By:  Delco                                             H.B. No. 860
       73R3779 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.  Section 2.01, Commission on Human Rights Act
    2-2  (Article 5221k, Vernon's Texas Civil Statutes), is amended by
    2-3  amending Subdivisions (4), (6), and (7) and by adding Subdivisions
    2-4  (15), (16), and (17) to read as follows:
    2-5              (4)  "Disability" means, with respect to an individual,
    2-6  a mental or physical impairment that substantially limits at least
    2-7  one major life activity of that individual, <or> a record of such
    2-8  an <a mental or physical> impairment, or being regarded as having
    2-9  such an impairment.  The term does not include:
   2-10                    (A)  a person with a current condition of
   2-11  addiction to the use of alcohol or any drug or illegal or federally
   2-12  controlled substance; or
   2-13                    (B)  a person with a currently communicable
   2-14  disease or infection, including but not limited to acquired immune
   2-15  deficiency syndrome or infection with the human immunodeficiency
   2-16  virus, that constitutes a direct threat to the health or safety of
   2-17  other persons or that makes the affected person unable to perform
   2-18  the duties of the person's employment.
   2-19              (6)  "Employee" means an individual employed by an
   2-20  employer, including an individual subject to the civil service laws
   2-21  of the state or a political subdivision of the state, except that
   2-22  the term "employee" does not include an individual elected <by the
   2-23  qualified voters> to public office in the state or a political
   2-24  subdivision of the state<, an individual chosen by that officer to
   2-25  be on the officer's personal staff, an appointee on the
   2-26  policy-making level, or an immediate adviser with respect to the
   2-27  exercise of the constitutional or legal powers of public office>.
    3-1              (7)  "Employer" means:
    3-2                    (A)  a person engaged in an industry affecting
    3-3  commerce who has 15 or more employees for each working day in each
    3-4  of 20 or more calendar weeks in the current or preceding calendar
    3-5  year and any agent of that person; <or>
    3-6                    (B)  an individual elected to public office in
    3-7  this state or a political subdivision of this state; or
    3-8                    (C)  a county or municipality or any state agency
    3-9  or instrumentality, including public institutions of education,
   3-10  regardless of the number of individuals employed.
   3-11              (15)  "Complainant" means an individual who brings an
   3-12  action or proceeding under this Act.
   3-13              (16)  "Demonstrates" means meets the burdens of
   3-14  production and persuasion.
   3-15              (17)  "Respondent" means an employer, employment
   3-16  agency, labor organization, or joint labor-management committee
   3-17  that controls an apprenticeship or other training or retraining
   3-18  program, including an on-the-job training program.
   3-19        SECTION 3.  Section 3.02(a), Commission on Human Rights Act
   3-20  (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
   3-21  as follows:
   3-22        (a)  The commission has the following powers:
   3-23              (1)  to maintain an office in the city of Austin;
   3-24              (2)  to meet and exercise its powers at any place
   3-25  within the state;
   3-26              (3)  to employ an executive director and authorize the
   3-27  employment of other staff members, including any necessary
    4-1  attorneys or clerks and other representatives or agents, and to fix
    4-2  the compensation of the executive director or other staff members,
    4-3  representatives, or agents;
    4-4              (4)  to promote the creation of local commissions on
    4-5  human rights and to cooperate or contract with individuals or
    4-6  state, local, or other agencies, both public and private, including
    4-7  agencies of the federal government and of other states;
    4-8              (5)  to accept public grants or private gifts,
    4-9  bequests, or other payments;
   4-10              (6)  to receive, investigate, seek to conciliate, and
   4-11  pass on complaints alleging violations of this Act, and file civil
   4-12  actions to effectuate the purposes of this Act;
   4-13              (7)  to request and, if necessary, compel by subpoena
   4-14  the attendance of necessary witnesses for examination under oath or
   4-15  affirmation, and the production, for inspection and copying, of
   4-16  records, documents, and other evidence relevant to the
   4-17  investigation of alleged violations of this Act.  The commission by
   4-18  rule may authorize a commissioner or one of its staff to exercise
   4-19  the powers stated in this subdivision on behalf of the commission;
   4-20              (8)  to furnish technical assistance requested by a
   4-21  person subject to this Act to further compliance with the Act or
   4-22  with rules or orders issued under this Act;
   4-23              (9)  to render at least annually a comprehensive
   4-24  written report to the governor and to the legislature, which report
   4-25  may contain recommendations of the commission for legislative or
   4-26  other action to carry out the purposes and policies of this Act;
   4-27  <and>
    5-1              (10)  to adopt, issue, amend, and rescind procedural
    5-2  rules to carry out the purposes and policies of this Act;
    5-3              (11)  to provide educational and outreach activities to
    5-4  individuals who have historically been victims of employment
    5-5  discrimination; and
    5-6              (12)  to require state agencies and institutions of
    5-7  higher education to develop and implement personnel policies that
    5-8  comply with this Act, including personnel selection procedures that
    5-9  incorporate a work force diversity program.
