II

106TH CONGRESS

1ST SESSION S. 1907

To prohibit employment discrimination against parents and those with

parental responsibilities, and for other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 10, 1999

Mr. DODD (by request) (for himself and Mr. KENNEDY) introduced the following bill; which was read twice and referred to the Committee on

Health, Education, Labor, and Pensions

A BILL

To prohibit employment discrimination against parents and

those with parental responsibilities, and for other purposes.

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 ‘‘Ending Discrimination

5 Against Parents Act of 1999’’.

6 SEC. 2. FINDINGS.

7 (a) In 1998, thirty-eight percent of all United States

8 workers had children under 18.

9 (b) The vast majority of Americans with children

10 under 18 are employed.
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1 (c) Federal law protects working parents from em2 ployment discrimination in a number of important areas.

3 For instance, title VII of the Civil Rights Act of 1964

4 prohibits discrimination against workers on the basis of

5 sex; the Americans with Disabilities Act of 1990 prohibits

6 discrimination against workers on the basis of disability;

7 and the Pregnancy Discrimination Act of 1978 prohibits

8 discrimination against workers on the basis of pregnancy.

9 Also, the Family and Medical Leave Act of 1993 provides

10 covered workers with job protection when they take time

11 off for certain family responsibilities.

12 (d) However, no existing Federal statute protects all

13 workers from employment discrimination on the basis of

14 their status as parents.

15 (e) Such discrimination against parents occurs where,

16 for example, employers refuse to hire or promote both men

17 and women who are parents based on unwarranted stereo18 types or overbroad assumptions about their level of com19 mitment to the workforce.

20 (f) Such discrimination has occurred in the workplace

21 and has been largely unremedied.

22 (g) Such discrimination occurs in both the private

23 and the public sectors.

24 (h) Such discrimination—
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1 (1) reduces the income earned by families who

2 rely on the wages of working parents to make ends

3 meet;

4 (2) prevents the best use of available labor re5 sources;

6 (3) has been spread and perpetuated, through

7 commerce and the channels and instrumentalities of

8 commerce, among the workers of several States;

9 (4) burdens commerce and the free flow of

10 goods in commerce;

11 (5) constitutes an unfair method of competition

12 in commerce; and

13 (6) leads to labor disputes burdening and ob14 structing commerce and the free flow of goods in

15 commerce.

16 (i) Elimination of such discrimination would have

17 positive effects, including—

18 (1) solving problems in the economy created by

19 unfair discrimination against parents;

20 (2) promoting stable families by enabling work21 ing parents to work free from discrimination against

22 parents; and

23 (3) remedying the effects of past discrimination

24 against parents.
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1 SEC. 3. PURPOSES.

2 The purposes of this Act are—

3 (a) to prohibit employers, employment agencies, and

4 labor organizations from discriminating against parents

5 and persons with parental responsibilities based on the as6 sumption that they cannot satisfy the requirements of a

7 particular position; and

8 (b) to provide meaningful and effective remedies for

9 employment discrimination against parents and persons

10 with parental responsibilities.

11 SEC. 4. DEFINITIONS.

12 In this Act:

13 (a) ‘‘Commission’’ means the Equal Employment Op14 portunity Commission.

15 (b) ‘‘Complaining party’’ means the Commission, the

16 Attorney General, or any other person who may bring an

17 action or proceeding under this Act.

18 (c) ‘‘Covered entity’’ means an employer, employment

19 agency, labor organization, or joint labor-management

20 committee.

21 (d) ‘‘Demonstrates’’ means meets the burdens of pro22 duction and persuasion.

23 (e)(1) the term ‘‘employee’’ means:

24 (A) an individual to whom section 701(f) of the

25 Civil Rights Act of 1964 (42 U.S.C. 2000e(f)) ap26 plies;
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1 (B) an individual to whom section 717(a) of the

2 Civil Rights Act of 1964 (42 U.S.C. 2000e–16(a))

3 applies;

4 (C) an individual to whom section 302(a)(1) of

5 the Government Employee Rights Act of 1991 (2

6 U.S.C. 1202(a)(1)) applies;

7 (D) a covered employee as defined in section

8 101(3) of the Congressional Accountability Act of

9 1995 (2 U.S.C. 1301(3)); and

10 (E) a covered employee as defined in section

11 411(c)(1) of title 3, United States Code.

12 (2) The term ‘‘employee’’ includes applicants for em13 ployment and former employees.

