I 
114TH CONGRESS 
2D SESSION 
H. R. 5693 
To amend title VII of the Civil Rights Act of 1964 and other statutes 
to clarify appropriate liability standards for Federal antidiscrimination claims. 
IN THE HOUSE OF REPRESENTATIVES 
JULY 8, 2016 
Ms. DELAURO (for herself, Mr. FARR, Ms. NORTON, Ms. DELBENE, Mr. 
CAPUANO, Ms. LEE, Mr. MCDERMOTT, Mr. LANGEVIN, Mr. POCAN, Mr. 
TAKANO, Mr. SWALWELL of California, Mr. GENE GREEN of Texas, and 
Mr. HONDA) introduced the following bill; which was referred to the Com-
mittee on Education and the Workforce, and in addition to the Commit-
tees on House Administration, the Judiciary, and Oversight and Govern-
ment Reform, for a period to be subsequently determined by the Speaker, 
in each case for consideration of such provisions as fall within the juris-
diction of the committee concerned 
A BILL 
To amend title VII of the Civil Rights Act of 1964 and 
other statutes to clarify appropriate liability standards 
for Federal antidiscrimination claims. 
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 ‘‘Fair Employment Pro-
tection Act of 2016’’. 
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SEC. 2. FINDINGS AND PURPOSES. 
(a) FINDINGS.—Congress finds the following: 
(1) Harassment is a widespread problem in 
workplaces in the United States. In 2014, sex dis-
crimination comprised nearly 30 percent of the 
charges filed with the Equal Employment Oppor-
tunity Commission (EEOC) under all the statutes 
the agency enforces. Of these charges, women filed 
19,605, or 74.4 percent. 
(2) Women and people of color working in low- 
wage jobs are particularly vulnerable to harassment 
in the workplace. 
(3) In some industries, harassment is even 
more widespread. For example, 80 percent of female 
farm-workers working in the fields in central Cali-
fornia reported that they had experienced sexual 
harassment. 
(4) Studies indicate that sexual harassment of 
women, including unwanted touching, grabbing, and 
stalking, is also common in male-dominated indus-
tries, such as construction, public safety, manufac-
turing, farming, and the high-tech industry. Harass-
ment in male-dominated industries operates as a 
barrier to women’s entry into higher-paying jobs. 
(5) Racial harassment remains a pervasive 
problem in the workplace in the United States. In 
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fiscal year 2015, 34.7 percent of the alleged charges 
filed with the EEOC were on the basis of race. 
(6) Research shows that workers in a wide 
spectrum of occupations, ranging from service and 
support positions to management and professional 
positions, report experiencing race-based harassment 
while on the job. 
(7) Harassment in the workplace is a persistent 
barrier to opportunity for people with disabilities. 
Harassment can result in workers with disabilities 
being forced off the job. Workplace harassment is 
used to send the message that workers with disabil-
ities do not belong at work. 
(8) Age discrimination continues to be a barrier 
to employment for older workers. Nearly one-third of 
older workers report that they or someone they know 
experienced age discrimination in the workplace. 
(9) The Supreme Court’s decision in Vance v. 
Ball State University, No. 11–556 (June 24, 2013), 
significantly undermines protections against dis-
crimination that the Supreme Court established in 
Faragher v. Boca Raton, 524 U.S. 775 (1998) and 
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 
(1998), which held that an employer may be vicari-
ously liable under title VII of the Civil Rights Act 
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of 1964 for harassment of an employee by an indi-
vidual that has supervisory authority over that em-
ployee. 
(10) In Faragher and Ellerth, the Supreme 
Court held that employers will be subject to a strict 
liability standard when employees with supervisory 
authority engage in harassment that results in ‘‘tan-
gible employment actions’’. However, in situations 
where ‘‘supervisors’’ engage in harassment that does 
not result in tangible employment actions, the Court 
explained, an employer can avoid vicarious liability 
by showing that— 
(A) the employer exercised reasonable care 
to prevent and correct any harassing behavior; 
and 
(B) the plaintiff unreasonably failed to 
take advantage of the preventive or corrective 
opportunities that the employer provided. 
(11) Whether an employer should be vicariously 
liable for harassment is a functional analysis that is 
based not on the title of the harasser or the employ-
er’s job description for the harasser’s position but on 
the authority vested in that individual by the em-
ployer. 
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(12) The Supreme Court holding in Vance lim-
its the category of individuals who are considered su-
pervisors and for which an employer may be held vi-
cariously liable under Faragher and Ellerth to those 
individuals that have authority to take tangible em-
ployment actions. This holding ignores the reality 
that employees with the authority to control their 
subordinates’ daily work should be included in that 
category, for which an employer may be held vicari-
ously liable, because such individuals are aided by 
that authority in perpetuating a discriminatory work 
environment. 