   5-10        SECTION 4.  Section 5.07(a), Commission on Human Rights Act
   5-11  (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
   5-12  as follows:
   5-13        (a)  Notwithstanding any other provision of this article, it
   5-14  is not an unlawful employment practice:
   5-15              (1)  for an employer to hire and to employ employees,
   5-16  for an employment agency to classify or refer for employment an
   5-17  individual, for a labor organization to classify its members or to
   5-18  classify or refer for employment an individual, or for an employer,
   5-19  labor organization, or joint labor-management committee controlling
   5-20  an apprenticeship, on-the-job, or other training or retraining
   5-21  program to admit or employ an individual in its program, on the
   5-22  basis of disability, religion, sex, national origin, or age, if
   5-23  disability, religion, sex, national origin, or age is a bona fide
   5-24  occupational qualification reasonably necessary to the normal
   5-25  operation of the particular business or enterprise;
   5-26              (2)  for a religious corporation, association, society,
   5-27  or educational institution or an educational organization operated,
    6-1  supervised, or controlled, in whole or in substantial part, by a
    6-2  religious corporation, association, or society to limit employment
    6-3  or give preference to members of the same religion;
    6-4              (3)  for an employer to apply different standards of
    6-5  compensation or different terms, conditions, or privileges of
    6-6  employment under a bona fide seniority system, bona fide merit
    6-7  system, or a bona fide employee benefit plan such as a retirement,
    6-8  pension, or insurance plan, which is not a subterfuge to evade this
    6-9  Act, or under a system that measures earnings by quantity or
   6-10  quality of production if those different standards are not
   6-11  discriminatory on the basis of race, color, disability, religion,
   6-12  sex, national origin, or age, except that no employee benefit plan
   6-13  may excuse a failure to hire on the basis of age and no seniority
   6-14  or employee benefit plan may require or permit involuntary
   6-15  retirement on the basis of age;
   6-16              (4)  for an employer to apply to employees who work in
   6-17  different locations different standards of compensation or
   6-18  different terms, conditions, or privileges of employment if those
   6-19  different standards are not discriminatory on the basis of race,
   6-20  color, disability, religion, sex, national origin, or age;
   6-21              (5)  for an employer to impose minimum or maximum age
   6-22  requirements for peace officers or fire fighters;
   6-23              (6)  for a public school official to adopt or implement
   6-24  a plan reasonably designed to end discriminatory school practices;
   6-25  <or>
   6-26              (7)  for an employer to engage in any practice that has
   6-27  a discriminatory effect and that would otherwise be prohibited by
    7-1  this Act if the employer establishes that the practice is not
    7-2  intentionally devised or operated to contravene the prohibitions of
    7-3  this Act and is justified by business necessity;
    7-4              (8)  for an employer to adopt a policy prohibiting the
    7-5  employment of an individual who currently uses or possesses a
    7-6  controlled substance as defined in Schedules I and II of Section
    7-7  202, Controlled Substances Act (21 U.S.C.  Section 801 et seq.),
    7-8  other than the use or possession of a drug taken under the
    7-9  supervision of a licensed health care professional or any other use
   7-10  or possession authorized by the Controlled Substances Act or any
   7-11  other federal or state law unless the policy is adopted or applied
   7-12  with an intent to discriminate because of race, color, sex,
   7-13  national origin, religion, age, or disability; or
   7-14              (9)  for an employer to develop and implement personnel
   7-15  policies that incorporate work force diversity programs.
