequests, or other payments;
4-11 (6) to receive, investigate, seek to conciliate, and
4-12 pass on complaints alleging violations of this Act, and file civil
4-13 actions to effectuate the purposes of this Act;
4-14 (7) to request and, if necessary, compel by subpoena
4-15 the attendance of necessary witnesses for examination under oath or
4-16 affirmation, and the production, for inspection and copying, of
4-17 records, documents, and other evidence relevant to the
4-18 investigation of alleged violations of this Act. The commission by
4-19 rule may authorize a commissioner or one of its staff to exercise
4-20 the powers stated in this subdivision on behalf of the commission;
4-21 (8) to furnish technical assistance requested by a
4-22 person subject to this Act to further compliance with the Act or
4-23 with rules or orders issued under this Act;
4-24 (9) to render at least annually a comprehensive
4-25 written report to the governor and to the legislature, which report
4-26 may contain recommendations of the commission for legislative or
4-27 other action to carry out the purposes and policies of this Act;
5-1 <and>
5-2 (10) to adopt, issue, amend, and rescind procedural
5-3 rules to carry out the purposes and policies of this Act;
5-4 (11) to provide educational and outreach activities to
5-5 individuals who have historically been victims of employment
5-6 discrimination; and
5-7 (12) to require state agencies and public institutions
5-8 of higher education to develop and implement personnel policies
5-9 that comply with this Act, including personnel selection procedures
5-10 that incorporate a work force diversity program.
5-11 SECTION 4. Section 5.07(a), Commission on Human Rights Act
5-12 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
5-13 as follows:
5-14 (a) Notwithstanding any other provision of this article, it
5-15 is not an unlawful employment practice:
5-16 (1) for an employer to hire and to employ employees,
5-17 for an employment agency to classify or refer for employment an
5-18 individual, for a labor organization to classify its members or to
5-19 classify or refer for employment an individual, or for an employer,
5-20 labor organization, or joint labor-management committee controlling
5-21 an apprenticeship, on-the-job, or other training or retraining
5-22 program to admit or employ an individual in its program, on the
5-23 basis of disability, religion, sex, national origin, or age, if
5-24 disability, religion, sex, national origin, or age is a bona fide
5-25 occupational qualification reasonably necessary to the normal
5-26 operation of the particular business or enterprise;
5-27 (2) for a religious corporation, association, society,
6-1 or educational institution or an educational organization operated,
6-2 supervised, or controlled, in whole or in substantial part, by a
6-3 religious corporation, association, or society to limit employment
6-4 or give preference to members of the same religion;
6-5 (3) for an employer to apply different standards of
6-6 compensation or different terms, conditions, or privileges of
6-7 employment under a bona fide seniority system, bona fide merit
6-8 system, or a bona fide employee benefit plan such as a retirement,
6-9 pension, or insurance plan, which is not a subterfuge to evade this
6-10 Act, or under a system that measures earnings by quantity or
6-11 quality of production if those different standards are not
6-12 discriminatory on the basis of race, color, disability, religion,
6-13 sex, national origin, or age, except that no employee benefit plan
6-14 may excuse a failure to hire on the basis of age and no seniority
6-15 or employee benefit plan may require or permit involuntary
6-16 retirement on the basis of age;
6-17 (4) for an employer to apply to employees who work in
6-18 different locations different standards of compensation or
6-19 different terms, conditions, or privileges of employment if those
6-20 different standards are not discriminatory on the basis of race,
6-21 color, disability, religion, sex, national origin, or age;
6-22 (5) for an employer to impose minimum or maximum age
6-23 requirements for peace officers or fire fighters;
6-24 (6) for a public school official to adopt or implement
6-25 a plan reasonably designed to end discriminatory school practices;
6-26 <or>
6-27 (7) for an employer to engage in any practice that has
7-1 a discriminatory effect and that would otherwise be prohibited by
7-2 this Act if the employer establishes that the practice is not
7-3 intentionally devised or operated to contravene the prohibitions of
7-4 this Act and is justified by business necessity;
7-5 (8) for an employer to adopt a policy prohibiting the
7-6 employment of an individual who currently uses or possesses a
7-7 controlled substance as defined in Schedules I and II of Section
7-8 202, Controlled Substances Act (21 U.S.C. Section 801 et seq.),
7-9 and their subsequent amendments, other than the use or possession
7-10 of a drug taken under the supervision of a licensed health care
7-11 professional or any other use or possession authorized by the
7-12 Controlled Substances Act or any other federal or state law unless
7-13 the policy is adopted or applied with an intent to discriminate
7-14 because of race, color, sex, national origin, religion, age, or
7-15 disability; or
7-16 (9) for an employer to develop and implement personnel
7-17 policies that incorporate work force diversity programs.
