[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2019 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                S. 2019

 To amend title VII of the Civil Rights Act of 1964 and other statutes 
        to clarify appropriate liability standards for Federal 
                       antidiscrimination claims.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 26, 2017

 Ms. Baldwin (for herself, Mr. Durbin, Mr. Markey, Mr. Blumenthal, and 
  Mr. Leahy) introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To amend title VII of the Civil Rights Act of 1964 and other statutes 
        to clarify appropriate liability standards for Federal 
                       antidiscrimination claims.

    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 Protection Act of 
2017''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) Discrimination and harassment are widespread problems 
        in workplaces in the United States. In 2016, sex discrimination 
        charges comprised 30.7 percent of the charges filed with the 
        Equal Employment Opportunity Commission (referred to in this 
        section as the ``EEOC'') under all the statutes the agency 
        enforces. In 2016, 83.4 percent of sexual harassment charges 
        were filed by women.
            (2) Women and people of color working in low-wage jobs are 
        particularly vulnerable to harassment in the workplace.
            (3) In some industries, harassment is even more widespread. 
        For example, a survey conducted by the Restaurant Opportunities 
        Centers United Forward Together found that two-thirds of women 
        workers and over half of men workers had experienced some form 
        of sexual harassment from management in the restaurant 
        industry; nearly 80 percent of women and 70 percent of men 
        experienced some form of sexual harassment from co-workers; and 
        nearly 80 percent of women and 55 percent of men experienced 
        some form of sexual harassment from customers.
            (4) Studies indicate that sexual harassment of women, 
        including unwanted touching, grabbing, and stalking, is also 
        common in male-dominated industries, such as construction, 
        public safety, manufacturing, farming, and the high-tech 
        industry. Harassment in male-dominated industries operates as a 
        barrier to women's entry into higher paying jobs.
            (5) Racial harassment remains a pervasive problem in the 
        workplace in the United States. In fiscal year 2016, 35.3 
        percent of the charges of alleged violations filed with the 
        EEOC were charges on the basis of race.
            (6) Research shows that workers in a wide spectrum of 
        occupations, ranging from service and support positions to 
        management and professional positions, report experiencing 
        race-based harassment while on the job.
            (7) Harassment in the workplace is a persistent barrier to 
        opportunity for people with disabilities. Harassment can result 
        in workers with disabilities being forced off the job. 
        Workplace harassment is used to send the message that workers 
        with disabilities do not belong at work.
            (8) Age discrimination continues to be a barrier to 
        employment for older workers. Nearly one-third of older workers 
        report that they or someone they know experienced age 
        discrimination in the workplace.
            (9) The Supreme Court's decision in Vance v. Ball State 
        University, No. 11-556 (June 24, 2013), significantly 
        undermines protections against discrimination that the Supreme 
        Court established in Faragher v. Boca Raton, 524 U.S. 775 
        (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 
        (1998), which held that an employer may be vicariously liable 
        under title VII of the Civil Rights Act of 1964 for harassment 
        of an employee by an individual that has supervisory authority 
        over that employee.
            (10) In Faragher and Ellerth, the Supreme Court held that 
        employers will be subject to a strict liability standard when 
        employees with supervisory authority engage in harassment that 
        results in ``tangible employment actions''. However, in 
        situations where ``supervisors'' engage in harassment that does 
        not result in tangible employment actions, the Court explained, 
        an employer can avoid vicarious liability by showing that--
                    (A) the employer exercised reasonable care to 
                prevent and correct any harassing behavior; and
                    (B) the plaintiff unreasonably failed to take 
                advantage of the preventive or corrective opportunities 
                that the employer provided.
            (11) Whether an employer should be vicariously liable for 
        harassment is a functional analysis that is based not on the 
        title of the harasser or the employer's job description for the 
        harasser's position but on the authority vested in that 
        individual by the employer.
            (12) The Supreme Court holding in Vance limits the category 
        of individuals who are considered supervisors and for which an 
        employer may be held vicariously liable under Faragher and 
        Ellerth to those individuals that have authority to take 
        tangible employment actions. This holding ignores the reality 
        that employees with the authority to control their 
        subordinates' daily work should be included in that category, 
        for which an employer may be held vicariously liable, because 
        such individuals are aided by that authority in perpetuating a 
        discriminatory work environment.
            (13) Individuals who direct the daily work activities of 
        employees but do not have the authority to take tangible 
        employment actions against those employees are common in the 
        workplace in the United States, particularly in industries that 
        employ low-wage workers. Workers in industries including 
        retail, restaurant, health care, housekeeping, and personal 
        care, which may pay low wages and employ large numbers of 
        female workers, are particularly vulnerable to harassment by 
        individuals who have the power to direct day-to-day work 
        activities but lack the power to take tangible employment 
        actions.
    (b) Purpose.--The purpose of this Act is to clarify that an 
employer's vicarious liability for harassment under title VII of the 
Civil Rights Act of 1964, the Age Discrimination in Employment Act of 
1967, the Americans with Disabilities Act of 1990, the Rehabilitation 
Act of 1973, section 1977 of the Revised Statutes, the Genetic 
Information Nondiscrimination Act of 2008, the Government Employee 
Rights Act of 1991, the Congressional Accountability Act of 1995, and 
title 3, United States Code, extends to--
            (1) an individual with the authority to undertake or 
        recommend tangible employment actions affecting the victim of 
        the harassment; or
            (2) an individual with the authority to direct the victim's 
        daily work activities.

