[Congressional Record Volume 159, Number 157 (Wednesday, November 6, 2013)]
[Senate]
[Pages S7880-S7885]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 2012. Mr. REID (for Mr. Portman (for himself, Ms. Ayotte, Mr. 
Heller, Mr. Hatch, and Mr. McCain)) proposed an amendment to the bill 
S. 815, to prohibit employment discrimination on the basis of sexual 
orientation or gender identity; as follows:

       Strike sections 2 through 6 and insert the following:

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to address the history and persistent, widespread 
     pattern of 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;
       (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; and
       (4) to reinforce the Nation's commitment to fairness and 
     equal opportunity in the workplace consistent with the 
     fundamental right of religious freedom.

     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-

[[Page S7881]]

     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) 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.

       (a) In General.--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)) (referred to in this section as a ``religious 
     employer'').
       (b) Prohibition on Certain Government Actions.--A religious 
     employer's exemption under this section shall not result in 
     any action by a Federal agency, or any State or local agency 
     that receives Federal funding or financial assistance, to 
     penalize or withhold licenses, permits, certifications, 
     accreditation, contracts, grants, guarantees, tax-exempt 
     status, or any benefits or exemptions from that employer, or 
     to prohibit the employer's participation in programs or 
     activities sponsored by that Federal, State, or local agency. 
     Nothing in this subsection shall be construed to invalidate 
     any other Federal, State, or local law (including a 
     regulation) that otherwise applies to a religious employer 
     exempt under this section.
                                 ______
                                 
  SA 2013. Mr. REID (for Mr. Toomey (for himself, Mr. Flake, and Mr. 
McCain)) proposed an amendment to the bill S. 815, to prohibit 
employment discrimination on the basis of sexual orientation or gender 
identity; as follows:

       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.
                                 ______
                                 
  SA 2014. Mr. REID proposed an amendment to the bill S. 815, to 
prohibit employment discrimination on the basis of sexual orientation 
or gender identity; as follows:

       At the end, add the following:
       This Act shall become effective 3 days after enactment.
                                 ______
                                 
  SA 2015. Mr. REID proposed an amendment to amendment SA 2014 proposed 
by Mr. Reid to the bill S. 815, to prohibit employment discrimination 
on the basis of sexual orientation or gender identity; as follows:

       In the amendment, strike ``3 days'' and insert ``4 days''.
                                 ______
                                 
  SA 2016. Mr. REID proposed an amendment to the bill S. 815, to 
prohibit employment discrimination on the basis of sexual orientation 
or gender identity; as follows:

       At the end, add the following:
       This Act shall become effective 5 days after enactment.
                                 ______
                                 
  SA 2017. Mr. REID proposed an amendment to amendment SA 2016 proposed 
by Mr. Reid to the bill S. 815, to prohibit employment discrimination 
on the basis of sexual orientation or gender identity; as follows:

       In the amendment, strike ``5 days'' and insert ``6 days''.
                                 ______
                                 
  SA 2018. Mr. REID proposed an amendment to amendment SA 2017 proposed 
by Mr. Reid to the amendment SA 2016 proposed by Mr. Reid to the bill 
S. 815, to prohibit employment discrimination on the basis of sexual 
orientation or gender identity; as follows:

       In the amendment, strike ``6 days'' and insert ``7 days''.
                                 ______
                                 
  SA 2019. Mr. VITTER submitted an amendment intended to be proposed by 
him to the bill S. 815, to prohibit employment discrimination on the 
basis of sexual orientation or gender identity; which was ordered to 
lie on the table; as follows:

       At the appropriate place, insert the following:

     SECTION ___. PRENATAL NONDISCRIMINATION ACT.

