Department of State Inclusivity Act of 2021

To promote diversity at the Department of State, to direct the Secretary of State to review the termination characterization of former members of the Department who were fired by reason of their sexual orientation, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the Department of State Inclusivity Act of 2021 (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—A Diverse Workforce: Recruitment, Retention, and Promotion Sec. 101. Definitions. Sec. 102. Office of the Chief Diversity and Inclusion Officer. Sec. 103. Collection, analysis, and dissemination of workforce data. Sec. 104. Workforce interviews. Sec. 105. Recruitment and retention. Sec. 106. Sense of Congress on support for equal employment opportunity and merit principles criteria. Sec. 107. Leadership engagement and accountability. Sec. 108. Professional development opportunities and tools. Sec. 109. Examination and oral assessment for the Foreign Service. Sec. 110. Sense of Congress on veterans' recruitment for the Foreign Service. Sec. 111. Department of State and USAID fellowships and programs. Sec. 112. Expansion of Diplomats in Residence Program. Sec. 113. Use of gender neutral terms in employee evaluation forms. Sec. 114. Voluntary participation. Sec. 115. Sense of Congress on diversity, equity, and inclusion in the foreign affairs workforce. Sec. 116. Employee assignment restrictions and preclusions. Sec. 117. Mentorship program. Sec. 118. Senior Executive Service Candidate Development Program. TITLE II—LOVE Act of 2021 Sec. 201. Short title. Sec. 202. Findings. Sec. 203. Director General review. Sec. 204. Reports on reviews. Sec. 205. Establishment of Reconciliation Board. Sec. 206. Issuance of apology. Sec. 207. Establishment of permanent exhibit on the Lavender Scare. Sec. 208. Guidance on issuing visas. Sec. 209. Establishment of Advancement Board. TITLE III—SHAPE Act of 2021 Sec. 301. Short title; rule of construction. Sec. 302. Department of State policy and procedures on prevention and response to harassment, discrimination, sexual assault, and related retaliation. Sec. 303. Reporting, documentation, and investigation procedures. Sec. 304. Sexual assault protocol and victim care. Sec. 305. Rights of employees harassed, discriminated against, retaliated against, or sexually assaulted. Sec. 306. Provision of climate surveys. Sec. 307. Reports to Congress, the Department, and the public. Sec. 308. Required training for Department personnel. Sec. 309. Hiring, vetting, and promotion. Sec. 310. Nondisclosure and nondisparagement agreements. Sec. 311. Sense of Congress on sexual harassment and assault prevention and eradication in the foreign affairs workforce. I A Diverse Workforce: Recruitment, Retention, and Promotion 101. Definitions In this title: (1) Applicant flow data The term applicant flow data (2) Appropriate congressional committees The term appropriate congressional committees (3) Demographic data The term demographic data Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (4) Department The term Department (5) Diversity The term diversity 42 U.S.C. 2000a et seq. 42 U.S.C. 12101 et seq. (6) Secretary The term Secretary (7) Workforce The term workforce (A) individuals serving in a position in the civil service (as defined in section 2101 of title 5, United States Code); (B) individuals who are members of the Foreign Service (as defined in section 103 of the Foreign Service Act of 1980 ( 22 U.S.C. 3902 (C) all individuals serving under a personal services agreement or personal services contract; (D) all individuals serving under a Foreign Service Limited appointment under section 309 of the Foreign Service Act of 1980 ( 22 U.S.C. 3949 (E) individuals working in the Department of State under any other authority. 102. Office of the Chief Diversity and Inclusion Officer Section 1 of the State Department Basic Authorities Act of 1956 ( 22 U.S.C. 2651a (1) by redesignating subsection (g) as subsection (h); and (2) by inserting after subsection (f) the following new subsection: (g) Chief Diversity and Inclusion Officer (1) In general There shall be established within the Department of State in the immediate office of the Secretary an Office of the Chief Diversity and Inclusion Officer, which shall have at least two additional members of staff. The head of the Office of the Chief Diversity and Inclusion Officer shall report directly to the Secretary. (2) Duties The Office of the Chief Diversity and Inclusion Officer shall— (A) lead the development and implementation of proactive diversity, equity, and inclusion initiatives in support of the Department’s strategic plan to create a culture for diversity, equity, and inclusion; (B) work with the Office of Management and Budget to assess areas of improvement for recruitment and retention; (C) ensure the recruitment and retention of a diverse workforce, including through collaboration with other Department offices and bureaus to support them in assessing potential barriers and developing recruitment and retention strategies; (D) recommend training initiatives on cultural competency, gender differences, disability, sexual harassment, explicit and implicit bias, and other topics designed to increase awareness and support of equity and inclusion values; (E) ensure the Department maintains compliance with all relevant and applicable laws and regulations; and (F) coordinate and engage with the Office of Civil Rights and the Bureau of Global Talent Management as necessary. . 103. Collection, analysis, and dissemination of workforce data (a) Initial report Not later than 180 days after the date of the enactment of this Act, the Secretary shall, in consultation with the Director of the Office of Personnel Management and the Director of the Office of Management and Budget, submit to the appropriate congressional committees a report, which shall also be posted on a publicly available website of the Department in a searchable database format, that includes disaggregated demographic data and other information regarding the diversity of the workforce of the Department. (b) Data The report under subsection (a) shall include the following data: (1) Demographic data on each element of the workforce of the Department, disaggregated by rank and grade or grade-equivalent, with respect to the following groups: (A) Applicants for positions in the Department. (B) Individuals hired to join the workforce. (C) Individuals promoted during the 2-year period ending on the date of the enactment of this Act, including promotions to and within the Senior Executive Service or the Senior Foreign Service. (D) Individuals serving on applicable selection boards. (E) Members of any external advisory committee or board who are subject to appointment by individuals at senior positions in the Department. (F) Individuals participating in professional development programs of the Department, and the extent to which such participants have been placed into senior positions within the Department after such participation. (G) Individuals participating in mentorship or retention programs. (H) Individuals who separated from the agency during the 2-year period ending on the date of the enactment of this Act, including individuals in the Senior Executive Service or the Senior Foreign Service. (2) An assessment of agency compliance with the essential elements identified in Equal Employment Opportunity Commission Management Directive 715, effective October 1, 2003. (3) Data on the overall number of individuals who are part of the workforces of the Department of State overall and within each bureau of the Department, the percentages of such workforce corresponding to each element listed in section 101(6), and the percentages corresponding to each rank, grade, or grade-equivalent. (4) Data on the promotion outcomes of women and racial or ethnic minorities in mid-career ranks of the workforce. (5) Demographic data, disaggregated by rank and grade or grade-equivalent, of contractors and subcontractors, as well as the nongovernmental organizations and civil society organizations that win bids or obtain contracts and grants and serve as subcontractors. (c) Recommendation The Secretary may include in the report under subsection (a) a recommendation to the Director of the Office of Management and Budget and to the appropriate congressional committees regarding whether the Department should collect more detailed data on demographic categories in addition to the race and ethnicity categories specified in the Office of Management and Budget statistical policy directive entitled Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (d) Other contents The report under subsection (a) shall also describe the efforts of the Department— (1) to propagate fairness, impartiality, and inclusion in the work environment, both domestically and abroad; (2) to enforce anti-harassment and anti-discrimination policies; (3) to refrain from engaging in unlawful discrimination in any phase of the employment process, including recruitment, hiring, evaluation, assignments, promotion, retention, and training; (4) to prevent retaliation against employees for participating in a protected equal employment opportunity activity; (5) to provide reasonable accommodation for qualified employees and applicants with disabilities; and (6) to recruit a representative workforce by— (A) recruiting women and minorities; (B) recruiting at women’s colleges, historically Black colleges and universities, minority-serving institutions, and other institutions serving a significant percentage of minority students; (C) placing job advertisements in newspapers, magazines, and job sites oriented toward women and minorities; (D) sponsoring and recruiting at job fairs in urban and rural communities and land-grant colleges or universities; (E) providing opportunities through the Foreign Service Internship Program under chapter 12 of the Foreign Service Act of 1980 ( 22 U.S.C. 4141 et seq. (F) recruiting mid-level and senior-level professionals through programs designed to increase minority representation in international affairs; (G) offering the Foreign Service written and oral assessment examinations in multiple locations throughout the United States to reduce the burden of applicants having to travel at their own expense to take either or both such examinations; and (H) supporting recruiting and hiring opportunities including through— (i) the Charles B. Rangel International Affairs Fellowship Program; (ii) the Thomas R. Pickering Foreign Affairs Fellowship Program; (iii) the International Career Advancement Program; and (iv) other initiatives, including agency-wide policy initiatives. (e) Annual updates Not later than one year after the publication of the report required under subsection (a), and annually thereafter for five years, the Secretary shall, in consultation with the Director of the Office of Personnel Management and the Director of the Office of Management and Budget, provide a report to the appropriate congressional committees, which shall be posted on the Department’s website and may be included in another annual report required under another provision of law, that includes— (1) disaggregated demographic data relating to the workforce and information on the status of diversity and inclusion efforts of the Department; (2) an analysis of applicant flow data; and (3) disaggregated demographic data relating to participants in professional development programs of the Department and the rate of placement into senior positions for participants in such programs. 