II

106TH CONGRESS

1ST SESSION S. 1276

To prohibit employment discrimination on the basis of sexual orientation.

IN THE SENATE OF THE UNITED STATES

JUNE 24, 1999

Mr. JEFFORDS (for himself, Mr. KENNEDY, Mr. LIEBERMAN, Mr. CHAFEE,

Mr. DASCHLE, Mr. SPECTER, Mr. DODD, Mr. HARKIN, Ms. MIKULSKI,

Mr. BINGAMAN, Mr. WELLSTONE, Mrs. MURRAY, Mr. REED, Mr. LEAHY,

Ms. LANDRIEU, Mr. REID, Mr. WYDEN, Mr. SARBANES, Mr. KERRY, Mr.

INOUYE, Mr. LAUTENBERG, Mr. ROBB, Mr. CLELAND, Mr. MOYNIHAN,

Mr. SCHUMER, Mr. AKAKA, Mr. DURBIN, Mrs. BOXER, Mr. TORRICELLI,

Mr. KERREY, Mr. LEVIN, Mr. FEINGOLD, Mr. BRYAN, Mrs. FEINSTEIN,

and Mr. KOHL) introduced the following bill; which was read twice and

referred to the Committee on Health, Education, Labor, and Pensions

A BILL

To prohibit employment discrimination on the basis of sexual

orientation.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Employment Non-Dis5 crimination Act of 1999’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are—
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1 (1) to provide a comprehensive Federal prohibi2 tion of employment discrimination on the basis of

3 sexual orientation;

4 (2) to provide meaningful and effective rem5 edies for employment discrimination on the basis of

6 sexual orientation; and

7 (3) to invoke congressional powers, including

8 the powers to enforce the 14th amendment to the

9 Constitution and to regulate interstate commerce, in

10 order to prohibit employment discrimination on the

11 basis of sexual orientation.

12 SEC. 3. DEFINITIONS.

13 In this Act:

14 (1) COMMISSION.—The term ‘‘Commission’’

15 means the Equal Employment Opportunity Commis16 sion.

17 (2) COVERED ENTITY.—The term ‘‘covered en18 tity’’ means an employer, employment agency, labor

19 organization, or joint labor-management committee.

20 (3) EMPLOYER.—The term ‘‘employer’’

21 means—

22 (A) a person engaged in an industry affect23 ing commerce (as defined in section 701(h) of

24 the Civil Rights Act of 1964 (42 U.S.C.

25 2000e(h))) who has 15 or more employees (as
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1 defined in section 701(f) of such Act (42 U.S.C.

2 2000e(f)) for each working day in each of 20 or

3 more calendar weeks in the current or pre4 ceding calendar year, and any agent of such a

5 person, but does not include a bona fide private

6 membership club (other than a labor organiza7 tion) that is exempt from taxation under section

8 501(c) of the Internal Revenue Code of 1986;

9 (B) an employing authority to which sec10 tion 302(a)(1) of the Government Employee

11 Rights Act of 1991 (2 U.S.C. 1202(a)(1)) ap12 plies;

13 (C) an employing office, as defined in sec14 tion 101 of the Congressional Accountability

15 Act of 1995 (2 U.S.C. 1301) or section 401 of

16 title 3, United States Code; or

17 (D) an entity to which section 717(a) of

18 the Civil Rights Act of 1964 (42 U.S.C. 2000e–

19 16(a)) applies.

20 (4) EMPLOYMENT AGENCY.—The term ‘‘em21 ployment agency’’ has the meaning given the term in

22 section 701(c) of the Civil Rights Act of 1964 (42

23 U.S.C. 2000e(c)).

24 (5) EMPLOYMENT OR AN EMPLOYMENT OPPOR25 TUNITY.—Except as provided in section 10(a)(1),
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1 the term ‘‘employment or an employment oppor2 tunity’’ includes job application procedures, referral

3 for employment, hiring, advancement, discharge,

4 compensation, job training, a term, condition, or

5 privilege of union membership, or any other term,

6 condition, or privilege of employment, but does not

7 include the service of a volunteer for which the vol8 unteer receives no compensation.

