I 

115TH CONGRESS 

2D SESSION H. R. 7238 

To prohibit discrimination on the basis of military service, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 10, 2018 

Mr. KILMER (for himself, Mr. CARTWRIGHT, Ms. NORTON, Ms. CLARK of 

Massachusetts, Mr. BERA, and Mr. LAMALFA) introduced the following 

bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committee on the Judiciary, 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 prohibit discrimination on the basis of military service, 

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 ‘‘Veterans and 

5 Servicemembers Employment Rights and Housing Act of 

6 2018’’. 


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1 SEC. 2. DISCRIMINATION ON THE BASIS OF MILITARY 

2 SERVICE. 

3 (a) DEFINITIONS.—In this section: 

4 (1) CIVIL RIGHTS DEFINITIONS.—The terms 

5 ‘‘complaining party’’, ‘‘demonstrates’’, ‘‘employee’’, 

6 ‘‘employer’’, ‘‘employment agency’’, ‘‘labor organiza7 tion’’, ‘‘person’’, ‘‘respondent’’, and ‘‘State’’ have the 

8 meanings given the terms in section 701 of the Civil 

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

10 (2) MEMBER OF THE UNIFORMED SERVICES.— 

11 The term ‘‘member of the uniformed services’’ 

12 means an individual who— 

13 (A) is a member of— 

14 (i) the uniformed services (as defined 

15 in section 101 of title 10, United States 

16 Code); or 

17 (ii) the National Guard in State sta18 tus under title 32, United States Code; or 

19 (B) was discharged or released from serv20 ice in the uniformed services (as so defined) or 

21 the National Guard in such status under condi22 tions other than dishonorable. 

23 (3) MILITARY SERVICE.—The term ‘‘military 

24 service’’ means status as a member of the uniformed 

25 services. 


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1 (b) EMPLOYER PRACTICES.—It shall be an unlawful 

2 employment practice for an employer— 

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

4 individual, or otherwise to discriminate against any 

5 individual with respect to the individual’s compensa6 tion, terms, conditions, or privileges of employment, 

7 because of such individual’s military service; or 

8 (2) to limit, segregate, or classify the employ9 er’s employees or applicants for employment in any 

10 way which would deprive or tend to deprive any indi11 vidual of employment opportunities or otherwise ad12 versely affect the individual’s status as an employee, 

13 because of such individual’s military service. 

14 (c) EMPLOYMENT AGENCY PRACTICES.—It shall be 

15 an unlawful employment practice for an employment agen16 cy to fail or refuse to refer for employment, or otherwise 

17 discriminate against, any individual because of the individ18 ual’s military service, or to classify or refer for employ19 ment any individual on the basis of the individual’s mili20 tary service. 

21 (d) LABOR ORGANIZATION PRACTICES.—It shall be 

22 an unlawful employment practice for a labor organiza23 tion— 


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

2 or otherwise to discriminate against, any individual 

3 because of the individual’s military service; 

4 (2) to limit, segregate, or classify its member5 ship or applicants for membership, or to classify or 

6 fail or refuse to refer for employment any individual, 

7 in any way which would deprive or tend to deprive 

8 any individual of employment opportunities, or 

9 would limit such employment opportunities or other10 wise adversely affect the individual’s status as an 

11 employee or as an applicant for employment, be12 cause of such individual’s military service; or 

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

14 discriminate against an individual in violation of this 

15 section. 

16 (e) TRAINING PROGRAMS.—It shall be an unlawful 

17 employment practice for any employer, labor organization, 

18 or joint labor-management committee controlling appren19 ticeship or other training or retraining, including on-the20 job training programs, to discriminate against any indi21 vidual because of the individual’s military service in admis22 sion to, or employment in, any program established to pro23 vide apprenticeship or other training. 

