I 

116TH CONGRESS 

1ST SESSION H. R. 2148 

To prevent discrimination and harassment in employment. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 9, 2019 

Ms. CLARK of Massachusetts (for herself, Ms. PRESSLEY, Ms. SLOTKIN, and 

Ms. MUCARSEL-POWELL) introduced the following bill; which was referred to the Committee on Education and Labor, and in addition to the 

Committees on the Judiciary, House Administration, Oversight and Reform, and Veterans’ Affairs, 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 prevent discrimination and harassment in employment. 

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 ‘‘Bringing an End to 

5 Harassment by Enhancing Accountability and Rejecting 

6 Discrimination in the Workplace Act’’ or the ‘‘BE 

7 HEARD in the Workplace Act’’. 

8 SEC. 2. TABLE OF CONTENTS. 

9 The table of contents of this Act is as follows: 


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Sec. 1. Short title. 

Sec. 2. Table of contents. 

Sec. 3. Purposes. 

TITLE I—RESEARCHING AND PREVENTING WORKPLACE 

HARASSMENT; TIPPED EMPLOYEES 

Sec. 100. Definitions. 

Subtitle A—Preventing Workplace Harassment 

Sec. 101. Mandatory nondiscrimination policies. 

Sec. 102. Nondiscrimination training. 

Sec. 103. Resource materials on policies and trainings for small businesses. 

Sec. 104. Education, training, and technical assistance to employers. 

Sec. 105. Task force regarding harassment. 

Sec. 106. Resource materials on employment climate assessments. 

Sec. 107. Establishing an Office of Education and Outreach within the Equal 

Employment Opportunity Commission. 

Sec. 108. Relationship to other laws. 

Sec. 109. Authorization of appropriations. 

Subtitle B—Research and Additional Resources for Harassment Prevention 

Sec. 111. National prevalence survey on harassment in employment. 

Sec. 112. Study and report on harassment in the Federal Government. 

Sec. 113. Studies, reports, and further research. 

Subtitle C—Preventing Harassment of Tipped Employees 

Sec. 121. Tipped employees. 

TITLE II—STRENGTHENING WORKPLACE RIGHTS 

Sec. 201. Clarifying sexual orientation discrimination and gender identity discrimination are unlawful sex discrimination. 

Sec. 202. Covered employers. 

Sec. 203. Compensatory and punitive damages available. 

Sec. 204. Harassment and discrimination; standards of proof. 

Sec. 205. Clarifying other standards of proof. 

Sec. 206. Supervisor liability. 

Sec. 207. Extending the statutes of limitations. 

Sec. 208. Extending the time limitations on Federal employees filing a complaint. 

TITLE III—BROADENING PROTECTIONS AND ENSURING 

TRANSPARENCY 

Sec. 301. Independent contractors, interns, fellows, volunteers, and trainees. 

Sec. 302. Nondisclosure agreements. 

Sec. 303. Prohibition on mandatory arbitration and protection of concerted 

legal action. 

Sec. 304. Federal contractor compliance with civil rights laws. 

TITLE IV—NATIONWIDE GRANTS TO PREVENT AND RESPOND TO 

WORKPLACE HARASSMENT 

Sec. 401. Definitions. 


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Subtitle A—National Grants for Preventing and Addressing Employment 

Discrimination, Including Harassment 

Sec. 411. Definitions. 

Sec. 412. Grants. 

Sec. 413. Authorization of appropriations. 

Subtitle B—Grants for Legal Assistance for Low-Income Workers 

Sec. 421. Definitions. 

Sec. 422. Grants for civil legal needs related to employment discrimination. 

Sec. 423. Authorization of appropriations. 

Subtitle C—Grants for a System of State Advocacy 

Sec. 431. Purpose. 

Sec. 432. Definitions. 

Sec. 433. Allotments and payments. 

Sec. 434. System required. 

Sec. 435. Administration. 

Sec. 436. Authorization of appropriations. 

TITLE V—GENERAL PROVISIONS 

Sec. 501. Severability. 

1 SEC. 3. PURPOSES. 

2 The purposes of this Act are— 

3 (1) to prevent and reduce prohibited discrimina4 tion and harassment in employment; 

5 (2) to prevent and reduce discriminatory and 

6 harassing conduct in the workplace; 

7 (3) to identify and implement best practices in 

8 creating a workplace free from discrimination and 

9 harassment; 

10 (4) to update and clarify certain employment 

11 nondiscrimination laws; and 

12 (5) to expand workers’ access to counsel and 

13 advocacy services to protect the legal and human 

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1 crimination and harassment and responding to viola2 tions of worker’s rights. 

3 TITLE I—RESEARCHING AND 

4 PREVENTING WORKPLACE 

5 HARASSMENT; TIPPED EM6 PLOYEES 

7 SEC. 100. DEFINITIONS. 

8 In this title: 

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

10 means the Equal Employment Opportunity Commis11 sion. 

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

13 meaning given the term in section 701 of the Civil 

14 Rights Act of 1964 (42 U.S.C. 2000e), as amended 

15 by section 202 of this Act. 

16 Subtitle A—Preventing Workplace 

17 Harassment 

18 SEC. 101. MANDATORY NONDISCRIMINATION POLICIES. 

19 (a) POLICIES.— 

20 (1) IN GENERAL.—Beginning not later than 1 

21 year after the date of enactment of this Act, each 

22 employer who has 15 or more employees shall adopt, 

23 maintain, and periodically review a comprehensive 

24 nondiscrimination policy, which shall establish poliVerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148

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1 cies and procedures concerning prohibited discrimi2 nation and harassment in employment. 

3 (2) DISSEMINATION AND POSTING.—The em4 ployer shall disseminate the comprehensive non5 discrimination policy to each employee at the begin6 ning of employment, annually, and on the issuance 

7 of any update to the comprehensive nondiscrimina8 tion policy. The employer shall post the comprehen9 sive nondiscrimination policy in prominent locations, 

10 including in a prominent location on the employer’s 

11 website. 

12 (b) CONTENTS.—At a minimum, the comprehensive 

13 nondiscrimination policy shall include— 

14 (1) a definition of prohibited discrimination and 

15 prohibited harassment in employment; 

16 (2) a description of the types of behaviors pro17 hibited by the policy; 

18 (3) the identification of multiple persons to 

19 whom an employee may report such discrimination 

20 or harassment; 

21 (4) a description of multiple methods for re22 porting such discrimination or harassment; 

23 (5) a general description of how the employer 

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1 tigations and respond to complaints regarding such 

2 discrimination or harassment; 

3 (6) a prohibition against retaliation related to 

4 such discrimination or harassment, including dis5 closing, reporting, or challenging such discrimination 

6 or harassment; 

7 (7) a description of potential consequences for 

8 violating the policy; and 

9 (8) any additional components required by the 

10 Commission for the purpose of preventing unlawful 

11 discrimination and harassment. 

12 (c) ACCESSIBILITY.—The comprehensive non13 discrimination policy shall be made available in plain 

14 English and in an accessible manner for individuals with 

15 disabilities and for individuals who primarily speak a lan16 guage other than English. 

17 (d) ENFORCEMENT.— 

18 (1) Subject to paragraph (2), an employer who 

19 fails to comply with this section shall be fined not 

20 more than $1,000 for each separate offense. 

21 (2) An employer who repeatedly or willfully fails 

22 to comply with this section shall be fined not less 

23 than $5,000 for each separate offense. 

24 (e) REGULATIONS.—The Commission shall have au25 thority to promulgate regulations to carry out this section. 


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1 SEC. 102. NONDISCRIMINATION TRAINING. 

2 (a) IN GENERAL.—The Commission shall promulgate 

3 regulations to require appropriate employers, as deter4 mined by the Commission, to provide— 

5 (1) in-person or other interactive training for 

6 each employee regarding discriminatory and haras7 sing behaviors in employment; and 

8 (2) training specifically designed for supervisors 

9 regarding the prevention of and response to dis10 crimination and harassment in employment, includ11 ing retaliation. 

12 (b) REQUIRED TRAINING.—The requirements de13 scribed in subsection (a) shall— 

14 (1) be based on research on effective training; 

15 and 

16 (2) identify specific elements of such training. 

17 (c) ENFORCEMENT.—The Commission shall issue 

18 remedies for noncompliance by regulation. 

19 SEC. 103. RESOURCE MATERIALS ON POLICIES AND 

20 TRAININGS FOR SMALL BUSINESSES. 

21 (a) IN GENERAL.—Not later than 1 year after the 

22 date of enactment of this Act, the Commission shall make 

23 publicly available resource materials on comprehensive 

24 nondiscrimination policies and trainings on such policies 

25 for employers with fewer than 15 employees. 


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1 (b) CONTENTS.—Such resource materials shall in2 clude, at a minimum— 

3 (1) model comprehensive nondiscrimination 

4 policies concerning prohibited discrimination and 

5 harassment in employment, as described in section 

6 101, for use by employers with fewer than 15 em7 ployees, which shall— 

8 (A) be designed to be easily distributed by 

9 such employers to employees; 

10 (B) take into account the resources avail11 able to such employers; 

12 (C) take into account the particular needs 

13 of employees of such employers; 

14 (D) be made available in plain English and 

15 in accessible formats for individuals with dis16 abilities and for individuals who primarily speak 

17 a language other than English; 

18 (E) include a definition of prohibited dis19 crimination and harassment in employment; 

20 (F) include examples of prohibited dis21 criminatory and harassing behaviors; 

22 (G) describe how the employer may con23 duct prompt, thorough, and impartial investiga24 tions and respond to complaints regarding such 

25 prohibited discrimination and harassment; 


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1 (H) include a prohibition against retalia2 tion related to such discrimination or harass3 ment; 

4 (I) include policies that reflect the needs of 

5 a variety of different types of workplaces, in6 cluding those with differing work structures, fa7 cilities, or tasks; 

8 (J) describe behaviors that would con9 stitute retaliation; and 

10 (K) include a description of potential con11 sequences for violating the comprehensive non12 discrimination policy; and 

13 (2) model trainings regarding prohibited dis14 crimination and harassment in employment, as de15 scribed in section 102, for use by employers with 

16 fewer than 15 employees, which shall— 

17 (A) take into account the resources avail18 able to such employers; 

19 (B) take into account the particular needs 

20 of employees of such employers; 

21 (C) be made available in plain English and 

22 in accessible formats for individuals with dis23 abilities and for individuals who primarily speak 

24 a language other than English; 


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1 (D) be made available in an online format 

2 that is widely available to such employers and 

3 employees of such employers; 

4 (E) include an explanation of prohibited 

5 discrimination and harassment in employment, 

6 including retaliation related to such discrimina7 tion and harassment; 

8 (F) describe the affirmative behaviors that 

9 contribute to preventing and reducing harass10 ment and discrimination in employment; 

11 (G) include trainings designed to address 

12 the needs of a variety of workplaces, including 

13 those with differing work structures, facilities, 

14 and tasks; 

15 (H) include best practices for preventing 

16 prohibited discrimination and harassment spe17 cific to industries in which the Commission de18 termines that harassment is particularly preva19 lent or severe; and 

20 (I) include any additional information the 

21 Commission determines may prevent discrimi22 nation and harassment of employees. 

23 (c) INDIVIDUALIZATION.—The Commission shall en24 sure that resource materials under this section are de25 signed to facilitate individual employers to customize 


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1 training to address the needs of their workplaces, includ2 ing differing work structures, facilities, and tasks. 

3 SEC. 104. EDUCATION, TRAINING, AND TECHNICAL ASSIST4 ANCE TO EMPLOYERS. 

5 The Commission shall have the authority to— 

6 (1) reasonably adjust the fees the Commission 

7 charges for any education, technical assistance, or 

8 training the Commission offers in accordance with 

9 section 705(j)(1) of the Civil Rights Act of 1964 (42 

10 U.S.C. 2000e–4(j)(1)); 

11 (2) use the materials developed by the Commis12 sion for any education, technical assistance, or train13 ing offered by the Commission in accordance with 

14 that section in any education and outreach activities 

15 carried out by the Commission; and 

16 (3) use funds from the Commission’s EEOC 

17 Education, Technical Assistance, and Training Re18 volving Fund, established under section 705(k) of 

19 the Civil Rights Act of 1964 (42 U.S.C. 2000e– 

20 4(k)), to pay the full salaries of any Commission em21 ployees that develop and administer any education, 

22 technical assistance, or training programs offered by 

23 the Commission. 


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1 SEC. 105. TASK FORCE REGARDING HARASSMENT. 

2 (a) IN GENERAL.—The Commission shall establish 

3 and periodically convene a harassment prevention task 

4 force (referred to in this subsection as the ‘‘Task Force’’) 

5 to study prohibited harassment in employment. 

6 (b) MEMBERSHIP.—The Task Force established 

7 under paragraph (1) shall include membership that re8 flects a broad diversity of experience and expertise relating 

9 to prohibited harassment, including— 

10 (1) employee advocates; 

11 (2) researchers with expertise in organizational 

12 culture change or reducing behavior related to har13 assment and discrimination; 

14 (3) legal practitioners with professional exper15 tise related to harassment litigation on behalf of em16 ployees; 

17 (4) legal practitioners with experience serving 

18 as a chief legal officer or human resource officer in 

19 a corporate legal department; 

20 (5) individuals with expertise in diversity and 

21 inclusion initiatives; 

22 (6) individuals who have experienced prohibited 

23 harassment in employment; and 

24 (7) union leaders. 

25 (c) DUTIES.—The Task Force shall— 


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1 (1) identify strategies and recommend proposals 

2 to prevent prohibited harassment in employment; 

3 and 

4 (2) provide guidance on effective strategies to 

5 prevent prohibited harassment that are specific to 

6 industries in which the Task Force determines that 

7 harassment is particularly prevalent or severe. 

8 (d) REPORT.—Not less than once every 5 years, the 

9 Commission shall prepare and publish a report on the 

10 Commission’s website, which shall be based on the work 

11 of the Task Force and shall include— 

12 (1) a review of the prevalence of prohibited har13 assment in employment, including the results of the 

14 national prevalence survey described in section 112; 

15 (2) recommendations for Federal, State, and 

16 local initiatives, reforms, and legislation to prevent 

17 prohibited harassment in employment; 

18 (3) assessments of the effectiveness of employ19 ment policies designed to prevent prohibited harass20 ment in employment by changing behavior and cul21 ture; 

22 (4) assessments of the effectiveness of processes 

23 for investigations into prohibited harassment in em24 ployment; 


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1 (5) assessments of the effectiveness of different 

2 types of training to reduce and prevent harassment 

3 in employment; and 

4 (6) assessments of the effectiveness of other 

5 proactive initiatives and interventions to reduce and 

6 prevent harassment in employment. 

7 SEC. 106. RESOURCE MATERIALS ON EMPLOYMENT CLI8 MATE ASSESSMENTS. 

9 (a) IN GENERAL.—Not later than 1 year after the 

10 date of enactment of this Act, the Commission shall de11 velop and make publicly available resource materials for 

12 employers on assessing the employment climate, including 

13 the occurrence of prohibited harassment in employment, 

14 in order to assist such employers in determining the effec15 tiveness of measures the employer takes to prevent and 

16 address prohibited harassment in employment. 

17 (b) EMPLOYMENT CLIMATE SURVEY.—Such resource 

18 materials shall include a model survey regarding prohib19 ited harassment in employment, which shall be available 

20 for an employer to use (at the employer’s discretion and 

21 employer’s expense) in order to assess the employment cli22 mate. The model survey shall be— 

23 (1) designed to assess employees’ experiences 

24 related to prohibited harassment in employment; 


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1 (2) fair, unbiased, and scientifically valid to the 

2 greatest extent practicable; 

3 (3) designed to solicit confidential submissions 

4 and to provide data without revealing personally 

5 identifiable information; and 

6 (4) inclusive of individuals required to be af7 forded protection under section 301. 

8 (c) CONTENTS.—The model survey may include— 

9 (1) questions designed to assess the prevalence 

10 of prohibited harassment in employment; 

11 (2) questions designed to understand whether 

12 employees have access to and are familiar with the 

13 employer’s nondiscrimination and anti-harassment 

14 policies and procedures; 

15 (3) questions to assess the employment climate; 

16 and 

17 (4) any additional questions the Commission 

18 determines are consistent with the purposes of this 

19 section. 

20 (d) MANDATORY EMPLOYEE PARTICIPATION PRO21 HIBITED.—An employer may not compel or require em22 ployees to participate in a survey regarding prohibited 

23 harassment or discrimination in employment. 

24 (e) REVIEW AND REVISION.—The Commission shall 

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1 scribed in subsection (a) and the model survey developed 

2 under subsection (b). 

3 SEC. 107. ESTABLISHING AN OFFICE OF EDUCATION AND 

4 OUTREACH WITHIN THE EQUAL EMPLOY5 MENT OPPORTUNITY COMMISSION. 

6 (a) IN GENERAL.—The Commission shall establish 

7 and maintain an Office of Education and Outreach to— 

8 (1) conduct outreach and education concerning 

9 prohibited discrimination and harassment in employ10 ment under Federal civil rights laws and available 

11 resources and remedies relating to those laws; and 

12 (2) conduct a multi-year public awareness cam13 paign to improve public awareness of the Commis14 sion, which shall include disseminating information 

15 about— 

16 (A) the purpose of the Commission; 

17 (B) the resources available through the 

18 Commission to prevent prohibited discrimina19 tion and harassment in employment; 

20 (C) the ways in which an individual can 

21 file a complaint with the Commission; and 

22 (D) the process by which the Commission 

23 investigates charges of discrimination. 

24 (b) INFORMATION DISSEMINATED.—The information 

25 disseminated in accordance with subsection (a)(2) shall be 


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1 made available in plain English and in an accessible man2 ner for individuals with disabilities and for individuals who 

3 primarily speak a language other than English. 

4 SEC. 108. RELATIONSHIP TO OTHER LAWS. 

5 Compliance with section 101 or 102, or use of mate6 rials provided under subtitle A, is not an affirmative de7 fense under applicable employment nondiscrimination 

8 laws. 

9 SEC. 109. AUTHORIZATION OF APPROPRIATIONS. 

10 There are authorized to be appropriated to the Com11 mission such sums as may be necessary to carry out the 

12 Commission’s duties and activities, including such duties 

13 and activities authorized under this subtitle. 

14 Subtitle B—Research and Addi15 tional Resources for Harass16 ment Prevention 

17 SEC. 111. NATIONAL PREVALENCE SURVEY ON HARASS18 MENT IN EMPLOYMENT. 

19 (a) SURVEY.—The Bureau of the Census, the Com20 mission, and the Bureau of Labor Statistics shall jointly 

21 develop a national prevalence survey on the prevalence of 

22 prohibited harassment in employment (referred to in this 

23 section as the ‘‘national prevalence survey’’). Such survey 

24 shall be administered by the Bureau of the Census not 


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1 later than 1 year after the date of enactment of this Act, 

2 and every 3 years thereafter. 

3 (b) CONTENTS.—The national prevalence survey 

4 shall include questions designed to collect such informa5 tion from individuals as may be necessary to examine ex6 isting beliefs, attitudes, and understanding of prohibited 

7 harassment in employment, and the extent to which such 

8 harassment is experienced or observed by individuals, su9 pervisors, and employers, including the information nec10 essary for the report described in subsection (c). 

11 (c) REPORT.— 

12 (1) IN GENERAL.—Not later than 6 months 

13 after each national prevalence survey has been ad14 ministered, the Bureau of the Census, the Commis15 sion, and the Bureau of Labor Statistics shall jointly 

16 prepare and submit to the Committee on Health, 

17 Education, Labor, and Pensions of the Senate and 

18 the Committee on Education and Labor of the 

19 House of Representatives a report on the results of 

20 that survey. 

21 (2) REQUIRED INFORMATION.—The report 

22 under this subsection shall include, at minimum— 

23 (A) information about the extent to which 

24 individuals experience prohibited harassment in 

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1 ual orientation, gender identity, pregnancy, 

2 childbirth, a medical condition related to preg3 nancy or childbirth, and a sex stereotype), race, 

4 color, religion, national origin, age, disability, 

5 genetic information, and uniformed service sta6 tus, and information about the interaction of 

7 different characteristics that may be the basis 

8 of harassment in employment; 

9 (B) information about the prevalence of 

10 each such form of prohibited harassment in em11 ployment, disaggregated by industry and salary 

12 level, including across all wage bands; and 

13 (C) an analysis of the economic impacts of 

14 prohibited harassment. 

15 (3) DISAGGREGATION OF SEX BASED HARASS16 MENT.—The report under this subsection shall sepa17 rately, and in the aggregate, report each of the fol18 lowing bases of sex harassment: 

19 (A) Sexual orientation. 

20 (B) Gender identity. 

21 (C) Pregnancy. 

22 (D) Childbirth. 

23 (E) A medical condition related to preg24 nancy or childbirth. 

25 (F) A sex stereotype. 


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1 (G) Sexual in nature. 

2 (4) PUBLIC AVAILABILITY.—The report shall be 

3 made publicly available on the websites of the Bu4 reau of the Census, the Commission, and Bureau of 

5 Labor Statistics. 

6 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

7 are authorized to be appropriated for the Bureau of the 

8 Census to carry out this section $1,200,000 for fiscal year 

9 2019 and such sums as may be necessary for each fiscal 

10 year the national prevalence survey is to be administered 

11 under subsection (a) or the report is to be submitted under 

12 subsection (c). 

13 SEC. 112. STUDY AND REPORT ON HARASSMENT IN THE 

14 FEDERAL GOVERNMENT. 

15 (a) IN GENERAL.—Not later than 1 year after the 

16 date of enactment of this Act, and not less than once every 

17 3 years thereafter, the Merit Systems Protection Board 

18 shall prepare and submit to the Committee on Health, 

19 Education, Labor, and Pensions of the Senate and the 

20 Committee on Education and Labor of the House of Rep21 resentatives a report containing the following information: 

22 (1) The prevalence of specific behaviors associ23 ated with prohibited harassment in employment 

24 among Federal employees, including information 


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1 about such behaviors disaggregated by each wage 

2 band. 

3 (2) The impact of prohibited harassment in em4 ployment and violations of Federal civil rights laws 

5 on the Federal Government, in terms of monetary 

6 costs, attrition, and morale. 

7 (3) The particular impact of prohibited harass8 ment in employment on the experience of Federal 

9 employees with disabilities. 

10 (4) Working in coordination with the Commis11 sion’s Office of Federal Operations, a description of 

12 the differences in Federal agency policies, strategies, 

13 reporting mechanisms, training programs, and other 

14 practices regarding preventing and addressing pro15 hibited harassment in employment. 

16 (5) A description of which policies, strategies, 

17 reporting mechanisms, training programs, and other 

18 practices described in paragraph (4) have prevented, 

19 addressed, or reduced prohibited harassment in em20 ployment. 

21 (6) Working in coordination with the Commis22 sion’s Office of Federal Operations, joint rec23 ommendations from such Office and the Merit Sys24 tems Protection Board to Federal agencies on how 


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1 to prevent and address prohibited harassment in em2 ployment. 

3 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

4 are authorized to be appropriated to the Merit Systems 

5 Protection Board such sums as may be necessary to carry 

6 out this section. 

