I
105TH CONGRESS
1ST SESSION
H. R. 1858
To prohibit employment discrimination on the basis of sexual orientation.
IN THE HOUSE OF REPRESENTATIVES
JUNE 10, 1997
Mr. SHAYS (for himself, Mr. FRANK of Massachusetts, Mr. ABERCROMBIE,
Mr. ACKERMAN, Mr. ALLEN, Mr. ANDREWS, Mr. BALDACCI, Mr.
BARRETT of Wisconsin, Mr. BECERRA, Mr. BERMAN, Mr. BLAGOJEVICH,
Mr. BLUMENAUER, Mr. BOEHLERT, Mr. BONIOR, Mr. BROWN of Califor-
nia, Mr. BROWN of Ohio, Mr. CAMPBELL, Mr. CAPPS, Mr. CARDIN, Ms.
CARSON, Ms. CHRISTIAN-GREEN, Mr. CLAY, Mrs. CLAYTON, Mr.
CLYBURN, Mr. CONYERS, Mr. COYNE, Mr. CUMMINGS, Mr. DAVIS of Illi-
nois, Mr. DEFAZIO, Ms. DEGETTE, Mr. DELAHUNT, Ms. DELAURO, Mr.
DELLUMS, Mr. DEUTSCH, Mr. DICKS, Mr. DIXON, Mr. ENGEL, Ms.
ESHOO, Mr. EVANS, Mr. FALEOMAVAEGA, Mr. FARR of California, Mr.
FATTAH, Mr. FAZIO of California, Mr. FILNER, Mr. FLAKE, Mr. FOGLI-
ETTA, Mr. FORD, Mr. FRELINGHUYSEN, Mr. FROST, Ms. FURSE, Mr.
GEJDENSON, Mr. GEPHARDT, Mr. GILMAN, Mr. GONZALEZ, Mr. GREEN-
WOOD, Mr. GUTIERREZ, Ms. HARMAN, Mr. HASTINGS of Florida, Mr.
HINCHEY, Ms. HOOLEY of Oregon, Mr. HORN, Mr. HOYER, Ms. JACK-
SON-LEE of Texas, Mr. JACKSON of Illinois, Mr. JEFFERSON, Ms. EDDIE
BERNICE JOHNSON of Texas, Mrs. JOHNSON of Connecticut, Mrs.
KELLY, Mr. KENNEDY of Massachusetts, Mr. KENNEDY of Rhode Island,
Mrs. KENNELLY of Connecticut, Mr. KILDEE, Ms. KILPATRICK, Mr.
KIND, Mr. KOLBE, Mr. KUCINICH, Mr. LANTOS, Mr. LEACH, Mr. LEVIN,
Mr. LEWIS of Georgia, Ms. LOFGREN, Mrs. LOWEY, Mr. LUTHER, Mrs.
MALONEY of New York, Mr. MALONEY of Connecticut, Mr. MARKEY, Mr.
MARTINEZ, Mr. MATSUI, Mrs. MCCARTHY of New York, Ms. MCCARTHY
of Missouri, Mr. MCDERMOTT, Mr. MCGOVERN, Mr. MCHALE, Ms.
MCKINNEY, Mr. MEEHAN, Mrs. MEEK of Florida, Mr. MENENDEZ, Ms.
MILLENDER-MCDONALD, Mr. MILLER of California, Mrs. MINK of Ha-
waii, Mr. MOAKLEY, Mr. MORAN of Virginia, Mrs. MORELLA, Mr.
NADLER, Mr. NEAL of Massachusetts, Ms. NORTON, Mr. OLVER, Mr.
OWENS, Mr. PALLONE, Mr. PASCRELL, Mr. PASTOR, Mr. PAYNE, Ms.
PELOSI, Mr. RANGEL, Mr. REYES, Ms. RIVERS, Mr. ROTHMAN, Ms. ROY-
BAL-ALLARD, Mr. RUSH, Mr. SABO, Ms. SANCHEZ, Mr. SANDERS, Mr.
SAWYER, Mr. SCHUMER, Mr. SERRANO, Mr. SHERMAN, Mr. SKAGGS, Ms.
SLAUGHTER, Mr. ADAM SMITH of Washington, Ms. STABENOW, Mr.
STARK, Mr. STOKES, Mrs. TAUSCHER, Mr. THOMPSON, Mr. TIERNEY,
Mr. TORRES, Mr. TOWNS, Mr. TRAFICANT, Mr. UNDERWOOD, Ms.
VELA´ZQUEZ, Mr. VENTO, Ms. WATERS, Mr. WATT of North Carolina,
Mr. WAXMAN, Mr. WEXLER, Mr. WEYGAND, Ms. WOOLSEY, Mr. WYNN,
and Mr. YATES) introduced the following bill; which was referred to the
Committee on Education and the Workforce, and in addition to the Com-
mittees on House Oversight, Government Reform and Oversight, and the
Judiciary, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the jurisdic-
tion of the committee concerned
A BILL
To prohibit employment discrimination on the basis of sexual
orientation.
