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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 815 Reported in Senate (RS)]

                                                       Calendar No. 184
113th CONGRESS
  1st Session
                                 S. 815

                          [Report No. 113-105]

     To prohibit employment discrimination on the basis of sexual 
                    orientation or gender identity.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             April 25, 2013

   Mr. Merkley (for himself, Mr. Harkin, Mr. Kirk, Ms. Collins, Ms. 
   Baldwin, Mr. Whitehouse, Ms. Warren, Mr. Udall of New Mexico, Ms. 
Stabenow, Mrs. Shaheen, Mr. Sanders, Mrs. Murray, Mr. Levin, Mr. Leahy, 
Mr. Lautenberg, Mr. Kaine, Ms. Hirono, Mrs. Gillibrand, Mr. Coons, Mr. 
Brown, Mrs. Boxer, Mr. Baucus, Mrs. Hagan, Mr. Murphy, Mr. Bennet, Mr. 
    Franken, Mr. Reed, Mrs. Feinstein, Mrs. McCaskill, Mr. Udall of 
  Colorado, Mr. Warner, Ms. Mikulski, Mr. Blumenthal, Mr. Cowan, Mr. 
    Schatz, Ms. Klobuchar, Mr. Cardin, Mr. Wyden, Mr. Heinrich, Ms. 
Landrieu, Mr. Menendez, Mr. Begich, Mr. Schumer, Mr. Durbin, Mr. Casey, 
  Mr. Donnelly, Mr. Tester, Ms. Cantwell, Mr. King, Ms. Heitkamp, Mr. 
Carper, Mr. Rockefeller, Mr. Reid, Mr. Johnson of South Dakota, and Mr. 
    Markey) introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

                           September 12, 2013

               Reported by Mr. Harkin, 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 or gender identity.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Employment Non-
Discrimination Act of 2013''.</DELETED>

<DELETED>SEC. 2. PURPOSES.</DELETED>

<DELETED>    The purposes of this Act are--</DELETED>
        <DELETED>    (1) to address the history and persistent, 
        widespread pattern of discrimination, including 
        unconstitutional discrimination, on the bases of sexual 
        orientation and gender identity by private sector employers and 
        local, State, and Federal Government employers;</DELETED>
        <DELETED>    (2) to provide an explicit, comprehensive Federal 
        prohibition against employment discrimination on the bases of 
        sexual orientation and gender identity, including meaningful 
        and effective remedies for any such discrimination; 
        and</DELETED>
        <DELETED>    (3) to invoke congressional powers, including the 
        powers to enforce the 14th Amendment to the Constitution, and 
        to regulate interstate commerce pursuant to section 8 of 
        article I of the Constitution, in order to prohibit employment 
        discrimination on the bases of sexual orientation and gender 
        identity.</DELETED>

<DELETED>SEC. 3. DEFINITIONS.</DELETED>

<DELETED>    (a) In General.--In this Act:</DELETED>
        <DELETED>    (1) Commission.--The term ``Commission'' means the 
        Equal Employment Opportunity Commission.</DELETED>
        <DELETED>    (2) Covered entity.--The term ``covered entity'' 
        means an employer, employment agency, labor organization, or 
        joint labor-management committee.</DELETED>
        <DELETED>    (3) Employee.--</DELETED>
                <DELETED>    (A) In general.--The term ``employee'' 
                means--</DELETED>
                        <DELETED>    (i) an employee as defined in 
                        section 701(f) of the Civil Rights Act of 1964 
                        (42 U.S.C. 2000e(f));</DELETED>
                        <DELETED>    (ii) a State employee to which 
                        section 302(a)(1) of the Government Employee 
                        Rights Act of 1991 (42 U.S.C. 2000e-16b(a)(1)) 
                        applies;</DELETED>
                        <DELETED>    (iii) a covered employee, as 
                        defined in section 101 of the Congressional 
                        Accountability Act of 1995 (2 U.S.C. 1301) or 
                        section 411(c) of title 3, United States Code; 
                        or</DELETED>
                        <DELETED>    (iv) an employee or applicant to 
                        which section 717(a) of the Civil Rights Act of 
                        1964 (42 U.S.C. 2000e-16(a)) applies.</DELETED>
                <DELETED>    (B) Exception.--The provisions of this Act 
                that apply to an employee or individual shall not apply 
                to a volunteer who receives no compensation.</DELETED>
        <DELETED>    (4) Employer.--The term ``employer'' means--
        </DELETED>
                <DELETED>    (A) a person engaged in an industry 
                affecting commerce (as defined in section 701(h) of the 
                Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 
                15 or more employees (as defined in subparagraphs 
                (A)(i) and (B) of paragraph (3)) for each working day 
                in each of 20 or more calendar weeks in the current or 
                preceding calendar year, and any agent of such a 
                person, but does not include a bona fide private 
                membership club (other than a labor organization) that 
                is exempt from taxation under section 501(c) of the 
                Internal Revenue Code of 1986;</DELETED>
                <DELETED>    (B) an employing authority to which 
                section 302(a)(1) of the Government Employee Rights Act 
                of 1991 applies;</DELETED>
                <DELETED>    (C) an employing office, as defined in 
                section 101 of the Congressional Accountability Act of 
                1995 or section 411(c) of title 3, United States Code; 
                or</DELETED>
                <DELETED>    (D) an entity to which section 717(a) of 
                the Civil Rights Act of 1964 applies.</DELETED>
        <DELETED>    (5) Employment agency.--The term ``employment 
        agency'' has the meaning given the term in section 701(c) of 
        the Civil Rights Act of 1964 (42 U.S.C. 2000e(c)).</DELETED>
        <DELETED>    (6) Gender identity.--The term ``gender identity'' 
        means the gender-related identity, appearance, or mannerisms or 
        other gender-related characteristics of an individual, with or 
        without regard to the individual's designated sex at 
        birth.</DELETED>
        <DELETED>    (7) Labor organization.--The term ``labor 
        organization'' has the meaning given the term in section 701(d) 
        of the Civil Rights Act of 1964 (42 U.S.C. 2000e(d)).</DELETED>
        <DELETED>    (8) Person.--The term ``person'' has the meaning 
        given the term in section 701(a) of the Civil Rights Act of 
        1964 (42 U.S.C. 2000e(a)).</DELETED>
        <DELETED>    (9) Sexual orientation.--The term ``sexual 
        orientation'' means homosexuality, heterosexuality, or 
        bisexuality.</DELETED>
        <DELETED>    (10) State.--The term ``State'' has the meaning 
        given the term in section 701(i) of the Civil Rights Act of 
        1964 (42 U.S.C. 2000e(i)).</DELETED>
<DELETED>    (b) Application of Definitions.--For purposes of this 
section, a reference in section 701 of the Civil Rights Act of 1964--
</DELETED>
        <DELETED>    (1) to an employee or an employer shall be 
        considered to refer to an employee (as defined in subsection 
        (a)(3)) or an employer (as defined in subsection (a)(4)), 
        respectively, except as provided in paragraph (2) of this 
        subsection; and</DELETED>
        <DELETED>    (2) to an employer in subsection (f) of that 
        section shall be considered to refer to an employer (as defined 
        in subsection (a)(4)(A)).</DELETED>

