II 

113TH CONGRESS 

2D SESSION S. 2133 

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 

MARCH 13, 2014 

Ms. BALDWIN (for herself, Mr. HARKIN, Mr. LEAHY, Mrs. MURRAY, Mr. 

WHITEHOUSE, Mr. BLUMENTHAL, Ms. MIKULSKI, Mr. DURBIN, Mr. 

SCHUMER, Mr. SCHATZ, Ms. WARREN, Mr. CASEY, and Mr. FRANKEN) 

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 2014’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

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


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1 (1) Harassment is a widespread problem in 

2 workplaces in the United States. Surveys indicate 

3 that at least one-fourth of all working women and 

4 10 percent of men have experienced sexual harass5 ment on the job. 

6 (2) In fiscal year 2013, a combined total of over 

7 30,000 harassment charges were filed with the 

8 Equal Employment Opportunity Commission and 

9 State fair employment practices agencies. More than 

10 10,000 of these charges involved sexual harassment. 

11 (3) Women and people of color working in low12 wage jobs are particularly vulnerable to harassment 

13 in the workplace. 

14 (4) In some industries harassment is even more 

15 widespread. For example, 80 percent of female farm16 workers working in the fields in central California 

17 reported that they had experienced sexual harass18 ment. 

19 (5) Studies indicate that sexual harassment of 

20 women, including unwanted touching, grabbing, and 

21 stalking, is also common in male-dominated indus22 tries, such as construction, public safety, manufac23 turing, farming, and the high-tech industry. Harass24 ment in male-dominated industries operates as a 

25 barrier to women’s entry into higher-paying jobs. 


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1 (6) Racial harassment remains a pervasive 

2 problem in the workplace in the United States. In 

3 fiscal year 2013, more than 11,000 of the charges 

4 of harassment filed with the Equal Employment Op5 portunity Commission and State fair employment 

6 practices agencies were charges of racial harass7 ment. 

8 (7) 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 (8) 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 (9) Age discrimination continues to be a barrier 

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

21 older workers report that they or someone they know 

22 experienced age discrimination in the workplace. 

23 (10) Three-quarters of older Americans sur24 veyed are concerned that age may be an obstacle to 

25 finding work. 


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1 (11) The Supreme Court’s decision in Vance v. 

2 Ball State University, No. 11–556 (June 24, 2013), 

3 significantly undermines protections against dis4 crimination that the Supreme Court established in 

5 Faragher v. Boca Raton, 524 U.S. 775 (1998) and 

6 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 

7 (1998), which held that an employer may be vicari8 ously liable under title VII of the Civil Rights Act 

9 of 1964 for harassment of an employee by an indi10 vidual that has supervisory authority over that em11 ployee. 

12 (12) In Faragher and Ellerth, the Supreme 

13 Court held that employers will be subject to a strict 

14 liability standard when employees with supervisory 

15 authority engage in harassment that results in ‘‘tan16 gible employment actions’’. However, in situations 

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

18 not result in tangible employment actions, the Court 

19 explained, an employer can avoid vicarious liability 

20 by showing that— 

21 (A) the employer exercised reasonable care 

22 to prevent and correct any harassing behavior; 

23 and 


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1 (B) the plaintiff unreasonably failed to 

2 take advantage of the preventive or corrective 

3 opportunities that the employer provided. 

4 (13) Whether an employer should be vicariously 

5 liable for harassment is a functional analysis that is 

6 based not on the title of the harasser or the employ7 er’s job description for the harasser’s position but on 

8 the authority vested in that individual by the em9 ployer. 

10 (14) The Supreme Court holding in Vance lim11 its the category of individuals who are considered su12 pervisors and for which an employer may be held vi13 cariously liable under Faragher and Ellerth to those 

14 individuals that have authority to take tangible em15 ployment actions. This holding ignores the reality 

16 that employees with the authority to control their 

17 subordinates’ daily work should be included in that 

18 category, for which an employer may be held vicari19 ously liable, because such individuals are aided by 

20 that authority in perpetuating a discriminatory work 

21 environment. 

22 (15) Individuals who direct the daily work ac23 tivities of employees but do not have the authority 

24 to take tangible employment actions against those 

25 employees are common in the workplace in the 


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1 United States, particularly in industries that employ 

2 low-wage workers. Workers in industries including 

3 retail, restaurant, health care, housekeeping, and 

4 personal care, which may pay low wages and employ 

5 a large numbers of female workers, are particularly 

6 vulnerable to harassment by individuals who have 

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

8 lack the power to take tangible employment actions. 

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

10 that an employer’s vicarious liability for harassment under 

11 title VII of the Civil Rights Act of 1964, the Age Discrimi12 nation in Employment Act of 1967, the Americans with 

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

14 section 1977 of the Revised Statutes, the Genetic Informa15 tion Nondiscrimination Act of 2008, the Government Em16 ployee Rights Act of 1991, the Congressional Account17 ability Act of 1995, and title III of the United States Code 

18 extends to— 

19 (1) an individual with the authority to under20 take or recommend tangible employment actions af21 fecting the victim of the harassment; or 

22 (2) an individual with the authority to direct 

23 the victim’s daily work activities. 


