II 

116TH CONGRESS 

1ST SESSION S. 2287 

To amend title VII of the Civil Rights Act of 1964 and other statutes 

to clarify appropriate liability standards for Federal antidiscrimination claims. 

IN THE SENATE OF THE UNITED STATES 

JULY 25, 2019 

Ms. BALDWIN (for herself and Mr. LEAHY) introduced the following bill; which 

was read twice and referred to the Committee on Health, Education, 

Labor, and Pensions 

A BILL 

To amend title VII of the Civil Rights Act of 1964 and 

other statutes to clarify appropriate liability standards 

for Federal antidiscrimination claims. 

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 ‘‘Fair Employment Pro5 tection Act of 2019’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds the following: 

8 (1) In fiscal year 2018, sex discrimination 

9 charges comprised 32.3 percent of the charges filed 


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1 with the Equal Employment Opportunity Commis2 sion (referred to in this section as the ‘‘EEOC’’) 

3 under all the statutes the agency enforces. In fiscal 

4 year 2018, 84.1 percent of sexual harassment 

5 charges were filed by women. 

6 (2) Women and people of color working in low7 wage jobs are particularly vulnerable to harassment 

8 in the workplace. 

9 (3) In some industries, harassment is even 

10 more widespread. For example, a survey conducted 

11 by the Restaurant Opportunities Centers United 

12 Forward Together found that two-thirds of women 

13 workers and over half of men workers had experi14 enced some form of sexual harassment from man15 agement in the restaurant industry; nearly 80 per16 cent of women and 70 percent of men experienced 

17 some form of sexual harassment from co-workers; 

18 and nearly 80 percent of women and 55 percent of 

19 men experienced some form of sexual harassment 

20 from customers. 

21 (4) Studies indicate that sexual harassment of 

22 women, including unwanted touching, grabbing, and 

23 stalking, is also common in male-dominated indus24 tries, such as construction, public safety, manufac25 turing, farming, and the high-tech industry. HarassVerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287

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1 ment in male-dominated industries operates as a 

2 barrier to women’s entry into higher paying jobs. 

3 (5) Racial harassment remains a pervasive 

4 problem in the workplace in the United States. In 

5 fiscal year 2018, 32.2 percent of the charges of al6 leged violations filed with the EEOC were charges 

7 on the basis of race. 

8 (6) Research shows that workers in a wide 

9 spectrum of occupations, ranging from service and 

10 support positions to management and professional 

11 positions, report experiencing race-based harassment 

12 while on the job. 

13 (7) Harassment in the workplace is a persistent 

14 barrier to opportunity for people with disabilities. 

15 Harassment can result in workers with disabilities 

16 being forced off the job. Workplace harassment is 

17 used to send the message that workers with disabil18 ities do not belong at work. 

19 (8) Age discrimination continues to be a barrier 

20 to employment for older workers. Nearly one-third of 

21 older workers report that they or someone they know 

22 experienced age discrimination in the workplace. 

23 (9) The Supreme Court’s decision in Vance v. 

24 Ball State University, 570 U.S. 421 (2013), signifi25 cantly undermines protections against discrimination 


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1 that the Supreme Court established in Faragher v. 

2 Boca Raton, 524 U.S. 775 (1998) and Burlington 

3 Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), 

4 which held that an employer may be vicariously lia5 ble under title VII of the Civil Rights Act of 1964 

6 for harassment of an employee by an individual that 

7 has supervisory authority over that employee. 

8 (10) In Faragher and Ellerth, the Supreme 

9 Court held that employers will be subject to a strict 

10 liability standard when employees with supervisory 

11 authority engage in harassment that results in ‘‘tan12 gible employment actions’’. However, in situations 

13 where ‘‘supervisors’’ engage in harassment that does 

14 not result in tangible employment actions, the Court 

15 explained, an employer can avoid vicarious liability 

16 by showing that— 

17 (A) the employer exercised reasonable care 

18 to prevent and correct any harassing behavior; 

19 and 

20 (B) the plaintiff unreasonably failed to 

21 take advantage of the preventive or corrective 

22 opportunities that the employer provided. 

23 (11) Whether an employer should be vicariously 

24 liable for harassment is a functional analysis that is 

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1 er’s job description for the harasser’s position but on 

2 the authority vested in that individual by the em3 ployer. 

