II 

113TH CONGRESS 

1ST SESSION S. 1281 

To prohibit discrimination on the basis of military service, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 11, 2013 

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

referred to the Committee on Veterans’ Affairs 

A BILL 

To prohibit discrimination on the basis of military service, 

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 ‘‘Veterans and 

5 Servicemembers Employment Rights and Housing Act of 

6 2013’’. 

7 SEC. 2. DISCRIMINATION ON THE BASIS OF MILITARY 

8 SERVICE. 

9 (a) DEFINITIONS.—In this section: 


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1 (1) CIVIL RIGHTS DEFINITIONS.—The terms 

2 ‘‘complaining party’’, ‘‘demonstrates’’, ‘‘employee’’, 

3 ‘‘employer’’, ‘‘employment agency’’, ‘‘labor organiza4 tion’’, ‘‘person’’, ‘‘respondent’’, and ‘‘State’’ have the 

5 meanings given the terms in section 701 of the Civil 

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

7 (2) MEMBER OF THE UNIFORMED SERVICES.— 

8 The term ‘‘member of the uniformed services’’ 

9 means an individual who— 

10 (A) is a member of— 

11 (i) the uniformed services (as defined 

12 in section 101 of title 10, United States 

13 Code); or 

14 (ii) the National Guard in State sta15 tus under title 32, United States Code; or 

16 (B) was discharged or released from serv17 ice in the uniformed services (as so defined) or 

18 the National Guard in such status under condi19 tions other than dishonorable. 

20 (3) MILITARY SERVICE.—The term ‘‘military 

21 service’’ means status as a member of the uniformed 

22 services. 

23 (b) 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 individual’s compensa4 tion, terms, conditions, or privileges of employment, 

5 because of such individual’s military service; or 

6 (2) to limit, segregate, or classify the employ7 er’s employees or applicants for employment in any 

8 way which would deprive or tend to deprive any indi9 vidual of employment opportunities or otherwise ad10 versely affect the individual’s status as an employee, 

11 because of such individual’s military service. 

12 (c) EMPLOYMENT AGENCY PRACTICES.—It shall be 

13 an unlawful employment practice for an employment agen14 cy to fail or refuse to refer for employment, or otherwise 

15 discriminate against, any individual because of the individ16 ual’s military service, or to classify or refer for employ17 ment any individual on the basis of the individual’s mili18 tary service. 

19 (d) LABOR ORGANIZATION PRACTICES.—It shall be 

20 an unlawful employment practice for a labor organiza21 tion— 

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

23 or otherwise to discriminate against, any individual 

24 because of the individual’s military service; 


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1 (2) to limit, segregate, or classify its member2 ship or applicants for membership, or to classify or 

3 fail or refuse to refer for employment any individual, 

4 in any way which would deprive or tend to deprive 

5 any individual of employment opportunities, or 

6 would limit such employment opportunities or other7 wise adversely affect the individual’s status as an 

8 employee or as an applicant for employment, be9 cause of such individual’s military service; or 

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

11 discriminate against an individual in violation of this 

12 section. 

13 (e) 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 individual’s military service in admis19 sion to, or employment in, any program established to pro20 vide apprenticeship or other training. 

21 (f) BUSINESSES OR ENTERPRISES WITH PERSONNEL

22 QUALIFIED ON BASIS OF MILITARY SERVICE.—Notwith23 standing any other provision of this section, it shall not 

24 be an unlawful employment practice for an employer to 

25 hire and employ employees, for an employment agency to 


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1 classify, or refer for employment any individual, for a 

2 labor organization to classify its membership or to classify 

3 or refer for employment any individual, or for an em4 ployer, labor organization, or joint labor-management 

5 committee controlling apprenticeship or other training or 

6 retraining programs to admit or employ any individual in 

7 any such program, on the basis of the individual’s military 

8 service in those certain instances where military service 

9 is a bona fide occupational qualification reasonably nec10 essary to the normal operation of that particular business 

11 or enterprise. 

