II 

117TH CONGRESS 

1ST SESSION S. 3219 

To prevent discrimination and harassment in employment. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 17, 2021 

Mrs. MURRAY (for herself, Ms. HIRONO, Ms. BALDWIN, Mr. BLUMENTHAL, 

Mr. BOOKER, Mr. BROWN, Mr. CARDIN, Mr. CASEY, Mrs. GILLIBRAND, 

Ms. DUCKWORTH, Mr. DURBIN, Mr. KAINE, Mr. MARKEY, Mr. 

MERKLEY, Mr. LUJA ́N, Ms. KLOBUCHAR, Mr. PADILLA, Ms. ROSEN, Mr. 

SANDERS, Mr. VAN HOLLEN, Ms. WARREN, and Mr. WYDEN) introduced 

the following bill; which was read twice and referred to the Committee 

on Health, Education, Labor, and Pensions 

A BILL 

To prevent discrimination and harassment in employment. 

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 ‘‘Bringing an End to 

5 Harassment by Enhancing Accountability and Rejecting 

6 Discrimination in the Workplace Act’’ or the ‘‘BE 

7 HEARD in the Workplace Act’’. 

8 SEC. 2. TABLE OF CONTENTS. 

9 The table of contents of this Act is as follows: 


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Sec. 1. Short title. 

Sec. 2. Table of contents. 

Sec. 3. Purposes. 

TITLE I—RESEARCHING AND PREVENTING WORKPLACE 

HARASSMENT; TIPPED EMPLOYEES 

Sec. 100. Definitions. 

Subtitle A—Preventing Workplace Harassment 

Sec. 101. Mandatory nondiscrimination policies. 

Sec. 102. Nondiscrimination training. 

Sec. 103. Resource materials on policies and trainings for small businesses. 

Sec. 104. Education, training, and technical assistance to employers. 

Sec. 105. Task force regarding harassment. 

Sec. 106. Resource materials on employment climate assessments. 

Sec. 107. Establishing an Office of Education and Outreach within the Equal 

Employment Opportunity Commission. 

Sec. 108. Relationship to other laws. 

Sec. 109. Authorization of appropriations. 

Subtitle B—Research and Additional Resources for Harassment Prevention 

Sec. 111. National prevalence survey on harassment in employment. 

Sec. 112. Study and report on harassment in the Federal Government. 

Sec. 113. Studies, reports, and further research. 

Subtitle C—Preventing Harassment of Tipped Employees 

Sec. 121. Tipped employees. 

TITLE II—STRENGTHENING WORKPLACE RIGHTS 

Sec. 201. Clarifying sexual orientation discrimination and gender identity discrimination are unlawful sex discrimination. 

Sec. 202. Covered employers. 

Sec. 203. Compensatory and punitive damages available. 

Sec. 204. Harassment and discrimination; standards of proof. 

Sec. 205. Clarifying other standards of proof. 

Sec. 206. Supervisor liability. 

Sec. 207. Extending the statutes of limitations. 

Sec. 208. Extending the time limitations on Federal employees filing a complaint. 

TITLE III—BROADENING PROTECTIONS AND ENSURING 

TRANSPARENCY 

Sec. 301. Independent contractors, interns, fellows, volunteers, and trainees. 

Sec. 302. Nondisclosure agreements. 

Sec. 303. Prohibition on mandatory arbitration and protection of concerted 

legal action. 

Sec. 304. Federal contractor compliance with civil rights laws. 

TITLE IV—NATIONWIDE GRANTS TO PREVENT AND RESPOND TO 

WORKPLACE HARASSMENT 

Sec. 401. Definitions. 


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Subtitle A—National Grants for Preventing and Addressing Employment 

Discrimination, Including Harassment 

Sec. 411. Definitions. 

Sec. 412. Grants. 

Sec. 413. Authorization of appropriations. 

Subtitle B—Grants for Legal Assistance for Low-Income Workers 

Sec. 421. Definitions. 

Sec. 422. Grants for civil legal needs related to employment discrimination. 

Sec. 423. Authorization of appropriations. 

Subtitle C—Grants for a System of State Advocacy 

Sec. 431. Purpose. 

Sec. 432. Definitions. 

Sec. 433. Allotments and payments. 

Sec. 434. System required. 

Sec. 435. Administration. 

Sec. 436. Authorization of appropriations. 

TITLE V—GENERAL PROVISIONS 

Sec. 501. Severability. 

1 SEC. 3. PURPOSES. 

2 The purposes of this Act are— 

3 (1) to prevent and reduce prohibited discrimina4 tion and harassment in employment; 

5 (2) to prevent and reduce discriminatory and 

6 harassing conduct in the workplace; 

7 (3) to identify and implement best practices in 

8 creating a workplace free from discrimination and 

9 harassment; 

10 (4) to update and clarify certain employment 

11 nondiscrimination laws; and 

12 (5) to expand workers’ access to counsel and 

13 advocacy services to protect the legal and human 

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1 crimination and harassment and responding to viola2 tions of worker’s rights. 

3 TITLE I—RESEARCHING AND 

4 PREVENTING WORKPLACE 

5 HARASSMENT; TIPPED EM6 PLOYEES 

7 SEC. 100. DEFINITIONS. 

8 In this title: 

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

10 means the Equal Employment Opportunity Commis11 sion. 

12 (2) EMPLOYER.—The term ‘‘employer’’ has the 

13 meaning given the term in section 701 of the Civil 

14 Rights Act of 1964 (42 U.S.C. 2000e), as amended 

15 by section 202 of this Act. 

16 Subtitle A—Preventing Workplace 

17 Harassment 

18 SEC. 101. MANDATORY NONDISCRIMINATION POLICIES. 

19 (a) POLICIES.— 

20 (1) IN GENERAL.—Beginning not later than 1 

21 year after the date of enactment of this Act, each 

22 employer who has 15 or more employees shall adopt, 

23 maintain, and periodically review a comprehensive 

24 nondiscrimination policy, which shall establish poliVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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1 cies and procedures concerning prohibited discrimi2 nation and harassment in employment. 

3 (2) DISSEMINATION AND POSTING.—The em4 ployer shall disseminate the comprehensive non5 discrimination policy to each employee at the begin6 ning of employment, annually, and on the issuance 

7 of any update to the comprehensive nondiscrimina8 tion policy. The employer shall post the comprehen9 sive nondiscrimination policy in prominent locations, 

10 including in a prominent location on the employer’s 

11 website. 

12 (b) CONTENTS.—At a minimum, the comprehensive 

13 nondiscrimination policy shall include— 

14 (1) a definition of prohibited discrimination and 

15 prohibited harassment in employment; 

16 (2) a description of the types of behaviors pro17 hibited by the policy; 

18 (3) the identification of multiple persons to 

19 whom an employee may report such discrimination 

20 or harassment; 

21 (4) a description of multiple methods for re22 porting such discrimination or harassment; 

23 (5) a general description of how the employer 

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1 tigations and respond to complaints regarding such 

2 discrimination or harassment; 

3 (6) a prohibition against retaliation related to 

4 such discrimination or harassment, including dis5 closing, reporting, or challenging such discrimination 

6 or harassment; 

7 (7) a description of potential consequences for 

8 violating the policy; and 

9 (8) any additional components required by the 

10 Commission for the purpose of preventing unlawful 

11 discrimination and harassment. 

12 (c) ACCESSIBILITY.—The comprehensive non13 discrimination policy shall be made available in plain 

14 English and in an accessible manner for individuals with 

15 disabilities and for individuals who primarily speak a lan16 guage other than English. 

17 (d) ENFORCEMENT.— 

18 (1) Subject to paragraph (2), an employer who 

19 fails to comply with this section shall be fined not 

20 more than $1,000 for each separate offense. 

21 (2) An employer who repeatedly or willfully fails 

22 to comply with this section shall be fined not less 

23 than $5,000 for each separate offense. 

24 (e) REGULATIONS.—The Commission shall have au25 thority to promulgate regulations to carry out this section. 


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1 SEC. 102. NONDISCRIMINATION TRAINING. 

2 (a) IN GENERAL.—The Commission shall promulgate 

3 regulations to require appropriate employers, as deter4 mined by the Commission, to provide— 

5 (1) in-person or other interactive training for 

6 each employee regarding discriminatory and haras7 sing behaviors in employment; and 

8 (2) training specifically designed for supervisors 

9 regarding the prevention of and response to dis10 crimination and harassment in employment, includ11 ing retaliation. 

12 (b) REQUIRED TRAINING.—The requirements de13 scribed in subsection (a) shall— 

14 (1) be based on research on effective training; 

15 and 

16 (2) identify specific elements of such training. 

17 (c) ENFORCEMENT.—The Commission shall issue 

18 remedies for noncompliance by regulation. 

19 SEC. 103. RESOURCE MATERIALS ON POLICIES AND 

20 TRAININGS FOR SMALL BUSINESSES. 

21 (a) IN GENERAL.—Not later than 1 year after the 

22 date of enactment of this Act, the Commission shall make 

23 publicly available resource materials on comprehensive 

24 nondiscrimination policies and trainings on such policies 

25 for employers with fewer than 15 employees. 


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1 (b) CONTENTS.—Such resource materials shall in2 clude, at a minimum— 

3 (1) model comprehensive nondiscrimination 

4 policies concerning prohibited discrimination and 

5 harassment in employment, as described in section 

6 101, for use by employers with fewer than 15 em7 ployees, which shall— 

8 (A) be designed to be easily distributed by 

9 such employers to employees; 

10 (B) take into account the resources avail11 able to such employers; 

12 (C) take into account the particular needs 

13 of employees of such employers; 

14 (D) be made available in plain English and 

15 in accessible formats for individuals with dis16 abilities and for individuals who primarily speak 

17 a language other than English; 

18 (E) include a definition of prohibited dis19 crimination and harassment in employment; 

20 (F) include examples of prohibited dis21 criminatory and harassing behaviors; 

22 (G) describe how the employer may con23 duct prompt, thorough, and impartial investiga24 tions and respond to complaints regarding such 

25 prohibited discrimination and harassment; 


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1 (H) include a prohibition against retalia2 tion related to such discrimination or harass3 ment; 

4 (I) include policies that reflect the needs of 

5 a variety of different types of workplaces, in6 cluding those with differing work structures, fa7 cilities, or tasks; 

8 (J) describe behaviors that would con9 stitute retaliation; and 

10 (K) include a description of potential con11 sequences for violating the comprehensive non12 discrimination policy; and 

13 (2) model trainings regarding prohibited dis14 crimination and harassment in employment, as de15 scribed in section 102, for use by employers with 

16 fewer than 15 employees, which shall— 

17 (A) take into account the resources avail18 able to such employers; 

19 (B) take into account the particular needs 

20 of employees of such employers; 

21 (C) be made available in plain English and 

22 in accessible formats for individuals with dis23 abilities and for individuals who primarily speak 

24 a language other than English; 


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1 (D) be made available in an online format 

2 that is widely available to such employers and 

3 employees of such employers; 

4 (E) include an explanation of prohibited 

5 discrimination and harassment in employment, 

6 including retaliation related to such discrimina7 tion and harassment; 

8 (F) describe the affirmative behaviors that 

9 contribute to preventing and reducing harass10 ment and discrimination in employment; 

11 (G) include trainings designed to address 

12 the needs of a variety of workplaces, including 

13 those with differing work structures, facilities, 

14 and tasks; 

15 (H) include best practices for preventing 

16 prohibited discrimination and harassment spe17 cific to industries in which the Commission de18 termines that harassment is particularly preva19 lent or severe; and 

20 (I) include any additional information the 

21 Commission determines may prevent discrimi22 nation and harassment of employees. 

23 (c) INDIVIDUALIZATION.—The Commission shall en24 sure that resource materials under this section are de25 signed to facilitate individual employers to customize 


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1 training to address the needs of their workplaces, includ2 ing differing work structures, facilities, and tasks. 

3 SEC. 104. EDUCATION, TRAINING, AND TECHNICAL ASSIST4 ANCE TO EMPLOYERS. 

5 The Commission shall have the authority to— 

6 (1) reasonably adjust the fees the Commission 

7 charges for any education, technical assistance, or 

8 training the Commission offers in accordance with 

9 section 705(j)(1) of the Civil Rights Act of 1964 (42 

10 U.S.C. 2000e–4(j)(1)); 

11 (2) use the materials developed by the Commis12 sion for any education, technical assistance, or train13 ing offered by the Commission in accordance with 

14 that section in any education and outreach activities 

15 carried out by the Commission; and 

16 (3) use funds from the Commission’s EEOC 

17 Education, Technical Assistance, and Training Re18 volving Fund, established under section 705(k) of 

19 the Civil Rights Act of 1964 (42 U.S.C. 2000e– 

20 4(k)), to pay the full salaries of any Commission em21 ployees that develop and administer any education, 

22 technical assistance, or training programs offered by 

23 the Commission. 


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1 SEC. 105. TASK FORCE REGARDING HARASSMENT. 

2 (a) IN GENERAL.—The Commission shall establish 

3 and periodically convene a harassment prevention task 

4 force (referred to in this subsection as the ‘‘Task Force’’) 

5 to study prohibited harassment in employment. 

6 (b) MEMBERSHIP.—The Task Force established 

7 under paragraph (1) shall include membership that re8 flects a broad diversity of experience and expertise relating 

9 to prohibited harassment, including— 

10 (1) employee advocates; 

11 (2) researchers with expertise in organizational 

12 culture change or reducing behavior related to har13 assment and discrimination; 

14 (3) legal practitioners with professional exper15 tise related to harassment litigation on behalf of em16 ployees; 

17 (4) legal practitioners with experience serving 

18 as a chief legal officer or human resource officer in 

19 a corporate legal department; 

20 (5) individuals with expertise in diversity and 

21 inclusion initiatives; 

22 (6) individuals who have experienced prohibited 

23 harassment in employment; and 

24 (7) union leaders. 

25 (c) DUTIES.—The Task Force shall— 


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1 (1) identify strategies and recommend proposals 

2 to prevent prohibited harassment in employment; 

3 and 

4 (2) provide guidance on effective strategies to 

5 prevent prohibited harassment that are specific to 

6 industries in which the Task Force determines that 

7 harassment is particularly prevalent or severe. 

8 (d) REPORT.—Not less than once every 5 years, the 

9 Commission shall prepare and publish a report on the 

10 Commission’s website, which shall be based on the work 

11 of the Task Force and shall include— 

12 (1) a review of the prevalence of prohibited har13 assment in employment, including the results of the 

14 national prevalence survey described in section 111; 

15 (2) recommendations for Federal, State, and 

16 local initiatives, reforms, and legislation to prevent 

17 prohibited harassment in employment; 

18 (3) assessments of the effectiveness of employ19 ment policies designed to prevent prohibited harass20 ment in employment by changing behavior and cul21 ture; 

22 (4) assessments of the effectiveness of processes 

23 for investigations into prohibited harassment in em24 ployment; 


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1 (5) assessments of the effectiveness of different 

2 types of training to reduce and prevent harassment 

3 in employment; and 

4 (6) assessments of the effectiveness of other 

5 proactive initiatives and interventions to reduce and 

6 prevent harassment in employment. 

7 SEC. 106. RESOURCE MATERIALS ON EMPLOYMENT CLI8 MATE ASSESSMENTS. 

9 (a) IN GENERAL.—Not later than 1 year after the 

10 date of enactment of this Act, the Commission shall de11 velop and make publicly available resource materials for 

12 employers on assessing the employment climate, including 

13 the occurrence of prohibited harassment in employment, 

14 in order to assist such employers in determining the effec15 tiveness of measures the employer takes to prevent and 

16 address prohibited harassment in employment. 

17 (b) EMPLOYMENT CLIMATE SURVEY.—Such resource 

18 materials shall include a model survey regarding prohib19 ited harassment in employment, which shall be available 

20 for an employer to use (at the employer’s discretion and 

21 employer’s expense) in order to assess the employment cli22 mate. The model survey shall be— 

23 (1) designed to assess employees’ experiences 

24 related to prohibited harassment in employment; 


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1 (2) fair, unbiased, and scientifically valid to the 

2 greatest extent practicable; 

3 (3) designed to solicit confidential submissions 

4 and to provide data without revealing personally 

5 identifiable information; and 

6 (4) inclusive of individuals required to be af7 forded protection under section 301. 

8 (c) CONTENTS.—The model survey may include— 

9 (1) questions designed to assess the prevalence 

10 of prohibited harassment in employment; 

11 (2) questions designed to understand whether 

12 employees have access to and are familiar with the 

13 employer’s nondiscrimination and anti-harassment 

14 policies and procedures; 

15 (3) questions to assess the employment climate; 

16 and 

17 (4) any additional questions the Commission 

18 determines are consistent with the purposes of this 

19 section. 

20 (d) MANDATORY EMPLOYEE PARTICIPATION PRO21 HIBITED.—An employer may not compel or require em22 ployees to participate in a survey regarding prohibited 

23 harassment or discrimination in employment. 

24 (e) REVIEW AND REVISION.—The Commission shall 

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1 scribed in subsection (a) and the model survey developed 

2 under subsection (b). 

3 SEC. 107. ESTABLISHING AN OFFICE OF EDUCATION AND 

4 OUTREACH WITHIN THE EQUAL EMPLOY5 MENT OPPORTUNITY COMMISSION. 

6 (a) IN GENERAL.—The Commission shall establish 

7 and maintain an Office of Education and Outreach to— 

8 (1) conduct outreach and education concerning 

9 prohibited discrimination and harassment in employ10 ment under Federal civil rights laws and available 

11 resources and remedies relating to those laws; and 

12 (2) conduct a multi-year public awareness cam13 paign to improve public awareness of the Commis14 sion, which shall include disseminating information 

15 about— 

16 (A) the purpose of the Commission; 

17 (B) the resources available through the 

18 Commission to prevent prohibited discrimina19 tion and harassment in employment; 

20 (C) the ways in which an individual can 

21 file a complaint with the Commission; and 

22 (D) the process by which the Commission 

23 investigates charges of discrimination. 

24 (b) INFORMATION DISSEMINATED.—The information 

25 disseminated in accordance with subsection (a)(2) shall be 


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1 made available in plain English and in an accessible man2 ner for individuals with disabilities and for individuals who 

3 primarily speak a language other than English. 

4 SEC. 108. RELATIONSHIP TO OTHER LAWS. 

5 Compliance with section 101 or 102, or use of mate6 rials provided under subtitle A, is not an affirmative de7 fense under applicable employment nondiscrimination 

8 laws. 

9 SEC. 109. AUTHORIZATION OF APPROPRIATIONS. 

10 There are authorized to be appropriated to the Com11 mission such sums as may be necessary to carry out the 

12 Commission’s duties and activities, including such duties 

13 and activities authorized under this subtitle. 

14 Subtitle B—Research and Addi15 tional Resources for Harass16 ment Prevention 

17 SEC. 111. NATIONAL PREVALENCE SURVEY ON HARASS18 MENT IN EMPLOYMENT. 

19 (a) SURVEY.—The Bureau of the Census, the Com20 mission, and the Bureau of Labor Statistics shall jointly 

21 develop a national prevalence survey on the prevalence of 

22 prohibited harassment in employment (referred to in this 

23 section as the ‘‘national prevalence survey’’). Such survey 

24 shall be administered by the Bureau of the Census not 


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1 later than 1 year after the date of enactment of this Act, 

2 and every 3 years thereafter. 

3 (b) CONTENTS.—The national prevalence survey 

4 shall include questions designed to collect such informa5 tion from individuals as may be necessary to examine ex6 isting beliefs, attitudes, and understanding of prohibited 

7 harassment in employment, and the extent to which such 

8 harassment is experienced or observed by individuals, su9 pervisors, and employers, including the information nec10 essary for the report described in subsection (c). 

11 (c) REPORT.— 

12 (1) IN GENERAL.—Not later than 6 months 

13 after each national prevalence survey has been ad14 ministered, the Bureau of the Census, the Commis15 sion, and the Bureau of Labor Statistics shall jointly 

16 prepare and submit to the Committee on Health, 

17 Education, Labor, and Pensions of the Senate and 

18 the Committee on Education and Labor of the 

19 House of Representatives a report on the results of 

20 that survey. 

21 (2) REQUIRED INFORMATION.—The report 

22 under this subsection shall include, at minimum— 

23 (A) information about the extent to which 

24 individuals experience prohibited harassment in 

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1 ual orientation, gender identity, pregnancy, 

2 childbirth, a medical condition related to preg3 nancy or childbirth, and a sex stereotype), race, 

4 color, religion, national origin, age, disability, 

5 genetic information, and uniformed service sta6 tus, and information about the interaction of 

7 different characteristics that may be the basis 

8 of harassment in employment; 

9 (B) information about the prevalence of 

10 each such form of prohibited harassment in em11 ployment, disaggregated by industry and salary 

12 level, including across all wage bands; and 

13 (C) an analysis of the economic impacts of 

14 prohibited harassment. 

15 (3) DISAGGREGATION OF SEX-BASED HARASS16 MENT.—The report under this subsection shall sepa17 rately, and in the aggregate, report each of the fol18 lowing bases of sex harassment: 

19 (A) Sexual orientation. 

20 (B) Gender identity. 

21 (C) Pregnancy. 

22 (D) Childbirth. 

23 (E) A medical condition related to preg24 nancy or childbirth. 

25 (F) A sex stereotype. 


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1 (G) Sexual in nature. 

2 (4) PUBLIC AVAILABILITY.—The report shall be 

3 made publicly available on the websites of the Bu4 reau of the Census, the Commission, and Bureau of 

5 Labor Statistics. 

6 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

7 are authorized to be appropriated for the Bureau of the 

8 Census to carry out this section such sums as may be nec9 essary for each fiscal year the national prevalence survey 

10 is to be administered under subsection (a) or the report 

11 is to be submitted under subsection (c). 

12 SEC. 112. STUDY AND REPORT ON HARASSMENT IN THE 

13 FEDERAL GOVERNMENT. 

14 (a) IN GENERAL.—Not later than 1 year after the 

15 date of enactment of this Act, and not less than once every 

16 3 years thereafter, the Merit Systems Protection Board 

17 shall prepare and submit to the Committee on Health, 

18 Education, Labor, and Pensions of the Senate and the 

19 Committee on Education and Labor of the House of Rep20 resentatives a report containing the following information: 

21 (1) The prevalence of specific behaviors associ22 ated with prohibited harassment in employment 

23 among Federal employees, including information 

24 about such behaviors disaggregated by each wage 

25 band. 


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1 (2) The impact of prohibited harassment in em2 ployment and violations of Federal civil rights laws 

3 on the Federal Government, in terms of monetary 

4 costs, attrition, and morale. 

5 (3) The particular impact of prohibited harass6 ment in employment on the experience of Federal 

7 employees with disabilities. 

8 (4) Working in coordination with the Commis9 sion’s Office of Federal Operations, a description of 

10 the differences in Federal agency policies, strategies, 

11 reporting mechanisms, training programs, and other 

12 practices regarding preventing and addressing pro13 hibited harassment in employment. 

14 (5) A description of which policies, strategies, 

15 reporting mechanisms, training programs, and other 

16 practices described in paragraph (4) have prevented, 

17 addressed, or reduced prohibited harassment in em18 ployment. 

19 (6) Working in coordination with the Commis20 sion’s Office of Federal Operations, joint rec21 ommendations from such Office and the Merit Sys22 tems Protection Board to Federal agencies on how 

23 to prevent and address prohibited harassment in em24 ployment. 


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1 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated to the Merit Systems 

3 Protection Board such sums as may be necessary to carry 

4 out this section. 

