II

107TH CONGRESS

1ST SESSION S. 1284

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, and Mr. WYDEN) 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 2001’’.
2

•S 1284 IS

1 SEC. 2. PURPOSES.

2 The purposes of this Act are—

3 (1) to provide a comprehensive Federal prohibi4 tion of employment discrimination on the basis of

5 sexual orientation;

6 (2) to provide meaningful and effective rem7 edies for employment discrimination on the basis of

8 sexual orientation; and

9 (3) to invoke congressional powers, including

10 the powers to enforce the 14th amendment to the

11 Constitution, and to regulate interstate commerce

12 and provide for the general welfare pursuant to sec13 tion 8 of article I of the Constitution, in order to

14 prohibit employment discrimination on the basis of

15 sexual orientation.

16 SEC. 3. DEFINITIONS.

17 In this Act:

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

19 means the Equal Employment Opportunity Commis20 sion.

21 (2) COVERED ENTITY.—The term ‘‘covered en22 tity’’ means an employer, employment agency, labor

23 organization, or joint labor-management committee.

24 (3) EMPLOYEE.—

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

26 means—
3

•S 1284 IS

1 (i) an employee (as defined in section

2 701(f) of the Civil Rights Act of 1964 (42

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

4 (ii) a Presidential appointee or State

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

6 Government Employee Rights Act of 1991

7 (2 U.S.C. 1202(a)(1)) applies;

8 (iii) a covered employee, as defined in

9 section 101 of the Congressional Account10 ability Act of 1995 (2 U.S.C. 1301) or sec11 tion 411(c) of title 3, United States Code;

12 or

13 (iv) an employee or applicant to which

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

15 1964 (42 U.S.C. 2000e–16(a)) applies.

16 (B) EXCEPTION.—The term does not in17 clude a volunteer who receives no compensation.

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

19 means—

20 (A) a person engaged in an industry affect21 ing commerce (as defined in section 701(h) of

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

23 2000e(h)) who has 15 or more employees (as

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

25 paragraph (3)) for each working day in each of
4

•S 1284 IS

1 20 or more calendar weeks in the current or

2 preceding calendar year, and any agent of such

3 a person, but does not include a bona fide pri4 vate membership club (other than a labor orga5 nization) that is exempt from taxation under

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

7 1986;

8 (B) an employing authority to which sec9 tion 302(a)(1) of the Government Employee

10 Rights Act of 1991 applies;

11 (C) an employing office, as defined in sec12 tion 101 of the Congressional Accountability

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

14 States Code; or

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

16 the Civil Rights Act of 1964 applies.

17 (5) EMPLOYMENT AGENCY.—The term ‘‘em18 ployment agency’’ has the meaning given the term in

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

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

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

22 organization’’ has the meaning given the term in

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

24 U.S.C. 2000e(d)).
5

•S 1284 IS

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

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

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

4 (8) RELIGIOUS ORGANIZATION.—The term ‘‘re5 ligious organization’’ means—

6 (A) a religious corporation, association, or

7 society; or

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

9 educational institution or institution of learn10 ing, if—

11 (i) the institution is in whole or sub12 stantial part controlled, managed, owned,

13 or supported by a religion, religious cor14 poration, association, or society; or

15 (ii) the curriculum of the institution is

16 directed toward the propagation of a reli17 gion.

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

19 orientation’’ means homosexuality, bisexuality, or

20 heterosexuality, whether the orientation is real or

21 perceived.

22 (10) STATE.—The term ‘‘State’’ has the mean23 ing given the term in section 701(i) of the Civil

24 Rights Act of 1964 (42 U.S.C. 2000e(i)).
6

•S 1284 IS

1 SEC. 4. DISCRIMINATION PROHIBITED.

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

3 employment practice for an employer—

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

5 individual, or otherwise to discriminate against any

6 individual with respect to the compensation, terms,

7 conditions, or privileges of employment of the indi8 vidual, because of such individual’s sexual orienta9 tion; or

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

11 or applicants for employment of the employer in any

12 way that would deprive or tend to deprive any indi13 vidual of employment or otherwise adversely affect

14 the status of the individual as an employee, because

15 of such individual’s sexual orientation.

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

17 an unlawful employment practice for an employment agen18 cy to fail or refuse to refer for employment, or otherwise

19 to discriminate against, any individual because of the sex20 ual orientation of the individual or to classify or refer for

21 employment any individual on the basis of the sexual ori22 entation of the individual.

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

24 an unlawful employment practice for a labor

25 organization—
7

•S 1284 IS

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

2 or otherwise to discriminate against, any individual

3 because of the sexual orientation of the individual;

4 (2) to limit, segregate, or classify its member5 ship or applicants for membership, or to classify or

6 fail or refuse to refer for employment any individual,

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

8 individual of employment, or would limit such em9 ployment or otherwise adversely affect the status of

10 the individual as an employee or as an applicant for

11 employment, because of such individual’s sexual ori12 entation; or

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

14 discriminate against an individual in violation of this

15 section.