104. Workforce interviews (a) Retained members The Director General of the Foreign Service and the Director of the Bureau of Global Talent Management of the Department should conduct periodic interviews with a representative and diverse cross-section of the workforce of the Department— (1) to understand the reasons of individuals in such workforce for remaining in a position in the Department; and (2) to receive feedback on workplace policies, professional development opportunities, and other issues affecting the decision of individuals in the workforce to remain in the Department. (b) Departing members The Director General of the Foreign Service and the Director of the Bureau of Global Talent Management shall provide an opportunity for an exit interview to each individual in the workforce of the Department who separates from service with the Department to better understand the reasons of such individual for leaving such service. (c) Use of analysis from interviews The Director General of the Foreign Service and the Director of the Bureau of Global Talent Management shall analyze demographic data and other information obtained through interviews under subsections (a) and (b) to determine— (1) to what extent, if any, the diversity of those conducting the interviews impacts the results; and (2) whether to implement any policy changes or include any recommendations in a report required under subsection (a) or (e) of section 102 relating to the determination reached pursuant to paragraph (1). (d) Tracking data The Chief Diversity Officer shall— (1) track demographic data relating to participants in professional development programs and the rate of placement into senior positions for participants in such programs; (2) annually evaluate such data— (A) to identify ways to improve outreach and recruitment for such programs, consistent with merit system principles; and (B) to understand the extent to which participation in any professional development program offered or sponsored by the Department differs among the demographic categories of the workforce; and (3) actively encourage participation from a range of demographic categories, especially from categories with consistently low participation, in such professional development programs. 105. Recruitment and retention (a) In general The Secretary should— (1) continue to seek a diverse and talented pool of applicants; and (2) instruct the Director General of the Foreign Service and the Director of the Bureau of Global Talent Management of the Department to have a plan of action for the recruitment of people belonging to traditionally underrepresented groups, which should include outreach at appropriate colleges, universities, affinity groups, and professional associations. (b) Scope The diversity recruitment initiatives described in subsection (a) should include— (1) recruiting at women’s colleges, historically Black colleges and universities, minority-serving institutions, and other institutions serving a significant percentage of minority students; (2) placing job advertisements in newspapers, magazines, and job sites oriented toward diverse groups; (3) sponsoring and recruiting at job fairs in urban and rural communities and land-grant colleges or universities; (4) providing opportunities through highly respected, international leadership programs, that focus on diversity recruitment and retention; and (5) cultivating partnerships with organizations dedicated to the advancement of the profession of international affairs and national security to advance shared diversity goals. (c) Expand training on anti-Harassment and anti-Discrimination (1) In general The Secretary shall, through the Foreign Service Institute and other educational and training opportunities— (A) expand the provision of training on workplace rights and responsibilities to focus on anti-harassment and anti-discrimination information and policies; (B) expand the provision of training on workplace rights and responsibilities to focus on explicit and implicit bias, including training on the effects of bias; and (C) make such expanded training mandatory for— (i) individuals in senior and supervisory positions; and (ii) individuals having responsibilities related to recruitment, retention, or promotion of employees. (2) Best practices Each agency shall give special attention to ensuring the continuous incorporation of evidence-based best practices in training provided under this subsection. 106. Sense of Congress on support for equal employment opportunity and merit principles criteria It is the sense of Congress that— (1) the support for equal employment opportunity and merit principles (2) equal employment opportunity and merit principles criteria for tenure and promotion in the Civil Service is critical to promoting a more diverse Civil Service; and (3) the Department should— (A) develop mechanisms to ensure that the Foreign Service promotion list appropriately promotes a diverse workforce; (B) develop mechanisms to ensure that the Civil Service appropriately promotes a diverse workforce; (C) establish criteria within the Foreign Service Employee Evaluation Report that include evaluating the support of Foreign Service officers for equal employment opportunities; and (D) establish criteria to evaluate the support of Civil Service officers for equal employment opportunities. 107. Leadership engagement and accountability (a) Reward and recognize efforts To promote diversity and inclusion (1) In general The Secretary shall implement performance and advancement requirements that reward and recognize the efforts of individuals in senior positions and supervisors in the Department in fostering an inclusive environment and cultivating talent consistent with merit system principles, such as through participation in mentoring programs or sponsorship initiatives, recruitment events, and other similar opportunities. (2) Outreach events The Secretary shall create opportunities for individuals in senior positions and supervisors in the Department to participate in outreach events and to discuss issues relating to diversity and inclusion within the workforce on a regular basis, including with employee resource groups. (b) Sense of Congress on external advisory committees and boards It is the sense of Congress that the Secretary should ensure that qualified teams that represent the diversity of the Department review in advance appointments to external advisory committees or boards by senior officials in the Department. 108. Professional development opportunities and tools (a) Expand provision of professional development and career advancement opportunities The Secretary is authorized to expand professional development opportunities that support the mission needs of the Department, such as— (1) academic programs; (2) private-public exchanges; and (3) detail assignments to relevant positions in— (A) private or international organizations; (B) State, local, and Tribal governments; (C) other branches of the Federal Government; or (D) schools of international affairs or those with related programs. (b) Training for senior positions (1) In general The Secretary shall offer, or sponsor members of the workforce to participate in, a Senior Executive Service candidate development program or other program that trains members on the skills required for appointment to senior positions in the Department. (2) Requirements In determining which members of the workforce are granted professional development or career advancement opportunities under paragraph (1), the Secretary shall— (A) ensure any program offered or sponsored by the Department under such subparagraph comports with the requirements of subpart C of part 412 of title 5, Code of Federal Regulations, or any successor thereto, including merit staffing and assessment requirements; (B) consider the number of expected vacancies in senior positions as a factor in determining the number of candidates to select for such programs; (C) understand how participation in any program offered or sponsored by the Department under such subparagraph differs by gender, race, national origin, disability status, or other demographic categories; and (D) actively encourage participation from a range of demographic categories, especially from categories with consistently low participation. 109. Examination and oral assessment for the Foreign Service (a) Sense of congress It is the sense of Congress that the Department should offer both the Foreign Service written examination and oral assessment in more locations throughout the United States. Doing so would ease the financial burden on potential candidates who do not currently reside in and must travel at their own expense to one of the few locations where these assessments are offered. (b) Foreign service examinations Section 301(b) of the Foreign Service Act of 1980 ( 22 U.S.C. 3941 (1) by striking The Secretary (1) The Secretary (2) by adding at the end the following new paragraphs: (2) The Secretary shall ensure that the Board of Examiners for the Foreign Service annually offers the oral assessment examinations described in paragraph (1) in cities, chosen on a rotating basis, located in at least three different time zones across the United States, and that those examinations give sufficient weight to a candidate’s commitment to inclusion and diversity. (3) The Secretary shall consider whether participants in Department fellowship programs should be required to take oral examinations, and whether there is any justification for requiring certain, but not all, fellowship participants to take such examinations. . 110. Sense of Congress on veterans' recruitment for the Foreign Service It is the sense of Congress that the Foreign Service exam should be offered in multiple diverse locations, at least in three different time zones in a calendar year, to encourage more accessibility to the test, especially for veterans and members of the United States Armed Forces transitioning to civilian life. 111. Department of State and USAID fellowships and programs (a) Education grants The Secretary of State may make grants to postsecondary educational institutions, including minority-serving institutions, or students for the purpose of increasing knowledge and awareness of and interest in employment with the Civil Service. To the extent possible, the Secretary shall give special emphasis to promoting such knowledge and awareness of, and interest in employment with, the Civil Service among minority students. Any grants awarded shall be made pursuant to regulations to be established by the Secretary of State, which shall provide for a limit on the size of any specific grant and, regarding any grants to individuals, shall ensure that no grant recipient receives an amount of grants from one or more Federal programs which in the aggregate would exceed the cost of his, her, or their education and shall require satisfactory educational progress by grantees as a condition of eligibility for continued receipt of grant funds. (b) Donald M. Payne International Development Fellowship Program Undergraduate and graduate components of the Donald M. Payne International Development Fellowship Program are authorized and encouraged to conduct outreach to attract outstanding students with an interest in pursuing a Foreign Service career who represent diverse ethnic and socioeconomic backgrounds. (c) Review of past programs The Secretary of State and the Administrator of the United States Agency for International Development shall review past and present programs, including the Donald M. Payne International Development Fellowship Program, the Thomas R. Pickering Fellowship in International Affairs, and the Charles B. Rangel International Affairs Program, designed to increase minority representation in international affairs positions. 