II 

112TH CONGRESS 

1ST SESSION S. 1471 

To prohibit discrimination in employment on the basis of an individual’s 

status or history of unemployment. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 2, 2011 

Mr. BLUMENTHAL (for himself, Mrs. GILLIBRAND, and Mr. BROWN of Ohio) 

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

Committee on Health, Education, Labor, and Pensions 

A BILL 

To prohibit discrimination in employment on the basis of 

an individual’s status or history of unemployment. 

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 ‘‘Fair Employment Op5 portunity Act of 2011’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds that denial of em8 ployment opportunities to individuals because they are or 

9 have been unemployed is discriminatory and burdens com10 merce by— 


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1 (1) reducing personal consumption and under2 mining economic stability and growth; 

3 (2) squandering human capital essential to the 

4 Nation’s economic vibrancy and growth; 

5 (3) increasing demands for Federal and State 

6 unemployment insurance benefits, reducing trust 

7 fund assets, and leading to higher payroll taxes for 

8 employers, cuts in benefits for jobless workers, or 

9 both; 

10 (4) imposing additional burdens on publicly 

11 funded health and welfare programs; and 

12 (5) depressing income, property, and other tax 

13 revenues that the Federal Government, States, and 

14 localities rely on to support operations and institu15 tions essential to commerce. 

16 (b) PURPOSES.—The purposes of this Act are— 

17 (1) to prohibit consideration of an individual’s 

18 status as unemployed in considering applicants for, 

19 screening for, or hiring for positions, except where 

20 a requirement related to employment status is a 

21 bona fide occupational qualification reasonably nec22 essary to successful performance in the job; and 

23 (2) to eliminate the burdens imposed on com24 merce due to the exclusion of such individuals from 

25 employment. 


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1 TITLE I—FAIR EMPLOYMENT 

2 FOR NONFEDERAL EMPLOYEES 

3 SEC. 101. DEFINITIONS. 

4 As used in this Act— 

5 (1) the term ‘‘affected individual’’ means any 

6 person who was not considered for employment, or 

7 was not hired by an employer, as an employee, be8 cause of the person’s current employment status 

9 (current as of the date of the decision concerning 

10 consideration or hiring), or any person who was not 

11 considered, screened, or referred for an employment 

12 opportunity, as an employee, by an employment 

13 agency because of the person’s current employment 

14 status (current as of the date of the decision con15 cerning consideration, screening, or referral); 

16 (2) the term ‘‘employee’’ has the meaning given 

17 the term in section 3 of the Fair Labor Standards 

18 Act of 1938 (29 U.S.C. 203), but shall not include 

19 an employee covered under subchapter V of chapter 

20 63 of title 5, United States Code; 

21 (3) the term ‘‘employer’’— 

22 (A) means any person engaged in com23 merce or any industry or activity affecting com24 merce who has 15 or more employees for each 

25 working day in each of 20 or more calendar 


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1 weeks in the current or preceding calendar 

2 year; 

3 (B) includes— 

4 (i) any person who acts, directly or in5 directly, in the interest of an employer de6 scribed in subparagraph (A) with respect 

7 to employing individuals to work for the 

8 employer; and 

9 (ii) any successor in interest of an em10 ployer described in subparagraph (A); 

11 (C) includes any public agency, as defined 

12 in section 3 of the Fair Labor Standards Act 

13 of 1938 (29 U.S.C. 203), but shall not include 

14 an employing agency covered under subchapter 

15 V of chapter 63 of title 5, United States Code; 

16 and 

17 (D) includes the Government Printing Of18 fice and the Library of Congress; 

19 (4) the term ‘‘employment agency’’ means any 

20 person regularly undertaking with or without com21 pensation to procure employees for an employer or 

22 to procure for individuals opportunities to work as 

23 employees for an employer and includes an agent of 

24 such a person, and includes any person who main25 tains an Internet website that publishes advertiseVerDate Mar 15 2010 04:00 Aug 04, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.IS S1471

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1 ments or announcements of openings in jobs for em2 ployees; 

3 (5) the term ‘‘Secretary’’ means the Secretary 

4 of Labor; and 

5 (6) the term ‘‘status as unemployed’’, used with 

6 respect to an individual, means the individual’s 

7 present or past unemployment, regardless of the 

8 length of time such individual was unemployed. 

