II 

Calendar No. 763

107TH CONGRESS 

2D SESSION S. 1284

[Report No. 107–341] 

To prohibit employment discrimination on the basis of sexual orientation. 

IN THE SENATE OF THE UNITED STATES 

JULY 31, 2001

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

Mr. DASCHLE, Mr. AKAKA, Mr. BAUCUS, Mr. BAYH, Mr. BIDEN, Mr. 

BINGAMAN, Mrs. BOXER, Ms. CANTWELL, Mr. CARPER, Mr. CHAFEE, 

Mr. CLELAND, Mrs. CLINTON, Mr. CORZINE, Mr. DAYTON, Mr. DODD, 

Mr. DURBIN, Mr. EDWARDS, Mr. FEINGOLD, Mrs. FEINSTEIN, Mr. 

HARKIN, Mr. INOUYE, Mr. KERRY, Mr. KOHL, Ms. LANDRIEU, Mr. 

LEAHY, Mr. LEVIN, Ms. MIKULSKI, Mrs. MURRAY, Mr. NELSON of Florida, Mr. REED, Mr. REID, Mr. SARBANES, Mr. SCHUMER, Mr. SMITH of 

Oregon, Ms. STABENOW, Mr. TORRICELLI, Mr. WELLSTONE, Mr. 

WYDEN, Mrs. CARNAHAN, Mr. BREAUX, and Ms. COLLINS) introduced 

the following bill; which was read twice and referred to the Committee 

on Health, Education, Labor, and Pensions 

NOVEMBER 15, 2002

Reported by Mr. KENNEDY, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL

To prohibit employment discrimination on the basis of sexual 

orientation.
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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 2001’’. 

6 SEC. 2. PURPOSES. 

7 The purposes of this Act are—

8 (1) to provide a comprehensive Federal prohibi9 tion of employment discrimination on the basis of 

10 sexual orientation; 

11 (2) to provide meaningful and effective rem12 edies for employment discrimination on the basis of 

13 sexual orientation; and 

14 (3) to invoke congressional powers, including 

15 the powers to enforce the 14th amendment to the 

16 Constitution, and to regulate interstate commerce 

17 and provide for the general welfare pursuant to sec18 tion 8 of article I of the Constitution, in order to 

19 prohibit employment discrimination on the basis of 

20 sexual orientation. 

21 SEC. 3. DEFINITIONS. 

22 In this Act: 

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

24 means the Equal Employment Opportunity Commis25 sion. 
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1 (2) COVERED ENTITY.—The term ‘‘covered en2 tity’’ means an employer, employment agency, labor 

3 organization, or joint labor-management committee. 

4 (3) EMPLOYEE.—

5 (A) IN GENERAL.—The term ‘‘employee’’ 

6 means—

7 (i) an employee (as defined in section 

8 701(f) of the Civil Rights Act of 1964 (42 

9 U.S.C. 2000e(f)); 

10 (ii) a Presidential appointee or State 

11 employee to which section 302(a)(1) of the 

12 Government Employee Rights Act of 1991 

13 (2 U.S.C. 1202(a)(1)) applies; 

14 (iii) a covered employee, as defined in 

15 section 101 of the Congressional Account16 ability Act of 1995 (2 U.S.C. 1301) or sec17 tion 411(c) of title 3, United States Code; 

18 or 

19 (iv) an employee or applicant to which 

20 section 717(a) of the Civil Rights Act of 

21 1964 (42 U.S.C. 2000e–16(a)) applies. 

22 (B) EXCEPTION.—The term does not in23 clude a volunteer who receives no compensation. 

24 (4) EMPLOYER.—The term ‘‘employer’’ 

25 means—
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1 (A) a person engaged in an industry affect2 ing commerce (as defined in section 701(h) of 

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

4 2000e(h)) who has 15 or more employees (as 

5 defined in subparagraphs (A)(i) and (B) of 

6 paragraph (3)) for each working day in each of 

7 20 or more calendar weeks in the current or 

8 preceding calendar year, and any agent of such 

9 a person, but does not include a bona fide pri10 vate membership club (other than a labor orga11 nization) that is exempt from taxation under 

12 section 501(c) of the Internal Revenue Code of 

13 1986; 

14 (B) an employing authority to which sec15 tion 302(a)(1) of the Government Employee 

16 Rights Act of 1991 applies; 

17 (C) an employing office, as defined in sec18 tion 101 of the Congressional Accountability 

19 Act of 1995 or section 411(c) of title 3, United 

20 States Code; or 

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

22 the Civil Rights Act of 1964 applies. 

23 (5) EMPLOYMENT AGENCY.—The term 

24 ‘‘employment agency’’ has the meaning given the 
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1 term in section 701(c) of the Civil Rights Act of 

2 1964 (42 U.S.C. 2000e(c)). 

