118 S1393 IS: Sunlight in Workplace Harassment Act
U.S. Senate
2023-05-01
text/xml
EN
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II
118th CONGRESS
1st Session
S. 1393
IN THE SENATE OF THE UNITED STATES
May 1, 2023
Ms. Warren (for herself, Ms. Rosen, Mr. Markey, Mrs. Feinstein, Mr. Merkley, Mr. Sanders, Mr. Durbin, and Mr. Blumenthal) introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs
A BILL
To amend the Securities Exchange Act of 1934 to require disclosure of payments for settlements of disputes regarding sexual abuse and certain types of harassment and discrimination, and for other purposes.
1.

Short title
This Act may be cited as the “Sunlight in Workplace Harassment Act”.
2.

Disclosure of payments for settlements of disputes regarding sexual abuse and certain types of harassment and discrimination
Section 13 of the Securities Exchange Act of 1934 (15 U.S.C. 78m) is amended by adding at the end the following:
“(t)

Disclosure of certain activities regarding settlements of disputes relating to sexual abuse and certain types of harassment or discrimination
(1)

Definitions
In this subsection—
(A)
the term covered discrimination means—
(i)
discrimination described in any of clauses (i) through (vi) of subparagraph (B); or
(ii)
(I)
a violation of section 704(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3(a)) that is related to discrimination described in subparagraph (B)(i) or (B)(vi)(I);
(II)
a violation of section 4(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(d)) that is related to discrimination described in subparagraph (B)(ii);
(III)
a violation of subsection (a) or (b) of section 503 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12203) that is related to discrimination described in subparagraph (B)(iii);
(IV)
a violation of section 207(f) of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff–6(f)) that is related to discrimination described in subparagraph (B)(iv);
(V)
a violation of section 4311(b) of title 38, United States Code, that is related to discrimination described in subparagraph (B)(v); and
(VI)
a violation of section 40002(b)(13)(A) of the Violence Against Women Act of 1994 (34 U.S.C. 12291(b)(13)(A)) that—
- (aa)
may cover retaliation described in a provision specified in any of subclauses (I) through (V); and
- (bb)
is related to discrimination described in subparagraph (B)(vi)(II);
(B)
the term covered harassment means harassment that is—
(i)
discrimination because of a characteristic consisting of race, color, religion, sex, sexual orientation, gender identity, or national origin, whether the characteristic is actual or perceived, under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
(ii)
discrimination because of actual or perceived age under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.);
(iii)
discrimination on the basis of actual or perceived disability under—
(I)
title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.); or
(II)
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791);
(iv)
discrimination because of actual or perceived genetic information under title II of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.);
(v)
discrimination on the basis of actual or perceived status concerning service in a uniformed service under section 4311(a) of title 38, United States Code; or
(vi)
discrimination because of a characteristic consisting of sexual orientation or gender identity, whether the characteristic is actual or perceived, under section 40002(b)(13)(A) of the Violence Against Women Act of 1994 (34 U.S.C. 12291(b)(13)(A));
(C)
the term covered issuer means an issuer that is required to file Form 10–K;
(D)
the term Form 10–K means the form described in section 249.310 of title 17, Code of Federal Regulations, as in effect on the date of enactment of this subsection;
(E)
the term gender identity means a characteristic consisting of the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, whether the characteristic is actual or perceived, regardless of the designated sex of the individual at birth;
(F)
the term judgment means, with respect to an issuer, a judgment entered against the issuer, whether imposed by a court or through arbitration;
(G)
the term settlement means any commitment or agreement—
(i)
without regard to whether the commitment or agreement, as applicable, is in writing; and
(ii)
under which an issuer directly or indirectly—
(I)
provides to an individual compensation or other consideration because of an allegation that the individual has been a victim of covered harassment, covered discrimination, or sexual abuse; or
(II)
establishes conditions that affect the terms of the employment, including by terminating the employment, of the individual with the issuer—
- (aa)
because of the experience of the individual with, or the participation of the individual in, an alleged act of covered harassment, covered discrimination, or sexual abuse; and
- (bb)
in exchange for which the individual agrees or commits not to—
(AA)
bring legal, administrative, or any other type of action against the issuer; or
(BB)
publicly disclose, for a period of time of any length, any portion of the alleged act described in item (aa) on which the commitment or agreement, as applicable, is based;
(H)
the term sexual abuse means a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18, United States Code, or similar applicable Tribal or State law, including such an act or contact in a circumstance in which the victim lacks capacity to consent; and
(I)
the term sexual orientation means a characteristic consisting of homosexuality, heterosexuality, or bisexuality, whether the characteristic is actual or perceived.
(2)

