84R7761 LED-F
 
  By: Rodríguez, et al. S.B. No. 856
 
 
 
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 an 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 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.
               (4)  "Public accommodation" means a business or other
  entity that offers to the general 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, 2015.
  SUBCHAPTER B.  DISCRIMINATION IN PUBLIC ACCOMMODATIONS PROHIBITED
         Sec. 100B.051.  PUBLIC ACCOMMODATIONS.  (a)  Except as
  provided by Subsection (b), a person commits 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 commit 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.
               (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
  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.
               (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.
               (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, sex, disability, familial status, [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
  civil rights division 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, 2015.