1-1 By: Delco, Eckels, et al. H.B. No. 860
1-2 (Senate Sponsor - Barrientos)
1-3 (In the Senate - Received from the House April 21, 1993;
1-4 April 21, 1993, read first time and referred to Committee on State
1-5 Affairs; May 12, 1993, reported favorably by the following vote:
1-6 Yeas 8, Nays 0; May 12, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Harris of Dallas x
1-10 Rosson x
1-11 Carriker x
1-12 Henderson x
1-13 Leedom x
1-14 Lucio x
1-15 Luna x
1-16 Nelson x
1-17 Patterson x
1-18 Shelley x
1-19 Sibley x
1-20 West x
1-21 Whitmire x
1-22 A BILL TO BE ENTITLED
1-23 AN ACT
1-24 relating to the prohibition of certain discriminatory employment
1-25 practices.
1-26 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-27 SECTION 1. Section 1.02, Commission on Human Rights Act
1-28 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
1-29 as follows:
1-30 Sec. 1.02. PURPOSES. The general purposes of this Act are:
1-31 (1) to provide for the execution of the policies
1-32 embodied in Title VII of the federal Civil Rights Act of 1964, as
1-33 amended (42 U.S.C. Section 2000e et seq.), and to create an
1-34 authority that meets the criteria under 42 U.S.C. Section
1-35 2000e-5(c) and 29 U.S.C. Section 633; <and>
1-36 (2) to provide for the execution of the policies
1-37 embodied in Title I of the Americans with Disabilities Act of 1990
1-38 (42 U.S.C. Section 12101 et seq.) and its subsequent amendments;
1-39 and
1-40 (3) to secure for persons within the state, including
1-41 disabled persons, freedom from discrimination in certain
1-42 transactions concerning employment, and thereby to protect the
1-43 personal dignity of persons within the state; and to make available
1-44 to the state the full productive capacities of those persons, to
1-45 secure the state against domestic strife and unrest, to preserve
1-46 the public safety, health, and general welfare, and to promote the
1-47 interests, rights, and privileges of persons within the state.
1-48 SECTION 2. Section 2.01, Commission on Human Rights Act
1-49 (Article 5221k, Vernon's Texas Civil Statutes), is amended by
1-50 amending Subdivisions (4), (6), and (7) and by adding Subdivisions
1-51 (15), (16), and (17) to read as follows:
1-52 (4) "Disability" means, with respect to an individual,
1-53 a mental or physical impairment that substantially limits at least
1-54 one major life activity of that individual, <or> a record of such
1-55 an <a mental or physical> impairment, or being regarded as having
1-56 such an impairment. The term does not include:
1-57 (A) a person with a current condition of
1-58 addiction to the use of alcohol or any drug or illegal or federally
1-59 controlled substance; or
1-60 (B) a person with a currently communicable
1-61 disease or infection, including but not limited to acquired immune
1-62 deficiency syndrome or infection with the human immunodeficiency
1-63 virus, that constitutes a direct threat to the health or safety of
1-64 other persons or that makes the affected person unable to perform
1-65 the duties of the person's employment.
1-66 (6) "Employee" means an individual employed by an
1-67 employer, including an individual subject to the civil service laws
1-68 of the state or a political subdivision of the state, except that
2-1 the term "employee" does not include an individual elected <by the
2-2 qualified voters> to public office in the state or a political
2-3 subdivision of the state<, an individual chosen by that officer to
2-4 be on the officer's personal staff, an appointee on the
2-5 policy-making level, or an immediate adviser with respect to the
2-6 exercise of the constitutional or legal powers of public office>.
2-7 (7) "Employer" means:
2-8 (A) a person engaged in an industry affecting
2-9 commerce who has 15 or more employees for each working day in each
2-10 of 20 or more calendar weeks in the current or preceding calendar
2-11 year and any agent of that person; <or>
2-12 (B) an individual elected to public office in
2-13 this state or a political subdivision of this state; or
2-14 (C) a county or municipality or any state agency
2-15 or instrumentality, including public institutions of education,
2-16 regardless of the number of individuals employed.
2-17 (15) "Complainant" means an individual who brings an
2-18 action or proceeding under this Act.
2-19 (16) "Demonstrates" means meets the burdens of
2-20 production and persuasion.
2-21 (17) "Respondent" means an employer, employment
2-22 agency, labor organization, or joint labor-management committee
2-23 that controls an apprenticeship or other training or retraining
2-24 program, including an on-the-job training program.
