EMPOWER Act

To deter, prevent, reduce, and respond to harassment in the workplace, including sexual harassment, sexual assault, and harassment based on protected categories; and to amend the Internal Revenue Code of 1986 to modify the tax treatment of amounts related to employment discrimination and harassment in the workplace, including sexual harassment, sexual assault, and harassment based on protected categories. 1. Short title This Act may be cited as the Ending the Monopoly of Power Over Workplace Harassment through Education and Reporting Act EMPOWER Act I Preventing and Responding to Workplace Harassment 101. Purpose and authority It is the purpose of this title, through the exercise by Congress of its power to regulate commerce among the several States, to deter, prevent, reduce, and respond to harassment in the workplace, including sexual harassment, sexual assault, and harassment based on other protected categories. 102. Definitions In this title: (1) Applicant The term applicant (2) Charge of Discrimination The term Charge of Discrimination 42 U.S.C. 2000e–5 (3) Commission The term Commission (4) Employee The term employee (A) an individual employed by an employer described in paragraph (5), including an outside worker in such individual's office or place of employment; (B) an employee to which section 703, 704 or 717(a) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–2 (C) a State employee to which section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)) applies, including an outside worker in such a State employee's office or place of employment; or (D) a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 (5) Employer The term employer (A) a person engaged in an industry affecting commerce, and any agent of such a person; (B) an entity to which section 703, 704, or 717(a) of the Civil Rights Act of 1964 applies; (C) an employing authority to which section 302(a)(1) of the Government Employee Rights Act of 1991 applies; or (D) an employing office, as defined in section 101 of the Congressional Accountability Act of 1995 or section 411(c) of title 3, United States Code. (6) Fair employment practices agencies The term fair employment practices agencies (7) Independent contractor The term independent contractor (8) Law enforcement agency The term law enforcement agency (9) Nondisclosure clause The term nondisclosure clause (10) Nondisparagement clause The term nondisparagement clause (11) Outside worker The term outside worker (A) a temporary worker hired through an employment agency (as defined in section 701 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (B) an independent contractor for an employer or a subcontractor thereof; or (C) an intern or volunteer, whether paid or unpaid, for an employer. (12) Sexual assault The term sexual assault (13) Subcontractor The term subcontractor (14) Workplace harassment The term workplace harassment 103. Prohibiting nondisparagement and nondisclosure clauses that cover workplace harassment, including sexual harassment (a) Unlawful practices (1) Prohibition on workplace harassment nondisclosure clause Subject to subsection (b)(1), it shall be an unlawful practice for an employer to enter into a contract or agreement with an employee or applicant, as a condition of employment, promotion, compensation, benefits, or change in employment status or contractual relationship, or as a term, condition, or privilege of employment, if that contract or agreement contains a nondisparagement or nondisclosure clause that covers workplace harassment, including sexual harassment or retaliation for reporting, resisting, opposing, or assisting in the investigation of workplace harassment. (2) Prohibition on enforcement Notwithstanding any other provision of law, it shall be an unlawful practice and otherwise unlawful for an employer to enforce or attempt to enforce a nondisparagement clause or nondisclosure clause described in paragraph (1). (b) Settlement or separation agreements (1) In General The provisions of subsection (a) do not apply to a nondisclosure clause or nondisparagement clause contained in a settlement agreement or separation agreement that resolves legal claims or disputes when— (A) such legal claims accrued or such disputes arose before the settlement agreement or separation agreement was executed; and (B) such clauses are mutually agreed upon and mutually benefit both the employer and employee. (2) Unlawful practice It shall be an unlawful practice for an employer to unilaterally include a nondisclosure clause or a nondisparagement clause that solely benefits the employer in a separation or settlement agreement. (c) Right To report reserved Notwithstanding signing (before or after the effective date of this title) any nondisparagement or nondisclosure clause including a clause referred to in subsection (a)(1), an employee or applicant retains any right that person would otherwise have had to report a concern about workplace harassment, including sexual harassment or another violation of the law to the Commission, another Federal agency (including an office of the legislative or judicial branch), a State or local fair employment practices agency or any State or local agency, or a law enforcement agency, and any right that person would otherwise have had to bring an action in a court of the United States. (d) Enforcement (1) Enforcement powers With respect to the administration and enforcement of this section in the case of a claim alleged by an employee for a violation of this section— (A) the Commission shall have the same powers as the Commission has to administer and enforce— (i) title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (ii) sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c), in the case of a claim alleged by such employee for a violation of such title, or