II 

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. 

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 Non-Dis5 crimination Act of 2011’’. 

6 SEC. 2. PURPOSES. 

7 The purposes of this Act are— 

8 (1) to address the history and widespread pat9 tern of discrimination on the basis of sexual orientaVerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811

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1 tion or gender identity by private sector employers 

2 and local, State, and Federal government employers; 

3 (2) to provide a comprehensive Federal prohibi4 tion of employment discrimination on the basis of 

5 sexual orientation or gender identity, including 

6 meaningful and effective remedies for any such dis7 crimination; and 

8 (3) to invoke congressional powers, including 

9 the powers to enforce the 14th Amendment to the 

10 Constitution, and to regulate interstate commerce 

11 and provide for the general welfare pursuant to sec12 tion 8 of article I of the Constitution, in order to 

13 prohibit employment discrimination on the basis of 

14 sexual orientation or gender identity. 

15 SEC. 3. DEFINITIONS. 

16 (a) IN GENERAL.—In this Act: 

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

18 means the Equal Employment Opportunity Commis19 sion. 

20 (2) COVERED ENTITY.—The term ‘‘covered en21 tity’’ means an employer, employment agency, labor 

22 organization, or joint labor-management committee. 

23 (3) EMPLOYEE.— 

24 (A) IN GENERAL.—The term ‘‘employee’’ 

25 means— 


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1 (i) an employee as defined in section 

2 701(f) of the Civil Rights Act of 1964 (42 

3 U.S.C. 2000e(f)); 

4 (ii) a State employee to which section 

5 302(a)(1) of the Government Employee 

6 Rights Act of 1991 (42 U.S.C. 2000e– 

7 16b(a)(1)) applies; 

8 (iii) a covered employee, as defined in 

9 section 101 of the Congressional Account10 ability Act of 1995 (2 U.S.C. 1301) or sec11 tion 411(c) of title 3, United States Code; 

12 or 

13 (iv) an employee or applicant to which 

14 section 717(a) of the Civil Rights Act of 

15 1964 (42 U.S.C. 2000e–16(a)) applies. 

16 (B) EXCEPTION.—The provisions of this 

17 Act that apply to an employee or individual 

18 shall not apply to a volunteer who receives no 

19 compensation. 

20 (4) EMPLOYER.—The term ‘‘employer’’ 

21 means— 

22 (A) a person engaged in an industry affect23 ing commerce (as defined in section 701(h) of 

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

25 2000e(h)) who has 15 or more employees (as 


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1 defined in subparagraphs (A)(i) and (B) of 

2 paragraph (3)) for each working day in each of 

3 20 or more calendar weeks in the current or 

4 preceding calendar year, and any agent of such 

5 a person, but does not include a bona fide pri6 vate membership club (other than a labor orga7 nization) that is exempt from taxation under 

8 section 501(c) of the Internal Revenue Code of 

9 1986; 

10 (B) an employing authority to which sec11 tion 302(a)(1) of the Government Employee 

12 Rights Act of 1991 applies; 

13 (C) an employing office, as defined in sec14 tion 101 of the Congressional Accountability 

15 Act of 1995 or section 411(c) of title 3, United 

16 States Code; or 

17 (D) an entity to which section 717(a) of 

18 the Civil Rights Act of 1964 applies. 

19 (5) EMPLOYMENT AGENCY.—The term ‘‘em20 ployment agency’’ has the meaning given the term in 

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

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

23 (6) GENDER IDENTITY.—The term ‘‘gender 

24 identity’’ means the gender-related identity, appear25 ance, or mannerisms or other gender-related characVerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811

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1 teristics of an individual, with or without regard to 

2 the individual’s designated sex at birth. 

3 (7) LABOR ORGANIZATION.—The term ‘‘labor 

4 organization’’ has the meaning given the term in 

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

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

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

8 meaning given the term in section 701(a) of the 

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

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

11 orientation’’ means homosexuality, heterosexuality, 

12 or bisexuality. 

13 (10) STATE.—The term ‘‘State’’ has the mean14 ing given the term in section 701(i) of the Civil 

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

16 (b) APPLICATION OF DEFINITIONS.—For purposes of 

17 this section, a reference in section 701 of the Civil Rights 

18 Act of 1964— 

19 (1) to an employee or an employer shall be con20 sidered to refer to an employee (as defined in sub21 section (a)(3)) or an employer (as defined in sub22 section (a)(4)), respectively, except as provided in 

23 paragraph (2) of this subsection; and 


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1 (2) to an employer in subsection (f) of that sec2 tion shall be considered to refer to an employer (as 

3 defined in subsection (a)(4)(A)). 

