I 
112TH CONGRESS 
1ST SESSION H. R. 1397 
To prohibit employment discrimination on the basis of sexual orientation 
or gender identity. 
IN THE HOUSE OF REPRESENTATIVES 
APRIL 6, 2011 
Mr. FRANK of Massachusetts (for himself, Ms. ROS-LEHTINEN, Mr. GEORGE 
MILLER of California, Ms. PELOSI, Mr. HOYER, Mr. CONYERS, Ms. 
BALDWIN, Mr. POLIS, Mr. CICILLINE, Mr. NADLER, Mr. ANDREWS, Ms. 
RICHARDSON, Mr. DOYLE, Ms. SPEIER, Mr. HOLT, Mrs. LOWEY, Mr. PE-
TERS, Mr. ISRAEL, Ms. CHU, Mr. WU, Ms. DEGETTE, Mr. BERMAN, Mr. 
JACKSON of Illinois, Mr. ACKERMAN, Ms. CLARKE of New York, Mr. 
TOWNS, Mr. MCDERMOTT, Mr. GRIJALVA, Mrs. DAVIS of California, Mr. 
LOEBSACK, Mr. MORAN, Ms. TSONGAS, Mr. SARBANES, Ms. LINDA T. 
SA´NCHEZ of California, Mr. KEATING, Mr. FILNER, Mr. COOPER, Ms. 
SUTTON, Mr. QUIGLEY, Mr. WAXMAN, Ms. LEE of California, Mr. 
CONNOLLY of Virginia, Mr. COURTNEY, Mr. LARSEN of Washington, Mr. 
HINCHEY, Mr. MARKEY, Mr. TIERNEY, Mr. OLVER, Mr. CAPUANO, Mr. 
FARR, Ms. SCHAKOWSKY, Mrs. MALONEY, Mr. DINGELL, Mr. GUTIER-
REZ, Mr. STARK, Mr. SCOTT of Virginia, Mr. PLATTS, Mr. CROWLEY, 
Mr. SERRANO, Ms. ESHOO, Ms. ROYBAL-ALLARD, Mr. HONDA, Ms. 
SCHWARTZ, Ms. MOORE, Mrs. CAPPS, Mr. PRICE of North Carolina, Mr. 
SHERMAN, Mr. BECERRA, Ms. ZOE
LOFGREN
of California, Ms. 
DELAURO, Mr. SCHIFF, Mr. HEINRICH, Mr. RANGEL, Mr. ROTHMAN of 
New Jersey, Mr. SIRES, Mr. BRADY of Pennsylvania, Mr. BOSWELL, Mr. 
BRALEY of Iowa, Ms. CASTOR of Florida, Mr. LEVIN, Mr. MCGOVERN, 
Mr. FATTAH, Mr. HIGGINS, Mrs. NAPOLITANO, Ms. BERKLEY, Mr. 
LUJA´N, Mr. MICHAUD, Mr. WEINER, Mr. HASTINGS of Florida, Ms. 
WOOLSEY, Ms. HIRONO, Mrs. BIGGERT, Ms. NORTON, Ms. MCCOLLUM, 
Mr. VAN HOLLEN, Ms. PINGREE of Maine, Mr. ENGEL, Ms. WASSERMAN 
SCHULTZ, Mr. LEWIS of Georgia, Mr. COHEN, Mr. DEUTCH, Mr. 
PASCRELL, Ms. WATERS, Mr. KILDEE, Mr. INSLEE, Mr. LANGEVIN, Mr. 
SMITH of Washington, Mr. LYNCH, Mr. NEAL, Mr. CUMMINGS, Mr. 
LARSON of Connecticut, and Ms. FUDGE) introduced the following bill; 
which was referred to the Committee on Education and the Workforce, 
and in addition to the Committees on House Administration, Oversight 
and Government Reform, and the Judiciary, for a period to be subse-
quently determined by the Speaker, in each case for consideration of such 
provisions as fall within the jurisdiction of the committee concerned 
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A BILL 
To prohibit employment discrimination on the basis of sexual 
orientation or gender identity. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Employment Non-Dis-
crimination Act’’. 
SEC. 2. PURPOSES. 
The purposes of this Act are— 
(1) to address the history and widespread pat-
tern of discrimination on the basis of sexual orienta-
tion or gender identity by private sector employers 
and local, State, and Federal Government employers; 
(2) to provide a comprehensive Federal prohibi-
tion of employment discrimination on the basis of 
sexual orientation or gender identity, including 
meaningful and effective remedies for any such dis-
crimination; and 
(3) to invoke congressional powers, including 
the powers to enforce the 14th Amendment to the 
Constitution, and to regulate interstate commerce 
and provide for the general welfare pursuant to sec-
tion 8 of article I of the Constitution, in order to 
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(iv) an employee or applicant to which 
section 717(a) of the Civil Rights Act of 
1964 (42 U.S.C. 2000e–16(a)) applies. 
