I 
115TH CONGRESS 
1ST SESSION H. R. 4152 
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 
OCTOBER 26, 2017 
Ms. DELAURO (for herself, Mr. POCAN, Mr. CAPUANO, Ms. SLAUGHTER, Ms. 
WASSERMAN SCHULTZ, Ms. LEE, Ms. NORTON, Mr. LOWENTHAL, Mr. 
TAKANO, and Mr. LANGEVIN) introduced the following bill; which was re-
ferred to the Committee on Education and the Workforce, and in addition 
to the Committees on House Administration, the Judiciary, and Over-
sight and Government Reform, for a period to be subsequently deter-
mined by the Speaker, in each case for consideration of such provisions 
as fall within the jurisdiction 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 2017’’. 
SEC. 2. FINDINGS AND PURPOSE. 
(a) FINDINGS.—Congress finds the following: 
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(1) Discrimination and harassment are wide-
spread problems in workplaces in the United States. 
In 2016, sex discrimination charges comprised 30.7 
percent of the charges filed with the Equal Employ-
ment Opportunity Commission (referred to in this 
section as the ‘‘EEOC’’) under all the statutes the 
agency enforces. In 2016, 83.4 percent of sexual 
harassment charges were filed by women. 
(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, a survey conducted 
by the Restaurant Opportunities Centers United 
Forward Together found that two-thirds of women 
workers and over half of men workers had experi-
enced some form of sexual harassment from man-
agement in the restaurant industry; nearly 80 per-
cent of women and 70 percent of men experienced 
some form of sexual harassment from co-workers; 
and nearly 80 percent of women and 55 percent of 
men experienced some form of sexual harassment 
from customers. 
(4) Studies indicate that sexual harassment of 
women, including unwanted touching, grabbing, and 
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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 
fiscal year 2016, 35.3 percent of the charges of al-
leged violations filed with the EEOC were charges 
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. 
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(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 
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 
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(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. 
(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 
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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 
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. 
(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 3, United States Code, ex-
tends 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. 
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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 2017, 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 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— 
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(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 2017, 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 
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-
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tory hostile work environment claims, respectively, under 
this section.’’. 
SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EM-
PLOYMENT ACT OF 1967. 
(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: 
‘‘(n) Subject to section 12 of the Fair Employment 
Protection Act of 2017, 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 
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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 2017, 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 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.’’. 
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