[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3878 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 3878

  To protect employees from discrimination based on family caregiver 
               responsibilities, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 3, 2020

  Mr. Booker introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
  To protect employees from discrimination based on family caregiver 
               responsibilities, and for other purposes.

    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 ``Protecting Family Caregivers from 
Discrimination Act of 2020''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Adverse action.--The term ``adverse action'' means--
                    (A) to fail or refuse to hire or to discharge any 
                individual, or otherwise to discriminate against any 
                individual with respect to the individual's 
                compensation, terms, conditions, scheduling, or 
                privileges of employment;
                    (B) to limit, segregate, or classify employees or 
                applicants for employment in any way which would 
                deprive or tend to deprive any individual of employment 
                opportunities or otherwise adversely affect an 
                individual's status as an employee; or
                    (C) any other act or practice that is considered an 
                adverse action under title VII of the 1964 Civil Rights 
                Act (42 U.S.C. 2000e et seq.).
            (2) Commerce.--The term ``commerce'' has the meaning given 
        such term in section 3 of the Fair Labor Standards Act of 1938 
        (29 U.S.C. 203).
            (3) Commission.--The term ``Commission'' means the Equal 
        Employment Opportunity Commission.
            (4) Employee.--The term ``employee'' means--
                    (A) an employee, as defined in section 3 of the 
                Fair Labor Standards Act of 1938 (29 U.S.C. 203), who 
                in any workweek is engaged in commerce or in the 
                production of goods for commerce, or is employed in an 
                enterprise engaged in commerce or in the production of 
                goods for commerce; or
                    (B) an individual who is engaged, for a majority of 
                the individual's work time, by--
                            (i) an employer; or
                            (ii) an individual or entity that is not 
                        acting as an employer and engages the services 
                        of a worker to perform services or work as an 
                        independent contractor (regardless of the label 
                        or classification assigned or used by the 
                        employer or an individual or entity that is not 
                        acting as an employer and engages the services 
                        of a worker).
            (5) Employer; enterprise engaged in commerce or in the 
        production of goods for commerce.--The terms ``employer'' and 
        ``enterprise engaged in commerce or in the production of goods 
        for commerce'' have the meanings given such terms in section 3 
        of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
            (6) Family caregiver responsibilities.--The term ``family 
        caregiver responsibilities'', with respect to an individual 
        having such responsibilities, means the responsibilities of the 
        individual as being responsible, or being regarded as being 
        responsible, as a contributor to the support or care of one or 
        more family members of the individual, regardless of the age of 
        the family member.
            (7) Family member.--
                    (A) In general.--The term ``family member'', with 
                respect to an individual, includes--
                            (i) the spouse or domestic partner of the 
                        individual;
                            (ii) the parent, grandparent, or sibling of 
                        the individual, including if such parent, 
                        grandparent, or sibling is an in-law of the 
                        individual;
                            (iii) any child, grandchild, niece, or 
                        nephew of the individual;
                            (iv) any aunt, uncle, or cousin of the 
                        individual; and
                            (v) any other individual related to the 
                        employee by blood or affinity whose close 
                        association to the employee is the equivalent 
                        of the family relationships described in 
                        clauses (i) through (iv).
                    (B) Relationship.--A relationship described in 
                subparagraph (A) may be acquired through adoption, 
                marriage, or a dependent or custodial relationship.

SEC. 3. PROHIBITION ON DISCRIMINATION.

    It shall be unlawful for an employer or an individual or entity 
described in section 2(4)(B)(ii) to--
            (1) fail or refuse to hire an applicant as an employee of 
        such employer, or such individual or entity, because of the 
        family caregiver responsibilities of the applicant; or
            (2) take adverse action against an employee of such 
        employer or such individual or entity, or otherwise 
        discriminate against such an employee, with respect to the 
        compensation, terms, conditions, or privileges of employment of 
        the employee because of the family caregiver responsibilities 
        of the employee.

SEC. 4. PROHIBITION ON RETALIATION.

