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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 811 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 811

     To prohibit employment discrimination on the basis of sexual 
                    orientation or gender identity.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             April 13, 2011

   Mr. Merkley (for himself, Mr. Kirk, Mr. Harkin, and Ms. Collins) 
introduced the following bill; which was read twice and referred to the 
          Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL

 
     To prohibit employment discrimination on the basis of sexual 
                    orientation or gender identity.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Employment Non-Discrimination Act of 
2011''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to address the history and widespread pattern of 
        discrimination on the basis of sexual orientation or gender 
        identity by private sector employers and local, State, and 
        Federal government employers;
            (2) to provide a comprehensive Federal prohibition of 
        employment discrimination on the basis of sexual orientation or 
        gender identity, including meaningful and effective remedies 
        for any such discrimination; and
            (3) to invoke congressional powers, including the powers to 
        enforce the 14th Amendment to the Constitution, and to regulate 
        interstate commerce and provide for the general welfare 
        pursuant to section 8 of article I of the Constitution, in 
        order to prohibit employment discrimination on the basis of 
        sexual orientation or gender identity.

SEC. 3. DEFINITIONS.

    (a) In General.--In this Act:
            (1) Commission.--The term ``Commission'' means the Equal 
        Employment Opportunity Commission.
            (2) Covered entity.--The term ``covered entity'' means an 
        employer, employment agency, labor organization, or joint 
        labor-management committee.
            (3) Employee.--
                    (A) In general.--The term ``employee'' means--
                            (i) an employee as defined in section 
                        701(f) of the Civil Rights Act of 1964 (42 
                        U.S.C. 2000e(f));
                            (ii) a State employee to which section 
                        302(a)(1) of the Government Employee Rights Act 
                        of 1991 (42 U.S.C. 2000e-16b(a)(1)) applies;
                            (iii) a covered employee, as defined in 
                        section 101 of the Congressional Accountability 
                        Act of 1995 (2 U.S.C. 1301) or section 411(c) 
                        of title 3, United States Code; or
                            (iv) an employee or applicant to which 
                        section 717(a) of the Civil Rights Act of 1964 
                        (42 U.S.C. 2000e-16(a)) applies.
                    (B) Exception.--The provisions of this Act that 
                apply to an employee or individual shall not apply to a 
                volunteer who receives no compensation.
            (4) Employer.--The term ``employer'' means--
                    (A) a person engaged in an industry affecting 
                commerce (as defined in section 701(h) of the Civil 
                Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or 
                more employees (as defined in subparagraphs (A)(i) and 
                (B) of paragraph (3)) for each working day in each of 
                20 or more calendar weeks in the current or preceding 
                calendar year, and any agent of such a person, but does 
                not include a bona fide private membership club (other 
                than a labor organization) that is exempt from taxation 
                under section 501(c) of the Internal Revenue Code of 
                1986;
                    (B) an employing authority to which section 
                302(a)(1) of the Government Employee Rights Act of 1991 
                applies;
                    (C) an employing office, as defined in section 101 
                of the Congressional Accountability Act of 1995 or 
                section 411(c) of title 3, United States Code; or
                    (D) an entity to which section 717(a) of the Civil 
                Rights Act of 1964 applies.
            (5) Employment agency.--The term ``employment agency'' has 
        the meaning given the term in section 701(c) of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000e(c)).
            (6) Gender identity.--The term ``gender identity'' means 
        the gender-related identity, appearance, or mannerisms or other 
        gender-related characteristics of an individual, with or 
        without regard to the individual's designated sex at birth.
            (7) Labor organization.--The term ``labor organization'' 
        has the meaning given the term in section 701(d) of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000e(d)).
            (8) Person.--The term ``person'' has the meaning given the 
        term in section 701(a) of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e(a)).
            (9) Sexual orientation.--The term ``sexual orientation'' 
        means homosexuality, heterosexuality, or bisexuality.
            (10) State.--The term ``State'' has the meaning given the 
        term in section 701(i) of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e(i)).
    (b) Application of Definitions.--For purposes of this section, a 
reference in section 701 of the Civil Rights Act of 1964--
            (1) to an employee or an employer shall be considered to 
        refer to an employee (as defined in subsection (a)(3)) or an 
        employer (as defined in subsection (a)(4)), respectively, 
        except as provided in paragraph (2) of this subsection; and
            (2) to an employer in subsection (f) of that section shall 
        be considered to refer to an employer (as defined in subsection 
        (a)(4)(A)).

SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.

    (a) Employer Practices.--It shall be an unlawful employment 
practice for an employer--
            (1) to fail or refuse to hire or to discharge any 
        individual, or otherwise discriminate against any individual 
        with respect to the compensation, terms, conditions, or 
        privileges of employment of the individual, because of such 
        individual's actual or perceived sexual orientation or gender 
        identity; or
            (2) to limit, segregate, or classify the employees or 
        applicants for employment of the employer in any way that would 
        deprive or tend to deprive any individual of employment or 
        otherwise adversely affect the status of the individual as an 
        employee, because of such individual's actual or perceived 
        sexual orientation or gender identity.
    (b) Employment Agency Practices.--It shall be an unlawful 
employment practice for an employment agency to fail or refuse to refer 
for employment, or otherwise to discriminate against, any individual 
because of the actual or perceived sexual orientation or gender 
identity of the individual or to classify or refer for employment any 
individual on the basis of the actual or perceived sexual orientation 
or gender identity of the individual.
    (c) Labor Organization Practices.--It shall be an unlawful 
employment practice for a labor organization--
            (1) to exclude or to expel from its membership, or 
        otherwise to discriminate against, any individual because of 
        the actual or perceived sexual orientation or gender identity 
        of the individual;
            (2) to limit, segregate, or classify its membership or 
        applicants for membership, or to classify or fail or refuse to 
        refer for employment any individual, in any way that would 
        deprive or tend to deprive any individual of employment, or 
        would limit such employment or otherwise adversely affect the 
        status of the individual as an employee or as an applicant for 
        employment because of such individual's actual or perceived 
        sexual orientation or gender identity; or
            (3) to cause or attempt to cause an employer to 
        discriminate against an individual in violation of this 
        section.
    (d) Training Programs.--It shall be an unlawful employment practice 
for any employer, labor organization, or joint labor-management 
committee controlling apprenticeship or other training or retraining, 
including on-the-job training programs, to discriminate against any 
individual because of the actual or perceived sexual orientation or 
gender identity of the individual in admission to, or employment in, 
any program established to provide apprenticeship or other training.
    (e) Association.--An unlawful employment practice described in any 
of subsections (a) through (d) shall be considered to include an action 
described in that subsection, taken against an individual based on the 
actual or perceived sexual orientation or gender identity of a person 
with whom the individual associates or has associated.
    (f) No Preferential Treatment or Quotas.--Nothing in this Act shall 
be construed or interpreted to require or permit--
            (1) any covered entity to grant preferential treatment to 
        any individual or to any group because of the actual or 
        perceived sexual orientation or gender identity of such 
        individual or group on account of an imbalance which may exist 
        with respect to the total number or percentage of persons of 
        any actual or perceived sexual orientation or gender identity 
        employed by any employer, referred or classified for employment 
        by any employment agency or labor organization, admitted to 
        membership or classified by any labor organization, or admitted 
        to, or employed in, any apprenticeship or other training 
        program, in comparison with the total number or percentage of 
        persons of such actual or perceived sexual orientation or 
        gender identity in any community, State, section, or other 
        area, or in the available work force in any community, State, 
        section, or other area; or
            (2) the adoption or implementation by a covered entity of a 
        quota on the basis of actual or perceived sexual orientation or 
        gender identity.
    (g) Disparate Impact.--Only disparate treatment claims may be 
brought under this Act.

SEC. 5. RETALIATION PROHIBITED.