SEC. 3. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.

    (a) Standard for Employer Liability for Hostile Work Environment.--
Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) is 
amended by adding at the end the following:
    ``(o) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer shall be liable for the acts of any individual 
whose harassment of an employee has created or continued a hostile work 
environment that constitutes an unlawful employment practice under this 
section if, at the time of the harassment--
            ``(1) such individual was authorized by that employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that hostile work environment.''.
    (b) Standard for Employer Liability for Retaliatory Hostile Work 
Environment.--Section 704 of the Civil Rights Act of 1964 (42 U.S.C. 
2000e-3) is amended--
            (1) by redesignating subsection (b) as subsection (c); and
            (2) by inserting after subsection (a) the following:
    ``(b) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer shall be liable for the acts of any individual 
whose harassment of an employee has created or continued a retaliatory 
hostile work environment that constitutes an unlawful employment 
practice as described under subsection (a) if, at the time of the 
harassment--
            ``(1) such individual was authorized by that employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that retaliatory hostile work environment.''.
    (c) Federal Employees.--Section 717 of the Civil Rights Act of 1964 
(42 U.S.C. 2000e-16) is amended by adding at the end the following:
    ``(g) The provisions of sections 703(o) and 704(b) shall apply to 
hostile work environment claims and retaliatory hostile work 
environment claims, respectively, under this section.''.

SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967.

    (a) Standard for Employer Liability for Hostile Work Environment.--
Section 4 of the Age Discrimination in Employment Act of 1967 (29 
U.S.C. 623) is amended by adding at the end the following:
    ``(n) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer shall be liable for the acts of any individual 
whose harassment of an employee has created or continued a hostile work 
environment that is unlawful under this section if, at the time of the 
harassment--
            ``(1) such individual was authorized by that employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that hostile work environment.''.
    (b) Standard for Employer Liability for Retaliatory Hostile Work 
Environment.--Section 4(d) of the Age Discrimination in Employment Act 
of 1967 (29 U.S.C. 623) is amended by striking ``or litigation under 
this Act.'' and inserting ``or litigation under this Act. Subject to 
section 12 of the Fair Employment Protection Act of 2017, an employer 
shall be liable for the acts of any individual whose harassment of an 
employee has created or continued a retaliatory hostile work 
environment that is unlawful under this subsection if, at the time of 
the harassment--
            ``(1) such individual was authorized by that employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that retaliatory hostile work environment.''.
    (c) Federal Employees.--Section 15 of the Age Discrimination in 
Employment Act of 1967 (29 U.S.C. 633a) is amended by adding at the end 
the following:
    ``(h) Subsections (d) and (n) of section 4 shall apply to 
retaliatory hostile work environment claims and hostile work 
environment claims, respectively, under this section.''.

SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABILITIES ACT OF 1990.

