II 

116TH CONGRESS 

2D SESSION S. 3878 

To protect employees from discrimination based on family caregiver 

responsibilities, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 3, 2020 

Mr. BOOKER introduced the following bill; which was read twice and referred 

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

A BILL 

To protect employees from discrimination based on family 

caregiver responsibilities, and for other purposes. 

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 ‘‘Protecting Family 

5 Caregivers from Discrimination Act of 2020’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) ADVERSE ACTION.—The term ‘‘adverse ac9 tion’’ means— 


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1 (A) to fail or refuse to hire or to discharge 

2 any individual, or otherwise to discriminate 

3 against any individual with respect to the indi4 vidual’s compensation, terms, conditions, sched5 uling, or privileges of employment; 

6 (B) to limit, segregate, or classify employ7 ees or applicants for employment in any way 

8 which would deprive or tend to deprive any in9 dividual of employment opportunities or other10 wise adversely affect an individual’s status as 

11 an employee; or 

12 (C) any other act or practice that is con13 sidered an adverse action under title VII of the 

14 1964 Civil Rights Act (42 U.S.C. 2000e et 

15 seq.). 

16 (2) COMMERCE.—The term ‘‘commerce’’ has 

17 the meaning given such term in section 3 of the Fair 

18 Labor Standards Act of 1938 (29 U.S.C. 203). 

19 (3) COMMISSION.—The term ‘‘Commission’’ 

20 means the Equal Employment Opportunity Commis21 sion. 

22 (4) EMPLOYEE.—The term ‘‘employee’’ 

23 means— 

24 (A) an employee, as defined in section 3 of 

25 the Fair Labor Standards Act of 1938 (29 


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1 U.S.C. 203), who in any workweek is engaged 

2 in commerce or in the production of goods for 

3 commerce, or is employed in an enterprise en4 gaged in commerce or in the production of 

5 goods for commerce; or 

6 (B) an individual who is engaged, for a 

7 majority of the individual’s work time, by— 

8 (i) an employer; or 

9 (ii) an individual or entity that is not 

10 acting as an employer and engages the 

11 services of a worker to perform services or 

12 work as an independent contractor (re13 gardless of the label or classification as14 signed or used by the employer or an indi15 vidual or entity that is not acting as an 

16 employer and engages the services of a 

17 worker). 

18 (5) EMPLOYER; ENTERPRISE ENGAGED IN COM19 MERCE OR IN THE PRODUCTION OF GOODS FOR

20 COMMERCE.—The terms ‘‘employer’’ and ‘‘enterprise 

21 engaged in commerce or in the production of goods 

22 for commerce’’ have the meanings given such terms 

23 in section 3 of the Fair Labor Standards Act of 

24 1938 (29 U.S.C. 203). 


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1 (6) FAMILY CAREGIVER RESPONSIBILITIES.— 

2 The term ‘‘family caregiver responsibilities’’, with re3 spect to an individual having such responsibilities, 

4 means the responsibilities of the individual as being 

5 responsible, or being regarded as being responsible, 

6 as a contributor to the support or care of one or 

7 more family members of the individual, regardless of 

8 the age of the family member. 

9 (7) FAMILY MEMBER.— 

10 (A) IN GENERAL.—The term ‘‘family 

11 member’’, with respect to an individual, in12 cludes— 

13 (i) the spouse or domestic partner of 

14 the individual; 

15 (ii) the parent, grandparent, or sibling 

16 of the individual, including if such parent, 

17 grandparent, or sibling is an in-law of the 

18 individual; 

19 (iii) any child, grandchild, niece, or 

20 nephew of the individual; 

21 (iv) any aunt, uncle, or cousin of the 

22 individual; and 

23 (v) any other individual related to the 

24 employee by blood or affinity whose close 

25 association to the employee is the equivaVerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878

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1 lent of the family relationships described in 

2 clauses (i) through (iv). 

3 (B) RELATIONSHIP.—A relationship de4 scribed in subparagraph (A) may be acquired 

5 through adoption, marriage, or a dependent or 

6 custodial relationship. 

7 SEC. 3. PROHIBITION ON DISCRIMINATION. 

8 It shall be unlawful for an employer or an individual 

9 or entity described in section 2(4)(B)(ii) to— 

10 (1) fail or refuse to hire an applicant as an em11 ployee of such employer, or such individual or entity, 

12 because of the family caregiver responsibilities of the 

13 applicant; or 

14 (2) take adverse action against an employee of 

15 such employer or such individual or entity, or other16 wise discriminate against such an employee, with re17 spect to the compensation, terms, conditions, or 

18 privileges of employment of the employee because of 

19 the family caregiver responsibilities of the employee. 