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

4 organization’’ has the meaning given the term in 

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

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

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

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

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

10 (8) RELIGIOUS ORGANIZATION.—The term 

11 ‘‘religious organization’’ means—

12 (A) a religious corporation, association, or 

13 society; or 

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

15 educational institution or institution of learn16 ing, if— 

17 (i) the institution is in whole or sub18 stantial part controlled, managed, owned, 

19 or supported by a religion, religious cor20 poration, association, or society; or 

21 (ii) the curriculum of the institution is 

22 directed toward the propagation of a reli23 gion. 

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

25 orientation’’ means homosexuality, bisexuality, or 
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1 heterosexuality, whether the orientation is real or 

2 perceived. 

3 (10) STATE.—The term ‘‘State’’ has the mean4 ing given the term in section 701(i) of the Civil 

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

6 SEC. 4. DISCRIMINATION PROHIBITED. 

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

8 employment practice for an employer—

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

10 individual, or otherwise to discriminate against any 

11 individual with respect to the compensation, terms, 

12 conditions, or privileges of employment of the indi13 vidual, because of such individual’s sexual orienta14 tion; or 

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

16 or applicants for employment of the employer in any 

17 way that would deprive or tend to deprive any indi18 vidual of employment or otherwise adversely affect 

19 the status of the individual as an employee, because 

20 of such individual’s sexual orientation. 

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

22 an unlawful employment practice for an employment agen23 cy to fail or refuse to refer for employment, or otherwise 

24 to discriminate against, any individual because of the sex25 ual orientation of the individual or to classify or refer for 
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1 employment any individual on the basis of the sexual ori2 entation of the individual. 

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

4 an unlawful employment practice for a labor organiza5 tion—

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

7 or otherwise to discriminate against, any individual 

8 because of the sexual orientation of the individual; 

9 (2) to limit, segregate, or classify its member10 ship or applicants for membership, or to classify or 

11 fail or refuse to refer for employment any individual, 

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

13 individual of employment, or would limit such em14 ployment or otherwise adversely affect the status of 

15 the individual as an employee or as an applicant for 

16 employment, because of such individual’s sexual ori17 entation; or 

18 (3) to cause or attempt to cause an employer to 

19 discriminate against an individual in violation of this 

20 section. 

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

22 employment practice for any employer, labor organization, 

23 or joint labor-management committee controlling appren24 ticeship or other training or retraining, including on-the25 job training programs, to discriminate against any indi-
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1 vidual because of the sexual orientation of the individual 

2 in admission to, or employment in, any program estab3 lished to provide apprenticeship or other training. 

4 (e) ASSOCIATION.—An unlawful employment practice 

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

6 considered to include an action described in that sub7 section, taken against an individual based on the sexual 

8 orientation of a person with whom the individual associ9 ates or has associated. 

10 (f) DISPARATE IMPACT.—Notwithstanding any other 

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

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

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

14 (42 U.S.C. 2000e–2(k)), on the basis of sexual orientation 

15 does not establish a prima facie violation of this Act. 

16 SEC. 5. RETALIATION AND COERCION PROHIBITED. 

17 (a) RETALIATION.—A covered entity shall not dis18 criminate against an individual because such individual 

19 opposed any act or practice prohibited by this Act or be20 cause such individual made a charge, assisted, testified, 

21 or participated in any manner in an investigation, pro22 ceeding, or hearing under this Act. 

23 (b) COERCION.—A person shall not coerce, intimi24 date, threaten, or interfere with any individual in the exer25 cise or enjoyment of, or on account of such individual’s 
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1 having exercised, enjoyed, or assisted in or encouraged the 

2 exercise or enjoyment of, any right granted or protected 

3 by this Act. 

4 SEC. 6. BENEFITS. 

5 This Act does not apply to the provision of employee 

6 benefits to an individual for the benefit of the domestic 

7 partner of such individual. 

8 SEC. 7. COLLECTION OF STATISTICS PROHIBITED. 

9 The Commission shall not collect statistics on sexual 

10 orientation from covered entities, or compel the collection 

11 of such statistics by covered entities. 

12 SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIB13 ITED. 

14 (a) QUOTAS.—A covered entity shall not adopt or im15 plement a quota on the basis of sexual orientation.

16 (b) PREFERENTIAL TREATMENT.—A covered entity 

17 shall not give preferential treatment to an individual on 

18 the basis of sexual orientation. 

19 (c) ORDERS AND CONSENT DECREES.—Notwith20 standing any other provision of this Act, an order or con21 sent decree entered for a violation of this Act may not 

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

23 based on sexual orientation. 

