I 

114TH CONGRESS 

2D SESSION H. R. 5693 

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

to clarify appropriate liability standards for Federal antidiscrimination claims. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 8, 2016 

Ms. DELAURO (for herself, Mr. FARR, Ms. NORTON, Ms. DELBENE, Mr. 

CAPUANO, Ms. LEE, Mr. MCDERMOTT, Mr. LANGEVIN, Mr. POCAN, Mr. 

TAKANO, Mr. SWALWELL of California, Mr. GENE GREEN of Texas, and 

Mr. HONDA) introduced the following bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committees on House Administration, the Judiciary, and Oversight and Government Reform, for a period to be subsequently determined by the Speaker, 

in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

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

other statutes to clarify appropriate liability standards 

for Federal antidiscrimination claims. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair Employment Pro5 tection Act of 2016’’. 


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1 SEC. 2. FINDINGS AND PURPOSES. 

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

3 (1) Harassment is a widespread problem in 

4 workplaces in the United States. In 2014, sex dis5 crimination comprised nearly 30 percent of the 

6 charges filed with the Equal Employment Oppor7 tunity Commission (EEOC) under all the statutes 

8 the agency enforces. Of these charges, women filed 

9 19,605, or 74.4 percent. 

10 (2) Women and people of color working in low11 wage jobs are particularly vulnerable to harassment 

12 in the workplace. 

13 (3) In some industries, harassment is even 

14 more widespread. For example, 80 percent of female 

15 farm-workers working in the fields in central Cali16 fornia reported that they had experienced sexual 

17 harassment. 

18 (4) Studies indicate that sexual harassment of 

19 women, including unwanted touching, grabbing, and 

20 stalking, is also common in male-dominated indus21 tries, such as construction, public safety, manufac22 turing, farming, and the high-tech industry. Harass23 ment in male-dominated industries operates as a 

24 barrier to women’s entry into higher-paying jobs. 

25 (5) Racial harassment remains a pervasive 

26 problem in the workplace in the United States. In 


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1 fiscal year 2015, 34.7 percent of the alleged charges 

2 filed with the EEOC were on the basis of race. 

3 (6) Research shows that workers in a wide 

4 spectrum of occupations, ranging from service and 

5 support positions to management and professional 

6 positions, report experiencing race-based harassment 

7 while on the job. 

8 (7) Harassment in the workplace is a persistent 

9 barrier to opportunity for people with disabilities. 

10 Harassment can result in workers with disabilities 

11 being forced off the job. Workplace harassment is 

12 used to send the message that workers with disabil13 ities do not belong at work. 

14 (8) Age discrimination continues to be a barrier 

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

16 older workers report that they or someone they know 

17 experienced age discrimination in the workplace. 

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

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

20 significantly undermines protections against dis21 crimination that the Supreme Court established in 

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

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

24 (1998), which held that an employer may be vicari25 ously liable under title VII of the Civil Rights Act 


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1 of 1964 for harassment of an employee by an indi2 vidual that has supervisory authority over that em3 ployee. 

4 (10) In Faragher and Ellerth, the Supreme 

5 Court held that employers will be subject to a strict 

6 liability standard when employees with supervisory 

7 authority engage in harassment that results in ‘‘tan8 gible employment actions’’. However, in situations 

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

10 not result in tangible employment actions, the Court 

11 explained, an employer can avoid vicarious liability 

12 by showing that— 

13 (A) the employer exercised reasonable care 

14 to prevent and correct any harassing behavior; 

15 and 

16 (B) the plaintiff unreasonably failed to 

17 take advantage of the preventive or corrective 

18 opportunities that the employer provided. 

19 (11) Whether an employer should be vicariously 

20 liable for harassment is a functional analysis that is 

21 based not on the title of the harasser or the employ22 er’s job description for the harasser’s position but on 

23 the authority vested in that individual by the em24 ployer. 