112. Expansion of Diplomats in Residence Program Not later than one year after the date of the enactment of this Act, the Secretary of State shall double the number of diplomats in the Diplomats in Residence Program as of the date of the enactment of this Act. 113. Use of gender neutral terms in employee evaluation forms The Secretary shall develop a pilot program to use gender neutral terms in employee evaluation forms. 114. Voluntary participation (a) In general Nothing in this title shall be construed so as to compel any Department personnel to participate in the collection of the data or divulge any personal information. Department employees shall be informed that their participation in the data collection contemplated by this title is voluntary. (b) Privacy protection Any data collected under this title shall be subject to the relevant privacy protection statutes and regulations applicable to Federal employees. 115. Sense of Congress on diversity, equity, and inclusion in the foreign affairs workforce It is the sense of Congress that the foreign affairs workforce, including the United States Agency for International Development, the Broadcasting Board of Governors, the Peace Corps, the Development Finance Corporation, and the Millennium Challenge Corporation, should take significant steps to improve diversity, equity, and inclusion in their workforce, especially as it relates to recruitment, retention, and promotion. 116. Employee assignment restrictions and preclusions (a) Sense of Congress It is the sense of Congress that the Department of State should expand the appeal process it makes available to employees related to assignment preclusions and restrictions. (b) Appeals of assignment restriction or preclusion Section 414(a) of the Department of State Authorities Act, Fiscal Year 2017 ( 22 U.S.C. 2734c(a) The right and process shall ensure that any employee subjected to an assignment restriction or preclusion shall have the same appeal rights as provided by the Department regarding denial or revocation of a security clearance, including the participation of the Chief Diversity and Inclusion Officer serving on the Security Appeals Panel as part of any appeals process. Any such appeal shall be resolved not later than 60 days after the appeal is filed. 117. Mentorship program (a) In general The Foreign Service Act of 1980 is amended by inserting after section 708 ( 22 U.S.C. 4028 709. Mentorship program (a) In general The Secretary of State shall establish in the Department of State a mentorship program to match interested participants who are— (1) entry-level members of the Foreign Service; and (2) mid-level members of the Foreign Service. (b) Duration Individuals participating in the mentorship program under this section should participate for a minimum of two years. (c) Employee Affinity Groups Members of Employee Affinity Groups shall be encouraged to participate in the mentorship program established under this section. (d) Service as a mentor in the mentorship program may be considered as satisfying the criteria described in section 603(b)(1). . (b) Clerical amendment The table of contents in section 2 of the Foreign Service Act of 1980 is amended by inserting after the item relating to section 708 the following new item: Sec. 709. Mentorship program. . (c) Mentorship program for civil service (1) In general The Secretary of State shall establish a mentorship program to match mentors with interested participants who are— (A) members of the civil service at the GS–12 level and below; and (B) members of the civil service from at the GS–13 level to the GS–15 level. (2) Duration Individuals participating in the civil service mentorship program under paragraph (1) should participate for a minimum of two years. (3) Inclusion of employee affinity groups Members of employee affinity groups shall be encouraged to participate in the civil service mentorship program established under paragraph (1). 118. Senior Executive Service Candidate Development Program (a) In general The Secretary of State shall offer the Senior Executive Service Candidate Development Program every three years to members of the civil service at the Department of State at the GS–14 and GS–15 levels. (b) Report The Secretary of State shall submit to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives a report detailing disaggregated demographic information of candidates referred by each bureau of the Department of State to interview for the Senior Executive Service, including de-identified demographic information, disaggregated by bureau, relating to the diversity of such candidates. II LOVE Act of 2021 201. Short title This title may be cited as the Lavender Offense Victim Exoneration Act of 2021 LOVE Act of 2021 202. Findings Congress makes the following findings: (1) During the so-called Lavender Scare (2) According to the Department of State’s Bureau of Diplomatic Security, Department of State employees were forced out of the Department on the grounds that their sexual orientation ostensibly made them vulnerable to blackmail and rendered them security risks. (3) In addition to those wrongfully terminated, many other patriotic Americans were prevented from joining the Department due to a screening process that was put in place to prevent the hiring of those who, according to the findings of the Bureau of Diplomatic Security, “seemed like they might be gay or lesbian”. (4) Congress bears some responsibility for these discriminatory actions as the Department’s actions were in part a response to congressional investigations into sex perversion of Federal employees moral perverts by Government Agencies rampant with homosexuals who were sympathetic to Communism and vulnerable to blackmail (5) Between 1950 and 1969, the Department of State was required to report on the number of homosexuals fired each year as part of their annual appeals before the Committees on Appropriations. (6) Although the worst effects of the Lavender Scare security risks (7) In 1994, Secretary of State Warren Christopher issued a prohibition against discrimination at the Department of State, including that based on sexual orientation. (8) In 1998, President William Jefferson Clinton signed Executive Order 13087 barring discrimination on the basis of sexual orientation. (9) On January 9, 2017, Secretary of State John Kerry issued a statement regarding the Lavender Scare On behalf of the Department, I apologize to those who were impacted by the practices of the past and reaffirm the Department's steadfast commitment to diversity and inclusion for all our employees, including members of the LGBTI community. 203. Director General review (a) Review The Director General of the Foreign Service and Director of the Bureau of Global Talent Management of the Department of State, in consultation with the Historian of the Department of State, shall review all employee terminations that occurred after January 1, 1950, to determine who was wrongfully terminated owing to their sexual orientation or gender identity, whether real or perceived. (b) Report Not later than 270 days after the date of the enactment of this Act, the Director General shall, consistent with applicable privacy regulations, compile the information required under subsection (a) in a publicly available report. The report shall include historical statements made by officials of the Department of State and Congress encouraging and implementing policies and tactics that led to the termination of employees due to their sexual orientation or gender identity. 204. Reports on reviews (a) Reviews The Secretary of State shall conduct reviews of the consistency and uniformity of the reviews conducted by the Director General under section 203. (b) Reports Not later than 270 days after the date of the enactment of this Act, and annually thereafter for 2 years, the Secretary shall submit to Congress a report on the reviews conducted under section 203. Each report shall include any comments or recommendations for continued actions. 205. Establishment of Reconciliation Board (a) Establishment The Secretary of State shall establish, within the Office of Civil Rights of the Department of State, an independent Reconciliation Board to review the reports released by the Director General of the Foreign Service and the Director of the Bureau of Global Talent Management under section 203(b). (b) Duties The Reconciliation Board shall— (1) consistent with applicable privacy regulations, contact all employees found to be fired due to the Lavender Scare (2) designate a point of contact at a senior level position within the Office of the Director General of the Foreign Service and the Director of the Bureau of Global Talent Management to receive oral testimony of any employees or family members of deceased employees mentioned in the report who personally experienced discrimination and termination because of the actual or perceived sexual orientation or gender identity in order that such testimony may serve as an official record of these discriminatory policies and their impact on the lives of United States citizens serving their Nation; and (3) provide an opportunity for any former employee not mentioned in the report to bring forth a grievance to the Board if they believe they were terminated due to their sexual orientation or gender identity. (c) Review of claims (1) In general The Board shall review each claim described in subsection (b) within 150 days of receiving the claim. Lack of paperwork may not be used as a basis for dismissing any claims. (2) Cooperation The Department of State shall be responsible for producing pertinent information regarding each claim to prove the employee was not wrongfully terminated. (d) Termination The Board shall terminate 5 years after the date of the enactment of this Act. 206. Issuance of apology (a) Finding Secretary of State Kerry delivered the following apology on January 9, 2017: Throughout my career, including as Secretary of State, I have stood strongly in support of the LGBTI community, recognizing that respect for human rights must include respect for all individuals. LGBTI employees serve as proud members of the State Department and valued colleagues dedicated to the service of our country. For the last several years, the Department has pressed for the families of LGBTI officers to have the same protections overseas as families of other officers. In 2015, to further promote LGBTI rights throughout the world, I appointed the first ever Special Envoy for the Human Rights of LGBTI Persons. In the past—as far back as the 1940s, but continuing for decades—the Department of State was among many public and private employers that discriminated against employees and job applicants on the basis of perceived sexual orientation, forcing some employees to resign or refusing to hire certain applicants in the first place. These actions were wrong then, just as they would be wrong today. On behalf of the Department, I apologize to those who were impacted by the practices of the past and reaffirm the Department's steadfast commitment to diversity and inclusion for all our employees, including members of the LGBTI community. (b) Congressional apology Congress hereby offers a formal apology for its responsibility in encouraging the Lavender Scare sex perversion of Federal employees moral perverts by Government Agencies 207. Establishment of permanent exhibit on the Lavender Scare (a) In general The Secretary of State, working with the current public-private partnership associated with the Department of State's United States Diplomacy Center, shall establish a permanent exhibit on the Lavender Scare (b) Specifications The exhibit— (1) shall be installed at the museum not later than one year after the date of enactment of this Act; (2) shall provide access to the reports compiled by the Director General of the Foreign Service and the Director of the Bureau of Global Talent Management under section 203(b); and (3) shall readily display material gathered from oral testimony received pursuant to section 205(b)(2) from employees or family members of deceased employees who were subject to these discriminatory policies during the Lavender Scare 208. Guidance on issuing visas To demonstrate the Department of State's commitment to ensuring fairness for current employees, not later than 100 days after the date of the enactment of this Act, the Secretary of State shall submit to Congress a report on countries not issuing spousal visas to the spouses of all Foreign Service personnel posted overseas due to their sexual orientation or gender identity. This report shall include any comments or recommendations for actions, including eliminating visa reciprocity with countries found to be instituting these practices against the spouses of Foreign Service personnel, that will lead to ensuring that all spouses of Foreign Service personnel receive spousal visas for the country their spouse is assigned, regardless of sexual orientation or gender identity. 