[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1284 Reported in Senate (RS)]
Calendar No. 763
107th CONGRESS
2d Session
S. 1284
[Report No. 107-341]
To prohibit employment discrimination on the basis of sexual
orientation.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 31, 2001
Mr. Kennedy (for himself, Mr. Specter, Mr. Jeffords, Mr. Lieberman,
Mr. Daschle, Mr. Akaka, Mr. Baucus, Mr. Bayh, Mr. Biden, Mr. Bingaman,
Mrs. Boxer, Ms. Cantwell, Mr. Carper, Mr. Chafee, Mr. Cleland, Mrs.
Clinton, Mr. Corzine, Mr. Dayton, Mr. Dodd, Mr. Durbin, Mr. Edwards,
Mr. Feingold, Mrs. Feinstein, Mr. Harkin, Mr. Inouye, Mr. Kerry, Mr.
Kohl, Ms. Landrieu, Mr. Leahy, Mr. Levin, Ms. Mikulski, Mrs. Murray,
Mr. Nelson of Florida, Mr. Reed, Mr. Reid, Mr. Sarbanes, Mr. Schumer,
Mr. Smith of Oregon, Ms. Stabenow, Mr. Torricelli, Mr. Wellstone, Mr.
Wyden, Mrs. Carnahan, Mr. Breaux, and Ms. Collins) introduced the
following bill; which was read twice and referred to the Committee on
Health, Education, Labor, and Pensions
November 15, 2002
Reported by Mr. Kennedy, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To prohibit employment discrimination on the basis of sexual
orientation.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Employment Non-
Discrimination Act of 2001''.</DELETED>
<DELETED>SEC. 2. PURPOSES.</DELETED>
<DELETED> The purposes of this Act are--</DELETED>
<DELETED> (1) to provide a comprehensive Federal prohibition
of employment discrimination on the basis of sexual
orientation;</DELETED>
<DELETED> (2) to provide meaningful and effective remedies
for employment discrimination on the basis of sexual
orientation; and</DELETED>
<DELETED> (3) to invoke congressional powers, including the
powers to enforce the 14th amendment to the Constitution, and
to regulate interstate commerce and provide for the general
welfare pursuant to section 8 of article I of the Constitution,
in order to prohibit employment discrimination on the basis of
sexual orientation.</DELETED>
<DELETED>SEC. 3. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (1) Commission.--The term ``Commission'' means the
Equal Employment Opportunity Commission.</DELETED>
<DELETED> (2) Covered entity.--The term ``covered entity''
means an employer, employment agency, labor organization, or
joint labor-management committee.</DELETED>
<DELETED> (3) Employee.--</DELETED>
<DELETED> (A) In general.--The term ``employee''
means--</DELETED>
<DELETED> (i) an employee (as defined in
section 701(f) of the Civil Rights Act of 1964
(42 U.S.C. 2000e(f));</DELETED>
<DELETED> (ii) a Presidential appointee or
State employee to which section 302(a)(1) of
the Government Employee Rights Act of 1991 (2
U.S.C. 1202(a)(1)) applies;</DELETED>
<DELETED> (iii) a covered employee, as
defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301) or
section 411(c) of title 3, United States Code;
or</DELETED>
<DELETED> (iv) an employee or applicant to
which section 717(a) of the Civil Rights Act of
1964 (42 U.S.C. 2000e-16(a)) applies.</DELETED>
<DELETED> (B) Exception.--The term does not include
a volunteer who receives no compensation.</DELETED>
<DELETED> (4) Employer.--The term ``employer'' means--
</DELETED>
<DELETED> (A) a person engaged in an industry
affecting commerce (as defined in section 701(h) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who has
15 or more employees (as defined in subparagraphs
(A)(i) and (B) of paragraph (3)) for each working day
in each of 20 or more calendar weeks in the current or
preceding calendar year, and any agent of such a
person, but does not include a bona fide private
membership club (other than a labor organization) that
is exempt from taxation under section 501(c) of the
Internal Revenue Code of 1986;</DELETED>
<DELETED> (B) an employing authority to which
section 302(a)(1) of the Government Employee Rights Act
of 1991 applies;</DELETED>
<DELETED> (C) an employing office, as defined in
section 101 of the Congressional Accountability Act of
1995 or section 411(c) of title 3, United States Code;
or</DELETED>
<DELETED> (D) an entity to which section 717(a) of
the Civil Rights Act of 1964 applies.</DELETED>
<DELETED> (5) Employment agency.--The term ``employment
agency'' has the meaning given the term in section 701(c) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e(c)).</DELETED>
<DELETED> (6) Labor organization.--The term ``labor
organization'' has the meaning given the term in section 701(d)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e(d)).</DELETED>
<DELETED> (7) Person.--The term ``person'' has the meaning
given the term in section 701(a) of the Civil Rights Act of
1964 (42 U.S.C. 2000e(a)).</DELETED>
<DELETED> (8) Religious organization.--The term ``religious
organization'' means--</DELETED>
<DELETED> (A) a religious corporation, association,
