II 115th CONGRESS 2d Session S. 2994 IN THE SENATE OF THE UNITED STATES June 5, 2018 Ms. Harris (for herself and Ms. Murkowski ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To deter, prevent, reduce, and respond to harassment in the workplace, including sexual harassment, sexual assault, and harassment based on protected categories.

1. Short title This Act may be cited as the Ending the Monopoly of Power Over Workplace Harassment through Education and Reporting Act-Part I or the EMPOWER Act-Part I . 2. Purpose and authority It is the purpose of this Act, through the exercise by Congress of its power to regulate commerce among the several States, to deter, prevent, reduce, and respond to harassment in the workplace, including sexual harassment, sexual assault, and harassment based on other protected categories. 3. Definitions In this Act: (1) Applicant The term applicant means an applicant for employment as an employee, independent contractor, or outside worker. (2) Charge of Discrimination The term Charge of Discrimination means a charge of discrimination filed pursuant to section 706 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–5 ). (3) Commission The term Commission means the Equal Employment Opportunity Commission. (4) Employee The term employee means— (A) an individual employed by an employer described in paragraph (5), including an outside worker in such individual's office or place of employment; (B) an employee to which section 703, 704 or 717(a) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–2 ; 2000e–3; 2000e–16(a)) applies, including an outside worker in such an employee's office or place of employment; (C) a State employee to which section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)) applies, including an outside worker in such a State employee's office or place of employment; or (D) a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 ) or section 411(c) of title 3, United States Code, including an outside worker in such a covered employee's office or place of employment. (5) Employer The term employer means— (A) a person engaged in an industry affecting commerce, and any agent of such a person; (B) an entity to which section 703, 704, or 717(a) of the Civil Rights Act of 1964 applies; (C) an employing authority to which section 302(a)(1) of the Government Employee Rights Act of 1991 applies; or (D) an employing office, as defined in section 101 of the Congressional Accountability Act of 1995 or section 411(c) of title 3, United States Code. (6) Fair employment practices agencies The term fair employment practices agencies means State and local agencies with the authority to enforce laws or regulations to prohibit discrimination in employment. (7) Independent contractor The term independent contractor means an individual who, with respect to an employer, is a contractor based on the common law of agency. (8) Law enforcement agency The term law enforcement agency means a government agency with criminal or civil law enforcement powers, which may include a government agency with regulatory or licensing authority. (9) Nondisclosure clause The term nondisclosure clause means a provision in a contract or agreement establishing that the parties to the contract or agreement agree not to disclose information covered by the terms and conditions of the contract or agreement. (10) 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 the other. (11) Outside worker The term outside worker means— (A) a temporary worker hired through an employment agency (as defined in section 701 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e )) to provide services to an employer pursuant to an agreement between the employment agency and the employer; (B) an independent contractor for an employer or a subcontractor thereof; or (C) an intern or volunteer, whether paid or unpaid, for an employer. (12) Sexual assault The term sexual assault means any nonconsensual sexual act proscribed by Federal, tribal, or State law, including such an act that occurs when the victim lacks capacity to consent. (13) Subcontractor The term subcontractor means any employer having a contract with a prime contractor or another subcontractor calling for supplies or services required for the performance of a contract or a government contract. (14) Workplace harassment The term workplace harassment means unwelcome or offensive conduct based on sex (including such conduct based on sexual orientation, gender identity, and pregnancy), race, color, national origin, disability, age, or religion, whether that conduct occurs in-person or through an electronic medium (which may include social media), in a work or work-related context, which affects any term, condition, or privilege of employment. 4. Prohibiting nondisparagement and nondisclosure clauses that cover workplace harassment, including sexual harassment (a) Unlawful practices (1) Prohibition on workplace harassment nondisclosure clause Subject to subsection (b)(1), it shall be an unlawful practice for an employer to enter into a contract or agreement with an employee or applicant, as a condition of employment, promotion, compensation, benefits, or change in employment status or contractual relationship, or as a term, condition, or privilege of employment, if that contract or agreement contains a nondisparagement or nondisclosure clause that covers workplace harassment, including sexual harassment or retaliation for reporting, resisting, opposing, or assisting in the investigation of workplace harassment. (2) Prohibition on enforcement Notwithstanding any other provision of law, it shall be an unlawful practice and otherwise unlawful for an employer to enforce or attempt to enforce a nondisparagement clause or nondisclosure clause described in paragraph (1). (b) Settlement or separation agreements (1) In General The provisions of subsection (a) do not apply to a nondisclosure clause or nondisparagement clause contained in a settlement agreement or separation agreement that resolves legal claims or disputes when— (A) such legal claims accrued or such disputes arose before the settlement agreement or separation agreement was executed; and (B) such clauses are mutually