7 SEC. 113. STUDIES, REPORTS, AND FURTHER RESEARCH. 

8 (a) STUDY AND REPORT ON ENFORCEMENT OF NON9 DISCRIMINATION LAWS PROHIBITING HARASSMENT

10 LAWS.—Not later than 1 year after the date of enactment 

11 of this Act, the United States Commission on Civil Rights 

12 shall prepare and submit to the Committee on Health, 

13 Education, Labor, and Pensions of the Senate and the 

14 Committee on Education and Labor of the House of Rep15 resentatives a report that shall examine enforcement of 

16 the nondiscrimination laws prohibiting harassment includ17 ing— 

18 (1) trends in enforcement of such laws; 

19 (2) barriers to effective enforcement of such 

20 laws; 

21 (3) best practices in enforcement of such laws; 

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1 assment in employment would improve enforcement 

2 of such laws; and 

3 (5) how the experience of harassment for em4 ployees and individuals required to be afforded pro5 tections under section 301 has changed over time 

6 since the passage of such laws. 

7 (b) STUDY AND REPORT ON PREVENTION OF HAR8 ASSMENT IN EMPLOYMENT.— 

9 (1) IN GENERAL.—Not later than 60 days after 

10 the date of enactment of this Act, the Director of 

11 the National Institutes of Health shall enter into an 

12 agreement with the National Academies of Sciences, 

13 Engineering, and Medicine, through which the Na14 tional Academies of Science, Engineering, and Medi15 cine shall conduct a study on preventing and ad16 dressing prohibited harassment in employment. 

17 (2) CONTENTS.—Such study shall include— 

18 (A) an evaluation of the existing research 

19 of the causes of prohibited harassment in em20 ployment, including retaliation related to such 

21 harassment, and gaps in such research; 

22 (B) a review of the existing research re23 garding how prohibited harassment in employ24 ment impacts individuals; 


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1 (C) an evaluation of the existing research 

2 on training to prevent prohibited harassment in 

3 employment, including essential components of 

4 effective training to prevent such prohibited 

5 harassment and retaliation, and gaps in such 

6 research; 

7 (D) an assessment of the efficacy and 

8 availability of training models and programs to 

9 prevent prohibited harassment in employment; 

10 (E) the identification of employment or so11 cietal factors that increase the likelihood of pro12 hibited harassment in employment, particularly 

13 across industries with a high number of individ14 uals who are vulnerable to experiencing such 

15 prohibited harassment, including whether diver16 sity in leadership positions within an organiza17 tion reduces the likelihood of such prohibited 

18 harassment; 

19 (F) an examination of methods of induc20 ing, scaling, and sustaining institutional or or21 ganizational change to prevent prohibited har22 assment in employment; 

23 (G) an analysis of policies, strategies, and 

24 practices that have been the most successful in 


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1 preventing and addressing prohibited harass2 ment in employment; and 

3 (H) any other information or analysis nec4 essary to identify the gaps in research and 

5 other measures described in subsection (c). 

6 (3) REPORT.—Not later than 1 year after the 

7 date of enactment of this Act, the National Acad8 emies of Sciences, Engineering, and Medicine shall 

9 prepare and submit to the Committee on Health, 

10 Education, Labor, and Pensions of the Senate, the 

11 Committee on Education and Labor of the House of 

12 Representatives, and the Director of the National 

13 Institutes of Health, a report containing the results 

14 of the study conducted under this subsection and 

15 make recommendations to Congress, executive 

16 branch agencies, private employers, and researchers. 

17 Such recommendations shall include ways that such 

18 training could be improved to result in behavioral 

19 and cultural changes that prevent and reduce behav20 iors associated with prohibited harassment in em21 ployment. The report and recommendations shall be 

22 made publicly available. 

23 (c) SUPPORTING FURTHER RESEARCH ON PRE24 VENTING AND UNDERSTANDING HARASSMENT IN EM25 PLOYMENT.— 


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1 (1) IN GENERAL.—Not later than 6 months 

2 after the submission required under subsection 

3 (b)(3), the Director of the National Institutes of 

4 Health, in consultation with the Commission and the 

5 Secretary of Labor, shall enter into agreements (in6 cluding through the use of grants, contracts, cooper7 ative agreements, or other transactions) to support 

8 research regarding— 

9 (A) the gaps identified in the report re10 quired under subsection (b)(3) in research on 

11 the causes of prohibited harassment in employ12 ment, including retaliation related to such har13 assment; 

14 (B) the gaps identified in the report re15 quired under subsection (b)(3) in research on 

16 the psychological sequelae of prohibited harass17 ment in employment, including retaliation re18 lated to such harassment; 

19 (C) gaps identified in the report required 

20 under subsection (b)(3) in research on special 

21 populations and their risk for prohibited harass22 ment in employment, including adolescents, 

23 older individuals, racial and ethnic minorities, 

24 individuals with disabilities, women, and other 


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1 populations that could be disproportionately af2 fected by prohibited harassment in employment; 

3 (D) gaps identified in the report required 

4 under subsection (b)(3) in research on prohib5 ited harassment in employment, including retal6 iation related to such harassment, as a risk fac7 tor for various mental health problems; 

8 (E) gaps identified in the report required 

9 under subsection (b)(3) in research on 

10 sociocultural correlations within prohibited har11 assment in employment, including retaliation 

12 related to such harassment; and 

13 (F) systematic and quantifiable measures 

14 to evaluate prevention strategies for victims and 

15 perpetrators of prohibited harassment in em16 ployment, including retaliation related to such 

17 harassment. 

18 (2) AUTHORIZATION OF APPROPRIATIONS.— 

19 There are authorized to be appropriated to the Na20 tional Institutes of Health to carry out this sub21 section such sums as may be necessary. 


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1 Subtitle C—Preventing Harassment 

2 of Tipped Employees 

3 SEC. 121. TIPPED EMPLOYEES. 

4 (a) BASE MINIMUM WAGE FOR TIPPED EMPLOYEES

5 AND TIPS RETAINED BY EMPLOYEES.—Section 

6 3(m)(2)(A)(i) of the Fair Labor Standards Act of 1938 

7 (29 U.S.C. 203(m)(2)(A)(i)) is amended to read as fol8 lows: 

9 ‘‘(i) the cash wage paid such em10 ployee, which for purposes of such deter11 mination shall be not less than— 

12 ‘‘(I) for the 1-year period begin13 ning on the effective date under sub14 section (e), $3.60 an hour; 

15 ‘‘(II) for each succeeding 1-year 

16 period until the hourly wage under 

17 this clause equals the wage in effect 

18 under section 6(a)(1) for such period, 

19 an hourly wage equal to the amount 

20 determined under this clause for the 

21 preceding year, increased by the lesser 

22 of— 

23 ‘‘(aa) $1.50; or 

24 ‘‘(bb) the amount necessary 

25 for the wage in effect under this 


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1 clause to equal the wage in effect 

2 under section 6(a)(1) for such 

3 period, rounded up to the nearest 

4 multiple of $0.05; and 

5 ‘‘(III) for each succeeding 1-year 

6 period after the increase made pursu7 ant to subclause (II), the minimum 

8 wage in effect under section 6(a)(1); 

9 and’’. 

10 (b) TIPS RETAINED BY EMPLOYEES.—Section 

11 3(m)(2)(A) of the Fair Labor Standards Act of 1938 (29 

12 U.S.C. 203(m)(2)(A)) is amended— 

13 (1) in the second sentence of the matter fol14 lowing clause (ii), by striking ‘‘of this subsection, 

15 and all tips received by such employee have been re16 tained by the employee’’ and inserting ‘‘of this sub17 section. Any employee shall have the right to retain 

18 any tips received by such employee’’; and 

19 (2) by adding at the end the following: ‘‘An em20 ployer shall inform each employee of the right and 

21 exception provided under the preceding sentence.’’. 

22 (c) PUBLICATION OF NOTICE.—Section 6 of the Fair 

23 Labor Standards Act of 1938 (29 U.S.C. 206) is amended 

24 by adding at the end the following: 


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1 ‘‘(h) Not later than 60 days prior to the effective date 

2 of any increase in the required wage determined in accord3 ance with subclause (II) or (III) of section 3(m)(2)(A)(i), 

4 the Secretary shall publish in the Federal Register and 

5 on the website of the Department of Labor a notice an6 nouncing each increase in such required wage.’’. 

7 (d) SCHEDULED REPEAL OF SEPARATE MINIMUM

8 WAGE FOR TIPPED EMPLOYEES.— 

9 (1) TIPPED EMPLOYEES.—Section 3(m)(2)(A) 

10 of the Fair Labor Standards Act of 1938 (29 U.S.C. 

11 203(m)(2)(A)), as amended by subsections (a) and 

12 (b), is further amended by striking the sentence be13 ginning with ‘‘In determining the wage an employer 

14 is required to pay a tipped employee,’’ and all that 

15 follows through ‘‘of this subsection.’’ and inserting 

16 ‘‘The wage required to be paid to a tipped employee 

17 shall be the wage set forth in section 6(a)(1).’’. 

18 (2) PUBLICATION OF NOTICE.—Section 6 of the 

19 Fair Labor Standards Act of 1938 (29 U.S.C. 206), 

20 as amended by subsection (c), is further amended by 

21 striking subsection (h). 

22 (3) EFFECTIVE DATE.—The amendments made 

23 by paragraphs (1) and (2) shall take effect on the 

24 date that is one day after the date on which the 

25 hourly wage under subclause (III) of section 


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1 3(m)(2)(A)(i) of the Fair Labor Standards Act of 

2 1938 (29 U.S.C. 203(m)(2)(A)(i)), as amended by 

3 subsection (a), takes effect. 

4 (e) EFFECTIVE DATE.—Except as provided in sub5 section (d)(3), this section and the amendments made by 

6 this section shall take effect on the first day of the third 

7 month that begins after the date of enactment of this Act. 

8 TITLE II—STRENGTHENING 

9 WORKPLACE RIGHTS 

10 SEC. 201. CLARIFYING SEXUAL ORIENTATION DISCRIMINA11 TION AND GENDER IDENTITY DISCRIMINA12 TION ARE UNLAWFUL SEX DISCRIMINATION. 

13 (a) EMPLOYMENT.— 

14 (1) RULES OF CONSTRUCTION.—Title VII of 

15 the Civil Rights Act of 1964 is amended by inserting 

16 after section 701 (42 U.S.C. 2000e) the following: 

17 ‘‘SEC. 701A. RULES OF CONSTRUCTION. 

18 ‘‘Section 1106 shall apply to this title except that for 

19 purposes of that application, a reference in that section 

20 to an ‘unlawful practice’ shall be considered to be a ref21 erence to an ‘unlawful employment practice’.’’. 

22 (2) UNLAWFUL EMPLOYMENT PRACTICES.— 

23 Section 703 of the Civil Rights Act of 1964 (42 

24 U.S.C. 2000e–2) is amended— 


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1 (A) in the section header, by striking 

2 ‘‘SEX,’’ and inserting ‘‘SEX (INCLUDING SEX3 UAL ORIENTATION, GENDER IDENTITY, 

4 PREGNANCY, CHILDBIRTH, A MEDICAL

5 CONDITION RELATED TO PREGNANCY OR

6 CHILDBIRTH, AND A SEX STEREOTYPE),’’; 

7 (B) except in subsections (e), (j) and (m), 

8 by striking ‘‘sex,’’ each place it appears and in9 serting ‘‘sex (including sexual orientation, gen10 der identity, pregnancy, childbirth, a medical 

11 condition related to pregnancy or childbirth, 

12 and a sex stereotype),’’; 

13 (C) in subsection (e)(1), by striking ‘‘en14 terprise,’’ and inserting ‘‘enterprise, if, in a sit15 uation in which sex is a bona fide occupational 

16 qualification, individuals are recognized as 

17 qualified in accordance with their gender iden18 tity,’’; 

19 (D) in subsection (h), by striking ‘‘sex’’ 

20 the second place it appears and inserting ‘‘sex 

21 (including sexual orientation, gender identity, 

22 pregnancy, childbirth, a medical condition re23 lated to pregnancy or childbirth, and a sex 

24 stereotype),’’; 

25 (E) in subsection (j)— 


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1 (i) by striking ‘‘sex,’’ the first place it 

2 appears and inserting ‘‘sex (including sex3 ual orientation, gender identity, pregnancy, 

4 childbirth, a medical condition related to 

5 pregnancy or childbirth, and a sex stereo6 type),’’; and 

7 (ii) by striking ‘‘sex,’’ the second and 

8 third places it appears and inserting ‘‘sex 

9 (including sexual orientation, gender iden10 tity, pregnancy, childbirth, a medical con11 dition related to pregnancy or childbirth, 

12 and a sex stereotype),’’; and 

13 (F) in subsection (m), by striking ‘‘sex,’’ 

14 and inserting ‘‘sex (including sexual orientation, 

15 gender identity, pregnancy, childbirth, a med16 ical condition related to pregnancy or childbirth, 

17 and a sex stereotype),’’. 

18 (3) OTHER UNLAWFUL EMPLOYMENT PRAC19 TICES.—Section 704(b) of the Civil Rights Act of 

20 1964 (42 U.S.C. 2000e–3(b)) is amended— 

21 (A) by striking ‘‘sex,’’ the first place it ap22 pears and inserting ‘‘sex (including sexual ori23 entation, gender identity, pregnancy, childbirth, 

24 a medical condition related to pregnancy or 

25 childbirth, and a sex stereotype),’’; and 


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1 (B) by striking ‘‘employment.’’ and insert2 ing ‘‘employment, if, in a situation in which sex 

3 is a bona fide occupational qualification, indi4 viduals are recognized as qualified in accord5 ance with their gender identity.’’. 

6 (4) CLAIMS.—Section 706(g)(2)(A) of the Civil 

7 Rights Act of 1964 (2000e–5(g)(2)(A)) is amended 

8 by striking ‘‘sex,’’ and inserting ‘‘sex (including sex9 ual orientation, gender identity, pregnancy, child10 birth, a medical condition related to pregnancy or 

11 childbirth, and a sex stereotype),’’. 

12 (5) EMPLOYMENT BY FEDERAL GOVERN13 MENT.—Section 717 of the Civil Rights Act of 1964 

14 (42 U.S.C. 2000e–16) is amended— 

15 (A) in subsection (a), by striking ‘‘sex,’’ 

16 and inserting ‘‘sex (including sexual orientation, 

17 gender identity, pregnancy, childbirth, a med18 ical condition related to pregnancy or childbirth, 

19 and a sex stereotype),’’; and 

20 (B) in subsection (c), by striking ‘‘sex’’ 

21 and inserting ‘‘sex (including sexual orientation, 

22 gender identity, pregnancy, childbirth, a med23 ical condition related to pregnancy or childbirth, 

24 and a sex stereotype),’’. 


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1 (6) GOVERNMENT EMPLOYEE RIGHTS ACT OF

2 1991.—The Government Employee Rights Act of 

3 1991 (42 U.S.C. 2000e–16a et seq.) is amended— 

4 (A) in section 301(b), by striking ‘‘sex,’’ 

5 and inserting ‘‘sex (including sexual orientation, 

6 gender identity, pregnancy, childbirth, a med7 ical condition related to pregnancy or childbirth, 

8 and a sex stereotype),’’; 

9 (B) in section 302(a)(1), by striking ‘‘sex,’’ 

10 and inserting ‘‘sex (including sexual orientation, 

11 gender identity, pregnancy, childbirth, a med12 ical condition related to pregnancy or childbirth, 

13 and a sex stereotype),’’; and 

14 (C) by adding at the end the following: 

15 ‘‘SEC. 305. RULES OF CONSTRUCTION AND CLAIMS. 

16 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 

17 Rights Act of 1964 shall apply to this title except that 

18 for purposes of that application, a reference in that section 

19 1106 to ‘race, color, religion, sex (including sexual orienta20 tion, gender identity, pregnancy, childbirth, a medical con21 dition related to pregnancy or childbirth, and a sex stereo22 type), or national origin’ shall be considered to be a ref23 erence to ‘race, color, religion, sex (including sexual ori24 entation, gender identity, pregnancy, childbirth, a medical 


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1 condition related to pregnancy or childbirth, and a sex 

2 stereotype), national origin, age, or disability’.’’. 

3 (7) CONGRESSIONAL ACCOUNTABILITY ACT OF

4 1995.—The Congressional Accountability Act of 1995 

5 (2 U.S.C. 1301 et seq.) is amended— 

6 (A) in section 201(a)(1) (2 U.S.C. 

7 1311(a)(1)) by striking ‘‘sex,’’ and inserting 

8 ‘‘sex (including sexual orientation, gender iden9 tity, pregnancy, childbirth, a medical condition 

10 related to pregnancy or childbirth, and a sex 

11 stereotype),’’; and 

12 (B) by adding at the end of title II (42 

13 U.S.C. 1311 et seq.) the following: 

14 ‘‘SEC. 208. RULES OF CONSTRUCTION AND CLAIMS. 

15 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 

16 Rights Act of 1964 shall apply to section 201 (and reme17 dial provisions of this Act related to section 201) except 

18 that for purposes of that application, a reference in that 

19 section 1106 to ‘race, color, religion, sex (including sexual 

20 orientation, gender identity, pregnancy, childbirth, a med21 ical condition related to pregnancy or childbirth, and a sex 

22 stereotype), or national origin’ shall be considered to be 

23 a reference to ‘race, color, religion, sex (including sexual 

24 orientation, gender identity, pregnancy, childbirth, a medVerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148

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1 ical condition related to pregnancy or childbirth, and a sex 

2 stereotype), national origin, age, or disability’.’’. 

3 (8) CIVIL SERVICE REFORM ACT OF 1978.— 

4 Chapter 23 of title 5, United States Code, is amend5 ed— 

6 (A) in section 2301(b)(2), by striking 

7 ‘‘sex,’’ and inserting ‘‘sex (including sexual ori8 entation, gender identity, pregnancy, childbirth, 

9 a medical condition related to pregnancy or 

10 childbirth, and a sex stereotype),’’; 

11 (B) in section 2302— 

12 (i) in subsection (b)(1)(A), by striking 

13 ‘‘sex,’’ and inserting ‘‘sex (including sexual 

14 orientation, gender identity, pregnancy, 

15 childbirth, a medical condition related to 

16 pregnancy or childbirth, and a sex stereo17 type),’’; and 

18 (ii) in subsection (d)(1), by striking 

19 ‘‘sex,’’ and inserting ‘‘sex (including sexual 

20 orientation, gender identity, pregnancy, 

21 childbirth, a medical condition related to 

22 pregnancy or childbirth, and a sex stereo23 type),’’; and 

24 (C) by adding at the end the following: 


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1 ‘‘SEC. 2307. RULES OF CONSTRUCTION AND CLAIMS. 

2 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 

3 Rights Act of 1964 shall apply to this chapter (and reme4 dial provisions of this title related to this chapter) except 

5 that for purposes of that application, a reference in that 

6 section 1106 to ‘race, color, religion, sex (including sexual 

7 orientation, gender identity, pregnancy, childbirth, a med8 ical condition related to pregnancy or childbirth, and a sex 

9 stereotype), or national origin’ shall be considered to be 

10 a reference to ‘race, color, religion, sex (including sexual 

11 orientation, gender identity, pregnancy, childbirth, a med12 ical condition related to pregnancy or childbirth, and a sex 

13 stereotype), national origin, age, disability, marital status, 

14 or political affiliation’.’’. 

15 (b) MISCELLANEOUS.—Title XI of the Civil Rights 

16 Act of 1964 is amended— 

17 (1) by redesignating sections 1101 through 

18 1104 (42 U.S.C. 2000h et seq.) and sections 1105 

19 and 1106 (42 U.S.C. 2000h–5, 2000h–6) as sections 

20 1102 through 1105 and sections 1108 and 1109, re21 spectively; 

22 (2) by inserting after the title heading the fol23 lowing: 

24 ‘‘SEC. 1101. DEFINITIONS AND RULES. 

25 ‘‘(a) DEFINITIONS.—In title VII: 


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1 ‘‘(1) RACE; COLOR; RELIGION; SEX; SEXUAL

2 ORIENTATION; GENDER IDENTITY; NATIONAL ORI3 GIN.—The term ‘race’, ‘color’, ‘religion’, ‘sex’, or 

4 ‘national origin’, used with respect to an individual, 

5 includes— 

6 ‘‘(A) the race, color, religion, sex (includ7 ing sexual orientation, gender identity, preg8 nancy, childbirth, a medical condition related to 

9 pregnancy or childbirth, and a sex stereotype), 

10 or national origin, respectively, of another per11 son with whom the individual is associated or 

12 has been associated; and 

13 ‘‘(B) a perception or belief, even if inac14 curate, concerning the race, color, religion, sex 

15 (including sexual orientation, gender identity, 

16 pregnancy, childbirth, a medical condition re17 lated to pregnancy or childbirth, and a sex 

18 stereotype), or national origin, respectively, of 

19 the individual. 

20 ‘‘(2) GENDER IDENTITY.—The term ‘gender 

21 identity’ means the gender-related identity, appear22 ance, mannerisms, or other gender-related character23 istics of an individual, regardless of the individual’s 

24 designated sex at birth. 


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1 ‘‘(3) INCLUDING.—The term ‘including’ means 

2 including, but not limited to, consistent with the 

3 term’s standard meaning in Federal law. 

4 ‘‘(4) SEXUAL ORIENTATION.—The term ‘sexual 

5 orientation’ means homosexuality, heterosexuality, or 

6 bisexuality. 

7 ‘‘(b) RULES.—In title VII— 

8 ‘‘(1) with respect to sex, an individual’s preg9 nancy, childbirth, or related medical condition shall 

10 not receive less favorable treatment than other phys11 ical conditions; and 

12 ‘‘(2) with respect to gender identity, an indi13 vidual shall not be denied access to a shared facility, 

14 including a restroom, a locker room, and a dressing 

15 room, that is in accordance with the individual’s 

16 gender identity.’’; and 

17 (3) by inserting after section 1105 the fol18 lowing: 

19 ‘‘SEC. 1106. RULES OF CONSTRUCTION. 

20 ‘‘(a) SEX.—Nothing in section 1101 or the provisions 

21 of title VII incorporating a term defined or a rule specified 

22 in that section shall be construed— 

23 ‘‘(1) to limit the protection against an unlawful 

24 practice on the basis of pregnancy, childbirth, a 


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1 medical condition related to pregnancy or childbirth 

2 provided by section 701(k); or 

3 ‘‘(2) to limit the protection against an unlawful 

4 practice on the basis of sex available under any pro5 vision of Federal law other than title VII, prohib6 iting a practice on the basis of sex. 

7 ‘‘(b) CLAIMS AND REMEDIES NOT PRECLUDED.— 

8 Nothing in section 1101 or title VII shall be construed 

9 to limit the claims or remedies available to any individual 

10 for an unlawful practice on the basis of race, color, reli11 gion, sex (including sexual orientation, gender identity, 

12 pregnancy, childbirth, a medical condition related to preg13 nancy or childbirth, and a sex stereotype), or national ori14 gin including claims brought pursuant to section 1979 or 

15 1980 of the Revised Statutes (42 U.S.C. 1983, 1985) or 

16 any other law, including a Federal law amended by the 

17 BE HEARD in the Workplace Act, regulation, or policy. 

18 ‘‘(c) NO NEGATIVE INFERENCE.—Nothing in section 

19 1101 or title VII shall be construed to support any infer20 ence that any Federal law prohibiting a practice on the 

21 basis of sex does not prohibit discrimination on the basis 

22 of pregnancy, childbirth, a medical condition related to 

23 pregnancy or childbirth, sexual orientation, gender iden24 tity, or a sex stereotype. 


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1 ‘‘SEC. 1107. CLAIMS. 

2 ‘‘The Religious Freedom Restoration Act of 1993 (42 

3 U.S.C. 2000bb et seq.) shall not provide a claim con4 cerning, or a defense to a claim under, title VII, or provide 

5 a basis for challenging the application or enforcement of 

6 title VII.’’. 