<DELETED>SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.</DELETED>

<DELETED>    (a) Employer Practices.--It shall be an unlawful 
employment practice for an employer--</DELETED>
        <DELETED>    (1) to fail or refuse to hire or to discharge any 
        individual, or otherwise discriminate against any individual 
        with respect to the compensation, terms, conditions, or 
        privileges of employment of the individual, because of such 
        individual's actual or perceived sexual orientation or gender 
        identity; or</DELETED>
        <DELETED>    (2) to limit, segregate, or classify the employees 
        or applicants for employment of the employer in any way that 
        would deprive or tend to deprive any individual of employment 
        or otherwise adversely affect the status of the individual as 
        an employee, because of such individual's actual or perceived 
        sexual orientation or gender identity.</DELETED>
<DELETED>    (b) Employment Agency Practices.--It shall be an unlawful 
employment practice for an employment agency to fail or refuse to refer 
for employment, or otherwise to discriminate against, any individual 
because of the actual or perceived sexual orientation or gender 
identity of the individual or to classify or refer for employment any 
individual on the basis of the actual or perceived sexual orientation 
or gender identity of the individual.</DELETED>
<DELETED>    (c) Labor Organization Practices.--It shall be an unlawful 
employment practice for a labor organization--</DELETED>
        <DELETED>    (1) to exclude or to expel from its membership, or 
        otherwise to discriminate against, any individual because of 
        the actual or perceived sexual orientation or gender identity 
        of the individual;</DELETED>
        <DELETED>    (2) to limit, segregate, or classify its 
        membership or applicants for membership, or to classify or fail 
        or refuse to refer for employment any individual, in any way 
        that would deprive or tend to deprive any individual of 
        employment, or would limit such employment or otherwise 
        adversely affect the status of the individual as an employee or 
        as an applicant for employment because of such individual's 
        actual or perceived sexual orientation or gender identity; 
        or</DELETED>
        <DELETED>    (3) to cause or attempt to cause an employer to 
        discriminate against an individual in violation of this 
        section.</DELETED>
<DELETED>    (d) Training Programs.--It shall be an unlawful employment 
practice for any employer, labor organization, or joint labor-
management committee controlling apprenticeship or other training or 
retraining, including on-the-job training programs, to discriminate 
against any individual because of the actual or perceived sexual 
orientation or gender identity of the individual in admission to, or 
employment in, any program established to provide apprenticeship or 
other training.</DELETED>
<DELETED>    (e) Association.--An unlawful employment practice 
described in any of subsections (a) through (d) shall be considered to 
include an action described in that subsection, taken against an 
individual based on the actual or perceived sexual orientation or 
gender identity of a person with whom the individual associates or has 
associated.</DELETED>
<DELETED>    (f) No Preferential Treatment or Quotas.--Nothing in this 
Act shall be construed or interpreted to require or permit--</DELETED>
        <DELETED>    (1) any covered entity to grant preferential 
        treatment to any individual or to any group because of the 
        actual or perceived sexual orientation or gender identity of 
        such individual or group on account of an imbalance which may 
        exist with respect to the total number or percentage of persons 
        of any actual or perceived sexual orientation or gender 
        identity employed by any employer, referred or classified for 
        employment by any employment agency or labor organization, 
        admitted to membership or classified by any labor organization, 
        or admitted to, or employed in, any apprenticeship or other 
        training program, in comparison with the total number or 
        percentage of persons of such actual or perceived sexual 
        orientation or gender identity in any community, State, 
        section, or other area, or in the available work force in any 
        community, State, section, or other area; or</DELETED>
        <DELETED>    (2) the adoption or implementation by a covered 
        entity of a quota on the basis of actual or perceived sexual 
        orientation or gender identity.</DELETED>
<DELETED>    (g) Disparate Impact.--Only disparate treatment claims may 
be brought under this Act.</DELETED>