24 SEC. 9. RELIGIOUS EXEMPTION. 

25 This Act shall not apply to a religious organization. 
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1 SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED 

2 FORCES; VETERANS’ PREFERENCES. 

3 (a) ARMED FORCES.—

4 (1) EMPLOYMENT.—In this Act, the term 

5 ‘‘employment’’ does not apply to the relationship be6 tween the United States and members of the Armed 

7 Forces. 

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

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

10 Force, Marine Corps, and Coast Guard. 

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

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

13 law creating a special right or preference concerning em14 ployment for a veteran. 

15 SEC. 11. CONSTRUCTION. 

16 (a) NONPRIVATE CONDUCT.—Nothing in this Act 

17 shall be construed to prohibit a covered entity from enforc18 ing rules regarding nonprivate sexual conduct, if the rules 

19 of conduct are designed for, and uniformly applied to, all 

20 individuals regardless of sexual orientation. 

21 (b) ASSOCIATION.—Nothing in this Act shall be con22 strued to prohibit any association, or infringe upon any 

23 right of association, guaranteed by the first amendment 

24 to the Constitution, of any nonprofit, voluntary member25 ship organization. 
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1 SEC. 12. ENFORCEMENT. 

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

3 administration and enforcement of this Act in the case of 

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

5 Act—

6 (1) the Commission shall have the same powers 

7 as the Commission has to administer and enforce—

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

9 1964 (42 U.S.C. 2000e et seq.); or

10 (B) sections 302 and 304 of the Govern11 ment Employee Rights Act of 1991 (2 U.S.C. 

12 1202 and 1220); 

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

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

15 the Government Employee Rights Act of 1991 (2 

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

17 (2) the Librarian of Congress shall have the 

18 same powers as the Librarian of Congress has to ad19 minister and enforce title VII of the Civil Rights Act 

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

21 claim alleged by such individual for a violation of 

22 such title; 

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

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

25 1301)) shall have the same powers as the Board has 

26 to administer and enforce the Congressional Ac-
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1 countability Act of 1995 (2 U.S.C. 1301 et seq.) in 

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

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

4 1311(a)(1)); 

5 (4) the Attorney General shall have the same 

6 powers as the Attorney General has to administer 

7 and enforce—

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

9 1964 (42 U.S.C. 2000e et seq.); or 

10 (B) sections 302 and 304 of the Govern11 ment Employee Rights Act of 1991 (2 U.S.C. 

12 1202 and 1220); 

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

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

15 the Government Employee Rights Act of 1991 (2 

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

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

18 Merit Systems Protection Board shall have the same 

19 powers as the President, the Commission, and the 

20 Board, respectively, have to administer and enforce 

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

22 of a claim alleged by such individual for a violation 

23 of section 411 of such title; 
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1 (6) a court of the United States shall have the 

2 same jurisdiction and powers as the court has to en3 force—

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

5 1964 (42 U.S.C. 2000e et seq.) in the case of 

6 a claim alleged by such individual for a viola7 tion of such title; 

8 (B) sections 302 and 304 of the Govern9 ment Employee Rights Act of 1991 (2 U.S.C. 

10 1202 and 1220) in the case of a claim alleged 

11 by such individual for a violation of section 

12 302(a)(1) of such Act (2 U.S.C. 1202(a)(1)); 

13 (C) the Congressional Accountability Act 

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

15 a claim alleged by such individual for a viola16 tion of section 201(a)(1) of such Act (2 U.S.C. 

17 1311(a)(1)); and 

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

19 Code, in the case of a claim alleged by such in20 dividual for a violation of section 411 of such 

21 title. 

22 (b) PROCEDURES AND REMEDIES.—The procedures 

23 and remedies applicable to a claim alleged by an individual 

24 for a violation of this Act are—
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1 (1) the procedures and remedies applicable for 

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

3 1964 (42 U.S.C. 2000e et seq.) in the case of a 

4 claim alleged by such individual for a violation of 

5 such title; 

6 (2) the procedures and remedies applicable for 

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

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

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

10 a violation of such section;

11 (3) the procedures and remedies applicable for 

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

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

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

15 violation of such section; and 

16 (4) the procedures and remedies applicable for 

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

18 Code, in the case of a claim alleged by such indi19 vidual for a violation of such section. 

20 (c) OTHER APPLICABLE PROVISIONS.—With respect 

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

22 section 101 of the Congressional Accountability Act of 

23 1995 (2 U.S.C. 1301)) for a violation of this Act, title 

24 III of the Congressional Accountability Act of 1995 (2 

25 U.S.C. 1381 et seq.) shall apply in the same manner as 
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1 such title applies with respect to a claim alleged by such 

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

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

4 (d) PROHIBITION OF AFFIRMATIVE ACTION.—Not5 withstanding any other provision of this section, affirma6 tive action for a violation of this Act may not be imposed. 