24 (f) BUSINESSES OR ENTERPRISES WITH PERSONNEL

25 QUALIFIED ON BASIS OF MILITARY SERVICE.—NotwithVerDate Sep 11 2014 00:05 Dec 13, 2018 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7238.IH H7238

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1 standing any other provision of this section, it shall not 

2 be an unlawful employment practice for an employer to 

3 hire and employ employees, for an employment agency to 

4 classify, or refer for employment any individual, for a 

5 labor organization to classify its membership or to classify 

6 or refer for employment any individual, or for an em7 ployer, labor organization, or joint labor-management 

8 committee controlling apprenticeship or other training or 

9 retraining programs to admit or employ any individual in 

10 any such program, on the basis of the individual’s military 

11 service in those certain instances where military service 

12 is a bona fide occupational qualification reasonably nec13 essary to the normal operation of that particular business 

14 or enterprise. 

15 (g) NATIONAL SECURITY.—Notwithstanding any 

16 other provision of this section, it shall not be an unlawful 

17 employment practice for an employer to fail or refuse to 

18 hire and employ any individual for any position, for an 

19 employer to discharge any individual from any position, 

20 or for an employment agency to fail or refuse to refer any 

21 individual for employment in any position, or for a labor 

22 organization to fail or refuse to refer any individual for 

23 employment in any position, if— 

24 (1) the occupancy of such position, or access to 

25 the premises in or upon which any part of the duties 


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1 of such position is performed or is to be performed, 

2 is subject to any requirement imposed in the interest 

3 of the national security of the United States under 

4 any security program in effect pursuant to or ad5 ministered under any statute of the United States or 

6 any Executive order of the President; and 

7 (2) such individual has not fulfilled or has 

8 ceased to fulfill that requirement. 

9 (h) SENIORITY OR MERIT SYSTEM; QUANTITY OR

10 QUALITY OF PRODUCTION; ABILITY TESTS.—Notwith11 standing any other provision of this section, it shall not 

12 be an unlawful employment practice for an employer to 

13 apply different standards of compensation, or different 

14 terms, conditions, or privileges of employment pursuant 

15 to a bona fide seniority or merit system, or a system which 

16 measures earnings by quantity or quality of production or 

17 to employees who work in different locations, provided 

18 that such differences are not the result of an intention 

19 to discriminate because of military service, nor shall it be 

20 an unlawful employment practice for an employer to give 

21 and to act upon the results of any professionally developed 

22 ability test provided that such test, its administration, or 

23 action upon the results is not designed, intended, or used 

24 to discriminate because of military service. 


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1 (i) PREFERENTIAL TREATMENT NOT TO BE GRANT2 ED ON ACCOUNT OF EXISTING NUMBER OR PERCENTAGE

3 IMBALANCE.—Nothing contained in this section shall be 

4 interpreted to require any employer, employment agency, 

5 labor organization, or joint labor-management committee 

6 subject to this section to grant preferential treatment to 

7 any individual or to any group because of the military 

8 service of such individual or group on account of an imbal9 ance which may exist with respect to the total number or 

10 percentage of persons with military service employed by 

11 any employer, referred or classified for employment by any 

12 employment agency or labor organization, admitted to 

13 membership or classified by any labor organization, or ad14 mitted to, or employed in, any apprenticeship or other 

15 training program, in comparison with the total number or 

16 percentage of persons with military service in any commu17 nity, State, section, or other area, or in the available work 

18 force in any community, State, section, or other area. 

19 (j) BURDEN OF PROOF IN DISPARATE IMPACT

20 CASES.— 

21 (1) DISPARATE IMPACT.— 

22 (A) ESTABLISHMENT.—An unlawful em23 ployment practice based on disparate impact is 

24 established under this section only if— 


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1 (i) a complaining party demonstrates 

2 that a respondent uses a particular em3 ployment practice that causes a disparate 

4 impact on the basis of military service and 

5 the respondent fails to demonstrate that 

6 the challenged practice is job related for 

7 the position in question and consistent 

8 with business necessity; or 

9 (ii) the complaining party makes the 

10 demonstration described in subparagraph 

11 (C) with respect to an alternative employ12 ment practice and the respondent refuses 

13 to adopt such alternative employment prac14 tice. 

