II 

108TH CONGRESS 

1ST SESSION S. 1705

To prohibit employment discrimination on the basis of sexual orientation. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 2, 2003

Mr. KENNEDY (for himself, Mr. JEFFORDS, Mr. CHAFEE, Mr. LIEBERMAN, 

Mr. AKAKA, Mr. BAUCUS, Mr. BAYH, Mr. BIDEN, Mr. BINGAMAN, Mrs. 

BOXER, Mr. BREAUX, Ms. CANTWELL, Mr. CARPER, Mrs. CLINTON, Ms. 

COLLINS, Mr. CORZINE, Mr. DASCHLE, Mr. DAYTON, Mr. DODD, Mr. 

DORGAN, Mr. DURBIN, Mr. EDWARDS, Mr. FEINGOLD, Mrs. FEINSTEIN, 

Mr. GRAHAM of Florida, Mr. HARKIN, Mr. INOUYE, Mr. KERRY, Mr. 

KOHL, Ms. LANDRIEU, Mr. LAUTENBERG, Mr. LEAHY, Mr. LEVIN, Ms. 

MIKULSKI, Mrs. MURRAY, Mr. NELSON of Florida, Mr. REED, Mr. REID, 

Mr. SARBANES, Mr. SCHUMER, Mr. SMITH, Mr. SPECTER, Ms. 

STABENOW, and Mr. WYDEN) 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 on the basis of sexual 

orientation.

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 ‘‘Employment Non-Dis5 crimination Act of 2003’’. 
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1 SEC. 2. PURPOSES. 

2 The purposes of this Act are—

3 (1) to provide a comprehensive Federal prohibi4 tion of employment discrimination on the basis of 

5 sexual orientation; 

6 (2) to provide meaningful and effective rem7 edies for employment discrimination on the basis of 

8 sexual orientation; and 

9 (3) to invoke congressional powers, including 

10 the powers to enforce the 14th amendment to the 

11 Constitution, and to regulate interstate commerce 

12 and provide for the general welfare pursuant to sec13 tion 8 of article I of the Constitution, in order to 

14 prohibit employment discrimination on the basis of 

15 sexual orientation. 

16 SEC. 3. DEFINITIONS. 

17 (a) IN GENERAL.—In this Act: 

18 (1) COMMISSION.—The term ‘‘Commission’’ 

19 means the Equal Employment Opportunity Commis20 sion. 

21 (2) COVERED ENTITY.—The term ‘‘covered en22 tity’’ means an employer, employment agency, labor 

23 organization, or joint labor-management committee. 

24 (3) EMPLOYEE.—

25 (A) IN GENERAL.—The term ‘‘employee’’ 

26 means—
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1 (i) an employee (as defined in section 

2 701(f) of the Civil Rights Act of 1964 (42 

3 U.S.C. 2000e(f)); 

4 (ii) a Presidential appointee or State 

5 employee to which section 302(a)(1) of the 

6 Government Employee Rights Act of 1991 

7 (42 U.S.C. 2000e–16b(a)(1)) applies; 

8 (iii) a covered employee, as defined in 

9 section 101 of the Congressional Account10 ability Act of 1995 (2 U.S.C. 1301) or sec11 tion 411(c) of title 3, United States Code; 

12 or 

13 (iv) an employee or applicant to which 

14 section 717(a) of the Civil Rights Act of 

15 1964 (42 U.S.C. 2000e–16(a)) applies. 

16 (B) EXCEPTION.—The provisions of this 

17 Act that apply to an employee or individual 

18 shall not apply to a volunteer who receives no 

19 compensation. 

20 (4) EMPLOYER.—The term ‘‘employer’’ 

21 means—

22 (A) a person engaged in an industry affect23 ing commerce (as defined in section 701(h) of 

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

25 2000e(h)) who has 15 or more employees (as 
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1 defined in subparagraphs (A)(i) and (B) of 

2 paragraph (3)) for each working day in each of 

3 20 or more calendar weeks in the current or 

4 preceding calendar year, and any agent of such 

5 a person, but does not include a bona fide pri6 vate membership club (other than a labor orga7 nization) that is exempt from taxation under 

8 section 501(c) of the Internal Revenue Code of 

9 1986; 

10 (B) an employing authority to which sec11 tion 302(a)(1) of the Government Employee 

12 Rights Act of 1991 applies; 

13 (C) an employing office, as defined in sec14 tion 101 of the Congressional Accountability 

15 Act of 1995 or section 411(c) of title 3, United 

16 States Code; or 

17 (D) an entity to which section 717(a) of 

18 the Civil Rights Act of 1964 applies. 

