86R1775 LED-F
By: Bernal H.B. No. 254
A BILL TO BE ENTITLED
AN ACT
relating to the prohibition of certain discrimination based on
sexual orientation or gender identity or expression; providing an
administrative penalty; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 100B to read as follows:
CHAPTER 100B. LIABILITY ARISING FROM DISCRIMINATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 100B.001. DEFINITIONS. In this chapter:
(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) "Discriminatory practice" means an act prohibited
by this chapter.
(3) "Gender identity or expression" means having or
being perceived as having a gender-related identity, appearance,
expression, or behavior, regardless of whether that identity,
appearance, expression, or behavior is different from that commonly
associated with the individual's actual or perceived sex assigned
or designated at birth.
(4) "Public accommodation" means a business or other
entity that offers to the public food, shelter, recreation, or
amusement, or any other goods, service, privilege, facility, or
accommodation.
(5) "Religious organization" means:
(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:
(i) is wholly or substantially controlled,
managed, owned, or supported by a religious organization; or
(ii) has a curriculum directed toward the
propagation of a particular religion.
(6) "Sexual orientation" means the actual or perceived
status of an individual with respect to the individual's sexuality.
Sec. 100B.002. APPLICABILITY OF CHAPTER. (a) Except as
provided by Subsection (b), this chapter does not apply to a
religious organization.
(b) This chapter applies to activities conducted by a
religious organization for profit to the extent that those
activities are subject to federal taxation under Section 511(a),
Internal Revenue Code of 1986, as that section existed on September
1, 2019.
SUBCHAPTER B. DISCRIMINATION IN PUBLIC ACCOMMODATIONS PROHIBITED
Sec. 100B.051. PUBLIC ACCOMMODATIONS. (a) Except as
provided by Subsection (b), a person engages in a discriminatory
practice and violates this chapter 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 against or segregates or
separates the individual based on sexual orientation or gender
identity or expression.
(b) A person does not engage in a discriminatory practice or
violate this chapter under Subsection (a) if segregation or
separation of an individual is necessary to provide a service that:
(1) provides acceptance, support, and understanding
to the individual;
(2) assists the individual with coping with the
individual's sexual orientation or gender identity or expression,
maintaining social support, and exploring and identifying the
individual's identity; or
(3) provides support to an individual undergoing a
gender transition.
(c) The services described by Subsection (b)(2) include a
sexual orientation-neutral intervention for preventing or
addressing unlawful conduct or unsafe sexual practices if the
intervention does not seek to change the individual's sexual
orientation or gender identity or expression.
SUBCHAPTER C. CAUSE OF ACTION
Sec. 100B.101. CIVIL ACTION. An aggrieved person may file a
civil action in district court not later than the second
anniversary of the occurrence of the termination of an alleged
discriminatory practice under this chapter to obtain appropriate
relief with respect to the discriminatory practice.
Sec. 100B.102. RELIEF GRANTED. In an action under this
subchapter, 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) 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 2. Subchapter A, Chapter 2155, Government Code, is
amended by adding Section 2155.0065 to read as follows:
Sec. 2155.0065. PROHIBITION AGAINST DISCRIMINATION BY
STATE CONTRACTOR BASED ON SEXUAL ORIENTATION OR GENDER IDENTITY OR
EXPRESSION. (a) In this section:
(1) "Employee" means an individual who is employed by
a contractor or subcontractor for compensation.
(2) "Gender identity or expression" means having or
being perceived as having a gender-related identity, appearance,
expression, or behavior, regardless of whether that identity,
appearance, expression, or behavior is different from that commonly
associated with the individual's actual or perceived sex assigned
or designated at birth.
(3) "Sexual orientation" means the actual or perceived
status of an individual with respect to the individual's sexuality.
(b) A state agency contracting with a contractor under this
subtitle shall require the contractor to adopt and apply an
employment policy under which the contractor and any subcontractor
may not, because of sexual orientation or gender identity or
expression:
(1) fail or refuse to hire an individual, discharge an
individual, or discriminate in any other manner against an
individual in connection with compensation or the terms,
conditions, or privileges of employment; or
(2) limit, segregate, or classify an employee or
applicant for employment in a manner that would deprive or tend to
deprive an individual of any employment opportunity or adversely
affect in any other manner the status of an employee.