<DELETED>SEC. 5. RETALIATION PROHIBITED.</DELETED>

<DELETED>    It shall be an unlawful employment practice for a covered 
entity to discriminate against an individual because such individual--
</DELETED>
        <DELETED>    (1) opposed any practice made an unlawful 
        employment practice by this Act; or</DELETED>
        <DELETED>    (2) made a charge, testified, assisted, or 
        participated in any manner in an investigation, proceeding, or 
        hearing under this Act.</DELETED>

<DELETED>SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.</DELETED>

<DELETED>    This Act shall not apply to a corporation, association, 
educational institution or institution of learning, or society that is 
exempt from the religious discrimination provisions of title VII of the 
Civil Rights Act of 1964 pursuant (42 U.S.C. 2000e et seq.) to section 
702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-
2(e)(2)).</DELETED>

<DELETED>SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; 
              VETERANS' PREFERENCES.</DELETED>

<DELETED>    (a) Armed Forces.--</DELETED>
        <DELETED>    (1) Employment.--In this Act, the term 
        ``employment'' does not apply to the relationship between the 
        United States and members of the Armed Forces.</DELETED>
        <DELETED>    (2) Armed forces.--In paragraph (1) the term 
        ``Armed Forces'' means the Army, Navy, Air Force, Marine Corps, 
        and Coast Guard.</DELETED>
<DELETED>    (b) Veterans' Preferences.--This title does not repeal or 
modify any Federal, State, territorial, or local law creating a special 
right or preference concerning employment for a veteran.</DELETED>

<DELETED>SEC. 8. CONSTRUCTION.</DELETED>

<DELETED>    (a) Dress or Grooming Standards.--Nothing in this Act 
shall prohibit an employer from requiring an employee, during the 
employee's hours at work, to adhere to reasonable dress or grooming 
standards not prohibited by other provisions of Federal, State, or 
local law, provided that the employer permits any employee who has 
undergone gender transition prior to the time of employment, and any 
employee who has notified the employer that the employee has undergone 
or is undergoing gender transition after the time of employment, to 
adhere to the same dress or grooming standards as apply for the gender 
to which the employee has transitioned or is transitioning.</DELETED>
<DELETED>    (b) Additional Facilities Not Required.--Nothing in this 
Act shall be construed to require the construction of new or additional 
facilities.</DELETED>

<DELETED>SEC. 9. COLLECTION OF STATISTICS PROHIBITED.</DELETED>

<DELETED>    The Commission shall neither compel the collection of nor 
require the production of statistics on actual or perceived sexual 
orientation or gender identity from covered entities.</DELETED>

<DELETED>SEC. 10. ENFORCEMENT.</DELETED>

<DELETED>    (a) Enforcement Powers.--With respect to the 
administration and enforcement of this Act in the case of a claim 
alleged by an individual for a violation of this Act--</DELETED>
        <DELETED>    (1) the Commission shall have the same powers as 
        the Commission has to administer and enforce--</DELETED>
                <DELETED>    (A) title VII of the Civil Rights Act of 
                1964 (42 U.S.C. 2000e et seq.); or</DELETED>
                <DELETED>    (B) sections 302 and 304 of the Government 
                Employee Rights Act of 1991 (42 U.S.C. 2000e-16b and 
                2000e-16c),</DELETED>
        <DELETED>in the case of a claim alleged by such individual for 
        a violation of such title, or of section 302(a)(1) of the 
        Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
        16b(a)(1)), respectively;</DELETED>
        <DELETED>    (2) the Librarian of Congress shall have the same 
        powers as the Librarian of Congress has to administer and 
        enforce title VII of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e et seq.) in the case of a claim alleged by such 
        individual for a violation of such title;</DELETED>
        <DELETED>    (3) the Board (as defined in section 101 of the 
        Congressional Accountability Act of 1995 (2 U.S.C. 1301)) shall 
        have the same powers as the Board has to administer and enforce 
        the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et 
        seq.) in the case of a claim alleged by such individual for a 
        violation of section 201(a)(1) of such Act (2 U.S.C. 
        1311(a)(1));</DELETED>
        <DELETED>    (4) the Attorney General shall have the same 
        powers as the Attorney General has to administer and enforce--
        </DELETED>
                <DELETED>    (A) title VII of the Civil Rights Act of 
                1964 (42 U.S.C. 2000e et seq.); or</DELETED>
                <DELETED>    (B) sections 302 and 304 of the Government 
                Employee Rights Act of 1991 (42 U.S.C. 2000e-16b and 
                2000e-16c);</DELETED>
        <DELETED>in the case of a claim alleged by such individual for 
        a violation of such title, or of section 302(a)(1) of the 
        Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
        16b(a)(1)), respectively;</DELETED>
        <DELETED>    (5) the President, the Commission, and the Merit 
        Systems Protection Board shall have the same powers as the 
        President, the Commission, and the Board, respectively, have to 
        administer and enforce chapter 5 of title 3, United States 
        Code, in the case of a claim alleged by such individual for a 
        violation of section 411 of such title; and</DELETED>
        <DELETED>    (6) a court of the United States shall have the 
        same jurisdiction and powers as the court has to enforce--
        </DELETED>
                <DELETED>    (A) title VII of the Civil Rights Act of 
                1964 (42 U.S.C. 2000e et seq.) in the case of a claim 
                alleged by such individual for a violation of such 
                title;</DELETED>
                <DELETED>    (B) sections 302 and 304 of the Government 
                Employee Rights Act of 1991 (42 U.S.C. 2000e-16b and 
                2000e-16c) in the case of a claim alleged by such 
                individual for a violation of section 302(a)(1) of such 
                Act (42 U.S.C. 2000e-16b(a)(1));</DELETED>
                <DELETED>    (C) the Congressional Accountability Act 
                of 1995 (2 U.S.C. 1301 et seq.) in the case of a claim 
                alleged by such individual for a violation of section 
                201(a)(1) of such Act (2 U.S.C. 1311(a)(1)); 
                and</DELETED>
                <DELETED>    (D) chapter 5 of title 3, United States 
                Code, in the case of a claim alleged by such individual 
                for a violation of section 411 of such title.</DELETED>
<DELETED>    (b) Procedures and Remedies.--The procedures and remedies 
applicable to a claim alleged by an individual for a violation of this 
Act are--</DELETED>
        <DELETED>    (1) the procedures and remedies applicable for a 
        violation of title VII of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e et seq.) in the case of a claim alleged by such 
        individual for a violation of such title;</DELETED>
        <DELETED>    (2) the procedures and remedies applicable for a 
        violation of section 302(a)(1) of the Government Employee 
        Rights Act of 1991 (42 U.S.C. 2000e-16b(a)(1)) in the case of a 
        claim alleged by such individual for a violation of such 
        section;</DELETED>
        <DELETED>    (3) the procedures and remedies applicable for a 
        violation of section 201(a)(1) of the Congressional 
        Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) in the case of 
        a claim alleged by such individual for a violation of such 
        section; and</DELETED>
        <DELETED>    (4) the procedures and remedies applicable for a 
        violation of section 411 of title 3, United States Code, in the 
        case of a claim alleged by such individual for a violation of 
        such section.</DELETED>
<DELETED>    (c) Other Applicable Provisions.--With respect to a claim 
alleged by a covered employee (as defined in section 101 of the 
Congressional Accountability Act of 1995 (2 U.S.C. 1301)) for a 
violation of this Act, title III of the Congressional Accountability 
Act of 1995 (2 U.S.C. 1381 et seq.) shall apply in the same manner as 
such title applies with respect to a claim alleged by such a covered 
employee for a violation of section 201(a)(1) of such Act (2 U.S.C. 
1311(a)(1)).</DELETED>

