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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7238 Introduced in House (IH)]

<DOC>

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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Veterans and Servicemembers 
Employment Rights and Housing Act of 2018''.

SEC. 2. DISCRIMINATION ON THE BASIS OF MILITARY SERVICE.

    (a) Definitions.--In this section:
            (1) Civil rights definitions.--The terms ``complaining 
        party'', ``demonstrates'', ``employee'', ``employer'', 
        ``employment agency'', ``labor organization'', ``person'', 
        ``respondent'', and ``State'' have the meanings given the terms 
        in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e).
            (2) Member of the uniformed services.--The term ``member of 
        the uniformed services'' means an individual who--
                    (A) is a member of--
                            (i) the uniformed services (as defined in 
                        section 101 of title 10, United States Code); 
                        or
                            (ii) the National Guard in State status 
                        under title 32, United States Code; or
                    (B) was discharged or released from service in the 
                uniformed services (as so defined) or the National 
                Guard in such status under conditions other than 
                dishonorable.
            (3) Military service.--The term ``military service'' means 
        status as a member of the uniformed services.
    (b) Employer Practices.--It shall be an unlawful employment 
practice for an employer--
            (1) to fail or refuse to hire or to discharge any 
        individual, or otherwise to discriminate against any individual 
        with respect to the individual's compensation, terms, 
        conditions, or privileges of employment, because of such 
        individual's military service; or
            (2) to limit, segregate, or classify the employer's 
        employees or applicants for employment in any way which would 
        deprive or tend to deprive any individual of employment 
        opportunities or otherwise adversely affect the individual's 
        status as an employee, because of such individual's military 
        service.
    (c) Employment Agency Practices.--It shall be an unlawful 
employment practice for an employment agency to fail or refuse to refer 
for employment, or otherwise discriminate against, any individual 
because of the individual's military service, or to classify or refer 
for employment any individual on the basis of the individual's military 
service.
    (d) Labor Organization Practices.--It shall be an unlawful 
employment practice for a labor organization--
            (1) to exclude or to expel from its membership, or 
        otherwise to discriminate against, any individual because of 
        the individual's military service;
            (2) to limit, segregate, or classify its membership or 
        applicants for membership, or to classify or fail or refuse to 
        refer for employment any individual, in any way which would 
        deprive or tend to deprive any individual of employment 
        opportunities, or would limit such employment opportunities or 
        otherwise adversely affect the individual's status as an 
        employee or as an applicant for employment, because of such 
        individual's military service; or
            (3) to cause or attempt to cause an employer to 
        discriminate against an individual in violation of this 
        section.
    (e) Training Programs.--It shall be an unlawful employment practice 
for any employer, labor organization, or joint labor-management 
committee controlling apprenticeship or other training or retraining, 
including on-the-job training programs, to discriminate against any 
individual because of the individual's military service in admission 
to, or employment in, any program established to provide apprenticeship 
or other training.
    (f) Businesses or Enterprises With Personnel Qualified on Basis of 
Military Service.--Notwithstanding any other provision of this section, 
it shall not be an unlawful employment practice for an employer to hire 
and employ employees, for an employment agency to classify, or refer 
for employment any individual, for a labor organization to classify its 
membership or to classify or refer for employment any individual, or 
for an employer, labor organization, or joint labor-management 
committee controlling apprenticeship or other training or retraining 
programs to admit or employ any individual in any such program, on the 
basis of the individual's military service in those certain instances 
where military service is a bona fide occupational qualification 
reasonably necessary to the normal operation of that particular 
business or enterprise.
    (g) National Security.--Notwithstanding any other provision of this 
section, it shall not be an unlawful employment practice for an 
employer to fail or refuse to hire and employ any individual for any 
position, for an employer to discharge any individual from any 
position, or for an employment agency to fail or refuse to refer any 
individual for employment in any position, or for a labor organization 
to fail or refuse to refer any individual for employment in any 
position, if--
            (1) the occupancy of such position, or access to the 
        premises in or upon which any part of the duties of such 