209. Establishment of Advancement Board (a) Establishment The Secretary of State shall establish, within the Office of the Director General of the Department of State, a board comprised of senior-level officials to address the issues faced by LGBTQI+ Foreign Service employees and their families. (b) Hearing of testimony The Advancement Board shall hear testimony from any willing LGBTQI+ Foreign Service employees and their families regarding any discrimination they have faced due to their sexual orientation. (c) Report (1) In general Not later than 100 days after completing collection of testimony described under subsection (b), and annually thereafter for 5 years, the Advancement Board shall submit to Congress a report based on the testimony. (2) Content The report required under paragraph (1) shall include any comments or recommendations for continued actions to improve the Department of State to ensure that no employee or their family members experience discrimination due to their sexual orientation or gender identity. (3) Privacy The report required under paragraph (1) shall remain private and will only be accessible to Members of Congress, their appropriate staff, and members of the Advancement Board. III SHAPE Act of 2021 301. Short title; rule of construction (a) Short title This title may be cited as the State Harassment and Assault Prevention and Eradication Act of 2021 SHAPE Act of 2021 (b) Rule of construction Nothing in this title shall be construed to supersede or otherwise affect the discrimination protections or related processes provided under section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–16 302. Department of State policy and procedures on prevention and response to harassment, discrimination, sexual assault, and related retaliation (a) Comprehensive policy on prevention and response Not later than one year after the date of the enactment of this Act, the Secretary of State shall develop a comprehensive policy for the Department of State on the prevention of and response to harassment, discrimination, sexual assault, and related retaliation involving employees, contractors, and officials of the Department. (b) Elements of comprehensive policy The policy developed under subsection (a) may include elements as the Secretary deems necessary, but shall include, at a minimum, the following: (1) Prevention measures. (2) Education and training on prevention and response, as provided in this title. (3) Investigation of complaints. (4) Medical treatment of victims. (5) Mechanisms for confidential reporting of incidents by staff and service contractors, to include online and telephonic methods. (6) Victim advocacy, intervention, and counseling for covered employees of the Department who are victims of harassment, discrimination, sexual assault, and related retaliation that shall be made available, irrespective of where such covered employees are located, to assist and guide such victims. (7) Supportive services, including counseling and victim advocacy, that shall be made available irrespective of whether the victim identifies the accused individual. (8) Oversight and review of administrative and disciplinary actions, to include termination, for employees and officials of the Department of State. (9) Review by appropriate authority of administrative separation actions involving victims of harassment, discrimination, sexual assault, and related retaliation. (10) Uniform collection of data on the incidence of violations and on disciplinary actions taken in cases of harassment, discrimination, sexual assault, and related retaliation. (11) Procedures for disciplinary action in cases of harassment, discrimination, sexual assault, and related retaliation by employees or officials of the Department. (12) Workforce communications relating to harassment, discrimination, sexual assault, and related retaliation prevention, discipline, and reporting, to include printed and electronic materials made available in both English and the working languages at overseas posts, made available for all staff. (13) Acknowledgment of the challenges facing vulnerable groups including women, people of color, members of the LGBTQI+ community, entry-level officers, and locally employed staff. (14) Policies regarding the retention of documents relating to complaints, investigations, and disciplinary action. (c) Clarification of victim reporting and case resolution The Secretary of State shall review Department of State processes for victim reporting and resolution of complaints, as in effect on the date of enactment of this Act, to ensure that the Department’s procedures are clear and easily accessible to all covered employees. Such review shall be included in the report to be submitted in section 307. (d) Application of comprehensive policy to offices in the Department of State The Secretary of State shall ensure that the policy developed under subsection (a) is implemented uniformly by the bureaus and offices of the Department of State. (e) Coordination with other agencies The Department of State is directed to coordinate with other United States Government agencies which provide personnel to serve in overseas posts under Chief of Mission authority to develop interagency policies for addressing, reporting, and disciplining incidents of harassment, discrimination, sexual assault, or related retaliation occurring between covered employees and non-covered employees. 303. Reporting, documentation, and investigation procedures (a) Definitions In this title: (1) The term covered employee (A) any officer or employee (including any temporary, part-time, contract, intermittent employee, intern, fellow, or other unpaid staff; both American citizens and foreign nationals) performing work for or on behalf of the Department of State; (B) members of the Foreign Service (as that term is defined under section 103 of the Foreign Service Act of 1980 ( 22 U.S.C. 3903 (C) any individual who is engaged by an employer or entity as a contractor. (2) The term Office of Employee Advocacy (3) The term Office of Civil Rights (4) The term Global Talent Management (5) The term Diplomatic Security (6) The term harassment (A) Harassment is conduct based on race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), or national origin, regardless of whether it is direct or indirect, or verbal or nonverbal, that unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment. (B) Sexual harassment is conduct that takes place in a circumstance described in subparagraph (C) and that takes the form of— (i) a sexual advance; (ii) a request for sexual favors; or (iii) any other conduct of a sexual nature. (C) A circumstance described in this subparagraph is a situation in which— (i) submission to the conduct involved is made either explicitly or implicitly a term or condition of employment; (ii) submission to or rejection of such conduct is used as the basis for an employment decision affecting an individual’s employment; or (iii) such conduct unreasonably alters an individual's terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment. (D) In determining whether conduct constitutes harassment because the conduct unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, the following rules shall apply: (i) The determination shall be made on the basis of the record as a whole, according to the totality of the circumstances. A single incident may constitute workplace harassment. (ii) Incidents that may be workplace harassment shall be considered in the aggregate, with— (I) conduct of varying types (such as expressions of sex-based hostility, requests for sexual favors, and denial of employment opportunities due to sexual orientation) viewed in totality, rather than in isolation; and (II) conduct based on multiple protected characteristics (such as sex and race) viewed in totality, rather than in isolation. (iii) The factors specified in this clause are among the factors to be considered in determining whether conduct constitutes harassment and are not meant to be exhaustive. None of these factors shall be considered to be determinative in establishing whether conduct constitutes harassment. Factors to be used in determining whether conduct constitutes harassment include— (I) the frequency of the conduct; (II) the duration of the conduct; (III) the location where the conduct occurred; (IV) the number of individuals engaged in the conduct; (V) the nature of the conduct, which may include physical, verbal, pictorial, or visual conduct, and conduct that occurs in person or is transmitted, such as electronically; (VI) whether the conduct is threatening; (VII) any power differential between the alleged harasser and the person allegedly harassed; (VIII) any use of epithets, slurs, or other conduct that is humiliating or degrading; or (IX) whether the conduct reflects stereotypes about individuals in the protected class involved. (iv) In determining whether conduct constitutes harassment, conduct may be harassment regardless of whether, for example— (I) the complaining party is not the individual being harassed; (II) the complaining party acquiesced or otherwise submitted to, or participated in, the conduct; (III) the conduct is also experienced by others outside the protected class involved; (IV) the complaining party was able to continue carrying out duties and responsibilities of the party’s job despite the conduct; (V) the conduct did not cause a tangible injury or psychological injury; or (VI) the conduct occurred outside of the workplace. (b) Establishment of Office of Employee Advocacy (1) In general Not later than one year after the date of the enactment of this Act, the Secretary shall establish a new office to be the Office of Employee Advocacy, to be headed by a full-time Chief Advocate. Personnel of the Office shall be appointed without regard to political affiliation and solely on the basis of fitness to perform the duties of the position. The Chief Advocate— (A) shall report directly to the Under Secretary for Management; and (B) may not have any other duties in the Department of State that are not reasonably connected to employee advocacy. (2) Duties of Office of Employee Advocacy The duties of the Office of Employee Advocacy are as follows: (A) Receive complaints from any Department of State covered employee or eligible family member (EFM), as defined in the Foreign Affairs Manual, of harassment, discrimination, sexual assault, and related retaliation. (B) Counsel victims of their rights, procedures for seeking relief, and available resources, both locally and at