[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1284 Reported in Senate (RS)]






                                                       Calendar No. 763
107th CONGRESS
  2d Session
                                S. 1284

                          [Report No. 107-341]

     To prohibit employment discrimination on the basis of sexual 
                              orientation.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2001

  Mr. Kennedy (for himself, Mr. Specter, Mr. Jeffords, Mr. Lieberman, 
Mr. Daschle, Mr. Akaka, Mr. Baucus, Mr. Bayh, Mr. Biden, Mr. Bingaman, 
  Mrs. Boxer, Ms. Cantwell, Mr. Carper, Mr. Chafee, Mr. Cleland, Mrs. 
 Clinton, Mr. Corzine, Mr. Dayton, Mr. Dodd, Mr. Durbin, Mr. Edwards, 
 Mr. Feingold, Mrs. Feinstein, Mr. Harkin, Mr. Inouye, Mr. Kerry, Mr. 
 Kohl, Ms. Landrieu, Mr. Leahy, Mr. Levin, Ms. Mikulski, Mrs. Murray, 
 Mr. Nelson of Florida, Mr. Reed, Mr. Reid, Mr. Sarbanes, Mr. Schumer, 
 Mr. Smith of Oregon, Ms. Stabenow, Mr. Torricelli, Mr. Wellstone, Mr. 
   Wyden, Mrs. Carnahan, Mr. Breaux, and Ms. Collins) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Health, Education, Labor, and Pensions

                           November 15, 2002

               Reported by Mr. Kennedy, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Employment Non-
Discrimination Act of 2001''.</DELETED>

<DELETED>SEC. 2. PURPOSES.</DELETED>

<DELETED>    The purposes of this Act are--</DELETED>
        <DELETED>    (1) to provide a comprehensive Federal prohibition 
        of employment discrimination on the basis of sexual 
        orientation;</DELETED>
        <DELETED>    (2) to provide meaningful and effective remedies 
        for employment discrimination on the basis of sexual 
        orientation; and</DELETED>
        <DELETED>    (3) to invoke congressional powers, including the 
        powers to enforce the 14th amendment to the Constitution, and 
        to regulate interstate commerce and provide for the general 
        welfare pursuant to section 8 of article I of the Constitution, 
        in order to prohibit employment discrimination on the basis of 
        sexual orientation.</DELETED>

<DELETED>SEC. 3. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) Commission.--The term ``Commission'' means the 
        Equal Employment Opportunity Commission.</DELETED>
        <DELETED>    (2) Covered entity.--The term ``covered entity'' 
        means an employer, employment agency, labor organization, or 
        joint labor-management committee.</DELETED>
        <DELETED>    (3) Employee.--</DELETED>
                <DELETED>    (A) In general.--The term ``employee'' 
                means--</DELETED>
                        <DELETED>    (i) an employee (as defined in 
                        section 701(f) of the Civil Rights Act of 1964 
                        (42 U.S.C. 2000e(f));</DELETED>
                        <DELETED>    (ii) a Presidential appointee or 
                        State employee to which section 302(a)(1) of 
                        the Government Employee Rights Act of 1991 (2 
                        U.S.C. 1202(a)(1)) applies;</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (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.</DELETED>
                <DELETED>    (B) Exception.--The term does not include 
                a volunteer who receives no compensation.</DELETED>
        <DELETED>    (4) Employer.--The term ``employer'' means--
        </DELETED>
                <DELETED>    (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 (3)) 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;</DELETED>
                <DELETED>    (B) an employing authority to which 
                section 302(a)(1) of the Government Employee Rights Act 
                of 1991 applies;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (D) an entity to which section 717(a) of 
                the Civil Rights Act of 1964 applies.</DELETED>
        <DELETED>    (5) 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)).</DELETED>
        <DELETED>    (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)).</DELETED>
        <DELETED>    (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)).</DELETED>
        <DELETED>    (8) Religious organization.--The term ``religious 
        organization'' means--</DELETED>
                <DELETED>    (A) a religious corporation, association, 
                or society; or</DELETED>
                <DELETED>    (B) a school, college, university, or 
                other educational institution or institution of 
                learning, if--</DELETED>
                        <DELETED>    (i) the institution is in whole or 
                        substantial part controlled, managed, owned, or 
                        supported by a religion, religious corporation, 
                        association, or society; or</DELETED>
                        <DELETED>    (ii) the curriculum of the 
                        institution is directed toward the propagation 
                        of a religion.</DELETED>
        <DELETED>    (9) Sexual orientation.--The term ``sexual 
        orientation'' means homosexuality, bisexuality, or 
        heterosexuality, whether the orientation is real or 
        perceived.</DELETED>
        <DELETED>    (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)).</DELETED>

