79R5393 DAK-D

By:  Villarreal                                                   H.B. No. 1515


A BILL TO BE ENTITLED
AN ACT
relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. GENERAL PROVISIONS
SECTION 1.01. GENERAL DEFINITIONS. In this Act: (1) "Aggrieved person" includes any person who: (A) claims to have been injured by a discriminatory practice; or (B) believes that he or she will be injured by a discriminatory practice that is about to occur. (2) "Complainant" means a person, including the division, who files a complaint under Section 6.01 of this Act. (3) "Conciliation" means the attempted resolution of issues raised by a complaint or by the investigation of a complaint, through informal negotiations involving the aggrieved person, the respondent, and the division. (4) "Conciliation agreement" means an agreement setting forth the resolution of the issues in conciliation. (5) "Discriminatory practice" means an act prohibited by Article 3, 4, or 5 of this Act. (6) "Division" means the civil rights division of the Texas Workforce Commission. (7) "Dwelling" means: (A) any building, structure, or part of a building or structure that is occupied as, or designed or intended for occupancy as, a residency by one or more families; or (B) any vacant land that is offered for sale or lease for the construction or location of a building, structure, or part of a building or structure described by Paragraph (A) of this subdivision. (8) "Employer" means a person that employs 15 or more employees. The term includes an agent designated by an employer. (9) "Gender identity or expression" means having or being perceived as having gender-related identity, appearance, expression, or behavior, whether or not that identity, appearance, expression, or behavior is different from that stereotypically associated with the person's actual or perceived sex. (10) "Labor organization" means a labor organization engaged in an industry affecting commerce that has 15 or more members. The term includes: (A) an organization, an agency, or an employee representation committee, group, association, or plan engaged in an industry affecting commerce in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment; (B) a conference, general committee, joint or system board, or joint council that is subordinate to a national or international labor organization; and (C) an agent of a labor organization. (11) "Person" means an individual, corporation, association, partnership, organization, or other public or private legal entity. (12) "Respondent" means the person accused in a complaint of a discriminatory practice. (13) "Sexual orientation" means: (A) having a preference for heterosexuality, homosexuality, or bisexuality; (B) having a history of such a preference; or (C) being identified as having such a preference.
ARTICLE 2. ADMINISTRATIVE PROVISIONS
SECTION 2.01. ADMINISTRATION BY DIVISION. The civil rights division of the Texas Workforce Commission shall administer this Act. SECTION 2.02. RULES. The division shall adopt rules as necessary to administer and enforce this Act. SECTION 2.03. COMPLAINTS. As provided by Article 6 of this Act, the division shall receive, investigate, seek to conciliate, and act on complaints alleging violations of this Act. SECTION 2.04. CERTAIN CONSTRUCTIONS OF ACT PROHIBITED. (a) This Act may not be construed to mean that this state condones homosexuality, bisexuality, or any equivalent lifestyle. (b) This Act may not be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes that is operated, supervised, or controlled by or in connection with a religious organization and that limits membership, enrollment, admission, or participation to members of that religion, from: (1) giving preference in hiring or employment to members of the same religion; or (2) taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law that is calculated by the organization to promote the religious principles for which it is established or maintained. (c) This Act may not be construed to authorize or permit the use of numerical goals or quotas, or other types of affirmative action programs, in the administration or enforcement of this Act.
ARTICLE 3. EMPLOYMENT DISCRIMINATION PROHIBITED
SECTION 3.01. EMPLOYER. An employer commits a discriminatory practice and a violation of this Act if the employer, because of the sexual orientation or gender identity or expression of an individual: (1) refuses to hire or employ the individual; (2) bars or discharges the individual from employment; or (3) otherwise discriminates against the individual in compensation or other terms, conditions, or privileges of employment. SECTION 3.02. EMPLOYMENT AGENCY. An employment agency commits a discriminatory practice and a violation of this Act if the employment agency, because of the sexual orientation or gender identity or expression of an applicant for employment through the agency: (1) fails or refuses to classify the applicant properly; (2) fails or refuses to refer the applicant for positions of employment; or (3) otherwise discriminates against the applicant. SECTION 3.03. LABOR ORGANIZATION. A labor organization commits a discriminatory practice and a violation of this Act if the labor organization, because of the sexual orientation or gender identity or expression of an individual: (1) excludes the individual from full membership rights; (2) expels the individual from its membership; or (3) otherwise discriminates against: (A) a member of the organization; (B) an employer; or (C) an individual employed by an employer. SECTION 3.04. EMPLOYMENT ADVERTISEMENTS. A person commits a discriminatory practice and a violation of this Act if the person advertises employment opportunities in a manner designed to restrict the employment in a manner that discriminates against an individual solely because of the sexual orientation or gender identity or expression of that individual.
