108th CONGRESS
1st Session
H. R. 3285
To prohibit employment discrimination on the basis of sexual orientation.
IN THE HOUSE OF REPRESENTATIVES
October 8, 2003
Mr. SHAYS (for himself, Mr. FRANK of Massachusetts, Mr. GREENWOOD, Mrs. TAUSCHER,
Mr. ABERCROMBIE, Mr. ACEVEDO-VILA, Mr. ACKERMAN, Mr. ALLEN, Mr. ANDREWS, Mr.
BACA, Mr. BAIRD, Ms. BALDWIN, Mr. BECERRA, Mr. BELL, Ms. BERKLEY, Mr. BERMAN,
Mrs. BIGGERT, Mr. BISHOP of Georgia, Mr. BISHOP of New York, Mr. BLUMENAUER,
Mr. BOEHLERT, Mr. BOSWELL, Mr. BRADY of Pennsylvania, Ms. CORRINE BROWN of
Florida, Mr. BROWN of Ohio, Mrs. CAPPS, Mr. CAPUANO, Mr. CARDIN, Ms. CARSON
of Indiana, Mr. CASE, Mrs. CHRISTENSEN, Mr. CLAY, Mr. CLYBURN, Mr. CONYERS,
Mr. COOPER, Mr. CROWLEY, Mr. CUMMINGS, Mr. DAVIS of Illinois, Mr. DAVIS of
Florida, Mrs. DAVIS of California, Mr. DEFAZIO, Ms. DEGETTE, Mr. DELAHUNT,
Ms. DELAURO, Mr. DEUTSCH, Mr. DICKS, Mr. DINGELL, Mr. DOGGETT, Mr. DOOLEY
of California, Mr. DOYLE, Mr. EMANUEL, Mr. ENGEL, Ms. ESHOO, Mr. EVANS, Mr.
FALEOMAVAEGA, Mr. FARR, Mr. FILNER, Mr. FOLEY, Mr. FORD, Mr. FROST, Mr. GEPHARDT,
Mr. GONZALEZ, Mr. GRIJALVA, Mr. GUTIERREZ, Ms. HARMAN, Mr. HASTINGS of Florida,
Mr. HINCHEY, Mr. HINOJOSA, Mr. HOEFFEL, Mr. HOLT, Mr. HONDA, Ms. HOOLEY of
Oregon, Mr. HOYER, Mr. INSLEE, Mr. ISRAEL, Mr. JACKSON of Illinois, Ms. JACKSON-LEE
of Texas, Mr. JEFFERSON, Ms. EDDIE BERNICE JOHNSON of Texas, Mrs. JONES of
Ohio, Mrs. JOHNSON of Connecticut, Mrs. KELLY, Mr. KENNEDY of Rhode Island,
Mr. KILDEE, Ms. KILPATRICK, Mr. KIND, Mr. KIRK, Mr. KLECZKA, Mr. KOLBE, Mr.
KUCINICH, Mr. LAMPSON, Mr. LANGEVIN, Mr. LANTOS, Mr. LARSEN of Washington,
Mr. LARSON of Connecticut, Mr. LEACH, Ms. LEE, Mr. LEVIN, Mr. LEWIS of Georgia,
Ms. LOFGREN, Mrs. LOWEY, Mr. LYNCH, Mrs. MCCARTHY of New York, Ms. MCCARTHY
of Missouri, Ms. MCCOLLUM, Mr. MCDERMOTT, Mr. MCGOVERN, Mr. MCNULTY, Ms. MAJETTE,
Mrs. MALONEY, Mr. MARKEY, Mr. MATHESON, Mr. MATSUI, Mr. MEEHAN, Mr. MEEK of
Florida, Mr. MEEKS of New York, Mr. MENENDEZ, Mr. MICHAUD, Ms. MILLENDER-MCDONALD,
Mr. MILLER of North Carolina, Mr. GEORGE MILLER of California, Mr. MOORE,
Mr. MORAN of Virginia, Mr. NADLER, Mrs. NAPOLITANO, Mr. NEAL of Massachusetts,
Ms. NORTON, Mr. OBERSTAR, Mr. OLVER, Mr. OSE, Mr. OWENS, Mr. PALLONE, Mr.
