II 

115TH CONGRESS 

1ST SESSION S. 2019 

To amend title VII of the Civil Rights Act of 1964 and other statutes 

to clarify appropriate liability standards for Federal antidiscrimination claims. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 26, 2017 

Ms. BALDWIN (for herself, Mr. DURBIN, Mr. MARKEY, Mr. BLUMENTHAL, 

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

referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend title VII of the Civil Rights Act of 1964 and 

other statutes to clarify appropriate liability standards 

for Federal antidiscrimination claims. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair Employment Pro5 tection Act of 2017’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds the following: 

8 (1) Discrimination and harassment are wide9 spread problems in workplaces in the United States. 


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1 In 2016, sex discrimination charges comprised 30.7 

2 percent of the charges filed with the Equal Employ3 ment Opportunity Commission (referred to in this 

4 section as the ‘‘EEOC’’) under all the statutes the 

5 agency enforces. In 2016, 83.4 percent of sexual 

6 harassment charges were filed by women. 

7 (2) Women and people of color working in low8 wage jobs are particularly vulnerable to harassment 

9 in the workplace. 

10 (3) In some industries, harassment is even 

11 more widespread. For example, a survey conducted 

12 by the Restaurant Opportunities Centers United 

13 Forward Together found that two-thirds of women 

14 workers and over half of men workers had experi15 enced some form of sexual harassment from man16 agement in the restaurant industry; nearly 80 per17 cent of women and 70 percent of men experienced 

18 some form of sexual harassment from co-workers; 

19 and nearly 80 percent of women and 55 percent of 

20 men experienced some form of sexual harassment 

21 from customers. 

22 (4) Studies indicate that sexual harassment of 

23 women, including unwanted touching, grabbing, and 

24 stalking, is also common in male-dominated indus25 tries, such as construction, public safety, manufacVerDate Sep 11 2014 03:18 Oct 28, 2017 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2019.IS S2019

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1 turing, farming, and the high-tech industry. Harass2 ment in male-dominated industries operates as a 

3 barrier to women’s entry into higher paying jobs. 

4 (5) Racial harassment remains a pervasive 

5 problem in the workplace in the United States. In 

6 fiscal year 2016, 35.3 percent of the charges of al7 leged violations filed with the EEOC were charges 

8 on the basis of race. 

9 (6) Research shows that workers in a wide 

10 spectrum of occupations, ranging from service and 

11 support positions to management and professional 

12 positions, report experiencing race-based harassment 

13 while on the job. 

14 (7) Harassment in the workplace is a persistent 

15 barrier to opportunity for people with disabilities. 

16 Harassment can result in workers with disabilities 

17 being forced off the job. Workplace harassment is 

18 used to send the message that workers with disabil19 ities do not belong at work. 

20 (8) Age discrimination continues to be a barrier 

21 to employment for older workers. Nearly one-third of 

22 older workers report that they or someone they know 

23 experienced age discrimination in the workplace. 

24 (9) The Supreme Court’s decision in Vance v. 

25 Ball State University, No. 11–556 (June 24, 2013), 


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1 significantly undermines protections against dis2 crimination that the Supreme Court established in 

3 Faragher v. Boca Raton, 524 U.S. 775 (1998) and 

4 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 

5 (1998), which held that an employer may be vicari6 ously liable under title VII of the Civil Rights Act 

7 of 1964 for harassment of an employee by an indi8 vidual that has supervisory authority over that em9 ployee. 

10 (10) In Faragher and Ellerth, the Supreme 

11 Court held that employers will be subject to a strict 

12 liability standard when employees with supervisory 

13 authority engage in harassment that results in ‘‘tan14 gible employment actions’’. However, in situations 

15 where ‘‘supervisors’’ engage in harassment that does 

16 not result in tangible employment actions, the Court 

17 explained, an employer can avoid vicarious liability 

18 by showing that— 

19 (A) the employer exercised reasonable care 

20 to prevent and correct any harassing behavior; 

21 and 

22 (B) the plaintiff unreasonably failed to 

23 take advantage of the preventive or corrective 

24 opportunities that the employer provided. 


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1 (11) Whether an employer should be vicariously 

2 liable for harassment is a functional analysis that is 

3 based not on the title of the harasser or the employ4 er’s job description for the harasser’s position but on 

5 the authority vested in that individual by the em6 ployer. 

