117 HR 8618 IH: Ending Secrecy About Workplace Harassment Act
U.S. House of Representatives
2022-07-29
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I
117th CONGRESS
2d Session
H. R. 8618
IN THE HOUSE OF REPRESENTATIVES
July 29, 2022
Mrs. Carolyn B. Maloney of New York (for herself, Mr. Carson, Mr. García of Illinois, Mr. Gomez, Mr. Grijalva, Mrs. Hayes, Mr. Jones, Mr. Lynch, Ms. Moore of Wisconsin, Mr. Nadler, Ms. Norton, Mr. Pocan, Ms. Porter, Ms. Roybal-Allard, Mr. Smith of Washington, Mr. Takano, Ms. Titus, and Ms. Velázquez) introduced the following bill; which was referred to the Committee on Education and Labor
A BILL
To require annual reporting by employers to the Equal Employment Opportunity Commission of the number of settlements of employee claims of discrimination based on race, color, national origin, religion, sex (including pregnancy, sexual orientation, or gender identity), age (40 or older), disability, genetic information (including family medical history), or any combination of such factors, and for other purposes.
1.

Short title; findings
(a)

Short title
This Act may be cited as the “Ending Secrecy About Workplace Harassment Act”.
(b)

Findings
Congress finds that the following:
(1)
Thirty years after the United States Supreme Court held in Meritor Savings Bank v. Vinson that workplace harassment creates a hostile or abusive work environment and is a violation of title VII of the Civil Rights Act of 1964, sexual harassment remains a widespread problem, affecting victims in every industry, at every level of employment.
(2)
In fiscal year 2020, the Equal Employment Opportunity Commission (in this Act referred to as the “Commission”) received 67,448 charges of workplace discrimination. The most frequently cited claim was retaliation with 37,632 charges, which made up 55.8 percent of all charges filed. This was followed by disability with 24,324 charges (36.1 percent), race with 22,064 charges (32.7 percent), sex with 21,398 charges (31.7 percent), age with 14,183 charges (21.0 percent), national origin with 6,377 charges (9.5 percent), color with 3,562 charges (5.3 percent), religion with 2,404 charges (3.6 percent), and genetic information with 440 charges (0.7 percent).
(3)
An analysis of the Commission’s charge data between 2012 and 2016 shows that many individuals experience multiple bases of harassment. For example, 1 in 17 women who filed sexual harassment charges during this period experienced racialized sexual harassment, or harassment based not only on their sex but also their race. In addition, over 35 percent of women also alleged retaliation.
(4)
According to the Commission’s Select Task Force in 2016, on the Study of Harassment in the Workplace, the prevalence of workplace harassment, and in particular sexual harassment—
(A)
causes mental and physical harm to the victim, which can include symptoms of depression, general stress and anxiety, posttraumatic stress disorder (PTSD), and overall impaired psychological well-being; and
(B)
results in mental and physical harms to those that observe or perceive mistreatment in the workplace, as one study concluded “employees, female and male alike, who observed hostility directed toward female coworkers (both incivility and sexually harassing behavior) were more likely to experience lower psychological well-being”, which were “in turn linked to lower physical well-being”.
(5)
Prevalence of harassment in the workplace causes substantial financial harm to victims, as they often try to avoid the harassing behavior by taking leave without pay or leaving the workplace entirely, resulting in a loss of wages. The U.S. Merit Systems Protection Board’s 1995 report on Sexual Harassment in the Federal Workplace found sexual harassment cost Federal employees $4,400,000 between 1992 and 1994.
(6)
According to Commission records, in fiscal year 2020, the Commission secured $439,200,000 for victims of discrimination in the private sector and State and local government workplaces through voluntary resolutions and litigation.
(7)
The Commission is responsible for enforcing Federal anti-discrimination laws that protect job applicants and employees, and has the authority to investigate charges of discrimination against employers who are covered by the law.
2.

