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.