II

104TH CONGRESS

1ST SESSION S. 932

To prohibit employment discrimination on the basis of sexual orientation.

IN THE SENATE OF THE UNITED STATES

JUNE 15 (legislative day, JUNE 5), 1995

Mr. JEFFORDS (for himself, Mr. KENNEDY, Mr. CHAFEE, Mr. AKAKA, Mr.

BINGAMAN, Mrs. BOXER, Mr. BRADLEY, Mr. DODD, Mr. FEINGOLD, Mrs.

FEINSTEIN, Mr. GLENN, Mr. HARKIN, Mr. INOUYE, Mr. KERREY, Mr.

KERRY, Mr. KOHL, Mr. LAUTENBERG, Mr. LEAHY, Mr. LEVIN, Mr.

LIEBERMAN, Ms. MIKULSKI, Ms. MOSELEY-BRAUN, Mr. MOYNIHAN, Mrs.

MURRAY, Mr. PACKWOOD, Mr. PELL, Mr. ROBB, Mr. SARBANES, Mr.

SIMON, and Mr. WELLSTONE) introduced the following bill; which was

read twice and referred to the Committee on Labor and Human Resources

A BILL

To prohibit employment discrimination on the basis of sexual

orientation.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Employment Non5 discrimination Act of 1995’’.

6 SEC. 2. PURPOSES.

7 It is the purpose of this Act—
2

•S 932 IS

1 (1) to provide a comprehensive Federal prohibi2 tion of employment discrimination on the basis of

3 sexual orientation;

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

6 sexual orientation; and

7 (3) to invoke congressional powers, including

8 the powers to enforce the 14th amendment to the

9 Constitution and to regulate commerce, in order to

10 prohibit employment discrimination on the basis of

11 sexual orientation.

12 SEC. 3. DEFINITIONS.

13 As used in this Act:

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

15 means the Equal Employment Opportunity Commis16 sion.

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

19 organization, joint labor management committee, an

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

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

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

23 the Government Employee Rights Act of 1991 (2

24 U.S.C. 1202(a)(1)) applies, or an employing author-
3

•S 932 IS

1 ity to which section 201(a) of the Congressional Ac2 countability Act of 1995 (2 U.S.C. 1311(a)) applies.

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

4 meaning given such term in section 701(b) of the

5 Civil Rights Act of 1964 (42 U.S.C. 2000e(b)).

6 (4) EMPLOYMENT AGENCY.—The term ‘‘em7 ployment agency’’ has the meaning given such term

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

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

10 (5) EMPLOYMENT OR EMPLOYMENT OPPORTU11 NITIES.—Except as provided in section 9(a)(1), the

12 term ‘‘employment or employment opportunities’’ in13 cludes job application procedures, hiring, advance14 ment, discharge, compensation, job training, or any

15 other term, condition, or privilege of employment.

16 (6) LABOR ORGANIZATION.—The term ‘‘labor

17 organization’’ has the meaning given such term in

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

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

20 (7) PERSON.—The term ‘‘person’’ has the

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

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

23 (8) RELIGIOUS ORGANIZATION.—The term ‘‘re24 ligious organization’’ means—
4

•S 932 IS

1 (A) a religious corporation, association, or

2 society; or

3 (B) a college, school, university, or other

4 educational institution, not otherwise a religious

5 organization, if—

6 (i) it is in whole or substantial part

7 controlled, managed, owned, or supported

8 by a religious corporation, association, or

9 society; or

10 (ii) its curriculum is directed toward

11 the propagation of a particular religion.

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

13 orientation’’ means homosexuality, bisexuality, or

14 heterosexuality, whether such orientation is real or

15 perceived.

16 (10) STATE.—The term ‘‘State’’ has the mean17 ing given such term in section 701(i) of the Civil

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

19 SEC. 4. DISCRIMINATION PROHIBITED.

20 A covered entity, in connection with employment or

21 employment opportunities, shall not—

22 (1) subject an individual to a different standard

23 or different treatment on the basis of sexual orienta24 tion;
5

•S 932 IS

1 (2) discriminate against an individual based on

2 the sexual orientation of a person with whom such

3 individual is believed to associate or to have associ4 ated; or

5 (3) otherwise discriminate against an individual

6 on the basis of sexual orientation.

7 SEC. 5. BENEFITS.

8 This Act does not apply to the provision of employee

9 benefits to an individual for the benefit of such individ10 ual’s partner.

11 SEC. 6. NO DISPARATE IMPACT.

12 The fact that an employment practice has a disparate

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

14 703(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–

15 2(k)), on the basis of sexual orientation does not establish

16 a prima facie violation of this Act.

17 SEC. 7. QUOTAS AND PREFERENTIAL TREATMENT PROHIB18 ITED.

19 (a) QUOTAS.—A covered entity shall not adopt or im20 plement a quota on the basis of sexual orientation.

21 (b) PREFERENTIAL TREATMENT.—A covered entity

22 shall not give preferential treatment to an individual on

23 the basis of sexual orientation.
6

•S 932 IS

1 SEC. 8. RELIGIOUS EXEMPTION.

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

3 (b), this Act shall not apply to a religious organization.

4 (b) FOR-PROFIT ACTIVITIES.—This Act shall apply

5 with respect to employment and employment opportunities

6 that relate to any employment position that pertains solely

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

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

9 Code of 1986.

10 SEC. 9. NONAPPLICATION TO MEMBERS OF THE ARMED

11 FORCES; VETERANS’ PREFERENCES.

12 (a) ARMED FORCES.—

13 (1) EMPLOYMENT OR EMPLOYMENT OPPORTU14 NITIES.—For purposes of this Act, the term ‘‘em15 ployment or employment opportunities’’ does not

16 apply to the relationship between the United States

17 and members of the Armed Forces.

