II 114th CONGRESS 2d Session S. 3089 IN THE SENATE OF THE UNITED STATES June 23, 2016 Ms. Baldwin (for herself, Mr. Blumenthal , Ms. Mikulski , Mr. Markey , Mr. Franken , Mr. Leahy , Mrs. Murray , Mr. Schatz , and Mr. Durbin ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend title VII of the Civil Rights Act of 1964 and other statutes to clarify appropriate liability standards for Federal antidiscrimination claims.

1. Short title This Act may be cited as the Fair Employment Protection Act of 2016 . 2. Findings and purposes (a) Findings Congress finds the following: (1) Harassment is a widespread problem in workplaces in the United States. In fiscal year 2014, nearly 30 percent of the charges filed with the Equal Employment Opportunity Commission (hereinafter referred to as the EEOC ) under all the statutes the agency enforces were on the basis of sex. Women filed 19,605, or 74.4 percent, of those charges. (2) Women and people of color working in low-wage jobs are particularly vulnerable to harassment in the workplace. (3) In some industries, harassment is even more widespread. For example, 80 percent of female farm-workers working in the fields in central California reported that they had experienced sexual harassment. (4) Studies indicate that sexual harassment of women, including unwanted touching, grabbing, and stalking, is also common in male-dominated industries, such as construction, public safety, manufacturing, farming, and the high-tech industry. Harassment in male-dominated industries operates as a barrier to women’s entry into higher-paying jobs. (5) Racial harassment remains a pervasive problem in the workplace in the United States. In fiscal year 2015, 34.7 percent of the charges filed with the EEOC were charges of racial harassment. (6) Research shows that workers in a wide spectrum of occupations, ranging from service and support positions to management and professional positions, report experiencing race-based harassment while on the job. (7) Harassment in the workplace is a persistent barrier to opportunity for people with disabilities. Harassment can result in workers with disabilities being forced off the job. Workplace harassment is used to send the message that workers with disabilities do not belong at work. (8) Age discrimination continues to be a barrier to employment for older workers. Nearly one-third of older workers report that they or someone they know experienced age discrimination in the workplace. (9) The Supreme Court’s decision in Vance v. Ball State University, No. 11–556 (June 24, 2013), significantly undermines protections against discrimination that the Supreme Court established in Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), which held that an employer may be vicariously liable under title VII of the Civil Rights Act of 1964 for harassment of an employee by an individual that has supervisory authority over that employee. (10) In Faragher and Ellerth, the Supreme Court held that employers will be subject to a strict liability standard when employees with supervisory authority engage in harassment that results in tangible employment actions . However, in situations where supervisors engage in harassment that does not result in tangible employment actions, the Court explained, an employer can avoid vicarious liability by showing that— (A) the employer exercised reasonable care to prevent and correct any harassing behavior; and (B) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. (11) Whether an employer should be vicariously liable for harassment is a functional analysis that is based not on the title of the harasser or employer's job description for the harasser's position but on the authority vested in that individual by the employer. (12) The Supreme Court holding in Vance limits the category of individuals who are considered supervisors and for which an employer may be held vicariously liable under Faragher and Ellerth to those individuals that have authority to take tangible employment actions. This holding ignores the reality that employees with the authority to control their subordinates’ daily work should be included in that category, for which an employer may be held vicariously liable, because such individuals are aided by that authority in perpetuating a discriminatory work environment. (13) Individuals who direct the daily work activities of employees but do not have the authority to take tangible employment actions against those employees are common in the workplace in the United States, particularly in industries that employ low-wage workers. Workers in industries including retail, restaurant, health care, housekeeping, and personal care, which may pay low wages and employ a large number of female workers, are particularly vulnerable to harassment by individuals who have the power to direct day-to-day work activities but lack the power to take tangible employment actions. (b) Purpose The purpose of this Act is to clarify that an employer’s vicarious liability for harassment under title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, section 1977 of the Revised Statutes, the Genetic Information Nondiscrimination Act of 2008, the Government Employee Rights Act of 1991, the Congressional Accountability Act of 1995, and title III of the United States Code extends to— (1) an individual with the authority to undertake or recommend tangible employment actions affecting the victim of the harassment; or (2) an individual with the authority to direct the victim’s daily work activities. 