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

2 ACT OF 1964. 

3 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS4 TILE WORK ENVIRONMENT.—Section 703 of the Civil 

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

6 adding at the end the following: 

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

8 Protection Act of 2014, an employer shall be liable for 

9 the acts of any individual whose harassment of an em10 ployee has created or continued a hostile work environ11 ment that constitutes an unlawful employment practice 

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

13 ‘‘(1) such individual was authorized by that em14 ployer— 

15 ‘‘(A) to undertake or recommend tangible 

16 employment actions affecting the employee; or 

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

18 activities; or 

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

20 creation or continuation of that hostile work environ21 ment.’’. 

22 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE23 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 704 

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

25 amended— 


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1 (1) by redesignating subsection (b) as sub2 section (c); and 

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

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

6 Protection Act of 2014, an employer shall be liable for 

7 the acts of any individual whose harassment of an em8 ployee has created or continued a retaliatory hostile work 

9 environment that constitutes an unlawful employment 

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

11 of the harassment— 

12 ‘‘(1) such individual was authorized by that em13 ployer— 

14 ‘‘(A) to undertake or recommend tangible 

15 employment actions affecting the employee; or 

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

17 activities; or 

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

19 creation or continuation of that retaliatory hostile 

20 work environment.’’. 

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

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

23 adding at the end the following: 

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

25 shall apply to hostile work environment claims and retaliaVerDate Mar 15 2010 03:45 Mar 19, 2014 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2133.IS S2133

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1 tory hostile work environment claims, respectively, under 

2 this section.’’. 

3 SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EM4 PLOYMENT ACT. 

5 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS6 TILE WORK ENVIRONMENT.—Section 4 of the Age Dis7 crimination in Employment Act of 1967 (29 U.S.C. 623) 

8 is amended by adding at the end the following: 

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

10 Protection Act of 2014, an employer shall be liable for 

11 the acts of any individual whose harassment of an em12 ployee has created or continued a hostile work environ13 ment that is unlawful under this section if, at the time 

14 of the harassment— 

15 ‘‘(1) such individual was authorized by that 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 hostile work environ23 ment.’’. 

24 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE25 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 


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1 4(d) of the Age Discrimination in Employment Act of 

2 1967 (29 U.S.C. 623) is amended by striking ‘‘or litiga3 tion under this Act.’’ and inserting ‘‘or litigation under 

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

5 Protection Act of 2014, an employer shall be liable for 

6 the acts of any individual whose harassment of an em7 ployee has created or continued a retaliatory hostile work 

8 environment that is unlawful under this subsection if, at 

9 the time of the harassment— 

10 ‘‘(1) such individual was authorized by that em11 ployer— 

12 ‘‘(A) to undertake or recommend tangible 

13 employment actions affecting the employee; or 

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

15 activities; or 

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

17 creation or continuation of that retaliatory hostile 

18 work environment.’’. 

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

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

21 633a) is amended by adding at the end the following: 

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

23 to retaliatory hostile work environment claims and hostile 

24 work environment claims, respectively, under this sec25 tion.’’. 


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1 SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABIL2 ITIES ACT. 

3 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS4 TILE WORK ENVIRONMENT.—Section 102 of the Ameri5 cans with Disabilities Act (42 U.S.C. 12112) is amended 

6 by adding at the end the following: 

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

8 Protection Act of 2014, an employer shall be liable for 

9 the acts of any individual whose harassment of an em10 ployee has created or continued a hostile work environ11 ment that constitutes discrimination against a qualified 

12 individual on the basis of disability under this section if, 

13 at the time of the harassment— 

14 ‘‘(1) such individual was authorized by the em15 ployer— 

16 ‘‘(A) to undertake or recommend tangible 

17 employment actions affecting the qualified indi18 vidual; or 

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

20 daily work activities; or 

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

22 creation or continuation of that hostile work environ23 ment.’’. 

24 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE25 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 503 


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

2 12203) is amended— 

3 (1) by redesignating subsection (c) as sub4 section (d); 

5 (2) by inserting after subsection (b) the fol6 lowing: 

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

8 Protection Act of 2014, an employer shall be liable for 

9 the acts of any individual whose harassment of an em10 ployee has created or continued a retaliatory hostile work 

11 environment that constitutes retaliatory discrimination, as 

12 described in subsection (a), or the carrying out of any un13 lawful acts described in subsection (b), if, at the time of 

14 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.’’; and 


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1 (3) in subsection (d), as redesignated by para2 graph (1), by striking ‘‘subsections (a) and (b)’’ and 

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

4 SEC. 6. AMENDMENT TO THE REHABILITATION ACT. 

5 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS6 TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE

7 WORK ENVIRONMENT.—Section 501 of the Rehabilitation 

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

9 the end the following: 

10 ‘‘(h) Subject to section 12 of the Fair Employment 

11 Protection Act of 2014, each department, agency, and in12 strumentality in the executive branch of Government and 

13 the Smithsonian Institution shall be liable for the acts of 

14 any individual within such department, agency, instrumen15 tality, or the Smithsonian Institution whose harassment 