7 Nothing in this section shall prevent the granting of relief 

8 to any individual who suffers a violation of such individ9 ual’s rights provided in this Act. 

10 SEC. 13. STATE AND FEDERAL IMMUNITY. 

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

12 under the 11th amendment to the Constitution from a suit 

13 described in subsection (b) and brought in a Federal court 

14 of competent jurisdiction for a violation of this Act. 

15 (b) REMEDIES FOR STATE EMPLOYEES.—

16 (1) IN GENERAL.—

17 (A) WAIVER.—A State’s receipt or use of 

18 Federal financial assistance for any program or 

19 activity of a State shall constitute a waiver of 

20 sovereign immunity, under the 11th amendment 

21 to the Constitution or otherwise, to a suit 

22 brought by an employee or applicant for em23 ployment of that program or activity under this 

24 Act for a remedy authorized under subsection 

25 (c). 
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1 (B) DEFINITION.—In this paragraph, the 

2 term ‘‘program or activity’’ has the meaning 

3 given the term in section 606 of the Civil 

4 Rights Act of 1964 (42 U.S.C. 2000d–4a). 

5 (2) OFFICIALS.—An official of a State may be 

6 sued in the official capacity of the official by any 

7 employee or applicant for employment who has com8 plied with the applicable procedures of section 12, 

9 for equitable relief that is authorized under this Act. 

10 In such a suit the court may award to the prevailing 

11 party those costs authorized by section 722 of the 

12 Revised Statutes (42 U.S.C. 1988). 

13 (3) EFFECTIVE DATE.—With respect to a par14 ticular program or activity, paragraphs (1) and (2) 

15 apply to conduct occurring on or after the day, after 

16 the date of enactment of this Act, on which a State 

17 first receives or uses Federal financial assistance for 

18 that program or activity. 

19 (c) REMEDIES AGAINST THE UNITED STATES AND

20 THE STATES.—Notwithstanding any other provision of 

21 this Act, in an action or administrative proceeding against 

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

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

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

25 as the remedies are available for a violation of title VII 
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1 of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 

2 by a private entity, except that—

3 (1) punitive damages are not available; and 

4 (2) compensatory damages are available to the 

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

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

7 SEC. 14. ATTORNEYS’ FEES. 

8 Notwithstanding any other provision of this Act, in 

9 an action or administrative proceeding for a violation of 

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

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

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

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

14 fee (including expert fees) as part of the costs. The Com15 mission and the United States shall be liable for the costs 

16 to the same extent as a private person. 

17 SEC. 15. POSTING NOTICES. 

18 A covered entity who is required to post notices de19 scribed in section 711 of the Civil Rights Act of 1964 (42 

20 U.S.C. 2000e–10) shall post notices for employees, appli21 cants for employment, and members, to whom the provi22 sions specified in section 12(b) apply, that describe the 

23 applicable provisions of this Act in the manner prescribed 

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

25 of the Civil Rights Act of 1964. 
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1 SEC. 16. REGULATIONS. 

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

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

4 issue regulations to carry out this Act. 

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

6 Congress shall have authority to issue regulations to carry 

7 out this Act with respect to employees and applicants for 

8 employment of the Library of Congress. 

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

10 12(a)(3) shall have authority to issue regulations to carry 

11 out this Act, in accordance with section 304 of the Con12 gressional Accountability Act of 1995 (2 U.S.C. 1384), 

13 with respect to covered employees, as defined in section 

14 101 of such Act (2 U.S.C. 1301). 

15 (d) PRESIDENT.—The President shall have authority 

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

17 covered employees, as defined in section 411(c) of title 3, 

18 United States Code. 

19 SEC. 17. RELATIONSHIP TO OTHER LAWS. 

20 This Act shall not invalidate or limit the rights, rem21 edies, or procedures available to an individual claiming 

22 discrimination prohibited under any other Federal law or 

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

24 SEC. 18. SEVERABILITY. 

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

26 provision to any person or circumstance, is held to be in-
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1 valid, the remainder of this Act and the application of the 

2 provision to any other person or circumstance shall not 

3 be affected by the invalidity. 

4 SEC. 19. EFFECTIVE DATE. 

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

6 enactment of this Act and shall not apply to conduct oc7 curring before the effective date.