Disclosure requirements
(A)

In general
Beginning in the first fiscal year that begins after the date of enactment of this subsection, each covered issuer shall disclose annually on Form 10–K, to shareholders of the covered issuer, and to the public—
(i)
for the time periods, and in the manner, described in subparagraph (B)—
(I)
the total number of settlements entered into by the covered issuer, a subsidiary, contractor, or subcontractor of the covered issuer, or a corporate executive of the covered issuer that relate to any alleged act of sexual abuse, covered harassment, or covered discrimination that—
- (aa)
occurred in the workplace of the covered issuer or a subsidiary, contractor, or subcontractor of the covered issuer; or
- (bb)
involves the behavior of an employee of the covered issuer, or of a subsidiary, contractor, or subcontractor of the covered issuer, toward another such employee, without regard to whether that behavior occurred in the workplace of the covered issuer or the subsidiary, contractor, or subcontractor, as applicable;
(II)
the total dollar amount paid with respect to the settlements described in subclause (I);
(III)
the total number of settlements entered into by the covered issuer, a subsidiary, contractor, or subcontractor of the covered issuer, or a corporate executive of the covered issuer that relate to any alleged act of sexual abuse, covered harassment, or covered discrimination that—
- (aa)
was committed by a corporate executive of—
(AA)
the covered issuer; or
(BB)
a subsidiary, contractor, or subcontractor of the covered issuer; and
- (bb)
(AA)
occurred in the workplace of the covered issuer or a subsidiary, contractor, or subcontractor of the covered issuer, as applicable; or
(BB)
involved the behavior of a corporate executive described in item (aa) toward another employee of the covered issuer or a subsidiary, contractor, or subcontractor of the covered issuer, as applicable, without regard to whether that behavior occurred in the workplace of the covered issuer or a subsidiary, contractor, or subcontractor of the covered issuer;
(IV)
the total dollar amount with respect to the settlements described in subclause (III);
(V)
the average length of time required for the covered issuer to resolve a complaint relating to an alleged act of covered discrimination, covered harassment, or sexual abuse;
(VI)
the total number of judgments entered against the covered issuer, a subsidiary, contractor, or subcontractor of the covered issuer, or a corporate executive of the covered issuer that relate to any alleged act of sexual abuse, covered harassment, or covered discrimination that—
- (aa)
occurred in the workplace of the covered issuer or a subsidiary, contractor, or subcontractor of the covered issuer; or
- (bb)
involves the behavior of an employee of the covered issuer, or a subsidiary, contractor, or subcontractor of the covered issuer, toward another such employee, without regard to whether that behavior occurred in the workplace of the covered issuer or the subsidiary, contractor, or subcontractor, as applicable;
(VII)
the total dollar amount paid with respect to the judgments described in subclause (VI);
(VIII)
the total number of judgments entered against the covered issuer, a subsidiary, contractor, or subcontractor of the covered issuer, or a corporate executive of the covered issuer that relate to any alleged act of sexual abuse, covered harassment, or covered discrimination that—
- (aa)
was committed by a corporate executive of—
(AA)
the covered issuer; or
(BB)
a subsidiary, contractor, or subcontractor of the covered issuer; and
- (bb)
(AA)
occurred in the workplace of the covered issuer or a subsidiary, contractor, or subcontractor of the covered issuer, as applicable; or
(BB)
involved the behavior of a corporate executive described in item (aa) toward another employee of the covered issuer or a subsidiary, contractor, or subcontractor of the covered issuer, as applicable, without regard to whether that behavior occurred in the workplace of the covered issuer or a subsidiary, contractor, or subcontractor of the covered issuer; and
(IX)
the total dollar amount with respect to the judgments described in subclause (VIII);
(ii)
as of the date on which the disclosure is made, the total number of complaints relating to covered discrimination, covered harassment, and sexual abuse that the covered issuer is working to resolve through—
(I)
processes that are internal to the covered issuer;
(II)
arbitration; and
(III)
litigation; and
(iii)
with respect to each alleged act of covered discrimination, covered harassment, or sexual abuse that is the subject of a complaint or settlement described in clauses (i) and (ii), the date on which that alleged act occurred, with as much specificity as is practicable under the circumstances.
(B)

Categories
(i)

