Amends the Federal criminal code to provide criminal penalties for certain hate crimes.
Authorizes funding for enforcing civil rights laws and for indigent defense.
Indian Trust Asset and Trust Fund Management and Reform Act of 2003 - Amends the American Indian Fund Management Reform Act of 1994 to expand the annual audit responsibilities of the Secretary of the Interior.
Prescribes guidelines for development and implementation of an Indian Trust Fund and Trust Asset Management and Monitoring Plan.
Establishes the position of Deputy Secretary for Trust Management and Reform to oversee all trust fund and trust asset matters of the Department of the Interior.
Establishes the Office of Trust Reform Implementation and Oversight, headed by the Deputy Secretary, to supervise activities of specified senior officials who administer Indian trust assets or funds.
Instructs the Deputy Secretary to establish a Tribal Task Force on Trust Reform.
Expresses the sense of the Senate that Congress should enact legislation: (1) to ban the practice of racial profiling; and (2) to require law enforcement agencies to take steps to prevent the practice.
Paycheck Fairness Act - Amends the Fair Labor Standards Act of 1938 to revamp proscriptions against sex discrimination in wages.
Employment Non-Discrimination Act of 2003 - Prohibits employment discrimination on the basis of sexual orientation by covered entities.
Genetic Nondiscrimination in Health Insurance and Employment Act - Amends the following Acts to prohibit specified discriminatory practices concerning genetic information: (1) the Employee Retirement Income Security Act of 1974; (2) the Public Health Service Act; (3) the Internal Revenue Code; and (4) title XVIII (Medicare) of the Social Security Act .
Protecting Americans' Medical Privacy Act - States that specified modifications made by the August 2002 medical privacy rule to the December 2000 medical privacy rule governing consent for uses or disclosures for treatment, payment, or health care operations shall have no force or effect.
Prohibits the collection of information on U.S. citizens inside the United States for intelligence or law enforcement purposes by any member of the Armed Forces or civilian employee of the Department of Defense.
Help America Vote Act of 2002 (sic) - Authorizes appropriations to implement the Help America Vote Act of 2002 and the Help America Vote Foundation.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 16 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 16
To protect the civil rights of all Americans, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 7, 2003
Mr. Daschle (for himself, Mr. Leahy, Mr. Kennedy, Mr. Biden, Mr.
Schumer, Mr. Durbin, Mr. Edwards, Mr. Akaka, Mrs. Clinton, Mr. Corzine,
Mr. Dayton, Mr. Harkin, Ms. Landrieu, Mr. Levin, Mr. Lieberman, Ms.
Mikulski, Mrs. Murray, Mr. Rockefeller, Mr. Sarbanes, Ms. Stabenow, Mr.
Lautenberg, and Mr. Reid) introduced the following bill; which was read
twice and referred to the Committee on Finance
_______________________________________________________________________
A BILL
To protect the civil rights of all Americans, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Equal Rights and
Equal Dignity for Americans Act of 2003''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--LOCAL LAW ENFORCEMENT ENHANCEMENT ACT
Sec. 101. Short title.
Sec. 102. Findings.
Sec. 103. Definition of hate crime.
Sec. 104. Support for criminal investigations and prosecutions by State
and local law enforcement officials.
Sec. 105. Grant program.
Sec. 106. Authorization for additional personnel to assist State and
local law enforcement.
Sec. 107. Prohibition of certain hate crime acts.
Sec. 108. Duties of Federal Sentencing Commission.
Sec. 109. Statistics.
Sec. 110. Severability.
TITLE II--INCREASE IN FUNDING FOR ENFORCING CIVIL RIGHTS LAWS
Sec. 201. Increase in funding.
TITLE III--SUPPORTING INDIGENT DEFENSE
Sec. 301. Findings.
Sec. 302. Authorization of appropriations.
TITLE IV--INDIAN TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM
Sec. 401. Short title.
Sec. 402. Findings.
Sec. 403. Definitions.
Sec. 404. Responsibilities of Secretary.
Sec. 405. Indian participation in trust fund activities.
Sec. 406. Deputy Secretary for Trust Management and Reform.
Sec. 407. Advisory board and Tribal Task Force.
Sec. 408. Regulations.
Sec. 409. No effect on certain judicial decision.
TITLE V--RACIAL PROFILING
Sec. 501. Sense of the Senate on racial profiling.
TITLE VI--PAYCHECK FAIRNESS
Sec. 601. Short title.
Sec. 602. Findings.
Sec. 603. Enhanced enforcement of equal pay requirements.
Sec. 604. Training.
Sec. 605. Research, education, and outreach.
Sec. 606. Technical assistance and employer recognition program.
Sec. 607. Establishment of the National Award for Pay Equity in the
Workplace.
Sec. 608. Collection of pay information by the Equal Employment
Opportunity Commission.
Sec. 609. Authorization of appropriations.
TITLE VII--EMPLOYMENT NON-DISCRIMINATION
Sec. 701. Short title.
Sec. 702. Purposes.
Sec. 703. Definitions.
Sec. 704. Discrimination prohibited.
Sec. 705. Retaliation prohibited.
Sec. 706. Benefits.
Sec. 707. Collection of statistics prohibited.
Sec. 708. Quotas and preferential treatment prohibited.
Sec. 709. Religious exemption.
Sec. 710. Nonapplication to members of the Armed Forces; veterans'
preferences.
Sec. 711. Construction.
Sec. 712. Enforcement.
Sec. 713. State and Federal immunity.
Sec. 714. Attorneys' fees.
Sec. 715. Posting notices.
Sec. 716. Regulations.
Sec. 717. Relationship to other laws.
Sec. 718. Severability.
Sec. 719. Effective date.
TITLE VIII--GENETIC NONDISCRIMINATION
Sec. 801. Short title.
Subtitle A--Prohibition of Health Insurance Discrimination on the Basis
of Protected Genetic Information
Sec. 811. Amendments to Employee Retirement Income Security Act of
1974.
Sec. 812. Amendments to the Public Health Service Act.
Sec. 813. Amendments to Internal Revenue Code of 1986.
Sec. 814. Amendments to title XVIII of the Social Security Act relating
to MEDIGAP.
Subtitle B--Prohibition of Employment Discrimination on the Basis of
Protected Genetic Information
Sec. 821. Definitions.
Sec. 822. Limitations with respect to definition.
Sec. 823. Employer practices.
Sec. 824. Employment agency practices.
Sec. 825. Labor organization practices.
Sec. 826. Training programs.
Sec. 827. Maintenance and disclosure of protected genetic information.
Sec. 828. Civil action.
Sec. 829. Construction.
Sec. 830. Authorization of appropriations.
Sec. 831. Effective date.
Subtitle C--Miscellaneous Provisions
Sec. 841. Severability.
TITLE IX--MEDICAL PRIVACY
Sec. 901. Short title.
Sec. 902. Purpose.
Sec. 903. Restoration of privacy protections.
Sec. 904. Definitions; effective date.
TITLE X--PROTECTING AMERICANS' PRIVACY
Sec. 1001. Use of Department of Defense personnel or funds to collect
intelligence or law enforcement information
on United States citizens inside the United
States.
TITLE XI--ELECTION REFORM
Sec. 1101. Reform.
TITLE I--LOCAL LAW ENFORCEMENT ENHANCEMENT ACT
SEC. 101. SHORT TITLE.
This title may be cited as the ``Local Law Enforcement Enhancement
Act of 2003''.
SEC. 102. FINDINGS.
Congress makes the following findings:
(1) The incidence of violence motivated by the actual or
perceived race, color, religion, national origin, gender,
sexual orientation, or disability of the victim poses a serious
national problem.
(2) Such violence disrupts the tranquility and safety of
communities and is deeply divisive.
(3) State and local authorities are now and will continue
to be responsible for prosecuting the overwhelming majority of
violent crimes in the United States, including violent crimes
motivated by bias. These authorities can carry out their
responsibilities more effectively with greater Federal
assistance.
(4) Existing Federal law is inadequate to address this
problem.
(5) The prominent characteristic of a violent crime
motivated by bias is that it devastates not just the actual
victim and the family and friends of the victim, but frequently
savages the community sharing the traits that caused the victim
to be selected.
(6) Such violence substantially affects interstate commerce
in many ways, including--
(A) by impeding the movement of members of targeted
groups and forcing such members to move across State
lines to escape the incidence or risk of such violence;
and
(B) by preventing members of targeted groups from
purchasing goods and services, obtaining or sustaining
employment, or participating in other commercial
activity.
(7) Perpetrators cross State lines to commit such violence.
(8) Channels, facilities, and instrumentalities of
interstate commerce are used to facilitate the commission of
such violence.
(9) Such violence is committed using articles that have
traveled in interstate commerce.
(10) For generations, the institutions of slavery and
involuntary servitude were defined by the race, color, and ancestry of
those held in bondage. Slavery and involuntary servitude were enforced,
both prior to and after the adoption of the 13th amendment to the
Constitution of the United States, through widespread public and
private violence directed at persons because of their race, color, or
ancestry, or perceived race, color, or ancestry. Accordingly,
eliminating racially motivated violence is an important means of
eliminating, to the extent possible, the badges, incidents, and relics
of slavery and involuntary servitude.
(11) Both at the time when the 13th, 14th, and 15th
amendments to the Constitution of the United States were
adopted, and continuing to date, members of certain religious
and national origin groups were and are perceived to be
distinct ``races''. Thus, in order to eliminate, to the extent
possible, the badges, incidents, and relics of slavery, it is
necessary to prohibit assaults on the basis of real or
perceived religions or national origins, at least to the extent
such religions or national origins were regarded as races at
the time of the adoption of the 13th, 14th, and 15th amendments
to the Constitution of the United States.
(12) Federal jurisdiction over certain violent crimes
motivated by bias enables Federal, State, and local authorities
to work together as partners in the investigation and
prosecution of such crimes.
(13) The problem of crimes motivated by bias is
sufficiently serious, widespread, and interstate in nature as
to warrant Federal assistance to States and local
jurisdictions.
SEC. 103. DEFINITION OF HATE CRIME.
In this title, the term ``hate crime'' has the same meaning as in
section 280003(a) of the Violent Crime Control and Law Enforcement Act
of 1994 (28 U.S.C. 994 note).
SEC. 104. SUPPORT FOR CRIMINAL INVESTIGATIONS AND PROSECUTIONS BY STATE
AND LOCAL LAW ENFORCEMENT OFFICIALS.
(a) Assistance Other Than Financial Assistance.--
(1) In general.--At the request of a law enforcement
official of a State or Indian tribe, the Attorney General may
provide technical, forensic, prosecutorial, or any other form
of assistance in the criminal investigation or prosecution of
any crime that--
(A) constitutes a crime of violence (as defined in
section 16 of title 18, United States Code);
(B) constitutes a felony under the laws of the
State or Indian tribe; and
(C) is motivated by prejudice based on the race,
color, religion, national origin, gender, sexual
orientation, or disability of the victim, or is a
violation of the hate crime laws of the State or Indian
tribe.
(2) Priority.--In providing assistance under paragraph (1),
the Attorney General shall give priority to crimes committed by
offenders who have committed crimes in more than 1 State and to
rural jurisdictions that have difficulty covering the
extraordinary expenses relating to the investigation or
prosecution of the crime.
(b) Grants.--
(1) In general.--The Attorney General may award grants to
assist State, local, and Indian law enforcement officials with
the extraordinary expenses associated with the investigation
and prosecution of hate crimes.
(2) Office of justice programs.--In implementing the grant
program, the Office of Justice Programs shall work closely with
the funded jurisdictions to ensure that the concerns and needs
of all affected parties, including community groups and
schools, colleges, and universities, are addressed through the
local infrastructure developed under the grants.
(3) Application.--
(A) In general.--Each State that desires a grant
under this subsection shall submit an application to
the Attorney General at such time, in such manner, and
accompanied by or containing such information as the
Attorney General shall reasonably require.
(B) Date for submission.--Applications submitted
pursuant to subparagraph (A) shall be submitted during
the 60-day period beginning on a date that the Attorney
General shall prescribe.
(C) Requirements.--A State or political subdivision
of a State or tribal official applying for assistance
under this subsection shall--
(i) describe the extraordinary purposes for
which the grant is needed;
(ii) certify that the State, political
subdivision, or Indian tribe lacks the
resources necessary to investigate or prosecute
the hate crime;
(iii) demonstrate that, in developing a
plan to implement the grant, the State,
political subdivision, or tribal official has
consulted and coordinated with nonprofit,
nongovernmental victim services programs that
have experience in providing services to
victims of hate crimes; and
(iv) certify that any Federal funds
received under this subsection will be used to
supplement, not supplant, non-Federal funds
that would otherwise be available for
activities funded under this subsection.
(4) Deadline.--An application for a grant under this
subsection shall be approved or disapproved by the Attorney
General not later than 30 business days after the date on which
the Attorney General receives the application.
(5) Grant amount.--A grant under this subsection shall not
exceed $100,000 for any single jurisdiction within a 1-year
period.
(6) Report.--Not later than December 31, 2004, the Attorney
General shall submit to Congress a report describing the
applications submitted for grants under this subsection, the
award of such grants, and the purposes for which the grant
amounts were expended.
(7) Authorization of appropriations.--There is authorized
to be appropriated $5,000,000 to carry out this subsection for
each of fiscal years 2004 and 2005.
SEC. 105. GRANT PROGRAM.
(a) Authority To Make Grants.--The Office of Justice Programs of
the Department of Justice shall award grants, in accordance with such
regulations as the Attorney General may prescribe, to State and local
programs designed to combat hate crimes committed by juveniles,
including programs to train local law enforcement officers in
identifying, investigating, prosecuting, and preventing hate crimes.
(b) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section.
SEC. 106. AUTHORIZATION FOR ADDITIONAL PERSONNEL TO ASSIST STATE AND
LOCAL LAW ENFORCEMENT.
There are authorized to be appropriated to the Department of the
Treasury and the Department of Justice, including the Community
Relations Service, for fiscal years 2004, 2005, and 2006 such sums as
are necessary to increase the number of personnel to prevent and
respond to alleged violations of section 249 of title 18, United States
Code, as added by section 107.
SEC. 107. PROHIBITION OF CERTAIN HATE CRIME ACTS.
(a) In General.--Chapter 13 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 249. Hate crime acts
``(a) In General.--
``(1) Offenses involving actual or perceived race, color,
religion, or national origin.--Whoever, whether or not acting
under color of law, willfully causes bodily injury to any
person or, through the use of fire, a firearm, or an explosive
or incendiary device, attempts to cause bodily injury to any person,
because of the actual or perceived race, color, religion, or national
origin of any person--
``(A) shall be imprisoned not more than 10 years,
fined in accordance with this title, or both; and
``(B) shall be imprisoned for any term of years or
for life, fined in accordance with this title, or both,
if--
``(i) death results from the offense; or
``(ii) the offense includes kidnaping or an
attempt to kidnap, aggravated sexual abuse or
an attempt to commit aggravated sexual abuse,
or an attempt to kill.
``(2) Offenses involving actual or perceived religion,
national origin, gender, sexual orientation, or disability.--
``(A) In general.--Whoever, whether or not acting
under color of law, in any circumstance described in
subparagraph (B), willfully causes bodily injury to any
person or, through the use of fire, a firearm, or an
explosive or incendiary device, attempts to cause
bodily injury to any person, because of the actual or
perceived religion, national origin, gender, sexual
orientation, or disability of any person--
``(i) shall be imprisoned not more than 10
years, fined in accordance with this title, or
both; and
``(ii) shall be imprisoned for any term of
years or for life, fined in accordance with
this title, or both, if--
``(I) death results from the
offense; or
``(II) the offense includes
kidnaping or an attempt to kidnap,
aggravated sexual abuse or an attempt
to commit aggravated sexual abuse, or
an attempt to kill.