ARTICLE 4. DISCRIMINATION IN PUBLIC ACCOMMODATIONS PROHIBITED
SECTION 4.01. PUBLIC ACCOMMODATIONS. A person commits a discriminatory practice and a violation of this Act if the person, because of the sexual orientation or gender identity or expression of an individual: (1) denies that individual full and equal accommodations in any place of public accommodation in this state, subject only to the conditions and limitations established by law and applicable to all persons; or (2) otherwise discriminates, segregates, or separates based on sexual orientation or gender identity or expression.
ARTICLE 5. HOUSING DISCRIMINATION PROHIBITED
SECTION 5.01. REFUSAL TO SELL OR RENT. A person commits a discriminatory practice and a violation of this Act if the person, because of the sexual orientation or gender identity or expression of an individual: (1) refuses to sell or rent a dwelling to the individual after the making of a bona fide offer by the individual; (2) refuses to negotiate for the sale or rental of a dwelling to the individual; (3) refuses to make available or otherwise denies a dwelling to the individual; or (4) discriminates against the individual in the terms, conditions, or privileges of the sale or rental of a dwelling, or the provision of services or facilities in connection with such a sale or rental. SECTION 5.02. REAL ESTATE RELATED TRANSACTIONS. A person who engages in real estate related transactions commits a discriminatory practice and a violation of this Act if, because of the sexual orientation or gender identity or expression of an individual, the person discriminates against the individual in making available such a transaction. SECTION 5.03. REAL ESTATE SERVICES AND ORGANIZATION. A person who engages in real estate related transactions commits a discriminatory practice and a violation of this Act if, because of the sexual orientation or gender identity or expression of an individual, the person: (1) denies the individual access to or membership or participation in any multiple-listing service, real estate brokers organization, or other service, organization, or facility relating to the business of selling or renting dwellings; or (2) discriminates against the individual in the terms or conditions of the access, membership, or participation described by Subdivision (1) of this section. SECTION 5.04. COERCION. A person commits a discriminatory practice and a violation of this Act if: (1) because of the sexual orientation or gender identity or expression of an individual, the person coerces, intimidates, threatens, or interferes with the individual in the exercise or enjoyment of a right granted or protected by this article; or (2) the person coerces, intimidates, threatens, or interferes with an individual because the individual has exercised or enjoyed, or aided or encouraged any other person in the exercise or enjoyment of, a right granted or protected by this article. SECTION 5.05. PUBLICATIONS. A person commits a discriminatory practice and a violation of this Act if the person makes, prints, or publishes, or causes to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on sexual orientation or gender identity or expression, or an intention to make such a preference, limitation, or discrimination. SECTION 5.06. STEERING PROHIBITED. (a) In this section, "area" means a municipality, neighborhood, or other geographic subdivision, including an apartment or condominium complex. (b) A person commits a discriminatory practice and a violation of this Act if the person, because of the sexual orientation or gender identity or expression of an individual, represents to the individual that a dwelling is not available for inspection, sale, or rental if the dwelling is in fact available. (c) A person violates this section if the person restricts or attempts to restrict the choices of any buyer or renter to purchase or rent a dwelling to an area that is substantially populated, even if by less than a majority, by persons of the same sexual orientation or gender identity or expression as the buyer or renter while that person is authorized to offer for sale or rent another dwelling that: (1) meets the housing criteria of the buyer or renter as expressed by the buyer or renter to that person; and (2) is located in an area that is not substantially populated by persons of the same sexual orientation or gender identity or expression as the buyer or renter. SECTION 5.07. ENTRY INTO NEIGHBORHOOD. A person commits a discriminatory practice and a violation of this Act if the person, for profit, induces or attempts to induce any person to sell or rent a dwelling by representations regarding the entry or prospective entry into the neighborhood in which the dwelling is located of an individual of a particular sexual orientation or gender identity or expression. SECTION 5.08. EXEMPTIONS. (a) This article does not apply to: (1) the rental of a room or rooms in a dwelling if the owner actually maintains and occupies part of the living quarters of the dwelling as the owner's residence; or (2) a unit in a dwelling containing living quarters occupied or intended to be occupied by not more than four families living independently of each other, if the owner actually maintains and occupies one of the units as the owner's residence. (b) This article does not limit or affect the applicability of any reasonable state statute or municipal ordinance that restricts the maximum number of persons permitted to occupy a dwelling. (c) This article does not prohibit a person engaged in the business of furnishing appraisals of real property from considering factors other than sexual orientation or gender identity or expression in making the appraisal.