agreed upon and mutually benefit both the employer and employee. (2) Unlawful practice It shall be an unlawful practice for an employer to unilaterally include a nondisclosure clause or a nondisparagement clause that solely benefits the employer in a separation or settlement agreement. (c) Right To report reserved Not­with­stand­ing signing (before or after the effective date of this Act) any nondisparagement or nondisclosure clause including a clause referred to in subsection (a)(1), an employee or applicant retains any right that person would otherwise have had to report a concern about workplace harassment, including sexual harassment 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 State or local agency, or a law enforcement agency, and any right that person would otherwise have had to bring an action in a court of the United States. (d) Enforcement (1) Enforcement powers With respect to the administration and enforcement of this section in the case of a claim alleged by an employee for a violation of this section— (A) the Commission shall have the same powers as the Commission has to administer and enforce— (i) title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.); or (ii) sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c), in the case of a claim alleged by such employee for a violation of such title, or of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), respectively; (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 such employee for a violation of such title; (C) the Board (as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 )) shall have the same powers as the Board has to administer and enforce the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 et seq.) in the case of a claim alleged by such employee for a violation of section 201(a)(1) of such Act ( 2 U.S.C. 1311(a)(1) ); (D) the Attorney General shall have the same powers as the Attorney General has to administer and enforce— (i) title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.); or (ii) sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c); in the case of a claim alleged by such employee for a violation of such title, or of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), respectively; (E) 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 such employee for a violation of section 411 of such title; (F) the Commission shall have the same powers as described in subparagraph (A) to administer and enforce a claim by any employee who is not otherwise able to seek remedy for a claim through an enforcement entity described in subparagraph (A) through (E); and (G) 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 such employee for a violation of such title or in the case of a claim described in subparagraph (F); (ii) sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c) in the case of a claim alleged by such employee for a violation of section 302(a)(1) of such Act (42 U.S.C. 2000e–16b(a)(1)); (iii) the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 et seq.) in the case of a claim alleged by such employee for a violation of section 201(a)(1) of such Act ( 2 U.S.C. 1311(a)(1) ); and (iv) chapter 5 of title 3, United States Code, in the case of a claim alleged by such employee 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 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 such employee for a violation of such title or in the case of a claim described in paragraph (1)(F); (B) the procedures and remedies applicable for a violation of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)) in the case of a claim alleged by such employee for a violation of such section; (C) 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 such employee for a violation of such section; and (D) 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 such employee for a violation of such section. (3) Other applicable provisions With respect to a claim alleged by a covered employee (as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 )) for a violation of this section, title III of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1381 et seq.) shall apply in the same manner as such title applies with respect to a claim alleged by such a covered employee for a violation of section 201(a)(1) of such Act ( 2 U.S.C. 1311(a)(1) ). (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 employees and applicants for employment of the Library of Congress. (3) Board The Board referred to in subsection (d)(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 covered employees, as defined in section 101 of such Act ( 2 U.S.C. 1301 ). (4) President The President shall have authority to issue regulations to carry out this section with respect to covered employees, as defined in section 411(c) of title 3, United States Code, and applicants for employment as such employees. (f) State and Federal immunity (1) Abrogation of State immunity A State shall not be immune under the 11th Amendment to the Constitution from a suit brought in a Federal court of competent jurisdiction for a violation of this section. (2) Waiver of State immunity (A) In general (i) Waiver A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution or otherwise, to a suit brought by an employee or applicant for employment of that program or activity under this section for a remedy authorized under subsection (d). (ii) Definition In this paragraph, the term program or activity has the meaning given the term in section 606 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d–4a ). (B) Effective date With respect to a particular program or activity, subparagraph (A) applies to conduct occurring on or after the day, after the date of enactment of this Act, on which a State first receives or uses Federal financial assistance for that program or activity. (3) Remedies against State officials An official of a State may be sued in the official capacity of the official by any employee or applicant for employment who has complied with the applicable procedures of subsection (d), for equitable relief that is authorized under this section. In such a suit the court may award to the prevailing party those costs authorized by section 722 of the Revised Statutes ( 42 U.S.C. 1988 ). (4) Remedies against the United States and the States Notwithstanding any other provision of this Act, in an action or administrative proceeding against the United States or a State for a violation of this 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 a private entity, except that— (A) punitive damages are not available; and (B) compensatory damages are available to the extent specified in section 1977A(b) of the Revised Statutes ( 42 U.S.C. 1981a(b) ). 