[Congressional Record Volume 167, Number 198 (Monday, November 15, 2021)]
[Senate]
[Pages S8103-S8105]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4587. Mr. CASEY (for himself, Mr. Cassidy, Mrs. Shaheen, Mrs.
Capito, Ms. Smith, Ms. Murkowski, Mr. Kaine, and Mr. Grassley)
submitted an amendment intended to be proposed to amendment SA 3867
submitted by Mr. Reed and intended to be proposed to the bill H.R.
4350, to authorize appropriations for fiscal year 2022 for military
activities of the Department of Defense, for military construction, and
for defense activities of the Department of Energy, to prescribe
military personnel strengths for such fiscal year, and for other
purposes; which was ordered to lie on the table; as follows:
At the end of title X, add the following:
Subtitle H--Pregnant Workers Fairness Act
SEC. 1071. SHORT TITLE.
This subtitle may be cited as the ``Pregnant Workers
Fairness Act''.
SEC. 1072. NONDISCRIMINATION WITH REGARD TO REASONABLE
ACCOMMODATIONS RELATED TO PREGNANCY.
It shall be an unlawful employment practice for a covered
entity to--
[[Page S8104]]
(1) not make reasonable accommodations to the known
limitations related to the pregnancy, childbirth, or related
medical conditions of a qualified employee, unless such
covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of
such covered entity;
(2) require a qualified employee affected by pregnancy,
childbirth, or related medical conditions to accept an
accommodation other than any reasonable accommodation arrived
at through the interactive process referred to in section
1075(7);
(3) deny employment opportunities to a qualified employee
if such denial is based on the need of the covered entity to
make reasonable accommodations to the known limitations
related to the pregnancy, childbirth, or related medical
conditions of a qualified employee;
(4) require a qualified employee to take leave, whether
paid or unpaid, if another reasonable accommodation can be
provided to the known limitations related to the pregnancy,
childbirth, or related medical conditions of a qualified
employee; or
(5) take adverse action in terms, conditions, or privileges
of employment against a qualified employee on account of the
employee requesting or using a reasonable accommodation to
the known limitations related to the pregnancy, childbirth,
or related medical conditions of the employee.
SEC. 1073. REMEDIES AND ENFORCEMENT.
(a) Employees Covered by Title VII of the Civil Rights Act
of 1964.--
(1) In general.--The powers, remedies, and procedures
provided in sections 705, 706, 707, 709, 710, and 711 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-4 et seq.) to the
Commission, the Attorney General, or any person alleging a
violation of title VII of such Act (42 U.S.C. 2000e et seq.)
shall be the powers, remedies, and procedures this subtitle
provides to the Commission, the Attorney General, or any
person, respectively, alleging an unlawful employment
practice in violation of this subtitle against an employee
described in section 1075(3)(A) except as provided in
paragraphs (2) and (3) of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this subtitle provides to the
Commission, the Attorney General, or any person alleging such
practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this subtitle provides to the Commission, the
Attorney General, or any person alleging such practice (not
an employment practice specifically excluded from coverage
under section 1977A(a)(1) of the Revised Statutes).
(b) Employees Covered by Congressional Accountability Act
of 1995.--
(1) In general.--The powers, remedies, and procedures
provided in the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) to the Board (as defined in section 101
of such Act (2 U.S.C. 1301)) or any person alleging a
violation of section 201(a)(1) of such Act (2 U.S.C.
1311(a)(1)) shall be the powers, remedies, and procedures
this subtitle provides to the Board or any person,
respectively, alleging an unlawful employment practice in
violation of this subtitle against an employee described in
section 1075(3)(B), except as provided in paragraphs (2) and
(3) of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this subtitle provides to the Board
or any person alleging such practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this subtitle provides to the Board or any person
alleging such practice (not an employment practice
specifically excluded from coverage under section 1977A(a)(1)
of the Revised Statutes).
(4) Other applicable provisions.--With respect to a claim
alleging a practice described in paragraph (1), 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 alleging a violation of section
201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).