4 SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED. 

5 (a) EMPLOYER PRACTICES.—It shall be an unlawful 

6 employment practice for an employer— 

7 (1) to fail or refuse to hire or to discharge any 

8 individual, or otherwise discriminate against any in9 dividual with respect to the compensation, terms, 

10 conditions, or privileges of employment of the indi11 vidual, because of such individual’s actual or per12 ceived sexual orientation or gender identity; or 

13 (2) to limit, segregate, or classify the employees 

14 or applicants for employment of the employer in any 

15 way that would deprive or tend to deprive any indi16 vidual of employment or otherwise adversely affect 

17 the status of the individual as an employee, because 

18 of such individual’s actual or perceived sexual ori19 entation or gender identity. 

20 (b) EMPLOYMENT AGENCY PRACTICES.—It shall be 

21 an unlawful employment practice for an employment agen22 cy to fail or refuse to refer for employment, or otherwise 

23 to discriminate against, any individual because of the ac24 tual or perceived sexual orientation or gender identity of 

25 the individual or to classify or refer for employment any 


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1 individual on the basis of the actual or perceived sexual 

2 orientation or gender identity of the individual. 

3 (c) LABOR ORGANIZATION PRACTICES.—It shall be 

4 an unlawful employment practice for a labor organiza5 tion— 

6 (1) to exclude or to expel from its membership, 

7 or otherwise to discriminate against, any individual 

8 because of the actual or perceived sexual orientation 

9 or gender identity of the individual; 

10 (2) to limit, segregate, or classify its member11 ship or applicants for membership, or to classify or 

12 fail or refuse to refer for employment any individual, 

13 in any way that would deprive or tend to deprive any 

14 individual of employment, or would limit such em15 ployment or otherwise adversely affect the status of 

16 the individual as an employee or as an applicant for 

17 employment because of such individual’s actual or 

18 perceived sexual orientation or gender identity; or 

19 (3) to cause or attempt to cause an employer to 

20 discriminate against an individual in violation of this 

21 section. 

22 (d) TRAINING PROGRAMS.—It shall be an unlawful 

23 employment practice for any employer, labor organization, 

24 or joint labor-management committee controlling appren25 ticeship or other training or retraining, including on-theVerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811

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1 job training programs, to discriminate against any indi2 vidual because of the actual or perceived sexual orientation 

3 or gender identity of the individual in admission to, or em4 ployment in, any program established to provide appren5 ticeship or other training. 

6 (e) ASSOCIATION.—An unlawful employment practice 

7 described in any of subsections (a) through (d) shall be 

8 considered to include an action described in that sub9 section, taken against an individual based on the actual 

10 or perceived sexual orientation or gender identity of a per11 son with whom the individual associates or has associated. 

12 (f) NO PREFERENTIAL TREATMENT OR QUOTAS.— 

13 Nothing in this Act shall be construed or interpreted to 

14 require or permit— 

15 (1) any covered entity to grant preferential 

16 treatment to any individual or to any group because 

17 of the actual or perceived sexual orientation or gen18 der identity of such individual or group on account 

19 of an imbalance which may exist with respect to the 

20 total number or percentage of persons of any actual 

21 or perceived sexual orientation or gender identity 

22 employed by any employer, referred or classified for 

23 employment by any employment agency or labor or24 ganization, admitted to membership or classified by 

25 any labor organization, or admitted to, or employed 


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1 in, any apprenticeship or other training program, in 

2 comparison with the total number or percentage of 

3 persons of such actual or perceived sexual orienta4 tion or gender identity in any community, State, sec5 tion, or other area, or in the available work force in 

6 any community, State, section, or other area; or 

7 (2) the adoption or implementation by a cov8 ered entity of a quota on the basis of actual or per9 ceived sexual orientation or gender identity. 

10 (g) DISPARATE IMPACT.—Only disparate treatment 

11 claims may be brought under this Act. 

12 SEC. 5. RETALIATION PROHIBITED. 

13 It shall be an unlawful employment practice for a cov14 ered entity to discriminate against an individual because 

15 such individual— 

16 (1) opposed any practice made an unlawful em17 ployment practice by this Act; or 

18 (2) made a charge, testified, assisted, or partici19 pated in any manner in an investigation, proceeding, 

20 or hearing under this Act. 