2-25 SECTION 3. Section 3.02(a), Commission on Human Rights Act
2-26 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
2-27 as follows:
2-28 (a) The commission has the following powers:
2-29 (1) to maintain an office in the city of Austin;
2-30 (2) to meet and exercise its powers at any place
2-31 within the state;
2-32 (3) to employ an executive director and authorize the
2-33 employment of other staff members, including any necessary
2-34 attorneys or clerks and other representatives or agents, and to fix
2-35 the compensation of the executive director or other staff members,
2-36 representatives, or agents;
2-37 (4) to promote the creation of local commissions on
2-38 human rights and to cooperate or contract with individuals or
2-39 state, local, or other agencies, both public and private, including
2-40 agencies of the federal government and of other states;
2-41 (5) to accept public grants or private gifts,
2-42 bequests, or other payments;
2-43 (6) to receive, investigate, seek to conciliate, and
2-44 pass on complaints alleging violations of this Act, and file civil
2-45 actions to effectuate the purposes of this Act;
2-46 (7) to request and, if necessary, compel by subpoena
2-47 the attendance of necessary witnesses for examination under oath or
2-48 affirmation, and the production, for inspection and copying, of
2-49 records, documents, and other evidence relevant to the
2-50 investigation of alleged violations of this Act. The commission by
2-51 rule may authorize a commissioner or one of its staff to exercise
2-52 the powers stated in this subdivision on behalf of the commission;
2-53 (8) to furnish technical assistance requested by a
2-54 person subject to this Act to further compliance with the Act or
2-55 with rules or orders issued under this Act;
2-56 (9) to render at least annually a comprehensive
2-57 written report to the governor and to the legislature, which report
2-58 may contain recommendations of the commission for legislative or
2-59 other action to carry out the purposes and policies of this Act;
2-60 <and>
2-61 (10) to adopt, issue, amend, and rescind procedural
2-62 rules to carry out the purposes and policies of this Act;
2-63 (11) to provide educational and outreach activities to
2-64 individuals who have historically been victims of employment
2-65 discrimination; and
2-66 (12) to require state agencies and public institutions
2-67 of higher education to develop and implement personnel policies
2-68 that comply with this Act, including personnel selection procedures
2-69 that incorporate a work force diversity program.
2-70 SECTION 4. Section 5.07(a), Commission on Human Rights Act
3-1 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
3-2 as follows:
3-3 (a) Notwithstanding any other provision of this article, it
3-4 is not an unlawful employment practice:
3-5 (1) for an employer to hire and to employ employees,
3-6 for an employment agency to classify or refer for employment an
3-7 individual, for a labor organization to classify its members or to
3-8 classify or refer for employment an individual, or for an employer,
3-9 labor organization, or joint labor-management committee controlling
3-10 an apprenticeship, on-the-job, or other training or retraining
3-11 program to admit or employ an individual in its program, on the
3-12 basis of disability, religion, sex, national origin, or age, if
3-13 disability, religion, sex, national origin, or age is a bona fide
3-14 occupational qualification reasonably necessary to the normal
3-15 operation of the particular business or enterprise;
3-16 (2) for a religious corporation, association, society,
3-17 or educational institution or an educational organization operated,
3-18 supervised, or controlled, in whole or in substantial part, by a
3-19 religious corporation, association, or society to limit employment
3-20 or give preference to members of the same religion;
3-21 (3) for an employer to apply different standards of
3-22 compensation or different terms, conditions, or privileges of
3-23 employment under a bona fide seniority system, bona fide merit
3-24 system, or a bona fide employee benefit plan such as a retirement,
3-25 pension, or insurance plan, which is not a subterfuge to evade this
3-26 Act, or under a system that measures earnings by quantity or
3-27 quality of production if those different standards are not
3-28 discriminatory on the basis of race, color, disability, religion,
3-29 sex, national origin, or age, except that no employee benefit plan
3-30 may excuse a failure to hire on the basis of age and no seniority
3-31 or employee benefit plan may require or permit involuntary
3-32 retirement on the basis of age;
3-33 (4) for an employer to apply to employees who work in
3-34 different locations different standards of compensation or
3-35 different terms, conditions, or privileges of employment if those
3-36 different standards are not discriminatory on the basis of race,
3-37 color, disability, religion, sex, national origin, or age;
3-38 (5) for an employer to impose minimum or maximum age
3-39 requirements for peace officers or fire fighters;
3-40 (6) for a public school official to adopt or implement
3-41 a plan reasonably designed to end discriminatory school practices;
3-42 <or>
3-43 (7) for an employer to engage in any practice that has
3-44 a discriminatory effect and that would otherwise be prohibited by
3-45 this Act if the employer establishes that the practice is not
3-46 intentionally devised or operated to contravene the prohibitions of
3-47 this Act and is justified by business necessity;
3-48 (8) for an employer to adopt a policy prohibiting the
3-49 employment of an individual who currently uses or possesses a
3-50 controlled substance as defined in Schedules I and II of Section
3-51 202, Controlled Substances Act (21 U.S.C. Section 801 et seq.),
3-52 and their subsequent amendments, other than the use or possession
3-53 of a drug taken under the supervision of a licensed health care
3-54 professional or any other use or possession authorized by the
3-55 Controlled Substances Act or any other federal or state law unless
3-56 the policy is adopted or applied with an intent to discriminate
3-57 because of race, color, sex, national origin, religion, age, or
3-58 disability; or
3-59 (9) for an employer to develop and implement personnel
3-60 policies that incorporate work force diversity programs.