5 SEC. 113. STUDIES, REPORTS, AND FURTHER RESEARCH. 

6 (a) STUDY AND REPORT ON ENFORCEMENT OF NON7 DISCRIMINATION LAWS PROHIBITING HARASSMENT

8 LAWS.—Not later than 1 year after the date of enactment 

9 of this Act, the United States Commission on Civil Rights 

10 shall prepare and submit to the Committee on Health, 

11 Education, Labor, and Pensions of the Senate and the 

12 Committee on Education and Labor of the House of Rep13 resentatives a report that shall examine enforcement of 

14 the nondiscrimination laws prohibiting harassment includ15 ing— 

16 (1) trends in enforcement of such laws; 

17 (2) barriers to effective enforcement of such 

18 laws; 

19 (3) best practices in enforcement of such laws; 

20 (4) recommendations about how to improve en21 forcement of such laws, including whether estab22 lishing individual liability for discrimination and har23 assment in employment would improve enforcement 

24 of such laws; and 


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1 (5) how the experience of harassment for em2 ployees and individuals required to be afforded pro3 tections under section 301 has changed over time 

4 since the passage of such laws. 

5 (b) STUDY AND REPORT ON PREVENTION OF HAR6 ASSMENT IN EMPLOYMENT.— 

7 (1) IN GENERAL.—Not later than 60 days after 

8 the date of enactment of this Act, the Director of 

9 the National Institutes of Health shall enter into an 

10 agreement with the National Academies of Sciences, 

11 Engineering, and Medicine, through which the Na12 tional Academies of Science, Engineering, and Medi13 cine shall conduct a study on preventing and ad14 dressing prohibited harassment in employment. 

15 (2) CONTENTS.—Such study shall include— 

16 (A) an evaluation of the existing research 

17 of the causes of prohibited harassment in em18 ployment, including retaliation related to such 

19 harassment, and gaps in such research; 

20 (B) a review of the existing research re21 garding how prohibited harassment in employ22 ment impacts individuals; 

23 (C) an evaluation of the existing research 

24 on training to prevent prohibited harassment in 

25 employment, including essential components of 


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1 effective training to prevent such prohibited 

2 harassment and retaliation, and gaps in such 

3 research; 

4 (D) an assessment of the efficacy and 

5 availability of training models and programs to 

6 prevent prohibited harassment in employment; 

7 (E) the identification of employment or so8 cietal factors that increase the likelihood of pro9 hibited harassment in employment, particularly 

10 across industries with a high number of individ11 uals who are vulnerable to experiencing such 

12 prohibited harassment, including whether diver13 sity in leadership positions within an organiza14 tion reduces the likelihood of such prohibited 

15 harassment; 

16 (F) an examination of methods of induc17 ing, scaling, and sustaining institutional or or18 ganizational change to prevent prohibited har19 assment in employment; 

20 (G) an analysis of policies, strategies, and 

21 practices that have been the most successful in 

22 preventing and addressing prohibited harass23 ment in employment; and 


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1 (H) any other information or analysis nec2 essary to identify the gaps in research and 

3 other measures described in subsection (c). 

4 (3) REPORT.—Not later than 1 year after the 

5 date of enactment of this Act, the National Acad6 emies of Sciences, Engineering, and Medicine shall 

7 prepare and submit to the Committee on Health, 

8 Education, Labor, and Pensions of the Senate, the 

9 Committee on Education and Labor of the House of 

10 Representatives, and the Director of the National 

11 Institutes of Health, a report containing the results 

12 of the study conducted under this subsection and 

13 make recommendations to Congress, executive 

14 branch agencies, private employers, and researchers. 

15 Such recommendations shall include ways that such 

16 training could be improved to result in behavioral 

17 and cultural changes that prevent and reduce behav18 iors associated with prohibited harassment in em19 ployment. The report and recommendations shall be 

20 made publicly available. 

21 (c) SUPPORTING FURTHER RESEARCH ON PRE22 VENTING AND UNDERSTANDING HARASSMENT IN EM23 PLOYMENT.— 

24 (1) IN GENERAL.—Not later than 6 months 

25 after the submission required under subsection 


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1 (b)(3), the Director of the National Institutes of 

2 Health, in consultation with the Commission and the 

3 Secretary of Labor, shall enter into agreements (in4 cluding through the use of grants, contracts, cooper5 ative agreements, or other transactions) to support 

6 research regarding— 

7 (A) the gaps identified in the report re8 quired under subsection (b)(3) in research on 

9 the causes of prohibited harassment in employ10 ment, including retaliation related to such har11 assment; 

12 (B) the gaps identified in the report re13 quired under subsection (b)(3) in research on 

14 the psychological sequelae of prohibited harass15 ment in employment, including retaliation re16 lated to such harassment; 

17 (C) gaps identified in the report required 

18 under subsection (b)(3) in research on special 

19 populations and their risk for prohibited harass20 ment in employment, including adolescents, 

21 older individuals, racial and ethnic minorities, 

22 individuals with disabilities, women, and other 

23 populations that could be disproportionately af24 fected by prohibited harassment in employment; 


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1 (D) gaps identified in the report required 

2 under subsection (b)(3) in research on prohib3 ited harassment in employment, including retal4 iation related to such harassment, as a risk fac5 tor for various mental health problems; 

6 (E) gaps identified in the report required 

7 under subsection (b)(3) in research on 

8 sociocultural correlations within prohibited har9 assment in employment, including retaliation 

10 related to such harassment; and 

11 (F) systematic and quantifiable measures 

12 to evaluate prevention strategies for victims and 

13 perpetrators of prohibited harassment in em14 ployment, including retaliation related to such 

15 harassment. 

16 (2) AUTHORIZATION OF APPROPRIATIONS.— 

17 There are authorized to be appropriated to the Na18 tional Institutes of Health to carry out this sub19 section such sums as may be necessary. 

20 Subtitle C—Preventing Harassment 

21 of Tipped Employees 

22 SEC. 121. TIPPED EMPLOYEES. 

23 (a) BASE MINIMUM WAGE FOR TIPPED EMPLOYEES

24 AND TIPS RETAINED BY EMPLOYEES.—Section 

25 3(m)(2)(A)(i) of the Fair Labor Standards Act of 1938 


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1 (29 U.S.C. 203(m)(2)(A)(i)) is amended to read as fol2 lows: 

3 ‘‘(i) the cash wage paid such em4 ployee, which for purposes of such deter5 mination shall be not less than— 

6 ‘‘(I) for the 1-year period begin7 ning on the effective date under sub8 section (e), $3.60 an hour; 

9 ‘‘(II) for each succeeding 1-year 

10 period until the hourly wage under 

11 this clause equals the wage in effect 

12 under section 6(a)(1) for such period, 

13 an hourly wage equal to the amount 

14 determined under this clause for the 

15 preceding year, increased by the lesser 

16 of— 

17 ‘‘(aa) $1.50; or 

18 ‘‘(bb) the amount necessary 

19 for the wage in effect under this 

20 clause to equal the wage in effect 

21 under section 6(a)(1) for such 

22 period, rounded up to the nearest 

23 multiple of $0.05; and 

24 ‘‘(III) for each succeeding 1-year 

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1 ant to subclause (II), the minimum 

2 wage in effect under section 6(a)(1); 

3 and’’. 

4 (b) TIPS RETAINED BY EMPLOYEES.—Section 

5 3(m)(2)(A) of the Fair Labor Standards Act of 1938 (29 

6 U.S.C. 203(m)(2)(A)) is amended— 

7 (1) in the second sentence of the matter fol8 lowing clause (ii), by striking ‘‘of this subsection, 

9 and all tips received by such employee have been re10 tained by the employee’’ and inserting ‘‘of this sub11 section. Any employee shall have the right to retain 

12 any tips received by such employee’’; and 

13 (2) by adding at the end the following: ‘‘An em14 ployer shall inform each employee of the right and 

15 exception provided under the preceding sentence.’’. 

16 (c) PUBLICATION OF NOTICE.—Section 6 of the Fair 

17 Labor Standards Act of 1938 (29 U.S.C. 206) is amended 

18 by adding at the end the following: 

19 ‘‘(h) Not later than 60 days prior to the effective date 

20 of any increase in the required wage determined in accord21 ance with subclause (II) or (III) of section 3(m)(2)(A)(i), 

22 the Secretary shall publish in the Federal Register and 

23 on the website of the Department of Labor a notice an24 nouncing each increase in such required wage.’’. 


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1 (d) SCHEDULED REPEAL OF SEPARATE MINIMUM

2 WAGE FOR TIPPED EMPLOYEES.— 

3 (1) TIPPED EMPLOYEES.—Section 3(m)(2)(A) 

4 of the Fair Labor Standards Act of 1938 (29 U.S.C. 

5 203(m)(2)(A)), as amended by subsections (a) and 

6 (b), is further amended by striking the sentence be7 ginning with ‘‘In determining the wage an employer 

8 is required to pay a tipped employee,’’ and all that 

9 follows through ‘‘of this subsection.’’ and inserting 

10 ‘‘The wage required to be paid to a tipped employee 

11 shall be the wage set forth in section 6(a)(1).’’. 

12 (2) PUBLICATION OF NOTICE.—Section 6 of the 

13 Fair Labor Standards Act of 1938 (29 U.S.C. 206), 

14 as amended by subsection (c), is further amended by 

15 striking subsection (h). 

16 (3) EFFECTIVE DATE.—The amendments made 

17 by paragraphs (1) and (2) shall take effect on the 

18 date that is one day after the date on which the 

19 hourly wage under subclause (III) of section 

20 3(m)(2)(A)(i) of the Fair Labor Standards Act of 

21 1938 (29 U.S.C. 203(m)(2)(A)(i)), as amended by 

22 subsection (a), takes effect. 

23 (e) EFFECTIVE DATE.—Except as provided in sub24 section (d)(3), this section and the amendments made by 


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1 this section shall take effect on the first day of the third 

2 month that begins after the date of enactment of this Act. 

3 TITLE II—STRENGTHENING 

4 WORKPLACE RIGHTS 

5 SEC. 201. CLARIFYING SEXUAL ORIENTATION DISCRIMINA6 TION AND GENDER IDENTITY DISCRIMINA7 TION ARE UNLAWFUL SEX DISCRIMINATION. 

8 (a) EMPLOYMENT.— 

9 (1) RULES OF CONSTRUCTION.—Title VII of 

10 the Civil Rights Act of 1964 is amended by inserting 

11 after section 701 (42 U.S.C. 2000e) the following: 

12 ‘‘SEC. 701A. RULES OF CONSTRUCTION. 

13 ‘‘Section 1106 shall apply to this title except that for 

14 purposes of that application, a reference in that section 

15 to an ‘unlawful practice’ shall be considered to be a ref16 erence to an ‘unlawful employment practice’.’’. 

17 (2) UNLAWFUL EMPLOYMENT PRACTICES.— 

18 Section 703 of the Civil Rights Act of 1964 (42 

19 U.S.C. 2000e–2) is amended— 

20 (A) in the section header, by striking 

21 ‘‘SEX,’’ and inserting ‘‘SEX (INCLUDING SEX22 UAL ORIENTATION, GENDER IDENTITY, 

23 PREGNANCY, CHILDBIRTH, A MEDICAL

24 CONDITION RELATED TO PREGNANCY OR

25 CHILDBIRTH, AND A SEX STEREOTYPE),’’; 


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1 (B) except in subsections (e), (j) and (m), 

2 by striking ‘‘sex,’’ each place it appears and in3 serting ‘‘sex (including sexual orientation, gen4 der identity, pregnancy, childbirth, a medical 

5 condition related to pregnancy or childbirth, 

6 and a sex stereotype),’’; 

7 (C) in subsection (e)(1), by striking ‘‘en8 terprise,’’ and inserting ‘‘enterprise, if, in a sit9 uation in which sex is a bona fide occupational 

10 qualification, individuals are recognized as 

11 qualified in accordance with their gender iden12 tity,’’; 

13 (D) in subsection (h), by striking ‘‘sex’’ 

14 the second place it appears and inserting ‘‘sex 

15 (including sexual orientation, gender identity, 

16 pregnancy, childbirth, a medical condition re17 lated to pregnancy or childbirth, and a sex 

18 stereotype),’’; 

19 (E) in subsection (j)— 

20 (i) by striking ‘‘sex,’’ the first place it 

21 appears and inserting ‘‘sex (including sex22 ual orientation, gender identity, pregnancy, 

23 childbirth, a medical condition related to 

24 pregnancy or childbirth, and a sex stereo25 type),’’; and 


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1 (ii) by striking ‘‘sex,’’ the second and 

2 third places it appears and inserting ‘‘sex 

3 (including sexual orientation, gender iden4 tity, pregnancy, childbirth, a medical con5 dition related to pregnancy or childbirth, 

6 and a sex stereotype),’’; and 

7 (F) in subsection (m), by striking ‘‘sex,’’ 

8 and inserting ‘‘sex (including sexual orientation, 

9 gender identity, pregnancy, childbirth, a med10 ical condition related to pregnancy or childbirth, 

11 and a sex stereotype),’’. 

12 (3) OTHER UNLAWFUL EMPLOYMENT PRAC13 TICES.—Section 704(b) of the Civil Rights Act of 

14 1964 (42 U.S.C. 2000e–3(b)) is amended— 

15 (A) by striking ‘‘sex,’’ the first place it ap16 pears and inserting ‘‘sex (including sexual ori17 entation, gender identity, pregnancy, childbirth, 

18 a medical condition related to pregnancy or 

19 childbirth, and a sex stereotype),’’; and 

20 (B) by striking ‘‘employment.’’ and insert21 ing ‘‘employment, if, in a situation in which sex 

22 is a bona fide occupational qualification, indi23 viduals are recognized as qualified in accord24 ance with their gender identity.’’. 


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1 (4) CLAIMS.—Section 706(g)(2)(A) of the Civil 

2 Rights Act of 1964 (2000e–5(g)(2)(A)) is amended 

3 by striking ‘‘sex,’’ and inserting ‘‘sex (including sex4 ual orientation, gender identity, pregnancy, child5 birth, a medical condition related to pregnancy or 

6 childbirth, and a sex stereotype),’’. 

7 (5) EMPLOYMENT BY FEDERAL GOVERN8 MENT.—Section 717 of the Civil Rights Act of 1964 

9 (42 U.S.C. 2000e–16) is amended— 

10 (A) in subsection (a), by striking ‘‘sex,’’ 

11 and inserting ‘‘sex (including sexual orientation, 

12 gender identity, pregnancy, childbirth, a med13 ical condition related to pregnancy or childbirth, 

14 and a sex stereotype),’’; and 

15 (B) in subsection (c), by striking ‘‘sex’’ 

16 and inserting ‘‘sex (including sexual orientation, 

17 gender identity, pregnancy, childbirth, a med18 ical condition related to pregnancy or childbirth, 

19 and a sex stereotype),’’. 

20 (6) GOVERNMENT EMPLOYEE RIGHTS ACT OF

21 1991.—The Government Employee Rights Act of 

22 1991 (42 U.S.C. 2000e–16a et seq.) is amended— 

23 (A) in section 301(b), by striking ‘‘sex,’’ 

24 and inserting ‘‘sex (including sexual orientation, 

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1 ical condition related to pregnancy or childbirth, 

2 and a sex stereotype),’’; 

3 (B) in section 302(a)(1), by striking ‘‘sex,’’ 

4 and inserting ‘‘sex (including sexual orientation, 

5 gender identity, pregnancy, childbirth, a med6 ical condition related to pregnancy or childbirth, 

7 and a sex stereotype),’’; and 

8 (C) by adding at the end the following: 

9 ‘‘SEC. 305. RULES OF CONSTRUCTION AND CLAIMS. 

10 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 

11 Rights Act of 1964 shall apply to this title except that 

12 for purposes of that application, a reference in that section 

13 1106 to ‘race, color, religion, sex (including sexual orienta14 tion, gender identity, pregnancy, childbirth, a medical con15 dition related to pregnancy or childbirth, and a sex stereo16 type), or national origin’ shall be considered to be a ref17 erence to ‘race, color, religion, sex (including sexual ori18 entation, gender identity, pregnancy, childbirth, a medical 

19 condition related to pregnancy or childbirth, and a sex 

20 stereotype), national origin, age, or disability’.’’. 

21 (7) CONGRESSIONAL ACCOUNTABILITY ACT OF

22 1995.—The Congressional Accountability Act of 1995 

23 (2 U.S.C. 1301 et seq.) is amended— 

24 (A) in section 201(a)(1) (2 U.S.C. 

25 1311(a)(1)) by striking ‘‘sex,’’ and inserting 


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•S 3219 IS

1 ‘‘sex (including sexual orientation, gender iden2 tity, pregnancy, childbirth, a medical condition 

3 related to pregnancy or childbirth, and a sex 

4 stereotype),’’; and 

5 (B) by adding at the end of title II (42 

6 U.S.C. 1311 et seq.) the following: 

7 ‘‘SEC. 209. RULES OF CONSTRUCTION AND CLAIMS. 

8 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 

9 Rights Act of 1964 shall apply to section 201 (and reme10 dial provisions of this Act related to section 201) except 

11 that for purposes of that application, a reference in that 

12 section 1106 to ‘race, color, religion, sex (including sexual 

13 orientation, gender identity, pregnancy, childbirth, a med14 ical condition related to pregnancy or childbirth, and a sex 

15 stereotype), or national origin’ shall be considered to be 

16 a reference to ‘race, color, religion, sex (including sexual 

17 orientation, gender identity, pregnancy, childbirth, a med18 ical condition related to pregnancy or childbirth, and a sex 

19 stereotype), national origin, age, or disability’.’’. 

20 (8) CIVIL SERVICE REFORM ACT OF 1978.— 

21 Chapter 23 of title 5, United States Code, is amend22 ed— 

23 (A) in section 2301(b)(2), by striking 

24 ‘‘sex,’’ and inserting ‘‘sex (including sexual ori25 entation, gender identity, pregnancy, childbirth, 


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•S 3219 IS

1 a medical condition related to pregnancy or 

2 childbirth, and a sex stereotype),’’; 

3 (B) in section 2302— 

4 (i) in subsection (b)(1)(A), by striking 

5 ‘‘sex,’’ and inserting ‘‘sex (including sexual 

6 orientation, gender identity, pregnancy, 

7 childbirth, a medical condition related to 

8 pregnancy or childbirth, and a sex stereo9 type),’’; and 

10 (ii) in subsection (d)(1), by striking 

11 ‘‘sex,’’ and inserting ‘‘sex (including sexual 

12 orientation, gender identity, pregnancy, 

13 childbirth, a medical condition related to 

14 pregnancy or childbirth, and a sex stereo15 type),’’; and 

16 (C) by adding at the end the following: 

17 ‘‘SEC. 2307. RULES OF CONSTRUCTION AND CLAIMS. 

18 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 

19 Rights Act of 1964 shall apply to this chapter (and reme20 dial provisions of this title related to this chapter) except 

21 that for purposes of that application, a reference in that 

22 section 1106 to ‘race, color, religion, sex (including sexual 

23 orientation, gender identity, pregnancy, childbirth, a med24 ical condition related to pregnancy or childbirth, and a sex 

25 stereotype), or national origin’ shall be considered to be 


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1 a reference to ‘race, color, religion, sex (including sexual 

2 orientation, gender identity, pregnancy, childbirth, a med3 ical condition related to pregnancy or childbirth, and a sex 

4 stereotype), national origin, age, disability, marital status, 

5 or political affiliation’.’’. 

6 (b) MISCELLANEOUS.—Title XI of the Civil Rights 

7 Act of 1964 is amended— 

8 (1) by redesignating sections 1101 through 

9 1104 (42 U.S.C. 2000h et seq.) and sections 1105 

10 and 1106 (42 U.S.C. 2000h–5, 2000h–6) as sections 

11 1102 through 1105 and sections 1108 and 1109, re12 spectively; 

13 (2) by inserting after the title heading the fol14 lowing: 

15 ‘‘SEC. 1101. DEFINITIONS AND RULES. 

16 ‘‘(a) DEFINITIONS.—In title VII: 

17 ‘‘(1) RACE; COLOR; RELIGION; SEX; SEXUAL

18 ORIENTATION; GENDER IDENTITY; NATIONAL ORI19 GIN.—The term ‘race’, ‘color’, ‘religion’, ‘sex’, or 

20 ‘national origin’, used with respect to an individual, 

21 includes— 

22 ‘‘(A) the race, color, religion, sex (includ23 ing sexual orientation, gender identity, preg24 nancy, childbirth, a medical condition related to 

25 pregnancy or childbirth, and a sex stereotype), 


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•S 3219 IS

1 or national origin, respectively, of another per2 son with whom the individual is associated or 

3 has been associated; and 

4 ‘‘(B) a perception or belief, even if inac5 curate, concerning the race, color, religion, sex 

6 (including sexual orientation, gender identity, 

7 pregnancy, childbirth, a medical condition re8 lated to pregnancy or childbirth, and a sex 

9 stereotype), or national origin, respectively, of 

10 the individual. 

11 ‘‘(2) GENDER IDENTITY.—The term ‘gender 

12 identity’ means the gender-related identity, appear13 ance, mannerisms, or other gender-related character14 istics of an individual, regardless of the individual’s 

15 designated sex at birth. 

16 ‘‘(3) INCLUDING.—The term ‘including’ means 

17 including, but not limited to, consistent with the 

18 term’s standard meaning in Federal law. 

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

20 orientation’ means homosexuality, heterosexuality, or 

21 bisexuality. 

22 ‘‘(b) RULES.—In title VII— 

23 ‘‘(1) with respect to sex, an individual’s preg24 nancy, childbirth, or related medical condition shall 


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1 not receive less favorable treatment than other phys2 ical conditions; and 

3 ‘‘(2) with respect to gender identity, an indi4 vidual shall not be denied access to a shared facility, 

5 including a restroom, a locker room, and a dressing 

6 room, that is in accordance with the individual’s 

7 gender identity.’’; and 

8 (3) by inserting after section 1105 the fol9 lowing: 

10 ‘‘SEC. 1106. RULES OF CONSTRUCTION. 

11 ‘‘(a) SEX.—Nothing in section 1101 or the provisions 

12 of title VII incorporating a term defined or a rule specified 

13 in that section shall be construed— 

14 ‘‘(1) to limit the protection against an unlawful 

15 practice on the basis of pregnancy, childbirth, a 

16 medical condition related to pregnancy or childbirth 

17 provided by section 701(k); or 

18 ‘‘(2) to limit the protection against an unlawful 

19 practice on the basis of sex available under any pro20 vision of Federal law other than title VII, prohib21 iting a practice on the basis of sex. 

22 ‘‘(b) CLAIMS AND REMEDIES NOT PRECLUDED.— 

23 Nothing in section 1101 or title VII shall be construed 

24 to limit the claims or remedies available to any individual 

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1 gion, sex (including sexual orientation, gender identity, 

2 pregnancy, childbirth, a medical condition related to preg3 nancy or childbirth, and a sex stereotype), or national ori4 gin including claims brought pursuant to section 1979 or 

5 1980 of the Revised Statutes (42 U.S.C. 1983, 1985) or 

6 any other law, including a Federal law amended by the 

7 BE HEARD in the Workplace Act, regulation, or policy. 

8 ‘‘(c) NO NEGATIVE INFERENCE.—Nothing in section 

9 1101 or title VII shall be construed to support any infer10 ence that any Federal law prohibiting a practice on the 

11 basis of sex does not prohibit discrimination on the basis 

12 of pregnancy, childbirth, a medical condition related to 

13 pregnancy or childbirth, sexual orientation, gender iden14 tity, or a sex stereotype. 

15 ‘‘SEC. 1107. CLAIMS. 

16 ‘‘The Religious Freedom Restoration Act of 1993 (42 

17 U.S.C. 2000bb et seq.) shall not provide a claim con18 cerning, or a defense to a claim under, title VII, or provide 

19 a basis for challenging the application or enforcement of 

20 title VII.’’. 

21 SEC. 202. COVERED EMPLOYERS. 

22 Section 701(b) of the Civil Rights Act of 1964 (42 

23 U.S.C. 2000e(b)) is amended by striking ‘‘fifteen’’ and in24 serting ‘‘one’’. 


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1 SEC. 203. COMPENSATORY AND PUNITIVE DAMAGES AVAIL2 ABLE. 