21 SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS. 

22 This Act shall not apply to a corporation, association, 

23 educational institution or institution of learning, or society 

24 that is exempt from the religious discrimination provisions 

25 of title VII of the Civil Rights Act of 1964 pursuant (42 


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1 U.S.C. 2000e et seq.) to section 702(a) or 703(e)(2) of 

2 such Act (42 U.S.C. 2000e–1(a), 2000e–2(e)(2)). 

3 SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED 

4 FORCES; VETERANS’ PREFERENCES. 

5 (a) ARMED FORCES.— 

6 (1) EMPLOYMENT.—In this Act, the term ‘‘em7 ployment’’ does not apply to the relationship be8 tween the United States and members of the Armed 

9 Forces. 

10 (2) ARMED FORCES.—In paragraph (1) the 

11 term ‘‘Armed Forces’’ means the Army, Navy, Air 

12 Force, Marine Corps, and Coast Guard. 

13 (b) VETERANS’ PREFERENCES.—This title does not 

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

15 law creating a special right or preference concerning em16 ployment for a veteran. 

17 SEC. 8. CONSTRUCTION. 

18 (a) EMPLOYER RULES AND POLICIES.— 

19 (1) IN GENERAL.—Nothing in this Act shall be 

20 construed to prohibit a covered entity from enforcing 

21 rules and policies that do not intentionally cir22 cumvent the purposes of this Act, if the rules or 

23 policies are designed for, and uniformly applied to, 

24 all individuals regardless of actual or perceived sex25 ual orientation or gender identity. 


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1 (2) SEXUAL HARASSMENT.—Nothing in this 

2 Act shall be construed to limit a covered entity from 

3 taking adverse action against an individual because 

4 of a charge of sexual harassment against that indi5 vidual, provided that rules and policies on sexual 

6 harassment, including when adverse action is taken, 

7 are designed for, and uniformly applied to, all indi8 viduals regardless of actual or perceived sexual ori9 entation or gender identity. 

10 (3) CERTAIN SHARED FACILITIES.—Nothing in 

11 this Act shall be construed to establish an unlawful 

12 employment practice based on actual or perceived 

13 gender identity due to the denial of access to shared 

14 shower or dressing facilities in which being seen 

15 unclothed is unavoidable, provided that the employer 

16 provides reasonable access to adequate facilities that 

17 are not inconsistent with the employee’s gender iden18 tity as established with the employer at the time of 

19 employment or upon notification to the employer 

20 that the employee has undergone or is undergoing 

21 gender transition, whichever is later. 

22 (4) ADDITIONAL FACILITIES NOT REQUIRED.— 

23 Nothing in this Act shall be construed to require the 

24 construction of new or additional facilities. 


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1 (5) DRESS AND GROOMING STANDARDS.—Noth2 ing in this Act shall prohibit an employer from re3 quiring an employee, during the employee’s hours at 

4 work, to adhere to reasonable dress or grooming 

5 standards not prohibited by other provisions of Fed6 eral, State, or local law, provided that the employer 

7 permits any employee who has undergone gender 

8 transition prior to the time of employment, and any 

9 employee who has notified the employer that the em10 ployee has undergone or is undergoing gender tran11 sition after the time of employment, to adhere to the 

12 same dress or grooming standards as apply for the 

13 gender to which the employee has transitioned or is 

14 transitioning. 

15 (b) EMPLOYEE BENEFITS.—Nothing in this Act shall 

16 be construed to require a covered entity to treat an unmar17 ried couple in the same manner as the covered entity 

18 treats a married couple for purposes of employee benefits. 

19 (c) DEFINITION OF MARRIAGE.—In this Act, the 

20 term ‘‘married’’ refers to marriage as such term is defined 

21 in section 7 of title 1, United States Code (commonly 

22 known as the ‘‘Defense of Marriage Act’’). 

23 SEC. 9. COLLECTION OF STATISTICS PROHIBITED. 

24 The Commission shall not collect statistics on actual 

25 or perceived sexual orientation or gender identity from 


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1 covered entities, or compel the collection of such statistics 

2 by covered entities. 

3 SEC. 10. ENFORCEMENT. 

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

5 administration and enforcement of this Act in the case of 

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

7 Act— 

8 (1) the Commission shall have the same powers 

9 as the Commission has to administer and enforce— 

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

11 1964 (42 U.S.C. 2000e et seq.); or 

12 (B) sections 302 and 304 of the Govern13 ment Employee Rights Act of 1991 (42 U.S.C. 

