S. 1972 — Introduced in Senate

II 113th CONGRESS 2d Session S. 1972 IN THE SENATE OF THE UNITED STATES January 29, 2014Mr. Blumenthal (for himself, Mr. Markey, Mrs. Gillibrand, Mrs. Shaheen, Mr. Sanders, and Mr. Murphy) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To prohibit discrimination in employment on the basis of an individual’s status or history of unemployment. 1. Short title This Act may be cited as the Fair Employment Opportunity Act of 2014. 2. Findings and purpose (a) Findings Congress finds that denial of employment opportunities to individuals because they are or have been unemployed is discriminatory and burdens commerce by— (1) reducing personal consumption and undermining economic stability and growth; (2) squandering human capital essential to the Nation’s economic vibrancy and growth; (3) increasing demands for Federal and State unemployment insurance benefits, reducing trust fund assets, and leading to higher payroll taxes for employers, cuts in benefits for jobless workers, or both; (4) imposing additional burdens on publicly funded health and welfare programs; and (5) depressing income, property, and other tax revenues that the Federal Government, States, and localities rely on to support operations and institutions essential to commerce. (b) Purposes The purposes of this Act are— (1) to prohibit consideration of an individual’s status as unemployed in considering applicants for, screening for, or hiring for positions, except where a requirement related to employment status is a bona fide occupational qualification reasonably necessary to successful performance in the job; and (2) to eliminate the burdens imposed on commerce due to the exclusion of such individuals from employment. I Fair employment for non-Federal employees 101. Definitions As used in this Act— (1) the term affected individual means any person who was not considered for employment, or was not hired by an employer, as an employee, because of the person’s current employment status (current as of the date of the decision concerning consideration or hiring), or any person who was not considered, screened, or referred for an employment opportunity, as an employee, by an employment agency because of the person’s current employment status (current as of the date of the decision concerning consideration, screening, or referral); (2) the term employee has the meaning given the term in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203), but shall not include an employee covered under subchapter V of chapter 63 of title 5, United States Code; (3) the term employer— (A) means any person engaged in commerce or any industry or activity affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year; (B) includes— (i) any person who acts, directly or indirectly, in the interest of an employer described in subparagraph (A) with respect to employing individuals to work for the employer; and (ii) any successor in interest of an employer described in subparagraph (A); (C) includes any public agency, as defined in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203), but shall not include an employing agency covered under subchapter V of chapter 63 of title 5, United States Code; and (D) includes the Government Printing Office and the Library of Congress; (4) the term employment agency means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for individuals opportunities to work as employees for an employer and includes an agent of such a person, and includes any person who maintains an Internet website that publishes advertisements or announcements of openings in jobs for employees; (5) the term Secretary means the Secretary of Labor; and (6) the term status as unemployed, used with respect to an individual, means the individual’s present or past unemployment, regardless of the length of time such individual was unemployed. 102. Prohibited acts (a) Employers It shall be an unlawful practice for an employer to— (1) fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee, because of the individual’s status as unemployed; (2) publish in print, on the Internet, or in any other medium, an advertisement or announcement for an employee for any job that includes— (A) any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for a job; and (B) any provision stating or indicating that an employer will not consider or hire an individual for employment based on that individual’s status as unemployed; and (3) direct or request that an employment agency take an individual’s status as unemployed into account in considering, screening, or referring applicants for employment as an employee. (b) Employment agencies It shall be an unlawful practice for an employment agency to— (1) fail or refuse to consider, screen, or refer an individual for employment as an employee based on the individual’s status as unemployed; (2) limit, segregate, or classify individuals in any manner that may limit their access to information about jobs, or consideration, screening, or referral for jobs, as employees, because of their status as unemployed; or (3) publish, in print or on the Internet or in any other medium, an advertisement or announcement for any vacancy in a job, as an employee, that includes— (A) any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for a job; and (B) any provision stating or indicating that an employer will not consider or hire an individual for employment based on that individual’s status as unemployed. (c) Interference with rights, proceedings or inquiries It shall be unlawful for any employer or employment agency to— (1) interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this Act; or (2) fail or refuse to hire, to discharge, or in any other manner to discriminate against any individual, as an employee, because such individual— (A) opposed any practice made unlawful by this Act; (B) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this Act; (C) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this Act; or (D) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this Act. (d) Bona fide occupational qualification Notwithstanding any other provision of this Act, consideration by an employer or employment agency of an individual’s status as unemployed shall not be an unlawful employment practice under this Act if an individual’s employment in a similar or related job for a period of time reasonably proximate to the hiring of such individual is a bona fide occupational qualification reasonably necessary to successful performance in the job that is being filled. 103. Enforcement (a) Civil action by individual (1) Liability for employers and employment agencies Any employer or employment agency that violates subsection (a) or (b) of section 4 shall be liable to any affected individual— (A) for actual damages equal to— (i) the amount of— (I) any wages, salary, employment benefits, or other compensation denied or lost to such individual by reason of the violation; or (II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the individual, any actual monetary losses sustained by the individual as a direct result of the violation or an amount of $1000 per violation per day, whichever is greater; (ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and (iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), and any punitive damages, except that if an employer or employment agency that has violated section 4 proves to the satisfaction of the court that the act or omission that violated section 4 was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 4, such court may, in its discretion, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and (B) for such equitable relief as may be appropriate, including employment. (2) Right of action An action to recover the damages or equitable relief prescribed in paragraph (1) may be maintained against any employer or employment agency in any Federal or State court of competent jurisdiction by any 1 or more persons for and on behalf of— (A) the affected individual; or (B) the affected individual and other individuals similarly situated. (3) Fees and costs The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. (4) Limitations The right provided by paragraph (2) to