Calendar No. 580

104TH CONGRESS

2D SESSION S. 2056

A BILL

To prohibit employment discrimination on the basis

of sexual orientation.

SEPTEMBER 5, 1996

Read twice and ordered to be placed on the calendar
II

Calendar No. 580

104TH CONGRESS

2D SESSION S. 2056

To prohibit employment discrimination on the basis of sexual orientation.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 5, 1996

Mr. KENNEDY (for himself, Mr. JEFFORDS, and Mr. LIEBERMAN) introduced

the following bill; which was read twice and ordered to be placed on the

calendar

A BILL

To prohibit employment discrimination on the basis of sexual

orientation.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Employment Non5 discrimination Act of 1996’’.

6 SEC. 2. PURPOSES.

7 It is the purpose of this Act—
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1 (1) to provide a comprehensive Federal prohibi2 tion of employment discrimination on the basis of

3 sexual orientation;

4 (2) to provide meaningful and effective rem5 edies for employment discrimination on the basis of

6 sexual orientation; and

7 (3) to invoke congressional powers, including

8 the powers to enforce the 14th amendment to the

9 Constitution and to regulate commerce, in order to

10 prohibit employment discrimination on the basis of

11 sexual orientation.

12 SEC. 3. DEFINITIONS.

13 As used in this Act:

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

15 means the Equal Employment Opportunity Commis16 sion.

17 (2) COVERED ENTITY.—The term ‘‘covered en18 tity’’ means an employer, employment agency, labor

19 organization, joint labor management committee, an

20 entity to which section 717(a) of the Civil Rights

21 Act of 1964 (42 U.S.C. 2000e–16(a)) applies, an

22 employing authority to which section 302(a)(1) of

23 the Government Employee Rights Act of 1991 (2

24 U.S.C. 1202(a)(1)) applies, or an employing author25 ity to which section 201(a)(1) of the Congressional
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1 Accountability Act of 1995 (2 U.S.C. 1311(a)(1))

2 applies.

3 (3) EMPLOYEE.—The term ‘‘employee’’ means

4 an employee, as defined in section 701(f) of the Civil

5 Rights Act of 1964 (42 U.S.C. 2000e(f)), an em6 ployee or applicant to whom section 717(a) of the

7 Civil Rights Act of 1964 applies, a Presidential ap8 pointee or State employee to whom section 302(a)(1)

9 of the Government Employee Rights Act of 1991 ap10 plies, and a covered employee to whom section

11 201(a)(1) of the Congressional Accountability Act of

12 1995 applies. The term ‘‘employee’’ does not include

13 an individual who volunteers to perform services if

14 the individual receives no compensation for such

15 services.

16 (4) EMPLOYER.—the term ‘‘employer’’ means a

17 person engaged in an industry affecting commerce

18 (as defined in section 701(h) of the Civil Rights Act

19 of 1964 (42 U.S.C. 2000e(h))) who has 15 or more

20 employees for each working day in each of 20 or

21 more calendar weeks in the current or preceding cal22 endar year, and any agent of such a person, but

23 such term does not include a bona fide private mem24 bership club (other than a labor organization) that
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1 is exempt from taxation under section 501(c) of the

2 Internal Revenue Code of 1986.

3 (5) EMPLOYMENT AGENCY.—The term ‘‘em4 ployment agency’’ has the meaning given such term

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

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

7 (6) EMPLOYMENT OR EMPLOYMENT OPPORTU8 NITIES.—Except as provided in section 9(a)(1), the

9 term ‘‘employment or employment opportunities’’ in10 cludes job application procedures, hiring, advance11 ment, discharge, compensation, job training, or any

12 other term, condition, or privilege of employment.

13 (7) INDIVIDUAL.—The term ‘‘individual’’ in14 cludes an employee.

15 (8) LABOR ORGANIZATION.—The term ‘‘labor

16 organization’’ has the meaning given such term in

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

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

19 (9) PERSON.—The term ‘‘person’’ has the

20 meaning given such term in section 701(a) of the

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

22 (10) RELIGIOUS ORGANIZATION.—The term

23 ‘‘religious organization’’ means—

24 (A) a religious corporation, association, or

25 society; or
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1 (B) a college, school, university, or other

2 educational institution, not otherwise a religious

3 organization, if—

4 (i) it is in whole or substantial part

5 controlled, managed, owned, or supported

6 by a religious corporation, association, or

7 society; or

8 (ii) its curriculum is directed toward

9 the propagation of a particular religion.

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

11 orientation’’ means homosexuality, bisexuality, or

12 heterosexuality, whether such orientation is real or

13 perceived.