    It shall be an unlawful employment practice for a covered entity to 
discriminate against an individual because such individual--
            (1) opposed any practice made an unlawful employment 
        practice by this Act; or
            (2) made a charge, testified, assisted, or participated in 
        any manner in an investigation, proceeding, or hearing under 
        this Act.

SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

    This Act shall not apply to a corporation, association, educational 
institution or institution of learning, or society that is exempt from 
the religious discrimination provisions of title VII of the Civil 
Rights Act of 1964 pursuant (42 U.S.C. 2000e et seq.) to section 702(a) 
or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)).

SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS' 
              PREFERENCES.

    (a) Armed Forces.--
            (1) Employment.--In this Act, the term ``employment'' does 
        not apply to the relationship between the United States and 
        members of the Armed Forces.
            (2) Armed forces.--In paragraph (1) the term ``Armed 
        Forces'' means the Army, Navy, Air Force, Marine Corps, and 
        Coast Guard.
    (b) Veterans' Preferences.--This title does not repeal or modify 
any Federal, State, territorial, or local law creating a special right 
or preference concerning employment for a veteran.

SEC. 8. CONSTRUCTION.

    (a) Employer Rules and Policies.--
            (1) In general.--Nothing in this Act shall be construed to 
        prohibit a covered entity from enforcing rules and policies 
        that do not intentionally circumvent the purposes of this Act, 
        if the rules or policies are designed for, and uniformly 
        applied to, all individuals regardless of actual or perceived 
        sexual orientation or gender identity.
            (2) Sexual harassment.--Nothing in this Act shall be 
        construed to limit a covered entity from taking adverse action 
        against an individual because of a charge of sexual harassment 
        against that individual, provided that rules and policies on 
        sexual harassment, including when adverse action is taken, are 
        designed for, and uniformly applied to, all individuals 
        regardless of actual or perceived sexual orientation or gender 
        identity.
            (3) Certain shared facilities.--Nothing in this Act shall 
        be construed to establish an unlawful employment practice based 
        on actual or perceived gender identity due to the denial of 
        access to shared shower or dressing facilities in which being 
        seen unclothed is unavoidable, provided that the employer 
        provides reasonable access to adequate facilities that are not 
        inconsistent with the employee's gender identity as established 
        with the employer at the time of employment or upon 
        notification to the employer that the employee has undergone or 
        is undergoing gender transition, whichever is later.
            (4) Additional facilities not required.--Nothing in this 
        Act shall be construed to require the construction of new or 
        additional facilities.
            (5) Dress and grooming standards.--Nothing in this Act 
        shall prohibit an employer from requiring an employee, during 
        the employee's hours at work, to adhere to reasonable dress or 
        grooming standards not prohibited by other provisions of 
        Federal, State, or local law, provided that the employer 
        permits any employee who has undergone gender transition prior 
        to the time of employment, and any employee who has notified 
        the employer that the employee has undergone or is undergoing 
        gender transition after the time of employment, to adhere to 
        the same dress or grooming standards as apply for the gender to 
        which the employee has transitioned or is transitioning.
    (b) Employee Benefits.--Nothing in this Act shall be construed to 
require a covered entity to treat an unmarried couple in the same 
manner as the covered entity treats a married couple for purposes of 
employee benefits.
    (c) Definition of Marriage.--In this Act, the term ``married'' 
refers to marriage as such term is defined in section 7 of title 1, 
United States Code (commonly known as the ``Defense of Marriage Act'').

SEC. 9. COLLECTION OF STATISTICS PROHIBITED.

    The Commission shall not collect statistics on actual or perceived 
sexual orientation or gender identity from covered entities, or compel 
the collection of such statistics by covered entities.

SEC. 10. ENFORCEMENT.