4 (12) The Supreme Court holding in Vance lim5 its the category of individuals who are considered su6 pervisors and for which an employer may be held vi7 cariously liable under Faragher and Ellerth to those 

8 individuals that have authority to take tangible em9 ployment actions. This holding ignores the reality 

10 that employees with the authority to control their 

11 subordinates’ daily work should be included in that 

12 category, for which an employer may be held vicari13 ously liable, because such individuals are aided by 

14 that authority in perpetuating a discriminatory work 

15 environment. 

16 (13) Individuals who direct the daily work ac17 tivities of employees but do not have the authority 

18 to take tangible employment actions against those 

19 employees are common in the workplace in the 

20 United States, particularly in industries that employ 

21 low-wage workers. Workers in industries including 

22 retail, restaurant, health care, housekeeping, and 

23 personal care, which may pay low wages and employ 

24 large numbers of female workers, are particularly 

25 vulnerable to harassment by individuals who have 


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1 the power to direct day-to-day work activities but 

2 lack the power to take tangible employment actions. 

3 (b) PURPOSE.—The purpose of this Act is to clarify 

4 that an employer’s vicarious liability for harassment under 

5 title VII of the Civil Rights Act of 1964, the Age Discrimi6 nation in Employment Act of 1967, the Americans with 

7 Disabilities Act of 1990, the Rehabilitation Act of 1973, 

8 section 1977 of the Revised Statutes, the Genetic Informa9 tion Nondiscrimination Act of 2008, the Government Em10 ployee Rights Act of 1991, the Congressional Account11 ability Act of 1995, and title 3, United States Code, ex12 tends to— 

13 (1) an individual with the authority to under14 take or recommend tangible employment actions af15 fecting the victim of the harassment; or 

16 (2) an individual with the authority to direct 

17 the victim’s daily work activities. 

18 SEC. 3. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS 

19 ACT OF 1964. 

20 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS21 TILE WORK ENVIRONMENT.—Section 703 of the Civil 

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

23 adding at the end the following: 

24 ‘‘(o) Subject to section 12 of the Fair Employment 

25 Protection Act of 2019, an employer shall be liable for 


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1 the acts of any individual whose harassment of an em2 ployee has created or continued a hostile work environ3 ment that constitutes an unlawful employment practice 

4 under this section if, at the time of the harassment— 

5 ‘‘(1) such individual was authorized by that em6 ployer— 

7 ‘‘(A) to undertake or recommend tangible 

8 employment actions affecting the employee; or 

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

10 activities; or 

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

12 creation or continuation of that hostile work environ13 ment.’’. 

14 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE15 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 704 

16 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3) is 

17 amended— 

18 (1) by redesignating subsection (b) as sub19 section (c); and 

20 (2) by inserting after subsection (a) the fol21 lowing: 

22 ‘‘(b) Subject to section 12 of the Fair Employment 

23 Protection Act of 2019, an employer shall be liable for 

24 the acts of any individual whose harassment of an em25 ployee has created or continued a retaliatory hostile work 


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1 environment that constitutes an unlawful employment 

2 practice as described under subsection (a) if, at the time 

3 of the harassment— 

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 retaliatory hostile 

12 work environment.’’. 

13 (c) FEDERAL EMPLOYEES.—Section 717 of the Civil 

14 Rights Act of 1964 (42 U.S.C. 2000e–16) is amended by 

15 adding at the end the following: 

16 ‘‘(g) The provisions of sections 703(o) and 704(b) 

17 shall apply to hostile work environment claims and retalia18 tory hostile work environment claims, respectively, under 

19 this section.’’. 

20 SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EM21 PLOYMENT ACT OF 1967. 

22 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS23 TILE WORK ENVIRONMENT.—Section 4 of the Age Dis24 crimination in Employment Act of 1967 (29 U.S.C. 623) 

25 is amended by adding at the end the following: 


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1 ‘‘(n) Subject to section 12 of the Fair Employment 

2 Protection Act of 2019, an employer shall be liable for 

3 the acts of any individual whose harassment of an em4 ployee has created or continued a hostile work environ5 ment that is unlawful under this section if, at the time 

6 of the harassment— 

7 ‘‘(1) such individual was authorized by that em8 ployer— 

9 ‘‘(A) to undertake or recommend tangible 

10 employment actions affecting the employee; or 

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

12 activities; or 

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

14 creation or continuation of that hostile work environ15 ment.’’. 