7 SEC. 202. COVERED EMPLOYERS. 

8 Section 701(b) of the Civil Rights Act of 1964 (42 

9 U.S.C. 2000e(b)) is amended by striking ‘‘fifteen’’ and in10 serting ‘‘one’’. 

11 SEC. 203. COMPENSATORY AND PUNITIVE DAMAGES AVAIL12 ABLE. 

13 (a) CIVIL RIGHTS; DISABILITY.— 

14 (1) IN GENERAL.—Section 1977A(b) of the Re15 vised Statutes (42 U.S.C. 1981a(b)) is amended by 

16 striking paragraph (3) and inserting the following: 

17 ‘‘(3) LOSSES.—Compensatory damages are 

18 available under this section for future pecuniary 

19 losses, emotional pain, suffering, inconvenience, 

20 mental anguish, loss of enjoyment of life, and other 

21 nonpecuniary losses.’’. 

22 (2) CONFORMING AMENDMENTS.— 

23 (A) Section 201(b) of the Congressional 

24 Accountability Act of 1995 (2 U.S.C. 1311(b)) 

25 is amended, in paragraphs (1)(B) and (3)(B)— 


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1 (i) by striking ‘‘and, irrespective of 

2 the size of the employing office, 

3 1977A(b)(3)(D)’’ and inserting ‘‘and 

4 1977A(b)(3)’’; and 

5 (ii) by striking ‘‘and 1981a(b)(3)(D)’’ 

6 and inserting ‘‘and 1981a(b)(3)’’. 

7 (B) Section 411(b) of title 3, United 

8 States Code, is amended, in paragraphs (1)(B) 

9 and (3)(B), by striking ‘‘and, irrespective of the 

10 size of the employing office, 1977A(b)(3)(D)’’ 

11 and inserting ‘‘and 1977A(b)(3)’’. 

12 (C) Section 207 of the Genetic Information 

13 Nondiscrimination Act of 2008 (42 U.S.C. 

14 2000ff–16) is amended, in paragraph (3) of 

15 each of subsections (a) through (e), by striking 

16 ‘‘, including the limitations contained in sub17 section (b)(3) of such section 1977A,’’. 

18 (b) AGE.—Section 7(b) of the Age Discrimination in 

19 Employment Act of 1967 (29 U.S.C. 626(b)) is amend20 ed— 

21 (1) by striking ‘‘(b) The’’ and all that follows 

22 through the third sentence and inserting the fol23 lowing: 

24 ‘‘(b)(1) Except as otherwise provided in another sub25 section of this section, or section 9, the powers, remedies, 


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1 and procedures set forth in sections 705, 706, 707, 709, 

2 and 710 of the Civil Rights Act of 1964 (42 U.S.C. 

3 2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9) 

4 shall be the powers, remedies, and procedures this Act 

5 provides to the Commission, to the Attorney General, or 

6 to any person alleging discrimination on the basis of age 

7 in violation of section 4, or regulations promulgated under 

8 section 9.’’; and 

9 (2) in the second sentence of that subsection 

10 (b), as amended by paragraph (1), by striking ‘‘or 

11 enforcing the liability for amounts deemed to be un12 paid minimum wages or unpaid overtime compensa13 tion under this section’’ and inserting ‘‘and includ14 ing any type of legal or equitable relief available 

15 under title VII of the Civil Rights Act of 1964 (42 

16 U.S.C. 2000e et seq.)’’. 

17 SEC. 204. HARASSMENT AND DISCRIMINATION; STANDARDS 

18 OF PROOF. 

19 (a) FINDINGS.—Congress finds that— 

20 (1) harassment is a persistent and significant 

21 problem in the workplace in the United States; 

22 (2) workers are harassed because of their sex 

23 (including sexual orientation, gender identity, preg24 nancy, childbirth, or a medical condition related to 

25 pregnancy or childbirth, and a sex stereotype), race, 


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1 color, religion, national origin, age, disability, genetic 

2 information, and uniformed services status; 

3 (3) Congress enacted title VII of the Civil 

4 Rights Act of 1964 intending to provide broad pro5 tection from many forms of bias in the workplace; 

6 (4) the Supreme Court has recognized in City 

7 of Los Angeles Department of Water and Power v. 

8 Manhart, 435 U.S. 702 (1978), that the protection 

9 against sex discrimination in the terms, conditions, 

10 or privileges of employment under title VII of the 

11 Civil Rights Act of 1964 reflects Congress’ intent to 

12 ‘‘strike at the entire spectrum’’ of sex-based dis13 crimination in employment; 

14 (5) in 1980, the Equal Employment Oppor15 tunity Commission (referred to in this section as 

16 ‘‘the Commission’’) amended its Guidelines on Dis17 crimination Because of Sex (referred to in this sec18 tion as ‘‘the Guidelines’’) to specify that sexual har19 assment is a form of sex discrimination prohibited 

20 by title VII of the Civil Rights Act of 1964; 

21 (6) in the Guidelines, the Commission explained 

22 that harassing conduct is unlawful where— 

23 (A) ‘‘submission to such conduct is made 

24 either explicitly or implicitly a term or condition 

25 of an individual’s employment’’; 


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1 (B) ‘‘submission to or rejection of such 

2 conduct by an individual is used as the basis for 

3 employment decisions’’; or 

4 (C) the conduct ‘‘has the purpose or effect 

5 of unreasonably interfering with an individual’s 

6 work performance or creating an intimidating, 

7 hostile, or offensive working environment’’; 

8 (7) the Commission further explained that, with 

9 respect to the evidence required to support a finding 

10 of unlawful harassment, it ‘‘will look at the record 

11 as a whole and at the totality of the circumstances, 

12 such as the nature of the sexual advances and the 

13 context in which the alleged incidents occurred’’ and 

14 emphasized that the ‘‘determination of the legality of 

15 a particular action will be made from the facts, on 

16 a case by case basis’’; 

17 (8) six years later, the Supreme Court in 

18 Meritor Savings Bank v. Vinson, 477 U.S. 57 

19 (1986), recognized that the protections under title 

20 VII of the Civil Rights Act of 1964 are not limited 

21 to discrimination that causes ‘‘economic’’ or ‘‘tan22 gible’’ loss, and held that the phrase ‘‘terms, condi23 tions, or privileges of employment’’ in title VII of 

24 such Act is an ‘‘expansive concept that sweeps with25 in its protective ambit’’ the practice of creating a 


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1 hostile work environment based on discrimination in 

2 the form of harassment; 

3 (9) in reaching this conclusion in the Meritor 

4 decision, the Supreme Court cited and approved the 

5 Guidelines; 

6 (10) in the Meritor decision, the Supreme Court 

7 cited with approval lower court decisions that con8 cluded that a hostile work environment based on 

9 race, religion, or national origin violates the prohibi10 tion of discrimination in the terms, conditions, or 

11 privileges of employment under title VII of the Civil 

12 Rights Act of 1964, which decisions included— 

13 (A) Rogers v. EEOC, 454 F.2d 234 (5th 

14 Cir. 1971); 

15 (B) Firefighters Institute for Racial 

16 Equality v. City of St. Louis, 549 F.2d 506 

17 (8th Cir. 1977); 

18 (C) Gray v. Greyhound Lines, 545 F.2d 

19 169 (D.C. Cir. 1976); 

20 (D) Compston v. Borden, Inc., 424 F. 

21 Supp. 157 (S.D. Ohio 1976); and 

22 (E) Cariddi v. Kansas City Chiefs Football 

23 Club, Inc., 568 F.2d 87 (8th Cir. 1977); 

24 (11) in defining the evidence required to prove 

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


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1 1964, in the Meritor decision, the Supreme Court 

2 noted that harassment would be actionable when it 

3 is ‘‘sufficiently severe or pervasive ‘to alter the con4 ditions of [the victim’s] employment and create an 

5 abusive working environment’ ’’ (quoting Rogers v. 

6 EEOC, 454 F.2d 234 (5th Cir. 1971)); 

7 (12) in Harris v. Forklift Systems, Inc., 510 

8 U.S. 17 (1993), the Supreme Court clarified that 

9 harassment need not seriously affect an employee’s 

10 psychological well-being or lead the employee to suf11 fer injury in order to be unlawful, but rather, need 

12 merely create a work environment that a reasonable 

13 person in the protected class would find hostile or 

14 abusive; 

15 (13) in Harris v. Forklift Systems, Inc., the Su16 preme Court held that whether a work environment 

17 is unlawfully hostile or abusive does not depend on 

18 any mathematically precise test, but rather, is to be 

19 determined by looking at all of the circumstances, 

20 with no single factor required; 

21 (14) in National Railroad Passenger Corp. v. 

22 Morgan, 536 U.S. 101 (2002), the Supreme Court 

23 reaffirmed the Harris decision and further held that 

24 the hostility or abusiveness of each harassing act 

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1 tion, regardless of whether such acts occur over days 

2 or even years; 

3 (15) notwithstanding the rulings of the Su4 preme Court specified in this subsection, some lower 

5 court decisions have treated harassing conduct’s se6 verity or pervasiveness as the only 2 relevant factors 

7 in evaluating whether such conduct violates title VII 

8 of the Civil Rights Act of 1964; 

9 (16) some lower court decisions have treated 

10 ‘‘severe or pervasive’’ as a threshold for liability, 

11 when the relevant inquiry is whether the harassing 

12 conduct actually altered the terms, conditions, or 

13 privileges of employment; 

14 (17) some lower court decisions further have in15 terpreted the ‘‘severe or pervasive’’ language in the 

16 Meritor decision so narrowly as to recognize only the 

17 most egregious conduct as unlawful, despite Con18 gress’ intent that title VII of the Civil Rights Act of 

19 1964 afford a broad scope of protection from dis20 crimination; 

21 (18) examples of decisions that use the erro22 neous analysis described in paragraphs (15) through 

23 (17) in the context of harassment on the basis of sex 

24 include— 


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1 (A) Singleton v. Department of Correc2 tional Education, 115 Fed. Appx. 119 (4th Cir. 

3 2004); 

4 (B) Black v. Zaring Homes, Inc., 104 F.3d 

5 822 (6th Cir. 1997); 

6 (C) Weiss v. Coca-Cola Bottling Co., 990 

7 F.2d 333 (7th Cir. 1993); 

8 (D) Rickard v. Swedish Match North 

9 America, Inc., 773 F.3d 181 (8th Cir. 2014); 

10 (E) Mitchell v. Pope, 189 F. Appx. 911 

11 (11th Cir. 2006); and 

12 (F) Brooks v. City of San Mateo, 229 

13 F.3d 917 (9th Cir. 2000); 

14 (19) lower courts have made similar erroneous 

15 decisions in the context of harassment on the basis 

16 of race, national origin, age, and disability such as 

17 in Crawford v. Medina General Hospital, 96 F.3d 

18 830 (6th Cir. 1996), Shaver v. Independent Stave 

19 Co., 350 F.3d 716 (8th Cir. 2003), and Motley v. 

20 Parker-Hannifan Corp., No. 1: 94–CV–639 (W.D. 

21 Mich. 1995); 

22 (20) in contrast, other lower court decisions ap23 plying the Meritor case and its progeny have appro24 priately recognized that a wide range of harassing 

25 behavior may alter the terms, conditions, or priviVerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148

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1 leges of employment, with no single type, frequency, 

2 or duration of conduct required to make a showing 

3 of severe or pervasive harassment; 

4 (21) for example, in the context of harassment 

5 based on sex, those decisions have held that— 

6 (A) conduct need not be physical to create 

7 a hostile or abusive work environment, as in 

8 Billings v. Town of Grafton, 515 F.3d 39 (1st 

9 Cir. 2008); 

10 (B) an individual need not be the target of 

11 sexually demeaning conduct in order to experi12 ence unlawful harassment, as in Petrosino v. 

13 Bell Atlantic, 385 F.3d 210 (2d Cir. 2004); 

14 (C) power disparities, such as the young 

15 age of the individual harassed, compound the 

16 conduct’s harmful effects, as in EEOC v. R&R 

17 Ventures, 244 F.3d 334 (4th Cir. 2001); 

18 (D) gender-based epithets are equally as 

19 unlawful as overtly sexual conduct, as in Galla20 gher v. C.H. Robinson Worldwide, Inc., 567 

21 F.3d 263 (6th Cir. 2009); and 

22 (E) a single incident can alter the terms, 

23 conditions, or privileges of employment, as in 

24 Howley v. Town of Stratford, 217 F.3d 141 (2d 

25 Cir. 2000); 


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1 (22) similarly, in the context of harassment 

2 based on other protected characteristics, other 

3 courts have appropriately held that— 

4 (A) calling an individual an ‘‘old man’’ and 

5 ‘‘pops’’ could create an actionably hostile work 

6 environment based on age, as in Dediol v. Best 

7 Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011); 

8 (B) repeatedly calling an individual with 

9 mental illness ‘‘crazy’’ and stating that the indi10 vidual is a threat to security is sufficient to 

11 support a finding of a hostile work environment 

12 based on disability, as in Quiles-Quiles v. Hen13 derson, 439 F.3d 1 (1st Cir. 2006); and 

14 (C) a single incident of calling an African15 American individual the ‘‘n word’’ is sufficient 

16 to support a finding of a hostile work environ17 ment based on race, as in Rodgers v. Western18 Southern Life Insurance Co., 12 F.3d 668 (7th 

19 Cir. 1993); and 

20 (23) similar erroneous decisions have been ren21 dered in the context of harassment on the basis of 

22 sex in employment under title IX of the Education 

23 Amendments of 1972 (20 U.S.C. 1681 et seq.), as 

24 in Farmer v. Troy University, No. 5:17–CV–70–B0 

25 (E.D.N.C. 2017). 


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1 (b) PURPOSES.—The purposes of this section are 

2 to— 

3 (1) enact into statutory law provisions that es4 tablish that workplace harassment is a violation of 

5 the— 

6 (A) protections from discrimination in the 

7 ‘‘terms, conditions, or privileges of employ8 ment’’ found in title VII of the Civil Rights Act 

9 of 1964 (42 U.S.C. 2000e et seq.); 

10 (B) protections from disability discrimina11 tion found in title I of the Americans with Dis12 abilities Act of 1990 (42 U.S.C. 12111 et seq.) 

13 and sections 501 and 505 of the Rehabilitation 

14 Act of 1973 (29 U.S.C. 791, 794a); 

15 (C) protections from age discrimination 

16 found in the Age Discrimination in Employ17 ment Act of 1967 (29 U.S.C. 621 et seq.); 

18 (D) protections from genetic information 

19 discrimination found in title II of the Genetic 

20 Information Nondiscrimination Act of 2008 (42 

21 U.S.C. 2000ff et seq.); and 

22 (E) protections from uniformed services 

23 status discrimination found in section 4311 of 

24 title 38, United States Code; and 


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1 (2) establish a liability standard for workplace 

2 harassment that fulfills Congress’ intent of providing 

3 broad protection from discrimination in employment 

4 on the basis of race, color, religion, sex (including 

5 sexual orientation, gender identity, pregnancy, child6 birth, a medical condition related to pregnancy or 

7 childbirth, and a sex stereotype), national origin, 

8 age, disability, genetic information, and uniformed 

9 services status. 

10 (c) ENACTING INTO STATUTORY LAW PROVISIONS

11 ESTABLISHING WORKPLACE HARASSMENT AS AN UNLAW12 FUL EMPLOYMENT PRACTICE.— 

13 (1) CIVIL RIGHTS ACT OF 1964.—Section 703 of 

14 the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) 

15 is amended by adding at the end the following: 

16 ‘‘(o)(1)(A) In this subsection, the term ‘workplace 

17 harassment’ means conduct based on race, color, religion, 

18 sex (including sexual orientation, gender identity, preg19 nancy, childbirth, a medical condition related to pregnancy 

20 or childbirth, and a sex stereotype), or national origin, re21 gardless of whether it is direct or indirect, or verbal or 

22 nonverbal, that unreasonably alters an individual’s terms, 

23 conditions, or privileges of employment, including by cre24 ating an intimidating, hostile, or offensive work environ25 ment. 


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1 ‘‘(B)(i) In this subsection, the term includes sexual 

2 harassment, which is conduct that takes place in a cir3 cumstance described in clause (ii) and that takes the form 

4 of— 

5 ‘‘(I) a sexual advance; 

6 ‘‘(II) a request for sexual favors; or 

7 ‘‘(III) any other conduct of a sexual nature. 

8 ‘‘(ii) A circumstance described in this clause is a situ9 ation in which— 

10 ‘‘(I) submission to the conduct involved is made 

11 either explicitly or implicitly a term or condition of 

12 employment; 

13 ‘‘(II) submission to or rejection of such conduct 

14 is used as the basis for an employment decision af15 fecting an individual’s employment; or 

16 ‘‘(III) such conduct unreasonably alters an indi17 vidual’s terms, conditions, or privileges of employ18 ment, including by creating an intimidating hostile, 

19 or offensive work environment. 

20 ‘‘(2) It shall be an unlawful employment practice 

21 under subsection (a) to engage in workplace harassment. 

22 ‘‘(3) In determining, for purposes of this subsection, 

23 whether conduct constitutes workplace harassment be24 cause the conduct unreasonably alters an individual’s 

25 terms, conditions, or privileges of employment, including 


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1 by creating an intimidating, hostile, or offensive work en2 vironment, the following rules shall apply: 

3 ‘‘(A) That determination shall be made on the 

4 basis of the record as a whole, according to the to5 tality of the circumstances. A single incident may 

6 constitute workplace harassment. 

7 ‘‘(B) Incidents that may be workplace harass8 ment shall be considered in the aggregate, with— 

9 ‘‘(i) conduct of varying types (such as ex10 pressions of sex-based hostility, requests for 

11 sexual favors, and denial of employment oppor12 tunities due to sexual orientation) viewed in to13 tality, rather than in isolation; and 

14 ‘‘(ii) conduct based on multiple protected 

15 characteristics (such as sex and race) viewed in 

16 totality, rather than in isolation. 

17 ‘‘(C) The factors specified in this subparagraph 

18 are among the factors to be considered in deter19 mining whether conduct constitutes workplace har20 assment and are not meant to be exhaustive. No one 

21 of those factors shall be considered to be determina22 tive in establishing whether conduct constitutes 

23 workplace harassment. Such factors are each of the 

24 following: 

25 ‘‘(i) The frequency of the conduct. 


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1 ‘‘(ii) The duration of the conduct. 

2 ‘‘(iii) The location where the conduct oc3 curred. 

4 ‘‘(iv) The number of individuals engaged in 

5 the conduct. 

6 ‘‘(v) The nature of the conduct, which may 

7 include physical, verbal, pictorial, or visual con8 duct, and conduct that occurs in person or is 

9 transmitted, such as electronically. 

10 ‘‘(vi) Whether the conduct is threatening. 

11 ‘‘(vii) Any power differential between the 

12 alleged harasser and the person allegedly har13 assed. 

14 ‘‘(viii) Any use of epithets, slurs, or other 

15 conduct that is humiliating or degrading. 

16 ‘‘(ix) Whether the conduct reflects stereo17 types about individuals in the protected class 

18 involved. 

19 ‘‘(4) In determining, for purposes of this subsection, 

20 whether conduct constitutes workplace harassment, con21 duct may be workplace harassment regardless of whether, 

22 for example— 

23 ‘‘(A) the complaining party is not the individual 

24 being harassed; 


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1 ‘‘(B) the complaining party acquiesced or other2 wise submitted to, or participated in, the conduct; 

3 ‘‘(C) the conduct is also experienced by others 

4 outside the protected class involved; 

5 ‘‘(D) the complaining party was able to con6 tinue carrying out duties and responsibilities of the 

7 party’s job despite the conduct; 

8 ‘‘(E) the conduct did not cause a tangible in9 jury or psychological injury; or 

10 ‘‘(F) the conduct occurred outside of the work11 place.’’. 

12 (2) AMERICANS WITH DISABILITIES ACT OF

13 1990.—Section 102(b) of the Americans with Disabil14 ities Act (42 U.S.C. 12112(b)) is amended— 

15 (A) in paragraph (6), by striking ‘‘and’’ at 

16 the end; 

17 (B) in paragraph (7), by striking the pe18 riod and inserting ‘‘; and’’; and 

19 (C) by adding at the end the following: 

20 ‘‘(8) engaging in workplace harassment, which 

21 is conduct based on disability, regardless of whether 

22 it is direct or indirect, or verbal or nonverbal, that— 

23 ‘‘(A) unreasonably alters an individual’s 

24 terms, conditions, or privileges of employment, 


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1 including by creating an intimidating, hostile, 

2 or offensive work environment; and 

3 ‘‘(B) is determined to be such harassment 

4 in accordance with paragraphs (3) and (4) of 

5 section 703(o) of the Civil Rights Act of 1964 

6 (42 U.S.C. 2000e–2(o)).’’. 

7 (3) REHABILITATION ACT OF 1973.—Section 

8 501(f) of the Rehabilitation Act of 1973 (29 U.S.C. 

9 791(f)) is amended by inserting ‘‘, including section 

10 102(b) of that Act (42 U.S.C. 12112(b))’’, before 

11 ‘‘and the provisions’’. 

12 (4) AGE DISCRIMINATION IN EMPLOYMENT

13 ACT.—Section 4 of the Age Discrimination in Em14 ployment Act of 1967 (29 U.S.C. 623) is amended 

15 by adding at the end the following: 

16 ‘‘(n) It shall be unlawful under subsection (a) to en17 gage in workplace harassment, which is conduct based on 

18 age, regardless of whether it is direct or indirect, or verbal 

19 or nonverbal, that— 

20 ‘‘(1) unreasonably alters an individual’s terms, 

21 conditions, or privileges of employment, including by 

22 creating an intimidating, hostile, or offensive work 

23 environment; and 

24 ‘‘(2) is determined to be such harassment in ac25 cordance with paragraphs (3) and (4) of section 


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1 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 

2 2000e–2(o)).’’. 

3 (5) GENETIC INFORMATION NONDISCRIMINA4 TION ACT OF 2008.—Section 202 of the Genetic In5 formation Nondiscrimination Act of 2008 (42 U.S.C. 

6 2000ff–1) is amended by adding at the end the fol7 lowing: 

8 ‘‘(d) WORKPLACE HARASSMENT.—It shall be an un9 lawful employment practice under subsection (a) to engage 

10 in workplace harassment, which is conduct based on ge11 netic information, regardless of whether it is direct or indi12 rect, or verbal or nonverbal, that— 

13 ‘‘(1) unreasonably alters an individual’s terms, 

14 conditions, or privileges of employment, including by 

15 creating an intimidating, hostile, or offensive work 

16 environment; and 

17 ‘‘(2) is determined to be such harassment in ac18 cordance with paragraphs (3) and (4) of section 

19 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 

20 2000e–2(o)).’’. 

21 (6) CHAPTER 43 OF TITLE 38, UNITED STATES

22 CODE.—Section 4311 of title 38, United States 

23 Code, is amended by adding at the end the fol24 lowing: 


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1 ‘‘(e) It shall be an unlawful employment practice 

2 under subsection (a) to engage in workplace harassment, 

3 which is conduct based on uniformed services status 

4 (meaning the membership, application for membership, 

5 performance of service, application for service, or obliga6 tion, described in subsection (a)), regardless of whether 

7 it is direct or indirect, or verbal or nonverbal, that— 

8 ‘‘(1) unreasonably alters an individual’s benefits 

9 of employment, including by creating an intimi10 dating, hostile, or offensive work environment; and 

11 ‘‘(2) is determined to be such harassment in ac12 cordance with paragraphs (3) and (4) of section 

13 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 

14 2000e–2(o)).’’. 