5. Confidential tip-line addressing employers with widespread and systemic workplace harassment (a) Confidential tip-Line established (1) In general Not later than 1 year after the date of enactment of this Act, the Commission shall establish a confidential tip-line that supplements the Commission’s existing process for submitting a Charge of Discrimination, and that has the characteristics described in paragraph (2), to— (A) receive, log, and acknowledge the receipt of reports by employees, applicants, bystanders, or other individuals who attest that they have experienced or witnessed workplace harassment, including sexual assault and other forms of sexual harassment; (B) provide informational materials to reporting individuals described in subparagraph (A); and (C) make available reports described in subparagraph (A) to— (i) the Commission; and (ii) Commission-approved fair employment practices agencies for potential investigation. (2) Operation of the tip-line The Commission shall ensure that the tip-line established under this section will— (A) explicitly notify reporting individuals that the tip-line does not allow anonymous reporting, but does allow the submission of confidential reports, independent of a Charge of Discrimination or a Federal or State administrative complaint, by those employees or applicants who have experienced workplace harassment, including sexual assault and other forms of sexual harassment, and by those employees, applicants, bystanders, or other individuals who have witnessed such conduct; (B) provide an option for reporting individuals to make a report that would not identify individual employees, but would identify the entity, employer, division, or subdivision responsible for the workplace harassment, including sexual assault and other forms of sexual harassment; (C) educate reporting individuals about how to preserve the right to make any reports, complaints, or charges that the individuals would otherwise have been eligible to make, independent of any report to the tip-line, including— (i) the right of the reporting individual to file a Charge of Discrimination that will result in the Commission or a Commission-approved fair employment practices agency taking action (and the risk of losing that right if the reporting individual fails to file a timely Charge of Discrimination); and (ii) a clear explanation of any deadlines or limitations periods; (D) instruct reporting individuals about how to file a Charge of Discrimination with the Commission and encourage reporting individuals to file a Charge of Discrimination in order to allow the Commission to more effectively investigate the workplace harassment; (E) emphasize that reports to the confidential tip-line— (i) will not prompt individualized investigations, except in the limited circumstances described in clause (ii), subparagraph (I), and subsection (b), and such investigations will fully comport with applicable due process requirements; (ii) will be monitored by the Commission and Commission-approved fair employment practices agencies to identify trends and determine whether investigations should be undertaken, for instance, when the Commission has received multiple complaints regarding a particular employer or there is evidence of a broader pattern or practice of workplace harassment; (iii) shall not be discoverable in civil cases, unless the reporting individual waives the confidentiality of the submitted reports; and (iv) shall not be shared with other Federal agencies; (F) engage fair employment practices agencies at the State and local level to apply and be thoroughly vetted and reviewed for approved access to the confidential tip-line; (G) share information from the tip-line, including information on opened investigations, only between and among participating approved fair employment practices agencies and the Commission to facilitate coordination and avoid conflicts in investigations and resolutions; (H) offer an option to each reporting individual, at the time of reporting, to elect to be informed, to the extent practicable, if the individual's report leads to an investigation, so that the reporting individual may choose to provide further information or participate in any resulting investigation; and (I) protect the identity of individuals making reports and employers by making such reports confidential within the tip-line and only available to the Commission and Commission-approved fair employment practices agencies, and require that information obtained can be used only for the purpose of investigation related to the submitted complaint or complaints, in full compliance with applicable due process requirements. (b) Charge of Discrimination In the event that a member of the Commission determines that information received from the tip-line warrants an investigation, the member may initiate an investigation by filing a Charge of Discrimination in accordance with section 706 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–5 ). (c) Education about the tip-Line The Commission shall disseminate information and educate the public about the tip-line established under this section. (d) Unlawful practices with respect to the tip line (1) Other unlawful practice It shall be unlawful to engage in any unlawful employment practice described in section 704 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–3 ) with respect to the tip line under this section, including contacting or making threats to contact law enforcement authorities, such as the police, immigration officials, or other officials, with respect to an employee or applicant because that employee or applicant has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this