``(B) Circumstances described.--For purposes of
subparagraph (A), the circumstances described in this
subparagraph are that--
``(i) the conduct described in subparagraph
(A) occurs during the course of, or as the
result of, the travel of the defendant or the
victim--
``(I) across a State line or
national border; or
``(II) using a channel, facility,
or instrumentality of interstate or
foreign commerce;
``(ii) the defendant uses a channel,
facility, or instrumentality of interstate or
foreign commerce in connection with the conduct
described in subparagraph (A);
``(iii) in connection with the conduct
described in subparagraph (A), the defendant
employs a firearm, explosive or incendiary
device, or other weapon that has traveled in
interstate or foreign commerce; or
``(iv) the conduct described in
subparagraph (A)--
``(I) interferes with commercial or
other economic activity in which the
victim is engaged at the time of the
conduct; or
``(II) otherwise affects interstate
or foreign commerce.
``(b) Certification Requirement.--No prosecution of any offense
described in this subsection may be undertaken by the United States,
except under the certification in writing of the Attorney General, the
Deputy Attorney General, the Associate Attorney General, or any
Assistant Attorney General specially designated by the Attorney General
that--
``(1) he or she has reasonable cause to believe that the
actual or perceived race, color, religion, national origin,
gender, sexual orientation, or disability of any person was a
motivating factor underlying the alleged conduct of the
defendant; and
``(2) he or his designee or she or her designee has
consulted with State or local law enforcement officials
regarding the prosecution and determined that--
``(A) the State does not have jurisdiction or does
not intend to exercise jurisdiction;
``(B) the State has requested that the Federal
Government assume jurisdiction;
``(C) the State does not object to the Federal
Government assuming jurisdiction; or
``(D) the verdict or sentence obtained pursuant to
State charges left demonstratively unvindicated the
Federal interest in eradicating bias-motivated
violence.
``(c) Definitions.--In this section--
``(1) the term `explosive or incendiary device' has the
meaning given the term in section 232 of this title; and
``(2) the term `firearm' has the meaning given the term in
section 921(a) of this title.''.
(b) Technical and Conforming Amendment.--The analysis for chapter
13 of title 18, United States Code, is amended by adding at the end the
following:
``249. Hate crime acts.''.
SEC. 108. DUTIES OF FEDERAL SENTENCING COMMISSION.
(a) Amendment of Federal Sentencing Guidelines.--Pursuant to the
authority provided under section 994 of title 28, United States Code,
the United States Sentencing Commission shall study the issue of adult
recruitment of juveniles to commit hate crimes and shall, if
appropriate, amend the Federal sentencing guidelines to provide
sentencing enhancements (in addition to the sentencing enhancement
provided for the use of a minor during the commission of an offense)
for adult defendants who recruit juveniles to assist in the commission
of hate crimes.
(b) Consistency With Other Guidelines.--In carrying out this
section, the United States Sentencing Commission shall--
(1) ensure that there is reasonable consistency with other
Federal sentencing guidelines; and
(2) avoid duplicative punishments for substantially the
same offense.
SEC. 109. STATISTICS.
Subsection (b)(1) of the first section of the Hate Crimes
Statistics Act (28 U.S.C. 534 note) is amended by inserting ``gender,''
after ``race,''.
SEC. 110. SEVERABILITY.
If any provision of this title, an amendment made by this title, or
the application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this
title, the amendments made by this title, and the application of the
provisions of such to any person or circumstance shall not be affected
thereby.
TITLE II--INCREASE IN FUNDING FOR ENFORCING CIVIL RIGHTS LAWS
SEC. 201. INCREASE IN FUNDING.
Notwithstanding any other provision of law, there are authorized to
be appropriated for fiscal year 2004--
(1) to the Equal Employment Opportunity Commission, to
carry out the activities of the Commission, $339,691,800;
(2) to the Civil Rights Division of the Department of
Justice, to carry out the activities of the Division,
$110,360,000;
(3) to the Office of Civil Rights of the Department of
Education, to carry out the activities of the Office,
$97,760,000; and
(4) to the Office of Federal Contract Compliance Programs
of the Department of Labor, to carry out the activities of the
Office, $81,421,200.
TITLE III--SUPPORTING INDIGENT DEFENSE
SEC. 301. FINDINGS.
Congress finds the following:
(1) It is important to provide equal access to the system
of justice in the United States for all individuals, regardless
of economic stature.
(2) The Legal Services Corporation provides high quality
legal assistance for persons who would otherwise be unable to
afford legal counsel.
(3) The programs of the Legal Services Corporation serve
clients with cases concerning housing, family law, income
maintenance, consumer issues, and employment.
(4) For just under a decade the Federal resources available
to the Legal Services Corporation have been inadequate. Nearly
half of all people who applied for assistance from local Legal
Services Corporation programs have been turned away in recent
years.
(5) Congress must adequately fund Legal Services
Corporation programs to preserve the strength of the programs.
SEC. 302. AUTHORIZATION OF APPROPRIATIONS.
Section 1010(a) of the Legal Services Corporation Act (42 U.S.C.
2996i(a)) is amended to read as follows:
``(a) There is authorized to be appropriated for the purpose of
carrying out the activities of the Corporation, $400,000,000 for fiscal
year 2004.''.
TITLE IV--INDIAN TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM
SEC. 401. SHORT TITLE.
This title may be cited as the ``Indian Trust Asset and Trust Fund
Management and Reform Act of 2003''.
SEC. 402. FINDINGS.
Congress finds and affirms that the proper discharge of trust
responsibility of the United States requires, without limitation, that
the trustee, using a high degree of care, skill, and loyalty--
(1) protect and preserve Indian trust assets from loss,
damage, unlawful alienation, waste, and depletion;
(2) ensure that any management of Indian trust assets
required to be carried out by the Secretary--
(A) promotes the interest of the beneficial owner;
and
(B) supports, to the maximum extent practicable in
accordance with the trust responsibility of the
Secretary, the beneficial owner's intended use of the
assets;
(3)(A) enforce the terms of all leases or other agreements
that provide for the use of trust assets; and
(B) take appropriate steps to remedy trespass on trust or
restricted land;
(4) promote tribal control and self-determination over
tribal trust land and resources;
(5) select and oversee persons that manage Indian trust
assets;
(6) confirm that Indian tribes that manage Indian trust
assets pursuant to contracts and compacts authorized by the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) protect and prudently manage those Indian
trust assets;
(7) provide oversight and review of the performance of the
trust responsibility of the Secretary, including Indian trust
asset and investment management programs, operational systems,
and information systems;
(8) account for and identify, collect, deposit, invest, and
distribute, in a timely manner, income due or held on behalf of
tribal and individual Indian account holders;
(9) maintain a verifiable system of records that, at a
minimum, is capable of identifying, with respect to a trust
asset--
(A) the location of the trust asset;
(B) the beneficial owners of the trust asset;
(C) any legal encumbrances (such as leases or
permits) applicable to the trust asset;
(D) the user of the trust asset;
(E) any rent or other payments made;
(F) the value of trust or restricted land and
resources associated with the trust asset;
(G) dates of--
(i) collections;
(ii) deposits;
(iii) transfers;
(iv) disbursements;
(v) imposition of third-party obligations
(such as court-ordered child support or
judgments);
(vi) statements of earnings;
(vii) investment instruments; and
(viii) closure of all trust fund accounts
relating to the trust fund asset;
(H) documents pertaining to actions taken to
prevent or compensate for any diminishment of the
Indian trust asset; and
(I) documents that evidence the actions of the
Secretary regarding the management and disposition of
the Indian trust asset;
(10) establish and maintain a system of records that--
(A) permits beneficial owners to obtain information
regarding Indian trust assets in a timely manner; and
(B) protects the privacy of that information;
(11) invest tribal and individual Indian trust funds to
ensure that the trust account remains reasonably productive for
the beneficial owner consistent with market conditions existing
at the time at which investment is made;
(12) communicate with beneficial owners regarding the
management and administration of Indian trust assets; and
(13) protect treaty-based fishing, hunting, gathering, and
similar rights-of-access and resource use on traditional tribal
land.
SEC. 403. DEFINITIONS.
Section 2 of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4001) is amended--
(1) by striking paragraph (1);
(2) in paragraph (2), by striking ``(2) The term'' and
inserting the following:
``(5) Indian tribe.--The term'';
(3) in paragraph (3), by striking ``(3) The term'' and
inserting the following:
``(8) Secretary.--The term'';
(4) in paragraph (4), by striking ``(4) The term'' and
inserting the following:
``(6) Office.--The term'';
(5) in paragraph (5), by striking ``(5) The term'' and
inserting the following:
``(2) Bureau.--The term'';
(6) in paragraph (6), by striking ``(6) The term'' and
inserting the following:
``(3) Department.--The term'';
(7) by moving paragraphs (2), (3), (5), (6), and (8) (as
redesignated by this subsection) so as to appear in numerical
order;
(8) by inserting before paragraph (2) (as redesignated by
paragraph (5)) the following:
``(1) Beneficial owner.--The term `beneficial owner' means
an Indian tribe or member of an Indian tribe that is the
beneficial owner of Indian trust assets.'';
(9) by inserting after paragraph (3) (as redesignated by
paragraph (6)) the following:
``(4) Deputy secretary.--The term `Deputy Secretary' means
the Deputy Secretary for Trust Management and Reform appointed
under section 307(a)(2).'';
(10) by inserting after paragraph (6) (as redesignated by
paragraph (4)) the following:
``(7) Reform office.--The term `Reform Office' means the
Office of Trust Reform Implementation and Oversight established
by section 307(e).''; and
(11) by adding at the end the following:
``(9) Task force.--The term `Task Force' means the Tribal
Task Force for Trust Reform established under section 307(a).
``(10) Trust assets.--The term `trust assets' means all
tangible property including land, minerals, coal, oil and gas,
forest resources, agricultural resources, water and water
sources, and fish and wildlife held by the Secretary for the
benefit of an Indian tribe or an individual member of an Indian
tribe pursuant to Federal law.
``(11) Trust funds.--The term `trust funds' means all funds
held by the Secretary for the benefit of an Indian tribe or and
individual member of an Indian tribe pursuant to Federal law.
``(12) Trustee.--The term `trustee' means the Secretary or
any other person that is authorized to act as a trustee for
Indian trust assets and trust funds.''.
SEC. 404. RESPONSIBILITIES OF SECRETARY.
Section 102 of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4011) is amended to read as follows:
``SEC. 4011. RESPONSIBILITIES OF SECRETARY.
``(a) Accounting for Daily and Annual Balances of Indian Trust
Funds.--
``(1) In general.--The Secretary shall account for the
daily and annual balances of all trust funds that are deposited
or invested pursuant to the Act of June 24, 1938 (25 U.S.C.
162a).
``(2) Periodic statement of performance.--
``(A) In general.--Not later than 20 business days
after the close of a calendar quarter, the Secretary
shall provide a statement of performance to each Indian
tribe and member of Indian tribe with respect to which
funds are deposited or invested pursuant to the Act of
June 24, 1938 (25 U.S.C. 162a).
``(B) Requirements.--Each statement under
subparagraph (A) shall identify, with respect to the
period covered by the statement--
``(i) the source, type, and status of the
funds;
``(ii) the beginning balance of the funds;
``(iii) the gains and losses of the funds;
``(iv) receipts and disbursements of the
funds; and
``(v) the ending balance of the funds.
``(3) Annual audit.--With respect to each account
containing trust funds in an amount in excess of $1,000, the
Secretary shall--
``(A) conduct, for each fiscal year, an audit of
all trust funds described in paragraph (1); and
``(B) include, in the first statement of
performance completed under paragraph (2) after
completion of the audit, a letter describing the
results of the audit.
``(b) Additional Responsibilities.--In addition to the
responsibilities described in subsection (a), subject to the
availability of appropriations, the Secretary, in carrying out the
trust responsibility of the United States, shall, at a minimum--
``(1) provide for adequate systems for accounting for and
reporting trust fund balances;
``(2) provide for adequate controls over receipts and
disbursements;
``(3) provide for periodic, timely reconciliations of
financial records to ensure the accuracy of account
information;
``(4) determine accurate cash balances;
``(5) prepare and supply to account holders periodic
account statements;
``(6) establish and publish in the Federal Register
consistent policies and procedures for trust fund management
and accounting;
``(7) provide adequate staffing, supervision, and training
for trust fund management and accounting; and
``(8) manage natural resources located within the
boundaries of Indian reservations and trust land.''.
SEC. 405. INDIAN PARTICIPATION IN TRUST FUND ACTIVITIES.
Title II of the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4021 et seq.) is amended--
(1) by striking sections 202 and 203; and
(2) by inserting after section 201 the following:
``SEC. 202. PARTICIPATION IN TRUST FUND AND TRUST ASSET MANAGEMENT
ACTIVITIES BY INDIAN TRIBES.
``(a) Planning Program.--To meet the purposes of this title, an
Indian Trust Fund and Trust Asset Management and Monitoring Plan (in
this section referred to as the `Plan') shall be developed and
implemented as follows:
``(1) Pursuant to a self-determination contract or compact
under section 102 of the Indian Self-Determination Act (25
U.S.C. 450f) or section 403 of the Indian Self Determination
and Education Assistance Act (25 U.S.C. 458cc), an Indian tribe
may develop or implement a Plan to provide for management of
the trust funds and assets (or portions of trust funds or
assets) of which the Indian tribe is the beneficial owner.
Subject to the provisions of paragraphs (3) and (4), the tribe
shall have broad discretion in designing and carrying out the
planning process.
``(2) To include in a Plan particular trust funds or assets
held by multiple individuals, an Indian tribe shall obtain the
approval of a majority of the individuals who hold an interest
in any such trust funds or assets.
``(3) The Plan shall be submitted to the Secretary for
approval pursuant to the Indian Self-Determination Act (25
U.S.C. 450f et seq.).
``(4) If an Indian tribe chooses not to develop or
implement a Plan, the Secretary shall, at the request of the
Indian tribe, develop or implement, as appropriate, a Plan in
close consultation with the affected Indian tribe.
``(5) Whether developed directly by the Indian tribe or by
the Secretary, the Plan shall--
``(A) determine the amount and source of funds held
in trust;
``(B) identify and include an inventory of trust
assets based on the information available to the Indian
tribe and the Secretary;
``(C) identify specific tribal goals and
objectives;
``(D) establish management objectives for the funds
and assets held in trust;
``(E) define critical values of the Indian tribe
and its members and provide identified management
objectives;
``(F) identify actions to be taken to reach
established objectives;
``(G) use existing survey documents, reports and
other research from Federal agencies, tribal community
colleges, and land grant universities; and
``(H)(i) be completed not later than 3 years after
the date of initiation of activity to establish the
Plan; and
``(ii) be revised periodically thereafter as
necessary to accomplish the purposes of this Act.
``(b) Management and Administration.--Plans developed and approved
under subsection (a) shall govern the management and administration of
funds and assets (or portions of funds and assets) held in trust by the
Bureau and the Indian tribal government.
``(c) Plan Does Not Terminate Trust.--Developing or implementing a
Plan shall not be construed or deemed to constitute a termination of
the trust status of the assets or funds that are included in, or
subject to, the Plan.