   7-16        SECTION 5.  Article 5, Commission on Human Rights Act
   7-17  (Article 5221k, Vernon's Texas Civil Statutes), is amended by
   7-18  adding Sections 5.11-5.18 to read as follows:
   7-19        Sec. 5.11.  BURDEN OF PROOF IN DISPARATE IMPACT CASES.  (a)
   7-20  An unlawful employment practice based on disparate impact is
   7-21  established under this Act only if:
   7-22              (1)  a complainant demonstrates that a respondent uses
   7-23  a particular employment practice that causes a disparate impact on
   7-24  the basis of race, color, sex, national origin, religion, age, or
   7-25  disability and the respondent fails to demonstrate that the
   7-26  challenged practice is job-related for the position in question and
   7-27  consistent with business necessity; or
    8-1              (2)  the complainant makes the demonstration in
    8-2  accordance with federal law as that law existed on June 4, 1989,
    8-3  with respect to the concept of alternative employment practices,
    8-4  and the respondent refuses to adopt such an alternative employment
    8-5  practice.
    8-6        (b)  To determine the availability of and burden of proof
    8-7  applicable to a disparate impact case involving age discrimination,
    8-8  the court shall apply the judicial interpretation of the Age
    8-9  Discrimination in Employment Act of 1967 (29 U.S.C. Section 621 et
   8-10  seq.).
   8-11        (c)  To demonstrate that a particular employment practice
   8-12  causes a disparate impact, the complainant must demonstrate that
   8-13  each particular challenged employment practice causes a disparate
   8-14  impact, except that if the complainant demonstrates to the
   8-15  satisfaction of the court that the elements of a respondent's
   8-16  decision-making process are not capable of separation for analysis,
   8-17  that decision-making process may be analyzed as one employment
   8-18  practice.
   8-19        (d)  If the respondent demonstrates that a specific practice
   8-20  does not cause a disparate impact, the respondent may not be
   8-21  required to demonstrate that such a practice is consistent with
   8-22  business necessity.
   8-23        Sec. 5.12.  SCOPE OF DEFENSE.  A demonstration that an
   8-24  employment practice is consistent with business necessity may not
   8-25  be used as a defense under this Act against a complaint of
   8-26  intentional discrimination.
   8-27        Sec. 5.13.  PROHIBITION AGAINST DISCRIMINATORY USE OF TEST
    9-1  SCORES.  It is an unlawful employment practice for a respondent, in
    9-2  connection with the selection or referral of applicants for
    9-3  employment or promotion, to adjust the scores of, use different
    9-4  cutoff scores for, or otherwise alter the results of
    9-5  employment-related tests on the basis of race, color, sex, national
    9-6  origin, religion, age, or disability.
    9-7        Sec. 5.14.  CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE
    9-8  CONSIDERATION OF RACE, COLOR, SEX, NATIONAL ORIGIN, RELIGION, AGE,
    9-9  OR DISABILITY IN EMPLOYMENT PRACTICES.  (a)  Except as otherwise
   9-10  provided in this Act, an unlawful employment practice is
   9-11  established when the complainant demonstrates that race, color,
   9-12  sex, national origin, religion, age, or disability was a motivating
   9-13  factor for an employment practice, even if other factors also
   9-14  motivated the practice, unless race, color, sex, national origin,
   9-15  religion, age, or disability are combined with objective
   9-16  job-related factors to attain diversity within the employer's work
   9-17  force.
   9-18        (b)  In a complaint in which a complainant proves a violation
   9-19  under Subsection (a) of this section and a respondent demonstrates
   9-20  that the respondent would have taken the same action in the absence
   9-21  of the impermissible motivating factor, the court may grant
   9-22  declaratory relief, injunctive relief except as otherwise provided
   9-23  by this subsection, and attorney's fees and costs demonstrated to
   9-24  be directly attributable only to the pursuit of a complaint under
   9-25  Subsection (a) of this section but may not award damages or issue
   9-26  an order requiring an admission, reinstatement, hiring, promotion,
   9-27  or back pay.
