II

103D CONGRESS

2D SESSION S. 2238

To prohibit employment discrimination on the basis of sexual orientation.

IN THE SENATE OF THE UNITED STATES

JUNE 23 (legislative day, JUNE 7), 1994

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

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

FEINGOLD, Mrs. FEINSTEIN, Mr. GLENN, Mr. HARKIN, Mr. INOUYE, Mr.

KERRY, Mr. LAUTENBERG, Mr. LEAHY, Mr. LEVIN, Mr. LIEBERMAN,

Mr. METZENBAUM, Ms. MIKULSKI, Ms. MOSELEY-BRAUN, Mr. MOYNIHAN, Mrs. MURRAY, Mr. PELL, Mr. RIEGLE, 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 1994’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—The Congress finds that—
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1 (1) an individual’s sexual orientation bears no

2 relationship to the individual’s ability to contribute

3 fully to the economic and civic life of society;

4 (2) historically, American society has tended to

5 isolate, stigmatize, and persecute gay men, lesbians,

6 and bisexuals;

7 (3) one of the main areas in which gay men,

8 lesbians, and bisexuals face discrimination is employ9 ment;

10 (4) employment discrimination on the basis of

11 sexual orientation violates fundamental American

12 values of equality and fairness;

13 (5) the continuing existence of employment dis14 crimination on the basis of sexual orientation denies

15 gay men, lesbians, and bisexuals equal opportunity

16 in the workplace and affects interstate commerce;

17 (6) individuals who have experienced employ18 ment discrimination on the basis of sexual orienta19 tion often lack recourse under Federal law; and

20 (7) gay men, lesbians, and bisexuals have

21 historically been excluded from full participation in

22 the political process, comprise a discrete and insular

23 minority, and have historically been subjected to

24 purposeful unequal treatment based on characteris-
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1 tics not indicative of their ability to participate in or

2 contribute to society.

3 (b) PURPOSES.—It is the purpose of this Act—

4 (1) to provide a comprehensive Federal prohibi5 tion of employment discrimination on the basis of

6 sexual orientation;

7 (2) to provide meaningful and effective rem8 edies for employment discrimination on the basis of

9 sexual orientation; and

10 (3) to invoke congressional powers, including

11 the powers to enforce the 14th amendment to the

12 Constitution and to regulate commerce, in order to

13 prohibit employment discrimination on the basis of

14 sexual orientation.

15 SEC. 3. DISCRIMINATION PROHIBITED.

16 A covered entity, in connection with employment or

17 employment opportunities, shall not—

18 (1) subject an individual to different standards

19 or treatment on the basis of sexual orientation;

20 (2) discriminate against an individual based on

21 the sexual orientation of persons with whom such in22 dividual is believed to associate or to have associ23 ated; or

24 (3) otherwise discriminate against an individual

25 on the basis of sexual orientation.
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1 SEC. 4. BENEFITS.

2 This Act does not apply to the provision of employee

3 benefits to an individual for the benefit of his or her

4 partner.

5 SEC. 5. NO DISPARATE IMPACT.

6 The fact that an employment practice has a disparate

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

8 703(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–

9 2(k)), on the basis of sexual orientation does not establish

10 a prima facie violation of this Act.

11 SEC. 6. QUOTAS AND PREFERENTIAL TREATMENT PROHIB12 ITED.

13 (a) QUOTAS.—A covered entity shall not adopt or im14 plement a quota on the basis of sexual orientation.

15 (b) PREFERENTIAL TREATMENT.—A covered entity

16 shall not give preferential treatment to an individual on

17 the basis of sexual orientation.

18 SEC. 7. RELIGIOUS EXEMPTION.

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

20 (b), this Act shall not apply to religious organizations.

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

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

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

24 Code of 1986 as in effect on the date of the enactment

25 of this Act.
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1 SEC. 8. NON-APPLICATION TO MEMBERS OF THE ARMED

2 FORCES; VETERANS’ PREFERENCES.

3 (a) ARMED FORCES.—

4 (1) For purposes of this Act, the term ‘‘employ5 ment or employment opportunities’’ does not apply

6 to the relationship between the United States and

7 members of the Armed Forces.

8 (2) As used in paragraph (1), the term ‘‘Armed

9 Forces’’ means the Army, Navy, Air Force, Marine

10 Corps, and Coast Guard.

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

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

13 law creating special rights or preferences for veterans.

14 SEC. 9. ENFORCEMENT.

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

16 administration and enforcement of this Act—

17 (1) the Commission and the Librarian of Con18 gress shall have the same powers, respectively, as

19 the Commission and the Librarian of Congress have

20 to administer and enforce title VII of the Civil

21 Rights Act of 1964 (42 U.S.C. 2000e et seq.);

22 (2) the Attorney General of the United States

23 shall have the same powers as the Attorney General

24 has to administer and enforce such title; and

25 (3) the district courts of the United States shall

26 have the same jurisdiction and powers as such
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1 courts have to enforce such title and section 309 of

2 the Civil Rights Act of 1991 (2 U.S.C. 1209).

3 (b) PROCEDURES AND REMEDIES.—The procedures

4 and remedies applicable to a claim for a violation of this

5 Act are as follows:

6 (1) For a violation alleged by an individual,

7 other than an individual specified in paragraph (2)

8 or (3), the procedures and remedies applicable to a

9 claim brought by an individual for a violation of title

10 VII of the Civil Rights Act of 1964 (42 U.S.C.

11 2000e et seq.) shall apply.