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

17 employment practice for any employer, labor organization,

18 or joint labor-management committee controlling appren19 ticeship or other training or retraining, including on-the20 job training programs, to discriminate against any indi21 vidual because of the sexual orientation of the individual

22 in admission to, or employment in, any program estab23 lished to provide apprenticeship or other training.

24 (e) ASSOCIATION.—An unlawful employment practice

25 described in any of subsections (a) through (d) shall be
8

•S 1284 IS

1 considered to include an action described in that sub2 section, taken against an individual based on the sexual

3 orientation of a person with whom the individual associ4 ates or has associated.

5 (f) DISPARATE IMPACT.—Notwithstanding any other

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

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

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

9 (42 U.S.C. 2000e–2(k)), on the basis of sexual orientation

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

11 SEC. 5. RETALIATION AND COERCION PROHIBITED.

12 (a) RETALIATION.—A covered entity shall not dis13 criminate against an individual because such individual

14 opposed any act or practice prohibited by this Act or be15 cause such individual made a charge, assisted, testified,

16 or participated in any manner in an investigation, pro17 ceeding, or hearing under this Act.

18 (b) COERCION.—A person shall not coerce, intimi19 date, threaten, or interfere with any individual in the exer20 cise or enjoyment of, or on account of such individual’s

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

22 exercise or enjoyment of, any right granted or protected

23 by this Act.
9

•S 1284 IS

1 SEC. 6. BENEFITS.

2 This Act does not apply to the provision of employee

3 benefits to an individual for the benefit of the domestic

4 partner of such individual.

5 SEC. 7. COLLECTION OF STATISTICS PROHIBITED.

6 The Commission shall not collect statistics on sexual

7 orientation from covered entities, or compel the collection

8 of such statistics by covered entities.

9 SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIB10 ITED.

11 (a) QUOTAS.—A covered entity shall not adopt or im12 plement a quota on the basis of sexual orientation.

13 (b) PREFERENTIAL TREATMENT.—A covered entity

14 shall not give preferential treatment to an individual on

15 the basis of sexual orientation.

16 (c) ORDERS AND CONSENT DECREES.—Notwith17 standing any other provision of this Act, an order or con18 sent decree entered for a violation of this Act may not

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

20 based on sexual orientation.

21 SEC. 9. RELIGIOUS EXEMPTION.

22 This Act shall not apply to a religious organization.

23 SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED

24 FORCES; VETERANS’ PREFERENCES.

25 (a) ARMED FORCES.—
10

•S 1284 IS

1 (1) EMPLOYMENT.—In this Act, the term ‘‘em2 ployment’’ does not apply to the relationship be3 tween the United States and members of the Armed

4 Forces.

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

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

7 Force, Marine Corps, and Coast Guard.

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

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

10 law creating a special right or preference concerning em11 ployment for a veteran.

12 SEC. 11. CONSTRUCTION.

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

14 shall be construed to prohibit a covered entity from enforc15 ing rules regarding nonprivate sexual conduct, if the rules

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

17 individuals regardless of sexual orientation.

18 (b) ASSOCIATION.—Nothing in this Act shall be con19 strued to prohibit any association, or infringe upon any

20 right of association, guaranteed by the first amendment

21 to the Constitution, of any nonprofit, voluntary member22 ship organization.

23 SEC. 12. ENFORCEMENT.

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

25 administration and enforcement of this Act in the case of
11

•S 1284 IS

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

2 Act—

3 (1) the Commission shall have the same powers

4 as the Commission has to administer and enforce—

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

6 1964 (42 U.S.C. 2000e et seq.); or

7 (B) sections 302 and 304 of the Govern8 ment Employee Rights Act of 1991 (2 U.S.C.

9 1202 and 1220);

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

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

12 the Government Employee Rights Act of 1991 (2

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

14 (2) the Librarian of Congress shall have the

15 same powers as the Librarian of Congress has to ad16 minister and enforce title VII of the Civil Rights Act

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

18 claim alleged by such individual for a violation of

19 such title;

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

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

22 1301)) shall have the same powers as the Board has

23 to administer and enforce the Congressional Ac24 countability Act of 1995 (2 U.S.C. 1301 et seq.) in

25 the case of a claim alleged by such individual for a
12

•S 1284 IS

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

2 1311(a)(1));

3 (4) the Attorney General shall have the same

4 powers as the Attorney General has to administer

5 and enforce—

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

7 1964 (42 U.S.C. 2000e et seq.); or

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

10 1202 and 1220);

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

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

13 the Government Employee Rights Act of 1991 (2

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

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

16 Merit Systems Protection Board shall have the same

17 powers as the President, the Commission, and the

18 Board, respectively, have to administer and enforce

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

20 of a claim alleged by such individual for a violation

21 of section 411 of such title;

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

23 same jurisdiction and powers as the court has to

24 enforce—
13

•S 1284 IS

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

2 1964 (42 U.S.C. 2000e et seq.) in the case of

3 a claim alleged by such individual for a viola4 tion of such title;

5 (B) sections 302 and 304 of the Govern6 ment Employee Rights Act of 1991 (2 U.S.C.