9 SEC. 102. PROHIBITED ACTS. 

10 (a) EMPLOYERS.—It shall be an unlawful practice for 

11 an employer to— 

12 (1) fail or refuse to consider for employment, or 

13 fail or refuse to hire, an individual as an employee, 

14 because of the individual’s status as unemployed; 

15 (2) publish in print, on the Internet, or in any 

16 other medium, an advertisement or announcement 

17 for an employee for any job that includes— 

18 (A) any provision stating or indicating that 

19 an individual’s status as unemployed disquali20 fies the individual for a job; and 

21 (B) any provision stating or indicating that 

22 an employer will not consider or hire an indi23 vidual for employment based on that individ24 ual’s status as unemployed; and 


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1 (3) direct or request that an employment agen2 cy take an individual’s status as unemployed into ac3 count in considering, screening, or referring appli4 cants for employment as an employee. 

5 (b) EMPLOYMENT AGENCIES.—It shall be an unlaw6 ful practice for an employment agency to— 

7 (1) fail or refuse to consider, screen, or refer an 

8 individual for employment as an employee based on 

9 the individual’s status as unemployed; 

10 (2) limit, segregate, or classify individuals in 

11 any manner that may limit their access to informa12 tion about jobs, or consideration, screening, or refer13 ral for jobs, as employees, because of their status as 

14 unemployed; or 

15 (3) publish, in print or on the Internet or in 

16 any other medium, an advertisement or announce17 ment for any vacancy in a job, as an employee, that 

18 includes— 

19 (A) any provision stating or indicating that 

20 an individual’s status as unemployed disquali21 fies the individual for a job; and 

22 (B) any provision stating or indicating that 

23 an employer will not consider or hire an indi24 vidual for employment based on that individ25 ual’s status as unemployed. 


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1 (c) INTERFERENCE WITH RIGHTS, PROCEEDINGS OR

2 INQUIRIES.—It shall be unlawful for any employer or em3 ployment agency to— 

4 (1) interfere with, restrain, or deny the exercise 

5 of or the attempt to exercise, any right provided 

6 under this Act; or 

7 (2) fail or refuse to hire, to discharge, or in any 

8 other manner to discriminate against any individual, 

9 as an employee, because such individual— 

10 (A) opposed any practice made unlawful by 

11 this Act; 

12 (B) has filed any charge, or has instituted 

13 or caused to be instituted any proceeding, 

14 under or related to this Act; 

15 (C) has given, or is about to give, any in16 formation in connection with any inquiry or 

17 proceeding relating to any right provided under 

18 this Act; or 

19 (D) has testified, or is about to testify, in 

20 any inquiry or proceeding relating to any right 

21 provided under this Act. 

22 (d) BONA FIDE OCCUPATIONAL QUALIFICATION.— 

23 Notwithstanding any other provision of this Act, consider24 ation by an employer or employment agency of an individ25 ual’s status as unemployed shall not be an unlawful emVerDate Mar 15 2010 04:00 Aug 04, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.IS S1471

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1 ployment practice under this Act if an individual’s employ2 ment in a similar or related job for a period of time rea3 sonably proximate to the hiring of such individual is a 

4 bona fide occupational qualification reasonably necessary 

5 to successful performance in the job that is being filled. 

