S. 815 — Engrossed in Senate

113th CONGRESS 1st Session S. 815 AN ACT To prohibit employment discrimination on the basis of sexual orientation or gender identity. 1. Short title This Act may be cited as the Employment Non-Discrimination Act of 2013. 2. Purposes The purposes of this Act are— (1) to address the history and persistent, widespread pattern of discrimination on the bases of sexual orientation and gender identity by private sector employers and local, State, and Federal Government employers; (2) to provide an explicit, comprehensive Federal prohibition against employment discrimination on the bases of sexual orientation and gender identity, including meaningful and effective remedies for any such discrimination; (3) to invoke congressional powers, including the powers to enforce the 14th Amendment to the Constitution, and to regulate interstate commerce pursuant to section 8 of article I of the Constitution, in order to prohibit employment discrimination on the bases of sexual orientation and gender identity; and (4) to reinforce the Nation's commitment to fairness and equal opportunity in the workplace consistent with the fundamental right of religious freedom. 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) Demonstrates The term demonstrates means meets the burdens of production and persuasion. (4) 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 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. (5) 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 (4)) 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. (6) 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)). (7) Gender identity The term gender identity means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth. (8) 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)). (9) 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)). (10) Sexual orientation The term sexual orientation means homosexuality, heterosexuality, or bisexuality. (11) 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 subsection (a)(4)) or an employer (as defined in subsection (a)(5)), respectively, except as provided in paragraph (2) of this subsection; and (2) to an employer in subsection (f) of that section shall be considered to refer to an employer (as defined in subsection (a)(5)(A)). 4. Employment 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 discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation or gender identity; 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 actual or perceived sexual orientation or gender identity. (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 actual or perceived sexual orientation or gender identity of the individual or to classify or refer for employment any individual on the basis of the actual or perceived sexual orientation or gender identity 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 actual or perceived sexual orientation or gender identity 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 actual or perceived sexual orientation or gender identity; 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 actual or perceived sexual orientation or gender identity 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 actual or perceived sexual orientation or gender identity of a person with whom the individual associates or has associated. (f) No preferential treatment or Quotas Nothing in this Act shall be construed or interpreted to require or permit— (1) any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any actual or perceived sexual orientation or gender identity 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 of such actual or perceived sexual orientation or gender identity in any community, State, section, or other area, or in the available work force in any community, State, section, or other area; or (2) the adoption or implementation by a covered entity of a quota on the basis of actual or perceived sexual orientation or gender identity. (g) No disparate impact claims Only disparate treatment claims may be brought under this Act. (h) Standards of proof Except as otherwise provided, an unlawful employment practice is established when the complaining party demonstrates that sexual orientation or gender identity was a motivating factor for any employment practice, even though other factors also motivated the practice. 5. Retaliation prohibited It shall be an unlawful employment practice for a covered entity to discriminate against an individual because such individual— (1) opposed any practice made an unlawful employment practice by this Act; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act. 6. Exemption for Religious Organizations (a) In general This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e–1(a), 2000e–2(e)(2)) (referred to in this section as a religious employer). (b) Prohibition on certain government actions A religious employer's exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer's participation in programs or activities sponsored by that Federal, State, or local agency. Nothing in this subsection shall be construed to invalidate any other Federal, State, or local law (including a regulation) that otherwise applies to a religious employer exempt under this section. 7. 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 title does not repeal or modify any Federal, State, territorial, or local law creating a special right or preference concerning employment for a veteran. 8. Construction (a) Dress or grooming standards Nothing in this Act shall prohibit an employer from requiring an employee, during the employee’s hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that the employer permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after the time of employment, to adhere to the same dress or grooming standards as apply for the gender to which the employee has transitioned or is transitioning. (b) Additional facilities not required Nothing in this Act shall be construed to require the construction of new or additional facilities. 9. Collection of statistics prohibited The Commission and the Secretary of Labor shall neither compel the collection of nor require the production of statistics on actual or perceived sexual orientation or gender identity from covered entities pursuant to this Act. 10. 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; and (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 Except as provided in section 4(g), 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) No double recovery An individual who files claims alleging that a practice is an unlawful employment practice under this Act and an unlawful employment practice because of sex under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) shall not be permitted to recover damages for such practice under both of— (1) this Act; and (2) section 1977A of the Revised Statutes (42 U.S.C. 1981a) and title VII of the Civil Rights Act of 1964. (e) Motivating factor decisions On a claim in which an individual proved a violation under section 4(h) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court— (1) may grant declaratory relief, injunctive relief (except as provided in paragraph (2)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 4(h); and (2) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment. 11. State and Federal immunity (a) Abrogation of State immunity A State shall not be immune under the 11th Amendment to the Constitution from a suit brought in a Federal court of competent jurisdiction for a violation of this Act. (b) Waiver of State immunity (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 (d). (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) Effective date With respect to a particular program or activity, paragraph (1) applies 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 State 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 10, 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). (d) 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)). 12. Attorneys’ fees (a) Definition For purposes of this section, the term decisionmaker means an entity described in section 10(a) (other than paragraph (4) of such section), acting in the discretion of the entity. (b) Authority Notwithstanding any other provision of this Act, in an action or administrative proceeding for a violation of this Act, a decisionmaker 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, to the same extent as is permitted under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c), the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.), or chapter 5 of title 3, United States Code, whichever applies to the prevailing party in that action or proceeding. The Commission and the United States shall be liable for the costs to the same extent as a private person. 13. Posting notices A covered entity who is required to post a notice described in section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–10) may be required to post an amended notice, including a description of 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. Nothing in this Act shall be construed to require a separate notice to be posted. 14. 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 10(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, and applicants for employment as such employees. 15. 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 regulation or any law or regulation of a State or political subdivision of a State. 16. 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 circumstances shall not be affected by the invalidity. 17. Effective date This Act shall take effect on the date that is 6 months after the date of enactment of this Act and shall not apply to conduct occurring before the effective date. Passed the Senate November 7, 2013.Secretary