(B) EXCEPTION.—The provisions of this 
Act that apply to an employee or individual 
shall not apply to a volunteer who receives no 
compensation. 
(4) 
EMPLOYER.—The 
term 
‘‘employer’’ 
means— 
(A) a person engaged in an industry affect-
ing commerce (as defined in section (701)(h) of 
the Civil Rights Act of 1964 (42 U.S.C. 
2000e(h))) who has 15 or more employees (as 
defined in subparagraphs (A)(i) and (B) of 
paragraph (3)) for each working day in each of 
20 or more calendar weeks in the current or 
preceding calendar year, and any agent of such 
a person, but does not include a bona fide pri-
vate membership club (other than a labor orga-
nization) that is exempt from taxation under 
section 501(c) of the Internal Revenue Code of 
1986; 
(B) an employing authority to which sec-
tion 302(a)(1) of the Government Employee 
Rights Act of 1991 applies; 
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(C) an employing office, as defined in sec-
tion 101 of the Congressional Accountability 
Act of 1995 or section 411(c) of title 3, United 
States Code; or 
(D) an entity to which section 717(a) of 
the Civil Rights Act of 1964 applies. 
(5) EMPLOYMENT
AGENCY.—The term ‘‘em-
ployment agency’’ has the meaning given the term in 
section 701(c) of the Civil Rights Act of 1964 (42 
U.S.C. 2000e(c)). 
(6) GENDER
IDENTITY.—The term ‘‘gender 
identity’’ means the gender-related identity, appear-
ance, or mannerisms or other gender-related charac-
teristics of an individual, with or without regard to 
the individual’s designated sex at birth. 
(7) LABOR ORGANIZATION.—The term ‘‘labor 
organization’’ has the meaning given the term in 
section 701(d) of the Civil Rights Act of 1964 (42 
U.S.C. 2000e(d)). 
(8) PERSON.—The term ‘‘person’’ has the 
meaning given the term in section 701(a) of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e(a)). 
(9) SEXUAL ORIENTATION.—The term ‘‘sexual 
orientation’’ means homosexuality, heterosexuality, 
or bisexuality. 
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(10) STATE.—The term ‘‘State’’ has the mean-
ing given the term in section 701(i) of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e(i)). 
(b) APPLICATION OF DEFINITIONS.—For purposes of 
this section, a reference in section 701 of the Civil Rights 
Act of 1964— 
(1) to an employee or an employer shall be con-
sidered to refer to an employee (as defined in para-
graph (3)) or an employer (as defined in paragraph 
(4)), respectively, except as provided in paragraph 
(2) below; and 
(2) to an employer in subsection (f) of that sec-
tion shall be considered to refer to an employer (as 
defined in paragraph (4)(A)). 
SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED. 
(a) EMPLOYER PRACTICES.—It shall be an unlawful 
employment practice for an employer— 
(1) to fail or refuse to hire or to discharge any 
individual, or otherwise discriminate against any in-
dividual with respect to the compensation, terms, 
conditions, or privileges of employment of the indi-
vidual, because of such individual’s actual or per-
ceived sexual orientation or gender identity; or 
(2) to limit, segregate, or classify the employees 
or applicants for employment of the employer in any 
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way that would deprive or tend to deprive any indi-
vidual of employment or otherwise adversely affect 
the status of the individual as an employee, because 
of such individual’s actual or perceived sexual ori-
entation or gender identity. 
(b) EMPLOYMENT AGENCY PRACTICES.—It shall be 
an unlawful employment practice for an employment agen-
cy to fail or refuse to refer for employment, or otherwise 
to discriminate against, any individual because of the ac-
tual or perceived sexual orientation or gender identity of 
the individual or to classify or refer for employment any 
individual on the basis of the actual or perceived sexual 
orientation or gender identity of the individual. 
(c) LABOR ORGANIZATION PRACTICES.—It shall be 
an unlawful employment practice for a labor organiza-
tion— 
(1) to exclude or to expel from its membership, 
or otherwise to discriminate against, any individual 
because of the actual or perceived sexual orientation 
or gender identity of the individual; 
(2) to limit, segregate, or classify its member-
ship or applicants for membership, or to classify or 
fail or refuse to refer for employment any individual, 
in any way that would deprive or tend to deprive any 
individual of employment, or would limit such em-
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ployment or otherwise adversely affect the status of 
the individual as an employee or as an applicant for 
employment because of such individual’s actual or 
perceived sexual orientation or gender identity; or 
(3) to cause or attempt to cause an employer to 
discriminate against an individual in violation of this 
section. 