of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), respectively; (B) the Librarian of Congress shall have the same powers as the Librarian of Congress has to administer and enforce title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (C) the Board (as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 2 U.S.C. 1301 2 U.S.C. 1311(a)(1) (D) the Attorney General shall have the same powers as the Attorney General has to administer and enforce— (i) title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (ii) sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c), in the case of a claim alleged by such employee for a violation of such title, or of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), respectively; (E) the President, the Commission, and the Merit Systems Protection Board shall have the same powers as the President, the Commission, and the Board, respectively, have to administer and enforce chapter 5 (F) the Commission shall have the same powers as described in subparagraph (A) to administer and enforce a claim by any employee who is not otherwise able to seek remedy for a claim through an enforcement entity described in subparagraph (A) through (E); and (G) a court of the United States shall have the same jurisdiction and powers as the court has to enforce— (i) title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (ii) sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c) in the case of a claim alleged by such employee for a violation of section 302(a)(1) of such Act (42 U.S.C. 2000e–16b(a)(1)); (iii) the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 2 U.S.C. 1311(a)(1) (iv) chapter 5 (2) Procedures and remedies The procedures and remedies applicable to a claim alleged by an employee for a violation of this section are— (A) the procedures and remedies applicable for a violation of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (B) the procedures and remedies applicable for a violation of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)) in the case of a claim alleged by such employee for a violation of such section; (C) the procedures and remedies applicable for a violation of section 201(a)(1) of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1311(a)(1) (D) the procedures and remedies applicable for a violation of section 411 of title 3, United States Code, in the case of a claim alleged by such employee for a violation of such section. (3) Other applicable provisions With respect to a claim alleged by a covered employee (as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 2 U.S.C. 1381 2 U.S.C. 1311(a)(1) (e) Regulations (1) In general Except as provided in paragraphs (2), (3), and (4), the Commission shall have authority to issue regulations to carry out this section. (2) Librarian of Congress The Librarian of Congress shall have authority to issue regulations to carry out this section with respect to employees and applicants for employment of the Library of Congress. (3) Board The Board referred to in subsection (d)(1)(C) shall have authority to issue regulations to carry out this section, in accordance with section 304 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1384 2 U.S.C. 1301 (4) President The President shall have authority to issue regulations to carry out this section with respect to covered employees, as defined in section 411(c) of title 3, United States Code, and applicants for employment as such employees. (f) State and Federal immunity (1) Abrogation of State immunity A State shall not be immune under the 11th Amendment to the Constitution from a suit brought in a Federal court of competent jurisdiction for a violation of this section. (2) Waiver of State immunity (A) In general (i) Waiver A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution or otherwise, to a suit brought by an employee or applicant for employment of that program or activity under this section for a remedy authorized under subsection (d). (ii) Definition In this paragraph, the term program or activity 42 U.S.C. 2000d–4a (B) Effective date With respect to a particular program or activity, subparagraph (A) applies to conduct occurring on or after the day, after the date of enactment of this Act, on which a State first receives or uses Federal financial assistance for that program or activity. (3) Remedies against State officials An official of a State may be sued in the official capacity of the official by any employee or applicant for employment who has complied with the applicable procedures of subsection (d), for equitable relief that is authorized under this section. In such a suit the court may award to the prevailing party those costs authorized by section 722 of the Revised Statutes ( 42 U.S.C. 1988 (4) Remedies against the United States and the States Notwithstanding any other provision of this title, in an action or administrative proceeding against the United States or a State for a violation of this section, remedies (including remedies at law and in equity, and interest) are available for the violation to the same extent as the remedies are available for a violation of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (A) punitive damages are not available; and (B) compensatory damages are available to the extent specified in section 1977A(b) of the Revised Statutes ( 42 U.S.C. 1981a(b) 104. Confidential tip-line addressing employers with widespread and systemic workplace harassment (a) Confidential tip-Line established (1) In general Not later than 1 year after the date of enactment of this Act, the Commission shall establish a confidential tip-line that supplements the Commission’s existing process for submitting a Charge of Discrimination, and that has the characteristics described in paragraph (2), to— (A) receive, log, and acknowledge the receipt of reports by employees, applicants, bystanders, or other individuals who