7 (12) The Supreme Court holding in Vance lim8 its the category of individuals who are considered su9 pervisors and for which an employer may be held vi10 cariously liable under Faragher and Ellerth to those 

11 individuals that have authority to take tangible em12 ployment actions. This holding ignores the reality 

13 that employees with the authority to control their 

14 subordinates’ daily work should be included in that 

15 category, for which an employer may be held vicari16 ously liable, because such individuals are aided by 

17 that authority in perpetuating a discriminatory work 

18 environment. 

19 (13) Individuals who direct the daily work ac20 tivities of employees but do not have the authority 

21 to take tangible employment actions against those 

22 employees are common in the workplace in the 

23 United States, particularly in industries that employ 

24 low-wage workers. Workers in industries including 

25 retail, restaurant, health care, housekeeping, and 


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1 personal care, which may pay low wages and employ 

2 large numbers of female workers, are particularly 

3 vulnerable to harassment by individuals who have 

4 the power to direct day-to-day work activities but 

5 lack the power to take tangible employment actions. 

6 (b) PURPOSE.—The purpose of this Act is to clarify 

7 that an employer’s vicarious liability for harassment under 

8 title VII of the Civil Rights Act of 1964, the Age Discrimi9 nation in Employment Act of 1967, the Americans with 

10 Disabilities Act of 1990, the Rehabilitation Act of 1973, 

11 section 1977 of the Revised Statutes, the Genetic Informa12 tion Nondiscrimination Act of 2008, the Government Em13 ployee Rights Act of 1991, the Congressional Account14 ability Act of 1995, and title 3, United States Code, ex15 tends to— 

16 (1) an individual with the authority to under17 take or recommend tangible employment actions af18 fecting the victim of the harassment; or 

19 (2) an individual with the authority to direct 

20 the victim’s daily work activities. 

21 SEC. 3. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS 

22 ACT OF 1964. 

23 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS24 TILE WORK ENVIRONMENT.—Section 703 of the Civil 


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1 Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by 

2 adding at the end the following: 

3 ‘‘(o) Subject to section 12 of the Fair Employment 

4 Protection Act of 2017, an employer shall be liable for 

5 the acts of any individual whose harassment of an em6 ployee has created or continued a hostile work environ7 ment that constitutes an unlawful employment practice 

8 under this section if, at the time of the harassment— 

9 ‘‘(1) such individual was authorized by that em10 ployer— 

11 ‘‘(A) to undertake or recommend tangible 

12 employment actions affecting the employee; or 

13 ‘‘(B) to direct the employee’s daily work 

14 activities; or 

15 ‘‘(2) the negligence of the employer led to the 

16 creation or continuation of that hostile work environ17 ment.’’. 

18 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE19 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 704 

20 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3) is 

21 amended— 

22 (1) by redesignating subsection (b) as sub23 section (c); and 

24 (2) by inserting after subsection (a) the fol25 lowing: 


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1 ‘‘(b) Subject to section 12 of the Fair Employment 

2 Protection Act of 2017, an employer shall be liable for 

3 the acts of any individual whose harassment of an em4 ployee has created or continued a retaliatory hostile work 

5 environment that constitutes an unlawful employment 

6 practice as described under subsection (a) if, at the time 

7 of the harassment— 

8 ‘‘(1) such individual was authorized by that em9 ployer— 

10 ‘‘(A) to undertake or recommend tangible 

11 employment actions affecting the employee; or 

12 ‘‘(B) to direct the employee’s daily work 

13 activities; or 

14 ‘‘(2) the negligence of the employer led to the 

15 creation or continuation of that retaliatory hostile 

16 work environment.’’. 

17 (c) FEDERAL EMPLOYEES.—Section 717 of the Civil 

18 Rights Act of 1964 (42 U.S.C. 2000e–16) is amended by 

19 adding at the end the following: 

20 ‘‘(g) The provisions of sections 703(o) and 704(b) 

21 shall apply to hostile work environment claims and retalia22 tory hostile work environment claims, respectively, under 

23 this section.’’. 


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1 SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EM2 PLOYMENT ACT OF 1967. 

3 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS4 TILE WORK ENVIRONMENT.—Section 4 of the Age Dis5 crimination in Employment Act of 1967 (29 U.S.C. 623) 

6 is amended by adding at the end the following: 

7 ‘‘(n) Subject to section 12 of the Fair Employment 

8 Protection Act of 2017, an employer shall be liable for 

9 the acts of any individual whose harassment of an em10 ployee has created or continued a hostile work environ11 ment that is unlawful under this section if, at the time 

12 of the harassment— 

13 ‘‘(1) such individual was authorized by that em14 ployer— 

15 ‘‘(A) to undertake or recommend tangible 

16 employment actions affecting the employee; or 

17 ‘‘(B) to direct the employee’s daily work 

18 activities; or 

19 ‘‘(2) the negligence of the employer led to the 

20 creation or continuation of that hostile work environ21 ment.’’. 

