[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 869 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 869

     To prohibit employment discrimination on the basis of sexual 
                              orientation.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 10, 1997

Mr. Jeffords (for himself, Mr. Kennedy, Mr. Lieberman, Mr. Torricelli, 
  Mr. Wyden, Mr. Bingaman, Mr. Kerry, Mr. Wellstone, Mr. Harkin, Ms. 
    Landrieu, Mr. Feingold, Mrs. Murray, Mrs. Boxer, Mr. Levin, Mr. 
Sarbanes, Mr. Akaka, Mr. Lautenberg, Mr. Durbin, Mr. Chafee, Mr. Kohl, 
 Mr. Inouye, Ms. Mikulski, Mr. Robb, Mr. Moynihan, Mrs. Feinstein, Mr. 
Dodd, Mr. Reid, Mr. Leahy, Mr. Bryan, Ms. Moseley-Braun, Mr. Glenn, Mr. 
    Kerrey, Mr. Reed, Mr. D'Amato, and Mr. Cleland) introduced the 
 following bill; which was read twice and referred to the Committee on 
                       Labor and Human Resources

_______________________________________________________________________

                                 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 
1997''.

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, in order to prohibit employment 
        discrimination on the basis of sexual orientation.

SEC. 3. DEFINITIONS.

    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, joint labor-
        management committee, an entity to which section 717(a) of the 
        Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies, an 
        employing authority to which section 302(a)(1) of the 
        Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) 
        applies, or an employing office, as defined in section 101 of 
        the Congressional Accountability Act of 1995 (2 U.S.C. 1301). 
        The term ``covered entity'' includes an employing office, as 
        defined in section 401 of title 3, United States Code.
            (3) Employer.--The term ``employer'' means 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 section 701(f) of such Act 
        (42 U.S.C. 2000e(f)) 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 such term 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.
            (4) 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)).
            (5) Employment or an employment opportunity.--Except as 
        provided in section 10(a)(1), the term ``employment or an 
        employment opportunity'' includes job application procedures, 
        hiring, advancement, discharge, compensation, job training, or 
        any other term, condition, or privilege of employment, but does 
        not include the service of a volunteer for which the volunteer 
        receives no compensation.
            (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)).

SEC. 4. DISCRIMINATION PROHIBITED.

    A covered entity shall not, with respect to the employment or an 
employment opportunity of an individual--
            (1) subject the individual to a different standard or 
        different treatment, or otherwise discriminate against the 
        individual, on the basis of sexual orientation; or
            (2) discriminate against the individual based on the sexual 
        orientation of a person with whom the individual is believed to 
        associate or to have associated.

SEC. 5. RETALIATION AND COERCION PROHIBITED.

    (a) Retaliation.--A covered entity shall not discriminate against 
an individual because the individual opposed any act or practice 
prohibited by this Act or because the individual made a charge, 
assisted, testified, or participated in any manner in an investigation, 
proceeding, or hearing under this Act.
    (b) Coercion.--A person shall not coerce, intimidate, threaten, or 
interfere with any individual in the exercise or enjoyment of, or on 
account of the individual's having exercised, enjoyed, assisted in, or 
encouraged the exercise or enjoyment of, any right granted or protected 
by this Act.

SEC. 6. BENEFITS.

    This Act does not apply to the provision of employee benefits to an 
individual for the benefit of the partner of the individual.

SEC. 7. NO DISPARATE IMPACT; COLLECTION OF STATISTICS.

    (a) Disparate Impact.--The fact that an employment practice has a 
disparate impact, as the term ``disparate impact'' is used in section 
703(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(k)), on the 
basis of sexual orientation does not establish a prima facie violation 
of this Act.
    (b) Collection of Statistics.--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) Consent Decrees.--The Commission may not enter into a consent 
decree that includes a quota, or preferential treatment to an 
individual, based on sexual orientation.

SEC. 9. RELIGIOUS EXEMPTION.

    (a) In General.--Except as provided in subsection (b), this Act 
shall not apply to a religious organization.
    (b) Unrelated Business Taxable Income.--This Act shall apply to 
employment or an employment opportunity for an employment position of a 
covered entity that is a religious organization, if the duties of the 
position pertain solely to activities of the organization that generate 
unrelated business taxable income subject to taxation under section 
511(a) of the Internal Revenue Code of 1986.

SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS' 
              PREFERENCES.

    (a) Armed Forces.--
            (1) Employment or an employment opportunity.--In this Act, 
        the term ``employment or an employment opportunity'' 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 or an employment opportunity for a 
veteran.

SEC. 11. CONSTRUCTION.

    Nothing in this Act shall be construed to prohibit a covered entity 
from enforcing rules regarding nonprivate sexual conduct, if the rules 
of conduct are designed for, and uniformly applied to, all individuals 
regardless of sexual orientation.

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 (2 U.S.C. 1202 and 1220);
        in the case of a claim alleged by the individual for a 
        violation of such title or of section 302(a)(1) of such Act (2 
        U.S.C. 1202(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 the 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 the 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 (2 U.S.C. 1202 and 1220);
        in the case of a claim alleged by the individual for a 
        violation of such title or of section 302(a)(1) of such Act (2 
        U.S.C. 1202(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 the 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 
                the individual for a violation of such title;
                    (B) sections 302 and 304 of the Government Employee 
                Rights Act of 1991 (2 U.S.C. 1202 and 1220) in the case 
                of a claim alleged by the individual for a violation of 
                section 302(a)(1) of such Act (2 U.S.C. 1202(a)(1));
                    (C) the Congressional Accountability Act of 1995 (2 
                U.S.C. 1301 et seq.) in the case of a claim alleged by 
                the 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 the 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 the 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 (2 U.S.C. 1202(a)(1)) in the case of a claim alleged by 
        the 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 
        the 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 the 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)).

SEC. 13. STATE AND FEDERAL IMMUNITY.

    (a) State Immunity.--A State shall not be immune under the 11th 
amendment to the Constitution from an action in a Federal court of 
competent jurisdiction for a violation of this Act.
    (b) 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 United States, a reasonable attorney's fee (including expert 
fees) as part of the costs. The United States shall be liable for the 
costs to the same extent as a private person.

SEC. 15. POSTING NOTICES.

    A covered entity 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 (42 U.S.C. 2000e-10).

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 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 401 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.

    (a) In General.--Except as provided in subsection (b), 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.
    (b) Presidential Offices.--The second sentence of section 3(2), and 
sections 12(a)(5), 12(a)(6)(D), 12(b)(4), and 16(d), shall take effect 
on, and shall not apply to conduct occurring before, the later of--
            (1) October 1, 1997; and
            (2) the effective date described in subsection (a).
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