8 SECTION 1. SHORT TITLE. 

9 This Act may be cited as the ‘‘Employment Non-Dis10 crimination Act of 2002’’. 

11 SEC. 2. PURPOSES. 

12 The purposes of this Act are—

13 (1) to provide a comprehensive Federal prohibi14 tion of employment discrimination on the basis of 

15 sexual orientation; 

16 (2) to provide meaningful and effective remedies 

17 for employment discrimination on the basis of sexual 

18 orientation; and 

19 (3) to invoke congressional powers, including the 

20 powers to enforce the 14th amendment to the Con21 stitution, and to regulate interstate commerce and 

22 provide for the general welfare pursuant to section 8 

23 of article I of the Constitution, in order to prohibit 

24 employment discrimination on the basis of sexual ori25 entation. 
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1 SEC. 3. DEFINITIONS. 

2 (a) IN GENERAL.—In this Act: 

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

4 means the Equal Employment Opportunity Commis5 sion. 

6 (2) COVERED ENTITY.—The term ‘‘covered enti7 ty’’ means an employer, employment agency, labor or8 ganization, or joint labor-management committee. 

9 (3) EMPLOYEE.—

10 (A) IN GENERAL.—The term ‘‘employee’’ 

11 means—

12 (i) an employee (as defined in section 

13 701(f) of the Civil Rights Act of 1964 (42 

14 U.S.C. 2000e(f)); 

15 (ii) a Presidential appointee or State 

16 employee to which section 302(a)(1) of the 

17 Government Employee Rights Act of 1991 

18 (2 U.S.C. 1202(a)(1)) applies; 

19 (iii) a covered employee, as defined in 

20 section 101 of the Congressional Account21 ability Act of 1995 (2 U.S.C. 1301) or sec22 tion 411(c) of title 3, United States Code; or 

23 (iv) an employee or applicant to which 

24 section 717(a) of the Civil Rights Act of 

25 1964 (42 U.S.C. 2000e–16(a)) applies. 
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1 (B) EXCEPTION.—The provisions of this Act 

2 that apply to an employee or individual shall 

3 not apply to a volunteer who receives no com4 pensation. 

5 (4) EMPLOYER.—The term ‘‘employer’’ means—

6 (A) a person engaged in an industry affect7 ing commerce (as defined in section 701(h) of the 

8 Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) 

9 who has 15 or more employees (as defined in 

10 subparagraphs (A)(i) and (B) of paragraph (3)) 

11 for each working day in each of 20 or more cal12 endar weeks in the current or preceding calendar 

13 year, and any agent of such a person, but does 

14 not include a bona fide private membership club 

15 (other than a labor organization) that is exempt 

16 from taxation under section 501(c) of the Inter17 nal Revenue Code of 1986; 

18 (B) an employing authority to which sec19 tion 302(a)(1) of the Government Employee 

20 Rights Act of 1991 applies; 

21 (C) an employing office, as defined in sec22 tion 101 of the Congressional Accountability Act 

23 of 1995 or section 411(c) of title 3, United States 

24 Code; or 
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1 (D) an entity to which section 717(a) of the 

2 Civil Rights Act of 1964 applies. 

3 (5) EMPLOYMENT AGENCY.—The term 

4 ‘‘employment agency’’ has the meaning given the term 

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

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

7 (6) LABOR ORGANIZATION.—The term ‘‘labor or8 ganization’’ has the meaning given the term in sec9 tion 701(d) of the Civil Rights Act of 1964 (42 U.S.C. 

10 2000e(d)).

11 (7) PERSON.—The term ‘‘person’’ has the mean12 ing given the term in section 701(a) of the Civil 

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

14 (8) RELIGIOUS ORGANIZATION.—The term 

15 ‘‘religious organization’’ means—

16 (A) a religious corporation, association, or 

17 society; or 

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

19 educational institution or institution of learn20 ing, if— 

21 (i) the institution is in whole or sub22 stantial part controlled, managed, owned, 

23 or supported by a religion, religious cor24 poration, association, or society; or 
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1 (ii) the curriculum of the institution is 

2 directed toward the propagation of a reli3 gion. 

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

5 orientation’’ means homosexuality, bisexuality, or het6 erosexuality, whether the orientation is real or per7 ceived. 

8 (10) STATE.—The term ‘‘State’’ has the meaning 

9 given the term in section 701(i) of the Civil Rights 

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

11 (b) APPLICATION OF DEFINITIONS.—For purposes of 

12 this section, a reference in section 701 of the Civil Rights 

13 Act of 1964—

14 (1) to an employee or an employer shall be con15 sidered to refer to an employee (as defined in para16 graph (3)) or an employer (as defined in paragraph 

17 (4)), respectively, except as provided in paragraph 

18 (2); and 

19 (2) to an employer in subsection (f) of that sec20 tion shall be considered to refer to an employer (as 

21 defined in paragraph (4)(A)). 