(c) Employees Covered by Chapter 5 of Title 3, United
States Code.--
(1) In general.--The powers, remedies, and procedures
provided in chapter 5 of title 3, United States Code, to the
President, the Commission, the Merit Systems Protection
Board, or any person alleging a violation of section
411(a)(1) of such title shall be the powers, remedies, and
procedures this subtitle provides to the President, the
Commission, the Board, or any person, respectively, alleging
an unlawful employment practice in violation of this subtitle
against an employee described in section 1075(3)(C), except
as provided in paragraphs (2) and (3) of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this subtitle provides to the
President, the Commission, the Board, or any person alleging
such practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this subtitle provides to the President, the
Commission, the Board, or any person alleging such practice
(not an employment practice specifically excluded from
coverage under section 1977A(a)(1) of the Revised Statutes).
(d) Employees Covered by Government Employee Rights Act of
1991.--
(1) In general.--The powers, remedies, and procedures
provided in sections 302 and 304 of the Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16b; 2000e-16c) to the
Commission or any person alleging a violation of section
302(a)(1) of such Act (42 U.S.C. 2000e-16b(a)(1)) shall be
the powers, remedies, and procedures this subtitle provides
to the Commission or any person, respectively, alleging an
unlawful employment practice in violation of this subtitle
against an employee described in section 1075(3)(D), except
as provided in paragraphs (2) and (3) of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this subtitle provides to the
Commission or any person alleging such practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this subtitle provides to the Commission or any
person alleging such practice (not an employment practice
specifically excluded from coverage under section 1977A(a)(1)
of the Revised Statutes).
(e) Employees Covered by Section 717 of the Civil Rights
Act of 1964.--
(1) In general.--The powers, remedies, and procedures
provided in section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16) to the Commission, the Attorney General, the
Librarian of Congress, or any person alleging a violation of
that section shall be the powers, remedies, and procedures
this subtitle provides to the Commission, the Attorney
General, the Librarian of Congress, or any person,
respectively, alleging an unlawful employment practice in
violation of this subtitle against an employee described in
section 1075(3)(E), except as provided in paragraphs (2) and
(3) of this subsection.
(2) Costs and fees.--The powers, remedies, and procedures
provided in subsections (b) and (c) of section 722 of the
Revised Statutes (42 U.S.C. 1988) shall be the powers,
remedies, and procedures this subtitle provides to the
Commission, the Attorney General, the Librarian of Congress,
or any person alleging such practice.
(3) Damages.--The powers, remedies, and procedures provided
in section 1977A of the Revised Statutes (42 U.S.C. 1981a),
including the limitations contained in subsection (b)(3) of
such section 1977A, shall be the powers, remedies, and
procedures this subtitle provides to the Commission, the
Attorney General, the Librarian of Congress, or any person
alleging such practice (not an employment practice
specifically excluded from coverage under section 1977A(a)(1)
of the Revised Statutes).
(f) Prohibition Against Retaliation.--
(1) In general.--No person shall discriminate against any
employee because such employee has opposed any act or
practice made unlawful by this subtitle or because such
employee made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing
under this subtitle.
(2) Prohibition against coercion.--It shall be unlawful to
coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of, or on account of
such individual having exercised or enjoyed, or on account of
such individual having aided or encouraged any other
individual in the exercise or enjoyment of, any right granted
or protected by this subtitle.
(3) Remedy.--The remedies and procedures otherwise provided
for under this section shall be available to aggrieved
individuals with respect to violations of this subsection.
(g) Limitation.--Notwithstanding subsections (a)(3),
(b)(3), (c)(3), (d)(3), and (e)(3), if an unlawful employment
practice involves the provision of a reasonable accommodation
pursuant to this subtitle or regulations implementing this
subtitle, damages may not be awarded under section 1977A of
the Revised Statutes (42 U.S.C. 1981a) if the covered entity
demonstrates good faith efforts, in consultation with the
employee with known limitations related to pregnancy,
childbirth, or related medical conditions who has informed
the covered entity that accommodation is needed, to identify
and make a reasonable accommodation that would provide such
employee with an equally effective opportunity and would not
cause an undue hardship on the operation of the covered
entity.