3 (a) CIVIL RIGHTS; DISABILITY.— 

4 (1) IN GENERAL.—Section 1977A(b) of the Re5 vised Statutes (42 U.S.C. 1981a(b)) is amended by 

6 striking paragraph (3) and inserting the following: 

7 ‘‘(3) LOSSES.—Compensatory damages are 

8 available under this section for future pecuniary 

9 losses, emotional pain, suffering, inconvenience, 

10 mental anguish, loss of enjoyment of life, and other 

11 nonpecuniary losses.’’. 

12 (2) CONFORMING AMENDMENTS.— 

13 (A) Section 201(b) of the Congressional 

14 Accountability Act of 1995 (2 U.S.C. 1311(b)) 

15 is amended, in paragraphs (1)(B) and (3)(B)— 

16 (i) by striking ‘‘and, irrespective of 

17 the size of the employing office, 

18 1977A(b)(3)(D)’’ and inserting ‘‘and 

19 1977A(b)(3)’’; and 

20 (ii) by striking ‘‘and 1981a(b)(3)(D)’’ 

21 and inserting ‘‘and 1981a(b)(3)’’. 

22 (B) Section 411(b) of title 3, United 

23 States Code, is amended, in paragraphs (1)(B) 

24 and (3)(B), by striking ‘‘and, irrespective of the 

25 size of the employing office, 1977A(b)(3)(D)’’ 

26 and inserting ‘‘and 1977A(b)(3)’’. 


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1 (C) Section 207 of the Genetic Information 

2 Nondiscrimination Act of 2008 (42 U.S.C. 

3 2000ff–16) is amended, in paragraph (3) of 

4 each of subsections (a) through (e), by striking 

5 ‘‘, including the limitations contained in sub6 section (b)(3) of such section 1977A,’’. 

7 (b) AGE.—Section 7(b) of the Age Discrimination in 

8 Employment Act of 1967 (29 U.S.C. 626(b)) is amend9 ed— 

10 (1) by striking ‘‘(b) The’’ and all that follows 

11 through the third sentence and inserting the fol12 lowing: 

13 ‘‘(b)(1) Except as otherwise provided in another sub14 section of this section, or section 9, the powers, remedies, 

15 and procedures set forth in sections 705, 706, 707, 709, 

16 and 710 of the Civil Rights Act of 1964 (42 U.S.C. 

17 2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9) 

18 shall be the powers, remedies, and procedures this Act 

19 provides to the Commission, to the Attorney General, or 

20 to any person alleging discrimination on the basis of age 

21 in violation of section 4, or regulations promulgated under 

22 section 9.’’; and 

23 (2) in the second sentence of that subsection 

24 (b), as amended by paragraph (1), by striking ‘‘or 

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1 paid minimum wages or unpaid overtime compensa2 tion under this section’’ and inserting ‘‘and includ3 ing any type of legal or equitable relief available 

4 under title VII of the Civil Rights Act of 1964 (42 

5 U.S.C. 2000e et seq.)’’. 

6 SEC. 204. HARASSMENT AND DISCRIMINATION; STANDARDS 

7 OF PROOF. 

8 (a) FINDINGS.—Congress finds that— 

9 (1) harassment is a persistent and significant 

10 problem in the workplace in the United States; 

11 (2) workers are harassed because of their sex 

12 (including sexual orientation, gender identity, preg13 nancy, childbirth, or a medical condition related to 

14 pregnancy or childbirth, and a sex stereotype), race, 

15 color, religion, national origin, age, disability, genetic 

16 information, and uniformed services status; 

17 (3) Congress enacted title VII of the Civil 

18 Rights Act of 1964 intending to provide broad pro19 tection from many forms of bias in the workplace; 

20 (4) the Supreme Court has recognized in City 

21 of Los Angeles Department of Water and Power v. 

22 Manhart, 435 U.S. 702 (1978), that the protection 

23 against sex discrimination in the terms, conditions, 

24 or privileges of employment under title VII of the 

25 Civil Rights Act of 1964 reflects Congress’ intent to 


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•S 3219 IS

1 ‘‘strike at the entire spectrum’’ of sex-based dis2 crimination in employment; 

3 (5) in 1980, the Equal Employment Oppor4 tunity Commission (referred to in this section as 

5 ‘‘the Commission’’) amended its Guidelines on Dis6 crimination Because of Sex (referred to in this sec7 tion as ‘‘the Guidelines’’) to specify that sexual har8 assment is a form of sex discrimination prohibited 

9 by title VII of the Civil Rights Act of 1964; 

10 (6) in the Guidelines, the Commission explained 

11 that harassing conduct is unlawful where— 

12 (A) ‘‘submission to such conduct is made 

13 either explicitly or implicitly a term or condition 

14 of an individual’s employment’’; 

15 (B) ‘‘submission to or rejection of such 

16 conduct by an individual is used as the basis for 

17 employment decisions’’; or 

18 (C) the conduct ‘‘has the purpose or effect 

19 of unreasonably interfering with an individual’s 

20 work performance or creating an intimidating, 

21 hostile, or offensive working environment’’; 

22 (7) the Commission further explained that, with 

23 respect to the evidence required to support a finding 

24 of unlawful harassment, it ‘‘will look at the record 

25 as a whole and at the totality of the circumstances, 


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1 such as the nature of the sexual advances and the 

2 context in which the alleged incidents occurred’’ and 

3 emphasized that the ‘‘determination of the legality of 

4 a particular action will be made from the facts, on 

5 a case by case basis’’; 

6 (8) six years later, the Supreme Court in 

7 Meritor Savings Bank v. Vinson, 477 U.S. 57 

8 (1986), recognized that the protections under title 

9 VII of the Civil Rights Act of 1964 are not limited 

10 to discrimination that causes ‘‘economic’’ or ‘‘tan11 gible’’ loss, and held that the phrase ‘‘terms, condi12 tions, or privileges of employment’’ in title VII of 

13 such Act is an ‘‘expansive concept that sweeps with14 in its protective ambit’’ the practice of creating a 

15 hostile work environment based on discrimination in 

16 the form of harassment; 

17 (9) in reaching this conclusion in the Meritor 

18 decision, the Supreme Court cited and approved the 

19 Guidelines; 

20 (10) in the Meritor decision, the Supreme Court 

21 cited with approval lower court decisions that con22 cluded that a hostile work environment based on 

23 race, religion, or national origin violates the prohibi24 tion of discrimination in the terms, conditions, or 


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1 privileges of employment under title VII of the Civil 

2 Rights Act of 1964, which decisions included— 

3 (A) Rogers v. EEOC, 454 F.2d 234 (5th 

4 Cir. 1971); 

5 (B) Firefighters Institute for Racial 

6 Equality v. City of St. Louis, 549 F.2d 506 

7 (8th Cir. 1977); 

8 (C) Gray v. Greyhound Lines, 545 F.2d 

9 169 (D.C. Cir. 1976); 

10 (D) Compston v. Borden, Inc., 424 F. 

11 Supp. 157 (S.D. Ohio 1976); and 

12 (E) Cariddi v. Kansas City Chiefs Football 

13 Club, Inc., 568 F.2d 87 (8th Cir. 1977); 

14 (11) in defining the evidence required to prove 

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

16 1964, in the Meritor decision, the Supreme Court 

17 noted that harassment would be actionable when it 

18 is ‘‘sufficiently severe or pervasive ‘to alter the con19 ditions of [the victim’s] employment and create an 

20 abusive working environment’ ’’ (quoting Rogers v. 

21 EEOC, 454 F.2d 234 (5th Cir. 1971)); 

22 (12) in Harris v. Forklift Systems, Inc., 510 

23 U.S. 17 (1993), the Supreme Court clarified that 

24 harassment need not seriously affect an employee’s 

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1 fer injury in order to be unlawful, but rather, need 

2 merely create a work environment that a reasonable 

3 person in the protected class would find hostile or 

4 abusive; 

5 (13) in Harris v. Forklift Systems, Inc., the Su6 preme Court held that whether a work environment 

7 is unlawfully hostile or abusive does not depend on 

8 any mathematically precise test, but rather, is to be 

9 determined by looking at all of the circumstances, 

10 with no single factor required; 

11 (14) in National Railroad Passenger Corp. v. 

12 Morgan, 536 U.S. 101 (2002), the Supreme Court 

13 reaffirmed the Harris decision and further held that 

14 the hostility or abusiveness of each harassing act 

15 should be considered in the aggregate, not in isola16 tion, regardless of whether such acts occur over days 

17 or even years; 

18 (15) notwithstanding the rulings of the Su19 preme Court specified in this subsection, some lower 

20 court decisions have treated harassing conduct’s se21 verity or pervasiveness as the only 2 relevant factors 

22 in evaluating whether such conduct violates title VII 

23 of the Civil Rights Act of 1964; 

24 (16) some lower court decisions have treated 

25 ‘‘severe or pervasive’’ as a threshold for liability, 


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•S 3219 IS

1 when the relevant inquiry is whether the harassing 

2 conduct actually altered the terms, conditions, or 

3 privileges of employment; 

4 (17) some lower court decisions further have in5 terpreted the ‘‘severe or pervasive’’ language in the 

6 Meritor decision so narrowly as to recognize only the 

7 most egregious conduct as unlawful, despite Con8 gress’ intent that title VII of the Civil Rights Act of 

9 1964 afford a broad scope of protection from dis10 crimination; 

11 (18) examples of decisions that use the erro12 neous analysis described in paragraphs (15) through 

13 (17) in the context of harassment on the basis of sex 

14 include— 

15 (A) Singleton v. Department of Correc16 tional Education, 115 Fed. Appx. 119 (4th Cir. 

17 2004); 

18 (B) Black v. Zaring Homes, Inc., 104 F.3d 

19 822 (6th Cir. 1997); 

20 (C) Weiss v. Coca-Cola Bottling Co., 990 

21 F.2d 333 (7th Cir. 1993); 

22 (D) Rickard v. Swedish Match North 

23 America, Inc., 773 F.3d 181 (8th Cir. 2014); 

24 (E) Mitchell v. Pope, 189 F. Appx. 911 

25 (11th Cir. 2006); and 


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1 (F) Brooks v. City of San Mateo, 229 

2 F.3d 917 (9th Cir. 2000); 

3 (19) lower courts have made similar erroneous 

4 decisions in the context of harassment on the basis 

5 of race, national origin, age, and disability such as 

6 in Crawford v. Medina General Hospital, 96 F.3d 

7 830 (6th Cir. 1996), Shaver v. Independent Stave 

8 Co., 350 F.3d 716 (8th Cir. 2003), and Motley v. 

9 Parker-Hannifan Corp., No. 1: 94–CV–639 (W.D. 

10 Mich. 1995); 

11 (20) in contrast, other lower court decisions ap12 plying the Meritor case and its progeny have appro13 priately recognized that a wide range of harassing 

14 behavior may alter the terms, conditions, or privi15 leges of employment, with no single type, frequency, 

16 or duration of conduct required to make a showing 

17 of severe or pervasive harassment; 

18 (21) for example, in the context of harassment 

19 based on sex, those decisions have recognized that— 

20 (A) conduct need not be physical to create 

21 a hostile or abusive work environment, as in 

22 Billings v. Town of Grafton, 515 F.3d 39 (1st 

23 Cir. 2008); 

24 (B) an individual need not be the target of 

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1 ence unlawful harassment, as in Petrosino v. 

2 Bell Atlantic, 385 F.3d 210 (2d Cir. 2004); 

3 (C) power disparities, such as the young 

4 age of the individual harassed, compound the 

5 conduct’s harmful effects, as in EEOC v. R&R 

6 Ventures, 244 F.3d 334 (4th Cir. 2001); 

7 (D) gender-based epithets were based on 

8 sex and supported a finding that the workplace 

9 was objectively hostile, as in Gallagher v. C.H. 

10 Robinson Worldwide, Inc., 567 F.3d 263 (6th 

11 Cir. 2009); and 

12 (E) a single incident can alter the terms, 

13 conditions, or privileges of employment, as in 

14 Howley v. Town of Stratford, 217 F.3d 141 (2d 

15 Cir. 2000); 

16 (22) similarly, in the context of harassment 

17 based on other protected characteristics, other 

18 courts have appropriately held that— 

19 (A) calling an individual an ‘‘old man’’ and 

20 ‘‘pops’’ could contribute to actionably hostile 

21 work environment based on age, as in Dediol v. 

22 Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 

23 2011); 

24 (B) repeatedly calling an individual with 

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1 vidual is a threat to security is sufficient to 

2 support a finding of a hostile work environment 

3 based on disability, as in Quiles-Quiles v. Hen4 derson, 439 F.3d 1 (1st Cir. 2006); and 

5 (C) a single incident of calling an African6 American individual the ‘‘n word’’ by a super7 visor is sufficient to support a finding of a hos8 tile work environment based on race, as in Rod9 gers v. Western-Southern Life Insurance Co., 

10 12 F.3d 668 (7th Cir. 1993); and 

11 (23) similar erroneous decisions have been ren12 dered in the context of harassment on the basis of 

13 sex in employment under title IX of the Education 

14 Amendments of 1972 (20 U.S.C. 1681 et seq.), as 

15 in Farmer v. Troy University, No. 5:17–CV–70–B0 

16 (E.D.N.C. 2017). 

17 (b) PURPOSES.—The purposes of this section are 

18 to— 

19 (1) enact into statutory law provisions that es20 tablish that workplace harassment is a violation of 

21 the— 

22 (A) protections from discrimination in the 

23 ‘‘terms, conditions, or privileges of employ24 ment’’ found in title VII of the Civil Rights Act 

25 of 1964 (42 U.S.C. 2000e et seq.); 


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1 (B) protections from disability discrimina2 tion found in title I of the Americans with Dis3 abilities Act of 1990 (42 U.S.C. 12111 et seq.) 

4 and sections 501 and 505 of the Rehabilitation 

5 Act of 1973 (29 U.S.C. 791, 794a); 

6 (C) protections from age discrimination 

7 found in the Age Discrimination in Employ8 ment Act of 1967 (29 U.S.C. 621 et seq.); 

9 (D) protections from genetic information 

10 discrimination found in title II of the Genetic 

11 Information Nondiscrimination Act of 2008 (42 

12 U.S.C. 2000ff et seq.); and 

13 (E) protections from uniformed services 

14 status discrimination found in section 4311 of 

15 title 38, United States Code; and 

16 (2) establish a liability standard for workplace 

17 harassment that fulfills Congress’ intent of providing 

18 broad protection from discrimination in employment 

19 on the basis of race, color, religion, sex (including 

20 sexual orientation, gender identity, pregnancy, child21 birth, a medical condition related to pregnancy or 

22 childbirth, and a sex stereotype), national origin, 

23 age, disability, genetic information, and uniformed 

24 services status. 


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1 (c) ENACTING INTO STATUTORY LAW PROVISIONS

2 ESTABLISHING WORKPLACE HARASSMENT AS AN UNLAW3 FUL EMPLOYMENT PRACTICE.— 

4 (1) CIVIL RIGHTS ACT OF 1964.—Section 703 of 

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

6 is amended by adding at the end the following: 

7 ‘‘(o)(1)(A) In this subsection, the term ‘workplace 

8 harassment’ means conduct based on race, color, religion, 

9 sex (including sexual orientation, gender identity, preg10 nancy, childbirth, a medical condition related to pregnancy 

11 or childbirth, and a sex stereotype), or national origin, re12 gardless of whether it is direct or indirect, or verbal or 

13 nonverbal, that unreasonably alters an individual’s terms, 

14 conditions, or privileges of employment, including by cre15 ating an intimidating, hostile, or offensive work environ16 ment. 

17 ‘‘(B)(i) In this subsection, the term also means sexual 

18 harassment, which is conduct that takes place in a cir19 cumstance described in clause (ii) and that takes the form 

20 of— 

21 ‘‘(I) a sexual advance; 

22 ‘‘(II) a request for sexual favors; or 

23 ‘‘(III) any other conduct of a sexual nature. 

24 ‘‘(ii) A circumstance described in this clause is a situ25 ation in which— 


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•S 3219 IS

1 ‘‘(I) submission to the conduct involved is made 

2 either explicitly or implicitly a term or condition of 

3 employment; 

4 ‘‘(II) submission to or rejection of such conduct 

5 is used as the basis for an employment decision af6 fecting an individual’s employment; or 

7 ‘‘(III) such conduct unreasonably alters an indi8 vidual’s terms, conditions, or privileges of employ9 ment, including by creating an intimidating hostile, 

10 or offensive work environment. 

11 ‘‘(2) It shall be an unlawful employment practice 

12 under subsection (a) to engage in workplace harassment. 

13 ‘‘(3) In determining, for purposes of this subsection, 

14 whether conduct constitutes workplace harassment be15 cause the conduct unreasonably alters an individual’s 

16 terms, conditions, or privileges of employment, including 

17 by creating an intimidating, hostile, or offensive work en18 vironment, the following rules shall apply: 

19 ‘‘(A) That determination shall be made on the 

20 basis of the record as a whole, according to the to21 tality of the circumstances. A single incident may 

22 constitute workplace harassment. 

23 ‘‘(B) Incidents that may be workplace harass24 ment shall be considered in the aggregate, with— 


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1 ‘‘(i) conduct of varying types (such as ex2 pressions of sex-based hostility, requests for 

3 sexual favors, and denial of employment oppor4 tunities due to sexual orientation) viewed in to5 tality, rather than in isolation; and 

6 ‘‘(ii) conduct based on multiple protected 

7 characteristics (such as sex and race) viewed in 

8 totality, rather than in isolation. 

9 ‘‘(C) The factors specified in this subparagraph 

10 are among the factors to be considered in deter11 mining whether conduct constitutes workplace har12 assment and are not meant to be exhaustive. No one 

13 of those factors shall be considered to be determina14 tive in establishing whether conduct constitutes 

15 workplace harassment. Such factors are each of the 

16 following: 

17 ‘‘(i) The frequency of the conduct. 

18 ‘‘(ii) The duration of the conduct. 

19 ‘‘(iii) The location where the conduct oc20 curred. 

21 ‘‘(iv) The number of individuals engaged in 

22 the conduct. 

23 ‘‘(v) The nature of the conduct, which may 

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1 duct, and conduct that occurs in person or is 

2 transmitted, such as electronically. 

3 ‘‘(vi) Whether the conduct is threatening. 

4 ‘‘(vii) Any power differential between the 

5 alleged harasser and the person allegedly har6 assed. 

7 ‘‘(viii) Any use of epithets, slurs, or other 

8 conduct that is humiliating or degrading. 

9 ‘‘(ix) Whether the conduct reflects stereo10 types about individuals in the protected class 

11 involved. 

12 ‘‘(4) In determining, for purposes of this subsection, 

13 whether conduct constitutes workplace harassment, con14 duct may be workplace harassment regardless of whether, 

15 for example— 

16 ‘‘(A) the complaining party is not the individual 

17 being harassed; 

18 ‘‘(B) the complaining party acquiesced or other19 wise submitted to, or participated in, the conduct; 

20 ‘‘(C) the conduct is also experienced by others 

21 outside the protected class involved; 

22 ‘‘(D) the complaining party was able to con23 tinue carrying out duties and responsibilities of the 

24 party’s job despite the conduct; 


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•S 3219 IS

1 ‘‘(E) the conduct did not cause a tangible in2 jury or psychological injury; or 

3 ‘‘(F) the conduct occurred outside of the work4 place.’’. 

5 (2) AMERICANS WITH DISABILITIES ACT OF

6 1990.—Section 102(b) of the Americans with Disabil7 ities Act (42 U.S.C. 12112(b)) is amended— 

8 (A) in paragraph (6), by striking ‘‘and’’ at 

9 the end; 

10 (B) in paragraph (7), by striking the pe11 riod and inserting ‘‘; and’’; and 

12 (C) by adding at the end the following: 

13 ‘‘(8) engaging in workplace harassment, which 

14 is conduct based on disability, regardless of whether 

15 it is direct or indirect, or verbal or nonverbal, that— 

16 ‘‘(A) unreasonably alters an individual’s 

17 terms, conditions, or privileges of employment, 

18 including by creating an intimidating, hostile, 

19 or offensive work environment; and 

20 ‘‘(B) is determined to be such harassment 

21 in accordance with paragraphs (3) and (4) of 

22 section 703(o) of the Civil Rights Act of 1964 

23 (42 U.S.C. 2000e–2(o)).’’. 

24 (3) REHABILITATION ACT OF 1973.—Section 

25 501(f) of the Rehabilitation Act of 1973 (29 U.S.C. 


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•S 3219 IS

1 791(f)) is amended by inserting ‘‘, including section 

2 102(b) of that Act (42 U.S.C. 12112(b))’’, before 

3 ‘‘and the provisions’’. 

4 (4) AGE DISCRIMINATION IN EMPLOYMENT

5 ACT.—Section 4 of the Age Discrimination in Em6 ployment Act of 1967 (29 U.S.C. 623) is amended 

7 by adding at the end the following: 

8 ‘‘(n) It shall be unlawful under subsection (a) to en9 gage in workplace harassment, which is conduct based on 

10 age, regardless of whether it is direct or indirect, or verbal 

11 or nonverbal, that— 

12 ‘‘(1) unreasonably alters an individual’s terms, 

13 conditions, or privileges of employment, including by 

14 creating an intimidating, hostile, or offensive work 

15 environment; and 

16 ‘‘(2) is determined to be such harassment in ac17 cordance with paragraphs (3) and (4) of section 

18 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 

19 2000e–2(o)).’’. 

20 (5) GENETIC INFORMATION NONDISCRIMINA21 TION ACT OF 2008.—Section 202 of the Genetic In22 formation Nondiscrimination Act of 2008 (42 U.S.C. 

23 2000ff–1) is amended by adding at the end the fol24 lowing: 


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1 ‘‘(d) WORKPLACE HARASSMENT.—It shall be an un2 lawful employment practice under subsection (a) to engage 

3 in workplace harassment, which is conduct based on ge4 netic information, regardless of whether it is direct or indi5 rect, or verbal or nonverbal, that— 

6 ‘‘(1) unreasonably alters an individual’s terms, 

7 conditions, or privileges of employment, including by 

8 creating an intimidating, hostile, or offensive work 

9 environment; and 

10 ‘‘(2) is determined to be such harassment in ac11 cordance with paragraphs (3) and (4) of section 

12 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 

13 2000e–2(o)).’’. 

14 (6) CHAPTER 43 OF TITLE 38, UNITED STATES

15 CODE.—Section 4311 of title 38, United States 

16 Code, is amended by adding at the end the fol17 lowing: 

18 ‘‘(e) It shall be an unlawful employment practice 

19 under subsection (a) to engage in workplace harassment, 

20 which is conduct based on uniformed services status 

21 (meaning the membership, application for membership, 

22 performance of service, application for service, or obliga23 tion, described in subsection (a)), regardless of whether 

24 it is direct or indirect, or verbal or nonverbal, that— 


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•S 3219 IS

1 ‘‘(1) unreasonably alters an individual’s benefits 

2 of employment, including by creating an intimi3 dating, hostile, or offensive work environment; and 

4 ‘‘(2) is determined to be such harassment in ac5 cordance with paragraphs (3) and (4) of section 

6 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 

7 2000e–2(o)).’’. 

8 SEC. 205. CLARIFYING OTHER STANDARDS OF PROOF. 

9 (a) AMENDMENTS TO DEFINITIONS.— 

10 (1) AMERICANS WITH DISABILITIES ACT OF

11 1990.—Section 101 of the Americans with Disabil12 ities Act of 1990 (42 U.S.C. 12111) is amended by 

13 adding at the end the following: 

14 ‘‘(11) DEMONSTRATES.—The term ‘dem15 onstrates’ means meets the burdens of production 

16 and persuasion.’’. 

17 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT

18 OF 1967.—Section 11 of the Age Discrimination in 

19 Employment Act of 1967 (29 U.S.C. 630) is amend20 ed by adding at the end the following: 

21 ‘‘(m) The term ‘demonstrates’ means meets the bur22 dens of production and persuasion.’’. 