9 (6) LABOR ORGANIZATION.—The term ‘‘labor

10 organization’’ has the meaning given the term in

11 section 701(d) of the Civil Rights Act of 1964 (42

12 U.S.C. 2000e(d)).

13 (7) PERSON.—The term ‘‘person’’ has the

14 meaning given the term in section 701(a) of the

15 Civil Rights Act of 1964 (42 U.S.C. 2000e(a)).

16 (8) RELIGIOUS ORGANIZATION.—The term ‘‘re17 ligious organization’’ means—

18 (A) a religious corporation, association, or

19 society; or

20 (B) a school, college, university, or other

21 educational institution or institution of learn22 ing, if—

23 (i) the institution is in whole or sub24 stantial part controlled, managed, owned,
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1 or supported by a religion, religious cor2 poration, association, or society; or

3 (ii) the curriculum of the institution is

4 directed toward the propagation of a reli5 gion.

6 (9) SEXUAL ORIENTATION.—The term ‘‘sexual

7 orientation’’ means homosexuality, bisexuality, or

8 heterosexuality, whether the orientation is real or

9 perceived.

10 (10) STATE.—The term ‘‘State’’ has the mean11 ing given the term in section 701(i) of the Civil

12 Rights Act of 1964 (42 U.S.C. 2000e(i)).

13 SEC. 4. DISCRIMINATION PROHIBITED.

14 (a) EMPLOYER PRACTICES.—It shall be an unlawful

15 employment practice for an employer—

16 (1) to fail or refuse to hire or to discharge any

17 individual, or otherwise to discriminate against any

18 individual with respect to the compensation, terms,

19 conditions, or privileges of employment of the indi20 vidual, because of such individual’s sexual orienta21 tion; or

22 (2) to limit, segregate, or classify the employees

23 or applicants for employment of the employer in any

24 way that would deprive or tend to deprive any indi25 vidual of employment opportunities or otherwise ad-
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1 versely affect the status of the individual as an em2 ployee, because of such individual’s sexual orienta3 tion.

4 (b) EMPLOYMENT AGENCY PRACTICES.—It shall be

5 an unlawful employment practice for an employment agen6 cy to fail or refuse to refer for employment, or otherwise

7 to discriminate against, any individual because of the sex8 ual orientation of the individual or to classify or refer for

9 employment any individual on the basis of the sexual ori10 entation of the individual.

11 (c) LABOR ORGANIZATION PRACTICES.—It shall be

12 an unlawful employment practice for a labor

13 organization—

14 (1) to exclude or to expel from its membership,

15 or otherwise to discriminate against, any individual

16 because of the sexual orientation of the individual;

17 (2) to limit, segregate, or classify its member18 ship or applicants for membership, or to classify or

19 fail or refuse to refer for employment any individual,

20 in any way that would deprive or tend to deprive any

21 individual of employment opportunities, or would

22 limit such employment opportunities or otherwise

23 adversely affect the status of the individual as an

24 employee or as an applicant for employment, be25 cause of such individual’s sexual orientation; or
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1 (3) to cause or attempt to cause an employer to

2 discriminate against an individual in violation of this

3 section.

4 (d) TRAINING PROGRAMS.—It shall be an unlawful

5 employment practice for any employer, labor organization,

6 or joint labor-management committee controlling appren7 ticeship or other training or retraining, including on-the8 job training programs, to discriminate against any indi9 vidual because of the sexual orientation of the individual

10 in admission to, or employment in, any program estab11 lished to provide apprenticeship or other training.

12 (e) ASSOCIATION.—An unlawful employment practice

13 described in any of subsections (a) through (d) shall be

14 considered to include an action described in that sub15 section, taken against an individual based on the sexual

16 orientation of a person with whom the individual associ17 ates or has associated.

