[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1471 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1471

      To prohibit discrimination in employment on the basis of an 
            individual's status or history of unemployment.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 2, 2011

 Mr. Blumenthal (for himself, Mrs. Gillibrand, and Mr. Brown of Ohio) 
introduced the following bill; which was read twice and referred to the 
          Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
      To prohibit discrimination in employment on the basis of an 
            individual's status or history of unemployment.

    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 ``Fair Employment Opportunity Act of 
2011''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds that denial of employment 
opportunities to individuals because they are or have been unemployed 
is discriminatory and burdens commerce by--
            (1) reducing personal consumption and undermining economic 
        stability and growth;
            (2) squandering human capital essential to the Nation's 
        economic vibrancy and growth;
            (3) increasing demands for Federal and State unemployment 
        insurance benefits, reducing trust fund assets, and leading to 
        higher payroll taxes for employers, cuts in benefits for 
        jobless workers, or both;
            (4) imposing additional burdens on publicly funded health 
        and welfare programs; and
            (5) depressing income, property, and other tax revenues 
        that the Federal Government, States, and localities rely on to 
        support operations and institutions essential to commerce.
    (b) Purposes.--The purposes of this Act are--
            (1) to prohibit consideration of an individual's status as 
        unemployed in considering applicants for, screening for, or 
        hiring for positions, except where a requirement related to 
        employment status is a bona fide occupational qualification 
        reasonably necessary to successful performance in the job; and
            (2) to eliminate the burdens imposed on commerce due to the 
        exclusion of such individuals from employment.

           TITLE I--FAIR EMPLOYMENT FOR NONFEDERAL EMPLOYEES

SEC. 101. DEFINITIONS.

    As used in this Act--
            (1) the term ``affected individual'' means any person who 
        was not considered for employment, or was not hired by an 
        employer, as an employee, because of the person's current 
        employment status (current as of the date of the decision 
        concerning consideration or hiring), or any person who was not 
        considered, screened, or referred for an employment 
        opportunity, as an employee, by an employment agency because of 
        the person's current employment status (current as of the date 
        of the decision concerning consideration, screening, or 
        referral);
            (2) the term ``employee'' has the meaning given the term in 
        section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 
        203), but shall not include an employee covered under 
        subchapter V of chapter 63 of title 5, United States Code;
            (3) the term ``employer''--
                    (A) means any person engaged in commerce or any 
                industry or activity affecting commerce who has 15 or 
                more employees for each working day in each of 20 or 
                more calendar weeks in the current or preceding 
                calendar year;
                    (B) includes--
                            (i) any person who acts, directly or 
                        indirectly, in the interest of an employer 
                        described in subparagraph (A) with respect to 
                        employing individuals to work for the employer; 
                        and
                            (ii) any successor in interest of an 
                        employer described in subparagraph (A);
                    (C) includes any public agency, as defined in 
                section 3 of the Fair Labor Standards Act of 1938 (29 
                U.S.C. 203), but shall not include an employing agency 
                covered under subchapter V of chapter 63 of title 5, 
                United States Code; and
                    (D) includes the Government Printing Office and the 
                Library of Congress;
            (4) the term ``employment agency'' means any person 
        regularly undertaking with or without compensation to procure 
        employees for an employer or to procure for individuals 
        opportunities to work as employees for an employer and includes 
        an agent of such a person, and includes any person who 
        maintains an Internet website that publishes advertisements or 
        announcements of openings in jobs for employees;
            (5) the term ``Secretary'' means the Secretary of Labor; 
        and
            (6) the term ``status as unemployed'', used with respect to 
        an individual, means the individual's present or past 
        unemployment, regardless of the length of time such individual 
        was unemployed.

SEC. 102. PROHIBITED ACTS.