    (a) Interference With Rights.--
            (1) Exercise of rights.--It shall be unlawful for any 
        employer or an individual or entity described in section 
        2(4)(B)(ii) to retaliate against, interfere with, restrain, or 
        deny the exercise of or the attempt to exercise, any right 
        provided under this section.
            (2) Adverse action.--It shall be unlawful for any employer 
        or an individual or entity described in section 2(4)(B)(ii) to 
        take any adverse action against any employee or applicant 
        because the employee or applicant has exercised in good faith 
        the rights protected under this section.
            (3) Immigration status.--It shall be unlawful for any 
        employer or an individual or entity described in section 
        2(4)(B)(ii) to communicate to an employee or applicant 
        exercising rights protected under this section, directly or 
        indirectly, the willingness to inform a government employee 
        that the employee or applicant is not lawfully in the United 
        States, or to report, or to make an implied or express 
        assertion of a willingness to report, suspected citizenship or 
        immigration status of an employee or applicant or family member 
        of the employee or applicant to a Federal, State, or local 
        agency because the employee has exercised a right under this 
        section.
    (b) Rights of Employees.--The rights of an employee or applicant 
shall include the right to--
            (1) inform the employee's employer, union, or similar 
        organization, or the employee's legal counsel or any other 
        person about an alleged violation of this Act;
            (2) file any charge, or institute or cause to be instituted 
        any proceeding, under or related to this Act, or otherwise take 
        action in accordance with section 6 relating to the enforcement 
        of this Act;
            (3) cooperate in investigations under or relating to this 
        Act, including by giving or preparing to give information in 
        connection with any inquiry or proceeding under or related to 
        this Act;
            (4) testify in any inquiry or proceeding under or related 
        to this Act; and
            (5) refuse to participate in, or otherwise oppose, any 
        policy, practice, or act that is unlawful under this Act.
    (c) Presumption of Retaliation.--There shall be a rebuttable 
presumption that retaliation has occurred in violation of this section 
if an employer or an individual or entity described in section 
2(4)(B)(ii) takes an adverse action against an employee or applicant 
during the period that is 2 years after the date on which that employee 
or applicant exercised rights protected under this section. In the case 
of seasonal work, the presumption also applies if the employer or 
individual or entity described in section 2(4)(B)(ii) fails to rehire a 
former employee at the next opportunity for work in the same position. 
The employer or individual or entity described in section 2(4)(B)(ii) 
may rebut the presumption with clear and convincing evidence that the 
adverse action was taken for a permissible purpose.
    (d) Protections for Good Faith Allegations.--The protections 
afforded under this section shall apply to any individual who 
mistakenly but in good faith alleges a violation of this section or 
section 3.
    (e) Explicit Reference Not Required.--A complaint or other 
communication by an employee or any applicant may be an action 
described in subsection (b) that gives rise to the protections 
described in this section regardless of whether the complaint or 
communication is in writing or makes explicit reference to this Act.

SEC. 5. POSTING OF NOTICES.

    (a) In General.--Each employer shall, not later than 180 days after 
the date of enactment of this Act, post, and keep posted, in a 
conspicuous place upon the premises of the employer a notice, to be 
prepared or approved by the Commission, setting forth information as 
the Commission determines appropriate to effectuate the purposes of 
this Act, including the pertinent provisions of this Act and 
information pertinent to the filing of a charge with the Commission.
    (b) Penalty.--A willful violation of this section shall be 
punishable by a fine of not more than $100 for each separate offense.

SEC. 6. ENFORCEMENT.

