Declares this Act inapplicable to the provision of employee benefits for the benefit of an employee's domestic partner. Prohibits the Equal Employment Opportunity Commission from: (1) collecting statistics on sexual orientation from covered entities; and (2) compelling covered entities to collect such statistics. Prohibits: (1) quotas and preferential treatment; and (2) an order or consent decree for a violation of this Act that includes a quota or preferential treatment. Declares this Act inapplicable to: (1) religious organizations; (2) the relationship between the United States and members of the armed forces; or (3) laws creating special rights or preferences for veterans.
Prohibits the imposition of affirmative action for a violation of this Act. Disallows State immunity. Makes the United States or a State liable for remedies to the same extent as under the Civil Rights Act of 1964.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1705 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 1705
To prohibit employment discrimination on the basis of sexual
orientation.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 2, 2003
Mr. Kennedy (for himself, Mr. Jeffords, Mr. Chafee, Mr. Lieberman, Mr.
Akaka, Mr. Baucus, Mr. Bayh, Mr. Biden, Mr. Bingaman, Mrs. Boxer, Mr.
Breaux, Ms. Cantwell, Mr. Carper, Mrs. Clinton, Ms. Collins, Mr.
Corzine, Mr. Daschle, Mr. Dayton, Mr. Dodd, Mr. Dorgan, Mr. Durbin, Mr.
Edwards, Mr. Feingold, Mrs. Feinstein, Mr. Graham of Florida, Mr.
Harkin, Mr. Inouye, Mr. Kerry, Mr. Kohl, Ms. Landrieu, Mr. Lautenberg,
Mr. Leahy, Mr. Levin, Ms. Mikulski, Mrs. Murray, Mr. Nelson of Florida,
Mr. Reed, Mr. Reid, Mr. Sarbanes, Mr. Schumer, Mr. Smith, Mr. Specter,
Ms. Stabenow, and Mr. Wyden) introduced the following bill; which was
read twice and referred to the Committee on Health, Education, Labor,
and Pensions
_______________________________________________________________________
A BILL
To prohibit employment discrimination on the basis of sexual
orientation.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Employment Non-Discrimination Act of
2003''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to provide a comprehensive Federal prohibition of
employment discrimination on the basis of sexual orientation;
(2) to provide meaningful and effective remedies for
employment discrimination on the basis of sexual orientation;
and
(3) to invoke congressional powers, including the powers to
enforce the 14th amendment to the Constitution, and to regulate
interstate commerce and provide for the general welfare
pursuant to section 8 of article I of the Constitution, in
order to prohibit employment discrimination on the basis of
sexual orientation.
SEC. 3. DEFINITIONS.
(a) In General.--In this Act:
(1) Commission.--The term ``Commission'' means the Equal
Employment Opportunity Commission.
(2) Covered entity.--The term ``covered entity'' means an
employer, employment agency, labor organization, or joint
labor-management committee.
(3) Employee.--
(A) In general.--The term ``employee'' means--
(i) an employee (as defined in section
701(f) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(f));
(ii) a Presidential appointee or State
employee to which section 302(a)(1) of the
Government Employee Rights Act of 1991 (42
U.S.C. 2000e-16b(a)(1)) applies;
(iii) a covered employee, as defined in
section 101 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1301) or section 411(c)
of title 3, United States Code; or
(iv) an employee or applicant to which
section 717(a) of the Civil Rights Act of 1964
(42 U.S.C. 2000e-16(a)) applies.
(B) Exception.--The provisions of this Act that
apply to an employee or individual shall not apply to a
volunteer who receives no compensation.