attest that they have experienced or witnessed workplace harassment, including sexual assault and other forms of sexual harassment; (B) provide informational materials to reporting individuals described in subparagraph (A); and (C) make available reports described in subparagraph (A) to— (i) the Commission; and (ii) Commission-approved fair employment practices agencies for potential investigation. (2) Operation of the tip-line The Commission shall ensure that the tip-line established under this section will— (A) explicitly notify reporting individuals that the tip-line does not allow anonymous reporting, but does allow the submission of confidential reports, independent of a Charge of Discrimination or a Federal or State administrative complaint, by those employees or applicants who have experienced workplace harassment, including sexual assault and other forms of sexual harassment, and by those employees, applicants, bystanders, or other individuals who have witnessed such conduct; (B) provide an option for reporting individuals to make a report that would not identify individual employees, but would identify the entity, employer, division, or subdivision responsible for the workplace harassment, including sexual assault and other forms of sexual harassment; (C) educate reporting individuals about how to preserve the right to make any reports, complaints, or charges that the individuals would otherwise have been eligible to make, independent of any report to the tip-line, including— (i) the right of the reporting individual to file a Charge of Discrimination that will result in the Commission or a Commission-approved fair employment practices agency taking action (and the risk of losing that right if the reporting individual fails to file a timely Charge of Discrimination); and (ii) a clear explanation of any deadlines or limitations periods; (D) instruct reporting individuals about how to file a Charge of Discrimination with the Commission and encourage reporting individuals to file a Charge of Discrimination in order to allow the Commission to more effectively investigate the workplace harassment; (E) emphasize that reports to the confidential tip-line— (i) will not prompt individualized investigations, except in the limited circumstances described in clause (ii), subparagraph (I), and subsection (b), and such investigations will fully comport with applicable due process requirements; (ii) will be monitored by the Commission and Commission-approved fair employment practices agencies to identify trends and determine whether investigations should be undertaken, for instance, when the Commission has received multiple complaints regarding a particular employer or there is evidence of a broader pattern or practice of workplace harassment; (iii) shall not be discoverable in civil cases, unless the reporting individual waives the confidentiality of the submitted reports; and (iv) shall not be shared with other Federal agencies; (F) engage fair employment practices agencies at the State and local level to apply and be thoroughly vetted and reviewed for approved access to the confidential tip-line; (G) share information from the tip-line, including information on opened investigations, only between and among participating approved fair employment practices agencies and the Commission to facilitate coordination and avoid conflicts in investigations and resolutions; (H) offer an option to each reporting individual, at the time of reporting, to elect to be informed, to the extent practicable, if the individual's report leads to an investigation, so that the reporting individual may choose to provide further information or participate in any resulting investigation; and (I) protect the identity of individuals making reports and employers by making such reports confidential within the tip-line and only available to the Commission and Commission-approved fair employment practices agencies, and require that information obtained can be used only for the purpose of investigation related to the submitted complaint or complaints, in full compliance with applicable due process requirements. (b) Charge of Discrimination In the event that a member of the Commission determines that information received from the tip-line warrants an investigation, the member may initiate an investigation by filing a Charge of Discrimination in accordance with section 706 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–5 (c) Education about the tip-Line The Commission shall disseminate information and educate the public about the tip-line established under this section. (d) Unlawful practices with respect to the tip-Line (1) Other unlawful practice It shall be unlawful to engage in any unlawful employment practice described in section 704 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–3 (2) Confidentiality It shall be unlawful for any officer or employee of the Commission, or any Commission-approved fair employment practices agencies, to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section, prior to institution of any proceeding under section 706 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–5 (3) Enforcement The enforcement provisions described in section 4(d) shall apply in the same manner to the enforcement of a violation described in paragraph (1) or (2). (e) Effective date This section shall first take effect on the first day of the first fiscal year for which $1,500,000 is appropriated to carry out this section. (f) Annual minimum The Commission shall not be required to implement this section in any fiscal year for which less than $1,000,000 is appropriated to carry out this section. 