``(d) Liability.--An Indian tribe managing and administering trust
funds and trust assets in a manner that is consistent with an approved
Plan shall not be liable for waste or loss of an asset or funds that
are included in such Plan.
``(e) Indian Participation in Management Activities.--
``(1) Tribal recognition.--The Secretary shall conduct all
management activities of funds and assets held in trust in
accordance with goals and objectives set forth in a Plan
approved pursuant to and in accordance with all tribal laws and
ordinances, except in specific instances where such compliance
would be contrary to the trust responsibility of the United
States.
``(2) Tribal laws.--
``(A) In general.--Unless otherwise prohibited by
Federal law, the Secretary shall comply with tribal law
pertaining to the management of funds and assets held
in trust.
``(B) Duties.--The Secretary shall--
``(i) provide assistance in the enforcement
of tribal laws described in subparagraph (A);
``(ii) provide notice of such tribal laws
to persons or entities dealing with tribal
funds and assets held in trust; and
``(iii) upon the request of an Indian
tribe, require appropriate Federal officials to
appear in tribal forums.
``(3) Waiver of regulations.--In any case in which a
regulation or administrative policy of the Department of the
Interior conflicts with the objectives of the Plan, or with a
tribal law, the Secretary shall waive the application of such
regulation or administrative policy unless such waiver would
constitute a violation of a Federal statute or judicial
decision or would conflict with the Secretary's trust
responsibility under Federal law.
``(4) Sovereign immunity.--This section does not constitute
a waiver of the sovereign immunity of the United States, nor
does it authorize tribal justice systems to review actions of
the Secretary.
``(5) Trust responsibility.--Nothing in this section shall
be construed to diminish or expand the trust responsibility of
the United States toward Indian funds and assets held in trust,
or any legal obligation or remedy resulting from such funds and
assets.
``(f) Report.--
``(1) In general.--Not later than 180 days after the
enactment of this section, and annually thereafter, the
Secretary shall submit a report to the Committee on Indian
Affairs of the Senate and the Committee on Resources of the
House of Representatives.
``(2) Contents.--The report required under paragraph (1)
shall detail the following:
``(A) The efforts of the Department to implement
this section.
``(B) The nature and extent of consultation between
the Department, Tribes, and individual Indians with
respect to implementation of this section.
``(C) Any recommendations of the Department for
further changes to this Act, accompanied by a record of
consultation with Tribes and individual Indians
regarding such recommendations.''.
SEC. 406. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.
(a) In General.--Section 302 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4042) is amended to read as
follows:
``SEC. 302. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.
``(a) Establishment.--
``(1) In general.--There is established within the
Department the position of Deputy Secretary for Trust
Management and Reform.
``(2) Appointment and removal.--
``(A) Appointment.--The Deputy Secretary shall be
appointed by the President, by and with the advice and
consent of the Senate.
``(B) Term.--The Deputy Secretary shall be
appointed for a term of 6 years.
``(C) Removal.--The Deputy Secretary may be removed
only for good cause.
``(3) Administrative authority.--The Deputy Secretary shall
report directly to the Secretary.
``(4) Compensation.--The Deputy Secretary shall be paid at
a rate determined by the Secretary to be appropriate for the
position, but not less than the rate of basic pay prescribed
for Level II of the Executive Schedule under section 5313 of
title 5, United States Code.
``(b) Duties.--The Deputy Secretary shall--
``(1) oversee all trust fund and trust asset matters of the
Department, including--
``(A) administration and management of the Reform
Office;
``(B) financial and human resource matters of the
Reform Office; and
``(C) all duties relating to trust fund and trust
asset matters; and
``(2) engage in appropriate government-to-government
relations and consultations with Indian tribes and individual
trust asset and trust fund account holders on matters involving
trust asset and trust fund management and reform within the
Department.
``(c) Staff.--In carrying out this section, the Deputy Secretary
may hire such staff having expertise in trust asset and trust fund
management, financial organization and management, and tribal policy as
the Deputy Secretary determines is necessary to carry out this title.
``(d) Effect on Duties of Other Officials.--
``(1) In general.--Except as provided in paragraph (2),
nothing in this section shall be construed to diminish any
responsibility or duty of the Assistant Secretary of the
Interior for Indian Affairs, or any other Federal official,
relating to any duty of the Assistant Secretary or official
established under this Act or any other provision of law.
``(2) Trust asset and trust fund management and reform.--
Notwithstanding any other provision of law, the Deputy
Secretary shall have overall management and oversight authority
on matters of the Department relating to trust asset and trust
fund management and reform (including matters that, as of the
day before the date of enactment of the Indian Trust Asset and
Trust Fund Management and Reform Act of 2003, were carried out
by the Commissioner of Indian Affairs).
``(e) Office of Trust Reform Implementation and Oversight.--
``(1) Establishment.--There is established within the
Office of the Secretary the Office of Trust Reform
Implementation and Oversight.
``(2) Reform office head.--The Reform Office shall be
headed by the Deputy Secretary.
``(3) Duties.--The Reform Office shall--
``(A) supervise and direct the day-to-day
activities of the Assistant Secretary of the Interior
for Indian Affairs, the Commissioner of Reclamation,
the Director of the Bureau of Land Management, and the
Director of the Minerals Management Service, to the extent they
administer or manage any Indian trust assets or funds;
``(B) administer, in accordance with title II, all
trust properties, funds, and other assets held by the
United States for the benefit of Indian tribes and
individual members of Indian tribes;
``(C) require the development and maintenance of an
accurate inventory of all trust funds and trust assets;
``(D) ensure the prompt posting of revenue derived
from a trust fund or trust asset for the benefit of
each Indian tribe (or individual member of each Indian
tribe) that owns a beneficial interest in the trust
fund or trust asset;
``(E) ensure that all trust fund accounts are
audited at least annually, and more frequently as
determined to be necessary by the Deputy Secretary;
``(F) ensure that the Assistant Secretary of the
Interior for Indian Affairs, the Director of the Bureau
of Land Management, the Commissioner of Reclamation,
and the Director of the Minerals Management Service
provide to the Secretary current and accurate
information relating to the administration and
management of trust funds and trust assets;
``(G) provide for regular consultation with trust
fund account holders on the administration of trust
funds and trust assets to ensure, to the maximum extent
practicable in accordance with applicable law and a
Plan approved under section 202, the greatest return on
those funds and assets for the trust fund account
holders; and
``(H) enter into contracts and compacts under
section 102 of the Indian Self-Determination Act (25
U.S.C. 450f) or section 403 of the Indian Self
Determination and Education Assistance Act (25 U.S.C.
458cc) to provide for the management of trust assets
and trust funds by Indian tribes pursuant to a Trust
Fund and Trust Asset Management and Monitoring Plan
developed under section 202 of this Act.
``(f) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.''.
(b) Conforming Amendments.--
(1) Title III of the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4041 et seq.) is amended by
striking the title heading and inserting the following:
``TITLE III--REFORMS RELATING TO TRUST RESPONSIBILITY''.
(2) Section 301(1) of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4041(1)) is amended by
striking ``by establishing in the Department of this Interior
an Office of Special Trustee for American Indians'' and
inserting ``by directing the Deputy Secretary''.
(3) Section 303 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4043) is amended--
(A) by striking the section heading and inserting
the following:
``SEC. 303. ADDITIONAL AUTHORITIES AND FUNCTIONS OF THE DEPUTY
SECRETARY.'';
(B) in subsection (a)(1), by striking ``section
302(b) of this title'' and inserting ``section
302(a)(2)'';
(C) in subsection (e)--
(i) by striking the subsection heading and
inserting the following:
``(e) Access of Deputy Secretary.--''; and
(ii) by striking ``and his staff'' and
inserting ``and staff of the Deputy
Secretary''; and
(D) by striking ``Special Trustee'' each place it
appears and inserting ``Deputy Secretary''.
(4) Sections 304 and 305 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4044, 4045) are
amended by striking ``Special Trustee'' each place it appears
and inserting ``Deputy Secretary''.
SEC. 407. ADVISORY BOARD AND TRIBAL TASK FORCE.
The American Indian Trust Fund Management Reform Act of 1994 is
amended by striking section 306 (25 U.S.C. 4046) and inserting the
following:
``SEC. 306. TRIBAL TASK FORCE ON TRUST REFORM.
``(a) Establishment.--As soon as practicable after the date of
enactment of this section, the Deputy Secretary shall establish a
Tribal Task Force on Trust Reform.
``(b) Composition.--
``(1) In general.--The Task Force shall be composed of 18
members and 12 alternates, of which--
``(A) 6 members shall--
``(i) serve as primary members; and
``(ii) be selected by the Deputy Secretary;
``(B) 12 members shall--
``(i) serve as primary members; and
``(ii) be selected by members of federally-
recognized Indian tribes located within the
regions of the Bureau represented by the
members; and
``(C) the 12 alternates shall--
``(i) serve as alternate members for the
members described in subparagraph (B); and
``(ii) be selected by members of federally-
recognized Indian tribes located within the
regions of the Bureau represented by the
members.
``(2) Regional representation.--Each region of the Bureau
shall be represented by a primary member and alternate member
on the Task Force.
``(3) Term.--A member of the Task Force shall serve for a
term of 2 years.
``(c) Duties.--The Task Force, in cooperation with the Deputy
Secretary, shall--
``(1) not later than 1 year after the date of enactment of
this section, conduct and submit to Congress a report on a
study of appropriate standards and procedures for inventorying
and management of trust assets; and
``(2) not later than 2 years after the date of enactment of
this section, identify, and submit to Congress a report that
includes recommendations relating to, modifications to existing
law relating to trust reform, including recommendations on
matters such as--
``(A) the need for an independent commission to
oversee the administration of trust funds and assets;
and
``(B) the most beneficial administrative structure
and procedures.
``(d) FACA.--The Task Force shall not be subject to the Federal
Advisory Committee Act (5 U.S.C. App.).
``(e) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.
``(f) Termination of Authority.--The Task Force and authority of
the Task Force under this section terminate on the date that is 3 years
after the date of enactment of the Indian Trust Asset and Trust Fund
Management and Reform Act of 2003.''.
SEC. 408. REGULATIONS.
(a) In General.--Not later than 1 year after the date of enactment
of this Act, the Secretary of the Interior shall promulgate regulations
to carry out the amendments made by this title.
(b) Active Participation.--
(1) In general.--All regulations promulgated under
subsection (a) shall be developed through a negotiated
rulemaking in accordance with subchapter II of chapter 5, and
chapter 7, of title 5, United States Code (commonly known as
the ``Administrative Procedure Act'').
(2) Participants.--With the exception of the Secretary of
the Interior, each participant in the negotiated rulemaking
under paragraph (1) shall be a federally-recognized Indian
tribe.
SEC. 409. NO EFFECT ON CERTAIN JUDICIAL DECISION.
Nothing in this title or any amendment made by this title limits or
otherwise affects any finding, remedy, jurisdiction, authority, or
discretion of any court with respect to Cobell v. Norton, Civ. No. 96-
1285 (RCL).
TITLE V--RACIAL PROFILING
SEC. 501. SENSE OF THE SENATE ON RACIAL PROFILING.
(a) Findings.--The Senate finds the following:
(1) The vast majority of police officers and other law
enforcement agents nationwide discharge their duties and
protect their communities in a professional manner, without
bias.
(2) The use by some law enforcement agents of race,
ethnicity, or national origin in deciding which persons should
be subject to traffic stops and other discretionary law
enforcement interventions (referred to in this section as
``racial profiling'') is wrong. Statistical evidence from
throughout the United States demonstrates that such racial
profiling is a real and measurable phenomenon.
(3) The vast majority of individuals subjected to such
stops and interventions based on race, ethnicity, or national
origin are found to be law-abiding. Therefore, racial profiling
is not an effective means to uncover criminal activity.
(4) Racial profiling harms individuals subjected to it
because the individuals experience fear, anxiety, humiliation,
anger, resentment, and cynicism when unjustifiably treated as
criminal suspects.
(5) Racial profiling damages the criminal justice system as
a whole by undermining public confidence and trust in the
police, the courts, and criminal law.
(6) President Bush, in his first address to a joint session
of Congress on February 27, 2001, said that the practice of
racial profiling is wrong and pledged to end the practice.
(7) Attorney General John Ashcroft, as recently as July 25,
2002, made a commitment to work with Congress, to get a bill to
the President's desk that will make clear that racial profiling
is wrong and should be banned in the United States.
(b) Sense of the Senate.--It is the sense of the Senate that
Congress should enact legislation--
(1) to ban the practice of racial profiling; and
(2) to require Federal, State, and local law enforcement to
take steps to prevent the practice.
TITLE VI--PAYCHECK FAIRNESS
SEC. 601. SHORT TITLE.
This title may be cited as the ``Paycheck Fairness Act''.
SEC. 602. FINDINGS.
Congress makes the following findings:
(1) Women have entered the workforce in record numbers.
(2) Even today, women earn significantly lower pay than men
for work on jobs that require equal skill, effort, and
responsibility and that are performed under similar working
conditions. These pay disparities exist in both the private and
governmental sectors. In many instances, the pay disparities
can only be due to continued intentional discrimination or the
lingering effects of past discrimination.
(3) The existence of such pay disparities--
(A) depresses the wages of working families who
rely on the wages of all members of the family to make
ends meet;
(B) prevents the optimum utilization of available
labor resources;
(C) has been spread and perpetuated, through
commerce and the channels and instrumentalities of
commerce, among the workers of the several States;
(D) burdens commerce and the free flow of goods in
commerce;
(E) constitutes an unfair method of competition in
commerce;
(F) leads to labor disputes burdening and
obstructing commerce and the free flow of goods in
commerce;
(G) interferes with the orderly and fair marketing
of goods in commerce; and
(H) in many instances, may deprive workers of equal
protection on the basis of sex in violation of the 5th
and 14th amendments.
(4)(A) Artificial barriers to the elimination of
discrimination in the payment of wages on the basis of sex
continue to exist decades after the enactment of the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.) and the Civil
Rights Act of 1964 (42 U.S.C. 2000a et seq.).
(B) Elimination of such barriers would have positive
effects, including--
(i) providing a solution to problems in the economy
created by unfair pay disparities;
(ii) substantially reducing the number of working
women earning unfairly low wages, thereby reducing the
dependence on public assistance;
(iii) promoting stable families by enabling all
family members to earn a fair rate of pay;
(iv) remedying the effects of past discrimination
on the basis of sex and ensuring that in the future
workers are afforded equal protection on the basis of
sex; and
(v) ensuring equal protection pursuant to Congress'
power to enforce the 5th and 14th amendments.
(5) With increased information about the provisions added
by the Equal Pay Act of 1963 and wage data, along with more
effective remedies, women will be better able to recognize and
enforce their rights to equal pay for work on jobs that require
equal skill, effort, and responsibility and that are performed
under similar working conditions.
(6) Certain employers have already made great strides in
eradicating unfair pay disparities in the workplace and their
achievements should be recognized.
SEC. 603. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.