14 2000e–16b and 2000e–16c), 

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

16 a violation of such title, or of section 302(a)(1) of 

17 the Government Employee Rights Act of 1991 (42 

18 U.S.C. 2000e–16b(a)(1)), respectively; 

19 (2) the Librarian of Congress shall have the 

20 same powers as the Librarian of Congress has to ad21 minister and enforce title VII of the Civil Rights Act 

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

23 claim alleged by such individual for a violation of 

24 such title; 


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

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

3 1301)) shall have the same powers as the Board has 

4 to administer and enforce the Congressional Ac5 countability Act of 1995 (2 U.S.C. 1301 et seq.) in 

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

7 violation of section 201(a)(1) of such Act (2 U.S.C. 

8 1311(a)(1)); 

9 (4) the Attorney General shall have the same 

10 powers as the Attorney General has to administer 

11 and enforce— 

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

13 1964 (42 U.S.C. 2000e et seq.); or 

14 (B) sections 302 and 304 of the Govern15 ment Employee Rights Act of 1991 (42 U.S.C. 

16 2000e–16b and 2000e–16c); 

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

18 a violation of such title, or of section 302(a)(1) of 

19 the Government Employee Rights Act of 1991 (42 

20 U.S.C. 2000e–16b(a)(1)), respectively; 

21 (5) the President, the Commission, and the 

22 Merit Systems Protection Board shall have the same 

23 powers as the President, the Commission, and the 

24 Board, respectively, have to administer and enforce 

25 chapter 5 of title 3, United States Code, in the case 


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1 of a claim alleged by such individual for a violation 

2 of section 411 of such title; and 

3 (6) a court of the United States shall have the 

4 same jurisdiction and powers as the court has to en5 force— 

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

7 1964 (42 U.S.C. 2000e et seq.) in the case of 

8 a claim alleged by such individual for a viola9 tion of such title; 

10 (B) sections 302 and 304 of the Govern11 ment Employee Rights Act of 1991 (42 U.S.C. 

12 2000e–16b and 2000e–16c) in the case of a 

13 claim alleged by such individual for a violation 

14 of section 302(a)(1) of such Act (42 U.S.C. 

15 2000e–16b(a)(1)); 

16 (C) the Congressional Accountability Act 

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

18 a claim alleged by such individual for a viola19 tion of section 201(a)(1) of such Act (2 U.S.C. 

20 1311(a)(1)); and 

21 (D) chapter 5 of title 3, United States 

22 Code, in the case of a claim alleged by such in23 dividual for a violation of section 411 of such 

24 title. 


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1 (b) PROCEDURES AND REMEDIES.—The procedures 

2 and remedies applicable to a claim alleged by an individual 

3 for a violation of this Act are— 

4 (1) the procedures and remedies applicable for 

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

6 1964 (42 U.S.C. 2000e et seq.) in the case of a 

7 claim alleged by such individual for a violation of 

8 such title; 

9 (2) the procedures and remedies applicable for 

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

11 Employee Rights Act of 1991 (42 U.S.C. 2000e– 

12 16b(a)(1)) in the case of a claim alleged by such in13 dividual for a violation of such section; 

14 (3) the procedures and remedies applicable for 

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

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

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

18 violation of such section; and 

19 (4) the procedures and remedies applicable for 

20 a violation of section 411 of title 3, United States 

21 Code, in the case of a claim alleged by such indi22 vidual for a violation of such section. 

23 (c) OTHER APPLICABLE PROVISIONS.—With respect 

24 to a claim alleged by a covered employee (as defined in 

25 section 101 of the Congressional Accountability Act of 


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1 1995 (2 U.S.C. 1301)) for a violation of this Act, title 

2 III of the Congressional Accountability Act of 1995 (2 

3 U.S.C. 1381 et seq.) shall apply in the same manner as 

4 such title applies with respect to a claim alleged by such 

5 a covered employee for a violation of section 201(a)(1) of 

6 such Act (2 U.S.C. 1311(a)(1)). 

7 SEC. 11. STATE AND FEDERAL IMMUNITY. 

8 (a) ABROGATION OF STATE IMMUNITY.—A State 

9 shall not be immune under the 11th Amendment to the 

10 Constitution from a suit brought in a Federal court of 

11 competent jurisdiction for a violation of this Act. 

12 (b) WAIVER OF STATE IMMUNITY.— 

13 (1) IN GENERAL.— 

14 (A) WAIVER.—A State’s receipt or use of 

15 Federal financial assistance for any program or 

16 activity of a State shall constitute a waiver of 

17 sovereign immunity, under the 11th Amend18 ment to the Constitution or otherwise, to a suit 

19 brought by an employee or applicant for em20 ployment of that program or activity under this 

21 Act for a remedy authorized under subsection 

22 (d). 