    (a) Enforcement Powers.--With respect to the administration and 
enforcement of this Act in the case of a claim alleged by an individual 
for a violation of this Act--
            (1) the Commission shall have the same powers as the 
        Commission has to administer and enforce--
                    (A) title VII of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e et seq.); or
                    (B) sections 302 and 304 of the Government Employee 
                Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c),
        in the case of a claim alleged by such individual for a 
        violation of such title, or of section 302(a)(1) of the 
        Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
        16b(a)(1)), respectively;
            (2) the Librarian of Congress shall have the same powers as 
        the Librarian of Congress has to administer and enforce title 
        VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 
        in the case of a claim alleged by such individual for a 
        violation of such title;
            (3) the Board (as defined in section 101 of the 
        Congressional Accountability Act of 1995 (2 U.S.C. 1301)) shall 
        have the same powers as the Board has to administer and enforce 
        the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et 
        seq.) in the case of a claim alleged by such individual for a 
        violation of section 201(a)(1) of such Act (2 U.S.C. 
        1311(a)(1));
            (4) the Attorney General shall have the same powers as the 
        Attorney General has to administer and enforce--
                    (A) title VII of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e et seq.); or
                    (B) sections 302 and 304 of the Government Employee 
                Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c);
        in the case of a claim alleged by such individual for a 
        violation of such title, or of section 302(a)(1) of the 
        Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
        16b(a)(1)), respectively;
            (5) the President, the Commission, and the Merit Systems 
        Protection Board shall have the same powers as the President, 
        the Commission, and the Board, respectively, have to administer 
        and enforce chapter 5 of title 3, United States Code, in the 
        case of a claim alleged by such individual for a violation of 
        section 411 of such title; and
            (6) a court of the United States shall have the same 
        jurisdiction and powers as the court has to enforce--
                    (A) title VII of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e et seq.) in the case of a claim alleged by 
                such individual for a violation of such title;
                    (B) sections 302 and 304 of the Government Employee 
                Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c) 
                in the case of a claim alleged by such individual for a 
                violation of section 302(a)(1) of such Act (42 U.S.C. 
                2000e-16b(a)(1));
                    (C) the Congressional Accountability Act of 1995 (2 
                U.S.C. 1301 et seq.) in the case of a claim alleged by 
                such individual for a violation of section 201(a)(1) of 
                such Act (2 U.S.C. 1311(a)(1)); and
                    (D) chapter 5 of title 3, United States Code, in 
                the case of a claim alleged by such individual for a 
                violation of section 411 of such title.
    (b) Procedures and Remedies.--The procedures and remedies 
applicable to a claim alleged by an individual for a violation of this 
Act are--
            (1) the procedures and remedies applicable for a violation 
        of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e 
        et seq.) in the case of a claim alleged by such individual for 
        a violation of such title;
            (2) the procedures and remedies applicable for a violation 
        of section 302(a)(1) of the Government Employee Rights Act of 
        1991 (42 U.S.C. 2000e-16b(a)(1)) in the case of a claim alleged 
        by such individual for a violation of such section;
            (3) the procedures and remedies applicable for a violation 
        of section 201(a)(1) of the Congressional Accountability Act of 
        1995 (2 U.S.C. 1311(a)(1)) in the case of a claim alleged by 
        such individual for a violation of such section; and
            (4) the procedures and remedies applicable for a violation 
        of section 411 of title 3, United States Code, in the case of a 
        claim alleged by such individual for a violation of such 
        section.
    (c) Other Applicable Provisions.--With respect to a claim alleged 
by a covered employee (as defined in section 101 of the Congressional 
Accountability Act of 1995 (2 U.S.C. 1301)) for a violation of this 
Act, title III of the Congressional Accountability Act of 1995 (2 
U.S.C. 1381 et seq.) shall apply in the same manner as such title 
applies with respect to a claim alleged by such a covered employee for 
a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).

SEC. 11. STATE AND FEDERAL IMMUNITY.

