85R10039 JSC-D     By: Garcia S.B. No. 1160       A BILL TO BE ENTITLED   AN ACT   relating to a prohibition on sex discrimination in 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, 2023.          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, 2018.          SECTION 4.  This Act takes effect January 1, 2018.