20 SEC. 4. PROHIBITION ON RETALIATION. 

21 (a) INTERFERENCE WITH RIGHTS.— 

22 (1) EXERCISE OF RIGHTS.—It shall be unlawful 

23 for any employer or an individual or entity described 

24 in section 2(4)(B)(ii) to retaliate against, interfere 


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1 with, restrain, or deny the exercise of or the attempt 

2 to exercise, any right provided under this section. 

3 (2) ADVERSE ACTION.—It shall be unlawful for 

4 any employer or an individual or entity described in 

5 section 2(4)(B)(ii) to take any adverse action 

6 against any employee or applicant because the em7 ployee or applicant has exercised in good faith the 

8 rights protected under this section. 

9 (3) IMMIGRATION STATUS.—It shall be unlawful 

10 for any employer or an individual or entity described 

11 in section 2(4)(B)(ii) to communicate to an em12 ployee or applicant exercising rights protected under 

13 this section, directly or indirectly, the willingness to 

14 inform a government employee that the employee or 

15 applicant is not lawfully in the United States, or to 

16 report, or to make an implied or express assertion 

17 of a willingness to report, suspected citizenship or 

18 immigration status of an employee or applicant or 

19 family member of the employee or applicant to a 

20 Federal, State, or local agency because the employee 

21 has exercised a right under this section. 

22 (b) RIGHTS OF EMPLOYEES.—The rights of an em23 ployee or applicant shall include the right to— 

24 (1) inform the employee’s employer, union, or 

25 similar organization, or the employee’s legal counsel 


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1 or any other person about an alleged violation of this 

2 Act; 

3 (2) file any charge, or institute or cause to be 

4 instituted any proceeding, under or related to this 

5 Act, or otherwise take action in accordance with sec6 tion 6 relating to the enforcement of this Act; 

7 (3) cooperate in investigations under or relating 

8 to this Act, including by giving or preparing to give 

9 information in connection with any inquiry or pro10 ceeding under or related to this Act; 

11 (4) testify in any inquiry or proceeding under 

12 or related to this Act; and 

13 (5) refuse to participate in, or otherwise oppose, 

14 any policy, practice, or act that is unlawful under 

15 this Act. 

16 (c) PRESUMPTION OF RETALIATION.—There shall be 

17 a rebuttable presumption that retaliation has occurred in 

18 violation of this section if an employer or an individual 

19 or entity described in section 2(4)(B)(ii) takes an adverse 

20 action against an employee or applicant during the period 

21 that is 2 years after the date on which that employee or 

22 applicant exercised rights protected under this section. In 

23 the case of seasonal work, the presumption also applies 

24 if the employer or individual or entity described in section 

25 2(4)(B)(ii) fails to rehire a former employee at the next 


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1 opportunity for work in the same position. The employer 

2 or individual or entity described in section 2(4)(B)(ii) may 

3 rebut the presumption with clear and convincing evidence 

4 that the adverse action was taken for a permissible pur5 pose. 

6 (d) PROTECTIONS FOR GOOD FAITH ALLEGA7 TIONS.—The protections afforded under this section shall 

8 apply to any individual who mistakenly but in good faith 

9 alleges a violation of this section or section 3. 

10 (e) EXPLICIT REFERENCE NOT REQUIRED.—A com11 plaint or other communication by an employee or any ap12 plicant may be an action described in subsection (b) that 

13 gives rise to the protections described in this section re14 gardless of whether the complaint or communication is in 

15 writing or makes explicit reference to this Act. 

16 SEC. 5. POSTING OF NOTICES. 

17 (a) IN GENERAL.—Each employer shall, not later 

18 than 180 days after the date of enactment of this Act, 

19 post, and keep posted, in a conspicuous place upon the 

20 premises of the employer a notice, to be prepared or ap21 proved by the Commission, setting forth information as 

22 the Commission determines appropriate to effectuate the 

23 purposes of this Act, including the pertinent provisions of 

24 this Act and information pertinent to the filing of a charge 

25 with the Commission. 


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1 (b) PENALTY.—A willful violation of this section shall 

2 be punishable by a fine of not more than $100 for each 

3 separate offense. 

4 SEC. 6. ENFORCEMENT. 

5 (a) IN GENERAL.—Subject to subsection (c), sections 

6 3 and 4 of this Act shall be enforced by the Commission 

7 in the same manner and by the same means, including 

8 with the same jurisdiction, as the enforcement of a viola9 tion of title VII of the Civil Rights Act of 1964 (42 U.S.C. 

10 2000e et seq.). Violations of this Act may be established 

11 through proof of disparate treatment or disparate impact. 

12 (b) ACTION BY THE COMMISSION.—Except as other13 wise specified in this Act, the Commission shall receive, 

14 investigate, attempt to resolve, and otherwise enforce a 

15 charge of a violation of section 3 or 4 of this Act in the 

16 same manner that the Commission receives, investigates, 

17 attempts to resolve, and enforces a charge of a violation 

18 of title VII of the Civil Rights Act of 1964. 