12 (g) NATIONAL SECURITY.—Notwithstanding any 

13 other provision of this section, it shall not be an unlawful 

14 employment practice for an employer to fail or refuse to 

15 hire and employ any individual for any position, for an 

16 employer to discharge any individual from any position, 

17 or for an employment agency to fail or refuse to refer any 

18 individual for employment in any position, or for a labor 

19 organization to fail or refuse to refer any individual for 

20 employment in any position, if— 

21 (1) the occupancy of such position, or access to 

22 the premises in or upon which any part of the duties 

23 of such position is performed or is to be performed, 

24 is subject to any requirement imposed in the interest 

25 of the national security of the United States under 


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1 any security program in effect pursuant to or ad2 ministered under any statute of the United States or 

3 any Executive order of the President; and 

4 (2) such individual has not fulfilled or has 

5 ceased to fulfill that requirement. 

6 (h) SENIORITY OR MERIT SYSTEM; QUANTITY OR

7 QUALITY OF PRODUCTION; ABILITY TESTS.—Notwith8 standing any other provision of this section, it shall not 

9 be an unlawful employment practice for an employer to 

10 apply different standards of compensation, or different 

11 terms, conditions, or privileges of employment pursuant 

12 to a bona fide seniority or merit system, or a system which 

13 measures earnings by quantity or quality of production or 

14 to employees who work in different locations, provided 

15 that such differences are not the result of an intention 

16 to discriminate because of military service, nor shall it be 

17 an unlawful employment practice for an employer to give 

18 and to act upon the results of any professionally developed 

19 ability test provided that such test, its administration, or 

20 action upon the results is not designed, intended, or used 

21 to discriminate because of military service. 

22 (i) PREFERENTIAL TREATMENT NOT TO BE GRANT23 ED ON ACCOUNT OF EXISTING NUMBER OR PERCENTAGE

24 IMBALANCE.—Nothing contained in this section shall be 

25 interpreted to require any employer, employment agency, 


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1 labor organization, or joint labor-management committee 

2 subject to this section to grant preferential treatment to 

3 any individual or to any group because of the military 

4 service of such individual or group on account of an imbal5 ance which may exist with respect to the total number or 

6 percentage of persons with military service employed by 

7 any employer, referred or classified for employment by any 

8 employment agency or labor organization, admitted to 

9 membership or classified by any labor organization, or ad10 mitted to, or employed in, any apprenticeship or other 

11 training program, in comparison with the total number or 

12 percentage of persons with military service in any commu13 nity, State, section, or other area, or in the available work 

14 force in any community, State, section, or other area. 

15 (j) BURDEN OF PROOF IN DISPARATE IMPACT

16 CASES.— 

17 (1) DISPARATE IMPACT.— 

18 (A) ESTABLISHMENT.—An unlawful em19 ployment practice based on disparate impact is 

20 established under this section only if— 

21 (i) a complaining party demonstrates 

22 that a respondent uses a particular em23 ployment practice that causes a disparate 

24 impact on the basis of military service and 

25 the respondent fails to demonstrate that 


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1 the challenged practice is job related for 

2 the position in question and consistent 

3 with business necessity; or 

4 (ii) the complaining party makes the 

5 demonstration described in subparagraph 

6 (C) with respect to an alternative employ7 ment practice and the respondent refuses 

8 to adopt such alternative employment prac9 tice. 

10 (B) DEMONSTRATION OF CAUSATION.— 

11 (i) PARTICULAR EMPLOYMENT PRAC12 TICES.—With respect to demonstrating 

13 that a particular employment practice 

14 causes a disparate impact as described in 

15 subparagraph (A)(i), the complaining party 

16 shall demonstrate that each particular 

17 challenged employment practice causes a 

18 disparate impact, except that if the com19 plaining party can demonstrate to the 

20 court that the elements of a respondent’s 

21 decisionmaking process are not capable of 

22 separation for analysis, the decisionmaking 

23 process may be analyzed as one employ24 ment practice. 