(4) Employer.--The term ``employer'' means--
(A) a person engaged in an industry affecting
commerce (as defined in section 701(h) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or
more employees (as defined in subparagraphs (A)(i) and
(B) of paragraph (3)) for each working day in each of
20 or more calendar weeks in the current or preceding
calendar year, and any agent of such a person, but does
not include a bona fide private membership club (other
than a labor organization) that is exempt from taxation
under section 501(c) of the Internal Revenue Code of
1986;
(B) an employing authority to which section
302(a)(1) of the Government Employee Rights Act of 1991
applies;
(C) an employing office, as defined in section 101
of the Congressional Accountability Act of 1995 or
section 411(c) of title 3, United States Code; or
(D) an entity to which section 717(a) of the Civil
Rights Act of 1964 applies.
(5) Employment agency.--The term ``employment agency'' has
the meaning given the term in section 701(c) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(c)).
(6) Labor organization.--The term ``labor organization''
has the meaning given the term in section 701(d) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(d)).
(7) Person.--The term ``person'' has the meaning given the
term in section 701(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(a)).
(8) Religious organization.--The term ``religious
organization'' means--
(A) a religious corporation, association, or
society; or
(B) a school, college, university, or other
educational institution or institution of learning,
if--
(i) the institution is in whole or
substantial part controlled, managed, owned, or
supported by a religion, religious corporation,
association, or society; or
(ii) the curriculum of the institution is
directed toward the propagation of a religion.
(9) Sexual orientation.--The term ``sexual orientation''
means homosexuality, bisexuality, or heterosexuality, whether
the orientation is real or perceived.
(10) State.--The term ``State'' has the meaning given the
term in section 701(i) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(i)).
(b) Application of Definitions.--For purposes of this section, a
reference in section 701 of the Civil Rights Act of 1964--
(1) to an employee or an employer shall be considered to
refer to an employee (as defined in paragraph (3)) or an
employer (as defined in paragraph (4)), respectively, except as
provided in paragraph (2); and
(2) to an employer in subsection (f) of that section shall
be considered to refer to an employer (as defined in paragraph
(4)(A)).
SEC. 4. DISCRIMINATION PROHIBITED.
(a) Employer Practices.--It shall be an unlawful employment
practice for an employer--
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to the compensation, terms, conditions, or
privileges of employment of the individual, because of such
individual's sexual orientation; or
(2) to limit, segregate, or classify the employees or
applicants for employment of the employer in any way that would
deprive or tend to deprive any individual of employment or
otherwise adversely affect the status of the individual as an
employee, because of such individual's sexual orientation.
(b) Employment Agency Practices.--It shall be an unlawful
employment practice for an employment agency to fail or refuse to refer
for employment, or otherwise to discriminate against, any individual
because of the sexual orientation of the individual or to classify or
refer for employment any individual on the basis of the sexual
orientation of the individual.
(c) Labor Organization Practices.--It shall be an unlawful
employment practice for a labor organization--
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of
the sexual orientation of the individual;
(2) to limit, segregate, or classify its membership or
applicants for membership, or to classify or fail or refuse to
refer for employment any individual, in any way that would
deprive or tend to deprive any individual of employment, or
would limit such employment or otherwise adversely affect the
status of the individual as an employee or as an applicant for
employment, because of such individual's sexual orientation; or
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.
(d) Training Programs.--It shall be an unlawful employment practice
for any employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any
individual because of the sexual orientation of the individual in
admission to, or employment in, any program established to provide
apprenticeship or other training.
(e) Association.--An unlawful employment practice described in any
of subsections (a) through (d) shall be considered to include an action
described in that subsection, taken against an individual based on the
sexual orientation of a person with whom the individual associates or
has associated.
(f) Disparate Impact.--Only disparate treatment claims may be
brought under this Act.
SEC. 5. RETALIATION PROHIBITED.
It shall be an unlawful employment practice for a covered entity to
discriminate against an individual because such individual opposed any
practice made an unlawful employment practice by this Act, or because
such individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this Act.
SEC. 6. BENEFITS.
This Act does not apply to the provision of employee benefits to an
individual for the benefit of the domestic partner of such individual.
SEC. 7. COLLECTION OF STATISTICS PROHIBITED.