19 (5) EMPLOYMENT AGENCY.—The term ‘‘em20 ployment agency’’ has the meaning given the term in 

21 section 701(c) of the Civil Rights Act of 1964 (42 

22 U.S.C. 2000e(c)). 

23 (6) LABOR ORGANIZATION.—The term ‘‘labor 

24 organization’’ has the meaning given the term in 
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1 section 701(d) of the Civil Rights Act of 1964 (42 

2 U.S.C. 2000e(d)). 

3 (7) PERSON.—The term ‘‘person’’ has the 

4 meaning given the term in section 701(a) of the 

5 Civil Rights Act of 1964 (42 U.S.C. 2000e(a)). 

6 (8) RELIGIOUS ORGANIZATION.—The term ‘‘re7 ligious organization’’ means—

8 (A) a religious corporation, association, or 

9 society; or 

10 (B) a school, college, university, or other 

11 educational institution or institution of learn12 ing, if—

13 (i) the institution is in whole or sub14 stantial part controlled, managed, owned, 

15 or supported by a religion, religious cor16 poration, association, or society; or 

17 (ii) the curriculum of the institution is 

18 directed toward the propagation of a reli19 gion. 

20 (9) SEXUAL ORIENTATION.—The term ‘‘sexual 

21 orientation’’ means homosexuality, bisexuality, or 

22 heterosexuality, whether the orientation is real or 

23 perceived.
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1 (10) STATE.—The term ‘‘State’’ has the mean2 ing given the term in section 701(i) of the Civil 

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

4 (b) APPLICATION OF DEFINITIONS.—For purposes of 

5 this section, a reference in section 701 of the Civil Rights 

6 Act of 1964—

7 (1) to an employee or an employer shall be con8 sidered to refer to an employee (as defined in para9 graph (3)) or an employer (as defined in paragraph 

10 (4)), respectively, except as provided in paragraph 

11 (2); and 

12 (2) to an employer in subsection (f) of that sec13 tion shall be considered to refer to an employer (as 

14 defined in paragraph (4)(A)). 

15 SEC. 4. DISCRIMINATION PROHIBITED. 

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

17 employment practice for an employer—

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

19 individual, or otherwise to discriminate against any 

20 individual with respect to the compensation, terms, 

21 conditions, or privileges of employment of the indi22 vidual, because of such individual’s sexual orienta23 tion; or 

24 (2) to limit, segregate, or classify the employees 

25 or applicants for employment of the employer in any 
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1 way that would deprive or tend to deprive any indi2 vidual of employment or otherwise adversely affect 

3 the status of the individual as an employee, because 

4 of such individual’s sexual orientation. 

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

6 an unlawful employment practice for an employment agen7 cy to fail or refuse to refer for employment, or otherwise 

8 to discriminate against, any individual because of the sex9 ual orientation of the individual or to classify or refer for 

10 employment any individual on the basis of the sexual ori11 entation of the individual. 

12 (c) LABOR ORGANIZATION PRACTICES.—It shall be 

13 an unlawful employment practice for a labor organiza14 tion—

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

16 or otherwise to discriminate against, any individual 

17 because of the sexual orientation of the individual; 

18 (2) to limit, segregate, or classify its member19 ship or applicants for membership, or to classify or 

20 fail or refuse to refer for employment any individual, 

21 in any way that would deprive or tend to deprive any 

22 individual of employment, or would limit such em23 ployment or otherwise adversely affect the status of 

24 the individual as an employee or as an applicant for 
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1 employment, because of such individual’s sexual ori2 entation; or 

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

4 discriminate against an individual in violation of this 

5 section. 

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

7 employment practice for any employer, labor organization, 

8 or joint labor-management committee controlling appren9 ticeship or other training or retraining, including on-the10 job training programs, to discriminate against any indi11 vidual because of the sexual orientation of the individual 

12 in admission to, or employment in, any program estab13 lished to provide apprenticeship or other training. 

14 (e) ASSOCIATION.—An unlawful employment practice 

15 described in any of subsections (a) through (d) shall be 

16 considered to include an action described in that sub17 section, taken against an individual based on the sexual 

18 orientation of a person with whom the individual associ19 ates or has associated. 

