S. 1281 — Introduced in Senate

II 113th CONGRESS 1st Session S. 1281 IN THE SENATE OF THE UNITED STATES July 11, 2013 Mr. Blumenthal introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs A BILL To prohibit discrimination on the basis of military service, and for other purposes. 1. Short title This Act may be cited as the Veterans and Servicemembers Employment Rights and Housing Act of 2013. 2. Discrimination on the basis of military service (a) Definitions In this section: (1) Civil rights definitions The terms complaining party, demonstrates, employee, employer, employment agency, labor organization, person, respondent, and State have the meanings given the terms in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e). (2) Member of the uniformed services The term member of the uniformed services means an individual who— (A) is a member of— (i) the uniformed services (as defined in section 101 of title 10, United States Code); or (ii) the National Guard in State status under title 32, United States Code; or (B) was discharged or released from service in the uniformed services (as so defined) or the National Guard in such status under conditions other than dishonorable. (3) Military service The term military service means status as a member of the uniformed services. (b) 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 individual's compensation, terms, conditions, or privileges of employment, because of such individual's military service; or (2) to limit, segregate, or classify the employer's employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee, because of such individual's military service. (c) Employment agency practices It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise discriminate against, any individual because of the individual's military service, or to classify or refer for employment any individual on the basis of the individual's military service. (d) 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 individual's military service; (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 which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect the individual's status as an employee or as an applicant for employment, because of such individual's military service; or (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. (e) 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 individual's military service in admission to, or employment in, any program established to provide apprenticeship or other training. (f) Businesses or enterprises with personnel qualified on basis of military service Notwithstanding any other provision of this section, it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of the individual's military service in those certain instances where military service is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. (g) National security Notwithstanding any other provision of this section, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if— (1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and (2) such individual has not fulfilled or has ceased to fulfill that requirement. (h) Seniority or merit system; quantity or quality of production; ability tests Notwithstanding any other provision of this section, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of military service, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration, or action upon the results is not designed, intended, or used to discriminate because of military service. (i) Preferential treatment not To be granted on account of existing number or percentage imbalance Nothing contained in this section shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this section to grant preferential treatment to any individual or to any group because of the military service of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons with military service employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons with military service in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. (j) Burden of proof in disparate impact cases (1) Disparate impact (A) Establishment An unlawful employment practice based on disparate impact is established under this section only if— (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of military service and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or (ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice. (B) Demonstration of causation (i) Particular employment practices With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice. (ii) Demonstration of noncausation If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity. (C) Alternative employment practice The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of alternative employment practice. (2) Business necessity no defense to intentional discrimination A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this section. (3) Rules concerning controlled substances Notwithstanding any other provision of this section, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)) and included in schedule I or II of the schedules specified in that section, other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act (21 U.S.C. 801 et seq.) or any other provision of Federal law, shall be considered an unlawful employment practice under this section only if such rule is adopted or applied with an intent to discriminate because of military service. (k) Prohibition of discriminatory use of test scores It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of military service. (l) Impermissible consideration of military service in employment practices Except as otherwise provided in this section, an unlawful employment practice is established when the complaining party demonstrates that military service was a motivating factor for any employment practice, even though other factors also motivated the practice. (m) Resolution of challenges to employment practices implementing litigated or consent judgments or orders (1) Practices not challengeable (A) Practices to implement a litigated or consent judgment or order Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (B). (B) Circumstances A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws— (i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had— (I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and (II) a reasonable opportunity to present objections to such judgment or order; or (ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact. (2) Rule of construction Nothing in this subsection shall be construed to— (A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which the parties intervened; (B) apply to the rights of parties to the action in which a litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government; (C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or (D) authorize or permit the denial to any person of the due process of law required by the Constitution. (3) Court for actions that are challengeable Any action not precluded under this subsection that challenges an employment consent judgment or order described in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28, United States Code. (n) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings It shall be an unlawful employment practice for an employer to discriminate against any of the employer's employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because the employee, applicant, individuals, or member involved has opposed any practice made an unlawful employment practice by this