Title: SHAPE Act of 2020
Policy area: International Affairs

Summary:
State Harassment and Assault Prevention and Eradication Act of 2020 or the SHAPE Act of 2020
This bill establishes policies, employee rights, and accountability measures to address harassment, discrimination, sexual assault, and related retaliation in the Department of State.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8465 Introduced in House (IH)]

<DOC>






116th CONGRESS
  2d Session
                                H. R. 8465

 To require the Secretary of State to develop policy and procedures on 
prevention and response to harassment, discrimination, sexual assault, 
            and related retaliation, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 30, 2020

 Ms. Speier (for herself, Mr. Engel, Mr. Castro of Texas, Ms. Norton, 
  Ms. Escobar, Ms. Haaland, Mr. Gonzalez of Texas, Mrs. Dingell, Mr. 
 Carson of Indiana, Mr. Price of North Carolina, Mr. San Nicolas, Mr. 
Kind, Mrs. Watson Coleman, Mr. Larson of Connecticut, Ms. Pingree, Ms. 
  Schakowsky, and Ms. Omar) introduced the following bill; which was 
 referred to the Committee on Foreign Affairs, and in addition to the 
    Committees on Education and Labor, Oversight and Reform, House 
  Administration, 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 jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To require the Secretary of State to develop policy and procedures on 
prevention and response to harassment, discrimination, sexual assault, 
            and related retaliation, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS; RULE OF CONSTRUCTION.

    (a) Short Title.--This Act may be cited as the ``State Harassment 
and Assault Prevention and Eradication Act of 2020'' or the ``SHAPE Act 
of 2020''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents; rule of construction.
Sec. 2. Department of State policy and procedures on prevention and 
                            response to harassment, discrimination, 
                            sexual assault, and related retaliation.
Sec. 3. Reporting, documentation, and investigation procedures.
Sec. 4. Sexual assault protocol and victim care.
Sec. 5. Rights of employees harassed, discriminated against, retaliated 
                            against, or sexually assaulted.
Sec. 6. Provision of climate surveys.
Sec. 7. Reports to Congress, the Department, and the public.
Sec. 8. Required training for Department personnel.
Sec. 9. Hiring, vetting, and promotion.
Sec. 10. Nondisclosure and nondisparagement agreements.
    (c) Rule of Construction.--Nothing in this Act 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) to officers and employees of the Department 
of State or applicants for employment at the Department.

SEC. 2. 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 Act.
            (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, entry-level officers, 
        locally employed staff, and the lesbian, gay, bisexual, 
        transgender, and queer (LGBTQ) community.
            (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 7.
    (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 discipline for incidents of harassment, discrimination, 
sexual assault, or related retaliation occurring between covered 
employees and non-covered employees.

SEC. 3. REPORTING, DOCUMENTATION, AND INVESTIGATION PROCEDURES.

    (a) Definitions.--In this Act--
            (1) the term ``covered employee'' means--
                    (A) any officer or employee (including any 
                temporary, part-time, contract, intermittent employee, 
                interns, fellows, 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)), to include Foreign Service 
                Officers, Foreign Service Specialists, Locally Employed 
                Staff, and Consular Agents; and
                    (C) an individual who is engaged by an employer or 
                entity as a contractor;
            (2) the term ``Office of Employee Advocacy'' means the 
        Office of Employee Advocacy, as established under subsection 
        (b);
            (3) the term ``Office of Civil Rights'' means the Office of 
        Civil Rights within the Department of State;
            (4) the term ``Global Talent Management'' means the Bureau 
        of Global Talent Management, Office of Employee Relations, 
        Conduct, Suitability, and Discipline Division within the 
        Department of State; and
            (5) the term ``Diplomatic Security'' means the Bureau of 
        Diplomatic Security within the Department of State.
            (6) the term ``harassment'' means--
                    (A) 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; and
                    (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) that 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 
                        subparagraph are among the factors to be 
                        considered in determining whether conduct 
                        constitutes harassment and are not meant to be 
                        exhaustive. No one of those factors shall be 
                        considered to be determinative in establishing 
                        whether conduct constitutes harassment. Such 
                        factors are each of the following--
                                    (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; and
                            (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.--
                    (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 Act, 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) 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) Employ attorneys licensed to practice law with 
                experience in harassment, discrimination, retaliation, 
                and assault complaints, and provide optional legal 
                assistance, consultation, and representation related to 
                a covered employee's complaint of harassment, 
                discrimination, sexual assault, or related retaliation. 
                In carrying out this subparagraph, the following shall 
                apply:
                            (i) The relationship between the Office and 
                        an employee to whom the Office provides legal 
                        assistance, consultation, and representation 
                        under this section shall be the relationship 
                        between an attorney and client.
                            (ii) Nothing in this section shall preclude 
                        covered employees from hiring their own 
                        attorneys or require them to use attorneys from 
                        the Office.
                            (iii) Notwithstanding any law regarding the 
                        licensure of attorneys, an attorney who is 
                        employed by the Office and is authorized to 
                        provide legal assistance and representation 
                        under this section is authorized to provide 
                        that assistance and representation in any 
                        jurisdiction, subject to such regulations as 
                        may be prescribed by the Office.
                            (iv) The Office may not accept any award of 
                        attorney fees or other litigation expenses and 
                        costs under any hearing or civil action 
                        brought.
                            (v) The Office must be empowered to be 
                        independent and work on behalf of complainants 
                        without undue pressure from State Department 
                        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 6.
            (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 State Department 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 State Department, 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 Act 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 must notify the House Committee on 
                Foreign Affairs and Senate Committee on Foreign 
                Relations 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 of the Foreign Service Act of 
        1980 (22 U.S.C. 4010) is amended by adding as follows:
    ``(c)(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 of the Foreign 
        Service Act of 1980 (22 U.S.C. 4010) is amended as follows:
    ``(a)(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'' and ``List of Disciplinary Offenses and Penalties'' to 
        reflect the amendments made by this subsection and communicate 
        such amendments to staff via Department Notices.
    (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 Act 
        and other applicable laws.
            (2) Reports to congress.--An analysis of such case reviews 
        shall be annually reported to the Committee on Oversight and 
        Reform and Committee on Foreign Affairs of the House of 
        Representatives and the Committee on Homeland Security and 
        Governmental Affairs and Committee on Foreign Relations of the 
        Senate in the report mandated in section 7(a).