20 (f) DISPARATE IMPACT.—Only disparate treatment 

21 claims may be brought under this Act. 

22 SEC. 5. RETALIATION PROHIBITED. 

23 It shall be an unlawful employment practice for a cov24 ered entity to discriminate against an individual because 

25 such individual opposed any practice made an unlawful 
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1 employment practice by this Act, or because such indi2 vidual made a charge, testified, assisted, or participated 

3 in any manner in an investigation, proceeding, or hearing 

4 under this Act. 

5 SEC. 6. BENEFITS. 

6 This Act does not apply to the provision of employee 

7 benefits to an individual for the benefit of the domestic 

8 partner of such individual. 

9 SEC. 7. COLLECTION OF STATISTICS PROHIBITED. 

10 The Commission shall not collect statistics on sexual 

11 orientation from covered entities, or compel the collection 

12 of such statistics by covered entities. 

13 SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIB14 ITED. 

15 (a) QUOTAS.—A covered entity shall not adopt or im16 plement a quota on the basis of sexual orientation. 

17 (b) PREFERENTIAL TREATMENT.—A covered entity 

18 shall not give preferential treatment to an individual on 

19 the basis of sexual orientation. 

20 (c) ORDERS AND CONSENT DECREES.—Notwith21 standing any other provision of this Act, an order or con22 sent decree entered for a violation of this Act may not 

23 include a quota, or preferential treatment to an individual, 

24 based on sexual orientation. 
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1 SEC. 9. RELIGIOUS EXEMPTION. 

2 This Act shall not apply to a religious organization. 

3 SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED 

4 FORCES; VETERANS’ PREFERENCES. 

5 (a) ARMED FORCES.—

6 (1) EMPLOYMENT.—In this Act, the term ‘‘em7 ployment’’ does not apply to the relationship be8 tween the United States and members of the Armed 

9 Forces. 

10 (2) ARMED FORCES.—In paragraph (1), the 

11 term ‘‘Armed Forces’’ means the Army, Navy, Air 

12 Force, Marine Corps, and Coast Guard. 

13 (b) VETERANS’ PREFERENCES.—This Act does not 

14 repeal or modify any Federal, State, territorial, or local 

15 law creating a special right or preference concerning em16 ployment for a veteran. 

17 SEC. 11. CONSTRUCTION. 

18 (a) EMPLOYER RULES AND POLICIES.—Nothing in 

19 this Act shall be construed to prohibit a covered entity 

20 from enforcing rules and policies, if the rules or policies 

21 are designed for, and uniformly applied to, all individuals 

22 regardless of sexual orientation. 

23 (b) ASSOCIATION.—Nothing in this Act shall be con24 strued to prohibit any association, or infringe upon any 

25 right of association, guaranteed by the first amendment
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1 to the Constitution, of any nonprofit, voluntary member2 ship organization. 

3 SEC. 12. ENFORCEMENT. 

4 (a) ENFORCEMENT POWERS.—With respect to the 

5 administration and enforcement of this Act in the case of 

6 a claim alleged by an individual for a violation of this 

7 Act—

8 (1) the Commission shall have the same powers 

9 as the Commission has to administer and enforce—

10 (A) title VII of the Civil Rights Act of 

11 1964 (42 U.S.C. 2000e et seq.); or 

12 (B) sections 302 and 304 of the Govern13 ment Employee Rights Act of 1991 (42 U.S.C. 

14 2000e–16b and 2000e–16c); 

15 in the case of a claim alleged by such individual for 

16 a violation of such title, or of section 302(a)(1) of 

17 the Government Employee Rights Act of 1991 (42 

18 U.S.C. 2000e–16b(a)(1)), respectively; 

19 (2) the Librarian of Congress shall have the 

20 same powers as the Librarian of Congress has to ad21 minister and enforce title VII of the Civil Rights Act 

22 of 1964 (42 U.S.C. 2000e et seq.) in the case of a 

23 claim alleged by such individual for a violation of 

24 such title; 
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1 (3) the Board (as defined in section 101 of the 

2 Congressional Accountability Act of 1995 (2 U.S.C. 

3 1301)) shall have the same powers as the Board has 

4 to administer and enforce the Congressional Ac5 countability Act of 1995 (2 U.S.C. 1301 et seq.) in 

6 the case of a claim alleged by such individual for a 

7 violation of section 201(a)(1) of such Act (2 U.S.C. 