        position is performed or is to be performed, is subject to any 
        requirement imposed in the interest of the national security of 
        the United States under any security program in effect pursuant 
        to or administered under any statute of the United States or 
        any Executive order of the President; and
            (2) such individual has not fulfilled or has ceased to 
        fulfill that requirement.
    (h) Seniority or Merit System; Quantity or Quality of Production; 
Ability Tests.--Notwithstanding any other provision of this section, it 
shall not be an unlawful employment practice for an employer to apply 
different standards of compensation, or different terms, conditions, or 
privileges of employment pursuant to a bona fide seniority or merit 
system, or a system which measures earnings by quantity or quality of 
production or to employees who work in different locations, provided 
that such differences are not the result of an intention to 
discriminate because of military service, nor shall it be an unlawful 
employment practice for an employer to give and to act upon the results 
of any professionally developed ability test provided that such test, 
its administration, or action upon the results is not designed, 
intended, or used to discriminate because of military service.
    (i) Preferential Treatment Not To Be Granted on Account of Existing 
Number or Percentage Imbalance.--Nothing contained in this section 
shall be interpreted to require any employer, employment agency, labor 
organization, or joint labor-management committee subject to this 
section to grant preferential treatment to any individual or to any 
group because of the military service of such individual or group on 
account of an imbalance which may exist with respect to the total 
number or percentage of persons with military service employed by any 
employer, referred or classified for employment by any employment 
agency or labor organization, admitted to membership or classified by 
any labor organization, or admitted to, or employed in, any 
apprenticeship or other training program, in comparison with the total 
number or percentage of persons with military service in any community, 
State, section, or other area, or in the available work force in any 
community, State, section, or other area.
    (j) Burden of Proof in Disparate Impact Cases.--
            (1) Disparate impact.--
                    (A)  Establishment.--An unlawful employment 
                practice based on disparate impact is established under 
                this section only if--
                            (i) a complaining party demonstrates that a 
                        respondent uses a particular employment 
                        practice that causes a disparate impact on the 
                        basis of military service and the respondent 
                        fails to demonstrate that the challenged 
                        practice is job related for the position in 
                        question and consistent with business 
                        necessity; or
                            (ii) the complaining party makes the 
                        demonstration described in subparagraph (C) 
                        with respect to an alternative employment 
                        practice and the respondent refuses to adopt 
                        such alternative employment practice.
                    (B) Demonstration of causation.--
                            (i) Particular employment practices.--With 
                        respect to demonstrating that a particular 
                        employment practice causes a disparate impact 
                        as described in subparagraph (A)(i), the 
                        complaining party shall demonstrate that each 
                        particular challenged employment practice 
                        causes a disparate impact, except that if the 
                        complaining party can demonstrate to the court 
                        that the elements of a respondent's 
                        decisionmaking process are not capable of 
                        separation for analysis, the decisionmaking 
                        process may be analyzed as one employment 
                        practice.
                            (ii) Demonstration of noncausation.--If the 
                        respondent demonstrates that a specific 
                        employment practice does not cause the 
                        disparate impact, the respondent shall not be 
                        required to demonstrate that such practice is 
                        required by business necessity.
                    (C) Alternative employment practice.--The 
                demonstration referred to by subparagraph (A)(ii) shall 
                be in accordance with the law as it existed on June 4, 
                1989, with respect to the concept of ``alternative 
                employment practice''.
            (2) Business necessity no defense to intentional 
        discrimination.--A demonstration that an employment practice is 
        required by business necessity may not be used as a defense 
        against a claim of intentional discrimination under this 
        section.
            (3) Rules concerning controlled substances.--
        Notwithstanding any other provision of this section, a rule 
        barring the employment of an individual who currently and 