or society; or</DELETED>
<DELETED> (B) a school, college, university, or
other educational institution or institution of
learning, if--</DELETED>
<DELETED> (i) the institution is in whole or
substantial part controlled, managed, owned, or
supported by a religion, religious corporation,
association, or society; or</DELETED>
<DELETED> (ii) the curriculum of the
institution is directed toward the propagation
of a religion.</DELETED>
<DELETED> (9) Sexual orientation.--The term ``sexual
orientation'' means homosexuality, bisexuality, or
heterosexuality, whether the orientation is real or
perceived.</DELETED>
<DELETED> (10) State.--The term ``State'' has the meaning
given the term in section 701(i) of the Civil Rights Act of
1964 (42 U.S.C. 2000e(i)).</DELETED>
<DELETED>SEC. 4. DISCRIMINATION PROHIBITED.</DELETED>
<DELETED> (a) Employer Practices.--It shall be an unlawful
employment practice for an employer--</DELETED>
<DELETED> (1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to the compensation, terms, conditions, or
privileges of employment of the individual, because of such
individual's sexual orientation; or</DELETED>
<DELETED> (2) to limit, segregate, or classify the employees
or applicants for employment of the employer in any way that
would deprive or tend to deprive any individual of employment
or otherwise adversely affect the status of the individual as
an employee, because of such individual's sexual
orientation.</DELETED>
<DELETED> (b) Employment Agency Practices.--It shall be an unlawful
employment practice for an employment agency to fail or refuse to refer
for employment, or otherwise to discriminate against, any individual
because of the sexual orientation of the individual or to classify or
refer for employment any individual on the basis of the sexual
orientation of the individual.</DELETED>
<DELETED> (c) Labor Organization Practices.--It shall be an unlawful
employment practice for a labor organization--</DELETED>
<DELETED> (1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of
the sexual orientation of the individual;</DELETED>
<DELETED> (2) to limit, segregate, or classify its
membership or applicants for membership, or to classify or fail
or refuse to refer for employment any individual, in any way
that would deprive or tend to deprive any individual of
employment, or would limit such employment or otherwise
adversely affect the status of the individual as an employee or
as an applicant for employment, because of such individual's
sexual orientation; or</DELETED>
<DELETED> (3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.</DELETED>
<DELETED> (d) Training Programs.--It shall be an unlawful employment
practice for any employer, labor organization, or joint labor-
management committee controlling apprenticeship or other training or
retraining, including on-the-job training programs, to discriminate
against any individual because of the sexual orientation of the
individual in admission to, or employment in, any program established
to provide apprenticeship or other training.</DELETED>
<DELETED> (e) Association.--An unlawful employment practice
described in any of subsections (a) through (d) shall be considered to
include an action described in that subsection, taken against an
individual based on the sexual orientation of a person with whom the
individual associates or has associated.</DELETED>
<DELETED> (f) Disparate Impact.--Notwithstanding any other provision
of this Act, the fact that an employment practice has a disparate
impact, as the term ``disparate impact'' is used in section 703(k) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(k)), on the basis of
sexual orientation does not establish a prima facie violation of this
Act.</DELETED>
<DELETED>SEC. 5. RETALIATION AND COERCION PROHIBITED.</DELETED>
<DELETED> (a) Retaliation.--A covered entity shall not discriminate
against an individual because such individual opposed any act or
practice prohibited by this Act or because such individual made a
charge, assisted, testified, or participated in any manner in an
investigation, proceeding, or hearing under this Act.</DELETED>
<DELETED> (b) Coercion.--A person shall not coerce, intimidate,
threaten, or interfere with any individual in the exercise or enjoyment
of, or on account of such individual's having exercised, enjoyed, or
assisted in or encouraged the exercise or enjoyment of, any right
granted or protected by this Act.</DELETED>
<DELETED>SEC. 6. BENEFITS.</DELETED>
<DELETED> This Act does not apply to the provision of employee
benefits to an individual for the benefit of the domestic partner of
such individual.</DELETED>
<DELETED>SEC. 7. COLLECTION OF STATISTICS PROHIBITED.</DELETED>
<DELETED> The Commission shall not collect statistics on sexual