15 (B) DEMONSTRATION OF CAUSATION.— 

16 (i) PARTICULAR EMPLOYMENT PRAC17 TICES.—With respect to demonstrating 

18 that a particular employment practice 

19 causes a disparate impact as described in 

20 subparagraph (A)(i), the complaining party 

21 shall demonstrate that each particular 

22 challenged employment practice causes a 

23 disparate impact, except that if the com24 plaining party can demonstrate to the 

25 court that the elements of a respondent’s 


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1 decisionmaking process are not capable of 

2 separation for analysis, the decisionmaking 

3 process may be analyzed as one employ4 ment practice. 

5 (ii) DEMONSTRATION OF NONCAUSA6 TION.—If the respondent demonstrates 

7 that a specific employment practice does 

8 not cause the disparate impact, the re9 spondent shall not be required to dem10 onstrate that such practice is required by 

11 business necessity. 

12 (C) ALTERNATIVE EMPLOYMENT PRAC13 TICE.—The demonstration referred to by sub14 paragraph (A)(ii) shall be in accordance with 

15 the law as it existed on June 4, 1989, with re16 spect to the concept of ‘‘alternative employment 

17 practice’’. 

18 (2) BUSINESS NECESSITY NO DEFENSE TO IN19 TENTIONAL DISCRIMINATION.—A demonstration 

20 that an employment practice is required by business 

21 necessity may not be used as a defense against a 

22 claim of intentional discrimination under this sec23 tion. 

24 (3) RULES CONCERNING CONTROLLED SUB25 STANCES.—Notwithstanding any other provision of 


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1 this section, a rule barring the employment of an in2 dividual who currently and knowingly uses or pos3 sesses a controlled substance, as defined in section 

4 102(6) of the Controlled Substances Act (21 U.S.C. 

5 802(6)) and included in schedule I or II of the 

6 schedules specified in that section, other than the 

7 use or possession of a drug taken under the super8 vision of a licensed health care professional, or any 

9 other use or possession authorized by the Controlled 

10 Substances Act (21 U.S.C. 801 et seq.) or any other 

11 provision of Federal law, shall be considered an un12 lawful employment practice under this section only if 

13 such rule is adopted or applied with an intent to dis14 criminate because of military service. 

15 (k) PROHIBITION OF DISCRIMINATORY USE OF TEST

16 SCORES.—It shall be an unlawful employment practice for 

17 a respondent, in connection with the selection or referral 

18 of applicants or candidates for employment or promotion, 

19 to adjust the scores of, use different cutoff scores for, or 

20 otherwise alter the results of, employment related tests on 

21 the basis of military service. 

22 (l) IMPERMISSIBLE CONSIDERATION OF MILITARY

23 SERVICE IN EMPLOYMENT PRACTICES.—Except as other24 wise provided in this section, an unlawful employment 

25 practice is established when the complaining party demVerDate Sep 11 2014 00:05 Dec 13, 2018 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7238.IH H7238

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1 onstrates that military service was a motivating factor for 

2 any employment practice, even though other factors also 

3 motivated the practice. 

4 (m) RESOLUTION OF CHALLENGES TO EMPLOYMENT

5 PRACTICES IMPLEMENTING LITIGATED OR CONSENT

6 JUDGMENTS OR ORDERS.— 

7 (1) PRACTICES NOT CHALLENGEABLE.— 

8 (A) PRACTICES TO IMPLEMENT A LITI9 GATED OR CONSENT JUDGMENT OR ORDER.— 

10 Notwithstanding any other provision of law, 

11 and except as provided in paragraph (2), an 

12 employment practice that implements and is 

13 within the scope of a litigated or consent judg14 ment or order that resolves a claim of employ15 ment discrimination under the Constitution or 

16 Federal civil rights laws may not be challenged 

17 under the circumstances described in subpara18 graph (B). 