19 (c) PRIVATE RIGHT OF ACTION.—Notwithstanding 

20 subsection (a) and section 706 of the Civil Rights Act of 

21 1964 (42 U.S.C. 2000e–5), a private right of action shall 

22 also be available to an applicant or individual who alleges 

23 a violation of section 3 or 4 of this Act. Such applicant 

24 or individual shall not be required to file a charge with 


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1 the Commission or pursue or exhaust any administrative 

2 remedies before instituting a civil action. 

3 (d) PENALTIES.— 

4 (1) IN GENERAL.—In addition to sums that 

5 may otherwise be collected by an aggrieved indi6 vidual or collected by the Commission and paid to an 

7 aggrieved individual, any person who willfully vio8 lates sections 3 or 4 shall upon conviction thereof be 

9 subject to a penalty of an amount not to exceed— 

10 (A) $10,000 for each violation of section 3; 

11 and 

12 (B) $5,000 for each violation of section 4. 

13 (2) TRANSFER OF FUNDS.—Any penalties col14 lected by the Commission under this subsection shall 

15 be transferred to the Family Caregiver Antidiscrimi16 nation Fund. 

17 (e) FAMILY CAREGIVER ANTIDISCRIMINATION

18 FUND.— 

19 (1) IN GENERAL.—There is established in the 

20 Treasury of the United States a revolving fund, to 

21 be known as the ‘‘Family Caregiver Antidiscrimina22 tion Fund’’ (referred to in this Act as the ‘‘Fund’’), 

23 consisting of the amount of penalties transferred to 

24 the Fund under subsection (d)(2). 


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1 (2) USE OF FUNDS.—Amounts in the Fund 

2 shall be available for the purpose of awarding grants 

3 under section 7. 

4 SEC. 7. GRANTS. 

5 (a) IN GENERAL.— 

6 (1) GRANT PROGRAM ESTABLISHED.—The 

7 Commission, shall award grants, on a competitive 

8 basis, to eligible entities to enable those eligible enti9 ties to assist in preventing and combating discrimi10 nation against applicants and employees who have 

11 family caregiver responsibilities. 

12 (2) DURATION.—A grant awarded under this 

13 section shall be for a period of 3 years. 

14 (b) ELIGIBLE ENTITY.—In this section, the term ‘‘el15 igible entity’’ means— 

16 (1) a nonprofit organization with expertise in 

17 family caregiver discrimination; 

18 (2) an institution of higher education or re19 search center that employs faculty with relevant ex20 pertise and has expertise in family caregiver dis21 crimination; or 

22 (3) a consortium of entities described in para23 graphs (1) and (2) that submit a single application 

24 to carry out activities under the grant jointly. 


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1 (c) APPLICATION.—An eligible entity desiring a grant 

2 under this section shall submit an application to the Com3 mission at such time, in such manner, and containing such 

4 information as the Commission may require. 

5 (d) USE OF FUNDS.—An eligible entity receiving a 

6 grant under this section shall use grant funds to carry 

7 out one or more of the following activities: 

8 (1) Educate employees about the prohibited ac9 tions under section 3, caregiver rights, and the 

10 rights provided under this Act. 

11 (2) Conduct educational training for employers 

12 regarding caregiver discrimination. 

13 (3) Provide support to applicants and employ14 ees facing discrimination based on family caregiver 

15 responsibilities. 

16 (4) Produce and disseminate outreach and 

17 training materials relating to the prohibited actions 

18 under section 3, caregiver rights, and the rights pro19 vided under this Act. 

20 (5) Recruit and hire staff and volunteers to 

21 carry out the activities described in this subsection. 

22 (6) Any other activities that the Commission 

23 determines are reasonable. 

24 (e) REPORT.—Not later than 12 months after the 

25 completion of the programs and activities funded under 


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1 grants awarded under this section, the Commission shall 

2 submit to Congress, and all appropriate agencies, a report 

3 concerning an evaluation of the results of such programs 

4 and activities, including best practices, and lessons derived 

5 from the experiences of grantees. 

6 (f) AUTHORIZATION OF APPROPRIATIONS.—There 

7 are authorized to be appropriated such sums as are nec8 essary to carry out this section. 

9 SEC. 8. RULE OF CONSTRUCTION. 

10 Nothing in this Act shall be construed to supersede 

11 any other provision of Federal, State, or local law that 

12 provides greater protection against employment discrimi13 nation or greater remedies to employees than the protec14 tion or remedies provided to employees under this Act, in15 cluding any such provision in the Family and Medical 

16 Leave Act of 1993 (29 U.S.C. 2601 et seq.), the Ameri17 cans with Disabilities Act of 1990 (42 U.S.C. 12101 et 

18 seq.), title VII of the Civil Rights Act of 1964 (42 U.S.C. 

19 2000e et seq.), or section 6(d) of the Fair Labor Stand20 ards Act of 1938 (29 U.S.C. 206(d)). 

Æ 


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