orientation from covered entities, or compel the collection of such
statistics by covered entities.</DELETED>
<DELETED>SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT
PROHIBITED.</DELETED>
<DELETED> (a) Quotas.--A covered entity shall not adopt or implement
a quota on the basis of sexual orientation.</DELETED>
<DELETED> (b) Preferential Treatment.--A covered entity shall not
give preferential treatment to an individual on the basis of sexual
orientation.</DELETED>
<DELETED> (c) Orders and Consent Decrees.--Notwithstanding any other
provision of this Act, an order or consent decree entered for a
violation of this Act may not include a quota, or preferential
treatment to an individual, based on sexual orientation.</DELETED>
<DELETED>SEC. 9. RELIGIOUS EXEMPTION.</DELETED>
<DELETED> This Act shall not apply to a religious
organization.</DELETED>
<DELETED>SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES;
VETERANS' PREFERENCES.</DELETED>
<DELETED> (a) Armed Forces.--</DELETED>
<DELETED> (1) Employment.--In this Act, the term
``employment'' does not apply to the relationship between the
United States and members of the Armed Forces.</DELETED>
<DELETED> (2) Armed forces.--In paragraph (1), the term
``Armed Forces'' means the Army, Navy, Air Force, Marine Corps,
and Coast Guard.</DELETED>
<DELETED> (b) Veterans' Preferences.--This Act does not repeal or
modify any Federal, State, territorial, or local law creating a special
right or preference concerning employment for a veteran.</DELETED>
<DELETED>SEC. 11. CONSTRUCTION.</DELETED>
<DELETED> (a) Nonprivate Conduct.--Nothing in this Act shall be
construed to prohibit a covered entity from enforcing rules regarding
nonprivate sexual conduct, if the rules of conduct are designed for,
and uniformly applied to, all individuals regardless of sexual
orientation.</DELETED>
<DELETED> (b) Association.--Nothing in this Act shall be construed
to prohibit any association, or infringe upon any right of association,
guaranteed by the first amendment to the Constitution, of any
nonprofit, voluntary membership organization.</DELETED>
<DELETED>SEC. 12. ENFORCEMENT.</DELETED>
<DELETED> (a) Enforcement Powers.--With respect to the
administration and enforcement of this Act in the case of a claim
alleged by an individual for a violation of this Act--</DELETED>
<DELETED> (1) the Commission shall have the same powers as
the Commission has to administer and enforce--</DELETED>
<DELETED> (A) title VII of the Civil Rights Act of
1964 (42 U.S.C. 2000e et seq.); or</DELETED>
<DELETED> (B) sections 302 and 304 of the Government
Employee Rights Act of 1991 (2 U.S.C. 1202 and
1220);</DELETED>
<DELETED>in the case of a claim alleged by such individual for
a violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)),
respectively;</DELETED>
<DELETED> (2) the Librarian of Congress shall have the same
powers as the Librarian of Congress has to administer and
enforce title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.) in the case of a claim alleged by such
individual for a violation of such title;</DELETED>
<DELETED> (3) the Board (as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301)) shall
have the same powers as the Board has to administer and enforce
the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et
seq.) in the case of a claim alleged by such individual for a
violation of section 201(a)(1) of such Act (2 U.S.C.
1311(a)(1));</DELETED>
<DELETED> (4) the Attorney General shall have the same
powers as the Attorney General has to administer and enforce--
</DELETED>
<DELETED> (A) title VII of the Civil Rights Act of
1964 (42 U.S.C. 2000e et seq.); or</DELETED>
<DELETED> (B) sections 302 and 304 of the Government
Employee Rights Act of 1991 (2 U.S.C. 1202 and
1220);</DELETED>
<DELETED>in the case of a claim alleged by such individual for
a violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)),
respectively;</DELETED>
<DELETED> (5) the President, the Commission, and the Merit
Systems Protection Board shall have the same powers as the
President, the Commission, and the Board, respectively, have to
administer and enforce chapter 5 of title 3, United States
Code, in the case of a claim alleged by such individual for a
violation of section 411 of such title;</DELETED>
<DELETED> (6) a court of the United States shall have the
same jurisdiction and powers as the court has to enforce--
</DELETED>
<DELETED> (A) title VII of the Civil Rights Act of
1964 (42 U.S.C. 2000e et seq.) in the case of a claim
alleged by such individual for a violation of such
title;</DELETED>
<DELETED> (B) sections 302 and 304 of the Government
Employee Rights Act of 1991 (2 U.S.C. 1202 and 1220) in
the case of a claim alleged by such individual for a
violation of section 302(a)(1) of such Act (2 U.S.C.
