II 

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 

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[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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Employment Non-Dis5 crimination Act of 2013’’. 

6 SEC. 2. PURPOSES. 

7 The purposes of this Act are— 

8 (1) to address the history and persistent, wide9 spread pattern of discrimination, including unconsti10 tutional discrimination, on the bases of sexual ori11 entation and gender identity by private sector em12 ployers and local, State, and Federal Government 

13 employers; 

14 (2) to provide an explicit, comprehensive Fed15 eral prohibition against employment discrimination 

16 on the bases of sexual orientation and gender iden17 tity, including meaningful and effective remedies for 

18 any such discrimination; and 

19 (3) to invoke congressional powers, including 

20 the powers to enforce the 14th Amendment to the 

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1 Constitution, and to regulate interstate commerce 

2 pursuant to section 8 of article I of the Constitution, 

3 in order to prohibit employment discrimination on 

4 the bases of sexual orientation and gender identity. 

5 SEC. 3. DEFINITIONS. 

6 (a) IN GENERAL.—In this Act: 

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

8 means the Equal Employment Opportunity Commis9 sion. 

10 (2) COVERED ENTITY.—The term ‘‘covered en11 tity’’ means an employer, employment agency, labor 

12 organization, or joint labor-management committee. 

13 (3) EMPLOYEE.— 

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

15 means— 

16 (i) an employee as defined in section 

17 701(f) of the Civil Rights Act of 1964 (42 

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

19 (ii) a State employee to which section 

20 302(a)(1) of the Government Employee 

21 Rights Act of 1991 (42 U.S.C. 2000e– 

22 16b(a)(1)) applies; 

23 (iii) a covered employee, as defined in 

24 section 101 of the Congressional Account25 ability Act of 1995 (2 U.S.C. 1301) or secmstockstill on DSK4VPTVN1PROD with BILLS

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1 tion 411(c) of title 3, United States Code; 

2 or 

3 (iv) an employee or applicant to which 

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

5 1964 (42 U.S.C. 2000e–16(a)) applies. 

6 (B) EXCEPTION.—The provisions of this 

7 Act that apply to an employee or individual 

8 shall not apply to a volunteer who receives no 

9 compensation. 

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

11 means— 

12 (A) a person engaged in an industry affect13 ing commerce (as defined in section 701(h) of 

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

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

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

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

18 20 or more calendar weeks in the current or 

19 preceding calendar year, and any agent of such 

20 a person, but does not include a bona fide pri21 vate membership club (other than a labor orga22 nization) that is exempt from taxation under 

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

24 1986; 

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1 (B) an employing authority to which sec2 tion 302(a)(1) of the Government Employee 

3 Rights Act of 1991 applies; 

4 (C) an employing office, as defined in sec5 tion 101 of the Congressional Accountability 

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

7 States Code; or 

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

9 the Civil Rights Act of 1964 applies. 

10 (5) EMPLOYMENT AGENCY.—The term ‘‘em11 ployment agency’’ has the meaning given the term in 

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

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

14 (6) GENDER IDENTITY.—The term ‘‘gender 

15 identity’’ means the gender-related identity, appear16 ance, or mannerisms or other gender-related charac17 teristics of an individual, with or without regard to 

18 the individual’s designated sex at birth. 

19 (7) LABOR ORGANIZATION.—The term ‘‘labor 

20 organization’’ has the meaning given the term in 

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

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

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

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

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

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

2 orientation’’ means homosexuality, heterosexuality, 

3 or bisexuality. 

4 (10) STATE.—The term ‘‘State’’ has the mean5 ing given the term in section 701(i) of the Civil 

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

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

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

9 Act of 1964— 

10 (1) to an employee or an employer shall be con11 sidered to refer to an employee (as defined in sub12 section (a)(3)) or an employer (as defined in sub13 section (a)(4)), respectively, except as provided in 

14 paragraph (2) of this subsection; and 

15 (2) to an employer in subsection (f) of that sec16 tion shall be considered to refer to an employer (as 

17 defined in subsection (a)(4)(A)). 

18 SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED. 

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

20 employment practice for an employer— 

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

22 individual, or otherwise discriminate against any in23 dividual with respect to the compensation, terms, 

24 conditions, or privileges of employment of the indimstockstill on DSK4VPTVN1PROD with BILLS

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1 vidual, because of such individual’s actual or per2 ceived sexual orientation or gender identity; or 

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

4 or applicants for employment of the employer in any 

5 way that would deprive or tend to deprive any indi6 vidual of employment or otherwise adversely affect 

7 the status of the individual as an employee, because 

8 of such individual’s actual or perceived sexual ori9 entation or gender identity. 