22 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE23 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 

24 4(d) of the Age Discrimination in Employment Act of 

25 1967 (29 U.S.C. 623) is amended by striking ‘‘or litiga26 tion under this Act.’’ and inserting ‘‘or litigation under 


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1 this Act. Subject to section 12 of the Fair Employment 

2 Protection Act of 2017, an employer shall be liable for 

3 the acts of any individual whose harassment of an em4 ployee has created or continued a retaliatory hostile work 

5 environment that is unlawful under this subsection if, at 

6 the time of the harassment— 

7 ‘‘(1) such individual was authorized by that em8 ployer— 

9 ‘‘(A) to undertake or recommend tangible 

10 employment actions affecting the employee; or 

11 ‘‘(B) to direct the employee’s daily work 

12 activities; or 

13 ‘‘(2) the negligence of the employer led to the 

14 creation or continuation of that retaliatory hostile 

15 work environment.’’. 

16 (c) FEDERAL EMPLOYEES.—Section 15 of the Age 

17 Discrimination in Employment Act of 1967 (29 U.S.C. 

18 633a) is amended by adding at the end the following: 

19 ‘‘(h) Subsections (d) and (n) of section 4 shall apply 

20 to retaliatory hostile work environment claims and hostile 

21 work environment claims, respectively, under this sec22 tion.’’. 


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1 SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABIL2 ITIES ACT OF 1990. 

3 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS4 TILE WORK ENVIRONMENT.—Section 102 of the Ameri5 cans with Disabilities Act of 1990 (42 U.S.C. 12112) is 

6 amended by adding at the end the following: 

7 ‘‘(e) Subject to section 12 of the Fair Employment 

8 Protection Act of 2017, an employer shall be liable for 

9 the acts of any individual whose harassment of an em10 ployee has created or continued a hostile work environ11 ment that constitutes discrimination against a qualified 

12 individual on the basis of disability under this section if, 

13 at the time of the harassment— 

14 ‘‘(1) such individual was authorized by the em15 ployer— 

16 ‘‘(A) to undertake or recommend tangible 

17 employment actions affecting the qualified indi18 vidual; or 

19 ‘‘(B) to direct the qualified individual’s 

20 daily work activities; or 

21 ‘‘(2) the negligence of the employer led to the 

22 creation or continuation of that hostile work environ23 ment.’’. 

24 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE25 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 503 


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1 of the Americans with Disabilities Act of 1990 (42 U.S.C. 

2 12203) is amended— 

3 (1) by redesignating subsection (c) as sub4 section (d); 

5 (2) by inserting after subsection (b) the fol6 lowing: 

7 ‘‘(c) Subject to section 12 of the Fair Employment 

8 Protection Act of 2017, an employer shall be liable for 

9 the acts of any individual whose harassment of an em10 ployee has created or continued a retaliatory hostile work 

11 environment that constitutes retaliatory discrimination, as 

12 described in subsection (a), or the carrying out of any un13 lawful acts described in subsection (b), if, at the time of 

14 the harassment— 

15 ‘‘(1) such individual was authorized by the em16 ployer— 

17 ‘‘(A) to undertake or recommend tangible 

18 employment actions affecting the employee; or 

19 ‘‘(B) to direct the employee’s daily work 

20 activities; or 

21 ‘‘(2) the negligence of the employer led to the 

22 creation or continuation of that retaliatory hostile 

23 work environment.’’; and 


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1 (3) in subsection (d), as redesignated by para2 graph (1), by striking ‘‘subsections (a) and (b)’’ and 

3 inserting ‘‘subsections (a), (b), and (c)’’. 

4 SEC. 6. AMENDMENT TO THE REHABILITATION ACT OF 

5 1973. 

6 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS7 TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE

8 WORK ENVIRONMENT.—Section 501 of the Rehabilitation 

9 Act of 1973 (29 U.S.C. 791) is amended by adding at 

10 the end the following: 

11 ‘‘(h) Subject to section 12 of the Fair Employment 

12 Protection Act of 2017, each department, agency, and in13 strumentality in the executive branch of Government and 

14 the Smithsonian Institution shall be liable for the acts of 

15 any individual within such department, agency, instrumen16 tality, or the Smithsonian Institution whose harassment 

17 of an individual with a disability has created or continued 

18 a hostile work environment, or a retaliatory hostile work 

19 environment, that constitutes nonaffirmative action em20 ployment discrimination under this section if, at the time 

21 of the harassment— 

22 ‘‘(1) such individual was authorized by that de23 partment, agency, instrumentality, or the Smithso24 nian Institution— 


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1 ‘‘(A) to undertake or recommend tangible 

2 employment actions affecting the individual 

3 with a disability; or 

4 ‘‘(B) to direct the daily work activities of 

5 the individual with a disability; or 

6 ‘‘(2) the negligence of that department, agency, 

7 instrumentality, or the Smithsonian Institution led 

8 to the creation or continuation of that hostile work 

9 environment or retaliatory hostile work environ10 ment.’’. 