14 (f)(1) The term ‘‘employer’’ means:

15 (A) a person engaged in an industry affecting

16 commerce (as defined in section 701(h) of the Civil

17 Rights Act of 1964 (42 U.S.C. 2000e(h))) who has

18 fifteen or more employees (as defined in section

19 701(f) of such Act (42 U.S.C. 2000e(f))) for each

20 working day in each of twenty or more calendar

21 weeks in the current or preceding calendar year, and

22 any agent of such a person;

23 (B) an entity to which section 717(a) of the

24 Civil Rights Act of 1964 (42 U.S.C. 2000e–16(a))

25 applies;
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1 (C) an employing authority to which section

2 302(a)(1) of the Government Employee Rights Act

3 of 1991 (2 U.S.C. 1202(a)(1)) applies;

4 (D) an employing office, as defined in section

5 101(9) of the Congressional Accountability Act of

6 1995 (2 U.S.C. 1301(9)); and

7 (E) an employing office as defined in section

8 411(c)(2) of title 3, United States Code.

9 (2) The term ‘‘employer’’ does not include a bona fide

10 private membership club (other than a labor organization)

11 that is exempt from taxation under section 501(c) of title

12 26, United States Code.

13 (g) ‘‘Employment agency’’ has the meaning given

14 that term in section 701(c) of the Civil Rights Act of 1964

15 (42 U.S.C. 2000e(c)).

16 (h) ‘‘Incapable of self-care’’ means that the individual

17 needs active assistance or supervision to provide daily self18 care in three or more of the ‘‘activities of daily living’’

19 or ‘‘instrumental activities of daily living.’’ Activities of

20 daily living include adaptive activities such as caring ap21 propriately for one’s grooming and hygiene, bathing,

22 dressing, and eating. Instrumental activities of daily living

23 include cooking, cleaning, shopping, taking public trans24 portation, paying bills, maintaining a residence, using tele-
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1 phones and directories, using a post office, and similar ac2 tivities.

3 (i) ‘‘Labor organization’’ has the meaning given that

4 term in sections 701(d) and (e) of the Civil Rights Act

5 of 1964 (42 U.S.C. 2000e(d), (e)).

6 (j) ‘‘Office of Compliance’’ has the meaning given

7 that term in the Congressional Accountability Act of 1995

8 (2 U.S.C. 1301 et seq.).

9 (k) ‘‘Parent’’ means a person who, with regard to an

10 individual who is under the age of 18, or who is 18 or

11 older but is incapable of self-care because of a physical

12 or mental disability—

13 (1) has the status of—

14 (A) a biological parent;

15 (B) an adoptive parent;

16 (C) a foster parent;

17 (D) a stepparent; or

18 (E) a custodian of a legal ward;

19 (2) is actively seeking legal custody or adoption;

20 or

21 (3) stands in loco parentis to such an indi22 vidual.

23 (l) ‘‘Person’’ has the meaning given that term in sec24 tion 701(a) of the Civil Rights Act of 1964 (42 U.S.C.

25 2000e(a)).
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1 (m) ‘‘Physical or mental disability’’ means a physical

2 or mental impairment that substantially limits one or

3 more of the major life activities of an individual.

4 (n) ‘‘State’’ has the meaning given that term in sec5 tion 701(i) of the Civil Rights Act of 1964 (42 U.S.C.

6 2000e(i)).

7 SEC. 5. DISCRIMINATION PROHIBITED.

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

9 employment practice for an employer—

10 (1) to fail or refuse to hire, or to discharge, any

11 individual, or otherwise to discriminate against any

12 individual with regard to the compensation, terms,

13 conditions, or privileges of employment of the indi14 vidual, because such individual is a parent; or

15 (2) to limit, segregate, or classify employees in

16 any way that would deprive, or tend to deprive, any

17 individual of employment opportunities or otherwise

18 adversely affect the status of the individual as an

19 employee, because such individual is a parent.

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

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

23 to discriminate against, any individual because such indi24 vidual is a parent or to classify or refer for employment

25 any individual because such individual is a parent.
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1 (c) LABOR ORGANIZATION PRACTICES.—It shall be

2 an unlawful employment practice for a labor

3 organization—

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

5 otherwise to discriminate against, any individual be6 cause such individual is a parent;

7 (2) to limit, segregate, or classify its member8 ship or applicants for membership, or to classify or

9 fail or refuse for employment any individual, in any

10 way that would deprive or tend to deprive any indi11 vidual of employment opportunities, or would limit

12 such employment opportunities or otherwise ad13 versely affect the status of the individual as an em14 ployee, because such individual is a parent; or

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

16 discriminate against an individual in violation of this

17 Act.

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

19 employment practice for any employer, labor organization,

20 or joint labor-management committee controlling appren21 ticeship or other training or retraining, including on-the22 job training programs, to discriminate against any indi23 vidual because such individual is a parent in admission

24 to, or employment in, any program established to provide

25 apprenticeship or other training.
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1 SEC. 6. RETALIATION AND COERCION PROHIBITED.