       (a) Short Title.--This section may be cited as the 
     ``Prenatal Nondiscrimination Act (PRENDA) of 2013''.
       (b) Findings and Constitutional Authority.--
       (1) Findings.--The Congress makes the following findings:
       (A) Women are a vital part of American society and culture 
     and possess the same fundamental human rights and civil 
     rights as men.
       (B) United States law prohibits the dissimilar treatment of 
     males and females who are similarly situated and prohibits 
     sex discrimination in various contexts, including the 
     provision of employment, education, housing, health insurance 
     coverage, and athletics.
       (C) Sex is an immutable characteristic ascertainable at the 
     earliest stages of human development through existing medical 
     technology and procedures commonly in use, including 
     maternal-fetal bloodstream DNA sampling, amniocentesis, 
     chorionic villus sampling or ``CVS'', and obstetric 
     ultrasound. In addition to medically assisted sex 
     determination, a growing sex determination niche industry has 
     developed and is marketing low-cost commercial products, 
     widely advertised and available, that aid in the sex 
     determination of an unborn child without the aid of medical 
     professionals. Experts have demonstrated that the sex-
     selection industry is on the rise and predict that it will 
     continue to be a growing trend in the United States. Sex 
     determination is always a necessary step to the procurement 
     of a sex-selection abortion.
       (D) A ``sex-selection abortion'' is an abortion undertaken 
     for purposes of eliminating an unborn child based on the sex 
     or gender of the child. Sex-selection abortion is barbaric, 
     and described by scholars and civil rights advocates as an 
     act of sex-based or gender-based violence, predicated on sex 
     discrimination. Sex-selection abortions are typically late-
     term abortions performed in the 2nd or 3rd trimester of 
     pregnancy, after the unborn child has developed sufficiently 
     to feel pain. Substantial medical evidence proves that an 
     unborn child can experience pain at 20 weeks after 
     conception, and perhaps substantially earlier. By definition, 
     sex-selection abortions do not implicate the health of the 
     mother of the unborn, but instead are elective procedures 
     motivated by sex or gender bias.
       (E) The targeted victims of sex-selection abortions 
     performed in the United States and worldwide are 
     overwhelmingly female. The selective abortion of females is 
     female infanticide, the intentional killing of unborn 
     females, due to the preference for male offspring or ``son 
     preference''. Son preference is reinforced by the low value 
     associated, by some segments of the world community, with 
     female offspring. Those segments tend to regard female 
     offspring as financial burdens to a family over their 
     lifetime due to their perceived inability to earn or provide 
     financially for the family unit as can a male. In addition, 
     due to social and legal convention, female offspring are less 
     likely to carry on the family name. ``Son preference'' is one 
     of the most evident manifestations of sex or

[[Page S7882]]