SEC. 4. SEXUAL ASSAULT PROTOCOL AND VICTIM CARE.

    (a) Establishment.--
            (1) In general.--In addition to the other requirements of 
        this Act, 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''), and shall make 
        Advocates and other resources available to victims of other 
        agencies who fall under Chief of Mission authority at the 
        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.

SEC. 5. 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 
3(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 3--
                    (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 to 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.

SEC. 6. PROVISION OF CLIMATE SURVEYS.

    (a) Definitions.--In this section--
            (1) the term ``bureaus and offices of the Department of 
        State'' includes the Foreign Service (as that term is defined 
        in section 102 of the Foreign Service Act of 1980 (22 U.S.C. 
        3902));
            (2) the terms ``Department of State'' and ``Department'' 
        include the Foreign Service; and
            (3) the terms ``employees and officials of the Department 
        of State'' includes members of the Service (as that term is 
        defined in section 103 of the Foreign Service Act of 1980 (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 Act and other applicable laws, 
                including the effectiveness of the procedures 
                applicable under this Act 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''), the 
                nonprofit nongovernmental entity described in section 
                of the Violence Against Women Act of 1994 (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.

SEC. 7. 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 Affairs and Committee 
        on Oversight and Reform of the House of Representatives and the 
        Committee on Foreign Relations and Committee on Homeland 
        Security and Governmental Affairs of the Senate 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 6 of this Act, 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 2021 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.

SEC. 8. 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 2. 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'', to aid 
supervisors in understanding rights, responsibilities, and penalties 
associated with conduct of harassment, discrimination, sexual assault, 
and related retaliation.
    (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.

SEC. 9. 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.

SEC. 10. NONDISCLOSURE AND NONDISPARAGEMENT AGREEMENTS.

    (a) Definitions.--In this section--
            (1) Employee.--The term ``employee'' means any individual 
        subject to section 717 of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e-16), section 411(c) of title 3, United States 
        Code, or section 101(a)(3) of the Congressional Accountability 
        Act of 1995.
            (2) Employer.--The term ``employer'' means any employing 
        office referred to in section 1301(a)(9) of title 2, United 
        States Code, or section 411(c)(2) of title 3, United States 
        Code, or department, agency, or unit referred to in subsection 
        (a) of section 717 of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e-16).
            (3) Nondisclosure clause.--The term ``nondisclosure 
        clause'' means a provision in a contract or agreement 
        establishing that one or more parties to the contract or 
        agreement agrees not to disclose information covered by the 
        terms and conditions of the contract or agreement.
            (4) Nondisparagement clause.--The term ``nondisparagement 
        clause'' means a provision in a contract or agreement requiring 
        one or more parties to the contract or agreement not to make 
        negative statements about another such party.
    (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.) in the case of a claim 
                alleged by an employee of the employer for a violation 
                of such title;
                    (C) the Board (as defined in section 101(a) of the 
                Congressional Accountability Act of 1995 (2 U.S.C. 
                1301(a))) shall have the same powers as the Board has 
                to administer and enforce the Congressional 
                Accountability Act of 1995 (2 U.S.C. 1301 et seq.) in 
                the case of a claim alleged by an employee of the 
                employer for a violation of section 201(a)(1) of such 
                Act (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, have to administer and enforce chapter 5 
                of title 3, United States Code, in the case of a claim 
                alleged by an employee of the employer for a violation 
                of section 411 of such title; and
                    (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.) in the case of a 
                        claim alleged by an employee of the employer 
                        for a violation of such title;
                            (ii) the Congressional Accountability Act 
                        of 1995 (2 U.S.C. 1301 et seq.) in the case of 
                        a claim alleged by an employee of the employer 
                        for a violation of section 201(a)(1) of such 
                        Act (2 U.S.C. 1311(a)(1)); and
                            (iii) chapter 5 of title 3, United States 
                        Code, in the case of a claim alleged by an 
                        employee of the employer for a violation of 
                        section 411 of such title.
            (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.) in the case of a claim 
                alleged by an employee of the employer for a violation 
                of such title;
                    (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)) in the 
                case of a claim alleged by an employee of the employer 
                for a violation of such section; and
                    (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), with respect to 
        employees described in subsection (c)(1)(C).
            (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 Act, 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.) by an employer, 
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)).
                                 <all>