(13) Individuals who direct the daily work ac-
tivities of employees but do not have the authority 
to take tangible employment actions against those 
employees are common in the workplace in the 
United States, particularly in industries that employ 
low-wage workers. Workers in industries including 
retail, restaurant, health care, housekeeping, and 
personal care, which may pay low wages and employ 
a large numbers of female workers, are particularly 
vulnerable to harassment by individuals who have 
the power to direct day-to-day work activities but 
lack the power to take tangible employment actions. 
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(b) PURPOSE.—The purpose of this Act is to clarify 
that an employer’s vicarious liability for harassment under 
title VII of the Civil Rights Act of 1964, the Age Discrimi-
nation in Employment Act of 1967, the Americans with 
Disabilities Act of 1990, the Rehabilitation Act of 1973, 
section 1977 of the Revised Statutes, the Genetic Informa-
tion Nondiscrimination Act of 2008, the Government Em-
ployee Rights Act of 1991, the Congressional Account-
ability Act of 1995, and title III of the United States Code 
extends to— 
(1) an individual with the authority to under-
take or recommend tangible employment actions af-
fecting the victim of the harassment; or 
(2) an individual with the authority to direct 
the victim’s daily work activities. 
SEC. 3. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS 
ACT OF 1964. 
(a) STANDARD FOR EMPLOYER LIABILITY FOR HOS-
TILE WORK ENVIRONMENT.—Section 703 of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by 
adding at the end the following: 
‘‘(o) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer shall be liable for 
the acts of any individual whose harassment of an em-
ployee has created or continued a hostile work environ-
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ment that constitutes an unlawful employment practice 
under this section if, at the time of the harassment— 
‘‘(1) such individual was authorized by that em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that hostile work environ-
ment.’’. 
(b) STANDARD FOR EMPLOYER LIABILITY FOR RE-
TALIATORY HOSTILE WORK ENVIRONMENT.—Section 704 
of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3) is 
amended— 
(1) by redesignating subsection (b) as sub-
section (c); and 
(2) by inserting after subsection (a) the fol-
lowing: 
‘‘(b) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer shall be liable for 
the acts of any individual whose harassment of an em-
ployee has created or continued a retaliatory hostile work 
environment that constitutes an unlawful employment 
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practice as described under subsection (a) if, at the time 
of the harassment— 
‘‘(1) such individual was authorized by that em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that retaliatory hostile 
work environment.’’. 
(c) FEDERAL EMPLOYEES.—Section 717 of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e–16) is amended by 
adding at the end the following: 
‘‘(g) The provisions of sections 703(o) and 704(b) 
shall apply to hostile work environment claims and retalia-
tory hostile work environment claims, respectively, under 
this section.’’. 
SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EM-
PLOYMENT ACT. 
(a) STANDARD FOR EMPLOYER LIABILITY FOR HOS-
TILE WORK ENVIRONMENT.—Section 4 of the Age Dis-
crimination in Employment Act of 1967 (29 U.S.C. 623) 
is amended by adding at the end the following: 
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‘‘(n) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer shall be liable for 
the acts of any individual whose harassment of an em-
ployee has created or continued a hostile work environ-
ment that is unlawful under this section if, at the time 
of the harassment— 
‘‘(1) such individual was authorized by that em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that hostile work environ-
ment.’’. 
(b) STANDARD FOR EMPLOYER LIABILITY FOR RE-
TALIATORY
HOSTILE
WORK
ENVIRONMENT.—Section 
4(d) of the Age Discrimination in Employment Act of 
1967 (29 U.S.C. 623) is amended by striking ‘‘or litiga-
tion under this Act.’’ and inserting ‘‘or litigation under 
this Act. Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer shall be liable for 
the acts of any individual whose harassment of an em-
ployee has created or continued a retaliatory hostile work 
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environment that is unlawful under this subsection if, at 
the time of the harassment— 
‘‘(1) such individual was authorized by that em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that retaliatory hostile 
work environment.’’. 
(c) FEDERAL EMPLOYEES.—Section 15 of the Age 
Discrimination in Employment Act of 1967 (29 U.S.C. 
633a) is amended by adding at the end the following: 
‘‘(h) Subsections (d) and (n) of section 4 shall apply 
to retaliatory hostile work environment claims and hostile 
work environment claims, respectively, under this sec-
tion.’’. 
SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABIL-
ITIES ACT. 
