[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5136 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 5136
To protect employees from discrimination based on family caregiver
responsibilities, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 29, 2022
Mr. Booker introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To protect employees from discrimination based on family caregiver
responsibilities, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Family Caregivers from
Discrimination Act of 2022''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Adverse action.--The term ``adverse action'' means--
(A) to threaten, penalize, fail or refuse to hire,
or to discharge any individual, or otherwise to
discriminate against any individual with respect to the
individual's compensation, advancement, terms,
conditions, scheduling or work hours, or privileges of
employment;
(B) to limit, segregate, or classify employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect an
individual's status as an employee;
(C) to make a communication regarding immigration
status, as described in section 4(a)(3); or
(D) any other act or practice that is considered an
adverse action under title VII of the 1964 Civil Rights
Act (42 U.S.C. 2000e et seq.).
(2) Commerce.--The term ``commerce'' has the meaning given
such term in section 3 of the Fair Labor Standards Act of 1938
(29 U.S.C. 203).
(3) Commission.--The term ``Commission'' means the Equal
Employment Opportunity Commission.
(4) Employee.--The term ``employee'' means--
(A) an employee, as defined in section 3 of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203), who
in any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of
goods for commerce; or
(B) an individual who is engaged by--
(i) an employer; or
(ii) an individual or entity that is not
acting as an employer and engages the services
of a worker to perform services or work as an
independent contractor (regardless of the label
or classification assigned or used by the
employer or an individual or entity that is not
acting as an employer and engages the services
of a worker).
(5) Employer; enterprise engaged in commerce or in the
production of goods for commerce.--The terms ``employer'' and
``enterprise engaged in commerce or in the production of goods
for commerce'' have the meanings given such terms in section 3
of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
(6) Family caregiver responsibilities.--The term ``family
caregiver responsibilities'', with respect to an employee
having such responsibilities, means the responsibilities of the
employee as being responsible, or being regarded as being
responsible, as a contributor to the support or care of one or
more family members of the individual, regardless of the age of
the family member.
(7) Family member.--
(A) In general.--The term ``family member'' means,
with respect to an individual--
(i) a spouse (including a domestic partner
in a civil union or other registered domestic
partnership recognized by a State) and a
spouse's parent;
(ii) a child and a child's spouse;
(iii) a parent and a parent's spouse;
(iv) a sibling and a sibling's spouse;
(v) a grandparent, a grandchild, or a
spouse of a grandparent or grandchild; and
(vi) any other individual who is related by
blood or affinity and whose association with
the individual involved is equivalent of a
family relationship.
(B) Relationship.--A relationship described in
clauses (i) through (vi) of subparagraph (A) may be
acquired through adoption, marriage, or a dependent or
custodial relationship.
SEC. 3. PROHIBITION ON DISCRIMINATION.
It shall be unlawful for an employer or an individual or entity
described in section 2(4)(B)(ii) to--
(1) fail or refuse to hire an applicant as an employee of
such employer, or such individual or entity, because of the
family caregiver responsibilities of the applicant; or
(2) take adverse action against an employee of such
employer or such individual or entity, or otherwise
discriminate against such an employee, including by harassing
the employee, with respect to the compensation, advancement,
terms, conditions, scheduling or work hours, or privileges, of
employment or engagement of the employee because of the family
caregiver responsibilities of the employee.
SEC. 4. PROHIBITION ON RETALIATION.
(a) Interference With Rights.--
(1) Exercise of rights.--It shall be unlawful for any
employer or an individual or entity described in section
2(4)(B)(ii) to retaliate against, interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right
provided under this section.
(2) Adverse action.--It shall be unlawful for any employer
or an individual or entity described in section 2(4)(B)(ii) to
take any adverse action against any employee or applicant
because the employee or applicant has exercised in good faith
the rights protected under this section.
(3) Immigration status.--It shall be unlawful for any
employer or an individual or entity described in section
2(4)(B)(ii) to communicate to an employee or applicant
exercising rights protected under this section, directly or
indirectly, the willingness to inform a government employee
that the employee or applicant is not lawfully in the United
States, or to report, or to make an implied or express
assertion of a willingness to report, suspected citizenship or
immigration status of an employee or applicant or family member
of the employee or applicant to a Federal, State, or local
agency because the employee has exercised a right under this
section.
(b) Rights of Employees.--The rights of an employee or applicant
shall include the right to--
(1) inform the employee's employer, union, or similar
organization, or the applicant or employee's legal counsel or
any other person about an alleged violation of this Act;
(2) file any charge, or institute or cause to be instituted
any proceeding, under or related to this Act, or otherwise take
action in accordance with section 6 relating to the enforcement
of this Act;
(3) cooperate in investigations under or relating to this
Act, including by giving or preparing to give information in
connection with any inquiry or proceeding under or related to
this Act;
(4) testify in any inquiry or proceeding under or related
to this Act; and
(5) refuse to participate in, or otherwise oppose, any
policy, practice, or act that is unlawful under this Act.
(c) Presumption of Retaliation.--There shall be a rebuttable
presumption that retaliation has occurred in violation of this section
if an employer or an individual or entity described in section
2(4)(B)(ii) takes an adverse action against an employee or applicant
during the period that is 2 years after the date on which that employee
or applicant exercised rights protected under this section. In the case
of seasonal work, the presumption also applies if the employer or
individual or entity described in section 2(4)(B)(ii) fails to rehire a
former employee at the next opportunity for work in the same position.