(c) Each contract entered into between a state agency and a
contractor under this subtitle must include terms that:
(1) authorize an employee of a contractor or
subcontractor, or an applicant for employment with the contractor
or subcontractor, to make a verbal or written complaint to the state
agency regarding the contractor's or subcontractor's noncompliance
with an employment policy required by Subsection (b);
(2) explain that, on confirmation of a contractor's or
subcontractor's noncompliance with an employment policy required
by Subsection (b) that is the subject of a complaint, the state
agency shall provide to the contractor written notice of the
noncompliance by hand delivery or certified mail;
(3) inform a contractor that the state agency may
impose an administrative penalty if the contractor fails to comply
with an employment policy required by Subsection (b) after the date
on which the contractor receives notice under Subdivision (2); and
(4) explain that an amount equal to the amount of the
administrative penalty may be withheld from a payment otherwise
owed to a contractor under a contract.
(d) The amount of an administrative penalty imposed under
Subsection (c)(3) is $100 per day for each employee or applicant for
employment who is discriminated against in violation of an
employment policy required by Subsection (b).
(e) Each state agency shall develop procedures for the
administration of this section.
SECTION 3. Section 21.002, Labor Code, is amended by adding
Subdivisions (9-a) and (13-a) to read as follows:
(9-a) "Gender identity or expression" means having or
being perceived as having a gender-related identity, appearance,
expression, or behavior, regardless of whether that identity,
appearance, expression, or behavior is different from that commonly
associated with the individual's actual or perceived sex assigned
or designated at birth.
(13-a) "Sexual orientation" means the actual or
perceived status of an individual with respect to the individual's
sexuality.
SECTION 4. Section 21.051, Labor Code, is amended to read as
follows:
Sec. 21.051. DISCRIMINATION BY EMPLOYER. An employer
commits an unlawful employment practice if because of race, color,
disability, religion, sex, national origin, [or] age, sexual
orientation, or gender identity or expression the employer:
(1) fails or refuses to hire an individual, discharges
an individual, or discriminates in any other manner against an
individual in connection with compensation or the terms,
conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or
applicant for employment in a manner that would deprive or tend to
deprive an individual of any employment opportunity or adversely
affect in any other manner the status of an employee.
SECTION 5. Section 21.052, Labor Code, is amended to read as
follows:
Sec. 21.052. DISCRIMINATION BY EMPLOYMENT AGENCY. An
employment agency commits an unlawful employment practice if the
employment agency:
(1) fails or refuses to refer for employment or
discriminates in any other manner against an individual because of
race, color, disability, religion, sex, national origin, [or] age,
sexual orientation, or gender identity or expression; or
(2) classifies or refers an individual for employment
on the basis of race, color, disability, religion, sex, national
origin, [or] age, sexual orientation, or gender identity or
expression.
SECTION 6. Section 21.053, Labor Code, is amended to read as
follows:
Sec. 21.053. DISCRIMINATION BY LABOR ORGANIZATION. A labor
organization commits an unlawful employment practice if because of
race, color, disability, religion, sex, national origin, [or] age,
sexual orientation, or gender identity or expression the labor
organization:
(1) excludes or expels from membership or
discriminates in any other manner against an individual; or
(2) limits, segregates, or classifies a member or an
applicant for membership or classifies or fails or refuses to refer
for employment an individual in a manner that would:
(A) deprive or tend to deprive an individual of
any employment opportunity;
(B) limit an employment opportunity or adversely
affect in any other manner the status of an employee or of an
applicant for employment; or
(C) cause or attempt to cause an employer to
violate this subchapter.
SECTION 7. Section 21.054(a), Labor Code, is amended to
read as follows:
(a) Unless a training or retraining opportunity or program
is provided under an affirmative action plan approved under a
federal law, rule, or order, an employer, labor organization, or
joint labor-management committee controlling an apprenticeship,
on-the-job training, or other training or retraining program
commits an unlawful employment practice if the employer, labor
organization, or committee discriminates against an individual
because of race, color, disability, religion, sex, national origin,
[or] age, sexual orientation, or gender identity or expression in
admission to or participation in the program.