7-18 SECTION 5. Article 5, Commission on Human Rights Act
7-19 (Article 5221k, Vernon's Texas Civil Statutes), is amended by
7-20 adding Sections 5.11-5.18 to read as follows:
7-21 Sec. 5.11. BURDEN OF PROOF IN DISPARATE IMPACT CASES. (a)
7-22 An unlawful employment practice based on disparate impact is
7-23 established under this Act only if:
7-24 (1) a complainant demonstrates that a respondent uses
7-25 a particular employment practice that causes a disparate impact on
7-26 the basis of race, color, sex, national origin, religion, or
7-27 disability and the respondent fails to demonstrate that the
8-1 challenged practice is job-related for the position in question and
8-2 consistent with business necessity; or
8-3 (2) the complainant makes the demonstration in
8-4 accordance with federal law as that law existed on June 4, 1989,
8-5 with respect to the concept of alternative employment practices,
8-6 and the respondent refuses to adopt such an alternative employment
8-7 practice.
8-8 (b) To determine the availability of and burden of proof
8-9 applicable to a disparate impact case involving age discrimination,
8-10 the court shall apply the judicial interpretation of the Age
8-11 Discrimination in Employment Act of 1967 (29 U.S.C. Section 621 et
8-12 seq.) and its subsequent amendments.
8-13 (c) To demonstrate that a particular employment practice
8-14 causes a disparate impact, the complainant must demonstrate that
8-15 each particular challenged employment practice causes a disparate
8-16 impact, except that if the complainant demonstrates to the
8-17 satisfaction of the court that the elements of a respondent's
8-18 decision-making process are not capable of separation for analysis,
8-19 that decision-making process may be analyzed as one employment
8-20 practice.
8-21 (d) If the respondent demonstrates that a specific practice
8-22 does not cause a disparate impact, the respondent shall not be
8-23 required to demonstrate that such a practice is consistent with
8-24 business necessity.
8-25 Sec. 5.12. SCOPE OF DEFENSE. A demonstration that an
8-26 employment practice is consistent with business necessity may not
8-27 be used as a defense under this Act against a complaint of
9-1 intentional discrimination.
9-2 Sec. 5.13. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST
9-3 SCORES. It is an unlawful employment practice for a respondent, in
9-4 connection with the selection or referral of applicants for
9-5 employment or promotion, to adjust the scores of, use different
9-6 cutoff scores for, or otherwise alter the results of
9-7 employment-related tests on the basis of race, color, sex, national
9-8 origin, religion, age, or disability.
9-9 Sec. 5.14. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE
9-10 CONSIDERATION OF RACE, COLOR, SEX, NATIONAL ORIGIN, OR DISABILITY
9-11 IN EMPLOYMENT PRACTICES. (a) Except as otherwise provided in this
9-12 Act, an unlawful employment practice is established when the
9-13 complainant demonstrates that race, color, sex, national origin,
9-14 religion, age, or disability was a motivating factor for an
9-15 employment practice, even if other factors also motivated the
9-16 practice, unless race, color, sex, national origin, or disability
9-17 are combined with objective job-related factors to attain diversity
9-18 within the employer's work force.
