[Congressional Record Volume 155, Number 121 (Wednesday, August 5, 2009)]
[Senate]
[Pages S8866-S8871]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. LEAHY:
  S. 1578. A bill to amend chapter 171 of title 28, United States Code, 
(commonly referred to as the Federal Torts Claims Act) to extend 
medical malpractice coverage to free clinics and the officers, 
governing board members, employees, and contractors of free clinics in 
the same manner and extend as certain Federal officers and employees; 
to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today I am introducing legislation to 
clarify the application of the Federal Tort Claims Act and how it 
applies to free medical clinics. In my home State of Vermont, free 
clinics provide important health care, and in these tough economic 
times they provide an essential safety net for many people. Free 
clinics in Vermont and around the country are struggling to pay medical 
malpractice insurance premiums, due to an ambiguity in the Federal law. 
Current law provides for physicians who volunteer in free clinics to 
receive medical malpractice coverage under the Federal Torts Claims 
Act, FTCA, but it is unclear whether other professionals serving the 
community in free clinics are also covered. Existing Federal law 
explicitly provides more comprehensive FTCA coverage to community 
health centers, including coverage for their boards, employees, 
contractors and officers. But free clinics currently must purchase 
malpractice insurance for their board members, employees, contractors 
and officers. Purchasing this coverage diverts thousands of dollars 
annually from each of the free clinics in the country. These are funds 
that could be directed to providing necessary healthcare to the 
uninsured. This is especially true in States like Vermont, where free 
clinics make a significant impact serving those in rural areas. 
Additionally, by removing this financial burden for free clinics, the 
impact of organizations like Volunteers in Medicine, which assists in 
setting up and staffing free clinics, will be that much greater. In 
clarifying current law, and at minimal expense to the Federal 
Government, we can increase the effectiveness of free clinics that 
serve and care for so many Americans.
  This legislation would make it clear that FTCA coverage should be the 
same for community health centers and free clinics. Both of these 
institutions deserve our help and play a fundamental role in our 
communities. It is my understanding that this clarification would not 
dramatically raise medical malpractice defense costs of the Federal 
Government because free clinics do not perform high risk procedures 
like surgeries or births. I urge my fellow Senators to join me in 
supporting the important work that free clinics provide our 
communities.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

[[Page S8867]]

                                S. 1578

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. EXTENSION OF MEDICAL MALPRACTICE COVERAGE TO FREE 
                   CLINICS.

       (a) In General.--Chapter 171 of title 28, United States 
     Code, is amended by adding after section 2680 the following:

     ``Sec. 2681. Medical malpractice coverage for free clinics

       ``For purposes of applying the remedy against the United 
     States provided by sections 1346(b) and 2672 of this title 
     and for purposes of section 224 of Public Law 78-410 (42 
     U.S.C. 233) a free clinic defined under section 224(o)(3)(A) 
     of that Act shall be treated as an entity described under 
     section 224(g)(4) of that Act. The authorization of 
     appropriations under section 224(o)(6)(A) of that Act shall 
     apply to the acts or omissions of officers, governing board 
     members, employees, and contractors of free clinics''.
       (b) Technical and Conforming Amendments.--
       (1) Table of sections.--The table of sections for chapter 
     171 of title 28, United States Code, is amended by adding at 
     the end the following:

``2681. Medical malpractice coverage for free clinics.''.
       (2) Reference.--Section 224(g)(4) of the Public Law 78-410 
     (42 U.S.C. 233(g)(4)) is amended by inserting ``or a free 
     clinic as provided under section 2681 of title 28, United 
     States Code'' before the period.

     SEC. 2. EFFECTIVE DATE.

       The amendments made by this Act shall take effect on the 
     date of enactment of this Act and apply to any act or 
     omission which occurs on or after that date.
                                 ______
                                 