    (a) Standard for Employer Liability for Hostile Work Environment.--
Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12112) is amended by adding at the end the following:
    ``(e) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer shall be liable for the acts of any individual 
whose harassment of an employee has created or continued a hostile work 
environment that constitutes discrimination against a qualified 
individual on the basis of disability under this section if, at the 
time of the harassment--
            ``(1) such individual was authorized by the employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the qualified individual; or
                    ``(B) to direct the qualified individual's daily 
                work activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that hostile work environment.''.
    (b) Standard for Employer Liability for Retaliatory Hostile Work 
Environment.--Section 503 of the Americans with Disabilities Act of 
1990 (42 U.S.C. 12203) is amended--
            (1) by redesignating subsection (c) as subsection (d);
            (2) by inserting after subsection (b) the following:
    ``(c) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer shall be liable for the acts of any individual 
whose harassment of an employee has created or continued a retaliatory 
hostile work environment that constitutes retaliatory discrimination, 
as described in subsection (a), or the carrying out of any unlawful 
acts described in subsection (b), if, at the time of the harassment--
            ``(1) such individual was authorized by the employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that retaliatory hostile work environment.''; 
        and
            (3) in subsection (d), as redesignated by paragraph (1), by 
        striking ``subsections (a) and (b)'' and inserting 
        ``subsections (a), (b), and (c)''.

SEC. 6. AMENDMENT TO THE REHABILITATION ACT OF 1973.

    (a) Standard for Employer Liability for Hostile Work Environment 
and Retaliatory Hostile Work Environment.--Section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791) is amended by adding at the 
end the following:
    ``(h) Subject to section 12 of the Fair Employment Protection Act 
of 2017, each department, agency, and instrumentality in the executive 
branch of Government and the Smithsonian Institution shall be liable 
for the acts of any individual within such department, agency, 
instrumentality, or the Smithsonian Institution whose harassment of an 
individual with a disability has created or continued a hostile work 
environment, or a retaliatory hostile work environment, that 
constitutes nonaffirmative action employment discrimination under this 
section if, at the time of the harassment--
            ``(1) such individual was authorized by that department, 
        agency, instrumentality, or the Smithsonian Institution--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the individual with a disability; or
                    ``(B) to direct the daily work activities of the 
                individual with a disability; or
            ``(2) the negligence of that department, agency, 
        instrumentality, or the Smithsonian Institution led to the 
        creation or continuation of that hostile work environment or 
        retaliatory hostile work environment.''.
    (b) Standard for Employer Liability for Hostile Work Environment 
and Retaliatory Hostile Work Environment.--Section 504 of the 
Rehabilitation Act of 1973 (29 U.S.C. 794) is amended by adding at the 
end the following:
    ``(e) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer described under subsection (b) shall be liable for 
the acts of any individual whose harassment of a qualified individual 
with a disability has created or continued a hostile work environment, 
or a retaliatory hostile work environment, that constitutes employment 
discrimination under this section if, at the time of the harassment--
            ``(1) such individual was authorized by such employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the qualified individual with a 
                disability; or
                    ``(B) to direct the daily work activities of the 
                qualified individual with a disability; or
            ``(2) the negligence of such employer led to the creation 
        or continuation of that hostile work environment or retaliatory 
        hostile work environment.''.
    (c) Remedies.--Section 505 of the Rehabilitation Act of 1973 (29 
U.S.C. 794a) is amended by adding at the end of subsection (a) the 
following:
            ``(3) Sections 501(h) and 504(e) shall apply to hostile 
        work environment claims and retaliatory hostile work 
        environment claims under this section.''.

SEC. 7. AMENDMENT TO SECTION 1977 OF THE REVISED STATUTES.

    Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended by 
adding at the end the following:
    ``(d) Subject to section 12 of the Fair Employment Protection Act 
of 2017, a nongovernmental employer shall be liable for the acts of any 
individual whose harassment of an employee has created a hostile work 
environment or a retaliatory hostile work environment, constituting an 
unlawful employment practice, if, at the time of the harassment--
            ``(1) such individual was authorized by the employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that hostile work environment or retaliatory 
        hostile work environment.''.

SEC. 8. AMENDMENT TO THE GENETIC INFORMATION NONDISCRIMINATION ACT OF 
              2008.

