II 116th CONGRESS 2d Session S. 3430 IN THE SENATE OF THE UNITED STATES March 10, 2020 Mr. Menendez introduced the following bill; which was read twice and referred to the Committee on Foreign Relations A BILL To promote diversity at the Department of State, to direct the Secretary of State to review the termination characterization of former members of the Department who were fired by reason of the sexual orientation of the official, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Department of State Inclusivity Act of 2020 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—A diverse workforce: recruitment, retention, and promotion Sec. 101. Definitions. Sec. 102. Office of the Chief Diversity Officer. Sec. 103. Collection, analysis, and dissemination of workforce data. Sec. 104. Exit interviews for workforce. Sec. 105. Recruitment and retention. Sec. 106. Sense of Congress on support for equal employment opportunity and merit principles criteria. Sec. 107. Leadership engagement and accountability. Sec. 108. Professional development opportunities and tools. Sec. 109. Examination and oral assessment for the Foreign Service. Sec. 110. Sense of Congress on veterans recruitment for the Foreign Service. Sec. 111. Payne fellowship authorization. Sec. 112. Expansion of Diplomats in Residence Program. Sec. 113. Use of gender neutral terms in employee evaluation forms. Sec. 114. Voluntary participation. TITLE II—Love Act of 2020 Sec. 201. Short title. Sec. 202. Findings. Sec. 203. Director General review. Sec. 204. Reports on reviews. Sec. 205. Establishment of Reconciliation Board. Sec. 206. Issuance of apology. Sec. 207. Establishment of permanent exhibit on the Lavender Scare. Sec. 208. Guidance on issuing visas. Sec. 209. Establishment of Advancement Board. I A diverse workforce: recruitment, retention, and promotion 101. Definitions In this title: (1) Applicant flow data The term applicant flow data means data that tracks the rate of applications for job positions among demographic categories. (2) Demographic data The term demographic data means facts or statistics relating to the demographic categories specified in the Office of Management and Budget statistical policy directive entitled Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (81 Fed. Reg. 67398). (3) Department The term Department means the Department of State. (4) Diversity The term diversity means those classes of persons protected under the Civil Rights Act of 1964 ( 42 U.S.C. 2000a et seq.) and the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12101 et seq.). (5) Secretary The term Secretary means the Secretary of State. (6) Workforce The term workforce means— (A) individuals serving in a position in the civil service (as defined in section 2101 of title 5, United States Code); (B) individuals who are members of the Foreign Service (as defined in section 103 of the Foreign Service Act of 1980 ( 22 U.S.C. 3902 )); (C) all individuals serving under a personal services agreement or personal services contract; (D) all individuals serving under a Foreign Service Limited appointment under section 309 of the Foreign Service Act of 1980 ( 22 U.S.C. 3949 ); or (E) individuals working in the Department of State under any other authority. 102. Office of the Chief Diversity Officer Section 1 of the State Department Basic Authorities Act of 1956 ( 22 U.S.C. 2651a ) is amended— (1) by redesignating subsection (g) as subsection (h); and (2) by inserting after subsection (f) the following new subsection: (g) Chief Diversity Officer (1) In general There shall be established within the Department of State in the immediate office of the Secretary of State an Office of the Chief Diversity Officer. The head of the Office of the Chief Diversity Officer shall report directly to the Secretary. (2) Duties The Office of the Chief Diversity Officer shall— (A) lead the development and implementation of proactive diversity, equity, and inclusion initiatives in support of the Department’s strategic plan to create a culture for equity, diversity, and inclusion; (B) collaborate with other Department offices and bureaus to support them in assessing potential barriers and developing strategies to recruit and retain a diverse workforce; (C) assess the Department’s need for, and recommend training initiatives on, cultural competency, gender differences, disability, sexual harassment, and other topics designed to increase awareness and support of equity and inclusion values; and (D) ensure the Department maintains compliance with all relevant and applicable laws and regulations. . 103. Collection, analysis, and dissemination of workforce data (a) Initial report Not later than 180 days after the date of the enactment of this Act, the Secretary shall, in consultation with the Director of the Office of Personnel Management and the Director of the Office of Management and Budget, submit to the appropriate congressional committees a report, which shall also be posted on a publicly available website of the Department in a searchable database format, that includes disaggregated demographic data and other information regarding the diversity of the workforce of the Department. (b) Data The report under subsection (a) shall include the following data: (1) Demographic data on each element of the workforce of the Department, disaggregated by rank and grade or grade-equivalent, with respect to the following