headquarters, under this title, and other employment laws enforced by the Equal Employment Opportunity Commission including the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008. (C) Provide confidential support and information, including referrals to medical and mental health care. (D) Refer complaints to the appropriate offices in the Department of State promptly including— (i) the Office of Civil Rights in instances of harassment, discrimination, or related retaliation; and (ii) the Bureau of Diplomatic Security in instances of sexual assault or other complaints with security clearance implications. (E) For the purposes of receiving complaints, operate secure, confidential means of reporting 24 hours a day, including an electronic reporting system and an internationally accessible hotline. (F) Employ Employee Advocates to carry out the duties of the Office and assist those filing or considering filing a complaint. (G) If a victim chooses to file a complaint, such Advocates shall assist the victim in providing information and support until an investigation is completed, and a final agency decision has been made. (H) Provide assistance to complainants without undue pressure from Department of State leadership. (I) Provide routine training to attorneys and advocates on harassment, discrimination, sexual assault, and related retaliation policies and best practices for victim care. (J) Track the stage of reporting, investigation, or disciplinary process a complaint is in. (K) Conduct climate surveys, as specified in section 306. (3) Electronic reporting system The system established under this subsection shall— (A) include an electronic reporting system under which a complaint may be filed, in addition to a non-electronic system; (B) maintain an electronic record of the date and time at which any complaint is so filed; (C) ensure the security and confidentiality of records; and (D) allow the submission of confidential reports that will not prompt individualized investigations, but shall be monitored by the Office to identify trends and determine whether investigations should be undertaken by the Office of Civil Rights. (4) International hotline The system established under this subsection shall— (A) include an international toll-free number accessible by all covered employees and EFM both domestic and overseas; (B) be staffed 24 hours day, 7 days a week by Office of Employee Advocacy staff during normal working hours, and by a rotating OEA duty officer or contractor during non-working hours; (C) be entered by OEA staff into the electronic reporting system so that all reported cases are captured in the system; and (D) to the extent practicable, ensure access to the hotline for non-English speakers. (5) Overseas post reporting (A) Each overseas post shall notify employees that they may use the electronic reporting system or international hotline as established in paragraphs (3) and (4), or report in person to the Deputy Chief of Mission or other employees designated as Office of Employee Advocacy Liaisons. (B) The OEA Liaisons may include (but are not limited to) the Equal Employment Opportunity Counselor, the Community Liaison Officer, the Locally Employed Staff (LES) Equal Employment Opportunity Officer Liaison, or other staff to be selected by the Deputy Chief of Mission. (C) OEA Liaisons should be provided with educational materials to distribute as well as training on the resources and services provided by the Office of Employee Advocacy, and on the various means of communications that employees can use to reach out to OEA Employee Advocates. (D) The Chief of Mission shall not be notified of the identity of the complainant without the express permission of the complainant. (6) Application This section shall not be construed to preclude, limit, or otherwise effect the rights of a covered employee to file a complaint, based on the alleged harassment, discrimination, sexual assault, and related retaliation that gave rise to the complaint under this subsection, under any other provision of law. This section shall not be construed to preclude, limit, or otherwise affect the rights of a covered employee to file a complaint with another office. (7) Consultation; technical assistance In developing the Office of Employee Advocacy, the Department of State shall receive technical assistance and consultation from organizations and other professionals with expertise in victim-centered, trauma-informed care, individuals who have experienced harassment, discrimination, or retaliation at the Department of State, the Equal Employment Opportunity Commission, and other relevant executive agencies. (c) Duties of Office of Civil Rights (1) In general Upon the referral of a complaint from the Office of Employee Advocacy to the Office of Civil Rights, the Office of Civil Rights shall— (A) take steps for the initial intake and recording of the complaint, including providing the covered employee who filed the complaint with all relevant information with respect to the rights of the covered employee under this title and other relevant law; and (B) notify the accused covered employee— (i) of the complaint and the right of that covered employee to participate in any mediation, hearing, or civil action under this section and other applicable law with respect to the complaint; (ii) that retention of documents and evidence is crucial, and any unauthorized destruction of documents and evidence may result in additional investigations and potential punishment; and (iii) that there is a prohibition on retaliation against the covered employee who filed the complaint and may be investigation and discipline for retaliation. (2) Investigation of complaints (A) Investigation The Office of Civil Rights shall investigate all complaints in a prompt, thorough, and impartial manner. The Department shall update the Foreign Affairs Manual to enable Office of Civil Rights investigators to travel to the foreign and domestic sites of received complaints in which widespread or pervasive sexual harassment is reported. The Under Secretary for Management shall authorize sufficient funding for Office of Civil Rights attorney advisors to conduct this travel as necessary. (B) Investigation of Chief of Mission If the Chief of Mission at an overseas post is named as the alleged perpetrator in a complaint, the Office of Civil Rights must notify the Secretary of State. The Office of Civil Rights must prioritize the investigation of such cases. (C) Report Not later than 120 days after a complaint is filed under this section and transmitted to the Office of Civil Rights, the Office of Civil Rights shall conclude the investigation regarding that complaint. On the date the investigation is so concluded, the Office of Civil Rights shall transmit a written report on the results of the investigation to— (i) the covered employee who filed the complaint; (ii) the accused employee and his or her employing office; and (iii) Global Talent Management. (D) Extension The Office of Civil Rights may extend the 120 day deadline in subparagraph (A) if the Office of Civil Rights determines that additional time is necessary to conclude the investigation. The Office of Civil Rights shall notify the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives of the extension and provide justification for each extension of 30 days. (E) Transmission to Global Talent Management After the Office of Civil Rights concludes the investigation, it shall transmit a report providing a summary of the facts with all investigatory material including transcripts of interviews and evidence to Global Talent Management for consideration of disciplinary action. (F) Transmission to Secretary of State Global Talent Management shall transmit the investigatory report and any resulting disciplinary actions to the Secretary of State. Reports shall be transmitted to the Secretary no less than quarterly. (G) Staffing If the number of complaints received by the Office of Civil Rights exceeds its capacity to respond within 120 days to the majority of cases, the Director of the Office of Civil Rights and Under Secretary for Management shall authorize the hiring of additional attorney advisors or other appropriate staff on a temporary or permanent basis. (H) Record retention (i) Record retention Global Talent Management shall keep a record of investigations, hearings, and other proceedings conducted related to complaints of harassment, discrimination, sexual assault, or related retaliation. (ii) Personnel files Subsequent disciplinary action taken by Global Talent Management in response to the investigation and any EEO settlements or judgements of harassment, discrimination, sexual assault, or related retaliation shall be documented and kept on file and accessible to the Office of Civil Rights, Diplomatic Security, security clearance investigators, and Federal law enforcement officials. Global Talent Management shall also ensure that a standalone document containing a description of the offense and disciplinary action taken, redacted of any personally identifiable information, shall be provided to and reviewed by all subsequent Department Foreign Service and Civil Service Selection and promotion Boards, to include a permanent notation in the employee’s file, including annual performance assessments or employee evaluations. (d) Disciplinary action (1) Suspension Section 610(c)(1) of the Foreign Service Act of 1980 ( 22 U.S.C. 4010(c)(1) (1) In order to promote the efficiency of the Service, the Secretary may suspend a member of the Foreign Service without pay when the member’s security clearance is suspended or when there is reasonable cause to believe that the member has committed a crime for which a sentence of imprisonment may be imposed or if the member has a history of harassment or Equal Employment Opportunity violations documented and substantiated by Global Talent Management. . (2) Separation for cause Section 610(a)(1) of the Foreign Service Act of 1980 ( 22 U.S.C. 4010(a)(1) (1) The Secretary may decide to separate any member from the Service for such cause as will promote the efficiency of the service, to include findings by Diplomatic Security that the member has engaged in criminal misconduct, to include murder, rape, or other sexual assault. . (3) Update to manual Global Talent Management shall update the Foreign Affairs Manual’s Grounds for Disciplinary Action List of Disciplinary Offenses and Penalties (e) Penalties Consistent with other civil service and Foreign Service laws and regulations, the Secretary of State shall develop a policy of applying penalties to any covered employee who is determined to have sexual assault, harassment, discrimination, or related retaliation complaints against him or her substantiated. Such penalties shall include additional mandatory training, suspension with or without pay, demotion in rank, or removal for a period of the Secretary’s choosing. (f) Additional documentation Global Talent Management shall ensure, to the extent practicable and appropriate, that any third country national or any national of a host country that was assigned to work at a diplomatic facility or employee residence who harasses, discriminates against, sexually assaults, or retaliates against a covered employee is— (1) documented in an appropriate site history file and in a global tracking and recording system, to be coordinated by Global Talent Management; (2) taken into account with respect to determinations regarding placements of third country nationals or any national of a host country at such post and the provision of any funds or other benefit by the Department; and (3) any covered employee who filed the complaint may opt out of having personally identifiable information included in such a report. (g) Case review (1) In general The Office of Civil Rights and Diplomatic Security shall conduct case reviews of a statistically significant number of cases on a quarterly basis to determine if proper procedures were followed in accordance with the harassment, discrimination, sexual assault, and related retaliation protocols and guidelines provided under this title and other applicable laws. (2) Reports to Congress An analysis of such case reviews shall be annually reported to the Committee on Homeland Security and Governmental Affairs and the Committee on Foreign Relations of the Senate and the Committee on Oversight and Reform and the Committee on Foreign Affairs of the House of Representatives in the report required under section 307(a). 