8 1311(a)(1)); 

9 (4) the Attorney General shall have the same 

10 powers as the Attorney General has to administer 

11 and enforce—

12 (A) title VII of the Civil Rights Act of 

13 1964 (42 U.S.C. 2000e et seq.); or 

14 (B) sections 302 and 304 of the Govern15 ment Employee Rights Act of 1991 (42 U.S.C. 

16 2000e–16b and 2000e–16c); 

17 in the case of a claim alleged by such individual for 

18 a violation of such title, or of section 302(a)(1) of 

19 the Government Employee Rights Act of 1991 (42 

20 U.S.C. 2000e–16b(a)(1)), respectively; 

21 (5) the President, the Commission, and the 

22 Merit Systems Protection Board shall have the same 

23 powers as the President, the Commission, and the 

24 Board, respectively, have to administer and enforce 

25 chapter 5 of title 3, United States Code, in the case 
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1 of a claim alleged by such individual for a violation 

2 of section 411 of such title; 

3 (6) a court of the United States shall have the 

4 same jurisdiction and powers as the court has to en5 force—

6 (A) title VII of the Civil Rights Act of 

7 1964 (42 U.S.C. 2000e et seq.) in the case of 

8 a claim alleged by such individual for a viola9 tion of such title; 

10 (B) sections 302 and 304 of the Govern11 ment Employee Rights Act of 1991 (42 U.S.C. 

12 2000e–16b and 2000e–16c) in the case of a 

13 claim alleged by such individual for a violation 

14 of section 302(a)(1) of such Act (42 U.S.C. 

15 2000e–16b(a)(1)); 

16 (C) the Congressional Accountability Act 

17 of 1995 (2 U.S.C. 1301 et seq.) in the case of 

18 a claim alleged by such individual for a viola19 tion of section 201(a)(1) of such Act (2 U.S.C. 

20 1311(a)(1)); and 

21 (D) chapter 5 of title 3, United States 

22 Code, in the case of a claim alleged by such in23 dividual for a violation of section 411 of such 

24 title. 
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1 (b) PROCEDURES AND REMEDIES.—The procedures 

2 and remedies applicable to a claim alleged by an individual 

3 for a violation of this Act are—

4 (1) the procedures and remedies applicable for 

5 a violation of title VII of the Civil Rights Act of 

6 1964 (42 U.S.C. 2000e et seq.) in the case of a 

7 claim alleged by such individual for a violation of 

8 such title; 

9 (2) the procedures and remedies applicable for 

10 a violation of section 302(a)(1) of the Government 

11 Employee Rights Act of 1991 (42 U.S.C. 2000e–

12 16b(a)(1)) in the case of a claim alleged by such in13 dividual for a violation of such section; 

14 (3) the procedures and remedies applicable for 

15 a violation of section 201(a)(1) of the Congressional 

16 Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) in 

17 the case of a claim alleged by such individual for a 

18 violation of such section; and 

19 (4) the procedures and remedies applicable for 

20 a violation of section 411 of title 3, United States 

21 Code, in the case of a claim alleged by such indi22 vidual for a violation of such section. 

23 (c) OTHER APPLICABLE PROVISIONS.—With respect 

24 to a claim alleged by a covered employee (as defined in 

25 section 101 of the Congressional Accountability Act of
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1 1995 (2 U.S.C. 1301)) for a violation of this Act, title 

2 III of the Congressional Accountability Act of 1995 (2 

3 U.S.C. 1381 et seq.) shall apply in the same manner as 

4 such title applies with respect to a claim alleged by such 

5 a covered employee for a violation of section 201(a)(1) of 

6 such Act (2 U.S.C. 1311(a)(1)). 

7 (d) PROHIBITION OF AFFIRMATIVE ACTION.—Not8 withstanding any other provision of this section, affirma9 tive action for a violation of this Act may not be imposed. 

10 Nothing in this section shall prevent the granting of relief 

11 to any individual who suffers a violation of such individ12 ual’s rights provided in this Act. 

13 SEC. 13. STATE AND FEDERAL IMMUNITY. 

14 (a) STATE IMMUNITY.—A State shall not be immune 

15 under the 11th amendment to the Constitution from a suit 

16 described in subsection (b) and brought in a Federal court 

17 of competent jurisdiction for a violation of this Act. 