9-19 (b) In a complaint in which a complainant proves a violation
9-20 under Subsection (a) of this section and a respondent demonstrates
9-21 that the respondent would have taken the same action in the absence
9-22 of the impermissible motivating factor, the court may grant
9-23 declaratory relief, injunctive relief except as otherwise provided
9-24 by this subsection, and attorney's fees and costs demonstrated to
9-25 be directly attributable only to the pursuit of a complaint under
9-26 Subsection (a) of this section but shall not award damages or issue
9-27 an order requiring an admission, reinstatement, hiring, promotion,
10-1 or back pay.
10-2 Sec. 5.15. COVERAGE OF PREVIOUSLY EXEMPT EMPLOYEES OF THE
10-3 STATE OR POLITICAL SUBDIVISION OF THE STATE. It is an unlawful
10-4 employment practice for a person elected to public office in this
10-5 state or a political subdivision of this state to discriminate
10-6 because of race, color, sex, national origin, religion, age, or
10-7 disability against an individual who is an employee or applicant
10-8 for employment to serve on the elected official's personal staff,
10-9 to serve the elected official on a policymaking level, or to serve
10-10 the elected official as an immediate advisor with respect to the
10-11 exercise of the constitutional or legal powers of the office.
10-12 Sec. 5.16. EXPANSION OF RIGHTS TO CHALLENGE DISCRIMINATORY
10-13 SENIORITY SYSTEMS. With respect to a seniority system adopted for
10-14 an intentionally discriminatory purpose in violation of this Act,
10-15 whether that discriminatory purpose is apparent on the face of the
10-16 seniority provision, an unlawful employment practice occurs when:
10-17 (1) the seniority system is adopted;
10-18 (2) an individual becomes subject to the system; or
10-19 (3) an individual is injured by the application of the
10-20 system or a provision of the system.
10-21 Sec. 5.17. REASONABLE ACCOMMODATION; GOOD FAITH EFFORT.
10-22 (a) It is an unlawful employment practice for a respondent covered
10-23 under this Act to fail or refuse to make a reasonable workplace
10-24 accommodation to a known physical or mental limitation of an
10-25 otherwise qualified individual with a disability who is an employee
10-26 or applicant for employment, unless the respondent demonstrates
10-27 that the accommodation would impose an undue hardship on the
11-1 operation of the business of the respondent.
11-2 (b) A showing of undue hardship by the respondent is a
11-3 defense to a complaint of discrimination made by an otherwise
11-4 qualified individual with a disability. In considering a complaint
11-5 based on a disability, the commission shall consider the
11-6 reasonableness of the cost of any necessary workplace accommodation
11-7 and the availability of alternatives or other appropriate relief.
11-8 (c) In a complaint in which a discriminatory employment
11-9 practice involves the provision of a reasonable workplace
11-10 accommodation under this Act, damages may not be awarded under
11-11 Section 7.01 of this Act if the respondent demonstrates good faith
11-12 efforts, in consultation with the otherwise qualified individual
11-13 with a disability who has informed the respondent that
11-14 accommodation is needed, to identify and make a reasonable
11-15 workplace accommodation that would provide the individual with an
11-16 equally effective opportunity and would not cause an undue hardship
11-17 on the operation of the business.
11-18 Sec. 5.18. COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION
11-19 AGREEMENTS, AND CONCILIATION AGREEMENTS NOT AFFECTED. This Act
11-20 shall not be construed to affect court-ordered remedies,
11-21 affirmative action agreements, or conciliation agreements made in
11-22 accordance with law.
11-23 SECTION 6. Section 6.01, Commission on Human Rights Act
11-24 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
11-25 as follows:
11-26 Sec. 6.01. Complaints; Temporary Relief. (a) A person
11-27 claiming to be aggrieved by an unlawful employment practice, or
12-1 that person's agent, may file with the commission a complaint,
12-2 which must be in writing under oath or affirmation, stating that an
12-3 unlawful employment practice has been committed, setting forth the
12-4 facts on which the complaint is based, including the date, place,
12-5 and circumstances of the alleged unlawful employment practice, and
12-6 setting forth facts sufficient to enable the commission to identify
12-7 the person charged (hereinafter referred to as the respondent).