     gender discrimination in any society, undermining female 
     equality, and fueling the elimination of females' right to 
     exist in instances of sex-selection abortion.
       (F) Sex-selection abortions are not expressly prohibited by 
     United States law or the laws of 47 States. Sex-selection 
     abortions are performed in the United States. In a March 2008 
     report published in the Proceedings of the National Academy 
     of Sciences, Columbia University economists Douglas Almond 
     and Lena Edlund examined the sex ratio of United States-born 
     children and found ``evidence of sex selection, most likely 
     at the prenatal stage''. The data revealed obvious ``son 
     preference'' in the form of unnatural sex-ratio imbalances 
     within certain segments of the United States population, 
     primarily those segments tracing their ethnic or cultural 
     origins to countries where sex-selection abortion is 
     prevalent. The evidence strongly suggests that some Americans 
     are exercising sex-selection abortion practices within the 
     United States consistent with discriminatory practices common 
     to their country of origin, or the country to which they 
     trace their ancestry. While sex-selection abortions are more 
     common outside the United States, the evidence reveals that 
     female feticide is also occurring in the United States.
       (G) The American public supports a prohibition of sex-
     selection abortion. In a March 2006 Zogby International poll, 
     86 percent of Americans agreed that sex-selection abortion 
     should be illegal, yet only 3 States proscribe sex-selection 
     abortion.
       (H) Despite the failure of the United States to proscribe 
     sex-selection abortion, the United States Congress has 
     expressed repeatedly, through Congressional resolution, 
     strong condemnation of policies promoting sex-selection 
     abortion in the ``Communist Government of China''. Likewise, 
     at the 2007 United Nation's Annual Meeting of the Commission 
     on the Status of Women, 51st Session, the United States 
     delegation spearheaded a resolution calling on countries to 
     condemn sex-selective abortion, a policy directly 
     contradictory to the permissiveness of current United States 
     law, which places no restriction on the practice of sex-
     selection abortion. The United Nations Commission on the 
     Status of Women has urged governments of all nations ``to 
     take necessary measures to prevent . . . prenatal sex 
     selection''.
       (I) A 1990 report by Harvard University economist Amartya 
     Sen, estimated that more than 100 million women were 
     ``demographically missing'' from the world as early as 1990 
     due to sexist practices, including sex-selection abortion. 
     Many experts believe sex-selection abortion is the primary 
     cause. Current estimates of women missing from the world 
     range in the hundreds of millions.
       (J) Countries with longstanding experience with sex-
     selection abortion--such as the Republic of India, the United 
     Kingdom, and the People's Republic of China--have enacted 
     restrictions on sex-selection, and have steadily continued to 
     strengthen prohibitions and penalties. The United States, by 
     contrast, has no law in place to restrict sex-selection 
     abortion, establishing the United States as affording less 
     protection from sex-based feticide than the Republic of India 
     or the People's Republic of China, whose recent practices of 
     sex-selection abortion were vehemently and repeatedly 
     condemned by United States congressional resolutions and by 
     the United States Ambassador to the Commission on the Status 
     of Women. Public statements from within the medical community 
     reveal that citizens of other countries come to the United 
     States for sex-selection procedures that would be criminal in 
     their country of origin. Because the United States permits 
     abortion on the basis of sex, the United States may 
     effectively function as a ``safe haven'' for those who seek 
     to have American physicians do what would otherwise be 
     criminal in their home countries--a sex-selection abortion, 
     most likely late-term.
       (K) The American medical community opposes sex-selection. 
     The American Congress of Obstetricians and Gynecologists, 
     commonly known as ``ACOG'', stated in its 2007 Ethics 
     Committee Opinion, Number 360, that sex-selection is 
     inappropriate because it ``ultimately supports sexist 
     practices''. The American Society of Reproductive Medicine 
     (commonly known as ``ASRM'') 2004 Ethics Committee Opinion on 
     sex-selection notes that central to the controversy of sex-
     selection is the potential for ``inherent gender 
     discrimination'', . . . the ``risk of psychological harm to 
     sex-selected offspring (i.e., by placing on them expectations 
     that are too high)'', . . . and ``reinforcement of gender 
     bias in society as a whole''. Embryo sex-selection, ASRM 
     notes, remains ``vulnerable to the judgment that no matter 
     what its basis, [the method] identifies gender as a reason to 
     value one person over another, and it supports socially 
     constructed stereotypes of what gender means''. In doing so, 
     it not only ``reinforces possibilities of unfair 
     discrimination, but may trivialize human reproduction by 
     making it depend on the selection of nonessential features of 
     offspring''. The ASRM ethics opinion continues, ``ongoing 
     problems with the status of women in the United States make 
     it necessary to take account of concerns for the impact of 
     sex-selection on goals of gender equality''. The American 
     Association of Pro-Life Obstetricians and Gynecologists, an 
     organization with hundreds of members--many of whom are 
     former abortionists--makes the following declaration: ``Sex 
     selection abortions are more graphic examples of the damage 
     that abortion inflicts on women. In addition to increasing 
     premature labor in subsequent pregnancies, increasing suicide 
     and major depression, and increasing the risk of breast 
     cancer in teens who abort their first pregnancy and delay 
     childbearing, sex selection abortions are often targeted at 
     fetuses simply because the fetus is female. As physicians who 
     care for both the mother and her unborn child, the American 
     Association of Pro-Life Obstetricians and Gynecologists 
     vigorously opposes aborting fetuses because of their 
     gender.''. The President's Council on Bioethics published a 
     Working Paper stating the council's belief that society's 
     respect for reproductive freedom does not prohibit the 
     regulation or prohibition of ``sex control'', defined as the 
     use of various medical technologies to choose the sex of 
     one's child. The publication expresses concern that ``sex 
     control might lead to . . . dehumanization and a new 
     eugenics''.
       (L) Sex-selection abortion results in an unnatural sex-
     ratio imbalance. An unnatural sex-ratio imbalance is 
     undesirable, due to the inability of the numerically 
     predominant sex to find mates. Experts worldwide document 
     that a significant sex-ratio imbalance in which males 
     numerically predominate can be a cause of increased violence 
     and militancy within a society. Likewise, an unnatural sex-
     ratio imbalance gives rise to the commoditization of humans 
     in the form of human trafficking, and a consequent increase 
     in kidnapping and other violent crime.
       (M) Sex-selection abortions have the effect of diminishing 
     the representation of women in the American population, and 
     therefore, the American electorate.
       (N) Sex-selection abortion reinforces sex discrimination 
     and has no place in a civilized society.
       (O) The history of the United States includes examples of 
     sex discrimination. The people of the United States 
     ultimately responded in the strongest possible legal terms by 
     enacting a constitutional amendment correcting elements of 
     such discrimination. Women, once subjected to sex 
     discrimination that denied them the right to vote, now have 
     suffrage guaranteed by the 19th amendment. The elimination of 
     discriminatory practices has been and is among the highest 
     priorities and greatest achievements of American history.
       (P) Implicitly approving the discriminatory practice of 
     sex-selection abortion by choosing not to prohibit them will 
     reinforce these inherently discriminatory practices, and 
     evidence a failure to protect a segment of certain unborn 
     Americans because those unborn are of a sex that is 
     disfavored. Sex-selection abortions trivialize the value of 
     the unborn on the basis of sex, reinforcing sex 
     discrimination, and coarsening society to the humanity of all 
     vulnerable and innocent human life, making it increasingly 
     difficult to protect such life. Thus, Congress has a 
     compelling interest in acting--indeed it must act--to 
     prohibit sex-selection abortion.
       (2) Constitutional authority.--In accordance with the above 
     findings, Congress enacts the following pursuant to Congress' 
     power under--
       (A) the Commerce Clause;
       (B) section 5 of the 14th amendment, including the power to 
     enforce the prohibition on Government action denying equal 
     protection of the laws; and
       (C) section 8 of article I to make all laws necessary and 
     proper for the carrying into execution of powers vested by 
     the Constitution in the Government of the United States.
       (c) Discrimination Against the Unborn on the Basis of 
     Sex.--
       (1) In general.--Chapter 13 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 250. Discrimination against the unborn on the basis of 
       sex