18 (b) REMEDIES FOR STATE EMPLOYEES.—

19 (1) IN GENERAL.—

20 (A) WAIVER.—A State’s receipt or use of 

21 Federal financial assistance for any program or 

22 activity of a State shall constitute a waiver of 

23 sovereign immunity, under the 11th amendment 

24 to the Constitution or otherwise, to a suit 

25 brought by an employee or applicant for em-
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1 ployment of that program or activity under this 

2 Act for a remedy authorized under subsection 

3 (c). 

4 (B) DEFINITION.—In this paragraph, the 

5 term ‘‘program or activity’’ has the meaning 

6 given the term in section 606 of the Civil 

7 Rights Act of 1964 (42 U.S.C. 2000d–4a). 

8 (2) OFFICIALS.—An official of a State may be 

9 sued in the official capacity of the official by any 

10 employee or applicant for employment who has com11 plied with the applicable procedures of section 12, 

12 for equitable relief that is authorized under this Act. 

13 In such a suit the court may award to the prevailing 

14 party those costs authorized by section 722 of the 

15 Revised Statutes (42 U.S.C. 1988). 

16 (3) EFFECTIVE DATE.—With respect to a par17 ticular program or activity, paragraphs (1) and (2) 

18 apply to conduct occurring on or after the day, after 

19 the date of enactment of this Act, on which a State 

20 first receives or uses Federal financial assistance for 

21 that program or activity. 

22 (c) REMEDIES AGAINST THE UNITED STATES AND

23 THE STATES.—Notwithstanding any other provision of 

24 this Act, in an action or administrative proceeding against 

25 the United States or a State for a violation of this Act, 
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1 remedies (including remedies at law and in equity, and 

2 interest) are available for the violation to the same extent 

3 as the remedies are available for a violation of title VII 

4 of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 

5 by a private entity, except that—

6 (1) punitive damages are not available; and 

7 (2) compensatory damages are available to the 

8 extent specified in section 1977A(b) of the Revised 

9 Statutes (42 U.S.C. 1981a(b)). 

10 SEC. 14. ATTORNEYS’ FEES. 

11 Notwithstanding any other provision of this Act, in 

12 an action or administrative proceeding for a violation of 

13 this Act, an entity described in section 12(a) (other than 

14 paragraph (4) of such section), in the discretion of the 

15 entity, may allow the prevailing party, other than the 

16 Commission or the United States, a reasonable attorney’s 

17 fee (including expert fees) as part of the costs. The Com18 mission and the United States shall be liable for the costs 

19 to the same extent as a private person. 

20 SEC. 15. POSTING NOTICES. 

21 A covered entity who is required to post notices de22 scribed in section 711 of the Civil Rights Act of 1964 (42 

23 U.S.C. 2000e–10) shall post notices for employees, appli24 cants for employment, and members, to whom the provi25 sions specified in section 12(b) apply, that describe the 
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1 applicable provisions of this Act in the manner prescribed 

2 by, and subject to the penalty provided under, section 711 

3 of the Civil Rights Act of 1964. 

4 SEC. 16. REGULATIONS. 

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

6 (b), (c), and (d), the Commission shall have authority to 

7 issue regulations to carry out this Act. 

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

9 Congress shall have authority to issue regulations to carry 

10 out this Act with respect to employees and applicants for 

11 employment of the Library of Congress. 

12 (c) BOARD.—The Board referred to in section 

13 12(a)(3) shall have authority to issue regulations to carry 

14 out this Act, in accordance with section 304 of the Con15 gressional Accountability Act of 1995 (2 U.S.C. 1384), 

16 with respect to covered employees, as defined in section 

17 101 of such Act (2 U.S.C. 1301). 

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

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

20 covered employees, as defined in section 411(c) of title 3, 

21 United States Code. 

22 SEC. 17. RELATIONSHIP TO OTHER LAWS. 

23 This Act shall not invalidate or limit the rights, rem24 edies, or procedures available to an individual claiming 
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1 discrimination prohibited under any other Federal law or 

2 any law of a State or political subdivision of a State. 

3 SEC. 18. SEVERABILITY. 

4 If any provision of this Act, or the application of the 

5 provision to any person or circumstance, is held to be in6 valid, the remainder of this Act and the application of the 

7 provision to any other person or circumstance shall not 

8 be affected by the invalidity. 

9 SEC. 19. EFFECTIVE DATE. 

10 This Act shall take effect 60 days after the date of 

11 enactment of this Act and shall not apply to conduct oc12 curring before the effective date.

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