SECTION 8. Section 21.059(a), Labor Code, is amended to
read as follows:
(a) An employer, labor organization, employment agency, or
joint labor-management committee controlling an apprenticeship,
on-the-job training, or other training or retraining program
commits an unlawful employment practice if the employer, labor
organization, employment agency, or committee prints or publishes
or causes to be printed or published a notice or advertisement
relating to employment that:
(1) indicates a preference, limitation,
specification, or discrimination based on race, color, disability,
religion, sex, national origin, [or] age, sexual orientation, or
gender identity or expression; and
(2) concerns an employee's status, employment, or
admission to or membership or participation in a labor union or
training or retraining program.
SECTION 9. Section 21.102(c), Labor Code, is amended to
read as follows:
(c) This section does not apply to standards of compensation
or terms, conditions, or privileges of employment that are
discriminatory on the basis of race, color, disability, religion,
sex, national origin, [or] age, sexual orientation, or gender
identity or expression.
SECTION 10. Section 21.112, Labor Code, is amended to read
as follows:
Sec. 21.112. EMPLOYEES AT DIFFERENT LOCATIONS. An employer
does not commit an unlawful employment practice by applying to
employees who work in different locations different standards of
compensation or different terms, conditions, or privileges of
employment that are not discriminatory on the basis of race, color,
disability, religion, sex, national origin, [or] age, sexual
orientation, or gender identity or expression.
SECTION 11. Section 21.113, Labor Code, is amended to read
as follows:
Sec. 21.113. IMBALANCE PLAN NOT REQUIRED. This chapter
does not require a person subject to this chapter to grant
preferential treatment to an individual or a group on the basis of
race, color, disability, religion, sex, national origin, [or] age,
sexual orientation, or gender identity or expression because of an
imbalance between:
(1) the total number or percentage of persons of that
individual's or group's race, color, disability, religion, sex,
national origin, [or] age, sexual orientation, or gender identity
or expression:
(A) employed by an employer;
(B) referred or classified for employment by an
employment agency or labor organization;
(C) admitted to membership or classified by a
labor organization; or
(D) admitted to or employed in an apprenticeship,
on-the-job training, or other training or retraining program; and
(2) the total number or percentage of persons of that
race, color, disability, religion, sex, national origin, [or] age,
sexual orientation, or gender identity or expression in:
(A) a community, this state, a region, or other
area; or
(B) the available work force in a community, this
state, a region, or other area.
SECTION 12. Section 21.120(b), Labor Code, is amended to
read as follows:
(b) Subsection (a) does not apply to a policy adopted or
applied with the intent to discriminate because of race, color,
sex, national origin, religion, age, [or] disability, sexual
orientation, or gender identity or expression.
SECTION 13. Section 21.122(a), Labor Code, is amended to
read as follows:
(a) An unlawful employment practice based on disparate
impact is established under this chapter only if:
(1) a complainant demonstrates that a respondent uses
a particular employment practice that causes a disparate impact on
the basis of race, color, sex, national origin, religion, [or]
disability, sexual orientation, or gender identity or expression
and the respondent fails to demonstrate that the challenged
practice is job-related for the position in question and consistent
with business necessity; or
(2) the complainant makes the demonstration in
accordance with federal law as that law existed June 4, 1989, with
respect to the concept of alternative employment practices, and the
respondent refuses to adopt such an alternative employment
practice.
SECTION 14. Section 21.124, Labor Code, is amended to read
as follows:
Sec. 21.124. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST
SCORES. It is an unlawful employment practice for a respondent, in
connection with the selection or referral of applicants for
employment or promotion, to adjust the scores of, use different
cutoff scores for, or otherwise alter the results of
employment-related tests on the basis of race, color, sex, national
origin, religion, age, [or] disability, sexual orientation, or
gender identity or expression.
SECTION 15. The heading to Section 21.125, Labor Code, is
amended to read as follows:
Sec. 21.125. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE
CONSIDERATION OF RACE, COLOR, SEX, NATIONAL ORIGIN, RELIGION, AGE,
[OR] DISABILITY, SEXUAL ORIENTATION, OR GENDER IDENTITY OR
EXPRESSION IN EMPLOYMENT PRACTICES.
SECTION 16. Section 21.125(a), Labor Code, is amended to
read as follows:
(a) Except as otherwise provided by this chapter, an
unlawful employment practice is established when the complainant
demonstrates that race, color, sex, national origin, religion, age,
[or] disability, sexual orientation, or gender identity or
expression was a motivating factor for an employment practice, even
if other factors also motivated the practice, unless race, color,
sex, national origin, religion, age, [or] disability, sexual
orientation, or gender identity or expression is combined with
objective job-related factors to attain diversity in the employer's
work force.