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1 (12) The Supreme Court holding in Vance lim2 its the category of individuals who are considered su3 pervisors and for which an employer may be held vi4 cariously liable under Faragher and Ellerth to those 

5 individuals that have authority to take tangible em6 ployment actions. This holding ignores the reality 

7 that employees with the authority to control their 

8 subordinates’ daily work should be included in that 

9 category, for which an employer may be held vicari10 ously liable, because such individuals are aided by 

11 that authority in perpetuating a discriminatory work 

12 environment. 

13 (13) Individuals who direct the daily work ac14 tivities of employees but do not have the authority 

15 to take tangible employment actions against those 

16 employees are common in the workplace in the 

17 United States, particularly in industries that employ 

18 low-wage workers. Workers in industries including 

19 retail, restaurant, health care, housekeeping, and 

20 personal care, which may pay low wages and employ 

21 a large numbers of female workers, are particularly 

22 vulnerable to harassment by individuals who have 

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

24 lack the power to take tangible employment actions. 


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

2 that an employer’s vicarious liability for harassment under 

3 title VII of the Civil Rights Act of 1964, the Age Discrimi4 nation in Employment Act of 1967, the Americans with 

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

6 section 1977 of the Revised Statutes, the Genetic Informa7 tion Nondiscrimination Act of 2008, the Government Em8 ployee Rights Act of 1991, the Congressional Account9 ability Act of 1995, and title III of the United States Code 

10 extends to— 

11 (1) an individual with the authority to under12 take or recommend tangible employment actions af13 fecting the victim of the harassment; or 

14 (2) an individual with the authority to direct 

15 the victim’s daily work activities. 

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

17 ACT OF 1964. 

18 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS19 TILE WORK ENVIRONMENT.—Section 703 of the Civil 

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

21 adding at the end the following: 

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

23 Protection Act of 2016, an employer shall be liable for 

24 the acts of any individual whose harassment of an em25 ployee has created or continued a hostile work environVerDate Sep 11 2014 23:23 Jul 13, 2016 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5693.IH H5693

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1 ment that constitutes an unlawful employment practice 

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

3 ‘‘(1) such individual was authorized by that 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 hostile work environ11 ment.’’. 

12 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE13 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 704 

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

15 amended— 

16 (1) by redesignating subsection (b) as sub17 section (c); and 

18 (2) by inserting after subsection (a) the fol19 lowing: 

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

21 Protection Act of 2016, an employer shall be liable for 

22 the acts of any individual whose harassment of an em23 ployee has created or continued a retaliatory hostile work 

24 environment that constitutes an unlawful employment 


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

2 of the harassment— 

3 ‘‘(1) such individual was authorized by that 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.’’. 

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

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

14 adding at the end the following: 

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

16 shall apply to hostile work environment claims and retalia17 tory hostile work environment claims, respectively, under 

18 this section.’’. 

19 SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EM20 PLOYMENT ACT. 

21 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS22 TILE WORK ENVIRONMENT.—Section 4 of the Age Dis23 crimination in Employment Act of 1967 (29 U.S.C. 623) 

24 is amended by adding at the end the following: 


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

2 Protection Act of 2016, an employer shall be liable for 

3 the acts of any individual whose harassment of an em4 ployee has created or continued a hostile work environ5 ment that is unlawful under this section if, at the time 

6 of the harassment— 

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

9 ‘‘(A) to undertake or recommend tangible 

10 employment actions affecting the employee; or 

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

12 activities; or 

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

14 creation or continuation of that hostile work environ15 ment.’’. 

16 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE17 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 

18 4(d) of the Age Discrimination in Employment Act of 

19 1967 (29 U.S.C. 623) is amended by striking ‘‘or litiga20 tion under this Act.’’ and inserting ‘‘or litigation under 

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

22 Protection Act of 2016, an employer shall be liable for 

23 the acts of any individual whose harassment of an em24 ployee has created or continued a retaliatory hostile work 


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1 environment that is unlawful under this subsection if, at 

2 the time of the harassment— 

3 ‘‘(1) such individual was authorized by that 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.’’. 

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

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

14 633a) is amended by adding at the end the following: 

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

16 to retaliatory hostile work environment claims and hostile 

17 work environment claims, respectively, under this sec18 tion.’’. 