       ``(a) In General.--Whoever knowingly--
       ``(1) performs an abortion knowing that such abortion is 
     sought based on the sex or gender of the child;
       ``(2) uses force or the threat of force to intentionally 
     injure or intimidate any person for the purpose of coercing a 
     sex-selection abortion;
       ``(3) solicits or accepts funds for the performance of a 
     sex-selection abortion; or
       ``(4) transports a woman into the United States or across a 
     State line for the purpose of obtaining a sex-selection 
     abortion;

     or attempts to do so, shall be fined under this title or 
     imprisoned not more than 5 years, or both.
       ``(b) Civil Remedies.--
       ``(1) Civil action by woman on whom abortion is 
     performed.--A woman upon whom an abortion has been performed 
     pursuant to a violation of subsection (a)(2) may in a civil 
     action against any person who engaged in a violation of 
     subsection (a) obtain appropriate relief.
       ``(2) Civil action by relatives.--The father of an unborn 
     child who is the subject of an abortion performed or 
     attempted in violation of subsection (a), or a maternal 
     grandparent of the unborn child if the pregnant woman is an 
     unemancipated minor, may in a civil action against any person 
     who engaged in the violation, obtain appropriate relief, 
     unless the pregnancy resulted from the plaintiff's criminal 
     conduct or the plaintiff consented to the abortion.
       ``(3) Appropriate relief.--Appropriate relief in a civil 
     action under this subsection includes--
       ``(A) objectively verifiable money damages for all 
     injuries, psychological and physical, including loss of 
     companionship and support,

[[Page S7883]]

     occasioned by the violation of this section; and
       ``(B) punitive damages.
       ``(4) Injunctive relief.--
       ``(A) In general.--A qualified plaintiff may in a civil 
     action obtain injunctive relief to prevent an abortion 
     provider from performing or attempting further abortions in 
     violation of this section.
       ``(B) Definition.--In this paragraph the term `qualified 
     plaintiff' means--
       ``(i) a woman upon whom an abortion is performed or 
     attempted in violation of this section;
       ``(ii) any person who is the spouse or parent of a woman 
     upon whom an abortion is performed in violation of this 
     section; or
       ``(iii) the Attorney General.
       ``(5) Attorneys fees for plaintiff.--The court shall award 
     a reasonable attorney's fee as part of the costs to a 
     prevailing plaintiff in a civil action under this subsection.
       ``(c) Loss of Federal Funding.--A violation of subsection 
     (a) shall be deemed for the purposes of title VI of the Civil 
     Rights Act of 1964 to be discrimination prohibited by section 
     601 of that Act.
       ``(d) Reporting Requirement.--A physician, physician's 
     assistant, nurse, counselor, or other medical or mental 
     health professional shall report known or suspected 
     violations of any of this section to appropriate law 
     enforcement authorities. Whoever violates this requirement 
     shall be fined under this title or imprisoned not more than 1 
     year, or both.
       ``(e) Expedited Consideration.--It shall be the duty of the 
     United States district courts, United States courts of 
     appeal, and the Supreme Court of the United States to advance 
     on the docket and to expedite to the greatest possible extent 
     the disposition of any matter brought under this section.
       ``(f) Exception.--A woman upon whom a sex-selection 
     abortion is performed may not be prosecuted or held civilly 
     liable for any violation of this section, or for a conspiracy 
     to violate this section.
       ``(g) Protection of Privacy in Court Proceedings.--
       ``(1) In general.--Except to the extent the Constitution or 
     other similarly compelling reason requires, in every civil or 
     criminal action under this section, the court shall make such 
     orders as are necessary to protect the anonymity of any woman 
     upon whom an abortion has been performed or attempted if she 
     does not give her written consent to such disclosure. Such 
     orders may be made upon motion, but shall be made sua sponte 
     if not otherwise sought by a party.
       ``(2) Orders to parties, witnesses, and counsel.--The court 
     shall issue appropriate orders under paragraph (1) to the 
     parties, witnesses, and counsel and shall direct the sealing 
     of the record and exclusion of individuals from courtrooms or 
     hearing rooms to the extent necessary to safeguard her 
     identity from public disclosure. Each such order shall be 
     accompanied by specific written findings explaining why the 
     anonymity of the woman must be preserved from public 
     disclosure, why the order is essential to that end, how the 
     order is narrowly tailored to serve that interest, and why no 
     reasonable less restrictive alternative exists.
       ``(3) Pseudonym required.--In the absence of written 
     consent of the woman upon whom an abortion has been performed 
     or attempted, any party, other than a public official, who 
     brings an action under this section shall do so under a 
     pseudonym.
       ``(4) Limitation.--This subsection shall not be construed 
     to conceal the identity of the plaintiff or of witnesses from 
     the defendant or from attorneys for the defendant.
       ``(h) Definitions.--
       ``(1) The term `abortion' means the act of using or 
     prescribing any instrument, medicine, drug, or any other 
     substance, device, or means with the intent to terminate the 
     clinically diagnosable pregnancy of a woman, with knowledge 
     that the termination by those means will with reasonable 
     likelihood cause the death of the unborn child, unless the 
     act is done with the intent to--
       ``(A) save the life or preserve the health of the unborn 
     child;
       ``(B) remove a dead unborn child caused by spontaneous 
     abortion; or
       ``(C) remove an ectopic pregnancy.
       ``(2) The term `sex-selection abortion' is an abortion 
     undertaken for purposes of eliminating an unborn child based 
     on the sex or gender of the child.''.
       (2) Clerical amendment.--The table of sections at the 
     beginning of chapter 13 of title 18, United States Code, is 
     amended by adding after the item relating to section 249 the 
     following new item:

``250. Discrimination against the unborn on the basis of sex.''.

       (d) Severability.--If any portion of this section or the 
     application thereof to any person or circumstance is held 
     invalid, such invalidity shall not affect the portions or 
     applications of this section which can be given effect 
     without the invalid portion or application.
       (e) Rule of Construction.--Nothing in this section shall be 
     construed to require that a healthcare provider has an 
     affirmative duty to inquire as to the motivation for the 
     abortion, absent the healthcare provider having knowledge or 
     information that the abortion is being sought based on the 
     sex or gender of the child.
                                 ______
                                 
  SA 2020. Ms. COLLINS (for Mr. Reid) proposed an amendment to 
amendment SA 2013 proposed by Mr. Reid (for Mr. Toomey (for himself, 
Mr. Flake, and Mr. McCain)) to the bill S. 815, to prohibit employment 
discrimination on the basis of sexual orientation or gender identity; 
as follows:

       At the end, add the following:
       This Act shall become effective 1 day after enactment.

                                 ______
                                 
  SA 2021. Mr. BLUMENTHAL submitted an amendment intended to be 
proposed by him to the bill S. 815, to prohibit employment 
discrimination on the basis of sexual orientation or gender identity; 
which was ordered to lie on the table; as follows:

       After section 14, insert the following:

     SEC. 14A. DISCRIMINATION ON THE BASIS OF MILITARY SERVICE.

       (a) Definitions.--In this section:
       (1) Civil rights definitions.--The terms ``complaining 
     party'', ``demonstrates'', ``employee'', ``employer'', 
     ``employment agency'', ``labor organization'', ``person'', 
     ``respondent'', and ``State'' have the meanings given the 
     terms in section 701 of the Civil Rights Act of 1964 (42 
     U.S.C. 2000e).
       (2) Member of the uniformed services.--The term ``member of 
     the uniformed services'' means an individual who--
       (A) is a member of--
       (i) the uniformed services (as defined in section 101 of 
     title 10, United States Code); or
       (ii) the National Guard in State status under title 32, 
     United States Code; or
       (B) was discharged or released from service in the 
     uniformed services (as so defined) or the National Guard in 
     such status under conditions other than dishonorable.
       (3) Military service.--The term ``military service'' means 
     status as a member of the uniformed services.
       (b) 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 to discriminate against any 
     individual with respect to the individual's compensation, 
     terms, conditions, or privileges of employment, because of 
     such individual's military service; or
       (2) to limit, segregate, or classify the employer's 
     employees or applicants for employment in any way which would 
     deprive or tend to deprive any individual of employment 
     opportunities or otherwise adversely affect the individual's 
     status as an employee, because of such individual's military 
     service.
       (c) Employment Agency Practices.--It shall be an unlawful 
     employment practice for an employment agency to fail or 
     refuse to refer for employment, or otherwise discriminate 
     against, any individual because of the individual's military 
     service, or to classify or refer for employment any 
     individual on the basis of the individual's military service.
       (d) 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 individual's military service;
       (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 which 
     would deprive or tend to deprive any individual of employment 
     opportunities, or would limit such employment opportunities 
     or otherwise adversely affect the individual's status as an 
     employee or as an applicant for employment, because of such 
     individual's military service; or
       (3) to cause or attempt to cause an employer to 
     discriminate against an individual in violation of this 
     section.
       (e) 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 individual's military service in admission to, or 
     employment in, any program established to provide 
     apprenticeship or other training.
       (f) Businesses or Enterprises With Personnel Qualified on 
     Basis of Military Service.--Notwithstanding any other 
     provision of this section, it shall not be an unlawful 
     employment practice for an employer to hire and employ 
     employees, for an employment agency to classify, or refer for 
     employment any individual, for a labor organization to 
     classify its membership or to classify or refer for 
     employment any individual, or for an employer, labor 
     organization, or joint labor-management committee controlling 
     apprenticeship or other training or retraining programs to 
     admit or employ any individual in any such program, on the 
     basis of the individual's military service in those certain 
     instances where military service is a bona fide occupational 
     qualification reasonably necessary to the normal operation of 
     that particular business or enterprise.
       (g) National Security.--Notwithstanding any other provision 
     of this section, it shall not be an unlawful employment 
     practice for an employer to fail or refuse to hire and employ 
     any individual for any position, for an employer to discharge 
     any individual from any position, or for an employment agency 
     to fail or refuse to refer any individual for employment in 
     any position, or for a labor organization to fail or refuse 
     to refer any individual for employment in any position, if--