(a) Required Demonstration for Affirmative Defense.--Section
6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)(1))
is amended by striking ``(iv) a differential'' and all that follows
through the period and inserting the following: ``(iv) a differential
based on a bona fide factor other than sex, such as education, training
or experience, except that this clause shall apply only if--
``(I) the employer demonstrates that--
``(aa) such factor--
``(AA) is job-related with
respect to the position in
question; or
``(BB) furthers a
legitimate business purpose,
except that this item shall not
apply where the employee
demonstrates that an
alternative employment practice
exists that would serve the
same business purpose without
producing such differential and
that the employer has refused
to adopt such alternative
practice; and
``(bb) such factor was actually
applied and used reasonably in light of
the asserted justification; and
``(II) upon the employer succeeding under
subclause (I), the employee fails
to demonstrate that the differential produced by the reliance of the
employer on such factor is itself the result of discrimination on the
basis of sex by the employer.
``An employer that is not otherwise in compliance with this
paragraph may not reduce the wages of any employee in order to
achieve such compliance.''.
(b) Application of Provisions.--Section 6(d)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended by adding at the
end the following: ``The provisions of this subsection shall apply to
applicants for employment if such applicants, upon employment by the
employer, would be subject to any provisions of this section.''.
(c) Elimination of Establishment Requirement.--Section 6(d) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)) is amended--
(1) by striking ``, within any establishment in which such
employees are employed,''; and
(2) by striking ``in such establishment'' each place it
appears.
(d) Nonretaliation Provision.--Section 15(a)(3) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
(1) by striking ``or has'' each place it appears and
inserting ``has''; and
(2) by inserting before the semicolon the following: ``, or
has inquired about, discussed, or otherwise disclosed the wages
of the employee or another employee, or because the employee
(or applicant) has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
hearing, or action under section 6(d)''.
(e) Enhanced Penalties.--Section 16(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following:
``Any employer who violates section 6(d) shall additionally be
liable for such compensatory or punitive damages as may be
appropriate, except that the United States shall not be liable
for punitive damages.'';
(2) in the sentence beginning ``An action to'', by striking
``either of the preceding sentences'' and inserting ``any of
the preceding sentences of this subsection'';
(3) in the sentence beginning ``No employees shall'', by
striking ``No employees'' and inserting ``Except with respect
to class actions brought to enforce section 6(d), no
employee'';
(4) by inserting after the sentence referred to in
paragraph (3), the following: ``Notwithstanding any other
provision of Federal law, any action brought to enforce section
6(d) may be maintained as a class action as provided by the
Federal Rules of Civil Procedure.''; and
(5) in the sentence beginning ``The court in''--
(A) by striking ``in such action'' and inserting
``in any action brought to recover the liability
prescribed in any of the preceding sentences of this
subsection''; and
(B) by inserting before the period the following:
``, including expert fees''.
(f) Action by Secretary.--Section 16(c) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting ``or, in the case of a violation
of section 6(d), additional compensatory or punitive
damages,'' before ``and the agreement''; and
(B) by inserting before the period the following:
``, or such compensatory or punitive damages, as
appropriate'';
(2) in the second sentence, by inserting before the period
the following: ``and, in the case of a violation of section
6(d), additional compensatory or punitive damages'';
(3) in the third sentence, by striking ``the first
sentence'' and inserting ``the first or second sentence''; and
(4) in the last sentence--
(A) by striking ``commenced in the case'' and
inserting ``commenced--
``(1) in the case'';
(B) by striking the period and inserting
``; or''; and
(C) by adding at the end the following:
``(2) in the case of a class action brought to enforce
section 6(d), on the date on which the individual becomes a
party plaintiff to the class action''.
SEC. 604. TRAINING.
The Equal Employment Opportunity Commission and the Office of
Federal Contract Compliance Programs, subject to the availability of
funds appropriated under section 609, shall provide training to
Commission employees and affected individuals and entities on matters
involving discrimination in the payment of wages.
SEC. 605. RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and provide
information to employers, labor organizations, and the general public
concerning the means available to eliminate pay disparities between men
and women, including--
(1) conducting and promoting research to develop the means
to correct expeditiously the conditions leading to the pay
disparities;
(2) publishing and otherwise making available to employers,
labor organizations, professional associations, educational
institutions, the media, and the general public the findings
resulting from studies and other materials, relating to eliminating the
pay disparities;
(3) sponsoring and assisting State and community
informational and educational programs;
(4) providing information to employers, labor
organizations, professional associations, and other interested
persons on the means of eliminating the pay disparities;
(5) recognizing and promoting the achievements of
employers, labor organizations, and professional associations
that have worked to eliminate the pay disparities; and
(6) convening a national summit to discuss, and consider
approaches for rectifying, the pay disparities.
SEC. 606. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNITION PROGRAM.
(a) Guidelines.--
(1) In general.--The Secretary of Labor shall develop
guidelines to enable employers to evaluate job categories based
on objective criteria such as educational requirements, skill
requirements, independence, working conditions, and responsibility,
including decisionmaking responsibility and de facto supervisory
responsibility.
(2) Use.--The guidelines developed under paragraph (1)
shall be designed to enable employers voluntarily to compare
wages paid for different jobs to determine if the pay scales
involved adequately and fairly reflect the educational
requirements, skill requirements, independence, working
conditions, and responsibility for each such job with the goal
of eliminating unfair pay disparities between occupations
traditionally dominated by men or women.
(3) Publication.--The guidelines shall be developed under
paragraph (1) and published in the Federal Register not later
than 180 days after the date of enactment of this Act.
(b) Employer Recognition.--
(1) Purpose.--It is the purpose of this subsection to
emphasize the importance of, encourage the improvement of, and
recognize the excellence of employer efforts to pay wages to
women that reflect the real value of the contributions of such
women to the workplace.
(2) In general.--To carry out the purpose of this
subsection, the Secretary of Labor shall establish a program
under which the Secretary shall provide for the recognition of
employers who, pursuant to a voluntary job evaluation conducted
by the employer, adjust their wage scales (such adjustments
shall not include the lowering of wages paid to men) using the
guidelines developed under subsection (a) to ensure that women
are paid fairly in comparison to men.
(3) Technical assistance.--The Secretary of Labor may
provide technical assistance to assist an employer in carrying
out an evaluation under paragraph (2).
(c) Regulations.--The Secretary of Labor shall promulgate such
rules and regulations as may be necessary to carry out this section.
SEC. 607. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE
WORKPLACE.
(a) In General.--There is established the Secretary of Labor's
National Award for Pay Equity in the Workplace, which shall be
evidenced by a medal bearing the inscription ``Secretary of Labor's
National Award for Pay Equity in the Workplace''. The medal shall be of
such design and materials, and bear such additional inscriptions, as
the Secretary of Labor may prescribe.
(b) Criteria for Qualification.--To qualify to receive an award
under this section a business shall--
(1) submit a written application to the Secretary of Labor,
at such time, in such manner, and containing such information
as the Secretary may require, including at a minimum
information that demonstrates that the business has made
substantial effort to eliminate pay disparities between men and women,
and deserves special recognition as a consequence; and
(2) meet such additional requirements and specifications as
the Secretary of Labor determines to be appropriate.
(c) Making and Presentation of Award.--
(1) Award.--After receiving recommendations from the
Secretary of Labor, the President or the designated
representative of the President shall annually present the
award described in subsection (a) to businesses that meet the
qualifications described in subsection (b).
(2) Presentation.--The President or the designated
representative of the President shall present the award under
this section with such ceremonies as the President or the
designated representative of the President may determine to be
appropriate.
(d) Business.--In this section, the term ``business'' includes--
(1)(A) a corporation, including a nonprofit corporation;
(B) a partnership;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to an entity described in any
of subparagraphs (A) through (D);
(2) an entity carrying out an education referral program, a
training program, such as an apprenticeship or management
training program, or a similar program; and
(3) an entity carrying out a joint program, formed by a
combination of any entities described in paragraph (1) or (2).
SEC. 608. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION.
Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-8) is
amended by adding at the end the following:
``(f)(1) Not later than 18 months after the date of enactment of
this subsection, the Commission shall--
``(A) complete a survey of the data that is currently
available to the Federal Government relating to employee pay
information for use in the enforcement of Federal laws
prohibiting pay discrimination and, in consultation with other
relevant Federal agencies, identify additional data collections
that will enhance the enforcement of such laws; and
``(B) based on the results of the survey and consultations
under subparagraph (A), issue regulations to provide for the
collection of pay information data from employers as described
by the sex, race, and national origin of employees.
``(2) In implementing paragraph (1), the Commission shall have as
its primary consideration the most effective and efficient means for
enhancing the enforcement of Federal laws prohibiting pay
discrimination. For this purpose, the Commission shall consider factors
including the imposition of burdens on employers, the frequency of
required reports (including which employers should be required to
prepare reports), appropriate protections for maintaining data
confidentiality, and the most effective format for the data collection
reports.''.
SEC. 609. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title.
TITLE VII--EMPLOYMENT NON-DISCRIMINATION
SEC. 701. SHORT TITLE.
This title may be cited as the ``Employment Non-Discrimination Act
of 2003''.
SEC. 702. PURPOSES.
The purposes of this title 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. 703. DEFINITIONS.
(a) In General.--In this title:
(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 title 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. 704. 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 title.
SEC. 705. 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 title, or because
such individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this
title.
SEC. 706. BENEFITS.
This title does not apply to the provision of employee benefits to
an individual for the benefit of the domestic partner of such
individual.
SEC. 707. 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. 708. 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 title, an order or consent decree entered for a
violation of this title may not include a quota, or preferential
treatment to an individual, based on sexual orientation.
SEC. 709. RELIGIOUS EXEMPTION.
This title shall not apply to a religious organization.
SEC. 710. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS'
PREFERENCES.
(a) Armed Forces.--
(1) Employment.--In this title, 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 title does not repeal or modify
any Federal, State, territorial, or local law creating a special right
or preference concerning employment for a veteran.
SEC. 711. CONSTRUCTION.
(a) Employer Rules and Policies.--Nothing in this title 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 title 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. 712. ENFORCEMENT.
(a) Enforcement Powers.--With respect to the administration and
enforcement of this title in the case of a claim alleged by an
individual for a violation of this title--
(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
title 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
title, 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
title 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 title.
SEC. 713. 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 title.
(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 title 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 712, for equitable relief that is authorized under
this title. 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 title, 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. 714. ATTORNEYS' FEES.
Notwithstanding any other provision of this title, in an action or
administrative proceeding for a violation of this title, an entity
described in section 712(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. 715. 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 712(b) of this Act apply, that
describe the applicable provisions of this title in the manner
prescribed by, and subject to the penalty provided under, section 711
of the Civil Rights Act of 1964.
SEC. 716. 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 title.
(b) Librarian of Congress.--The Librarian of Congress shall have
authority to issue regulations to carry out this title with respect to
employees and applicants for employment of the Library of Congress.
(c) Board.--The Board referred to in section 712(a)(3) shall have
authority to issue regulations to carry out this title, 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 title with respect to covered employees,
as defined in section 411(c) of title 3, United States Code.
SEC. 717. RELATIONSHIP TO OTHER LAWS.
This title 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. 718. SEVERABILITY.
If any provision of this title, or the application of the provision
to any person or circumstance, is held to be invalid, the remainder of
this title and the application of the provision to any other person or
circumstance shall not be affected by the invalidity.
SEC. 719. EFFECTIVE DATE.
This title shall take effect 60 days after the date of enactment of
this Act and shall not apply to conduct occurring before the effective
date.
TITLE VIII--GENETIC NONDISCRIMINATION
SEC. 801. SHORT TITLE.
This title may be cited as the ``Genetic Nondiscrimination in
Health Insurance and Employment Act''.
Subtitle A--Prohibition of Health Insurance Discrimination on the Basis
of Protected Genetic Information
SEC. 811. AMENDMENTS TO EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974.
(a) Prohibition of Health Insurance Discrimination on the Basis of
Genetic Services or Protected Genetic Information.--
(1) No enrollment restriction for genetic services.--
Section 702(a)(1)(F) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1182(a)(1)(F)) is amended by inserting
before the period ``(or information about a request for or the
receipt of genetic services by such individual or family member
of such individual)''.
(2) No discrimination in group rate based on protected
genetic information.--
(A) In general.--Subpart B of part 7 of subtitle B
of title I of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1185 et seq.) is amended by
adding at the end the following:
``SEC. 714. PROHIBITING DISCRIMINATION AGAINST GROUPS ON THE BASIS OF
PROTECTED GENETIC INFORMATION.
``A group health plan, and a health insurance issuer offering group
health insurance coverage in connection with a group health plan, shall
not deny eligibility to a group or adjust premium or contribution rates
for a group on the basis of protected genetic information concerning an
individual in the group (or information about a request for or the
receipt of genetic services by such individual or family member of such
individual).''.
(B) Conforming amendments.--
(i) Section 702(b)(2)(A) of the Employee
Retirement Income Security Act of 1974 (29
U.S.C. 1182(b)) is amended to read as follows:
``(A) to restrict the amount that an employer may
be charged for coverage under a group health plan,
except as provided in section 714; or''.
(ii) Section 732(a) of the Employee
Retirement Income Security Act of 1974 (29
U.S.C. 1191a(a)) is amended by striking
``section 711'' and inserting ``subsections
(a)(1)(F), (b) (with respect to cases relating
to genetic information or information about a
request or receipt of genetic services by an
individual or family member of such
individual), (c), (d), (e), (f), or (g) of
section 702, section 711 and section 714''.
(b) Limitations on Genetic Testing and on Collection and Disclosure
of Protected Genetic Information.--Section 702 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1182) is amended by
adding at the end the following:
``(c) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic
testing.--A group health plan, or a health insurance issuer
offering health insurance coverage in connection with a group
health plan, shall not request or require an individual or a
family member of such individual to undergo a genetic test.
``(2) Rule of construction.--Nothing in this part shall be
construed to limit the authority of a health care professional,
who is providing treatment with respect to an individual and
who is employed by a group health plan or a health insurance
issuer, to request that such individual or family member of
such individual undergo a genetic test. Such a health care
professional shall not require that such individual or family
member undergo a genetic test.
``(d) Collection of Protected Genetic Information.--Except as
provided in subsections (f) and (g), a group health plan, or a health
insurance issuer offering health insurance coverage in connection with
a group health plan, shall not request, require, collect, or purchase
protected genetic information concerning an individual (or information
about a request for or the receipt of genetic services by such
individual or family member of such individual).
``(e) Disclosure of Protected Genetic Information.--A group health
plan, or a health insurance issuer offering health insurance coverage
in connection with a group health plan, shall not disclose protected
genetic information about an individual (or information about a request
for or the receipt of genetic services by such individual or family
member of such individual) to--
``(1) any entity that is a member of the same controlled
group as such issuer or plan sponsor of such group health plan;
``(2) any other group health plan or health insurance
issuer or any insurance agent, third party administrator, or
other person subject to regulation under State insurance laws;
``(3) the Medical Information Bureau or any other person
that collects, compiles, publishes, or otherwise disseminates
insurance information;
``(4) the individual's employer or any plan sponsor; or
``(5) any other person the Secretary may specify in
regulations.
``(f) Information for Payment for Genetic Services.--
``(1) In general.--With respect to payment for genetic
services conducted concerning an individual or the coordination
of benefits, a group health plan, or a health insurance issuer
offering group health insurance coverage in connection with a
group health plan, may request that the individual provide the
plan or issuer with evidence that such services were performed.
``(2) Rule of construction.--Nothing in paragraph (1) shall
be construed to--
``(A) permit a group health plan or health
insurance issuer to request (or require) the results of
the services referred to in such paragraph; or
``(B) require that a group health plan or health
insurance issuer make payment for services described in
such paragraph where the individual involved has
refused to provide evidence of the performance of such
services pursuant to a request by the plan or issuer in
accordance with such paragraph.