        knowingly uses or possesses a controlled substance, as defined 
        in section 102(6) of the Controlled Substances Act (21 U.S.C. 
        802(6)) and included in schedule I or II of the schedules 
        specified in that section, other than the use or possession of 
        a drug taken under the supervision of a licensed health care 
        professional, or any other use or possession authorized by the 
        Controlled Substances Act (21 U.S.C. 801 et seq.) or any other 
        provision of Federal law, shall be considered an unlawful 
        employment practice under this section only if such rule is 
        adopted or applied with an intent to discriminate because of 
        military service.
    (k) Prohibition of Discriminatory Use of Test Scores.--It shall be 
an unlawful employment practice for a respondent, in connection with 
the selection or referral of applicants or candidates for employment or 
promotion, to adjust the scores of, use different cutoff scores for, or 
otherwise alter the results of, employment related tests on the basis 
of military service.
    (l) Impermissible Consideration of Military Service in Employment 
Practices.--Except as otherwise provided in this section, an unlawful 
employment practice is established when the complaining party 
demonstrates that military service was a motivating factor for any 
employment practice, even though other factors also motivated the 
practice.
    (m) Resolution of Challenges to Employment Practices Implementing 
Litigated or Consent Judgments or Orders.--
            (1) Practices not challengeable.--
                    (A) Practices to implement a litigated or consent 
                judgment or order.--Notwithstanding any other provision 
                of law, and except as provided in paragraph (2), an 
                employment practice that implements and is within the 
                scope of a litigated or consent judgment or order that 
                resolves a claim of employment discrimination under the 
                Constitution or Federal civil rights laws may not be 
                challenged under the circumstances described in 
                subparagraph (B).
                    (B) Circumstances.--A practice described in 
                subparagraph (A) may not be challenged in a claim under 
                the Constitution or Federal civil rights laws--
                            (i) by a person who, prior to the entry of 
                        the judgment or order described in subparagraph 
                        (A), had--
                                    (I) actual notice of the proposed 
                                judgment or order sufficient to apprise 
                                such person that such judgment or order 
                                might adversely affect the interests 
                                and legal rights of such person and 
                                that an opportunity was available to 
                                present objections to such judgment or 
                                order by a future date certain; and
                                    (II) a reasonable opportunity to 
                                present objections to such judgment or 
                                order; or
                            (ii) by a person whose interests were 
                        adequately represented by another person who 
                        had previously challenged the judgment or order 
                        on the same legal grounds and with a similar 
                        factual situation, unless there has been an 
                        intervening change in law or fact.
            (2) Rule of construction.--Nothing in this subsection shall 
        be construed to--
                    (A) alter the standards for intervention under rule 
                24 of the Federal Rules of Civil Procedure or apply to 
                the rights of parties who have successfully intervened 
                pursuant to such rule in the proceeding in which the 
                parties intervened;
                    (B) apply to the rights of parties to the action in 
                which a litigated or consent judgment or order was 
                entered, or of members of a class represented or sought 
                to be represented in such action, or of members of a 
                group on whose behalf relief was sought in such action 
                by the Federal Government;
                    (C) prevent challenges to a litigated or consent 
                judgment or order on the ground that such judgment or 
                order was obtained through collusion or fraud, or is 
                transparently invalid or was entered by a court lacking 
                subject matter jurisdiction; or
                    (D) authorize or permit the denial to any person of 
                the due process of law required by the Constitution.
            (3) Court for actions that are challengeable.--Any action 
        not precluded under this subsection that challenges an 
        employment consent judgment or order described in paragraph (1) 
        shall be brought in the court, and if possible before the 
        judge, that entered such judgment or order. Nothing in this 
        subsection shall preclude a transfer of such action pursuant to 
        section 1404 of title 28, United States Code.
    (n) Discrimination for Making Charges, Testifying, Assisting, or 