3-61 SECTION 5. Article 5, Commission on Human Rights Act
3-62 (Article 5221k, Vernon's Texas Civil Statutes), is amended by
3-63 adding Sections 5.11-5.18 to read as follows:
3-64 Sec. 5.11. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
3-65 (a) An unlawful employment practice based on disparate impact is
3-66 established under this Act only if:
3-67 (1) a complainant demonstrates that a respondent uses
3-68 a particular employment practice that causes a disparate impact on
3-69 the basis of race, color, sex, national origin, religion, or
3-70 disability and the respondent fails to demonstrate that the
4-1 challenged practice is job-related for the position in question and
4-2 consistent with business necessity; or
4-3 (2) the complainant makes the demonstration in
4-4 accordance with federal law as that law existed on June 4, 1989,
4-5 with respect to the concept of alternative employment practices,
4-6 and the respondent refuses to adopt such an alternative employment
4-7 practice.
4-8 (b) To determine the availability of and burden of proof
4-9 applicable to a disparate impact case involving age discrimination,
4-10 the court shall apply the judicial interpretation of the Age
4-11 Discrimination in Employment Act of 1967 (29 U.S.C. Section 621 et
4-12 seq.) and its subsequent amendments.
4-13 (c) To demonstrate that a particular employment practice
4-14 causes a disparate impact, the complainant must demonstrate that
4-15 each particular challenged employment practice causes a disparate
4-16 impact, except that if the complainant demonstrates to the
4-17 satisfaction of the court that the elements of a respondent's
4-18 decision-making process are not capable of separation for analysis,
4-19 that decision-making process may be analyzed as one employment
4-20 practice.
4-21 (d) If the respondent demonstrates that a specific practice
4-22 does not cause a disparate impact, the respondent shall not be
4-23 required to demonstrate that such a practice is consistent with
4-24 business necessity.
4-25 Sec. 5.12. SCOPE OF DEFENSE. A demonstration that an
4-26 employment practice is consistent with business necessity may not
4-27 be used as a defense under this Act against a complaint of
4-28 intentional discrimination.
4-29 Sec. 5.13. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST
4-30 SCORES. It is an unlawful employment practice for a respondent, in
4-31 connection with the selection or referral of applicants for
4-32 employment or promotion, to adjust the scores of, use different
4-33 cutoff scores for, or otherwise alter the results of
4-34 employment-related tests on the basis of race, color, sex, national
4-35 origin, religion, age, or disability.
4-36 Sec. 5.14. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE
4-37 CONSIDERATION OF RACE, COLOR, SEX, NATIONAL ORIGIN, OR DISABILITY
4-38 IN EMPLOYMENT PRACTICES. (a) Except as otherwise provided in this
4-39 Act, an unlawful employment practice is established when the
4-40 complainant demonstrates that race, color, sex, national origin,
4-41 religion, age, or disability was a motivating factor for an
4-42 employment practice, even if other factors also motivated the
4-43 practice, unless race, color, sex, national origin, or disability
4-44 are combined with objective job-related factors to attain diversity
4-45 within the employer's work force.