22 SEC. 4. DISCRIMINATION PROHIBITED. 

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

24 employment practice for an employer—
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1 (1) to fail or refuse to hire or to discharge any 

2 individual, or otherwise to discriminate against any 

3 individual with respect to the compensation, terms, 

4 conditions, or privileges of employment of the indi5 vidual, because of such individual’s sexual orienta6 tion; or 

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

8 or applicants for employment of the employer in any 

9 way that would deprive or tend to deprive any indi10 vidual of employment or otherwise adversely affect the 

11 status of the individual as an employee, because of 

12 such individual’s sexual orientation. 

13 (b) EMPLOYMENT AGENCY PRACTICES.—It shall be an 

14 unlawful employment practice for an employment agency 

15 to fail or refuse to refer for employment, or otherwise to 

16 discriminate against, any individual because of the sexual 

17 orientation of the individual or to classify or refer for em18 ployment any individual on the basis of the sexual orienta19 tion of the individual. 

20 (c) LABOR ORGANIZATION PRACTICES.—It shall be an 

21 unlawful employment practice for a labor organization—

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

23 or otherwise to discriminate against, any individual 

24 because of the sexual orientation of the individual; 
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1 (2) to limit, segregate, or classify its membership 

2 or applicants for membership, or to classify or fail or 

3 refuse to refer for employment any individual, in any 

4 way that would deprive or tend to deprive any indi5 vidual of employment, or would limit such employ6 ment or otherwise adversely affect the status of the in7 dividual as an employee or as an applicant for em8 ployment, because of such individual’s sexual orienta9 tion; or 

10 (3) to cause or attempt to cause an employer to 

11 discriminate against an individual in violation of 

12 this section. 

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

14 employment practice for any employer, labor organization, 

15 or joint labor-management committee controlling appren16 ticeship or other training or retraining, including on-the17 job training programs, to discriminate against any indi18 vidual because of the sexual orientation of the individual 

19 in admission to, or employment in, any program estab20 lished to provide apprenticeship or other training. 

21 (e) ASSOCIATION.—An unlawful employment practice 

22 described in any of subsections (a) through (d) shall be con23 sidered to include an action described in that subsection, 

24 taken against an individual based on the sexual orientation 
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1 of a person with whom the individual associates or has asso2 ciated. 

3 (f) DISPARATE IMPACT.—Only disparate treatment 

4 claims may be brought under this Act. 

5 SEC. 5. RETALIATION PROHIBITED. 

6 It shall be an unlawful employment practice for a cov7 ered entity to discriminate against an individual because 

8 such individual opposed any practice made an unlawful 

9 employment practice by this Act, or because such individual 

10 made a charge, testified, assisted, or participated in any 

11 manner in an investigation, proceeding, or hearing under 

12 this Act. 

13 SEC. 6. BENEFITS. 

14 This Act does not apply to the provision of employee 

15 benefits to an individual for the benefit of the domestic part16 ner of such individual. 

17 SEC. 7. COLLECTION OF STATISTICS PROHIBITED. 

18 The Commission shall not collect statistics on sexual 

19 orientation from covered entities, or compel the collection 

20 of such statistics by covered entities. 

21 SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIB22 ITED. 

23 (a) QUOTAS.—A covered entity shall not adopt or im24 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 in7 clude a quota, or preferential treatment to an individual, 

8 based on sexual orientation. 

9 SEC. 9. RELIGIOUS EXEMPTION. 

10 This Act shall not apply to a religious organization. 

11 SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED 

12 FORCES; VETERANS’ PREFERENCES. 

13 (a) ARMED FORCES.—

14 (1) EMPLOYMENT.—In this Act, the term 

15 ‘‘employment’’ does not apply to the relationship be16 tween the United States and members of the Armed 

17 Forces. 

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

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

20 Force, Marine Corps, and Coast Guard. 

21 (b) VETERANS’ PREFERENCES.—This Act does not re22 peal or modify any Federal, State, territorial, or local law 

23 creating a special right or preference concerning employ24 ment for a veteran. 
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1 SEC. 11. CONSTRUCTION. 

2 (a) EMPLOYER RULES AND POLICIES.—Nothing in 

3 this Act shall be construed to prohibit a covered entity from 

4 enforcing rules and policies, if the rules or policies are de5 signed for, and uniformly applied to, all individuals re6 gardless of sexual orientation. 

7 (b) ASSOCIATION.—Nothing in this Act shall be con8 strued to prohibit any association, or infringe upon any 

9 right of association, guaranteed by the first amendment to 

10 the Constitution, of any nonprofit, voluntary membership 

11 organization. 