ARTICLE 6. ADMINISTRATIVE ENFORCEMENT
SECTION 6.01. COMPLAINT. (a) An aggrieved person may, not later than one year after an alleged discriminatory practice has occurred or terminated, whichever is later, file a complaint with the division alleging the discriminatory practice. (b) The division shall investigate alleged discriminatory practices. (c) Not later than one year after an alleged discriminatory practice has occurred or terminated, whichever is later, the division may file its own complaint. (d) A complaint must be: (1) in writing; (2) under oath; and (3) in the form prescribed by the division. (e) A complaint may be amended at any time. (f) On the filing of a complaint the division shall: (1) give the aggrieved person notice that the complaint has been received; (2) advise the aggrieved person of the time limits and choice of forums under this Act; and (3) not later than the 10th day after the filing of the complaint, serve on each respondent: (A) a notice identifying the alleged discriminatory practice and advising the respondent of the procedural rights and obligations of a respondent under this Act; and (B) a copy of the original complaint. SECTION 6.02. ANSWER. (a) Not later than the 10th day after receipt of the notice and copy under Section 6.01(f)(3) of this Act, a respondent may file an answer to the complaint. (b) An answer must be: (1) in writing; (2) under oath; and (3) in the form prescribed by the division. (c) An answer may be amended at any time. SECTION 6.03. INVESTIGATION. (a) The division shall investigate all complaints and, except as provided by Subsection (b) of this section, shall complete an investigation not later than the 100th day after the date the complaint is filed. (b) If the division is unable to complete an investigation within the period prescribed by Subsection (a) of this section, the division shall notify the complainant and the respondent in writing of the reasons for the delay. SECTION 6.04. CONCILIATION. (a) The division shall, during the period beginning with the filing of a complaint and ending with the filing of a charge or a dismissal by the division, to the extent feasible, engage in conciliation with respect to the complaint. (b) A conciliation agreement is subject to division approval. A conciliation agreement must be written. (c) A conciliation agreement may provide for binding arbitration of the dispute. Arbitration that results from a conciliation agreement may authorize appropriate relief, including monetary relief. (d) A conciliation agreement shall be made public unless the complainant, respondent, and division agree that disclosure is not necessary to further the purposes of this Act. (e) Nothing said or done in the course of conciliation may be made public or used as evidence in a subsequent proceeding under this Act without the written consent of the persons concerned. (f) After completion of the division's investigation, the division shall make available to the aggrieved person and the respondent, at any time, information derived from the investigation and the final investigation report relating to that investigation. SECTION 6.05. TEMPORARY OR PRELIMINARY RELIEF. (a) If the division concludes at any time following the filing of a complaint that prompt judicial action is necessary to carry out the purposes of this Act, the division may authorize a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint. (b) On receipt of the division's authorization, the attorney general shall promptly file the action. (c) A temporary restraining order or other order granting preliminary or temporary relief under this section is governed by the applicable Texas Rules of Civil Procedure. (d) The filing of a civil action under this section does not affect the initiation or continuation of an administrative proceeding under Section 6.14 of this Act. SECTION 6.06. INVESTIGATIVE REPORT. (a) The division shall prepare a final investigative report showing: (1) the names and dates of contacts with witnesses; (2) a summary of correspondence and other contacts with the aggrieved person and the respondent showing the dates of the correspondence and contacts; (3) a summary description of other pertinent records; (4) a summary of witness statements; and (5) answers to interrogatories. (b) A final report under this section may be amended if additional evidence is discovered. SECTION 6.07. REASONABLE CAUSE DETERMINATION. (a) The division shall determine based on the facts whether reasonable cause exists to believe that a discriminatory practice has occurred or is about to occur. (b) The division shall make the determination under Subsection (a) of this section not later than the 100th day after the date a complaint is filed unless: (1) it is impracticable to make the determination; or (2) the division has approved a conciliation agreement relating to the complaint. (c) If it is impracticable to make the determination within the time period provided by Subsection (b) of this section, the division shall notify the complainant and respondent in writing of the reasons for the delay. (d) If the division determines that reasonable cause exists to believe that a discriminatory practice has occurred or is about to occur, the division shall immediately issue a charge on behalf of the aggrieved person. SECTION 6.08. CHARGE. (a) A charge issued under Section 6.07 of this Act: (1) must consist of a short and plain statement of the facts on which the division has found reasonable cause to believe that a discriminatory practice has occurred or is about to occur; (2) must be based on the final investigative report; and (3) need not be limited to the facts or grounds alleged in the complaint. (b) Not later than the 20th day after the division issues a charge, the division shall send a copy of a charge