   10-1        Sec. 5.15.  COVERAGE OF PREVIOUSLY EXEMPT EMPLOYEES OF THE
   10-2  STATE OR POLITICAL SUBDIVISION OF THE STATE.  It is an unlawful
   10-3  employment practice for a person elected to public office in this
   10-4  state or a political subdivision of this state to discriminate
   10-5  because of race, color, sex, national origin, religion, age, or
   10-6  disability against an individual who is an employee or applicant
   10-7  for employment to serve on the elected official's personal staff,
   10-8  to serve the elected official on a policymaking level, or to serve
   10-9  the elected official as an immediate advisor with respect to the
  10-10  exercise of the constitutional or legal powers of the office.
  10-11        Sec. 5.16.  EXPANSION OF RIGHTS TO CHALLENGE DISCRIMINATORY
  10-12  SENIORITY SYSTEMS.  With respect to a seniority system adopted for
  10-13  an intentionally discriminatory purpose in violation of this Act,
  10-14  whether that discriminatory purpose is apparent on the face of the
  10-15  seniority provision, an unlawful employment practice occurs when:
  10-16              (1)  the seniority system is adopted;
  10-17              (2)  an individual becomes subject to the system; or
  10-18              (3)  an individual is injured by the application of the
  10-19  system or a provision of the system.
  10-20        Sec. 5.17.  REASONABLE ACCOMMODATION; GOOD FAITH EFFORT.
  10-21  (a)  It is an unlawful employment practice for a respondent covered
  10-22  under this Act to fail or refuse to make a reasonable workplace
  10-23  accommodation to a known physical or mental limitation of an
  10-24  otherwise qualified individual with a disability who is an employee
  10-25  or applicant for employment, unless the respondent demonstrates
  10-26  that the accommodation would impose an undue hardship on the
  10-27  operation of the business of the respondent.
   11-1        (b)  A showing of undue hardship by the respondent is a
   11-2  defense to a complaint of discrimination made by an otherwise
   11-3  qualified individual with a disability.  In considering a complaint
   11-4  based on a disability, the commission shall consider the
   11-5  reasonableness of the cost of any necessary workplace accommodation
   11-6  and the availability of alternatives or other appropriate relief.
   11-7        (c)  In a complaint in which a discriminatory employment
   11-8  practice involves the provision of a reasonable workplace
   11-9  accommodation under this Act, damages may not be awarded under
  11-10  Section 7.01 of this Act if the respondent demonstrates good faith
  11-11  efforts, in consultation with the otherwise qualified individual
  11-12  with a disability who has informed the respondent that
  11-13  accommodation is needed, to identify and make a reasonable
  11-14  workplace accommodation that would provide the individual with an
  11-15  equally effective opportunity and would not cause an undue hardship
  11-16  on the operation of the business.
  11-17        Sec. 5.18.  COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION
  11-18  AGREEMENTS, AND CONCILIATION AGREEMENTS NOT AFFECTED.  This Act may
  11-19  not be construed to affect court-ordered remedies, affirmative
  11-20  action agreements, or conciliation agreements made in accordance
  11-21  with law.
  11-22        SECTION 6.  Section 6.01, Commission on Human Rights Act
  11-23  (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
  11-24  as follows:
  11-25        Sec. 6.01.  Complaints; Temporary Relief.  (a)  A person
  11-26  claiming to be aggrieved by an unlawful employment practice, or
  11-27  that person's agent, may file with the commission a complaint,
   12-1  which must be in writing under oath or affirmation, stating that an
   12-2  unlawful employment practice has been committed, setting forth the
   12-3  facts on which the complaint is based, including the date, place,
   12-4  and circumstances of the alleged unlawful employment practice, and
   12-5  setting forth facts sufficient to enable the commission to identify
   12-6  the person charged (hereinafter referred to as the respondent).