12-8 The executive director or his designee shall within 10 days serve
12-9 the respondent with a copy of the perfected complaint <and shall
12-10 invite both the complainant and respondent to attempt voluntarily
12-11 to resolve their dispute prior to initiation and completion of an
12-12 investigation>. A complaint may be amended to cure technical
12-13 defects or omissions, including a failure to verify the complaint
12-14 and to clarify and amplify allegations made in the complaint. An
12-15 amendment alleging additional acts that constitute unlawful
12-16 employment practices related to or arising from the subject matter
12-17 of the original complaint relates back to the date on which the
12-18 complaint was first received by the commission. If a perfected
12-19 complaint is not received by the commission within 180 days of the
12-20 alleged unlawful employment practice, the commission shall notify
12-21 the respondent that a complaint has been filed and that the process
12-22 of perfecting the complaint is in progress. A complaint under this
12-23 section must be filed within 180 days after the date the alleged
12-24 unlawful employment practice occurred; untimely complaints shall be
12-25 dismissed by the commission.
12-26 (b) The use of alternative means of dispute resolution,
12-27 including settlement negotiations, conciliation, facilitation,
13-1 mediation, fact-finding, minitrials, and arbitration, is encouraged
13-2 to resolve disputes arising under this Act or provisions of state
13-3 law amended by this Act. The settlement of a disputed claim under
13-4 this Act that results from the use of traditional or alternative
13-5 means of dispute resolution is binding on the parties to the claim.
13-6 (c) The commission shall establish an office of alternative
13-7 dispute resolution. At any time after a complaint is received
13-8 under Subsection (a) of this section, at the request of a party or
13-9 at the direction of the commission the matter may be referred to
13-10 the office of alternative dispute resolution.
13-11 (d) The executive director or any other staff member of the
13-12 commission designated by the executive director shall investigate a
13-13 complaint and determine if there is reasonable cause to believe
13-14 that the respondent has engaged in an unlawful employment practice
13-15 as alleged in the complaint. If the federal government has
13-16 referred the complaint to the commission or has deferred
13-17 jurisdiction over the subject matter of the complaint to the
13-18 commission, the executive director or his designee shall promptly
13-19 investigate the allegations set forth in the complaint.
13-20 (e) <(b)> If, after an investigation, the executive director
13-21 or his designee determines that there is not reasonable cause to
13-22 believe that the respondent has engaged in an unlawful employment
13-23 practice, as alleged in the complaint, the executive director or
13-24 his designee shall issue a written determination incorporating his
13-25 finding that the evidence does not support the complaint and
13-26 dismissing the complaint and shall serve a copy of the
13-27 determination on the complainant, the respondent, and other
14-1 agencies as required by law.
14-2 (f) <(c)> If, after an investigation, the executive director
14-3 or his designee determines that there is reasonable cause to
14-4 believe that the respondent has engaged in an unlawful employment
14-5 practice, as alleged in the complaint, the executive director or
14-6 his designee shall review the evidence in the record with a panel
14-7 of three commissioners. If, after the review, at least two of the
14-8 three commissioners determine that there is reasonable cause to
14-9 believe that the respondent has engaged in an unlawful employment
14-10 practice, the executive director shall issue a written
14-11 determination incorporating his finding that the evidence supports
14-12 the complaint and shall serve a copy of the determination on the
14-13 complainant, the respondent, and other agencies as required by law.
14-14 The commission shall endeavor to eliminate the alleged unlawful
14-15 employment practice by informal methods of conference,
14-16 conciliation, and persuasion. The commission, its executive
14-17 director, or its other officers or employees may not make public,
14-18 without the written consent of the complainant and respondent,
14-19 information about the efforts in a particular case to resolve an
14-20 alleged discriminatory practice by conference, conciliation, or
14-21 persuasion, whether or not there is a determination of reasonable
14-22 cause.