19 SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABIL20 ITIES ACT. 

21 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS22 TILE WORK ENVIRONMENT.—Section 102 of the Ameri23 cans with Disabilities Act (42 U.S.C. 12112) is amended 

24 by adding at the end the following: 


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

2 Protection Act of 2016, an employer shall be liable for 

3 the acts of any individual whose harassment of an em4 ployee has created or continued a hostile work environ5 ment that constitutes discrimination against a qualified 

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

7 at the time of the harassment— 

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

10 ‘‘(A) to undertake or recommend tangible 

11 employment actions affecting the qualified indi12 vidual; or 

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

14 daily work activities; or 

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

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

18 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE19 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 503 

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

21 12203) is amended— 

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

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


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

2 Protection Act of 2016, an employer shall be liable for 

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

5 environment that constitutes retaliatory discrimination, as 

6 described in subsection (a), or the carrying out of any un7 lawful acts described in subsection (b), if, at the time of 

8 the harassment— 

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

11 ‘‘(A) to undertake or recommend tangible 

12 employment actions affecting the employee; or 

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

14 activities; or 

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

16 creation or continuation of that retaliatory hostile 

17 work environment.’’; and 

18 (3) in subsection (d), as redesignated by para19 graph (1), by striking ‘‘subsections (a) and (b)’’ and 

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

21 SEC. 6. AMENDMENT TO THE REHABILITATION ACT. 

22 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS23 TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE

24 WORK ENVIRONMENT.—Section 501 of the Rehabilitation 


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

2 the end the following: 

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

4 Protection Act of 2016, each department, agency, and in5 strumentality in the executive branch of Government and 

6 the Smithsonian Institution shall be liable for the acts of 

7 any individual within such department, agency, instrumen8 tality, or the Smithsonian Institution whose harassment 

9 of an individual with a disability has created or continued 

10 a hostile work environment, or a retaliatory hostile work 

11 environment, that constitutes nonaffirmative action em12 ployment discrimination under this section if, at the time 

13 of the harassment— 

14 ‘‘(1) such individual was authorized by that de15 partment, agency, instrumentality, or the Smithso16 nian Institution— 

17 ‘‘(A) to undertake or recommend tangible 

18 employment actions affecting the individual 

19 with a disability; or 

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

21 the individual with a disability; or 

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

23 instrumentality, or the Smithsonian Institution led 

24 to the creation or continuation of that hostile work 


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1 environment or retaliatory hostile work environ2 ment.’’. 

3 (b) STANDARD FOR EMPLOYER LIABILITY FOR HOS4 TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE

5 WORK ENVIRONMENT.—Section 504 of the Rehabilitation 

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

7 the end the following: 

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

9 Protection Act of 2016, an employer described under sub10 section (b) shall be liable for the acts of any individual 

11 whose harassment of a qualified individual with a dis12 ability has created or continued a hostile work environ13 ment, or a retaliatory hostile work environment, that con14 stitutes employment discrimination under this section if, 

15 at the time of the harassment— 

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

17 employer— 

18 ‘‘(A) to undertake or recommend tangible 

19 employment actions affecting the qualified indi20 vidual with a disability; or 

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

22 the qualified individual with a disability; or 

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

24 creation or continuation of that hostile work environ25 ment or retaliatory hostile work environment.’’. 


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

2 Act (29 U.S.C. 794a) is amended by adding at the end 

3 of subsection (a) the following: 

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

5 hostile work environment claims and retaliatory hos6 tile work environment claims under this section.’’. 

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

8 STATUTES. 

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

10 1981) is amended by adding at the end the following: 

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

12 Protection Act of 2016, a nongovernmental employer shall 

13 be liable for the acts of any individual whose harassment 

14 of an employee has created a hostile work environment 

15 or a retaliatory hostile work environment, constituting an 

16 unlawful employment practice, if, at the time of the har17 assment— 

18 ‘‘(1) such individual was authorized by the 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 or retaliatory hostile work environment.’’. 