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 of 1997’’.
SEC. 2. PURPOSES.
The purposes of this Act are—
(1) to provide a comprehensive Federal prohibi-
tion of employment discrimination on the basis of
sexual orientation;
(2) to provide meaningful and effective rem-
edies for employment discrimination on the basis of
sexual orientation; and
(3) to invoke congressional powers, including
the powers to enforce the 14th amendment to the
Constitution and to regulate interstate commerce, in
order to prohibit employment discrimination on the
basis of sexual orientation.
SEC. 3. DEFINITIONS.
In this Act:
(1) COMMISSION.—The term ‘‘Commission’’
means the Equal Employment Opportunity Commis-
sion.
(2) COVERED ENTITY.—The term ‘‘covered en-
tity’’ means an employer, employment agency, labor
organization, joint labor-management committee, an
entity to which section 717(a) of the Civil Rights
Act of 1964 (42 U.S.C. 2000e–16(a)) applies, an
employing authority to which section 302(a)(1) of
the Government Employee Rights Act of 1991 (2
U.S.C. 1202(a)(1)) applies, or an employing office,
as defined in section 101 of the Congressional Ac-
countability Act of 1995 (2 U.S.C. 1301). The term
‘‘covered entity’’ includes an employing office, as de-
fined in section 401 of title 3, United States Code.
(3) EMPLOYER.—The term ‘‘employer’’ means
a person engaged in an industry affecting 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 section 701(f) of such Act
(42 U.S.C. 2000e(f)) for each working day in each
of 20 or more calendar weeks in the current or pre-
ceding calendar year, and any agent of such a per-
son, but such term does not include a bona fide pri-
vate membership club (other than a labor organiza-
tion) that is exempt from taxation under section
501(c) of the Internal Revenue Code of 1986.
(4) 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)).
(5) EMPLOYMENT OR AN EMPLOYMENT OPPOR-
TUNITY.—Except as provided in section 10(a)(1),
the term ‘‘employment or an employment oppor-
tunity’’ includes job application procedures, hiring,
advancement, discharge, compensation, job training,
or any other term, condition, or privilege of employ-
ment, but does not include the service of a volunteer
for which the volunteer receives no compensation.
(6) 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)).
(7) 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)).
(8) RELIGIOUS ORGANIZATION.—The term ‘‘re-
ligious organization’’ means—
(A) a religious corporation, association, or
society; or
(B) a school, college, university, or other
educational institution or institution of learn-
ing, if—
(i) the institution is in whole or sub-
stantial part controlled, managed, owned,
or supported by a religion, religious cor-
poration, association, or society; or
(ii) the curriculum of the institution is
directed toward the propagation of a reli-
gion.
(9) SEXUAL ORIENTATION.—The term ‘‘sexual
orientation’’ means homosexuality, bisexuality, or
heterosexuality, whether the orientation is real or
perceived.
(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)).
SEC. 4. DISCRIMINATION PROHIBITED.
A covered entity shall not, with respect to the employ-
ment or an employment opportunity of an individual—
(1) subject the individual to a different stand-
ard or different treatment, or otherwise discriminate
against the individual, on the basis of sexual orienta-
tion; or
(2) discriminate against the individual based on
the sexual orientation of a person with whom the in-
dividual is believed to associate or to have associ-
ated.
SEC. 5. RETALIATION AND COERCION PROHIBITED.
(a) RETALIATION.—A covered entity shall not dis-
criminate against an individual because the individual op-
posed any act or practice prohibited by this Act or because
the individual made a charge, assisted, testified, or partici-
pated in any manner in an investigation, proceeding, or
hearing under this Act.
(b) COERCION.—A person shall not coerce, intimi-
date, threaten, or interfere with any individual in the exer-
cise or enjoyment of, or on account of the individual’s hav-
ing exercised, enjoyed, assisted in, or encouraged the exer-
cise or enjoyment of, any right granted or protected by
this Act.
SEC. 6. BENEFITS.
This Act does not apply to the provision of employee
benefits to an individual for the benefit of the partner of
the individual.
SEC. 
7. 
NO 
DISPARATE 
IMPACT; 
COLLECTION 
OF
STATISTICS.
(a) DISPARATE IMPACT.—The fact that an employ-
ment practice has a disparate impact, as the term ‘‘dispar-
ate impact’’ is used in section 703(k) of the Civil Rights
Act of 1964 (42 U.S.C. 2000e–2(k)), on the basis of sex-
ual orientation does not establish a prima facie violation
of this Act.
(b) COLLECTION OF STATISTICS.—The Commission
shall not collect statistics on sexual orientation from cov-
ered entities, or compel the collection of such statistics by
covered entities.
SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIB-
ITED.
(a) QUOTAS.—A covered entity shall not adopt or im-
plement a quota on the basis of sexual orientation.