4-46 (b) In a complaint in which a complainant proves a violation
4-47 under Subsection (a) of this section and a respondent demonstrates
4-48 that the respondent would have taken the same action in the absence
4-49 of the impermissible motivating factor, the court may grant
4-50 declaratory relief, injunctive relief except as otherwise provided
4-51 by this subsection, and attorney's fees and costs demonstrated to
4-52 be directly attributable only to the pursuit of a complaint under
4-53 Subsection (a) of this section but shall not award damages or issue
4-54 an order requiring an admission, reinstatement, hiring, promotion,
4-55 or back pay.
4-56 Sec. 5.15. COVERAGE OF PREVIOUSLY EXEMPT EMPLOYEES OF THE
4-57 STATE OR POLITICAL SUBDIVISION OF THE STATE. It is an unlawful
4-58 employment practice for a person elected to public office in this
4-59 state or a political subdivision of this state to discriminate
4-60 because of race, color, sex, national origin, religion, age, or
4-61 disability against an individual who is an employee or applicant
4-62 for employment to serve on the elected official's personal staff,
4-63 to serve the elected official on a policymaking level, or to serve
4-64 the elected official as an immediate advisor with respect to the
4-65 exercise of the constitutional or legal powers of the office.
4-66 Sec. 5.16. EXPANSION OF RIGHTS TO CHALLENGE DISCRIMINATORY
4-67 SENIORITY SYSTEMS. With respect to a seniority system adopted for
4-68 an intentionally discriminatory purpose in violation of this Act,
4-69 whether that discriminatory purpose is apparent on the face of the
4-70 seniority provision, an unlawful employment practice occurs when:
5-1 (1) the seniority system is adopted;
5-2 (2) an individual becomes subject to the system; or
5-3 (3) an individual is injured by the application of the
5-4 system or a provision of the system.
5-5 Sec. 5.17. REASONABLE ACCOMMODATION; GOOD FAITH EFFORT.
5-6 (a) It is an unlawful employment practice for a respondent covered
5-7 under this Act to fail or refuse to make a reasonable workplace
5-8 accommodation to a known physical or mental limitation of an
5-9 otherwise qualified individual with a disability who is an employee
5-10 or applicant for employment, unless the respondent demonstrates
5-11 that the accommodation would impose an undue hardship on the
5-12 operation of the business of the respondent.
5-13 (b) A showing of undue hardship by the respondent is a
5-14 defense to a complaint of discrimination made by an otherwise
5-15 qualified individual with a disability. In considering a complaint
5-16 based on a disability, the commission shall consider the
5-17 reasonableness of the cost of any necessary workplace accommodation
5-18 and the availability of alternatives or other appropriate relief.
5-19 (c) In a complaint in which a discriminatory employment
5-20 practice involves the provision of a reasonable workplace
5-21 accommodation under this Act, damages may not be awarded under
5-22 Section 7.01 of this Act if the respondent demonstrates good faith
5-23 efforts, in consultation with the otherwise qualified individual
5-24 with a disability who has informed the respondent that
5-25 accommodation is needed, to identify and make a reasonable
5-26 workplace accommodation that would provide the individual with an
5-27 equally effective opportunity and would not cause an undue hardship
5-28 on the operation of the business.
5-29 Sec. 5.18. COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION
5-30 AGREEMENTS, AND CONCILIATION AGREEMENTS NOT AFFECTED. This Act
5-31 shall not be construed to affect court-ordered remedies,
5-32 affirmative action agreements, or conciliation agreements made in
5-33 accordance with law.
5-34 SECTION 6. Section 6.01, Commission on Human Rights Act
5-35 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
5-36 as follows:
5-37 Sec. 6.01. Complaints; Temporary Relief. (a) A person
5-38 claiming to be aggrieved by an unlawful employment practice, or
5-39 that person's agent, may file with the commission a complaint,
5-40 which must be in writing under oath or affirmation, stating that an
5-41 unlawful employment practice has been committed, setting forth the
5-42 facts on which the complaint is based, including the date, place,
5-43 and circumstances of the alleged unlawful employment practice, and
5-44 setting forth facts sufficient to enable the commission to identify
5-45 the person charged (hereinafter referred to as the respondent).