3. Amendment to title VII of the Civil Rights Act of 1964 (a) Standard for employer liability for hostile work environment Section 703 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–2 ) is amended by adding at the end the following: (o) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes an unlawful employment practice under this section if, at the time of the harassment— (1) such individual was authorized by that employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee’s daily work activities; or (2) the negligence of the employer led to the creation or continuation of that hostile work environment. . (b) Standard for employer liability for retaliatory hostile work environment Section 704 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–3 ) is amended— (1) by redesignating subsection (b) as subsection (c); and (2) by inserting after subsection (a) the following: (b) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes an unlawful employment practice as described under subsection (a) if, at the time of the harassment— (1) such individual was authorized by that employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee’s daily work activities; or (2) the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment. . (c) Federal employees Section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–16 ) is amended by adding at the end the following: (g) The provisions of sections 703(o) and 704(b) shall apply to hostile work environment claims and retaliatory hostile work environment claims, respectively, under this section. . 4. Amendment to the Age Discrimination in Employment Act (a) Standard for employer liability for hostile work environment Section 4 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 623 ) is amended by adding at the end the following: (n) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that is unlawful under this section if, at the time of the harassment— (1) such individual was authorized by that employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee’s daily work activities; or (2) the negligence of the employer led to the creation or continuation of that hostile work environment. . (b) Standard for employer liability for retaliatory hostile work environment Section 4(d) of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 623 ) is amended by striking or litigation under this Act. and inserting or litigation under this Act. Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that is unlawful under this subsection if, at the time of the harassment— (1) such individual was authorized by that employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee’s daily work activities; or (2) the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment. . (c) Federal employees Section 15 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 633a ) is amended by adding at the end the following: (h) Subsections (d) and (n) of section 4 shall apply to retaliatory hostile work environment claims and hostile work environment claims, respectively, under this section. . 5. Amendment to the Americans With Disabilities Act (a) Standard for employer liability for hostile work environment Section 102 of the Americans with Disabilities Act ( 42 U.S.C. 12112 ) is amended by adding at the end the following: (e) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes discrimination against a qualified individual on the basis of disability under this section if, at the time of the harassment— (1) such individual was authorized by the employer— (A) to undertake or recommend tangible employment actions affecting the qualified individual; or (B) to direct the qualified individual's daily work activities; or (2) the negligence of the employer led to the creation or continuation of that hostile work environment. . (b) Standard for employer liability for retaliatory hostile work environment Section 503 of the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12203 ) is amended— (1) by redesignating subsection (c) as subsection (d); (2) by inserting after subsection (b) the following: (c) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes retaliatory discrimination, as described in subsection (a), or the carrying out of any unlawful acts described in subsection (b), if, at the time of the harassment— (1) such individual was authorized by the employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee's daily work activities; or (2) the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment. ; and (3) in subsection (d), as redesignated by paragraph (1), by striking subsections (a) and (b) and inserting subsections (a), (b), and (c) . 6. Amendment to the Rehabilitation Act (a) Standard for employer liability for hostile work environment and Retaliatory Hostile Work Environment Section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. 791 ) is amended by adding at the end the following: (h) Subject to section 12 of the Fair Employment Protection Act of 2016 , each department, agency, and instrumentality in the executive branch of the Government and the Smithsonian Institution shall be liable for the acts of any individual within such department, agency, instrumentality, or the Smithsonian Institution whose harassment of an individual with a disability has created or continued a hostile work environment, or a retaliatory hostile work environment, that constitutes nonaffirmative action employment discrimination under this section if, at the time of the harassment— (1) such individual was authorized by that department, agency, instrumentality, or the Smithsonian Institution— (A) to undertake or recommend tangible employment actions affecting the individual with a disability; or (B) to direct the daily work activities of the individual with a disability; or (2) the negligence of that department, agency, instrumentality, or the Smithsonian Institution led to the creation or continuation of that hostile work environment or retaliatory hostile work environment. . (b) Standard for employer liability for hostile work environment and retaliatory hostile work environment Section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. 