14 (12) STATE.—The term ‘‘State’’ has the mean15 ing given such term in section 701(i) of the Civil

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

17 SEC. 4. DISCRIMINATION PROHIBITED.

18 A covered entity shall not, with respect to the employ19 ment or employment opportunities of an individual—

20 (1) subject the individual to a different stand21 ard or different treatment on the basis of sexual ori22 entation;

23 (2) discriminate against the individual based on

24 the sexual orientation of a person with whom the in-
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1 dividual is believed to associate or to have associ2 ated; or

3 (3) otherwise discriminate against the individ4 ual on the basis of sexual orientation.

5 SEC. 5. BENEFITS.

6 This Act does not apply to the provision of employee

7 benefits to an individual for the benefit of such individ8 ual’s partner.

9 SEC. 6. NO DISPARATE IMPACT.

10 The fact that an employment practice has a disparate

11 impact, as the term ‘‘disparate impact’’ is used in section

12 703(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–

13 2(k)), on the basis of sexual orientation does not establish

14 a prima facie violation of this Act.

15 SEC. 7. QUOTAS AND PREFERENTIAL TREATMENT PROHIB16 ITED.

17 (a) QUOTAS.—A covered entity shall not adopt or im18 plement a quota on the basis of sexual orientation.

19 (b) PREFERENTIAL TREATMENT.—A covered entity

20 shall not give preferential treatment to an individual on

21 the basis of sexual orientation.

22 SEC. 8. RELIGIOUS EXEMPTION.

23 (a) IN GENERAL.—Except as provided in subsection

24 (b), this Act shall not apply to a religious organization.
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1 (b) FOR-PROFIT ACTIVITIES.—This Act shall apply

2 with respect to employment and employment opportunities

3 that relate to any employment position that pertains solely

4 to a religious organization’s for-profit activities subject to

5 taxation under section 511(a) of the Internal Revenue

6 Code of 1986.

7 SEC. 9. NONAPPLICATION TO MEMBERS OF THE ARMED

8 FORCES; VETERANS’ PREFERENCES.

9 (a) ARMED FORCES.—

10 (1) EMPLOYMENT OR EMPLOYMENT OPPORTU11 NITIES.—For purposes of this Act, the term ‘‘em12 ployment or employment opportunities’’ does not

13 apply to the relationship between the United States

14 and members of the Armed Forces.

15 (2) ARMED FORCES.—As used in paragraph

16 (1), the term ‘‘Armed Forces’’ means the Army,

17 Navy, Air Force, Marine Corps, and Coast Guard.

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

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

20 law creating a special right or preference for a veteran.

21 SEC. 10. CONSTRUCTION.

22 Nothing in this Act shall be construed to prohibit a

23 covered entity from enforcing rules regarding nonprivate

24 sexual conduct, if such rules of conduct are designed for,
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1 and uniformly applied to, all individuals regardless of sex2 ual orientation.

3 SEC. 11. ENFORCEMENT.

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

5 administration and enforcement of this Act in the case of

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

7 Act—

8 (1) the Commission shall have the same powers

9 as the Commission has to administer and enforce—

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

11 1964 (42 U.S.C. 2000e et seq.); or

12 (B) sections 302, 303, and 304 of the Gov13 ernment Employee Rights Act of 1991 (2

14 U.S.C. 1202, 1203, and 1204);

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

16 a violation of such title or of section 302(a)(1) of

17 such Act (2 U.S.C. 1202(a)(1)), respectively;

18 (2) the Librarian of Congress shall have the

19 same powers as the Librarian of Congress has to ad20 minister and enforce title VII of the Civil Rights Act

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

22 claim alleged by such individual for a violation of

23 such title;

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

25 Congressional Accountability Act of 1995 (2 U.S.C.
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1 1301) shall have the same powers as the Board has

2 to administer and enforce the Congressional Ac3 countability Act of 1995 in the case of a claim al4 leged by such individual for a violation of section

5 201(a)(1) of such Act (2 U.S.C. 1311(a)(1));

6 (4) the Attorney General shall have the same

7 powers as the Attorney General has to administer

8 and enforce—

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

10 1964 (42 U.S.C. 2000e et seq.); or

11 (B) sections 302, 303, and 304 of the Gov12 ernment Employee Rights Act of 1991 (2

13 U.S.C. 1202, 1203, and 1204);

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

15 a violation of such title or of section 302(a)(1) of

16 such Act, respectively; and

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

18 same jurisdiction and powers as such court has to

19 enforce—

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

21 1964 (42 U.S.C. 2000e et seq.) in the case of

22 a claim alleged by such individual for a viola23 tion of such title;

24 (B) sections 302, 303, and 304 of the Gov25 ernment Employee Rights Act of 1991 (2
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1 U.S.C. 1202, 1203, and 1204) in the case of a

2 claim alleged by such individual for a violation

3 of section 302(a)(1) of such Act; and

4 (C) the Congressional Accountability Act

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

6 a claim alleged by such individual for a viola7 tion of section 201(a)(1) of such Act.