<DELETED>SEC. 11. STATE AND FEDERAL IMMUNITY.</DELETED>

<DELETED>    (a) Abrogation of State Immunity.--A State shall not be 
immune under the 11th Amendment to the Constitution from a suit brought 
in a Federal court of competent jurisdiction for a violation of this 
Act.</DELETED>
<DELETED>    (b) Waiver of State Immunity.--</DELETED>
        <DELETED>    (1) In general.--</DELETED>
                <DELETED>    (A) Waiver.--A State's receipt or use of 
                Federal financial assistance for any program or 
                activity of a State shall constitute a waiver of 
                sovereign immunity, under the 11th Amendment to the 
                Constitution or otherwise, to a suit brought by an 
                employee or applicant for employment of that program or 
                activity under this Act for a remedy authorized under 
                subsection (d).</DELETED>
                <DELETED>    (B) Definition.--In this paragraph, the 
                term ``program or activity'' has the meaning given the 
                term in section 606 of the Civil Rights Act of 1964 (42 
                U.S.C. 2000d-4a).</DELETED>
        <DELETED>    (2) Effective date.--With respect to a particular 
        program or activity, paragraph (1) applies to conduct occurring 
        on or after the day, after the date of enactment of this Act, 
        on which a State first receives or uses Federal financial 
        assistance for that program or activity.</DELETED>
<DELETED>    (c) Remedies Against State Officials.--An official of a 
State may be sued in the official capacity of the official by any 
employee or applicant for employment who has complied with the 
applicable procedures of section 10, for equitable relief that is 
authorized under this Act. In such a suit the court may award to the 
prevailing party those costs authorized by section 722 of the Revised 
Statutes (42 U.S.C. 1988).</DELETED>
<DELETED>    (d) Remedies Against the United States and the States.--
Notwithstanding any other provision of this Act, in an action or 
administrative proceeding against the United States or a State for a 
violation of this Act, remedies (including remedies at law and in 
equity, and interest) are available for the violation to the same 
extent as the remedies are available for a violation of title VII of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private 
entity, except that--</DELETED>
        <DELETED>    (1) punitive damages are not available; 
        and</DELETED>
        <DELETED>    (2) compensatory damages are available to the 
        extent specified in section 1977A(b) of the Revised Statutes 
        (42 U.S.C. 1981a(b)).</DELETED>

<DELETED>SEC. 12. ATTORNEYS' FEES.</DELETED>

<DELETED>    Notwithstanding any other provision of this Act, in an 
action or administrative proceeding for a violation of this Act, an 
entity described in section 10(a) (other than paragraph (4) of such 
section), in the discretion of the entity, may allow the prevailing 
party, other than the Commission or the United States, a reasonable 
attorney's fee (including expert fees) as part of the costs. The 
Commission and the United States shall be liable for the costs to the 
same extent as a private person.</DELETED>