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1 (ii) DEMONSTRATION OF NONCAUSA2 TION.—If the respondent demonstrates 

3 that a specific employment practice does 

4 not cause the disparate impact, the re5 spondent shall not be required to dem6 onstrate that such practice is required by 

7 business necessity. 

8 (C) ALTERNATIVE EMPLOYMENT PRAC9 TICE.—The demonstration referred to by sub10 paragraph (A)(ii) shall be in accordance with 

11 the law as it existed on June 4, 1989, with re12 spect to the concept of ‘‘alternative employment 

13 practice’’. 

14 (2) BUSINESS NECESSITY NO DEFENSE TO IN15 TENTIONAL DISCRIMINATION.—A demonstration 

16 that an employment practice is required by business 

17 necessity may not be used as a defense against a 

18 claim of intentional discrimination under this sec19 tion. 

20 (3) RULES CONCERNING CONTROLLED SUB21 STANCES.—Notwithstanding any other provision of 

22 this section, a rule barring the employment of an in23 dividual who currently and knowingly uses or pos24 sesses a controlled substance, as defined in section 

25 102(6) of the Controlled Substances Act (21 U.S.C. 


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1 802(6)) and included in schedule I or II of the 

2 schedules specified in that section, other than the 

3 use or possession of a drug taken under the super4 vision of a licensed health care professional, or any 

5 other use or possession authorized by the Controlled 

6 Substances Act (21 U.S.C. 801 et seq.) or any other 

7 provision of Federal law, shall be considered an un8 lawful employment practice under this section only if 

9 such rule is adopted or applied with an intent to dis10 criminate because of military service. 

11 (k) PROHIBITION OF DISCRIMINATORY USE OF TEST

12 SCORES.—It shall be an unlawful employment practice for 

13 a respondent, in connection with the selection or referral 

14 of applicants or candidates for employment or promotion, 

15 to adjust the scores of, use different cutoff scores for, or 

16 otherwise alter the results of, employment related tests on 

17 the basis of military service. 

18 (l) IMPERMISSIBLE CONSIDERATION OF MILITARY

19 SERVICE IN EMPLOYMENT PRACTICES.—Except as other20 wise provided in this section, an unlawful employment 

21 practice is established when the complaining party dem22 onstrates that military service was a motivating factor for 

23 any employment practice, even though other factors also 

24 motivated the practice. 


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1 (m) RESOLUTION OF CHALLENGES TO EMPLOYMENT

2 PRACTICES IMPLEMENTING LITIGATED OR CONSENT

3 JUDGMENTS OR ORDERS.— 

4 (1) PRACTICES NOT CHALLENGEABLE.— 

5 (A) PRACTICES TO IMPLEMENT A LITI6 GATED OR CONSENT JUDGMENT OR ORDER.— 

7 Notwithstanding any other provision of law, 

8 and except as provided in paragraph (2), an 

9 employment practice that implements and is 

10 within the scope of a litigated or consent judg11 ment or order that resolves a claim of employ12 ment discrimination under the Constitution or 

13 Federal civil rights laws may not be challenged 

14 under the circumstances described in subpara15 graph (B). 

16 (B) CIRCUMSTANCES.—A practice de17 scribed in subparagraph (A) may not be chal18 lenged in a claim under the Constitution or 

19 Federal civil rights laws— 

20 (i) by a person who, prior to the entry 

21 of the judgment or order described in sub22 paragraph (A), had— 

23 (I) actual notice of the proposed 

24 judgment or order sufficient to ap25 prise such person that such judgment 


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1 or order might adversely affect the in2 terests and legal rights of such person 

3 and that an opportunity was available 

4 to present objections to such judg5 ment or order by a future date cer6 tain; and 

7 (II) a reasonable opportunity to 

8 present objections to such judgment 

9 or order; or 

10 (ii) by a person whose interests were 

11 adequately represented by another person 

12 who had previously challenged the judg13 ment or order on the same legal grounds 

14 and with a similar factual situation, unless 

15 there has been an intervening change in 

16 law or fact. 