SECTION 17. Section 21.126, Labor Code, is amended to read
as follows:
Sec. 21.126. COVERAGE OF PREVIOUSLY EXEMPT EMPLOYEES OF THE
STATE OR POLITICAL SUBDIVISION OF THE STATE. It is an unlawful
employment practice for a person elected to public office in this
state or a political subdivision of this state to discriminate
because of race, color, sex, national origin, religion, age, [or]
disability, sexual orientation, or gender identity or expression
against an individual who is an employee or applicant for
employment to:
(1) serve on the elected official's personal staff;
(2) serve the elected official on a policy-making
level; or
(3) serve the elected official as an immediate advisor
with respect to the exercise of the constitutional or legal powers
of the office.
SECTION 18. Section 21.152(a), Labor Code, is amended to
read as follows:
(a) A political subdivision or two or more political
subdivisions acting jointly may create a local commission to:
(1) promote the purposes of this chapter; and
(2) secure for all individuals in the jurisdiction of
each political subdivision freedom from discrimination because of
race, color, disability, religion, sex, national origin, [or] age,
sexual orientation, or gender identity or expression.
SECTION 19. Section 21.155(a), Labor Code, is amended to
read as follows:
(a) The commission [Commission on Human Rights] shall refer
a complaint concerning discrimination in employment because of
race, color, disability, religion, sex, national origin, [or] age,
sexual orientation, or gender identity or expression that is filed
with that commission to a local commission with the necessary
investigatory and conciliatory powers if:
(1) the complaint has been referred to the commission
[Commission on Human Rights] by the federal government; or
(2) jurisdiction over the subject matter of the
complaint has been deferred to the commission [Commission on Human
Rights] by the federal government.
SECTION 20. Section 301.003, Property Code, is amended by
amending Subdivision (6) and adding Subdivisions (9-a) and (10-a)
to read as follows:
(6) "Disability" means a mental or physical impairment
that substantially limits at least one major life activity, a
record of the impairment, or being regarded as having the
impairment. The term does not include current illegal use of or
addiction to any drug or illegal or federally controlled substance
[and does not apply to an individual because of an individual's
sexual orientation or because that individual is a transvestite].
(9-a) "Gender identity or expression" means having or
being perceived as having a gender-related identity, appearance,
expression, or behavior, regardless of whether that identity,
appearance, expression, or behavior is different from that commonly
associated with the individual's actual or perceived sex assigned
or designated at birth.
(10-a) "Sexual orientation" means the actual or
perceived status of an individual with respect to the individual's
sexuality.
SECTION 21. Sections 301.021(a) and (b), Property Code, are
amended to read as follows:
(a) A person may not refuse to sell or rent, after the making
of a bona fide offer, refuse to negotiate for the sale or rental of,
or in any other manner make unavailable or deny a dwelling to
another because of race, color, religion, sex, familial status,
[or] national origin, sexual orientation, or gender identity or
expression.
(b) A person may not discriminate against another in the
terms, conditions, or privileges of sale or rental of a dwelling or
in providing services or facilities in connection with a sale or
rental of a dwelling because of race, color, religion, sex,
familial status, [or] national origin, sexual orientation, or
gender identity or expression.
SECTION 22. Section 301.022, Property Code, is amended to
read as follows:
Sec. 301.022. PUBLICATION. A person may not make, print, or
publish or effect the making, printing, or publishing of a notice,
statement, or advertisement that is about the sale or rental of a
dwelling and that indicates any preference, limitation, or
discrimination or the intention to make a preference, limitation,
or discrimination because of race, color, religion, sex,
disability, familial status, [or] national origin, sexual
orientation, or gender identity or expression.
SECTION 23. Section 301.023, Property Code, is amended to
read as follows:
Sec. 301.023. INSPECTION. A person may not represent to
another because of race, color, religion, sex, disability, familial
status, [or] national origin, sexual orientation, or gender
identity or expression that a dwelling is not available for
inspection for sale or rental when the dwelling is available for
inspection.
SECTION 24. Section 301.024, Property Code, is amended to
read as follows:
Sec. 301.024. ENTRY INTO NEIGHBORHOOD. A person may not,
for profit, induce or attempt to induce another to sell or rent a
dwelling by representations regarding the entry or prospective
entry into a neighborhood of a person of a particular race, color,
religion, sex, disability, familial status, [or] national origin,
sexual orientation, or gender identity or expression.