groups: (A) Applicants for positions in the Department. (B) Individuals hired to join the workforce. (C) Individuals promoted during the 2-year period ending on the date of the enactment of this Act, including promotions to and within the Senior Executive Service or the Senior Foreign Service. (D) Individuals serving on applicable selection boards. (E) Members of any external advisory committee or board who are subject to appointment by individuals at senior positions in the Department. (F) Individuals participating in professional development programs of the Department, and the extent to which such participants have been placed into senior positions within the Department after such participation. (G) Individuals participating in mentorship or retention programs. (H) Individuals who separated from the agency during the 2-year period ending on the date of the enactment of this Act, including individuals in the Senior Executive Service or the Senior Foreign Service. (2) An assessment of agency compliance with the essential elements identified in Equal Employment Opportunity Commission Management Directive 715, effective October 1, 2003. (3) Data on the overall number of individuals who are part of the workforces of the Department of State overall and within each bureau of the Department, the percentages of such workforce corresponding to each element listed in section 101(6), and the percentages corresponding to each rank, grade, or grade-equivalent. (4) Data on the promotion outcomes of women and racial or ethnic minorities in mid-career ranks of the workforce. (5) Demographic data, disaggregated by rank and grade or grade-equivalent, of contractors and subcontractors, as well as the nongovernmental organizations and civil society organizations that win bids or obtain contracts and grants and serve as subcontractors. (c) Recommendation The Secretary may include in the report under subsection (a) a recommendation to the Director of Office of Management and Budget and to the appropriate congressional committees regarding whether the Department should collect more detailed data on demographic categories in addition to the race and ethnicity categories specified in the Office of Management and Budget statistical policy directive entitled Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (81 Fed. Reg. 67398). (d) Other contents The report under subsection (a) shall also describe the efforts of the Department— (1) to propagate fairness, impartiality, and inclusion in the work environment, both domestically and abroad; (2) to enforce anti-harassment and anti-discrimination policies; (3) to refrain from engaging in unlawful discrimination in any phase of the employment process, including recruitment, hiring, evaluation, assignments, promotion, retention, and training; (4) to prevent retaliation against employees for participating in a protected equal employment opportunity activity; (5) to provide reasonable accommodation for qualified employees and applicants with disabilities; and (6) to recruit a representative workforce by— (A) recruiting women and minorities; (B) recruiting at women’s colleges, historically Black colleges and universities, minority-serving institutions, and other institutions serving a significant percentage of minority students; (C) placing job advertisements in newspapers, magazines, and job sites oriented toward women and minorities; (D) sponsoring and recruiting at job fairs in urban and rural communities and land-grant colleges or universities; (E) providing opportunities through the Foreign Service Internship Program under chapter 12 of the Foreign Service Act of 1980 ( 22 U.S.C. 4141 et seq.) and other hiring initiatives, including a description of efforts to provide opportunities for paid internships; (F) recruiting mid-level and senior-level professionals through programs designed to increase minority representation in international affairs; (G) offering the Foreign Service written and oral assessment examinations in several locations throughout the United States to reduce the burden of applicants having to travel at their own expense to take either or both such examinations; and (H) supporting recruiting and hiring opportunities through— (i) the Charles B. Rangel International Affairs Fellowship Program; (ii) the Thomas R. Pickering Foreign Affairs Fellowship Program; (iii) the Donald M. Payne International Development Fellowship Program; and (iv) other initiatives, including agency-wide policy initiatives. (e) Annual updates Not later than one year after the publication of the report required under subsection (a), and annually thereafter for five years, the Secretary shall work with the Director of the Office of Personnel Management and the Director of the Office of Management and Budget to provide a report to the appropriate congressional committees, which shall be posted on the Department’s website, which may be included in another annual report required under another provision of law, that includes— (1) disaggregated demographic data relating to the workforce and information on the status of diversity and inclusion efforts of the Department; (2) an analysis of applicant flow data; and (3) disaggregated demographic data relating to participants in professional development programs of the Department and the rate of placement into senior positions for participants in such programs. 