In general
Subject to subparagraph (C), in each disclosure required under subparagraph (A), a covered issuer shall report the following:
(I)
For the fiscal year that is the subject of that disclosure, the following:
- (aa)
The total number of settlements in subclauses (I) and (III) of subparagraph (A)(i), in the aggregate.
- (bb)
The total dollar amounts in subclauses (II) and (IV) of subparagraph (A)(i), in the aggregate.
- (cc)
The number of settlements in subclauses (I) and (III) of subparagraph (A)(i), individually.
- (dd)
The dollar amounts in subclauses (II) and (IV) of subparagraph (A)(i), individually.
- (ee)
The total number of judgments in subclauses (VI) and (VIII) of subparagraph (A)(i), in the aggregate.
- (ff)
The total dollar amounts in subclauses (VII) and (IX) of subparagraph (A)(i), in the aggregate.
- (gg)
The number of judgments in subclauses (VI) and (VIII) of subparagraph (A)(i), individually.
- (hh)
The dollar amounts in subclauses (VII) and (IX) of subparagraph (A)(i), individually.
(II)
For the 7-fiscal year period that is comprised of the fiscal year that is the subject of that disclosure and the 6 fiscal years that precede that fiscal year, the following:
- (aa)
The total number of settlements in subclauses (I) and (III) of subparagraph (A)(i), in the aggregate.
- (bb)
The total dollar amounts in subclauses (II) and (IV) of subparagraph (A)(i), in the aggregate.
- (cc)
The total number of judgments in subclauses (VI) and (VIII) of subparagraph (A)(i), in the aggregate.
- (dd)
The total dollar amounts in subclauses (VII) and (IX) of subparagraph (A)(i), in the aggregate.
(ii)

Listing
In disclosing information in the manner described in clause (i), a covered issuer shall list a settlement or judgment, as applicable, by any of the following categories that apply to the settlement or judgment:
(I)
A settlement or judgment relating to an alleged act of sexual abuse, covered discrimination, or covered harassment because of sex.
(II)
A settlement or judgment relating to an alleged act of covered discrimination or covered harassment because of race, color, or national origin.
(III)
A settlement or judgment relating to an alleged act of covered discrimination or covered harassment because of religion.
(IV)
A settlement or judgment relating to an alleged act of covered discrimination or covered harassment because of age.
(V)
A settlement or judgment relating to an alleged act of covered discrimination or covered harassment on the basis of disability.
(VI)
A settlement or judgment relating to an alleged act of covered discrimination or covered harassment because of genetic information.
(VII)
A settlement or judgment relating to an alleged act of covered discrimination or covered harassment on the basis of status concerning service in a uniformed service.
(VIII)
A settlement or judgment relating to an alleged act of covered discrimination or covered harassment because of sexual orientation or gender identity.
(C)

Prohibitions on certain disclosures; victim choice
(i)

Prohibition on disclosures by covered issuers
A covered issuer may not—
(I)
in any disclosure made under subparagraph (A), or in any other public disclosure, disclose the name of a victim of an alleged act of sexual abuse, covered harassment, or covered discrimination on which a settlement, judgment, or complaint, as applicable, described in subparagraph (A) is based; or
(II)
under subparagraph (B)(ii), include the categorization of a settlement or judgment described in subclause (I), (III), (VI), or (VIII) of subparagraph (A)(i), as applicable, in any disclosure made under subparagraph (A) if the victim of the alleged act of sexual abuse, covered harassment, or covered discrimination on which the settlement or judgment is based objects to the disclosure of that categorization.
(ii)

Prohibition on disclosures by the Commission
The Commission may not disclose the name of a victim of an alleged act of sexual abuse, covered harassment, or covered discrimination on which a settlement, judgment, or complaint, as applicable, described in subparagraph (A) is based.
(iii)

Victim choice
(I)

In general
A covered issuer shall not be required to report information under subparagraph (B)(i) if the victim of the alleged act of sexual abuse, covered harassment, or covered discrimination on which the settlement or judgment, as applicable, is based objects to the reporting of that information.
(II)

No effect on subsequent years
If information is not reported in a fiscal year because of an objection made under subclause (I), that information shall be reported in subsequent fiscal years under subparagraph (B)(ii).
(D)

Prevention of sexual abuse, covered harassment, and covered discrimination
In each disclosure required under subparagraph (A), the covered issuer making the disclosure shall include a description of the measures taken by the covered issuer and any subsidiary, contractor, or subcontractor of the covered issuer to prevent employees of the covered issuer and any subsidiary, contractor, or subcontractor of the covered issuer from committing or engaging in sexual abuse, covered harassment, or covered discrimination.
(3)

Regulations
The Commission may promulgate such regulations as the Commission considers necessary to implement the requirements under paragraph (2).”.