18 (f) DISPARATE IMPACT.—Notwithstanding any other

19 provision of this Act, the fact that an employment practice

20 has a disparate impact, as the term ‘‘disparate impact’’

21 is used in section 703(k) of the Civil Rights Act of 1964

22 (42 U.S.C. 2000e–2(k)), on the basis of sexual orientation

23 does not establish a prima facie violation of this Act.
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1 SEC. 5. RETALIATION AND COERCION PROHIBITED.

2 (a) RETALIATION.—A covered entity shall not dis3 criminate against an individual because such individual

4 opposed any act or practice prohibited by this Act or be5 cause such individual made a charge, assisted, testified,

6 or participated in any manner in an investigation, pro7 ceeding, or hearing under this Act.

8 (b) COERCION.—A person shall not coerce, intimi9 date, threaten, or interfere with any individual in the exer10 cise or enjoyment of, or on account of such individual’s

11 having exercised, enjoyed, or assisted in or encouraged the

12 exercise or enjoyment of, any right granted or protected

13 by this Act.

14 SEC. 6. BENEFITS.

15 This Act does not apply to the provision of employee

16 benefits to an individual for the benefit of the domestic

17 partner of such individual.

18 SEC. 7. COLLECTION OF STATISTICS PROHIBITED.

19 The Commission shall not collect statistics on sexual

20 orientation from covered entities, or compel the collection

21 of such statistics by covered entities.

22 SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIB23 ITED.

24 (a) QUOTAS.—A covered entity shall not adopt or im25 plement a quota on the basis of sexual orientation.
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1 (b) PREFERENTIAL TREATMENT.—A covered entity

2 shall not give preferential treatment to an individual on

3 the basis of sexual orientation.

4 (c) ORDERS AND CONSENT DECREES.—Notwith5 standing any other provision of this Act, an order or con6 sent decree entered for a violation of this Act may not

7 include a quota, or preferential treatment to an individual,

8 based on sexual orientation.

9 SEC. 9. RELIGIOUS EXEMPTION.

10 (a) IN GENERAL.—Except as provided in subsection

11 (b), this Act shall not apply to a religious organization.

12 (b) UNRELATED BUSINESS TAXABLE INCOME.—This

13 Act shall apply to employment or an employment oppor14 tunity for an employment position of a covered entity that

15 is a religious organization if the duties of the position per16 tain solely to activities of the organization that generate

17 unrelated business taxable income subject to taxation

18 under section 511(a) of the Internal Revenue Code of

19 1986.

20 SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED

21 FORCES; VETERANS’ PREFERENCES.

22 (a) ARMED FORCES.—

23 (1) EMPLOYMENT OR AN EMPLOYMENT OPPOR24 TUNITY.—In this Act, the term ‘‘employment or an

25 employment opportunity’’ does not apply to the rela-
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1 tionship between the United States and members of

2 the Armed Forces.

3 (2) ARMED FORCES.—In paragraph (1), the

4 term ‘‘Armed Forces’’ means the Army, Navy, Air

5 Force, Marine Corps, and Coast Guard.

6 (b) VETERANS’ PREFERENCES.—This Act does not

7 repeal or modify any Federal, State, territorial, or local

8 law creating a special right or preference concerning em9 ployment or an employment opportunity for a veteran.

10 SEC. 11. CONSTRUCTION.

11 Nothing in this Act shall be construed to prohibit a

12 covered entity from enforcing rules regarding nonprivate

13 sexual conduct, if the rules of conduct are designed for,

14 and uniformly applied to, all individuals regardless of sex15 ual orientation.

16 SEC. 12. ENFORCEMENT.

17 (a) ENFORCEMENT POWERS.—With respect to the

18 administration and enforcement of this Act in the case of

19 a claim alleged by an individual for a violation of this

20 Act—

21 (1) the Commission shall have the same powers

22 as the Commission has to administer and enforce—

23 (A) title VII of the Civil Rights Act of

24 1964 (42 U.S.C. 2000e et seq.); or
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1 (B) sections 302 and 304 of the Govern2 ment Employee Rights Act of 1991 (2 U.S.C.