<DELETED>SEC. 13. POSTING NOTICES.</DELETED>

<DELETED>    A covered entity who is required to post notices described 
in section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) 
shall post notices for employees, applicants for employment, and 
members, to whom the provisions specified in section 10(b) apply, that 
describe the applicable provisions of this Act in the manner prescribed 
by, and subject to the penalty provided under, section 711 of the Civil 
Rights Act of 1964.</DELETED>

<DELETED>SEC. 14. REGULATIONS.</DELETED>

<DELETED>    (a) In General.--Except as provided in subsections (b), 
(c), and (d), the Commission shall have authority to issue regulations 
to carry out this Act.</DELETED>
<DELETED>    (b) Librarian of Congress.--The Librarian of Congress 
shall have authority to issue regulations to carry out this Act with 
respect to employees and applicants for employment of the Library of 
Congress.</DELETED>
<DELETED>    (c) Board.--The Board referred to in section 10(a)(3) 
shall have authority to issue regulations to carry out this Act, in 
accordance with section 304 of the Congressional Accountability Act of 
1995 (2 U.S.C. 1384), with respect to covered employees, as defined in 
section 101 of such Act (2 U.S.C. 1301).</DELETED>
<DELETED>    (d) President.--The President shall have authority to 
issue regulations to carry out this Act with respect to covered 
employees, as defined in section 411(c) of title 3, United States Code, 
and applicants for employment as such employees.</DELETED>

<DELETED>SEC. 15. RELATIONSHIP TO OTHER LAWS.</DELETED>

<DELETED>    This Act shall not invalidate or limit the rights, 
remedies, or procedures available to an individual claiming 
discrimination prohibited under any other Federal law or regulation or 
any law or regulation of a State or political subdivision of a 
State.</DELETED>

<DELETED>SEC. 16. SEVERABILITY.</DELETED>

<DELETED>    If any provision of this Act, or the application of the 
provision to any person or circumstance, is held to be invalid, the 
remainder of this Act and the application of the provision to any other 
person or circumstances shall not be affected by the 
invalidity.</DELETED>

<DELETED>SEC. 17. EFFECTIVE DATE.</DELETED>

<DELETED>    This Act shall take effect on the date that is 6 months 
after the date of enactment of this Act and shall not apply to conduct 
occurring before the effective date.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Employment Non-Discrimination Act of 
2013''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to address the history and persistent, widespread 
        pattern of discrimination, including unconstitutional 
        discrimination, on the bases of sexual orientation and gender 
        identity by private sector employers and local, State, and 
        Federal Government employers;
            (2) to provide an explicit, comprehensive Federal 
        prohibition against employment discrimination on the bases of 
        sexual orientation and gender identity, including meaningful 
        and effective remedies for any such discrimination; and
            (3) to invoke congressional powers, including the powers to 
        enforce the 14th Amendment to the Constitution, and to regulate 
        interstate commerce pursuant to section 8 of article I of the 
        Constitution, in order to prohibit employment discrimination on 
        the bases of sexual orientation and gender identity.

SEC. 3. DEFINITIONS.

    (a) In General.--In this Act:
            (1) Commission.--The term ``Commission'' means the Equal 
        Employment Opportunity Commission.
            (2) Covered entity.--The term ``covered entity'' means an 
        employer, employment agency, labor organization, or joint 
        labor-management committee.
            (3) Demonstrates.--The term ``demonstrates'' means meets 
        the burdens of production and persuasion.
            (4) Employee.--
                    (A) In general.--The term ``employee'' means--
                            (i) an employee as defined in section 
                        701(f) of the Civil Rights Act of 1964 (42 
                        U.S.C. 2000e(f));
                            (ii) a State employee to which section 
                        302(a)(1) of the Government Employee Rights Act 
                        of 1991 (42 U.S.C. 2000e-16b(a)(1)) applies;
                            (iii) a covered employee, as defined in 
                        section 101 of the Congressional Accountability 
                        Act of 1995 (2 U.S.C. 1301) or section 411(c) 
                        of title 3, United States Code; or
                            (iv) an employee or applicant to which 
                        section 717(a) of the Civil Rights Act of 1964 
                        (42 U.S.C. 2000e-16(a)) applies.
                    (B) Exception.--The provisions of this Act that 
                apply to an employee or individual shall not apply to a 
                volunteer who receives no compensation.
            (5) Employer.--The term ``employer'' means--
                    (A) a person engaged in an industry affecting 
                commerce (as defined in section 701(h) of the Civil 
                Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or 
                more employees (as defined in subparagraphs (A)(i) and 
                (B) of paragraph (4)) for each working day in each of 
                20 or more calendar weeks in the current or preceding 
                calendar year, and any agent of such a person, but does 
                not include a bona fide private membership club (other 
                than a labor organization) that is exempt from taxation 
                under section 501(c) of the Internal Revenue Code of 
                1986;
                    (B) an employing authority to which section 
                302(a)(1) of the Government Employee Rights Act of 1991 
                applies;
                    (C) an employing office, as defined in section 101 
                of the Congressional Accountability Act of 1995 or 
                section 411(c) of title 3, United States Code; or
                    (D) an entity to which section 717(a) of the Civil 
                Rights Act of 1964 applies.
            (6) Employment agency.--The term ``employment agency'' has 
        the meaning given the term in section 701(c) of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000e(c)).
            (7) Gender identity.--The term ``gender identity'' means 
        the gender-related identity, appearance, or mannerisms or other 
        gender-related characteristics of an individual, with or 
        without regard to the individual's designated sex at birth.
            (8) Labor organization.--The term ``labor organization'' 
        has the meaning given the term in section 701(d) of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000e(d)).
            (9) Person.--The term ``person'' has the meaning given the 
        term in section 701(a) of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e(a)).
            (10) Sexual orientation.--The term ``sexual orientation'' 
        means homosexuality, heterosexuality, or bisexuality.
            (11) State.--The term ``State'' has the meaning given the 
        term in section 701(i) of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e(i)).
    (b) Application of Definitions.--For purposes of this section, a 
reference in section 701 of the Civil Rights Act of 1964--
            (1) to an employee or an employer shall be considered to 
        refer to an employee (as defined in subsection (a)(4)) or an 
        employer (as defined in subsection (a)(5)), respectively, 
        except as provided in paragraph (2) of this subsection; and
            (2) to an employer in subsection (f) of that section shall 
        be considered to refer to an employer (as defined in subsection 
        (a)(5)(A)).

SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.

    (a) Employer Practices.--It shall be an unlawful employment 
practice for an employer--
            (1) to fail or refuse to hire or to discharge any 
        individual, or otherwise discriminate against any individual 
        with respect to the compensation, terms, conditions, or 
        privileges of employment of the individual, because of such 
        individual's actual or perceived sexual orientation or gender 
        identity; or
            (2) to limit, segregate, or classify the employees or 
        applicants for employment of the employer in any way that would 
        deprive or tend to deprive any individual of employment or 
        otherwise adversely affect the status of the individual as an 
        employee, because of such individual's actual or perceived 
        sexual orientation or gender identity.
    (b) Employment Agency Practices.--It shall be an unlawful 
employment practice for an employment agency to fail or refuse to refer 
for employment, or otherwise to discriminate against, any individual 
because of the actual or perceived sexual orientation or gender 
identity of the individual or to classify or refer for employment any 
individual on the basis of the actual or perceived sexual orientation 
or gender identity of the individual.
    (c) Labor Organization Practices.--It shall be an unlawful 
employment practice for a labor organization--
            (1) to exclude or to expel from its membership, or 
        otherwise to discriminate against, any individual because of 
        the actual or perceived sexual orientation or gender identity 
        of the individual;
            (2) to limit, segregate, or classify its membership or 
        applicants for membership, or to classify or fail or refuse to 
        refer for employment any individual, in any way that would 
        deprive or tend to deprive any individual of employment, or 
        would limit such employment or otherwise adversely affect the 
        status of the individual as an employee or as an applicant for 
        employment because of such individual's actual or perceived 
        sexual orientation or gender identity; or
            (3) to cause or attempt to cause an employer to 
        discriminate against an individual in violation of this 
        section.
    (d) Training Programs.--It shall be an unlawful employment practice 
for any employer, labor organization, or joint labor-management 
committee controlling apprenticeship or other training or retraining, 
including on-the-job training programs, to discriminate against any 
individual because of the actual or perceived sexual orientation or 
gender identity of the individual in admission to, or employment in, 
any program established to provide apprenticeship or other training.
    (e) Association.--An unlawful employment practice described in any 
of subsections (a) through (d) shall be considered to include an action 
described in that subsection, taken against an individual based on the 
actual or perceived sexual orientation or gender identity of a person 
with whom the individual associates or has associated.
    (f) No Preferential Treatment or Quotas.--Nothing in this Act shall 
be construed or interpreted to require or permit--
            (1) any covered entity to grant preferential treatment to 
        any individual or to any group because of the actual or 
        perceived sexual orientation or gender identity of such 
        individual or group on account of an imbalance which may exist 
        with respect to the total number or percentage of persons of 
        any actual or perceived sexual orientation or gender identity 
        employed by any employer, referred or classified for employment 
        by any employment agency or labor organization, admitted to 
        membership or classified by any labor organization, or admitted 
        to, or employed in, any apprenticeship or other training 
        program, in comparison with the total number or percentage of 
        persons of such actual or perceived sexual orientation or 
        gender identity in any community, State, section, or other 
        area, or in the available work force in any community, State, 
        section, or other area; or
            (2) the adoption or implementation by a covered entity of a 
        quota on the basis of actual or perceived sexual orientation or 
        gender identity.
    (g) No Disparate Impact Claims.--Only disparate treatment claims 
may be brought under this Act.
    (h) Standards of Proof.--Except as otherwise provided, an unlawful 
employment practice is established when the complaining party 
demonstrates that sexual orientation or gender identity was a 
motivating factor for any employment practice, even though other 
factors also motivated the practice.

SEC. 5. RETALIATION PROHIBITED.

    It shall be an unlawful employment practice for a covered entity to 
discriminate against an individual because such individual--
            (1) opposed any practice made an unlawful employment 
        practice by this Act; or
            (2) made a charge, testified, assisted, or participated in 
        any manner in an investigation, proceeding, or hearing under 
        this Act.

SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

    This Act shall not apply to a corporation, association, educational 
institution or institution of learning, or society that is exempt from 
the religious discrimination provisions of title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) 
or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)).

SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS' 
              PREFERENCES.

    (a) Armed Forces.--
            (1) Employment.--In this Act, the term ``employment'' does 
        not apply to the relationship between the United States and 
        members of the Armed Forces.
            (2) Armed forces.--In paragraph (1) the term ``Armed 
        Forces'' means the Army, Navy, Air Force, Marine Corps, and 
        Coast Guard.
    (b) Veterans' Preferences.--This title does not repeal or modify 
any Federal, State, territorial, or local law creating a special right 
or preference concerning employment for a veteran.