19 (B) CIRCUMSTANCES.—A practice de20 scribed in subparagraph (A) may not be chal21 lenged in a claim under the Constitution or 

22 Federal civil rights laws— 

23 (i) by a person who, prior to the entry 

24 of the judgment or order described in sub25 paragraph (A), had— 


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1 (I) actual notice of the proposed 

2 judgment or order sufficient to ap3 prise such person that such judgment 

4 or order might adversely affect the in5 terests and legal rights of such person 

6 and that an opportunity was available 

7 to present objections to such judg8 ment or order by a future date cer9 tain; and 

10 (II) a reasonable opportunity to 

11 present objections to such judgment 

12 or order; or 

13 (ii) by a person whose interests were 

14 adequately represented by another person 

15 who had previously challenged the judg16 ment or order on the same legal grounds 

17 and with a similar factual situation, unless 

18 there has been an intervening change in 

19 law or fact. 

20 (2) RULE OF CONSTRUCTION.—Nothing in this 

21 subsection shall be construed to— 

22 (A) alter the standards for intervention 

23 under rule 24 of the Federal Rules of Civil Pro24 cedure or apply to the rights of parties who 

25 have successfully intervened pursuant to such 


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1 rule in the proceeding in which the parties in2 tervened; 

3 (B) apply to the rights of parties to the ac4 tion in which a litigated or consent judgment or 

5 order was entered, or of members of a class 

6 represented or sought to be represented in such 

7 action, or of members of a group on whose be8 half relief was sought in such action by the 

9 Federal Government; 

10 (C) prevent challenges to a litigated or 

11 consent judgment or order on the ground that 

12 such judgment or order was obtained through 

13 collusion or fraud, or is transparently invalid or 

14 was entered by a court lacking subject matter 

15 jurisdiction; or 

16 (D) authorize or permit the denial to any 

17 person of the due process of law required by the 

18 Constitution. 

19 (3) COURT FOR ACTIONS THAT ARE

20 CHALLENGEABLE.—Any action not precluded under 

21 this subsection that challenges an employment con22 sent judgment or order described in paragraph (1) 

23 shall be brought in the court, and if possible before 

24 the judge, that entered such judgment or order. 

25 Nothing in this subsection shall preclude a transfer 


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1 of such action pursuant to section 1404 of title 28, 

2 United States Code. 

3 (n) DISCRIMINATION FOR MAKING CHARGES, TESTI4 FYING, ASSISTING, OR PARTICIPATING IN ENFORCEMENT

5 PROCEEDINGS.—It shall be an unlawful employment prac6 tice for an employer to discriminate against any of the 

7 employer’s employees or applicants for employment, for an 

8 employment agency, or joint labor-management committee 

9 controlling apprenticeship or other training or retraining, 

10 including on-the-job training programs, to discriminate 

11 against any individual, or for a labor organization to dis12 criminate against any member thereof or applicant for 

13 membership, because the employee, applicant, individuals, 

14 or member involved has opposed any practice made an un15 lawful employment practice by this section, or has made 

16 a charge, testified, assisted, or participated in any manner 

17 in an investigation, proceeding, or hearing under this sec18 tion. 

19 (o) PRINTING OR PUBLICATION OF NOTICES OR AD20 VERTISEMENTS.—It shall be an unlawful employment 

21 practice for an employer, labor organization, employment 

22 agency, or joint labor-management committee controlling 

23 apprenticeship or other training or retraining, including 

24 on-the-job training programs, to print or publish or cause 

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1 lating to employment by such an employer or membership 

2 in or any classification or referral for employment by such 

3 a labor organization, or relating to any classification or 

4 referral for employment by such an employment agency, 

5 or relating to admission to, or employment in, any pro6 gram established to provide apprenticeship or other train7 ing by such a joint labor-management committee, indi8 cating any preference, limitation, specification, or dis9 crimination, based on military service, except that such a 

10 notice or advertisement may indicate a preference, limita11 tion, specification, or discrimination based on military 

12 service when military service is a bona fide occupational 

13 qualification for employment. 

14 (p) EXEMPTIONS.— 

15 (1) INAPPLICABILITY OF TITLE TO CERTAIN

16 ALIENS.—This section shall not apply to an em17 ployer with respect to the employment of aliens out18 side any State. 

19 (2) COMPLIANCE WITH STATUTE AS VIOLATION

20 OF FOREIGN LAW.—It shall not be unlawful under 

21 this section for an employer (or a corporation con22 trolled by an employer), labor organization, employ23 ment agency, or joint labor-management committee 

24 controlling apprenticeship or other training or re25 training (including on-the-job training programs) to 


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1 take any action otherwise prohibited by such section, 

2 with respect to an employee in a workplace in a for3 eign country if compliance with such section would 

4 cause such employer (or such corporation), such or5 ganization, such agency, or such committee to vio6 late the law of the foreign country in which such 

7 workplace is located. 