    (a) In General.--Subject to subsection (c), sections 3 and 4 of 
this Act shall be enforced by the Commission in the same manner and by 
the same means, including with the same jurisdiction, as the 
enforcement of a violation of title VII of the Civil Rights Act of 1964 
(42 U.S.C. 2000e et seq.). Violations of this Act may be established 
through proof of disparate treatment or disparate impact.
    (b) Action by the Commission.--Except as otherwise specified in 
this Act, the Commission shall receive, investigate, attempt to 
resolve, and otherwise enforce a charge of a violation of section 3 or 
4 of this Act in the same manner that the Commission receives, 
investigates, attempts to resolve, and enforces a charge of a violation 
of title VII of the Civil Rights Act of 1964.
    (c) Private Right of Action.--Notwithstanding subsection (a) and 
section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5), a 
private right of action shall also be available to an applicant or 
individual who alleges a violation of section 3 or 4 of this Act. Such 
applicant or individual shall not be required to file a charge with the 
Commission or pursue or exhaust any administrative remedies before 
instituting a civil action.
    (d) Penalties.--
            (1) In general.--In addition to sums that may otherwise be 
        collected by an aggrieved individual or collected by the 
        Commission and paid to an aggrieved individual, any person who 
        willfully violates sections 3 or 4 shall upon conviction 
        thereof be subject to a penalty of an amount not to exceed--
                    (A) $10,000 for each violation of section 3; and
                    (B) $5,000 for each violation of section 4.
            (2) Transfer of funds.--Any penalties collected by the 
        Commission under this subsection shall be transferred to the 
        Family Caregiver Antidiscrimination Fund.
    (e) Family Caregiver Antidiscrimination Fund.--
            (1) In general.--There is established in the Treasury of 
        the United States a revolving fund, to be known as the ``Family 
        Caregiver Antidiscrimination Fund'' (referred to in this Act as 
        the ``Fund''), consisting of the amount of penalties 
        transferred to the Fund under subsection (d)(2).
            (2) Use of funds.--Amounts in the Fund shall be available 
        for the purpose of awarding grants under section 7.

SEC. 7. GRANTS.

    (a) In General.--
            (1) Grant program established.--The Commission, shall award 
        grants, on a competitive basis, to eligible entities to enable 
        those eligible entities to assist in preventing and combating 
        discrimination against applicants and employees who have family 
        caregiver responsibilities.
            (2) Duration.--A grant awarded under this section shall be 
        for a period of 3 years.
    (b) Eligible Entity.--In this section, the term ``eligible entity'' 
means--
            (1) a nonprofit organization with expertise in family 
        caregiver discrimination;
            (2) an institution of higher education or research center 
        that employs faculty with relevant expertise and has expertise 
        in family caregiver discrimination; or
            (3) a consortium of entities described in paragraphs (1) 
        and (2) that submit a single application to carry out 
        activities under the grant jointly.
    (c) Application.--An eligible entity desiring a grant under this 
section shall submit an application to the Commission at such time, in 
such manner, and containing such information as the Commission may 
require.
    (d) Use of Funds.--An eligible entity receiving a grant under this 
section shall use grant funds to carry out one or more of the following 
activities:
            (1) Educate employees about the prohibited actions under 
        section 3, caregiver rights, and the rights provided under this 
        Act.
            (2) Conduct educational training for employers regarding 
        caregiver discrimination.
            (3) Provide support to applicants and employees facing 
        discrimination based on family caregiver responsibilities.
            (4) Produce and disseminate outreach and training materials 
        relating to the prohibited actions under section 3, caregiver 
        rights, and the rights provided under this Act.
            (5) Recruit and hire staff and volunteers to carry out the 
        activities described in this subsection.
            (6) Any other activities that the Commission determines are 
        reasonable.
    (e) Report.--Not later than 12 months after the completion of the 
programs and activities funded under grants awarded under this section, 
the Commission shall submit to Congress, and all appropriate agencies, 
a report concerning an evaluation of the results of such programs and 
activities, including best practices, and lessons derived from the 
experiences of grantees.
    (f) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as are necessary to carry out this section.

SEC. 8. RULE OF CONSTRUCTION.

    Nothing in this Act shall be construed to supersede any other 
provision of Federal, State, or local law that provides greater 
protection against employment discrimination or greater remedies to 
employees than the protection or remedies provided to employees under 
this Act, including any such provision in the Family and Medical Leave 
Act of 1993 (29 U.S.C. 2601 et seq.), the Americans with Disabilities 
Act of 1990 (42 U.S.C. 12101 et seq.), title VII of the Civil Rights 
Act of 1964 (42 U.S.C. 2000e et seq.), or section 6(d) of the Fair 
Labor Standards Act of 1938 (29 U.S.C. 206(d)).
                                 <all>