7 1202 and 1220) in the case of a claim alleged

8 by such individual for a violation of section

9 302(a)(1) of such Act (2 U.S.C. 1202(a)(1));

10 (C) the Congressional Accountability Act

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

12 a claim alleged by such individual for a viola13 tion of section 201(a)(1) of such Act (2 U.S.C.

14 1311(a)(1)); and

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

16 Code, in the case of a claim alleged by such in17 dividual for a violation of section 411 of such

18 title.

19 (b) PROCEDURES AND REMEDIES.—The procedures

20 and remedies applicable to a claim alleged by an individual

21 for a violation of this Act are—

22 (1) the procedures and remedies applicable for

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

24 1964 (42 U.S.C. 2000e et seq.) in the case of a
14

•S 1284 IS

1 claim alleged by such individual for a violation of

2 such title;

3 (2) the procedures and remedies applicable for

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

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

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

7 a violation of such section;

8 (3) the procedures and remedies applicable for

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

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

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

12 violation of such section; and

13 (4) the procedures and remedies applicable for

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

15 Code, in the case of a claim alleged by such indi16 vidual for a violation of such section.

17 (c) OTHER APPLICABLE PROVISIONS.—With respect

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

19 section 101 of the Congressional Accountability Act of

20 1995 (2 U.S.C. 1301)) for a violation of this Act, title

21 III of the Congressional Accountability Act of 1995 (2

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

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

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

25 such Act (2 U.S.C. 1311(a)(1)).
15

•S 1284 IS

1 (d) PROHIBITION OF AFFIRMATIVE ACTION.—Not2 withstanding any other provision of this section, affirma3 tive action for a violation of this Act may not be imposed.

4 Nothing in this section shall prevent the granting of relief

5 to any individual who suffers a violation of such individ6 ual’s rights provided in this Act.

7 SEC. 13. STATE AND FEDERAL IMMUNITY.

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

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

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

11 of competent jurisdiction for a violation of this Act.

12 (b) REMEDIES FOR STATE EMPLOYEES.—

13 (1) IN GENERAL.—

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

15 Federal financial assistance for any program or

16 activity of a State shall constitute a waiver of

17 sovereign immunity, under the 11th amendment

18 to the Constitution or otherwise, to a suit

19 brought by an employee or applicant for em20 ployment of that program or activity under this

21 Act for a remedy authorized under subsection

22 (c).

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

24 term ‘‘program or activity’’ has the meaning
16

•S 1284 IS

1 given the term in section 606 of the Civil

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

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

4 sued in the official capacity of the official by any

5 employee or applicant for employment who has com6 plied with the applicable procedures of section 12,

7 for equitable relief that is authorized under this Act.

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

9 party those costs authorized by section 722 of the

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

11 (3) EFFECTIVE DATE.—With respect to a par12 ticular program or activity, paragraphs (1) and (2)

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

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

15 first receives or uses Federal financial assistance for

16 that program or activity.

17 (c) REMEDIES AGAINST THE UNITED STATES AND

18 THE STATES.—Notwithstanding any other provision of

19 this Act, in an action or administrative proceeding against

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

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

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

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

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

25 by a private entity, except that—
17

•S 1284 IS

1 (1) punitive damages are not available; and

2 (2) compensatory damages are available to the

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

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

5 SEC. 14. ATTORNEYS’ FEES.

6 Notwithstanding any other provision of this Act, in

7 an action or administrative proceeding for a violation of

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

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

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

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

12 fee (including expert fees) as part of the costs. The Com13 mission and the United States shall be liable for the costs

14 to the same extent as a private person.

15 SEC. 15. POSTING NOTICES.

16 A covered entity who is required to post notices de17 scribed in section 711 of the Civil Rights Act of 1964 (42

18 U.S.C. 2000e–10) shall post notices for employees, appli19 cants for employment, and members, to whom the provi20 sions specified in section 12(b) apply, that describe the

21 applicable provisions of this Act in the manner prescribed

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

23 of the Civil Rights Act of 1964.
18

•S 1284 IS

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-
19

•S 1284 IS

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.

Æ