[Congressional Record Volume 159, Number 157 (Wednesday, November 6, 2013)]
[Senate]
[Pages S7839-S7841]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EMPLOYMENT NON-DISCRIMINATION ACT OF 2013
The PRESIDING OFFICER. Under the previous order, the motion to
proceed to S. 815 is agreed to, and the clerk will report the bill by
title.
The assistant legislative clerk read as follows:
A bill (S. 815) to prohibit the employment discrimination
on the basis of sexual orientation or gender identity.
The Senate proceeded to consider the bill, which had been reported
from the Committee on Health, Education, Labor, and Pensions, with an
amendment to strike all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Employment Non-
Discrimination Act of 2013''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to address the history and persistent, widespread
pattern of discrimination, including unconstitutional
discrimination, on the bases of sexual orientation and gender
identity by private sector employers and local, State, and
Federal Government employers;
(2) to provide an explicit, comprehensive Federal
prohibition against employment discrimination on the bases of
sexual orientation and 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 pursuant to section 8 of article
I of the Constitution, in order to prohibit employment
discrimination on the bases of sexual orientation and 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) Demonstrates.--The term ``demonstrates'' means meets
the burdens of production and persuasion.
(4) 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.
(5) 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 (4)) 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.
(6) 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)).
(7) 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.
(8) 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)).
(9) 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)).
(10) Sexual orientation.--The term ``sexual orientation''
means homosexuality, heterosexuality, or bisexuality.
(11) 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)(4)) or an
employer (as defined in subsection (a)(5)), 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)(5)(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 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
[[Page S7840]]
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) No Disparate Impact Claims.--Only disparate treatment
claims may be brought under this Act.
(h) Standards of Proof.--Except as otherwise provided, an
unlawful employment practice is established when the
complaining party demonstrates that sexual orientation or
gender identity was a motivating factor for any employment
practice, even though other factors also motivated the
practice.
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 (42
U.S.C. 2000e et seq.) pursuant 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) Dress or 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) Additional Facilities Not Required.--Nothing in this
Act shall be construed to require the construction of new or
additional facilities.
SEC. 9. COLLECTION OF STATISTICS PROHIBITED.
The Commission and the Secretary of Labor shall neither
compel the collection of nor require the production of
statistics on actual or perceived sexual orientation or
gender identity from covered entities pursuant to this Act.
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.--Except as provided in section
4(g), 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;
(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)).
(d) No Double Recovery.--An individual who files claims
alleging that a practice is an unlawful employment practice
under this Act and an unlawful employment practice because of
sex under title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) shall not be permitted to recover
damages for such practice under both of--
(1) this Act; and
(2) section 1977A of the Revised Statutes (42 U.S.C. 1981a)
and title VII of the Civil Rights Act of 1964.
(e) Motivating Factor Decisions.--On a claim in which an
individual proved a violation under section 4(h) and a
respondent demonstrates that the respondent would have taken
the same action in the absence of the impermissible
motivating factor, the court--
(1) may grant declaratory relief, injunctive relief (except
as provided in paragraph (2)), and attorney's fees and costs
demonstrated to be directly attributable only to the pursuit
of a claim under section 4(h); and
(2) shall not award damages or issue an order requiring any
admission, reinstatement, hiring, promotion, or payment.
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.
(a) Definition.--For purposes of this section, the term
``decisionmaker'' means an entity described in section 10(a)
(other than paragraph (4) of such section), acting in the
discretion of the entity.
[[Page S7841]]
(b) Authority.--Notwithstanding any other provision of this
Act, in an action or administrative proceeding for a
violation of this Act, a decisionmaker 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, to the same extent as is permitted
under title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.), sections 302 and 304 of the Government
Employee Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-
16c), the Congressional Accountability Act of 1995 (2 U.S.C.
1301 et seq.), or chapter 5 of title 3, United States Code,
whichever applies to the prevailing party in that action or
proceeding. 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 a notice described
in section 711 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-10) may be required to post an amended notice,
including a description of 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.
Nothing in this Act shall be construed to require a separate
notice to be posted.
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.
The PRESIDING OFFICER. The majority leader.
Amendment No. 2012
Mr. REID. Madam President, I have an amendment to the committee-
reported substitute at the desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid], for Mr. Portman, for
himself, Ms. Ayotte, Mr. Heller, Mr. Hatch, and Mr. McCain,
proposes an amendment numbered 2012.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. REID. Madam President, I ask for the yeas and nays on that
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Amendment No. 2013 to Amendment No. 2012
Mr. REID. Madam President, I have a second-degree amendment at the
desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid], for Mr. Toomey, for
himself and Mr. Flake, proposes an amendment numbered 2013 to
amendment No. 2012.
The amendment is as follows:
(Purpose: To strike the appropriate balance between protecting workers
and protecting religious freedom)
In section 6, insert before ``This Act'' the following:
``(a) In General.--''.
In section 6, insert at the end the following:
(b) In Addition.--In addition, an employer, regardless of
whether the employer or an employee in the employment
position at issue engages in secular activities as well as
religious activities, shall not be subject to this Act if--
(1) the employer is in whole or in substantial part owned,
controlled, or managed by a particular religion or by a
particular religious corporation, association, or society;
(2) the employer is officially affiliated with a particular
religion or with a particular religious corporation,
association, or society; or
(3) the curriculum of such employer is directed toward the
propagation of a particular religion.
Amendment No. 2014
Mr. REID. Madam President, I have an amendment to the underlying bill
which is at the desk.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid] proposes an amendment
numbered 2014 to the language proposed to be stricken by the
committee substitute.
The amendment is as follows:
At the end, add the following:
This Act shall become effective 3 days after enactment.
Mr. REID. Madam President, I ask for the yeas and nays on the
amendment that was just reported.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Amendment No. 2015 to Amendment No. 2014
Mr. REID. Madam President, I have a second-degree amendment at the
desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid] proposes an amendment
numbered 2015 to amendment No. 2014.
The amendment is as follows:
In the amendment, strike ``3 days'' and insert ``4 days''.
Motion to Recommit with Amendment No. 2016
Mr. REID. Madam President, I have a motion to recommit S. 815, with
instructions, which is at the desk.
The PRESIDING OFFICER. The clerk will report the motion.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid] moves to recommit the
bill to the Committee on Health, Education, Labor and
Pensions with instructions to report back forthwith with an
amendment numbered 2016.
The amendment is as follows:
At the end, add the following:
This Act shall become effective 5 days after the enactment.
Mr. REID. Madam President, I ask for the yeas and nays on the motion.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Amendment No. 2017
Mr. REID. Madam President, I have an amendment to the instructions at
the desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid] proposes an amendment
numbered 2017 to the instructions (amendment No. 2016) of the
motion to recommit.
The amendment is as follows:
In the amendment, strike ``5 days'' and insert ``6 days.''
Mr. REID. Madam President, I ask for the yeas and nays on the
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Amendment No. 2018 to Amendment No. 2017
Mr. REID. Madam President, I have a second-degree amendment at the
desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Nevada [Mr. Reid] proposes an amendment
numbered 2018 to amendment No. 2017.
The amendment is as follows:
In the amendment, strike ``6 days'' and insert ``7 days''.
____________________