Participating in Enforcement Proceedings.--It shall be an unlawful 
employment practice for an employer to discriminate against any of the 
employer's employees or applicants for employment, for an employment 
agency, or joint labor-management committee controlling apprenticeship 
or other training or retraining, including on-the-job training 
programs, to discriminate against any individual, or for a labor 
organization to discriminate against any member thereof or applicant 
for membership, because the employee, applicant, individuals, or member 
involved has opposed any practice made an unlawful employment practice 
by this section, or has made a charge, testified, assisted, or 
participated in any manner in an investigation, proceeding, or hearing 
under this section.
    (o) Printing or Publication of Notices or Advertisements.--It shall 
be an unlawful employment practice for an employer, labor organization, 
employment agency, or joint labor-management committee controlling 
apprenticeship or other training or retraining, including on-the-job 
training programs, to print or publish or cause to be printed or 
published any notice or advertisement relating to employment by such an 
employer or membership in or any classification or referral for 
employment by such a labor organization, or relating to any 
classification or referral for employment by such an employment agency, 
or relating to admission to, or employment in, any program established 
to provide apprenticeship or other training by such a joint labor-
management committee, indicating any preference, limitation, 
specification, or discrimination, based on military service, except 
that such a notice or advertisement may indicate a preference, 
limitation, specification, or discrimination based on military service 
when military service is a bona fide occupational qualification for 
employment.
    (p) Exemptions.--
            (1) Inapplicability of title to certain aliens.--This 
        section shall not apply to an employer with respect to the 
        employment of aliens outside any State.
            (2) Compliance with statute as violation of foreign law.--
        It shall not be unlawful under this section for an employer (or 
        a corporation controlled by an employer), labor organization, 
        employment agency, or joint labor-management committee 
        controlling apprenticeship or other training or retraining 
        (including on-the-job training programs) to take any action 
        otherwise prohibited by such section, with respect to an 
        employee in a workplace in a foreign country if compliance with 
        such section would cause such employer (or such corporation), 
        such organization, such agency, or such committee to violate 
        the law of the foreign country in which such workplace is 
        located.
            (3) Control of corporation incorporated in foreign 
        country.--
                    (A) In general.--If an employer controls a 
                corporation whose place of incorporation is a foreign 
                country, any practice prohibited by this section 
                engaged in by such corporation shall be presumed to be 
                engaged in by such employer.
                    (B) Foreign person not controlled by employer.--
                This section shall not apply with respect to the 
                foreign operations of an employer that is a foreign 
                person not controlled by an American employer.
                    (C) Control.--For purposes of this subsection, the 
                determination of whether an employer controls a 
                corporation shall be based on--
                            (i) the interrelation of operations;
                            (ii) the common management;
                            (iii) the centralized control of labor 
                        relations; and
                            (iv) the common ownership or financial 
                        control,
                of the employer and the corporation.
            (4) Claims of no military service.--Nothing in this section 
        shall provide the basis for a claim by an individual without 
        military service that the individual was subject to 
        discrimination because of the individual's lack of military 
        service.
    (q) Posting Notices.--Every employer, employment agency, labor 
organization, or joint labor-management committee covered under this 
section shall post notices to applicants, employees, and members 
describing the applicable provisions of this section, in the manner 
prescribed by section 711 of the Civil Rights Act of 1964 (42 U.S.C. 
2000e-10).
    (r) Regulations.--Not later than 90 days after the date of 
enactment of this Act, the Commission shall issue regulations to carry 
out this section in accordance with subchapter II of chapter 5 of title 
5, United States Code.
    (s) Enforcement.--The powers, remedies, and procedures set forth in 
sections 705, 706, 707, 708, 709, 710, and 712 of the Civil Rights Act 
of 1964 (42 U.S.C. 2000e-4, 2000e-5, 2000e-6, 2000e-7, 2000e-8, 2000e-
9, and 2000e-11) shall be the powers, remedies, and procedures this 
section provides to the Equal Employment Opportunity Commission, to the 
Attorney General, or to any person alleging discrimination on the basis 
of military service in violation of any provision of this section, or 
regulations promulgated under subsection (s), concerning employment.