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

11 an unlawful employment practice for an employment agen12 cy to fail or refuse to refer for employment, or otherwise 

13 to discriminate against, any individual because of the ac14 tual or perceived sexual orientation or gender identity of 

15 the individual or to classify or refer for employment any 

16 individual on the basis of the actual or perceived sexual 

17 orientation or gender identity of the individual. 

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

19 an unlawful employment practice for a labor organiza20 tion— 

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

22 or otherwise to discriminate against, any individual 

23 because of the actual or perceived sexual orientation 

24 or gender identity of the individual; 

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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 that would deprive or tend to deprive any 

5 individual of employment, or would limit such em6 ployment or otherwise adversely affect the status of 

7 the individual as an employee or as an applicant for 

8 employment because of such individual’s actual or 

9 perceived sexual orientation or gender identity; or 

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

11 discriminate against an individual in violation of this 

12 section. 

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

14 employment practice for any employer, labor organization, 

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

19 or gender identity of the individual in admission to, or em20 ployment in, any program established to provide appren21 ticeship or other training. 

22 (e) ASSOCIATION.—An unlawful employment practice 

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

24 considered to include an action described in that sub25 section, taken against an individual based on the actual 

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1 or perceived sexual orientation or gender identity of a per2 son with whom the individual associates or has associated. 

3 (f) NO PREFERENTIAL TREATMENT OR QUOTAS.— 

4 Nothing in this Act shall be construed or interpreted to 

5 require or permit— 

6 (1) any covered entity to grant preferential 

7 treatment to any individual or to any group because 

8 of the actual or perceived sexual orientation or gen9 der identity of such individual or group on account 

10 of an imbalance which may exist with respect to the 

11 total number or percentage of persons of any actual 

12 or perceived sexual orientation or gender identity 

13 employed by any employer, referred or classified for 

14 employment by any employment agency or labor or15 ganization, admitted to membership or classified by 

16 any labor organization, or admitted to, or employed 

17 in, any apprenticeship or other training program, in 

18 comparison with the total number or percentage of 

19 persons of such actual or perceived sexual orienta20 tion or gender identity in any community, State, sec21 tion, or other area, or in the available work force in 

22 any community, State, section, or other area; or 

23 (2) the adoption or implementation by a cov24 ered entity of a quota on the basis of actual or per25 ceived sexual orientation or gender identity. 

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1 (g) DISPARATE IMPACT.—Only disparate treatment 

2 claims may be brought under this Act. 

3 SEC. 5. RETALIATION PROHIBITED. 

4 It shall be an unlawful employment practice for a cov5 ered entity to discriminate against an individual because 

6 such individual— 

7 (1) opposed any practice made an unlawful em8 ployment practice by this Act; or 

9 (2) made a charge, testified, assisted, or partici10 pated in any manner in an investigation, proceeding, 

11 or hearing under this Act. 

12 SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS. 

13 This Act shall not apply to a corporation, association, 

14 educational institution or institution of learning, or society 

15 that is exempt from the religious discrimination provisions 

16 of title VII of the Civil Rights Act of 1964 pursuant (42 

17 U.S.C. 2000e et seq.) to section 702(a) or 703(e)(2) of 

18 such Act (42 U.S.C. 2000e–1(a), 2000e–2(e)(2)). 

19 SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED 

20 FORCES; VETERANS’ PREFERENCES. 

21 (a) ARMED FORCES.— 

22 (1) EMPLOYMENT.—In this Act, the term ‘‘em23 ployment’’ does not apply to the relationship be24 tween the United States and members of the Armed 

25 Forces. 

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

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

3 Force, Marine Corps, and Coast Guard. 

4 (b) VETERANS’ PREFERENCES.—This title does not 

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

6 law creating a special right or preference concerning em7 ployment for a veteran. 

8 SEC. 8. CONSTRUCTION. 

9 (a) DRESS OR GROOMING STANDARDS.—Nothing in 

10 this Act shall prohibit an employer from requiring an em11 ployee, during the employee’s hours at work, to adhere to 

12 reasonable dress or grooming standards not prohibited by 

13 other provisions of Federal, State, or local law, provided 

14 that the employer permits any employee who has under15 gone gender transition prior to the time of employment, 

16 and any employee who has notified the employer that the 

17 employee has undergone or is undergoing gender transi18 tion after the time of employment, to adhere to the same 

19 dress or grooming standards as apply for the gender to 

20 which the employee has transitioned or is transitioning. 

21 (b) ADDITIONAL FACILITIES NOT REQUIRED.— 

22 Nothing in this Act shall be construed to require the con23 struction of new or additional facilities. 

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1 SEC. 9. COLLECTION OF STATISTICS PROHIBITED. 