17 (2) RULE OF CONSTRUCTION.—Nothing in this 

18 subsection shall be construed to— 

19 (A) alter the standards for intervention 

20 under rule 24 of the Federal Rules of Civil Pro21 cedure or apply to the rights of parties who 

22 have successfully intervened pursuant to such 

23 rule in the proceeding in which the parties in24 tervened; 


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1 (B) apply to the rights of parties to the ac2 tion in which a litigated or consent judgment or 

3 order was entered, or of members of a class 

4 represented or sought to be represented in such 

5 action, or of members of a group on whose be6 half relief was sought in such action by the 

7 Federal Government; 

8 (C) prevent challenges to a litigated or 

9 consent judgment or order on the ground that 

10 such judgment or order was obtained through 

11 collusion or fraud, or is transparently invalid or 

12 was entered by a court lacking subject matter 

13 jurisdiction; or 

14 (D) authorize or permit the denial to any 

15 person of the due process of law required by the 

16 Constitution. 

17 (3) COURT FOR ACTIONS THAT ARE

18 CHALLENGEABLE.—Any action not precluded under 

19 this subsection that challenges an employment con20 sent judgment or order described in paragraph (1) 

21 shall be brought in the court, and if possible before 

22 the judge, that entered such judgment or order. 

23 Nothing in this subsection shall preclude a transfer 

24 of such action pursuant to section 1404 of title 28, 

25 United States Code. 


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1 (n) DISCRIMINATION FOR MAKING CHARGES, TESTI2 FYING, ASSISTING, OR PARTICIPATING IN ENFORCEMENT

3 PROCEEDINGS.—It shall be an unlawful employment prac4 tice for an employer to discriminate against any of the 

5 employer’s employees or applicants for employment, for an 

6 employment agency, or joint labor-management committee 

7 controlling apprenticeship or other training or retraining, 

8 including on-the-job training programs, to discriminate 

9 against any individual, or for a labor organization to dis10 criminate against any member thereof or applicant for 

11 membership, because the employee, applicant, individuals, 

12 or member involved has opposed any practice made an un13 lawful employment practice by this section, or has made 

14 a charge, testified, assisted, or participated in any manner 

15 in an investigation, proceeding, or hearing under this sec16 tion. 

17 (o) PRINTING OR PUBLICATION OF NOTICES OR AD18 VERTISEMENTS.—It shall be an unlawful employment 

19 practice for an employer, labor organization, employment 

20 agency, or joint labor-management committee controlling 

21 apprenticeship or other training or retraining, including 

22 on-the-job training programs, to print or publish or cause 

23 to be printed or published any notice or advertisement re24 lating to employment by such an employer or membership 

25 in or any classification or referral for employment by such 


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1 a labor organization, or relating to any classification or 

2 referral for employment by such an employment agency, 

3 or relating to admission to, or employment in, any pro4 gram established to provide apprenticeship or other train5 ing by such a joint labor-management committee, indi6 cating any preference, limitation, specification, or dis7 crimination, based on military service, except that such a 

8 notice or advertisement may indicate a preference, limita9 tion, specification, or discrimination based on military 

10 service when military service is a bona fide occupational 

11 qualification for employment. 

12 (p) EXEMPTIONS.— 

13 (1) INAPPLICABILITY OF TITLE TO CERTAIN

14 ALIENS.—This section shall not apply to an em15 ployer with respect to the employment of aliens out16 side any State. 

17 (2) COMPLIANCE WITH STATUTE AS VIOLATION

18 OF FOREIGN LAW.—It shall not be unlawful under 

19 this section for an employer (or a corporation con20 trolled by an employer), labor organization, employ21 ment agency, or joint labor-management committee 

22 controlling apprenticeship or other training or re23 training (including on-the-job training programs) to 

24 take any action otherwise prohibited by such section, 

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1 eign country if compliance with such section would 

2 cause such employer (or such corporation), such or3 ganization, such agency, or such committee to vio4 late the law of the foreign country in which such 

5 workplace is located. 

