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79R5363 DAK-D
By: Coleman H.B. No. 2522
A BILL TO BE ENTITLED
AN ACT
relating to the prohibition of certain discrimination based on
actual or perceived sexual orientation; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. GENERAL PROVISIONS
SECTION 1.01. 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
commission, who files a complaint under Section 7.01 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, 5, or 6 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) "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.
(10) "Person" means an individual, corporation,
association, partnership, organization, or other public or private
legal entity.
(11) "Respondent" means the person accused in a
complaint of a discriminatory practice.
(12) "Sexual orientation" means:
(A) having an orientation for heterosexuality,
homosexuality, or bisexuality;
(B) having a history of such an orientation; or
(C) being identified as having such an
orientation, whether or not accurate.
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 7 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 or
promotes any particular sexual orientation.
(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 actual or perceived sexual orientation 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 actual or perceived sexual
orientation 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. 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 actual or perceived sexual
orientation of that individual.
ARTICLE 4. MEMBERSHIP DISCRIMINATION
IN LABOR ORGANIZATION PROHIBITED
SECTION 4.01. LABOR ORGANIZATION. A labor organization
commits a discriminatory practice and a violation of this Act if the
labor organization, because of the actual or perceived sexual
orientation 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.
ARTICLE 5. DISCRIMINATION IN PUBLIC ACCOMMODATIONS PROHIBITED
SECTION 5.01. PUBLIC ACCOMMODATIONS. A person commits a
discriminatory practice and a violation of this Act if the person,
because of the actual or perceived sexual orientation 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 actual or perceived sexual orientation.
ARTICLE 6. HOUSING DISCRIMINATION PROHIBITED
SECTION 6.01. REFUSAL TO SELL OR RENT. A person commits a
discriminatory practice and a violation of this Act if the person,
because of the actual or perceived sexual orientation 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 6.02. 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 actual or perceived sexual orientation of an individual, the
person discriminates against the individual in making available
such a transaction.
SECTION 6.03. 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 actual or perceived sexual orientation 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 6.04. COERCION. A person commits a discriminatory
practice and a violation of this Act if:
(1) because of the actual or perceived sexual
orientation 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 6.05. 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 actual or perceived sexual
orientation, or an intention to make such a preference, limitation,
or discrimination.
SECTION 6.06. 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 actual or
perceived sexual orientation 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, whether actual or perceived, 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, whether actual
or perceived, as the buyer or renter.
SECTION 6.07. 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, whether that sexual
orientation is actual or perceived.
SECTION 6.08. 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 actual or perceived sexual orientation in making
the appraisal.
ARTICLE 7. ADMINISTRATIVE ENFORCEMENT
SECTION 7.01. 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 7.02. ANSWER. (a) Not later than the 10th day
after receipt of the notice and copy under Section 7.01(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 7.03. 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 7.04. 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 7.05. 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 7.14 of this Act.
SECTION 7.06. 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 7.07. 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 7.08. CHARGE. (a) A charge issued under Section
7.07 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 7.12 of this Act to:
(1) each respondent, together with a notice of the
opportunity for a hearing provided by Section 7.14 of this Act; and
(2) each aggrieved person on whose behalf the
complaint was filed.
SECTION 7.09. 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 7.10. 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 7.11. 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 7.12. 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 7.13 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 7.08(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 7.13. ATTORNEY GENERAL ACTION FOR ENFORCEMENT. (a)
If a timely election is made under Section 7.12 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 8 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 7.14. ADMINISTRATIVE HEARING. (a) If a timely
election is not made under Section 7.12 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 7.15. RELIEF; CIVIL PENALTIES. (a) If the division
determines at a hearing under Section 7.14 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 7.16. EFFECT OF DIVISION ORDER. A division order
under Section 7.15 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 7.17. 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 7.15
of this Act, the division shall send a copy of each order issued
under that section to the attorney general.
ARTICLE 8. ENFORCEMENT BY PRIVATE PERSONS
SECTION 8.01. 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 7.01
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 8.02. 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 8.03 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 8.03. 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 8.04. 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 9.01(b) of this
Act.
ARTICLE 9. ENFORCEMENT BY ATTORNEY GENERAL
SECTION 9.01. 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 9.02. 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 10. CRIMINAL PENALTY
SECTION 10.01. CRIMINAL PENALTY. (a) A person commits an
offense if the person intentionally violates Article 3, 4, 5, or 6
of this Act.
(b) An offense under this section is a Class B misdemeanor.
ARTICLE 11. EFFECTIVE DATE
SECTION 11.01. EFFECTIVE DATE. This Act takes effect
September 1, 2005.