2 The Commission shall neither compel the collection 

3 of nor require the production of statistics on actual or per4 ceived sexual orientation or gender identity from covered 

5 entities. 

6 SEC. 10. ENFORCEMENT. 

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

8 administration and enforcement of this Act in the case of 

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

10 Act— 

11 (1) the Commission shall have the same powers 

12 as the Commission has to administer and enforce— 

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

14 1964 (42 U.S.C. 2000e et seq.); or 

15 (B) sections 302 and 304 of the Govern16 ment Employee Rights Act of 1991 (42 U.S.C. 

17 2000e–16b and 2000e–16c), 

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

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

20 the Government Employee Rights Act of 1991 (42 

21 U.S.C. 2000e–16b(a)(1)), respectively; 

22 (2) the Librarian of Congress shall have the 

23 same powers as the Librarian of Congress has to ad24 minister and enforce title VII of the Civil Rights Act 

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

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1 claim alleged by such individual for a violation of 

2 such title; 

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

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

5 1301)) shall have the same powers as the Board has 

6 to administer and enforce the Congressional Ac7 countability Act of 1995 (2 U.S.C. 1301 et seq.) in 

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

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

10 1311(a)(1)); 

11 (4) the Attorney General shall have the same 

12 powers as the Attorney General has to administer 

13 and enforce— 

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

15 1964 (42 U.S.C. 2000e et seq.); or 

16 (B) sections 302 and 304 of the Govern17 ment Employee Rights Act of 1991 (42 U.S.C. 

18 2000e–16b and 2000e–16c); 

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

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

21 the Government Employee Rights Act of 1991 (42 

22 U.S.C. 2000e–16b(a)(1)), respectively; 

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

24 Merit Systems Protection Board shall have the same 

25 powers as the President, the Commission, and the 

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1 Board, respectively, have to administer and enforce 

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

3 of a claim alleged by such individual for a violation 

4 of section 411 of such title; and 

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

6 same jurisdiction and powers as the court has to en7 force— 

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

9 1964 (42 U.S.C. 2000e et seq.) in the case of 

10 a claim alleged by such individual for a viola11 tion of such title; 

12 (B) sections 302 and 304 of the Govern13 ment Employee Rights Act of 1991 (42 U.S.C. 

14 2000e–16b and 2000e–16c) in the case of a 

15 claim alleged by such individual for a violation 

16 of section 302(a)(1) of such Act (42 U.S.C. 

17 2000e–16b(a)(1)); 

18 (C) the Congressional Accountability Act 

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

20 a claim alleged by such individual for a viola21 tion of section 201(a)(1) of such Act (2 U.S.C. 

22 1311(a)(1)); and 

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

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1 dividual for a violation of section 411 of such 

2 title. 

3 (b) PROCEDURES AND REMEDIES.—The procedures 

4 and remedies applicable to a claim alleged by an individual 

5 for a violation of this Act are— 

6 (1) the procedures and remedies applicable for 

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

8 1964 (42 U.S.C. 2000e et seq.) in the case of a 

9 claim alleged by such individual for a violation of 

10 such title; 

11 (2) the procedures and remedies applicable for 

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

13 Employee Rights Act of 1991 (42 U.S.C. 2000e– 

14 16b(a)(1)) in the case of a claim alleged by such in15 dividual for a violation of such section; 

16 (3) the procedures and remedies applicable for 

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

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

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

20 violation of such section; and 

21 (4) the procedures and remedies applicable for 

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

23 Code, in the case of a claim alleged by such indi24 vidual for a violation of such section. 

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1 (c) OTHER APPLICABLE PROVISIONS.—With respect 

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

3 section 101 of the Congressional Accountability Act of 

4 1995 (2 U.S.C. 1301)) for a violation of this Act, title 

5 III of the Congressional Accountability Act of 1995 (2 

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

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

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

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

10 SEC. 11. STATE AND FEDERAL IMMUNITY. 

11 (a) ABROGATION OF STATE IMMUNITY.—A State 

12 shall not be immune under the 11th Amendment to the 

13 Constitution from a suit brought in a Federal court of 

14 competent jurisdiction for a violation of this Act. 

15 (b) WAIVER OF STATE IMMUNITY.— 

16 (1) IN GENERAL.— 

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

18 Federal financial assistance for any program or 

19 activity of a State shall constitute a waiver of 

20 sovereign immunity, under the 11th Amend21 ment to the Constitution or otherwise, to a suit 

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

24 Act for a remedy authorized under subsection 

25 (d). 