11 (b) STANDARD FOR EMPLOYER LIABILITY FOR HOS12 TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE

13 WORK ENVIRONMENT.—Section 504 of the Rehabilitation 

14 Act of 1973 (29 U.S.C. 794) is amended by adding at 

15 the end the following: 

16 ‘‘(e) Subject to section 12 of the Fair Employment 

17 Protection Act of 2017, an employer described under sub18 section (b) shall be liable for the acts of any individual 

19 whose harassment of a qualified individual with a dis20 ability has created or continued a hostile work environ21 ment, or a retaliatory hostile work environment, that con22 stitutes employment discrimination under this section if, 

23 at the time of the harassment— 

24 ‘‘(1) such individual was authorized by such 

25 employer— 


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1 ‘‘(A) to undertake or recommend tangible 

2 employment actions affecting the qualified indi3 vidual with a disability; or 

4 ‘‘(B) to direct the daily work activities of 

5 the qualified individual with a disability; or 

6 ‘‘(2) the negligence of such employer led to the 

7 creation or continuation of that hostile work environ8 ment or retaliatory hostile work environment.’’. 

9 (c) REMEDIES.—Section 505 of the Rehabilitation 

10 Act of 1973 (29 U.S.C. 794a) is amended by adding at 

11 the end of subsection (a) the following: 

12 ‘‘(3) Sections 501(h) and 504(e) shall apply to 

13 hostile work environment claims and retaliatory hos14 tile work environment claims under this section.’’. 

15 SEC. 7. AMENDMENT TO SECTION 1977 OF THE REVISED 

16 STATUTES. 

17 Section 1977 of the Revised Statutes (42 U.S.C. 

18 1981) is amended by adding at the end the following: 

19 ‘‘(d) Subject to section 12 of the Fair Employment 

20 Protection Act of 2017, a nongovernmental employer shall 

21 be liable for the acts of any individual whose harassment 

22 of an employee has created a hostile work environment 

23 or a retaliatory hostile work environment, constituting an 

24 unlawful employment practice, if, at the time of the har25 assment— 


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1 ‘‘(1) such individual was authorized by the em2 ployer— 

3 ‘‘(A) to undertake or recommend tangible 

4 employment actions affecting the employee; or 

5 ‘‘(B) to direct the employee’s daily work 

6 activities; or 

7 ‘‘(2) the negligence of the employer led to the 

8 creation or continuation of that hostile work environ9 ment or retaliatory hostile work environment.’’. 

10 SEC. 8. AMENDMENT TO THE GENETIC INFORMATION NON11 DISCRIMINATION ACT OF 2008. 

12 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS13 TILE WORK ENVIRONMENT.—Section 202 of the Genetic 

14 Information Nondiscrimination Act of 2008 (42 U.S.C. 

15 2000ff–1) is amended by adding at the end the following: 

16 ‘‘(d) Subject to section 12 of the Fair Employment 

17 Protection Act of 2017, an employer shall be liable for 

18 the acts of any individual whose harassment of an em19 ployee has created or continued a hostile work environ20 ment that constitutes an unlawful employment practice 

21 under this section if, at the time of the harassment— 

22 ‘‘(1) such individual was authorized by the em23 ployer— 

24 ‘‘(A) to undertake or recommend tangible 

25 employment actions affecting the employee; or 


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1 ‘‘(B) to direct the employee’s daily work 

2 activities; or 

3 ‘‘(2) the negligence of the employer led to the 

4 creation or continuation of that hostile work environ5 ment.’’. 

6 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE7 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 

8 207(f) of the Genetic Information Nondiscrimination Act 

9 (42 U.S.C. 2000ff–6(f)) is amended by striking ‘‘violations 

10 of this subsection.’’ and inserting ‘‘violations of this sub11 section. Subject to section 12 of the Fair Employment 

12 Protection Act of 2017, an employer shall be liable for 

13 the acts of any individual whose harassment of an em14 ployee has created or continued a retaliatory hostile work 

15 environment that constitutes discrimination under this 

16 subsection if, at the time of the harassment— 

17 ‘‘(1) such individual was authorized by the em18 ployer— 

19 ‘‘(A) to undertake or recommend tangible 

20 employment actions affecting the employee; or 

21 ‘‘(B) to direct the employee’s daily work 

22 activities; or 

23 ‘‘(2) the negligence of the employer led to the 

24 creation or continuation of that retaliatory hostile 

25 work environment.’’. 