105. SEC filings and material disclosures at public companies (a) Definitions In this section— (1) the term Form 10–K (2) the term issuer 15 U.S.C. 78c(a) (b) Findings Congress finds that— (1) shareholders and the public should know whether corporations— (A) are expending company funds to resolve, settle, or litigate claims of workplace harassment, including sexual harassment; and (B) along with the executives and managers of those corporations— (i) are complying with prohibitions against workplace harassment, including sexual harassment; and (ii) facilitate a culture of silence, disrespect, intimidation, and abuse that negatively impacts the health and safety of the workers of those corporations and the value of those corporations; and (2) the requirements of this section will— (A) establish necessary transparency and accountability; and (B) provide an incentive for corporations to— (i) promptly address workplace harassment, including sexual harassment, as that misconduct occurs; and (ii) foster a culture in which workplace harassment is not protected and does not occur. (c) Information required Not later than 1 year after the date of enactment of this Act, the Securities and Exchange Commission shall promulgate a regulation that requires any issuer that is required to submit an annual report using Form 10–K to include in any such submission— (1) during the period covered by the submission— (A) with respect to workplace harassment, including sexual harassment, and retaliation for reporting, resisting, opposing, or assisting in the investigation of workplace harassment— (i) the number of settlements reached by the issuer as a signatory or when the issuer is a beneficiary of a release of claims; and (ii) whether any judgments or awards (including awards through arbitration or administrative proceedings) were entered against the issuer in part or in whole, or any payments made in connection with a release of claims; and (B) the total amount paid by the issuer or another party as a result of— (i) the settlements described in subparagraph (A)(i); and (ii) the judgments described in subparagraph (A)(ii); and (2) information regarding whether, in the aggregate, including the period covered by the submission, there have been three or more settlements reached by, or judgments against, the issuer with respect to workplace harassment, including sexual harassment, or retaliation for reporting, resisting, opposing, or assisting in the investigation of workplace harassment that relate to a particular individual employed by the issuer, without identifying that individual by name. 106. Professional training, including bystander training, and public education campaigns (a) Commission authority The Commission shall have the authority to— (1) reasonably adjust the fees the Commission charges for any education, technical assistance, or training the Commission offers in accordance with section 705(j)(1) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–4(j)(1) (2) use the materials developed by the Commission for any education, technical assistance, or training offered by the Commission in accordance with section 705(j)(1) of the Civil Rights Act of 1964 in any education and outreach activities carried out by the Commission; and (3) use funds from the EEOC Education, Technical Assistance, and Training Revolving Fund, established under section 705(k) of the Civil Rights Act of 1964, to pay the full salaries of any Commission employees that develop and administer any education, technical assistance, or training programs offered by the Commission. (b) Workplace training (1) In general The Commission shall provide for the development and dissemination of workplace training programs and information regarding workplace harassment, including sexual harassment. (2) Contents of training The training provided by the Commission under this subsection to managers and nonmanagers shall be consistent with the findings of the Commission, on matters including— (A) what constitutes workplace harassment, including sexual harassment; (B) the rights of individuals with respect to workplace harassment and how to report workplace harassment; (C) how individuals, including bystanders, who encounter workplace harassment can intervene or report the harassment; and (D) how employers and managers can prevent workplace harassment, including sexual harassment, from occurring in the workplace. (3) Contents of information In providing information under this subsection, the Commission shall— (A) prepare and distribute information that is consistent with the findings of the Commission; (B) develop and disseminate a public service advertisement campaign that— (i) distributes information with respect to the matters described in paragraph (2); and (ii) advertises the confidential complaint database established under section 5. (c) Effective date This section shall not take effect in any fiscal year for which less than $1,500,000 is appropriated to carry out this section. II Modification of Tax Treatment of Amounts Related to Employment Discrimination and Workplace Harassment 201. Tax treatment of amounts related to judgments (a) Denial of deduction (1) In general Part IX of subchapter B of chapter 1 280I. Amounts related to judgments with respect to workplace harassment, including sexual harassment No deduction shall be allowed under this chapter for amounts paid or incurred by the taxpayer— (1) pursuant to any judgment or award in litigation related to workplace harassment, including sexual harassment, or (2) for expenses and attorney's fees in connection with the litigation resulting in the judgment or award described in paragraph (1) (other than expenses or attorney's fees paid by the workplace harassment plaintiff or claimant), or for any insurance covering the defense or liability of the underlying claims with respect to such litigation. . (2) Clerical amendment The table of sections for part IX of subchapter B of chapter 1 of such Code is amended by adding at the end the following new item: Sec. 280I. Amounts