[[Page S7884]]

       (1) the occupancy of such position, or access to the 
     premises in or upon which any part of the duties of such 
     position is performed or is to be performed, is subject to 
     any requirement imposed in the interest of the national 
     security of the United States under any security program in 
     effect pursuant to or administered under any statute of the 
     United States or any Executive order of the President; and
       (2) such individual has not fulfilled or has ceased to 
     fulfill that requirement.
       (h) Seniority or Merit System; Quantity or Quality of 
     Production; Ability Tests.--Notwithstanding any other 
     provision of this section, it shall not be an unlawful 
     employment practice for an employer to apply different 
     standards of compensation, or different terms, conditions, or 
     privileges of employment pursuant to a bona fide seniority or 
     merit system, or a system which measures earnings by quantity 
     or quality of production or to employees who work in 
     different locations, provided that such differences are not 
     the result of an intention to discriminate because of 
     military service, nor shall it be an unlawful employment 
     practice for an employer to give and to act upon the results 
     of any professionally developed ability test provided that 
     such test, its administration, or action upon the results is 
     not designed, intended, or used to discriminate because of 
     military service.
       (i) Preferential Treatment Not To Be Granted on Account of 
     Existing Number or Percentage Imbalance.--Nothing contained 
     in this section shall be interpreted to require any employer, 
     employment agency, labor organization, or joint labor-
     management committee subject to this section to grant 
     preferential treatment to any individual or to any group 
     because of the military service of such individual or group 
     on account of an imbalance which may exist with respect to 
     the total number or percentage of persons with military 
     service 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 with military 
     service in any community, State, section, or other area, or 
     in the available work force in any community, State, section, 
     or other area.
       (j) Burden of Proof in Disparate Impact Cases.--
       (1) Disparate impact.--
       (A)  Establishment.--An unlawful employment practice based 
     on disparate impact is established under this section only 
     if--
       (i) a complaining party demonstrates that a respondent uses 
     a particular employment practice that causes a disparate 
     impact on the basis of military service and the respondent 
     fails to demonstrate that the challenged practice is job 
     related for the position in question and consistent with 
     business necessity; or
       (ii) the complaining party makes the demonstration 
     described in subparagraph (C) with respect to an alternative 
     employment practice and the respondent refuses to adopt such 
     alternative employment practice.
       (B) Demonstration of causation.--
       (i) Particular employment practices.--With respect to 
     demonstrating that a particular employment practice causes a 
     disparate impact as described in subparagraph (A)(i), the 
     complaining party shall demonstrate that each particular 
     challenged employment practice causes a disparate impact, 
     except that if the complaining party can demonstrate to the 
     court that the elements of a respondent's decisionmaking 
     process are not capable of separation for analysis, the 
     decisionmaking process may be analyzed as one employment 
     practice.
       (ii) Demonstration of noncausation.--If the respondent 
     demonstrates that a specific employment practice does not 
     cause the disparate impact, the respondent shall not be 
     required to demonstrate that such practice is required by 
     business necessity.
       (C) Alternative employment practice.--The demonstration 
     referred to by subparagraph (A)(ii) shall be in accordance 
     with the law as it existed on June 4, 1989, with respect to 
     the concept of ``alternative employment practice''.
       (2) Business necessity no defense to intentional 
     discrimination.--A demonstration that an employment practice 
     is required by business necessity may not be used as a 
     defense against a claim of intentional discrimination under 
     this section.
       (3) Rules concerning controlled substances.--
     Notwithstanding any other provision of this section, a rule 
     barring the employment of an individual who currently and 
     knowingly uses or possesses a controlled substance, as 
     defined in section 102(6) of the Controlled Substances Act 
     (21 U.S.C. 802(6)) and included in schedule I or II of the 
     schedules specified in that section, other than the use or 
     possession of a drug taken under the supervision of a 
     licensed health care professional, or any other use or 
     possession authorized by the Controlled Substances Act (21 
     U.S.C. 801 et seq.) or any other provision of Federal law, 
     shall be considered an unlawful employment practice under 
     this section only if such rule is adopted or applied with an 
     intent to discriminate because of military service.
       (k) Prohibition of Discriminatory Use of Test Scores.--It 
     shall be an unlawful employment practice for a respondent, in 
     connection with the selection or referral of applicants or 
     candidates for employment or promotion, to adjust the scores 
     of, use different cutoff scores for, or otherwise alter the 
     results of, employment related tests on the basis of military 
     service.
       (l) Impermissible Consideration of Military Service in 
     Employment Practices.--Except as otherwise provided in this 
     section, an unlawful employment practice is established when 
     the complaining party demonstrates that military service was 
     a motivating factor for any employment practice, even though 
     other factors also motivated the practice.
       (m) Resolution of Challenges to Employment Practices 
     Implementing Litigated or Consent Judgments or Orders.--
       (1) Practices not challengeable.--
       (A) Practices to implement a litigated or consent judgment 
     or order.--Notwithstanding any other provision of law, and 
     except as provided in paragraph (2), an employment practice 
     that implements and is within the scope of a litigated or 
     consent judgment or order that resolves a claim of employment 
     discrimination under the Constitution or Federal civil rights 
     laws may not be challenged under the circumstances described 
     in subparagraph (B).
       (B) Circumstances.--A practice described in subparagraph 
     (A) may not be challenged in a claim under the Constitution 
     or Federal civil rights laws--
       (i) by a person who, prior to the entry of the judgment or 
     order described in subparagraph (A), had--