bring an action by or on behalf of any affected individual shall terminate— (A) on the filing of a complaint by the Secretary in an action under subsection (d) in which restraint is sought of any violation of section 4; or (B) on the filing of a complaint by the Secretary in an action under subsection (b) in which a recovery is sought of the damages described in paragraph (1)(A) owing to an affected individual by an employer or employment agency liable under paragraph (1), unless the action described in subparagraph (A) or (B) is dismissed without prejudice on motion of the Secretary. (b) Action by the Secretary (1) Administrative action The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 4 in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207). (2) Civil action The Secretary may bring an action in any court of competent jurisdiction— (A) to enjoin violations of this title and seek other relief necessary to prevent future violations; and (B) to recover— (i) the damages described in subsection (a)(1)(A); (ii) in the case of a violation of section 4(c), a civil penalty of not less than $250 per violation (in addition to any other relief available under this subparagraph); or (iii) such other equitable relief as the court determines to be appropriate. (3) Sums recovered Any sums recovered by the Secretary pursuant to paragraph (2)(B)(i) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each affected individual. Any such sums recovered pursuant to paragraph (2)(B)(i) that are not paid to an affected individual because of inability to do so within a period of 3 years and any sums recovered pursuant to paragraph (2)(B)(ii) shall be deposited into the Treasury of the United States as miscellaneous receipts. (c) Limitation (1) In general Except as provided in paragraph (2), an action under subsection (a) may be brought not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought, except that the limitation period for filing an action by an individual shall be tolled during the period during which the Secretary is considering a complaint against any defendant named in a complaint filed with the Secretary under subsection (b)(1). (2) Willful violation In the case of such action brought for a willful violation of section 4, such action may be brought not later than 3 years after the date of the last event constituting the alleged violation for which such action is brought, except that the limitation period for filing an action by an individual shall be tolled during the period during which the Secretary is considering a complaint, against the defendant involved, that is filed with the Secretary under subsection (b)(1). (3) Commencement In determining when an action is commenced by the Secretary under this section for the purposes of this subsection, it shall be considered to be commenced on the date when the Secretary files a complaint in a court of competent jurisdiction. (d) Action for injunction by Secretary The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary— (1) to restrain violations of section 4; (2) to award such other equitable relief as may be appropriate, including employment; and (3) to award monetary damages. (e) Solicitor of Labor The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under this section. (f) Government Printing Office and Library of Congress With respect to the Government Printing Office (acting as an employer or employment agency), and with respect to the Library of Congress (acting as an employer or employment agency), the authority of the Secretary of Labor under this title shall be exercised respectively by the Public Printer and the Librarian of Congress. II Fair employment for federal employees 201. Prohibited acts Title 5, United States Code, is amended by inserting after chapter 23 the following: 25 Prohibition on discrimination based on employment status 2501. Definitions As used in this chapter— (1) the term affected individual means any person who was not considered for employment, or was not hired by an employing agency, as an employee, because of the person’s current employment status (current as of the date of the decision concerning consideration or hiring), or any person who was not considered, screened, or referred for an employment opportunity, as an employee, by an employment agency because of the person’s current employment status (current as of the date of the decision concerning consideration, screening, or referral); (2) the term employee means an individual described in section 6381(1)(A); (3) the term employing agency means an agency covered under subchapter V of chapter 63; (4) the term employment agency means any person regularly undertaking with or without compensation to procure employees for an employing agency or to procure for individuals opportunities to work as employees for an employing agency and includes an agent of such a person, and includes any person who maintains an Internet website that publishes advertisements or announcements of openings in jobs for employees; (5) the term Secretary means the Secretary of Labor; and (6) the term status as unemployed, used with respect to an individual, means the individual’s present or past unemployment, regardless of the length of time such individual was unemployed. 2502. Prohibited acts (a) It shall be an unlawful practice for an employing agency to— (1) fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee, because of the individual’s status as unemployed; (2) publish in print, on the Internet, or in any other medium, an advertisement or announcement for an employee for any job that includes— (A) any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for a job; and (B) any provision stating or indicating that an employing agency will not consider or hire an individual for employment based on that individual’s status as unemployed; and (3) direct or request that an employment agency take an individual’s status as unemployed into account in considering, screening, or referring applicants for employment as an employee. (b) It shall be an unlawful practice for an employment agency to— (1) fail or refuse to consider, screen, or refer an individual for employment as an employee based on the individual’s status as unemployed; (2) limit, segregate, or classify individuals in any manner that may limit their access to information about jobs, or consideration, screening, or referral for jobs, as employees, because of their status as unemployed; or (3) publish, in print or on the Internet or in any other medium, an advertisement or announcement for any vacancy in a job, as an employee, that includes— (A) any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for a job; and (B) any provision stating or indicating that an employing agency will not consider or hire an individual for employment based on that individual’s status as unemployed. (c) It shall be unlawful for any employing agency or employment agency to— (1) interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this chapter; or (2) fail or refuse to hire, to discharge, or in any other manner to discriminate against any individual, as an employee, because such individual— (A) opposed any practice made unlawful by this chapter; (B) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this chapter; (C) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this chapter; or (D) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this chapter. (d) Notwithstanding any other provision of this chapter, consideration by an employing agency or employment agency of an individual’s status as unemployed shall not be an unlawful employment practice under this chapter if an individual’s employment in a similar or related job for a period of time reasonably proximate to the hiring of such individual is a bona fide occupational qualification reasonably necessary to successful performance in the job that is being filled. 2503. Enforcement The Office of Personnel Management shall prescribe regulations necessary for the administration of this chapter. The regulations prescribed under this chapter shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary of Labor to carry out title I of the Fair Employment Opportunity Act of 2014. .