related to judgments with respect to workplace harassment, including sexual harassment. . (3) Conforming amendment Section 162 of such Code is amended by striking subsection (q). (4) Effective date The amendments made by this subsection shall apply to amounts paid or incurred in taxable years beginning after the date of the enactment of this Act. (b) Exclusion from income (1) In general Part III of subchapter B of chapter 1 139H. Amounts received in connection with judgments, awards, and settlements with respect to workplace harassment Gross income shall not include any amount received in connection with a judgment or award in, or a settlement of— (1) a claim related to workplace harassment, including sexual harassment or other unlawful discrimination, or (2) any other claim of unlawful discrimination (as defined by section 62(e)). The preceding sentence shall not include any employment discrimination compensation to which section 1302 applies. . (2) Clerical amendment The table of sections for part III of subchapter B of chapter 1 of such Code is amended by inserting after the item relating to section 139G the following new item: Sec. 139H. Amounts received in connection with judgments, awards, and settlements with respect to workplace harassment. . (3) Effective date The amendments made by this subsection shall apply to amounts received in taxable years beginning after the date of the enactment of this Act. 202. Limitation on tax based on income averaging for compensation received on account of certain unlawful employment discrimination (a) In general Part I of subchapter Q of chapter 1 1302. Income from compensation received on account of certain unlawful employment discrimination (a) General rule In the case of any employment discrimination compensation received during any taxable year, the tax imposed by this chapter for such taxable year with respect to such compensation shall not exceed the sum of— (1) the tax which would be so imposed if— (A) no amount of such compensation were included in gross income for such year, and (B) no deduction were allowed for such year for expenses otherwise allowable as a deduction to the taxpayer for such year in connection with making or prosecuting any claim of unlawful employment discrimination by or on behalf of the taxpayer, plus (2) the product of— (A) the combined number of years in the backpay period and the foregone compensation period, and (B) the amount by which the tax determined under paragraph (1) would increase if the sum of— (i) the average of the average annual net employment discrimination compensation in the backpay period, and (ii) the average of the average annual net employment discrimination compensation in the foregone compensation period, were included in gross income for such year. (b) Definitions For purposes of this section— (1) Employment discrimination compensation The term employment discrimination compensation (2) Backpay The term backpay (3) Foregone compensation The term foregone compensation (4) Backpay period The term backpay period (5) Foregone compensation period The term foregone compensation period (6) Average annual net employment discrimination compensation The term average annual net employment discrimination compensation (A) the excess of— (i) employment discrimination compensation attributable to such period, over (ii) the amount of the deductions described in subsection (a)(1)(B), divided by (B) the total number of years in the backpay period and the foregone compensation period. . (b) Clerical amendment The table of sections for part I of subchapter Q of chapter 1 Sec. 1302. Income from compensation received on account of certain unlawful employment discrimination. . (c) Income averaging not To increase alternative minimum tax liability Section 55(c) (3) Coordination with income averaging for amounts received on account of employment discrimination Solely for purposes of this section, section 1302 shall not apply in computing the regular tax liability. . (d) Effective date The amendments made by this section shall apply to amounts paid or incurred in taxable years beginning after the date of the enactment of this Act.

Summary: Ending the Monopoly of Power Over Workplace Harassment through Education and Reporting Act or the EMPOWER Act This bill makes it an unlawful practice (with exceptions regarding certain settlement or separation agreements) for an employer to: (1) enter into a contract with an employee or applicant, as a condition of employment, promotion, compensation, benefits, or change in employment status or contractual relationship, or as a term, condition, or privilege of employment, if that contract contains a nondisparagement or nondisclosure clause that covers workplace harassment; and (2) enforce, or attempt to enforce, a nondisparagement clause or nondisclosure clause. Notwithstanding signing any nondisparagement or nondisclosure clause, an employee or applicant retains any right that person would otherwise have had to report a concern about workplace harassment to the Equal Employment Opportunity Commission (EEOC) and other specified agencies, and any right that person would otherwise have had to bring an action in a court of the United States. The bill: (1) sets forth enforcement powers of the EEOC and various entities, and the jurisdiction of U.S. courts, regarding workplace harassment; and (2) makes specified procedures and remedies applicable. The EEOC shall: (1) establish a confidential tip-line that supplements its existing process for submitting a charge of discrimination, and (2) provide for the development and dissemination of workplace training programs and information regarding workplace harassment, including sexual harassment. The Internal Revenue Code is amended to modify the tax treatment of amounts related to employment discrimination and workplace harassment.