    (a) Employers.--It shall be an unlawful practice for an employer 
to--
            (1) fail or refuse to consider for employment, or fail or 
        refuse to hire, an individual as an employee, because of the 
        individual's status as unemployed;
            (2) publish in print, on the Internet, or in any other 
        medium, an advertisement or announcement for an employee for 
        any job that includes--
                    (A) any provision stating or indicating that an 
                individual's status as unemployed disqualifies the 
                individual for a job; and
                    (B) any provision stating or indicating that an 
                employer will not consider or hire an individual for 
                employment based on that individual's status as 
                unemployed; and
            (3) direct or request that an employment agency take an 
        individual's status as unemployed into account in considering, 
        screening, or referring applicants for employment as an 
        employee.
    (b) Employment Agencies.--It shall be an unlawful practice for an 
employment agency to--
            (1) fail or refuse to consider, screen, or refer an 
        individual for employment as an employee based on the 
        individual's status as unemployed;
            (2) limit, segregate, or classify individuals in any manner 
        that may limit their access to information about jobs, or 
        consideration, screening, or referral for jobs, as employees, 
        because of their status as unemployed; or
            (3) publish, in print or on the Internet or in any other 
        medium, an advertisement or announcement for any vacancy in a 
        job, as an employee, that includes--
                    (A) any provision stating or indicating that an 
                individual's status as unemployed disqualifies the 
                individual for a job; and
                    (B) any provision stating or indicating that an 
                employer will not consider or hire an individual for 
                employment based on that individual's status as 
                unemployed.
    (c) Interference With Rights, Proceedings or Inquiries.--It shall 
be unlawful for any employer or employment agency to--
            (1) interfere with, restrain, or deny the exercise of or 
        the attempt to exercise, any right provided under this Act; or
            (2) fail or refuse to hire, to discharge, or in any other 
        manner to discriminate against any individual, as an employee, 
        because such individual--
                    (A) opposed any practice made unlawful by this Act;
                    (B) has filed any charge, or has instituted or 
                caused to be instituted any proceeding, under or 
                related to this Act;
                    (C) has given, or is about to give, any information 
                in connection with any inquiry or proceeding relating 
                to any right provided under this Act; or
                    (D) has testified, or is about to testify, in any 
                inquiry or proceeding relating to any right provided 
                under this Act.
    (d) Bona Fide Occupational Qualification.--Notwithstanding any 
other provision of this Act, consideration by an employer or employment 
agency of an individual's status as unemployed shall not be an unlawful 
employment practice under this Act if an individual's employment in a 
similar or related job for a period of time reasonably proximate to the 
hiring of such individual is a bona fide occupational qualification 
reasonably necessary to successful performance in the job that is being 
filled.

SEC. 103. ENFORCEMENT.