``(g) Information for Payment of Other Claims.--With respect to the
payment of claims for benefits other than genetic services, a group
health plan, or a health insurance issuer offering group health
insurance coverage in connection with a group health plan, may request
that an individual provide protected genetic information so long as
such information--
``(1) is used solely for the payment of a claim;
``(2) is limited to information that is directly related to
and necessary for the payment of such claim and the claim would
otherwise be denied but for the protected genetic information;
and
``(3) is used only by an individual (or individuals) within
such plan or issuer who needs access to such information for
purposes of payment of a claim.
``(h) Rules of Construction.--
``(1) Collection or disclosure authorized by individual.--
The provisions of subsections (d) (regarding collection) and
(e) shall not apply to an individual if the individual (or
legal representative of the individual) provides prior,
knowing, voluntary, and written authorization for the
collection or disclosure of protected genetic information.
``(2) Disclosure for health care treatment.--Nothing in
this section shall be construed to limit or restrict the
disclosure of protected genetic information from a health care
provider to another health care provider for the purpose of
providing health care treatment to the individual involved.
``(i) Definitions.--In this section:
``(1) Controlled group.--The term `controlled group' means
any group treated as a single employer under subsection (b),
(c), (m), or (o) of section 414 of the Internal Revenue Code of
1986.
``(2) Group health plan, health insurance issuer.--The
terms `group health plan' and `health insurance issuer' include
a third party administrator or other person acting for or on behalf of
such plan or issuer.''.
(c) Enforcement.--Section 502 (29 U.S.C. 1132) is amended by adding
at the end the following:
``(n) Violation of Genetic Discrimination or Genetic Disclosure
Provisions.--In any action under this section against any administrator
of a group health plan, or health insurance issuer offering group
health insurance coverage in connection with a group health plan
(including any third party administrator or other person acting for or
on behalf of such plan or issuer) alleging a violation of subsection
(a)(1)(F), (b) (with respect to cases relating to genetic information
or information about a request or receipt of genetic services by an
individual or family member of such individual), (c), (d), (e), (f), or
(g) of section 702, or section 714, the court may award any appropriate
legal or equitable relief. Such relief may include a requirement for
the payment of attorney's fees and costs, including the costs of expert
witnesses.
``(o) Civil Penalty.--The monetary provisions of section
308(b)(2)(C) of Public Law 101-336 (42 U.S.C. 12188(b)(2)(C)) shall
apply for purposes of the Secretary enforcing the provisions referred
to in subsection (n), except that any such relief awarded shall be paid
only into the general fund of the Treasury.''.
(d) Preemption.--Section 731 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1191) is amended--
(1) in subsection (a)(1), by inserting ``or (e)'' after
``subsection (b)''; and
(2) by adding at the end the following:
``(e) Special Rule in Case of Genetic Information.--With respect to
group health insurance coverage offered by a health insurance issuer,
the provisions of this part relating to genetic information (including
information about a request for or the receipt of genetic services by
an individual or a family member of such individual) shall not be
construed to supersede any provision of State law which establishes,
implements, or continues in effect a standard, requirement, or remedy
that more completely--
``(1) protects the confidentiality of genetic information
(including information about a request for or the receipt of
genetic services by an individual or a family member of such
individual) or the privacy of an individual or a family member
of the individual with respect to genetic information
(including information about a request for or the receipt of
genetic services by an individual or a family member of such
individual) than does this part; or
``(2) prohibits discrimination on the basis of genetic
information than does this part.''.
(e) Definitions.--Section 733(d) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1191b(d)) is amended by adding at the
end the following:
``(5) Family member.--The term `family member' means with
respect to an individual--
``(A) the spouse of the individual;
``(B) a dependent child of the individual,
including a child who is born to or placed for adoption
with the individual; or
``(C) any other individuals related by blood to the
individual or to the spouse or child described in
subparagraph (A) or (B).
``(6) Genetic information.--The term `genetic information'
means information about genes, gene products, or inherited
characteristics that may derive from an individual or a family
member of such individual (including information about a
request for or the receipt of genetic services by such
individual or family member of such individual).
``(7) Genetic services.--The term `genetic services' means
health services, including genetic tests, provided to obtain,
assess, or interpret genetic information for diagnostic and
therapeutic purposes, and for genetic education and counseling.
``(8) Genetic test.--
``(A) In general.--The term `genetic test' means
the analysis of human DNA, RNA, chromosomes, proteins,
or metabolites that detect genotypes, mutations, or
chromosomal changes.
``(B) Certain tests.--Notwithstanding subparagraph
(A), the conducting of metabolic tests that are not
intended to reveal protected genetic information shall
not be considered a violation of section 702(c) for
purposes of such subparagraph regardless of the results
of the tests. Test results that are protected genetic
information shall be subject to the applicable
provisions of this part.
``(9) Protected genetic information.--The term `protected
genetic information' means--
``(A) information about an individual's genetic
tests;
``(B) information about genetic tests of family
members of the individual; or
``(C) information about the occurrence of a disease
or disorder in family members.''.
(f) Limitations With Respect to Definition.--Section 702 of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1182), as
amended by subsection (b), is further amended by adding at the end the
following:
``(j) Limitations.--As defined in section 933(d)(9), the term
protected genetic information shall not include--
``(1) information about the sex or age of the individual;
``(2) information about chemical, blood, or urine analyses
of the individual, unless these analyses are genetic tests; or
``(3) information about physical exams of the individual,
and other information that indicates the current health status
of the individual.''.
(g) Amendment Concerning Supplemental Excepted Benefits.--Section
732(c)(3) of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1191a(c)(3)) is amended by inserting ``, other than the
requirements of subsections (a)(1)(F), (b) (in cases relating to
genetic information or information about a request for or the receipt
of genetic services by an individual or a family member of such
individual), (c), (d), (e), (f) and (g) of section 702 and section
714,'' after ``The requirements of this part''.
(h) Effective Date.--
(1) In general.--Except as provided in this section, this
section and the amendments made by this section shall apply
with respect to group health plans for plan years beginning
after October 1, 2003.
(2) Special rule for collective bargaining agreements.--In
the case of a group health plan maintained pursuant to one or
more collective bargaining agreements between employee
representatives and one or more employers ratified before the
date of the enactment of this Act, this section and the
amendments made by this section shall not apply to plan years
beginning before the later of--
(A) the date on which the last of the collective
bargaining agreements relating to the plan terminates
(determined without regard to any extension thereof
agreed to after the date of the enactment of this Act),
or
(B) October 1, 2003.
For purposes of subparagraph (A), any plan amendment made
pursuant to a collective bargaining agreement relating to the
plan which amends the plan solely to conform to any requirement
of the amendments made by this section shall not be treated as
a termination of such collective bargaining agreement.
SEC. 812. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.
(a) Amendments Relating to the Group Market.--
(1) Prohibition of health insurance discrimination on the
basis of protected genetic information or genetic services.--
(A) No enrollment restriction for genetic
services.--Section 2702(a)(1)(F) of the Public Health
Service Act (42 U.S.C. 300gg-1(a)(1)(F)) is amended by
inserting before the period the following: ``(or
information about a request for or the receipt of
genetic services by an individual or a family member of
such individual)''.
(B) No discrimination in group rate based on
protected genetic information.--
(i) In general.--Subpart 2 of part A of
title XXVII of the Public Health Service (42
U.S.C. 300gg-4 et seq.) is amended by adding at
the end the following:
``SEC. 2707. PROHIBITING DISCRIMINATION AGAINST GROUPS ON THE BASIS OF
PROTECTED GENETIC INFORMATION.
``A group health plan, and a health insurance issuer offering group
health insurance coverage in connection with a group health plan, shall
not deny eligibility to a group or adjust premium or contribution rates
for a group on the basis of protected genetic information concerning an
individual in the group (or information about a request for or the
receipt of genetic services by such individual or family member of such
individual).''.
(ii) Conforming amendments.--
(I) Section 2702(b)(2)(A) of the
Public Health Service Act (42 U.S.C.
300gg-1(b)(2)(A)) is amended to read as
follows:
``(A) to restrict the amount that an employer may
be charged for coverage under a group health plan,
except as provided in section 2707; or''.
(II) Section 2721(a) of the Public
Health Service Act (42 U.S.C. 300gg-
21(a)) is amended by inserting ``(other
than subsections (a)(1)(F), (b) (with
respect to cases relating to genetic
information or information about a
request or receipt of genetic services
by an individual or family member of
such individual), (c), (d), (e), (f),
or (g) of section 2702 and section
2707)'' after ``subparts 1 and 3''.
(2) Limitations on genetic testing and on collection and
disclosure of protected genetic information.--Section 2702 of
the Public Health Service Act (42 U.S.C. 300gg-1) is amended by
adding at the end the following:
``(c) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic
testing.--A group health plan, or a health insurance issuer
offering health insurance coverage in connection with a group
health plan, shall not request or require an individual or a
family member of such individual to undergo a genetic test.
``(2) Rule of construction.--Nothing in this title shall be
construed to limit the authority of a health care professional,
who is providing treatment with respect to an individual and
who is employed by a group health plan or a health insurance
issuer, to request that such individual or family member of
such individual undergo a genetic test. Such a health care
professional shall not require that such individual or family
member undergo a genetic test.
``(d) Collection of Protected Genetic Information.--Except as
provided in subsections (f) and (g), a group health plan, or a health
insurance issuer offering health insurance coverage in connection with
a group health plan, shall not request, require, collect, or
purchase protected genetic information concerning an individual (or
information about a request for or the receipt of genetic services by
such individual or family member of such individual).
``(e) Disclosure of Protected Genetic Information.--A group health
plan, or a health insurance issuer offering health insurance coverage
in connection with a group health plan, shall not disclose protected
genetic information about an individual (or information about a request
for or the receipt of genetic services by such individual or family
member of such individual) to--
``(1) any entity that is a member of the same controlled
group as such issuer or plan sponsor of such group health plan;
``(2) any other group health plan or health insurance
issuer or any insurance agent, third party administrator, or
other person subject to regulation under State insurance laws;
``(3) the Medical Information Bureau or any other person
that collects, compiles, publishes, or otherwise disseminates
insurance information;
``(4) the individual's employer or any plan sponsor; or
``(5) any other person the Secretary may specify in
regulations.
``(f) Information for Payment for Genetic Services.--
``(1) In general.--With respect to payment for genetic
services conducted concerning an individual or the coordination
of benefits, a group health plan, or a health insurance issuer
offering group health insurance coverage in connection with a
group health plan, may request that the individual provide the
plan or issuer with evidence that such services were performed.
``(2) Rule of construction.--Nothing in paragraph (1) shall
be construed to--
``(A) permit a group health plan or health
insurance issuer to request (or require) the results of
the services referred to in such paragraph; or
``(B) require that a group health plan or health
insurance issuer make payment for services described in
such paragraph where the individual involved has
refused to provide evidence of the performance of such
services pursuant to a request by the plan or issuer in
accordance with such paragraph.
``(g) Information for Payment of Other Claims.--With respect to the
payment of claims for benefits other than genetic services, a group
health plan, or a health insurance issuer offering group health
insurance coverage in connection with a group health plan, may request
that an individual provide protected genetic information so long as
such information--
``(1) is used solely for the payment of a claim;
``(2) is limited to information that is directly related to
and necessary for the payment of such claim and the claim would
otherwise be denied but for the protected genetic information;
and
``(3) is used only by an individual (or individuals) within
such plan or issuer who needs access to such information for
purposes of payment of a claim.
``(h) Rules of Construction.--
``(1) Collection or disclosure authorized by individual.--
The provisions of subsections (d) (regarding collection) and
(e) shall not apply to an individual if the individual (or
legal representative of the individual) provides prior, knowing,
voluntary, and written authorization for the collection or disclosure
of protected genetic information.
``(2) Disclosure for health care treatment.--Nothing in
this section shall be construed to limit or restrict the
disclosure of protected genetic information from a health care
provider to another health care provider for the purpose of
providing health care treatment to the individual involved.
``(i) Definitions.--In this section:
``(1) Controlled group.--The term `controlled group' means
any group treated as a single employer under subsection (b),
(c), (m), or (o) of section 414 of the Internal Revenue Code of 1986.
``(2) Group health plan, health insurance issuer.--The
terms `group health plan' and `health insurance issuer' include
a third party administrator or other person acting for or on
behalf of such plan or issuer.''.
(3) Definitions.--Section 2791(d) of the Public Health
Service Act (42 U.S.C. 300gg-91(d)) is amended by adding at the
end the following new paragraphs:
``(15) Family member.--The term `family member' means with
respect to an individual--
``(A) the spouse of the individual;
``(B) a dependent child of the individual,
including a child who is born to or placed for adoption
with the individual; and
``(C) all other individuals related by blood to the
individual or the spouse or child described in
subparagraph (A) or (B).
``(16) Genetic information.--The term `genetic information'
means information about genes, gene products, or inherited
characteristics that may derive from an individual or a family
member of such individual (including information about a
request for or the receipt of genetic services by such
individual or family member of such individual).
``(17) Genetic services.--The term `genetic services' means
health services, including genetic tests, provided to obtain,
assess, or interpret genetic information for diagnostic and
therapeutic purposes, and for genetic education and
counselling.
``(18) Genetic test.--
``(A) In general.--The term `genetic test' means
the analysis of human DNA, RNA, chromosomes, proteins,
or metabolites that detect genotypes, mutations, or
chromosomal changes.
``(B) Certain tests.--Notwithstanding subparagraph
(A), the conducting of metabolic tests that are not
intended to reveal protected genetic information shall
not be considered a violation of section 2702(c) or
2754(a) for purposes of such subparagraph regardless of
the results of the tests. Test results that are
protected genetic information shall be subject to the
applicable provisions of this title.
``(19) Protected genetic information.--The term `protected
genetic information' means--
``(A) information about an individual's genetic
tests;
``(B) information about genetic tests of family
members of the individual; or
``(C) information about the occurrence of a disease
or disorder in family members.''.
(4) Limitations with Respect to Definition.--Section 2702
of the Public Health Service Act (42 U.S.C. 300gg-1), as
amended by paragraph (2), is further amended by adding at the
end the following:
``(j) Limitations.--As defined in section 2791(d)(19), the term
protected genetic information shall not include--
``(1) information about the sex or age of the individual;
``(2) information about chemical, blood, or urine analyses
of the individual, unless these analyses are genetic tests; or
``(3) information about physical exams of the individual,
and other information that indicates the current health status
of the individual.''.
(b) Amendment Relating to the Individual Market.--The first subpart
3 of part B of title XXVII of the Public Health Service Act (42 U.S.C.
300gg-51 et seq.) is amended--
(1) by redesignating such subpart as subpart 2; and
(2) by adding at the end the following:
``SEC. 2753. PROHIBITION OF HEALTH INSURANCE DISCRIMINATION AGAINST
INDIVIDUALS ON THE BASIS OF PROTECTED GENETIC
INFORMATION.
``(a) Ineligibility To Enroll.--A health insurance issuer offering
health insurance coverage in the individual market shall not establish
rules for eligibility to enroll in individual health insurance coverage
that are based on protected genetic information concerning the
individual (or information about a request for or the receipt of
genetic services by such individual or family member of such
individual).
``(b) In Premium Rates.--A health insurance issuer offering health
insurance coverage in the individual market shall not adjust premium
rates on the basis of protected genetic information concerning an
individual (or information about a request for or the receipt of
genetic services by such individual or family member of such
individual).