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

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

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

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

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

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

24 SEC. 10. ENFORCEMENT.

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

26 administration and enforcement of this Act in the case of
7

•S 932 IS

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

2 Act—

3 (1) the Commission shall have the same powers

4 as the Commission has to administer and enforce—

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

6 1964 (42 U.S.C. 2000e et seq.); or

7 (B) sections 302, 303, and 304 of the Gov8 ernment Employee Rights Act of 1991 (2

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

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

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

12 such Act, respectively;

13 (2) the Librarian of Congress shall have the

14 same powers as the Librarian of Congress has to ad15 minister and enforce title VII of the Civil Rights Act

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

17 claim alleged by such individual for a violation of

18 such title;

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

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

21 1301) shall have the same powers as the Board has

22 to administer and enforce the Congressional Ac23 countability Act of 1995 in the case of a claim al24 leged by such individual for a violation of section

25 201(a)(1) of such Act;
8

•S 932 IS

1 (4) the Attorney General shall have the same

2 powers as the Attorney General has to administer

3 and enforce—

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

5 1964 (42 U.S.C. 2000e et seq.); or

6 (B) sections 302, 303, and 304 of the Gov7 ernment Employee Rights Act of 1991 (2

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

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

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

11 such Act, respectively; and

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

13 same jurisdiction and powers as such court has to

14 enforce—

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

16 1964 (42 U.S.C. 2000e et seq.) in the case of

17 a claim alleged by such individual for a viola18 tion of such title;

19 (B) sections 302, 303, and 304 of the Gov20 ernment Employee Rights Act of 1991 (2

21 U.S.C. 1202, 1203, and 1204) in the case of a

22 claim alleged by such individual for a violation

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

24 (C) the Congressional Accountability Act

25 of 1995 (2 U.S.C. 1301 et seq.) in the case of
9

•S 932 IS

1 a claim alleged by such individual for a viola2 tion of section 201(a)(1) of such Act.

3 (b) PROCEDURES AND REMEDIES.—The procedures

4 and remedies applicable to a claim alleged by an individual

5 for a violation of this Act are—

6 (1) the procedures and remedies applicable for

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

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

9 claim alleged by such individual for a violation of

10 such title;

11 (2) the procedures and remedies applicable for

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

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

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

15 a violation of such section; and

16 (3) the procedures and remedies applicable for

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

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

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

20 violation of such section.

21 (c) OTHER APPLICABLE PROVISIONS.—With respect

22 to claims alleged by a covered employee (as defined in sec23 tion 101 of the Congressional Accountability Act of 1995

24 (2 U.S.C. 1301)) for a violation of this Act, title III of

25 the Congressional Accountability Act of 1995 shall apply
10

•S 932 IS

1 in the same manner as such title applies with respect to

2 a claim alleged by such a covered employee for a violation

3 of section 201(a)(1) of such Act.

4 SEC. 11. FEDERAL AND STATE IMMUNITY.

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

6 under the eleventh amendment to the Constitution of the

7 United States from an action in a Federal court of com8 petent jurisdiction for a violation of this Act. In an action

9 against a State for a violation of this Act, remedies (in10 cluding remedies at law and in equity) are available for

11 the violation to the same extent as such remedies are avail12 able in an action against any public or private entity other

13 than a State.

14 (b) LIABILITY OF THE UNITED STATES.—The Unit15 ed States shall be liable for all remedies (excluding puni16 tive damages) under this Act to the same extent as a pri17 vate person and shall be liable to the same extent as a

18 nonpublic party for interest to compensate for delay in

19 payment.

20 SEC. 12. ATTORNEYS’ FEES.

21 In any action or administrative proceeding com22 menced pursuant to this Act, the court or the Commission,

23 in its discretion, may allow the prevailing party, other

24 than the United States, a reasonable attorney’s fee, in25 cluding expert fees and other litigation expenses, and
11

•S 932 IS

1 costs. The United States shall be liable for the fees, ex2 penses and costs described in the preceding sentence the

3 same as a private person.

4 SEC. 13. RETALIATION AND COERCION PROHIBITED.

5 (a) RETALIATION.—A covered entity shall not dis6 criminate against an individual because such individual

7 opposed any act or practice prohibited by this Act or be8 cause such individual made a charge, assisted, testified,

9 or participated in any manner in an investigation, proceed10 ing, or hearing under this Act.

11 (b) COERCION.—A person shall not coerce, intimi12 date, threaten, or interfere with any individual in the exer13 cise or enjoyment of, or on account of such individual’s

14 having exercised, enjoyed, assisted, or encouraged the ex15 ercise or enjoyment of, any right granted or protected by

16 this Act.

17 SEC. 14. POSTING NOTICES.

18 A covered entity shall post notices for employees, ap19 plicants for employment, and members describing the ap20 plicable provisions of this Act in the manner prescribed

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

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

23 SEC. 15. REGULATIONS.

24 The Commission shall have authority to issue regula25 tions to carry out this Act.
12

•S 932 IS

1 SEC. 16. RELATIONSHIP TO OTHER LAWS.

2 This Act shall not invalidate or limit the rights, rem3 edies, or procedures available to an individual claiming

4 discrimination prohibited under any other Federal law or

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

6 SEC. 17. SEVERABILITY.

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

8 provision to any person or circumstance, is held to be in9 valid, the remainder of this Act and the application of such

10 provision to other persons or circumstances shall not be

11 affected by such invalidity.

12 SEC. 18. EFFECTIVE DATE.

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

14 enactment of this Act and shall not apply to conduct oc15 curring before such effective date.

Æ