<DELETED>SEC. 4. DISCRIMINATION PROHIBITED.</DELETED>

<DELETED>    (a) Employer Practices.--It shall be an unlawful 
employment practice for an employer--</DELETED>
        <DELETED>    (1) to fail or refuse to hire or to discharge any 
        individual, or otherwise to discriminate against any individual 
        with respect to the compensation, terms, conditions, or 
        privileges of employment of the individual, because of such 
        individual's sexual orientation; or</DELETED>
        <DELETED>    (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 sexual 
        orientation.</DELETED>
<DELETED>    (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 sexual orientation of the individual or to classify or 
refer for employment any individual on the basis of the sexual 
orientation of the individual.</DELETED>
<DELETED>    (c) Labor Organization Practices.--It shall be an unlawful 
employment practice for a labor organization--</DELETED>
        <DELETED>    (1) to exclude or to expel from its membership, or 
        otherwise to discriminate against, any individual because of 
        the sexual orientation of the individual;</DELETED>
        <DELETED>    (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 
        sexual orientation; or</DELETED>
        <DELETED>    (3) to cause or attempt to cause an employer to 
        discriminate against an individual in violation of this 
        section.</DELETED>
<DELETED>    (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 sexual orientation of the 
individual in admission to, or employment in, any program established 
to provide apprenticeship or other training.</DELETED>
<DELETED>    (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 sexual orientation of a person with whom the 
individual associates or has associated.</DELETED>
<DELETED>    (f) Disparate Impact.--Notwithstanding any other provision 
of this Act, 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.</DELETED>

<DELETED>SEC. 5. RETALIATION AND COERCION PROHIBITED.</DELETED>

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

<DELETED>SEC. 6. BENEFITS.</DELETED>

<DELETED>    This Act does not apply to the provision of employee 
benefits to an individual for the benefit of the domestic partner of 
such individual.</DELETED>

<DELETED>SEC. 7. COLLECTION OF STATISTICS PROHIBITED.</DELETED>

<DELETED>    The Commission shall not collect statistics on sexual 
orientation from covered entities, or compel the collection of such 
statistics by covered entities.</DELETED>

<DELETED>SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT 
              PROHIBITED.</DELETED>

<DELETED>    (a) Quotas.--A covered entity shall not adopt or implement 
a quota on the basis of sexual orientation.</DELETED>
<DELETED>    (b) Preferential Treatment.--A covered entity shall not 
give preferential treatment to an individual on the basis of sexual 
orientation.</DELETED>
<DELETED>    (c) Orders and Consent Decrees.--Notwithstanding any other 
provision of this Act, an order or consent decree entered for a 
violation of this Act may not include a quota, or preferential 
treatment to an individual, based on sexual orientation.</DELETED>

<DELETED>SEC. 9. RELIGIOUS EXEMPTION.</DELETED>

<DELETED>    This Act shall not apply to a religious 
organization.</DELETED>

<DELETED>SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; 
              VETERANS' PREFERENCES.</DELETED>

<DELETED>    (a) Armed Forces.--</DELETED>
        <DELETED>    (1) Employment.--In this Act, the term 
        ``employment'' does not apply to the relationship between the 
        United States and members of the Armed Forces.</DELETED>
        <DELETED>    (2) Armed forces.--In paragraph (1), the term 
        ``Armed Forces'' means the Army, Navy, Air Force, Marine Corps, 
        and Coast Guard.</DELETED>
<DELETED>    (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 for a veteran.</DELETED>