14-23 <(d) A showing of undue hardship by the respondent is a
14-24 defense to a complaint of discrimination made by an employee or
14-25 applicant based on disability. With respect to a complaint based
14-26 on disability, the commission's order must take into account the
14-27 reasonableness of the cost of any necessary work place
15-1 accommodation and the availability of alternatives or other
15-2 appropriate relief.>
15-3 (g) <(e)> If the commission concludes, on the basis of
15-4 preliminary investigation of an alleged unlawful employment
15-5 practice contained in a complaint, that prompt judicial action is
15-6 necessary to carry out the purposes of this Act, the commission
15-7 shall file a petition in the district court in a county in which
15-8 the alleged unlawful employment practice that is the subject of the
15-9 complaint occurred, or in a county in which the respondent resides,
15-10 seeking appropriate temporary relief against the respondent,
15-11 pending final determination of proceedings under this Act. No
15-12 temporary injunctive relief may issue absent a showing by the
15-13 commission of substantial likelihood of success on the merits and
15-14 irreparable harm to the complainant, in the absence of the
15-15 preliminary relief, pending final determination on the merits.
15-16 (h) <(f)> No person who has initiated any action in a court
15-17 of competent jurisdiction or who has an action pending before any
15-18 administrative agency under any other law or any local ordinance of
15-19 any political subdivision of the state based on an act that would
15-20 be an unlawful employment practice under this article may file a
15-21 complaint under this section with respect to the same grievance.
15-22 SECTION 7. Section 7.01, Commission on Human Rights Act
15-23 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
15-24 as follows:
15-25 Sec. 7.01. Judicial Action; Enforcement. (a) If the
15-26 commission has made a determination that there is reasonable cause
15-27 to believe that the respondent has engaged in an unlawful
16-1 employment practice, and the commission's efforts to resolve the
16-2 discriminatory practice to the satisfaction of the complainant and
16-3 respondent through conciliation have been unsuccessful, the
16-4 commission may bring a civil action against the respondent named in
16-5 the charge if a majority of the commissioners determine that the
16-6 civil action may effectuate the purposes of this Act. The
16-7 complainant has the right to intervene in a civil action brought by
16-8 the commission. If the complaint filed with the commission
16-9 pursuant to Section 6.01 of this Act is dismissed by the
16-10 commission, or is not resolved before the expiration of the 180th
16-11 day after the date of filing of the complaint, the commission shall
16-12 so inform the complainant in writing by certified mail. A
16-13 complainant who is so informed is entitled to request from the
16-14 commission a written notice of the complainant's right to file a
16-15 civil action. The complainant must request the notice in writing.
16-16 On receipt of a written request by a complainant, the commission
16-17 shall issue the notice of the right to file a civil action before
16-18 the expiration of the 180th day after the date the complaint was
16-19 filed if the complainant alleges an unlawful employment practice
16-20 based on the complainant's status as an individual with a
16-21 life-threatening illness, as confirmed in writing by a physician
16-22 licensed to practice medicine in this state, or if the executive
16-23 director certifies that administrative processing of the complaint
16-24 cannot be completed before the expiration of the 180th day after
16-25 the date the complaint was filed. The commission shall issue the
16-26 expedited notice by certified mail not later than the fifth
16-27 business day after the date the commission receives the written
17-1 request. The executive director may issue the notice on behalf of
17-2 the commission. Within 60 days after the date of receipt of the
17-3 notice, a civil action may be brought by the complainant against
17-4 the respondent named in the charge. After timely application, the
17-5 court may in its discretion permit the commission to intervene in
17-6 any civil action filed under this subsection on certification that
17-7 the case is of general public importance and if the commission has,
17-8 before commencement of the civil action by the complainant, issued
17-9 a determination of reasonable cause to believe that the Act has
17-10 been violated. In no event may any action be brought pursuant to
17-11 this article more than two years <one year> after the date of
17-12 filing of the complaint to which the action relates.