304. Sexual assault protocol and victim care (a) Establishment (1) In general In addition to the other requirements of this title, not later than one year after the date of the enactment of this Act, the Secretary of State shall develop and implement comprehensive sexual assault protocol and guidelines that conform to best practices in the sexual assault field and are applicable to all posts at which covered employees serve. (2) Consultation In developing the protocols and guidelines under paragraph (1), the Secretary shall consult with and incorporate, as appropriate, the recommendations and views of experts in the sexual assault prevention and response field, victims, victim advocates, and current or former covered employees who have reported sexual assault or related retaliation. (b) Elements The protocols and guidelines under subsection (a)(1) shall include the following services with respect to a covered employee who has made an allegation of sexual assault: (1) Protection of such employee’s confidentiality. (2) Provision of a victim’s advocate, as described in subsection (e), who is able to refer the victim to supportive services and resources and explain the victim’s rights at no cost to the victim. (3) Provision, within 72 hours of a report, of a sexual assault forensic evidence kit to such employee, upon request. (4) Provision of emergency health care to such employee, including, to the greatest extent practicable, a choice of medical providers and a mechanism for such employee to evaluate such provider. (5) Provision of comprehensive health services, to the greatest extent practicable, to include physical and mental health services. (6) Nothing in this subsection may be construed to authorize the furnishing of any medical benefit that the Secretary of State is not otherwise authorized to reimburse for covered employees who receive treatment for injury or disease proximately caused by their service in the Department of State. (c) Notification Diplomatic Security Office of Special Investigations shall be notified immediately of any reported sexual assault against any covered employee. For the purposes of maintaining comprehensive records of all incidents of sexual misconduct at the Department of State, if Diplomatic Security receives the initial report of a sexual assault involving a covered employee, Diplomatic Security shall notify the Office of Employee Advocacy. (d) Sexual Assault Prevention and Response Victim Advocates (1) In general The Secretary of State shall ensure the Victims’ Resource Advocacy Program, as defined in the Foreign Assistance Manual, includes, in the competitive service in Diplomatic Security within the Department of State, staff formally trained to provide victim-centered, trauma-informed care and advocacy for victims of sexual assault. (In this subsection referred to as the Advocates (2) Duties The Advocates shall— (A) receive continuous training in victim advocacy; (B) assist the victim in navigating those processes required to obtain care and services needed; and (C) offer trauma-informed care to victims, referrals, and ongoing nonclinical support. (3) Limitations The Advocates shall not be— (A) responsible for providing mental health services or to act as an investigator; or (B) placed under the Department’s medical offices or be responsible for providing physical health services. (4) Placement The Secretary shall ensure that Advocates are physically present at Department headquarters, major domestic and international facilities and embassies, as determined by the Department and with logistical consideration to allow for expedient travel to Department facilities without Advocates. (e) Overseas post (1) In general The Department shall serve as the lead agency for reporting and responding to harassment, discrimination, sexual assault, and related retaliation within an Embassy, Consulate, or other overseas location (in this subsection referred to as an overseas post (2) Referral The Department shall refer incident reporting to the appropriate agency for any employees working under Chief of Mission authority if the accused is not a covered employee of the Department of State. (3) Chief of Mission authority If a credible allegation of harassment, discrimination, sexual assault, or related retaliation is made by a covered employee at an overseas post against a non-covered employee serving under Chief of Mission authority, including against an employee of another executive agency or non-executive branch agencies operating under memoranda of understanding, the Chief of Mission may use all authorities at their disposal to include revoking the non-covered employee’s permission to be in the country on official business. (4) Diplomatic Security Training Diplomatic Security shall ensure that individuals serving as regional security officers in overseas posts are trained in victim-centered, trauma-informed care and sexual assault investigation techniques. (f) SANE program training The Bureau of Medical Services within the Department of State shall ensure that to the greatest extent practicable, Sexual Assault Nurse Examiner trained staff shall be placed at Department headquarters and major domestic and international facilities and embassies. 305. Rights of employees harassed, discriminated against, retaliated against, or sexually assaulted (a) Right to legal counsel Any covered employee filing a complaint of harassment, discrimination, sexual assault, or related retaliation may have access to legal counsel as specified in section 303(b). (b) Availability of mediation during harassment investigations (1) Availability of mediation during investigation During the complaint intake of a covered employee’s complaint under section 303— (A) the Office of Civil Rights may inform the covered employee of the availability of mediation; (B) the covered employee who filed the complaint and the accused covered employee may jointly file a request for mediation with the Office of Civil Rights; and (C) the covered employee who filed the complaint and the accused employee may request the presence of an attorney or a victim advocate in the mediation. (2) Requiring parties to be separated during mediation at request of employee At the request of either party, the parties shall be separated during any mediation proceeding under this subsection. (c) Availability of alternate work assignment or paid leave of absence during pendency of procedures (1) Options for employees (A) Emergency curtailment of overseas assignment At the request of a covered employee who files a complaint of harassment, discrimination, sexual assault, or related retaliation, an employee may request emergency curtailment of his or her tour of duty at no penalty to their career progress and shall be reassigned. Such requests for emergency curtailment shall be approved by the Secretary or their designee, not post management, within 10 days. The Department shall develop a process by which covered employees may request this option in a manner which does not inadvertently result in retaliation against the employee. (B) Alternate work assignment At the request of a covered employee who files a complaint, during the pendency of any of the procedures available under this title for consideration of the violation, the employing office shall permit the covered employee to carry out the employee’s responsibilities from an alternate location where such relocation would have the effect of materially reducing interactions between the covered employee and any person alleged to have committed the violation, instead of from a location of the employing office. (C) Exception for work assignments required to be carried out onsite If, in the determination of the covered employee’s employing office, a covered employee who makes a request under this subsection cannot carry out the employee’s responsibilities from an alternate location or such relocation would not have the effect described in subparagraph (B), the employing office may during the pendency of the procedures described in subparagraph (B)— (i) reassign the covered employee; (ii) make another workplace adjustment that would have the effect of reducing interactions between the covered employee and any person alleged to have committed the violation described in subparagraph (B); or (iii) grant a paid leave of absence. (D) Ensuring no retaliation An employing office may not grant a covered employee’s request under this subsection in a manner which would constitute retaliation in violation of any provision of law, including any provision of title 5, United States Code. (E) No impact on annual or personal leave In granting leave for a paid leave of absence under this section, an employing office shall not require the covered employee to substitute, for that leave, any of the accrued paid annual leave of the covered employee. (F) Use of duty hours An employee may use up to 16 hours of duty hours to prepare for the investigation and resolution of the applicable complaint. (2) Exception for arrangements subject to collective bargaining agreements Paragraph (1) does not apply to the extent that it is inconsistent with the terms and conditions of any collective bargaining agreement which is in effect with respect to an employing office. (3) Protections A request under paragraph (1) may not be granted or carried out in a retaliatory manner, including retaliation for whistleblowing in violation of the provisions of title 5, United States Code, or any other provision of law. (d) Exit interviews Departing employees may request the opportunity to be interviewed in person with Global Talent Management or its designee to discuss the circumstances of their departure and should be asked specifically about the prevalence of and incidents of harassment, discrimination, sexual assault, and related retaliation. 