23 (3) GENETIC INFORMATION NONDISCRIMINA24 TION ACT OF 2008.—Section 201 of the Genetic In25 formation Nondiscrimination Act of 2008 (42 U.S.C. 


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•S 3219 IS

1 2000ff) is amended by adding at the end the fol2 lowing: 

3 ‘‘(8) DEMONSTRATES.—The term ‘dem4 onstrates’ means meets the burdens of production 

5 and persuasion.’’. 

6 (b) CLARIFYING PROHIBITION AGAINST IMPERMIS7 SIBLE CONSIDERATION IN EMPLOYMENT PRACTICES.— 

8 (1) RACE, COLOR, RELIGION, SEX, OR NA9 TIONAL ORIGIN.—Section 703 of the Civil Rights 

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

11 striking subsection (m) and inserting the following: 

12 ‘‘(m) Except as otherwise provided in this title, an 

13 unlawful employment practice is established under this 

14 title when the complaining party demonstrates that race, 

15 color, religion, sex, or national origin or an activity pro16 tected by section 704(a) was a motivating factor for any 

17 employment practice, even though other factors also moti18 vated the practice.’’. 

19 (2) DISABILITY.—Section 102 of the Americans 

20 with Disabilities Act of 1990 (42 U.S.C. 12112) is 

21 amended by adding at the end the following: 

22 ‘‘(e) PROOF.— 

23 ‘‘(1) ESTABLISHMENT.—Except as otherwise 

24 provided in this Act, a discriminatory practice is es25 tablished under this Act when the complaining party 


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•S 3219 IS

1 demonstrates that disability or an activity protected 

2 by subsection (a) or (b) of section 503 was a moti3 vating factor for any employment practice, even 

4 though other factors also motivated the practice. 

5 ‘‘(2) DEMONSTRATION.—In establishing a dis6 criminatory practice under paragraph (1) or by any 

7 other method of proof, a complaining party— 

8 ‘‘(A) may rely on any type or form of ad9 missible evidence and need only produce evi10 dence sufficient for a reasonable trier of fact to 

11 find that a discriminatory practice occurred 

12 under this Act; and 

13 ‘‘(B) shall not be required to demonstrate 

14 that disability or an activity protected by sub15 section (a) or (b) of section 503 was the sole 

16 cause of an employment practice.’’. 

17 (3) AGE.—Section 4 of the Age Discrimination 

18 in Employment Act of 1967 (29 U.S.C. 623) is 

19 amended by inserting after subsection (f) the fol20 lowing: 

21 ‘‘(g)(1) Except as otherwise provided in this Act, an 

22 unlawful practice is established under this Act when the 

23 complaining party demonstrates that age or an activity 

24 protected by subsection (d) was a motivating factor for 


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•S 3219 IS

1 any practice, even though other factors also motivated the 

2 practice. 

3 ‘‘(2) In establishing an unlawful practice under this 

4 Act, including under paragraph (1) or by any other meth5 od of proof, a complaining party— 

6 ‘‘(A) may rely on any type or form of admis7 sible evidence and need only produce evidence suffi8 cient for a reasonable trier of fact to find that an 

9 unlawful practice occurred under this Act; and 

10 ‘‘(B) shall not be required to demonstrate that 

11 age or an activity protected by subsection (d) was 

12 the sole cause of a practice.’’. 

13 (4) GENETIC INFORMATION.—Section 202 of 

14 the Genetic Information Nondiscrimination Act of 

15 2008 (42 U.S.C. 2000ff–1), as amended by section 

16 204(c)(5), is further amended by adding at the end 

17 the following: 

18 ‘‘(e) PROOF.— 

19 ‘‘(1) ESTABLISHMENT.—Except as otherwise 

20 provided in this title, an unlawful employment prac21 tice is established under this title when the com22 plaining party demonstrates that genetic information 

23 or an activity protected by section 207(f) was a mo24 tivating factor for any employment practice, even 

25 though other factors also motivated the practice. 


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1 ‘‘(2) DEMONSTRATION.—In establishing an un2 lawful employment practice under paragraph (1) or 

3 by any other method of proof, a complaining party— 

4 ‘‘(A) may rely on any type or form of ad5 missible evidence and need only produce evi6 dence sufficient for a reasonable trier of fact to 

7 find that an unlawful employment practice oc8 curred under this title; and 

9 ‘‘(B) shall not be required to demonstrate 

10 that genetic information or an activity protected 

11 by section 207(f) was the sole cause of an em12 ployment practice.’’. 

13 (c) CERTAIN RETALIATION CLAIMS.— 

14 (1) AMERICANS WITH DISABILITIES ACT OF

15 1990.—Section 503(c) of the Americans with Disabil16 ities Act of 1990 (42 U.S.C. 12203(c)) is amend17 ed— 

18 (A) by striking ‘‘The remedies’’ and insert19 ing the following: 

20 ‘‘(1) IN GENERAL.—Except as provided in para21 graph (2), the remedies’’; and 

22 (B) by adding at the end the following: 

23 ‘‘(2) CERTAIN ANTIRETALIATION CLAIMS.—Sec24 tion 107(c) shall apply to claims under section 

25 102(e)(1) with respect to title I.’’. 


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•S 3219 IS

1 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT

2 OF 1967.—Section 4(d) of the Age Discrimination in 

3 Employment Act of 1967 (29 U.S.C. 623(d)) is 

4 amended— 

5 (A) by striking ‘‘(d) It shall be’’ and in6 serting ‘‘(d)(1) It shall be’’; and 

7 (B) by adding at the end the following: 

8 ‘‘(2) Section 7(b)(2) shall apply to claims under sec9 tion 4(g)(1).’’. 

10 (3) GENETIC INFORMATION NONDISCRIMINA11 TION ACT OF 2008.—Section 207(f) of the Genetic 

12 Information Nondiscrimination Act of 2008 (42 

13 U.S.C. 2000ff–6(f)) is amended— 

14 (A) by striking ‘‘No’’ and inserting the fol15 lowing: 

16 ‘‘(1) IN GENERAL.—No’’; 

17 (B) in the second sentence, by striking 

18 ‘‘The remedies’’ and inserting ‘‘Except as pro19 vided in paragraph (2), the remedies’’; and 

20 (C) by adding at the end the following: 

21 ‘‘(2) CERTAIN RETALIATION CLAIMS.—Sub22 section (g) shall apply to claims under section 

23 202(d)(1).’’. 

24 (d) REMEDIES.— 


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1 (1) AMERICANS WITH DISABILITIES ACT OF

2 1990.—Section 107 of the Americans with Disabil3 ities Act of 1990 (42 U.S.C. 12117) is amended by 

4 adding at the end the following: 

5 ‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a 

6 claim in which an individual proves a violation under sec7 tion 102(e)(1), and a respondent demonstrates that the 

8 respondent would have taken the same action in the ab9 sence of the impermissible motivating factor, the court— 

10 ‘‘(1) may grant declaratory relief, injunctive re11 lief (except as provided in paragraph (2)), and attor12 ney’s fees and costs demonstrated to be directly at13 tributable only to the pursuit of a claim under sec14 tion 102(e)(1); and 

15 ‘‘(2) shall not award damages or issue an order 

16 requiring any admission, reinstatement, hiring, pro17 motion, or payment.’’. 

18 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT

19 OF 1967.—Section 7 of the Age Discrimination in 

20 Employment Act of 1967 (29 U.S.C. 626) is amend21 ed— 

22 (A) in subsection (b), as amended by sec23 tion 203(b)— 


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1 (i) in the second sentence, by striking 

2 ‘‘In’’ and inserting ‘‘Subject to paragraph 

3 (2), in’’; 

4 (ii) in the third sentence, by striking 

5 ‘‘Before’’ and inserting the following: 

6 ‘‘(3) Before’’; and 

7 (iii) by inserting before paragraph (3), 

8 as designated by clause (ii), the following: 

9 ‘‘(2) On a claim in which an individual proves a viola10 tion under section 4(g)(1), and a respondent demonstrates 

11 that the respondent would have taken the same action in 

12 the absence of the impermissible motivating factor, the 

13 court— 

14 ‘‘(A) may grant declaratory relief, injunctive re15 lief (except as provided in subparagraph (B)), and 

16 attorney’s fees and costs demonstrated to be directly 

17 attributable only to the pursuit of a claim under sec18 tion 4(g)(1); and 

19 ‘‘(B) shall not award damages or issue an order 

20 requiring any admission, reinstatement, hiring, pro21 motion, or payment.’’; and 

22 (B) in subsection (c)— 

23 (i) in paragraph (1), by striking 

24 ‘‘Any’’ and inserting ‘‘Subject to sub25 section (b)(2), any’’; and 


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1 (ii) in paragraph (2), by striking ‘‘of 

2 any issue of fact’’ and all that follows 

3 through the period and inserting ‘‘under 

4 the same circumstances as a trial by jury 

5 is available under title VII of the Civil 

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

7 seq.).’’. 

8 (3) GENETIC INFORMATION NONDISCRIMINA9 TION ACT OF 2008.—Section 207 of the Genetic In10 formation Nondiscrimination Act of 2008 (42 U.S.C. 

11 2000ff–6) is amended— 

12 (A) by redesignating subsection (g) as sub13 section (h); and 

14 (B) by inserting after subsection (f) the 

15 following: 

16 ‘‘(g) MOTIVATING FACTOR.—On a claim in which an 

17 individual proves a violation under section 202(e)(1), in18 cluding a claim involving an employee or applicant de19 scribed in any of subsections (a) through (e), and a re20 spondent demonstrates that the respondent would have 

21 taken the same action in the absence of the impermissible 

22 motivating factor, the court or the corresponding decision23 maker specified in subsections (a) through (e)— 

24 ‘‘(1) may grant declaratory relief, injunctive re25 lief (except as provided in paragraph (2)), and attorVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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1 ney’s fees and costs demonstrated to be directly at2 tributable only to the pursuit of a claim under sec3 tion 202(d)(1); and 

4 ‘‘(2) shall not award damages or issue an order 

5 requiring any admission, reinstatement, hiring, pro6 motion, or payment.’’. 

7 (e) FEDERAL EMPLOYEES.— 

8 (1) TITLE VII OF THE CIVIL RIGHTS ACT OF

9 1964.—Section 717 of the Civil Rights Act of 1964 

10 (42 U.S.C. 2000e–16) is amended by adding at the 

11 end the following: 

12 ‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 

13 to mixed motive cases (involving practices described in sec14 tion 703(m)) under this section.’’. 

15 (2) REHABILITATION ACT OF 1973.—The 

16 amendment made by subsection (f) to section 501(f) 

17 of the Rehabilitation Act of 1973 (29 U.S.C. 791(f)) 

18 shall be construed to apply to all employees covered 

19 by section 501 of that Act (29 U.S.C. 791). 

20 (3) AGE DISCRIMINATION IN EMPLOYMENT ACT

21 OF 1967.—Section 15 of the Age Discrimination in 

22 Employment Act of 1967 (29 U.S.C. 633a) is 

23 amended— 

24 (A) in subsection (a)— 


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•S 3219 IS

1 (i) by striking ‘‘States) in’’ and insert2 ing ‘‘States) shall be made free from any 

3 discrimination based on age, in—’’; 

4 (ii) by striking ‘‘military depart5 ments’’ and inserting the following: 

6 ‘‘(1) military departments’’; 

7 (iii) by striking ‘‘Code, in executive 

8 agencies’’ and inserting the following: 

9 ‘‘Code; 

10 ‘‘(2) executive agencies’’; 

11 (iv) by striking ‘‘funds), in the United 

12 States Postal’’ and inserting the following: 

13 ‘‘funds); 

14 ‘‘(3) the United States Postal’’; 

15 (v) by striking ‘‘Commission, in those 

16 units’’ and inserting the following: ‘‘Com17 mission; 

18 ‘‘(4) those units’’; 

19 (vi) by striking ‘‘competitive service, 

20 and in those units’’ and inserting the fol21 lowing: ‘‘competitive service; 

22 ‘‘(5) those units’’; 

23 (vii) by striking ‘‘competitive service, 

24 in the Smithsonian’’ and inserting ‘‘com25 petitive service; 


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•S 3219 IS

1 ‘‘(6) the Smithsonian’’; 

2 (viii) by striking ‘‘Institution, and in 

3 the Government’’ and inserting ‘‘Institu4 tion; 

5 ‘‘(7) the Government’’; 

6 (ix) by striking ‘‘Printing Office, the 

7 General’’ and inserting ‘‘Printing Office; 

8 ‘‘(8) the General’’; 

9 (x) by striking ‘‘Office, and the Li10 brary’’ and inserting ‘‘Office; and 

11 ‘‘(9) the Library’’; and 

12 (xi) by striking ‘‘of Congress’’ and all 

13 that follows and inserting ‘‘of Congress.’’; 

14 (B) in subsection (b), by striking the first, 

15 second, third, fourth, and sixth sentences; 

16 (C) in subsection (c), by striking ‘‘Any per17 son’’ and inserting ‘‘Notwithstanding any other 

18 provision of this Act, any person’’; 

19 (D) by striking subsection (g) and insert20 ing the following: 

21 ‘‘(g) Except as otherwise provided in another sub22 section of this section, section 7, or section 9, the powers, 

23 remedies, and procedures provided in section 717 of the 

24 Civil Rights Act of 1964 (42 U.S.C. 2000e–16) to the 

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1 gress, or any person, alleging a violation of that section 

2 shall be the powers, remedies, and procedures this Act 

3 provides to the Commission, the Attorney General, the Li4 brarian of Congress, or any person, respectively, alleging 

5 an unlawful employment practice in violation of subsection 

6 (a) against an employee or applicant for employment de7 scribed in subsection (a).’’; and 

8 (E) by adding at the end the following: 

9 ‘‘(h) Section 4(g) shall apply to mixed motive claims 

10 (involving practices described in section 4(g)(1)) under 

11 this section.’’. 

12 (f) ADDITIONAL AMENDMENTS TO THE REHABILITA13 TION ACT OF 1973.—Sections 501(f), 503(d), and 504(d) 

14 of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 

15 793(d), and 794(d)), are each amended by adding after 

16 the words ‘‘title I of the Americans with Disabilities Act 

17 of 1990 (42 U.S.C. 12111 et seq.)’’ the following: ‘‘, in18 cluding the standards of causation and methods of proof 

19 applied under section 102(e) of that Act (42 U.S.C. 

20 12112(e)),’’. 

21 (g) OTHER GOVERNMENT EMPLOYEES.— 

22 (1) CONGRESSIONAL ACCOUNTABILITY ACT OF

23 1995.—Section 201 of the Congressional Account24 ability Act of 1995 (2 U.S.C. 1311) is amended— 


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1 (A) in subsection (a)(2), by striking ‘‘sec2 tion 15 of the Age Discrimination in Employ3 ment Act of 1967 (29 U.S.C. 633a)’’ and in4 serting ‘‘sections 4(g) and 15 of the Age Dis5 crimination in Employment Act of 1967 (29 

6 U.S.C. 623(g), 633a)’’; and 

7 (B) in subsection (b)— 

8 (i) in paragraph (2)(A), by striking 

9 ‘‘section 15(c) of the Age Discrimination in 

10 Employment Act of 1967 (29 U.S.C. 

11 633a(c))’’ and inserting ‘‘section 4(d)(2), 

12 paragraphs (1) and (2) of section 7(b), 

13 and section 15(c) of the Age Discrimina14 tion in Employment Act of 1967 (29 

15 U.S.C. 623(d)(2), 626(b), 633a(c))’’; and 

16 (ii) in paragraph (3)(A), by striking 

17 ‘‘section 107(a) of the Americans with Dis18 abilities Act of 1990 (42 U.S.C. 

19 12117(a))’’ and inserting ‘‘subsections (a) 

20 and (c) of section 107, and section 

21 503(c)(2), of the Americans with Disabil22 ities Act of 1990 (42 U.S.C. 12117, 

23 12203)’’. 

24 (2) TITLE 3, UNITED STATES CODE.—Section 

25 411 of title 3, United States Code, is amended— 


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1 (A) in subsection (a)(2), by striking ‘‘sec2 tion 15 of the Age Discrimination in Employ3 ment Act of 1967’’ and inserting ‘‘sections 4(g) 

4 and 15 of the Age Discrimination in Employ5 ment Act of 1967’’; and 

6 (B) in subsection (b)— 

7 (i) in paragraph (2)(A), by striking 

8 ‘‘section 15(c) of the Age Discrimination in 

9 Employment Act of 1967’’ and inserting 

10 ‘‘section 4(d)(2), paragraphs (1) and (2) of 

11 section 7(b), and section 15(c) of the Age 

12 Discrimination in Employment Act of 

13 1967’’; and 

14 (ii) in paragraph (3)(A), by striking 

15 ‘‘section 107(a) of the Americans with Dis16 abilities Act of 1990’’ and inserting ‘‘sub17 sections (a) and (c) of section 107, and 

18 section 503(c)(2), of the Americans with 

19 Disabilities Act of 1990’’. 

20 (3) GOVERNMENT EMPLOYEE RIGHTS ACT OF

21 1991.—Section 302 of the Government Employee 

22 Rights Act of 1991 (42 U.S.C. 2000e–16b) is 

23 amended— 

24 (A) in subsection (a)(2), by striking ‘‘sec25 tion 15 of the Age Discrimination in EmployVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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1 ment Act of 1967 (29 U.S.C. 633a)’’ and in2 serting ‘‘sections 4(g) and 15 of the Age Dis3 crimination in Employment Act of 1967 (29 

4 U.S.C. 623(g), 633a)’’; and 

5 (B) in subsection (b)— 

6 (i) in paragraph (1), by inserting 

7 ‘‘(and, in the case of a violation of sub8 section (a)(3), sections 107(c) and 

9 503(c)(2) of the Americans with Disabil10 ities Act of 1990 (42 U.S.C. 12117(c), 

11 12203(c)(2)))’’ before ‘‘, and’’; and 

12 (ii) in paragraph (2), by striking ‘‘sec13 tion 15(c) of the Age Discrimination in 

14 Employment Act of 1967 (29 U.S.C. 

15 633a(c))’’ and inserting ‘‘section 4(d)(2), 

16 paragraphs (1) and (2) of section 7(b), 

17 and section 15(c) of the Age Discrimina18 tion in Employment Act of 1967 (29 

19 U.S.C. 623(d)(2), 626(b), 633a(c))’’. 

20 (h) APPLICATION.—This section, and the amend21 ments made by this section, shall apply to all claims pend22 ing on or after the date of enactment of this Act. 

23 SEC. 206. SUPERVISOR LIABILITY. 

24 (a) AMENDMENT TO TITLE VII OF THE CIVIL

25 RIGHTS ACT OF 1964.— 


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1 (1) STANDARD FOR EMPLOYER LIABILITY FOR

2 HOSTILE WORK ENVIRONMENT.—Section 703 of the 

3 Civil Rights Act of 1964 (42 U.S.C. 2000e–2), as 

4 amended by 204(c)(1), is further amended by adding 

5 at the end the following: 

6 ‘‘(p) Subject to section 206(j) of the BE HEARD in 

7 the Workplace Act, an employer shall be liable for the acts 

8 of any individual whose harassment of an employee has 

9 created or continued a hostile work environment that con10 stitutes an unlawful employment practice under this sec11 tion if, at the time of the harassment— 

12 ‘‘(1) such individual was authorized by that em13 ployer— 

14 ‘‘(A) to undertake or recommend tangible 

15 employment actions affecting the employee; or 

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

17 activities; or 

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

19 creation or continuation of that hostile work environ20 ment.’’. 

21 (2) STANDARD FOR EMPLOYER LIABILITY FOR

22 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec23 tion 704 of the Civil Rights Act of 1964 (42 U.S.C. 

24 2000e–3), as amended by section 201(a)(3), is fur25 ther amended— 


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•S 3219 IS

1 (A) by redesignating subsection (b) as sub2 section (c); and 

3 (B) by inserting after subsection (a) the 

4 following: 

5 ‘‘(b) Subject to section 206(j) of the BE HEARD in 

6 the Workplace Act, an employer shall be liable for the acts 

7 of any individual whose harassment of an employee has 

8 created or continued a retaliatory hostile work environ9 ment that constitutes an unlawful employment practice as 

10 described under subsection (a) if, at the time of the har11 assment— 

12 ‘‘(1) such individual was authorized by that em13 ployer— 

14 ‘‘(A) to undertake or recommend tangible 

15 employment actions affecting the employee; or 

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

17 activities; or 

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

19 creation or continuation of that retaliatory hostile 

20 work environment.’’. 

21 (3) FEDERAL EMPLOYEES.—Section 717 of the 

22 Civil Rights Act of 1964 (42 U.S.C. 2000e–16), as 

23 amended by section 205(e)(1), is further amended 

24 by adding at the end the following: 


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1 ‘‘(h) The provisions of sections 703(p) and 704(b) 

2 shall apply to hostile work environment claims and retalia3 tory hostile work environment claims, respectively, under 

4 this section.’’. 

5 (b) AMENDMENT TO THE AGE DISCRIMINATION IN

6 EMPLOYMENT ACT OF 1967.— 

7 (1) STANDARD FOR EMPLOYER LIABILITY FOR

8 HOSTILE WORK ENVIRONMENT.—Section 4 of the 

9 Age Discrimination in Employment Act of 1967 (29 

10 U.S.C. 623), as amended by section 204(c)(4), is 

11 further amended by adding at the end the following: 

12 ‘‘(o) Subject to section 206(j) of the BE HEARD in 

13 the Workplace Act, an employer shall be liable for the acts 

14 of any individual whose harassment of an employee has 

15 created or continued a hostile work environment that is 

16 unlawful under this section if, at the time of the harass17 ment— 

18 ‘‘(1) such individual was authorized by that em19 ployer— 

20 ‘‘(A) to undertake or recommend tangible 

21 employment actions affecting the employee; or 

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

23 activities; or 


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

2 creation or continuation of that hostile work environ3 ment.’’. 

4 (2) STANDARD FOR EMPLOYER LIABILITY FOR

5 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec6 tion 4(d)(1) of the Age Discrimination in Employ7 ment Act of 1967 (29 U.S.C. 623(d)(1)), as amend8 ed by section 205(c)(2), is further amended by strik9 ing ‘‘or litigation under this Act.’’ and inserting ‘‘or 

10 litigation under this Act. Subject to section 206(j) of 

11 the BE HEARD in the Workplace Act, an employer 

12 shall be liable for the acts of any individual whose 

13 harassment of an employee has created or continued 

14 a retaliatory hostile work environment that is unlaw15 ful under this subsection if, at the time of the har16 assment— 

17 ‘‘(A) such individual was authorized by 

18 that employer— 

19 ‘‘(i) to undertake or recommend tan20 gible employment actions affecting the em21 ployee; or 

22 ‘‘(ii) to direct the employee’s daily 

23 work activities; or 


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•S 3219 IS

1 ‘‘(B) the negligence of the employer led to 

2 the creation or continuation of that retaliatory 

3 hostile work environment.’’. 

4 (3) FEDERAL EMPLOYEES.—Section 15 of the 

5 Age Discrimination in Employment Act of 1967 (29 

6 U.S.C. 633a), as amended by section 205(e)(3), is 

7 further amended by adding at the end the following: 

8 ‘‘(i) Subsections (d) and (o) of section 4 shall apply 

9 to retaliatory hostile work environment claims and hostile 

10 work environment claims, respectively, under this sec11 tion.’’. 

12 (c) AMENDMENT TO THE AMERICANS WITH DISABIL13 ITIES ACT OF 1990.— 

14 (1) STANDARD FOR EMPLOYER LIABILITY FOR

15 HOSTILE WORK ENVIRONMENT.—Section 102 of the 

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

17 12112), as amended by section 205(b)(2), is further 

18 amended by adding at the end the following: 

19 ‘‘(f) Subject to section 206(j) of the BE HEARD in 

20 the Workplace Act, an employer shall be liable for the acts 

21 of any individual whose harassment of an employee has 

22 created or continued a hostile work environment that con23 stitutes discrimination against a qualified individual on 

24 the basis of disability under this section if, at the time 

25 of the harassment— 


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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 qualified indi5 vidual; or 

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

7 daily work activities; or 

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

9 creation or continuation of that hostile work environ10 ment.’’. 