``SEC. 2754. LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND
DISCLOSURE OF PROTECTED GENETIC INFORMATION.
``(a) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic
testing.--A health insurance issuer offering health insurance
coverage in the individual market shall not request or require
an individual or a family member of such individual to undergo
a genetic test.
``(2) Rule of construction.--Nothing in this title shall be
construed to limit the authority of a health care professional,
who is providing treatment with respect to an individual and
who is employed by a group health plan or a health insurance
issuer, to request that such individual or family member of
such individual undergo a genetic test. Such a health care
professional shall not require that such individual or family
member undergo a genetic test.
``(b) Collection of Protected Genetic Information.--Except as
provided in subsections (d) and (e), a health insurance issuer offering
health insurance coverage in the individual market shall not request,
require, collect, or purchase protected genetic information concerning
an individual (or information about a request for or the receipt of
genetic services by such individual or family member of such
individual).
``(c) Disclosure of Protected Genetic Information.--A health
insurance issuer offering health insurance coverage in the individual
market shall not disclose protected genetic information about an
individual (or information about a request for or the receipt of
genetic services by such individual or family member of such
individual) to--
``(1) any entity that is a member of the same controlled
group as such issuer or plan sponsor of such group health plan;
``(2) any other group health plan or health insurance
issuer or any insurance agent, third party administrator, or
other person subject to regulation under State insurance laws;
``(3) the Medical Information Bureau or any other person
that collects, compiles, publishes, or otherwise disseminates
insurance information;
``(4) the individual's employer or any plan sponsor; or
``(5) any other person the Secretary may specify in
regulations.
``(d) Information for Payment for Genetic Services.--
``(1) In general.--With respect to payment for genetic
services conducted concerning an individual or the coordination
of benefits, a health insurance issuer offering health
insurance coverage in the individual market may request that
the individual provide the plan or issuer with evidence that
such services were performed.
``(2) Rule of construction.--Nothing in paragraph (1) shall
be construed to--
``(A) permit a health insurance issuer to request
(or require) the results of the services referred to in
such paragraph; or
``(B) require that a health insurance issuer make
payment for services described in such paragraph where
the individual involved has refused to provide evidence
of the performance of such services pursuant to a
request by the plan or issuer in accordance with such
paragraph.
``(e) Information for Payment of Other Claims.--With respect to the
payment of claims for benefits other than genetic services, a health
insurance issuer offering health insurance coverage in the individual
market may request that an individual provide protected genetic
information so long as such information--
``(1) is used solely for the payment of a claim;
``(2) is limited to information that is directly related to
and necessary for the payment of such claim and the claim would
otherwise be denied but for the protected genetic information;
and
``(3) is used only by an individual (or individuals) within
such plan or issuer who needs access to such information for
purposes of payment of a claim.
``(f) Rules of Construction.--
``(1) Collection or disclosure authorized by individual.--
The provisions of subsections (c) (regarding collection) and
(d) shall not apply to an individual if the individual (or
legal representative of the individual) provides prior,
knowing, voluntary, and written authorization for the
collection or disclosure of protected genetic information.
``(2) Disclosure for health care treatment.--Nothing in
this section shall be construed to limit or restrict the
disclosure of protected genetic information from a health care
provider to another health care provider for the purpose of
providing health care treatment to the individual involved.
``(g) Definitions.--In this section:
``(1) Controlled group.--The term `controlled group' means
any group treated as a single employer under subsection (b),
(c), (m), or (o) of section 414 of the Internal Revenue Code of
1986.
``(2) Group health plan, health insurance issuer.--The
terms `group health plan' and `health insurance issuer' include
a third party administrator or other person acting for or on
behalf of such plan or issuer.''.
(c) Enforcement.--
(1) Group plans.--Section 2722 of the Public Health Service
Act (42 U.S.C. 300gg-22) is amended by adding at the end the
following:
``(c) Violation of Genetic Discrimination or Genetic Disclosure
Provisions.--In any action under this section against any administrator
of a group health plan, or health insurance issuer offering group
health insurance coverage in connection with a group health plan
(including any third party administrator or other person acting for or
on behalf of such plan or issuer) alleging a violation of subsections
(a)(1)(F), (b) (with respect to cases relating to genetic information
or information about a request or receipt of genetic services by an
individual or family member of such individual), (c), (d), (e), (f), or
(g) of section 2702 and section 2707 the court may award any
appropriate legal or equitable relief. Such relief may include a
requirement for the payment of attorney's fees and costs, including the
costs of expert witnesses.
``(d) Civil Penalty.--The monetary provisions of section
308(b)(2)(C) of Public Law 101-336 (42 U.S.C. 12188(b)(2)(C)) shall
apply for purposes of the Secretary enforcing the provisions referred
to in subsection (c), except that any such relief awarded shall be paid
only into the general fund of the Treasury.''.
(2) Individual plans.--Section 2761 of the Public Health
Service Act (42 U.S.C. 300gg-45) is amended by adding at the
end the following:
``(c) Violation of Genetic Discrimination or Genetic Disclosure
Provisions.--In any action under this section against any health
insurance issuer offering health insurance coverage in the individual
market (including any other person acting for or on behalf of such
issuer) alleging a violation of sections 2753 and 2754 the court in
which the action is commenced may award any appropriate legal or
equitable relief. Such relief may include a requirement for the payment
of attorney's fees and costs, including the costs of expert witnesses.
``(d) Civil Penalty.--The monetary provisions of section
308(b)(2)(C) of Public Law 101-336 (42 U.S.C. 12188(b)(2)(C)) shall
apply for purposes of the Secretary enforcing the provisions referred
to in subsection (c), except that any such relief awarded shall be paid
only into the general fund of the Treasury.''.
(d) Preemption.--
(1) Group market.--Section 2723 of the Public Health
Service Act (42 U.S.C. 300gg-23) is amended--
(A) in subsection (a)(1), by inserting ``or (e)''
after ``subsection (b)''; and
(B) by adding at the end the following:
``(e) Special Rule in Case of Genetic Information.--With respect to
group health insurance coverage offered by a health insurance issuer,
the provisions of this part relating to genetic information (including
information about a request for or the receipt of genetic services by
an individual or a family member of such individual) shall not be
construed to supersede any provision of State law which establishes,
implements, or continues in effect a standard, requirement, or remedy
that more completely--
``(1) protects the confidentiality of genetic information
(including information about a request for or the receipt of
genetic services by an individual or a family member of such
individual) or the privacy of an individual or a family member
of the individual with respect to genetic information
(including information about a request for or the receipt of
genetic services by an individual or a family member of such
individual) than does this part; or
``(2) prohibits discrimination on the basis of genetic
information than does this part.''.
(2) Individual market.--Section 2762 of the Public Health
Service Act (42 U.S.C. 300gg-46) is amended--
(A) in subsection (a), by inserting ``and except as
provided in subsection (c),'' after ``Subject to
subsection (b),''; and
(B) by adding at the end the following:
``(c) Special Rule in Case of Genetic Information.--With respect to
individual health insurance coverage offered by a health insurance
issuer, the provisions of this part (or part C insofar as it applies to
this part) relating to genetic information (including information about
a request for or the receipt of genetic services by an individual or a
family member of such individual) shall not be construed to supersede
any provision of State law (as defined in section 2723(d)) which
establishes, implements, or continues in effect a standard,
requirement, or remedy that more completely--
``(1) protects the confidentiality of genetic information
(including information about a request for or the receipt of
genetic services of an individual or a family member of such
individual) or the privacy of an individual or a family member
of the individual with respect to genetic information
(including information about a request for or the receipt of
genetic services by an individual or a family member of such
individual) than does this part (or part C insofar as it
applies to this part); or
``(2) prohibits discrimination on the basis of genetic
information than does this part (or part C insofar as it
applies to this part).''.
(e) Elimination of Option of Non-Federal Governmental Plans To Be
Excepted From Requirements Concerning Genetic Information.--Section
2721(b)(2) of the Public Health Service Act (42 U.S. C. 300gg-21(b)(2))
is amended--
(1) in subparagraph (A), by striking ``If the plan
sponsor'' and inserting ``Except as provided in subparagraph
(D), if the plan sponsor''; and
(2) by adding at the end the following:
``(D) Election not applicable to requirements
concerning genetic information.--The election described
in subparagraph (A) shall not be available with respect
to the provisions of subsections (a)(1)(F), (c), (d),
(e), (f), and (g) of section 2702 and section 2707, and
the provisions of section 2702(b) to the extent that
they apply to genetic information (or information about
a request for or the receipt of genetic services by an
individual or a family member of such individual).''.
(f) Amendment Concerning Supplemental Excepted Benefits.--
(1) Group market.--Section 2721(d)(3) of the Public Health
Service Act (42 U.S.C. 300gg-23(d)(3)) is amended by inserting
``, other than the requirements of subsections (a)(1)(F), (b)
(in cases relating to genetic information or information about
a request for or the receipt of genetic services by an
individual or a family member of such individual)), (c), (d),
(e), (f) and (g) of section 2702 and section 2707,'' after
``The requirements of this part''.
(2) Individual market.--Section 2763(b) of the Public
Health Service Act (42 U.S.C. 300gg-47(b)) is amended--
(A) by striking ``The requirements of this part''
and inserting the following:
``(1) In general.--Except as provided in paragraph (2), the
requirements of this part''; and
(B) by adding at the end the following:
``(2) Limitation.--The requirements of sections 2753 and
2754 shall apply to excepted benefits described in section
2791(c)(4).''.
(g) Effective Date.--
(1) In general.--The amendments made by this section shall
apply with respect to--
(A) group health plans, and health insurance
coverage offered in connection with group health plans,
for plan years beginning; and
(B) health insurance coverage offered, sold,
issued, renewed, in effect, or operated in the
individual market, after;
October 1, 2003.
(2) Special rule for collective bargaining agreements.--In
the case of a group health plan maintained pursuant to one or
more collective bargaining agreements between employee
representatives and one or more employers ratified before the
date of the enactment of this Act, the amendments made by this
section shall not apply to plan years beginning before the
later of--
(A) the date on which the last of the collective
bargaining agreements relating to the plan terminates
(determined without regard to any extension thereof
agreed to after the date of the enactment of this Act);
or
(B) October 1, 2003.
For purposes of subparagraph (A), any plan amendment made
pursuant to a collective bargaining agreement relating to the
plan which amends the plan solely to conform to any requirement
of the amendments made by this section shall not be treated as
a termination of such collective bargaining agreement.
SEC. 813. AMENDMENTS TO INTERNAL REVENUE CODE OF 1986.
(a) Prohibition of Health Insurance Discrimination on the Basis of
Genetic Services or Protected Genetic Information.--
(1) No enrollment restriction for genetic services.--
Section 9802(a)(1)(F) of the Internal Revenue Code of 1986 is
amended by inserting before the period ``(or information about
a request for or the receipt of genetic services by such
individual or family member of such individual)''.
(2) No discrimination in group rate based on protected
genetic information.--
(A) In general.--Subchapter B of chapter 100 of the
Internal Revenue Code of 1986 is amended by adding at
the end the following:
``SEC. 9813. PROHIBITING DISCRIMINATION AGAINST GROUPS ON THE BASIS OF
PROTECTED GENETIC INFORMATION.
``A group health plan shall not deny eligibility to a group or
adjust premium or contribution rates for a group on the basis of
protected genetic information concerning an individual in the group (or
information about a request for or the receipt of genetic services by
such individual or family member of such individual).''.
(B) Conforming amendments.--
(i) Section 9802(b)(2)(A) of the Internal
Revenue Code of 1986 is amended to read as
follows:
``(A) to restrict the amount that an employer may
be charged for coverage under a group health plan,
except as provided in section 9813; or''.
(ii) Section 9831(a) of the Internal
Revenue Code of 1986 is amended by inserting
``(other than subsections (a)(1)(F), (b) (with
respect to cases relating to genetic
information or information about a request or
receipt of genetic services by an individual or
family member of such individual), (d), (e),
(f), (g), or (h) of section 9802 or section
9813) after ``chapter''.
(b) Limitations on Genetic Testing and on Collection and Disclosure
of Protected Genetic Information.--Section 9802 of the Internal Revenue
Code of 1986 is amended by adding at the end the following:
``(d) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic
testing.--A group health plan may not request or require an
individual or a family member of such individual to undergo a
genetic test.
``(2) Rule of construction.--Nothing in this chapter shall
be construed to limit the authority of a health care
professional, who is providing treatment with respect to an
individual and who is employed by a group health plan, to
request that such individual or family member of such
individual undergo a genetic test. Such a health care
professional shall not require that such individual or family
member undergo a genetic test.
``(e) Collection of Protected Genetic Information.--Except as
provided in subsections (g) and (h), a group health plan shall not
request, require, collect, or purchase protected genetic information
concerning an individual (or information about a request for or the
receipt of genetic services by such individual or family member of such
individual).
``(f) Disclosure of Protected Genetic Information.--A group health
plan shall not disclose protected genetic information about an
individual (or information about a request for or the receipt of
genetic services by such individual or family member of such
individual) to--
``(1) any entity that is a member of the same controlled
group as such issuer or plan sponsor of such group health plan;
``(2) any other group health plan or health insurance
issuer or any insurance agent, third party administrator, or
other person subject to regulation under State insurance laws;
``(3) the Medical Information Bureau or any other person
that collects, compiles, publishes, or otherwise disseminates
insurance information;
``(4) the individual's employer or any plan sponsor; or
``(5) any other person the Secretary may specify in
regulations.
``(g) Information for Payment for Genetic Services.--
``(1) In general.--With respect to payment for genetic
services conducted concerning an individual or the coordination
of benefits, a group health plan may request that the
individual provide the plan with evidence that such services
were performed.
``(2) Rule of construction.--Nothing in paragraph (1) shall
be construed to--
``(A) permit a group health plan to request (or
require) the results of the services referred to in
such paragraph; or
``(B) require that a group health plan make payment
for services described in such paragraph where the
individual involved has refused to provide evidence of
the performance of such services pursuant to a request
by the plan in accordance with such paragraph.
``(h) Information for Payment of Other Claims.--With respect to the
payment of claims for benefits other than genetic services, a group
health plan may request that an individual provide protected genetic
information so long as such information--
``(1) is used solely for the payment of a claim;
``(2) is limited to information that is directly related to
and necessary for the payment of such claim and the claim would
otherwise be denied but for the protected genetic information;
and
``(3) is used only by an individual (or individuals) within
such plan or issuer who needs access to such information for
purposes of payment of a claim.
``(i) Rules of Construction.--
``(1) Collection or disclosure authorized by individual.--
The provisions of subsections (e) (regarding collection) and
(f) shall not apply to an individual if the individual (or
legal representative of, the individual) provides prior,
knowing, voluntary, and written authorization for the
collection or disclosure of protected genetic information.
``(2) Disclosure for health care treatment.--Nothing in
this section shall be construed to limit or restrict the
disclosure of protected genetic information from a health care
provider to another health care provider for the purpose of
providing health care treatment to the individual involved.
``(j) Definitions.--In this section:
``(1) Controlled group.--The term `controlled group' means
any group treated as a single employer under subsections (b),
(c), (m), or (o) of section 414.
``(2) Group health plan, health insurance issuer.--The
terms `group health plan' and `health insurance issuer' include
a third party administrator or other person acting for or on
behalf of such plan or issuer.''.