15 SEC. 205. CLARIFYING OTHER STANDARDS OF PROOF. 

16 (a) AMENDMENTS TO DEFINITIONS.— 

17 (1) AMERICANS WITH DISABILITIES ACT OF

18 1990.—Section 101 of the Americans with Disabil19 ities Act of 1990 (42 U.S.C. 12111) is amended by 

20 adding at the end the following: 

21 ‘‘(11) DEMONSTRATES.—The term ‘dem22 onstrates’ means meets the burdens of production 

23 and persuasion.’’. 

24 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT

25 OF 1967.—Section 11 of the Age Discrimination in 


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1 Employment Act of 1967 (29 U.S.C. 630) is amend2 ed by adding at the end the following: 

3 ‘‘(m) The term ‘demonstrates’ means meets the bur4 dens of production and persuasion.’’. 

5 (3) GENETIC INFORMATION NONDISCRIMINA6 TION ACT OF 2008.—Section 201 of the Genetic In7 formation Nondiscrimination Act of 2008 (42 U.S.C. 

8 2000ff) is amended by adding at the end the fol9 lowing: 

10 ‘‘(8) DEMONSTRATES.—The term ‘dem11 onstrates’ means meets the burdens of production 

12 and persuasion.’’. 

13 (b) CLARIFYING PROHIBITION AGAINST IMPERMIS14 SIBLE CONSIDERATION IN EMPLOYMENT PRACTICES.— 

15 (1) RACE, COLOR, RELIGION, SEX, OR NA16 TIONAL ORIGIN.—Section 703 of the Civil Rights 

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

18 striking subsection (m) and inserting the following: 

19 ‘‘(m) Except as otherwise provided in this title, an 

20 unlawful employment practice is established under this 

21 title when the complaining party demonstrates that race, 

22 color, religion, sex, or national origin or an activity pro23 tected by section 704(a) was a motivating factor for any 

24 employment practice, even though other factors also moti25 vated the practice.’’. 


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1 (2) DISABILITY.—Section 102 of the Americans 

2 with Disabilities Act of 1990 (42 U.S.C. 12112) is 

3 amended by adding at the end the following: 

4 ‘‘(e) PROOF.— 

5 ‘‘(1) ESTABLISHMENT.—Except as otherwise 

6 provided in this Act, a discriminatory practice is es7 tablished under this Act when the complaining party 

8 demonstrates that disability or an activity protected 

9 by subsection (a) or (b) of section 503 was a moti10 vating factor for any employment practice, even 

11 though other factors also motivated the practice. 

12 ‘‘(2) DEMONSTRATION.—In establishing a dis13 criminatory practice under paragraph (1) or by any 

14 other method of proof, a complaining party— 

15 ‘‘(A) may rely on any type or form of ad16 missible evidence and need only produce evi17 dence sufficient for a reasonable trier of fact to 

18 find that a discriminatory practice occurred 

19 under this Act; and 

20 ‘‘(B) shall not be required to demonstrate 

21 that disability or an activity protected by sub22 section (a) or (b) of section 503 was the sole 

23 cause of an employment practice.’’. 

24 (3) AGE.—Section 4 of the Age Discrimination 

25 in Employment Act of 1967 (29 U.S.C. 623) is 


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1 amended by inserting after subsection (f) the fol2 lowing: 

3 ‘‘(g)(1) Except as otherwise provided in this Act, an 

4 unlawful practice is established under this Act when the 

5 complaining party demonstrates that age or an activity 

6 protected by subsection (d) was a motivating factor for 

7 any practice, even though other factors also motivated the 

8 practice. 

9 ‘‘(2) In establishing an unlawful practice under this 

10 Act, including under paragraph (1) or by any other meth11 od of proof, a complaining party— 

12 ‘‘(A) may rely on any type or form of admis13 sible evidence and need only produce evidence suffi14 cient for a reasonable trier of fact to find that an 

15 unlawful practice occurred under this Act; and 

16 ‘‘(B) shall not be required to demonstrate that 

17 age or an activity protected by subsection (d) was 

18 the sole cause of a practice.’’. 

19 (4) GENETIC INFORMATION.—Section 202 of 

20 the Genetic Information Nondiscrimination Act of 

21 2008 (42 U.S.C. 2000ff–1), as amended by section 

22 204(c)(5), is further amended by adding at the end 

23 the following: 

24 ‘‘(e) PROOF.— 


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1 ‘‘(1) ESTABLISHMENT.—Except as otherwise 

2 provided in this title, an unlawful employment prac3 tice is established under this title when the com4 plaining party demonstrates that genetic information 

5 or an activity protected by section 207(f) was a mo6 tivating factor for any employment practice, even 

7 though other factors also motivated the practice. 

8 ‘‘(2) DEMONSTRATION.—In establishing an un9 lawful employment practice under paragraph (1) or 

10 by any other method of proof, a complaining party— 

11 ‘‘(A) may rely on any type or form of ad12 missible evidence and need only produce evi13 dence sufficient for a reasonable trier of fact to 

14 find that an unlawful employment practice oc15 curred under this title; and 

16 ‘‘(B) shall not be required to demonstrate 

17 that genetic information or an activity protected 

18 by section 207(f) was the sole cause of an em19 ployment practice.’’. 

20 (c) CERTAIN RETALIATION CLAIMS.— 

21 (1) AMERICANS WITH DISABILITIES ACT OF

22 1990.—Section 503(c) of the Americans with Disabil23 ities Act of 1990 (42 U.S.C. 12203(c)) is amend24 ed— 


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1 (A) by striking ‘‘The remedies’’ and insert2 ing the following: 

3 ‘‘(1) IN GENERAL.—Except as provided in para4 graph (2), the remedies’’; and 

5 (B) by adding at the end the following: 

6 ‘‘(2) CERTAIN ANTIRETALIATION CLAIMS.—Sec7 tion 107(c) shall apply to claims under section 

8 102(e)(1) with respect to title I.’’. 

9 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT

10 OF 1967.—Section 4(d) of the Age Discrimination in 

11 Employment Act of 1967 (29 U.S.C. 623(d)) is 

12 amended— 

13 (A) by striking ‘‘(d) It shall be’’ and in14 serting ‘‘(d)(1) It shall be’’; and 

15 (B) by adding at the end the following: 

16 ‘‘(2) Section 7(b)(2) shall apply to claims under sec17 tion 4(g)(1).’’. 

18 (3) GENETIC INFORMATION NONDISCRIMINA19 TION ACT OF 2008.—Section 207(f) of the Genetic 

20 Information Nondiscrimination Act of 2008 (42 

21 U.S.C. 2000ff–6(f)) is amended— 

22 (A) by striking ‘‘No’’ and inserting the fol23 lowing: 

24 ‘‘(1) IN GENERAL.—No’’; 


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1 (B) in the second sentence, by striking 

2 ‘‘The remedies’’ and inserting ‘‘Except as pro3 vided in paragraph (2), the remedies’’; and 

4 (C) by adding at the end the following: 

5 ‘‘(2) CERTAIN RETALIATION CLAIMS.—Sub6 section (g) shall apply to claims under section 

7 202(d)(1).’’. 

8 (d) REMEDIES.— 

9 (1) AMERICANS WITH DISABILITIES ACT OF

10 1990.—Section 107 of the Americans with Disabil11 ities Act of 1990 (42 U.S.C. 12117) is amended by 

12 adding at the end the following: 

13 ‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a 

14 claim in which an individual demonstrates that disability 

15 was a motivating factor for any employment practice, 

16 under section 102(e)(1), and a respondent demonstrates 

17 that the respondent would have taken the same action in 

18 the absence of the impermissible motivating factor, the 

19 court— 

20 ‘‘(1) may grant declaratory relief, injunctive re21 lief (except as provided in paragraph (2)), and attor22 ney’s fees and costs demonstrated to be directly at23 tributable only to the pursuit of a claim under sec24 tion 102(e)(1); and 


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1 ‘‘(2) shall not award damages or issue an order 

2 requiring any admission, reinstatement, hiring, pro3 motion, or payment.’’. 

4 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT

5 OF 1967.—Section 7 of the Age Discrimination in 

6 Employment Act of 1967 (29 U.S.C. 626) is amend7 ed— 

8 (A) in subsection (b), as amended by sec9 tion 203(b)— 

10 (i) in the second sentence, by striking 

11 ‘‘In’’ and inserting ‘‘Subject to paragraph 

12 (2), in’’; 

13 (ii) in the third sentence, by striking 

14 ‘‘Before’’ and inserting the following: 

15 ‘‘(3) Before’’; and 

16 (iii) by inserting before paragraph (3), 

17 as designated by clause (ii), the following: 

18 ‘‘(2) On a claim in which an individual demonstrates 

19 that age was a motivating factor for any employment prac20 tice, under section 4(g)(1), and a respondent demonstrates 

21 that the respondent would have taken the same action in 

22 the absence of the impermissible motivating factor, the 

23 court— 

24 ‘‘(A) may grant declaratory relief, injunctive re25 lief (except as provided in subparagraph (B)), and 


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1 attorney’s fees and costs demonstrated to be directly 

2 attributable only to the pursuit of a claim under sec3 tion 4(g)(1); and 

4 ‘‘(B) shall not award damages or issue an order 

5 requiring any admission, reinstatement, hiring, pro6 motion, or payment.’’; and 

7 (B) in subsection (c)— 

8 (i) in paragraph (1), by striking 

9 ‘‘Any’’ and inserting ‘‘Subject to sub10 section (b)(2), any’’; and 

11 (ii) in paragraph (2), by striking ‘‘of 

12 any issue of fact’’ and all that follows 

13 through the period and inserting ‘‘under 

14 the same circumstances as a trial by jury 

15 is available under title VII of the Civil 

16 Rights Act of 1964 (42 U.S.C. 2000e et 

17 seq.).’’. 

18 (3) GENETIC INFORMATION NONDISCRIMINA19 TION ACT OF 2008.—Section 207 of the Genetic In20 formation Nondiscrimination Act of 2008 (42 U.S.C. 

21 2000ff–6) is amended— 

22 (A) by redesignating subsection (g) as sub23 section (h); and 

24 (B) by inserting after subsection (f) the 

25 following: 


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1 ‘‘(g) MOTIVATING FACTOR.—On a claim in which an 

2 individual demonstrates that genetic information was a 

3 motivating factor for any employment practice, under sec4 tion 202(e)(1), including a claim involving an employee or 

5 applicant described in any of subsections (a) through (e), 

6 and a respondent demonstrates that the respondent would 

7 have taken the same action in the absence of the imper8 missible motivating factor, the court or the corresponding 

9 decisionmaker specified in subsections (a) through (e)— 

10 ‘‘(1) may grant declaratory relief, injunctive re11 lief (except as provided in paragraph (2)), and attor12 ney’s fees and costs demonstrated to be directly at13 tributable only to the pursuit of a claim under sec14 tion 202(d)(1); and 

15 ‘‘(2) shall not award damages or issue an order 

16 requiring any admission, reinstatement, hiring, pro17 motion, or payment.’’. 

18 (e) FEDERAL EMPLOYEES.— 

19 (1) TITLE VII OF THE CIVIL RIGHTS ACT OF

20 1964.—Section 717 of the Civil Rights Act of 1964 

21 (42 U.S.C. 2000e–16) is amended by adding at the 

22 end the following: 

23 ‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 

24 to mixed motive cases (involving practices described in sec25 tion 703(m)) under this section.’’. 


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1 (2) REHABILITATION ACT OF 1973.—The 

2 amendment made by subsection (f) to section 501(f) 

3 of the Rehabilitation Act of 1973 (29 U.S.C. 791(f)) 

4 shall be construed to apply to all employees covered 

5 by section 501 of that Act (29 U.S.C. 791). 

6 (3) AGE DISCRIMINATION IN EMPLOYMENT ACT

7 OF 1967.—Section 15 of the Age Discrimination in 

8 Employment Act of 1967 (29 U.S.C. 633a) is 

9 amended— 

10 (A) in subsection (a)— 

11 (i) by striking ‘‘States) in’’ and insert12 ing ‘‘States) shall be made free from any 

13 discrimination based on age, in—’’; 

14 (ii) by striking ‘‘military depart15 ments’’ and inserting the following: 

16 ‘‘(1) military departments’’; 

17 (iii) by striking ‘‘Code, in executive 

18 agencies’’ and inserting the following: 

19 ‘‘Code; 

20 ‘‘(2) executive agencies’’; 

21 (iv) by striking ‘‘funds), in the United 

22 States Postal’’ and inserting the following: 

23 ‘‘funds); 

24 ‘‘(3) the United States Postal’’; 


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1 (v) by striking ‘‘Commission, in those 

2 units’’ and inserting the following: ‘‘Com3 mission; 

4 ‘‘(4) those units’’; 

5 (vi) by striking ‘‘competitive service, 

6 and in those units’’ and inserting the fol7 lowing: ‘‘competitive service; 

8 ‘‘(5) those units’’; 

9 (vii) by striking ‘‘competitive service, 

10 in the Smithsonian’’ and inserting ‘‘com11 petitive service; 

12 ‘‘(6) the Smithsonian’’; 

13 (viii) by striking ‘‘Institution, and in 

14 the Government’’ and inserting ‘‘Institu15 tion; 

16 ‘‘(7) the Government’’; 

17 (ix) by striking ‘‘Printing Office, the 

18 General’’ and inserting ‘‘Printing Office; 

19 ‘‘(8) the General’’; 

20 (x) by striking ‘‘Office, and the Li21 brary’’ and inserting ‘‘Office; and 

22 ‘‘(9) the Library’’; and 

23 (xi) by striking ‘‘of Congress’’ and all 

24 that follows and inserting ‘‘of Congress.’’; 


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1 (B) in subsection (b), by striking the first, 

2 second, third, fourth, and sixth sentences; 

3 (C) in subsection (c), by striking ‘‘Any per4 son’’ and inserting ‘‘Notwithstanding any other 

5 provision of this Act, any person’’; 

6 (D) by striking subsection (g) and insert7 ing the following: 

8 ‘‘(g) Except as otherwise provided in another sub9 section of this section, section 7, or section 9, the powers, 

10 remedies, and procedures provided in section 717 of the 

11 Civil Rights Act of 1964 (42 U.S.C. 2000e–16) to the 

12 Commission, the Attorney General, the Librarian of Con13 gress, or any person, alleging a violation of that section 

14 shall be the powers, remedies, and procedures this Act 

15 provides to the Commission, the Attorney General, the Li16 brarian of Congress, or any person, respectively, alleging 

17 an unlawful employment practice in violation of subsection 

18 (a) against an employee or applicant for employment de19 scribed in subsection (a).’’; and 

20 (E) by adding at the end the following: 

21 ‘‘(h) Section 4(g) shall apply to mixed motive claims 

22 (involving practices described in section 4(g)(1)) under 

23 this section.’’. 

24 (f) ADDITIONAL AMENDMENTS TO THE REHABILITA25 TION ACT OF 1973.—Sections 501(f), 503(d), and 504(d) 


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1 of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 

2 793(d), and 794(d)), are each amended by adding after 

3 the words ‘‘title I of the Americans with Disabilities Act 

4 of 1990 (42 U.S.C. 12111 et seq.)’’ the following: ‘‘, in5 cluding the standards of causation and methods of proof 

6 applied under section 102(e) of that Act (42 U.S.C. 

7 12112(e)),’’. 

8 (g) OTHER GOVERNMENT EMPLOYEES.— 

9 (1) CONGRESSIONAL ACCOUNTABILITY ACT OF

10 1995.—Section 201 of the Congressional Account11 ability Act of 1995 (2 U.S.C. 1311) is amended— 

12 (A) in subsection (a)(2), by striking ‘‘sec13 tion 15 of the Age Discrimination in Employ14 ment Act of 1967 (29 U.S.C. 633a)’’ and in15 serting ‘‘sections 4(g) and 15 of the Age Dis16 crimination in Employment Act of 1967 (29 

17 U.S.C. 623(g), 633a)’’; and 

18 (B) in subsection (b)— 

19 (i) in paragraph (2)(A), by striking 

20 ‘‘section 15(c) of the Age Discrimination in 

21 Employment Act of 1967 (29 U.S.C. 

22 633a(c))’’ and inserting ‘‘section 4(d)(2), 

23 paragraphs (1) and (2) of section 7(b), 

24 and section 15(c) of the Age DiscriminaVerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148

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1 tion in Employment Act of 1967 (29 

2 U.S.C. 623(d)(2), 626(b), 633a(c))’’; and 

3 (ii) in paragraph (3)(A), by striking 

4 ‘‘section 107(a) of the Americans with Dis5 abilities Act of 1990 (42 U.S.C. 

6 12117(a))’’ and inserting ‘‘subsections (a) 

7 and (c) of section 107, and section 

8 503(c)(2), of the Americans with Disabil9 ities Act of 1990 (42 U.S.C. 12117, 

10 12203)’’. 

11 (2) TITLE 3, UNITED STATES CODE.—Section 

12 411 of title 3, United States Code, is amended— 

13 (A) in subsection (a)(2), by striking ‘‘sec14 tion 15 of the Age Discrimination in Employ15 ment Act of 1967’’ and inserting ‘‘sections 4(g) 

16 and 15 of the Age Discrimination in Employ17 ment Act of 1967’’; and 

18 (B) in subsection (b)— 

19 (i) in paragraph (2)(A), by striking 

20 ‘‘section 15(c) of the Age Discrimination in 

21 Employment Act of 1967’’ and inserting 

22 ‘‘section 4(d)(2), paragraphs (1) and (2) of 

23 section 7(b), and section 15(c) of the Age 

24 Discrimination in Employment Act of 

25 1967’’; and 


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1 (ii) in paragraph (3)(A), by striking 

2 ‘‘section 107(a) of the Americans with Dis3 abilities Act of 1990’’ and inserting ‘‘sub4 sections (a) and (c) of section 107, and 

5 section 503(c)(2), of the Americans with 

6 Disabilities Act of 1990’’. 

7 (3) GOVERNMENT EMPLOYEE RIGHTS ACT OF

8 1991.—Section 302 of the Government Employee 

9 Rights Act of 1991 (42 U.S.C. 2000e–16b) is 

10 amended— 

11 (A) in subsection (a)(2), by striking ‘‘sec12 tion 15 of the Age Discrimination in Employ13 ment Act of 1967 (29 U.S.C. 633a)’’ and in14 serting ‘‘sections 4(g) and 15 of the Age Dis15 crimination in Employment Act of 1967 (29 

16 U.S.C. 623(g), 633a)’’; and 

17 (B) in subsection (b)— 

18 (i) in paragraph (1), by inserting 

19 ‘‘(and, in the case of a violation of sub20 section (a)(3), sections 107(c) and 

21 503(c)(2) of the Americans with Disabil22 ities Act of 1990 (42 U.S.C. 12117(c), 

23 12203(c)(2)))’’ before ‘‘, and’’; and 

24 (ii) in paragraph (2), by striking ‘‘sec25 tion 15(c) of the Age Discrimination in 


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1 Employment Act of 1967 (29 U.S.C. 

2 633a(c))’’ and inserting ‘‘section 4(d)(2), 

3 paragraphs (1) and (2) of section 7(b), 

4 and section 15(c) of the Age Discrimina5 tion in Employment Act of 1967 (29 

6 U.S.C. 623(d)(2), 626(b), 633a(c))’’. 

7 (h) APPLICATION.—This section, and the amend8 ments made by this section, shall apply to all claims pend9 ing on or after the date of enactment of this Act. 

10 SEC. 206. SUPERVISOR LIABILITY. 

11 (a) AMENDMENT TO TITLE VII OF THE CIVIL

12 RIGHTS ACT OF 1964.— 

13 (1) STANDARD FOR EMPLOYER LIABILITY FOR

14 HOSTILE WORK ENVIRONMENT.—Section 703 of the 

15 Civil Rights Act of 1964 (42 U.S.C. 2000e–2), as 

16 amended by 204(c)(1), is further amended by adding 

17 at the end the following: 

18 ‘‘(p) Subject to section 206(j) of the BE HEARD in 

19 the Workplace Act, an employer shall be liable for the acts 

20 of any individual whose harassment of an employee has 

21 created or continued a hostile work environment that con22 stitutes an unlawful employment practice under this sec23 tion if, at the time of the harassment— 

24 ‘‘(1) such individual was authorized by that em25 ployer— 


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1 ‘‘(A) to undertake or recommend tangible 

2 employment actions affecting the employee; or 

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

4 activities; or 

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

6 creation or continuation of that hostile work environ7 ment.’’. 

8 (2) STANDARD FOR EMPLOYER LIABILITY FOR

9 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec10 tion 704 of the Civil Rights Act of 1964 (42 U.S.C. 

11 2000e–3), as amended by section 201(a)(3), is fur12 ther amended— 

13 (A) by redesignating subsection (b) as sub14 section (c); and 

15 (B) by inserting after subsection (a) the 

16 following: 

17 ‘‘(b) Subject to section 206(j) of the BE HEARD in 

18 the Workplace Act, an employer shall be liable for the acts 

19 of any individual whose harassment of an employee has 

20 created or continued a retaliatory hostile work environ21 ment that constitutes an unlawful employment practice as 

22 described under subsection (a) if, at the time of the har23 assment— 

24 ‘‘(1) such individual was authorized by that em25 ployer— 


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1 ‘‘(A) to undertake or recommend tangible 

2 employment actions affecting the employee; or 

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

4 activities; or 

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

6 creation or continuation of that retaliatory hostile 

7 work environment.’’. 

8 (3) FEDERAL EMPLOYEES.—Section 717 of the 

9 Civil Rights Act of 1964 (42 U.S.C. 2000e–16), as 

10 amended by section 205(e)(1), is further amended 

11 by adding at the end the following: 

12 ‘‘(h) The provisions of sections 703(p) and 704(b) 

13 shall apply to hostile work environment claims and retalia14 tory hostile work environment claims, respectively, under 

15 this section.’’. 

16 (b) AMENDMENT TO THE AGE DISCRIMINATION IN

17 EMPLOYMENT ACT OF 1967.— 

18 (1) STANDARD FOR EMPLOYER LIABILITY FOR

19 HOSTILE WORK ENVIRONMENT.—Section 4 of the 

20 Age Discrimination in Employment Act of 1967 (29 

21 U.S.C. 623), as amended by section 204(c)(4), is 

22 further amended by adding at the end the following: 

23 ‘‘(o) Subject to section 206(j) of the BE HEARD in 

24 the Workplace Act, an employer shall be liable for the acts 

25 of any individual whose harassment of an employee has 


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1 created or continued a hostile work environment that is 

2 unlawful under this section if, at the time of the harass3 ment— 

4 ‘‘(1) such individual was authorized by that em5 ployer— 

6 ‘‘(A) to undertake or recommend tangible 

7 employment actions affecting the employee; or 

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

9 activities; or 

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

11 creation or continuation of that hostile work environ12 ment.’’. 

13 (2) STANDARD FOR EMPLOYER LIABILITY FOR

14 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec15 tion 4(d)(1) of the Age Discrimination in Employ16 ment Act of 1967 (29 U.S.C. 623(d)(1)), as amend17 ed by section 205(c)(2), is further amended by strik18 ing ‘‘or litigation under this Act.’’ and inserting ‘‘or 

19 litigation under this Act. Subject to section 206(j) of 

20 the BE HEARD in the Workplace Act, an employer 

21 shall be liable for the acts of any individual whose 

22 harassment of an employee has created or continued 

23 a retaliatory hostile work environment that is unlaw24 ful under this subsection if, at the time of the har25 assment— 


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1 ‘‘(A) such individual was authorized by 

2 that employer— 

3 ‘‘(i) to undertake or recommend tan4 gible employment actions affecting the em5 ployee; or 

6 ‘‘(ii) to direct the employee’s daily 

7 work activities; or 

8 ‘‘(B) the negligence of the employer led to 

9 the creation or continuation of that retaliatory 

10 hostile work environment.’’. 