12 (2) For a violation alleged by an employee of

13 the House of Representatives or of an instrumental14 ity of the Congress, the procedures and remedies ap15 plicable to a claim by such employee for a violation

16 of section 117 of the Civil Rights Act of 1991 (2

17 U.S.C. 60l) shall apply.

18 (3) For a violation alleged by an employee of

19 the Senate, the procedures and remedies applicable

20 to a claim by such employee for a violation of section

21 302 of the Civil Rights Act of 1991 (2 U.S.C. 1202)

22 shall apply.

23 SEC. 10. STATE AND FEDERAL IMMUNITY.

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

25 under the 11th amendment to the Constitution of the
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1 United States from an action in a Federal court of com2 petent jurisdiction for a violation of this Act. In an action

3 against a State for a violation of this Act, remedies (in4 cluding remedies at law and in equity) are available for

5 the violation to the same extent as such remedies are avail6 able in an action against any public or private entity other

7 than a State.

8 (b) LIABILITY OF THE UNITED STATES.—The Unit9 ed States shall be liable for all remedies under this Act

10 to the same extent as a private person and shall be liable

11 to the same extent as a nonpublic party for interest to

12 compensate for delay in payment.

13 SEC. 11. ATTORNEYS’ FEES.

14 In any action or administrative proceeding com15 menced pursuant to this Act, the court or the Commission,

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

17 than the United States, a reasonable attorneys’ fee, in18 cluding expert fees and other litigation expenses, and

19 costs. The United States shall be liable for the foregoing

20 the same as a private person.

21 SEC. 12. RETALIATION AND COERCION PROHIBITED.

22 (a) RETALIATION.—A covered entity shall not dis23 criminate against an individual because such individual

24 opposed any act or practice prohibited by this Act or be25 cause such individual made a charge, assisted, testified,
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1 or participated in any manner in an investigation, proceed2 ing, or hearing under this Act.

3 (b) COERCION.—A person shall not coerce, intimi4 date, threaten, or interfere with any individual in the exer5 cise or enjoyment of or on account of his or her having

6 exercised, enjoyed, assisted, or encouraged the exercise or

7 enjoyment of, any right protected by this Act.

8 SEC. 13. POSTING NOTICES.

9 A covered entity shall post notices for employees, ap10 plicants for employment, and members describing the ap11 plicable provisions of this Act, in the manner prescribed

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

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

14 SEC. 14. REGULATIONS.

15 The Commission shall have the authority to issue reg16 ulations to carry out this Act.

17 SEC. 15. RELATIONSHIP TO OTHER LAWS.

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

20 discrimination prohibited under any other Federal law or

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

22 SEC. 16. SEVERABILITY.

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

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

2 affected thereby.

3 SEC. 17. EFFECTIVE DATE.

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

5 the enactment of this Act, and shall not apply to conduct

6 occurring before such effective date.

7 SEC. 18. DEFINITIONS.

8 As used in this Act—

9 (1) the term ‘‘commerce’’ has the meaning

10 given such term in section 701(g) of the Civil Rights

11 Act of 1964 (42 U.S.C. 2000e(g));

12 (2) the term ‘‘Commission’’ means the Equal

13 Employment Opportunity Commission established by

14 section 705 of the Civil Rights Act of 1964 (42

15 U.S.C. 2000e–4);

16 (3) the term ‘‘covered entity’’ means an em17 ployer, employment agency, labor organization, joint

18 labor-management committee, an entity to which

19 section 717(a) of the Civil Rights Act of 1964 (42

20 U.S.C. 2000e(a)) applies, an employing authority of

21 the House of Representatives, an employing office of

22 the Senate, or an instrumentality of the Congress;

23 (4) the term ‘‘employee of the Senate’’ has the

24 meaning given such term in section 301(c) of the

25 Civil Rights Act of 1991 (2 U.S.C. 1201(c));
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1 (5) the term ‘‘employer’’ has the meaning given

2 such term in section 701(b) of the Civil Rights Act

3 of 1964 (42 U.S.C. 2000e(b));

4 (6) the term ‘‘employment agency’’ has the

5 meaning given such term in section 701(c) of the

6 Civil Rights Act of 1964 (42 U.S.C. 2000e(c));

7 (7) the term ‘‘employment or employment op8 portunities’’ includes job application procedures, hir9 ing, advancement, discharge, compensation, job

10 training, or any other term, condition, or privilege of

11 employment;

12 (8) the term ‘‘instrumentalities of the Con13 gress’’ has the meaning given such term in section

14 117(b)(4) of the Civil Rights Act of 1991 (2 U.S.C.

15 60l(b)(4));

16 (9) the term ‘‘labor organization’’ has the

17 meaning given such term in section 701(d) of the

18 Civil Rights Act of 1964 (42 U.S.C. 2000e(d));

19 (10) the term ‘‘person’’ has the meaning given

20 such term in section 701(a) of the Civil Rights Act

21 of 1964 (42 U.S.C. 2000e(a));

22 (11) the term ‘‘religious organization’’ means—

23 (A) a religious corporation, association, or

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

2 educational institution, not otherwise a religious

3 organization, if—

4 (i) it is in whole or substantial part

5 controlled, managed, owned, or supported

6 by a religious corporation, association, or

7 society; or

8 (ii) its curriculum is directed toward

9 the propagation of a particular religion;

10 (12) the term ‘‘sexual orientation’’ means les11 bian, gay, bisexual, or heterosexual orientation, real

12 or perceived, as manifested by identity, acts, state13 ments, or associations; and

14 (13) the term ‘‘State’’ has the meaning given

15 such term in section 701(i) of the Civil Rights Act

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

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