      By Mr. REID (for Mr. Kennedy (for himself, Mrs. Murray, Mr. Dodd, 
        Mr. Harkin, Mr. Bingaman, Mr. Sanders, Mr. Brown, Mr. Casey, 
        Mr. Merkley, Mr. Franken, Mr. Leahy, Mr. Akaka, Mrs. Boxer, Mr. 
        Feingold, Mr. Durbin, Mr. Schumer, Ms. Stabenow, Mr. 
        Lautenberg, Mr. Menendez, and Mr. Whitehouse)):
  S. 1580. A bill to amend the Occupational Safety and Health Act of 
1970 to expand coverage under the Act, to increase protections for 
whistleblowers, to increase penalties for certain violators, and for 
other purposes; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. KENNEDY. Mr. President, today I am pleased to introduce the 
Protecting America's Workers Act. Almost 40 years ago, Congress set out 
to guarantee a safe workplace for all Americans. The Occupational 
Safety and Health Act of 1970 was landmark legislation that has 
dramatically improved the well-being of working men and women.
  Since then, the annual job fatality rate has dropped from 18 deaths 
per 100,000 workers to less than four. Thousands of lives have been 
saved each year. These are not abstract numbers--they represent 
thousands of families who have been spared the pain and heartache of 
losing a loved one on the job.
  We are enormously proud of the progress we have made, but we also 
know that too many workers continue to face needless dangers in the 
workplace. In 2007, almost 5,500 workers were killed on the job and 4 
million other workers became ill or were injured. Fifteen workers still 
die on the job every day, and nearly 11,000 who are injured or become 
ill because of dangerous conditions.
  We now have strong partners in the White House and at the Department 
of Labor who are committed to making our workplaces safer. But they 
need action by Congress as well. That is why today we are reintroducing 
the Protecting America's Workers Act, to take concrete steps to address 
many of the failures of the existing law.
  First, this legislation expands the coverage of the current job 
safety laws to protect the millions of public employees and 
transportation workers who are not covered by these laws. In 
Massachusetts alone, 350,000 public sector workers lack the protections 
granted by the federal workplace safety law.
  Our bill also protects workers who speak up about unsafe conditions 
on the job, by updating OSHA's whistleblower provisions. OSHA 
inspectors can't be in every workplace, every day. We must rely on 
workers who have the courage to come forward when they know their 
employer is cutting corners on safety. This legislation makes good on 
the promise to stand by those workers and guarantee they don't have to 
sacrifice their jobs in order to do the right thing.
  In addition, the legislation gives workers and their families and 
representatives a seat at the table on safety issues. It includes 
sensible reforms to ensure that victims and their families have a right 
to talk to OSHA before a citation issues, to obtain copies of important 
documents, to be informed about their rights, and to have their voices 
heard before OSHA accepts a settlement that lets an employer off the 
hook for endangering workers.
  Finally, a critical element of this bill is the increase in penalties 
on employers who turn their backs on the safety of their workers. Too 
many employers in our country blatantly ignore the law, and too often 
they are not held accountable. They pay only minimal fines, which they 
treat as just another cost of doing business.
  Last year, my office issued a report that showed that the median 
penalty for a workplace fatality was only $3,675. In other words, in 
cases investigated by OSHA where workers were killed on the job, half 
of all employers were fined $3,675 or less. Workers' lives are 
obviously worth far more than that. We know this administration will do 
better, but it needs our help.
  The bill makes reasonable increases in civil penalties--especially in 
the most serious cases. It also creates a strong criminal penalty, 
including the possibility of felony charges and significant prison 
terms. These changes will create the deterrence we need so that 
employers will think twice before they gamble with workers' lives to 
save a few dollars. We need to send a strong message that it is 
unacceptable to treat workers as expendable or disposable.
  Earlier this year a brave young woman, Tammy Miser, testified before 
our Labor Committee about her brother Shawn, who was killed in an 
explosion at the Hayes Lemmerz manufacturing plant in Huntington, 
Indiana in 2003. We can't bring Shawn back and we can't ease Tammy's 
pain at the loss of her beloved brother. But we can stand with her as 
she pursues her life's work since then of speaking out for the right of 
every worker to come home safely at the end of the day. I urge my 
colleagues to join me in honoring the millions of hardworking Americans 
who deserve real protection by supporting the Protecting America's 
Workers Act.
                                 ______
                                 
      By Mr. MERKLEY (for himself, Ms. Collins, Mr. Kennedy, Ms. Snowe, 
        Mr. Akaka, Mr. Bingaman, Mrs. Boxer, Mr. Brown, Mr. Burris, Ms. 
        Cantwell, Mr. Cardin, Mr. Casey, Mr. Dodd, Mr. Durbin, Mr. 
        Feingold, Mrs. Feinstein, Mr. Franken, Mrs. Gillibrand, Mr. 
        Harkin, Mr. Inouye, Mr. Kerry, Ms. Klobuchar, Mr. Kohl, Mr. 
        Lautenberg, Mr. Leahy, Mr. Levin, Mr. Lieberman, Mr. Menendez, 
        Ms. Mikulski, Mrs. Murray, Mr. Reed, Mr. Sanders, Mr. Schumer, 
        Mrs. Shaheen, Mr. Specter, Mr. Udall of Colorado, Mr. Udall of 
        New Mexico, Mr. Whitehouse, and Mr. Wyden):
  S. 1584. A bill to prohibit employment discrimination on the basis of 
sexual orientation or gender identity; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. MERKLEY. Mr. President, I rise today to discuss the Employment 
Non-Discrimination Act, a bill I introduced with Senators Susan 
Collins, Ted Kennedy, Olympia Snowe, and more than 30 others. This 
historic bill will prohibit employers from discriminating against those 
employed or seeking employment, on the basis of their perceived or 
actual sexual orientation or gender identity.
  Senator Kennedy has long been a champion for civil rights, and 
without his decades of leadership and determination, we would not have 
the strong coalition of support we exhibit today with the introduction 
of ENDA.
  I would also like to thank the Human Rights Campaign and the 
Leadership Conference on Civil Rights for their strong commitment to 
this legislation.
  Our country was founded on the principle of equal justice for all. It 
is that philosophy which has guided us through decades of progress. It 
is that philosophy which led to passage of the Civil Rights Act of 
l964. It was that act which paved the way for countless groundbreaking 
moments, and I am certain this is one of them.