The employer or individual or entity described in section 2(4)(B)(ii)
may rebut the presumption with clear and convincing evidence that the
adverse action was taken for a permissible purpose.
(d) Protections for Good Faith Allegations.--The protections
afforded under this section shall apply to any individual who
mistakenly but in good faith alleges a violation of this section or
section 3.
(e) Explicit Reference Not Required.--A complaint or other
communication by an employee or any applicant may be an action
described in subsection (b) that gives rise to the protections
described in this section regardless of whether the complaint or
communication is in writing or makes explicit reference to this Act.
SEC. 5. POSTING OF NOTICES.
(a) In General.--Each employer shall, not later than 180 days after
the date of enactment of this Act, post, and keep posted, in a
conspicuous place upon the premises of the employer a notice, to be
prepared or approved by the Commission, setting forth information as
the Commission determines appropriate to effectuate the purposes of
this Act, including the pertinent provisions of this Act and
information pertinent to the filing of a charge with the Commission.
(b) Penalty.--A willful violation of this section shall be
punishable by a fine of not more than $100 for each day on which the
violation continues.
SEC. 6. ENFORCEMENT.
(a) In General.--Subject to subsection (c), sections 3 and 4 of
this Act shall be enforced by the Commission in the same manner and by
the same means, including with the same jurisdiction, as the
enforcement of a violation of title VII of the Civil Rights Act of 1964
(42 U.S.C. 2000e et seq.). Violations of this Act may be established
through proof of disparate treatment, harassment, or disparate impact.
(b) Action by the Commission.--Except as otherwise specified in
this Act, the Commission shall receive, investigate, attempt to
resolve, and otherwise enforce a charge of a violation of section 3 or
4 of this Act in the same manner that the Commission receives,
investigates, attempts to resolve, and enforces a charge of a violation
of title VII of the Civil Rights Act of 1964.
(c) Private Right of Action.--Notwithstanding subsection (a) and
section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5), a
private right of action shall also be available to an applicant or
individual who alleges a violation of section 3 or 4 of this Act. Such
applicant or individual shall not be required to file a charge with the
Commission or pursue or exhaust any administrative remedies before
instituting a civil action.
(d) Penalties.--
(1) In general.--In addition to sums that may otherwise be
collected by an aggrieved individual or collected by the
Commission and paid to an aggrieved individual, any person who
willfully violates section 3 or 4 shall upon conviction thereof
be subject to a penalty of an amount not to exceed--
(A) $10,000 for each violation of section 3; and
(B) $5,000 for each violation of section 4.
(2) Transfer of funds.--Any penalties collected by the
Commission under this subsection shall be transferred to the
Family Caregiver Antidiscrimination Fund.
(e) Family Caregiver Antidiscrimination Fund.--
(1) In general.--There is established in the Treasury of
the United States a revolving fund, to be known as the ``Family
Caregiver Antidiscrimination Fund'' (referred to in this Act as
the ``Fund''), consisting of the amount of penalties
transferred to the Fund under subsection (d)(2).
(2) Use of funds.--Amounts in the Fund shall be available
for the purpose of awarding grants under section 7.
SEC. 7. GRANTS.
(a) In General.--
(1) Grant program established.--The Commission, shall award
grants, on a competitive basis, to eligible entities to enable
those eligible entities to assist in preventing and combating
discrimination against applicants and employees who have family
caregiver responsibilities.
(2) Duration.--A grant awarded under this section shall be
for a period of 3 years.
(b) Eligible Entity.--In this section, the term ``eligible entity''
means--
(1) a nonprofit organization with expertise in family
caregiver discrimination;
(2) an institution of higher education or research center
that employs faculty with relevant expertise or that has
expertise in family caregiver discrimination; or
(3) a consortium of entities described in paragraphs (1)
and (2) that submit a single application to carry out
activities under the grant jointly.
(c) Application.--An eligible entity desiring a grant under this
section shall submit an application to the Commission at such time, in
such manner, and containing such information as the Commission may
require.
(d) Use of Funds.--An eligible entity receiving a grant under this
section shall use grant funds to carry out one or more of the following
activities:
(1) Educate employees about the prohibited actions under
section 3, caregiver rights, and the rights provided under this
Act.
(2) Conduct educational training for employers regarding
caregiver discrimination.
(3) Provide support to applicants and employees who are
facing or who have faced discrimination based on family
caregiver responsibilities.
(4) Produce and disseminate outreach and training materials
relating to the prohibited actions under section 3, caregiver
rights, and the rights provided under this Act.
(5) Recruit and hire staff and volunteers to carry out the
activities described in this subsection.
(6) Any other activities that the Commission determines are
reasonable.
(e) Report.--Not later than 12 months after the completion of the
programs and activities funded under grants awarded under this section,
the Commission shall submit to Congress, and all appropriate agencies,
a report concerning an evaluation of the results of such programs and
activities, including best practices, and lessons derived from the
experiences of grantees.
(f) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.
SEC. 8. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to supersede any other
provision of Federal, State, or local law that provides greater
protection against employment discrimination or greater remedies to
employees than the protection or remedies provided to employees under
this Act, including any such provision in the Family and Medical Leave
Act of 1993 (29 U.S.C. 2601 et seq.), the Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.), title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.), or section 6(d) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 206(d)).
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