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

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

3 given the term in section 606 of the Civil 

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

5 (2) EFFECTIVE DATE.—With respect to a par6 ticular program or activity, paragraph (1) applies to 

7 conduct occurring on or after the day, after the date 

8 of enactment of this Act, on which a State first re9 ceives or uses Federal financial assistance for that 

10 program or activity. 

11 (c) REMEDIES AGAINST STATE OFFICIALS.—An offi12 cial of a State may be sued in the official capacity of the 

13 official by any employee or applicant for employment who 

14 has complied with the applicable procedures of section 10, 

15 for equitable relief that is authorized under this Act. In 

16 such a suit the court may award to the prevailing party 

17 those costs authorized by section 722 of the Revised Stat18 utes (42 U.S.C. 1988). 

19 (d) REMEDIES AGAINST THE UNITED STATES AND

20 THE STATES.—Notwithstanding any other provision of 

21 this Act, in an action or administrative proceeding against 

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

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

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

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

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

2 by a private entity, except that— 

3 (1) punitive damages are not available; and 

4 (2) compensatory damages are available to the 

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

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

7 SEC. 12. ATTORNEYS’ FEES. 

8 Notwithstanding any other provision of this Act, in 

9 an action or administrative proceeding for a violation of 

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

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

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

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

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

16 to the same extent as a private person. 

17 SEC. 13. POSTING NOTICES. 

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

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

23 applicable provisions of this Act in the manner prescribed 

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

25 of the Civil Rights Act of 1964. 

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1 SEC. 14. REGULATIONS. 

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

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

4 issue regulations to carry out this Act. 

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

6 Congress shall have authority to issue regulations to carry 

7 out this Act with respect to employees and applicants for 

8 employment of the Library of Congress. 

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

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

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

13 with respect to covered employees, as defined in section 

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

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

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

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

18 United States Code, and applicants for employment as 

19 such employees. 

20 SEC. 15. RELATIONSHIP TO OTHER LAWS. 

21 This Act shall not invalidate or limit the rights, rem22 edies, or procedures available to an individual claiming 

23 discrimination prohibited under any other Federal law or 

24 regulation or any law or regulation of a State or political 

25 subdivision of a State. 

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1 SEC. 16. SEVERABILITY. 

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

3 provision to any person or circumstance, is held to be in4 valid, the remainder of this Act and the application of the 

5 provision to any other person or circumstances shall not 

6 be affected by the invalidity. 

7 SEC. 17. EFFECTIVE DATE. 

8 This Act shall take effect on the date that is 6 

9 months after the date of enactment of this Act and shall 

10 not apply to conduct occurring before the effective date. 

11 SECTION 1. SHORT TITLE. 

12 This Act may be cited as the ‘‘Employment Non-Dis13 crimination Act of 2013’’. 

14 SEC. 2. PURPOSES. 

15 The purposes of this Act are— 

16 (1) to address the history and persistent, wide17 spread pattern of discrimination, including unconsti18 tutional discrimination, on the bases of sexual ori19 entation and gender identity by private sector em20 ployers and local, State, and Federal Government em21 ployers; 

22 (2) to provide an explicit, comprehensive Federal 

23 prohibition against employment discrimination on 

24 the bases of sexual orientation and gender identity, 

25 including meaningful and effective remedies for any 

26 such discrimination; and 

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1 (3) to invoke congressional powers, including the 

2 powers to enforce the 14th Amendment to the Con3 stitution, and to regulate interstate commerce pursu4 ant to section 8 of article I of the Constitution, in 

5 order to prohibit employment discrimination on the 

6 bases of sexual orientation and gender identity. 

7 SEC. 3. DEFINITIONS. 

8 (a) IN GENERAL.—In this Act: 

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

10 means the Equal Employment Opportunity Commis11 sion. 

12 (2) COVERED ENTITY.—The term ‘‘covered enti13 ty’’ means an employer, employment agency, labor or14 ganization, or joint labor-management committee. 

15 (3) DEMONSTRATES.—The term ‘‘demonstrates’’ 

16 means meets the burdens of production and persua17 sion. 

18 (4) EMPLOYEE.— 

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

20 means— 

21 (i) an employee as defined in section 

22 701(f) of the Civil Rights Act of 1964 (42 

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

24 (ii) a State employee to which section 

25 302(a)(1) of the Government Employee 

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1 Rights Act of 1991 (42 U.S.C. 2000e– 

2 16b(a)(1)) applies; 

3 (iii) a covered employee, as defined in 

4 section 101 of the Congressional Account5 ability Act of 1995 (2 U.S.C. 1301) or sec6 tion 411(c) of title 3, United States Code; or 

7 (iv) an employee or applicant to which 

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

9 1964 (42 U.S.C. 2000e–16(a)) applies. 

