BILL ANALYSIS Economic Development Committee C.S.H.B. 1978 By: Coleman May 2, 1995 Committee Report (Substituted) BACKGROUND The Texas Commission on Human Rights Act (ACT) prohibits discrimination in all employment transactions on the basis of race, color, sex, national origin, religion, age and mental or physical disability. The Act codifies the rights and remedies provided by Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act and Article I of the Americans with Disabilities Act. Since the Act mirrors the federal law the U.S. Equal Employment Opportunity Commission defers federal jurisdiction to the Texas Commission on Human Rights. Under the Act, an employer is required to provide reasonable workplace accommodations which enable a person with a mental or physical disability to perform the essential functions of the job as would any non-disabled employee. The Act provides an employer with a defense to the reasonable accommodation requirement if the accommodation constitutes an "undue hardship." PURPOSE The purpose of the legislation is to provide a more specific definition of "undue hardship" in accordance with current case law and EEOC interpretive rules and clarify the term "agent" in the Act. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 21.002, Labor Code, by adding Subdivision (14) by defining "undue hardship". SECTION 2. Amends Subchapter C, Chapter 21, Labor Code by adding Section 21.130, as follows: Section 21.130. REASONABLE ACCOMMODATIONS; GOOD FAITH EFFORT. (a) Makes it an unlawful employment practice for a respondent to fail or refuse to make workplace accommodation for a physical or mental limited employee or employee applicant, unless the respondent demonstrates that the accommodations would cause undue hardship to the operation of the business. b) Allows a respondent to use undue hardship as a defense against a complaint of discrimination. Requires the commission, when considering a complaint based on a disability, to consider the cost and available alternatives for workplace accommodations. c) Requires the person who raises the defense of undue hardship to bear the burden of establishing that an undue hardship exists and specifies the relation of that existence. (d) Requires that the person who requests accommodations to be allowed to provide or pay for there own accommodations in the claimed undue hardship. (e) Provides that a complaint in which a discriminatory employment practice involves a provision for a workplace accommodation, damages may not be awarded if the respondent demonstrates good faith efforts, in consultation with the disabled individual, to identify and make a workplace accommodation that would provide the individual with an equally effective opportunity and would not cause undue hardship. SECTION 3. Amends Subchapter F, Chapter 21, Labor Code, by adding Section 21.2586 as follows: Sec. 21.2586. LIABILITY OF AGENTS; CONTRIBUTION. (a) Prohibits a person who acts on behalf of a respondent to engage in an unlawful practice. (b) Provides that delegating the responsibility for providing or administering employee benefits does not insulate a respondent from liability. (c) If the agent that provides or administers, on behalf of the respondent, employee benefits has engaged in unlawful employment practice, the plaintiff is entitled to equitable relief and attorney's fees from the agent. (d) A respondent may recover damages, equitable relief, and attorney's fees from an agent of the respondent. SECTION 4. Effective date is September 1, 1995, and only applies to complaints filed on or after the effective date. A complaint filed before the effective date is governed by the law in effect at the time the complaint was filed. SECTION 5. (a) This Act conforms certain provisions of the Labor Code regarding those laws to certain changes made by Chapter 276, Acts of the 73rd Legislature, Regular Session, 1993. (b) This Act prevails over another Act of the 74th Legislature, Regular Session, 1995, relating to nonsubstantive additions to and corrections in enacted codes. SECTION 6. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The original bill defined an agent to mean a person who acts for or subject to the control of another under an express or implied contract or agreement or under law. The substitute does not address the definition of an agent. The original added a section to address undue hardship with certain specifications. The substitute defined undue hardship to have the meaning assigned by the Americans with Disabilities Act of 1990, and the interpretive regulations adopted by the Equal Employment Opportunity Commission. The substitute adds a section to address reasonable accommodation and good faith effort with certain specifications. The substitute also adds a section to address liability of agents and contribution with certain specifications. Makes the complaints filed before or after September 1, 1995 governed by the law in effect at the time the complaint was filed. The substitute makes the Act of this bill conform with certain provisions of the Labor Code. SUMMARY OF COMMITTEE ACTION H.B. 1978 was considered by the committee in a public hearing on April 10, 1995. Testifying on the bill was Ed Davis, representing the Texas Employment Commission; William M. Hale, representing the Texas Commission on Human Rights; and Brooks Wm. (Bill) Conover, III, representing the Texas Commission on Human Rights. Testifying in favor of the bill was Rick Levy, representing the Texas AFL-CIO. Testifying in favor of the bill if amended with Judith Sokolow, representing the Advocacy, Inc. Testifying against the bill was Grace F. Renbarger, representing the Texas Employment Law Council; and David Pinkus, representing the Small Business United of Texas. H.B. 1978 was left pending in committee. H.B. 1978 was reconsidered by the committee in a formal meeting on April 27, 1995. The committee considered a complete substitute for H.B. 1978. The substitute was adopted without objection. H.B. 1978 was reported favorably as substituted, with the recommendation that it do pass and be printed, by a record vote of 8 ayes, 9 nays, o pnv, 1 absent.