104. Exit interviews for workforce (a) Retained members The Director General of the Foreign Service and the Director of Human Resources of the Department should conduct periodic interviews with a representative and diverse cross-section of the workforce of the Department— (1) to understand the reasons of individuals in such workforce for remaining in a position in the Department; and (2) to receive feedback on workplace policies, professional development opportunities, and other issues affecting the decision of individuals in the workforce to remain in the Department. (b) Departing members The Director General of the Foreign Service and the Director of Human Resources shall provide an opportunity for an exit interview to each individual in the workforce of the Department who separates from service with the Department to better understand the reasons of such individual for leaving such service. (c) Use of analysis from interviews The Director General of the Foreign Service and the Director of Human Resources shall analyze demographic data and other information obtained through interviews under subsections (a) and (b) to determine— (1) to what extent, if any, the diversity of those participating in the interviews impacts the results; and (2) whether to implement any policy changes or include any recommendations in a report required under subsection (a) or (e) of section 102 relating to the determination reached pursuant to paragraph (1). (d) Tracking data The Department shall— (1) track demographic data relating to participants in professional development programs and the rate of placement into senior positions for participants in such programs; (2) annually evaluate such data— (A) to identify ways to improve outreach and recruitment for such programs, consistent with merit system principles; and (B) to understand the extent to which participation in any professional development program offered or sponsored by the Department differs among the demographic categories of the workforce; and (3) actively encourage participation from a range of demographic categories, especially from categories with consistently low participation, in such professional development programs. 105. Recruitment and retention (a) In general The Secretary should— (1) continue to seek a diverse and talented pool of applicants; and (2) instruct the Director General of the Foreign Service and the Director of the Bureau of Human Resources of the Department to have a recruitment plan of action for the recruitment of people belonging to traditionally under-represented groups, which should include outreach at appropriate colleges, universities, affinity groups, and professional associations. (b) Scope The diversity recruitment initiatives described in subsection (a) should include— (1) recruiting at women’s colleges, historically Black colleges and universities, minority-serving institutions, and other institutions serving a significant percentage of minority students; (2) placing job advertisements in newspapers, magazines, and job sites oriented toward diverse groups; (3) sponsoring and recruiting at job fairs in urban and rural communities and land-grant colleges or universities; (4) providing opportunities through highly respected, international leadership programs, that focus on diversity recruitment and retention; and (5) cultivating partnerships with organizations dedicated to the advancement of the profession of international affairs and national security to advance shared diversity goals. (c) Expand training on anti-Harassment and anti-Discrimination (1) In general The Secretary shall, through the Foreign Service Institute and other educational and training opportunities— (A) expand the provision of training on workplace rights and responsibilities to focus on anti-harassment and anti-discrimination information and policies; (B) expand the provision of training on workplace rights and responsibilities to focus on implicit bias, including training on the effects of implicit bias; and (C) make such expanded training mandatory for— (i) individuals in senior and supervisory positions; and (ii) individuals having responsibilities related to recruitment, retention, or promotion of employees. (2) Best practices Each agency shall give special attention to ensuring the continuous incorporation of research-based best practices in training provided under this subsection. 106. Sense of Congress on support for equal employment opportunity and merit principles criteria It is the sense of Congress that— (1) the support for equal employment opportunity and merit principles criteria for tenure and promotion in the Foreign Service is critical to promoting a more diverse Foreign Service; and (2) the Department should— (A) develop mechanisms to ensure that the Foreign Service promotion list appropriately promotes a diverse workforce; and (B) establish criteria within the Foreign Service Employee Evaluation Report that include evaluating the support of Foreign Service officers for equal employment opportunities. 