PASCRELL, Mr. PASTOR, Mr. PAYNE, Ms. PELOSI, Ms. PRYCE of Ohio, Mr. RANGEL,
Mr. REYES, Mr. RODRIGUEZ, Ms. ROS-LEHTINEN, Mr. ROTHMAN, Ms. ROYBAL-ALLARD,
Mr. RUSH, Mr. SABO, Ms. LINDA T. SANCHEZ of California, Ms. LORETTA SANCHEZ
of California, Mr. SANDERS, Ms. SCHAKOWSKY, Mr. SCOTT of Virginia, Mr. SERRANO,
Mr. SCHIFF, Mr. SHERMAN, Mr. SIMMONS, Ms. SLAUGHTER, Mr. SMITH of Washington,
Ms. SOLIS, Mr. STARK, Mr. STRICKLAND, Mr. SWEENEY, Mr. THOMPSON of Mississippi,
Mr. THOMPSON of California, Mr. TIERNEY, Mr. TOWNS, Mr. UDALL of New Mexico,
Mr. UDALL of Colorado, Mr. VAN HOLLEN, Ms. VELAZQUEZ, Mr. VISCLOSKY, Ms. WATERS,
Ms. WATSON, Mr. WATT, Mr. WAXMAN, Mr. WEINER, Mr. WEXLER, Ms. WOOLSEY, Mr.
WU, and Mr. WYNN) introduced the following bill; which was referred to the
Committee on Education and the Workforce, and in addition to the Committees
on House Administration, Government Reform, 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 prohibit employment discrimination on the basis of sexual orientation.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Employment Non-Discrimination Act of 2003'.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to provide a comprehensive Federal prohibition of employment discrimination
on the basis of sexual orientation;
(2) to provide meaningful and effective remedies for employment discrimination
on the basis of sexual orientation; and
(3) to invoke congressional powers, including the powers to enforce the
14th amendment to the Constitution, and to regulate interstate commerce
and provide for the general welfare pursuant to section 8 of article I of
the Constitution, in order to prohibit employment discrimination on the
basis of sexual orientation.
SEC. 3. DEFINITIONS.
(a) IN GENERAL- In this Act:
(1) COMMISSION- The term `Commission' means the Equal Employment Opportunity
Commission.
(2) COVERED ENTITY- The term `covered entity' means an employer, employment
agency, labor organization, or joint labor-management committee.
(A) IN GENERAL- The term `employee' means--
(i) an employee (as defined in section 701(f) of the Civil Rights Act
of 1964 (42 U.S.C. 2000e(f));
(ii) a Presidential appointee or 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;
(iii) 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; or
(iv) an employee or applicant to which section 717(a) of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-16(a)) applies.
(B) EXCEPTION- The provisions of this Act that apply to an employee or
individual shall not apply to a volunteer who receives no compensation.
(4) EMPLOYER- The term `employer' means--
(A) a person engaged in an industry affecting commerce (as defined in
section 701(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who
has 15 or more employees (as defined in subparagraphs (A)(i) and (B) of
paragraph (3)) for each working day in each of 20 or more calendar weeks
in the current or preceding calendar year, and any agent of such a person,
but does not include a bona fide private membership club (other than a
labor organization) that is exempt from taxation under section 501(c)
of the Internal Revenue Code of 1986;
(B) an employing authority to which section 302(a)(1) of the Government
Employee Rights Act of 1991 applies;
(C) 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; or
(D) an entity to which section 717(a) of the Civil Rights Act of 1964
applies.
(5) EMPLOYMENT AGENCY- The term `employment agency' has the meaning given
the term in section 701(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(c)).
(6) LABOR ORGANIZATION- The term `labor organization' has the meaning given
the term in section 701(d) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(d)).
(7) PERSON- The term `person' has the meaning given the term in section
701(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(a)).
(8) RELIGIOUS ORGANIZATION- The term `religious organization' means--
(A) a religious corporation, association, or society; or
(B) a school, college, university, or other educational institution or
institution of learning, if--
(i) the institution is in whole or substantial part controlled, managed,
owned, or supported by a religion, religious corporation, association,
or society; or
(ii) the curriculum of the institution is directed toward the propagation
of a religion.
(9) SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality,
bisexuality, or heterosexuality, whether the orientation is real or perceived.
(10) STATE- The term `State' has the meaning given the term in section 701(i)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e(i)).
(b) APPLICATION OF DEFINITIONS- For purposes of this section, a reference
in section 701 of the Civil Rights Act of 1964--
(1) to an employee or an employer shall be considered to refer to an employee
(as defined in paragraph (3)) or an employer (as defined in paragraph (4)),
respectively, except as provided in paragraph (2); and
(2) to an employer in subsection (f) of that section shall be considered
to refer to an employer (as defined in paragraph (4)(A)).
SEC. 4. DISCRIMINATION PROHIBITED.
(a) EMPLOYER PRACTICES- It shall be an unlawful employment practice for an
employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to the compensation,
terms, conditions, or privileges of employment of the individual, because
of such individual's sexual orientation; or
(2) to limit, segregate, or classify the employees or applicants for employment
of the employer in any way that would deprive or tend to deprive any individual
of employment or otherwise adversely affect the status of the individual
as an employee, because of such individual's sexual orientation.
(b) EMPLOYMENT AGENCY PRACTICES- It shall be an unlawful employment practice
for an employment agency to fail or refuse to refer for employment, or otherwise
to discriminate against, any individual because of the sexual orientation
of the individual or to classify or refer for employment any individual on
the basis of the sexual orientation of the individual.