   12-7  The executive director or his designee shall within 10 days serve
   12-8  the respondent with a copy of the complaint and, if the complaint
   12-9  is amended, a copy of the perfected complaint <shall invite both
  12-10  the complainant and respondent to attempt voluntarily to resolve
  12-11  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 before the 181st day
  12-20  after the date on which the alleged unlawful employment practice
  12-21  occurred, the commission shall notify the respondent that a
  12-22  complaint has been filed and that the process of perfecting the
  12-23  complaint is in progress.  A complaint under this section must be
  12-24  filed within 180 days after the date the alleged unlawful
  12-25  employment practice occurred; untimely complaints shall be
  12-26  dismissed by the commission.
  12-27        (b)  The use of alternative means of dispute resolution,
   13-1  including settlement negotiations, conciliation, facilitation,
   13-2  mediation, fact-finding, minitrials, and arbitration, is encouraged
   13-3  to resolve disputes arising under this Act or provisions of state
   13-4  law amended by this Act.  The settlement of a disputed claim under
   13-5  this Act that results from the use of traditional or alternative
   13-6  means of dispute resolution is binding on the parties to the claim.
   13-7        (c)  The commission shall establish an office of alternative
   13-8  dispute resolution.  At any time after a complaint is received
   13-9  under Subsection (a) of this section, at the request of a party or
  13-10  at the direction of the commission the matter may be referred to
  13-11  the office of alternative dispute resolution for arbitration or
  13-12  mediation.
  13-13        (d)  The executive director or any other staff member of the
  13-14  commission designated by the executive director shall investigate a
  13-15  complaint and determine if there is reasonable cause to believe
  13-16  that the respondent has engaged in an unlawful employment practice
  13-17  as alleged in the complaint.  If the federal government has
  13-18  referred the complaint to the commission or has deferred
  13-19  jurisdiction over the subject matter of the complaint to the
  13-20  commission, the executive director or his designee shall promptly
  13-21  investigate the allegations set forth in the complaint.
  13-22        (e) <(b)>  If, after an investigation, the executive director
  13-23  or his designee determines that there is not reasonable cause to
  13-24  believe that the respondent has engaged in an unlawful employment
  13-25  practice, as alleged in the complaint, the executive director or
  13-26  his designee shall issue a written determination incorporating his
  13-27  finding that the evidence does not support the complaint and
   14-1  dismissing the complaint and shall serve a copy of the
   14-2  determination on the complainant, the respondent, and other
   14-3  agencies as required by law.
   14-4        (f) <(c)>  If, after an investigation, the executive director
   14-5  or his designee determines that there is reasonable cause to
   14-6  believe that the respondent has engaged in an unlawful employment
   14-7  practice, as alleged in the complaint, the executive director or
   14-8  his designee shall review the evidence in the record with a panel
   14-9  of three commissioners.  If, after the review, at least two of the
  14-10  three commissioners determine that there is reasonable cause to
  14-11  believe that the respondent has engaged in an unlawful employment
  14-12  practice, the executive director shall issue a written
  14-13  determination incorporating his finding that the evidence supports
  14-14  the complaint and shall serve a copy of the determination on the
  14-15  complainant, the respondent, and other agencies as required by law.
  14-16  The commission shall endeavor to eliminate the alleged unlawful
  14-17  employment practice by informal methods of conference,
  14-18  conciliation, and persuasion.  The commission, its executive
  14-19  director, or its other officers or employees may not make public,
  14-20  without the written consent of the complainant and respondent,
  14-21  information about the efforts in a particular case to resolve an
  14-22  alleged discriminatory practice by conference, conciliation, or
  14-23  persuasion, whether or not there is a determination of reasonable
  14-24  cause.