10 (B) EXCEPTION.—The provisions of this Act 

11 that apply to an employee or individual shall 

12 not apply to a volunteer who receives no com13 pensation. 

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

15 (A) a person engaged in an industry affect16 ing commerce (as defined in section 701(h) of the 

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

18 who has 15 or more employees (as defined in 

19 subparagraphs (A)(i) and (B) of paragraph (4)) 

20 for each working day in each of 20 or more cal21 endar weeks in the current or preceding calendar 

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

23 not include a bona fide private membership club 

24 (other than a labor organization) that is exempt 

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1 from taxation under section 501(c) of the Inter2 nal Revenue Code of 1986; 

3 (B) an employing authority to which sec4 tion 302(a)(1) of the Government Employee 

5 Rights Act of 1991 applies; 

6 (C) an employing office, as defined in sec7 tion 101 of the Congressional Accountability Act 

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

9 Code; or 

10 (D) an entity to which section 717(a) of the 

11 Civil Rights Act of 1964 applies. 

12 (6) EMPLOYMENT AGENCY.—The term ‘‘employ13 ment agency’’ has the meaning given the term in sec14 tion 701(c) of the Civil Rights Act of 1964 (42 U.S.C. 

15 2000e(c)). 

16 (7) GENDER IDENTITY.—The term ‘‘gender iden17 tity’’ means the gender-related identity, appearance, 

18 or mannerisms or other gender-related characteristics 

19 of an individual, with or without regard to the indi20 vidual’s designated sex at birth. 

21 (8) LABOR ORGANIZATION.—The term ‘‘labor or22 ganization’’ has the meaning given the term in sec23 tion 701(d) of the Civil Rights Act of 1964 (42 U.S.C. 

24 2000e(d)). 

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1 (9) PERSON.—The term ‘‘person’’ has the mean2 ing given the term in section 701(a) of the Civil 

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

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

5 orientation’’ means homosexuality, heterosexuality, or 

6 bisexuality. 

7 (11) STATE.—The term ‘‘State’’ has the meaning 

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

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

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

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

12 Act of 1964— 

13 (1) to an employee or an employer shall be con14 sidered to refer to an employee (as defined in sub15 section (a)(4)) or an employer (as defined in sub16 section (a)(5)), respectively, except as provided in 

17 paragraph (2) of this subsection; and 

18 (2) to an employer in subsection (f) of that sec19 tion shall be considered to refer to an employer (as 

20 defined in subsection (a)(5)(A)). 

21 SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED. 

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

23 employment practice for an employer— 

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

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1 dividual with respect to the compensation, terms, con2 ditions, or privileges of employment of the individual, 

3 because of such individual’s actual or perceived sexual 

4 orientation or gender identity; or 

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

6 or applicants for employment of the employer in any 

7 way that would deprive or tend to deprive any indi8 vidual of employment or otherwise adversely affect the 

9 status of the individual as an employee, because of 

10 such individual’s actual or perceived sexual orienta11 tion or gender identity. 

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

13 unlawful employment practice for an employment agency 

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

15 discriminate against, any individual because of the actual 

16 or perceived sexual orientation or gender identity of the in17 dividual or to classify or refer for employment any indi18 vidual on the basis of the actual or perceived sexual orienta19 tion or gender identity of the individual. 

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

21 unlawful employment practice for a labor organization— 

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

23 or otherwise to discriminate against, any individual 

24 because of the actual or perceived sexual orientation 

25 or gender identity of the individual; 

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1 (2) to limit, segregate, or classify its membership 

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

3 refuse to refer for employment any individual, in any 

4 way that would deprive or tend to deprive any indi5 vidual of employment, or would limit such employ6 ment or otherwise adversely affect the status of the in7 dividual as an employee or as an applicant for em8 ployment because of such individual’s actual or per9 ceived sexual orientation or gender identity; or 

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

11 discriminate against an individual in violation of 

12 this section. 

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

14 employment practice for any employer, labor organization, 

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

19 or gender identity of the individual in admission to, or em20 ployment in, any program established to provide appren21 ticeship or other training. 

22 (e) ASSOCIATION.—An unlawful employment practice 

23 described in any of subsections (a) through (d) shall be con24 sidered to include an action described in that subsection, 

25 taken against an individual based on the actual or permstockstill on DSK4VPTVN1PROD with BILLS

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1 ceived sexual orientation or gender identity of a person with 

2 whom the individual associates or has associated. 