       (I) actual notice of the proposed judgment or order 
     sufficient to apprise such person that such judgment or order 
     might adversely affect the interests and legal rights of such 
     person and that an opportunity was available to present 
     objections to such judgment or order by a future date 
     certain; and
       (II) a reasonable opportunity to present objections to such 
     judgment or order; or

       (ii) by a person whose interests were adequately 
     represented by another person who had previously challenged 
     the judgment or order on the same legal grounds and with a 
     similar factual situation, unless there has been an 
     intervening change in law or fact.
       (2) Rule of construction.--Nothing in this subsection shall 
     be construed to--
       (A) alter the standards for intervention under rule 24 of 
     the Federal Rules of Civil Procedure or apply to the rights 
     of parties who have successfully intervened pursuant to such 
     rule in the proceeding in which the parties intervened;
       (B) apply to the rights of parties to the action in which a 
     litigated or consent judgment or order was entered, or of 
     members of a class represented or sought to be represented in 
     such action, or of members of a group on whose behalf relief 
     was sought in such action by the Federal Government;
       (C) prevent challenges to a litigated or consent judgment 
     or order on the ground that such judgment or order was 
     obtained through collusion or fraud, or is transparently 
     invalid or was entered by a court lacking subject matter 
     jurisdiction; or
       (D) authorize or permit the denial to any person of the due 
     process of law required by the Constitution.
       (3) Court for actions that are challengeable.--Any action 
     not precluded under this subsection that challenges an 
     employment consent judgment or order described in paragraph 
     (1) shall be brought in the court, and if possible before the 
     judge, that entered such judgment or order. Nothing in this 
     subsection shall preclude a transfer of such action pursuant 
     to section 1404 of title 28, United States Code.
       (n) Discrimination for Making Charges, Testifying, 
     Assisting, or Participating in Enforcement Proceedings.--It 
     shall be an unlawful employment practice for an employer to 
     discriminate against any of the employer's employees or 
     applicants for employment, for an employment agency, or joint 
     labor-management committee controlling apprenticeship or 
     other training or retraining, including on-the-job training 
     programs, to discriminate against any individual, or for a 
     labor organization to discriminate against any member thereof 
     or applicant for membership, because the employee, applicant, 
     individuals, or member involved has opposed any practice made 
     an unlawful employment practice by this section, or has made 
     a charge, testified, assisted, or participated in any manner 
     in an investigation, proceeding, or hearing under this 
     section.
       (o) Printing or Publication of Notices or Advertisements.--
     It shall be an unlawful employment practice for an employer, 
     labor organization, employment agency, or joint labor-
     management committee controlling apprenticeship or other 
     training or retraining, including on-the-job training 
     programs, to print or publish or cause to be printed or 
     published any notice or advertisement relating to employment 
     by such an employer or membership in or any classification or 
     referral for employment by such a labor organization, or 
     relating to any classification or referral for employment by 
     such an employment agency, or relating to admission to, or 
     employment in, any program established to provide 
     apprenticeship or other training by such a joint labor-
     management committee, indicating any preference, limitation, 
     specification, or discrimination, based on military service, 
     except that such a notice or advertisement may indicate a 
     preference, limitation, specification, or discrimination 
     based on military service when military service is a bona 
     fide occupational qualification for employment.
       (p) Exemptions.--

[[Page S7885]]