5-46 The executive director or his designee shall within 10 days serve
5-47 the respondent with a copy of the perfected complaint <and shall
5-48 invite both the complainant and respondent to attempt voluntarily
5-49 to resolve their dispute prior to initiation and completion of an
5-50 investigation>. A complaint may be amended to cure technical
5-51 defects or omissions, including a failure to verify the complaint
5-52 and to clarify and amplify allegations made in the complaint. An
5-53 amendment alleging additional acts that constitute unlawful
5-54 employment practices related to or arising from the subject matter
5-55 of the original complaint relates back to the date on which the
5-56 complaint was first received by the commission. If a perfected
5-57 complaint is not received by the commission within 180 days of the
5-58 alleged unlawful employment practice, the commission shall notify
5-59 the respondent that a complaint has been filed and that the process
5-60 of perfecting the complaint is in progress. A complaint under this
5-61 section must be filed within 180 days after the date the alleged
5-62 unlawful employment practice occurred; untimely complaints shall be
5-63 dismissed by the commission.
5-64 (b) The use of alternative means of dispute resolution,
5-65 including settlement negotiations, conciliation, facilitation,
5-66 mediation, fact-finding, minitrials, and arbitration, is encouraged
5-67 to resolve disputes arising under this Act or provisions of state
5-68 law amended by this Act. The settlement of a disputed claim under
5-69 this Act that results from the use of traditional or alternative
5-70 means of dispute resolution is binding on the parties to the claim.
6-1 (c) The commission shall establish an office of alternative
6-2 dispute resolution. At any time after a complaint is received
6-3 under Subsection (a) of this section, at the request of a party or
6-4 at the direction of the commission the matter may be referred to
6-5 the office of alternative dispute resolution.
6-6 (d) The executive director or any other staff member of the
6-7 commission designated by the executive director shall investigate a
6-8 complaint and determine if there is reasonable cause to believe
6-9 that the respondent has engaged in an unlawful employment practice
6-10 as alleged in the complaint. If the federal government has
6-11 referred the complaint to the commission or has deferred
6-12 jurisdiction over the subject matter of the complaint to the
6-13 commission, the executive director or his designee shall promptly
6-14 investigate the allegations set forth in the complaint.
6-15 (e) <(b)> If, after an investigation, the executive director
6-16 or his designee determines that there is not reasonable cause to
6-17 believe that the respondent has engaged in an unlawful employment
6-18 practice, as alleged in the complaint, the executive director or
6-19 his designee shall issue a written determination incorporating his
6-20 finding that the evidence does not support the complaint and
6-21 dismissing the complaint and shall serve a copy of the
6-22 determination on the complainant, the respondent, and other
6-23 agencies as required by law.
6-24 (f) <(c)> If, after an investigation, the executive director
6-25 or his designee determines that there is reasonable cause to
6-26 believe that the respondent has engaged in an unlawful employment
6-27 practice, as alleged in the complaint, the executive director or
6-28 his designee shall review the evidence in the record with a panel
6-29 of three commissioners. If, after the review, at least two of the
6-30 three commissioners determine that there is reasonable cause to
6-31 believe that the respondent has engaged in an unlawful employment
6-32 practice, the executive director shall issue a written
6-33 determination incorporating his finding that the evidence supports
6-34 the complaint and shall serve a copy of the determination on the
6-35 complainant, the respondent, and other agencies as required by law.
6-36 The commission shall endeavor to eliminate the alleged unlawful
6-37 employment practice by informal methods of conference,
6-38 conciliation, and persuasion. The commission, its executive
6-39 director, or its other officers or employees may not make public,
6-40 without the written consent of the complainant and respondent,
6-41 information about the efforts in a particular case to resolve an
6-42 alleged discriminatory practice by conference, conciliation, or
6-43 persuasion, whether or not there is a determination of reasonable
6-44 cause.
6-45 <(d) A showing of undue hardship by the respondent is a
6-46 defense to a complaint of discrimination made by an employee or
6-47 applicant based on disability. With respect to a complaint based
6-48 on disability, the commission's order must take into account the
6-49 reasonableness of the cost of any necessary work place
6-50 accommodation and the availability of alternatives or other
6-51 appropriate relief.>
6-52 (g) <(e)> If the commission concludes, on the basis of
6-53 preliminary investigation of an alleged unlawful employment
6-54 practice contained in a complaint, that prompt judicial action is
6-55 necessary to carry out the purposes of this Act, the commission
6-56 shall file a petition in the district court in a county in which
6-57 the alleged unlawful employment practice that is the subject of the
6-58 complaint occurred, or in a county in which the respondent resides,
6-59 seeking appropriate temporary relief against the respondent,
6-60 pending final determination of proceedings under this Act. No
6-61 temporary injunctive relief may issue absent a showing by the
6-62 commission of substantial likelihood of success on the merits and
6-63 irreparable harm to the complainant, in the absence of the
6-64 preliminary relief, pending final determination on the merits.