11 (2) STANDARD FOR EMPLOYER LIABILITY FOR

12 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec13 tion 503 of the Americans with Disabilities Act of 

14 1990 (42 U.S.C. 12203) is amended— 

15 (A) by redesignating subsection (c) as sub16 section (d); 

17 (B) by inserting after subsection (b) the 

18 following: 

19 ‘‘(c) Subject to section 206(j) of the BE HEARD in 

20 the Workplace Act, an employer shall be liable for the acts 

21 of any individual whose harassment of an employee has 

22 created or continued a retaliatory hostile work environ23 ment that constitutes retaliatory discrimination, as de24 scribed in subsection (a), or the carrying out of any unlawVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00082 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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1 ful acts described in subsection (b), if, at the time of the 

2 harassment— 

3 ‘‘(1) such individual was authorized by the em4 ployer— 

5 ‘‘(A) to undertake or recommend tangible 

6 employment actions affecting the employee; or 

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

8 activities; or 

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

10 creation or continuation of that retaliatory hostile 

11 work environment.’’; and 

12 (C) in subsection (d), as redesignated by 

13 subparagraph (A), by striking ‘‘subsections (a) 

14 and (b)’’ and inserting ‘‘subsections (a), (b), 

15 and (c)’’. 

16 (d) AMENDMENT TO THE REHABILITATION ACT OF

17 1973.— 

18 (1) STANDARD FOR EMPLOYER LIABILITY FOR

19 HOSTILE WORK ENVIRONMENT AND RETALIATORY

20 HOSTILE WORK ENVIRONMENT.—Section 501 of the 

21 Rehabilitation Act of 1973 (29 U.S.C. 791) is 

22 amended by adding at the end the following: 

23 ‘‘(h) Subject to section 206(j) of the BE HEARD in 

24 the Workplace Act, each department, agency, and instru25 mentality in the executive branch of Government and the 


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1 Smithsonian Institution shall be liable for the acts of any 

2 individual within such department, agency, instrumen3 tality, or the Smithsonian Institution whose harassment 

4 of an individual with a disability has created or continued 

5 a hostile work environment, or a retaliatory hostile work 

6 environment, that constitutes nonaffirmative action em7 ployment discrimination under this section if, at the time 

8 of the harassment— 

9 ‘‘(1) such individual was authorized by that de10 partment, agency, instrumentality, or the Smithso11 nian Institution— 

12 ‘‘(A) to undertake or recommend tangible 

13 employment actions affecting the individual 

14 with a disability; or 

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

16 the individual with a disability; or 

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

18 instrumentality, or the Smithsonian Institution led 

19 to the creation or continuation of that hostile work 

20 environment or retaliatory hostile work environ21 ment.’’. 

22 (2) STANDARD FOR EMPLOYER LIABILITY FOR

23 HOSTILE WORK ENVIRONMENT AND RETALIATORY

24 HOSTILE WORK ENVIRONMENT.—Section 504 of the 


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1 Rehabilitation Act of 1973 (29 U.S.C. 794) is 

2 amended by adding at the end the following: 

3 ‘‘(e) Subject to section 206(j) of the BE HEARD in 

4 the Workplace Act, an employer described under sub5 section (b) shall be liable for the acts of any individual 

6 whose harassment of a qualified individual with a dis7 ability has created or continued a hostile work environ8 ment, or a retaliatory hostile work environment, that con9 stitutes employment discrimination under this section if, 

10 at the time of the harassment— 

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

12 employer— 

13 ‘‘(A) to undertake or recommend tangible 

14 employment actions affecting the qualified indi15 vidual with a disability; or 

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

17 the qualified individual with a disability; or 

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

19 creation or continuation of that hostile work environ20 ment or retaliatory hostile work environment.’’. 

21 (3) REMEDIES.—Section 505 of the Rehabilita22 tion Act of 1973 (29 U.S.C. 794a) is amended by 

23 adding at the end of subsection (a) the following: 


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•S 3219 IS

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

2 hostile work environment claims and retaliatory hos3 tile work environment claims under this section.’’. 

4 (e) AMENDMENT TO SECTION 1977 OF THE REVISED

5 STATUTES.—Section 1977 of the Revised Statutes (42 

6 U.S.C. 1981) is amended by adding at the end the fol7 lowing: 

8 ‘‘(d) Subject to section 206(j) of the BE HEARD in 

9 the Workplace Act, a nongovernmental employer shall be 

10 liable for the acts of any individual whose harassment of 

11 an employee has created a hostile work environment or 

12 a retaliatory hostile work environment, constituting an un13 lawful employment practice, if, at the time of the harass14 ment— 

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 hostile work environ23 ment or retaliatory hostile work environment.’’. 

24 (f) AMENDMENT TO THE GENETIC INFORMATION

25 NONDISCRIMINATION ACT OF 2008.— 


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1 (1) STANDARD FOR EMPLOYER LIABILITY FOR

2 HOSTILE WORK ENVIRONMENT.—Section 202 of the 

3 Genetic Information Nondiscrimination Act of 2008 

4 (42 U.S.C. 2000ff–1), as amended by sections 

5 204(c)(5) and 205(b)(4), is further amended by add6 ing at the end the following: 

7 ‘‘(f) Subject to section 206(j) of the BE HEARD in 

8 the Workplace Act, an employer shall be liable for the acts 

9 of any individual whose harassment of an employee has 

10 created or continued a hostile work environment that con11 stitutes an unlawful employment practice under this sec12 tion if, at the time of the harassment— 

13 ‘‘(1) such individual was authorized by the 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 (2) STANDARD FOR EMPLOYER LIABILITY FOR

23 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec24 tion 207(f)(1) of the Genetic Information Non25 discrimination Act (42 U.S.C. 2000ff–6(f)(1)), as 


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1 amended by section 205(c)(2), is further amended 

2 by striking ‘‘violations of this subsection.’’ and in3 serting ‘‘violations of this subsection. Subject to sec4 tion 206(j) of the BE HEARD in the Workplace 

5 Act, an employer shall be liable for the acts of any 

6 individual whose harassment of an employee has cre7 ated or continued a retaliatory hostile work environ8 ment that constitutes discrimination under this sub9 section if, at the time of the harassment— 

10 ‘‘(A) such individual was authorized by the 

11 employer— 

12 ‘‘(i) to undertake or recommend tan13 gible employment actions affecting the em14 ployee; or 

15 ‘‘(ii) to direct the employee’s daily 

16 work activities; or 

17 ‘‘(B) the negligence of the employer led to 

18 the creation or continuation of that retaliatory 

19 hostile work environment.’’. 

20 (g) AMENDMENT TO THE GOVERNMENT EMPLOYEE

21 RIGHTS ACT OF 1991.—Section 302 of the Government 

22 Employee Rights Act of 1991 (42 U.S.C. 2000e–16b) is 

23 amended by adding at the end the following: 

24 ‘‘(c) Subject to section 206(j) of the BE HEARD in 

25 the Workplace Act, an employer of an individual described 


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1 under section 304(a) shall be liable for the acts of any 

2 individual whose harassment of a State employee de3 scribed in section 304 has created or continued a hostile 

4 work environment or a retaliatory hostile work environ5 ment constituting discrimination under this section, if at 

6 the time of the harassment— 

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

8 employer— 

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 hostile work environ15 ment or retaliatory hostile work environment.’’. 

16 (h) AMENDMENT TO TITLE 3, UNITED STATES

17 CODE.—Section 411 of title 3, United States Code, is 

18 amended— 

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

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

21 (2) by inserting after subsection (b) the fol22 lowing: 

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

24 section 206(j) of the BE HEARD in the Workplace Act, 

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1 vidual whose harassment of a covered employee has cre2 ated or continued a hostile work environment or a retalia3 tory hostile work environment constituting discrimination 

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

5 ‘‘(1) such individual was authorized by the em6 ploying office— 

7 ‘‘(A) to undertake or recommend tangible 

8 employment actions affecting the covered em9 ployee; or 

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

11 work activities; or 

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

13 to the creation or continuation of that hostile work 

14 environment or retaliatory hostile work environ15 ment.’’; and 

16 (3) in subsection (f), as redesignated by para17 graph (1), by striking ‘‘subsections (a) through (c)’’ 

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

19 (i) AMENDMENT TO THE CONGRESSIONAL ACCOUNT20 ABILITY ACT OF 1995.—Section 201 of the Congressional 

21 Accountability Act of 1995 (2 U.S.C. 1311) is amended— 

22 (1) by striking subsection (e); and 

23 (2) by adding at the end the following: 

24 ‘‘(e) OUTSIDE INDIVIDUALS.—Subject to section 

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1 ploying office shall be liable for the acts of any individual 

2 whose harassment of a covered employee has created or 

3 continued a hostile work environment or a retaliatory hos4 tile work environment that constitutes discrimination 

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

6 ‘‘(1) such individual was authorized by the em7 ploying office— 

8 ‘‘(A) to undertake or recommend tangible 

9 employment actions affecting the covered em10 ployee; or 

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

12 work activities; or 

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

14 to the creation or continuation of that hostile work 

15 environment or retaliatory hostile work environ16 ment.’’. 

17 (j) RULE OF CONSTRUCTION.—Nothing in this sec18 tion shall be construed to limit the availability of, or access 

19 to, defenses available under the law. 

20 (k) APPLICATION.—This section, and the amend21 ments made by this section, shall apply to all claims pend22 ing on or after the date of enactment of this Act. 

23 SEC. 207. EXTENDING THE STATUTES OF LIMITATIONS. 

24 (a) CIVIL RIGHTS ACT OF 1964; AMERICANS WITH

25 DISABILITIES ACT OF 1990; GENETIC INFORMATION


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•S 3219 IS

1 NONDISCRIMINATION ACT OF 2008.—Section 706 of the 

2 Civil Rights Act of 1964 (42 U.S.C. 2000e–5) is amend3 ed— 

4 (1) in subsection (e)— 

5 (A) in paragraph (1)— 

6 (i) by striking ‘‘one hundred and 

7 eighty days after the alleged unlawful em8 ployment practice occurred’’ and inserting 

9 ‘‘4 years after the alleged unlawful employ10 ment practice occurred.’’; and 

11 (ii) by striking ‘‘three hundred days 

12 after the alleged unlawful employment 

13 practice occurred’’ and inserting ‘‘4 years 

14 and 120 days after the alleged unlawful 

15 employment practice occurred.’’; and 

16 (B) in paragraph (3)(B), by striking ‘‘two 

17 years preceding the filing of the charge’’ and all 

18 that follows and inserting ‘‘4 years and 120 

19 days preceding the filing of the charge.’’; and 

20 (2) in subsection (g)(1), by striking ‘‘two years 

21 prior to the filing of a charge’’ and inserting ‘‘4 

22 years and 120 days preceding the filing of the 

23 charge’’. 


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•S 3219 IS

1 (b) AGE DISCRIMINATION IN EMPLOYMENT ACT OF

2 1967.—Section 7(d) of the Age Discrimination in Employ3 ment Act of 1967 (29 U.S.C. 626(d)) is amended— 

4 (1) in the second sentence, by redesignating 

5 paragraphs (1) and (2) as subparagraphs (A) and 

6 (B), respectively; 

7 (2) by striking ‘‘(d)’’ and all that follows 

8 through ‘‘No’’ and inserting ‘‘(d)(1) No’’; and 

9 (3) in paragraph (1), as designated by para10 graph (2) of this subsection— 

11 (A) by striking ‘‘Secretary. Such’’ and in12 serting ‘‘Secretary, and such’’; 

13 (B) in subparagraph (A), by striking ‘‘180 

14 days after the alleged unlawful practice oc15 curred’’ and inserting ‘‘4 years after the alleged 

16 unlawful practice occurred’’; and 

17 (C) in subparagraph (B), by striking ‘‘300 

18 days after the alleged unlawful practice oc19 curred’’ and inserting ‘‘4 years and 120 days 

20 after the alleged unlawful practice occurred’’. 

21 SEC. 208. EXTENDING THE TIME LIMITATIONS ON FEDERAL 

22 EMPLOYEES FILING A COMPLAINT. 

23 (a) IN GENERAL.—The Equal Employment Oppor24 tunity Commission (referred to in this section as ‘‘the 

25 Commission’’) shall ensure that a covered Federal emVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00093 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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•S 3219 IS

1 ployee shall not be required to take any action necessary 

2 to bring a complaint to the department, agency, unit, or 

3 instrumentality involved prior to 4 years from the date of 

4 the matter alleged to be discriminatory or, in the case of 

5 personnel action, 4 years from the effective date of the 

6 personnel action. 

7 (b) COVERED EMPLOYEES AND COMPLAINTS.—In 

8 this section, the term ‘‘covered Federal employee’’ 

9 means— 

10 (1) an employee or applicant to whom section 

11 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 

12 2000e–16(a)) applies, in the case of a complaint 

13 brought under section 717 of that Act (42 U.S.C. 

14 2000e–16); 

15 (2) an employee or applicant to whom section 

16 15(a) of the Age Discrimination in Employment Act 

17 of 1967 (29 U.S.C. 633a(a)) applies, in the case of 

18 a complaint brought under section 15 of that Act 

19 (29 U.S.C. 633a); 

20 (3) an employee or applicant to whom section 

21 501 of the Rehabilitation Act of 1973 (29 U.S.C. 

22 791) applies, in the case of a complaint brought to 

23 enforce that section under section 505 of that Act 

24 (29 U.S.C. 794a); and 


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•S 3219 IS

1 (4) an employee or applicant described in sec2 tion 201(2)(A)(v) of the Genetic Information Non3 discrimination Act of 2008 (42 U.S.C. 

4 2000ff(2)(A)(v)), in the case of a complaint brought 

5 to enforce title II of that Act (42 U.S.C. 2000ff et 

6 seq.) under section 207(e) of that Act (42 U.S.C. 

7 2000ff–6(e)). 

8 TITLE III—BROADENING PRO9 TECTIONS AND ENSURING 

10 TRANSPARENCY 

11 SEC. 301. INDEPENDENT CONTRACTORS, INTERNS, FEL12 LOWS, VOLUNTEERS, AND TRAINEES. 

13 (a) COVERED EMPLOYER OR ENTITY.—All protec14 tions afforded to an employee or individual under a provi15 sion that consists of title VII of the Civil Rights Act of 

16 1964 (42 U.S.C. 2000e et seq.), the Government Em17 ployee Rights Act of 1991 (42 U.S.C. 2000e–16a et seq.), 

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

19 1301 et seq.), subchapter II of chapter 5 of title 3, United 

20 States Code, the Age Discrimination in Employment Act 

21 of 1967 (29 U.S.C. 621 et seq.), title I and section 503 

22 (for violations with respect to that title) of the Americans 

23 with Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 

24 12203), sections 501 and 505 of the Rehabilitation Act 

25 of 1973 (29 U.S.C. 791, 794a), section 6(d) of the Fair 


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•S 3219 IS

1 Labor Standards Act of 1938 (commonly known as the 

2 ‘‘Equal Pay Act of 1963’’) (29 U.S.C. 206(d)), title II 

3 of the Genetic Information Nondiscrimination Act of 2008 

4 (42 U.S.C. 2000ff et seq.), and section 4311 of title 38, 

5 United States Code, shall be afforded, in the same manner 

6 and to the same extent, to— 

7 (1) an individual who is engaged by an em8 ployer or entity covered by that provision (referred 

9 to in this subsection as a ‘‘covered employer or enti10 ty’’) as an independent contractor (regardless of 

11 business structure, including organization as a legal 

12 or commercial entity) or as an intern, fellow, volun13 teer, or trainee, whether or not the individual re14 ceives compensation, academic credit, or other remu15 neration from the covered employer or entity; or 

16 (2) an individual who applies or seeks to be17 come such an independent contractor (regardless of 

18 business structure, including organization as a legal 

19 or commercial entity), intern, fellow, volunteer, or 

20 trainee, for the covered employer or entity. 

21 (b) COVERED ESTABLISHMENTS.— 

22 (1) DEFINITION.—In this subsection, the term 

23 ‘‘covered establishment’’ means an individual or enti24 ty that— 


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•S 3219 IS

1 (A) is not acting as an employer or entity 

2 covered by a provision specified in subsection 

3 (a); and 

4 (B) engages the services (including solic5 iting such services) of an independent con6 tractor (regardless of business structure, includ7 ing organization as a legal or commercial enti8 ty), intern, fellow, volunteer, or trainee by 

9 means of an instrument of transportation or 

10 communication in interstate commerce, or 

11 through an arrangement that involves the use 

12 of such an instrument to carry out or be con13 veyed to carry out those services. 

14 (2) PROTECTIONS.—All protections afforded to 

15 an employee or individual under a provision that 

16 consists of title VII of the Civil Rights Act of 1964, 

17 the Age Discrimination in Employment Act of 1967, 

18 title I and section 503 (for violations with respect to 

19 that title) of the Americans with Disabilities Act of 

20 1990, section 6(d) of the Fair Labor Standards Act 

21 of 1938, title II of the Genetic Information Non22 discrimination Act of 2008, and section 4311 of title 

23 38, United States Code, shall be afforded, in the 

24 same manner and to the same extent that the provi25 sion covers an individual described in section 701(f) 


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•S 3219 IS

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

2 2000e(f)), to— 

3 (A) an individual who is engaged by a cov4 ered establishment as an independent con5 tractor (regardless of business structure, includ6 ing organization as a legal or commercial enti7 ty) or as an intern, fellow, volunteer, or trainee, 

8 whether or not the individual receives com9 pensation, academic credit, or other remunera10 tion from the covered establishment; or 

11 (B) an individual who applies or seeks to 

12 become such an independent contractor (regard13 less of business structure, including organiza14 tion as a legal or commercial entity), intern, fel15 low, volunteer, or trainee, for the covered estab16 lishment. 

17 (c) DOMESTIC SERVICE.—For purposes of the provi18 sions listed in subsection (a) and the provisions of this 

19 Act, an individual or entity who engages the services (by 

20 means of an instrument of transportation or communica21 tion in interstate commerce, or through an arrangement 

22 that involves the use of such an instrument to carry out 

23 or be conveyed to carry out those services) of a person 

24 in domestic service in a household, as an employee, or as 

25 an independent contractor, intern, fellow, volunteer, or 


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•S 3219 IS

1 trainee, referred to in subsection (a) or (b) shall be consid2 ered to be engaged in interstate commerce. 

3 (d) RULE OF CONSTRUCTION.—Nothing in this sec4 tion shall be construed to limit the individuals protected 

5 under any provision described in subsection (a). 

6 (e) INTERSTATE COMMERCE.—In this section, the 

7 term ‘‘interstate commerce’’ means Commerce (as defined 

8 in section 3 of the Fair Labor Standards Act of 1938 (29 

9 U.S.C. 203)) among the several States. 

10 SEC. 302. NONDISCLOSURE AGREEMENTS. 

11 (a) DEFINITIONS.—In this section: 

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

13 means the Equal Employment Opportunity Commis14 sion. 

15 (2) COVERED ESTABLISHMENT.—The term 

16 ‘‘covered establishment’’ has the meaning given the 

17 term in section 301. 

18 (3) COVERED INDIVIDUAL.—The term ‘‘covered 

19 individual’’ means— 

20 (A) in the case of an individual required to 

21 be afforded protections under section 301(a)— 

22 (i) an individual required to be af23 forded those protections by an employer 

24 described in paragraph (5)(A); 


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•S 3219 IS

1 (ii) an individual required to be af2 forded those protections by an employer 

3 described in paragraph (5)(B); 

4 (iii) an individual required to be af5 forded those protections by an employer 

6 described in paragraph (5)(C); 

7 (iv) an individual required to be af8 forded those protections by an employer 

9 described in paragraph (5)(D); or 

10 (v) an individual required to be af11 forded those protections by an employer 

12 described in paragraph (5)(E); and 

13 (B) in the case of an individual required to 

14 be afforded protections under section 301(b) by 

15 a covered establishment, that individual. 

16 (4) EMPLOYEE.—The term ‘‘employee’’ 

17 means— 

18 (A) an employee (including an applicant), 

19 as defined in section 701(f) of the Civil Rights 

20 Act of 1964 (42 U.S.C. 2000e(f)); 

21 (B) a State employee (including an appli22 cant) described in section 304(a) of the Govern23 ment Employee Rights Act of 1991 (42 U.S.C. 

24 2000e–16c(a)); 


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•S 3219 IS

1 (C) a covered employee (including an appli2 cant), as defined in section 101 of the Congres3 sional Accountability Act of 1995 (2 U.S.C. 

4 1301), including an individual treated as a cov5 ered employee under that section; 

6 (D) a covered employee (including an ap7 plicant), as defined in section 411(c) of title 3, 

8 United States Code; or 

9 (E) an employee or applicant to which sec10 tion 717(a) of the Civil Rights Act of 1964 (42 

11 U.S.C. 2000e–16(a)) applies. 

12 (5) EMPLOYER.—The term ‘‘employer’’ 

13 means— 

14 (A) an employer (as defined in section 

15 701(b) of the Civil Rights Act of 1964 (42 

16 U.S.C. 2000e(b))); 

17 (B) an entity employing a State employee 

18 described in section 304(a) of the Government 

19 Employee Rights Act of 1991; 

20 (C) an employing office, as defined in sec21 tion 101(a) of the Congressional Accountability 

22 Act of 1995 (2 U.S.C. 1301(a)); 

23 (D) an employing office, as defined in sec24 tion 411(c) of title 3, United States Code; or 


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•S 3219 IS

1 (E) an entity to which section 717(a) of 

2 the Civil Rights Act of 1964 applies. 

3 (6) NONDISCLOSURE CLAUSE.—The term ‘‘non4 disclosure clause’’ means a provision in a contract or 

5 agreement establishing that each party to the con6 tract or agreement agrees not to disclose informa7 tion covered by the terms and conditions of the con8 tract or agreement. 

9 (7) NONDISPARAGEMENT CLAUSE.—The term 

10 ‘‘nondisparagement clause’’ means a provision in a 

11 contract or agreement requiring one or more parties 

12 to the contract or agreement not to make negative 

13 statements about another such party. 

14 (8) WORKER.—The term ‘‘worker’’ means an 

15 employee or a covered individual. 

16 (b) UNLAWFUL PRACTICES.— 

17 (1) NONDISPARAGEMENT AND NONDISCLOSURE

18 CLAUSES.—Subject to paragraph (3), it shall be an 

19 unlawful practice for an employer to enter into a 

20 contract or agreement with a worker, or for a cov21 ered establishment to enter into a contract or agree22 ment with a covered individual, as a condition of em23 ployment or contracting, promotion, compensation, 

24 benefits, or change in employment status or contrac25 tual relationship, or as a term, condition, or privilege 


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•S 3219 IS

1 of employment or contracting, if that contract or 

2 agreement contains a nondisparagement clause or 

3 nondisclosure clause that covers prohibited discrimi4 nation or harassment in employment or contracting, 

5 or retaliation for reporting, resisting, opposing, or 

6 assisting in the investigation of such discrimination 

7 or harassment. 

8 (2) PROHIBITION ON ENFORCEMENT.—Subject 

9 to paragraph (3) but notwithstanding any other pro10 vision of law, it shall be an unlawful practice for an 

11 employer or covered establishment to enforce or at12 tempt to enforce a nondisparagement clause or non13 disclosure clause that covers prohibited discrimina14 tion or harassment in employment or contracting, or 

15 retaliation for reporting, resisting, opposing, or as16 sisting in the investigation of such discrimination or 

17 harassment. An employer or covered establishment 

18 that enforces or attempts to enforce such a non19 disparagement clause or such a nondisclosure clause 

20 against a worker shall be liable for the reasonable 

21 attorney’s fees and costs of the worker. 