with information concerning the election under Section 6.12 of this Act to: (1) each respondent, together with a notice of the opportunity for a hearing provided by Section 6.14 of this Act; and (2) each aggrieved person on whose behalf the complaint was filed. SECTION 6.09. DISMISSAL. (a) If the division determines that reasonable cause does not exist to believe that a discriminatory practice has occurred or is about to occur, the division shall promptly dismiss the complaint. (b) The division shall make public disclosure of each dismissal under this section. SECTION 6.10. PENDING CIVIL TRIAL. The division may not issue a charge under this section regarding an alleged discriminatory practice after the beginning of the trial of a civil action commenced by the aggrieved party under federal or state law seeking relief with respect to that discriminatory practice. SECTION 6.11. SUBPOENAS; DISCOVERY. (a) The division may issue subpoenas and order discovery as provided by this section in aid of investigations and hearings under this Act. (b) The subpoenas and discovery may be ordered to the same extent and are subject to the same limitations as subpoenas and discovery in a civil action in district court. SECTION 6.12. ELECTION OF JUDICIAL DETERMINATION. (a) A complainant, a respondent, or an aggrieved person on whose behalf the complaint was filed may elect to have the claims asserted in that charge decided in a civil action as provided by Section 6.13 of this Act. (b) The election must be made not later than the 20th day after the date of receipt by the electing person of service under Section 6.08(b) of this Act or, in the case of the division, not later than the 20th day after the date the charge was issued. (c) The person making the election shall give notice to the division and to all other complainants and respondents to whom the charge relates. SECTION 6.13. ATTORNEY GENERAL ACTION FOR ENFORCEMENT. (a) If a timely election is made under Section 6.12 of this Act, the division shall authorize and, not later than the 30th day after the election is made, the attorney general shall file a civil action on behalf of the aggrieved person in a district court seeking relief under this section. (b) Venue for an action under this section is in the county in which the alleged discriminatory practice occurred or in Travis County. (c) An aggrieved person may intervene in the action. (d) If the court finds that a discriminatory practice has occurred or is about to occur, the court may grant as relief any relief that a court may grant in a civil action under Article 7 of this Act. (e) If monetary relief is sought for the benefit of an aggrieved person who does not intervene in the civil action, the court may not award the monetary relief if that aggrieved person has not complied with discovery orders entered by the court. SECTION 6.14. ADMINISTRATIVE HEARING. (a) If a timely election is not made under Section 6.12 of this Act, the division shall provide for a hearing on the charge. (b) Except as provided by Subsection (c) of this section, Chapter 2001, Government Code, governs a hearing under this section. (c) A hearing under this section may not continue regarding any alleged discriminatory practice after the beginning of the trial of a civil action commenced by the aggrieved party under federal or state law seeking relief with respect to that discriminatory practice. SECTION 6.15. RELIEF; CIVIL PENALTIES. (a) If the division determines at a hearing under Section 6.14 of this Act that a respondent has engaged in or is about to engage in a discriminatory practice, the division may order the appropriate relief, including actual damages, reasonable attorney's fees, court costs, and other injunctive or equitable relief. (b) To vindicate the public interest, the division may assess a civil penalty against the respondent in an amount that does not exceed: (1) $10,000 if the respondent has been adjudged by order of the division or a court to have committed a prior discriminatory practice; (2) except as provided by Subsection (c) of this section, $25,000 if the respondent has been adjudged by order of the division or a court to have committed one other discriminatory practice during the five-year period ending on the date of the filing of the charge; and (3) except as provided by Subsection (c) of this section, $50,000 if the respondent has been adjudged by order of the division or a court to have committed two or more discriminatory practices during the seven-year period ending on the date of the filing of the charge. (c) If the acts constituting the discriminatory practice that is the object of the charge are committed by the same individual who has been previously adjudged to have committed acts constituting a discriminatory practice, the civil penalties in Subsections (b)(2) and (3) of this section may be imposed without regard to the period within which any other discriminatory practice occurred. (d) At the request of the division, the attorney general shall sue to recover a civil penalty due under this section. Funds collected under this section shall be paid to the state treasurer for deposit in the state treasury. SECTION 6.16. EFFECT OF DIVISION ORDER. A division order under Section 6.15 of this Act does not affect a contract, sale, encumbrance, or lease that: (1) was consummated before the division issued the order; and (2) involved a bona fide purchaser, encumbrancer, or tenant who did not have actual notice of the charge filed under this Act. SECTION 6.17. ORDER IN PRECEDING FIVE YEARS. If the division issues an order against a respondent against whom another order was issued within the preceding five years under Section 6.15 of this Act, the division shall send a copy of each order issued under that section to the attorney general.