794 ) is amended by adding at the end the following: (e) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer described under subsection (b) shall be liable for the acts of any individual whose harassment of a qualified individual with a disability has created or continued a hostile work environment, or a retaliatory hostile work environment, that constitutes employment discrimination under this section if, at the time of the harassment— (1) such individual was authorized by such employer— (A) to undertake or recommend tangible employment actions affecting the qualified individual with a disability; or (B) to direct the daily work activities of the qualified individual with a disability; or (2) the negligence of such employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment. . (c) Remedies Section 505 of the Rehabilitation Act ( 29 U.S.C. 794a ) is amended by adding at the end of subsection (a) the following: (3) Sections 501(h) and 504(e) shall apply to hostile work environment claims and retaliatory hostile work environment claims under this section. . 7. Amendment to section 1977 of the Revised Statutes Section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) is amended by adding at the end the following: (d) Subject to section 12 of the Fair Employment Protection Act of 2016 , a nongovernmental employer shall be liable for the acts of any individual whose harassment of an employee has created a hostile work environment or a retaliatory hostile work environment, constituting an unlawful employment practice, if, at the time of the harassment— (1) such individual was authorized by the employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee’s daily work activities; or (2) the negligence of the employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment. . 8. Amendment to the Genetic Information Nondiscrimination Act of 2008 (a) Standard for employer liability for hostile work environment Section 202 of the Genetic Information Nondiscrimination Act of 2008 ( 42 U.S.C. 2000ff–1 ) is amended by adding at the end the following: (d) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes an unlawful employment practice under this section if, at the time of the harassment— (1) such individual was authorized by the employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee’s daily work activities; or (2) the negligence of the employer led to the creation or continuation of that hostile work environment. . (b) Standard for employer liability for retaliatory hostile work environment Section 207(f) of the Genetic Information Nondiscrimination Act ( 42 U.S.C. 2000ff–6(f) ) is amended by striking violations of this subsection. and inserting violations of this subsection. Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes discrimination under this subsection if, at the time of the harassment— (1) such individual was authorized by the employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee’s daily work activities; or (2) the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment. . 9. Amendment to the Government Employee Rights Act of 1991 Section 302 of the Government Employee Rights Act of 1991 ( 42 U.S.C. 2000e–16b ) is amended by adding at the end the following: (c) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employer of an individual described under section 304(a) shall be liable for the acts of any individual whose harassment of a State employee described in section 304 has created or continued a hostile work environment or a retaliatory hostile work environment constituting discrimination under this section, if at the time of the harassment— (1) such individual was authorized by such employer— (A) to undertake or recommend tangible employment actions affecting the employee; or (B) to direct the employee’s daily work activities; or (2) the negligence of the employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment. . 10. Amendment to title 3 of the United States Code Section 411 of title 3, United States Code, is amended— (1) by redesignating subsections (c) through (f) as subsections (d) through (g), respectively; and (2) by inserting after subsection (b) the following: (c) Liability of employing office Subject to section 12 of the Fair Employment Protection Act of 2016 , an employing office shall be liable for the acts of any individual whose harassment of a covered employee has created or continued a hostile work environment or a retaliatory hostile work environment constituting discrimination under this section if, at the time of the harassment— (1) such individual was authorized by the employing office— (A) to undertake or recommend tangible employment actions affecting the covered employee; or (B) to direct the covered employee’s daily work activities; or (2) the negligence of the employing office led to the creation or continuation of that hostile work environment or retaliatory hostile work environment. ; and (3) in subsection (f), as redesignated by paragraph (2), by striking “subsections (a) through (c)” and inserting “subsections (a) through (d).”. 11. Amendment to the Congressional Accountability Act of 1995 Section 201 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1311 ) is amended— (1) by redesignating subsection (d) as subsection (e); and (2) by inserting after subsection (c) the following: (d) Subject to section 12 of the Fair Employment Protection Act of 2016 , an employing office shall be liable for the acts of any individual whose harassment of a covered employee has created or continued a hostile work environment or a retaliatory hostile work environment that constitutes discrimination under this section if, at the time of the harassment— (1) such individual was authorized by the employing office— (A) to undertake or recommend tangible employment actions affecting the covered employee; or (B) to direct the covered employee’s daily work activities; or (2) the negligence of the employing office led to the creation or continuation of that hostile work environment or retaliatory hostile work environment. . 12. Rule of construction Nothing in this Act shall be construed to limit the availability of, or access to, defenses available under the law. 13. Savings clause If any provision of this Act is declared invalid, the other provisions in this Act will remain in full force and effect. 14. Application This Act, and the amendments made by this Act, shall apply to all claims pending on or after the date of enactment of this Act.