22 (3) SETTLEMENT OR SEPARATION AGREE23 MENTS.— 

24 (A) IN GENERAL.—The provisions of para25 graphs (1) and (2) do not apply to a nondisparVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00103 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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•S 3219 IS

1 agement clause or nondisclosure clause con2 tained in a settlement agreement or separation 

3 agreement that resolves legal claims or disputes 

4 if— 

5 (i) such legal claims accrued or such 

6 disputes arose before the settlement agree7 ment or separation agreement was exe8 cuted; 

9 (ii) the clause involved is mutually 

10 agreed upon by and mutually benefits 

11 both— 

12 (I) the employer or covered es13 tablishment, as the case may be; and 

14 (II) the worker; 

15 (iii) the worker’s agreement to such 

16 clause is knowing and voluntary, as de17 scribed in subparagraph (C); and 

18 (iv) the settlement agreement or sepa19 ration agreement expressly states that the 

20 agreement involved does not prohibit, pre21 vent, or otherwise restrict a worker from— 

22 (I) filing a complaint with the 

23 Commission, any other Federal, State, 

24 or local agency with the authority to 

25 enforce laws (including regulations) 


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•S 3219 IS

1 that prohibit discrimination or harass2 ment in employment or contracting, 

3 as the case may be, or law enforce4 ment; 

5 (II) testifying at, assisting, or 

6 participating in an investigation or 

7 proceeding conducted by the Commis8 sion, any other Federal, State, or local 

9 agency with the authority to enforce 

10 laws (including regulations) that pro11 hibit discrimination or harassment in 

12 employment or contracting, as the 

13 case may be, or law enforcement; or 

14 (III) testifying in a hearing or 

15 trial or complying with a request for 

16 discovery in relation to civil litigation. 

17 (B) PROHIBITION ON SOLE BENEFIT.—For 

18 purposes of this paragraph, it shall be an un19 lawful practice for an employer or covered es20 tablishment to unilaterally include a nondispar21 agement clause or nondisclosure clause that 

22 solely benefits the employer or covered estab23 lishment in a separation or settlement agree24 ment. 


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•S 3219 IS

1 (C) KNOWING AND VOLUNTARY AGREE2 MENT.—For purposes of this paragraph, agree3 ment to a nondisparagement clause or non4 disclosure clause may not be considered know5 ing and voluntary unless at a minimum— 

6 (i) the nondisparagement clause or 

7 nondisclosure clause is written in a manner 

8 designed to ensure that the worker under9 stands the content of the clause involved; 

10 (ii) the nondisparagement clause or 

11 nondisclosure clause is included only in ex12 change for consideration of value provided 

13 to the worker, in addition to anything of 

14 value to which the worker is already enti15 tled; 

16 (iii) the nondisparagement clause or 

17 nondisclosure clause does not apply to any 

18 rights or claims that arise after the date 

19 the settlement or separation agreement is 

20 executed; 

21 (iv) the worker is advised in writing to 

22 consult with an attorney prior to agreeing 

23 to such an agreement that includes a non24 disparagement clause or nondisclosure 

25 clause; 


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•S 3219 IS

1 (v) the worker is given a period of at 

2 least 21 days to consider any proposal for 

3 a settlement or separation agreement that 

4 includes a nondisparagement clause or 

5 nondisclosure clause; and 

6 (vi) the settlement or separation 

7 agreement provides that for a period of at 

8 least 7 days following the execution of such 

9 agreement the worker may revoke the 

10 agreement, and the agreement shall not be11 come effective or enforceable until the rev12 ocation period has expired. 

13 (D) BURDEN OF PROOF.—In any dispute 

14 that may arise over whether any of the require15 ments of subparagraph (A) have been met, the 

16 party asserting the validity of an agreement 

17 shall have the burden of proving that the re18 quirements of subparagraph (A) have been met. 

19 (E) PARTICIPATION IN INVESTIGATIONS OR

20 PROCEEDINGS.—No nondisparagement clause 

21 or nondisclosure clause may affect the ability of 

22 a worker to testify at, assist, or participate in 

23 an investigation or proceeding conducted by the 

24 Commission, any Federal, State, or local agency 

25 with the authority to enforce laws (including 


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•S 3219 IS

1 regulations) that prohibit discrimination in em2 ployment or contracting, as the case may be, or 

3 a law enforcement agency. 

4 (F) PROHIBITION ON DAMAGES.—Under 

5 no circumstances shall a worker be required to 

6 pay damages for breach of a nondisparagement 

7 clause or nondisclosure clause permitted by this 

8 paragraph in excess of an amount equal to the 

9 consideration of value provided to the worker in 

10 exchange for the workers’ agreement to the 

11 nondisparagement clause or nondisclosure 

12 clause. 

13 (c) ENFORCEMENT AGAINST EMPLOYERS.— 

14 (1) ENFORCEMENT POWERS.—With respect to 

15 the administration and enforcement of this section 

16 in the case of a claim alleged by a worker against 

17 an employer for a violation of this section— 

18 (A) the Commission shall have the same 

19 powers as the Commission has to administer 

20 and enforce— 

21 (i) title VII of the Civil Rights Act of 

22 1964 (42 U.S.C. 2000e et seq.); or 

23 (ii) sections 302 and 304 of the Gov24 ernment Employee Rights Act of 1991 (42 

25 U.S.C. 2000e–16b and 2000e–16c), 


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•S 3219 IS

1 in the case of a claim alleged by an employee 

2 of the employer for a violation of such title, or 

3 of section 302(a)(1) of the Government Em4 ployee Rights Act of 1991 (42 U.S.C. 2000e– 

5 16b(a)(1)), respectively; 

6 (B) the Librarian of Congress shall have 

7 the same powers as the Librarian of Congress 

8 has to administer and enforce title VII of the 

9 Civil Rights Act of 1964 (42 U.S.C. 2000e et 

10 seq.) in the case of a claim alleged by an em11 ployee of the employer for a violation of such 

12 title; 

13 (C) the Board (as defined in section 

14 101(a) of the Congressional Accountability Act 

15 of 1995 (2 U.S.C. 1301(a))) shall have the 

16 same powers as the Board has to administer 

17 and enforce the Congressional Accountability 

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

19 of a claim alleged by an employee of the em20 ployer for a violation of section 201(a)(1) of 

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

22 (D) the Attorney General shall have the 

23 same powers as the Attorney General has to ad24 minister and enforce— 


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•S 3219 IS

1 (i) title VII of the Civil Rights Act of 

2 1964 (42 U.S.C. 2000e et seq.); or 

3 (ii) sections 302 and 304 of the Gov4 ernment Employee Rights Act of 1991 (42 

5 U.S.C. 2000e–16b and 2000e–16c), 

6 in the case of a claim alleged by an employee 

7 of the employer for a violation of such title, or 

8 of section 302(a)(1) of the Government Em9 ployee Rights Act of 1991 (42 U.S.C. 2000e– 

10 16b(a)(1)), respectively; 

11 (E) the President, the Commission, and 

12 the Merit Systems Protection Board shall have 

13 the same powers as the President, the Commis14 sion, and the Board, respectively, have to ad15 minister and enforce chapter 5 of title 3, 

16 United States Code, in the case of a claim al17 leged by an employee of the employer for a vio18 lation of section 411 of such title; and 

19 (F) a court of the United States shall have 

20 the same jurisdiction and powers as the court 

21 has to enforce— 

22 (i) title VII of the Civil Rights Act of 

23 1964 (42 U.S.C. 2000e et seq.) in the case 

24 of a claim alleged by an employee of the 

25 employer for a violation of such title; 


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•S 3219 IS

1 (ii) sections 302 and 304 of the Gov2 ernment Employee Rights Act of 1991 (42 

3 U.S.C. 2000e–16b and 2000e–16c) in the 

4 case of a claim alleged by an employee of 

5 the employer for a violation of section 

6 302(a)(1) of such Act (42 U.S.C. 2000e– 

7 16b(a)(1)); 

8 (iii) the Congressional Accountability 

9 Act of 1995 (2 U.S.C. 1301 et seq.) in the 

10 case of a claim alleged by an employee of 

11 the employer for a violation of section 

12 201(a)(1) of such Act (2 U.S.C. 

13 1311(a)(1)); and 

14 (iv) chapter 5 of title 3, United States 

15 Code, in the case of a claim alleged by an 

16 employee of the employer for a violation of 

17 section 411 of such title. 

18 (2) PROCEDURES AND REMEDIES.—The proce19 dures and remedies applicable to a claim alleged by 

20 a worker against the employer for a violation of this 

21 section are— 

22 (A) the procedures and remedies applicable 

23 for a violation of title VII of the Civil Rights 

24 Act of 1964 (42 U.S.C. 2000e et seq.) in the 


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•S 3219 IS

1 case of a claim alleged by an employee of the 

2 employer for a violation of such title; 

3 (B) the procedures and remedies applicable 

4 for a violation of section 302(a)(1) of the Gov5 ernment Employee Rights Act of 1991 (42 

6 U.S.C. 2000e–16b(a)(1)) in the case of a claim 

7 alleged by an employee of the employer for a 

8 violation of such section; 

9 (C) the procedures and remedies applicable 

10 for a violation of section 201(a)(1) of the Con11 gressional Accountability Act of 1995 (2 U.S.C. 

12 1311(a)(1)) in the case of a claim alleged by an 

13 employee of the employer for a violation of such 

14 section; and 

15 (D) the procedures and remedies applicable 

16 for a violation of section 411 of title 3, United 

17 States Code, in the case of a claim alleged by 

18 an employee of the employer for a violation of 

19 such section. 

20 (3) OTHER APPLICABLE PROVISIONS.—With re21 spect to a claim alleged by an employee described in 

22 subsection (a)(4)(C) or a covered individual de23 scribed in subsection (a)(3)(A)(iii) for a violation of 

24 this section, title III of the Congressional Account25 ability Act of 1995 (2 U.S.C. 1381 et seq.) shall 


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•S 3219 IS

1 apply in the same manner as such title applies with 

2 respect to a claim alleged by such an employee for 

3 a violation of section 201(a)(1) of such Act (2 

4 U.S.C. 1311(a)(1)). 

5 (d) ENFORCEMENT AGAINST COVERED ESTABLISH6 MENTS.— 

7 (1) ENFORCEMENT POWERS.—With respect to 

8 the administration and enforcement of this section 

9 in the case of a claim alleged by a covered individual 

10 against a covered establishment for a violation of 

11 this section— 

12 (A) the Commission shall have the same 

13 powers as the Commission has to administer 

14 and enforce title VII of the Civil Rights Act of 

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

16 (B) the Attorney General shall have the 

17 same powers as the Attorney General has to ad18 minister and enforce title VII of the Civil 

19 Rights Act of 1964; and 

20 (C) a court of the United States shall have 

21 the same jurisdiction and powers as the court 

22 has to enforce title VII of the Civil Rights Act 

23 of 1964, 


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•S 3219 IS

1 in the case of a claim alleged by an employee de2 scribed in subsection (a)(4)(A) for a violation of 

3 such title. 

4 (2) PROCEDURES AND REMEDIES.—The proce5 dures and remedies applicable to a claim alleged by 

6 a covered individual against the covered establish7 ment for a violation of this section are the proce8 dures and remedies applicable for a violation of title 

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

10 2000e et seq.) in the case of a claim alleged by an 

11 employee described in subsection (a)(4)(A) for a vio12 lation of such title. 

13 (e) RIGHT TO REPORT RESERVED.—Notwith14 standing signing (before, on, or after the effective date of 

15 this Act) any nondisparagement clause or nondisclosure 

16 clause, a worker retains— 

17 (1) any right that person would otherwise have 

18 had to report a concern about harassment, including 

19 sexual harassment, in employment or contracting or 

20 another violation of the law to the Commission, an21 other Federal agency (including an office of the leg22 islative or judicial branch), a State or local fair em23 ployment practices agency or any other State or 

24 local agency, or a law enforcement agency; and 


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1 (2) any right that person would otherwise have 

2 had to bring an action in a court of the United 

3 States. 

4 (f) REGULATIONS.— 

5 (1) IN GENERAL.—Except as provided in para6 graphs (2), (3), and (4), the Commission shall have 

7 authority to issue regulations to carry out this sec8 tion. 

9 (2) LIBRARIAN OF CONGRESS.—The Librarian 

10 of Congress shall have authority to issue regulations 

11 to carry out this section with respect to workers of 

12 the Library of Congress. 

13 (3) BOARD.—The Board referred to in sub14 section (c)(1)(C) shall have authority to issue regu15 lations to carry out this section, in accordance with 

16 section 304 of the Congressional Accountability Act 

17 of 1995 (2 U.S.C. 1384), with respect to employees 

18 described in subsection (a)(4)(C) and covered indi19 viduals described in subsection (a)(3)(A)(iii). 

20 (4) PRESIDENT.—The President shall have au21 thority to issue regulations to carry out this section 

22 with respect to employees described in subsection 

23 (a)(4)(D) and covered individuals described in sub24 section (a)(3)(A)(iv). 

25 (g) STATE AND FEDERAL IMMUNITY.— 


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1 (1) ABROGATION OF STATE IMMUNITY.—A 

2 State shall not be immune under the 11th Amend3 ment to the Constitution from a suit brought in a 

4 Federal court of competent jurisdiction for a viola5 tion of this section. 

6 (2) WAIVER OF STATE IMMUNITY.— 

7 (A) IN GENERAL.— 

8 (i) WAIVER.—A State’s receipt or use 

9 of Federal financial assistance for any pro10 gram or activity of a State shall constitute 

11 a waiver of sovereign immunity, under the 

12 11th Amendment to the Constitution or 

13 otherwise, to a suit brought by a covered 

14 individual in that program or activity 

15 under this section for a remedy authorized 

16 under paragraph (4). 

17 (ii) DEFINITION.—In this subpara18 graph, the term ‘‘program or activity’’ has 

19 the meaning given the term in section 606 

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

21 2000d–4a). 

22 (B) EFFECTIVE DATE.—With respect to a 

23 particular program or activity, subparagraph 

24 (A) applies to conduct occurring on or after the 

25 day, after the date of enactment of this Act, on 


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•S 3219 IS

1 which a State first receives or uses Federal fi2 nancial assistance for that program or activity. 

3 (3) REMEDIES AGAINST STATE OFFICIALS.—An 

4 official of a State may be sued in the official capac5 ity of the official by a covered individual who has 

6 complied with the applicable procedures of sub7 section (c), for equitable relief that is authorized 

8 under this section. In such a suit the court may 

9 award to the prevailing party those costs authorized 

10 by section 722 of the Revised Statutes (42 U.S.C. 

11 1988). 

12 (4) REMEDIES AGAINST THE UNITED STATES

13 AND THE STATES.—Notwithstanding any other pro14 vision of this Act, in an action or administrative pro15 ceeding against the United States or a State for a 

16 violation of this section, remedies (including rem17 edies at law and in equity, and interest) are avail18 able for the violation to the same extent as the rem19 edies are available for a violation of title VII of the 

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

21 by an employer described in subsection (a)(5)(A), 

22 except that— 

23 (A) punitive damages are not available; 

24 and 


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1 (B) compensatory damages are available to 

2 the extent specified in section 1977A(b) of the 

3 Revised Statutes (42 U.S.C. 1981a(b)). 

4 SEC. 303. PROHIBITION ON MANDATORY ARBITRATION AND 

5 PROTECTION OF CONCERTED LEGAL ACTION. 

6 (a) PROTECTION OF CONCERTED ACTIVITY.— 

7 (1) AGREEMENTS.—Section 8(a) of the Na8 tional Labor Relations Act (29 U.S.C. 158(a)) is 

9 amended— 

10 (A) in paragraph (5), by striking the pe11 riod at the end and inserting ‘‘; and’’; and 

12 (B) by adding at the end the following: 

13 ‘‘(6)(A) to enter into or attempt to enforce any 

14 agreement, express or implied, whereby prior to a 

15 dispute to which the agreement applies, a worker 

16 (for purposes of this paragraph, as defined in sec17 tion 401 of title 9, United States Code) undertakes 

18 or promises not to pursue, bring, join, litigate, or 

19 support any kind of joint, class, or collective claim 

20 arising from or relating to the employment of, or 

21 provision of services by, such worker in any forum 

22 that, but for such agreement, is of competent juris23 diction; 

24 ‘‘(B) to coerce such worker into undertaking or 

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1 port any kind of joint, class, or collective claim aris2 ing from or relating to the employment of, or provi3 sion of services by, such worker; or 

4 ‘‘(C) to retaliate or threaten to retaliate against 

5 a worker for refusing to undertake or promise not 

6 to pursue, bring, join, litigate, or support any kind 

7 of joint, class, or collective claim arising from or re8 lating to the employment of, or provision or services 

9 by, such worker: Provided, That any agreement that 

10 violates this paragraph or results from a violation of 

11 this paragraph shall be to such extent unenforceable 

12 and void: Provided further, That this paragraph shall 

13 not apply to any agreement embodied in or expressly 

14 permitted by a contract between an employer and a 

15 labor organization.’’. 

16 (2) CONFORMING AMENDMENT.—Section 10(b) 

17 of the National Labor Relations Act (29 U.S.C. 

18 160(b)) is amended by striking ‘‘discharge’’ and in19 serting ‘‘discharge, or unless the person aggrieved 

20 thereby is a worker alleging a violation of section 

21 8(a)(6) whose charge involves a postdispute arbitra22 tion agreement that meets the requirements under 

23 section 402(a)(2) of title 9, United States Code, in 

24 which event the six-month period shall be computed 


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1 from the day the waiting period described in sub2 paragraph (C) of such section ends’’. 

3 (b) ARBITRATION OF WORK DISPUTES.— 

4 (1) IN GENERAL.—Title 9 of the United States 

5 Code is amended by adding at the end the following: 

6 ‘‘CHAPTER 4—ARBITRATION OF WORK 

7 DISPUTES 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. Validity and enforceability. 

8 ‘‘§ 401. Definitions 

9 ‘‘In this chapter— 

10 ‘‘(1) the terms ‘commerce’, ‘employee’, and ‘em11 ployer’ have the meanings given the terms in section 

12 3 of the Fair Labor Standards Act of 1938 (29 

13 U.S.C. 203); 

14 ‘‘(2) the term ‘covered entity’ means— 

15 ‘‘(A) an employer; or 

16 ‘‘(B) an individual or entity that is not 

17 acting as an employer and engages the services 

18 of a worker; 

19 ‘‘(3) the term ‘predispute arbitration agree20 ment’ means any agreement to arbitrate a dispute 

21 that had not yet arisen at the time of the making 

22 of the agreement; 

23 ‘‘(4) the term ‘postdispute arbitration agree24 ment’ means any agreement to arbitrate a dispute 


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1 that arose before the time of the making of the 

2 agreement; 

3 ‘‘(5) the term ‘worker’ means— 

4 ‘‘(A) an employee; or 

5 ‘‘(B) an individual who is engaged by a 

6 covered entity to perform services or work as an 

7 independent contractor (regardless of the label 

8 or classification assigned or used by the covered 

9 entity); and 

10 ‘‘(6) the term ‘work dispute’— 

11 ‘‘(A) means a dispute between one or more 

12 workers (or their authorized representatives) 

13 and a covered entity arising out of or related to 

14 the work relationship or prospective work rela15 tionship between the workers and the covered 

16 entity; and 

17 ‘‘(B) includes— 

18 ‘‘(i) a dispute regarding the terms of, 

19 payment for, advertising of, recruitment of, 

20 referring of, arranging for, or discipline or 

21 discharge in connection with work per22 formed in connection with such work rela23 tionship; 

24 ‘‘(ii) a dispute arising under any law 

25 referred to or described in section 62(e) of 


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1 the Internal Revenue Code of 1986, includ2 ing any part of such a law not explicitly 

3 referenced in such section that relates to 

4 protecting individuals on a basis that is 

5 protected under a law referred to or de6 scribed in such section; and 

7 ‘‘(iii) a dispute in which an individual 

8 or individuals seek certification— 

9 ‘‘(I) as a class under rule 23 of 

10 the Federal Rules of Civil Procedure; 

11 ‘‘(II) as a collective action under 

12 section 16(b) of the Fair Labor 

13 Standards Act of 1938 (29 U.S.C. 

14 216(b)); or 

15 ‘‘(III) under a comparable rule or 

16 provision of State law. 

17 ‘‘§ 402. Validity and enforceability 

18 ‘‘(a) IN GENERAL.—Notwithstanding any other chap19 ter of this title— 

20 ‘‘(1) no predispute arbitration agreement shall 

21 be valid or enforceable if it requires arbitration of a 

22 work dispute; 

23 ‘‘(2) no postdispute arbitration agreement that 

24 requires arbitration of a work dispute shall be valid 

25 or enforceable unless— 


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1 ‘‘(A) the agreement was not required by 

2 the covered entity, obtained by coercion or 

3 threat of adverse action, or made a condition of 

4 employment, work, or any employment-related 

5 or work-related privilege or benefit; 

6 ‘‘(B) each worker entering into the agree7 ment was informed in writing using sufficiently 

8 plain language likely to be understood by the 

9 average worker of— 

10 ‘‘(i) the right of the worker under 

11 paragraph (3) to refuse to enter the agree12 ment without retaliation; and 

13 ‘‘(ii) the protections under section 

14 8(a)(6) of the National Labor Relations 

15 Act (29 U.S.C. 158(a)(6)); 

16 ‘‘(C) each worker entering into the agree17 ment entered the agreement after a waiting pe18 riod of not fewer than 45 days, beginning on 

19 the date on which the employee was provided 

20 both the final text of the agreement and the 

21 disclosures required under subparagraph (B); 

22 and 

23 ‘‘(D) each worker entering into the agree24 ment affirmatively consented to the agreement 

25 in writing; and 


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1 ‘‘(3) no covered entity may retaliate or threaten 

2 to retaliate against a worker for refusing to enter 

3 into an agreement that provides for arbitration of a 

4 work dispute. 

5 ‘‘(b) STATUTE OF LIMITATIONS.—During the waiting 

6 period described in subsection (a)(2)(C), the statute of 

7 limitations for any claims that arise from or form the basis 

8 for the applicable work dispute shall be tolled. 

9 ‘‘(c) CIVIL ACTION.—Any person who is injured by 

10 reason of a violation of subsection (a)(3) may bring a civil 

11 action in the appropriate district court of the United 

12 States against the covered entity within 2 years of the vio13 lation, or within 3 years if such violation is willful. Relief 

14 granted in such an action shall include a reasonable attor15 ney’s fee, other reasonable costs associated with maintain16 ing the action, and any appropriate relief authorized by 

17 section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 

18 2000e–5(g)) or by section 1977A(b) of the Revised Stat19 utes (42 U.S.C. 1981a(b)). 

20 ‘‘(d) APPLICABILITY.— 

21 ‘‘(1) IN GENERAL.—This chapter applies to cov22 ered entities and workers engaged in activity affect23 ing commerce to the fullest extent permitted by the 

24 Constitution of the United States, including the 

25 work of persons engaged in domestic service in 


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•S 3219 IS

1 households, as described in section 2(a) of the Fair 

2 Labor Standards Act of 1938 (29 U.S.C. 202(a)). 

3 An issue as to whether this chapter applies to an ar4 bitration agreement shall be determined under Fed5 eral law. The applicability of this chapter to an 

6 agreement to arbitrate and the validity and enforce7 ability of an agreement to which this chapter applies 

8 shall be determined by a court, rather than an arbi9 trator, regardless of whether any contractual provi10 sion purports to delegate such determinations to the 

11 arbitrator and irrespective of whether the party re12 sisting arbitration challenges the arbitration agree13 ment specifically or in conjunction with other terms 

14 of the contract containing such agreement. 

15 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 

16 Nothing in this chapter shall apply to any arbitra17 tion provision in a contract between a covered entity 

18 and a labor organization, except that no such arbi19 tration provision shall have the effect of waiving the 

20 right of a worker to seek judicial enforcement of a 

21 right arising under a provision of the Constitution of 

22 the United States, the constitution of a State, or a 

23 Federal or State statute, or public policy arising 

24 therefrom.’’. 