[[Page S8868]]

  Passage of the Civil Rights Act was a defining time in our history, 
the result of generations of people willing to march and struggle for 
equality. Although we have made progress, we continue that fight today. 
We continue that fight for those who have, for too long, been left out.
  Let me be clear, discrimination on the basis of personal 
characteristics has no place in any workplace or in any State, and it 
is long overdue for Congress to extend American employees these 
protections. Under ENDA, employment decisions will be based upon merit 
and performance, not prejudice.
  This is not a new idea. In fact, many states have already confronted 
this challenge. I am proud that Oregon has long been a leader on 
equality issues, and already offers protections to those discriminated 
against based on both sexual orientation and gender identity. But it 
was not easy. It is never easy.
  Martin Luther King, Jr. said, ``Human progress is neither automatic 
nor inevitable. Every step toward the goal of justice requires 
sacrifice, suffering, and struggle; the tireless exertions and 
passionate concern of dedicated individuals.''
  For the first time in history, the Senate has before it a fully 
inclusive bill, extending employment protections to members of 
communities that have historically been left out. I am proud to be a 
part of this historic effort to ensure that no matter who you are, you 
have the right to earn a living.
  Corporate America is light years ahead. More than 85 percent of 
Fortune 500 companies have implemented non-discrimination policies that 
include sexual orientation, and another third have policies that 
include gender identity.
  Unfortunately, we are still faced with cases of employment 
discrimination that are entirely legal--a fact I find offensive and 
contradictory to the founding principles of this great nation.
  In 2000, Linda, an attorney, relocated to Virginia where her partner 
had accepted a faculty position at a university. During her job search, 
Linda was invited for a second interview with a local law firm. During 
the interview, Linda was asked why she was moving to Virginia, and she 
replied that her spouse had taken a position at a local university.
  The firm asked Linda to come back for a third interview, which 
included dinner with all the partners and their spouses to ``make sure 
they all got along.'' At that point, Linda told one of the partners at 
the firm that her spouse was a woman. It was not long before Linda was 
told that the firm would not hire a lesbian and the invitation to the 
final interview was rescinded.
  Thankfully, Linda spoke out, but there are still countless instances 
where victims of this type of discrimination remain silent.
  By extending the protection of Title VII to those victimized purely 
because of who they are, we move one step closer to that fundamental 
principle of equal justice for every American.
  I am proud that we are again taking a step toward progress. I hope my 
colleagues will move swiftly to pass the Employment Non-Discrimination 
Act, which will ensure that every American receives equality under the 
law.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1584

       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 ``Employment Non-
     Discrimination Act of 2009''.

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to address the history and widespread pattern of 
     discrimination on the basis of sexual orientation or gender 
     identity by private sector employers and local, State, and 
     Federal government employers;
       (2) to provide a comprehensive Federal prohibition of 
     employment discrimination on the basis of sexual orientation 
     or gender identity, including meaningful and effective 
     remedies for any such discrimination; and
       (3) to invoke congressional powers, including the powers to 
     enforce the 14th amendment to the Constitution, and to 
     regulate interstate commerce and provide for the general 
     welfare pursuant to section 8 of article I of the 
     Constitution, in order to prohibit employment discrimination 
     on the basis of sexual orientation or gender identity.

     SEC. 3. DEFINITIONS.

       (a) In General.--In this Act:
       (1) Commission.--The term ``Commission'' means the Equal 
     Employment Opportunity Commission.
       (2) Covered entity.--The term ``covered entity'' means an 
     employer, employment agency, labor organization, or joint 
     labor-management committee.
       (3) Employee.--
       (A) In general.--The term ``employee'' means--
       (i) an employee as defined in section 701(f) of the Civil 
     Rights Act of 1964 (42 U.S.C. 2000e(f));
       (ii) a State employee to which section 302(a)(1) of the 
     Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
     16b(a)(1)) applies;
       (iii) a covered employee, as defined in section 101 of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 1301) or 
     section 411(c) of title 3, United States Code; or
       (iv) an employee or applicant to which section 717(a) of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies.
       (B) Exception.--The provisions of this Act that apply to an 
     employee or individual shall not apply to a volunteer who 
     receives no compensation.
       (4) Employer.--The term ``employer'' means--
       (A) a person engaged in an industry affecting commerce (as 
     defined in section 701(h) of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e(h)) who has 15 or more employees (as defined in 
     subparagraphs (A)(i) and (B) of paragraph (3)) for each 
     working day in each of 20 or more calendar weeks in the 
     current or preceding calendar year, and any agent of such a 
     person, but does not include a bona fide private membership 
     club (other than a labor organization) that is exempt from 
     taxation under section 501(c) of the Internal Revenue Code of 
     1986;
       (B) an employing authority to which section 302(a)(1) of 
     the Government Employee Rights Act of 1991 applies;
       (C) an employing office, as defined in section 101 of the 
     Congressional Accountability Act of 1995 or section 411(c) of 
     title 3, United States Code; or
       (D) an entity to which section 717(a) of the Civil Rights 
     Act of 1964 applies.
       (5) Employment agency.--The term ``employment agency'' has 
     the meaning given the term in section 701(c) of the Civil 
     Rights Act of 1964 (42 U.S.C. 2000e(c)).
       (6) Gender identity.--The term ``gender identity'' means 
     the gender-related identity, appearance, or mannerisms or 
     other gender-related characteristics of an individual, with 
     or without regard to the individual's designated sex at 
     birth.
       (7) Labor organization.--The term ``labor organization'' 
     has the meaning given the term in section 701(d) of the Civil 
     Rights Act of 1964 (42 U.S.C. 2000e(d)).
       (8) Person.--The term ``person'' has the meaning given the 
     term in section 701(a) of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e(a)).
       (9) Sexual orientation.--The term ``sexual orientation'' 
     means homosexuality, heterosexuality, or bisexuality.
       (10) State.--The term ``State'' has the meaning given the 
     term in section 701(i) of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e(i)).
       (b) Application of Definitions.--For purposes of this 
     section, a reference in section 701 of the Civil Rights Act 
     of 1964--
       (1) to an employee or an employer shall be considered to 
     refer to an employee (as defined in subsection (a)(3)) or an 
     employer (as defined in subsection (a)(4)), respectively, 
     except as provided in paragraph (2) of this subsection; and
       (2) to an employer in subsection (f) of that section shall 
     be considered to refer to an employer (as defined in 
     subsection (a)(4)(A)).

     SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.

       (a) Employer Practices.--It shall be an unlawful employment 
     practice for an employer--
       (1) to fail or refuse to hire or to discharge any 
     individual, or otherwise discriminate against any individual 
     with respect to the compensation, terms, conditions, or 
     privileges of employment of the individual, because of such 
     individual's actual or perceived sexual orientation or gender 
     identity; or
       (2) to limit, segregate, or classify the employees or 
     applicants for employment of the employer in any way that 
     would deprive or tend to deprive any individual of employment 
     or otherwise adversely affect the status of the individual as 
     an employee, because of such individual's actual or perceived 
     sexual orientation or gender identity.
       (b) Employment Agency Practices.--It shall be an unlawful 
     employment practice for an employment agency to fail or 
     refuse to refer for employment, or otherwise to discriminate 
     against, any individual because of the actual or perceived 
     sexual orientation or gender identity of the individual or to 
     classify or refer for employment any individual on the basis 
     of the actual or perceived sexual orientation or gender 
     identity of the individual.
       (c) Labor Organization Practices.--It shall be an unlawful 
     employment practice for a labor organization--
       (1) to exclude or to expel from its membership, or 
     otherwise to discriminate against, any individual because of 
     the actual or perceived sexual orientation or gender identity 
     of the individual;
       (2) to limit, segregate, or classify its membership or 
     applicants for membership, or to

[[Page S8869]]

     classify or fail or refuse to refer for employment any 
     individual, in any way that would deprive or tend to deprive 
     any individual of employment, or would limit such employment 
     or otherwise adversely affect the status of the individual as 
     an employee or as an applicant for employment because of such 
     individual's actual or perceived sexual orientation or gender 
     identity; or
       (3) to cause or attempt to cause an employer to 
     discriminate against an individual in violation of this 
     section.
       (d) Training Programs.--It shall be an unlawful employment 
     practice for any employer, labor organization, or joint 
     labor-management committee controlling apprenticeship or 
     other training or retraining, including on-the-job training 
     programs, to discriminate against any individual because of 
     the actual or perceived sexual orientation or gender identity 
     of the individual in admission to, or employment in, any 
     program established to provide apprenticeship or other 
     training.
       (e) Association.--An unlawful employment practice described 
     in any of subsections (a) through (d) shall be considered to 
     include an action described in that subsection, taken against 
     an individual based on the actual or perceived sexual 
     orientation or gender identity of a person with whom the 
     individual associates or has associated.
       (f) No Preferential Treatment or Quotas.--Nothing in this 
     Act shall be construed or interpreted to require or permit--
       (1) any covered entity to grant preferential treatment to 
     any individual or to any group because of the actual or 
     perceived sexual orientation or gender identity of such 
     individual or group on account of an imbalance which may 
     exist with respect to the total number or percentage of 
     persons of any actual or perceived sexual orientation or 
     gender identity employed by any employer, referred or 
     classified for employment by any employment agency or labor 
     organization, admitted to membership or classified by any 
     labor organization, or admitted to, or employed in, any 
     apprenticeship or other training program, in comparison with 
     the total number or percentage of persons of such actual or 
     perceived sexual orientation or gender identity in any 
     community, State, section, or other area, or in the available 
     work force in any community, State, section, or other area; 
     or
       (2) the adoption or implementation by a covered entity of a 
     quota on the basis of actual or perceived sexual orientation 
     or gender identity.
       (g) Disparate Impact.--Only disparate treatment claims may 
     be brought under this Act.

     SEC. 5. RETALIATION PROHIBITED.

       It shall be an unlawful employment practice for a covered 
     entity to discriminate against an individual because such 
     individual--
       (1) opposed any practice made an unlawful employment 
     practice by this Act; or
       (2) made a charge, testified, assisted, or participated in 
     any manner in an investigation, proceeding, or hearing under 
     this Act.

     SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

       This Act shall not apply to a corporation, association, 
     educational institution or institution of learning, or 
     society that is exempt from the religious discrimination 
     provisions of title VII of the Civil Rights Act of 1964 
     pursuant (42 U.S.C. 2000e et seq.) to section 702(a) or 
     703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)).

     SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; 
                   VETERANS' PREFERENCES.

