HBA-TYH, BTC H.B. 475 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 475 By: Maxey State Affairs 4/22/1999 Introduced BACKGROUND AND PURPOSE Presently, Texas law does not protect citizens from discrimination in employment based on sexual orientation (or perceived sexual orientation). Texas citizens have reported losing their jobs or being denied employment because of their sexual orientation. This bill prohibits employment discrimination based on sexual orientation in Texas and the establishment of any preferential treatment or quota system based on sexual orientation, but does not apply to the provision of employee benefits. This bill also exempts religious organizations from this provision. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Commission on Human Rights in SECTION 1 (Sec. 23.003, Labor Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle A, Title 2, Labor Code, by adding Chapter 23, as follows: CHAPTER 23. EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION SUBCHAPTER A. GENERAL PROVISIONS Sec. 23.001. SHORT TITLE. Authorizes the chapter to be referred to as the Texas Employment Nondiscrimination Act. Sec. 23.002. DEFINITIONS. Defines: (1) "Commission" as the Commission on Human Rights (commission); (2) "Covered entity" to include an employer, employment agency, a labor organization, joint labor management committee, or another person; (3) "Employer" as (A) a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year; (B) an agent of a person described by Paragraph (A); (C) an individual elected to public office in this state or a political subdivision of this state; or (D) a county, municipality, state agency, or state instrumentality, including a public institution of education, regardless of the number of individuals employed. (4) "Employment agency" as a person or agent of the person who regularly undertakes, with or without compensation, to procure: (A) employees for an employer; or (B) the opportunity for employees to work for an employer. (5) "Labor organization" as a labor organization engaged in an industry affecting commerce. 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 employment; and (B) a conference, general committee, joint or system board, or joint council that is subordinate to a national or international labor organization; and an agent of a labor organization. (6) "Religious organization" as (A) a religious corporation, association or society or (B) a school, institution of higher education, or other educational institution, not otherwise a religious organization that is wholly or substantially controlled, managed, owned, or supported by a religious organization or has a curriculum directed toward the propagation of a particular religion. (7) "Sexual orientation" as the actual or perceived status of a person with respect to the person's sexuality. Sec. 23.003. RULES. Authorizes the commission to adopt rules as necessary to implement this chapter. Sec. 23.004. NOTICES. Requires each covered entity to post, in the form and manner prescribed by commission rule, notices to inform employees, applicants for employment, and members of the entity of the applicable provisions of this chapter. Sec. 23.005. EFFECT ON OTHER LAW. Specifies that this chapter does not limit or affect the rights, remedies, or procedures available to an individual claiming discrimination which is prohibited under federal law, another state law, or an order or ordinance of a political subdivision of this state. Sec. 23.006. NO DISPARATE IMPACT. Specifies that the fact that a particular employment practice has a disparate impact, as used in Section 703 (k), Civil Rights Act of 1964 (42 U.S.C. Section 2000e-2(k)), on the basis of sexual orientation, does not establish a prima facie violation of this chapter. SUBCHAPTER B. UNLAWFUL EMPLOYMENT PRACTICES Sec. 23.021. DISCRIMINATION PROHIBITED. Prohibits a covered entity from subjecting an individual to different standards or treatment based on sexual orientation; discriminating against an individual based on sexual orientation of persons with whom the individual is believed to associate or to have associated; or otherwise discriminating against an individual on the basis of sexual orientation. Sec. 23.022. RETALIATION AND COERCION PROHIBITED. Prohibits discrimination by a covered entity against an individual because the individual opposes any act or practice prohibited by this chapter, makes or files a charge, or assists, testifies, or participates in any manner in an investigation, proceeding, or hearing conducted under this chapter. Prohibits a covered entity from coercing, intimidating, threatening, or interfering with an individual in the exercise or enjoyment of, or because the individual has exercised, enjoyed, assisted, or encouraged the exercise or enjoyment of, a right granted or protected by this chapter. Sec. 23.023. PROHIBITION OF QUOTAS AND PREFERENTIAL TREATMENT. Prohibits a covered entity from adopting or implementing a quota or giving preferential treatment to an individual on the basis of sexual orientation. SUBCHAPTER C. APPLICATION; EXCEPTIONS Sec. 23.041. LIABILITY OF GOVERNMENTAL ENTITY. Establishes that the state or a political subdivision of the state is liable for a violation of this chapter and that sovereign immunity is waived and abolished to the extent of liability that this chapter creates. Sec. 23.042. APPLICATION TO CERTAIN BENEFITS. Establishes that this chapter does not apply to the provision of employee benefits to an individual for the benefit of the individual's partner. Sec. 23.043. RELIGIOUS ORGANIZATION. Establishes that this chapter does not apply to a religious organization except that it does apply to activities conducted by a religious organization for profit to the extent that they are subject to federal taxation under Section 511 (a), Internal Revenue Code of 1986 (26 U.S.C. Section 511 (a)), as that section existed on September 1, 1999. Sec. 23.044. VETERAN'S PREFERENCE. Establishes that this chapter does not repeal or modify a state or local law that creates a special right or preference in employment for a veteran of the armed forces of the United States. SUBCHAPTER D. ENFORCEMENT Sec. 23.061. COMMISSION AUTHORITY; ENFORCEMENT; PROCEDURES. Establishes that the commission has the same authority to administer and enforce this chapter as it does under Chapter 21, Labor Code (Employment Discrimination) and that the procedures and remedies for a claim under this chapter are the same as those brought under Chapter 21. Sec. 23.062. ATTORNEY'S FEES. Establishes that the prevailing party to an action brought under this chapter is entitled to attorney's fees pursuant to Section 21.259, Labor Code (Attorney's Fees; Costs.). SECTION 2.Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 3. Emergency clause.