11 (3) FEDERAL EMPLOYEES.—Section 15 of the 

12 Age Discrimination in Employment Act of 1967 (29 

13 U.S.C. 633a), as amended by section 205(e)(3), is 

14 further amended by adding at the end the following: 

15 ‘‘(i) Subsections (d) and (o) of section 4 shall apply 

16 to retaliatory hostile work environment claims and hostile 

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

19 (c) AMENDMENT TO THE AMERICANS WITH DISABIL20 ITIES ACT OF 1990.— 

21 (1) STANDARD FOR EMPLOYER LIABILITY FOR

22 HOSTILE WORK ENVIRONMENT.—Section 102 of the 

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

24 12112), as amended by section 205(b)(2), is further 

25 amended by adding at the end the following: 


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1 ‘‘(f) Subject to section 206(j) of the BE HEARD in 

2 the Workplace Act, an employer shall be liable for the acts 

3 of any individual whose harassment of an employee has 

4 created or continued a hostile work environment that con5 stitutes discrimination against a qualified individual on 

6 the basis of disability under this section if, at the time 

7 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 (2) STANDARD FOR EMPLOYER LIABILITY FOR

19 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec20 tion 503 of the Americans with Disabilities Act of 

21 1990 (42 U.S.C. 12203) is amended— 

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

24 (B) by inserting after subsection (b) the 

25 following: 


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1 ‘‘(c) Subject to section 206(j) of the BE HEARD in 

2 the Workplace Act, an employer shall be liable for the acts 

3 of any individual whose harassment of an employee has 

4 created or continued a retaliatory hostile work environ5 ment that constitutes retaliatory discrimination, as de6 scribed in subsection (a), or the carrying out of any unlaw7 ful acts described in subsection (b), if, at the time of the 

8 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 (C) in subsection (d), as redesignated by 

19 subparagraph (A), by striking ‘‘subsections (a) 

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

21 and (c)’’. 

22 (d) AMENDMENT TO THE REHABILITATION ACT OF

23 1973.— 

24 (1) STANDARD FOR EMPLOYER LIABILITY FOR

25 HOSTILE WORK ENVIRONMENT AND RETALIATORY


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1 HOSTILE WORK ENVIRONMENT.—Section 501 of the 

2 Rehabilitation Act of 1973 (29 U.S.C. 791) is 

3 amended by adding at the end the following: 

4 ‘‘(h) Subject to section 206(j) of the BE HEARD in 

5 the Workplace Act, each department, agency, and instru6 mentality in the executive branch of Government and the 

7 Smithsonian Institution shall be liable for the acts of any 

8 individual within such department, agency, instrumen9 tality, or the Smithsonian Institution whose harassment 

10 of an individual with a disability has created or continued 

11 a hostile work environment, or a retaliatory hostile work 

12 environment, that constitutes nonaffirmative action em13 ployment discrimination under this section if, at the time 

14 of the harassment— 

15 ‘‘(1) such individual was authorized by that de16 partment, agency, instrumentality, or the Smithso17 nian Institution— 

18 ‘‘(A) to undertake or recommend tangible 

19 employment actions affecting the individual 

20 with a disability; or 

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

22 the individual with a disability; or 

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

24 instrumentality, or the Smithsonian Institution led 

25 to the creation or continuation of that hostile work 


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

3 (2) STANDARD FOR EMPLOYER LIABILITY FOR

4 HOSTILE WORK ENVIRONMENT AND RETALIATORY

5 HOSTILE WORK ENVIRONMENT.—Section 504 of the 

6 Rehabilitation Act of 1973 (29 U.S.C. 794) is 

7 amended by adding at the end the following: 

8 ‘‘(e) Subject to section 206(j) of the BE HEARD in 

9 the Workplace Act, 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 (3) REMEDIES.—Section 505 of the Rehabilita2 tion Act of 1973 (29 U.S.C. 794a) is amended by 

3 adding at the end 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 (e) AMENDMENT TO SECTION 1977 OF THE REVISED

8 STATUTES.—Section 1977 of the Revised Statutes (42 

9 U.S.C. 1981) is amended by adding at the end the fol10 lowing: 

11 ‘‘(d) Subject to section 206(j) of the BE HEARD in 

12 the Workplace Act, a nongovernmental employer shall be 

13 liable for the acts of any individual whose harassment of 

14 an employee has created a hostile work environment or 

15 a retaliatory hostile work environment, constituting an un16 lawful employment practice, if, at the time of the harass17 ment— 

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 (f) AMENDMENT TO THE GENETIC INFORMATION

5 NONDISCRIMINATION ACT OF 2008.— 

6 (1) STANDARD FOR EMPLOYER LIABILITY FOR

7 HOSTILE WORK ENVIRONMENT.—Section 202 of the 

8 Genetic Information Nondiscrimination Act of 2008 

9 (42 U.S.C. 2000ff–1), as amended by sections 

10 204(c)(5) and 205(b)(4), is further amended by add11 ing at the end the following: 

12 ‘‘(f) Subject to section 206(j) of the BE HEARD in 

13 the Workplace Act, an employer shall be liable for the acts 

14 of any individual whose harassment of an employee has 

15 created or continued a hostile work environment that con16 stitutes an unlawful employment practice under this sec17 tion if, at the time of the harassment— 

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.’’. 

4 (2) STANDARD FOR EMPLOYER LIABILITY FOR

5 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec6 tion 207(f)(1) of the Genetic Information Non7 discrimination Act (42 U.S.C. 2000ff–6(f)(1)), as 

8 amended by section 205(c)(2), is further amended 

9 by striking ‘‘violations of this subsection.’’ and in10 serting ‘‘violations of this subsection. Subject to sec11 tion 206(j) of the BE HEARD in the Workplace 

12 Act, an employer shall be liable for the acts of any 

13 individual whose harassment of an employee has cre14 ated or continued a retaliatory hostile work environ15 ment that constitutes discrimination under this sub16 section if, at the time of the harassment— 

17 ‘‘(A) such individual was authorized by the 

18 employer— 

19 ‘‘(i) to undertake or recommend tan20 gible employment actions affecting the em21 ployee; or 

22 ‘‘(ii) to direct the employee’s daily 

23 work activities; or 


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1 ‘‘(B) the negligence of the employer led to 

2 the creation or continuation of that retaliatory 

3 hostile work environment.’’. 

4 (g) AMENDMENT TO THE GOVERNMENT EMPLOYEE

5 RIGHTS ACT OF 1991.—Section 302 of the Government 

6 Employee Rights Act of 1991 (42 U.S.C. 2000e–16b) is 

7 amended by adding at the end the following: 

8 ‘‘(c) Subject to section 206(j) of the BE HEARD in 

9 the Workplace Act, an employer of an individual described 

10 under section 304(a) shall be liable for the acts of any 

11 individual whose harassment of a State employee de12 scribed in section 304 has created or continued a hostile 

13 work environment or a retaliatory hostile work environ14 ment constituting discrimination under this section, if at 

15 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 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 or retaliatory hostile work environment.’’. 


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1 (h) AMENDMENT TO TITLE 3, UNITED STATES

2 CODE.—Section 411 of title 3, United States Code, is 

3 amended— 

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

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

6 (2) by inserting after subsection (b) the fol7 lowing: 

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

9 section 206(j) of the BE HEARD in the Workplace Act, 

10 an employing office shall be liable for the acts of any indi11 vidual whose harassment of a covered employee has cre12 ated or continued a hostile work environment or a retalia13 tory hostile work environment constituting discrimination 

14 under this section if, at the time 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.’’; and 


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1 (3) in subsection (f), as redesignated by para2 graph (1), by striking ‘‘subsections (a) through (c)’’ 

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

4 (i) AMENDMENT TO THE CONGRESSIONAL ACCOUNT5 ABILITY ACT OF 1995.—Section 201 of the Congressional 

6 Accountability Act of 1995 (2 U.S.C. 1311), as amended 

7 by section 302(a) of the Congressional Accountability Act 

8 of 1995 Reform Act, is further amended— 

9 (1) by striking subsection (e); and 

10 (2) by adding at the end the following: 

11 ‘‘(e) OUTSIDE INDIVIDUALS.—Subject to section 

12 206(j) of the BE HEARD in the Workplace Act, an em13 ploying office shall be liable for the acts of any individual 

14 whose harassment of a covered employee has created or 

15 continued a hostile work environment or a retaliatory hos16 tile work environment that constitutes discrimination 

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

18 ‘‘(1) such individual was authorized by the em19 ploying office— 

20 ‘‘(A) to undertake or recommend tangible 

21 employment actions affecting the covered em22 ployee; or 

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

24 work activities; or 


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

2 to the creation or continuation of that hostile work 

3 environment or retaliatory hostile work environ4 ment.’’. 

5 (j) RULE OF CONSTRUCTION.—Nothing in this sec6 tion shall be construed to limit the availability of, or access 

7 to, defenses available under the law. 

8 (k) APPLICATION.—This section, and the amend9 ments made by this section, shall apply to all claims pend10 ing on or after the date of enactment of this Act. 

11 SEC. 207. EXTENDING THE STATUTES OF LIMITATIONS. 

12 (a) CIVIL RIGHTS ACT OF 1964; AMERICANS WITH

13 DISABILITIES ACT OF 1990; GENETIC INFORMATION

14 NONDISCRIMINATION ACT OF 2008.—Section 706 of the 

15 Civil Rights Act of 1964 (42 U.S.C. 2000e–5) is amend16 ed— 

17 (1) in subsection (e)— 

18 (A) in paragraph (1)— 

19 (i) by striking ‘‘one hundred and 

20 eighty days after the alleged unlawful em21 ployment practice occurred’’ and inserting 

22 ‘‘4 years after the alleged unlawful employ23 ment practice occurred.’’; and 

24 (ii) by striking ‘‘three hundred days 

25 after the alleged unlawful employment 


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1 practice occurred’’ and inserting ‘‘4 years 

2 and 120 days after the alleged unlawful 

3 employment practice occurred.’’; and 

4 (B) in paragraph (3)(B), by striking ‘‘two 

5 years preceding the filing of the charge’’ and all 

6 that follows and inserting ‘‘4 years preceding 

7 the filing of the charge.’’; and 

8 (2) in subsection (g)(1), by striking ‘‘two years 

9 prior to the filing of a charge’’ and inserting ‘‘4 

10 years preceding the filing of the charge’’. 

11 (b) AGE DISCRIMINATION IN EMPLOYMENT ACT OF

12 1967.—Section 7(d) of the Age Discrimination in Employ13 ment Act of 1967 (29 U.S.C. 626(d)) is amended— 

14 (1) in the second sentence, by redesignating 

15 paragraphs (1) and (2) as subparagraphs (A) and 

16 (B), respectively; 

17 (2) by striking ‘‘(d)’’ and all that follows 

18 through ‘‘No’’ and inserting ‘‘(d)(1) No’’; and 

19 (3) in paragraph (1), as designated by para20 graph (2) of this subsection— 

21 (A) by striking ‘‘Secretary. Such’’ and in22 serting ‘‘Secretary, and such’’; 

23 (B) in subparagraph (A), by striking ‘‘180 

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1 curred’’ and inserting ‘‘4 years after the alleged 

2 unlawful practice occurred’’; and 

3 (C) in subparagraph (B), by striking ‘‘300 

4 days after the alleged unlawful practice oc5 curred’’ and inserting ‘‘4 years and 120 days 

6 after the alleged unlawful practice occurred’’. 

7 SEC. 208. EXTENDING THE TIME LIMITATIONS ON FEDERAL 

8 EMPLOYEES FILING A COMPLAINT. 

9 (a) IN GENERAL.—The Equal Employment Oppor10 tunity Commission (referred to in this section as ‘‘the 

11 Commission’’) shall ensure that a covered Federal em12 ployee shall not be required to take any action necessary 

13 to bring a complaint to the department, agency, unit, or 

14 instrumentality involved prior to 4 years from the date of 

15 the matter alleged to be discriminatory or, in the case of 

16 personnel action, 4 years from the effective date of the 

17 personnel action. 

18 (b) COVERED EMPLOYEES AND COMPLAINTS.—In 

19 this section, the term ‘‘covered Federal employee’’ 

20 means— 

21 (1) an employee or applicant to whom section 

22 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 

23 2000e–16(a)) applies, in the case of a complaint 

24 brought under section 717 of that Act (42 U.S.C. 

25 2000e–16); 


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1 (2) an employee or applicant to whom section 

2 15(a) of the Age Discrimination in Employment Act 

3 of 1967 (29 U.S.C. 633a(a)) applies, in the case of 

4 a complaint brought under section 15 of that Act 

5 (29 U.S.C. 633a); 

6 (3) an employee or applicant to whom section 

7 501 of the Rehabilitation Act of 1973 (29 U.S.C. 

8 791) applies, in the case of a complaint brought to 

9 enforce that section under section 505 of that Act 

10 (29 U.S.C. 794a); and 

11 (4) an employee or applicant described in sec12 tion 201(2)(A)(v) of the Genetic Information Non13 discrimination Act of 2008 (42 U.S.C. 

14 2000ff(2)(A)(v)), in the case of a complaint brought 

15 to enforce title II of that Act (42 U.S.C. 2000ff et 

16 seq.) under section 207(e) of that Act (42 U.S.C. 

17 2000ff–6(e)). 

18 TITLE III—BROADENING PRO19 TECTIONS AND ENSURING 

20 TRANSPARENCY 

21 SEC. 301. INDEPENDENT CONTRACTORS, INTERNS, FEL22 LOWS, VOLUNTEERS, AND TRAINEES. 

23 (a) COVERED EMPLOYER OR ENTITY.—All protec24 tions afforded to an employee or individual under a provi25 sion that consists of title VII of the Civil Rights Act of 


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1 1964 (42 U.S.C. 2000e et seq.), the Government Em2 ployee Rights Act of 1991 (42 U.S.C. 2000e–16a et seq.), 

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

4 1301 et seq.), subchapter II of chapter 5 of title 3, United 

5 States Code, the Age Discrimination in Employment Act 

6 of 1967 (29 U.S.C. 621 et seq.), title I and section 503 

7 (for violations with respect to that title) of the Americans 

8 with Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 

9 12203), sections 501 and 505 of the Rehabilitation Act 

10 of 1973 (29 U.S.C. 791, 794a), section 6(d) of the Fair 

11 Labor Standards Act of 1938 (commonly known as the 

12 ‘‘Equal Pay Act of 1963’’) (29 U.S.C. 206(d)), title II 

13 of the Genetic Information Nondiscrimination Act of 2008 

14 (42 U.S.C. 2000ff et seq.), and section 4311 of title 38, 

15 United States Code, shall be afforded, in the same manner 

16 and to the same extent, to— 

17 (1) an individual who is engaged by an em18 ployer or entity covered by that provision (referred 

19 to in this subsection as a ‘‘covered employer or enti20 ty’’) as an independent contractor (regardless of 

21 business structure, including organization as a legal 

22 or commercial entity) or as an intern, fellow, volun23 teer, or trainee, whether or not the individual re24 ceives compensation, academic credit, or other remu25 neration from the covered employer or entity; or 


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1 (2) an individual who applies or seeks to be2 come such an independent contractor (regardless of 

3 business structure, including organization as a legal 

4 or commercial entity), intern, fellow, volunteer, or 

5 trainee, for the covered employer or entity. 

6 (b) COVERED ESTABLISHMENTS.— 

7 (1) DEFINITION.—In this subsection, the term 

8 ‘‘covered establishment’’ means an individual or enti9 ty that— 

10 (A) is not acting as an employer or entity 

11 covered by a provision specified in subsection 

12 (a); and 

13 (B) engages the services (including solic14 iting such services) of an independent con15 tractor (regardless of business structure, includ16 ing organization as a legal or commercial enti17 ty), intern, fellow, volunteer, or trainee by 

18 means of an instrument of transportation or 

19 communication in interstate commerce, or 

20 through an arrangement that involves the use 

21 of such an instrument to carry out or be con22 veyed to carry out those services. 

23 (2) PROTECTIONS.—All protections afforded to 

24 an employee or individual under a provision that 

25 consists of title VII of the Civil Rights Act of 1964, 


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1 the Age Discrimination in Employment Act of 1967, 

2 title I and section 503 (for violations with respect to 

3 that title) of the Americans with Disabilities Act of 

4 1990, section 6(d) of the Fair Labor Standards Act 

5 of 1938, title II of the Genetic Information Non6 discrimination Act of 2008, and section 4311 of title 

7 38, United States Code, shall be afforded, in the 

8 same manner and to the same extent that the provi9 sion covers an individual described in section 701(f) 

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

11 2000e(f)), to— 

12 (A) an individual who is engaged by a cov13 ered establishment as an independent con14 tractor (regardless of business structure, includ15 ing organization as a legal or commercial enti16 ty) or as an intern, fellow, volunteer, or trainee, 

17 whether or not the individual receives com18 pensation, academic credit, or other remunera19 tion from the covered establishment; or 

20 (B) an individual who applies or seeks to 

21 become such an independent contractor (regard22 less of business structure, including organiza23 tion as a legal or commercial entity), intern, fel24 low, volunteer, or trainee, for the covered estab25 lishment. 


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1 (c) DOMESTIC SERVICE.—For purposes of the provi2 sions listed in subsection (a) and the provisions of this 

3 Act, an individual or entity who engages the services (by 

4 means of an instrument of transportation or communica5 tion in interstate commerce, or through an arrangement 

6 that involves the use of such an instrument to carry out 

7 or be conveyed to carry out those services) of a person 

8 in domestic service in a household, as an employee, or as 

9 an independent contractor, intern, fellow, volunteer, or 

10 trainee, referred to in subsection (a) or (b) shall be consid11 ered to be engaged in interstate commerce. 

12 (d) RULE OF CONSTRUCTION.—Nothing in this sec13 tion shall be construed to limit the individuals protected 

14 under any provision described in subsection (a). 

15 (e) INTERSTATE COMMERCE.—In this section, the 

16 term ‘‘interstate commerce’’ means Commerce (as defined 

17 in section 3 of the Fair Labor Standards Act of 1938 (29 

18 U.S.C. 203)) among the several States. 

19 SEC. 302. NONDISCLOSURE AGREEMENTS. 

20 (a) DEFINITIONS.—In this section: 

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

22 means the Equal Employment Opportunity Commis23 sion. 


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1 (2) COVERED ESTABLISHMENT.—The term 

2 ‘‘covered establishment’’ has the meaning given the 

3 term in section 301. 

4 (3) COVERED INDIVIDUAL.—The term ‘‘covered 

5 individual’’ means— 

6 (A) in the case of an individual required to 

7 be afforded protections under section 301(a)— 

8 (i) an individual required to be af9 forded those protections by an employer 

10 described in paragraph (5)(A); 

11 (ii) an individual required to be af12 forded those protections by an employer 

13 described in paragraph (5)(B); 

14 (iii) an individual required to be af15 forded those protections by an employer 

16 described in paragraph (5)(C); 

17 (iv) an individual required to be af18 forded those protections by an employer 

19 described in paragraph (5)(D); or 

20 (v) an individual required to be af21 forded those protections by an employer 

22 described in paragraph (5)(E); and 

23 (B) in the case of an individual required to 

24 be afforded protections under section 301(b) by 

25 a covered establishment, that individual. 


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1 (4) EMPLOYEE.—The term ‘‘employee’’ 

2 means— 

3 (A) an employee (including an applicant), 

4 as defined in section 701(f) of the Civil Rights 

5 Act of 1964 (42 U.S.C. 2000e(f)); 

6 (B) a State employee (including an appli7 cant) described in section 304(a) of the Govern8 ment Employee Rights Act of 1991 (42 U.S.C. 

9 2000e–16c(a)); 

10 (C) a covered employee (including an appli11 cant), as defined in section 101 of the Congres12 sional Accountability Act of 1995 (2 U.S.C. 

13 1301), including an individual treated as a cov14 ered employee under that section; 

15 (D) a covered employee (including an ap16 plicant), as defined in section 411(c) of title 3, 

17 United States Code; or 

18 (E) an employee or applicant to which sec19 tion 717(a) of the Civil Rights Act of 1964 (42 

20 U.S.C. 2000e–16(a)) applies. 

21 (5) EMPLOYER.—The term ‘‘employer’’ 

22 means— 

23 (A) an employer (as defined in section 

24 701(b) of the Civil Rights Act of 1964 (42 

25 U.S.C. 2000e(b))); 


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1 (B) an entity employing a State employee 

2 described in section 304(a) of the Government 

3 Employee Rights Act of 1991; 

4 (C) an employing office, as defined in sec5 tion 101(a) of the Congressional Accountability 

6 Act of 1995 (2 U.S.C. 1301(a)); 

7 (D) an employing office, as defined in sec8 tion 411(c) of title 3, United States Code; or 

9 (E) an entity to which section 717(a) of 

10 the Civil Rights Act of 1964 applies. 

11 (6) NONDISCLOSURE CLAUSE.—The term ‘‘non12 disclosure clause’’ means a provision in a contract or 

13 agreement establishing that each party to the con14 tract or agreement agrees not to disclose informa15 tion covered by the terms and conditions of the con16 tract or agreement. 

17 (7) NONDISPARAGEMENT CLAUSE.—The term 

18 ‘‘nondisparagement clause’’ means a provision in a 

19 contract or agreement requiring one or more parties 

20 to the contract or agreement not to make negative 

21 statements about another such party. 

22 (8) WORKER.—The term ‘‘worker’’ means an 

23 employee or a covered individual. 

24 (b) UNLAWFUL PRACTICES.— 


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1 (1) NONDISPARAGEMENT AND NONDISCLOSURE

2 CLAUSES.—Subject to paragraph (3), it shall be an 

3 unlawful practice for an employer to enter into a 

4 contract or agreement with a worker, or for a cov5 ered establishment to enter into a contract or agree6 ment with a covered individual, as a condition of em7 ployment or contracting, promotion, compensation, 

8 benefits, or change in employment status or contrac9 tual relationship, or as a term, condition, or privilege 

10 of employment or contracting, if that contract or 

11 agreement contains a nondisparagement clause or 

12 nondisclosure clause that covers prohibited discrimi13 nation or harassment in employment or contracting, 

14 or retaliation for reporting, resisting, opposing, or 

15 assisting in the investigation of such discrimination 

16 or harassment. 

17 (2) PROHIBITION ON ENFORCEMENT.—Subject 

18 to paragraph (3) but notwithstanding any other pro19 vision of law, it shall be an unlawful practice for an 

20 employer or covered establishment to enforce or at21 tempt to enforce a nondisparagement clause or non22 disclosure clause that covers prohibited discrimina23 tion or harassment in employment or contracting, or 

24 retaliation for reporting, resisting, opposing, or as25 sisting in the investigation of such discrimination or 


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1 harassment. An employer or covered establishment 

2 that enforces or attempts to enforce such a non3 disparagement clause or such a nondisclosure clause 

4 against a worker shall be liable for the reasonable 

5 attorney’s fees and costs of the worker. 