<DELETED>SEC. 11. CONSTRUCTION.</DELETED>

<DELETED>    (a) Nonprivate Conduct.--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.</DELETED>
<DELETED>    (b) Association.--Nothing in this Act shall be construed 
to prohibit any association, or infringe upon any right of association, 
guaranteed by the first amendment to the Constitution, of any 
nonprofit, voluntary membership organization.</DELETED>

<DELETED>SEC. 12. ENFORCEMENT.</DELETED>

<DELETED>    (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--</DELETED>
        <DELETED>    (1) the Commission shall have the same powers as 
        the Commission has to administer and enforce--</DELETED>
                <DELETED>    (A) title VII of the Civil Rights Act of 
                1964 (42 U.S.C. 2000e et seq.); or</DELETED>
                <DELETED>    (B) sections 302 and 304 of the Government 
                Employee Rights Act of 1991 (2 U.S.C. 1202 and 
                1220);</DELETED>
        <DELETED>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 (2 U.S.C. 1202(a)(1)), 
        respectively;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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));</DELETED>
        <DELETED>    (4) the Attorney General shall have the same 
        powers as the Attorney General has to administer and enforce--
        </DELETED>
                <DELETED>    (A) title VII of the Civil Rights Act of 
                1964 (42 U.S.C. 2000e et seq.); or</DELETED>
                <DELETED>    (B) sections 302 and 304 of the Government 
                Employee Rights Act of 1991 (2 U.S.C. 1202 and 
                1220);</DELETED>
        <DELETED>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 (2 U.S.C. 1202(a)(1)), 
        respectively;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (6) a court of the United States shall have the 
        same jurisdiction and powers as the court has to enforce--
        </DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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 such individual for a 
                violation of section 302(a)(1) of such Act (2 U.S.C. 
                1202(a)(1));</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (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.</DELETED>
<DELETED>    (b) Procedures and Remedies.--The procedures and remedies 
applicable to a claim alleged by an individual for a violation of this 
Act are--</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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 such individual for a violation of such 
        section;</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (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)).</DELETED>
<DELETED>    (d) Prohibition of Affirmative Action.--Notwithstanding 
any other provision of this section, affirmative action for a violation 
of this Act may not be imposed. Nothing in this section shall prevent 
the granting of relief to any individual who suffers a violation of 
such individual's rights provided in this Act.</DELETED>

<DELETED>SEC. 13. STATE AND FEDERAL IMMUNITY.</DELETED>

<DELETED>    (a) State Immunity.--A State shall not be immune under the 
11th amendment to the Constitution from a suit described in subsection 
(b) and brought in a Federal court of competent jurisdiction for a 
violation of this Act.</DELETED>
<DELETED>    (b) Remedies for State Employees.--</DELETED>
        <DELETED>    (1) In general.--</DELETED>
                <DELETED>    (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 (c).</DELETED>
                <DELETED>    (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).</DELETED>
        <DELETED>    (2) 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 12, 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).</DELETED>
        <DELETED>    (3) Effective date.--With respect to a particular 
        program or activity, paragraphs (1) and (2) apply 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.</DELETED>
<DELETED>    (c) 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--</DELETED>
        <DELETED>    (1) punitive damages are not available; 
        and</DELETED>
        <DELETED>    (2) compensatory damages are available to the 
        extent specified in section 1977A(b) of the Revised Statutes 
        (42 U.S.C. 1981a(b)).</DELETED>

<DELETED>SEC. 14. ATTORNEYS' FEES.</DELETED>

<DELETED>    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 Commission or the United States, a reasonable 
attorney's fee (including expert fees) as part of the costs. The 
Commission and the United States shall be liable for the costs to the 
same extent as a private person.</DELETED>

<DELETED>SEC. 15. POSTING NOTICES.</DELETED>

<DELETED>    A covered entity who is required to post notices described 
in section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) 
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.</DELETED>

<DELETED>SEC. 16. REGULATIONS.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (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).</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 17. RELATIONSHIP TO OTHER LAWS.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 18. SEVERABILITY.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 19. EFFECTIVE DATE.</DELETED>

<DELETED>    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.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Employment Non-Discrimination Act of 
2002''.

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 and provide for the general welfare 
        pursuant to section 8 of article I of the Constitution, in 
        order to prohibit employment discrimination on the basis of 
        sexual orientation.