section, or has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section. (o) Printing or publication of notices or advertisements It shall be an unlawful employment practice for an employer, labor organization, employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, or relating to admission to, or employment in, any program established to provide apprenticeship or other training by such a joint labor-management committee, indicating any preference, limitation, specification, or discrimination, based on military service, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on military service when military service is a bona fide occupational qualification for employment. (p) Exemptions (1) Inapplicability of title to certain aliens This section shall not apply to an employer with respect to the employment of aliens outside any State. (2) Compliance with statute as violation of foreign law It shall not be unlawful under this section for an employer (or a corporation controlled by an employer), labor organization, employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining (including on-the-job training programs) to take any action otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer (or such corporation), such organization, such agency, or such committee to violate the law of the foreign country in which such workplace is located. (3) Control of corporation incorporated in foreign country (A) In general If an employer controls a corporation whose place of incorporation is a foreign country, any practice prohibited by this section engaged in by such corporation shall be presumed to be engaged in by such employer. (B) Foreign person not controlled by employer This section shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer. (C) Control For purposes of this subsection, the determination of whether an employer controls a corporation shall be based on— (i) the interrelation of operations; (ii) the common management; (iii) the centralized control of labor relations; and (iv) the common ownership or financial control, of the employer and the corporation. (4) Claims of no military service Nothing in this section shall provide the basis for a claim by an individual without military service that the individual was subject to discrimination because of the individual's lack of military service. (q) Posting notices Every employer, employment agency, labor organization, or joint labor-management committee covered under this section shall post notices to applicants, employees, and members describing the applicable provisions of this section, in the manner prescribed by section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–10). (r) Regulations Not later than 90 days after the date of enactment of this Act, the Commission shall issue regulations to carry out this section in accordance with subchapter II of chapter 5 of title 5, United States Code. (s) Enforcement The powers, remedies, and procedures set forth in sections 705, 706, 707, 708, 709, 710, and 712 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–4, 2000e–5, 2000e–6, 2000e–7, 2000e–8, 2000e–9, and 2000e–11) shall be the powers, remedies, and procedures this section provides to the Equal Employment Opportunity Commission, to the Attorney General, or to any person alleging discrimination on the basis of military service in violation of any provision of this section, or regulations promulgated under subsection (r), concerning employment. 3. Ending housing discrimination against members of the uniformed services (a) Definitions Section 802 of the Fair Housing Act (42 U.S.C. 3602) is amended by adding at the end the following: (p) Member of the uniformed services means an individual who— (1) is a member of— (A) the uniformed services (as defined in section 101 of title 10, United States Code); or (B) the National Guard in State status under title 32, United States Code; or (2) was discharged or released from service in the uniformed services (as so defined) or the National Guard in such status under conditions other than dishonorable. . (b) Discrimination in the sale or rental of housing and other prohibited practices Section 804 of the Fair Housing Act (42 U.S.C. 3604) is amended— (1) in subsection (a), by inserting or because the person is a member of the uniformed services after national origin; (2) in subsection (b), by inserting or because the person is a member of the uniformed services after national origin; (3) in subsection (c), by inserting or because a person is a member of the uniformed services, after national origin,; and (4) in subsection (d), by inserting , or because the person is a member of the uniformed services, after national origin. (c) Discrimination in residential real estate-Related transactions Section 805 of the Fair Housing Act (42 U.S.C. 3605) is amended— (1) in subsection (a), by inserting or because the person is a member of the uniformed services after national origin; and (2) in subsection (c), by striking , or familial status and inserting familial status, or whether a person is a member of the uniformed services. (d) Discrimination in the provision of brokerage services Section 806 of the Fair Housing Act (42 U.S.C. 3606) is amended by inserting or because a person is a member of the uniformed services after national origin. (e) Religious organization or private club exemption Section 807(a) of the Fair Housing Act (42 U.S.C. 3607(a)) is amended, in the first sentence by inserting or to persons who are not members of the uniformed services after national origin. (f) Administration Section 808(e)(6) of the Fair Housing Act (42 U.S.C. 3608(e)(6)) is amended, in the first sentence, by inserting (including whether such persons and households are or include a member of the uniformed services) after persons and households. (g) Prevention of discrimination Section 901 of the Civil Rights Act of 1968 (42 U.S.C. 3631) is amended— (1) in subsection (a), by inserting , or because the person is a member of the uniformed services (as such term is defined in section 802 of this Act), after national origin; (2) in subsection (b)(1), by inserting or because a person is a member of the uniformed services (as such term is defined in section 802 of this Act), after national origin,; and (3) in subsection (c), by inserting or because a person is a member of the uniformed services (as such term is defined in section 802 of this Act), after national origin,. (h) Rule of construction The Fair Housing Act (42 U.S.C. 3601 et seq.) is amended by adding at the end the following: 821. Rule of construction relating to the treatment of members of the uniformed services (a) Rule of construction Nothing in this Act may be construed to prohibit any person from— (1) making available to an individual a benefit with respect to a dwelling, a residential real estate-related transaction (as defined in section 805 of this Act), or a service described in section 806 of this Act because the individual is a member of the uniformed services; or (2) selling or renting a dwelling only to members of the uniformed services. (b) Definition For purposes of this section, the term benefit includes a term, condition, privilege, promotion, discount, or other favorable treatment (including an advertisement for such treatment) having the purpose or effect of providing an advantage to a member of the uniformed services. . 4. Effective date This Act shall become effective 120 days after the date of enactment of this Act.