(d) TRAINING PROGRAMS.—It shall be an unlawful 
employment practice for any employer, labor organization, 
or joint labor-management committee controlling appren-
ticeship or other training or retraining, including on-the- 
job training programs, to discriminate against any indi-
vidual because of the actual or perceived sexual orientation 
or gender identity of the individual in admission to, or em-
ployment in, any program established to provide appren-
ticeship or other training. 
(e) ASSOCIATION.—An unlawful employment practice 
described in any of subsections (a) through (d) shall be 
considered to include an action described in that sub-
section, taken against an individual based on the actual 
or perceived sexual orientation or gender identity of a per-
son with whom the individual associates or has associated. 
(f) NO PREFERENTIAL TREATMENT OR QUOTAS.— 
Nothing in this Act shall be construed or interpreted to 
require or permit— 
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(1) any covered entity to grant preferential 
treatment to any individual or to any group because 
of the actual or perceived sexual orientation or gen-
der identity of such individual or group on account 
of an imbalance which may exist with respect to the 
total number or percentage of persons of any actual 
or perceived sexual orientation or gender identity 
employed by any employer, referred or classified for 
employment by any employment agency or labor or-
ganization, admitted to membership or classified by 
any labor organization, or admitted to, or employed 
in, any apprenticeship or other training program, in 
comparison with the total number or percentage of 
persons of such actual or perceived sexual orienta-
tion or gender identity in any community, State, sec-
tion, or other area, or in the available work force in 
any community, State, section, or other area; or 
(2) the adoption or implementation by a cov-
ered entity of a quota on the basis of actual or per-
ceived sexual orientation or gender identity. 
(g) DISPARATE IMPACT.—Only disparate treatment 
claims may be brought under this Act. 
SEC. 5. RETALIATION PROHIBITED. 
It shall be an unlawful employment practice for a cov-
ered entity to discriminate against an individual because 
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such individual (1) opposed any practice made an unlawful 
employment practice by this Act; or (2) made a charge, 
testified, assisted, or participated in any manner in an in-
vestigation, proceeding, or hearing under this Act. 
SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS. 
This Act shall not apply to a corporation, association, 
educational institution, or society that is exempt from the 
religious discrimination provisions of title VII of the Civil 
Rights Acts of 1964 pursuant to section 702(a) or 
703(e)(2) of such Act (42 U.S.C. 2000e–1(a); 2000e– 
2(e)(2)). 
SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED 
FORCES; VETERANS’ PREFERENCES. 
(a) ARMED FORCES.— 
(1) EMPLOYMENT.—In this Act, the term ‘‘em-
ployment’’ does not apply to the relationship be-
tween the United States and members of the Armed 
Forces. 
(2) ARMED
FORCES.—In paragraph (1) the 
term ‘‘Armed Forces’’ means the Army, Navy, Air 
Force, Marine Corps, and Coast Guard. 
(b) VETERANS’ PREFERENCES.—This title does not 
repeal or modify any Federal, State, territorial, or local 
law creating a special right or preference concerning em-
ployment for a veteran. 
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SEC. 8. CONSTRUCTION. 
(a) EMPLOYER RULES AND POLICIES.— 
(1) IN GENERAL.—Nothing in this Act shall be 
construed to prohibit a covered entity from enforcing 
rules and policies that do not intentionally cir-
cumvent the purposes of this Act, if the rules or 
policies are designed for, and uniformly applied to, 
all individuals regardless of actual or perceived sex-
ual orientation or gender identity. 
(2) SEXUAL
HARASSMENT.—Nothing in this 
Act shall be construed to limit a covered entity from 
taking adverse action against an individual because 
of a charge of sexual harassment against that indi-
vidual, provided that rules and policies on sexual 
harassment, including when adverse action is taken, 
are designed for, and uniformly applied to, all indi-
viduals regardless of actual or perceived sexual ori-
entation or gender identity. 
(3) CERTAIN SHARED FACILITIES.—Nothing in 
this Act shall be construed to establish an unlawful 
employment practice based on actual or perceived 
gender identity due to the denial of access to shared 
shower or dressing facilities in which being seen 
unclothed is unavoidable, provided that the employer 
provides reasonable access to adequate facilities that 
are not inconsistent with the employee’s gender iden-
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tity as established with the employer at the time of 
employment or upon notification to the employer 
that the employee has undergone or is undergoing 
gender transition, whichever is later. 