SEC. 8. CONSTRUCTION.

    (a) Dress or Grooming Standards.--Nothing in this Act shall 
prohibit an employer from requiring an employee, during the employee's 
hours at work, to adhere to reasonable dress or grooming standards not 
prohibited by other provisions of Federal, State, or local law, 
provided that the employer permits any employee who has undergone 
gender transition prior to the time of employment, and any employee who 
has notified the employer that the employee has undergone or is 
undergoing gender transition after the time of employment, to adhere to 
the same dress or grooming standards as apply for the gender to which 
the employee has transitioned or is transitioning.
    (b) Additional Facilities Not Required.--Nothing in this Act shall 
be construed to require the construction of new or additional 
facilities.

SEC. 9. COLLECTION OF STATISTICS PROHIBITED.

    The Commission and the Secretary of Labor shall neither compel the 
collection of nor require the production of statistics on actual or 
perceived sexual orientation or gender identity from covered entities 
pursuant to this Act.

SEC. 10. ENFORCEMENT.

    (a) Enforcement Powers.--With respect to the administration and 
enforcement of this Act in the case of a claim alleged by an individual 
for a violation of this Act--
            (1) the Commission shall have the same powers as the 
        Commission has to administer and enforce--
                    (A) title VII of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e et seq.); or
                    (B) sections 302 and 304 of the Government Employee 
                Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c),
        in the case of a claim alleged by such individual for a 
        violation of such title, or of section 302(a)(1) of the 
        Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
        16b(a)(1)), respectively;
            (2) the Librarian of Congress shall have the same powers as 
        the Librarian of Congress has to administer and enforce title 
        VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 
        in the case of a claim alleged by such individual for a 
        violation of such title;
            (3) the Board (as defined in section 101 of the 
        Congressional Accountability Act of 1995 (2 U.S.C. 1301)) shall 
        have the same powers as the Board has to administer and enforce 
        the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et 
        seq.) in the case of a claim alleged by such individual for a 
        violation of section 201(a)(1) of such Act (2 U.S.C. 
        1311(a)(1));
            (4) the Attorney General shall have the same powers as the 
        Attorney General has to administer and enforce--
                    (A) title VII of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e et seq.); or
                    (B) sections 302 and 304 of the Government Employee 
                Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c);
        in the case of a claim alleged by such individual for a 
        violation of such title, or of section 302(a)(1) of the 
        Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
        16b(a)(1)), respectively;
            (5) the President, the Commission, and the Merit Systems 
        Protection Board shall have the same powers as the President, 
        the Commission, and the Board, respectively, have to administer 
        and enforce chapter 5 of title 3, United States Code, in the 
        case of a claim alleged by such individual for a violation of 
        section 411 of such title; and
            (6) a court of the United States shall have the same 
        jurisdiction and powers as the court has to enforce--
                    (A) title VII of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e et seq.) in the case of a claim alleged by 
                such individual for a violation of such title;
                    (B) sections 302 and 304 of the Government Employee 
                Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c) 
                in the case of a claim alleged by such individual for a 
                violation of section 302(a)(1) of such Act (42 U.S.C. 
                2000e-16b(a)(1));
                    (C) the Congressional Accountability Act of 1995 (2 
                U.S.C. 1301 et seq.) in the case of a claim alleged by 
                such individual for a violation of section 201(a)(1) of 
                such Act (2 U.S.C. 1311(a)(1)); and
                    (D) chapter 5 of title 3, United States Code, in 
                the case of a claim alleged by such individual for a 
                violation of section 411 of such title.
    (b) Procedures and Remedies.--Except as provided in section 4(g), 
the procedures and remedies applicable to a claim alleged by an 
individual for a violation of this Act are--
            (1) the procedures and remedies applicable for a violation 
        of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e 
        et seq.) in the case of a claim alleged by such individual for 
        a violation of such title;
            (2) the procedures and remedies applicable for a violation 
        of section 302(a)(1) of the Government Employee Rights Act of 
        1991 (42 U.S.C. 2000e-16b(a)(1)) in the case of a claim alleged 
        by such individual for a violation of such section;
            (3) the procedures and remedies applicable for a violation 
        of section 201(a)(1) of the Congressional Accountability Act of 
        1995 (2 U.S.C. 1311(a)(1)) in the case of a claim alleged by 
        such individual for a violation of such section; and
            (4) the procedures and remedies applicable for a violation 
        of section 411 of title 3, United States Code, in the case of a 
        claim alleged by such individual for a violation of such 
        section.
    (c) Other Applicable Provisions.--With respect to a claim alleged 
by a covered employee (as defined in section 101 of the Congressional 
Accountability Act of 1995 (2 U.S.C. 1301)) for a violation of this 
Act, title III of the Congressional Accountability Act of 1995 (2 
U.S.C. 1381 et seq.) shall apply in the same manner as such title 
applies with respect to a claim alleged by such a covered employee for 
a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).
    (d) No Double Recovery.--An individual who files claims alleging 
that a practice is an unlawful employment practice under this Act and 
an unlawful employment practice because of sex under title VII of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) shall not be 
permitted to recover damages for such practice under both of--
            (1) this Act; and
            (2) section 1977A of the Revised Statutes (42 U.S.C. 1981a) 
        and title VII of the Civil Rights Act of 1964.
    (e) Motivating Factor Decisions.--On a claim in which an individual 
proved a violation under section 4(h) and a respondent demonstrates 
that the respondent would have taken the same action in the absence of 
the impermissible motivating factor, the court--
            (1) may grant declaratory relief, injunctive relief (except 
        as provided in paragraph (2)), and attorney's fees and costs 
        demonstrated to be directly attributable only to the pursuit of 
        a claim under section 4(h); and
            (2) shall not award damages or issue an order requiring any 
        admission, reinstatement, hiring, promotion, or payment.