       (a) Armed Forces.--
       (1) Employment.--In this Act, the term ``employment'' does 
     not apply to the relationship between the United States and 
     members of the Armed Forces.
       (2) Armed forces.--In paragraph (1) the term ``Armed 
     Forces'' means the Army, Navy, Air Force, Marine Corps, and 
     Coast Guard.
       (b) Veterans' Preferences.--This title does not repeal or 
     modify any Federal, State, territorial, or local law creating 
     a special right or preference concerning employment for a 
     veteran.

     SEC. 8. CONSTRUCTION.

       (a) Employer Rules and Policies.--
       (1) In general.--Nothing in this Act shall be construed to 
     prohibit a covered entity from enforcing rules and policies 
     that do not intentionally circumvent the purposes of this 
     Act, if the rules or policies are designed for, and uniformly 
     applied to, all individuals regardless of actual or perceived 
     sexual orientation or gender identity.
       (2) Sexual harassment.--Nothing in this Act shall be 
     construed to limit a covered entity from taking adverse 
     action against an individual because of a charge of sexual 
     harassment against that individual, provided that rules and 
     policies on sexual harassment, including when adverse action 
     is taken, are designed for, and uniformly applied to, all 
     individuals regardless of actual or perceived sexual 
     orientation or gender identity.
       (3) Certain shared facilities.--Nothing in this Act shall 
     be construed to establish an unlawful employment practice 
     based on actual or perceived gender identity due to the 
     denial of access to shared shower or dressing facilities in 
     which being seen unclothed is unavoidable, provided that the 
     employer provides reasonable access to adequate facilities 
     that are not inconsistent with the employee's gender identity 
     as established with the employer at the time of employment or 
     upon notification to the employer that the employee has 
     undergone or is undergoing gender transition, whichever is 
     later.
       (4) Additional facilities not required.--Nothing in this 
     Act shall be construed to require the construction of new or 
     additional facilities.
       (5) Dress and grooming standards.--Nothing in this Act 
     shall prohibit an employer from requiring an employee, during 
     the employee's hours at work, to adhere to reasonable dress 
     or grooming standards not prohibited by other provisions of 
     Federal, State, or local law, provided that the employer 
     permits any employee who has undergone gender transition 
     prior to the time of employment, and any employee who has 
     notified the employer that the employee has undergone or is 
     undergoing gender transition after the time of employment, to 
     adhere to the same dress or grooming standards as apply for 
     the gender to which the employee has transitioned or is 
     transitioning.
       (b) Employee Benefits.--Nothing in this Act shall be 
     construed to require a covered entity to treat an unmarried 
     couple in the same manner as the covered entity treats a 
     married couple for purposes of employee benefits.
       (c) Definition of Marriage.--In this Act, the term 
     ``married'' refers to marriage as such term is defined in 
     section 7 of title 1, United States Code (commonly known as 
     the ``Defense of Marriage Act'').

     SEC. 9. COLLECTION OF STATISTICS PROHIBITED.

       The Commission shall not collect statistics on actual or 
     perceived sexual orientation or gender identity from covered 
     entities, or compel the collection of such statistics by 
     covered entities.

     SEC. 10. ENFORCEMENT.

       (a) Enforcement Powers.--With respect to the administration 
     and enforcement of this Act in the case of a claim alleged by 
     an individual for a violation of this Act--
       (1) the Commission shall have the same powers as the 
     Commission has to administer and enforce--
       (A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.); or
       (B) sections 302 and 304 of the Government Employee Rights 
     Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c),
     in the case of a claim alleged by such individual for a 
     violation of such title, or of section 302(a)(1) of the 
     Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
     16b(a)(1)), respectively;
       (2) the Librarian of Congress shall have the same powers as 
     the Librarian of Congress has to administer and enforce title 
     VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 
     in the case of a claim alleged by such individual for a 
     violation of such title;
       (3) the Board (as defined in section 101 of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 1301)) 
     shall have the same powers as the Board has to administer and 
     enforce the Congressional Accountability Act of 1995 (2 
     U.S.C. 1301 et seq.) in the case of a claim alleged by such 
     individual for a violation of section 201(a)(1) of such Act 
     (2 U.S.C. 1311(a)(1));
       (4) the Attorney General shall have the same powers as the 
     Attorney General has to administer and enforce--
       (A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.); or
       (B) sections 302 and 304 of the Government Employee Rights 
     Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c);
     in the case of a claim alleged by such individual for a 
     violation of such title, or of section 302(a)(1) of the 
     Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
     16b(a)(1)), respectively;
       (5) the President, the Commission, and the Merit Systems 
     Protection Board shall have the same powers as the President, 
     the Commission, and the Board, respectively, have to 
     administer and enforce chapter 5 of title 3, United States 
     Code, in the case of a claim alleged by such individual for a 
     violation of section 411 of such title; and
       (6) a court of the United States shall have the same 
     jurisdiction and powers as the court has to enforce--
       (A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.) in the case of a claim alleged by such 
     individual for a violation of such title;
       (B) sections 302 and 304 of the Government Employee Rights 
     Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c) in the case 
     of a claim alleged by such individual for a violation of 
     section 302(a)(1) of such Act (42 U.S.C. 2000e-16b(a)(1));
       (C) the Congressional Accountability Act of 1995 (2 U.S.C. 
     1301 et seq.) in the case of a claim alleged by such 
     individual for a violation of section 201(a)(1) of such Act 
     (2 U.S.C. 1311(a)(1)); and
       (D) chapter 5 of title 3, United States Code, in the case 
     of a claim alleged by such individual for a violation of 
     section 411 of such title.
       (b) Procedures and Remedies.--The procedures and remedies 
     applicable to a claim alleged by an individual for a 
     violation of this Act are--
       (1) the procedures and remedies applicable for a violation 
     of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e 
     et seq.) in the case of a claim alleged by such individual 
     for a violation of such title;
       (2) the procedures and remedies applicable for a violation 
     of section 302(a)(1) of the Government Employee Rights Act of 
     1991 (42 U.S.C. 2000e-16b(a)(1)) in the case of a claim 
     alleged by such individual for a violation of such section;

