87R1085 JSC-D
By: Sherman, Sr. H.B. No. 360
A BILL TO BE ENTITLED
AN ACT
relating to a prohibition on certain 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 and is enforceable under this
chapter.
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:
(A) 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; and
(B) is not currently employed by that employer in
any capacity.
(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.
(5) "Wage history information" means information on an
applicant or employee's previous wages.
Sec. 24.002. EMPLOYER INQUIRY INTO AND CONSIDERATION OF
WAGE HISTORY INFORMATION. (a) An employer commits an unlawful
employment practice if the employer:
(1) includes a question regarding an applicant's wage
history information on an employment application form;
(2) inquires into an applicant's wage history
information;
(3) considers an applicant's wage history information
in determining:
(A) whether to hire the applicant; or
(B) the wages to be paid to the applicant; or
(4) obtains an applicant's wage history information
from a previous employer of the applicant or other source, unless
the wages in that previous employment position are subject to
disclosure under Chapter 552, Government Code.
(b) Notwithstanding Subsection (a)(3)(B), if an applicant
voluntarily discloses the applicant's wage history information to
an employer, the employer may consider that information in
determining the applicant's wages.
(c) This section does not prohibit an employer from asking
an applicant regarding the applicant's expectation of wages for the
prospective employment position.
Sec. 24.003. EMPLOYER PROVISION OF PAY SCALE. On
reasonable request following an initial interview, an employer
shall provide to an applicant a pay scale for the employment
position for which the applicant is applying.
Sec. 24.004. 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 a wage differential effectively fulfills the
business purpose the factor is intended to serve.
(b) An employer commits an unlawful employment practice 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) 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.
(d) 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.
(e) An employer may not justify a wage differential based on
wage history.
(f) An unlawful employment practice occurs each time:
(1) a discriminatory compensation decision or other
practice is adopted;
(2) an individual becomes subject to a discriminatory
compensation decision or other practice; or
(3) an individual is adversely affected by application
of a discriminatory compensation decision or other practice,
including each time wages affected wholly or partly by the decision
or other practice are paid.
Sec. 24.005. OTHER PROHIBITED ACTS. (a) An employer
commits an unlawful employment practice 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, applicant, or other person because the person:
(A) inquired about, disclosed, compared, or
otherwise discussed an employee's wages or an applicant's
prospective 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 or an applicant to disclose the applicant's
prospective 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. 24.006. EMPLOYER RECORDS. Each employer shall compile
and maintain for a period of at least three years records that
contain:
(1) the wages paid to each employee;
(2) the method, system, computations, and other
factors used to establish, adjust, and determine the wage rates
paid to the employee; and
(3) any other conditions of employment.
Sec. 24.007. COMPLAINT; ENFORCEMENT. (a) A person
aggrieved by an unlawful employment practice under this chapter may
file a complaint with the commission or file a civil action in the
manner prescribed by Chapter 21 for violations of that chapter.
(b) Liability may accrue, and an aggrieved person may obtain
relief as provided by Chapter 21, including recovery of back pay for
the period allowed under Section 21.258, if the unlawful employment
practices that have occurred during the period for filing a
complaint are similar or related to unlawful employment practices
with regard to discrimination in payment of compensation that
occurred outside the period for filing a complaint.
(c) The commission shall enforce this chapter in accordance
with Chapter 21.
SECTION 3. The changes in law made by this Act apply only to
an unlawful employment practice that occurs on or after January 1,
2022.
SECTION 4. This Act takes effect January 1, 2022.