107. Leadership engagement and accountability (a) Reward and recognize efforts To promote diversity and inclusion (1) In general The Secretary shall implement performance and advancement requirements that reward and recognize the efforts of individuals in senior positions and supervisors in the Department in fostering an inclusive environment and cultivating talent consistent with merit system principles, such as through participation in mentoring programs or sponsorship initiatives, recruitment events, and other similar opportunities. (2) Outreach events The Secretary shall create opportunities for individuals in senior positions and supervisors in the Department to participate in outreach events and to discuss issues relating to diversity and inclusion with the workforce on a regular basis, including with employee resource groups. (b) External advisory committees and boards For each external advisory committee or board to which individuals in senior positions in the Department appoint members, the Secretary is strongly encouraged by Congress to ensure such external advisory committee or board is developed, reviewed, and carried out by qualified teams that represent the diversity of the organization. 108. Professional development opportunities and tools (a) Expand provision of professional development and career advancement opportunities The Secretary is authorized to expand professional development opportunities that support the mission needs of the Department, such as— (1) academic programs; (2) private-public exchanges; and (3) detail assignments to relevant positions in— (A) private or international organizations; (B) State, local, and Tribal governments; (C) other branches of the Federal Government; or (D) professional schools of international affairs. (b) Training for senior positions (1) In general The Secretary shall offer, or sponsor members of the workforce to participate in, a Senior Executive Service candidate development program or other program that trains members on the skills required for appointment to senior positions in the Department. (2) Requirements In determining which members of the workforce are granted professional development or career advancement opportunities under subparagraph, the Secretary shall— (A) ensure any program offered or sponsored by the Department under such subparagraph comports with the requirements of subpart C of part 412 of title 5, Code of Federal Regulations, or any successor thereto, including merit staffing and assessment requirements; (B) consider the number of expected vacancies in senior positions as a factor in determining the number of candidates to select for such programs; (C) understand how participation in any program offered or sponsored by the Department under such subparagraph differs by gender, race, national origin, disability status, or other demographic categories; and (D) actively encourage participation from a range of demographic categories, especially from categories with consistently low participation. 109. Examination and oral assessment for the Foreign Service (a) Sense of congress It is the sense of Congress that the Department should offer both the Foreign Service written examination and oral assessment in more locations throughout the United States. Doing so would ease the financial burden on potential candidates who do not currently reside in and must travel at their own expense to one of the few locations where these assessments are offered. (b) Foreign service examinations Section 301(b) of the Foreign Service Act of 1980 ( 22 U.S.C. 3941 ) is amended— (1) by striking The Secretary and inserting: (1) The Secretary ; and (2) by adding at the end the following new paragraphs: (2) The Secretary shall ensure that the Board of Examiners for the Foreign Service annually offers the oral assessment examinations described in paragraph (1) in cities, chosen on a rotating basis, located in at least three different time zones across the United States, and that such examinations give sufficient weight to diversity. (3) The Secretary shall consider whether participants in Department fellowship programs should be required to take oral examinations, and whether there is any justification for requiring certain, but not all, fellowship participants to take such examinations. . 110. Sense of Congress on veterans recruitment for the Foreign Service It is the sense of Congress that the Foreign Service exam should be offered in multiple diverse locations, at least in three different time zones in a calendar year, to encourage more accessibility to the test, especially for veterans and members of the United States Armed Forces transitioning to civilian life. 111. Payne fellowship authorization (a) In general Undergraduate and graduate components of the Donald M. Payne International Development Fellowship Program may conduct outreach to attract outstanding students with an interest in pursuing a Foreign Service career who represent diverse ethnic and socioeconomic backgrounds. (b) Review of past programs The Secretary shall review past programs designed to increase minority representation in international affairs positions. 112. Expansion of Diplomats in Residence Program Not later than one year after the date of the enactment of this Act, the Secretary of State shall double the number of diplomats in the Diplomats in Residence Program as of the date of the enactment of this Act. 113. Use of gender neutral terms in employee evaluation forms The Secretary shall develop a pilot program to use gender neutral terms in employee evaluation forms. 