  14-25        <(d)  A showing of undue hardship by the respondent is a
  14-26  defense to a complaint of discrimination made by an employee or
  14-27  applicant based on disability.  With respect to a complaint based
   15-1  on disability, the commission's order must take into account the
   15-2  reasonableness of the cost of any necessary work place
   15-3  accommodation and the availability of alternatives or other
   15-4  appropriate relief.>
   15-5        (g) <(e)>  If the commission concludes, on the basis of
   15-6  preliminary investigation of an alleged unlawful employment
   15-7  practice contained in a complaint, that prompt judicial action is
   15-8  necessary to carry out the purposes of this Act, the commission
   15-9  shall file a petition in the district court in a county in which
  15-10  the alleged unlawful employment practice that is the subject of the
  15-11  complaint occurred, or in a county in which the respondent resides,
  15-12  seeking appropriate temporary relief against the respondent,
  15-13  pending final determination of proceedings under this Act.  No
  15-14  temporary injunctive relief may issue absent a showing by the
  15-15  commission of substantial likelihood of success on the merits and
  15-16  irreparable harm to the complainant, in the absence of the
  15-17  preliminary relief, pending final determination on the merits.
  15-18        (h) <(f)>  No person who has initiated any action in a court
  15-19  of competent jurisdiction or who has an action pending before any
  15-20  administrative agency under any other law or any local ordinance of
  15-21  any political subdivision of the state based on an act that would
  15-22  be an unlawful employment practice under this article may file a
  15-23  complaint under this section with respect to the same grievance.
  15-24        SECTION 7.  Section 7.01, Commission on Human Rights Act
  15-25  (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
  15-26  as follows:
  15-27        Sec. 7.01.  Judicial Action; Enforcement.  (a)  If the
   16-1  commission has made a determination that there is reasonable cause
   16-2  to believe that the respondent has engaged in an unlawful
   16-3  employment practice, and the commission's efforts to resolve the
   16-4  discriminatory practice to the satisfaction of the complainant and
   16-5  respondent through conciliation have been unsuccessful, the
   16-6  commission may bring a civil action against the respondent named in
   16-7  the charge if a majority of the commissioners determine that the
   16-8  civil action may effectuate the purposes of this Act.  The
   16-9  complainant has the right to intervene in a civil action brought by
  16-10  the commission.  If the complaint filed with the commission
  16-11  pursuant to Section 6.01 of this Act is dismissed by the
  16-12  commission, or is not resolved before the expiration of the 180th
  16-13  day after the date of filing of the complaint, the commission shall
  16-14  so inform the complainant in writing by certified mail.  A
  16-15  complainant who is so informed is entitled to request from the
  16-16  commission a written notice of the complainant's right to file a
  16-17  civil action.  The complainant must request the notice in writing.
  16-18  On receipt of a written request by a complainant, the commission
  16-19  shall issue the notice of the right to file a civil action before
  16-20  the expiration of the 180th day after the date the complaint was
  16-21  filed if the complainant alleges an unlawful employment practice
  16-22  based on the complainant's status as an individual with a
  16-23  life-threatening illness, as confirmed in writing by a physician
  16-24  licensed to practice medicine in this state, or if the executive
  16-25  director certifies that administrative processing of the complaint
  16-26  cannot be completed before the expiration of the 180th day after
  16-27  the date the complaint was filed.  The commission shall issue the
   17-1  expedited notice by certified mail not later than the fifth
   17-2  business day after the date the commission receives the written
   17-3  request.  The executive director may issue the notice on behalf of
   17-4  the commission.  Within 60 days after the date of receipt of the
   17-5  notice, a civil action may be brought by the complainant against
   17-6  the respondent named in the charge.  After timely application, the
   17-7  court may in its discretion permit the commission to intervene in
   17-8  any civil action filed under this subsection on certification that
   17-9  the case is of general public importance and if the commission has,
  17-10  before commencement of the civil action by the complainant, issued
  17-11  a determination of reasonable cause to believe that the Act has
  17-12  been violated.  In no event may any action be brought pursuant to
  17-13  this article more than two years <one year> after the date of
  17-14  filing of the complaint to which the action relates.
  17-15        (b)  The court shall assign any action brought under this
  17-16  article for hearing at the earliest practicable date to expedite
  17-17  the action.
