HR 3685
110th CONGRESS
1st Session
H. R. 3685
To prohibit employment discrimination on the basis of sexual orientation.
IN THE HOUSE OF REPRESENTATIVES
September 27, 2007
Mr. FRANK of Massachusetts (for himself, Ms. PRYCE of Ohio, Mr. SHAYS,
Mr. ANDREWS, and Mr. GEORGE MILLER of California) introduced the following
bill; which was referred to the Committee on Education and Labor, and in
addition to the Committees on House Administration, Oversight and Government
Reform, and 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 2007'.
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-16(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; and
(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 particular religion, religious corporation,
association, or society; or
(ii) the curriculum of the institution is directed toward the propagation
of a particular religion.
(9) SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality,
heterosexuality, or bisexuality.
(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) below; 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. EMPLOYMENT 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
discriminate against any individual with respect to the compensation,
terms, conditions, or privileges of employment of the individual, because
of such individual's actual or perceived 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 actual or perceived 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 actual or perceived
sexual orientation of the individual or to classify or refer for employment
any individual on the basis of the actual or perceived 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 actual or perceived 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 actual or perceived 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 actual or
perceived 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 actual or perceived
sexual orientation of a person with whom the individual associates or has
associated.
(f) No Preferential Treatment or Quotas- Nothing in this Act shall be construed
or interpreted to require or permit--
(1) any covered entity to grant preferential treatment to any individual
or to any group because of the actual or perceived sexual orientation
of such individual or group on account of an imbalance which may exist
with respect to the total number or percentage of persons of any actual
or perceived sexual orientation employed by any employer, referred or
classified for employment by any employment agency or labor organization,
admitted to membership or classified by any labor organization, or admitted
to, or employed in, any apprenticeship or other training program, in comparison
with the total number or percentage of persons of such actual or perceived
sexual orientation in any community, State, section, or other area, or
in the available work force in any community, State, section, or other
area; or
(2) the adoption or implementation by a covered entity of a quota on the
basis of actual or perceived sexual orientation.
(g) 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 (1) opposed any practice made
an unlawful employment practice by this Act; or (2) made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
or hearing under this Act.
SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.
This Act shall not apply to a religious organization.
SEC. 7. 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 title does not repeal or modify any Federal,
State, territorial, or local law creating a special right or preference
concerning employment for a veteran.
SEC. 8. CONSTRUCTION.
(a) Employer Rules and Policies-
(1) IN GENERAL- Nothing in this Act shall be construed to prohibit a covered
entity from enforcing rules and policies that do not intentionally circumvent
the purposes of this Act, if the rules or policies are designed for, and
uniformly applied to, all individuals regardless of actual or perceived
sexual orientation.
(2) SEXUAL HARASSMENT- Nothing in this Act shall be construed to limit
a covered entity from taking adverse action against an individual because
of a charge of sexual harassment against that individual, provided that
rules and policies on sexual harassment, including when adverse action
is taken, are designed for, and uniformly applied to, all individuals
regardless of actual or perceived sexual orientation.
(3) ACTIONS CONDITIONED ON MARRIAGE- An unlawful employment practice under
section 4 shall include an action described in that section that is conditioned,
in a State in which a person cannot marry a person of the same sex, either
on being married or being eligible to marry.
(b) Employee Benefits- Nothing in this Act shall be construed to require
a covered entity to treat a couple who are not married, including a same-sex
couple who are not married, in the same manner as the covered entity treats
a married couple for purposes of employee benefits.
SEC. 9. COLLECTION OF STATISTICS PROHIBITED.
The Commission shall not collect statistics on actual or perceived sexual
orientation from covered entities, or compel the collection of such statistics
by covered entities.
SEC. 10. 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 (2 U.S.C. 1202(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)).
SEC. 11. 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 10, 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 of the United States (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. 12. 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 10(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. 13. 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 10(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. 14. 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 10(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. 15. 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 regulation or any law or regulation of a State or political
subdivision of a State.
SEC. 16. 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 circumstances
shall not be affected by the invalidity.
SEC. 17. EFFECTIVE DATE.
This Act shall take effect 6 months after the date of the enactment of this
Act and shall not apply to conduct occurring before the effective date.
END