3 (f) NO PREFERENTIAL TREATMENT OR QUOTAS.— 

4 Nothing in this Act shall be construed or interpreted to re5 quire or permit— 

6 (1) any covered entity to grant preferential 

7 treatment to any individual or to any group because 

8 of the actual or perceived sexual orientation or gender 

9 identity of such individual or group on account of an 

10 imbalance which may exist with respect to the total 

11 number or percentage of persons of any actual or per12 ceived sexual orientation or gender identity employed 

13 by any employer, referred or classified for employ14 ment by any employment agency or labor organiza15 tion, admitted to membership or classified by any 

16 labor organization, or admitted to, or employed in, 

17 any apprenticeship or other training program, in 

18 comparison with the total number or percentage of 

19 persons of such actual or perceived sexual orientation 

20 or gender identity in any community, State, section, 

21 or other area, or in the available work force in any 

22 community, State, section, or other area; or 

23 (2) the adoption or implementation by a covered 

24 entity of a quota on the basis of actual or perceived 

25 sexual orientation or gender identity. 

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1 (g) NO DISPARATE IMPACT CLAIMS.—Only disparate 

2 treatment claims may be brought under this Act. 

3 (h) STANDARDS OF PROOF.—Except as otherwise pro4 vided, an unlawful employment practice is established when 

5 the complaining party demonstrates that sexual orientation 

6 or gender identity was a motivating factor for any employ7 ment practice, even though other factors also motivated the 

8 practice. 

9 SEC. 5. RETALIATION PROHIBITED. 

10 It shall be an unlawful employment practice for a cov11 ered entity to discriminate against an individual because 

12 such individual— 

13 (1) opposed any practice made an unlawful em14 ployment practice by this Act; or 

15 (2) made a charge, testified, assisted, or partici16 pated in any manner in an investigation, proceeding, 

17 or hearing under this Act. 

18 SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS. 

19 This Act shall not apply to a corporation, association, 

20 educational institution or institution of learning, or society 

21 that is exempt from the religious discrimination provisions 

22 of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e 

23 et seq.) pursuant to section 702(a) or 703(e)(2) of such Act 

24 (42 U.S.C. 2000e–1(a), 2000e–2(e)(2)). 

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1 SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED 

2 FORCES; VETERANS’ PREFERENCES. 

3 (a) ARMED FORCES.— 

4 (1) EMPLOYMENT.—In this Act, the term ‘‘em5 ployment’’ does not apply to the relationship between 

6 the United States and members of the Armed Forces. 

7 (2) ARMED FORCES.—In paragraph (1) the term 

8 ‘‘Armed Forces’’ means the Army, Navy, Air Force, 

9 Marine Corps, and Coast Guard. 

10 (b) VETERANS’ PREFERENCES.—This title does not re11 peal or modify any Federal, State, territorial, or local law 

12 creating a special right or preference concerning employ13 ment for a veteran. 

14 SEC. 8. CONSTRUCTION. 

15 (a) DRESS OR GROOMING STANDARDS.—Nothing in 

16 this Act shall prohibit an employer from requiring an em17 ployee, during the employee’s hours at work, to adhere to 

18 reasonable dress or grooming standards not prohibited by 

19 other provisions of Federal, State, or local law, provided 

20 that the employer permits any employee who has undergone 

21 gender transition prior to the time of employment, and any 

22 employee who has notified the employer that the employee 

23 has undergone or is undergoing gender transition after the 

24 time of employment, to adhere to the same dress or groom25 ing standards as apply for the gender to which the employee 

26 has transitioned or is transitioning. 

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1 (b) ADDITIONAL FACILITIES NOT REQUIRED.—Noth2 ing in this Act shall be construed to require the construction 

3 of new or additional facilities. 

4 SEC. 9. COLLECTION OF STATISTICS PROHIBITED. 

5 The Commission and the Secretary of Labor shall nei6 ther compel the collection of nor require the production of 

7 statistics on actual or perceived sexual orientation or gen8 der identity from covered entities pursuant to this Act. 

