74R11585 JMM-F
          By Coleman                                            H.B. No. 1978
          Substitute the following for H.B. No. 1978:
          By Oliveira                                       C.S.H.B. No. 1978
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the application of certain laws prohibiting employment
    1-3  discrimination.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 21.002, Labor Code, is amended by adding
    1-6  Subdivision (14) to read as follows:
    1-7              (14)  "Undue hardship" has the meaning assigned by the
    1-8  Americans with Disabilities Act of 1990 (42 U.S.C. Section 12111),
    1-9  and the interpretive regulations adopted by the Equal Employment
   1-10  Opportunity Commission under that section.
   1-11        SECTION 2.  Subchapter C, Chapter 21, Labor Code, is amended
   1-12  by adding Section 21.130 to read as follows:
   1-13        Sec. 21.130.  REASONABLE ACCOMMODATION; GOOD FAITH EFFORT.
   1-14  (a)  It is an unlawful employment practice for a respondent covered
   1-15  under this chapter to fail or refuse to make a reasonable workplace
   1-16  accommodation to a known physical or mental limitation of an
   1-17  otherwise qualified individual with a disability who is an employee
   1-18  or applicant for employment, unless the respondent demonstrates
   1-19  that the accommodation would impose an undue hardship on the
   1-20  operation of the business of the respondent.
   1-21        (b)  A showing of undue hardship by the respondent is a
   1-22  defense to a complaint of discrimination made by an otherwise
   1-23  qualified individual with a disability.  In considering a complaint
   1-24  based on a disability, the commission shall consider the
    2-1  reasonableness of the cost of any necessary workplace accommodation
    2-2  and the availability of alternatives or other appropriate relief.
    2-3        (c)  A person who raises the defense of undue hardship bears
    2-4  the burden of establishing that an undue hardship exists in
    2-5  relation to:
    2-6              (1)  the nature and cost of the accommodation;
    2-7              (2)  the overall financial resources of a facility
    2-8  involved in providing the reasonable accommodation;
    2-9              (3)  the number of persons employed at the facility;
   2-10              (4)  the effect on expenses and resources or any other
   2-11  impact of the accommodation on the operation of the facility;
   2-12              (5)  the overall financial resources of the person;
   2-13              (6)  the overall size of the business of the person
   2-14  with respect to the number of employees;
   2-15              (7)  the number, type, and location of the facilities;
   2-16              (8)  the type of operation of the person, including the
   2-17  composition, structure, and functions of the person's workforce;
   2-18  and
   2-19              (9)  the geographic distance and administrative or
   2-20  fiscal relationship between the facility in question and the
   2-21  person.
   2-22        (d)  A person who requests a reasonable accommodation must be
   2-23  allowed to provide the person's own accommodation or to pay part of
   2-24  the cost of the accommodation that results in the claimed undue
   2-25  hardship.
   2-26        (e)  In a complaint in which a discriminatory employment
   2-27  practice involves the provision of a reasonable workplace
    3-1  accommodation under this chapter, damages may not be awarded under
    3-2  Subchapter F if the respondent demonstrates good faith efforts, in
    3-3  consultation with the otherwise qualified individual with a
    3-4  disability who has informed the respondent that accommodation is
    3-5  needed, to identify and make a reasonable workplace accommodation
    3-6  that would provide the individual with an equally effective
    3-7  opportunity and would not cause an undue hardship on the operation
    3-8  of the business.
    3-9        SECTION 3.  Subchapter F, Chapter 21, Labor Code, is amended
   3-10  by adding Section 21.2586 to read as follows:
   3-11        Sec. 21.2586.  LIABILITY OF AGENTS; CONTRIBUTION.  (a)  A
   3-12  person who acts on behalf of a respondent in providing or
   3-13  administering employee benefits may not engage in an unlawful
   3-14  practice under this chapter.
   3-15        (b)  The delegation of responsibility for providing or
   3-16  administering employee benefits does not insulate a respondent from
   3-17  liability under this chapter.
   3-18        (c)  If an agent of a respondent that provides or administers
   3-19  employee benefits is identified in an investigation as having
   3-20  engaged in or contributed to an unlawful employment practice, the
   3-21  plaintiff in a suit brought under this chapter is entitled to
   3-22  equitable relief and reasonable attorney's fees from the agent to
   3-23  the same extent as authorized against a respondent under this
   3-24  chapter.
   3-25        (d)  A respondent may recover damages, costs associated with
   3-26  equitable relief, and attorney's fees from an agent of the
   3-27  respondent that provides or administers employee benefits and is
    4-1  found to have engaged in conduct prohibited by this chapter.
    4-2        SECTION 4.  This Act takes effect September 1, 1995, and
    4-3  applies only to a perfected complaint filed with the Texas
    4-4  Commission on Human Rights on or after that date.  A perfected
    4-5  complaint filed before the effective date of this Act is governed
    4-6  by the law in effect at the time the complaint was filed, and the
    4-7  former law is continued in effect for that purpose.
    4-8        SECTION 5.  (a)  In addition to the changes in law made by
    4-9  this Act to the application of certain laws prohibiting employment
   4-10  discrimination, this Act conforms certain provisions of the Labor
   4-11  Code regarding those laws to certain changes made by Chapter 276,
   4-12  Acts of the 73rd Legislature, Regular Session, 1993.
   4-13        (b)  To the extent of any conflict, this Act prevails over
   4-14  another Act of the 74th Legislature, Regular Session, 1995,
   4-15  relating to nonsubstantive additions to and corrections in enacted
   4-16  codes.
   4-17        SECTION 6.  The importance of this legislation and the
   4-18  crowded condition of the calendars in both houses create an
   4-19  emergency and an imperative public necessity that the
   4-20  constitutional rule requiring bills to be read on three several
   4-21  days in each house be suspended, and this rule is hereby suspended.