6-65 (h) <(f)> No person who has initiated any action in a court
6-66 of competent jurisdiction or who has an action pending before any
6-67 administrative agency under any other law or any local ordinance of
6-68 any political subdivision of the state based on an act that would
6-69 be an unlawful employment practice under this article may file a
6-70 complaint under this section with respect to the same grievance.
7-1 SECTION 7. Section 7.01, Commission on Human Rights Act
7-2 (Article 5221k, Vernon's Texas Civil Statutes), is amended to read
7-3 as follows:
7-4 Sec. 7.01. Judicial Action; Enforcement. (a) If the
7-5 commission has made a determination that there is reasonable cause
7-6 to believe that the respondent has engaged in an unlawful
7-7 employment practice, and the commission's efforts to resolve the
7-8 discriminatory practice to the satisfaction of the complainant and
7-9 respondent through conciliation have been unsuccessful, the
7-10 commission may bring a civil action against the respondent named in
7-11 the charge if a majority of the commissioners determine that the
7-12 civil action may effectuate the purposes of this Act. The
7-13 complainant has the right to intervene in a civil action brought by
7-14 the commission. If the complaint filed with the commission
7-15 pursuant to Section 6.01 of this Act is dismissed by the
7-16 commission, or is not resolved before the expiration of the 180th
7-17 day after the date of filing of the complaint, the commission shall
7-18 so inform the complainant in writing by certified mail. A
7-19 complainant who is so informed is entitled to request from the
7-20 commission a written notice of the complainant's right to file a
7-21 civil action. The complainant must request the notice in writing.
7-22 On receipt of a written request by a complainant, the commission
7-23 shall issue the notice of the right to file a civil action before
7-24 the expiration of the 180th day after the date the complaint was
7-25 filed if the complainant alleges an unlawful employment practice
7-26 based on the complainant's status as an individual with a
7-27 life-threatening illness, as confirmed in writing by a physician
7-28 licensed to practice medicine in this state, or if the executive
7-29 director certifies that administrative processing of the complaint
7-30 cannot be completed before the expiration of the 180th day after
7-31 the date the complaint was filed. The commission shall issue the
7-32 expedited notice by certified mail not later than the fifth
7-33 business day after the date the commission receives the written
7-34 request. The executive director may issue the notice on behalf of
7-35 the commission. Within 60 days after the date of receipt of the
7-36 notice, a civil action may be brought by the complainant against
7-37 the respondent named in the charge. After timely application, the
7-38 court may in its discretion permit the commission to intervene in
7-39 any civil action filed under this subsection on certification that
7-40 the case is of general public importance and if the commission has,
7-41 before commencement of the civil action by the complainant, issued
7-42 a determination of reasonable cause to believe that the Act has
7-43 been violated. In no event may any action be brought pursuant to
7-44 this article more than two years <one year> after the date of
7-45 filing of the complaint to which the action relates.
7-46 (b) The court shall assign any action brought under this
7-47 article for hearing at the earliest practicable date to expedite
7-48 the action.
7-49 (c) If the court finds that the respondent has engaged in an
7-50 unlawful employment practice as alleged in the complaint, the court
7-51 may enjoin the respondent from engaging in an unlawful employment
7-52 practice and order such additional equitable relief as may be
7-53 appropriate.
7-54 (d) Additional equitable relief may include but is not
7-55 limited to:
7-56 (1) the hiring or reinstatement, with or without back
7-57 pay, but back pay liability may not accrue for any date more than
7-58 two years before the date of filing of a complaint with the
7-59 commission, and interim earnings, workers' compensation benefits,
7-60 and unemployment compensation benefits received shall operate to
7-61 reduce the back pay otherwise allowable;
7-62 (2) the upgrading of employees with or without pay;
7-63 (3) the admission or restoration of union membership;
7-64 (4) the admission to or participation in a guidance
7-65 program, apprenticeship, on-the-job, or other training or
7-66 retraining program, with the use of objective job-related criteria
7-67 in the admission of individuals to these programs;
7-68 (5) the reporting on the manner of compliance with the
7-69 terms of a final order issued under this Act; and
7-70 (6) the payment of court costs.