12 SEC. 12. ENFORCEMENT. 

13 (a) ENFORCEMENT POWERS.—With respect to the ad14 ministration and enforcement of this Act in the case of a 

15 claim alleged by an individual for a violation of this Act—

16 (1) the Commission shall have the same powers 

17 as the Commission has to administer and enforce—

18 (A) title VII of the Civil Rights Act of 1964 

19 (42 U.S.C. 2000e et seq.); or

20 (B) sections 302 and 304 of the Government 

21 Employee Rights Act of 1991 (2 U.S.C. 1202 

22 and 1220); 

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

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

25 Government Employee Rights Act of 1991 (2 U.S.C. 

26 1202(a)(1)), respectively;
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1 (2) the Librarian of Congress shall have the same 

2 powers as the Librarian of Congress has to admin3 ister and enforce title VII of the Civil Rights Act of 

4 1964 (42 U.S.C. 2000e et seq.) in the case of a claim 

5 alleged by such individual for a violation of such 

6 title; 

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

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

9 1301)) shall have the same powers as the Board has 

10 to administer and enforce the Congressional Account11 ability Act of 1995 (2 U.S.C. 1301 et seq.) in the case 

12 of a claim alleged by such individual for a violation 

13 of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)); 

14 (4) the Attorney General shall have the same 

15 powers as the Attorney General has to administer and 

16 enforce—

17 (A) title VII of the Civil Rights Act of 1964 

18 (42 U.S.C. 2000e et seq.); or 

19 (B) sections 302 and 304 of the Government 

20 Employee Rights Act of 1991 (2 U.S.C. 1202 

21 and 1220); 

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

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

24 Government Employee Rights Act of 1991 (2 U.S.C. 

25 1202(a)(1)), respectively; 
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1 (5) the President, the Commission, and the Merit 

2 Systems Protection Board shall have the same powers 

3 as the President, the Commission, and the Board, re4 spectively, have to administer and enforce chapter 5 

5 of title 3, United States Code, in the case of a claim 

6 alleged by such individual for a violation of section 

7 411 of such title; 

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

9 same jurisdiction and powers as the court has to en10 force—

11 (A) title VII of the Civil Rights Act of 1964 

12 (42 U.S.C. 2000e et seq.) in the case of a claim 

13 alleged by such individual for a violation of such 

14 title; 

15 (B) sections 302 and 304 of the Government 

16 Employee Rights Act of 1991 (2 U.S.C. 1202 

17 and 1220) in the case of a claim alleged by such 

18 individual for a violation of section 302(a)(1) of 

19 such Act (2 U.S.C. 1202(a)(1)); 

20 (C) the Congressional Accountability Act of 

21 1995 (2 U.S.C. 1301 et seq.) in the case of a 

22 claim alleged by such individual for a violation 

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

24 1311(a)(1)); and 
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1 (D) chapter 5 of title 3, United States Code, 

2 in the case of a claim alleged by such individual 

3 for a violation of section 411 of such title. 

4 (b) PROCEDURES AND REMEDIES.—The procedures 

5 and remedies applicable to a claim alleged by an individual 

6 for a violation of this Act are—

7 (1) the procedures and remedies applicable for a 

8 violation of title VII of the Civil Rights Act of 1964 

9 (42 U.S.C. 2000e et seq.) in the case of a claim al10 leged by such individual for a violation of such title; 

11 (2) the procedures and remedies applicable for a 

12 violation of section 302(a)(1) of the Government Em13 ployee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) in 

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

15 violation of such section;

16 (3) the procedures and remedies applicable for a 

17 violation of section 201(a)(1) of the Congressional Ac18 countability Act of 1995 (2 U.S.C. 1311(a)(1)) in the 

19 case of a claim alleged by such individual for a viola20 tion of such section; and 

21 (4) the procedures and remedies applicable for a 

22 violation of section 411 of title 3, United States Code, 

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

24 a violation of such section. 
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1 (c) OTHER APPLICABLE PROVISIONS.—With respect to 

2 a claim alleged by a covered employee (as defined in section 

3 101 of the Congressional Accountability Act of 1995 (2 

4 U.S.C. 1301)) for a violation of this Act, title III of the 

5 Congressional Accountability Act of 1995 (2 U.S.C. 1381 

6 et seq.) shall apply in the same manner as such title applies 

7 with respect to a claim alleged by such a covered employee 

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

9 1311(a)(1)).

10 (d) PROHIBITION OF AFFIRMATIVE ACTION.—Notwith11 standing any other provision of this section, affirmative ac12 tion for a violation of this Act may not be imposed. Nothing 

13 in this section shall prevent the granting of relief to any 

14 individual who suffers a violation of such individual’s 

15 rights provided in this Act. 

16 SEC. 13. STATE AND FEDERAL IMMUNITY. 

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

18 under the 11th amendment to the Constitution from a suit 

19 described in subsection (b) and brought in a Federal court 

20 of competent jurisdiction for a violation of this Act. 