[[Page S8870]]

       (3) the procedures and remedies applicable for a violation 
     of section 201(a)(1) of the Congressional Accountability Act 
     of 1995 (2 U.S.C. 1311(a)(1)) in the case of a claim alleged 
     by such individual for a violation of such section; and
       (4) the procedures and remedies applicable for a violation 
     of section 411 of title 3, United States Code, in the case of 
     a claim alleged by such individual for a violation of such 
     section.
       (c) Other Applicable Provisions.--With respect to a claim 
     alleged by a covered employee (as defined in section 101 of 
     the Congressional Accountability Act of 1995 (2 U.S.C. 1301)) 
     for a violation of this Act, title III of the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1381 et seq.) shall 
     apply in the same manner as such title applies with respect 
     to a claim alleged by such a covered employee for a violation 
     of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).

     SEC. 11. STATE AND FEDERAL IMMUNITY.

       (a) Abrogation of State Immunity.--A State shall not be 
     immune under the 11th amendment to the Constitution from a 
     suit brought in a Federal court of competent jurisdiction for 
     a violation of this Act.
       (b) Waiver of State Immunity.--
       (1) In general.--
       (A) Waiver.--A State's receipt or use of Federal financial 
     assistance for any program or activity of a State shall 
     constitute a waiver of sovereign immunity, under the 11th 
     amendment to the Constitution or otherwise, to a suit brought 
     by an employee or applicant for employment of that program or 
     activity under this Act for a remedy authorized under 
     subsection (d).
       (B) Definition.--In this paragraph, the term ``program or 
     activity'' has the meaning given the term in section 606 of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
       (2) Effective date.--With respect to a particular program 
     or activity, paragraph (1) applies to conduct occurring on or 
     after the day, after the date of enactment of this Act, on 
     which a State first receives or uses Federal financial 
     assistance for that program or activity.
       (c) Remedies Against State Officials.--An official of a 
     State may be sued in the official capacity of the official by 
     any employee or applicant for employment who has complied 
     with the applicable procedures of section 10, for equitable 
     relief that is authorized under this Act. In such a suit the 
     court may award to the prevailing party those costs 
     authorized by section 722 of the Revised Statutes (42 U.S.C. 
     1988).
       (d) Remedies Against the United States and the States.--
     Notwithstanding any other provision of this Act, in an action 
     or administrative proceeding against the United States or a 
     State for a violation of this Act, remedies (including 
     remedies at law and in equity, and interest) are available 
     for the violation to the same extent as the remedies are 
     available for a violation of title VII of the Civil Rights 
     Act of 1964 (42 U.S.C. 2000e et seq.) by a private entity, 
     except that--
       (1) punitive damages are not available; and
       (2) compensatory damages are available to the extent 
     specified in section 1977A(b) of the Revised Statutes (42 
     U.S.C. 1981a(b)).

     SEC. 12. ATTORNEYS' FEES.

       Notwithstanding any other provision of this Act, in an 
     action or administrative proceeding for a violation of this 
     Act, an entity described in section 10(a) (other than 
     paragraph (4) of such section), in the discretion of the 
     entity, may allow the prevailing party, other than the 
     Commission or the United States, a reasonable attorney's fee 
     (including expert fees) as part of the costs. The Commission 
     and the United States shall be liable for the costs to the 
     same extent as a private person.

     SEC. 13. POSTING NOTICES.

       A covered entity who is required to post notices described 
     in section 711 of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e-10) shall post notices for employees, applicants for 
     employment, and members, to whom the provisions specified in 
     section 10(b) apply, that describe the applicable provisions 
     of this Act in the manner prescribed by, and subject to the 
     penalty provided under, section 711 of the Civil Rights Act 
     of 1964.

     SEC. 14. REGULATIONS.

       (a) In General.--Except as provided in subsections (b), 
     (c), and (d), the Commission shall have authority to issue 
     regulations to carry out this Act.
       (b) Librarian of Congress.--The Librarian of Congress shall 
     have authority to issue regulations to carry out this Act 
     with respect to employees and applicants for employment of 
     the Library of Congress.
       (c) Board.--The Board referred to in section 10(a)(3) shall 
     have authority to issue regulations to carry out this Act, in 
     accordance with section 304 of the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1384), with respect to 
     covered employees, as defined in section 101 of such Act (2 
     U.S.C. 1301).
       (d) President.--The President shall have authority to issue 
     regulations to carry out this Act with respect to covered 
     employees, as defined in section 411(c) of title 3, United 
     States Code, and applicants for employment as such employees.