6 SEC. 103. ENFORCEMENT. 

7 (a) CIVIL ACTION BY INDIVIDUAL.— 

8 (1) LIABILITY FOR EMPLOYERS AND EMPLOY9 MENT AGENCIES.—Any employer or employment 

10 agency that violates subsection (a) or (b) of section 

11 4 shall be liable to any affected individual— 

12 (A) for actual damages equal to— 

13 (i) the amount of— 

14 (I) any wages, salary, employ15 ment benefits, or other compensation 

16 denied or lost to such individual by 

17 reason of the violation; or 

18 (II) in a case in which wages, 

19 salary, employment benefits, or other 

20 compensation have not been denied or 

21 lost to the individual, any actual mon22 etary losses sustained by the indi23 vidual as a direct result of the viola24 tion or an amount of $1,000 per viola25 tion per day, whichever is greater; 


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1 (ii) the interest on the amount de2 scribed in clause (i) calculated at the pre3 vailing rate; and 

4 (iii) an additional amount as liq5 uidated damages equal to the sum of the 

6 amount described in clause (i) and the in7 terest described in clause (ii), and any pu8 nitive damages, except that if an employer 

9 or employment agency that has violated 

10 section 4 proves to the satisfaction of the 

11 court that the act or omission that violated 

12 section 4 was in good faith and that the 

13 employer had reasonable grounds for be14 lieving that the act or omission was not a 

15 violation of section 4, such court may, in 

16 its discretion, reduce the amount of the li17 ability to the amount and interest deter18 mined under clauses (i) and (ii), respec19 tively; and 

20 (B) for such equitable relief as may be ap21 propriate, including employment. 

22 (2) RIGHT OF ACTION.—An action to recover 

23 the damages or equitable relief prescribed in para24 graph (1) may be maintained against any employer 

25 or employment agency in any Federal or State court 


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1 of competent jurisdiction by any 1 or more persons 

2 for and on behalf of— 

3 (A) the affected individual; or 

4 (B) the affected individual and other indi5 viduals similarly situated. 

6 (3) FEES AND COSTS.—The court in such an 

7 action shall, in addition to any judgment awarded to 

8 the plaintiff, allow a reasonable attorney’s fee, rea9 sonable expert witness fees, and other costs of the 

10 action to be paid by the defendant. 

11 (4) LIMITATIONS.—The right provided by para12 graph (2) to bring an action by or on behalf of any 

13 affected individual shall terminate— 

14 (A) on the filing of a complaint by the Sec15 retary in an action under subsection (d) in 

16 which restraint is sought of any violation of sec17 tion 4; or 

18 (B) on the filing of a complaint by the Sec19 retary in an action under subsection (b) in 

20 which a recovery is sought of the damages de21 scribed in paragraph (1)(A) owing to an af22 fected individual by an employer or employment 

23 agency liable under paragraph (1), 


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1 unless the action described in subparagraph (A) or 

2 (B) is dismissed without prejudice on motion of the 

3 Secretary. 

4 (b) ACTION BY THE SECRETARY.— 

5 (1) ADMINISTRATIVE ACTION.—The Secretary 

6 shall receive, investigate, and attempt to resolve 

7 complaints of violations of section 4 in the same 

8 manner that the Secretary receives, investigates, and 

9 attempts to resolve complaints of violations of sec10 tions 6 and 7 of the Fair Labor Standards Act of 

11 1938 (29 U.S.C. 206 and 207). 

12 (2) CIVIL ACTION.—The Secretary may bring 

13 an action in any court of competent jurisdiction— 

14 (A) to enjoin violations of this title and 

15 seek other relief and necessary to prevent fu16 ture violations; 

17 (B) to recover— 

18 (i) the damages described in sub19 section (a)(1)(A); 

20 (ii) in the case of a violation of section 

21 4(c), a civil penalty of not less than $250 

22 per violation (in addition to any other re23 lief available under this subparagraph); or 

24 (iii) such other equitable relief as the 

25 court determines to be appropriate. 


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1 (3) SUMS RECOVERED.—Any sums recovered by 

2 the Secretary pursuant to paragraph (2)(B)(i) shall 

3 be held in a special deposit account and shall be 

4 paid, on order of the Secretary, directly to each af5 fected individual. Any such sums recovered pursuant 

6 to paragraph (2)(B)(i) that are not paid to an af7 fected individual because of inability to do so within 

8 a period of 3 years and any sums recovered pursu9 ant to paragraph (2)(B)(ii) shall be deposited into 

10 the Treasury of the United States as miscellaneous 

11 receipts. 