SEC. 11. STATE AND FEDERAL IMMUNITY.

    (a) Abrogation of State Immunity.--A State shall not be immune 
under the 11th Amendment to the Constitution from a suit brought in a 
Federal court of competent jurisdiction for a violation of this Act.
    (b) Waiver of State Immunity.--
            (1) In general.--
                    (A) Waiver.--A State's receipt or use of Federal 
                financial assistance for any program or activity of a 
                State shall constitute a waiver of sovereign immunity, 
                under the 11th Amendment to the Constitution or 
                otherwise, to a suit brought by an employee or 
                applicant for employment of that program or activity 
                under this Act for a remedy authorized under subsection 
                (d).
                    (B) Definition.--In this paragraph, the term 
                ``program or activity'' has the meaning given the term 
                in section 606 of the Civil Rights Act of 1964 (42 
                U.S.C. 2000d-4a).
            (2) Effective date.--With respect to a particular program 
        or activity, paragraph (1) applies to conduct occurring on or 
        after the day, after the date of enactment of this Act, on 
        which a State first receives or uses Federal financial 
        assistance for that program or activity.
    (c) Remedies Against State Officials.--An official of a State may 
be sued in the official capacity of the official by any employee or 
applicant for employment who has complied with the applicable 
procedures of section 10, for equitable relief that is authorized under 
this Act. In such a suit the court may award to the prevailing party 
those costs authorized by section 722 of the Revised Statutes (42 
U.S.C. 1988).
    (d) Remedies Against the United States and the States.--
Notwithstanding any other provision of this Act, in an action or 
administrative proceeding against the United States or a State for a 
violation of this Act, remedies (including remedies at law and in 
equity, and interest) are available for the violation to the same 
extent as the remedies are available for a violation of title VII of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private 
entity, except that--
            (1) punitive damages are not available; and
            (2) compensatory damages are available to the extent 
        specified in section 1977A(b) of the Revised Statutes (42 
        U.S.C. 1981a(b)).

SEC. 12. ATTORNEYS' FEES.

    (a) Definition.--For purposes of this section, the term 
``decisionmaker'' means an entity described in section 10(a) (other 
than paragraph (4) of such section), acting in the discretion of the 
entity.
    (b) Authority.--Notwithstanding any other provision of this Act, in 
an action or administrative proceeding for a violation of this Act, a 
decisionmaker may allow the prevailing party, other than the Commission 
or the United States, a reasonable attorney's fee (including expert 
fees) as part of the costs, to the same extent as is permitted under 
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), 
sections 302 and 304 of the Government Employee Rights Act of 1991 (42 
U.S.C. 2000e-16b and 2000e-16c), the Congressional Accountability Act 
of 1995 (2 U.S.C. 1301 et seq.), or chapter 5 of title 3, United States 
Code, whichever applies to the prevailing party in that action or 
proceeding. The Commission and the United States shall be liable for 
the costs to the same extent as a private person.

SEC. 13. POSTING NOTICES.

    A covered entity who is required to post a notice described in 
section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) may be 
required to post an amended notice, including a description of the 
applicable provisions of this Act, in the manner prescribed by, and 
subject to the penalty provided under, section 711 of the Civil Rights 
Act of 1964. Nothing in this Act shall be construed to require a 
separate notice to be posted.

SEC. 14. REGULATIONS.

    (a) In General.--Except as provided in subsections (b), (c), and 
(d), the Commission shall have authority to issue regulations to carry 
out this Act.
    (b) Librarian of Congress.--The Librarian of Congress shall have 
authority to issue regulations to carry out this Act with respect to 
employees and applicants for employment of the Library of Congress.
    (c) Board.--The Board referred to in section 10(a)(3) shall have 
authority to issue regulations to carry out this Act, in accordance 
with section 304 of the Congressional Accountability Act of 1995 (2 
U.S.C. 1384), with respect to covered employees, as defined in section 
101 of such Act (2 U.S.C. 1301).
    (d) President.--The President shall have authority to issue 
regulations to carry out this Act with respect to covered employees, as 
defined in section 411(c) of title 3, United States Code, and 
applicants for employment as such employees.

SEC. 15. RELATIONSHIP TO OTHER LAWS.

    This Act shall not invalidate or limit the rights, remedies, or 
procedures available to an individual claiming discrimination 
prohibited under any other Federal law or regulation or any law or 
regulation of a State or political subdivision of a State.

SEC. 16. SEVERABILITY.

    If any provision of this Act, or the application of the provision 
to any person or circumstance, is held to be invalid, the remainder of 
this Act and the application of the provision to any other person or 
circumstances shall not be affected by the invalidity.

SEC. 17. EFFECTIVE DATE.

    This Act shall take effect on the date that is 6 months after the 
date of enactment of this Act and shall not apply to conduct occurring 
before the effective date.
                                                       Calendar No. 184

113th CONGRESS

  1st Session

                                 S. 815

                          [Report No. 113-105]

_______________________________________________________________________

                                 A BILL

     To prohibit employment discrimination on the basis of sexual 
                    orientation or gender identity.

_______________________________________________________________________

                           September 12, 2013

                       Reported with an amendment
```