114. Voluntary participation (a) In general Nothing in this title shall be construed so as to compel any employee to participate in the collection of the data or divulge any personal information. Department employees shall be informed that their participation in the data collection contemplated by this title is voluntary. (b) Privacy protection Any data collected under this title shall be subject to the relevant privacy protection statutes and regulations applicable to Federal employees. II Love Act of 2020 201. Short title This title may be cited as the Lavender Offense Victim Exoneration Act of 2020 or the LOVE Act of 2020 . 202. Findings Congress makes the following findings: (1) During the so-called Lavender Scare , at least 1,000 people were wrongfully dismissed from the Department of State for alleged homosexuality during the 1950s and well into the 1960s. (2) According to the Department of State's Bureau of Diplomatic Security, Department of State employees were forced out of the Department on the grounds that their sexual orientation ostensibly rendered them vulnerable to blackmail and made them security risks. (3) In addition to those wrongfully terminated, many other patriotic Americans were prevented from joining the Department due to a screening process that was put in place to prevent the hiring of those who, according to the findings of the Bureau of Diplomatic Security, “seemed like they might be gay or lesbian”. (4) Congress bears a special measure of responsibility for these discriminatory actions as the Department's actions were in part in response to congressional investigations into “sex perversion of Federal employees”, reports on the employment of moral perverts by Government Agencies , hearings and pressure placed on the Department through the appropriations process and congressional complaints that Foggy Bottom was “rampant with homosexuals who were sympathetic to Communism and vulnerable to blackmail. (5) Between 1950 and 1969, the Department of State was required to report on the number of homosexuals fired each year as part of their annual appeals before Committees on Appropriations. (6) Although the worst effects of the Lavender Scare are behind us, as recently as the early 1990s, the Department of State's diplomatic security office was investigating State personnel thought to be gay and driving them out of government service as security risks . (7) In 1994, Secretary of State Warren Christopher issued a prohibition against discrimination in the Department of State, including that based on sexual orientation. (8) In 1998, President William Jefferson Clinton signed Executive Order 13087 barring discrimination on the basis of sexual orientation. (9) On January 9, 2017, Secretary of State John Kerry issued a statement regarding the Lavender Scare , saying, On behalf of the Department, I apologize to those who were impacted by the practices of the past and reaffirm the Department's steadfast commitment to diversity and inclusion for all our employees, including members of the LGBTI community . 203. Director General review (a) Review The Director General of the Foreign Service and Director of Human Resources of the Department of State, in consultation with the Historian of the Department of State, shall review all employee terminations that occurred after January 1, 1950, to determine who was wrongfully terminated owing to their sexual orientation, whether real or perceived. (b) Report Not later than 270 days after the date of the enactment of this Act, the Director General shall, consistent with applicable privacy regulations, compile the information compiled under subsection (a) in a publicly available report. The report shall include historical statements made by officials of the Department of State and Congress encouraging and implementing policies and tactics that led to the termination of employees due to their sexual orientation. 204. Reports on reviews (a) Reviews The Secretary of State shall conduct reviews of the consistency and uniformity of the reviews conducted by the Director General under section 203. (b) Reports Not later than 270 days after the date of the enactment of this Act, and annually thereafter for 2 years, the Secretary shall submit to Congress a report on the reviews conducted under section 203. Each report shall include any comments or recommendations for continued actions. 205. Establishment of Reconciliation Board (a) Establishment The Secretary of State shall establish, within the Office of Civil Rights of the Department of State, an independent Reconciliation Board to review the reports released by the Director General of the Foreign Service and Director of Human Services under section 203(b). (b) Duties The Reconciliation Board shall— (1) consistent with applicable privacy regulations, contact all employees found to be fired due to the Lavender Scare or, in the case of deceased former employees, the family members of the employees, to inform them that their termination from the Department of State has been deemed inappropriate and that, if they wish, their employment record can be changed to reflect these findings; (2) designate a point of contact at a senior level position within the Office of the Director General of the Foreign Service and Director of Human Resources to receive oral testimony of any employees or family members of deceased employees mentioned in the report who personally experienced discrimination and termination because of the actual or perceived sexual orientation in order that such testimony may serve as an official record of these discriminatory policies and their impact on the lives of