3 1202 and 1220);

4 in the case of a claim alleged by such individual for

5 a violation of such title, or of section 302(a)(1) of

6 the Government Employee Rights Act of 1991 (2

7 U.S.C. 1202(a)(1)), respectively;

8 (2) the Librarian of Congress shall have the

9 same powers as the Librarian of Congress has to ad10 minister and enforce title VII of the Civil Rights Act

11 of 1964 (42 U.S.C. 2000e et seq.) in the case of a

12 claim alleged by such individual for a violation of

13 such title;

14 (3) the Board (as defined in section 101 of the

15 Congressional Accountability Act of 1995 (2 U.S.C.

16 1301)) shall have the same powers as the Board has

17 to administer and enforce the Congressional Ac18 countability Act of 1995 (2 U.S.C. 1301 et seq.) in

19 the case of a claim alleged by such individual for a

20 violation of section 201(a)(1) of such Act (2 U.S.C.

21 1311(a)(1));

22 (4) the Attorney General shall have the same

23 powers as the Attorney General has to administer

24 and enforce—
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1 (A) title VII of the Civil Rights Act of

2 1964 (42 U.S.C. 2000e et seq.); or

3 (B) sections 302 and 304 of the Govern4 ment Employee Rights Act of 1991 (2 U.S.C.

5 1202 and 1220);

6 in the case of a claim alleged by such individual for

7 a violation of such title, or of section 302(a)(1) of

8 the Government Employee Rights Act of 1991 (2

9 U.S.C. 1202(a)(1)), respectively;

10 (5) the President, the Commission, and the

11 Merit Systems Protection Board shall have the same

12 powers as the President, the Commission, and the

13 Board, respectively, have to administer and enforce

14 chapter 5 of title 3, United States Code, in the case

15 of a claim alleged by such individual for a violation

16 of section 411 of such title;

17 (6) a court of the United States shall have the

18 same jurisdiction and powers as the court has to

19 enforce—

20 (A) title VII of the Civil Rights Act of

21 1964 (42 U.S.C. 2000e et seq.) in the case of

22 a claim alleged by such individual for a viola23 tion of such title;

24 (B) sections 302 and 304 of the Govern25 ment Employee Rights Act of 1991 (2 U.S.C.
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1 1202 and 1220) in the case of a claim alleged

2 by such individual for a violation of section

3 302(a)(1) of such Act (2 U.S.C. 1202(a)(1));

4 (C) the Congressional Accountability Act

5 of 1995 (2 U.S.C. 1301 et seq.) in the case of

6 a claim alleged by such individual for a viola7 tion of section 201(a)(1) of such Act (2 U.S.C.

8 1311(a)(1)); and

9 (D) chapter 5 of title 3, United States

10 Code, in the case of a claim alleged by such in11 dividual for a violation of section 411 of such

12 title.

13 (b) PROCEDURES AND REMEDIES.—The procedures

14 and remedies applicable to a claim alleged by an individual

15 for a violation of this Act are—

16 (1) the procedures and remedies applicable for

17 a violation of title VII of the Civil Rights Act of

18 1964 (42 U.S.C. 2000e et seq.) in the case of a

19 claim alleged by such individual for a violation of

20 such title;

21 (2) the procedures and remedies applicable for

22 a violation of section 302(a)(1) of the Government

23 Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1))

24 in the case of a claim alleged by such individual for

25 a violation of such section;
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1 (3) the procedures and remedies applicable for

2 a violation of section 201(a)(1) of the Congressional

3 Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) in

4 the case of a claim alleged by such individual for a

5 violation of such section; and

6 (4) the procedures and remedies applicable for

7 a violation of section 411 of title 3, United States

8 Code, in the case of a claim alleged by such indi9 vidual for a violation of such section.

10 (c) OTHER APPLICABLE PROVISIONS.—With respect

11 to a claim alleged by a covered employee (as defined in

12 section 101 of the Congressional Accountability Act of

13 1995 (2 U.S.C. 1301)) for a violation of this Act, title

14 III of the Congressional Accountability Act of 1995 (2

15 U.S.C. 1381 et seq.) shall apply in the same manner as

16 such title applies with respect to a claim alleged by such

17 a covered employee for a violation of section 201(a)(1) of

18 such Act (2 U.S.C. 1311(a)(1)).