     SEC. 15. RELATIONSHIP TO OTHER LAWS.

       This Act shall not invalidate or limit the rights, 
     remedies, or procedures available to an individual claiming 
     discrimination prohibited under any other Federal law or 
     regulation or any law or regulation of a State or political 
     subdivision of a State.

     SEC. 16. SEVERABILITY.

       If any provision of this Act, or the application of the 
     provision to any person or circumstance, is held to be 
     invalid, the remainder of this Act and the application of the 
     provision to any other person or circumstances shall not be 
     affected by the invalidity.

     SEC. 17. EFFECTIVE DATE.

       This Act shall take effect on the date that is 6 months 
     after the date of enactment of this Act and shall not apply 
     to conduct occurring before the effective date.

  Mr. KENNEDY. Mr. President, the promise of America will never be 
fulfilled as long as justice is denied to any of our fellow citizens. 
We have made remarkable progress in the long march towards equal 
opportunity and equal justice for all Americans, but this is no time 
for complacency. Civil rights remains the unfinished business of 
America. Millions of our people are still shut out of the American 
dream solely because of their sexual orientation or gender identity. 
The Employment Non-Discrimination Act brings us closer to fulfilling 
the promise of America for gay, lesbian, bisexual, and transgender 
citizens, and I am proud to join Senators Merkley, Collins, and Snowe 
today in introducing this important legislation.
  ENDA reflects the bedrock American principle that employees should be 
judged on the basis of job performance, not prejudice. It prohibits 
employers from making decisions about hiring, firing, promotions, or 
compensation based on sexual orientation or gender identity. It makes 
clear that there is no right to preferential treatment, and that quotas 
are prohibited.
  While some states have taken this important step to guarantee fair 
treatment in the workplace, ENDA is necessary to guarantee these rights 
for all. It is unacceptable that in our country in 2009, it is legal 
anywhere to judge people on who they are, not what they can accomplish. 
This legislation will right this historic wrong.
  ENDA has broad, bipartisan support. It reflects non-discrimination 
principles already in place at some our country's largest employers. In 
the past, this legislation has been endorsed by a broad religious 
coalition, civil rights leaders, and distinguished Americans from both 
parties.
  I am proud to join my colleagues today in bringing us one step closer 
to our ideal of a nation free from prejudice and injustice. I look 
forward to doing all I can to pass this important legislation, and I 
urge my colleagues to support us.
  Mr. LEAHY. Mr. President, our Nation has a proud history of diversity 
and a commitment to justice and equal rights for all Americans. The 
promise of equal rights is a foundational freedom of our democracy. 
Today we re-introduce important legislation to protect Americans from 
discrimination in the workplace. I am proud to again cosponsor the 
bipartisan Employment Non-Discrimination Act, and I thank Senators 
Kennedy, Collins, and Merkley for their leadership and commitment to an 
issue that has practical significance in the daily lives of millions of 
our fellow Americans.
  American workers should be evaluated on the basis of how they 
perform, not on irrelevant considerations, such as their race, gender, 
gender identity or sexual orientation. It is a question of fundamental 
fairness. In these difficult economic times, I can think of nothing 
more fundamental than equality in the workplace.
  The Employment Non-Discrimination Act would prohibit workplace 
discrimination by making it illegal to fire, refuse to hire, or refuse 
to promote employees simply based on a person's sexual orientation or 
gender identity. Currently, Federal law protects against employment 
discrimination on the basis of race, gender, religion, national origin 
or disability, but not sexual orientation or gender identity. It is 
long overdue for Congress to extend these protections to American 
workers.
  Senator Kennedy introduced the Employment Non-Discrimination Act in 
previous sessions of Congress, and with his leadership, it has 
consistently maintained strong bipartisan support. Unfortunately, 
partisan politics have prevented passage of the measure. It goes 
against our country's basic values to fire someone based on who they 
are or what they look like, and we should not tolerate discrimination 
in the workplace. I hope that this year Congress will have the ability 
to finally

[[Page S8871]]

pass this straightforward civil rights measure.
  My home State of Vermont has played a constructive role in America's 
journey to build a more just society. Vermont added sexual orientation 
to the list of protected categories in its antidiscrimination in 
employment law in 1992, and added gender identity protection in 2007. 
Twenty-one other States have also taken the lead to ban discrimination 
on the basis of sexual orientation, with 13 of those States also 
banning discrimination on the basis of gender identity. But it is clear 
that more still deeds to be done. In 30 States, it remains legal to 
fire someone based on their sexual orientation and in 38 States, to do 
so based on gender identity. Americans' civil rights should be 
protected no matter where they live, which is why I am proud to once 
again cosponsor this bill, as I have every time it has been introduced 
in the Senate. I believe the passage of this legislation is long 
overdue and it is a step in the right direction toward creating 
equality in the workplace.
  I urge my fellow Senators to come together to support this important, 
bipartisan bill without further delay.
                                 ______
                                 