16 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE17 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 

18 4(d) of the Age Discrimination in Employment Act of 

19 1967 (29 U.S.C. 623) is amended by striking ‘‘or litiga20 tion under this Act.’’ and inserting ‘‘or litigation under 

21 this Act. Subject to section 12 of the Fair Employment 

22 Protection Act of 2019, an employer shall be liable for 

23 the acts of any individual whose harassment of an em24 ployee has created or continued a retaliatory hostile work 


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1 environment that is unlawful under this subsection if, at 

2 the time of the harassment— 

3 ‘‘(1) such individual was authorized by that em4 ployer— 

5 ‘‘(A) to undertake or recommend tangible 

6 employment actions affecting the employee; or 

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

8 activities; or 

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

10 creation or continuation of that retaliatory hostile 

11 work environment.’’. 

12 (c) FEDERAL EMPLOYEES.—Section 15 of the Age 

13 Discrimination in Employment Act of 1967 (29 U.S.C. 

14 633a) is amended by adding at the end the following: 

15 ‘‘(h) Subsections (d) and (n) of section 4 shall apply 

16 to retaliatory hostile work environment claims and hostile 

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

19 SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABIL20 ITIES ACT OF 1990. 

21 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS22 TILE WORK ENVIRONMENT.—Section 102 of the Ameri23 cans with Disabilities Act of 1990 (42 U.S.C. 12112) is 

24 amended by adding at the end the following: 


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1 ‘‘(e) STANDARD FOR EMPLOYER LIABILITY FOR

2 HOSTILE WORK ENVIRONMENT.—Subject to section 12 of 

3 the Fair Employment Protection Act of 2019, an employer 

4 shall be liable for the acts of any individual whose harass5 ment of an employee has created or continued a hostile 

6 work environment that constitutes discrimination against 

7 a qualified individual on the basis of disability under this 

8 section if, at the time of the harassment— 

9 ‘‘(1) such individual was authorized by the em10 ployer— 

11 ‘‘(A) to undertake or recommend tangible 

12 employment actions affecting the qualified indi13 vidual; or 

14 ‘‘(B) to direct the qualified individual’s 

15 daily work activities; or 

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

17 creation or continuation of that hostile work environ18 ment.’’. 

19 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE20 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 503 

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

22 12203) is amended— 

23 (1) by redesignating subsection (c) as sub24 section (d); 


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1 (2) by inserting after subsection (b) the fol2 lowing: 

3 ‘‘(c) EMPLOYER LIABILITY.—Subject to section 12 of 

4 the Fair Employment Protection Act of 2019, an employer 

5 shall be liable for the acts of any individual whose harass6 ment of an employee has created or continued a retaliatory 

7 hostile work environment that constitutes retaliatory dis8 crimination, as described in subsection (a), or the carrying 

9 out of any unlawful acts described in subsection (b), if, 

10 at the time of the harassment— 

11 ‘‘(1) such individual was authorized by the em12 ployer— 

13 ‘‘(A) to undertake or recommend tangible 

14 employment actions affecting the employee; or 

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

16 activities; or 

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

18 creation or continuation of that retaliatory hostile 

19 work environment.’’; and 

20 (3) in subsection (d), as redesignated by para21 graph (1), by striking ‘‘subsections (a) and (b)’’ and 

22 inserting ‘‘subsections (a), (b), and (c)’’. 


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1 SEC. 6. AMENDMENT TO THE REHABILITATION ACT OF 

2 1973. 

3 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS4 TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE

5 WORK ENVIRONMENT.—Section 501 of the Rehabilitation 

6 Act of 1973 (29 U.S.C. 791) is amended by adding at 

7 the end the following: 

8 ‘‘(g) Subject to section 12 of the Fair Employment 

9 Protection Act of 2019, each department, agency, and in10 strumentality in the executive branch of Government and 

11 the Smithsonian Institution shall be liable for the acts of 

12 any individual within such department, agency, instrumen13 tality, or the Smithsonian Institution whose harassment 

14 of an individual with a disability has created or continued 

15 a hostile work environment, or a retaliatory hostile work 

16 environment, that constitutes nonaffirmative action em17 ployment discrimination under this section if, at the time 

18 of the harassment— 

19 ‘‘(1) such individual was authorized by that de20 partment, agency, instrumentality, or the Smithso21 nian Institution— 

22 ‘‘(A) to undertake or recommend tangible 

23 employment actions affecting the individual 

24 with a disability; or 

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

26 the individual with a disability; or 


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

2 instrumentality, or the Smithsonian Institution led 

3 to the creation or continuation of that hostile work 

4 environment or retaliatory hostile work environ5 ment.’’. 

