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.