ARTICLE 7. ENFORCEMENT BY PRIVATE PERSONS
SECTION 7.01. CIVIL ACTION. (a) An aggrieved person may file a civil action in district court not later than the second year after the occurrence of the termination of an alleged discriminatory practice, or the breach of a conciliation agreement entered into under this Act, whichever occurs last, to obtain appropriate relief with respect to the discriminatory practice or breach. (b) The two-year period does not include any time during which an administrative hearing under this Act is pending with respect to a complaint or charge under this Act based on the discriminatory practice. This subsection does not apply to actions arising from a breach of a conciliation agreement. (c) An aggrieved person may file an action under this section whether or not a complaint has been filed under Section 6.01 of this Act and without regard to the status of any complaint filed under that section. (d) If the division has obtained a conciliation agreement with the consent of an aggrieved person, the aggrieved person may not file an action under this section with respect to the alleged discriminatory practice that forms the basis for the complaint except to enforce the terms of the agreement. (e) An aggrieved person may not file an action under this section with respect to an alleged discriminatory practice that forms the basis of a charge issued by the division if the division has begun a hearing on the record under this Act with respect to the charge. SECTION 7.02. RELIEF GRANTED. In an action under this article, if the court finds that a discriminatory practice has occurred or is about to occur, the court may award to the plaintiff: (1) actual and punitive damages; (2) reasonable attorney's fees; (3) court costs; and (4) subject to Section 7.03 of this Act, any permanent or temporary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in the practice or ordering other appropriate action. SECTION 7.03. EFFECT OF RELIEF GRANTED. Relief granted under this article does not affect a contract, sale, encumbrance, or lease that: (1) was consummated before the granting of the relief; and (2) involved a bona fide purchaser, encumbrancer, or tenant who did not have actual notice of the filing of a complaint under this Act or a civil action under this article. SECTION 7.04. INTERVENTION BY ATTORNEY GENERAL. (a) The attorney general may intervene in an action under this article if the attorney general certifies that the case is of general public importance. (b) The attorney general may obtain the same relief available to the attorney general under Section 8.01(b) of this Act.
ARTICLE 8. ENFORCEMENT BY ATTORNEY GENERAL
SECTION 8.01. PATTERN OR PRACTICE CASES. (a) The attorney general may file a civil action in district court for appropriate relief if the attorney general has reasonable cause to believe that: (1) a person is engaged in a pattern or practice of resistance to the full enjoyment of any right granted by this Act; or (2) a person has been denied any right granted by this Act and that denial raises an issue of general public importance. (b) In an action under this section the court may: (1) award preventive relief, including a permanent or temporary injunction, restraining order, or other order against the person responsible for a violation of this Act as necessary to assure the full enjoyment of the rights granted by this Act; (2) award other appropriate relief, including monetary damages, reasonable attorney's fees, and court costs; and (3) to vindicate the public interest, assess a civil penalty against the respondent in an amount that does not exceed: (A) $50,000 for a first violation; and (B) $100,000 for a second or subsequent violation. (c) A person may intervene in an action under this section if the person is: (1) an aggrieved person to the discriminatory practice; or (2) a party to a conciliation agreement concerning the discriminatory practice. SECTION 8.02. SUBPOENA ENFORCEMENT. The attorney general, on behalf of the division or other party at whose request a subpoena is issued under this Act, may enforce the subpoena in appropriate proceedings in district court.
ARTICLE 9. CRIMINAL PENALTY
SECTION 9.01. CRIMINAL PENALTY. (a) A person commits an offense if the person intentionally violates Article 3, 4, or 5 of this Act. (b) An offense under this section is a Class B misdemeanor.
ARTICLE 10. EFFECTIVE DATE
SECTION 10.01. EFFECTIVE DATE. This Act takes effect September 1, 2005.