8-1 (e) If the court finds that the respondent has engaged in
8-2 unlawful intentional discrimination as alleged in the complaint,
8-3 the court may award compensatory and punitive damages as provided
8-4 by this subsection. A complainant may recover punitive damages
8-5 against a respondent, other than a respondent that is a
8-6 governmental entity, if the complainant demonstrates that the
8-7 respondent engaged in a discriminatory practice with malice or with
8-8 reckless indifference to the state-protected rights of an aggrieved
8-9 individual. Compensatory damages awarded under this subsection
8-10 shall not include back pay, interest on back pay, or other types of
8-11 relief authorized under Subsection (d) of this section. The sum of
8-12 the amount of compensatory damages awarded under this subsection
8-13 for future pecuniary losses, emotional pain, suffering,
8-14 inconvenience, mental anguish, loss of enjoyment of life, and other
8-15 nonpecuniary losses, and the amount of punitive damages awarded
8-16 under this subsection may not exceed, for each complainant:
8-17 (1) in the case of a respondent who has more than 14
8-18 and fewer than 101 employees in each of 20 or more calendar weeks
8-19 in the current or preceding calendar year, $50,000;
8-20 (2) in the case of a respondent who has more than 100
8-21 and fewer than 201 employees in each of 20 or more calendar weeks
8-22 in the current or preceding calendar year, $100,000;
8-23 (3) in the case of a respondent who has more than 200
8-24 and fewer than 501 employees in each of 20 or more calendar weeks
8-25 in the current or preceding calendar year, $200,000; and
8-26 (4) in the case of a respondent who has more than 500
8-27 employees in each of 20 or more calendar weeks in the current or
8-28 preceding calendar year, $300,000.
8-29 (f) In any action or proceeding under this Act, the court in
8-30 its discretion may allow the prevailing party, other than the
8-31 commission, a reasonable attorney's fee as part of the costs. The
8-32 state or an agency or a political subdivision of the state is
8-33 liable for costs, including attorney's fees, to the same extent as
8-34 a private person. In awarding costs and attorney's fees in an
8-35 action or proceeding under this Act, the court, in its discretion,
8-36 may include reasonable expert fees.
8-37 (g) <(f)> In the case of disabled employees or applicants,
8-38 the court must take into account the undue hardship defense,
8-39 including the reasonableness of the cost of any necessary work
8-40 place accommodation and the availability of alternatives or other
8-41 appropriate relief.
8-42 (h) <(g)> In any case in which an employer, employment
8-43 agency, or labor organization fails to comply with an order of a
8-44 court issued in a civil action brought under this article, a party
8-45 to the action or the commission, on the written request of a person
8-46 aggrieved by the failure, may commence proceedings to compel
8-47 compliance with the order.
8-48 (i) <(h)> All judicial proceedings under this Act shall be
8-49 by trial de novo, and no commission findings, recommendations,
8-50 determinations, or other actions are binding on any court.
8-51 (j) <(i)> A failure to issue the notice of the complainant's
8-52 right to file a civil action does not affect a complainant's right
8-53 under Subsection (a) of this section to bring a civil action
8-54 against the respondent.
8-55 SECTION 8. Article 10, Commission on Human Rights Act
8-56 (Article 5221k, Vernon's Texas Civil Statutes), is amended by
8-57 adding Sections 10.06, 10.07, and 10.08 to read as follows:
8-58 Sec. 10.06. PRIVILEGED COMMUNICATION; IMMUNITY. An oral or
8-59 written statement made to a commissioner or an employee of the
8-60 commission in connection with the discharge of the commissioner's
8-61 or employee's duties under this Act shall not be the basis for an
8-62 action for defamation of character.
8-63 Sec. 10.07. LIMITED SEVERABILITY. (a) If any clause,
8-64 sentence, subsection, section, article, or other provision of this
8-65 Act or the application of such a provision to any person or
8-66 circumstances is held invalid or unconstitutional, that invalidity
8-67 shall not affect the other clauses, sentences, subsections,
8-68 sections, articles, or provisions or applications of this Act that
8-69 may be given effect without the invalid clause, sentence,
8-70 subsection, section, article, or provision or application and shall
9-1 not affect, invalidate, impair, or nullify the remainder of this
9-2 Act. The effect of the determination of invalidity shall be
9-3 confined to the clause, sentence, subsection, section, article, or
9-4 provision or application so adjudicated to be invalid or
9-5 unconstitutional, and to that end the provisions of this Act are
9-6 declared to be severable.