23 (B) DEFINITION.—In this paragraph, the 

24 term ‘‘program or activity’’ has the meaning 


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1 given the term in section 606 of the Civil 

2 Rights Act of 1964 (42 U.S.C. 2000d–4a). 

3 (2) EFFECTIVE DATE.—With respect to a par4 ticular program or activity, paragraph (1) applies to 

5 conduct occurring on or after the day, after the date 

6 of enactment of this Act, on which a State first re7 ceives or uses Federal financial assistance for that 

8 program or activity. 

9 (c) REMEDIES AGAINST STATE OFFICIALS.—An offi10 cial of a State may be sued in the official capacity of the 

11 official by any employee or applicant for employment who 

12 has complied with the applicable procedures of section 10, 

13 for equitable relief that is authorized under this Act. In 

14 such a suit the court may award to the prevailing party 

15 those costs authorized by section 722 of the Revised Stat16 utes (42 U.S.C. 1988). 

17 (d) REMEDIES AGAINST THE UNITED STATES AND

18 THE STATES.—Notwithstanding any other provision of 

19 this Act, in an action or administrative proceeding against 

20 the United States or a State for a violation of this Act, 

21 remedies (including remedies at law and in equity, and 

22 interest) are available for the violation to the same extent 

23 as the remedies are available for a violation of title VII 

24 of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 

25 by a private entity, except that— 


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1 (1) punitive damages are not available; and 

2 (2) compensatory damages are available to the 

3 extent specified in section 1977A(b) of the Revised 

4 Statutes (42 U.S.C. 1981a(b)). 

5 SEC. 12. ATTORNEYS’ FEES. 

6 Notwithstanding any other provision of this Act, in 

7 an action or administrative proceeding for a violation of 

8 this Act, an entity described in section 10(a) (other than 

9 paragraph (4) of such section), in the discretion of the 

10 entity, may allow the prevailing party, other than the 

11 Commission or the United States, a reasonable attorney’s 

12 fee (including expert fees) as part of the costs. The Com13 mission and the United States shall be liable for the costs 

14 to the same extent as a private person. 

15 SEC. 13. POSTING NOTICES. 

16 A covered entity who is required to post notices de17 scribed in section 711 of the Civil Rights Act of 1964 (42 

18 U.S.C. 2000e–10) shall post notices for employees, appli19 cants for employment, and members, to whom the provi20 sions specified in section 10(b) apply, that describe the 

21 applicable provisions of this Act in the manner prescribed 

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

23 of the Civil Rights Act of 1964. 


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1 SEC. 14. REGULATIONS. 

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

3 (b), (c), and (d), the Commission shall have authority to 

4 issue regulations to carry out this Act. 

5 (b) LIBRARIAN OF CONGRESS.—The Librarian of 

6 Congress shall have authority to issue regulations to carry 

7 out this Act with respect to employees and applicants for 

8 employment of the Library of Congress. 

9 (c) BOARD.—The Board referred to in section 

10 10(a)(3) shall have authority to issue regulations to carry 

11 out this Act, in accordance with section 304 of the Con12 gressional Accountability Act of 1995 (2 U.S.C. 1384), 

13 with respect to covered employees, as defined in section 

14 101 of such Act (2 U.S.C. 1301). 

15 (d) PRESIDENT.—The President shall have authority 

16 to issue regulations to carry out this Act with respect to 

17 covered employees, as defined in section 411(c) of title 3, 

18 United States Code, and applicants for employment as 

19 such employees. 

20 SEC. 15. RELATIONSHIP TO OTHER LAWS. 

21 This Act shall not invalidate or limit the rights, rem22 edies, or procedures available to an individual claiming 

23 discrimination prohibited under any other Federal law or 

24 regulation or any law or regulation of a State or political 

25 subdivision of a State. 


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1 SEC. 16. SEVERABILITY. 

2 If any provision of this Act, or the application of the 

3 provision to any person or circumstance, is held to be in4 valid, the remainder of this Act and the application of the 

5 provision to any other person or circumstances shall not 

6 be affected by the invalidity. 

7 SEC. 17. EFFECTIVE DATE. 

8 This Act shall take effect on the date that is 6 

9 months after the date of enactment of this Act and shall 

10 not apply to conduct occurring before the effective date. 

Æ 


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