1202(a)(1));</DELETED>
<DELETED> (C) the Congressional Accountability Act
of 1995 (2 U.S.C. 1301 et seq.) in the case of a claim
alleged by such individual for a violation of section
201(a)(1) of such Act (2 U.S.C. 1311(a)(1));
and</DELETED>
<DELETED> (D) chapter 5 of title 3, United States
Code, in the case of a claim alleged by such individual
for a violation of section 411 of such title.</DELETED>
<DELETED> (b) Procedures and Remedies.--The procedures and remedies
applicable to a claim alleged by an individual for a violation of this
Act are--</DELETED>
<DELETED> (1) the procedures and remedies applicable for a
violation of title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) in the case of a claim alleged by such
individual for a violation of such title;</DELETED>
<DELETED> (2) the procedures and remedies applicable for a
violation of section 302(a)(1) of the Government Employee
Rights Act of 1991 (2 U.S.C. 1202(a)(1)) in the case of a claim
alleged by such individual for a violation of such
section;</DELETED>
<DELETED> (3) the procedures and remedies applicable for a
violation of section 201(a)(1) of the Congressional
Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) in the case of
a claim alleged by such individual for a violation of such
section; and</DELETED>
<DELETED> (4) the procedures and remedies applicable for a
violation of section 411 of title 3, United States Code, in the
case of a claim alleged by such individual for a violation of
such section.</DELETED>
<DELETED> (c) Other Applicable Provisions.--With respect to a claim
alleged by a covered employee (as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301)) for a
violation of this Act, title III of the Congressional Accountability
Act of 1995 (2 U.S.C. 1381 et seq.) shall apply in the same manner as
such title applies with respect to a claim alleged by such a covered
employee for a violation of section 201(a)(1) of such Act (2 U.S.C.
1311(a)(1)).</DELETED>
<DELETED> (d) Prohibition of Affirmative Action.--Notwithstanding
any other provision of this section, affirmative action for a violation
of this Act may not be imposed. Nothing in this section shall prevent
the granting of relief to any individual who suffers a violation of
such individual's rights provided in this Act.</DELETED>
<DELETED>SEC. 13. STATE AND FEDERAL IMMUNITY.</DELETED>
<DELETED> (a) State Immunity.--A State shall not be immune under the
11th amendment to the Constitution from a suit described in subsection
(b) and brought in a Federal court of competent jurisdiction for a
violation of this Act.</DELETED>
<DELETED> (b) Remedies for State Employees.--</DELETED>
<DELETED> (1) In general.--</DELETED>
<DELETED> (A) Waiver.--A State's receipt or use of
Federal financial assistance for any program or
activity of a State shall constitute a waiver of
sovereign immunity, under the 11th amendment to the
Constitution or otherwise, to a suit brought by an
employee or applicant for employment of that program or
activity under this Act for a remedy authorized under
subsection (c).</DELETED>
<DELETED> (B) Definition.--In this paragraph, the
term ``program or activity'' has the meaning given the
term in section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a).</DELETED>
<DELETED> (2) Officials.--An official of a State may be sued
in the official capacity of the official by any employee or
applicant for employment who has complied with the applicable
procedures of section 12, for equitable relief that is
authorized under this Act. In such a suit the court may award
to the prevailing party those costs authorized by section 722
of the Revised Statutes (42 U.S.C. 1988).</DELETED>
<DELETED> (3) Effective date.--With respect to a particular
program or activity, paragraphs (1) and (2) apply to conduct
occurring on or after the day, after the date of enactment of
this Act, on which a State first receives or uses Federal
financial assistance for that program or activity.</DELETED>
<DELETED> (c) Remedies Against the United States and the States.--
Notwithstanding any other provision of this Act, in an action or
administrative proceeding against the United States or a State for a
violation of this Act, remedies (including remedies at law and in
equity, and interest) are available for the violation to the same
extent as the remedies are available for a violation of title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private
entity, except that--</DELETED>
<DELETED> (1) punitive damages are not available;
and</DELETED>
<DELETED> (2) compensatory damages are available to the
extent specified in section 1977A(b) of the Revised Statutes