8 (b) PROCEDURES AND REMEDIES.—The procedures

9 and remedies applicable to a claim alleged by an individual

10 for a violation of this title are—

11 (1) the procedures and remedies applicable for

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

13 1964 (42 U.S.C. 2000e et seq.) in the case of a

14 claim alleged by such individual for a violation of

15 such title;

16 (2) the procedures and remedies applicable for

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

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

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

20 a violation of such section; and

21 (3) the procedures and remedies applicable for

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

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

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

25 violation of such section.
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1 (c) OTHER APPLICABLE PROVISIONS.—With respect

2 to claims alleged by a covered employee (as defined in sec3 tion 101 of the Congressional Accountability Act of 1995

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

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

6 1381 et seq.) shall apply in the same manner as such title

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

8 employee for a violation of section 201(a)(1) of such Act.

9 SEC. 12. FEDERAL AND STATE IMMUNITY.

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

11 under the eleventh amendment to the Constitution of the

12 United States from an action in a Federal court of com13 petent jurisdiction for a violation of this Act. In an action

14 against a State for a violation of this Act, remedies (in15 cluding remedies at law and in equity) are available for

16 the violation to the same extent as such remedies are avail17 able in an action against any public or private entity other

18 than a State.

19 (b) LIABILITY OF THE UNITED STATES.—The

20 United States shall be liable for all remedies (excluding

21 punitive damages) under this Act to the same extent as

22 a private person and shall be liable to the same extent

23 as a nonpublic party for interest to compensate for delay

24 in payment.
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1 SEC. 13. ATTORNEYS’ FEES.

2 In any action or administrative proceeding com3 menced pursuant to this Act, an entity described in section

4 11(a), in its discretion, may allow the prevailing party,

5 other than the United States, a reasonable attorney’s fee,

6 including expert fees and other litigation expenses, and

7 costs. The United States shall be liable for the fees, ex8 penses and costs described in the preceding sentence to

9 the same extent as a private person.

10 SEC. 14. RETALIATION AND COERCION PROHIBITED.

11 (a) RETALIATION.—A covered entity shall not dis12 criminate against an individual because such individual

13 opposed any act or practice prohibited by this Act or be14 cause such individual made a charge, assisted, testified,

15 or participated in any manner in an investigation, proceed16 ing, or hearing under this Act.

17 (b) COERCION.—A person shall not coerce, intimi18 date, threaten, or interfere with any individual in the exer19 cise or enjoyment of, or on account of such individual’s

20 having exercised, enjoyed, assisted, or encouraged the ex21 ercise or enjoyment of, any right granted or protected by

22 this Act.

23 SEC. 15. POSTING NOTICES.

24 A covered entity shall post notices for employees, ap25 plicants for employment, and members describing the ap26 plicable provisions of this Act in the manner prescribed
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1 by, and subject to the penalty provided under, section 711

2 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–10).

3 SEC. 16. REGULATIONS.

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

5 (b) and (c), the Commission shall have authority to issue

6 regulations to carry out this Act.

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

8 Congress shall have authority to issue regulations to carry

9 out this Act with respect to employees of the Library of

10 Congress.

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

12 11(a)(3) shall have authority to issue regulations to carry

13 out this Act, in accordance with section 304 of the Con14 gressional Accountability Act of 1995 (2 U.S.C. 1384),

15 with respect to covered employees to which section

16 201(a)(1) of such Act applies (2 U.S.C. 1311(a)(1)).

17 SEC. 17. RELATIONSHIP TO OTHER LAWS.

18 This Act shall not invalidate or limit the rights, rem19 edies, or procedures available to an individual claiming

20 discrimination prohibited under any other Federal law or

21 any law of a State or political subdivision of a State.

22 SEC. 18. SEVERABILITY.

23 If any provision of this Act, or the application of such

24 provision to any person or circumstance, is held to be in25 valid, the remainder of this Act and the application of such
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1 provision to other persons or circumstances shall not be

2 affected by such invalidity.

3 SEC. 19. EFFECTIVE DATE.

4 This Act shall take effect 60 days after the date of

5 enactment of this Act and shall not apply to conduct oc6 curring before such effective date.