section. (2) Confidentiality It shall be unlawful for any officer or employee of the Commission, or any Commission-approved fair employment practices agencies, to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section, prior to institution of any proceeding under section 706 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–5 ), except that the Commission, or any Commission-approved fair employment practices agency, shall offer information to reporting individuals in accordance with this section. (3) Enforcement The enforcement provisions described in section 4(d) shall apply in the same manner to the enforcement of a violation described in paragraph (1) or (2). (e) Effective date This section shall first take effect on the first day of the first fiscal year for which $1,500,000 is appropriated to carry out this section. (f) Annual minimum The Commission shall not be required to implement this section in any fiscal year for which less than $1,000,000 is appropriated to carry out this section. 6. SEC filings and material disclosures at public companies (a) Definitions In this section— (1) the term Form 10–K means the form described in section 249.310 of title 17, Code of Federal Regulations, or any successor regulation; and (2) the term issuer has the meaning given the term in section 3(a) of the Securities Exchange Act of 1934 ( 15 U.S.C. 78c(a) ). (b) Findings Congress finds that— (1) shareholders and the public should know whether corporations— (A) are expending company funds to resolve, settle, or litigate claims of workplace harassment, including sexual harassment; and (B) along with the executives and managers of those corporations— (i) are complying with prohibitions against workplace harassment, including sexual harassment; and (ii) facilitate a culture of silence, disrespect, intimidation, and abuse that negatively impacts the health and safety of the workers of those corporations and the value of those corporations; and (2) the requirements of this section will— (A) establish necessary transparency and accountability; and (B) provide an incentive for corporations to— (i) promptly address workplace harassment, including sexual harassment, as that misconduct occurs; and (ii) foster a culture in which workplace harassment is not protected and does not occur. (c) Information required Not later than 1 year after the date of enactment of this Act, the Securities and Exchange Commission shall promulgate a regulation that requires any issuer that is required to submit an annual report using Form 10–K to include in any such submission— (1) during the period covered by the submission— (A) with respect to workplace harassment, including sexual harassment, and retaliation for reporting, resisting, opposing, or assisting in the investigation of workplace harassment— (i) the number of settlements reached by the issuer as a signatory or when the issuer is a beneficiary of a release of claims; and (ii) whether any judgments or awards (including awards through arbitration or administrative proceedings) were entered against the issuer in part or in whole, or any payments made in connection with a release of claims; and (B) the total amount paid by the issuer or another party as a result of— (i) the settlements described in subparagraph (A)(i); and (ii) the judgments described in subparagraph (A)(ii); and (2) information regarding whether, in the aggregate, including the period covered by the submission, there have been three or more settlements reached by, or judgments against, the issuer with respect to workplace harassment, including sexual harassment, or retaliation for reporting, resisting, opposing, or assisting in the investigation of workplace harassment that relate to a particular individual employed by the issuer, without identifying that individual by name. 7. Professional training, including bystander training, and public education campaigns (a) Commission authority The Commission shall have the authority to— (1) reasonably adjust the fees the Commission charges for any education, technical assistance, or training the Commission offers in accordance with section 705(j)(1) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–4(j)(1) ); (2) use the materials developed by the Commission for any education, technical assistance, or training offered by the Commission in accordance with section 705(j)(1) of the Civil Rights Act of 1964 in any education and outreach activities carried out by the Commission; and (3) use funds from the EEOC Education, Technical Assistance, and Training Revolving Fund, established under section 705(k) of the Civil Rights Act of 1964, to pay the full salaries of any Commission employees that develop and administer any education, technical assistance, or training programs offered by the Commission. (b) Workplace training (1) In general The Commission shall provide for the development and dissemination of workplace training programs and information regarding workplace harassment, including sexual harassment. (2) Contents of training The training provided by the Commission under this subsection to managers and nonmanagers shall be consistent with the findings of the Commission, on matters including— (A) what constitutes workplace harassment, including sexual harassment; (B) the rights of individuals with respect to workplace harassment and how to report workplace harassment; (C) how individuals, including bystanders, who encounter workplace harassment can intervene or report the harassment; and (D) how employers and managers can prevent workplace harassment, including sexual harassment, from occurring in the workplace. (3) Contents of information In providing information under this subsection, the Commission shall— (A) prepare and distribute information that is consistent with the findings of the Commission; (B) develop and disseminate a public service advertisement campaign that— (i) distributes information with respect to the matters described in paragraph (2); and (ii) advertises the confidential complaint database established under section 5. (c) Effective date This section shall not take effect in any fiscal year for which less than $1,500,000 is appropriated to carry out this section.