Gerdes Discrimination Bill Also Bans Promoting Implicit Bias

The text as introduced · 1,735 words

By: Gerdes
H.B. No. 5135

A BILL TO BE ENTITLED

AN ACT

relating to prohibition of discrimination by governmental entities

based on immutable characteristics.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act may be cited as the Texas

Antidiscrimination Act.

SECTION 2. Subtitle A, Title 6, Government Code, is amended

by adding Chapter 621 to read as follows:

CHAPTER 621. PROHIBITION OF DISCRIMINATION BY GOVERNMENTAL

ENTITIES BASED ON IMMUTABLE CHARACTERISTICS

Sec. 621.001. LEGISLATIVE FINDINGS; PURPOSE. (a) The

legislature finds that:

(1) Section 3, Article I, Texas Constitution (Equal

Protection Clause), provides that "[a]ll freemen, when they form a

social compact, have equal rights, and no man, or set of men, is

entitled to exclusive separate public emoluments, or privileges,

but in consideration of public service;"

(2) Section 3a, Article I, Texas Constitution (Equal

Rights Amendment), provides that "[e]quality under the law shall

not be denied or abridged because of sex, race, color, creed, or

national origin;"

(3) The Texas Constitution's Equal Rights Amendment

was designed expressly to provide protection which supplements the

federal guarantees of equal treatment;

(4) The Texas Constitution's Equal Rights Amendment is

more extensive and provides more specific protection than both the

United States and Texas due-process and equal-protection

guarantees; and

(5) Discrimination by governmental entities is

antithetical to the Texas Constitution's Equal Protection Clause

and Equal Rights Amendment and lack a rational relationship to a

legitimate governmental purpose such that the initiatives violate

Texas's Equal Protection Clause and Equal Rights Amendment; and

(6) Texans deserve a government committed to serving

every person with equal dignity and respect and to expending

precious taxpayer resources only on making Texas great for all

Texans.

(b) The purpose of this act is to prevent the unlawful

discrimination that is antithetical to the Texas Constitution's

Equal Protection Clause and Equal Rights Amendment. This act does

not create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against the

governmental entities listed in Section 621.002(2), except as

provided by Section 621.004.

Sec. 621.002. DEFINITIONS. In this chapter:

(a) "Discriminatory office" means an office, division, or

other unit of a governmental entity established for the purpose of:

(1) influencing hiring or employment practices or

workforce composition at the entity with respect to race, sex,

color, or ethnicity, other than through the use of color-blind or

sex-neutral hiring processes in accordance with any applicable

state and federal antidiscrimination laws;

(2) promoting differential treatment or providing

special benefits to individuals on the basis of race, sex, color, or

ethnicity;

(3) promoting policies or procedures designed or

implemented in reference to race, sex, color, or ethnicity, other

than policies or procedures implemented for the sole purpose of

ensuring compliance with applicable federal law;

(4) conducting trainings, programs, or activities

designed or implemented in reference to race, sex, color, or

ethnicity, other than trainings, programs, or activities conducted

for the sole purpose of ensuring compliance with any applicable

court order or federal law; or

(5) promoting, as an official position of the entity,

a particular opinion referencing unconscious or implicit bias,

cultural appropriation, allyship, transgender ideology,

microaggressions, group marginalization, anti-racism, systemic

oppression, social justice, intersectionality, neo-pronouns,

heteronormativity, disparate impact, gender theory, racial or

sexual privilege, or any related formulation of these concepts.

(b) "Diversity, equity, and inclusion" means:

(1) influencing hiring or employment practices with

respect to race, sex, color, or ethnicity, other than through the

use of color-blind and sex-neutral hiring processes in accordance

with any applicable state and federal antidiscrimination laws;

(2) promoting differential treatment of or providing

special benefits to individuals on the basis of race, sex, color, or

ethnicity;

(3) promoting policies or procedures designed or

implemented in reference to race, sex, color, or ethnicity, other

than policies or procedures approved in writing by a respective

agency general counsel for the sole purpose of ensuring compliance

with any applicable court order or state or federal law; and

(4) conducting trainings, programs, or activities

designed or implemented in reference to race, sex, color, or

ethnicity, other than trainings, programs, or activities developed

by an attorney and approved by a respective agency general counsel

for the sole purpose of ensuring compliance with any applicable

court order or state or federal law.

(c) "Governmental entity" means:

(1) a state agency, which includes;

(A) a department, commission, board, office, or

other agency that is in the executive branch of state government and

that was created by the constitution or a statute, other than an

institution of higher education as defined by Section 61.003,

Education Code;

(B) the legislature or a legislative state

agency; or

(C) the supreme court, the court of criminal

appeals, a court of appeals, a district court, or the Texas Judicial

Council or another agency in the judicial branch of state

government; and

(2) a political subdivision, which includes:

(A) a county, municipality, special purpose

district, including a school district, or any other political

subdivision of this state;

(B) an open-enrollment charter school

established under Subchapter D, Chapter 12, Education Code; or

(C) any other political subdivision of this state

described by Section 2254.021(4), Government Code.