(a) STANDARD FOR EMPLOYER LIABILITY FOR HOS-
TILE WORK ENVIRONMENT.—Section 102 of the Ameri-
cans with Disabilities Act (42 U.S.C. 12112) is amended 
by adding at the end the following: 
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‘‘(e) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer shall be liable for 
the acts of any individual whose harassment of an em-
ployee has created or continued a hostile work environ-
ment that constitutes discrimination against a qualified 
individual on the basis of disability under this section if, 
at the time of the harassment— 
‘‘(1) such individual was authorized by the em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the qualified indi-
vidual; or 
‘‘(B) to direct the qualified individual’s 
daily work activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that hostile work environ-
ment.’’. 
(b) STANDARD FOR EMPLOYER LIABILITY FOR RE-
TALIATORY HOSTILE WORK ENVIRONMENT.—Section 503 
of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12203) is amended— 
(1) by redesignating subsection (c) as sub-
section (d); 
(2) by inserting after subsection (b) the fol-
lowing: 
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‘‘(c) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer shall be liable for 
the acts of any individual whose harassment of an em-
ployee has created or continued a retaliatory hostile work 
environment that constitutes retaliatory discrimination, as 
described in subsection (a), or the carrying out of any un-
lawful acts described in subsection (b), if, at the time of 
the harassment— 
‘‘(1) such individual was authorized by the em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that retaliatory hostile 
work environment.’’; and 
(3) in subsection (d), as redesignated by para-
graph (1), by striking ‘‘subsections (a) and (b)’’ and 
inserting ‘‘subsections (a), (b), and (c)’’. 
SEC. 6. AMENDMENT TO THE REHABILITATION ACT. 
(a) STANDARD FOR EMPLOYER LIABILITY FOR HOS-
TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE 
WORK ENVIRONMENT.—Section 501 of the Rehabilitation 
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Act of 1973 (29 U.S.C. 791) is amended by adding at 
the end the following: 
‘‘(h) Subject to section 12 of the Fair Employment 
Protection Act of 2016, each department, agency, and in-
strumentality in the executive branch of Government and 
the Smithsonian Institution shall be liable for the acts of 
any individual within such department, agency, instrumen-
tality, or the Smithsonian Institution whose harassment 
of an individual with a disability has created or continued 
a hostile work environment, or a retaliatory hostile work 
environment, that constitutes nonaffirmative action em-
ployment discrimination under this section if, at the time 
of the harassment— 
‘‘(1) such individual was authorized by that de-
partment, agency, instrumentality, or the Smithso-
nian Institution— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the individual 
with a disability; or 
‘‘(B) to direct the daily work activities of 
the individual with a disability; or 
‘‘(2) the negligence of that department, agency, 
instrumentality, or the Smithsonian Institution led 
to the creation or continuation of that hostile work 
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environment or retaliatory hostile work environ-
ment.’’. 
(b) STANDARD FOR EMPLOYER LIABILITY FOR HOS-
TILE WORK ENVIRONMENT AND RETALIATORY HOSTILE 
WORK ENVIRONMENT.—Section 504 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794) is amended by adding at 
the end the following: 
‘‘(e) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer described under sub-
section (b) shall be liable for the acts of any individual 
whose harassment of a qualified individual with a dis-
ability has created or continued a hostile work environ-
ment, or a retaliatory hostile work environment, that con-
stitutes employment discrimination under this section if, 
at the time of the harassment— 
‘‘(1) such individual was authorized by such 
employer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the qualified indi-
vidual with a disability; or 
‘‘(B) to direct the daily work activities of 
the qualified individual with a disability; or 
‘‘(2) the negligence of such employer led to the 
creation or continuation of that hostile work environ-
ment or retaliatory hostile work environment.’’. 
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(c) REMEDIES.—Section 505 of the Rehabilitation 
Act (29 U.S.C. 794a) is amended by adding at the end 
of subsection (a) the following: 
‘‘(3) Sections 501(h) and 504(e) shall apply to 
hostile work environment claims and retaliatory hos-
tile work environment claims under this section.’’. 
SEC. 7. AMENDMENT TO SECTION 1977 OF THE REVISED 
STATUTES. 
Section 1977 of the Revised Statutes (42 U.S.C. 
1981) is amended by adding at the end the following: 
‘‘(d) Subject to section 12 of the Fair Employment 
Protection Act of 2016, a nongovernmental employer shall 
be liable for the acts of any individual whose harassment 
of an employee has created a hostile work environment 
or a retaliatory hostile work environment, constituting an 
unlawful employment practice, if, at the time of the har-
assment— 
‘‘(1) such individual was authorized by the em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
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‘‘(2) the negligence of the employer led to the 
creation or continuation of that hostile work environ-
ment or retaliatory hostile work environment.’’. 
SEC. 8. AMENDMENT TO THE GENETIC INFORMATION NON-
DISCRIMINATION ACT OF 2008. 
(a) STANDARD FOR EMPLOYER LIABILITY FOR HOS-
TILE WORK ENVIRONMENT.—Section 202 of the Genetic 
Information Nondiscrimination Act of 2008 (42 U.S.C. 