(42 U.S.C. 1981a(b)).</DELETED>
<DELETED>SEC. 14. ATTORNEYS' FEES.</DELETED>
<DELETED> Notwithstanding any other provision of this Act, in an
action or administrative proceeding for a violation of this Act, an
entity described in section 12(a) (other than paragraph (4) of such
section), in the discretion of the entity, may allow the prevailing
party, other than the Commission or the United States, a reasonable
attorney's fee (including expert fees) as part of the costs. The
Commission and the United States shall be liable for the costs to the
same extent as a private person.</DELETED>
<DELETED>SEC. 15. POSTING NOTICES.</DELETED>
<DELETED> A covered entity who is required to post notices described
in section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10)
shall post notices for employees, applicants for employment, and
members, to whom the provisions specified in section 12(b) apply, that
describe the applicable provisions of this Act in the manner prescribed
by, and subject to the penalty provided under, section 711 of the Civil
Rights Act of 1964.</DELETED>
<DELETED>SEC. 16. REGULATIONS.</DELETED>
<DELETED> (a) In General.--Except as provided in subsections (b),
(c), and (d), the Commission shall have authority to issue regulations
to carry out this Act.</DELETED>
<DELETED> (b) Librarian of Congress.--The Librarian of Congress
shall have authority to issue regulations to carry out this Act with
respect to employees and applicants for employment of the Library of
Congress.</DELETED>
<DELETED> (c) Board.--The Board referred to in section 12(a)(3)
shall have authority to issue regulations to carry out this Act, in
accordance with section 304 of the Congressional Accountability Act of
1995 (2 U.S.C. 1384), with respect to covered employees, as defined in
section 101 of such Act (2 U.S.C. 1301).</DELETED>
<DELETED> (d) President.--The President shall have authority to
issue regulations to carry out this Act with respect to covered
employees, as defined in section 411(c) of title 3, United States
Code.</DELETED>
<DELETED>SEC. 17. RELATIONSHIP TO OTHER LAWS.</DELETED>
<DELETED> This Act shall not invalidate or limit the rights,
remedies, or procedures available to an individual claiming
discrimination prohibited under any other Federal law or any law of a
State or political subdivision of a State.</DELETED>
<DELETED>SEC. 18. SEVERABILITY.</DELETED>
<DELETED> If any provision of this Act, or the application of the
provision to any person or circumstance, is held to be invalid, the
remainder of this Act and the application of the provision to any other
person or circumstance shall not be affected by the
invalidity.</DELETED>
<DELETED>SEC. 19. EFFECTIVE DATE.</DELETED>
<DELETED> This Act shall take effect 60 days after the date of
enactment of this Act and shall not apply to conduct occurring before
the effective date.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Employment Non-Discrimination Act of
2002''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to provide a comprehensive Federal prohibition of
employment discrimination on the basis of sexual orientation;
(2) to provide meaningful and effective remedies for
employment discrimination on the basis of sexual orientation;
and
(3) to invoke congressional powers, including the powers to
enforce the 14th amendment to the Constitution, and to regulate
interstate commerce and provide for the general welfare
pursuant to section 8 of article I of the Constitution, in
order to prohibit employment discrimination on the basis of
sexual orientation.
SEC. 3. DEFINITIONS.
(a) In General.--In this Act:
(1) Commission.--The term ``Commission'' means the Equal
Employment Opportunity Commission.
(2) Covered entity.--The term ``covered entity'' means an
employer, employment agency, labor organization, or joint
labor-management committee.
(3) Employee.--
(A) In general.--The term ``employee'' means--
(i) an employee (as defined in section
701(f) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(f));
(ii) a Presidential appointee or State
employee to which section 302(a)(1) of the
Government Employee Rights Act of 1991 (2
U.S.C. 1202(a)(1)) applies;
(iii) a covered employee, as defined in
section 101 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1301) or section 411(c)
of title 3, United States Code; or
(iv) an employee or applicant to which
section 717(a) of the Civil Rights Act of 1964
(42 U.S.C. 2000e-16(a)) applies.
(B) Exception.--The provisions of this Act that
apply to an employee or individual shall not apply to a
volunteer who receives no compensation.