SEC. 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) 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 Presidential appointee or State 
                        employee to which section 302(a)(1) of the 
                        Government Employee Rights Act of 1991 (2 
                        U.S.C. 1202(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.
            (4) 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 (3)) 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.
            (5) 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)).
            (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)).
    (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 paragraph (3)) or an 
        employer (as defined in paragraph (4)), respectively, except as 
        provided in paragraph (2); and
            (2) to an employer in subsection (f) of that section shall 
        be considered to refer to an employer (as defined in paragraph 
        (4)(A)).

SEC. 4. 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 to discriminate against any individual 
        with respect to the compensation, terms, conditions, or 
        privileges of employment of the individual, because of such 
        individual's sexual orientation; 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 sexual orientation.
    (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 sexual orientation of the individual or to classify or 
refer for employment any individual on the basis of the sexual 
orientation 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 sexual orientation 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 sexual orientation; 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 sexual orientation 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 
sexual orientation of a person with whom the individual associates or 
has associated.
    (f) Disparate Impact.--Only disparate treatment claims may be 
brought under this Act.

SEC. 5. RETALIATION PROHIBITED.

    It shall be an unlawful employment practice for a covered entity to 
discriminate against an individual because such individual opposed any 
practice made an unlawful employment practice by this Act, or because 
such individual made a charge, testified, assisted, or participated in 
any manner in an investigation, proceeding, or hearing under this Act.

SEC. 6. BENEFITS.

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

SEC. 7. COLLECTION OF STATISTICS PROHIBITED.

    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) Orders and Consent Decrees.--Notwithstanding any other 
provision of this Act, an order or consent decree entered for a 
violation of this Act may not include a quota, or preferential 
treatment to an individual, based on sexual orientation.

SEC. 9. RELIGIOUS EXEMPTION.

    This Act shall not apply to a religious organization.

SEC. 10. 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 Act does not repeal or modify any 
Federal, State, territorial, or local law creating a special right or 
preference concerning employment for a veteran.

SEC. 11. CONSTRUCTION.

    (a) Employer Rules and Policies.--Nothing in this Act shall be 
construed to prohibit a covered entity from enforcing rules and 
policies, if the rules or policies are designed for, and uniformly 
applied to, all individuals regardless of sexual orientation.
    (b) Association.--Nothing in this Act shall be construed to 
prohibit any association, or infringe upon any right of association, 
guaranteed by the first amendment to the Constitution, of any 
nonprofit, voluntary membership organization.

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 such individual for a 
        violation of such title, or of section 302(a)(1) of the 
        Government Employee Rights Act of 1991 (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 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 (2 U.S.C. 1202 and 1220);
        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 (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 such 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 
                such 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 such 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 
                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.--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 (2 U.S.C. 1202(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) Prohibition of Affirmative Action.--Notwithstanding any other 
provision of this section, affirmative action for a violation of this 
Act may not be imposed. Nothing in this section shall prevent the 
granting of relief to any individual who suffers a violation of such 
individual's rights provided in this Act.

SEC. 13. STATE AND FEDERAL IMMUNITY.

    (a) State Immunity.--A State shall not be immune under the 11th 
amendment to the Constitution from a suit described in subsection (b) 
and brought in a Federal court of competent jurisdiction for a 
violation of this Act.
    (b) Remedies for State Employees.--
            (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 
                (c).
                    (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) 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 12, 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).
            (3) Effective date.--With respect to a particular program 
        or activity, paragraphs (1) and (2) apply 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 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 Commission or the United States, a reasonable attorney's fee 
(including expert fees) as part of the costs. The Commission and the 
United States shall be liable for the costs to the same extent as a 
private person.

SEC. 15. POSTING NOTICES.

    A covered entity who is required to post notices described in 
section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) 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.

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 and applicants for employment 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 411(c) 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.

    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.
                                                       Calendar No. 763

107th CONGRESS

  2d Session

                                S. 1284

                          [Report No. 107-341]

Rule___________________________________________________________________

                                 A BILL

     To prohibit employment discrimination on the basis of sexual 
                              orientation.

Rule___________________________________________________________________

                           November 15, 2002

                       Reported with an amendment