16 of an individual with a disability has created or continued 

17 a hostile work environment, or a retaliatory hostile work 

18 environment, that constitutes nonaffirmative action em19 ployment discrimination under this section if, at the time 

20 of the harassment— 

21 ‘‘(1) such individual was authorized by that de22 partment, agency, instrumentality, or the Smithso23 nian Institution— 


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1 ‘‘(A) to undertake or recommend tangible 

2 employment actions affecting the individual 

3 with a disability; or 

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

5 the individual with a disability; or 

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

7 instrumentality, or the Smithsonian Institution led 

8 to the creation or continuation of that hostile work 

9 environment or retaliatory hostile work environ10 ment.’’. 

11 (b) STANDARD FOR EMPLOYER LIABILITY FOR HOS12 TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE

13 WORK ENVIRONMENT.—Section 504 of the Rehabilitation 

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

15 the end the following: 

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

17 Protection Act of 2014, an employer described under sub18 section (b) shall be liable for the acts of any individual 

19 whose harassment of a qualified individual with a dis20 ability has created or continued a hostile work environ21 ment, or a retaliatory hostile work environment, that con22 stitutes employment discrimination under this section if, 

23 at the time of the harassment— 

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

25 employer— 


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1 ‘‘(A) to undertake or recommend tangible 

2 employment actions affecting the qualified indi3 vidual with a disability; or 

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

5 the qualified individual with a disability; or 

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

7 creation or continuation of that hostile work environ8 ment or retaliatory hostile work environment.’’. 

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

10 Act (29 U.S.C. 794a) is amended by adding at the end 

11 of subsection (a) the following: 

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

13 hostile work environment claims and retaliatory hos14 tile work environment claims under this section.’’. 

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

16 STATUTES. 

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

18 1981) is amended by adding at the end the following: 

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

20 Protection Act of 2014, a nongovernmental employer shall 

21 be liable for the acts of any individual whose harassment 

22 of an employee has created a hostile work environment 

23 or a retaliatory hostile work environment, constituting an 

24 unlawful employment practice, if, at the time of the har25 assment— 


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1 ‘‘(1) such individual was authorized by the em2 ployer— 

3 ‘‘(A) to undertake or recommend tangible 

4 employment actions affecting the employee; or 

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

6 activities; or 

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

8 creation or continuation of that hostile work environ9 ment or retaliatory hostile work environment.’’. 

10 SEC. 8. AMENDMENT TO THE GENETIC INFORMATION NON11 DISCRIMINATION ACT OF 2008. 

12 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS13 TILE WORK ENVIRONMENT.—Section 202 of the Genetic 

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

15 2000ff–1) is amended by adding at the end the following: 

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

17 Protection Act of 2014, an employer shall be liable for 

18 the acts of any individual whose harassment of an em19 ployee has created or continued a hostile work environ20 ment that constitutes an unlawful employment practice 

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

22 ‘‘(1) such individual was authorized by the em23 ployer— 

24 ‘‘(A) to undertake or recommend tangible 

25 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.’’. 

6 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE7 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 

8 207(f) of the Genetic Information Nondiscrimination Act 

9 (42 U.S.C. 2000ff–6(f)) is amended by striking ‘‘violations 

10 of this subsection.’’ and inserting ‘‘violations of this sub11 section. Subject to section 12 of the Fair Employment 

12 Protection Act of 2014, an employer shall be liable for 

13 the acts of any individual whose harassment of an em14 ployee has created or continued a retaliatory hostile work 

15 environment that constitutes discrimination under this 

16 subsection if, at the time of the harassment— 

17 ‘‘(1) such individual was authorized by the em18 ployer— 

19 ‘‘(A) to undertake or recommend tangible 

20 employment actions affecting the employee; or 

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

22 activities; or 

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

24 creation or continuation of that retaliatory hostile 

25 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 2014, 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 OF THE UNITED STATES 

24 CODE. 

25 Section 411 of title 3, United States Code, is amend26 ed— 


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

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

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 2014, 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 (2), 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 sub9 section (e); and 

10 (2) by inserting after subsection (c) the fol11 lowing: 

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

13 Protection Act of 2014, an employing office shall be liable 

14 for the acts of any individual whose harassment of a cov15 ered employee has created or continued a hostile work en16 vironment or a retaliatory hostile work environment that 

17 constitutes discrimination under this section if, at the time 

18 of the harassment— 

19 ‘‘(1) such individual was authorized by the em20 ploying office— 

21 ‘‘(A) to undertake or recommend tangible 

22 employment actions affecting the covered em23 ployee; or 

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

25 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 SEC. 12. RULE OF CONSTRUCTION. 

6 Nothing in this Act shall be construed to limit the 

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

8 law. 

9 SEC. 13. SAVINGS CLAUSE. 

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

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

12 effect. 

13 SEC. 14. APPLICATION. 

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

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

16 enactment of this Act. 

Æ 


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