The Commission shall not collect statistics on sexual orientation
from covered entities, or compel the collection of such statistics by
covered entities.
SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED.
(a) Quotas.--A covered entity shall not adopt or implement a quota
on the basis of sexual orientation.
(b) Preferential Treatment.--A covered entity shall not give
preferential treatment to an individual on the basis of sexual
orientation.
(c) Orders and Consent Decrees.--Notwithstanding any other
provision of this Act, an order or consent decree entered for a
violation of this Act may not include a quota, or preferential
treatment to an individual, based on sexual orientation.
SEC. 9. RELIGIOUS EXEMPTION.
This Act shall not apply to a religious organization.
SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS'
PREFERENCES.
(a) Armed Forces.--
(1) Employment.--In this Act, the term ``employment'' does
not apply to the relationship between the United States and
members of the Armed Forces.
(2) Armed forces.--In paragraph (1), the term ``Armed
Forces'' means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
(b) Veterans' Preferences.--This Act does not repeal or modify any
Federal, State, territorial, or local law creating a special right or
preference concerning employment for a veteran.
SEC. 11. CONSTRUCTION.
(a) Employer Rules and Policies.--Nothing in this Act shall be
construed to prohibit a covered entity from enforcing rules and
policies, if the rules or policies are designed for, and uniformly
applied to, all individuals regardless of sexual orientation.
(b) Association.--Nothing in this Act shall be construed to
prohibit any association, or infringe upon any right of association,
guaranteed by the first amendment to the Constitution, of any
nonprofit, voluntary membership organization.
SEC. 12. ENFORCEMENT.
(a) Enforcement Powers.--With respect to the administration and
enforcement of this Act in the case of a claim alleged by an individual
for a violation of this Act--
(1) the Commission shall have the same powers as the
Commission has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.); or
(B) sections 302 and 304 of the Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c);
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 (42 U.S.C. 2000e-
16b(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 (42 U.S.C. 2000e-16b and 2000e-16c);
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 (42 U.S.C. 2000e-
16b(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 (42 U.S.C. 2000e-16b and 2000e-16c)
in the case of a claim alleged by such individual for a
violation of section 302(a)(1) of such Act (42 U.S.C.
2000e-16b(a)(1));
(C) the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) in the case of a claim alleged by
such individual for a violation of section 201(a)(1) of
such Act (2 U.S.C. 1311(a)(1)); and
(D) chapter 5 of title 3, United States Code, in
the case of a claim alleged by such individual for a
violation of section 411 of such title.
(b) Procedures and Remedies.--The procedures and remedies
applicable to a claim alleged by an individual for a violation of this
Act are--
(1) the procedures and remedies applicable for a violation
of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e
et seq.) in the case of a claim alleged by such individual for
a violation of such title;
(2) the procedures and remedies applicable for a violation
of section 302(a)(1) of the Government Employee Rights Act of
1991 (42 U.S.C. 2000e-16b(a)(1)) in the case of a claim alleged
by such individual for a violation of such section;
(3) the procedures and remedies applicable for a violation
of section 201(a)(1) of the Congressional Accountability Act of
1995 (2 U.S.C. 1311(a)(1)) in the case of a claim alleged by
such individual for a violation of such section; and
(4) the procedures and remedies applicable for a violation
of section 411 of title 3, United States Code, in the case of a
claim alleged by such individual for a violation of such
section.
(c) Other Applicable Provisions.--With respect to a claim alleged
by a covered employee (as defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301)) for a violation of this
Act, title III of the Congressional Accountability Act of 1995 (2
U.S.C. 1381 et seq.) shall apply in the same manner as such title
applies with respect to a claim alleged by such a covered employee for
a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).
(d) Prohibition of Affirmative Action.--Notwithstanding any other
provision of this section, affirmative action for a violation of this
Act may not be imposed. Nothing in this section shall prevent the
granting of relief to any individual who suffers a violation of such
individual's rights provided in this Act.