12 (c) LIMITATION.— 

13 (1) IN GENERAL.—Except as provided in para14 graph (2), an action under subsection (a) may be 

15 brought not later than 2 years after the date of the 

16 last event constituting the alleged violation for which 

17 the action is brought, except that the limitation pe18 riod for filing an action by an individual shall be 

19 tolled during the period during which the Secretary 

20 is considering a complaint against any defendant 

21 named in a complaint filed with the Secretary under 

22 subsection (b)(1). 

23 (2) WILLFUL VIOLATION.—In the case of such 

24 action brought for a willful violation of section 4, 

25 such action may be brought not later than 3 years 


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1 after the date of the last event constituting the al2 leged violation for which such action is brought, ex3 cept that the limitation period for filing an action by 

4 an individual shall be tolled during the period during 

5 which the Secretary is considering a complaint, 

6 against the defendant involved, that is filed with the 

7 Secretary under subsection (b)(1). 

8 (3) COMMENCEMENT.—In determining when an 

9 action is commenced by the Secretary under this 

10 section for the purposes of this subsection, it shall 

11 be considered to be commenced on the date when the 

12 Secretary files a complaint in a court of competent 

13 jurisdiction. 

14 (d) ACTION FOR INJUNCTION BY SECRETARY.—The 

15 district courts of the United States shall have jurisdiction, 

16 for cause shown, in an action brought by the Secretary— 

17 (1) to restrain violations of section 4; 

18 (2) to award such other equitable relief as may 

19 be appropriate, including employment; and 

20 (3) to award monetary damages. 

21 (e) SOLICITOR OF LABOR.—The Solicitor of Labor 

22 may appear for and represent the Secretary on any litiga23 tion brought under this section. 

24 (f) GOVERNMENT PRINTING OFFICE AND LIBRARY

25 OF CONGRESS.—With respect to the Government Printing 


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1 Office (acting as an employer or employment agency), and 

2 with respect to the Library of Congress (acting as an em3 ployer or employment agency), the authority of the Sec4 retary of Labor under this title shall be exercised respec5 tively by the Public Printer and the Librarian of Congress. 

6 TITLE II—FAIR EMPLOYMENT 

7 FOR FEDERAL EMPLOYEES 

8 SEC. 201. PROHIBITED ACTS. 

9 Title 5, United States Code, is amended by inserting 

10 after chapter 23 the following: 

11 ‘‘CHAPTER 25—PROHIBITION ON DIS12 CRIMINATION BASED ON EMPLOY13 MENT STATUS 

14 ‘‘§ 2501. Definitions 

15 ‘‘As used in this chapter— 

16 ‘‘(1) the term ‘affected individual’ means any 

17 person who was not considered for employment, or 

18 was not hired by an employing agency, as an em19 ployee, because of the person’s current employment 

20 status (current as of the date of the decision con21 cerning consideration or hiring), or any person who 

22 was not considered, screened, or referred for an em23 ployment opportunity, as an employee, by an em24 ployment agency because of the person’s current em25 ployment status (current as of the date of the deciVerDate Mar 15 2010 04:00 Aug 04, 2011 Jkt 099200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.IS S1471

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1 sion concerning consideration, screening, or refer2 ral); 

3 ‘‘(2) the term ‘employee’ means an individual 

4 described in section 6381(1)(A); 

5 ‘‘(3) the term ‘employing agency’ means an 

6 agency covered under subchapter V of chapter 63; 

7 ‘‘(4) the term ‘employment agency’ means any 

8 person regularly undertaking with or without com9 pensation to procure employees for an employing 

10 agency or to procure for individuals opportunities to 

11 work as employees for an employing agency and in12 cludes an agent of such a person, and includes any 

13 person who maintains an Internet website that pub14 lishes advertisements or announcements of openings 

15 in jobs for employees; 

16 ‘‘(5) the term ‘Secretary’ means the Secretary 

17 of Labor; and 

18 ‘‘(6) the term ‘status as unemployed’, used with 

19 respect to an individual, means the individual’s 

20 present or past unemployment, regardless of the 

21 length of time such individual was unemployed. 