(4) ADDITIONAL FACILITIES NOT REQUIRED.— 
Nothing in this Act shall be construed to require the 
construction of new or additional facilities. 
(5) DRESS AND GROOMING STANDARDS.—Noth-
ing in this Act shall prohibit an employer from re-
quiring an employee, during the employee’s hours at 
work, to adhere to reasonable dress or grooming 
standards not prohibited by other provisions of Fed-
eral, State, or local law, provided that the employer 
permits any employee who has undergone gender 
transition prior to the time of employment, and any 
employee who has notified the employer that the em-
ployee has undergone or is undergoing gender tran-
sition after the time of employment, to adhere to the 
same dress or grooming standards for the gender to 
which 
the 
employee 
has 
transitioned 
or 
is 
transitioning. 
(b) EMPLOYEE BENEFITS.—Nothing in this Act shall 
be construed to require a covered entity to treat an unmar-
ried couple in the same manner as the covered entity 
treats a married couple for purposes of employee benefits. 
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(c) DEFINITION OF MARRIAGE.—As used in this Act, 
the term ‘‘married’’ refers to marriage as such term is 
defined in section 7 of title I, United States Code (referred 
to as the Defense of Marriage Act). 
SEC. 9. COLLECTION OF STATISTICS PROHIBITED. 
The Commission shall not collect statistics on actual 
or perceived sexual orientation or gender identity from 
covered entities, or compel the collection of such statistics 
by covered entities. 
SEC. 10. ENFORCEMENT. 
(a) ENFORCEMENT POWERS.—With respect to the 
administration and enforcement of this Act in the case of 
a claim alleged by an individual for a violation of this 
Act— 
(1) the Commission shall have the same powers 
as the Commission has to administer and enforce— 
(A) title VII of the Civil Rights Act of 
1964 (42 U.S.C. 2000e et seq.); or 
(B) sections 302 and 304 of the Govern-
ment Employee Rights Act of 1991 (42 U.S.C. 
2000e–16b and 2000e–16c), 
in the case of a claim alleged by such individual for 
a violation of such title, or of section 302(a)(1) of 
the Government Employee Rights Act of 1991 (42 
U.S.C. 2000e–16b(a)(1)), respectively; 
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(2) the Librarian of Congress shall have the 
same powers as the Librarian of Congress has to ad-
minister and enforce title VII of the Civil Rights Act 
of 1964 (42 U.S.C. 2000e et seq.) in the case of a 
claim alleged by such individual for a violation of 
such title; 
(3) the Board (as defined in section 101 of the 
Congressional Accountability Act of 1995 (2 U.S.C. 
1301)) shall have the same powers as the Board has 
to administer and enforce the Congressional Ac-
countability Act of 1995 (2 U.S.C. 1301 et seq.) in 
the case of a claim alleged by such individual for a 
violation of section 201(a)(1) of such Act (2 U.S.C. 
1311(a)(1)); 
(4) the Attorney General shall have the same 
powers as the Attorney General has to administer 
and enforce— 
(A) title VII of the Civil Rights Act of 
1964 (42 U.S.C. 2000e et seq.); or 
(B) sections 302 and 304 of the Govern-
ment Employee Rights Act of 1991 (42 U.S.C. 
2000e–16b and 2000e–16c); 
in the case of a claim alleged by such individual for 
a violation of such title, or of section 302(a)(1) of 
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the Government Employee Rights Act of 1991 (42 
U.S.C. 2000e–16b(a)(1)), respectively; 
(5) the President, the Commission, and the 
Merit Systems Protection Board shall have the same 
powers as the President, the Commission, and the 
Board, respectively, have to administer and enforce 
chapter 5 of title 3, United States Code, in the case 
of a claim alleged by such individual for a violation 
of section 411 of such title; and 
(6) a court of the United States shall have the 
same jurisdiction and powers as the court has to en-
force— 
(A) title VII of the Civil Rights Act of 
1964 (42 U.S.C. 2000e et seq.) in the case of 
a claim alleged by such individual for a viola-
tion of such title; 
(B) sections 302 and 304 of the Govern-
ment Employee Rights Act of 1991 (42 U.S.C. 
2000e–16b and 2000e–16c) in the case of a 
claim alleged by such individual for a violation 
of section 302(a)(1) of such Act (42 U.S.C. 
2000e–16b(a)(1)); 
(C) the Congressional Accountability Act 
of 1995 (2 U.S.C. 1301 et seq.) in the case of 
a claim alleged by such individual for a viola-
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tion of section 201(a)(1) of such Act (2 U.S.C. 
