86R1758 JSC-D
By: Collier H.B. No. 1751
A BILL TO BE ENTITLED
AN ACT
relating to a prohibition on sex discrimination in employment
compensation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter C, Chapter 21, Labor Code, is amended
by adding Section 21.1061 to read as follows:
Sec. 21.1061. SEX DISCRIMINATION IN COMPENSATION. For
purposes of this chapter, a violation of Chapter 24 is considered to
be discrimination on the basis of sex.
SECTION 2. Subtitle A, Title 2, Labor Code, is amended by
adding Chapter 24 to read as follows:
CHAPTER 24. EMPLOYMENT DISCRIMINATION REGARDING COMPENSATION
Sec. 24.001. DEFINITIONS. In this chapter:
(1) "Applicant" means a person who has made an oral or
written application with an employer, or has sent a resume or other
correspondence to an employer, indicating an interest in
employment.
(2) "Commission" means the Texas Workforce
Commission.
(3) "Employee" and "employer" have the meanings
assigned by Section 21.002.
(4) "Wages" has the meaning assigned by Section
61.001.
Sec. 24.002. EMPLOYER INQUIRIES INTO AND CONSIDERATION OF
WAGE HISTORY INFORMATION. (a) An employer may not:
(1) include a question regarding an applicant's wage
history information on an employment application form;
(2) inquire into or consider an applicant's wage
history information; or
(3) obtain an applicant's wage history information
from a previous employer of the applicant, unless the wages in that
previous employment position are subject to disclosure under
Chapter 552, Government Code.
(b) Notwithstanding Subsection (a), an applicant may
provide written authorization to a prospective employer to confirm
the applicant's wage history, including benefits or other
compensation, only after the prospective employer has made a
written offer of employment to the applicant that includes the
applicant's wage and benefit information for the position.
Sec. 24.003. PROHIBITION AGAINST DISCRIMINATION IN WAGES.
(a) For purposes of this section, "business necessity" means an
overriding legitimate business purpose such that the factor relied
upon in determining wage differential effectively fulfills the
business purpose the factor is intended to serve.
(b) An employer commits an unlawful employment practice in
violation of this chapter and Chapter 21 if the employer
discriminates among employees on the basis of sex by paying wages to
an employee at a rate less than the rate at which the employer pays
wages to another employee of the opposite sex for the same or
substantially similar work on jobs, the performance of which
requires equal or substantially similar skill, effort, and
responsibility, and which are performed under similar working
conditions, except where the payment is made under one of the
following factors:
(1) a seniority system;
(2) a merit system;
(3) a system that measures earnings by quantity or
quality of production; or
(4) a differential based on a bona fide factor other
than sex.
(c) A seniority system described by Subsection (b)(1) may
not deduct from the employee's service time any leave that the
employee took under the Family and Medical Leave Act (29 U.S.C.
Section 2601 et seq.) or other applicable family or medical leave to
which the employee is entitled.
(d) The exception provided by Subsection (b)(4) applies
only if the employer demonstrates that the factor:
(1) is not based on or derived from a differential
based on sex in compensation;
(2) is related to the position in question; and
(3) is consistent with business necessity.
(e) An employer may not enter into an agreement with an
employee that provides that the employer may pay the employee a wage
at a rate that is in violation of this section.
Sec. 24.004. OTHER PROHIBITED ACTS. (a) An employer
commits an unlawful employment practice in violation of this
chapter and Chapter 21 if the employer:
(1) takes an adverse action or otherwise discriminates
against a person because the person has:
(A) opposed an act or practice made unlawful by
this chapter;
(B) sought to enforce rights protected under this
chapter; or
(C) testified, assisted, or participated in any
manner in an investigation, hearing, or other proceeding to enforce
this chapter; or
(2) discharges or in any other manner discriminates
against, coerces, intimidates, threatens, or interferes with an
employee or other person because the person:
(A) inquired about, disclosed, compared, or
otherwise discussed an employee's wages; or
(B) exercised or enjoyed, or aided or encouraged
another person to exercise or enjoy, any right granted or protected
by this chapter.
(b) This section does not require an employee to disclose
the employee's wages.
(c) An employer may prohibit a human resources employee
whose job responsibilities require access to the compensation
information of other employees from disclosing that information
without the written consent of the employee who is the subject of
the information. This subsection does not apply to compensation
information that is subject to disclosure under Chapter 552,
Government Code.
Sec. 24.005. NOTICE BY EMPLOYER REQUIRED. Each employer
shall post in conspicuous places on the premises of the employer
where notices to employees and applicants for employment are
customarily posted a notice, prepared or approved by the
commission, setting forth the pertinent provisions of this chapter
and information relating to the enforcement of this chapter.
Sec. 24.006. COMPLAINT; ENFORCEMENT. (a) A person
aggrieved by an unlawful employment practice under this chapter may
file a complaint with the commission. A complaint filed under this
section is subject to Subchapters E and F, Chapter 21.
(b) The commission shall enforce this chapter in accordance
with Chapter 21.
Sec. 24.007. EMPLOYER SELF-EVALUATION; AFFIRMATIVE
DEFENSE. (a) An employer is encouraged to periodically perform a
self-evaluation of the employer's business practices and
compensation to ensure that the employer is in compliance with this
chapter.
(b) In a civil action filed under Subchapter F, Chapter 21,
by a person aggrieved by an unlawful employment practice under this
chapter, it is an affirmative defense to liability for compensatory
or punitive damages under Section 21.2585 that:
(1) the employer performed a self-evaluation of the
employer's business practices and compensation in the three-year
period preceding the date of the conduct that is the basis of the
complaint; and
(2) the employer has in good faith demonstrated that,
following the date of the evaluation under Subdivision (1), the
employer has made reasonable progress toward eliminating
compensation differentials based on sex.
(c) This section does not require an employer to perform a
self-evaluation or subject an employer to any penalty for failing
to perform a self-evaluation.
Sec. 24.008. TASK FORCE. (a) The task force on wage
disparity is created and is composed of the following 15 members:
(1) the member of the commission who represents labor,
or the member's designee, to serve as presiding officer;
(2) the attorney general or the attorney general's
designee;
(3) three members of the house of representatives,
appointed by the speaker of the house of representatives;
(4) three members of the senate, appointed by the
lieutenant governor; and
(5) seven public members, appointed by the governor:
(A) one of whom represents employers;
(B) two of whom have experience in the field of
gender economics;
(C) one of whom represents organized labor; and
(D) three of whom represent women's advocacy
groups or associations.
(b) The task force shall investigate, analyze, and study the
factors, causes, and impact of wage disparity based on gender.
(c) Not later than January 1 of each odd-numbered year, the
task force shall submit to the legislature recommendations to
reduce wage disparity based on gender, including any proposed
legislation.
(d) Members of the task force serve without compensation and
may not be reimbursed for travel or other expenses incurred while
conducting the business of the task force.
(e) The commission shall provide administrative support to
the task force, including necessary staff and meeting facilities.
(f) The task force is abolished and this section expires
September 1, 2025.
SECTION 3. The changes in law made by this Act apply only to
an unlawful employment practice with regard to discrimination in
payment of compensation that occurs on or after January 1, 2020.
SECTION 4. This Act takes effect January 1, 2020.