22 ‘‘§ 2502. Prohibited acts 

23 ‘‘(a) It shall be an unlawful practice for an employing 

24 agency to— 


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1 ‘‘(1) fail or refuse to consider for employment, 

2 or fail or refuse to hire, an individual as an em3 ployee, because of the individual’s status as unem4 ployed; 

5 ‘‘(2) publish in print, on the Internet, or in any 

6 other medium, an advertisement or announcement 

7 for an employee for any job that includes— 

8 ‘‘(A) any provision stating or indicating 

9 that an individual’s status as unemployed dis10 qualifies the individual for a job; and 

11 ‘‘(B) any provision stating or indicating 

12 that an employing agency will not consider or 

13 hire an individual for employment based on that 

14 individual’s status as unemployed; and 

15 ‘‘(3) direct or request that an employment 

16 agency take an individual’s status as unemployed 

17 into account in considering, screening, or referring 

18 applicants for employment as an employee. 

19 ‘‘(b) It shall be an unlawful practice for an employ20 ment agency to— 

21 ‘‘(1) fail or refuse to consider, screen, or refer 

22 an individual for employment as an employee based 

23 on the individual’s status as unemployed; 

24 ‘‘(2) limit, segregate, or classify individuals in 

25 any manner that may limit their access to informaVerDate Mar 15 2010 04:00 Aug 04, 2011 Jkt 099200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.IS S1471

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1 tion about jobs, or consideration, screening, or refer2 ral for jobs, as employees, because of their status as 

3 unemployed; or 

4 ‘‘(3) publish, in print or on the Internet or in 

5 any other medium, an advertisement or announce6 ment for any vacancy in a job, as an employee, that 

7 includes— 

8 ‘‘(A) any provision stating or indicating 

9 that an individual’s status as unemployed dis10 qualifies the individual for a job; and 

11 ‘‘(B) any provision stating or indicating 

12 that an employing agency will not consider or 

13 hire an individual for employment based on that 

14 individual’s status as unemployed. 

15 ‘‘(c) It shall be unlawful for any employing agency 

16 or employment agency to— 

17 ‘‘(1) interfere with, restrain, or deny the exer18 cise of or the attempt to exercise, any right provided 

19 under this chapter; or 

20 ‘‘(2) fail or refuse to hire, to discharge, or in 

21 any other manner to discriminate against any indi22 vidual, as an employee, because such individual— 

23 ‘‘(A) opposed any practice made unlawful 

24 by this chapter; 


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1 ‘‘(B) has filed any charge, or has insti2 tuted or caused to be instituted any proceeding, 

3 under or related to this chapter; 

4 ‘‘(C) has given, or is about to give, any in5 formation in connection with any inquiry or 

6 proceeding relating to any right provided under 

7 this chapter; or 

8 ‘‘(D) has testified, or is about to testify, in 

9 any inquiry or proceeding relating to any right 

10 provided under this chapter. 

11 ‘‘(d) Notwithstanding any other provision of this 

12 chapter, consideration by an employing agency or employ13 ment agency of an individual’s status as unemployed shall 

14 not be an unlawful employment practice under this chap15 ter if an individual’s employment in a similar or related 

16 job for a period of time reasonably proximate to the hiring 

17 of such individual is a bona fide occupational qualification 

18 reasonably necessary to successful performance in the job 

19 that is being filled. 

20 ‘‘§ 2503. Enforcement 

21 ‘‘The Office of Personnel Management shall prescribe 

22 regulations necessary for the administration of this chap23 ter. The regulations prescribed under this chapter shall, 

24 to the extent appropriate, be consistent with the regulaVerDate Mar 15 2010 04:00 Aug 04, 2011 Jkt 099200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S1471.IS S1471

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1 tions prescribed by the Secretary of Labor to carry out 

2 title I of the Fair Employment Opportunity Act of 2011.’’. 

Æ 


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