,,ii #aacth ,,congress #b;d ,session ,s4 #bacc ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,march #ac1 #bjad ,ms4 ,baldwin 7for herself1 ,mr4 ,harkin1 ,mr4 ,leahy1 ,mrs4 ,murray1 ,mr4 ,whitehouse1 ,mr4 ,blumenthal1 ,ms4 ,mikulski1 ,mr4 ,durbin1 ,mr4 ,schumer1 ,mr4 ,schatz1 ,ms4 ,warren1 ,mr4 ,casey1 and ,mr4 ,franken7 introduced the following bill2 which was read twice and referred to the ,committee on ,health1 ,education1 ,labor1 and ,pensions ,a ,,bill ,to amend title ,,vii of the ,civil ,rights ,act of #aifd and other statutes to clarify appropriate liability standards for ,federal antidiscrimination claims4 #a4 ,short title ,this ,act may be cited as the ,fair ,employment ,protection ,act of #bjad4 #b4 ,findings and purposes 7a7 ,findings ,congress finds the following3 7#a7 ,harassment is a widespread problem in workplaces in the ,united ,states4 ,surveys indicate that at least one-fourth of all working women and #aj percent of men have experienced sexual harassment on the job4 7#b7 ,in fiscal year #bjac1 a combined total of over #cj1jjj harassment charges were filed with the ,equal ,employment ,opportunity ,commission and ,state fair employment practices agencies4 ,more than #aj1jjj of these charges involved sexual harassment4 7#c7 ,women and people of color working in low-wage jobs are particularly vulnerable to harassment in the workplace4 7#d7 ,in some industries harassment is even more widespread4 ,for example1 #hj percent of female farm-workers working in the fields in central ,california reported that they had experienced sexual harassment4 7#e7 ,studies indicate that sexual harassment of women1 including unwanted touching1 grabbing1 and stalking1 is also common in male-dominated industries1 such as construction1 public safety1 manufacturing1 farming1 and the high-tech industry4 ,harassment in male-dominated industries operates as a barrier to women's entry into higher-paying jobs4 7#f7 ,racial harassment remains a pervasive problem in the workplace in the ,united ,states4 ,in fiscal year #bjac1 more than #aa1jjj of the charges of harassment filed with the ,equal ,employment ,opportunity ,commission and ,state fair employment practices agencies were charges of racial harassment4 7#g7 ,research shows that workers in a wide spectrum of occupations1 ranging from service and support positions to management and professional positions1 report experiencing race-based harassment while on the job4 7#h7 ,harassment in the workplace is a persistent barrier to opportunity for people with disabilities4 ,harassment can result in workers with disabilities being forced off the job4 ,workplace harassment is used to send the message that workers with disabilities do not belong at work4 7#i7 ,age discrimination continues to be a barrier to employment for older workers4 ,over one-third of older workers report that they or someone they know experienced age discrimination in the workplace4 7#aj7 ,three-quarters of older ,americans surveyed are concerned that age may be an obstacle to finding work4 7#aa7 ,the ,supreme ,court's decision in ,vance v4 ,ball ,state ,university1 ,no4 #aa-eef 7,june #bd1 #bjac71 significantly undermines protections against discrimination that the ,supreme ,court established in ,faragher v4 ,boca ,raton1 #ebd ,u4,s4 #gge 7#aiih7 and ,burlington ,industries1 ,inc4 v4 ,ellerth1 #ebd ,u4,s4 #gdb 7#aiih71 which held that an employer may be vicariously liable under title ,,vii of the ,civil ,rights ,act of #aifd for harassment of an employee by an individual that has supervisory authority over that employee4 7#ab7 ,in ,faragher and ,ellerth1 the ,supreme ,court held that employers will be subject to a strict liability standard when employees with supervisory authority engage in harassment that results in tangible employment actions4 ,however1 in situations where supervisors engage in harassment that does not result in tangible employment actions1 the ,court explained1 an employer can avoid vicarious liability by showing that-- 7,a7 the employer exercised reasonable care to prevent and correct any harassing behavior2 and 7,b7 the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided4 7#ac7 ,whether an employer should be vicariously liable for harassment is a functional analysis that is based not on the title of the harasser or the employer's job description for the harasser's position but on the authority vested in that individual by the employer4 7#ad7 ,the ,supreme ,court holding in ,vance limits the category of individuals who are considered supervisors and for which an employer may be held vicariously liable under ,faragher and ,ellerth to those individuals that have authority to take tangible employment actions4 ,this holding ignores the reality that employees with the authority to control their subordinates' daily work should be included in that category1 for which an employer may be held vicariously liable1 because such individuals are aided by that authority in perpetuating a discriminatory work environment4 7#ae7 ,individuals who direct the daily work activities of employees but do not have the authority to take tangible employment actions against those employees are common in the workplace in the ,united ,states1 particularly in industries that employ low-wage workers4 ,workers in industries including retail1 restaurant1 health care1 housekeeping1 and personal care1 which may pay low wages and employ a large numbers of female workers1 are particularly vulnerable to harassment by individuals who have the power to direct day-to-day work activities but lack the power to take tangible employment actions4 7b7 ,purpose ,the purpose of this ,act is to clarify that an employer's vicarious liability for harassment under title ,,vii of the ,civil ,rights ,act of #aifd1 the ,age ,discrimination in ,employment ,act of #aifg1 the ,americans with ,disabilities ,act of #aiij1 the ,rehabilitation ,act of #aigc1 section #aigg of the ,revised ,statutes1 the ,genetic ,information ,nondiscrimination ,act of #bjjh1 the ,government ,employee ,rights ,act of #aiia1 the ,congressional ,accountability ,act of #aiie1 and title ,,iii of the ,united ,states ,code extends to-- 7#a7 an individual with the authority to undertake or recommend tangible employment actions affecting the victim of the harassment2 or 7#b7 an individual with the authority to direct the victim's daily work activities4 #c4 ,amendment to title ,,vii of the ,civil ,rights ,act of #aifd 7a7 ,standard for employer liability for hostile work environment ,section #gjc of the ,civil ,rights ,act of #aifd 7#db ,u4,s4,c4 #bjjj;e-#b7 is amended by adding at the end the following3 7o7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes an unlawful employment practice under this section if1 at the time of the harassment-- 7#a7 such individual was authorized by that employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that hostile work environment4 4 7b7 ,standard for employer liability for retaliatory hostile work environment ,section #gjd of the ,civil ,rights ,act of #aifd 7#db ,u4,s4,c4 #bjjj;e-#c7 is amended-- 7#a7 by redesignating subsection 7b7 as subsection 7c72 and 7#b7 by inserting after subsection 7a7 the following3 7b7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes an unlawful employment practice as described under subsection 7a7 if1 at the time of the harassment-- 7#a7 such individual was authorized by that employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment4 4 7c7 ,federal employees ,section #gag of the ,civil ,rights ,act of #aifd 7#db ,u4,s4,c4 #bjjj;e-#af7 is amended by adding at the end the following3 7g7 ,the provisions of sections #gjc7o7 and #gjd7;b7 shall apply to hostile work environment claims and retaliatory hostile work environment claims1 respectively1 under this section4 4 #d4 ,amendment to the ,age ,discrimination in ,employment ,act 7a7 ,standard for employer liability for hostile work environment ,section #d of the ,age ,discrimination in ,employment ,act of #aifg 7#bi ,u4,s4,c4 #fbc7 is amended by adding at the end the following3 7n7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that is unlawful under this section if1 at the time of the harassment-- 7#a7 such individual was authorized by that employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that hostile work environment4 4 7b7 ,standard for employer liability for retaliatory hostile work environment ,section #d7;d7 of the ,age ,discrimination in ,employment ,act of #aifg 7#bi ,u4,s4,c4 #fbc7 is amended by striking or litigation under this ,act4 and inserting or litigation under this ,act4 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that is unlawful under this subsection if1 at the time of the harassment-- 7#a7 such individual was authorized by that employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment4 4 7c7 ,federal employees ,section #ae of the ,age ,discrimination in ,employment ,act of #aifg 7#bi ,u4,s4,c4 #fcc;a7 is amended by adding at the end the following3 7h7 ,subsections 7d7 and 7n7 of section #d shall apply to retaliatory hostile work environment claims and hostile work environment claims1 respectively1 under this section4 4 #e4 ,amendment to the ,americans ,with ,disabilities ,act 7a7 ,standard for employer liability for hostile work environment ,section #ajb of the ,americans with ,disabilities ,act 7#db ,u4,s4,c4 #abaab7 is amended by adding at the end the following3 7e7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes discrimination against a qualified individual on the basis of disability under this section if1 at the time of the harassment-- 7#a7 such individual was authorized by the employer-- 7,a7 to undertake or recommend tangible employment actions affecting the qualified individual2 or 7,b7 to direct the qualified individual's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that hostile work environment4 4 7b7 ,standard for employer liability for retaliatory hostile work environment ,section #ejc of the ,americans with ,disabilities ,act of #aiij 7#db ,u4,s4,c4 #abbjc7 is amended-- 7#a7 by redesignating subsection 7c7 as subsection 7d72 7#b7 by inserting after subsection 7b7 the following3 7c7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes retaliatory discrimination1 as described in subsection 7a71 or the carrying out of any unlawful acts described in subsection 7b71 if1 at the time of the harassment-- 7#a7 such individual was authorized by the employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment4 2 and 7#c7 in subsection 7d71 as redesignated by paragraph 7#a71 by striking subsections 7a7 and 7b7 and inserting subsections 7a71 7b71 and 7c74 #f4 ,amendment to the ,rehabilitation ,act 7a7 ,standard for employer liability for hostile work environment and ,retaliatory ,hostile ,work ,environment ,section #eja of the ,rehabilitation ,act of #aigc 7#bi ,u4,s4,c4 #gia7 is amended by adding at the end the following3 7h7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 each department1 agency1 and instrumentality in the executive branch of ,government and the ,smithsonian ,institution shall be liable for the acts of any individual within such department1 agency1 instrumentality1 or the ,smithsonian ,institution whose harassment of an individual with a disability has created or continued a hostile work environment1 or a retaliatory hostile work environment1 that constitutes nonaffirmative action employment discrimination under this section if1 at the time of the harassment-- 7#a7 such individual was authorized by that department1 agency1 instrumentality1 or the ,smithsonian ,institution-- 7,a7 to undertake or recommend tangible employment actions affecting the individual with a disability2 or 7,b7 to direct the daily work activities of the individual with a disability2 or 7#b7 the negligence of that department1 agency1 instrumentality1 or the ,smithsonian ,institution led to the creation or continuation of that hostile work environment or retaliatory hostile work environment4 4 7b7 ,standard for employer liability for hostile work environment and retaliatory hostile work environment ,section #ejd of the ,rehabilitation ,act of #aigc 7#bi ,u4,s4,c4 #gid7 is amended by adding at the end the following3 7e7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer described under subsection 7b7 shall be liable for the acts of any individual whose harassment of a qualified individual with a disability has created or continued a hostile work environment1 or a retaliatory hostile work environment1 that constitutes employment discrimination under this section if1 at the time of the harassment-- 7#a7 such individual was authorized by such employer-- 7,a7 to undertake or recommend tangible employment actions affecting the qualified individual with a disability2 or 7,b7 to direct the daily work activities of the qualified individual with a disability2 or 7#b7 the negligence of such employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment4 4 7c7 ,remedies ,section #eje of the ,rehabilitation ,act 7#bi ,u4,s4,c4 #gid;a7 is amended by adding at the end of subsection 7a7 the following3 7#c7 ,sections #eja7;h7 and #ejd7;e7 shall apply to hostile work environment claims and retaliatory hostile work environment claims under this section4 4 #g4 ,amendment to section #aigg of the ,revised ,statutes ,section #aigg of the ,revised ,statutes 7#db ,u4,s4,c4 #aiha7 is amended by adding at the end the following3 7d7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 a nongovernmental employer shall be liable for the acts of any individual whose harassment of an employee has created a hostile work environment or a retaliatory hostile work environment1 constituting an unlawful employment practice1 if1 at the time of the harassment-- 7#a7 such individual was authorized by the employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment4 