2 (a) RETALIATION.—A covered entity shall not dis3 criminate against an employee because the employee has

4 opposed any act or practice prohibited by this Act or be5 cause the employee made a charge, testified, assisted, or

6 participated in any manner in an investigation, pro7 ceeding, or hearing under this Act.

8 (b) INTERFERENCE, COERCION, OR INTIMIDATION.—

9 A covered entity shall not coerce, intimidate, threaten, or

10 interfere with any employee in the exercise or enjoyment

11 of, or on account of the employee’s having exercised or

12 enjoyed, or on account of the employee’s having aided or

13 encouraged any other individual in the exercise or enjoy14 ment of, any right granted or protected by this Act.

15 SEC. 7. OTHER PROHIBITIONS.

16 (a) COLLECTION OF STATISTICS.—Notwithstanding

17 any other provision of this Act, the Commission shall not

18 collect statistics from covered entities on their employment

19 of parents, or compel the collection of such statistics by

20 covered entities, unless such statistics are to be used in

21 investigation, litigation, or resolution of a claim of dis22 crimination under this Act.

23 (b) QUOTAS.—A covered entity shall not adopt or im24 plement a quota with respect to its employment of parents.
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1 SEC. 8. MIXED MOTIVE DISCRIMINATION.

2 (a) An unlawful employment practice is established

3 under this Act when the complaining party demonstrates

4 that—

5 (1) an individual’s status as a parent; or

6 (2) retaliation, coercion, or threats against, in7 timidation of, or interference with an individual as

8 described in section 6 of this Act;

9 was a motivating factor for any employment practice, even

10 though other factors also motivated the practice.

11 (b) When an individual proves a violation under this

12 section, and a respondent demonstrates that the respond13 ent would have taken the same action in the absence of

14 the prohibited motivating factor, a court or any other enti15 ty authorized in section 11(a) of this Act to award relief—

16 (1) may grant declaratory relief, injunctive re17 lief (except as provided in clause (2) below), and at18 torney’s fees and costs demonstrated to be directly

19 attributable only to the pursuit of a claim under this

20 section; and

21 (2) shall not award damages or issue an order

22 requiring any admission, reinstatement, hiring, pro23 motion, or payment.

24 SEC. 9. DISPARATE IMPACT.

25 Notwithstanding any other provision of this Act, the

26 fact that an employment practice has a disparate impact
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1 on parents, as the term ‘‘disparate impact’’ is used in sec2 tion 703(k) of the Civil Rights Act of 1964 (42 U.S.C.

3 2000e–2(k)), shall not establish a violation of this Act.

4 SEC. 10. DEFENSES WHERE ACTIONS TAKEN IN A FOREIGN

5 COUNTRY.

6 (a) It shall not be unlawful under this Act for a cov7 ered entity to take any action otherwise prohibited under

8 this Act with respect to an employee in a workplace in

9 a foreign country if compliance with this Act would cause

10 such entity to violate the law of the foreign country in

11 which such workplace is located.

12 (b)(1) If a covered entity controls a corporation

13 whose place of incorporation is a foreign country, any

14 practice prohibited by this Act engaged in by such cor15 poration shall be presumed to be engaged in by such cov16 ered entity.

17 (2) This Act shall not apply with respect to the for18 eign operations of a corporation that is a foreign person

19 not controlled by an American covered entity.

20 (3) For purposes of this subsection, the determina21 tion of whether a covered entity controls a corporation

22 shall be based on the factors set forth in section 702(c)(3)

23 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–1(c)(3)).

24 (c) This Act shall not apply to a covered entity with

25 respect to the employment of aliens outside any State.
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1 SEC. 11. ENFORCEMENT AND REMEDIES.

2 (a) INCORPORATION OF POWERS, REMEDIES, AND

3 PROCEDURES IN OTHER CIVIL RIGHTS STATUTES.—With

4 respect to the administration and enforcement of this Act

5 in the case of a claim alleged by an individual for a viola6 tion of this Act, the following statutory provisions are

7 hereby incorporated, and shall, along with the provisions

8 in subsection 11(b), establish the powers, remedies, proce9 dures, and jurisdiction that this Act provides to the Equal

10 Employment Opportunity Commission, the Attorney Gen11 eral, the Librarian of Congress, the Office of Compliance

12 and its Board of Directors, the Merit Systems Protection

13 Board, the President, the courts of the United States, and/

14 or any other person alleging a violation of any provision

15 of this Act—

16 (1) for individuals who are covered under title

17 VII of the Civil Rights Act of 1964, as amended (42

18 U.S.C. 2000e et seq.), sections 705, 706, 707, 709,

19 710, 711, and 717 of that Act (42 U.S.C. 2000e–

20 4, 2000e–5, 2000e–6, 2000e–8, 2000e–9 2000e–10,

21 and 2000e–16), and sections 7121, 7701, 7702, and

22 7703 of title 5, United States Code, as applicable;