6 (3) SETTLEMENT OR SEPARATION AGREE7 MENTS.— 

8 (A) IN GENERAL.—The provisions of para9 graphs (1) and (2) do not apply to a nondispar10 agement clause or nondisclosure clause con11 tained in a settlement agreement or separation 

12 agreement that resolves legal claims or disputes 

13 if— 

14 (i) such legal claims accrued or such 

15 disputes arose before the settlement agree16 ment or separation agreement was exe17 cuted; 

18 (ii) the clause involved is mutually 

19 agreed upon by and mutually benefits 

20 both— 

21 (I) the employer or covered es22 tablishment, as the case may be; and 

23 (II) the worker; 


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1 (iii) the worker’s agreement to such 

2 clause is knowing and voluntary, as de3 scribed in subparagraph (C); and 

4 (iv) the settlement agreement or sepa5 ration agreement expressly states that the 

6 agreement involved does not prohibit, pre7 vent, or otherwise restrict a worker from— 

8 (I) filing a complaint with the 

9 Commission, any other Federal, State, 

10 or local agency with the authority to 

11 enforce laws (including regulations) 

12 that prohibit discrimination or harass13 ment in employment or contracting, 

14 as the case may be, or law enforce15 ment; 

16 (II) testifying at, assisting, or 

17 participating in an investigation or 

18 proceeding conducted by the Commis19 sion, any other Federal, State, or local 

20 agency with the authority to enforce 

21 laws (including regulations) that pro22 hibit discrimination or harassment in 

23 employment or contracting, as the 

24 case may be, or law enforcement; or 


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1 (III) testifying in a hearing or 

2 trial or complying with a request for 

3 discovery in relation to civil litigation. 

4 (B) PROHIBITION ON SOLE BENEFIT.—For 

5 purposes of this paragraph, it shall be an un6 lawful practice for an employer or covered es7 tablishment to unilaterally include a nondispar8 agement clause or nondisclosure clause that 

9 solely benefits the employer or covered estab10 lishment in a separation or settlement agree11 ment. 

12 (C) KNOWING AND VOLUNTARY AGREE13 MENT.—For purposes of this paragraph, agree14 ment to a nondisparagement clause or non15 disclosure clause may not be considered know16 ing and voluntary unless at a minimum— 

17 (i) the nondisparagement clause or 

18 nondisclosure clause is written in a manner 

19 designed to ensure that the worker under20 stands the content of the clause involved; 

21 (ii) the nondisparagement clause or 

22 nondisclosure clause is included only in ex23 change for consideration of value provided 

24 to the worker, in addition to anything of 


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1 value to which the worker is already enti2 tled; 

3 (iii) the nondisparagement clause or 

4 nondisclosure clause does not apply to any 

5 rights or claims that arise after the date 

6 the settlement or separation agreement is 

7 executed; 

8 (iv) the worker is advised in writing to 

9 consult with an attorney prior to agreeing 

10 to such an agreement that includes a non11 disparagement clause or nondisclosure 

12 clause; 

13 (v) the worker is given a period of at 

14 least 21 days to consider any proposal for 

15 a settlement or separation agreement that 

16 includes a nondisparagement clause or 

17 nondisclosure clause; and 

18 (vi) the settlement or separation 

19 agreement provides that for a period of at 

20 least 7 days following the execution of such 

21 agreement the worker may revoke the 

22 agreement, and the agreement shall not be23 come effective or enforceable until the rev24 ocation period has expired. 


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1 (D) BURDEN OF PROOF.—In any dispute 

2 that may arise over whether any of the require3 ments of subparagraph (A) have been met, the 

4 party asserting the validity of an agreement 

5 shall have the burden of proving that the re6 quirements of subparagraph (A) have been met. 

7 (E) PARTICIPATION IN INVESTIGATIONS OR

8 PROCEEDINGS.—No nondisparagement clause 

9 or nondisclosure clause may affect the ability of 

10 a worker to testify at, assist, or participate in 

11 an investigation or proceeding conducted by the 

12 Commission, any Federal, State, or local agency 

13 with the authority to enforce laws (including 

14 regulations) that prohibit discrimination in em15 ployment or contracting, as the case may be, or 

16 a law enforcement agency. 

17 (F) PROHIBITION ON DAMAGES.—Under 

18 no circumstances shall a worker be required to 

19 pay damages for breach of a nondisparagement 

20 clause or nondisclosure clause permitted by this 

21 paragraph in excess of an amount equal to the 

22 consideration of value provided to the worker in 

23 exchange for the workers’ agreement to the 

24 nondisparagement clause or nondisclosure 

25 clause. 


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1 (c) ENFORCEMENT AGAINST EMPLOYERS.— 

2 (1) ENFORCEMENT POWERS.—With respect to 

3 the administration and enforcement of this section 

4 in the case of a claim alleged by a worker against 

5 an employer for a violation of this section— 

6 (A) the Commission shall have the same 

7 powers as the Commission has to administer 

8 and enforce— 

9 (i) title VII of the Civil Rights Act of 

10 1964 (42 U.S.C. 2000e et seq.); or 

11 (ii) sections 302 and 304 of the Gov12 ernment Employee Rights Act of 1991 (42 

13 U.S.C. 2000e–16b and 2000e–16c), 

14 in the case of a claim alleged by an employee 

15 of the employer for a violation of such title, or 

16 of section 302(a)(1) of the Government Em17 ployee Rights Act of 1991 (42 U.S.C. 2000e– 

18 16b(a)(1)), respectively; 

19 (B) the Librarian of Congress shall have 

20 the same powers as the Librarian of Congress 

21 has to administer and enforce title VII of the 

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

23 seq.) in the case of a claim alleged by an em24 ployee of the employer for a violation of such 

25 title; 


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1 (C) the Board (as defined in section 

2 101(a) of the Congressional Accountability Act 

3 of 1995 (2 U.S.C. 1301(a))) shall have the 

4 same powers as the Board has to administer 

5 and enforce the Congressional Accountability 

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

7 of a claim alleged by an employee of the em8 ployer for a violation of section 201(a)(1) of 

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

10 (D) the Attorney General shall have the 

11 same powers as the Attorney General has to ad12 minister and enforce— 

13 (i) title VII of the Civil Rights Act of 

14 1964 (42 U.S.C. 2000e et seq.); or 

15 (ii) sections 302 and 304 of the Gov16 ernment Employee Rights Act of 1991 (42 

17 U.S.C. 2000e–16b and 2000e–16c), 

18 in the case of a claim alleged by an employee 

19 of the employer for a violation of such title, or 

20 of section 302(a)(1) of the Government Em21 ployee Rights Act of 1991 (42 U.S.C. 2000e– 

22 16b(a)(1)), respectively; 

23 (E) the President, the Commission, and 

24 the Merit Systems Protection Board shall have 

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1 sion, and the Board, respectively, have to ad2 minister and enforce chapter 5 of title 3, 

3 United States Code, in the case of a claim al4 leged by an employee of the employer for a vio5 lation of section 411 of such title; and 

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

7 the same jurisdiction and powers as the court 

8 has to enforce— 

9 (i) title VII of the Civil Rights Act of 

10 1964 (42 U.S.C. 2000e et seq.) in the case 

11 of a claim alleged by an employee of the 

12 employer for a violation of such title; 

13 (ii) sections 302 and 304 of the Gov14 ernment Employee Rights Act of 1991 (42 

15 U.S.C. 2000e–16b and 2000e–16c) in the 

16 case of a claim alleged by an employee of 

17 the employer for a violation of section 

18 302(a)(1) of such Act (42 U.S.C. 2000e– 

19 16b(a)(1)); 

20 (iii) the Congressional Accountability 

21 Act of 1995 (2 U.S.C. 1301 et seq.) in the 

22 case of a claim alleged by an employee of 

23 the employer for a violation of section 

24 201(a)(1) of such Act (2 U.S.C. 

25 1311(a)(1)); and 


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1 (iv) chapter 5 of title 3, United States 

2 Code, in the case of a claim alleged by an 

3 employee of the employer for a violation of 

4 section 411 of such title. 

5 (2) PROCEDURES AND REMEDIES.—The proce6 dures and remedies applicable to a claim alleged by 

7 a worker against the employer for a violation of this 

8 section are— 

9 (A) the procedures and remedies applicable 

10 for a violation of title VII of the Civil Rights 

11 Act of 1964 (42 U.S.C. 2000e et seq.) in the 

12 case of a claim alleged by an employee of the 

13 employer for a violation of such title; 

14 (B) the procedures and remedies applicable 

15 for a violation of section 302(a)(1) of the Gov16 ernment Employee Rights Act of 1991 (42 

17 U.S.C. 2000e–16b(a)(1)) in the case of a claim 

18 alleged by an employee of the employer for a 

19 violation of such section; 

20 (C) the procedures and remedies applicable 

21 for a violation of section 201(a)(1) of the Con22 gressional Accountability Act of 1995 (2 U.S.C. 

23 1311(a)(1)) in the case of a claim alleged by an 

24 employee of the employer for a violation of such 

25 section; and 


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1 (D) the procedures and remedies applicable 

2 for a violation of section 411 of title 3, United 

3 States Code, in the case of a claim alleged by 

4 an employee of the employer for a violation of 

5 such section. 

6 (3) OTHER APPLICABLE PROVISIONS.—With re7 spect to a claim alleged by an employee described in 

8 subsection (a)(4)(C) or a covered individual de9 scribed in subsection (a)(3)(A)(iii) for a violation of 

10 this section, title III of the Congressional Account11 ability Act of 1995 (2 U.S.C. 1381 et seq.) shall 

12 apply in the same manner as such title applies with 

13 respect to a claim alleged by such an employee for 

14 a violation of section 201(a)(1) of such Act (2 

15 U.S.C. 1311(a)(1)). 

16 (d) ENFORCEMENT AGAINST COVERED ESTABLISH17 MENTS.— 

18 (1) ENFORCEMENT POWERS.—With respect to 

19 the administration and enforcement of this section 

20 in the case of a claim alleged by a covered individual 

21 against a covered establishment for a violation of 

22 this section— 

23 (A) the Commission shall have the same 

24 powers as the Commission has to administer 


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1 and enforce title VII of the Civil Rights Act of 

2 1964 (42 U.S.C. 2000e et seq.); 

3 (B) the Attorney General shall have the 

4 same powers as the Attorney General has to ad5 minister and enforce title VII of the Civil 

6 Rights Act of 1964; and 

7 (C) a court of the United States shall have 

8 the same jurisdiction and powers as the court 

9 has to enforce title VII of the Civil Rights Act 

10 of 1964, 

11 in the case of a claim alleged by an employee de12 scribed in subsection (a)(4)(A) for a violation of 

13 such title. 

14 (2) PROCEDURES AND REMEDIES.—The proce15 dures and remedies applicable to a claim alleged by 

16 a covered individual against the covered establish17 ment for a violation of this section are the proce18 dures and remedies applicable for a violation of title 

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

20 2000e et seq.) in the case of a claim alleged by an 

21 employee described in subsection (a)(4)(A) for a vio22 lation of such title. 

23 (e) RIGHT TO REPORT RESERVED.—Notwith24 standing signing (before, on, or after the effective date of 


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1 this Act) any nondisparagement clause or nondisclosure 

2 clause, a worker retains— 

3 (1) any right that person would otherwise have 

4 had to report a concern about harassment, including 

5 sexual harassment, in employment or contracting or 

6 another violation of the law to the Commission, an7 other Federal agency (including an office of the leg8 islative or judicial branch), a State or local fair em9 ployment practices agency or any other State or 

10 local agency, or a law enforcement agency; and 

11 (2) any right that person would otherwise have 

12 had to bring an action in a court of the United 

13 States. 

14 (f) REGULATIONS.— 

15 (1) IN GENERAL.—Except as provided in para16 graphs (2), (3), and (4), the Commission shall have 

17 authority to issue regulations to carry out this sec18 tion. 

19 (2) LIBRARIAN OF CONGRESS.—The Librarian 

20 of Congress shall have authority to issue regulations 

21 to carry out this section with respect to workers of 

22 the Library of Congress. 

23 (3) BOARD.—The Board referred to in sub24 section (c)(1)(C) shall have authority to issue regu25 lations to carry out this section, in accordance with 


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1 section 304 of the Congressional Accountability Act 

2 of 1995 (2 U.S.C. 1384), with respect to employees 

3 described in subsection (a)(4)(C) and covered indi4 viduals described in subsection (a)(3)(A)(iii). 

5 (4) PRESIDENT.—The President shall have au6 thority to issue regulations to carry out this section 

7 with respect to employees described in subsection 

8 (a)(4)(D) and covered individuals described in sub9 section (a)(3)(A)(iv). 

10 (g) STATE AND FEDERAL IMMUNITY.— 

11 (1) ABROGATION OF STATE IMMUNITY.—A 

12 State shall not be immune under the 11th Amend13 ment to the Constitution from a suit brought in a 

14 Federal court of competent jurisdiction for a viola15 tion of this section. 

16 (2) WAIVER OF STATE IMMUNITY.— 

17 (A) IN GENERAL.— 

18 (i) WAIVER.—A State’s receipt or use 

19 of Federal financial assistance for any pro20 gram or activity of a State shall constitute 

21 a waiver of sovereign immunity, under the 

22 11th Amendment to the Constitution or 

23 otherwise, to a suit brought by a covered 

24 individual in that program or activity 


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1 under this section for a remedy authorized 

2 under paragraph (4). 

3 (ii) DEFINITION.—In this subpara4 graph, the term ‘‘program or activity’’ has 

5 the meaning given the term in section 606 

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

7 2000d–4a). 

8 (B) EFFECTIVE DATE.—With respect to a 

9 particular program or activity, subparagraph 

10 (A) applies to conduct occurring on or after the 

11 day, after the date of enactment of this Act, on 

12 which a State first receives or uses Federal fi13 nancial assistance for that program or activity. 

14 (3) REMEDIES AGAINST STATE OFFICIALS.—An 

15 official of a State may be sued in the official capac16 ity of the official by a covered individual who has 

17 complied with the applicable procedures of sub18 section (c), for equitable relief that is authorized 

19 under this section. In such a suit the court may 

20 award to the prevailing party those costs authorized 

21 by section 722 of the Revised Statutes (42 U.S.C. 

22 1988). 

23 (4) REMEDIES AGAINST THE UNITED STATES

24 AND THE STATES.—Notwithstanding any other pro25 vision of this Act, in an action or administrative proVerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00117 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148

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1 ceeding against the United States or a State for a 

2 violation of this section, remedies (including rem3 edies at law and in equity, and interest) are avail4 able for the violation to the same extent as the rem5 edies are available for a violation of title VII of the 

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

7 by an employer described in subsection (a)(5)(A), 

8 except that— 

9 (A) punitive damages are not available; 

10 and 

11 (B) compensatory damages are available to 

12 the extent specified in section 1977A(b) of the 

13 Revised Statutes (42 U.S.C. 1981a(b)). 

14 SEC. 303. PROHIBITION ON MANDATORY ARBITRATION AND 

15 PROTECTION OF CONCERTED LEGAL ACTION. 

16 (a) PROTECTION OF CONCERTED ACTIVITY.— 

17 (1) AGREEMENTS.—Section 8(a) of the Na18 tional Labor Relations Act (29 U.S.C. 158(a)) is 

19 amended— 

20 (A) in paragraph (5), by striking the pe21 riod at the end and inserting ‘‘; and’’; and 

22 (B) by adding at the end the following: 

23 ‘‘(6)(A) to enter into or attempt to enforce any 

24 agreement, express or implied, whereby prior to a 

25 dispute to which the agreement applies, a worker 


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1 (for purposes of this paragraph, as defined in sec2 tion 401 of title 9, United States Code) undertakes 

3 or promises not to pursue, bring, join, litigate, or 

4 support any kind of joint, class, or collective claim 

5 arising from or relating to the employment of, or 

6 provision of services by, such worker in any forum 

7 that, but for such agreement, is of competent juris8 diction; 

9 ‘‘(B) to coerce such worker into undertaking or 

10 promising not to pursue, bring, join, litigate, or sup11 port any kind of joint, class, or collective claim aris12 ing from or relating to the employment of, or provi13 sion of services by, such worker; or 

14 ‘‘(C) to retaliate or threaten to retaliate against 

15 a worker for refusing to undertake or promise not 

16 to pursue, bring, join, litigate, or support any kind 

17 of joint, class, or collective claim arising from or re18 lating to the employment of, or provision or services 

19 by, such worker: 

20 Provided, That any agreement that violates this 

21 paragraph or results from a violation of this para22 graph shall be to such extent unenforceable and 

23 void: Provided further, That this paragraph shall not 

24 apply to any agreement embodied in or expressly 


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1 permitted by a contract between an employer and a 

2 labor organization.’’. 

3 (2) CONFORMING AMENDMENT.—Section 10(b) 

4 of the National Labor Relations Act (29 U.S.C. 

5 160(b)) is amended by striking ‘‘discharge’’ and in6 serting ‘‘discharge, or unless the person aggrieved 

7 thereby is a worker alleging a violation of section 

8 8(a)(6) whose charge involves a postdispute arbitra9 tion agreement that meets the requirements under 

10 section 402(a)(2) of title 9, United States Code, in 

11 which event the six-month period shall be computed 

12 from the day the waiting period described in sub13 paragraph (C) of such section ends’’. 

14 (b) ARBITRATION OF WORK DISPUTES.— 

15 (1) IN GENERAL.—Title 9 of the United States 

16 Code is amended by adding at the end the following: 

17 ‘‘CHAPTER 4—ARBITRATION OF WORK 

18 DISPUTES 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. Validity and enforceability. 

19 ‘‘§ 401. Definitions 

20 ‘‘In this chapter— 

21 ‘‘(1) the terms ‘commerce’, ‘employee’, and ‘em22 ployer’ have the meanings given the terms in section 

23 3 of the Fair Labor Standards Act of 1938 (29 

24 U.S.C. 203); 


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1 ‘‘(2) the term ‘covered entity’ means— 

2 ‘‘(A) an employer; or 

3 ‘‘(B) an individual or entity that is not 

4 acting as an employer and engages the services 

5 of a worker; 

6 ‘‘(3) the term ‘predispute arbitration agree7 ment’ means any agreement to arbitrate a dispute 

8 that had not yet arisen at the time of the making 

9 of the agreement; 

10 ‘‘(4) the term ‘postdispute arbitration agree11 ment’ means any agreement to arbitrate a dispute 

12 that arose before the time of the making of the 

13 agreement; 

14 ‘‘(5) the term ‘worker’ means— 

15 ‘‘(A) an employee; or 

16 ‘‘(B) an individual who is engaged by a 

17 covered entity to perform services or work as an 

18 independent contractor (regardless of the label 

19 or classification assigned or used by the covered 

20 entity); and 

21 ‘‘(6) the term ‘work dispute’— 

22 ‘‘(A) means a dispute between one or more 

23 workers (or their authorized representatives) 

24 and a covered entity arising out of or related to 

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1 tionship between the workers and the covered 

2 entity; and 

3 ‘‘(B) includes, but is not limited to— 

4 ‘‘(i) a dispute regarding the terms of, 

5 payment for, advertising of, recruitment of, 

6 referring of, arranging for, or discipline or 

7 discharge in connection with such work; 

8 ‘‘(ii) a dispute arising under any law 

9 referred to or described in section 62(e) of 

10 the Internal Revenue Code of 1986, includ11 ing any part of such a law not explicitly 

12 referenced in such section that relates to 

13 protecting individuals on a basis that is 

14 protected under a law referred to or de15 scribed in such section; and 

16 ‘‘(iii) a dispute in which an individual 

17 or individuals seek certification— 

18 ‘‘(I) as a class under rule 23 of 

19 the Federal Rules of Civil Procedure; 

20 ‘‘(II) as a collective action under 

21 section 16(b) of the Fair Labor 

22 Standards Act of 1938 (29 U.S.C. 

23 216(b)); or 

24 ‘‘(III) under a comparable rule or 

25 provision of State law. 


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1 ‘‘§ 402. Validity and enforceability 

2 ‘‘(a) IN GENERAL.—Notwithstanding any other chap3 ter of this title— 

4 ‘‘(1) no predispute arbitration agreement shall 

5 be valid or enforceable if it requires arbitration of a 

6 work dispute; 

7 ‘‘(2) no postdispute arbitration agreement that 

8 requires arbitration of a work dispute shall be valid 

9 or enforceable unless— 

10 ‘‘(A) the agreement was not required by 

11 the covered entity, obtained by coercion or 

12 threat of adverse action, or made a condition of 

13 employment, work, or any employment-related 

14 or work-related privilege or benefit; 

15 ‘‘(B) each worker entering into the agree16 ment was informed in writing using sufficiently 

17 plain language likely to be understood by the 

18 average worker of— 

19 ‘‘(i) the right of the worker under 

20 paragraph (3) to refuse to enter the agree21 ment without retaliation; and 

22 ‘‘(ii) the protections under section 

23 8(a)(6) of the National Labor Relations 

24 Act (29 U.S.C. 158(a)(6)); 

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1 riod of not fewer than 45 days, beginning on 

2 the date on which the employee was provided 

3 both the final text of the agreement and the 

4 disclosures required under subparagraph (B); 

5 and 

6 ‘‘(D) each worker entering into the agree7 ment affirmatively consented to the agreement 

8 in writing; and 

9 ‘‘(3) no covered entity may retaliate or threaten 

10 to retaliate against a worker for refusing to enter 

11 into an agreement that provides for arbitration of a 

12 work dispute. 

13 ‘‘(b) STATUTE OF LIMITATIONS.—During the waiting 

14 period described in subsection (a)(2)(C), the statute of 

15 limitations for any claims that arise from or form the basis 

16 for the applicable work dispute shall be tolled. 

17 ‘‘(c) CIVIL ACTION.—Any person who is injured by 

18 reason of a violation of subsection (a)(3) may bring a civil 

19 action in the appropriate district court of the United 

20 States against the covered entity within 2 years of the vio21 lation, or within 3 years if such violation is willful. Relief 

22 granted in such an action shall include a reasonable attor23 ney’s fee, other reasonable costs associated with maintain24 ing the action, and any appropriate relief authorized by 

25 section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 


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1 2000e–5(g)) or by section 1977A(b) of the Revised Stat2 utes (42 U.S.C. 1981a(b)). 

3 ‘‘(d) APPLICABILITY.— 

4 ‘‘(1) IN GENERAL.—This chapter applies to cov5 ered entities and workers engaged in activity affect6 ing commerce to the fullest extent permitted by the 

7 Constitution of the United States, including the 

8 work of persons engaged in domestic service in 

9 households, as described in section 2(a) of the Fair 

10 Labor Standards Act of 1938 (29 U.S.C. 202(a)). 

11 An issue as to whether this chapter applies to an ar12 bitration agreement shall be determined under Fed13 eral law. The applicability of this chapter to an 

14 agreement to arbitrate and the validity and enforce15 ability of an agreement to which this chapter applies 

16 shall be determined by a court, rather than an arbi17 trator, regardless of whether any contractual provi18 sion purports to delegate such determinations to the 

19 arbitrator and irrespective of whether the party re20 sisting arbitration challenges the arbitration agree21 ment specifically or in conjunction with other terms 

22 of the contract containing such agreement. 

23 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 

24 Nothing in this chapter shall apply to any arbitra25 tion provision in a contract between a covered entity 


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1 and a labor organization, except that no such arbi2 tration provision shall have the effect of waiving the 

3 right of a worker to seek judicial enforcement of a 

4 right arising under a provision of the Constitution of 

5 the United States, the constitution of a State, or a 

6 Federal or State statute, or public policy arising 

7 therefrom.’’. 