(4) Employer.--The term ``employer'' means--
(A) a person engaged in an industry affecting
commerce (as defined in section 701(h) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or
more employees (as defined in subparagraphs (A)(i) and
(B) of paragraph (3)) for each working day in each of
20 or more calendar weeks in the current or preceding
calendar year, and any agent of such a person, but does
not include a bona fide private membership club (other
than a labor organization) that is exempt from taxation
under section 501(c) of the Internal Revenue Code of
1986;
(B) an employing authority to which section
302(a)(1) of the Government Employee Rights Act of 1991
applies;
(C) an employing office, as defined in section 101
of the Congressional Accountability Act of 1995 or
section 411(c) of title 3, United States Code; or
(D) an entity to which section 717(a) of the Civil
Rights Act of 1964 applies.
(5) Employment agency.--The term ``employment agency'' has
the meaning given the term in section 701(c) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(c)).
(6) Labor organization.--The term ``labor organization''
has the meaning given the term in section 701(d) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(d)).
(7) Person.--The term ``person'' has the meaning given the
term in section 701(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(a)).
(8) Religious organization.--The term ``religious
organization'' means--
(A) a religious corporation, association, or
society; or
(B) a school, college, university, or other
educational institution or institution of learning,
if--
(i) the institution is in whole or
substantial part controlled, managed, owned, or
supported by a religion, religious corporation,
association, or society; or
(ii) the curriculum of the institution is
directed toward the propagation of a religion.
(9) Sexual orientation.--The term ``sexual orientation''
means homosexuality, bisexuality, or heterosexuality, whether
the orientation is real or perceived.
(10) State.--The term ``State'' has the meaning given the
term in section 701(i) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(i)).
(b) Application of Definitions.--For purposes of this section, a
reference in section 701 of the Civil Rights Act of 1964--
(1) to an employee or an employer shall be considered to
refer to an employee (as defined in paragraph (3)) or an
employer (as defined in paragraph (4)), respectively, except as
provided in paragraph (2); and
(2) to an employer in subsection (f) of that section shall
be considered to refer to an employer (as defined in paragraph
(4)(A)).
SEC. 4. DISCRIMINATION PROHIBITED.
(a) Employer Practices.--It shall be an unlawful employment
practice for an employer--
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to the compensation, terms, conditions, or
privileges of employment of the individual, because of such
individual's sexual orientation; or
(2) to limit, segregate, or classify the employees or
applicants for employment of the employer in any way that would
deprive or tend to deprive any individual of employment or
otherwise adversely affect the status of the individual as an
employee, because of such individual's sexual orientation.
(b) Employment Agency Practices.--It shall be an unlawful
employment practice for an employment agency to fail or refuse to refer
for employment, or otherwise to discriminate against, any individual
because of the sexual orientation of the individual or to classify or
refer for employment any individual on the basis of the sexual
orientation of the individual.
(c) Labor Organization Practices.--It shall be an unlawful
employment practice for a labor organization--
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of
the sexual orientation of the individual;
(2) to limit, segregate, or classify its membership or
applicants for membership, or to classify or fail or refuse to
refer for employment any individual, in any way that would
deprive or tend to deprive any individual of employment, or
would limit such employment or otherwise adversely affect the
status of the individual as an employee or as an applicant for
employment, because of such individual's sexual orientation; or
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.
(d) Training Programs.--It shall be an unlawful employment practice
for any employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any
individual because of the sexual orientation of the individual in
admission to, or employment in, any program established to provide
apprenticeship or other training.
(e) Association.--An unlawful employment practice described in any
of subsections (a) through (d) shall be considered to include an action
described in that subsection, taken against an individual based on the
sexual orientation of a person with whom the individual associates or
has associated.
(f) Disparate Impact.--Only disparate treatment claims may be
brought under this Act.
SEC. 5. RETALIATION PROHIBITED.
It shall be an unlawful employment practice for a covered entity to
discriminate against an individual because such individual opposed any
practice made an unlawful employment practice by this Act, or because
such individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this Act.
SEC. 6. BENEFITS.
This Act does not apply to the provision of employee benefits to an
individual for the benefit of the domestic partner of such individual.
SEC. 7. COLLECTION OF STATISTICS PROHIBITED.
The Commission shall not collect statistics on sexual orientation
from covered entities, or compel the collection of such statistics by
covered entities.
SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED.
(a) Quotas.--A covered entity shall not adopt or implement a quota
on the basis of sexual orientation.
(b) Preferential Treatment.--A covered entity shall not give
preferential treatment to an individual on the basis of sexual
orientation.