SEC. 13. STATE AND FEDERAL IMMUNITY.
(a) State Immunity.--A State shall not be immune under the 11th
amendment to the Constitution from a suit described in subsection (b)
and brought in a Federal court of competent jurisdiction for a
violation of this Act.
(b) Remedies for State Employees.--
(1) In general.--
(A) Waiver.--A State's receipt or use of Federal
financial assistance for any program or activity of a
State shall constitute a waiver of sovereign immunity,
under the 11th amendment to the Constitution or
otherwise, to a suit brought by an employee or
applicant for employment of that program or activity
under this Act for a remedy authorized under subsection
(c).
(B) Definition.--In this paragraph, the term
``program or activity'' has the meaning given the term
in section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a).
(2) Officials.--An official of a State may be sued in the
official capacity of the official by any employee or applicant
for employment who has complied with the applicable procedures
of section 12, for equitable relief that is authorized under
this Act. In such a suit the court may award to the prevailing
party those costs authorized by section 722 of the Revised
Statutes (42 U.S.C. 1988).
(3) Effective date.--With respect to a particular program
or activity, paragraphs (1) and (2) apply to conduct occurring
on or after the day, after the date of enactment of this Act,
on which a State first receives or uses Federal financial
assistance for that program or activity.
(c) Remedies Against the United States and the States.--
Notwithstanding any other provision of this Act, in an action or
administrative proceeding against the United States or a State for a
violation of this Act, remedies (including remedies at law and in
equity, and interest) are available for the violation to the same
extent as the remedies are available for a violation of title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private
entity, except that--
(1) punitive damages are not available; and
(2) compensatory damages are available to the extent
specified in section 1977A(b) of the Revised Statutes (42
U.S.C. 1981a(b)).
SEC. 14. ATTORNEYS' FEES.
Notwithstanding any other provision of this Act, in an action or
administrative proceeding for a violation of this Act, an entity
described in section 12(a) (other than paragraph (4) of such section),
in the discretion of the entity, may allow the prevailing party, other
than the Commission or the United States, a reasonable attorney's fee
(including expert fees) as part of the costs. The Commission and the
United States shall be liable for the costs to the same extent as a
private person.
SEC. 15. POSTING NOTICES.
A covered entity who is required to post notices described in
section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) shall
post notices for employees, applicants for employment, and members, to
whom the provisions specified in section 12(b) apply, that describe the
applicable provisions of this Act in the manner prescribed by, and
subject to the penalty provided under, section 711 of the Civil Rights
Act of 1964.
SEC. 16. REGULATIONS.
(a) In General.--Except as provided in subsections (b), (c), and
(d), the Commission shall have authority to issue regulations to carry
out this Act.
(b) Librarian of Congress.--The Librarian of Congress shall have
authority to issue regulations to carry out this Act with respect to
employees and applicants for employment of the Library of Congress.
(c) Board.--The Board referred to in section 12(a)(3) shall have
authority to issue regulations to carry out this Act, in accordance
with section 304 of the Congressional Accountability Act of 1995 (2
U.S.C. 1384), with respect to covered employees, as defined in section
101 of such Act (2 U.S.C. 1301).
(d) President.--The President shall have authority to issue
regulations to carry out this Act with respect to covered employees, as
defined in section 411(c) of title 3, United States Code.
SEC. 17. RELATIONSHIP TO OTHER LAWS.
This Act shall not invalidate or limit the rights, remedies, or
procedures available to an individual claiming discrimination
prohibited under any other Federal law or any law of a State or
political subdivision of a State.
SEC. 18. SEVERABILITY.
If any provision of this Act, or the application of the provision
to any person or circumstance, is held to be invalid, the remainder of
this Act and the application of the provision to any other person or
circumstance shall not be affected by the invalidity.
SEC. 19. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of enactment of
this Act and shall not apply to conduct occurring before the effective
date.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S12382-12383)
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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