8 (3) CONTROL OF CORPORATION INCORPORATED

9 IN FOREIGN COUNTRY.— 

10 (A) IN GENERAL.—If an employer controls 

11 a corporation whose place of incorporation is a 

12 foreign country, any practice prohibited by this 

13 section engaged in by such corporation shall be 

14 presumed to be engaged in by such employer. 

15 (B) FOREIGN PERSON NOT CONTROLLED

16 BY EMPLOYER.—This section shall not apply 

17 with respect to the foreign operations of an em18 ployer that is a foreign person not controlled by 

19 an American employer. 

20 (C) CONTROL.—For purposes of this sub21 section, the determination of whether an em22 ployer controls a corporation shall be based 

23 on— 

24 (i) the interrelation of operations; 

25 (ii) the common management; 


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1 (iii) the centralized control of labor re2 lations; and 

3 (iv) the common ownership or finan4 cial control, 

5 of the employer and the corporation. 

6 (4) CLAIMS OF NO MILITARY SERVICE.—Noth7 ing in this section shall provide the basis for a claim 

8 by an individual without military service that the in9 dividual was subject to discrimination because of the 

10 individual’s lack of military service. 

11 (q) POSTING NOTICES.—Every employer, employ12 ment agency, labor organization, or joint labor-manage13 ment committee covered under this section shall post no14 tices to applicants, employees, and members describing the 

15 applicable provisions of this section, in the manner pre16 scribed by section 711 of the Civil Rights Act of 1964 

17 (42 U.S.C. 2000e–10). 

18 (r) REGULATIONS.—Not later than 90 days after the 

19 date of enactment of this Act, the Commission shall issue 

20 regulations to carry out this section in accordance with 

21 subchapter II of chapter 5 of title 5, United States Code. 

22 (s) ENFORCEMENT.—The powers, remedies, and pro23 cedures set forth in sections 705, 706, 707, 708, 709, 710, 

24 and 712 of the Civil Rights Act of 1964 (42 U.S.C. 

25 2000e–4, 2000e–5, 2000e–6, 2000e–7, 2000e–8, 2000e– 


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1 9, and 2000e–11) shall be the powers, remedies, and pro2 cedures this section provides to the Equal Employment 

3 Opportunity Commission, to the Attorney General, or to 

4 any person alleging discrimination on the basis of military 

5 service in violation of any provision of this section, or reg6 ulations promulgated under subsection (s), concerning em7 ployment. 

8 SEC. 3. ENDING HOUSING DISCRIMINATION AGAINST MEM9 BERS OF THE UNIFORMED SERVICES. 

10 (a) DEFINITIONS.—Section 802 of the Fair Housing 

11 Act (42 U.S.C. 3602) is amended by adding at the end 

12 the following: 

13 ‘‘(p) ‘Member of the uniformed services’ means an 

14 individual who— 

15 ‘‘(1) is a member of— 

16 ‘‘(A) the uniformed services (as defined in 

17 section 101 of title 10, United States Code); or 

18 ‘‘(B) the National Guard in State status 

19 under title 32, United States Code; or 

20 ‘‘(2) was discharged or released from service in 

21 the uniformed services (as so defined) or the Na22 tional Guard in such status under conditions other 

23 than dishonorable.’’. 

24 (b) DISCRIMINATION IN THE SALE OR RENTAL OF

25 HOUSING AND OTHER PROHIBITED PRACTICES.—Section 


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1 804 of the Fair Housing Act (42 U.S.C. 3604) is amend2 ed— 

3 (1) in subsection (a), by inserting ‘‘or because 

4 the person is a member of the uniformed services’’ 

5 after ‘‘national origin’’; 

6 (2) in subsection (b), by inserting ‘‘or because 

7 the person is a member of the uniformed services’’ 

8 after ‘‘national origin’’; 

9 (3) in subsection (c), by inserting ‘‘or because 

10 a person is a member of the uniformed services,’’ 

11 after ‘‘national origin,’’; and 

12 (4) in subsection (d), by inserting ‘‘, or because 

13 the person is a member of the uniformed services,’’ 

14 after ‘‘national origin’’. 

