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.