Sec. 621.003. DISCRIMINATION BY GOVERNMENTAL ENTITIES

PROHIBITED. (a) Notwithstanding any other law, and other than

through color-blind, race-neutral, or sex-neutral processes, a

governmental entity shall not:

(1) establish or maintain a discriminatory office;

(2) hire or assign an employee of the entity or

contract with a third party to perform the duties of a

discriminatory office;

(3) compel, require, induce, or solicit any person to

provide a discriminatory statement or give preferential

consideration to any person based on the provision of a

discriminatory statement;

(4) give preference on the basis of race, sex, color,

or ethnicity to an applicant for employment, an employee, or a

participant in any function of the entity;

(5) promote or adopt any theory justifying

differential treatment based on race, sex, color, or ethnicity;

(6) Consider race, sex, color, or ethnicity when

making employment, contracting, funding, or policy determinations;

(7) require an employee to participate in a diversity,

equity, or inclusion program or a discriminatory training, which

includes a training, program, or activity designed or implemented

in reference to race, sex, color, or ethnicity;

(8) spend monies on a diversity, equity, and inclusion

program, including to acquire services, supplies, information

technology, or goods for a diversity, equity and inclusion program;

(9) award a contract or provide preferential or

discriminatory treatment to a person submitting a bid for a

contract on the basis of race, sex, color, or ethnicity, provided

that this prohibition shall only apply to contracts executed or

renewed on or after September 1, 2025; or

(10) enter into or renew a contract with a contractor

or vendor that engages in conduct that would be prohibited by this

chapter if done by a governmental entity, provided that this

prohibition shall only apply to contracts executed or renewed on or

after September 1, 2025.

(b) Subsection (a) may not be construed to apply to offering

training on sexual harassment or a training, program, or activity

developed for the purpose of ensuring compliance with any

applicable federal law.

(c) A governmental entity shall adopt policies and

procedures for appropriately disciplining, including by

termination, an employee or contractor of the entity who engages in

conduct in violation of Subdivision (a);

(d) If a state agency or political subdivision determines

that a contractor or vendor has violated this chapter, it shall

cancel the contract without penalty. The state agency or political

subdivision shall be prohibited from entering into future contracts

with the violating contractor or vendor until the entity provides

sufficient evidence that the violation has been cured.

Sec. 621.004. ENFORCEMENT AGAINST A POLITICAL SUBDIVISION.

(a) A person who has a reasonable belief that a political

subdivision is violating this chapter may file a complaint with the

attorney general.

(b) If the attorney general determines that a political

subdivision named in a complaint received under Subsection (a) is

violating this chapter, the attorney general shall provide written

notice of the violation to the political subdivision, and:

(1) require the political subdivision to submit a

corrective action plan within fourteen days; and

(2) designate the political subdivision as

noncompliant.

(c) Notwithstanding any other law, the comptroller may not

distribute to a political subdivision designated as non-compliant

any sales and use tax revenue collected under Chapter 321, Tax Code,

or mixed beverage tax revenue collected under Chapter 183, Tax

Code, that is on deposit in the suspense account of the political

subdivision. The funds shall remain in trust and may not be used

for any purpose until compliance is restored. Upon compliance with

this section the comptroller shall resume distribution of withheld

funds to the political subdivision.

(d) If a political subdivision does not receive funds under

Chapter 321 or Chapter 183, Tax Code, or if a political subdivision

fails to timely submit a corrective action plan, the Attorney

General may seek declaratory, injunctive, or mandamus relief to

compel compliance with this chapter.

(e) An action under Subsection (d) must be filed in the

county in which the political subdivision is located, and any

appeal shall be heard by the Fifteenth Court of Appeals.

Sec. 621.005. ENFORCEMENT AGAINST A STATE AGENCY. (a) A

state agency that is required to appoint an internal auditor to

submit the annual report required by Section 2102.009, Government

Code, shall include in its report a description of the state

agency's compliance or failure to comply with this chapter.

(b) A state agency that is not required to appoint an

auditor under Chapter 2102, Government Code, shall appoint an

auditor for the specific purpose of reporting annually on the state

agency's compliance or failure to comply with this chapter.

(c) If a state agency is in compliance with this chapter,

the internal auditor shall include in its report an affirmative

acknowledgment of compliance with Chapter 621, Government Code.

(d) If a state agency is not in compliance with this

chapter, the internal auditor shall include in its report a summary

of instances of non-compliance and actions taken or planned to be

taken to remedy any non-compliance.

SECTION 3. This Act takes effect immediately if it receives

a vote of two-thirds of all the members elected to each house, as

provided by Section 39, Article III, Texas Constitution. If this

Act does not receive the vote necessary for immediate effect, this

Act takes effect September 1, 2025.