9-7 (b) If any limit on damages prescribed by Section 7.01(e) of
9-8 this Act is invalidated by a method other than through legislative
9-9 means, the amount of civil liability for all past and future
9-10 noneconomic losses, including past and future pain and suffering,
9-11 mental anguish and suffering, and any other nonpecuniary damage,
9-12 shall be limited to an amount not to exceed $150,000.
9-13 (c) If any limit on damages prescribed by Section 7.01(e)
9-14 of this Act is invalidated by a method other than through
9-15 legislative means, and if the alternative civil liability limits
9-16 contained in Subsection (b) of this section are also invalidated by
9-17 a method other than legislative means, Section 7.01(e) shall be
9-18 void.
9-19 Sec. 10.08. JOINDER OF COMMISSION. In any civil action in
9-20 which the validity of any provision of this Act, a rule adopted
9-21 under this Act, or the application of such a provision or rule, is
9-22 challenged as void, unconstitutional, or unenforceable, the
9-23 commission shall be made a party to the proceedings, and on the
9-24 motion of the commission, venue of the cause may be transferred to
9-25 the district courts of Travis County, Texas. An order restraining
9-26 the commission or invalidating any provision of this Act or a
9-27 commission rule adopted under this Act may not be enforced and may
9-28 not take effect until the commission has answered and appeared in
9-29 the cause and has exhausted all avenues of appeal and any judgment
9-30 is final and enforceable. In such a declaratory proceeding, only
9-31 the commission, if a prevailing party, is entitled to recover, and
9-32 the court may award, costs and attorney's fees, notwithstanding any
9-33 other provision of state law, including this Act.
9-34 SECTION 9. This Act takes effect September 1, 1993, and
9-35 applies only to a complaint filed with the Commission on Human
9-36 Rights on or after that date. A complaint filed before that date
9-37 is governed by the law in effect on the date the complaint was
9-38 filed, and the former law is continued in effect for that purpose.
9-39 SECTION 10. The importance of this legislation and the
9-40 crowded condition of the calendars in both houses create an
9-41 emergency and an imperative public necessity that the
9-42 constitutional rule requiring bills to be read on three several
9-43 days in each house be suspended, and this rule is hereby suspended.
9-44 * * * * *
9-45 Austin,
9-46 Texas
9-47 May 12, 1993
9-48 Hon. Bob Bullock
9-49 President of the Senate
9-50 Sir:
9-51 We, your Committee on State Affairs to which was referred H.B.
9-52 No. 860, have had the same under consideration, and I am instructed
9-53 to report it back to the Senate with the recommendation that it do
9-54 pass and be printed.
9-55 Harris of
9-56 Dallas, Chairman
9-57 * * * * *
9-58 WITNESSES
9-59 FOR AGAINST ON
9-60 ___________________________________________________________________
9-61 Name: Ted Roberts x
9-62 Representing: Texas Association of Business
9-63 City: Austin
9-64 -------------------------------------------------------------------
9-65 Name: William M. Hale x
9-66 Representing: Texas Commission on Human Rights
9-67 City: Austin
9-68 -------------------------------------------------------------------
9-69 Name: John Ruhardt x
9-70 Representing: Dallas Co. Adult Literacy Co
10-1 City: Dallas
10-2 -------------------------------------------------------------------
10-3 Name: Frank Thompson x
10-4 Representing: Texas Commission on Human Rights
10-5 City: Austin
10-6 -------------------------------------------------------------------
10-7 Name: Richard Levy x
10-8 Representing: Texas AFL - CIO
10-9 City: Austin
10-10 -------------------------------------------------------------------
10-11 Name: Stella C. Mullins x
10-12 Representing: Mental Health Assn In Texas
10-13 City: Austin
10-14 -------------------------------------------------------------------
10-15 Name: Gilbert Rodriguez x
10-16 Representing: American GI Forum of The USA
10-17 City: Austin
10-18 -------------------------------------------------------------------
10-19 Name: Christopher Knepp x
10-20 Representing: Texas Employment Law Council
10-21 City: Austin
10-22 -------------------------------------------------------------------
10-23 Name: Antonio Morales x
10-24 Representing: American GI Forum - US
10-25 City: Austin
10-26 -------------------------------------------------------------------