9 SEC. 10. ENFORCEMENT. 

10 (a) ENFORCEMENT POWERS.—With respect to the ad11 ministration and enforcement of this Act in the case of a 

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

13 (1) the Commission shall have the same powers 

14 as the Commission has to administer and enforce— 

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

16 (42 U.S.C. 2000e et seq.); or 

17 (B) sections 302 and 304 of the Government 

18 Employee Rights Act of 1991 (42 U.S.C. 2000e– 

19 16b and 2000e–16c), 

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

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

22 Government Employee Rights Act of 1991 (42 U.S.C. 

23 2000e–16b(a)(1)), respectively; 

24 (2) the Librarian of Congress shall have the same 

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1 ister and enforce title VII of the Civil Rights Act of 

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

3 alleged by such individual for a violation of such 

4 title; 

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

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

7 1301)) shall have the same powers as the Board has 

8 to administer and enforce the Congressional Account9 ability Act of 1995 (2 U.S.C. 1301 et seq.) in the case 

10 of a claim alleged by such individual for a violation 

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

12 (4) the Attorney General shall have the same 

13 powers as the Attorney General has to administer and 

14 enforce— 

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

16 (42 U.S.C. 2000e et seq.); or 

17 (B) sections 302 and 304 of the Government 

18 Employee Rights Act of 1991 (42 U.S.C. 2000e– 

19 16b and 2000e–16c); 

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

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

22 Government Employee Rights Act of 1991 (42 U.S.C. 

23 2000e–16b(a)(1)), respectively; 

24 (5) the President, the Commission, and the Merit 

25 Systems Protection Board shall have the same powers 

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1 as the President, the Commission, and the Board, re2 spectively, have to administer and enforce chapter 5 

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

4 alleged by such individual for a violation of section 

5 411 of such title; and 

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

7 same jurisdiction and powers as the court has to en8 force— 

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

10 (42 U.S.C. 2000e et seq.) in the case of a claim 

11 alleged by such individual for a violation of such 

12 title; 

13 (B) sections 302 and 304 of the Government 

14 Employee Rights Act of 1991 (42 U.S.C. 2000e– 

15 16b and 2000e–16c) in the case of a claim al16 leged by such individual for a violation of sec17 tion 302(a)(1) of such Act (42 U.S.C. 2000e– 

18 16b(a)(1)); 

19 (C) the Congressional Accountability Act of 

20 1995 (2 U.S.C. 1301 et seq.) in the case of a 

21 claim alleged by such individual for a violation 

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

23 1311(a)(1)); and 

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1 (D) chapter 5 of title 3, United States Code, 

2 in the case of a claim alleged by such individual 

3 for a violation of section 411 of such title. 

4 (b) PROCEDURES AND REMEDIES.—Except as pro5 vided in section 4(g), the procedures and remedies applica6 ble to a claim alleged by an individual for a violation of 

7 this Act are— 

8 (1) the procedures and remedies applicable for a 

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

10 (42 U.S.C. 2000e et seq.) in the case of a claim al11 leged by such individual for a violation of such title; 

12 (2) the procedures and remedies applicable for a 

13 violation of section 302(a)(1) of the Government Em14 ployee Rights Act of 1991 (42 U.S.C. 2000e– 

15 16b(a)(1)) in the case of a claim alleged by such indi16 vidual for a violation of such section; 

17 (3) the procedures and remedies applicable for a 

18 violation of section 201(a)(1) of the Congressional Ac19 countability Act of 1995 (2 U.S.C. 1311(a)(1)) in the 

20 case of a claim alleged by such individual for a viola21 tion of such section; and 

22 (4) the procedures and remedies applicable for a 

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

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

25 a violation of such section. 

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1 (c) OTHER APPLICABLE PROVISIONS.—With respect to 

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

3 101 of the Congressional Accountability Act of 1995 (2 

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

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

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

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

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

9 1311(a)(1)). 

10 (d) NO DOUBLE RECOVERY.—An individual who files 

11 claims alleging that a practice is an unlawful employment 

12 practice under this Act and an unlawful employment prac13 tice because of sex under title VII of the Civil Rights Act 

14 of 1964 (42 U.S.C. 2000e et seq.) shall not be permitted 

15 to recover damages for such practice under both of— 

16 (1) this Act; and 

17 (2) section 1977A of the Revised Statutes (42 

18 U.S.C. 1981a) and title VII of the Civil Rights Act 

19 of 1964. 

20 (e) MOTIVATING FACTOR DECISIONS.—On a claim in 

21 which an individual proved a violation under section 4(h) 

22 and a respondent demonstrates that the respondent would 

23 have taken the same action in the absence of the impermis24 sible motivating factor, the court— 

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1 (1) may grant declaratory relief, injunctive relief 

2 (except as provided in paragraph (2)), and attorney’s 

3 fees and costs demonstrated to be directly attributable 

4 only to the pursuit of a claim under section 4(h); and 

5 (2) shall not award damages or issue an order 

6 requiring any admission, reinstatement, hiring, pro7 motion, or payment. 

8 SEC. 11. STATE AND FEDERAL IMMUNITY. 

9 (a) ABROGATION OF STATE IMMUNITY.—A State shall 

10 not be immune under the 11th Amendment to the Constitu11 tion from a suit brought in a Federal court of competent 

12 jurisdiction for a violation of this Act. 