306. Provision of climate surveys (a) Definitions In this section— (1) the term bureaus and offices of the Department of State 22 U.S.C. 3902 (2) the terms Department of State Department (3) the terms employees and officials of the Department of State 22 U.S.C. 3903 (b) Climate surveys of employees of the Department of State (1) Requirement to conduct surveys Not later than 180 days after the date of the enactment of this Act and every 2 years thereafter, the Office of Employee Advocacy within the Department of State shall conduct a survey of covered employees of the Department of State regarding harassment, discrimination, sexual assault, and related retaliation in Department of State employment, including a survey of the following: (A) The prevalence of perceived violations by employees and officials of the Department of State. (B) The extent to which such violations arise from harassment or discrimination, including on the basis of sex, race, religion, national origin, disability, genetic information, and other demographic characteristics. (C) The presence of a hostile work environment in the agency. (D) Whether employees are aware of their rights and Department processes and procedures, and able to effectively exercise the rights and protections provided under this title and other applicable laws, including the effectiveness of the procedures applicable under this title and other applicable laws for investigating and holding accountable violations. (E) The extent to which employees feel comfortable making use of the available reporting and resolution mechanisms. (F) For employees who have used the reporting and resolution mechanisms, the extent to which the process was accessible and fair. (2) Special requirements (A) In general In each survey conducted under this section, the Office of Employee Advocacy shall survey respondents regarding the prevalence of and attitudes regarding harassment, discrimination, sexual assault, and related retaliation in Department of State employment. (B) Compilation of information by various categories The Office of Employee Advocacy shall endeavor to compile information from the survey on the basis of various categories of demographic characteristics, including gender, race and ethnicity, and age, so that the survey will report on the rates of incidents of harassment, discrimination, sexual assault, and related retaliation affecting each such demographic category. The provision of such demographic information shall be voluntary. (C) Consultation; technical assistance The Office of Employee Advocacy shall develop the survey in consultation with offices of the executive branch which currently conduct similar surveys of their employees, including the Sexual Assault Prevention and Response Office of the Department of Defense, the Office of Violence Against Women of the Department of Justice, and the Merit Systems Protection Board. Additionally, in developing the survey, the Office of Employee Advocacy shall enter into agreement to receive technical assistance from Workplaces Respond to Domestic and Sexual Violence: A National Resource Center (also known as Workplaces Respond 34 U.S.C. 12501 (D) Confidentiality The underlying data of the climate surveys shall only be available to the Office of Employee Advocacy. (3) Methodology The Office of Employee Advocacy shall conduct each survey under this section in accordance with the following: (A) All responses to all portions of the survey shall be anonymous and confidential, and each respondent shall be told throughout the survey that all responses shall be anonymous and confidential. (B) The Office of Employee Advocacy shall design the survey so that it will take no more than 15 minutes to complete, and so that it may be taken online through the use of both stationary communication devices (such as desktop computers) and portable communication devices (such as cell phones and tablets). (C) The Office of Employee Advocacy shall include in the survey a list of resources available to respondents who wish to get more information about harassment, discrimination, sexual assault, or related retaliation in Department of State employment, including the services the Department of State provides to individuals who allege violations. 307. Reports to Congress, the Department, and the public (a) Annual report (1) In general Not later than one year after the date of enactment, and annually thereafter, the Secretary of State shall submit to the Committee on Foreign Relations and Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Foreign Affairs and Committee on Oversight and Reform of the House of Representatives a report on allegations of harassment, discrimination, sexual assault, and related retaliation involving employees and officials of the Department of State during the preceding year. (2) Availability Any report submitted under paragraph (1) shall be made available to— (A) Department personnel on internal websites and town hall meetings; and (B) to the general public on the Department’s public website. (b) Contents Each report under subsection (a)(1) shall contain the following: (1) The number of instances of harassment, discrimination, sexual assault, and related retaliation against employees and officials of the Department of State, and the number of instances of harassment, discrimination, sexual assault, and related retaliation by employees and officials of the Department, that were reported to the Department during the year covered by such report, and the number of the cases so reported that were substantiated. The types of harassment and discrimination shall be disaggregated by category. (2) A summary of types of charges of, and the disciplinary action taken, in each such resolved case, with identifying information of both the accused and complainant removed. (3) The policies, procedures, and processes implemented by the Secretary of State during the year covered by each such report in response to incidents of harassment, discrimination, sexual assault, and related retaliation involving employees and officials of the Department of State. (4) A plan for the actions that are to be taken in the year following the year covered by each such report on the prevention of and response to harassment, discrimination, sexual assault, and related retaliation involving employees and officials of the Department of State. (5) Details on the average caseload of Department investigators handling harassment, discrimination, sexual assault, and related retaliation, to include the number of staff working, the average and median time to investigate cases, and the number of extensions requested by the Office of Civil Rights to conduct investigations past the 120-day timeframe. (6) Details on the average caseload of Office of Employee Advocacy Employee Advocates and staff attorneys. (7) Details on cases of bystander intervention where a bystander assisted to counter or report incidents of harassment, discrimination, sexual assault, and related retaliation. (8) Detailed findings and underlying data of the climate surveys required in section 306, including an independent assessment by the Chief Advocate, not subject to the Secretary of State, of the current climate at the Department of State with regard to harassment, discrimination, sexual assault, and related retaliation. (9) Frequency with which those alleging harassment, discrimination, sexual assault, or related retaliation took advantage of supportive services, such as medical care or counseling. (c) Assessment Each report under paragraph (1) for each year beginning with 2022 shall also include an assessment by the Secretary of State of the implementation during the preceding fiscal year of the policies and procedures under section 2(a) of the Department of State on the prevention of and response to harassment, discrimination, sexual assault, and related retaliation involving employees and officials of the Department in order to determine the effectiveness of such policies and procedures during such fiscal year in providing an appropriate response to such harassment, discrimination, sexual assault, and related retaliation. (d) Assessment of additional authorities needed Not later than one year after the date of enactment of this Act, the Secretary of State shall submit to Congress a proposal for such changes and legislation as the Secretary considers necessary to enhance the capability of the Department of State to address matters relating to harassment, discrimination, sexual assault, and related retaliation involving covered employees. The report shall include recommendations for additional appropriations, as appropriate, to implement these changes. 308. Required training for Department personnel (a) Whistleblower protection training Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide to each covered employee of the Department of State training regarding whistleblower disclosures and protections. Such training shall include instruction and an explanation of the rights of such covered employee regarding whistleblowing, including— (1) each method established by law in which a covered employee may file a whistleblower disclosure; (2) the right of the covered employee to petition Congress regarding a whistleblower disclosure; and (3) the fact that the covered employee may not be prosecuted or retaliated against for disclosing information to Congress, the Inspector General, or any other investigatory agency in instances where such disclosure is permitted by law, rule, or regulation. (b) Bystander intervention training Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide to each covered employee of the Department of State training regarding harassment, discrimination, sexual assault, and related retaliation, including— (1) describing what such conduct entails; (2) identifying the types of conduct that serve as grounds to report or intervene; (3) training on relevant laws that may require an officer or employee to report or intervene in instances of such conduct; (4) reporting and intervening protocols and strategies for such conduct; (5) specific training for covered employees who process allegations of such conduct against other covered employees; and (6) such training must be developed based on consultation with organizations with expertise in trauma-informed care, effective strategies in prevention and response, and healthy workplace culture. (c) Supervisor training Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide and institute mandatory training on responding to complaints of harassment, discrimination, sexual assault, and related retaliation to each covered employee of the Department of State who is a supervisor. Such training must be developed based on consultation with organizations with expertise in trauma-informed care, effective strategies in prevention and response, and healthy workplace culture. (d) Executive leadership training Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide and institute mandatory training for each covered employee serving in an executive leadership role, including Chiefs of Mission. The training shall emphasize the statutory requirements for reporting and responding to complaints of harassment, discrimination, sexual assault, and related retaliation, including— (1) understanding the damage and harm harassment, discrimination, sexual assault, and related retaliation do to the employee and the organization; (2) senior leadership’s responsibility and role to create and foster a work environment free from harassment, discrimination, sexual assault, and related retaliation; and (3) such training must be developed based on consultation with organizations with expertise in trauma-informed care, effective strategies in prevention and response, and healthy workplace culture. (e) Policies and procedures Not later than one year after the enactment of this Act, and annually thereafter, the Office of Civil Rights shall provide to each covered employee of the Department of State training on the policies and procedures on harassment, discrimination, sexual assault, and related retaliation applicable by operation of section 302. Employees should receive this training within 30 days of entering on duty. Such training must be developed based on consultation with organizations with expertise in trauma-informed care, effective strategies in prevention and response, and healthy workplace culture. (f) Manager’s Toolkit The Secretary of State shall establish resources, to be referred to as a Manager’s Toolkit (g) Equal employment opportunity counselor training The Office of Civil Rights shall revise the 32 hours of training provided to Equal Employment Opportunity Counselors to include the resources and responsibilities of the Office of Employee Advocacy, as well as the various means of communication available to employees to relay their complaints to OEA. 309. Hiring, vetting, and promotion (a) In general The Secretary of State, in consultation with relevant agencies, shall ensure that questions relating to harassment, discrimination, sexual assault, and related retaliation complaints are included in any background investigation with respect to a security clearance or access determination and vetting of any covered employee. (b) Requirements for appointment Consistent with the civil service and Foreign Service laws and regulations, the Secretary of State shall ensure that a background investigation on any potential sexual assault is conducted before an individual is appointed to a position within the Department. (c) Requirements for promotion into the senior foreign service or senior executive service The Secretary of State shall ensure that potential candidates are vetted for their history of promoting a work environment free from harassment and discrimination. Promotion boards shall take into account whether candidates have a history of offenses that occurred under their leadership, regardless of whether the candidate was named an offender or not. (d) Promotion policy objectives Consistent with the civil service and Foreign Service laws and regulations, the Secretary of State shall ensure that promotion precepts and selection panels reward officers who have volunteered to serve as Equal Employment Opportunity Counselors, and that documentation of the precepts emphasize that counseling experience is to be viewed as valuable experience preparing officers to perform in senior-level positions with respect to the leadership, management, and interpersonal skills precepts. 