  17-18        (c)  If the court finds that the respondent has engaged in an
  17-19  unlawful employment practice as alleged in the complaint, the court
  17-20  may enjoin the respondent from engaging in an unlawful employment
  17-21  practice and order such additional equitable relief as may be
  17-22  appropriate.
  17-23        (d)  Additional equitable relief may include but is not
  17-24  limited to:
  17-25              (1)  the hiring or reinstatement, with or without back
  17-26  pay, but back pay liability may not accrue for any date more than
  17-27  two years before the date of filing of a complaint with the
   18-1  commission, and interim earnings, workers' compensation benefits,
   18-2  and unemployment compensation benefits received shall operate to
   18-3  reduce the back pay otherwise allowable;
   18-4              (2)  the upgrading of employees with or without pay;
   18-5              (3)  the admission or restoration of union membership;
   18-6              (4)  the admission to or participation in a guidance
   18-7  program, apprenticeship, on-the-job, or other training or
   18-8  retraining program, with the use of objective job-related criteria
   18-9  in the admission of individuals to these programs;
  18-10              (5)  the reporting on the manner of compliance with the
  18-11  terms of a final order issued under this Act; and
  18-12              (6)  the payment of court costs.
  18-13        (e)  Except as provided by Section 10.07 of this Act, if the
  18-14  court finds that the respondent has engaged in unlawful intentional
  18-15  discrimination as alleged in the complaint, the court may award
  18-16  compensatory and punitive damages as provided by this subsection.
  18-17  A complainant may recover punitive damages against a respondent,
  18-18  other than a respondent that is a governmental entity, if the
  18-19  complainant demonstrates that the respondent engaged in a
  18-20  discriminatory practice with malice or with reckless indifference
  18-21  to the state-protected rights of an aggrieved individual.
  18-22  Compensatory damages awarded under this subsection may not include
  18-23  back pay, interest on back pay, or other types of relief authorized
  18-24  under Subsection (d) of this section.  The sum of the amount of
  18-25  compensatory damages awarded under this subsection for future
  18-26  pecuniary losses, emotional pain, suffering, inconvenience, mental
  18-27  anguish, loss of enjoyment of life, and other nonpecuniary losses,
   19-1  and the amount of punitive damages awarded under this subsection
   19-2  may not exceed, for each complainant:
   19-3              (1)  in the case of a respondent who has more than 14
   19-4  and fewer than 101 employees in each of 20 or more calendar weeks
   19-5  in the current or preceding calendar year, $50,000;
   19-6              (2)  in the case of a respondent who has more than 100
   19-7  and fewer than 201 employees in each of 20 or more calendar weeks
   19-8  in the current or preceding calendar year, $100,000;
   19-9              (3)  in the case of a respondent who has more than 200
  19-10  and fewer than 501 employees in each of 20 or more calendar weeks
  19-11  in the current or preceding calendar year, $200,000; and
  19-12              (4)  in the case of a respondent who has more than 500
  19-13  employees in each of 20 or more calendar weeks in the current or
  19-14  preceding calendar year, $300,000.
  19-15        (f)  In any action or proceeding under this Act, the court in
  19-16  its discretion may allow the prevailing party, other than the
  19-17  commission, a reasonable attorney's fee as part of the costs.  The
  19-18  state or an agency or a political subdivision of the state is
  19-19  liable for costs, including attorney's fees, to the same extent as
  19-20  a private person.  In awarding costs and attorney's fees, the court
  19-21  may include reasonable expert witness fees and other expenses.
  19-22        (g) <(f)>  In the case of disabled employees or applicants,
  19-23  the court must take into account the undue hardship defense,
  19-24  including the reasonableness of the cost of any necessary work
  19-25  place accommodation and the availability of alternatives or other
  19-26  appropriate relief.
  19-27        (h) <(g)>  In any case in which an employer, employment
   20-1  agency, or labor organization fails to comply with an order of a
   20-2  court issued in a civil action brought under this article, a party
   20-3  to the action or the commission, on the written request of a person
   20-4  aggrieved by the failure, may commence proceedings to compel
   20-5  compliance with the order.