SEC. 3. ENDING HOUSING DISCRIMINATION AGAINST MEMBERS OF THE UNIFORMED 
              SERVICES.

    (a) Definitions.--Section 802 of the Fair Housing Act (42 U.S.C. 
3602) is amended by adding at the end the following:
    ``(p) `Member of the uniformed services' means an individual who--
            ``(1) is a member of--
                    ``(A) the uniformed services (as defined in section 
                101 of title 10, United States Code); or
                    ``(B) the National Guard in State status under 
                title 32, United States Code; or
            ``(2) was discharged or released from service in the 
        uniformed services (as so defined) or the National Guard in 
        such status under conditions other than dishonorable.''.
    (b) Discrimination in the Sale or Rental of Housing and Other 
Prohibited Practices.--Section 804 of the Fair Housing Act (42 U.S.C. 
3604) is amended--
            (1) in subsection (a), by inserting ``or because the person 
        is a member of the uniformed services'' after ``national 
        origin'';
            (2) in subsection (b), by inserting ``or because the person 
        is a member of the uniformed services'' after ``national 
        origin'';
            (3) in subsection (c), by inserting ``or because a person 
        is a member of the uniformed services,'' after ``national 
        origin,''; and
            (4) in subsection (d), by inserting ``, or because the 
        person is a member of the uniformed services,'' after 
        ``national origin''.
    (c) Discrimination in Residential Real Estate-Related 
Transactions.--Section 805 of the Fair Housing Act (42 U.S.C. 3605) is 
amended--
            (1) in subsection (a), by inserting ``or because the person 
        is a member of the uniformed services'' after ``national 
        origin''; and
            (2) in subsection (c), by striking ``, or familial status'' 
        and inserting ``familial status, or whether a person is a 
        member of the uniformed services''.
    (d) Discrimination in the Provision of Brokerage Services.--Section 
806 of the Fair Housing Act (42 U.S.C. 3606) is amended by inserting 
``or because a person is a member of the uniformed services'' after 
``national origin''.
    (e) Religious Organization or Private Club Exemption.--Section 
807(a) of the Fair Housing Act (42 U.S.C. 3607(a)) is amended, in the 
first sentence by inserting ``or to persons who are not members of the 
uniformed services'' after ``national origin''.
    (f) Administration.--Section 808(e)(6) of the Fair Housing Act (42 
U.S.C. 3608(e)(6)) is amended, in the first sentence, by inserting 
``(including whether such persons and households are or include a 
member of the uniformed services)'' after ``persons and households''.
    (g) Prevention of Discrimination.--Section 901 of the Civil Rights 
Act of 1968 (42 U.S.C. 3631) is amended--
            (1) in subsection (a), by inserting ``, or because the 
        person is a member of the uniformed services (as such term is 
        defined in section 802 of this Act),'' after ``national 
        origin'';
            (2) in subsection (b)(1), by inserting ``or because a 
        person is a member of the uniformed services (as such term is 
        defined in section 802 of this Act),'' after ``national 
        origin,''; and
            (3) in subsection (c), by inserting ``or because a person 
        is a member of the uniformed services (as such term is defined 
        in section 802 of this Act),'' after ``national origin,''.
    (h) Rule of Construction.--The Fair Housing Act (42 U.S.C. 3601 et 
seq.) is amended by adding at the end the following:

``SEC. 821. RULE OF CONSTRUCTION RELATING TO THE TREATMENT OF MEMBERS 
              OF THE UNIFORMED SERVICES.

    ``(a) Rule of Construction.--Nothing in this Act may be construed 
to prohibit any person from--
            ``(1) making available to an individual a benefit with 
        respect to a dwelling, a residential real estate-related 
        transaction (as defined in section 805 of this Act), or a 
        service described in section 806 of this Act because the 
        individual is a member of the uniformed services; or
            ``(2) selling or renting a dwelling only to members of the 
        uniformed services.
    ``(b) Definition.--For purposes of this section, the term `benefit' 
includes a term, condition, privilege, promotion, discount, or other 
favorable treatment (including an advertisement for such treatment) 
having the purpose or effect of providing an advantage to a member of 
the uniformed services.''.

SEC. 4. EFFECTIVE DATE.

    This Act shall become effective 120 days after the date of 
enactment of this Act.
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