310. Nondisclosure and nondisparagement agreements (a) Definitions In this section— (1) Employee The term employee 42 U.S.C. 2000e–16 (2) Employer The term employer 42 U.S.C. 2000e–16 (3) Nondisclosure clause The term nondisclosure clause (4) Nondisparagement clause The term nondisparagement clause (b) Unlawful practices (1) In general It shall be an unlawful practice for an employer to enter into a contract or agreement with an employee, as a condition of employment, promotion, compensation, benefits, or change in employment status, or as a term, condition, or privilege of employment, if that contract or agreement contains a nondisparagement clause or nondisclosure clause that covers prohibited discrimination or harassment in employment or contracting, or retaliation for reporting, resisting, opposing, or assisting in the investigation of such discrimination or harassment. (2) Enforcement Notwithstanding any other provision of law, it shall be an unlawful practice for an employer to enforce or attempt to enforce a nondisclosure or nondisparagement clause that covers prohibited discrimination or harassment in employment, or retaliation for reporting, resisting, opposing, or assisting in the investigation of such discrimination or harassment. An employer’s enforcement or attempts to enforce such a nondisclosure agreement against an employee shall be determined to be prohibited retaliation. (3) Settlement or separation agreements (A) In general The provisions of paragraphs (1) and (2) do not apply to a nondisparagement clause or nondisclosure clause contained in a settlement agreement or separation agreement that resolves legal claims or disputes if— (i) such legal claims accrued or such disputes arose before the settlement agreement or separation agreement was executed; (ii) the clause involved is mutually agreed upon by and mutually benefits both— (I) the employer, as the case may be; and (II) the employee; (iii) the employee’s agreement to such clause is knowing and voluntary, as described in subparagraph (C); and (iv) the settlement agreement or separation agreement expressly states that the agreement involved does not prohibit, prevent, or otherwise restrict a worker from— (I) reporting the allegations underlying those settled claims to the Equal Employment Opportunity Commission, any other Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination or harassment in employment, as the case may be, or law enforcement; (II) testifying at, assisting, or participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission, any other Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination or harassment in employment, as the case may be, or law enforcement; or (III) testifying in a hearing or trial or complying with a request for discovery in relation to civil litigation. (B) Prohibition on sole benefit For purposes of this paragraph, it shall be an unlawful practice for an employer to unilaterally include a nondisparagement clause or nondisclosure clause that solely benefits the employer in a separation or settlement agreement. (C) Knowing and voluntary agreement For purposes of this paragraph, agreement to a nondisparagement clause or nondisclosure clause may not be considered knowing and voluntary unless at a minimum— (i) the nondisparagement clause or nondisclosure clause is written in a manner designed to ensure that the employee understands the content of the clause involved; (ii) the nondisparagement clause or nondisclosure clause is included only in exchange for consideration of value provided to the employee, in addition to anything of value to which the employee is already entitled; (iii) the nondisparagement clause or nondisclosure clause does not apply to any rights or claims that arise after the date the settlement or separation agreement is executed; (iv) the employee is advised in writing to consult with an attorney prior to agreeing to such an agreement that includes a nondisparagement clause or nondisclosure clause; (v) the employee is given a period of at least 21 days to consider any proposal for a settlement or separation agreement that includes a nondisparagement clause or nondisclosure clause; and (vi) the settlement or separation agreement provides that for a period of at least 7 days following the execution of such agreement the employee may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired. (D) Burden of proof In any dispute that may arise over whether any of the requirements of subparagraph (A) have been met, the party asserting the validity of an agreement shall have the burden of proving that the requirements of subparagraph (A) have been met. (E) Participation in investigations or proceedings No nondisparagement clause or nondisclosure clause may affect the ability of an employee to testify at, assist, or participate in an investigation or proceeding conducted by the Equal Employment Opportunity Commission, any Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination in employment, as the case may be, or a law enforcement agency. (F) Prohibition on damages Under no circumstances shall an employee be required to pay damages for breach of a nondisparagement clause or nondisclosure clause permitted by this paragraph in excess of an amount equal to the consideration of value provided to the worker in exchange for the workers’ agreement to the nondisparagement clause or nondisclosure clause. (c) Enforcement (1) Enforcement powers With respect to the administration and enforcement of this section in the case of a claim alleged by an employee against an employer for a violation of this section— (A) the Commission shall have the same powers as the Commission has to administer and enforce title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq. (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 et seq. (C) the Board (as defined in section 101(a) of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301(a) 2 U.S.C. 1301 et seq. 2 U.S.C. 1311(a)(1) (D) the President, the Commission, and the Merit Systems Protection Board shall have the same powers as the President, the Commission, and the Board, respectively, to administer and enforce chapter 5 (E) 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 et seq. (ii) the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 et seq. 2 U.S.C. 1311(a)(1) (iii) chapter 5 (2) Procedures and remedies The procedures and remedies applicable to a claim alleged by an employee against the employer 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 et seq. (B) 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) (C) 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 an employee of the employer for a violation of such section. (d) Right To report reserved Notwithstanding signing (before, on, or after the effective date of this Act) any nondisparagement clause or nondisclosure clause, an employee retains— (1) any right that person would otherwise have had to report a concern about harassment, including sexual harassment, in employment 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 other State or local agency, or a law enforcement agency; and (2) any right that person would otherwise have had to bring an action in a court of the United States. (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 workers of the Library of Congress. (3) Board The Board referred to in subsection (c)(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 (4) President The President shall have authority to issue regulations to carry out this section with respect to employees described in subsection (c)(1)(E). (f) Remedies Notwithstanding any other provision of this title, in an action or administrative proceeding against the United States 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 et seq. (1) punitive damages are not available; and (2) compensatory damages are available to the extent specified in section 1977A(b) of the Revised Statutes ( 42 U.S.C. 1981a(b) 311. Sense of Congress on sexual harassment and assault prevention and eradication in the foreign affairs workforce It is the sense of Congress that the foreign affairs workforce, including the United States Agency for International Development, the Broadcasting Board of Governors, the Peace Corps, the Development Finance Corporation, and the Millennium Challenge Corporation, should take significant steps to prevent and eradicate sexual harassment and assault.

Summary: Department of State Inclusivity Act of 2021 This bill establishes measures at the State Department to promote diversity and to prevent and respond to harassment, discrimination, sexual assault, and retaliation. The bill requires the State Department to develop a comprehensive policy for responding to harassment, discrimination, sexual assault, and retaliation; expand anti-harassment, antidiscrimination, implicit bias, and whistleblower training; establish the Office of Employee Advocacy; survey employees regarding harassment, discrimination, sexual, assault, retaliation, and issues affecting employee retention and diversity; report on the diversity of its workforce; develop a pilot program to use gender-neutral terms in evaluation forms; investigate and report wrongful terminations based on sexual orientation; establish a board to address issues faced by LGBTI+ Foreign Service employees and their families; report on countries that refuse to issue spousal visas for Foreign Service employee spouses due to sexual orientation and recommend how to address this issue; establish a permanent exhibit on the so-called Lavender Scare, which involved the wrongful dismissal of at least 1,000 people from the State Department for alleged homosexuality in the 1950s and 1960s; and make other changes related to anti-harassment, antidiscrimination, diversity, and recruitment. The bill also establishes the Office of the Chief Diversity and Inclusion Officer at the State Department; offers a formal apology from Congress for encouraging the Lavender Scare; and prohibits the use by federal employers of nondisclosure and non-disparagement provisions that cover prohibited discrimination, harassment, or related retaliation.