(c) Definitions.--Section 9832(d) of the Internal Revenue Code of
1986 is amended by adding at the end the following:
``(6) Family member.--The term `family member' means with
respect to an individual--
``(A) the spouse of the individual;
``(B) a dependent child of the individual,
including a child who is born to or placed for adoption
with the individual; and
``(C) all other individuals related by blood to the
individual or the spouse or child described in
subparagraph (A) or (B).
``(7) Genetic information.--The term `genetic information'
means information about genes, gene products, or inherited
characteristics that may derive from an individual or a family
member of such individual (including information about a
request for or the receipt of genetic services by such
individual or family member of such individual).
``(8) Genetic services.--The term `genetic services' means
health services, including genetic tests, provided to obtain,
assess, or interpret genetic information for diagnostic and
therapeutic purposes, and for genetic education and counseling.
``(9) Genetic test.--
``(A) In general.--The term `genetic test' means
the analysis of human DNA, RNA, chromosomes, proteins,
or metabolites that detect genotypes, mutations, or
chromosomal changes.
``(B) Certain tests.--Notwithstanding subparagraph
(A), the conducting of metabolic tests that are not
intended to reveal protected genetic information shall
not be considered a violation of section 9802(d) for
purposes of such subparagraph regardless of the results
of the tests. Test results that are protected genetic
information shall be subject to the applicable
provisions of this chapter.
``(10) Protected genetic information.--The term `protected
genetic information' means--
``(A) information about an individual's genetic
tests;
``(B) information about genetic tests of family
members of the individual; or
``(C) information about the occurrence of a disease
or disorder in family members.
(d) Limitations With Respect to Definition.--Section 9802 of the
Internal Revenue Code of 1986, as amended by subsection (b), is further
amended by adding at the end the following:
``(k) Limitations.--As defined in section 9832(d)(10), the term
protected genetic information shall not include--
``(1) information about the sex or age of the individual;
``(2) information about chemical, blood, or urine analyses
of the individual, unless these analyses are genetic tests; or
``(3) information about physical exams of the individual,
and other information that indicates the current health status
of the individual.''.
(e) Effective Date.--
(1) In general.--Except as provided in this section, this
section and the amendments made by this section shall apply
with respect to group health plans for plan years beginning
after October 1, 2003.
(2) Special rule for collective bargaining agreements.--In
the case of a group health plan maintained pursuant to one or
more collective bargaining agreements between employee
representatives and one or more employers ratified before the
date of the enactment of this Act, this section and the
amendments made by this section shall not apply to plan years
beginning before the later of--
(A) the date on which the last of the collective
bargaining agreements relating to the plan terminates
(determined without regard to any extension thereof
agreed to after the date of the enactment of this Act),
or
(B) October 1, 2003.
For purposes of subparagraph (A), any plan amendment made
pursuant to a collective bargaining agreement relating to the
plan which amends the plan solely to conform to any requirement
of the amendments made by this section shall not be treated as
a termination of such collective bargaining agreement.
SEC. 814. AMENDMENTS TO TITLE XVIII OF THE SOCIAL SECURITY ACT RELATING
TO MEDIGAP.
(a) Nondiscrimination.--
(1) In general.--Section 1882(s)(2) of the Social Security
Act (42 U.S.C. 1395ss(s)(2)) is amended by adding at the end
the following:
``(E)(i) An issuer of a medicare supplemental
policy shall not deny or condition the issuance or
effectiveness of the policy, and shall not discriminate
in the pricing of the policy (including the adjustment of premium
rates) of an eligible individual on the basis of protected genetic
information concerning the individual (or information about a request
for, or the receipt of, genetic services by such individual or family
member of such individual).
``(ii) For purposes of clause (i), the terms
`family member', `genetic services', and `protected
genetic information' shall have the meanings given such
terms in subsection (v).''.
(2) Effective date.--The amendment made by paragraph (1)
shall apply with respect to a policy for policy years beginning
after October 1, 2003.
(b) Limitations on Genetic Testing and on Collection and Disclosure
of Protected Genetic Information.--
(1) In general.--Section 1882 of the Social Security Act
(42 U.S.C. 1395ss) is amended by adding at the end the
following:
``(v) Limitations on Genetic Testing and on Collection and
Disclosure of Protected Genetic Information.--
``(1) Genetic testing.--
``(A) Limitation on requesting or requiring genetic
testing.--An issuer of a medicare supplemental policy
shall not request or require an individual or a family
member of such individual to undergo a genetic test.
``(B) Rule of construction.--Nothing in this title
shall be construed to limit the authority of a health
care professional, who is providing treatment with
respect to an individual and who is employed by an
issuer of a medicare supplemental policy, to request
that such individual or family member of such
individual undergo a genetic test. Such a health care
professional shall not require that such individual or
family member undergo a genetic test.
``(2) Collection of protected genetic information.--Except
as provided in paragraphs (4) and (5), an issuer of a medicare
supplemental policy shall not request, require, collect, or
purchase protected genetic information concerning an individual
(or information about a request for or the receipt of genetic
services by such individual or family member of such
individual).
``(3) Disclosure of protected genetic information.--An
issuer of a medicare supplemental policy shall not disclose
protected genetic information about an individual (or
information about a request for or the receipt of genetic
services by such individual or family member of such
individual) to--
``(A) any entity that is a member of the same
controlled group as such issuer;
``(B) any issuer of a medicare supplemental policy,
group health plan or health insurance issuer, or any
insurance agent, third party administrator, or other
person subject to regulation under State insurance
laws;
``(C) the Medical Information Bureau or any other
person that collects, compiles, publishes, or otherwise
disseminates insurance information;
``(D) the individual's employer or any plan
sponsor; or
``(E) any other person the Secretary may specify in
regulations.
``(4) Information for payment for genetic services.--
``(A) In general.--With respect to payment for
genetic services conducted concerning an individual or
the coordination of benefits, an issuer of a medicare
supplemental policy may request that the individual
provide the issuer with evidence that such services
were performed.
``(B) Rule of construction.--Nothing in
subparagraph (A) shall be construed to--
``(i) permit an issuer to request (or
require) the results of the services referred
to in such subparagraph; or
``(ii) require that an issuer make payment
for services described in such subparagraph
where the individual involved has refused to
provide evidence of the performance of such
services pursuant to a request by the issuer in
accordance with such subparagraph.
``(5) Information for payment of other claims.--With
respect to the payment of claims for benefits other than
genetic services, an issuer of a medicare supplemental policy
may request that an individual provide protected genetic
information so long as such information--
``(A) is used solely for the payment of a claim;
``(B) is limited to information that is directly
related to and necessary for the payment of such claim
and the claim would otherwise be denied but for the protected genetic
information; and
``(C) is used only by an individual (or
individuals) within such issuer who needs access to
such information for purposes of payment of a claim.
``(6) Rules of construction.--
``(A) Collection or disclosure authorized by
individual.--The provisions of paragraphs (2)
(regarding collection) and (3) shall not apply to an
individual if the individual (or legal representative
of the individual) provides prior, knowing, voluntary,
and written authorization for the collection or
disclosure of protected genetic information.
``(B) Disclosure for health care treatment.--
Nothing in this section shall be construed to limit or
restrict the disclosure of protected genetic
information from a health care provider to another
health care provider for the purpose of providing
health care treatment to the individual involved.
``(7) Violation of genetic discrimination or genetic
disclosure provisions.--In any action under this subsection
against any administrator of a medicare supplemental policy
(including any third party administrator or other person acting
for or on behalf of such policy) alleging a violation of this
subsection, the court may award any appropriate legal or equitable
relief. Such relief may include a requirement for the payment of
attorney's fees and costs, including the costs of expert witnesses.
``(8) Civil penalty.--The monetary provisions of section
308(b)(2)(C) of Public Law 101-336 (42 U.S.C. 12188(b)(2)(C))
shall apply for purposes of the Secretary enforcing the
provisions of this subsection, except that any such relief
awarded shall be paid only into the general fund of the
Treasury.
``(9) Special rule in case of genetic information.--This
subsection (relating to genetic information or information
about a request for, or the receipt of, genetic services by an
individual or a family member of such individual) shall not be
construed to supersede any provision of State law
which establishes, implements, or continues in effect a standard,
requirement, or remedy that more completely--
``(A) protects the confidentiality of genetic
information (including information about a request for,
or the receipt of, genetic services by an individual or
a family member of such individual) or the privacy of
an individual or a family member of the individual with
respect to genetic information (including information
about a request for, or the receipt of, genetic
services by an individual or a family member of such
individual) than does this subsection; or
``(B) prohibits discrimination on the basis of
genetic information than does this subsection.
``(10) Definitions.--In this subsection:
``(A) Controlled group.--The term `controlled
group' means any group treated as a single employer
under subsection (b), (c), (m), or (o) of section 414
of the Internal Revenue Code of 1986.
``(B) Family member.--The term `family member'
means with respect to an individual--
``(i) the spouse of the individual;
``(ii) a dependent child of the individual,
including a child who is born to or placed for
adoption with the individual; or
``(iii) any other individuals related by
blood to the individual or to the spouse or
child described in clause (i) or (ii).
``(C) Genetic information.--The term `genetic
information' means information about genes, gene
products, or inherited characteristics that may derive
from an individual or a family member of such
individual (including information about a request for,
or the receipt of, genetic services by such individual
or family member of such individual).
``(D) Genetic services.--The term `genetic
services' means health services, including genetic
tests, provided to obtain, assess, or interpret genetic
information for diagnostic and therapeutic purposes,
and for genetic education and counseling.
``(E) Genetic test.--
``(i) In general.--The term `genetic test'
means the analysis of human DNA, RNA,
chromosomes, proteins, or metabolites that
detect genotypes, mutations, or chromosomal
changes.
``(ii) Certain tests.--Notwithstanding
subparagraph (A), the conducting of metabolic
tests that are not intended to reveal protected
genetic information shall not be considered a
violation of paragraph (1) regardless of the
results of the tests. Test results that are
protected genetic information shall be subject
to the applicable provisions of this
subsection.
``(F) Issuer of a medicare supplemental policy.--
The term `issuer of a medicare supplemental policy'
includes a third-party administrator or other person
acting for or on behalf of such issuer.
``(G) Protected genetic information.--The term
`protected genetic information' means--
``(i) information about an individual's
genetic tests;
``(ii) information about genetic tests of
family members of the individual; or
``(iii) information about the occurrence of
a disease or disorder in family members.
(2) Limitations with respect to definition.--Section
1882(v) of the Social Security Act (42 U.S.C. 1395ss), as added
by paragraph (1), is amended by adding at the end the following:
``(11) Limitations.--As defined in paragraph (10)(G), the
term protected genetic information shall not include--
``(A) information about the sex or age of the
individual;
``(B) information about chemical, blood, or urine
analyses of the individual, unless these analyses are
genetic tests; or
``(C) information about physical exams of the
individual, and other information that indicates the
current health status of the individual.''.
(3) Conforming amendment.--Section 1882(o) of the Social
Security Act (42 U.S.C. 1395ss(o)) is amended by adding at the
end the following:
``(4) The issuer of the medicare supplemental policy
complies with subsection (s)(2)(E) and subsection (v).''.
(4) Effective date.--The amendments made by this subsection
shall apply with respect to an issuer of a medicare
supplemental policy for policy years beginning after October 1,
2003.
(c) Transition Provisions.--
(1) In general.--If the Secretary of Health and Human
Services identifies a State as requiring a change to its
statutes or regulations to conform its regulatory program to
the changes made by this section, the State regulatory program
shall not be considered to be out of compliance with the
requirements of section 1882 of the Social Security Act due
solely to failure to make such change until the date specified
in paragraph (4).
(2) NAIC standards.--If, not later than June 30, 2003, the
National Association of Insurance Commissioners (in this
subsection referred to as the ``NAIC'') modifies its NAIC Model
Regulation relating to section 1882 of the Social Security Act
(referred to in such section as the 1991 NAIC Model Regulation, as
subsequently modified) to conform to the amendments made by this
section, such revised regulation incorporating the modifications shall
be considered to be the applicable NAIC model regulation (including the
revised NAIC model regulation and the 1991 NAIC Model Regulation) for
the purposes of such section.
(3) Secretary standards.--If the NAIC does not make the
modifications described in paragraph (2) within the period
specified in such paragraph, the Secretary of Health and Human
Services shall, not later than October 1, 2003, make the
modifications described in such paragraph and such revised
regulation incorporating the modifications shall be considered
to be the appropriate regulation for the purposes of such
section.
(4) Date specified.--
(A) In general.--Subject to subparagraph (B), the
date specified in this paragraph for a State is the
earlier of--
(i) the date the State changes its statutes
or regulations to conform its regulatory
program to the changes made by this section, or
(ii) October 1, 2003.
(B) Additional legislative action required.--In the
case of a State which the Secretary identifies as--
(i) requiring State legislation (other than
legislation appropriating funds) to conform its
regulatory program to the changes made in this
section, but
(ii) having a legislature which is not
scheduled to meet in 2003 in a legislative
session in which such legislation may be
considered,
the date specified in this paragraph is the first day
of the first calendar quarter beginning after the close
of the first legislative session of the State
legislature that begins on or after July 1, 2003. For
purposes of the previous sentence, in the case of a
State that has a 2-year legislative session, each year
of such session shall be deemed to be a separate
regular session of the State legislature.
Subtitle B--Prohibition of Employment Discrimination on the Basis of
Protected Genetic Information
SEC. 821. DEFINITIONS.
In this subtitle:
(1) Employee; employer; employment agency; labor
organization; member.--The terms ``employee'', ``employer'',
``employment agency'', and ``labor organization'' have the
meanings given such terms in section 701 of the Civil Rights
Act of 1964 (42 U.S.C. 2000e), except that the terms
``employee'' and ``employer'' shall also include the meanings
given such terms in section 717 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-16). The terms ``employee'' and ``member''
include an applicant for employment and an applicant for
membership in a labor organization, respectively.
(2) Family member.--The term ``family member'' means with
respect to an individual--
(A) the spouse of the individual;
(B) a dependent child of the individual, including
a child who is born to or placed for adoption with the
individual; or
(C) any other individuals related by blood to the
individual or to the spouse or child described in
subparagraph (A) or (B).
(3) Genetic monitoring.--The term ``genetic monitoring''
means the periodic examination of employees to evaluate
acquired modifications to their genetic material, such as
chromosomal damage or evidence of increased occurrence of
mutations, that may have developed in the course of employment
due to exposure to toxic substances in the workplace, in order
to identify, evaluate, and respond to the effects of or control
adverse environmental exposures in the workplace.
(4) Genetic services.--The term ``genetic services'' means
health services, including genetic tests, provided to obtain,
assess, or interpret genetic information for diagnostic and therapeutic
purposes, and for genetic education and counseling.
(5) Genetic test.--
(A) In general.--The term ``genetic test'' means
the analysis of human DNA, RNA, chromosomes, proteins,
or metabolites that detect genotypes, mutations, or
chromosomal changes.
(B) Certain tests.--Notwithstanding subparagraph
(A), the conducting of metabolic tests that are not
intended to reveal protected genetic information shall
not be considered a violation of 203(a)(3), 204(3),
205(3), or 206(3) regardless of the results of the
tests. Test results that are protected genetic
information shall be subject to the applicable
provisions of this subtitle.
(6) Protected genetic information.--The term ``protected
genetic information'' means--
(A) information about an individual's genetic
tests;
(B) information about genetic tests of family
members of the individual; or
(C) information about the occurrence of a disease
or disorder in family members.
SEC. 822. LIMITATIONS WITH RESPECT TO DEFINITION.