(c) LABOR ORGANIZATION PRACTICES- It shall be an unlawful employment practice
for a labor organization--
(1) to exclude or to expel from its membership, or otherwise to discriminate
against, any individual because of the sexual orientation of the individual;
(2) to limit, segregate, or classify its membership or applicants for membership,
or to classify or fail or refuse to refer for employment any individual,
in any way that would deprive or tend to deprive any individual of employment,
or would limit such employment or otherwise adversely affect the status
of the individual as an employee or as an applicant for employment, because
of such individual's sexual orientation; or
(3) to cause or attempt to cause an employer to discriminate against an
individual in violation of this section.
(d) TRAINING PROGRAMS- It shall be an unlawful employment practice for any
employer, labor organization, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job training
programs, to discriminate against any individual because of the sexual orientation
of the individual in admission to, or employment in, any program established
to provide apprenticeship or other training.
(e) ASSOCIATION- An unlawful employment practice described in any of subsections
(a) through (d) shall be considered to include an action described in that
subsection, taken against an individual based on the sexual orientation of
a person with whom the individual associates or has associated.
(f) DISPARATE IMPACT- Only disparate treatment claims may be brought under
this Act.
SEC. 5. RETALIATION PROHIBITED.
It shall be an unlawful employment practice for a covered entity to discriminate
against an individual because such individual opposed any practice made an
unlawful employment practice by this Act, or because such individual made
a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this Act.
SEC. 6. BENEFITS.
This Act does not apply to the provision of employee benefits to an individual
for the benefit of the domestic partner of such individual.
SEC. 7. COLLECTION OF STATISTICS PROHIBITED.
The Commission shall not collect statistics on sexual orientation from covered
entities, or compel the collection of such statistics by covered entities.
SEC. 8. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED.
(a) QUOTAS- A covered entity shall not adopt or implement a quota on the basis
of sexual orientation.
(b) PREFERENTIAL TREATMENT- A covered entity shall not give preferential treatment
to an individual on the basis of sexual orientation.
(c) ORDERS AND CONSENT DECREES- Notwithstanding any other provision of this
Act, an order or consent decree entered for a violation of this Act may not
include a quota, or preferential treatment to an individual, based on sexual
orientation.
SEC. 9. RELIGIOUS EXEMPTION.
This Act shall not apply to a religious organization.
SEC. 10. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS' PREFERENCES.
(1) EMPLOYMENT- In this Act, the term `employment' does not apply to the
relationship between the United States and members of the Armed Forces.
(2) ARMED FORCES- In paragraph (1), the term `Armed Forces' means the Army,
Navy, Air Force, Marine Corps, and Coast Guard.
(b) VETERANS' PREFERENCES- This Act does not repeal or modify any Federal,
State, territorial, or local law creating a special right or preference concerning
employment for a veteran.
SEC. 11. CONSTRUCTION.
(a) EMPLOYER RULES AND POLICIES- Nothing in this Act shall be construed to
prohibit a covered entity from enforcing rules and policies, if the rules
or policies are designed for, and uniformly applied to, all individuals regardless
of sexual orientation.
(b) ASSOCIATION- Nothing in this Act shall be construed to prohibit any association,
or infringe upon any right of association, guaranteed by the first amendment
to the Constitution, of any nonprofit, voluntary membership organization.
SEC. 12. ENFORCEMENT.
(a) ENFORCEMENT POWERS- With respect to the administration and enforcement
of this Act in the case of a claim alleged by an individual for a violation
of this Act--
(1) the Commission shall have the same powers as the Commission has to administer
and enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
or
(B) sections 302 and 304 of the Government Employee Rights Act of 1991
(42 U.S.C. 2000e-16b and 2000e-16c);
in the case of a claim alleged by such individual 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;
(2) 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 individual for a violation of such title;
(3) the Board (as defined in section 101 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1301)) shall have the same powers as the Board has
to administer and enforce the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) in the case of a claim alleged by such individual for
a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1));
(4) the Attorney General shall have the same powers as the Attorney General
has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
or
(B) sections 302 and 304 of the Government Employee Rights Act of 1991
(42 U.S.C. 2000e-16b and 2000e-16c);
in the case of a claim alleged by such individual 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;
(5) the President, the Commission, and the Merit Systems Protection Board
shall have the same powers as the President, the Commission, and the Board,
respectively, have to administer and enforce chapter 5 of title 3, United
States Code, in the case of a claim alleged by such individual for a violation
of section 411 of such title;
(6) a court of the United States shall have the same jurisdiction and powers
as the court has to enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)
in the case of a claim alleged by such individual for a violation of such
title;
(B) 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 individual for a violation of section 302(a)(1) of such Act (42 U.S.C.