    (a) Civil Action by Individual.--
            (1) Liability for employers and employment agencies.--Any 
        employer or employment agency that violates subsection (a) or 
        (b) of section 4 shall be liable to any affected individual--
                    (A) for actual damages equal to--
                            (i) the amount of--
                                    (I) any wages, salary, employment 
                                benefits, or other compensation denied 
                                or lost to such individual by reason of 
                                the violation; or
                                    (II) in a case in which wages, 
                                salary, employment benefits, or other 
                                compensation have not been denied or 
                                lost to the individual, any actual 
                                monetary losses sustained by the 
                                individual as a direct result of the 
                                violation or an amount of $1,000 per 
                                violation per day, whichever is 
                                greater;
                            (ii) the interest on the amount described 
                        in clause (i) calculated at the prevailing 
                        rate; and
                            (iii) an additional amount as liquidated 
                        damages equal to the sum of the amount 
                        described in clause (i) and the interest 
                        described in clause (ii), and any punitive 
                        damages, except that if an employer or 
                        employment agency that has violated section 4 
                        proves to the satisfaction of the court that 
                        the act or omission that violated section 4 was 
                        in good faith and that the employer had 
                        reasonable grounds for believing that the act 
                        or omission was not a violation of section 4, 
                        such court may, in its discretion, reduce the 
                        amount of the liability to the amount and 
                        interest determined under clauses (i) and (ii), 
                        respectively; and
                    (B) for such equitable relief as may be 
                appropriate, including employment.
            (2) Right of action.--An action to recover the damages or 
        equitable relief prescribed in paragraph (1) may be maintained 
        against any employer or employment agency in any Federal or 
        State court of competent jurisdiction by any 1 or more persons 
        for and on behalf of--
                    (A) the affected individual; or
                    (B) the affected individual and other individuals 
                similarly situated.
            (3) Fees and costs.--The court in such an action shall, in 
        addition to any judgment awarded to the plaintiff, allow a 
        reasonable attorney's fee, reasonable expert witness fees, and 
        other costs of the action to be paid by the defendant.
            (4) Limitations.--The right provided by paragraph (2) to 
        bring an action by or on behalf of any affected individual 
        shall terminate--
                    (A) on the filing of a complaint by the Secretary 
                in an action under subsection (d) in which restraint is 
                sought of any violation of section 4; or
                    (B) on the filing of a complaint by the Secretary 
                in an action under subsection (b) in which a recovery 
                is sought of the damages described in paragraph (1)(A) 
                owing to an affected individual by an employer or 
                employment agency liable under paragraph (1),
        unless the action described in subparagraph (A) or (B) is 
        dismissed without prejudice on motion of the Secretary.
    (b) Action by the Secretary.--
            (1) Administrative action.--The Secretary shall receive, 
        investigate, and attempt to resolve complaints of violations of 
        section 4 in the same manner that the Secretary receives, 
        investigates, and attempts to resolve complaints of violations 
        of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 
        U.S.C. 206 and 207).
            (2) Civil action.--The Secretary may bring an action in any 
        court of competent jurisdiction--
                    (A) to enjoin violations of this title and seek 
                other relief and necessary to prevent future 
                violations;
                    (B) to recover--
                            (i) the damages described in subsection 
                        (a)(1)(A);
                            (ii) in the case of a violation of section 
                        4(c), a civil penalty of not less than $250 per 
                        violation (in addition to any other relief 
                        available under this subparagraph); or
                            (iii) such other equitable relief as the 
                        court determines to be appropriate.
            (3) Sums recovered.--Any sums recovered by the Secretary 
        pursuant to paragraph (2)(B)(i) shall be held in a special 
        deposit account and shall be paid, on order of the Secretary, 
        directly to each affected individual. Any such sums recovered 
        pursuant to paragraph (2)(B)(i) that are not paid to an 
        affected individual because of inability to do so within a 
        period of 3 years and any sums recovered pursuant to paragraph 
        (2)(B)(ii) shall be deposited into the Treasury of the United 
        States as miscellaneous receipts.
    (c) Limitation.--
            (1) In general.--Except as provided in paragraph (2), an 
        action under subsection (a) may be brought not later than 2 
        years after the date of the last event constituting the alleged 
        violation for which the action is brought, except that the 
        limitation period for filing an action by an individual shall 
        be tolled during the period during which the Secretary is 
        considering a complaint against any defendant named in a 
        complaint filed with the Secretary under subsection (b)(1).
            (2) Willful violation.--In the case of such action brought 
        for a willful violation of section 4, such action may be 
        brought not later than 3 years after the date of the last event 
        constituting the alleged violation for which such action is 
        brought, except that the limitation period for filing an action 
        by an individual shall be tolled during the period during which 
        the Secretary is considering a complaint, against the defendant 
        involved, that is filed with the Secretary under subsection 
        (b)(1).
            (3) Commencement.--In determining when an action is 
        commenced by the Secretary under this section for the purposes 
        of this subsection, it shall be considered to be commenced on 
        the date when the Secretary files a complaint in a court of 
        competent jurisdiction.
    (d) Action for Injunction by Secretary.--The district courts of the 
United States shall have jurisdiction, for cause shown, in an action 
brought by the Secretary--
            (1) to restrain violations of section 4;
            (2) to award such other equitable relief as may be 
        appropriate, including employment; and
            (3) to award monetary damages.
    (e) Solicitor of Labor.--The Solicitor of Labor may appear for and 
represent the Secretary on any litigation brought under this section.
    (f) Government Printing Office and Library of Congress.--With 
respect to the Government Printing Office (acting as an employer or 
employment agency), and with respect to the Library of Congress (acting 
as an employer or employment agency), the authority of the Secretary of 
Labor under this title shall be exercised respectively by the Public 
Printer and the Librarian of Congress.

            TITLE II--FAIR EMPLOYMENT FOR FEDERAL EMPLOYEES

SEC. 201. PROHIBITED ACTS.