As defined in section 821(6), the term protected genetic
information shall not include--
(1) information about the sex or age of the individual; or
(2) information about chemical, blood, or urine analyses of
the individual, unless these analyses are genetic tests.
SEC. 823. EMPLOYER PRACTICES.
(a) In General.--It shall be an unlawful employment practice for an
employer (or a worker's compensation insurance issuer acting on the
employer's behalf)--
(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 protected
genetic information with respect to the individual or information about
a request for or the receipt of genetic services by such individual or
family member of such individual;
(2) to limit, segregate, or classify the employees of the
employer in any way that would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely
affect the status of the individual as an employee, because of
protected genetic information with respect to the individual,
or information about a request for or the receipt of genetic
services by such individual or family member of such
individual; or
(3) to request, require, collect or purchase protected
genetic information with respect to an individual or a family
member of the individual except--
(A) where used for genetic monitoring of biological
effects of toxic substances in the workplace, but only
if--
(i) the employee has provided prior,
knowing, voluntary, and written authorization;
(ii) the employee is informed of individual
monitoring results;
(iii) the monitoring conforms to any
genetic monitoring regulations that may be
promulgated by the Secretary of Labor pursuant
to the Occupational Safety and Health Act of
1970 (29 U.S.C. 651 et seq.) or the Federal
Mine Safety and Health Act of 1977 (30 U.S.C.
801 et seq.); and
(iv) the employer, excluding any licensed
health care professional that is involved in
the genetic monitoring program, receives the
results of the monitoring only in aggregate
terms that do not disclose the identity of
specific employees; or
(B) where health or genetic services are offered by
the employer and the employee provides prior, knowing,
voluntary, and written authorization, and only the
employee or family member of such employee receives the
results of such services; or
(C) with respect to an applicant who has been given
a conditional offer of employment or to an employee, an
employer may request, require, collect or purchase the
information described in section 821(6)(C) if--
(i) the request or requirement is
consistent with the Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.) or the
Rehabilitation Act of 1973 (29 U.S.C. 701 et
seq.);
(ii)(I) the information obtained is to be
used exclusively to assess whether further
medical evaluation is needed to diagnose a
current disease, or medical condition or
disorder; and
(II) such current disease, or medical
condition or disorder could prevent the
applicant or employee from performing the
essential functions of the position desired or
held; and
(III) the information described in such
section will not be disclosed to persons other
than medical personnel involved in or
responsible for assessing whether further
medical evaluation is needed to diagnose a
current disease, or medical condition or
disorder, except as otherwise permitted by this
subtitle.
(b) Limitation.--In the case of protected genetic information to
which subparagraph (A), (B), or (C) of subsection (a)(3) applies, such
information may not be used in violation of paragraph (1) or (2) of
subsection (a).
SEC. 824. EMPLOYMENT AGENCY PRACTICES.
It shall be an unlawful employment practice for an employment
agency--
(1) to fail or refuse to refer for employment, or otherwise
to discriminate against, any individual because of protected
genetic information with respect to the individual (or
information about a request for or the receipt of genetic services by
such individual or family member of such individual);
(2) to limit, segregate, or classify individuals or fail or
refuse to refer for employment any individual in any way that
would deprive or tend to deprive any individual of employment
opportunities or would limit the employment opportunities or
otherwise adversely affect the status of the individual as an
employee, because of protected genetic information with respect
to the individual (or information about a request for or the
receipt of genetic services by such individual or family member
of such individual);
(3) to request, require, collect or purchase protected
genetic information with respect to an individual (or
information about a request for or the receipt of genetic
services by such individual or family member of such
individual); or
(4) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
subtitle.
SEC. 825. LABOR ORGANIZATION PRACTICES.
It shall be an unlawful employment practice for a labor
organization--
(1) to exclude or to expel from the membership of the
organization, or otherwise to discriminate against, any
individual because of protected genetic information with
respect to the individual (or information about a request for
or the receipt of genetic services by such individual or family
member of such individual);
(2) to limit, segregate, or classify the members of the
organization, or fail or refuse to refer for employment any
individual, in any way that would deprive or tend to deprive
any individual of employment opportunities, or would limit the
employment opportunities or otherwise adversely affect the
status of the individual as an employee, because of protected
genetic information with respect to the individual (or
information about a request for or the receipt of genetic
services by such individual or family member of such
individual);
(3) to request, require, collect or purchase protected
genetic information with respect to an individual (or
information about a request for or the receipt of genetic
services by such individual or family member of such
individual); or
(4) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
subtitle.
SEC. 826. 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--
(1) to discriminate against any individual because of
protected genetic information with respect to the individual
(or information about a request for or the receipt of genetic
services by such individual), in admission to, or employment
in, any program established to provide apprenticeship or other
training or retraining;
(2) to limit, segregate, or classify the members of the
organization, or fail or refuse to refer for employment any
individual, in any way that would deprive or tend to deprive
any individual of employment opportunities, or would limit the
employment opportunities or otherwise adversely affect the
status of the individual as an employee, because of protected genetic
information with respect to the individual (or information about a
request for or receipt of genetic services by such individual or family
member of such individual);
(3) to request, require, collect or purchase protected
genetic information with respect to an individual (or
information about a request for or receipt of genetic services
by such individual or family member of such individual); or
(4) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
subtitle.
SEC. 827. MAINTENANCE AND DISCLOSURE OF PROTECTED GENETIC INFORMATION.
(a) Maintenance of Protected Genetic Information.--If an employer
(or a worker's compensation insurance issuer acting on the employer's
behalf) possesses protected genetic information about an employee (or
information about a request for or receipt of genetic services by such
employee or family member of such employee), such information shall be
treated and maintained as part of the employee's confidential medical
records.
(b) Disclosure of Protected Genetic Information.--An employer (or a
worker's compensation insurance issuer acting on the employer's behalf)
shall not disclose protected genetic information (or information about
a request for or receipt of genetic services by such employee or family
member of such employee) except--
(1) to the employee who is the subject of the information
at the request of the employee;
(2) to an occupational or other health researcher if the
research is conducted in compliance with the regulations and
protections provided for under part 46 of title 45, Code of
Federal Regulations;
(3) under legal compulsion of a Federal court order, except
that if the court order was secured without the knowledge of
the individual to whom the information refers, the employer (or
a worker's compensation insurance issuer acting on the
employer's behalf) shall provide the individual with adequate
notice to challenge the court order unless the court order also
imposes confidentiality requirements; and
(4) to government officials who are investigating
compliance with this subtitle if the information is relevant to
the investigation.
SEC. 828. CIVIL ACTION.
(a) In General.--One or more employees, members of a labor
organization, or participants in training programs or a labor
organization may bring an action in a Federal or State court of
competent jurisdiction against an employer (or a worker's compensation
insurance issuer acting on the employer's behalf), employment agency,
labor organization, or joint labor-management committee or training
program who commits a violation of this subtitle.
(b) Enforcement by the Equal Employment Opportunity Commission.--
(1) In general.--The powers, remedies, and procedures set
forth in sections 705, 706, 707, 709, 710, and 717 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-5, 2000e-6, 2000e-
8, 2000e-9, and 2000e-16) shall be the powers, remedies, and
procedures provided to the Equal Employment Opportunity
Commission to enforce this subtitle. The Commission may
promulgate regulations to implement these powers, remedies, and
procedures.
(2) Exhaustion of remedies.--Nothing in this subsection
shall be construed to require that an individual exhaust the
administrative remedies available through the Equal Employment
Opportunity Commission prior to commencing a civil action under
this section, except that if an individual files a charge of
discrimination with the Commission that alleges a violation of
this subtitle, the individual shall exhaust the administrative
remedies available through the Commission prior to commencing a
civil action under this section.
(c) Remedy.--A Federal or State court may award any appropriate
legal or equitable relief under this section. Such relief may include a
requirement for the payment of attorney's fees and costs, including the
cost of experts.
SEC. 829. CONSTRUCTION.
Nothing in this subtitle shall be construed to--
(1) limit the rights or protections of an individual under
the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.), including coverage afforded to individuals under section
102 of such Act;
(2) limit the rights or protections of an individual under
the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.);
(3) limit the rights or protections of an individual under
any other Federal or State statute that provides equal or
greater protection to an individual than the rights accorded
under this subtitle;
(4) apply to the Armed Forces Repository of Specimen
Samples for the Identification of Remains; or
(5) limit the statutory or regulatory authority of the
Occupational Safety and Health Administration or the Mine
Safety and Health Administration to promulgate or enforce
workplace safety and health laws and regulations.
SEC. 830. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this subtitle.
SEC. 831. EFFECTIVE DATE.
This subtitle shall become effective on October 1, 2003.
Subtitle C--Miscellaneous Provisions
SEC. 841. SEVERABILITY.
If any provision of this subtitle, an amendment made by this
subtitle, or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the remainder of
this subtitle, the amendments made by this subtitle, and the
application of the provisions of such to any person or circumstance
shall not be affected thereby.
TITLE IX--MEDICAL PRIVACY
SEC. 901. SHORT TITLE.
This title may be cited as the ``Protecting Americans' Medical
Privacy Act''.
SEC. 902. PURPOSE.
The purpose of this title is to restore patient privacy
protections essential for high-quality health care that were undermined
by the Bush Administration's August 2002 modifications of the December
2000 medical privacy rule.
SEC. 903. RESTORATION OF PRIVACY PROTECTIONS.
(a) Consent for Uses or Disclosures to Carry Out Treatment,
Payment, or Health Care Operations.--
(1) In general.--The modifications made to sections
164.502, 164.506, and 164.532 of title 45, Code of Federal
Regulations, by the August 2002 medical privacy rule shall have
no force or effect.
(2) Clarification regarding instances when consent is not
required.-- In addition to the circumstances described in the
December 2000 medical privacy rule, and notwithstanding any
provision to the contrary, such sections 164.502, 164.506, and
164.532 shall be construed and applied so as to permit a health
care provider to use or disclose an individual's protected
health information without obtaining the prior consent of the
individual in the following circumstances:
(A) A health care provider may use or disclose an
individual's protected health information to fill or
dispense a prescription, search for drug interactions
related to that prescription, and determine eligibility
and obtain authorization for payment regarding that
prescription, if the health care provider obtains
written consent from the individual as soon as
practicable.
(B) A health care provider may use or disclose an
individual's protected health information to carry out
treatment of that individual if--
(i) the individual and the health care
provider have not had in-person communication
regarding such treatment;
(ii) obtaining consent would be
impracticable;
(iii) the health care provider determines,
in the exercise of professional judgment, that
the individual's consent is clearly inferred
from the circumstances, such as an order or
referral from another health care provider; and
(iv) the health care provider obtains
written consent from the individual as soon as
practicable.
(b) Marketing.--
(1) In general.--The modifications made by the August 2002
medical privacy rule to the definition of the term
``marketing'' in section 164.501 of title 45, Code of Federal
Regulations, shall have no force or effect.
(2) Treatment of certain communications.--The exception for
oral communications in paragraph (2)(i) of the definition of
the term ``marketing'' in section 164.501 of title 45, Code of
Federal Regulations, as contained in the December 2000 medical
privacy rule, shall have no force or effect.
(3) Authorizations for marketing.--Section 164.508 of title
45, Code of Federal Regulations, shall be construed and applied
so as to require that, if an authorization is required for a
use or disclosure for marketing, the authorization shall be
considered invalid unless it--
(A) uses the term ``marketing'';
(B) states that the purpose of the use or
disclosure involved is marketing;
(C) describes the specific marketing uses and
disclosures authorized, including whether the protected
health information involved--
(i) may be used for purposes internal to
the covered entity;
(ii) may be disclosed to, and used by, a
business associate of the covered entity; and
(iii) may be disclosed to, and used by, any
person or entity other than a business
associate of the covered entity; and
(D) states that the use or disclosure of protected
health information for marketing will directly result
in remuneration to the covered entity from a third
party, in any case in which a covered entity expects,
or reasonably should expect, that such remuneration
will occur.
(c) Public Health.--The modifications made to section
164.512(b)(1)(iii) of title 45, Code of Federal Regulations, by the
August 2002 medical privacy rule shall have no force or effect.
SEC. 904. DEFINITIONS; EFFECTIVE DATE.
(a) In General.--For purposes of this title:
(1) December 2000 medical privacy rule.--The term
``December 2000 medical privacy rule'' means the final rule on
standards for privacy of individually identifiable health
information published on December 28, 2000, in the Federal
Register (65 Fed. Reg. 82462), including the provisions of
title 45, Code of Federal Regulations, revised or added by such
rule.
(2) August 2002 medical privacy rule.--The term ``August
2002 medical privacy rule'' means the final rule, published on
August 14, 2002, in the Federal Register (67 Fed. Reg. 53182),
that modified the December 2000 medical privacy rule.
(b) Other Terms Defined.--For purposes of this title:
(1) Business associate; covered entity; health care
provider.--The terms ``business associate'', ``covered
entity'', and ``health care provider'' shall have the meanings
given such terms in section 160.103 of title 45, Code of
Federal Regulations, as contained in the December 2000 medical
privacy rule.
(2) Disclosure; individual, protected health information;
treatment; use.--The terms ``disclosure'', ``individual'',
``protected health information'', ``treatment'', and ``use''
shall have the meanings given such terms in section 164.501 of
title 45, Code of Federal Regulations, as contained in the
December 2000 medical privacy rule.
(c) Effective Date; No Regulations Required.--This title shall take
effect on the date of the enactment of this Act and does not require
the issuance of regulations.
TITLE X--PROTECTING AMERICANS' PRIVACY
SEC. 1001. USE OF DEPARTMENT OF DEFENSE PERSONNEL OR FUNDS TO COLLECT
INTELLIGENCE OR LAW ENFORCEMENT INFORMATION ON UNITED
STATES CITIZENS INSIDE THE UNITED STATES.
(a) Prohibition on Use.--Except as specifically authorized by law,
no member of the Armed Forces or civilian employee of the Department of
Defense may participate in the collection of information on United
States citizens inside the United States for intelligence or law
enforcement purposes.
(b) Prohibition on Development of Technologies.--The Department of
Defense may not carry out research, development, test, or evaluation on
any technology whose primary purpose is the collection of information
on United States citizens inside the United States for intelligence or
law enforcement purposes.
(c) Prohibition on Use of Funds.--No funds appropriated or
otherwise made available to the Department of Defense may be obligated
or expended for an activity prohibited by subsection (a) or (b).
TITLE XI--ELECTION REFORM
SEC. 1101. REFORM.
(a) Help America Vote Act of 2002.--To carry out the Help America
Vote Act of 2002 (Public Law 107-252)--
(1) there is authorized to be appropriated and there is
appropriated, $3,860,200,000, in the amounts authorized under,
and for the fiscal years specified in, that Act (except for the
provisions and years specified in paragraph (2)); and
(2) there are authorized to be appropriated such sums as
may be necessary to carry out sections 104(e), 292(a) (for
fiscal year 2007 and each subsequent fiscal year), 296 (for
fiscal years 2004 through 2009), and 503(2) (for fiscal year
2004 and each succeeding fiscal year) of that Act.
(b) Help America Vote Foundation.--To carry out chapter 1526 of
part B of subtitle II of title 36, United States Code (as added by the
Help America Vote Act of 2002)--
(1) there is authorized to be appropriated and there is
appropriated $5,000,000 for fiscal year 2003; and
(2) there are authorized to be appropriated such sums as
may be necessary for each succeeding fiscal year.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR 1/9/2003 S134)
Read twice and referred to the Committee on Finance.
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