13 (b) WAIVER OF STATE IMMUNITY.— 

14 (1) IN GENERAL.— 

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

16 Federal financial assistance for any program or 

17 activity of a State shall constitute a waiver of 

18 sovereign immunity, under the 11th Amendment 

19 to the Constitution or otherwise, to a suit 

20 brought by an employee or applicant for employ21 ment of that program or activity under this Act 

22 for a remedy authorized under subsection (d). 

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

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

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1 given the term in section 606 of the Civil Rights 

2 Act of 1964 (42 U.S.C. 2000d–4a). 

3 (2) EFFECTIVE DATE.—With respect to a par4 ticular program or activity, paragraph (1) applies to 

5 conduct occurring on or after the day, after the date 

6 of enactment of this Act, on which a State first re7 ceives or uses Federal financial assistance for that 

8 program or activity. 

9 (c) REMEDIES AGAINST STATE OFFICIALS.—An offi10 cial of a State may be sued in the official capacity of the 

11 official by any employee or applicant for employment who 

12 has complied with the applicable procedures of section 10, 

13 for equitable relief that is authorized under this Act. In such 

14 a suit the court may award to the prevailing party those 

15 costs authorized by section 722 of the Revised Statutes (42 

16 U.S.C. 1988). 

17 (d) REMEDIES AGAINST THE UNITED STATES AND

18 THE STATES.—Notwithstanding any other provision of this 

19 Act, in an action or administrative proceeding against the 

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

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

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

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

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

25 except that— 

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1 (1) punitive damages are not available; and 

2 (2) compensatory damages are available to the 

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

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

5 SEC. 12. ATTORNEYS’ FEES. 

6 (a) DEFINITION.—For purposes of this section, the 

7 term ‘‘decisionmaker’’ means an entity described in section 

8 10(a) (other than paragraph (4) of such section), acting in 

9 the discretion of the entity. 

10 (b) AUTHORITY.—Notwithstanding any other provi11 sion of this Act, in an action or administrative proceeding 

12 for a violation of this Act, a decisionmaker may allow the 

13 prevailing party, other than the Commission or the United 

14 States, a reasonable attorney’s fee (including expert fees) 

15 as part of the costs, to the same extent as is permitted under 

16 title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e 

17 et seq.), sections 302 and 304 of the Government Employee 

18 Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c), 

19 the Congressional Accountability Act of 1995 (2 U.S.C. 

20 1301 et seq.), or chapter 5 of title 3, United States Code, 

21 whichever applies to the prevailing party in that action or 

22 proceeding. The Commission and the United States shall 

23 be liable for the costs to the same extent as a private person. 

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1 SEC. 13. POSTING NOTICES. 

2 A covered entity who is required to post a notice de3 scribed in section 711 of the Civil Rights Act of 1964 (42 

4 U.S.C. 2000e–10) may be required to post an amended no5 tice, including a description of the applicable provisions of 

6 this Act, in the manner prescribed by, and subject to the 

7 penalty provided under, section 711 of the Civil Rights Act 

8 of 1964. Nothing in this Act shall be construed to require 

9 a separate notice to be posted. 

10 SEC. 14. REGULATIONS. 

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

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

13 issue regulations to carry out this Act. 

14 (b) LIBRARIAN OF CONGRESS.—The Librarian of Con15 gress shall have authority to issue regulations to carry out 

16 this Act with respect to employees and applicants for em17 ployment of the Library of Congress. 

18 (c) BOARD.—The Board referred to in section 10(a)(3) 

19 shall have authority to issue regulations to carry out this 

20 Act, in accordance with section 304 of the Congressional 

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

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

23 (2 U.S.C. 1301). 

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

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

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

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1 United States Code, and applicants for employment as such 

2 employees. 

3 SEC. 15. RELATIONSHIP TO OTHER LAWS. 

4 This Act shall not invalidate or limit the rights, rem5 edies, or procedures available to an individual claiming 

6 discrimination prohibited under any other Federal law or 

7 regulation or any law or regulation of a State or political 

8 subdivision of a State. 

9 SEC. 16. SEVERABILITY. 

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

11 provision to any person or circumstance, is held to be in12 valid, the remainder of this Act and the application of the 

13 provision to any other person or circumstances shall not 

14 be affected by the invalidity. 

15 SEC. 17. EFFECTIVE DATE. 

16 This Act shall take effect on the date that is 6 months 

17 after the date of enactment of this Act and shall not apply 

18 to conduct occurring before the effective date. 

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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 

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