(c) Orders and Consent Decrees.--Notwithstanding any other
provision of this Act, an order or consent decree entered for a
violation of this Act may not include a quota, or preferential
treatment to an individual, based on sexual orientation.
SEC. 9. RELIGIOUS EXEMPTION.
This Act shall not apply to a religious organization.
SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS'
PREFERENCES.
(a) Armed Forces.--
(1) Employment.--In this Act, the term ``employment'' does
not apply to the relationship between the United States and
members of the Armed Forces.
(2) Armed forces.--In paragraph (1), the term ``Armed
Forces'' means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
(b) Veterans' Preferences.--This Act does not repeal or modify any
Federal, State, territorial, or local law creating a special right or
preference concerning employment for a veteran.
SEC. 11. CONSTRUCTION.
(a) Employer Rules and Policies.--Nothing in this Act shall be
construed to prohibit a covered entity from enforcing rules and
policies, if the rules or policies are designed for, and uniformly
applied to, all individuals regardless of sexual orientation.
(b) Association.--Nothing in this Act shall be construed to
prohibit any association, or infringe upon any right of association,
guaranteed by the first amendment to the Constitution, of any
nonprofit, voluntary membership organization.
SEC. 12. ENFORCEMENT.
(a) Enforcement Powers.--With respect to the administration and
enforcement of this Act in the case of a claim alleged by an individual
for a violation of this Act--
(1) the Commission shall have the same powers as the
Commission has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.); or
(B) sections 302 and 304 of the Government Employee
Rights Act of 1991 (2 U.S.C. 1202 and 1220);
in the case of a claim alleged by such individual for a
violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)),
respectively;
(2) the Librarian of Congress shall have the same powers as
the Librarian of Congress has to administer and enforce title
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)
in the case of a claim alleged by such individual for a
violation of such title;
(3) the Board (as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301)) shall
have the same powers as the Board has to administer and enforce
the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et
seq.) in the case of a claim alleged by such individual for a
violation of section 201(a)(1) of such Act (2 U.S.C.
1311(a)(1));
(4) the Attorney General shall have the same powers as the
Attorney General has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.); or
(B) sections 302 and 304 of the Government Employee
Rights Act of 1991 (2 U.S.C. 1202 and 1220);
in the case of a claim alleged by such individual for a
violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)),
respectively;
(5) the President, the Commission, and the Merit Systems
Protection Board shall have the same powers as the President,
the Commission, and the Board, respectively, have to administer
and enforce chapter 5 of title 3, United States Code, in the
case of a claim alleged by such individual for a violation of
section 411 of such title;
(6) a court of the United States shall have the same
jurisdiction and powers as the court has to enforce--
(A) title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) in the case of a claim alleged by
such individual for a violation of such title;
(B) sections 302 and 304 of the Government Employee
Rights Act of 1991 (2 U.S.C. 1202 and 1220) in the case
of a claim alleged by such individual for a violation
of section 302(a)(1) of such Act (2 U.S.C. 1202(a)(1));
(C) the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) in the case of a claim alleged by
such individual for a violation of section 201(a)(1) of
such Act (2 U.S.C. 1311(a)(1)); and
(D) chapter 5 of title 3, United States Code, in
the case of a claim alleged by such individual for a
violation of section 411 of such title.
(b) Procedures and Remedies.--The procedures and remedies
applicable to a claim alleged by an individual for a violation of this
Act are--
(1) the procedures and remedies applicable for a violation
of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e
et seq.) in the case of a claim alleged by such individual for
a violation of such title;
(2) the procedures and remedies applicable for a violation
of section 302(a)(1) of the Government Employee Rights Act of
1991 (2 U.S.C. 1202(a)(1)) in the case of a claim alleged by
such individual for a violation of such section;
(3) the procedures and remedies applicable for a violation
of section 201(a)(1) of the Congressional Accountability Act of
1995 (2 U.S.C. 1311(a)(1)) in the case of a claim alleged by
such individual for a violation of such section; and
(4) the procedures and remedies applicable for a violation
of section 411 of title 3, United States Code, in the case of a
claim alleged by such individual for a violation of such
section.
(c) Other Applicable Provisions.--With respect to a claim alleged
by a covered employee (as defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301)) for a violation of this
Act, title III of the Congressional Accountability Act of 1995 (2
U.S.C. 1381 et seq.) shall apply in the same manner as such title
applies with respect to a claim alleged by such a covered employee for
a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).