    (a) Standard for Employer Liability for Hostile Work Environment.--
Section 202 of the Genetic Information Nondiscrimination Act of 2008 
(42 U.S.C. 2000ff-1) is amended by adding at the end the following:
    ``(d) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer shall be liable for the acts of any individual 
whose harassment of an employee has created or continued a hostile work 
environment that constitutes an unlawful employment practice under this 
section if, at the time of the harassment--
            ``(1) such individual was authorized by the employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that hostile work environment.''.
    (b) Standard for Employer Liability for Retaliatory Hostile Work 
Environment.--Section 207(f) of the Genetic Information 
Nondiscrimination Act (42 U.S.C. 2000ff-6(f)) is amended by striking 
``violations of this subsection.'' and inserting ``violations of this 
subsection. Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer shall be liable for the acts of any individual 
whose harassment of an employee has created or continued a retaliatory 
hostile work environment that constitutes discrimination under this 
subsection if, at the time of the harassment--
            ``(1) such individual was authorized by the employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that retaliatory hostile work environment.''.

SEC. 9. AMENDMENT TO THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991.

    Section 302 of the Government Employee Rights Act of 1991 (42 
U.S.C. 2000e-16b) is amended by adding at the end the following:
    ``(c) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employer of an individual described under section 304(a) 
shall be liable for the acts of any individual whose harassment of a 
State employee described in section 304 has created or continued a 
hostile work environment or a retaliatory hostile work environment 
constituting discrimination under this section, if at the time of the 
harassment--
            ``(1) such individual was authorized by such employer--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the employee; or
                    ``(B) to direct the employee's daily work 
                activities; or
            ``(2) the negligence of the employer led to the creation or 
        continuation of that hostile work environment or retaliatory 
        hostile work environment.''.

SEC. 10. AMENDMENT TO TITLE 3, UNITED STATES CODE.

    Section 411 of title 3, United States Code, is amended--
            (1) by redesignating subsections (c) through (f) as 
        subsections (d) through (g), respectively;
            (2) by inserting after subsection (b) the following:
    ``(c) Liability of Employing Office.--Subject to section 12 of the 
Fair Employment Protection Act of 2017, an employing office shall be 
liable for the acts of any individual whose harassment of a covered 
employee has created or continued a hostile work environment or a 
retaliatory hostile work environment constituting discrimination under 
this section if, at the time of the harassment--
            ``(1) such individual was authorized by the employing 
        office--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the covered employee; or
                    ``(B) to direct the covered employee's daily work 
                activities; or
            ``(2) the negligence of the employing office led to the 
        creation or continuation of that hostile work environment or 
        retaliatory hostile work environment.''; and
            (3) in subsection (f), as redesignated by paragraph (1), by 
        striking ``subsections (a) through (c)'' and inserting 
        ``subsections (a) through (d).''.

SEC. 11. AMENDMENT TO THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995.

    Section 201 of the Congressional Accountability Act of 1995 (2 
U.S.C. 1311) is amended--
    (1) by redesignating subsection (d) as subsection (e); and
    (2) by inserting after subsection (c) the following:
    ``(d) Subject to section 12 of the Fair Employment Protection Act 
of 2017, an employing office shall be liable for the acts of any 
individual whose harassment of a covered employee has created or 
continued a hostile work environment or a retaliatory hostile work 
environment that constitutes discrimination under this section if, at 
the time of the harassment--
            ``(1) such individual was authorized by the employing 
        office--
                    ``(A) to undertake or recommend tangible employment 
                actions affecting the covered employee; or
                    ``(B) to direct the covered employee's daily work 
                activities; or
            ``(2) the negligence of the employing office led to the 
        creation or continuation of that hostile work environment or 
        retaliatory hostile work environment.''.

SEC. 12. RULE OF CONSTRUCTION.

    Nothing in this Act shall be construed to limit the availability 
of, or access to, defenses available under the law.

SEC. 13. SAVINGS CLAUSE.

    If any provision of this Act is declared invalid, the other 
provisions in this Act will remain in full force and effect.

SEC. 14. APPLICATION.

    This Act, and the amendments made by this Act, shall apply to all 
claims pending on or after the date of enactment of this Act.
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