4 #h4 ,amendment to the ,genetic ,information ,nondiscrimination ,act of #bjjh 7a7 ,standard for employer liability for hostile work environment ,section #bjb of the ,genetic ,information ,nondiscrimination ,act of #bjjh 7#db ,u4,s4,c4 #bjjj;ff-#a7 is amended by adding at the end the following3 7d7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes an unlawful employment practice under this section if1 at the time of the harassment-- 7#a7 such individual was authorized by the employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that hostile work environment4 4 7b7 ,standard for employer liability for retaliatory hostile work environment ,section #bjg7;f7 of the ,genetic ,information ,nondiscrimination ,act 7#db ,u4,s4,c4 #bjjj;ff-#f7;f77 is amended by striking violations of this subsection4 and inserting violations of this subsection4 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes discrimination under this subsection if1 at the time of the harassment-- 7#a7 such individual was authorized by the employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment4 4 #i4 ,amendment to the ,government ,employee ,rights ,act of #aiia ,section #cjb of the ,government ,employee ,rights ,act of #aiia 7#db ,u4,s4,c4 #bjjj;e-#af;b7 is amended by adding at the end the following3 7c7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employer of an individual described under section #cjd7;a7 shall be liable for the acts of any individual whose harassment of a ,state employee described in section #cjd has created or continued a hostile work environment or a retaliatory hostile work environment constituting discrimination under this section1 if at the time of the harassment-- 7#a7 such individual was authorized by such employer-- 7,a7 to undertake or recommend tangible employment actions affecting the employee2 or 7,b7 to direct the employee's daily work activities2 or 7#b7 the negligence of the employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment4 4 #aj4 ,amendment to title #c of the ,united ,states ,code ,section #daa of title #c1 ,united ,states ,code1 is amended-- 7#a7 by redesignating subsections 7c7 through 7f7 as subsections 7d7 through 7g71 respectively2 and 7#b7 by inserting after subsection 7b7 the following3 7c7 ,liability of employing office ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employing office shall be liable for the acts of any individual whose harassment of a covered employee has created or continued a hostile work environment or a retaliatory hostile work environment constituting discrimination under this section if1 at the time of the harassment-- 7#a7 such individual was authorized by the employing office-- 7,a7 to undertake or recommend tangible employment actions affecting the covered employee2 or 7,b7 to direct the covered employee's daily work activities2 or 7#b7 the negligence of the employing office led to the creation or continuation of that hostile work environment or retaliatory hostile work environment4 2 and 7#c7 in subsection 7f71 as redesignated by paragraph 7#b71 by striking 8subsections 7a7 through 7c70 and inserting 8subsections 7a7 through 7d704 #aa4 ,amendment to the ,congressional ,accountability ,act of #aiie ,section #bja of the ,congressional ,accountability ,act of #aiie 7#b ,u4,s4,c4 #acaa7 is amended-- 7#a7 by redesignating subsection 7d7 as subsection 7e72 and 7#b7 by inserting after subsection 7c7 the following3 7d7 ,subject to section #ab of the ,fair ,employment ,protection ,act of #bjad1 an employing office shall be liable for the acts of any individual whose harassment of a covered employee has created or continued a hostile work environment or a retaliatory hostile work environment that constitutes discrimination under this section if1 at the time of the harassment-- 7#a7 such individual was authorized by the employing office-- 7,a7 to undertake or recommend tangible employment actions affecting the covered employee2 or 7,b7 to direct the covered employee's daily work activities2 or 7#b7 the negligence of the employing office led to the creation or continuation of that hostile work environment or retaliatory hostile work environment4 4 #ab4 ,rule of construction ,nothing in this ,act shall be construed to limit the availability of1 or access to1 defenses available under the law4 #ac4 ,savings clause ,if any provision of this ,act is declared invalid1 the other provisions in this ,act will remain in full force and effect4 #ad4 ,application ,this ,act1 and the amendments made by this ,act1 shall apply to all claims pending on or after the date of enactment of this ,act4