2000ff–1) is amended by adding at the end the following: 
‘‘(d) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer shall be liable for 
the acts of any individual whose harassment of an em-
ployee has created or continued a hostile work environ-
ment that constitutes an unlawful employment practice 
under this section if, at the time of the harassment— 
‘‘(1) such individual was authorized by the em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that hostile work environ-
ment.’’. 
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(b) STANDARD FOR EMPLOYER LIABILITY FOR RE-
TALIATORY
HOSTILE
WORK
ENVIRONMENT.—Section 
207(f) of the Genetic Information Nondiscrimination Act 
(42 U.S.C. 2000ff–6(f)) is amended by striking ‘‘violations 
of this subsection.’’ and inserting ‘‘violations of this sub-
section. Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer shall be liable for 
the acts of any individual whose harassment of an em-
ployee has created or continued a retaliatory hostile work 
environment that constitutes discrimination under this 
subsection if, at the time of the harassment— 
‘‘(1) such individual was authorized by the em-
ployer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that retaliatory hostile 
work environment.’’. 
SEC. 9. AMENDMENT TO THE GOVERNMENT EMPLOYEE 
RIGHTS ACT OF 1991. 
Section 302 of the Government Employee Rights Act 
of 1991 (42 U.S.C. 2000e–16b) is amended by adding at 
the end the following: 
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‘‘(c) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employer of an individual de-
scribed under section 304(a) shall be liable for the acts 
of any individual whose harassment of a State employee 
described in section 304 has created or continued a hostile 
work environment or a retaliatory hostile work environ-
ment constituting discrimination under this section, if at 
the time of the harassment— 
‘‘(1) such individual was authorized by such 
employer— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the employee; or 
‘‘(B) to direct the employee’s daily work 
activities; or 
‘‘(2) the negligence of the employer led to the 
creation or continuation of that hostile work environ-
ment or retaliatory hostile work environment.’’. 
SEC. 10. AMENDMENT TO TITLE 3 OF THE UNITED STATES 
CODE. 
Section 411 of title 3, United States Code, is amend-
ed— 
(1) by redesignating subsections (c) through (f) 
as subsections (d) through (g), respectively; 
(2) by inserting after subsection (b) the fol-
lowing: 
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‘‘(c) LIABILITY OF EMPLOYING OFFICE.—Subject to 
section 12 of the Fair Employment Protection Act of 
2016, an employing office shall be liable for the acts of 
any individual whose harassment of a covered employee 
has created or continued a hostile work environment or 
a retaliatory hostile work environment constituting dis-
crimination under this section if, at the time of the harass-
ment— 
‘‘(1) such individual was authorized by the em-
ploying office— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the covered em-
ployee; or 
‘‘(B) to direct the covered employee’s daily 
work activities; or 
‘‘(2) the negligence of the employing office led 
to the creation or continuation of that hostile work 
environment or retaliatory hostile work environ-
ment.’’; and 
(3) in subsection (f), as redesignated by para-
graph (2), by striking ‘‘subsections (a) through (c)’’ 
and inserting ‘‘subsections (a) through (d).’’. 
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SEC. 11. AMENDMENT TO THE CONGRESSIONAL ACCOUNT-
ABILITY ACT OF 1995. 
Section 201 of the Congressional Accountability Act 
of 1995 (2 U.S.C. 1311) is amended— 
(1) by redesignating subsection (d) as subsection (e); 
and 
(2) by inserting after subsection (c) the following: 
‘‘(d) Subject to section 12 of the Fair Employment 
Protection Act of 2016, an employing office shall be liable 
for the acts of any individual whose harassment of a cov-
ered employee has created or continued a hostile work en-
vironment or a retaliatory hostile work environment that 
constitutes discrimination under this section if, at the time 
of the harassment— 
‘‘(1) such individual was authorized by the em-
ploying office— 
‘‘(A) to undertake or recommend tangible 
employment actions affecting the covered em-
ployee; or 
‘‘(B) to direct the covered employee’s daily 
work activities; or 
‘‘(2) the negligence of the employing office led 
to the creation or continuation of that hostile work 
environment or retaliatory hostile work environ-
ment.’’. 
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SEC. 12. RULE OF CONSTRUCTION. 
Nothing in this Act shall be construed to limit the 
availability of, or access to, defenses available under the 
law. 
SEC. 13. SAVINGS CLAUSE. 
If any provision of this Act is declared invalid, the 
other provisions in this Act will remain in full force and 
effect. 
SEC. 14. APPLICATION. 
This Act, and the amendments made by this Act, 
shall apply to all claims pending on or after the date of 
enactment of this Act. 
Æ 
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