23 (2) for individuals who are covered under sec24 tion 302(a) of the Government Employee Rights Act

25 of 1991 (2 U.S.C. 1202(a)), sections 302(b)(1) and
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1 304(b)–(e) of that Act (2 U.S.C. 1202(b)(1),

2 1220(b)–(e));

3 (3) for individuals who are covered under sec4 tion 101(3) of the Congressional Accountability Act

5 of 1995 (2 U.S.C. 1301(3)), sections 201(b)(1),

6 225, and 401–416 of that Act (2 U.S.C. 1311(b)(1),

7 1361, 1401–1416); and

8 (4) for individuals who are covered under sec9 tion 411(c)(1) of title 3, United States Code, sec10 tions 411(b)(1), 435, and 451–456 of that title.

11 (b) ADDITIONAL REMEDIES.—

12 (1) Notwithstanding any express or implied lim13 itation on the remedies incorporated by reference in

14 subsection 11(a), and except as provided in sub15 section (b)(2) of this section, section 8, or section 12

16 of this Act, any covered entity that violates this Act

17 shall be liable for such compensatory damages as

18 may be appropriate and for punitive damages if the

19 covered entity engaged in a discriminatory practice

20 of practices with malice or with reckless indifference

21 to the federally protected rights of an aggrieved indi22 vidual.

23 (2) Notwithstanding subsection 11(b)(1),

24 (A) absent its consent to a monetary rem25 edy, a State may be liable for monetary relief
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1 only in an action brought by the Attorney Gen2 eral in a court of the United States; and

3 (B) a State shall not be liable for punitive

4 damages.

5 (3) Notwithstanding any express or implied lim6 itation on the remedies incorporated by reference in

7 subsection 11(a) or included in subsection 11(b)(2)

8 above,

9 (A) an individual may bring an action in a

10 district court of the United States for declara11 tory or injunctive relief against any appropriate

12 State official for a violation of this Act; and

13 (B) the Attorney General may bring an ac14 tion in a district court of the United States for

15 declaratory or injunctive relief against any ap16 propriate State official or State for a violation

17 of this Act.

18 SEC. 12. FEDERAL IMMUNITY.

19 Notwithstanding any other provision of this Act, in

20 an action or administrative proceeding against the United

21 States for a violation of this Act, remedies (including rem22 edies at law and in equity, and interest) are available for

23 a violation to the same extent as the remedies are available

24 against a private entity, except that punitive damages are

25 not available.
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1 SEC. 13. POSTING NOTICES.

2 A covered entity shall post notices for individuals to

3 whom this Act applies that describe the applicable provi4 sions of this Act in the manner prescribed by, and subject

5 to the penalty provided under, section 711 of the Civil

6 Rights Act of 1964 (42 U.S.C. 2000e–10).

7 SEC. 14. REGULATIONS.

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

9 14(b), (c), (d), and (e) below, the Commission shall have

10 authority to issue regulations to carry out this Act.

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

12 Congress shall have authority to issue regulations to carry

13 out this Act with respect to employees of the Library of

14 Congress.

15 (c) BOARD.—The Board of the Office of Compliance

16 shall have authority to issue regulations to carry out this

17 Act, in accordance with sections 303 and 304 of the Con18 gressional Accountability Act of 1995 (2 U.S.C. 1383,

19 1384), with respect to covered employees as defined in sec20 tion 101(3) of such Act (2 U.S.C. 1301(3)).

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

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

23 covered employees as defined in section 411(c)(1) of title

24 3, United States Code.

25 (e) COMMISSION AND MERIT SYSTEM PROTECTION

26 BOARD.—The Commission and the Merit System Protec-
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1 tion Board shall each have authority to issue regulations

2 to carry out this Act with respect to individuals covered

3 by sections 7121, 7701, 7702, and 7703 of title 5, United

4 States Code.

5 SEC. 15. RELATIONSHIP TO OTHER LAWS.

6 Nothing in this Act shall affect the interpretation or

7 application of, and this Act shall not invalidate or limit

8 the rights, remedies, or procedures available to an indi9 vidual claiming discrimination prohibited under, any other

10 Federal law or any law of a State or political subdivision

11 of a State.

12 SEC. 16. SEVERABILITY.

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

14 provision to any person or circumstances, is held to be

15 invalid, the remainder of this Act and the application of

16 such provisions to other persons and circumstances shall

17 not be affected.

18 SEC. 17. APPROPRIATIONS.

19 There are authorized to be appropriated such sums

20 as may be necessary to carry out this Act.

21 SEC. 18. EFFECTIVE DATE.

22 This Act shall take effect 180 days after enactment

23 and shall not apply to conduct occurring before the effec24 tive date.

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