6 (b) STANDARD FOR EMPLOYER LIABILITY FOR HOS7 TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE

8 WORK ENVIRONMENT.—Section 504 of the Rehabilitation 

9 Act of 1973 (29 U.S.C. 794) is amended by adding at 

10 the end the following: 

11 ‘‘(e) Subject to section 12 of the Fair Employment 

12 Protection Act of 2019, an employer described under sub13 section (b) shall be liable for the acts of any individual 

14 whose harassment of a qualified individual with a dis15 ability has created or continued a hostile work environ16 ment, or a retaliatory hostile work environment, that con17 stitutes employment discrimination under this section if, 

18 at the time of the harassment— 

19 ‘‘(1) such individual was authorized by such 

20 employer— 

21 ‘‘(A) to undertake or recommend tangible 

22 employment actions affecting the qualified indi23 vidual with a disability; or 

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

25 the qualified individual with a disability; or 


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1 ‘‘(2) the negligence of such employer led to the 

2 creation or continuation of that hostile work environ3 ment or retaliatory hostile work environment.’’. 

4 (c) REMEDIES.—Section 505 of the Rehabilitation 

5 Act of 1973 (29 U.S.C. 794a) is amended by adding at 

6 the end of subsection (a) the following: 

7 ‘‘(3) Sections 501(h) and 504(e) shall apply to 

8 hostile work environment claims and retaliatory hos9 tile work environment claims under this section.’’. 

10 SEC. 7. AMENDMENT TO SECTION 1977 OF THE REVISED 

11 STATUTES. 

12 Section 1977 of the Revised Statutes (42 U.S.C. 

13 1981) is amended by adding at the end the following: 

14 ‘‘(d) Subject to section 12 of the Fair Employment 

15 Protection Act of 2019, a nongovernmental employer shall 

16 be liable for the acts of any individual whose harassment 

17 of an employee has created a hostile work environment 

18 or a retaliatory hostile work environment, constituting an 

19 unlawful employment practice, if, at the time of the har20 assment— 

21 ‘‘(1) such individual was authorized by the em22 ployer— 

23 ‘‘(A) to undertake or recommend tangible 

24 employment actions affecting the employee; or 


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

2 activities; or 

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

4 creation or continuation of that hostile work environ5 ment or retaliatory hostile work environment.’’. 

6 SEC. 8. AMENDMENT TO THE GENETIC INFORMATION NON7 DISCRIMINATION ACT OF 2008. 

8 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS9 TILE WORK ENVIRONMENT.—Section 202 of the Genetic 

10 Information Nondiscrimination Act of 2008 (42 U.S.C. 

11 2000ff–1) is amended by adding at the end the following: 

12 ‘‘(d) STANDARD FOR EMPLOYER LIABILITY FOR

13 HOSTILE WORK ENVIRONMENT.—Subject to section 12 of 

14 the Fair Employment Protection Act of 2019, an employer 

15 shall be liable for the acts of any individual whose harass16 ment of an employee has created or continued a hostile 

17 work environment that constitutes an unlawful employ18 ment practice under this section if, at the time of the har19 assment— 

20 ‘‘(1) such individual was authorized by the em21 ployer— 

22 ‘‘(A) to undertake or recommend tangible 

23 employment actions affecting the employee; or 

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

25 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 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE5 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 

6 207(f) of the Genetic Information Nondiscrimination Act 

7 (42 U.S.C. 2000ff–6(f)) is amended by striking ‘‘violations 

8 of this subsection.’’ and inserting ‘‘violations of this sub9 section. Subject to section 12 of the Fair Employment 

10 Protection Act of 2019, an employer shall be liable for 

11 the acts of any individual whose harassment of an em12 ployee has created or continued a retaliatory hostile work 

13 environment that constitutes discrimination under this 

14 subsection if, at the time of the harassment— 

15 ‘‘(1) such individual was authorized by the em16 ployer— 

17 ‘‘(A) to undertake or recommend tangible 

18 employment actions affecting the employee; or 

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

20 activities; or 

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

22 creation or continuation of that retaliatory hostile 

23 work environment.’’. 