8 (2) TECHNICAL AND CONFORMING AMEND9 MENTS.— 

10 (A) IN GENERAL.—Title 9 of the United 

11 States Code is amended— 

12 (i) in section 1, by striking ‘‘of sea13 men,’’ and all that follows through ‘‘inter14 state commerce’’; 

15 (ii) in section 2, by inserting ‘‘or as 

16 otherwise provided in chapter 4’’ before the 

17 period at the end; 

18 (iii) in section 208— 

19 (I) in the section heading, by 

20 striking ‘‘Chapter 1; residual 

21 application’’ and inserting ‘‘Ap22 plication’’; and 

23 (II) by adding at the end the fol24 lowing: ‘‘This chapter applies to the 


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1 extent that this chapter is not in con2 flict with chapter 4.’’; and 

3 (iv) in section 307— 

4 (I) in the section heading, by 

5 striking ‘‘Chapter 1; residual 

6 application’’ and inserting ‘‘Ap7 plication’’; and 

8 (II) by adding at the end the fol9 lowing: ‘‘This chapter applies to the 

10 extent that this chapter is not in con11 flict with chapter 4.’’. 

12 (B) TABLE OF SECTIONS.— 

13 (i) CHAPTER 2.—The table of sections 

14 for chapter 2 of title 9, United States 

15 Code, is amended by striking the item re16 lating to section 208 and inserting the fol17 lowing: 

‘‘208. Application.’’. 

18 (ii) CHAPTER 3.—The table of sec19 tions for chapter 3 of title 9, United States 

20 Code, is amended by striking the item re21 lating to section 307 and inserting the fol22 lowing: 

‘‘307. Application.’’. 


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1 (C) TABLE OF CHAPTERS.—The table of 

2 chapters for title 9, United States Code, is 

3 amended by adding at the end the following: 

‘‘4. Arbitration of work disputes .............................................................. 401.’’. 

4 (c) EFFECTIVE DATE.—This section, and the amend5 ments made by this section, shall take effect on the date 

6 of enactment of this Act and shall apply with respect to 

7 any dispute or claim that arises or accrues on or after 

8 such date, including any dispute or claim to which an 

9 agreement predating such date applies. 

10 SEC. 304. FEDERAL CONTRACTOR COMPLIANCE WITH CIVIL 

11 RIGHTS LAWS. 

12 (a) DEFINITIONS.—In this section: 

13 (1) COVERED CONTRACT.—The term ‘‘covered 

14 contract’’ means a Federal contract for the procure15 ment of property or services, including construction, 

16 valued in excess of $500,000. 

17 (2) COVERED SUBCONTRACT.—The term ‘‘cov18 ered subcontract’’— 

19 (A) means a subcontract for property or 

20 services under a Federal contract that is valued 

21 in excess of $500,000; and 

22 (B) does not include a subcontract for the 

23 procurement of commercially available off-the24 shelf items. 


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1 (3) EXECUTIVE AGENCY.—The term ‘‘executive 

2 agency’’ has the meaning given the term in section 

3 133 of title 41, United States Code. 

4 (b) REQUIRED PRE-CONTRACT AWARD ACTIONS.— 

5 (1) DISCLOSURES.—The head of an executive 

6 agency shall ensure that the solicitation for a cov7 ered contract requires the offeror— 

8 (A) to represent, to the best of the 

9 offeror’s knowledge and belief, whether there 

10 has been any administrative merits determina11 tion, arbitral award or decision, or civil judg12 ment, as defined in guidance issued by the Sec13 retary of Labor, rendered against the offeror in 

14 the preceding 3 years for violations of— 

15 (i) the Fair Labor Standards Act of 

16 1938 (29 U.S.C. 201 et seq.); 

17 (ii) the Occupational Safety and 

18 Health Act of 1970 (29 U.S.C. 651 et 

19 seq.); 

20 (iii) the Migrant and Seasonal Agri21 cultural Worker Protection Act (29 U.S.C. 

22 1801 et seq.); 

23 (iv) the National Labor Relations Act 

24 (29 U.S.C. 151 et seq.); 


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1 (v) subchapter IV of chapter 31 of 

2 title 40, United States Code (commonly 

3 known as the ‘‘Davis-Bacon Act’’); 

4 (vi) chapter 67 of title 41, United 

5 States Code (commonly known as the 

6 ‘‘Service Contract Act’’); 

7 (vii) Executive Order 11246 (42 

8 U.S.C. 2000e note; relating to equal em9 ployment opportunity); 

10 (viii) section 503 of the Rehabilitation 

11 Act of 1973 (29 U.S.C. 793); 

12 (ix) section 4212 of title 38, United 

13 States Code; 

14 (x) the Family and Medical Leave Act 

15 of 1993 (29 U.S.C. 2601 et seq.); 

16 (xi) title VII of the Civil Rights Act of 

17 1964 (42 U.S.C. 2000e et seq.); 

18 (xii) the Americans with Disabilities 

19 Act of 1990 (42 U.S.C. 12101 et seq.); 

20 (xiii) the Age Discrimination in Em21 ployment Act of 1967 (29 U.S.C. 621 et 

22 seq.); 

23 (xiv) title II of the Genetic Informa24 tion Nondiscrimination Act of 2008 (42 

25 U.S.C. 2000ff et seq.); 


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1 (xv) Executive Order 13658 (79 Fed. 

2 Reg. 9851; relating to establishing a min3 imum wage for contractors); or 

4 (xvi) equivalent State laws, as defined 

5 in guidance issued by the Secretary of 

6 Labor; 

7 (B) to require each subcontractor for a 

8 covered subcontract— 

9 (i) to represent to the offeror, and the 

10 entity designated by the final rule reissued 

11 under subsection (e)(1), to the best of the 

12 subcontractor’s knowledge and belief, 

13 whether there has been any administrative 

14 merits determination, arbitral award or de15 cision, or civil judgment, as defined in 

16 guidance issued by the Secretary of Labor, 

17 rendered against the subcontractor in the 

18 preceding 3 years for violations of any of 

19 the labor laws listed under subparagraph 

20 (A); and 

21 (ii) to update such information every 

22 6 months for the duration of the sub23 contract; and 

24 (C) to consider the advice rendered by the 

25 entity designated by the final rule reissued 


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1 under subsection (e)(1), or information sub2 mitted by a subcontractor pursuant to subpara3 graph (B), in determining whether the subcon4 tractor is a responsible source with a satisfac5 tory record of integrity and business ethics— 

6 (i) prior to awarding the subcontract; 

7 or 

8 (ii) in the case of a subcontract that 

9 is awarded or will become effective within 

10 5 days of the prime contract being award11 ed, not later than 30 days after awarding 

12 the subcontract. 

13 (2) PRE-AWARD CORRECTIVE MEASURES.— 

14 (A) IN GENERAL.—A contracting officer, 

15 prior to awarding a covered contract, shall, as 

16 part of the responsibility determination, provide 

17 an offeror who makes a disclosure pursuant to 

18 paragraph (1) an opportunity to report any 

19 steps taken to correct the violations of or im20 prove compliance with the labor laws listed in 

21 subparagraph (A) of such paragraph, including 

22 any agreements entered into with an enforce23 ment agency. 

24 (B) CONSULTATION.—The executive agen25 cy’s Labor Compliance Advisor designated 


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1 under subsection (d), in consultation with rel2 evant enforcement agencies, shall advise the 

3 contracting officer whether agreements are in 

4 place or are otherwise needed to address appro5 priate remedial measures, compliance assist6 ance, steps to resolve issues to avoid further 

7 violations, or other related matters concerning 

8 the offeror. 

9 (C) RESPONSIBILITY DETERMINATION.— 

10 The contracting officer, in consultation with the 

11 executive agency’s Labor Compliance Advisor 

12 designated under subsection (d), shall consider 

13 information provided by the offeror under this 

14 subsection in determining whether the offeror is 

15 a responsible source with a satisfactory record 

16 of integrity and business ethics. The determina17 tion shall be based on the guidance reissued 

18 under subsection (e)(2)(A) and the final rule 

19 reissued under subsection (e)(1). 

20 (3) REFERRAL OF INFORMATION TO SUSPEN21 SION AND DEBARMENT OFFICIALS.—As appropriate, 

22 contracting officers, in consultation with their execu23 tive agency’s Labor Compliance Advisor, shall refer 

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1 ecutive agency’s suspension and debarment official 

2 in accordance with agency procedures. 

3 (c) POST-AWARD CONTRACT ACTIONS.— 

4 (1) INFORMATION UPDATES.—The contracting 

5 officer for a covered contract shall require that the 

6 contractor update the information provided under 

7 subparagraphs (A) and (B) of subsection (b)(1) 

8 every 6 months. 

9 (2) CORRECTIVE ACTIONS.— 

10 (A) PRIME CONTRACT.—The contracting 

11 officer, in consultation with the Labor Compli12 ance Advisor designated pursuant to subsection 

13 (d), shall determine whether any information 

14 provided under paragraph (1) warrants correc15 tive action. Such action may include— 

16 (i) an agreement requiring appro17 priate remedial measures; 

18 (ii) compliance assistance; 

19 (iii) resolving issues to avoid further 

20 violations; 

21 (iv) the decision not to exercise an op22 tion on a contract or to terminate the con23 tract; or 

24 (v) referral to the agency suspending 

25 and debarring official. 


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1 (B) SUBCONTRACTS.—The prime con2 tractor for a covered contract, in consultation 

3 with the Labor Compliance Advisor, shall deter4 mine whether any information provided under 

5 subsection (b)(1)(B) warrants corrective action, 

6 including remedial measures, compliance assist7 ance, and resolving issues to avoid further viola8 tions. 

9 (C) DEPARTMENT OF LABOR.—The Sec10 retary of Labor shall, as appropriate, inform 

11 executive agencies of its investigations of con12 tractors and subcontractors on current Federal 

13 contracts for purposes of determining the ap14 propriateness of actions described under sub15 paragraphs (A) and (B). 

16 (d) LABOR COMPLIANCE ADVISORS.— 

17 (1) IN GENERAL.—Each executive agency shall 

18 designate a senior official to act as the agency’s 

19 Labor Compliance Advisor. 

20 (2) DUTIES.—The Labor Compliance Advisor 

21 shall— 

22 (A) meet quarterly with the Deputy Sec23 retary, Deputy Administrator, or equivalent ex24 ecutive agency official with regard to matters 

25 covered under this section; 


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1 (B) work with the acquisition workforce, 

2 agency officials, and agency contractors to pro3 mote greater awareness and understanding of 

4 the requirements of the labor laws listed in sub5 section (b)(1)(A), including record keeping, re6 porting, and notice requirements, as well as 

7 best practices for obtaining compliance with 

8 these requirements; 

9 (C) coordinate assistance for executive 

10 agency contractors seeking help in addressing 

11 and preventing violations of such laws; 

12 (D) in consultation with the Secretary of 

13 Labor or other relevant enforcement agencies, 

14 and pursuant to subsection (b)(2) as necessary, 

15 provide assistance to contracting officers re16 garding appropriate actions to be taken in re17 sponse to violations of the labor laws listed in 

18 subsection (b)(1)(A) identified prior to or after 

19 contracts are awarded, and address complaints 

20 in a timely manner, by— 

21 (i) providing assistance to contracting 

22 officers and other executive agency officials 

23 in reviewing the information provided 

24 under paragraphs (1) and (2) of subsection 

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1 mation indicating such a violation, in order 

2 to assess the serious, repeated, willful, or 

3 pervasive nature of any such violation and 

4 evaluate steps contractors have taken to 

5 correct such violations or improve compli6 ance with relevant requirements; 

7 (ii) helping agency officials determine 

8 the appropriate response to address viola9 tions of the labor laws listed in subsection 

10 (b)(1)(A) or other information indicating 

11 such a violation (particularly a serious, re12 peated, willful, or pervasive violation), in13 cluding an agreement requiring appro14 priate remedial measures, a decision not to 

15 award a contract or exercise an option on 

16 a contract, contract termination, or a re17 ferral to the executive agency suspension 

18 and debarment official; 

19 (iii) providing assistance to appro20 priate executive agency officials in receiv21 ing and responding to, or making referrals 

22 of, complaints alleging violations by agency 

23 contractors and subcontractors of the labor 

24 laws listed in subsection (b)(1)(A); and 


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1 (iv) supporting contracting officers, 

2 suspension and debarment officials, and 

3 other agency officials in the coordination of 

4 actions taken pursuant to this subsection 

5 to ensure agency-wide consistency, to the 

6 extent practicable; 

7 (E) as appropriate, send information to 

8 agency suspension and debarment officials in 

9 accordance with agency procedures; 

10 (F) consult with the agency’s Chief Acqui11 sition Officer and Senior Procurement Execu12 tive, and the Department of Labor as nec13 essary, in the development of regulations, poli14 cies, and guidance addressing compliance by 

15 contractors and subcontractors with the labor 

16 laws listed in subsection (b)(1)(A); 

17 (G) make recommendations to the agency 

18 to strengthen agency management of contractor 

19 compliance with such labor laws; 

20 (H) publicly report, on an annual basis, a 

21 summary of agency actions taken to promote 

22 greater compliance with such laws, including 

23 the agency’s response under this section to seri24 ous, repeated, willful, or pervasive violations of 

25 such laws; and 


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1 (I) participate in the interagency meetings 

2 regularly convened by the Secretary of Labor 

3 under subsection (e)(2)(B)(iii). 

4 (e) MEASURES TO ENSURE GOVERNMENT-WIDE

5 CONSISTENCY.— 

6 (1) FEDERAL ACQUISITION REGULATION.— 

7 (A) IN GENERAL.—Notwithstanding Public 

8 Law 115–11 (131 Stat. 75) and section 553 of 

9 title 5, United States Code, not later than 1 

10 year after the date of enactment of this Act, the 

11 Secretary of Defense, the Administrator of the 

12 General Services Administration, and the Ad13 ministrator of the National Aeronautics and 

14 Space Administration shall reissue the final rule 

15 entitled ‘‘Federal Acquisition Regulation; Fair 

16 Pay and Safe Workplaces’’ (81 Fed. Reg. 

17 58,562 (Aug. 25, 2016)), subject to subpara18 graph (B). 

19 (B) UPDATED DATES.—The agencies de20 scribed in subparagraph (A) may, in reissuing 

21 the final rule under such subparagraph, update 

22 any date provided in such final rule as reason23 able and necessary. 

24 (2) DEPARTMENT OF LABOR.— 


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1 (A) GUIDANCE.—Not later than 1 year 

2 after the date of enactment of this Act, the Sec3 retary of Labor shall reissue the guidance enti4 tled ‘‘Guidance for Executive Order 13673, 

5 ‘Fair Pay and Safe Workplaces’ ’’ (81 Fed. 

6 Reg. 58,654 (Aug. 25, 2016)). In reissuing 

7 such guidance, the Secretary of Labor may up8 date any date provided in such guidance as rea9 sonable. 

10 (B) ADDITIONAL ACTIVITIES.—The Sec11 retary of Labor shall— 

12 (i) develop a process— 

13 (I) for the Labor Compliance Ad14 visors designated pursuant to sub15 section (d) to consult with the Sec16 retary of Labor in carrying out their 

17 responsibilities under subsection 

18 (d)(2)(D); 

19 (II) by which contracting officers 

20 and Labor Compliance Advisors may 

21 give appropriate consideration to de22 terminations and agreements made by 

23 the Secretary of Labor and the heads 

24 of other executive agencies; and 


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1 (III) by which contractors may 

2 enter into agreements with the Sec3 retary of Labor, or the head of an4 other executive agency, prior to being 

5 considered for a contract; 

6 (ii) review data collection require7 ments and processes, and work with the 

8 Director of the Office of Management and 

9 Budget, the Administrator of General 

10 Services, and other agency heads to im11 prove such requirements and processes, as 

12 necessary, to reduce the burden on con13 tractors and increase the amount of infor14 mation available to executive agencies; 

15 (iii) regularly convene interagency 

16 meetings of Labor Compliance Advisors to 

17 share and promote best practices for im18 proving labor law compliance; and 

19 (iv) designate an appropriate contact 

20 for executive agencies seeking to consult 

21 with the Secretary of Labor with respect to 

22 the requirements and activities under this 

23 section. 


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1 (3) OFFICE OF MANAGEMENT AND BUDGET.— 

2 The Director of the Office of Management and 

3 Budget shall— 

4 (A) work with the Administrator of Gen5 eral Services to include in the Federal Awardee 

6 Performance and Integrity Information System 

7 the information provided by contractors pursu8 ant to subsections (b)(1)(A) and (c)(1) and 

9 data on the resolution of any issues related to 

10 such information; and 

11 (B) designate an appropriate contact for 

12 agencies seeking to consult with the Office of 

13 Management and Budget on matters arising 

14 under this section. 

15 (4) GENERAL SERVICES ADMINISTRATION.— 

16 (A) IN GENERAL.—The Administrator of 

17 General Services, in consultation with other rel18 evant executive agencies, shall establish a single 

19 Internet website for Federal contractors to use 

20 for all Federal contract reporting requirements 

21 under this section, as well as any other Federal 

22 contract reporting requirements to the extent 

23 practicable. 

24 (B) AGENCY COOPERATION.—The heads of 

25 executive agencies with covered contracts shall 


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1 provide the Administrator of General Services 

2 with the data necessary to maintain the Inter3 net website established under subparagraph 

4 (A). 

5 (5) MINIMIZING COMPLIANCE BURDEN.—After 

6 reissuing the guidance under paragraph (2)(A) or 

7 the final rule under paragraph (1), the Secretary of 

8 Labor or the Secretary of Defense, the Adminis9 trator of the General Services Administration, and 

10 the Administrator of the National Aeronautics and 

11 Space Administration may, respectively, amend such 

12 guidance or final rule consistent with the require13 ments under chapter 5 of title 5, United States 

14 Code. 

15 (f) IMPLEMENTING REGULATIONS.—Not later than 9 

16 months after the date of enactment of this Act, the Fed17 eral Acquisition Regulatory Council shall amend the Fed18 eral Acquisition Regulation to carry out the provisions of 

19 this section. 

20 (g) RULES OF CONSTRUCTION.—Nothing in this sec21 tion shall be construed as— 

22 (1) impairing or otherwise affecting the author23 ity granted by law to an executive agency or the 

24 head thereof; or 


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1 (2) impairing or otherwise affecting the func2 tions of the Director of the Office of Management 

3 and Budget relating to budgetary, administrative, or 

4 legislative proposals. 

5 TITLE IV—NATIONWIDE GRANTS 

6 TO PREVENT AND RESPOND 

7 TO WORKPLACE HARASS8 MENT 

9 SEC. 401. DEFINITIONS. 

10 In this title: 

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

12 means the Equal Employment Opportunity Commis13 sion. 

14 (2) EMPLOYEE.—The term ‘‘employee’’ has the 

15 meaning given the term in section 302(a)(4). 

16 (3) EMPLOYMENT DISCRIMINATION.—The term 

17 ‘‘employment discrimination’’ means discrimination 

18 that is in violation of applicable Federal, State, or 

19 local employment law, including: 

20 (A) Title VII of the Civil Rights Act of 

21 1964 (42 U.S.C. 2000e et seq.). 

22 (B) The Government Employee Rights Act 

23 of 1991 (42 U.S.C. 2000e–16a et seq.). 

24 (C) The Congressional Accountability Act 

25 of 1995 (2 U.S.C. 1301 et seq.). 


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1 (D) Subchapter II of chapter 5 of title 3, 

2 United States Code. 

3 (E) The Age Discrimination in Employ4 ment Act of 1967 (29 U.S.C. 621 et seq.). 

5 (F) Title I and section 503 (for violations 

6 with respect to that title) of the Americans with 

7 Disabilities Act of 1990 (42 U.S.C. 12111 et 

8 seq., 12203). 

9 (G) Sections 501 and 505 of the Rehabili10 tation Act of 1973 (29 U.S.C. 791, 794a). 

11 (H) Section 6(d) of the Fair Labor Stand12 ards Act of 1938 (commonly known as the 

13 ‘‘Equal Pay Act of 1963’’) (29 U.S.C. 206(d)). 

14 (I) Title II of the Genetic Information 

15 Nondiscrimination Act of 2008 (42 U.S.C. 

16 2000ff et seq.). 

17 (J) Section 4311 of title 38, United States 

18 Code. 

19 (K) Other Federal, State, or local employ20 ment law. 

21 (4) WORKER.—The term ‘‘worker’’ has the 

22 meaning given the term in section 302(a)(7). 


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1 Subtitle A—National Grants for 

2 Preventing and Addressing Em3 ployment Discrimination, In4 cluding Harassment 

5 SEC. 411. DEFINITIONS. 

6 In this subtitle: 

7 (1) DIRECTOR.—The term ‘‘Director’’ means 

8 the Director of the Women’s Bureau of the Depart9 ment of Labor. 

10 (2) ELIGIBLE ENTITY.—The term ‘‘eligible enti11 ty’’ means any of the following: 

12 (A) A nonprofit organization, including a 

13 community-based organization, nonprofit legal 

14 aid organization, or labor organization, that 

15 provides services and support to workers, in16 cluding by assisting workers in filing charges of 

17 employment discrimination. 

18 (B) An institution of higher education, as 

19 defined in section 101 of the Higher Education 

20 Act of 1965 (20 U.S.C. 1001). 

21 SEC. 412. GRANTS. 

22 (a) GRANTS.—The Director, in consultation with the 

23 Commission, shall award grants under this section, on a 

24 competitive basis, to eligible entities to assist such entities 

25 in carrying out a program for preventing and addressing 


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1 employment discrimination, including harassment, 

2 through activities authorized under subsection (b). 

3 (b) USE OF FUNDS.— 

4 (1) PERMISSIBLE ACTIVITIES.—A grant award5 ed under this section shall be used for activities to 

6 prevent and address employment discrimination, in7 cluding harassment, which may include— 

8 (A) educating workers about their rights 

9 related to harassment in employment under 

10 Federal, State, and local civil rights, labor, and 

11 employment laws; 

12 (B) educating employers about their obli13 gations to prevent and address harassment in 

14 employment under Federal, State, and local 

15 civil rights, labor, and employment laws; 

16 (C) providing assistance to workers in 

17 bringing complaints of employment discrimina18 tion, including filing charges of harassment; 

19 (D) establishing networks for education, 

20 communication, and participation in the work21 place and community; 

22 (E) monitoring employer compliance with 

23 Federal, State, and local civil rights, labor, and 

24 employment laws; 


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1 (F) recruiting and hiring of staff and vol2 unteers; and 

3 (G) any other activity the Director, in con4 sultation with the Commission, may reasonably 

5 prescribe for the purpose of preventing and ad6 dressing employment discrimination, including 

7 harassment. 

8 (2) PROHIBITED ACTIVITIES.—Notwithstanding 

9 paragraph (1), an eligible entity receiving a grant 

10 under this section may not use the grant funds for 

11 any purpose reasonably prohibited by the Director, 

12 in consultation with the Commission, through notice 

13 and comment rulemaking. 

14 (c) TERM OF GRANTS.—Each grant awarded under 

15 this section shall be available for expenditure for a period 

16 not to exceed 3 years. 

17 (d) APPLICATIONS.— 

18 (1) IN GENERAL.—An eligible entity seeking a 

19 grant under this section shall submit an application 

20 for such grant to the Director in accordance with 

21 this subsection. 

22 (2) PARTNERSHIPS.—Multiple eligible entities 

23 may submit a joint application under this subsection 

24 that designates a single entity as the lead entity for 


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1 the purposes of receiving and disbursing funds re2 ceived through a grant under this section. 