15 (c) DISCRIMINATION IN RESIDENTIAL REAL ESTATE16 RELATED TRANSACTIONS.—Section 805 of the Fair 

17 Housing Act (42 U.S.C. 3605) is amended— 

18 (1) in subsection (a), by inserting ‘‘or because 

19 the person is a member of the uniformed services’’ 

20 after ‘‘national origin’’; and 

21 (2) in subsection (c), by striking ‘‘, or familial 

22 status’’ and inserting ‘‘familial status, or whether a 

23 person is a member of the uniformed services’’. 

24 (d) DISCRIMINATION IN THE PROVISION OF BROKER25 AGE SERVICES.—Section 806 of the Fair Housing Act (42 


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1 U.S.C. 3606) is amended by inserting ‘‘or because a per2 son is a member of the uniformed services’’ after ‘‘national 

3 origin’’. 

4 (e) RELIGIOUS ORGANIZATION OR PRIVATE CLUB

5 EXEMPTION.—Section 807(a) of the Fair Housing Act 

6 (42 U.S.C. 3607(a)) is amended, in the first sentence by 

7 inserting ‘‘or to persons who are not members of the uni8 formed services’’ after ‘‘national origin’’. 

9 (f) ADMINISTRATION.—Section 808(e)(6) of the Fair 

10 Housing Act (42 U.S.C. 3608(e)(6)) is amended, in the 

11 first sentence, by inserting ‘‘(including whether such per12 sons and households are or include a member of the uni13 formed services)’’ after ‘‘persons and households’’. 

14 (g) PREVENTION OF DISCRIMINATION.—Section 901 

15 of the Civil Rights Act of 1968 (42 U.S.C. 3631) is 

16 amended— 

17 (1) in subsection (a), by inserting ‘‘, or because 

18 the person is a member of the uniformed services (as 

19 such term is defined in section 802 of this Act),’’ 

20 after ‘‘national origin’’; 

21 (2) in subsection (b)(1), by inserting ‘‘or be22 cause a person is a member of the uniformed serv23 ices (as such term is defined in section 802 of this 

24 Act),’’ after ‘‘national origin,’’; and 


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1 (3) in subsection (c), by inserting ‘‘or because 

2 a person is a member of the uniformed services (as 

3 such term is defined in section 802 of this Act),’’ 

4 after ‘‘national origin,’’. 

5 (h) RULE OF CONSTRUCTION.—The Fair Housing 

6 Act (42 U.S.C. 3601 et seq.) is amended by adding at 

7 the end the following: 

8 ‘‘SEC. 821. RULE OF CONSTRUCTION RELATING TO THE 

9 TREATMENT OF MEMBERS OF THE UNI10 FORMED SERVICES. 

11 ‘‘(a) RULE OF CONSTRUCTION.—Nothing in this Act 

12 may be construed to prohibit any person from— 

13 ‘‘(1) making available to an individual a benefit 

14 with respect to a dwelling, a residential real estate15 related transaction (as defined in section 805 of this 

16 Act), or a service described in section 806 of this 

17 Act because the individual is a member of the uni18 formed services; or 

19 ‘‘(2) selling or renting a dwelling only to mem20 bers of the uniformed services. 

21 ‘‘(b) DEFINITION.—For purposes of this section, the 

22 term ‘benefit’ includes a term, condition, privilege, pro23 motion, discount, or other favorable treatment (including 

24 an advertisement for such treatment) having the purpose 


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1 or effect of providing an advantage to a member of the 

2 uniformed services.’’. 

3 SEC. 4. EFFECTIVE DATE. 

4 This Act shall become effective 120 days after the 

5 date of enactment of this Act. 

Æ 


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