1311(a)(1)); and 
(D) chapter 5 of title 3, United States 
Code, in the case of a claim alleged by such in-
dividual for a violation of section 411 of such 
title. 
(b) PROCEDURES AND REMEDIES.—The procedures 
and remedies applicable to a claim alleged by an individual 
for a violation of this Act are— 
(1) 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.) in the case of a 
claim alleged by such individual for a violation of 
such title; 
(2) the procedures and remedies applicable for 
a violation of section 302(a)(1) of the Government 
Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) 
in the case of a claim alleged by such individual for 
a violation of such section; 
(3) 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)) in 
the case of a claim alleged by such individual for a 
violation of such section; and 
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brought by an employee or applicant for em-
ployment of that program or activity under this 
Act for a remedy authorized under subsection 
(d). 
(B) DEFINITION.—In this paragraph, the 
term ‘‘program or activity’’ has the meaning 
given the term in section 606 of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d–4a). 
(2) EFFECTIVE DATE.—With respect to a par-
ticular program or activity, paragraph (1) applies to 
conduct occurring on or after the day, after the date 
of enactment of this Act, on which a State first re-
ceives or uses Federal financial assistance for that 
program or activity. 
(c) REMEDIES AGAINST STATE OFFICIALS.—An offi-
cial of a State may be sued in the official capacity of the 
official by any employee or applicant for employment who 
has complied with the applicable procedures of section 10, 
for equitable relief that is authorized under this Act. In 
such a suit the court may award to the prevailing party 
those costs authorized by section 722 of the Revised Stat-
utes of the United States (42 U.S.C. 1988). 
(d) REMEDIES AGAINST THE UNITED STATES AND 
THE STATES.—Notwithstanding any other provision of 
this Act, in an action or administrative proceeding against 
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the United States or a State for a violation of this Act, 
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.) 
by a private entity, except that— 
(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)). 
SEC. 12. ATTORNEYS’ FEES. 
Notwithstanding any other provision of this Act, in 
an action or administrative proceeding for a violation of 
this Act, an entity described in section 10(a) (other than 
paragraph (4) of such section), in the discretion of the 
entity, may allow the prevailing party, other than the 
Commission or the United States, a reasonable attorney’s 
fee (including expert fees) as part of the costs. The Com-
mission and the United States shall be liable for the costs 
to the same extent as a private person. 
SEC. 13. POSTING NOTICES. 
A covered entity who is required to post notices de-
scribed in section 711 of the Civil Rights Act of 1964 (42 
U.S.C. 2000e–10) shall post notices for employees, appli-
cants for employment, and members, to whom the provi-
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sions specified in section 10(b) apply, that describe the 
applicable provisions of this Act in the manner prescribed 
by, and subject to the penalty provided under, section 711 
of the Civil Rights Act of 1964. 
SEC. 14. REGULATIONS. 
(a) IN GENERAL.—Except as provided in subsections 
(b), (c), and (d), the Commission shall have authority to 
issue regulations to carry out this Act. 
(b) LIBRARIAN
OF CONGRESS.—The Librarian of 
Congress shall have authority to issue regulations to carry 
out this Act with respect to employees and applicants for 
employment of the Library of Congress. 
(c) BOARD.—The Board referred to in section 
10(a)(3) shall have authority to issue regulations to carry 
out this Act, in accordance with section 304 of the Con-
gressional Accountability Act of 1995 (2 U.S.C. 1384), 
with respect to covered employees, as defined in section 
101 of such Act (2 U.S.C. 1301). 
(d) PRESIDENT.—The President shall have authority 
to issue regulations to carry out this Act with respect to 
covered employees, as defined in section 411(c) of title 3, 
United States Code. 
SEC. 15. RELATIONSHIP TO OTHER LAWS. 
This Act shall not invalidate or limit the rights, rem-
edies, or procedures available to an individual claiming 
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discrimination prohibited under any other Federal law or 
regulation or any law or regulation of a State or political 
subdivision of a State. 
SEC. 16. SEVERABILITY. 
If any provision of this Act, or the application of the 
provision to any person or circumstance, is held to be in-
valid, the remainder of this Act and the application of the 
provision to any other person or circumstances shall not 
be affected by the invalidity. 
SEC. 17. EFFECTIVE DATE. 
This Act shall take effect on the date that is 6 
months after the date of enactment of this Act and shall 
not apply to conduct occurring before the effective date. 
Æ 
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E:\BILLS\H1397.IH
H1397
jbell on DSKDVH8Z91PROD with BILLS