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1 SEC. 9. AMENDMENT TO THE GOVERNMENT EMPLOYEE 

2 RIGHTS ACT OF 1991. 

3 Section 302 of the Government Employee Rights Act 

4 of 1991 (42 U.S.C. 2000e–16b) is amended by adding at 

5 the end the following: 

6 ‘‘(c) Subject to section 12 of the Fair Employment 

7 Protection Act of 2019, an employer of an individual de8 scribed under section 304(a) shall be liable for the acts 

9 of any individual whose harassment of a State employee 

10 described in section 304 has created or continued a hostile 

11 work environment or a retaliatory hostile work environ12 ment constituting discrimination under this section, if at 

13 the time of the harassment— 

14 ‘‘(1) such individual was authorized by such 

15 employer— 

16 ‘‘(A) to undertake or recommend tangible 

17 employment actions affecting the employee; or 

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

19 activities; or 

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

21 creation or continuation of that hostile work environ22 ment or retaliatory hostile work environment.’’. 

23 SEC. 10. AMENDMENT TO TITLE 3, UNITED STATES CODE. 

24 Section 411 of title 3, United States Code, is amend25 ed— 


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1 (1) by redesignating subsections (c) through (f) 

2 as subsections (d) through (g), respectively; 

3 (2) by inserting after subsection (b) the fol4 lowing: 

5 ‘‘(c) LIABILITY OF EMPLOYING OFFICE.—Subject to 

6 section 12 of the Fair Employment Protection Act of 

7 2019, an employing office shall be liable for the acts of 

8 any individual whose harassment of a covered employee 

9 has created or continued a hostile work environment or 

10 a retaliatory hostile work environment constituting dis11 crimination under this section if, at the time of the harass12 ment— 

13 ‘‘(1) such individual was authorized by the em14 ploying office— 

15 ‘‘(A) to undertake or recommend tangible 

16 employment actions affecting the covered em17 ployee; or 

18 ‘‘(B) to direct the covered employee’s daily 

19 work activities; or 

20 ‘‘(2) the negligence of the employing office led 

21 to the creation or continuation of that hostile work 

22 environment or retaliatory hostile work environ23 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 SEC. 11. AMENDMENT TO THE CONGRESSIONAL ACCOUNT5 ABILITY ACT OF 1995. 

6 Section 201 of the Congressional Accountability Act 

7 of 1995 (2 U.S.C. 1311) is amended— 

8 (1) by redesignating subsection (d) as subsection (e); 

9 and 

10 (2) by inserting after subsection (c) the following: 

11 ‘‘(d) STANDARD FOR EMPLOYER LIABILITY FOR RE12 TALIATORY HOSTILE WORK ENVIRONMENT.—Subject to 

13 section 12 of the Fair Employment Protection Act of 

14 2019, an employing office shall be liable for the acts of 

15 any individual whose harassment of a covered employee 

16 has created or continued a hostile work environment or 

17 a retaliatory hostile work environment that constitutes dis18 crimination under this section if, at the time of the harass19 ment— 

20 ‘‘(1) such individual was authorized by the em21 ploying office— 

22 ‘‘(A) to undertake or recommend tangible 

23 employment actions affecting the covered em24 ployee; or 


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1 ‘‘(B) to direct the covered employee’s daily 

2 work activities; or 

3 ‘‘(2) the negligence of the employing office led 

4 to the creation or continuation of that hostile work 

5 environment or retaliatory hostile work environ6 ment.’’. 

7 SEC. 12. RULE OF CONSTRUCTION. 

8 Nothing in this Act shall be construed to limit the 

9 availability of, or access to, defenses available under the 

10 law. 

11 SEC. 13. SAVINGS CLAUSE. 

12 If any provision of this Act is declared invalid, the 

13 other provisions in this Act will remain in full force and 

14 effect. 

15 SEC. 14. APPLICATION. 

16 This Act, and the amendments made by this Act, 

17 shall apply to all claims pending on or after the date of 

18 enactment of this Act. 

Æ 


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