(b) PREFERENTIAL TREATMENT.—A covered entity
shall not give preferential treatment to an individual on
the basis of sexual orientation.
(c) CONSENT DECREES.—The Commission may not
enter into a consent decree that includes a quota, or pref-
erential treatment to an individual, based on sexual ori-
entation.
SEC. 9. RELIGIOUS EXEMPTION.
(a) IN GENERAL.—Except as provided in subsection
(b), this Act shall not apply to a religious organization.
(b) UNRELATED BUSINESS TAXABLE INCOME.—This
Act shall apply to employment or an employment oppor-
tunity for an employment position of a covered entity that
is a religious organization, if the duties of the position per-
tain solely to activities of the organization that generate
unrelated business taxable income subject to taxation
under section 511(a) of the Internal Revenue Code of
1986.
SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED
FORCES; VETERANS’ PREFERENCES.
(a) ARMED FORCES.—
(1) EMPLOYMENT OR AN EMPLOYMENT OPPOR-
TUNITY.—In this Act, the term ‘‘employment or an
employment opportunity’’ does not apply to the rela-
tionship between 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 Act does not
repeal or modify any Federal, State, territorial, or local
law creating a special right or preference concerning em-
ployment or an employment opportunity for a veteran.
SEC. 11. CONSTRUCTION.
Nothing in this Act shall be construed to prohibit a
covered entity from enforcing rules regarding nonprivate
sexual conduct, if the rules of conduct are designed for,
and uniformly applied to, all individuals regardless of sex-
ual orientation.
SEC. 12. 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 (2 U.S.C.
1202 and 1220);
in the case of a claim alleged by the individual for
a violation of such title or of section 302(a)(1) of
such Act (2 U.S.C. 1202(a)(1)), respectively;
(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 the 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 the 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 (2 U.S.C.
1202 and 1220);
in the case of a claim alleged by the individual for
a violation of such title or of section 302(a)(1) of
such Act (2 U.S.C. 1202(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 the individual for a violation
of section 411 of such title;
(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 the individual for a violation
of such title;
(B) sections 302 and 304 of the Govern-
ment Employee Rights Act of 1991 (2 U.S.C.
1202 and 1220) in the case of a claim alleged
by the individual for a violation of section
302(a)(1) of such Act (2 U.S.C. 1202(a)(1));
(C) the Congressional Accountability Act
of 1995 (2 U.S.C. 1301 et seq.) in the case of
a claim alleged by the individual for a violation
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 the indi-
vidual 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 the 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 the 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 the individual for a
violation of such section; and
(4) 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 the individual
for a violation of such section.
(c) OTHER APPLICABLE PROVISIONS.—With respect
to a claim alleged by a covered employee (as defined in
section 101 of the Congressional Accountability Act of
1995 (2 U.S.C. 1301)) for a violation of this Act, title
III of the Congressional Accountability Act of 1995 (2
U.S.C. 1381 et seq.) shall apply in the same manner as
such title applies with respect to a claim alleged by such
a covered employee for a violation of section 201(a)(1) of
such Act (2 U.S.C. 1311(a)(1)).
SEC. 13. STATE AND FEDERAL IMMUNITY.
(a) STATE IMMUNITY.—A State shall not be immune
under the 11th amendment to the Constitution from an
action in a Federal court of competent jurisdiction for a
violation of this Act.
(b) REMEDIES AGAINST THE UNITED STATES AND
THE STATES.—Notwithstanding any other provision of
this Act, in an action or administrative proceeding against
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. 14. 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 12(a) (other than
paragraph (4) of such section), in the discretion of the
entity, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee (including ex-
pert fees) as part of the costs. The United States shall
be liable for the costs to the same extent as a private per-
son.
SEC. 15. POSTING NOTICES.
A covered entity shall post notices for employees, ap-
plicants for employment, and members, to whom the provi-
sions specified in section 12(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 (42 U.S.C. 2000e–10).
SEC. 16. 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 of the Library of
Congress.
(c) BOARD.—The Board referred to in section
12(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 401 of title 3,
United States Code.
SEC. 17. RELATIONSHIP TO OTHER LAWS.
This Act shall not invalidate or limit the rights, rem-
edies, or procedures available to an individual claiming
discrimination prohibited under any other Federal law or
any law of a State or political subdivision of a State.
SEC. 18. 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 circumstance shall not
be affected by the invalidity.
SEC. 19. EFFECTIVE DATE.
(a) IN GENERAL.—Except as provided in subsection
(b), this Act shall take effect 60 days after the date of
enactment of this Act and shall not apply to conduct oc-
curring before the effective date.
(b) PRESIDENTIAL OFFICES.—The second sentence
of section 3(2), and sections 12(a)(5), 12(a)(6)(D),
12(b)(4), and 16(d), shall take effect on, and shall not
apply to conduct occurring before, the later of—
(1) October 1, 1997; and
(2) the effective date described in subsection
(a).
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