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1 SEC. 9. AMENDMENT TO THE GOVERNMENT EMPLOYEE 

2 RIGHTS ACT OF 1991. 

3 Section 302 of the Government Employee Rights Act 

4 of 1991 (42 U.S.C. 2000e–16b) is amended by adding at 

5 the end the following: 

6 ‘‘(c) Subject to section 12 of the Fair Employment 

7 Protection Act of 2017, an employer of an individual de8 scribed under section 304(a) shall be liable for the acts 

9 of any individual whose harassment of a State employee 

10 described in section 304 has created or continued a hostile 

11 work environment or a retaliatory hostile work environ12 ment constituting discrimination under this section, if at 

13 the time of the harassment— 

14 ‘‘(1) such individual was authorized by such 

15 employer— 

16 ‘‘(A) to undertake or recommend tangible 

17 employment actions affecting the employee; or 

18 ‘‘(B) to direct the employee’s daily work 

19 activities; or 

20 ‘‘(2) the negligence of the employer led to the 

21 creation or continuation of that hostile work environ22 ment or retaliatory hostile work environment.’’. 

23 SEC. 10. AMENDMENT TO TITLE 3, UNITED STATES CODE. 

24 Section 411 of title 3, United States Code, is amend25 ed— 


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1 (1) by redesignating subsections (c) through (f) 

2 as subsections (d) through (g), respectively; 

3 (2) by inserting after subsection (b) the fol4 lowing: 

5 ‘‘(c) LIABILITY OF EMPLOYING OFFICE.—Subject to 

6 section 12 of the Fair Employment Protection Act of 

7 2017, an employing office shall be liable for the acts of 

8 any individual whose harassment of a covered employee 

9 has created or continued a hostile work environment or 

10 a retaliatory hostile work environment constituting dis11 crimination under this section if, at the time of the harass12 ment— 

13 ‘‘(1) such individual was authorized by the em14 ploying office— 

15 ‘‘(A) to undertake or recommend tangible 

16 employment actions affecting the covered em17 ployee; or 

18 ‘‘(B) to direct the covered employee’s daily 

19 work activities; or 

20 ‘‘(2) the negligence of the employing office led 

21 to the creation or continuation of that hostile work 

22 environment or retaliatory hostile work environ23 ment.’’; and 


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1 (3) in subsection (f), as redesignated by para2 graph (1), by striking ‘‘subsections (a) through (c)’’ 

3 and inserting ‘‘subsections (a) through (d).’’. 

4 SEC. 11. AMENDMENT TO THE CONGRESSIONAL ACCOUNT5 ABILITY ACT OF 1995. 

6 Section 201 of the Congressional Accountability Act 

7 of 1995 (2 U.S.C. 1311) is amended— 

8 (1) by redesignating subsection (d) as subsection (e); 

9 and 

10 (2) by inserting after subsection (c) the following: 

11 ‘‘(d) Subject to section 12 of the Fair Employment 

12 Protection Act of 2017, an employing office shall be liable 

13 for the acts of any individual whose harassment of a cov14 ered employee has created or continued a hostile work en15 vironment or a retaliatory hostile work environment that 

16 constitutes discrimination under this section if, at the time 

17 of the harassment— 

18 ‘‘(1) such individual was authorized by the em19 ploying office— 

20 ‘‘(A) to undertake or recommend tangible 

21 employment actions affecting the covered em22 ployee; or 

23 ‘‘(B) to direct the covered employee’s daily 

24 work activities; or 


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1 ‘‘(2) the negligence of the employing office led 

2 to the creation or continuation of that hostile work 

3 environment or retaliatory hostile work environ4 ment.’’. 

5 SEC. 12. RULE OF CONSTRUCTION. 

6 Nothing in this Act shall be construed to limit the 

7 availability of, or access to, defenses available under the 

8 law. 

9 SEC. 13. SAVINGS CLAUSE. 

10 If any provision of this Act is declared invalid, the 

11 other provisions in this Act will remain in full force and 

12 effect. 

13 SEC. 14. APPLICATION. 

14 This Act, and the amendments made by this Act, 

15 shall apply to all claims pending on or after the date of 

16 enactment of this Act. 

Æ 


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