6 (3) CONTROL OF CORPORATION INCORPORATED

7 IN FOREIGN COUNTRY.— 

8 (A) IN GENERAL.—If an employer controls 

9 a corporation whose place of incorporation is a 

10 foreign country, any practice prohibited by this 

11 section engaged in by such corporation shall be 

12 presumed to be engaged in by such employer. 

13 (B) FOREIGN PERSON NOT CONTROLLED

14 BY EMPLOYER.—This section shall not apply 

15 with respect to the foreign operations of an em16 ployer that is a foreign person not controlled by 

17 an American employer. 

18 (C) CONTROL.—For purposes of this sub19 section, the determination of whether an em20 ployer controls a corporation shall be based 

21 on— 

22 (i) the interrelation of operations; 

23 (ii) the common management; 

24 (iii) the centralized control of labor re25 lations; and 


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1 (iv) the common ownership or finan2 cial control, 

3 of the employer and the corporation. 

4 (4) CLAIMS OF NO MILITARY SERVICE.—Noth5 ing in this section shall provide the basis for a claim 

6 by an individual without military service that the in7 dividual was subject to discrimination because of the 

8 individual’s lack of military service. 

9 (q) POSTING NOTICES.—Every employer, employ10 ment agency, labor organization, or joint labor-manage11 ment committee covered under this section shall post no12 tices to applicants, employees, and members describing the 

13 applicable provisions of this section, in the manner pre14 scribed by section 711 of the Civil Rights Act of 1964 

15 (42 U.S.C. 2000e–10). 

16 (r) REGULATIONS.—Not later than 90 days after the 

17 date of enactment of this Act, the Commission shall issue 

18 regulations to carry out this section in accordance with 

19 subchapter II of chapter 5 of title 5, United States Code. 

20 (s) ENFORCEMENT.—The powers, remedies, and pro21 cedures set forth in sections 705, 706, 707, 708, 709, 710, 

22 and 712 of the Civil Rights Act of 1964 (42 U.S.C. 

23 2000e–4, 2000e–5, 2000e–6, 2000e–7, 2000e–8, 2000e– 

24 9, and 2000e–11) shall be the powers, remedies, and pro25 cedures this section provides to the Equal Employment 


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1 Opportunity Commission, to the Attorney General, or to 

2 any person alleging discrimination on the basis of military 

3 service in violation of any provision of this section, or reg4 ulations promulgated under subsection (r), concerning em5 ployment. 

6 SEC. 3. ENDING HOUSING DISCRIMINATION AGAINST MEM7 BERS OF THE UNIFORMED SERVICES. 

8 (a) DEFINITIONS.—Section 802 of the Fair Housing 

9 Act (42 U.S.C. 3602) is amended by adding at the end 

10 the following: 

11 ‘‘(p) ‘Member of the uniformed services’ means an 

12 individual who— 

13 ‘‘(1) is a member of— 

14 ‘‘(A) the uniformed services (as defined in 

15 section 101 of title 10, United States Code); or 

16 ‘‘(B) the National Guard in State status 

17 under title 32, United States Code; or 

18 ‘‘(2) was discharged or released from service in 

19 the uniformed services (as so defined) or the Na20 tional Guard in such status under conditions other 

21 than dishonorable.’’. 

22 (b) DISCRIMINATION IN THE SALE OR RENTAL OF

23 HOUSING AND OTHER PROHIBITED PRACTICES.—Section 

24 804 of the Fair Housing Act (42 U.S.C. 3604) is amend25 ed— 


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1 (1) in subsection (a), by inserting ‘‘or because 

2 the person is a member of the uniformed services’’ 

3 after ‘‘national origin’’; 

4 (2) in subsection (b), by inserting ‘‘or because 

5 the person is a member of the uniformed services’’ 

6 after ‘‘national origin’’; 

7 (3) in subsection (c), by inserting ‘‘or because 

8 a person is a member of the uniformed services,’’ 

9 after ‘‘national origin,’’; and 

10 (4) in subsection (d), by inserting ‘‘, or because 

11 the person is a member of the uniformed services,’’ 

12 after ‘‘national origin’’. 