    (a) Abrogation of State Immunity.--A State shall not be immune 
under the 11th Amendment to the Constitution from a suit brought in a 
Federal court of competent jurisdiction for a violation of this Act.
    (b) Waiver of State Immunity.--
            (1) In general.--
                    (A) Waiver.--A State's receipt or use of Federal 
                financial assistance for any program or activity of a 
                State shall constitute a waiver of sovereign immunity, 
                under the 11th Amendment to the Constitution or 
                otherwise, to a suit brought by an employee or 
                applicant for employment of that program or activity 
                under this Act for a remedy authorized under subsection 
                (d).
                    (B) Definition.--In this paragraph, the term 
                ``program or activity'' has the meaning given the term 
                in section 606 of the Civil Rights Act of 1964 (42 
                U.S.C. 2000d-4a).
            (2) Effective date.--With respect to a particular program 
        or activity, paragraph (1) applies to conduct occurring on or 
        after the day, after the date of enactment of this Act, on 
        which a State first receives or uses Federal financial 
        assistance for that program or activity.
    (c) Remedies Against State Officials.--An official of a State may 
be sued in the official capacity of the official by any employee or 
applicant for employment who has complied with the applicable 
procedures of section 10, for equitable relief that is authorized under 
this Act. In such a suit the court may award to the prevailing party 
those costs authorized by section 722 of the Revised Statutes (42 
U.S.C. 1988).
    (d) Remedies Against the United States and the States.--
Notwithstanding any other provision of this Act, in an action or 
administrative proceeding against the United States or a State for a 
violation of this Act, remedies (including remedies at law and in 
equity, and interest) are available for the violation to the same 
extent as the remedies are available for a violation of title VII of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private 
entity, except that--
            (1) punitive damages are not available; and
            (2) compensatory damages are available to the extent 
        specified in section 1977A(b) of the Revised Statutes (42 
        U.S.C. 1981a(b)).

SEC. 12. ATTORNEYS' FEES.

    Notwithstanding any other provision of this Act, in an action or 
administrative proceeding for a violation of this Act, an entity 
described in section 10(a) (other than paragraph (4) of such section), 
in the discretion of the entity, may allow the prevailing party, other 
than the Commission or the United States, a reasonable attorney's fee 
(including expert fees) as part of the costs. The Commission and the 
United States shall be liable for the costs to the same extent as a 
private person.

SEC. 13. POSTING NOTICES.

    A covered entity who is required to post notices described in 
section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) shall 
post notices for employees, applicants for employment, and members, to 
whom the provisions specified in section 10(b) apply, that describe the 
applicable provisions of this Act in the manner prescribed by, and 
subject to the penalty provided under, section 711 of the Civil Rights 
Act of 1964.

SEC. 14. REGULATIONS.

    (a) In General.--Except as provided in subsections (b), (c), and 
(d), the Commission shall have authority to issue regulations to carry 
out this Act.
    (b) Librarian of Congress.--The Librarian of Congress shall have 
authority to issue regulations to carry out this Act with respect to 
employees and applicants for employment of the Library of Congress.
    (c) Board.--The Board referred to in section 10(a)(3) shall have 
authority to issue regulations to carry out this Act, in accordance 
with section 304 of the Congressional Accountability Act of 1995 (2 
U.S.C. 1384), with respect to covered employees, as defined in section 
101 of such Act (2 U.S.C. 1301).
    (d) President.--The President shall have authority to issue 
regulations to carry out this Act with respect to covered employees, as 
defined in section 411(c) of title 3, United States Code, and 
applicants for employment as such employees.

SEC. 15. RELATIONSHIP TO OTHER LAWS.

    This Act shall not invalidate or limit the rights, remedies, or 
procedures available to an individual claiming discrimination 
prohibited under any other Federal law or regulation or any law or 
regulation of a State or political subdivision of a State.

SEC. 16. SEVERABILITY.

    If any provision of this Act, or the application of the provision 
to any person or circumstance, is held to be invalid, the remainder of 
this Act and the application of the provision to any other person or 
circumstances shall not be affected by the invalidity.

SEC. 17. EFFECTIVE DATE.

    This Act shall take effect on the date that is 6 months after the 
date of enactment of this Act and shall not apply to conduct occurring 
before the effective date.
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