4 SEC. 8. AMENDMENT TO THE GENETIC INFORMATION NON5 DISCRIMINATION ACT OF 2008. 

6 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS7 TILE WORK ENVIRONMENT.—Section 202 of the Genetic 

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

9 2000ff–1) is amended by adding at the end the following: 

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

11 Protection Act of 2016, an employer shall be liable for 

12 the acts of any individual whose harassment of an em13 ployee has created or continued a hostile work environ14 ment that constitutes an unlawful employment practice 

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

16 ‘‘(1) such individual was authorized by the em17 ployer— 

18 ‘‘(A) to undertake or recommend tangible 

19 employment actions affecting the employee; or 

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

21 activities; or 

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

23 creation or continuation of that hostile work environ24 ment.’’. 


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1 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE2 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 

3 207(f) of the Genetic Information Nondiscrimination Act 

4 (42 U.S.C. 2000ff–6(f)) is amended by striking ‘‘violations 

5 of this subsection.’’ and inserting ‘‘violations of this sub6 section. Subject to section 12 of the Fair Employment 

7 Protection Act of 2016, an employer shall be liable for 

8 the acts of any individual whose harassment of an em9 ployee has created or continued a retaliatory hostile work 

10 environment that constitutes discrimination under this 

11 subsection if, at the time of the harassment— 

12 ‘‘(1) such individual was authorized by the 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 SEC. 9. AMENDMENT TO THE GOVERNMENT EMPLOYEE 

22 RIGHTS ACT OF 1991. 

23 Section 302 of the Government Employee Rights Act 

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

25 the end the following: 


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

2 Protection Act of 2016, an employer of an individual de3 scribed under section 304(a) shall be liable for the acts 

4 of any individual whose harassment of a State employee 

5 described in section 304 has created or continued a hostile 

6 work environment or a retaliatory hostile work environ7 ment constituting discrimination under this section, if at 

8 the time of the harassment— 

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

10 employer— 

11 ‘‘(A) to undertake or recommend tangible 

12 employment actions affecting the employee; or 

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

14 activities; or 

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

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

18 SEC. 10. AMENDMENT TO TITLE 3 OF THE UNITED STATES 

19 CODE. 

20 Section 411 of title 3, United States Code, is amend21 ed— 

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

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

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


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

2 section 12 of the Fair Employment Protection Act of 

3 2016, an employing office shall be liable for the acts of 

4 any individual whose harassment of a covered employee 

5 has created or continued a hostile work environment or 

6 a retaliatory hostile work environment constituting dis7 crimination under this section if, at the time of the harass8 ment— 

9 ‘‘(1) such individual was authorized by the em10 ploying office— 

11 ‘‘(A) to undertake or recommend tangible 

12 employment actions affecting the covered em13 ployee; or 

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

15 work activities; or 

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

17 to the creation or continuation of that hostile work 

18 environment or retaliatory hostile work environ19 ment.’’; and 

20 (3) in subsection (f), as redesignated by para21 graph (2), by striking ‘‘subsections (a) through (c)’’ 

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


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1 SEC. 11. AMENDMENT TO THE CONGRESSIONAL ACCOUNT2 ABILITY ACT OF 1995. 

3 Section 201 of the Congressional Accountability Act 

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

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

6 and 

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

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

9 Protection Act of 2016, an employing office shall be liable 

10 for the acts of any individual whose harassment of a cov11 ered employee has created or continued a hostile work en12 vironment or a retaliatory hostile work environment that 

13 constitutes discrimination under this section if, at the time 

14 of the harassment— 

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

17 ‘‘(A) to undertake or recommend tangible 

18 employment actions affecting the covered em19 ployee; or 

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

21 work activities; or 

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

23 to the creation or continuation of that hostile work 

24 environment or retaliatory hostile work environ25 ment.’’. 


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1 SEC. 12. RULE OF CONSTRUCTION. 

2 Nothing in this Act shall be construed to limit the 

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

4 law. 

5 SEC. 13. SAVINGS CLAUSE. 

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

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

8 effect. 

9 SEC. 14. APPLICATION. 

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

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

12 enactment of this Act. 

Æ 


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