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•S 3219 IS

1 (2) TECHNICAL AND CONFORMING AMEND2 MENTS.— 

3 (A) IN GENERAL.—Title 9 of the United 

4 States Code is amended— 

5 (i) in section 1, by striking ‘‘of sea6 men,’’ and all that follows through ‘‘inter7 state commerce’’; 

8 (ii) in section 2, by inserting ‘‘or as 

9 otherwise provided in chapter 4’’ before the 

10 period at the end; 

11 (iii) in section 208— 

12 (I) in the section heading, by 

13 striking ‘‘Chapter 1; residual 

14 application’’ and inserting ‘‘Ap15 plication’’; and 

16 (II) by adding at the end the fol17 lowing: ‘‘This chapter applies to the 

18 extent that this chapter is not in con19 flict with chapter 4.’’; and 

20 (iv) in section 307— 

21 (I) in the section heading, by 

22 striking ‘‘Chapter 1; residual 

23 application’’ and inserting ‘‘Ap24 plication’’; and 


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•S 3219 IS

1 (II) by adding at the end the fol2 lowing: ‘‘This chapter applies to the 

3 extent that this chapter is not in con4 flict with chapter 4.’’. 

5 (B) TABLE OF SECTIONS.— 

6 (i) CHAPTER 2.—The table of sections 

7 for chapter 2 of title 9, United States 

8 Code, is amended by striking the item re9 lating to section 208 and inserting the fol10 lowing: 

‘‘208. Application.’’. 

11 (ii) CHAPTER 3.—The table of sec12 tions for chapter 3 of title 9, United States 

13 Code, is amended by striking the item re14 lating to section 307 and inserting the fol15 lowing: 

‘‘307. Application.’’. 

16 (C) TABLE OF CHAPTERS.—The table of 

17 chapters for title 9, United States Code, is 

18 amended by adding at the end the following: 

‘‘4. Arbitration of work disputes .............................................................. 401.’’. 

19 (c) EFFECTIVE DATE.—This section, and the amend20 ments made by this section, shall take effect on the date 

21 of enactment of this Act and shall apply with respect to 

22 any dispute or claim that arises or accrues on or after 


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•S 3219 IS

1 such date, including any dispute or claim to which an 

2 agreement predating such date applies. 

3 SEC. 304. FEDERAL CONTRACTOR COMPLIANCE WITH CIVIL 

4 RIGHTS LAWS. 

5 (a) DEFINITIONS.—In this section: 

6 (1) COVERED CONTRACT.—The term ‘‘covered 

7 contract’’ means a Federal contract for the procure8 ment of property or services, including construction, 

9 valued in excess of $500,000. 

10 (2) COVERED SUBCONTRACT.—The term ‘‘cov11 ered subcontract’’— 

12 (A) means a subcontract for property or 

13 services under a Federal contract that is valued 

14 in excess of $500,000; and 

15 (B) does not include a subcontract for the 

16 procurement of commercially available off-the17 shelf items. 

18 (3) EXECUTIVE AGENCY.—The term ‘‘executive 

19 agency’’ has the meaning given the term in section 

20 133 of title 41, United States Code. 

21 (b) REQUIRED PRE-CONTRACT AWARD ACTIONS.— 

22 (1) DISCLOSURES.—The head of an executive 

23 agency shall ensure that the solicitation for a cov24 ered contract requires the offeror— 


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1 (A) to represent, to the best of the 

2 offeror’s knowledge and belief, whether there 

3 has been any administrative merits determina4 tion, arbitral award or decision, or civil judg5 ment, as defined in guidance issued by the Sec6 retary of Labor, rendered against the offeror in 

7 the preceding 3 years for violations of— 

8 (i) the Fair Labor Standards Act of 

9 1938 (29 U.S.C. 201 et seq.); 

10 (ii) the Occupational Safety and 

11 Health Act of 1970 (29 U.S.C. 651 et 

12 seq.); 

13 (iii) the Migrant and Seasonal Agri14 cultural Worker Protection Act (29 U.S.C. 

15 1801 et seq.); 

16 (iv) the National Labor Relations Act 

17 (29 U.S.C. 151 et seq.); 

18 (v) subchapter IV of chapter 31 of 

19 title 40, United States Code (commonly 

20 known as the ‘‘Davis-Bacon Act’’); 

21 (vi) chapter 67 of title 41, United 

22 States Code (commonly known as the 

23 ‘‘Service Contract Act’’); 


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•S 3219 IS

1 (vii) Executive Order 11246 (42 

2 U.S.C. 2000e note; relating to equal em3 ployment opportunity); 

4 (viii) section 503 of the Rehabilitation 

5 Act of 1973 (29 U.S.C. 793); 

6 (ix) section 4212 of title 38, United 

7 States Code; 

8 (x) the Family and Medical Leave Act 

9 of 1993 (29 U.S.C. 2601 et seq.); 

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

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

12 (xii) the Americans with Disabilities 

13 Act of 1990 (42 U.S.C. 12101 et seq.); 

14 (xiii) the Age Discrimination in Em15 ployment Act of 1967 (29 U.S.C. 621 et 

16 seq.); 

17 (xiv) title II of the Genetic Informa18 tion Nondiscrimination Act of 2008 (42 

19 U.S.C. 2000ff et seq.); 

20 (xv) as applicable, Executive Order 

21 13658 (79 Fed. Reg. 9851; relating to es22 tablishing a minimum wage for contrac23 tors) or Executive Order 14026 (86 Fed. 

24 Reg. 22835; relating to increasing the min25 imum wage for Federal contractors); or 


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•S 3219 IS

1 (xvi) equivalent State laws, as defined 

2 in guidance issued by the Secretary of 

3 Labor; 

4 (B) to require each subcontractor for a 

5 covered subcontract— 

6 (i) to represent to the offeror, and the 

7 executive agency’s Labor Compliance Advi8 sor designated under subsection (d), to the 

9 best of the subcontractor’s knowledge and 

10 belief, whether there has been any adminis11 trative merits determination, arbitral 

12 award or decision, or civil judgment, as de13 fined in guidance issued by the Secretary 

14 of Labor, rendered against the subcon15 tractor in the preceding 3 years for viola16 tions of any of the labor laws listed under 

17 subparagraph (A); and 

18 (ii) to update such information every 

19 6 months for the duration of the sub20 contract; and 

21 (C) to consider the advice rendered by the 

22 executive agency’s Labor Compliance Advisor 

23 designated under subsection (d), or information 

24 submitted by a subcontractor pursuant to sub25 paragraph (B), in determining whether the subVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00131 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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1 contractor is a responsible source with a satis2 factory record of integrity and business ethics— 

3 (i) prior to awarding the subcontract; 

4 or 

5 (ii) in the case of a subcontract that 

6 is awarded or will become effective within 

7 5 days of the prime contract being award8 ed, not later than 30 days after awarding 

9 the subcontract. 

10 (2) PRE-AWARD CORRECTIVE MEASURES.— 

11 (A) IN GENERAL.—A contracting officer, 

12 prior to awarding a covered contract, shall, as 

13 part of the responsibility determination, provide 

14 an offeror who makes a disclosure pursuant to 

15 paragraph (1) an opportunity to report any 

16 steps taken to correct the violations of or im17 prove compliance with the labor laws listed in 

18 subparagraph (A) of such paragraph, including 

19 any agreements entered into with an enforce20 ment agency. 

21 (B) CONSULTATION.—The executive agen22 cy’s Labor Compliance Advisor designated 

23 under subsection (d), in consultation with rel24 evant enforcement agencies, shall advise the 

25 contracting officer whether agreements are in 


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•S 3219 IS

1 place or are otherwise needed to address appro2 priate remedial measures, compliance assist3 ance, steps to resolve issues to avoid further 

4 violations, or other related matters concerning 

5 the offeror. 

6 (C) RESPONSIBILITY DETERMINATION.— 

7 The contracting officer, in consultation with the 

8 executive agency’s Labor Compliance Advisor 

9 designated under subsection (d), shall consider 

10 information provided by the offeror under this 

11 subsection in determining whether the offeror is 

12 a responsible source with a satisfactory record 

13 of integrity and business ethics. The determina14 tion shall be based on the guidance reissued 

15 under subsection (e)(2)(A) and the final rule 

16 reissued under subsection (e)(1). 

17 (3) REFERRAL OF INFORMATION TO SUSPEN18 SION AND DEBARMENT OFFICIALS.—As appropriate, 

19 contracting officers, in consultation with their execu20 tive agency’s Labor Compliance Advisor, shall refer 

21 matters related to information provided under sub22 paragraphs (A) and (B) of paragraph (1) to the ex23 ecutive agency’s suspension and debarment official 

24 in accordance with agency procedures. 

25 (c) POST-AWARD CONTRACT ACTIONS.— 


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1 (1) INFORMATION UPDATES.—The contracting 

2 officer for a covered contract shall require that the 

3 contractor update the information provided under 

4 subparagraphs (A) and (B) of subsection (b)(1) 

5 every 6 months. 

6 (2) CORRECTIVE ACTIONS.— 

7 (A) PRIME CONTRACT.—The contracting 

8 officer, in consultation with the Labor Compli9 ance Advisor designated pursuant to subsection 

10 (d), shall determine whether any information 

11 provided under paragraph (1) warrants correc12 tive action. Such action may include— 

13 (i) an agreement requiring appro14 priate remedial measures; 

15 (ii) compliance assistance; 

16 (iii) resolving issues to avoid further 

17 violations; 

18 (iv) the decision not to exercise an op19 tion on a contract or to terminate the con20 tract; or 

21 (v) referral to the agency suspending 

22 and debarring official. 

23 (B) SUBCONTRACTS.—The prime con24 tractor for a covered contract, in consultation 

25 with the Labor Compliance Advisor, shall deterVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00134 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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1 mine whether any information provided under 

2 subsection (b)(1)(B) warrants corrective action, 

3 including remedial measures, compliance assist4 ance, and resolving issues to avoid further viola5 tions. 

6 (C) DEPARTMENT OF LABOR.—The Sec7 retary of Labor shall, as appropriate, inform 

8 executive agencies of its investigations of con9 tractors and subcontractors on current Federal 

10 contracts for purposes of determining the ap11 propriateness of actions described under sub12 paragraphs (A) and (B). 

13 (d) LABOR COMPLIANCE ADVISORS.— 

14 (1) IN GENERAL.—Each executive agency shall 

15 designate a senior official to act as the agency’s 

16 Labor Compliance Advisor. 

17 (2) DUTIES.—The Labor Compliance Advisor 

18 shall— 

19 (A) meet quarterly with the Deputy Sec20 retary, Deputy Administrator, or equivalent ex21 ecutive agency official with regard to matters 

22 covered under this section; 

23 (B) work with the acquisition workforce, 

24 agency officials, and agency contractors to pro25 mote greater awareness and understanding of 


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•S 3219 IS

1 the requirements of the labor laws listed in sub2 section (b)(1)(A), including record keeping, re3 porting, and notice requirements, as well as 

4 best practices for obtaining compliance with 

5 these requirements; 

6 (C) coordinate assistance for executive 

7 agency contractors seeking help in addressing 

8 and preventing violations of such laws; 

9 (D) in consultation with the Secretary of 

10 Labor or other relevant enforcement agencies, 

11 and pursuant to subsection (b)(2) as necessary, 

12 provide assistance to contracting officers re13 garding appropriate actions to be taken in re14 sponse to violations of the labor laws listed in 

15 subsection (b)(1)(A) identified prior to or after 

16 contracts are awarded, and address complaints 

17 in a timely manner, by— 

18 (i) providing assistance to contracting 

19 officers and other executive agency officials 

20 in reviewing the information provided 

21 under paragraphs (1) and (2) of subsection 

22 (b) and subsection (c)(1), or other infor23 mation indicating such a violation, in order 

24 to assess the serious, repeated, willful, or 

25 pervasive nature of any such violation and 


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•S 3219 IS

1 evaluate steps contractors have taken to 

2 correct such violations or improve compli3 ance with relevant requirements; 

4 (ii) helping agency officials determine 

5 the appropriate response to address viola6 tions of the labor laws listed in subsection 

7 (b)(1)(A) or other information indicating 

8 such a violation (particularly a serious, re9 peated, willful, or pervasive violation), in10 cluding an agreement requiring appro11 priate remedial measures, a decision not to 

12 award a contract or exercise an option on 

13 a contract, contract termination, or a re14 ferral to the executive agency suspension 

15 and debarment official; 

16 (iii) providing assistance to appro17 priate executive agency officials in receiv18 ing and responding to, or making referrals 

19 of, complaints alleging violations by agency 

20 contractors and subcontractors of the labor 

21 laws listed in subsection (b)(1)(A); and 

22 (iv) supporting contracting officers, 

23 suspension and debarment officials, and 

24 other agency officials in the coordination of 

25 actions taken pursuant to this subsection 


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•S 3219 IS

1 to ensure agency-wide consistency, to the 

2 extent practicable; 

3 (E) as appropriate, send information to 

4 agency suspension and debarment officials in 

5 accordance with agency procedures; 

6 (F) consult with the agency’s Chief Acqui7 sition Officer and Senior Procurement Execu8 tive, and the Department of Labor as nec9 essary, in the development of regulations, poli10 cies, and guidance addressing compliance by 

11 contractors and subcontractors with the labor 

12 laws listed in subsection (b)(1)(A); 

13 (G) make recommendations to the agency 

14 to strengthen agency management of contractor 

15 compliance with such labor laws; 

16 (H) publicly report, on an annual basis, a 

17 summary of agency actions taken to promote 

18 greater compliance with such laws, including 

19 the agency’s response under this section to seri20 ous, repeated, willful, or pervasive violations of 

21 such laws; and 

22 (I) participate in the interagency meetings 

23 regularly convened by the Secretary of Labor 

24 under subsection (e)(2)(B)(iii). 


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1 (e) MEASURES TO ENSURE GOVERNMENTWIDE CON2 SISTENCY.— 

3 (1) FEDERAL ACQUISITION REGULATION.— 

4 (A) IN GENERAL.—Notwithstanding the 

5 Joint Resolution disapproving the rule sub6 mitted by the Department of Defense, the Gen7 eral Services Administration, and the National 

8 Aeronautics and Space Administration relating 

9 to the Federal Acquisition Regulation (Public 

10 Law 115–11; 131 Stat. 75) and section 553 of 

11 title 5, United States Code, not later than 1 

12 year after the date of enactment of this Act, the 

13 Secretary of Defense, the Administrator of the 

14 General Services Administration, and the Ad15 ministrator of the National Aeronautics and 

16 Space Administration shall reissue the final rule 

17 entitled ‘‘Federal Acquisition Regulation; Fair 

18 Pay and Safe Workplaces’’ (81 Fed. Reg. 

19 58562 (Aug. 25, 2016)), subject to subpara20 graph (B). 

21 (B) UPDATED DATES.—The agencies de22 scribed in subparagraph (A) may, in reissuing 

23 the final rule under such subparagraph— 

24 (i) update any date provided in such 

25 final rule as reasonable and necessary; and 


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1 (ii) revise any provision in such rule 

2 for consistency with the requirements of 

3 this section. 

4 (2) DEPARTMENT OF LABOR.— 

5 (A) GUIDANCE.—Not later than 1 year 

6 after the date of enactment of this Act, the Sec7 retary of Labor shall reissue the guidance enti8 tled ‘‘Guidance for Executive Order 13673, 

9 ‘Fair Pay and Safe Workplaces’ ’’ (81 Fed. 

10 Reg. 58654 (Aug. 25, 2016)). In reissuing such 

11 guidance, the Secretary of Labor may— 

12 (i) update any date provided in such 

13 guidance as reasonable and necessary; and 

14 (ii) revise any provision in such guid15 ance for consistency with the requirements 

16 of this section. 

17 (B) ADDITIONAL ACTIVITIES.—The Sec18 retary of Labor shall— 

19 (i) develop a process— 

20 (I) for the Labor Compliance Ad21 visors designated pursuant to sub22 section (d) to consult with the Sec23 retary of Labor in carrying out their 

24 responsibilities under subsection 

25 (d)(2)(D); 


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1 (II) by which contracting officers 

2 and Labor Compliance Advisors may 

3 give appropriate consideration to de4 terminations and agreements made by 

5 the Secretary of Labor and the heads 

6 of other executive agencies; and 

7 (III) by which contractors may 

8 enter into agreements with the Sec9 retary of Labor, or the head of an10 other executive agency, prior to being 

11 considered for a contract; 

12 (ii) review data collection require13 ments and processes, and work with the 

14 Director of the Office of Management and 

15 Budget, the Administrator of General 

16 Services, and other agency heads to im17 prove such requirements and processes, as 

18 necessary, to reduce the burden on con19 tractors and increase the amount of infor20 mation available to executive agencies; 

21 (iii) regularly convene interagency 

22 meetings of Labor Compliance Advisors to 

23 share and promote best practices for im24 proving labor law compliance; and 


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1 (iv) designate an appropriate contact 

2 for executive agencies seeking to consult 

3 with the Secretary of Labor with respect to 

4 the requirements and activities under this 

5 section. 

6 (3) OFFICE OF MANAGEMENT AND BUDGET.— 

7 The Director of the Office of Management and 

8 Budget shall— 

9 (A) work with the Administrator of Gen10 eral Services to include in the Federal Awardee 

11 Performance and Integrity Information System 

12 the information provided by contractors pursu13 ant to subsections (b)(1)(A) and (c)(1) and 

14 data on the resolution of any issues related to 

15 such information; and 

16 (B) designate an appropriate contact for 

17 agencies seeking to consult with the Office of 

18 Management and Budget on matters arising 

19 under this section. 

20 (4) GENERAL SERVICES ADMINISTRATION.— 

21 (A) IN GENERAL.—The Administrator of 

22 General Services, in consultation with other rel23 evant executive agencies, shall establish a single 

24 Internet website for Federal contractors to use 

25 for all Federal contract reporting requirements 


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1 under this section, as well as any other Federal 

2 contract reporting requirements to the extent 

3 practicable. 

4 (B) AGENCY COOPERATION.—The heads of 

5 executive agencies with covered contracts shall 

6 provide the Administrator of General Services 

7 with the data necessary to maintain the Inter8 net website established under subparagraph 

9 (A). 

10 (5) MINIMIZING COMPLIANCE BURDEN.—After 

11 reissuing the guidance under paragraph (2)(A) or 

12 the final rule under paragraph (1), the Secretary of 

13 Labor or the Secretary of Defense, the Adminis14 trator of the General Services Administration, and 

15 the Administrator of the National Aeronautics and 

16 Space Administration may, respectively, amend such 

17 guidance or final rule consistent with the require18 ments under chapter 5 of title 5, United States 

19 Code. 

20 (f) IMPLEMENTING REGULATIONS.—Not later than 9 

21 months after the date of enactment of this Act, the Fed22 eral Acquisition Regulatory Council shall amend the Fed23 eral Acquisition Regulation to carry out the provisions of 

24 this section. 


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1 (g) RULES OF CONSTRUCTION.—Nothing in this sec2 tion shall be construed as— 

3 (1) impairing or otherwise affecting the author4 ity granted by law to an executive agency or the 

5 head thereof; or 

6 (2) impairing or otherwise affecting the func7 tions of the Director of the Office of Management 

8 and Budget relating to budgetary, administrative, or 

9 legislative proposals. 

10 TITLE IV—NATIONWIDE GRANTS 

11 TO PREVENT AND RESPOND 

12 TO WORKPLACE HARASS13 MENT 

14 SEC. 401. DEFINITIONS. 

15 In this title: 

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

17 means the Equal Employment Opportunity Commis18 sion. 

19 (2) EMPLOYEE.—The term ‘‘employee’’ has the 

20 meaning given the term in section 302(a)(4). 

21 (3) EMPLOYMENT DISCRIMINATION.—The term 

22 ‘‘employment discrimination’’ means discrimination 

23 that is in violation of applicable Federal, State, or 

24 local employment law, including: 


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1 (A) Title VII of the Civil Rights Act of 

2 1964 (42 U.S.C. 2000e et seq.). 

3 (B) The Government Employee Rights Act 

4 of 1991 (42 U.S.C. 2000e–16a et seq.). 

5 (C) The Congressional Accountability Act 

6 of 1995 (2 U.S.C. 1301 et seq.). 

7 (D) Subchapter II of chapter 5 of title 3, 

8 United States Code. 

9 (E) The Age Discrimination in Employ10 ment Act of 1967 (29 U.S.C. 621 et seq.). 

11 (F) Title I and section 503 (for violations 

12 with respect to that title) of the Americans with 

13 Disabilities Act of 1990 (42 U.S.C. 12111 et 

14 seq.; 12203). 

15 (G) Sections 501 and 505 of the Rehabili16 tation Act of 1973 (29 U.S.C. 791, 794a). 

17 (H) Section 6(d) of the Fair Labor Stand18 ards Act of 1938 (commonly known as the 

19 ‘‘Equal Pay Act of 1963’’) (29 U.S.C. 206(d)). 

20 (I) Title II of the Genetic Information 

21 Nondiscrimination Act of 2008 (42 U.S.C. 

22 2000ff et seq.). 

23 (J) Section 4311 of title 38, United States 

24 Code. 


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1 (K) Other Federal, State, or local employ2 ment law. 

3 (4) WORKER.—The term ‘‘worker’’ has the 

4 meaning given the term in section 302(a)(8). 

5 Subtitle A—National Grants for 

6 Preventing and Addressing Em7 ployment Discrimination, In8 cluding Harassment 

9 SEC. 411. DEFINITIONS. 

10 In this subtitle: 

11 (1) DIRECTOR.—The term ‘‘Director’’ means 

12 the Director of the Women’s Bureau of the Depart13 ment of Labor. 

14 (2) ELIGIBLE ENTITY.—The term ‘‘eligible enti15 ty’’ means any of the following: 

16 (A) A nonprofit organization, including a 

17 community-based organization, nonprofit legal 

18 aid organization, or labor organization, that 

19 provides services and support to workers, in20 cluding by assisting workers in filing charges of 

21 employment discrimination. 

22 (B) An institution of higher education, as 

23 defined in section 101 of the Higher Education 

24 Act of 1965 (20 U.S.C. 1001). 


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1 SEC. 412. GRANTS. 

2 (a) GRANTS.—The Director, in consultation with the 

3 Commission, shall award grants under this section, on a 

4 competitive basis, to eligible entities to assist such entities 

5 in carrying out a program for preventing and addressing 

6 employment discrimination, including harassment, 

7 through activities authorized under subsection (b). 

8 (b) USE OF FUNDS.— 

9 (1) PERMISSIBLE ACTIVITIES.—A grant award10 ed under this section shall be used for activities to 

11 prevent and address employment discrimination, in12 cluding harassment, which may include— 

13 (A) educating workers about their rights 

14 related to harassment in employment under 

15 Federal, State, and local civil rights, labor, and 

16 employment laws; 

17 (B) educating employers about their obli18 gations to prevent and address harassment in 

19 employment under Federal, State, and local 

20 civil rights, labor, and employment laws; 

21 (C) providing assistance to workers in 

22 bringing complaints of employment discrimina23 tion, including filing charges of harassment; 

24 (D) establishing networks for education, 

25 communication, and participation in the work26 place and community; 


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1 (E) monitoring employer compliance with 

2 Federal, State, and local civil rights, labor, and 

3 employment laws; 

4 (F) recruiting and hiring of staff and vol5 unteers; and 

6 (G) any other activity the Director, in con7 sultation with the Commission, may reasonably 

8 prescribe for the purpose of preventing and ad9 dressing employment discrimination, including 

10 harassment. 

11 (2) PROHIBITED ACTIVITIES.—Notwithstanding 

12 paragraph (1), an eligible entity receiving a grant 

13 under this section may not use the grant funds for 

14 any purpose reasonably prohibited by the Director, 

15 in consultation with the Commission, through notice 

16 and comment rulemaking. 