21 (b) REMEDIES FOR STATE EMPLOYEES.—

22 (1) IN GENERAL.—

23 (A) WAIVER.—A State’s receipt or use of 

24 Federal financial assistance for any program or 

25 activity of a State shall constitute a waiver of 
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1 sovereign immunity, under the 11th amendment 

2 to the Constitution or otherwise, to a suit 

3 brought by an employee or applicant for employ4 ment of that program or activity under this Act 

5 for a remedy authorized under subsection (c). 

6 (B) DEFINITION.—In this paragraph, the 

7 term ‘‘program or activity’’ has the meaning 

8 given the term in section 606 of the Civil Rights 

9 Act of 1964 (42 U.S.C. 2000d–4a). 

10 (2) OFFICIALS.—An official of a State may be 

11 sued in the official capacity of the official by any em12 ployee or applicant for employment who has complied 

13 with the applicable procedures of section 12, for equi14 table relief that is authorized under this Act. In such 

15 a suit the court may award to the prevailing party 

16 those costs authorized by section 722 of the Revised 

17 Statutes (42 U.S.C. 1988). 

18 (3) EFFECTIVE DATE.—With respect to a par19 ticular program or activity, paragraphs (1) and (2) 

20 apply to conduct occurring on or after the day, after 

21 the date of enactment of this Act, on which a State 

22 first receives or uses Federal financial assistance for 

23 that program or activity. 

24 (c) REMEDIES AGAINST THE UNITED STATES AND

25 THE STATES.—Notwithstanding any other provision of this
34

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1 Act, in an action or administrative proceeding against the 

2 United States or a State for a violation of this Act, remedies 

3 (including remedies at law and in equity, and interest) are 

4 available for the violation to the same extent as the remedies 

5 are available for a violation of title VII of the Civil Rights 

6 Act of 1964 (42 U.S.C. 2000e et seq.) by a private entity, 

7 except that—

8 (1) punitive damages are not available; and 

9 (2) compensatory damages are available to the 

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

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

12 SEC. 14. ATTORNEYS’ FEES. 

13 Notwithstanding any other provision of this Act, in 

14 an action or administrative proceeding for a violation of 

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

16 paragraph (4) of such section), in the discretion of the enti17 ty, may allow the prevailing party, other than the Commis18 sion or the United States, a reasonable attorney’s fee 

19 (including expert fees) as part of the costs. The Commission 

20 and the United States shall be liable for the costs to the 

21 same extent as a private person. 

22 SEC. 15. POSTING NOTICES. 

23 A covered entity who is required to post notices de24 scribed in section 711 of the Civil Rights Act of 1964 (42 

25 U.S.C. 2000e–10) shall post notices for employees, appli-
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1 cants for employment, and members, to whom the provi2 sions specified in section 12(b) apply, that describe the ap3 plicable provisions of this Act in the manner prescribed by, 

4 and subject to the penalty provided under, section 711 of 

5 the Civil Rights Act of 1964. 

6 SEC. 16. REGULATIONS. 

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

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

9 issue regulations to carry out this Act. 

10 (b) LIBRARIAN OF CONGRESS.—The Librarian of Con11 gress shall have authority to issue regulations to carry out 

12 this Act with respect to employees and applicants for em13 ployment of the Library of Congress. 

14 (c) BOARD.—The Board referred to in section 12(a)(3) 

15 shall have authority to issue regulations to carry out this 

16 Act, in accordance with section 304 of the Congressional 

17 Accountability Act of 1995 (2 U.S.C. 1384), with respect 

18 to covered employees, as defined in section 101 of such Act 

19 (2 U.S.C. 1301). 

20 (d) PRESIDENT.—The President shall have authority 

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

22 covered employees, as defined in section 411(c) of title 3, 

23 United States Code. 
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1 SEC. 17. RELATIONSHIP TO OTHER LAWS. 

2 This Act shall not invalidate or limit the rights, rem3 edies, or procedures available to an individual claiming 

4 discrimination prohibited under any other Federal law or 

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

6 SEC. 18. SEVERABILITY. 

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

8 provision to any person or circumstance, is held to be in9 valid, the remainder of this Act and the application of the 

10 provision to any other person or circumstance shall not be 

11 affected by the invalidity. 

12 SEC. 19. EFFECTIVE DATE. 

13 This Act shall take effect 60 days after the date of en14 actment of this Act and shall not apply to conduct occur15 ring before the effective date. 

Calendar No. 763

107TH CONGRESS 

2D SESSION S. 1284

[Report No. 107–341] 

A BILL

To prohibit employment discrimination on the basis 

of sexual orientation. 

NOVEMBER 15, 2002

Reported with an amendment