17-13 (b) The court shall assign any action brought under this
17-14 article for hearing at the earliest practicable date to expedite
17-15 the action.
17-16 (c) If the court finds that the respondent has engaged in an
17-17 unlawful employment practice as alleged in the complaint, the court
17-18 may enjoin the respondent from engaging in an unlawful employment
17-19 practice and order such additional equitable relief as may be
17-20 appropriate.
17-21 (d) Additional equitable relief may include but is not
17-22 limited to:
17-23 (1) the hiring or reinstatement, with or without back
17-24 pay, but back pay liability may not accrue for any date more than
17-25 two years before the date of filing of a complaint with the
17-26 commission, and interim earnings, workers' compensation benefits,
17-27 and unemployment compensation benefits received shall operate to
18-1 reduce the back pay otherwise allowable;
18-2 (2) the upgrading of employees with or without pay;
18-3 (3) the admission or restoration of union membership;
18-4 (4) the admission to or participation in a guidance
18-5 program, apprenticeship, on-the-job, or other training or
18-6 retraining program, with the use of objective job-related criteria
18-7 in the admission of individuals to these programs;
18-8 (5) the reporting on the manner of compliance with the
18-9 terms of a final order issued under this Act; and
18-10 (6) the payment of court costs.
18-11 (e) If the court finds that the respondent has engaged in
18-12 unlawful intentional discrimination as alleged in the complaint,
18-13 the court may award compensatory and punitive damages as provided
18-14 by this subsection. A complainant may recover punitive damages
18-15 against a respondent, other than a respondent that is a
18-16 governmental entity, if the complainant demonstrates that the
18-17 respondent engaged in a discriminatory practice with malice or with
18-18 reckless indifference to the state-protected rights of an aggrieved
18-19 individual. Compensatory damages awarded under this subsection
18-20 shall not include back pay, interest on back pay, or other types of
18-21 relief authorized under Subsection (d) of this section. The sum of
18-22 the amount of compensatory damages awarded under this subsection
18-23 for future pecuniary losses, emotional pain, suffering,
18-24 inconvenience, mental anguish, loss of enjoyment of life, and other
18-25 nonpecuniary losses, and the amount of punitive damages awarded
18-26 under this subsection may not exceed, for each complainant:
18-27 (1) in the case of a respondent who has more than 14
19-1 and fewer than 101 employees in each of 20 or more calendar weeks
19-2 in the current or preceding calendar year, $50,000;
19-3 (2) in the case of a respondent who has more than 100
19-4 and fewer than 201 employees in each of 20 or more calendar weeks
19-5 in the current or preceding calendar year, $100,000;
19-6 (3) in the case of a respondent who has more than 200
19-7 and fewer than 501 employees in each of 20 or more calendar weeks
19-8 in the current or preceding calendar year, $200,000; and
19-9 (4) in the case of a respondent who has more than 500
19-10 employees in each of 20 or more calendar weeks in the current or
19-11 preceding calendar year, $300,000.
19-12 (f) In any action or proceeding under this Act, the court in
19-13 its discretion may allow the prevailing party, other than the
19-14 commission, a reasonable attorney's fee as part of the costs. The
19-15 state or an agency or a political subdivision of the state is
19-16 liable for costs, including attorney's fees, to the same extent as
19-17 a private person. In awarding costs and attorney's fees in an
19-18 action or proceeding under this Act, the court, in its discretion,
19-19 may include reasonable expert fees.
19-20 (g) <(f)> In the case of disabled employees or applicants,
19-21 the court must take into account the undue hardship defense,
19-22 including the reasonableness of the cost of any necessary work
19-23 place accommodation and the availability of alternatives or other
19-24 appropriate relief.
19-25 (h) <(g)> In any case in which an employer, employment
19-26 agency, or labor organization fails to comply with an order of a
19-27 court issued in a civil action brought under this article, a party
20-1 to the action or the commission, on the written request of a person
20-2 aggrieved by the failure, may commence proceedings to compel
20-3 compliance with the order.