United States citizens serving their Nation; and (3) provide an opportunity for any former employee not mentioned in the report to bring forth a grievance to the Board if they believe they were terminated due to their sexual orientation. (c) Review of claims (1) In general The Board shall review each claim described in subsection (b) within 150 days of receiving the claim. Lack of paperwork may not be used as a basis for dismissing any claims. (2) Cooperation The Department of State shall be responsible for producing pertinent information regarding each claim to prove the employee was not wrongfully terminated. (d) Termination The Board shall terminate 5 years after the date of the enactment of this Act. 206. Issuance of apology (a) Finding Secretary of State Kerry delivered the following apology on January 9, 2017: Throughout my career, including as Secretary of State, I have stood strongly in support of the LGBTI community, recognizing that respect for human rights must include respect for all individuals. LGBTI employees serve as proud members of the State Department and valued colleagues dedicated to the service of our country. For the last several years, the Department has pressed for the families of LGBTI officers to have the same protections overseas as families of other officers. In 2015, to further promote LGBTI rights throughout the world, I appointed the first ever Special Envoy for the Human Rights of LGBTI Persons. In the past—as far back as the 1940s, but continuing for decades—the Department of State was among many public and private employers that discriminated against employees and job applicants on the basis of perceived sexual orientation, forcing some employees to resign or refusing to hire certain applicants in the first place. These actions were wrong then, just as they would be wrong today. On behalf of the Department, I apologize to those who were impacted by the practices of the past and reaffirm the Department's steadfast commitment to diversity and inclusion for all our employees, including members of the LGBTI community. . (b) Congressional apology Congress hereby offers a formal apology for its responsibility in encouraging the Lavender Scare and similar policies at the Department of State, as these policies were in part a response to congressional investigations into sex perversion of Federal employees , reports on the employment of moral perverts by Government Agencies , and hearings or pressure otherwise placed on the Department of State through the appropriations process. 207. Establishment of permanent exhibit on the Lavender Scare (a) In general The Secretary of State, working with the current public-private partnership associated with the Department of State's new United States Diplomacy Center, shall establish a permanent exhibit on the Lavender Scare in the museum to assure that the history of this discriminatory episode is not brushed aside. (b) Specifications The exhibit— (1) shall be installed at the museum not later than one year after the date of enactment of this Act; (2) should provide access to the reports compiled by the Director General of the Foreign Service and Director of Human Resources under section 203(b); and (3) shall readily display material gathered from oral testimony received pursuant to section 205(b)(2) from employees or family members of deceased employees who were subject to these discriminatory policies during the Lavender Scare . 208. Guidance on issuing visas To demonstrate the Department of State's commitment to ensuring fairness for current employees, not later than 100 days after the date of the enactment of this Act, the Secretary of State shall submit to Congress a report on countries not issuing spousal visas to the spouses of all Foreign Service personnel posted overseas due to their sexual orientation. This report shall include any comments or recommendations for actions, including eliminating visa reciprocity with countries found to be instituting these practices against the spouses of Foreign Service personnel, that will lead to ensuring that all spouses of Foreign Service personnel receive spousal visas for the country their spouse is assigned, regardless of sexual orientation. 209. Establishment of Advancement Board (a) Establishment The Secretary of State shall establish, within the Office of the Director General of the Department of State, a board comprised of senior-level officials to address the issues faced by LGBTQI Foreign Service employees and their families. (b) Hearing of testimony The Advancement Board shall hear testimony from any willing LGBTQI Foreign Service employees and their families regarding any discrimination they have faced due to their sexual orientation. (c) Report (1) In general Not later than 100 days after completing collection of testimony described under subsection (b), and annually thereafter for 5 years, the Advancement Board shall submit to Congress a report based on the testimony. (2) Content The report required under paragraph (1) shall include any comments or recommendations for continued actions to improve the Department of State to ensure that no employee or their family members experience discrimination due to their sexual orientation. (3) Privacy The report required under paragraph (1) shall remain private and will only be accessible to Members of Congress, their appropriate staff, and members of the Advancement Board.