2000e-16b(a)(1));
(C) the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.)
in the case of a claim alleged by such individual for a violation of section
201(a)(1) of such Act (2 U.S.C. 1311(a)(1)); and
(D) chapter 5 of title 3, United States Code, in the case of a claim alleged
by such individual for a violation of section 411 of such title.
(b) PROCEDURES AND REMEDIES- The procedures and remedies applicable to a claim
alleged by an individual for a violation of this Act are--
(1) the procedures and remedies applicable for a violation of title VII
of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) in the case of
a claim alleged by such individual for a violation of such title;
(2) the procedures and remedies applicable for a violation of section 302(a)(1)
of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16b(a)(1))
in the case of a claim alleged by such individual for a violation of such
section;
(3) the procedures and remedies applicable for a violation of section 201(a)(1)
of the Congressional Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) in
the case of a claim alleged by such individual for a violation of such section;
and
(4) the procedures and remedies applicable for a violation of section 411
of title 3, United States Code, in the case of a claim alleged by such individual
for a violation of such section.
(c) OTHER APPLICABLE PROVISIONS- With respect to a claim alleged by a covered
employee (as defined in section 101 of the Congressional Accountability Act
of 1995 (2 U.S.C. 1301)) for a violation of this Act, title III of the Congressional
Accountability Act of 1995 (2 U.S.C. 1381 et seq.) shall apply in the same
manner as such title applies with respect to a claim alleged by such a covered
employee for a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).
(d) PROHIBITION OF AFFIRMATIVE ACTION- Notwithstanding any other provision
of this section, affirmative action for a violation of this Act may not be
imposed. Nothing in this section shall prevent the granting of relief to any
individual who suffers a violation of such individual's rights provided in
this Act.
SEC. 13. STATE AND FEDERAL IMMUNITY.
(a) STATE IMMUNITY- A State shall not be immune under the 11th amendment to
the Constitution from a suit described in subsection (b) and brought in a
Federal court of competent jurisdiction for a violation of this Act.
(b) REMEDIES FOR STATE EMPLOYEES-
(A) 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 Act for a remedy authorized under subsection (c).
(B) 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).
(2) 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 section 12, for equitable relief that
is authorized under this Act. 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).
(3) EFFECTIVE DATE- With respect to a particular program or activity, paragraphs
(1) and (2) apply 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.
(c) REMEDIES AGAINST THE UNITED STATES AND THE STATES- Notwithstanding any
other provision of this Act, in an action or administrative proceeding against
the United States or a State for a violation of this Act, remedies (including
remedies at law and in equity, and interest) are available for the violation
to the same extent as the remedies are available for a violation of title
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private
entity, except that--
(1) punitive damages are not available; and
(2) compensatory damages are available to the extent specified in section
1977A(b) of the Revised Statutes (42 U.S.C. 1981a(b)).
SEC. 14. ATTORNEYS' FEES.
Notwithstanding any other provision of this Act, in an action or administrative
proceeding for a violation of this Act, an entity described in section 12(a)
(other than paragraph (4) of such section), in the discretion of the entity,
may allow the prevailing party, other than the Commission or the United States,
a reasonable attorney's fee (including expert fees) as part of the costs.
The Commission and the United States shall be liable for the costs to the
same extent as a private person.
SEC. 15. POSTING NOTICES.
A covered entity who is required to post notices described in section 711
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) shall post notices for
employees, applicants for employment, and members, to whom the provisions
specified in section 12(b) apply, that describe the applicable provisions
of this Act in the manner prescribed by, and subject to the penalty provided
under, section 711 of the Civil Rights Act of 1964.
SEC. 16. REGULATIONS.
(a) IN GENERAL- Except as provided in subsections (b), (c), and (d), the Commission
shall have authority to issue regulations to carry out this Act.
(b) LIBRARIAN OF CONGRESS- The Librarian of Congress shall have authority
to issue regulations to carry out this Act with respect to employees and applicants
for employment of the Library of Congress.
(c) BOARD- The Board referred to in section 12(a)(3) shall have authority
to issue regulations to carry out this Act, in accordance with section 304
of the 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).
(d) PRESIDENT- The President shall have authority to issue regulations to
carry out this Act with respect to covered employees, as defined in section
411(c) of title 3, United States Code.
SEC. 17. RELATIONSHIP TO OTHER LAWS.
This Act shall not invalidate or limit the rights, remedies, or procedures
available to an individual claiming discrimination prohibited under any other
Federal law or any law of a State or political subdivision of a State.
SEC. 18. SEVERABILITY.
If any provision of this Act, or the application of the provision to any person
or circumstance, is held to be invalid, the remainder of this Act and the
application of the provision to any other person or circumstance shall not
be affected by the invalidity.
SEC. 19. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of enactment of this Act
and shall not apply to conduct occurring before the effective date.
END
