[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.
                                 ______