3 (3) CONTENTS.—An application under this sub4 section shall include— 

5 (A) a description of a plan for the program 

6 that the eligible entity proposes to carry out 

7 with a grant under this section, including a 

8 long-term strategy and detailed implementation 

9 plan; 

10 (B) information on the prevalence of viola11 tions of prohibitions on employment discrimina12 tion, including harassment, under Federal, 

13 State, and local civil rights, labor, and employ14 ment laws in the population served by the eligi15 ble entity; 

16 (C) information on any industry or geo17 graphic area targeted by the plan for such pro18 gram; 

19 (D) information on the type of outreach 

20 and relationship building that will be conducted 

21 under such program; 

22 (E) information on the training and edu23 cation that will be provided to workers and em24 ployers under such program; and 


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1 (F) the method by which the eligible entity 

2 will measure the results of such program. 

3 (e) SELECTION.— 

4 (1) COMPETITIVE BASIS.—In accordance with 

5 this section, the Director, in consultation with the 

6 Commission, shall, on a competitive basis, select 

7 grant recipients from among eligible entities that 

8 have submitted an application meeting the require9 ments under subsection (d). 

10 (2) PRIORITY.—The Director, in consultation 

11 with the Commission, in selecting grant recipients 

12 under paragraph (1), shall give priority to eligible 

13 entities that— 

14 (A) serve workers in any industry or geo15 graphic area that is most highly at risk for em16 ployment discrimination, including harassment, 

17 as identified by the Director, in consultation 

18 with the Commission; and 

19 (B) demonstrate past and ongoing work to 

20 prevent employment discrimination, including 

21 harassment. 

22 (f) PERFORMANCE EVALUATIONS.— 

23 (1) IN GENERAL.—Each grant recipient under 

24 this section shall develop procedures for reporting, 

25 monitoring, measuring, and evaluating the activities 


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1 of each program or activity funded under this sec2 tion. 

3 (2) GUIDELINES.—The procedures required 

4 under paragraph (1) shall be in accordance with 

5 guidelines established by the Director, in consulta6 tion with the Commission. 

7 SEC. 413. AUTHORIZATION OF APPROPRIATIONS. 

8 There are authorized to be appropriated to the Direc9 tor such sums as may be necessary to carry out this sub10 title. 

11 Subtitle B—Grants for Legal Assist12 ance for Low-Income Workers 

13 SEC. 421. DEFINITIONS. 

14 In this subtitle: 

15 (1) SECRETARY.—The term ‘‘Secretary’’ means 

16 the Secretary of Labor. 

17 (2) COVERED CLIENT.—The term ‘‘covered cli18 ent’’ means an individual who— 

19 (A) is an eligible client; and 

20 (B) faces legal issues related to employ21 ment discrimination, including harassment. 

22 (3) ELIGIBLE CLIENT.—The term ‘‘eligible cli23 ent’’ has the meaning given the term in section 1002 

24 of the Legal Services Corporation Act (42 U.S.C. 


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1 2996a) and the regulations of the Legal Services 

2 Corporation. 

3 (4) ELIGIBLE ENTITY.—The term ‘‘eligible enti4 ty’’ means— 

5 (A) a nonprofit organization; and 

6 (B) an individual who is licensed to prac7 tice law. 

8 SEC. 422. GRANTS FOR CIVIL LEGAL NEEDS RELATED TO 

9 EMPLOYMENT DISCRIMINATION. 

10 (a) GRANTS AUTHORIZED.— 

11 (1) IN GENERAL.—The Secretary is authorized 

12 to provide financial assistance to eligible entities to 

13 enable those eligible entities to provide for the civil 

14 legal needs of covered clients that are related to em15 ployment discrimination, and to provide for those cli16 ents such other services as are necessary to carry 

17 out the purposes of this subtitle, including any of 

18 the following activities: 

19 (A) Providing covered clients advice, legal 

20 services, or representation. 

21 (B) Assisting covered clients in utilizing 

22 the Commission employment discrimination 

23 complaint process. 

24 (C) Assisting covered clients in utilizing a 

25 private employment complaint process. 


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1 (D) Conducting outreach activities to pub2 licize the services offered under this section. 

3 (2) CITIZENSHIP STATUS.—An eligible entity 

4 receiving a grant under this section shall provide 

5 services to a covered client without regard to the 

6 citizenship status or authorization to work of the 

7 covered client. 

8 (b) APPLICATION.—In order to be eligible to receive 

9 a grant under this section, an eligible entity shall submit 

10 an application to the Secretary at such time and in such 

11 manner as the Secretary may require. Such application 

12 shall include— 

13 (1) a description of the services that the eligible 

14 entity proposes to provide, implement, improve, or 

15 expand; 

16 (2) a description of the covered clients the eligi17 ble entity intends to serve; 

18 (3) evidence of the eligible entity’s capacity to 

19 provide services to covered clients with legal issues 

20 related to employment discrimination, such as the el21 igible entity’s record of success representing eligible 

22 clients in employment-related legal matters, or the 

23 eligible entity’s prior experience serving clients who 

24 cannot afford legal counsel; 


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1 (4) an explanation of how the services the eligi2 ble entity intends to provide will assist covered cli3 ents in addressing legal issues related to employment 

4 discrimination; and 

5 (5) any other information that the Secretary 

6 may require. 

7 (c) AWARD BASIS.—The Secretary shall, in consulta8 tion with the Legal Services Corporation, award and over9 see grants under this section pursuant to such procedures 

10 and criteria as the Secretary may require. Such proce11 dures and criteria shall include consideration of— 

12 (1) whether the eligible entity has demonstrated 

13 an understanding of the legal needs of covered cli14 ents; 

15 (2) the eligible entity’s capacity to provide serv16 ices to covered clients with legal issues related to 

17 employment discrimination, which may be dem18 onstrated through evidence described in subsection 

19 (b)(3); 

20 (3) the eligible entity’s knowledge of applicable 

21 Federal, State, and local employment laws; 

22 (4) the eligible entity’s capacity and ability to 

23 access other resources; 


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1 (5) the eligible entity’s ability to ensure con2 tinuity of service to covered clients with pending 

3 legal issues; and 

4 (6) other factors that the Secretary determines 

5 are relevant. 

6 (d) EQUITABLE DISTRIBUTION.—To the extent prac7 ticable, in awarding grants under this section, the Sec8 retary, in consultation with the Legal Services Corpora9 tion, shall ensure that grants are made so as to provide 

10 the most economical and effective delivery of legal assist11 ance to covered clients in both urban and rural areas, with 

12 consideration of the geographic distribution of persons in 

13 poverty. 

14 (e) DURATION OF THE GRANT.— 

15 (1) IN GENERAL.—A grant under this section 

16 shall be for a term of not less than 1 year and not 

17 more than 5 years. 

18 (2) RENEWAL.—The Secretary may renew a 

19 grant awarded under this section for a period of not 

20 more than 2 additional years if the eligible entity 

21 demonstrates that the eligible entity is effectively 

22 using funds and that the renewal of funds will allow 

23 the eligible entity to scale up the provision of serv24 ices, replicate the program, or provide continuity of 

25 service to covered clients. 


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1 (f) REPORT.—Two years after the enactment of this 

2 section, the Secretary shall provide to the Committee on 

3 Health, Education, Labor, and Pensions of the Senate and 

4 the Committee on Education and Labor of the House of 

5 Representatives a report on the implementation of the 

6 grant program under this section, including— 

7 (1) a description of the services provided using 

8 grant assistance under this section, including a de9 tailed description of the types of legal issues ad10 dressed by eligible entities and the number of cov11 ered clients served; and 

12 (2) an assessment of the number of individuals 

13 facing one or more legal issues related to employ14 ment discrimination who cannot afford adequate 

15 legal counsel, and the largest areas of unmet need. 

16 SEC. 423. AUTHORIZATION OF APPROPRIATIONS. 

17 There are authorized to be appropriated to carry out 

18 this subtitle such sums as may be necessary. 

19 Subtitle C—Grants for a System of 

20 State Advocacy 

21 SEC. 431. PURPOSE. 

22 The purpose of this subtitle is to provide allotments 

23 to support a system of advocacy (referred to in this sub24 title as a ‘‘system’’) in each State to protect the legal and 


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1 human rights of workers in accordance with applicable 

2 Federal, State, and local employment discrimination laws. 

3 SEC. 432. DEFINITIONS. 

4 In this subtitle: 

5 (1) RECORD.—The term ‘‘record’’ includes— 

6 (A) a report prepared by an employer or 

7 staff person charged with investigating reports 

8 of employment discrimination that describes in9 cidents of possible discrimination and the steps 

10 taken to investigate those incidents; 

11 (B) statistical information related to em12 ployment decisions and the race, sex (including 

13 sexual orientation and gender identity), religion, 

14 national origin, age, disability, genetic informa15 tion, or other protected characteristics of work16 ers; 

17 (C) records described in section 11(c) of 

18 the Fair Labor Standards Act (29 U.S.C. 

19 211(c)); and 

20 (D) any such similar record, as may be 

21 necessary to carry out the purposes of this sub22 title. 

23 (2) SECRETARY.—The term ‘‘Secretary’’ means 

24 the Secretary of Labor. 


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1 (3) STATE.—The term ‘‘State’’, except as oth2 erwise provided, includes, in addition to each of the 

3 several States of the United States, the District of 

4 Columbia, the Commonwealth of Puerto Rico, the 

5 United States Virgin Islands, Guam, American 

6 Samoa, and the Commonwealth of the Northern 

7 Mariana Islands. 

8 SEC. 433. ALLOTMENTS AND PAYMENTS. 

9 (a) ALLOTMENTS.— 

10 (1) IN GENERAL.—To assist States in meeting 

11 the requirements of section 434, the Secretary shall 

12 make allotments to States from the amounts appro13 priated under section 436 and not reserved under 

14 paragraph (5). 

15 (2) MINIMUM ALLOTMENTS.—In any case in 

16 which— 

17 (A) the total amount appropriated under 

18 section 436 for a fiscal year is not less than 

19 $20,000,000, the allotment under paragraph 

20 (1) for such fiscal year— 

21 (i) to each of American Samoa, 

22 Guam, the United States Virgin Islands, 

23 and the Commonwealth of the Northern 

24 Mariana Islands may not be less than 

25 $100,000; and 


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1 (ii) to any State not described in 

2 clause (i) may not be less than $200,000; 

3 and 

4 (B) the total amount appropriated under 

5 section 436 for a fiscal year is less than 

6 $20,000,000, the allotment under paragraph 

7 (1) for such fiscal year— 

8 (i) to each of American Samoa, 

9 Guam, the United States Virgin Islands, 

10 and the Commonwealth of the Northern 

11 Mariana Islands may not be less than 

12 $50,000; and 

13 (ii) to any State not described in 

14 clause (i) may not be less than $150,000. 

15 (3) REDUCTION OF ALLOTMENT.—Notwith16 standing paragraphs (1) and (2), if the aggregate of 

17 the amounts to be allotted to the States pursuant to 

18 such paragraphs for any fiscal year exceeds the total 

19 amount appropriated for such allotments under sec20 tion 436 for such fiscal year, the amount to be allot21 ted to each State for such fiscal year shall be pro22 portionately reduced. 

23 (4) INCREASE IN ALLOTMENTS.—If the sum ap24 propriated under section 436 and not reserved under 

25 paragraph (5) for any fiscal year exceeds the aggreVerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00159 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148

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1 gate of the minimum allotments for all States under 

2 this subsection for that fiscal year, such excess 

3 amount shall be allotted among the States, including 

4 American Samoa, Guam, the United States Virgin 

5 Islands, and the Commonwealth of the Northern 

6 Mariana Islands, so as to increase proportionately 

7 the minimum allotment for each such State. 

8 (5) TECHNICAL ASSISTANCE.—In any case in 

9 which the total amount appropriated under section 

10 436 for a fiscal year is more than $24,500,000, the 

11 Secretary shall— 

12 (A) use not more than 2 percent of the 

13 amount appropriated to provide technical assist14 ance to eligible systems with respect to activi15 ties carried out under this subtitle (consistent 

16 with requests by such systems for such assist17 ance for the year); and 

18 (B) provide a grant in accordance with sec19 tion 434(d) and in an amount described in 

20 paragraph (2)(A)(i), to an American Indian 

21 consortium to provide protection and advocacy 

22 services. 

23 (6) REALLOTMENTS.— 

24 (A) IN GENERAL.—If the Secretary deter25 mines that an amount of an allotment to a 


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1 State for a period (of a fiscal year or longer) 

2 will not be required by the State during the pe3 riod for the purpose for which the allotment 

4 was made, the Secretary shall reallot the 

5 amount. 

6 (B) TIMING.—The Secretary may make 

7 such a reallotment from time to time, on such 

8 date as the Secretary may fix, but not earlier 

9 than 30 days after the Secretary has published 

10 notice of the intention of the Secretary to make 

11 the reallotment in the Federal Register. 

12 (C) AMOUNTS.—The Secretary shall reallot 

13 the amount to other States with respect to 

14 which the Secretary has not made that deter15 mination. The Secretary shall reallot the 

16 amount in proportion to the original allotments 

17 of the other States for such fiscal year, but 

18 shall reduce such proportionate amount for any 

19 of the other States to the extent the propor20 tionate amount exceeds the sum that the Sec21 retary estimates the State needs and will be 

22 able to use during such period. 

23 (D) REALLOTMENT OF REDUCTIONS.—The 

24 Secretary shall similarly reallot the total of the 


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1 reductions among the States whose propor2 tionate amounts were not so reduced. 

3 (E) TREATMENT.—Any amount reallotted 

4 to a State under this subsection for a fiscal 

5 year shall be deemed to be a part of the allot6 ment of the State under paragraph (1) for such 

7 fiscal year. 

8 (b) PAYMENT TO SYSTEMS.—The Secretary shall pay 

9 directly to each State that has a system in the State that 

10 complies with the provisions of this subtitle the amount 

11 of the allotment made for the State under this section, 

12 unless the system specifies otherwise, to be used in sup13 port of the system. 

14 (c) UNOBLIGATED FUNDS.—Any amount paid to a 

15 State under this subtitle for a fiscal year and remaining 

16 unobligated at the end of such year shall remain available 

17 to such State for the next fiscal year, for the purposes 

18 for which such amount was paid. 

19 SEC. 434. SYSTEM REQUIRED. 

20 (a) IN GENERAL.—In order for a State to receive an 

21 allotment under this subtitle the State shall— 

22 (1) have in effect a system to protect and advo23 cate for the rights of workers within the State who 

24 are or who may be eligible for relief from applicable 

25 employment discrimination laws; and 


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1 (2) designate a private nonprofit entity (re2 ferred to in this subtitle as an ‘‘agency’’) to support 

3 and carry out the activities of that system. 

4 (b) AGENCY REQUIREMENTS.— 

5 (1) CHARACTERISTICS OF AGENCY.—The State 

6 shall ensure that the agency designated under sub7 section (a) shall— 

8 (A) not be administered by the State, or 

9 an agency or instrumentality of a State; and 

10 (B) be independent of any entity that rep11 resents the interest of the State, employers, or 

12 other corporations. 

13 (2) NO REDESIGNATION OF AGENCY.—The 

14 agency implementing the system shall not be redes15 ignated unless— 

16 (A) there is good cause for the redesigna17 tion; 

18 (B) the State has given the agency notice 

19 of the intention to make such redesignation, in20 cluding notice regarding the good cause for 

21 such redesignation, and given the agency an op22 portunity to respond to the assertion that good 

23 cause has been shown; 


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1 (C) the agency has given timely notice of 

2 the intended redesignation directly to clients of 

3 the agency; 

4 (D) the State has provided, in plain 

5 English and in accessible formats for individ6 uals with disabilities and for individuals who 

7 primarily speak a language other than English, 

8 an opportunity for public comment; and 

9 (E) the agency has an opportunity to ap10 peal the redesignation to the Secretary, on the 

11 basis that the redesignation was not for good 

12 cause. 

13 (3) COSTS OF NOTICE.—The costs of the notice 

14 required under paragraph (2)(C) shall be paid by 

15 the State. 

16 (c) SYSTEM REQUIRED.—The system described in 

17 subsection (a) shall— 

18 (1) have the authority to— 

19 (A) pursue legal, administrative, and other 

20 appropriate remedies or approaches, as applica21 ble, to ensure the protection of, and advocacy 

22 for, the rights of individuals within the State 

23 who are or who may be eligible for relief from 

24 employment discrimination; and 


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1 (B) provide information on and referral to 

2 programs and services addressing the needs of 

3 such individuals; 

4 (2) have the authority— 

5 (A) to investigate incidents of employment 

6 discrimination, including harassment, and to 

7 conduct investigations of systemic employment 

8 discrimination, of such individuals if the inci9 dents are reported to the agency or if there is 

10 probable cause to believe that the incidents oc11 curred; and 

12 (B) to investigate and gather data in the 

13 same manner as the Secretary under section 

14 11(a) of the Fair Labor Standards Act (29 

15 U.S.C. 211(a)); 

16 (3) on an annual basis, develop, submit to the 

17 Secretary, and take action with regard to goals and 

18 priorities developed through data driven strategic 

19 planning for the system’s activities; 

20 (4) on an annual basis, provide to the public, 

21 including individuals described in paragraph (1)(A), 

22 the regional office of the Commission that serves the 

23 State, and any State agency whose purpose is to re24 duce or eliminate employment discrimination, an op25 portunity to comment on— 


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1 (A) the goals and priorities established by 

2 the agency and the rationale for the establish3 ment of such goals; and 

4 (B) the activities of the agency, including 

5 the coordination of services with the District of6 fice of the Commission that serves the State, 

7 and any State agency whose purpose is to re8 duce, eliminate, or redress employment dis9 crimination, and with entities carrying out 

10 other related programs; 

11 (5) establish a grievance procedure for clients 

12 or prospective clients of the agency to ensure that 

13 individuals described in paragraph (1)(A) have full 

14 access to services of the agency; 

15 (6) have access at reasonable times to any indi16 vidual described in paragraph (1)(A) in a location in 

17 which services and other assistance are provided to 

18 such an individual, in order to carry out the purpose 

19 of this subtitle; 

20 (7) have access, not later than 3 business days 

21 after the agency makes a written request, to the 

22 records of any individual described in paragraph 

23 (1)(A) (including Federal and State workers) who is 

24 a client of the agency if such individual, or other 


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1 legal representative of such individual, has author2 ized the agency to have such access; 

3 (8) hire and maintain sufficient numbers and 

4 types of staff (qualified by training and experience) 

5 to carry out the agency’s functions, except that the 

6 State involved shall not apply hiring freezes, reduc7 tions in force, prohibitions on travel, or other poli8 cies to the staff of the agency, to the extent that 

9 such policies would impact the staff or functions of 

10 the agency funded with Federal funds or would pre11 vent the agency from carrying out the functions of 

12 the system under this subtitle; 

13 (9) have the authority to educate policymakers; 

14 and 

15 (10) provide assurances to the Secretary that 

16 funds allotted to the State under section 433 will be 

17 used to supplement, and not supplant, the non-Fed18 eral funds that would otherwise be made available 

19 for the purposes for which the allotted funds are 

20 provided. 

21 (d) AMERICAN INDIAN CONSORTIUM.— 

22 (1) IN GENERAL.—Upon application to the Sec23 retary, the Secretary shall allot funds to one or more 

24 American Indian consortium established to provide 

25 services under this subtitle, in accordance with secVerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00167 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148

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1 tion 433(a)(5). Such funds shall be used to support 

2 services under this subtitle. 

3 (2) COORDINATION OF SYSTEMS.—An American 

4 Indian consortium under paragraph (1) shall be con5 sidered to be a system for purposes of this subtitle 

6 and shall coordinate those services with other sys7 tems serving the same geographic area. 

8 (3) RESPONSIBLE PARTY.—The tribal council 

9 that designates the consortium shall carry out the 

10 responsibilities and exercise the authorities specified 

11 for a State in this subtitle, with regard to the con12 sortium. 

13 SEC. 435. ADMINISTRATION. 

14 (a) GOVERNING BOARD.—The system described in 

15 section 434 shall be organized as a private nonprofit entity 

16 with a multimember governing board, and such governing 

17 board shall be selected according to the policies and proce18 dures of the system, except that— 

19 (1) the governing board shall be composed of 

20 members who broadly represent or are knowledge21 able about the needs of the individuals served by the 

22 system; 

23 (2) a majority of the members of the board 

24 shall be— 


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1 (A) attorneys representing the interests of 

2 workers; 

3 (B) advocates for workers with experience 

4 working to protect or expand workers’ rights; or 

5 (C) workers who have experienced employ6 ment discrimination; 

(3) not more than 1 7 ⁄3 of the members of the 

8 governing board may be appointed by the chief exec9 utive officer of the State involved, in the case of any 

10 State in which such officer has the authority to ap11 point members of the board; 

12 (4) the membership of the governing board 

13 shall be subject to term limits set by the system to 

14 ensure rotating membership; and 

15 (5) any vacancy in the board shall be filled not 

16 later than 60 days after the date on which the va17 cancy occurs. 

18 (b) LEGAL ACTION.— 

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

20 preclude a system from bringing a suit on behalf of 

21 individuals described in section 434(c)(1)(A) against 

22 a State, or an agency or instrumentality of a State. 

23 (2) USE OF AMOUNTS FROM JUDGMENT.—An 

24 amount received pursuant to a suit described in 

25 paragraph (1) through a court judgment may only 


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1 be used by the system to further the purpose of this 

2 subtitle and shall not be used to augment payments 

3 to legal contractors or to award personal bonuses. 

4 (c) PUBLIC NOTICE OF FEDERAL ONSITE REVIEW.— 

5 The Secretary shall provide advance public notice of, and 

6 solicit public comments regarding, any Federal pro7 grammatic or administrative onsite review of a system 

8 conducted under this subtitle. The Secretary shall prepare 

9 an onsite visit report containing the results of such review, 

10 which shall be distributed to the Governor of the State 

11 and to other interested public and private parties. The 

12 comments received in response to the notice and public 

13 comment solicitation shall be included in the onsite visit 

14 report. 

15 (d) REPORTS.— 

16 (1) IN GENERAL.—Beginning for the fiscal year 

17 after the fiscal year during which this Act is en18 acted, each system established in a State pursuant 

19 to this subtitle shall annually prepare and transmit 

20 to the Secretary a report that describes the activi21 ties, accomplishments, and expenditures of the sys22 tem during the preceding fiscal year, including— 

23 (A) a description of the system’s goals, the 

24 extent to which the goals were achieved, and 

25 barriers to that achievement; and 


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1 (B) the process used to obtain public 

2 input, the nature of such input, and how such 

3 input was used. 

4 (2) DISCLOSURE OF INFORMATION.—For pur5 poses of the report described in paragraph (1) the 

6 Secretary shall not require the system disclose the 

7 identity of, or any other personally identifiable infor8 mation related to, any individual requesting assist9 ance from the system. 

10 SEC. 436. AUTHORIZATION OF APPROPRIATIONS. 

11 There are authorized to be appropriated for allot12 ments under section 433 such sums as may be necessary. 

13 TITLE V—GENERAL PROVISIONS 

14 SEC. 501. SEVERABILITY. 

15 If any provision of this Act, an amendment made by 

16 this Act, or the application of such provision or amend17 ment to any person or circumstance is held to be unconsti18 tutional, the remainder of this Act and the amendments 

19 made by this Act, and the application of the provision or 

20 amendment to any other person or circumstance, shall not 

21 be affected. 

Æ 


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