   20-6        (i) <(h)>  All judicial proceedings under this Act shall be
   20-7  by trial de novo, and no commission findings, recommendations,
   20-8  determinations, or other actions are binding on any court.
   20-9        (j) <(i)>  A failure to issue the notice of the complainant's
  20-10  right to file a civil action does not affect a complainant's right
  20-11  under Subsection (a) of this section to bring a civil action
  20-12  against the respondent.
  20-13        SECTION 8.  Article 10, Commission on Human Rights Act
  20-14  (Article 5221k, Vernon's Texas Civil Statutes), is amended by
  20-15  adding Sections 10.06, 10.07, and 10.08 to read as follows:
  20-16        Sec. 10.06.  PRIVILEGED COMMUNICATION; IMMUNITY.  An oral or
  20-17  written statement made to a commissioner or an employee of the
  20-18  commission in connection with the discharge of the commissioner's
  20-19  or employee's duties under this Act may not be the basis for an
  20-20  action for defamation of character.
  20-21        Sec. 10.07.  LIMITED SEVERABILITY.  (a)  If any clause,
  20-22  sentence, subsection, section, article, or other provision of this
  20-23  Act or the application of such a provision to any person or
  20-24  circumstances is held invalid or unconstitutional, that invalidity
  20-25  does not affect the other clauses, sentences, subsections,
  20-26  sections, articles, or provisions or applications of this Act that
  20-27  may be given effect without the invalid clause, sentence,
   21-1  subsection, section, article, or provision or application and does
   21-2  not affect, invalidate, impair, or nullify the remainder of this
   21-3  Act.  The effect of the determination of invalidity is confined to
   21-4  the clause, sentence, subsection, section, article, or provision or
   21-5  application so adjudicated to be invalid or unconstitutional, and
   21-6  to that end the provisions of this Act are declared to be
   21-7  severable.
   21-8        (b)  If any limit on damages prescribed by Section 7.01(e) of
   21-9  this Act is invalidated by a method other than through legislative
  21-10  means, the amount of civil liability for all past and future
  21-11  noneconomic losses, including past and future pain and suffering,
  21-12  mental anguish and suffering, and any other nonpecuniary damage, is
  21-13  limited to an amount not to exceed $150,000.
  21-14        (c)  If any limit on damages prescribed by  Section 7.01(e)
  21-15  of this Act is invalidated by a method other than through
  21-16  legislative means, and if the alternative civil liability limits
  21-17  contained in Subsection (b) of this section are also invalidated by
  21-18  a method other than legislative means, Section 7.01(e) is void.
  21-19        Sec. 10.08.  JOINDER OF COMMISSION.   In any civil action in
  21-20  which the validity of any provision of this Act, a rule adopted
  21-21  under this Act, or the application of such a provision or rule, is
  21-22  challenged as void, unconstitutional, or unenforceable, the
  21-23  commission shall be made a party to the proceedings, and on the
  21-24  motion of the commission, venue of the cause may be transferred to
  21-25  the district courts of Travis County, Texas.  An order restraining
  21-26  the commission or invalidating any provision of this Act or a
  21-27  commission rule adopted under this Act may not be enforced and may
   22-1  not take effect until the commission has answered and appeared in
   22-2  the cause and has exhausted all avenues of appeal and any judgment
   22-3  is final and enforceable.  In such a declaratory proceeding, only
   22-4  the commission, if a prevailing party, is entitled to recover, and
   22-5  the court may award, costs and attorney's fees, notwithstanding any
   22-6  other provision of state law, including this Act.
   22-7        SECTION 9.  This Act takes effect September 1, 1993, and
   22-8  applies only to a complaint filed with the Commission on Human
   22-9  Rights on or after that date.  A complaint filed before that date
  22-10  is governed by the law in effect on the date the complaint was
  22-11  filed, and the former law is continued in effect for that purpose.
  22-12        SECTION 10.  The importance of this legislation and the
  22-13  crowded condition of the calendars in both houses create an
  22-14  emergency and an imperative public necessity that the
  22-15  constitutional rule requiring bills to be read on three several
  22-16  days in each house be suspended, and this rule is hereby suspended.