SECTION 25. Section 301.026(a), Property Code, is amended
to read as follows:
(a) A person whose business includes engaging in
residential real estate related transactions may not discriminate
against another in making a real estate related transaction
available or in the terms or conditions of a real estate related
transaction because of race, color, religion, sex, disability,
familial status, [or] national origin, sexual orientation, or
gender identity or expression.
SECTION 26. Section 301.027, Property Code, is amended to
read as follows:
Sec. 301.027. BROKERAGE SERVICES. A person may not deny
another access to, or membership or participation in, a
multiple-listing service, real estate brokers' organization, or
other service, organization, or facility relating to the business
of selling or renting dwellings, or discriminate against a person
in the terms or conditions of access, membership, or participation
in such an organization, service, or facility because of race,
color, religion, sex, disability, familial status, [or] national
origin, sexual orientation, or gender identity or expression.
SECTION 27. Sections 301.042(a) and (c), Property Code, are
amended to read as follows:
(a) This chapter does not prohibit a religious
organization, association, or society or a nonprofit institution or
organization operated, supervised, or controlled by or in
conjunction with a religious organization, association, or society
from:
(1) limiting the sale, rental, or occupancy of
dwellings that it owns or operates for other than a commercial
purpose to persons of the same religion; or
(2) giving preference to persons of the same religion,
unless membership in the religion is restricted because of race,
color, [or] national origin, sexual orientation, or gender identity
or expression.
(c) This chapter does not prohibit a person engaged in the
business of furnishing appraisals of real property from considering
in those appraisals factors other than race, color, religion, sex,
disability, familial status, [or] national origin, sexual
orientation, or gender identity or expression.
SECTION 28. Section 301.068, Property Code, is amended to
read as follows:
Sec. 301.068. REFERRAL TO MUNICIPALITY. (a) Subject to
Subsection (b), the [The] commission may defer proceedings under
this chapter and refer a complaint to a municipality that has been
certified by the federal Department of Housing and Urban
Development as a substantially equivalent fair housing agency.
(b) The commission may not defer proceedings and refer a
complaint under Subsection (a) to a municipality in which the
alleged discrimination occurred if:
(1) the complaint alleges discrimination based on
sexual orientation or gender identity or expression; and
(2) the municipality does not have laws prohibiting
the alleged discrimination.
SECTION 29. Section 301.171(a), Property Code, is amended
to read as follows:
(a) A person commits an offense if the person, without
regard to whether the person is acting under color of law, by force
or threat of force intentionally intimidates or interferes with a
person:
(1) because of the person's race, color, religion,
sex, disability, familial status, [or] national origin, sexual
orientation, or gender identity or expression and because the
person is or has been selling, purchasing, renting, financing,
occupying, or contracting or negotiating for the sale, purchase,
rental, financing, or occupation of any dwelling or applying for or
participating in a service, organization, or facility relating to
the business of selling or renting dwellings; or
(2) because the person is or has been or to intimidate
the person from:
(A) participating, without discrimination
because of race, color, religion, sex, disability, familial status,
[or] national origin, sexual orientation, or gender identity or
expression, in an activity, service, organization, or facility
described by Subdivision (1); [or]
(B) affording another person opportunity or
protection to so participate; or
(C) lawfully aiding or encouraging other persons
to participate, without discrimination because of race, color,
religion, sex, disability, familial status, [or] national origin,
sexual orientation, or gender identity or expression, in an
activity, service, organization, or facility described by
Subdivision (1).
SECTION 30. (a) Section 2155.0065, Government Code, as
added by this Act, applies only to a contract for which a state
agency first advertises or otherwise solicits bids, proposals,
offers, qualifications, or other similar expressions of interest on
or after the effective date of this Act.
(b) The changes in law made by this Act to the Labor Code
apply to conduct occurring on or after the effective date of this
Act. Conduct occurring before that date is governed by the law in
effect on the date the conduct occurred, and the former law is
continued in effect for that purpose.
(c) The changes in law made by this Act to the Property Code
apply only to a complaint filed with the Texas Workforce Commission
on or after the effective date of this Act. A complaint filed
before that date is governed by the law as it existed immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
SECTION 31. This Act takes effect September 1, 2019.