19 (d) PROHIBITION OF AFFIRMATIVE ACTION—Not20 withstanding any other provision of this section, affirma21 tive action for a violation of this Act may not be imposed.

22 Nothing in this section shall prevent the granting of relief

23 to any individual who suffers a violation of such individ24 ual’s rights provided in this Act.
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1 SEC. 13. STATE AND FEDERAL IMMUNITY.

2 (a) STATE IMMUNITY.—A State shall not be immune

3 under the 11th amendment to the Constitution from an

4 action in a Federal court of competent jurisdiction for a

5 violation of this Act.

6 (b) REMEDIES AGAINST THE UNITED STATES AND

7 THE STATES.—Notwithstanding any other provision of

8 this Act, in an action or administrative proceeding against

9 the United States or a State for a violation of this Act,

10 remedies (including remedies at law and in equity, and

11 interest) are available for the violation to the same extent

12 as the remedies are available for a violation of title VII

13 of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)

14 by a private entity, except that—

15 (1) punitive damages are not available; and

16 (2) compensatory damages are available to the

17 extent specified in section 1977A(b) of the Revised

18 Statutes (42 U.S.C. 1981a(b)).

19 SEC. 14. ATTORNEYS’ FEES.

20 Notwithstanding any other provision of this Act, in

21 an action or administrative proceeding for a violation of

22 this Act, an entity described in section 12(a) (other than

23 paragraph (4) of such section), in the discretion of the

24 entity, may allow the prevailing party, other than the

25 Commission or the United States, a reasonable attorney’s

26 fee (including expert fees) as part of the costs. The Com-
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1 mission and the United States shall be liable for the costs

2 to the same extent as a private person.

3 SEC. 15. POSTING NOTICES.

4 A covered entity who is required to post notices de5 scribed in section 711 of the Civil Rights Act of 1964 (42

6 U.S.C. 2000e–10) shall post notices for employees, appli7 cants for employment, and members, to whom the provi8 sions specified in section 12(b) apply, that describe the

9 applicable provisions of this Act in the manner prescribed

10 by, and subject to the penalty provided under, section 711

11 of the Civil Rights Act of 1964.

12 SEC. 16. REGULATIONS.

13 (a) IN GENERAL.—Except as provided in subsections

14 (b), (c), and (d), the Commission shall have authority to

15 issue regulations to carry out this Act.

16 (b) LIBRARIAN OF CONGRESS.—The Librarian of

17 Congress shall have authority to issue regulations to carry

18 out this Act with respect to employees of the Library of

19 Congress.

20 (c) BOARD.—The Board referred to in section

21 12(a)(3) shall have authority to issue regulations to carry

22 out this Act, in accordance with section 304 of the Con23 gressional Accountability Act of 1995 (2 U.S.C. 1384),

24 with respect to covered employees, as defined in section

25 101 of such Act (2 U.S.C. 1301).
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1 (d) PRESIDENT.—The President shall have authority

2 to issue regulations to carry out this Act with respect to

3 covered employees, as defined in section 401 of title 3,

4 United States Code.

5 SEC. 17. RELATIONSHIP TO OTHER LAWS.

6 This Act shall not invalidate or limit the rights, rem7 edies, or procedures available to an individual claiming

8 discrimination prohibited under any other Federal law or

9 any law of a State or political subdivision of a State.

10 SEC. 18. SEVERABILITY.

11 If any provision of this Act, or the application of the

12 provision to any person or circumstance, is held to be in13 valid, the remainder of this Act and the application of the

14 provision to any other person or circumstance shall not

15 be affected by the invalidity.

16 SEC. 19. EFFECTIVE DATE.

17 This Act shall take effect 60 days after the date of

18 enactment of this Act and shall not apply to conduct oc19 curring before the effective date.

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