[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1705 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                S. 1705

     To prohibit employment discrimination on the basis of sexual 
                              orientation.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 2, 2003

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

_______________________________________________________________________

                                 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 
2003''.

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 (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.
            (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 (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;
            (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.--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) 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.
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