Employer reporting requirement
(a)

Reporting requirement
Every employer required to submit to the Equal Employment Opportunity Commission an Employer Information Report EEO–1 shall submit annually a separate report that specifies the total number of settlements reached by the employer with employees involving workplace harassment and the number of such settlements in each of following categories:
(1)
Settlements relating to harassment based on race, color, or national origin.
(2)
Settlements relating to harassment based on religion.
(3)
Settlements relating to harassment based on sex (including pregnancy, sexual orientation, or gender identity).
(4)
Settlements relating to harassment based on age (40 or older).
(5)
Settlements relating to harassment based on disability.
(6)
Settlements relating to harassment based on genetic information (including family medical history).
(7)
Settlements relating to harassment based on any combination of the harassment described in paragraphs (1) through (6).
(b)

Required reporting
Examples of settlements required to be reported under this section include any written or oral agreement where anything of value is conferred to an individual because of an allegation that the individual has been a victim of workplace harassment on the basis of race, color, national origin, religion, sex (including pregnancy, sexual orientation, or gender identity), age (40 or older), disability, genetic information (including family medical history), any combination of such factors in return for such individual declining to further pursue resolution of the allegation through litigation or any internal process, mediation, or other workplace resolution.
3.

Rights of employees
(a)

Protection from retaliation
(1)

Conduct prohibited
An employer may not terminate any employee nor discriminate against any such employee with regards to terms and conditions of employment because such employee—
(A)
inquires about an employer’s meeting of the requirements of this Act; or
(B)
complains about an employer’s failure to meet the requirements of this Act.
(2)

Enforcement
(A)

Liability
In addition to civil rights protections and remedies for retaliation available under other Federal, State, or local law, any employer who violates paragraph (1) shall be liable to any eligible employee affected for—
(i)
damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation;
(ii)
the interest on the amount described in clause (i) calculated at the prevailing rate;
(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
(iv)
such equitable relief as may be appropriate, including employment, reinstatement, and promotion.
(B)

Right of action
An action to recover the damages or equitable relief prescribed in subparagraph (A) may be maintained against any employer in any Federal or State court of competent jurisdiction by any one or more employees for and on behalf of—
(i)
the employee or employees; or
(ii)
the employees and other employees similarly situated.
(C)

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.
(b)

Confidentiality agreements and settlements
(1)

Rule of construction
Nothing in this Act shall be construed to interfere with the right of an employee to enter into a confidentiality agreement with the employee’s employer with respect to a claim of discrimination based on race, color, national origin, religion, sex (including pregnancy, sexual orientation, gender identity), age (40 or older), disability, genetic information (including family medical history), or any combination of such factors, the investigation of such a claim, or the out-of-court settlement of such a claim.
(2)

Limitations on agreements
(A)
An employer may not use a confidentiality agreement described in paragraph (1) as a basis for not submitting the information required by section 2.
(B)
A confidentiality agreement described in paragraph (1) shall not be construed as prohibiting any party to such agreement from cooperating with law enforcement investigations into any claims of discrimination based on race, color, national origin, religion, sex (including pregnancy, sexual orientation, gender identity), age (40 or older), disability, genetic information (including family medical history), or any combination of such factors.
4.

EEOC report to Congress
The Equal Employment Opportunity Commission shall annually report to Congress information relating to claims of discrimination based on race, color, national origin, religion, sex (including pregnancy, sexual orientation, or gender identity), age (40 or older), disability, genetic information (including family medical history), and any combination of such factors, including—
(1)
the number of settlements that were reported to the Commission as defined by and reported pursuant to section 2;
(2)
the number of charges alleging discrimination based on race, color, national origin, religion, sex (including pregnancy, sexual orientation, or gender identity), age (40 or older), disability, genetic information (including family medical history), and any combination of such factors that were reported to the Equal Employment Opportunity Commission;
(3)
a summary of any action taken by the Commission based upon any such charges or complaints collected pursuant to this Act, such as litigation or settlements facilitated by the Commission pertaining to discrimination based on race, color, national origin, religion, sex (including pregnancy, sexual orientation, or gender identity), age (40 or older), disability, genetic information (including family medical history), and any combination of such factors, including a brief description of any outcome of such actions; and
(4)
a summary of mechanisms the Commission can take to increase public transparency of this data by individual employer without sacrificing the identities of the victims.
5.

GAO study and report
The Comptroller General of the United States shall conduct a comprehensive study of claims of discrimination based on race, color, national origin, religion, sex (including pregnancy, sexual orientation, or gender identity), age (40 or older), disability, genetic information (including family medical history), or any combination of such factors involving both government and private sector employees and shall report to Congress not later than one year after the date of enactment of this Act the results of such study and recommendations for legislation or other action for improving transparency and accountability regarding such claims.