17 (c) TERM OF GRANTS.—Each grant awarded under 

18 this section shall be available for expenditure for a period 

19 not to exceed 3 years. 

20 (d) APPLICATIONS.— 

21 (1) IN GENERAL.—An eligible entity seeking a 

22 grant under this section shall submit an application 

23 for such grant to the Director in accordance with 

24 this subsection. 


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1 (2) PARTNERSHIPS.—Multiple eligible entities 

2 may submit a joint application under this subsection 

3 that designates a single entity as the lead entity for 

4 the purposes of receiving and disbursing funds re5 ceived through a grant under this section. 

6 (3) CONTENTS.—An application under this sub7 section shall include— 

8 (A) a description of a plan for the program 

9 that the eligible entity proposes to carry out 

10 with a grant under this section, including a 

11 long-term strategy and detailed implementation 

12 plan; 

13 (B) information on the prevalence of viola14 tions of prohibitions on employment discrimina15 tion, including harassment, under Federal, 

16 State, and local civil rights, labor, and employ17 ment laws in the population served by the eligi18 ble entity; 

19 (C) information on any industry or geo20 graphic area targeted by the plan for such pro21 gram; 

22 (D) information on the type of outreach 

23 and relationship building that will be conducted 

24 under such program; 


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1 (E) information on the training and edu2 cation that will be provided to workers and em3 ployers under such program; and 

4 (F) the method by which the eligible entity 

5 will measure the results of such program. 

6 (e) SELECTION.— 

7 (1) COMPETITIVE BASIS.—In accordance with 

8 this section, the Director, in consultation with the 

9 Commission, shall, on a competitive basis, select 

10 grant recipients from among eligible entities that 

11 have submitted an application meeting the require12 ments under subsection (d). 

13 (2) PRIORITY.—The Director, in consultation 

14 with the Commission, in selecting grant recipients 

15 under paragraph (1), shall give priority to eligible 

16 entities that— 

17 (A) serve workers in any industry or geo18 graphic area that is most highly at risk for em19 ployment discrimination, including harassment, 

20 as identified by the Director, in consultation 

21 with the Commission; and 

22 (B) demonstrate past and ongoing work to 

23 prevent employment discrimination, including 

24 harassment. 

25 (f) PERFORMANCE EVALUATIONS.— 


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1 (1) IN GENERAL.—Each grant recipient under 

2 this section shall develop procedures for reporting, 

3 monitoring, measuring, and evaluating the activities 

4 of each program or activity funded under this sec5 tion. 

6 (2) GUIDELINES.—The procedures required 

7 under paragraph (1) shall be in accordance with 

8 guidelines established by the Director, in consulta9 tion with the Commission. 

10 SEC. 413. AUTHORIZATION OF APPROPRIATIONS. 

11 There are authorized to be appropriated to the Direc12 tor such sums as may be necessary to carry out this sub13 title. 

14 Subtitle B—Grants for Legal Assist15 ance for Low-Income Workers 

16 SEC. 421. DEFINITIONS. 

17 In this subtitle: 

18 (1) SECRETARY.—The term ‘‘Secretary’’ means 

19 the Secretary of Labor. 

20 (2) COVERED CLIENT.—The term ‘‘covered cli21 ent’’ means an individual who— 

22 (A) is an eligible client; and 

23 (B) faces legal issues related to employ24 ment discrimination, including harassment. 


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1 (3) ELIGIBLE CLIENT.—The term ‘‘eligible cli2 ent’’ has the meaning given the term in section 1002 

3 of the Legal Services Corporation Act (42 U.S.C. 

4 2996a) and the regulations of the Legal Services 

5 Corporation. 

6 (4) ELIGIBLE ENTITY.—The term ‘‘eligible enti7 ty’’ means— 

8 (A) a nonprofit organization; and 

9 (B) an individual who is licensed to prac10 tice law. 

11 SEC. 422. GRANTS FOR CIVIL LEGAL NEEDS RELATED TO 

12 EMPLOYMENT DISCRIMINATION. 

13 (a) GRANTS AUTHORIZED.— 

14 (1) IN GENERAL.—The Secretary is authorized 

15 to provide financial assistance to eligible entities to 

16 enable those eligible entities to provide for the civil 

17 legal needs of covered clients that are related to em18 ployment discrimination, and to provide for those cli19 ents such other services as are necessary to carry 

20 out the purposes of this subtitle, including any of 

21 the following activities: 

22 (A) Providing covered clients advice, legal 

23 services, or representation. 


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1 (B) Assisting covered clients in utilizing 

2 the Commission employment discrimination 

3 complaint process. 

4 (C) Assisting covered clients in utilizing a 

5 private employment complaint process. 

6 (D) Conducting outreach activities to pub7 licize the services offered under this section. 

8 (2) CITIZENSHIP STATUS.—An eligible entity 

9 receiving a grant under this section shall provide 

10 services to a covered client without regard to the 

11 citizenship status or authorization to work of the 

12 covered client. 

13 (b) APPLICATION.—In order to be eligible to receive 

14 a grant under this section, an eligible entity shall submit 

15 an application to the Secretary at such time and in such 

16 manner as the Secretary may require. Such application 

17 shall include— 

18 (1) a description of the services that the eligible 

19 entity proposes to provide, implement, improve, or 

20 expand; 

21 (2) a description of the covered clients the eligi22 ble entity intends to serve; 

23 (3) evidence of the eligible entity’s capacity to 

24 provide services to covered clients with legal issues 

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1 igible entity’s record of success representing eligible 

2 clients in employment-related legal matters, or the 

3 eligible entity’s prior experience serving clients who 

4 cannot afford legal counsel; 

5 (4) an explanation of how the services the eligi6 ble entity intends to provide will assist covered cli7 ents in addressing legal issues related to employment 

8 discrimination; and 

9 (5) any other information that the Secretary 

10 may require. 

11 (c) AWARD BASIS.—The Secretary shall, in consulta12 tion with the Legal Services Corporation, award and over13 see grants under this section pursuant to such procedures 

14 and criteria as the Secretary may require. Such proce15 dures and criteria shall include consideration of— 

16 (1) whether the eligible entity has demonstrated 

17 an understanding of the legal needs of covered cli18 ents; 

19 (2) the eligible entity’s capacity to provide serv20 ices to covered clients with legal issues related to 

21 employment discrimination, which may be dem22 onstrated through evidence described in subsection 

23 (b)(3); 

24 (3) the eligible entity’s knowledge of applicable 

25 Federal, State, and local employment laws; 


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1 (4) the eligible entity’s capacity and ability to 

2 access other resources; 

3 (5) the eligible entity’s ability to ensure con4 tinuity of service to covered clients with pending 

5 legal issues; and 

6 (6) other factors that the Secretary determines 

7 are relevant. 

8 (d) EQUITABLE DISTRIBUTION.—To the extent prac9 ticable, in awarding grants under this section, the Sec10 retary, in consultation with the Legal Services Corpora11 tion, shall ensure that grants are made so as to provide 

12 the most economical and effective delivery of legal assist13 ance to covered clients in both urban and rural areas, with 

14 consideration of the geographic distribution of persons in 

15 poverty. 

16 (e) DURATION OF THE GRANT.— 

17 (1) IN GENERAL.—A grant under this section 

18 shall be for a term of not less than 1 year and not 

19 more than 5 years. 

20 (2) RENEWAL.—The Secretary may renew a 

21 grant awarded under this section for a period of not 

22 more than 2 additional years if the eligible entity 

23 demonstrates that the eligible entity is effectively 

24 using funds and that the renewal of funds will allow 

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1 ices, replicate the program, or provide continuity of 

2 service to covered clients. 

3 (f) REPORT.—Two years after the enactment of this 

4 section, the Secretary shall provide to the Committee on 

5 Health, Education, Labor, and Pensions of the Senate and 

6 the Committee on Education and Labor of the House of 

7 Representatives a report on the implementation of the 

8 grant program under this section, including— 

9 (1) a description of the services provided using 

10 grant assistance under this section, including a de11 tailed description of the types of legal issues ad12 dressed by eligible entities and the number of cov13 ered clients served; and 

14 (2) an assessment of the number of individuals 

15 facing one or more legal issues related to employ16 ment discrimination who cannot afford adequate 

17 legal counsel, and the largest areas of unmet need. 

18 SEC. 423. AUTHORIZATION OF APPROPRIATIONS. 

19 There are authorized to be appropriated to carry out 

20 this subtitle such sums as may be necessary. 

21 Subtitle C—Grants for a System of 

22 State Advocacy 

23 SEC. 431. PURPOSE. 

24 The purpose of this subtitle is to provide allotments 

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1 title as a ‘‘system’’) in each State to protect the legal and 

2 human rights of workers in accordance with applicable 

3 Federal, State, and local employment discrimination laws. 

4 SEC. 432. DEFINITIONS. 

5 In this subtitle: 

6 (1) RECORD.—The term ‘‘record’’ includes— 

7 (A) a report prepared by an employer or 

8 staff person charged with investigating reports 

9 of employment discrimination that describes in10 cidents of possible discrimination and the steps 

11 taken to investigate those incidents; 

12 (B) statistical information related to em13 ployment decisions and the race, sex (including 

14 sexual orientation and gender identity), religion, 

15 national origin, age, disability, genetic informa16 tion, or other protected characteristics of work17 ers; 

18 (C) records described in section 11(c) of 

19 the Fair Labor Standards Act (29 U.S.C. 

20 211(c)); and 

21 (D) any such similar record, as may be 

22 necessary to carry out the purposes of this sub23 title. 

24 (2) SECRETARY.—The term ‘‘Secretary’’ means 

25 the Secretary of Labor. 


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1 (3) STATE.—The term ‘‘State’’, except as oth2 erwise provided, includes, in addition to each of the 

3 several States of the United States, the District of 

4 Columbia, the Commonwealth of Puerto Rico, the 

5 United States Virgin Islands, Guam, American 

6 Samoa, and the Commonwealth of the Northern 

7 Mariana Islands. 

8 SEC. 433. ALLOTMENTS AND PAYMENTS. 

9 (a) ALLOTMENTS.— 

10 (1) IN GENERAL.—To assist States in meeting 

11 the requirements of section 434, the Secretary shall 

12 make allotments to States from the amounts appro13 priated under section 436 and not reserved under 

14 paragraph (5). 

15 (2) MINIMUM ALLOTMENTS.—In any case in 

16 which— 

17 (A) the total amount appropriated under 

18 section 436 for a fiscal year is not less than 

19 $20,000,000, the allotment under paragraph 

20 (1) for such fiscal year— 

21 (i) to each of American Samoa, 

22 Guam, the United States Virgin Islands, 

23 and the Commonwealth of the Northern 

24 Mariana Islands may not be less than 

25 $100,000; and 


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1 (ii) to any State not described in 

2 clause (i) may not be less than $200,000; 

3 and 

4 (B) the total amount appropriated under 

5 section 436 for a fiscal year is less than 

6 $20,000,000, the allotment under paragraph 

7 (1) for such fiscal year— 

8 (i) to each of American Samoa, 

9 Guam, the United States Virgin Islands, 

10 and the Commonwealth of the Northern 

11 Mariana Islands may not be less than 

12 $50,000; and 

13 (ii) to any State not described in 

14 clause (i) may not be less than $150,000. 

15 (3) REDUCTION OF ALLOTMENT.—Notwith16 standing paragraphs (1) and (2), if the aggregate of 

17 the amounts to be allotted to the States pursuant to 

18 such paragraphs for any fiscal year exceeds the total 

19 amount appropriated for such allotments under sec20 tion 436 for such fiscal year, the amount to be allot21 ted to each State for such fiscal year shall be pro22 portionately reduced. 

23 (4) INCREASE IN ALLOTMENTS.—If the sum ap24 propriated under section 436 and not reserved under 

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1 gate of the minimum allotments for all States under 

2 this subsection for that fiscal year, such excess 

3 amount shall be allotted among the States, including 

4 American Samoa, Guam, the United States Virgin 

5 Islands, and the Commonwealth of the Northern 

6 Mariana Islands, so as to increase proportionately 

7 the minimum allotment for each such State. 

8 (5) TECHNICAL ASSISTANCE.—In any case in 

9 which the total amount appropriated under section 

10 436 for a fiscal year is more than $24,500,000, the 

11 Secretary shall— 

12 (A) use not more than 2 percent of the 

13 amount appropriated to provide technical assist14 ance to eligible systems with respect to activi15 ties carried out under this subtitle (consistent 

16 with requests by such systems for such assist17 ance for the year); and 

18 (B) provide a grant in accordance with sec19 tion 434(d) and in an amount described in 

20 paragraph (2)(A)(i), to an American Indian 

21 consortium to provide protection and advocacy 

22 services. 

23 (6) REALLOTMENTS.— 

24 (A) IN GENERAL.—If the Secretary deter25 mines that an amount of an allotment to a 


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1 State for a period (of a fiscal year or longer) 

2 will not be required by the State during the pe3 riod for the purpose for which the allotment 

4 was made, the Secretary shall reallot the 

5 amount. 

6 (B) TIMING.—The Secretary may make 

7 such a reallotment from time to time, on such 

8 date as the Secretary may fix, but not earlier 

9 than 30 days after the Secretary has published 

10 notice of the intention of the Secretary to make 

11 the reallotment in the Federal Register. 

12 (C) AMOUNTS.—The Secretary shall reallot 

13 the amount to other States with respect to 

14 which the Secretary has not made that deter15 mination. The Secretary shall reallot the 

16 amount in proportion to the original allotments 

17 of the other States for such fiscal year, but 

18 shall reduce such proportionate amount for any 

19 of the other States to the extent the propor20 tionate amount exceeds the sum that the Sec21 retary estimates the State needs and will be 

22 able to use during such period. 

23 (D) REALLOTMENT OF REDUCTIONS.—The 

24 Secretary shall similarly reallot the total of the 


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1 reductions among the States whose propor2 tionate amounts were not so reduced. 

3 (E) TREATMENT.—Any amount reallotted 

4 to a State under this subsection for a fiscal 

5 year shall be deemed to be a part of the allot6 ment of the State under paragraph (1) for such 

7 fiscal year. 

8 (b) PAYMENT TO SYSTEMS.—The Secretary shall pay 

9 directly to each State that has a system in the State that 

10 complies with the provisions of this subtitle the amount 

11 of the allotment made for the State under this section, 

12 unless the system specifies otherwise, to be used in sup13 port of the system. 

14 (c) UNOBLIGATED FUNDS.—Any amount paid to a 

15 State under this subtitle for a fiscal year and remaining 

16 unobligated at the end of such year shall remain available 

17 to such State for the next fiscal year, for the purposes 

18 for which such amount was paid. 

19 SEC. 434. SYSTEM REQUIRED. 

20 (a) IN GENERAL.—In order for a State to receive an 

21 allotment under this subtitle the State shall— 

22 (1) have in effect a system to protect and advo23 cate for the rights of workers within the State who 

24 are or who may be eligible for relief from applicable 

25 employment discrimination laws; and 


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1 (2) designate a private nonprofit entity (re2 ferred to in this subtitle as an ‘‘agency’’) to support 

3 and carry out the activities of that system. 

4 (b) AGENCY REQUIREMENTS.— 

5 (1) CHARACTERISTICS OF AGENCY.—The State 

6 shall ensure that the agency designated under sub7 section (a) shall— 

8 (A) not be administered by the State, or 

9 an agency or instrumentality of a State; and 

10 (B) be independent of any entity that rep11 resents the interest of the State, employers, or 

12 other corporations. 

13 (2) NO REDESIGNATION OF AGENCY.—The 

14 agency implementing the system shall not be redes15 ignated unless— 

16 (A) there is good cause for the redesigna17 tion; 

18 (B) the State has given the agency notice 

19 of the intention to make such redesignation, in20 cluding notice regarding the good cause for 

21 such redesignation, and given the agency an op22 portunity to respond to the assertion that good 

23 cause has been shown; 


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1 (C) the agency has given timely notice of 

2 the intended redesignation directly to clients of 

3 the agency; 

4 (D) the State has provided, in plain 

5 English and in accessible formats for individ6 uals with disabilities and for individuals who 

7 primarily speak a language other than English, 

8 an opportunity for public comment; and 

9 (E) the agency has an opportunity to ap10 peal the redesignation to the Secretary, on the 

11 basis that the redesignation was not for good 

12 cause. 

13 (3) COSTS OF NOTICE.—The costs of the notice 

14 required under paragraph (2)(C) shall be paid by 

15 the State. 

16 (c) SYSTEM REQUIRED.—The system described in 

17 subsection (a) shall— 

18 (1) have the authority to— 

19 (A) pursue legal, administrative, and other 

20 appropriate remedies or approaches, as applica21 ble, to ensure the protection of, and advocacy 

22 for, the rights of individuals within the State 

23 who are or who may be eligible for relief from 

24 employment discrimination; and 


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1 (B) provide information on and referral to 

2 programs and services addressing the needs of 

3 such individuals; 

4 (2) have the authority— 

5 (A) to investigate incidents of employment 

6 discrimination, including harassment, and to 

7 conduct investigations of systemic employment 

8 discrimination, of such individuals if the inci9 dents are reported to the agency or if there is 

10 probable cause to believe that the incidents oc11 curred; and 

12 (B) to investigate and gather data in the 

13 same manner as the Secretary under section 

14 11(a) of the Fair Labor Standards Act (29 

15 U.S.C. 211(a)); 

16 (3) on an annual basis, develop, submit to the 

17 Secretary, and take action with regard to goals and 

18 priorities developed through data driven strategic 

19 planning for the system’s activities; 

20 (4) on an annual basis, provide to the public, 

21 including individuals described in paragraph (1)(A), 

22 the regional office of the Commission that serves the 

23 State, and any State agency whose purpose is to re24 duce or eliminate employment discrimination, an op25 portunity to comment on— 


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1 (A) the goals and priorities established by 

2 the agency and the rationale for the establish3 ment of such goals; and 

4 (B) the activities of the agency, including 

5 the coordination of services with the District of6 fice of the Commission that serves the State, 

7 and any State agency whose purpose is to re8 duce, eliminate, or redress employment dis9 crimination, and with entities carrying out 

10 other related programs; 

11 (5) establish a grievance procedure for clients 

12 or prospective clients of the agency to ensure that 

13 individuals described in paragraph (1)(A) have full 

14 access to services of the agency; 

15 (6) have access at reasonable times to any indi16 vidual described in paragraph (1)(A) in a location in 

17 which services and other assistance are provided to 

18 such an individual, in order to carry out the purpose 

19 of this subtitle; 

20 (7) have access, not later than 3 business days 

21 after the agency makes a written request, to the 

22 records of any individual described in paragraph 

23 (1)(A) (including Federal and State workers) who is 

24 a client of the agency if such individual, or other 


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1 legal representative of such individual, has author2 ized the agency to have such access; 

3 (8) hire and maintain sufficient numbers and 

4 types of staff (qualified by training and experience) 

5 to carry out the agency’s functions, except that the 

6 State involved shall not apply hiring freezes, reduc7 tions in force, prohibitions on travel, or other poli8 cies to the staff of the agency, to the extent that 

9 such policies would impact the staff or functions of 

10 the agency funded with Federal funds or would pre11 vent the agency from carrying out the functions of 

12 the system under this subtitle; 

13 (9) have the authority to educate policymakers; 

14 and 

15 (10) provide assurances to the Secretary that 

16 funds allotted to the State under section 433 will be 

17 used to supplement, and not supplant, the non-Fed18 eral funds that would otherwise be made available 

19 for the purposes for which the allotted funds are 

20 provided. 

21 (d) AMERICAN INDIAN CONSORTIUM.— 

22 (1) IN GENERAL.—Upon application to the Sec23 retary, the Secretary shall allot funds to one or more 

24 American Indian consortium established to provide 

25 services under this subtitle, in accordance with secVerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00167 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219

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1 tion 433(a)(5). Such funds shall be used to support 

2 services under this subtitle. 

3 (2) COORDINATION OF SYSTEMS.—An American 

4 Indian consortium under paragraph (1) shall be con5 sidered to be a system for purposes of this subtitle 

6 and shall coordinate those services with other sys7 tems serving the same geographic area. 

8 (3) RESPONSIBLE PARTY.—The tribal council 

9 that designates the consortium shall carry out the 

10 responsibilities and exercise the authorities specified 

11 for a State in this subtitle, with regard to the con12 sortium. 

13 SEC. 435. ADMINISTRATION. 

14 (a) GOVERNING BOARD.—The system described in 

15 section 434 shall be organized as a private nonprofit entity 

16 with a multimember governing board, and such governing 

17 board shall be selected according to the policies and proce18 dures of the system, except that— 

19 (1) the governing board shall be composed of 

20 members who broadly represent or are knowledge21 able about the needs of the individuals served by the 

22 system; 

23 (2) a majority of the members of the board 

24 shall be— 


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1 (A) attorneys representing the interests of 

2 workers; 

3 (B) advocates for workers with experience 

4 working to protect or expand workers’ rights; or 

5 (C) workers who have experienced employ6 ment discrimination; 

(3) not more than 1 7 ⁄3 of the members of the 

8 governing board may be appointed by the chief exec9 utive officer of the State involved, in the case of any 

10 State in which such officer has the authority to ap11 point members of the board; 

12 (4) the membership of the governing board 

13 shall be subject to term limits set by the system to 

14 ensure rotating membership; and 

15 (5) any vacancy in the board shall be filled not 

16 later than 60 days after the date on which the va17 cancy occurs. 

18 (b) LEGAL ACTION.— 

19 (1) IN GENERAL.—Nothing in this subtitle shall 

20 preclude a system from bringing a suit on behalf of 

21 individuals described in section 434(c)(1)(A) against 

22 a State, or an agency or instrumentality of a State. 

23 (2) USE OF AMOUNTS FROM JUDGMENT.—An 

24 amount received pursuant to a suit described in 

25 paragraph (1) through a court judgment may only 


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1 be used by the system to further the purpose of this 

2 subtitle and shall not be used to augment payments 

3 to legal contractors or to award personal bonuses. 

4 (c) PUBLIC NOTICE OF FEDERAL ONSITE REVIEW.— 

5 The Secretary shall provide advance public notice of, and 

6 solicit public comments regarding, any Federal pro7 grammatic or administrative onsite review of a system 

8 conducted under this subtitle. The Secretary shall prepare 

9 an onsite visit report containing the results of such review, 

10 which shall be distributed to the Governor of the State 

11 and to other interested public and private parties. The 

12 comments received in response to the notice and public 

13 comment solicitation shall be included in the onsite visit 

14 report. 

15 (d) REPORTS.— 

16 (1) IN GENERAL.—Beginning for the fiscal year 

17 after the fiscal year during which this Act is en18 acted, each system established in a State pursuant 

19 to this subtitle shall annually prepare and transmit 

20 to the Secretary a report that describes the activi21 ties, accomplishments, and expenditures of the sys22 tem during the preceding fiscal year, including— 

23 (A) a description of the system’s goals, the 

24 extent to which the goals were achieved, and 

25 barriers to that achievement; and 


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1 (B) the process used to obtain public 

2 input, the nature of such input, and how such 

3 input was used. 

4 (2) DISCLOSURE OF INFORMATION.—For pur5 poses of the report described in paragraph (1) the 

6 Secretary shall not require the system disclose the 

7 identity of, or any other personally identifiable infor8 mation related to, any individual requesting assist9 ance from the system. 

10 SEC. 436. AUTHORIZATION OF APPROPRIATIONS. 

11 There are authorized to be appropriated for allot12 ments under section 433 such sums as may be necessary. 

13 TITLE V—GENERAL PROVISIONS 

14 SEC. 501. SEVERABILITY. 

15 If any provision of this Act, an amendment made by 

16 this Act, or the application of such provision or amend17 ment to any person or circumstance is held to be unconsti18 tutional, the remainder of this Act and the amendments 

19 made by this Act, and the application of the provision or 

20 amendment to any other person or circumstance, shall not 

21 be affected. 

Æ 


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