20-4 (i) <(h)> All judicial proceedings under this Act shall be
20-5 by trial de novo, and no commission findings, recommendations,
20-6 determinations, or other actions are binding on any court.
20-7 (j) <(i)> A failure to issue the notice of the complainant's
20-8 right to file a civil action does not affect a complainant's right
20-9 under Subsection (a) of this section to bring a civil action
20-10 against the respondent.
20-11 SECTION 8. Article 10, Commission on Human Rights Act
20-12 (Article 5221k, Vernon's Texas Civil Statutes), is amended by
20-13 adding Sections 10.06, 10.07, and 10.08 to read as follows:
20-14 Sec. 10.06. PRIVILEGED COMMUNICATION; IMMUNITY. An oral or
20-15 written statement made to a commissioner or an employee of the
20-16 commission in connection with the discharge of the commissioner's
20-17 or employee's duties under this Act shall not be the basis for an
20-18 action for defamation of character.
20-19 Sec. 10.07. LIMITED SEVERABILITY. (a) If any clause,
20-20 sentence, subsection, section, article, or other provision of this
20-21 Act or the application of such a provision to any person or
20-22 circumstances is held invalid or unconstitutional, that invalidity
20-23 shall not affect the other clauses, sentences, subsections,
20-24 sections, articles, or provisions or applications of this Act that
20-25 may be given effect without the invalid clause, sentence,
20-26 subsection, section, article, or provision or application and shall
20-27 not affect, invalidate, impair, or nullify the remainder of this
21-1 Act. The effect of the determination of invalidity shall be
21-2 confined to the clause, sentence, subsection, section, article, or
21-3 provision or application so adjudicated to be invalid or
21-4 unconstitutional, and to that end the provisions of this Act are
21-5 declared to be severable.
21-6 (b) If any limit on damages prescribed by Section 7.01(e) of
21-7 this Act is invalidated by a method other than through legislative
21-8 means, the amount of civil liability for all past and future
21-9 noneconomic losses, including past and future pain and suffering,
21-10 mental anguish and suffering, and any other nonpecuniary damage,
21-11 shall be limited to an amount not to exceed $150,000.
21-12 (c) If any limit on damages prescribed by Section 7.01(e)
21-13 of this Act is invalidated by a method other than through
21-14 legislative means, and if the alternative civil liability limits
21-15 contained in Subsection (b) of this section are also invalidated by
21-16 a method other than legislative means, Section 7.01(e) shall be
21-17 void.
21-18 Sec. 10.08. JOINDER OF COMMISSION. In any civil action in
21-19 which the validity of any provision of this Act, a rule adopted
21-20 under this Act, or the application of such a provision or rule, is
21-21 challenged as void, unconstitutional, or unenforceable, the
21-22 commission shall be made a party to the proceedings, and on the
21-23 motion of the commission, venue of the cause may be transferred to
21-24 the district courts of Travis County, Texas. An order restraining
21-25 the commission or invalidating any provision of this Act or a
21-26 commission rule adopted under this Act may not be enforced and may
21-27 not take effect until the commission has answered and appeared in
22-1 the cause and has exhausted all avenues of appeal and any judgment
22-2 is final and enforceable. In such a declaratory proceeding, only
22-3 the commission, if a prevailing party, is entitled to recover, and
22-4 the court may award, costs and attorney's fees, notwithstanding any
22-5 other provision of state law, including this Act.
22-6 SECTION 9. This Act takes effect September 1, 1993, and
22-7 applies only to a complaint filed with the Commission on Human
22-8 Rights on or after that date. A complaint filed before that date
22-9 is governed by the law in effect on the date the complaint was
22-10 filed, and the former law is continued in effect for that purpose.
22-11 SECTION 10. The importance of this legislation and the
22-12 crowded condition of the calendars in both houses create an
22-13 emergency and an imperative public necessity that the
22-14 constitutional rule requiring bills to be read on three several
22-15 days in each house be suspended, and this rule is hereby suspended.