      By Mr. DURBIN:
  S. 1585. A bill to permit pass-through payment for reasonable costs 
of certified registered nurse anesthetist services in critical access 
hospitals notwithstanding the reclassification of such hospitals as 
urban hospitals, including hospitals located in ``Lugar counties'', and 
for on-call and standby costs for such services; to the Committee on 
Finance.
  Mr. DURBIN. Mr. President, today I'm introducing the Rural Access to 
Nurse Anesthesia Services Act to ensure patients in rural communities 
can access the health care services they need. The bill would restore 
rural healthcare by making improvements to the Medicare Part A 
reasonable cost-based, pass-through program for nurse anesthesia 
services in rural and critical access hospitals.
  Throughout the Nation, 1,300 critical access hospitals provide 
essential health care services to the elderly and medically underserved 
communities in rural areas. In my State of Illinois, 51 Critical Access 
Hospitals provide emergency, primary care, and surgery services 
directly to rural communities, covering over 60 percent of the counties 
in the State and reaching over 1 million rural residents.
  For the majority of Critical Access Hospitals, Certified Registered 
Nurse Anesthetists are the sole providers of anesthesia services. The 
nurse anesthetists make it possible for these hospitals to offer 
surgical, obstetrical, trauma stabilization, interventional diagnostic 
and pain management capabilities.
  Critical Access Hospitals depend on the work of nurse anesthetists to 
deliver quality care, even while the hospitals are pressed for 
resources. Because of the limited availability of nurse anesthetists 
and fewer patients in their rural communities, Critical Access 
Hospitals do not have anesthesia in the hospital 24/7. They rely on 
anesthesia and other surgery staff to be on call and available to the 
hospital within 15 minutes to cover emergency surgery procedures and 
obstetric services.
  As an incentive to continue serving Medicare beneficiaries in rural 
areas, critical access hospitals were given permission to use 
reasonable, cost-based funding for anesthesia services performed by 
nurse anesthetists. However, recent changes in CMS policy have denied 
Critical Access Hospitals' claims for tens of thousands of dollars each 
in annual Medicare funding that they had come to rely on. In Illinois, 
Critical Access Hospitals lost $50,000-$100,000 per hospital.
  These hospitals aren't just looking for a handout. Without being able 
to pay nurse anesthetists, the rural hospitals have to turn away 
patients whose procedures call for anesthesia. Patients have to travel 
to the next nearest hospital, which is a terrible option when dealing 
with trauma stabilization, obstetrical care, or even pain management, 
particularly for elderly patients.
  In addition, despite previously reimbursing Critical Access Hospitals 
for the costs of having a nurse anesthetist available or on call for 
emergency services, CMS recently began to deny payments for this 
service. How is a hospital able to retain the few nurse anesthetists 
who are available if they can't at least keep them on call?
  The Rural Access to Nurse Anesthesia Services Act will enable 
hospitals to offer the highest quality of care and availability of 
services to patients of Critical Access Hospitals. For decades, the 
Medicare Part A reasonable cost based pass-through program has 
successfully and safely ensured the availability of anesthesia services 
for Medicare patients in rural areas. Because of the program's success 
and impact, the Rural Access to Nurse Anesthesia Services Act is 
supported by the American Association of Nurse Anesthetists and the 
American Hospital Association. I hope my colleagues will join me in 
supporting this bill and work to protect anesthesia services for 
patients in rural communities.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1585

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. MEDICARE PASS-THROUGH PAYMENTS FOR CRNA SERVICES.

       (a) Treatment of Critical Access Hospitals as Rural in 
     Determining Eligibility for CRNA Pass-Through Payments.--
     Section 9320(k) of the Omnibus Budget Reconciliation Act of 
     1986 (42 U.S.C. 1395k note), as added by section 608(c)(2) of 
     the Family Support Act of 1988 and amended by section 6132 of 
     the Omnibus Budget Reconciliation Act of 1989, is amended by 
     adding at the end the following:
       ``(3) Any facility that qualifies as a critical access 
     hospital (as defined in section 1861(mm)(1) of the Social 
     Security Act) shall be treated as being located in a rural 
     area for purposes of paragraph (1) regardless of any 
     geographic reclassification of the facility, including such a 
     reclassification of the county in which the facility is 
     located as an urban county (also popularly known as a Lugar 
     county) under section 1886(d)(8)(B) of the Social Security 
     Act (42 U.S.C. 1395ww(d)(8)(B)).''.
       (b) Treatment of Standby and On-Call Costs.--Such section 
     9320(k), as amended by subsection (a), is further amended by 
     adding at the end the following:
       ``(4) In determining the reasonable costs incurred by a 
     hospital or critical access hospital for the services of a 
     certified registered nurse anesthetist under this subsection, 
     the Secretary shall include standby costs and on-call costs 
     incurred by the hospital or critical access hospital, 
     respectively, with respect to such nurse anesthetist.''.
       (c) Effective Dates.--
       (1) Treatment of cahs as rural in determining crna pass-
     through eligibility.--The amendment made by subsection (a) 
     shall apply to calendar years beginning on or after the date 
     of the enactment of this Act (regardless of whether the 
     geographic reclassification of a critical access hospital 
     occurred before, on, or after such date).
       (2) Inclusion of standby costs and on-call costs in 
     determining reasonable costs of crna services.--The amendment 
     made by subsection (b) shall apply to costs incurred in cost 
     reporting periods beginning in fiscal years after fiscal year 
     2003.

                          ____________________