       (1) Inapplicability of title to certain aliens.--This 
     section shall not apply to an employer with respect to the 
     employment of aliens outside any State.
       (2) Compliance with statute as violation of foreign law.--
     It shall not be unlawful under this section for an employer 
     (or a corporation controlled by an employer), labor 
     organization, employment agency, or joint labor-management 
     committee controlling apprenticeship or other training or 
     retraining (including on-the-job training programs) to take 
     any action otherwise prohibited by such section, with respect 
     to an employee in a workplace in a foreign country if 
     compliance with such section would cause such employer (or 
     such corporation), such organization, such agency, or such 
     committee to violate the law of the foreign country in which 
     such workplace is located.
       (3) Control of corporation incorporated in foreign 
     country.--
       (A) In general.--If an employer controls a corporation 
     whose place of incorporation is a foreign country, any 
     practice prohibited by this section engaged in by such 
     corporation shall be presumed to be engaged in by such 
     employer.
       (B) Foreign person not controlled by employer.--This 
     section shall not apply with respect to the foreign 
     operations of an employer that is a foreign person not 
     controlled by an American employer.
       (C) Control.--For purposes of this subsection, the 
     determination of whether an employer controls a corporation 
     shall be based on--
       (i) the interrelation of operations;
       (ii) the common management;
       (iii) the centralized control of labor relations; and
       (iv) the common ownership or financial control,

     of the employer and the corporation.
       (4) Claims of no military service.--Nothing in this section 
     shall provide the basis for a claim by an individual without 
     military service that the individual was subject to 
     discrimination because of the individual's lack of military 
     service.
       (q) Posting Notices.--Every employer, employment agency, 
     labor organization, or joint labor-management committee 
     covered under this section shall post notices to applicants, 
     employees, and members describing the applicable provisions 
     of this section, in the manner prescribed by section 711 of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000e-10).
       (r) Regulations.--Not later than 90 days after the date of 
     enactment of this Act, the Commission shall issue regulations 
     to carry out this section in accordance with subchapter II of 
     chapter 5 of title 5, United States Code.
       (s) Enforcement.--The powers, remedies, and procedures set 
     forth in sections 705, 706, 707, 708, 709, 710, and 712 of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-5, 
     2000e-6, 2000e-7, 2000e-8, 2000e-9, and 2000e-11) shall be 
     the powers, remedies, and procedures this section provides to 
     the Equal Employment Opportunity Commission, to the Attorney 
     General, or to any person alleging discrimination on the 
     basis of military service in violation of any provision of 
     this section, or regulations promulgated under subsection 
     (r), concerning employment.
       (t) Application.--Nothing in sections 2 through 14 shall be 
     construed to apply to this section.
                                 ______
                                 
  SA 2022. Mr. FLAKE submitted an amendment intended to be proposed by 
him to the bill S. 815, to prohibit employment discrimination on the 
basis of sexual orientation or gender identity; which was ordered to 
lie on the table; as follows:

       In section 8, add at the end the following:
       (c) Guidance on Gender Transition.--Not later than the 
     effective date of this Act, the Commission shall issue 
     guidance with respect to this Act and gender transition, 
     including defining the term ``transition'' (including other 
     forms of the word).
       (d) Guidance on Shared Facilities.--Not later than the 
     effective date of this Act, the Commission shall issue 
     guidance with respect to this Act on shared facilities. When 
     issuing such guidance, the Commission shall take into account 
     any undue hardship on employers in meeting the 
     nondiscrimination requirements of this Act.
                                 ______
                                 
  SA 2023. Ms. HIRONO (for Mr. Sanders) proposed an amendment to the 
bill S. 287, to amend title 38, United States Code, to improve 
assistance to homeless veterans, and for other purposes; as follows:

       On page 11, strike line 25 and insert the following: 
     lessness pursuant to such partnerships.
       ``(f) Sunset.--The authority of the Secretary to enter into 
     partnerships under this section as described in subsection 
     (a) shall expire on December 31, 2016.''.
       On page 13, strike lines 3 through 18 and insert the 
     following:

     SEC. 10. EXTENSION OF AUTHORITY FOR PROGRAM OF REFERRAL AND 
                   COUNSELING SERVICES FOR VETERANS AT RISK OF 
                   HOMELESSNESS WHO ARE TRANSITIONING FROM CERTAIN 
                   INSTITUTIONS.

       Section 2023 of title 38, United States Code, is amended--
       (1) by striking subsection (b);
       (2) in subsection (c)(1), by striking ``To the extent 
     practicable, the program'' and inserting ``The program'';
       (3) in subsection (d), by striking ``September 30, 2014'' 
     and inserting ``September 30, 2017'';
       (4) in subsection (e)(2), by striking ``provided under the 
     demonstration program''; and
       (5) by redesignating subsections (c), (d), and (e) as 
     subsections (b), (c), and (d), respectively.
       On page 14, strike lines 2 through 14 and insert the 
     following:
       (a) Treatment and Rehabilitation for Seriously Mentally Ill 
     and Homeless Veterans.--Section 2031(b) of title 38, United 
     States Code, is amended by striking ``December 31,
       Beginning on page 14, strike line 24 and all that follows 
     through page 15, line 7, and insert the following:
       (f) Training Entities for Provision of Supportive Services 
     for Very Low-income Veteran Families in Permanent Housing.--
     Section 2044(e)(3) of such title is amended by striking 
     ``2012'' and inserting ``2014''.
       On page 15, strike lines 8 through 12.
       On page 16, line 7, strike ``March 31, 2018'' and insert 
     ``August 31, 2017''.

                          ____________________