13 (c) DISCRIMINATION IN RESIDENTIAL REAL ESTATE14 RELATED TRANSACTIONS.—Section 805 of the Fair 

15 Housing Act (42 U.S.C. 3605) is amended— 

16 (1) in subsection (a), by inserting ‘‘or because 

17 the person is a member of the uniformed services’’ 

18 after ‘‘national origin’’; and 

19 (2) in subsection (c), by striking ‘‘, or familial 

20 status’’ and inserting ‘‘familial status, or whether a 

21 person is a member of the uniformed services’’. 

22 (d) DISCRIMINATION IN THE PROVISION OF BROKER23 AGE SERVICES.—Section 806 of the Fair Housing Act (42 

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1 son is a member of the uniformed services’’ after ‘‘national 

2 origin’’. 

3 (e) RELIGIOUS ORGANIZATION OR PRIVATE CLUB

4 EXEMPTION.—Section 807(a) of the Fair Housing Act 

5 (42 U.S.C. 3607(a)) is amended, in the first sentence by 

6 inserting ‘‘or to persons who are not members of the uni7 formed services’’ after ‘‘national origin’’. 

8 (f) ADMINISTRATION.—Section 808(e)(6) of the Fair 

9 Housing Act (42 U.S.C. 3608(e)(6)) is amended, in the 

10 first sentence, by inserting ‘‘(including whether such per11 sons and households are or include a member of the uni12 formed services)’’ after ‘‘persons and households’’. 

13 (g) PREVENTION OF DISCRIMINATION.—Section 901 

14 of the Civil Rights Act of 1968 (42 U.S.C. 3631) is 

15 amended— 

16 (1) in subsection (a), by inserting ‘‘, or because 

17 the person is a member of the uniformed services (as 

18 such term is defined in section 802 of this Act),’’ 

19 after ‘‘national origin’’; 

20 (2) in subsection (b)(1), by inserting ‘‘or be21 cause a person is a member of the uniformed serv22 ices (as such term is defined in section 802 of this 

23 Act),’’ after ‘‘national origin,’’; and 

24 (3) in subsection (c), by inserting ‘‘or because 

25 a person is a member of the uniformed services (as 


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1 such term is defined in section 802 of this Act),’’ 

2 after ‘‘national origin,’’. 

3 (h) RULE OF CONSTRUCTION.—The Fair Housing 

4 Act (42 U.S.C. 3601 et seq.) is amended by adding at 

5 the end the following: 

6 ‘‘SEC. 821. RULE OF CONSTRUCTION RELATING TO THE 

7 TREATMENT OF MEMBERS OF THE UNI8 FORMED SERVICES. 

9 ‘‘(a) RULE OF CONSTRUCTION.—Nothing in this Act 

10 may be construed to prohibit any person from— 

11 ‘‘(1) making available to an individual a benefit 

12 with respect to a dwelling, a residential real estate13 related transaction (as defined in section 805 of this 

14 Act), or a service described in section 806 of this 

15 Act because the individual is a member of the uni16 formed services; or 

17 ‘‘(2) selling or renting a dwelling only to mem18 bers of the uniformed services. 

19 ‘‘(b) DEFINITION.—For purposes of this section, the 

20 term ‘benefit’ includes a term, condition, privilege, pro21 motion, discount, or other favorable treatment (including 

22 an advertisement for such treatment) having the purpose 

23 or effect of providing an advantage to a member of the 

24 uniformed services.’’. 


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1 SEC. 4. EFFECTIVE DATE. 

2 This Act shall become effective 120 days after the 

3 date of enactment of this Act. 

Æ 


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