    Title 5, United States Code, is amended by inserting after chapter 
23 the following:

 ``CHAPTER 25--PROHIBITION ON DISCRIMINATION BASED ON EMPLOYMENT STATUS

``Sec. 2501. Definitions
    ``As used in this chapter--
            ``(1) the term `affected individual' means any person who 
        was not considered for employment, or was not hired by an 
        employing agency, as an employee, because of the person's 
        current employment status (current as of the date of the 
        decision concerning consideration or hiring), or any person who 
        was not considered, screened, or referred for an employment 
        opportunity, as an employee, by an employment agency because of 
        the person's current employment status (current as of the date 
        of the decision concerning consideration, screening, or 
        referral);
            ``(2) the term `employee' means an individual described in 
        section 6381(1)(A);
            ``(3) the term `employing agency' means an agency covered 
        under subchapter V of chapter 63;
            ``(4) the term `employment agency' means any person 
        regularly undertaking with or without compensation to procure 
        employees for an employing agency or to procure for individuals 
        opportunities to work as employees for an employing agency and 
        includes an agent of such a person, and includes any person who 
        maintains an Internet website that publishes advertisements or 
        announcements of openings in jobs for employees;
            ``(5) the term `Secretary' means the Secretary of Labor; 
        and
            ``(6) the term `status as unemployed', used with respect to 
        an individual, means the individual's present or past 
        unemployment, regardless of the length of time such individual 
        was unemployed.
``Sec. 2502. Prohibited acts
    ``(a) It shall be an unlawful practice for an employing agency to--
            ``(1) fail or refuse to consider for employment, or fail or 
        refuse to hire, an individual as an employee, because of the 
        individual's status as unemployed;
            ``(2) publish in print, on the Internet, or in any other 
        medium, an advertisement or announcement for an employee for 
        any job that includes--
                    ``(A) any provision stating or indicating that an 
                individual's status as unemployed disqualifies the 
                individual for a job; and
                    ``(B) any provision stating or indicating that an 
                employing agency will not consider or hire an 
                individual for employment based on that individual's 
                status as unemployed; and
            ``(3) direct or request that an employment agency take an 
        individual's status as unemployed into account in considering, 
        screening, or referring applicants for employment as an 
        employee.
    ``(b) It shall be an unlawful practice for an employment agency 
to--
            ``(1) fail or refuse to consider, screen, or refer an 
        individual for employment as an employee based on the 
        individual's status as unemployed;
            ``(2) limit, segregate, or classify individuals in any 
        manner that may limit their access to information about jobs, 
        or consideration, screening, or referral for jobs, as 
        employees, because of their status as unemployed; or
            ``(3) publish, in print or on the Internet or in any other 
        medium, an advertisement or announcement for any vacancy in a 
        job, as an employee, that includes--
                    ``(A) any provision stating or indicating that an 
                individual's status as unemployed disqualifies the 
                individual for a job; and
                    ``(B) any provision stating or indicating that an 
                employing agency will not consider or hire an 
                individual for employment based on that individual's 
                status as unemployed.
    ``(c) It shall be unlawful for any employing agency or employment 
agency to--
            ``(1) interfere with, restrain, or deny the exercise of or 
        the attempt to exercise, any right provided under this chapter; 
        or
            ``(2) fail or refuse to hire, to discharge, or in any other 
        manner to discriminate against any individual, as an employee, 
        because such individual--
                    ``(A) opposed any practice made unlawful by this 
                chapter;
                    ``(B) has filed any charge, or has instituted or 
                caused to be instituted any proceeding, under or 
                related to this chapter;
                    ``(C) has given, or is about to give, any 
                information in connection with any inquiry or 
                proceeding relating to any right provided under this 
                chapter; or
                    ``(D) has testified, or is about to testify, in any 
                inquiry or proceeding relating to any right provided 
                under this chapter.
    ``(d) Notwithstanding any other provision of this chapter, 
consideration by an employing agency or employment agency of an 
individual's status as unemployed shall not be an unlawful employment 
practice under this chapter if an individual's employment in a similar 
or related job for a period of time reasonably proximate to the hiring 
of such individual is a bona fide occupational qualification reasonably 
necessary to successful performance in the job that is being filled.
``Sec. 2503. Enforcement
    ``The Office of Personnel Management shall prescribe regulations 
necessary for the administration of this chapter. The regulations 
prescribed under this chapter shall, to the extent appropriate, be 
consistent with the regulations prescribed by the Secretary of Labor to 
carry out title I of the Fair Employment Opportunity Act of 2011.''.
                                 <all>