(d) Prohibition of Affirmative Action.--Notwithstanding any other
provision of this section, affirmative action for a violation of this
Act may not be imposed. Nothing in this section shall prevent the
granting of relief to any individual who suffers a violation of such
individual's rights provided in this Act.
SEC. 13. STATE AND FEDERAL IMMUNITY.
(a) State Immunity.--A State shall not be immune under the 11th
amendment to the Constitution from a suit described in subsection (b)
and brought in a Federal court of competent jurisdiction for a
violation of this Act.
(b) Remedies for State Employees.--
(1) In general.--
(A) Waiver.--A State's receipt or use of Federal
financial assistance for any program or activity of a
State shall constitute a waiver of sovereign immunity,
under the 11th amendment to the Constitution or
otherwise, to a suit brought by an employee or
applicant for employment of that program or activity
under this Act for a remedy authorized under subsection
(c).
(B) Definition.--In this paragraph, the term
``program or activity'' has the meaning given the term
in section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a).
(2) Officials.--An official of a State may be sued in the
official capacity of the official by any employee or applicant
for employment who has complied with the applicable procedures
of section 12, for equitable relief that is authorized under
this Act. In such a suit the court may award to the prevailing
party those costs authorized by section 722 of the Revised
Statutes (42 U.S.C. 1988).
(3) Effective date.--With respect to a particular program
or activity, paragraphs (1) and (2) apply to conduct occurring
on or after the day, after the date of enactment of this Act,
on which a State first receives or uses Federal financial
assistance for that program or activity.
(c) Remedies Against the United States and the States.--
Notwithstanding any other provision of this Act, in an action or
administrative proceeding against the United States or a State for a
violation of this Act, remedies (including remedies at law and in
equity, and interest) are available for the violation to the same
extent as the remedies are available for a violation of title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private
entity, except that--
(1) punitive damages are not available; and
(2) compensatory damages are available to the extent
specified in section 1977A(b) of the Revised Statutes (42
U.S.C. 1981a(b)).
SEC. 14. ATTORNEYS' FEES.
Notwithstanding any other provision of this Act, in an action or
administrative proceeding for a violation of this Act, an entity
described in section 12(a) (other than paragraph (4) of such section),
in the discretion of the entity, may allow the prevailing party, other
than the Commission or the United States, a reasonable attorney's fee
(including expert fees) as part of the costs. The Commission and the
United States shall be liable for the costs to the same extent as a
private person.
SEC. 15. POSTING NOTICES.
A covered entity who is required to post notices described in
section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) shall
post notices for employees, applicants for employment, and members, to
whom the provisions specified in section 12(b) apply, that describe the
applicable provisions of this Act in the manner prescribed by, and
subject to the penalty provided under, section 711 of the Civil Rights
Act of 1964.
SEC. 16. REGULATIONS.
(a) In General.--Except as provided in subsections (b), (c), and
(d), the Commission shall have authority to issue regulations to carry
out this Act.
(b) Librarian of Congress.--The Librarian of Congress shall have
authority to issue regulations to carry out this Act with respect to
employees and applicants for employment of the Library of Congress.
(c) Board.--The Board referred to in section 12(a)(3) shall have
authority to issue regulations to carry out this Act, in accordance
with section 304 of the Congressional Accountability Act of 1995 (2
U.S.C. 1384), with respect to covered employees, as defined in section
101 of such Act (2 U.S.C. 1301).
(d) President.--The President shall have authority to issue
regulations to carry out this Act with respect to covered employees, as
defined in section 411(c) of title 3, United States Code.
SEC. 17. RELATIONSHIP TO OTHER LAWS.
This Act shall not invalidate or limit the rights, remedies, or
procedures available to an individual claiming discrimination
prohibited under any other Federal law or any law of a State or
political subdivision of a State.
SEC. 18. SEVERABILITY.
If any provision of this Act, or the application of the provision
to any person or circumstance, is held to be invalid, the remainder of
this Act and the application of the provision to any other person or
circumstance shall not be affected by the invalidity.
SEC. 19. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of enactment of
this Act and shall not apply to conduct occurring before the effective
date.
Calendar No. 763
107th CONGRESS
2d Session
S. 1284
[Report No. 107-341]
Rule___________________________________________________________________
A BILL
To prohibit employment discrimination on the basis of sexual
orientation.
Rule___________________________________________________________________
November 15, 2002
Reported with an amendment