SEC. 1074. RULEMAKING.
Not later than 2 years after the date of enactment of this
Act, the Commission shall issue regulations in an accessible
format in accordance with subchapter II of chapter 5 of title
5, United States Code, to carry out this
[[Page S8105]]
subtitle. Such regulations shall provide examples of
reasonable accommodations addressing known limitations
related to pregnancy, childbirth, or related medical
conditions.
SEC. 1075. DEFINITIONS.
As used in this subtitle--
(1) the term ``Commission'' means the Equal Employment
Opportunity Commission;
(2) the term ``covered entity''--
(A) has the meaning given the term ``respondent'' in
section 701(n) of the Civil Rights Act of 1964 (42 U.S.C.
2000e(n)); and
(B) includes--
(i) an employer, which means a person engaged in industry
affecting commerce who has 15 or more employees as defined in
section 701(b) of title VII of the Civil Rights Act of 1964
(42 U.S.C. 2000e(b));
(ii) an employing office, as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301) and
section 411(c) of title 3, United States Code;
(iii) an entity employing a State employee described in
section 304(a) of the Government Employee Rights Act of 1991
(42 U.S.C. 2000e-16c(a)); and
(iv) an entity to which section 717(a) of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-16(a)) applies;
(3) the term ``employee'' means--
(A) an employee (including an applicant), as defined in
section 701(f) of the Civil Rights Act of 1964 (42 U.S.C.
2000e(f));
(B) a covered employee (including an applicant), as defined
in section 101 of the Congressional Accountability Act of
1995 (2 U.S.C. 1301);
(C) a covered employee (including an applicant), as defined
in section 411(c) of title 3, United States Code;
(D) a State employee (including an applicant) described in
section 304(a) of the Government Employee Rights Act of 1991
(42 U.S.C. 2000e-16c(a)); or
(E) an employee (including an applicant) to which section
717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
16(a)) applies;
(4) the term ``person'' has the meaning given such term in
section 701(a) of the Civil Rights Act of 1964 (42 U.S.C.
2000e(a));
(5) the term ``known limitation'' means physical or mental
condition related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions that the
employee or employee's representative has communicated to the
employer whether or not such condition meets the definition
of disability specified in section 3 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102);
(6) the term ``qualified employee'' means an employee or
applicant who, with or without reasonable accommodation, can
perform the essential functions of the employment position,
except that an employee or applicant shall be considered
qualified if--
(A) any inability to perform an essential function is for a
temporary period;
(B) the essential function could be performed in the near
future; and
(C) the inability to perform the essential function can be
reasonably accommodated; and
(7) the terms ``reasonable accommodation'' and ``undue
hardship'' have the meanings given such terms in section 101
of the Americans with Disabilities Act of 1990 (42 U.S.C.
12111) and shall be construed as such terms are construed
under such Act and as set forth in the regulations required
by this subtitle, including with regard to the interactive
process that will typically be used to determine an
appropriate reasonable accommodation.
SEC. 1076. WAIVER OF STATE IMMUNITY.
A State shall not be immune under the 11th Amendment to the
Constitution from an action in a Federal or State court of
competent jurisdiction for a violation of this subtitle. In
any action against a State for a violation of this subtitle,
remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as such
remedies are available for such a violation in an action
against any public or private entity other than a State.
SEC. 1077. RELATIONSHIP TO OTHER LAWS.
Nothing in this subtitle shall be construed--
(1) to invalidate or limit the powers, remedies, and
procedures under any Federal law or law of any State or
political subdivision of any State or jurisdiction that
provides greater or equal protection for individuals affected
by pregnancy, childbirth, or related medical conditions; or
(2) by regulation or otherwise, to require an employer-
sponsored health plan to pay for or cover any particular
item, procedure, or treatment or to affect any right or
remedy available under any other Federal, State, or local law
with respect to any such payment or coverage requirement.
SEC. 1078. SEVERABILITY.
If any provision of this subtitle or the application of
that provision to particular persons or circumstances is held
invalid or found to be unconstitutional, the remainder of
this subtitle and the application of that provision to other
persons or circumstances shall not be affected.
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