Text of US HB 2148 (2019)

I 116TH CONGRESS 1ST SESSION H. R. 2148 To prevent discrimination and harassment in employment. IN THE HOUSE OF REPRESENTATIVES APRIL 9, 2019 Ms. CLARK of Massachusetts (for herself, Ms. PRESSLEY, Ms. SLOTKIN, and Ms. MUCARSEL-POWELL) introduced the following bill; which was re- ferred to the Committee on Education and Labor, and in addition to the Committees on the Judiciary, House Administration, Oversight and Re- form, and Veterans’ Affairs, 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 prevent discrimination and harassment in employment. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Bringing an End to 4 Harassment by Enhancing Accountability and Rejecting 5 Discrimination in the Workplace Act’’ or the ‘‘BE 6 HEARD in the Workplace Act’’. 7 SEC. 2. TABLE OF CONTENTS. 8 The table of contents of this Act is as follows: 9 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 2148 IH Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Purposes. TITLE I—RESEARCHING AND PREVENTING WORKPLACE HARASSMENT; TIPPED EMPLOYEES Sec. 100. Definitions. Subtitle A—Preventing Workplace Harassment Sec. 101. Mandatory nondiscrimination policies. Sec. 102. Nondiscrimination training. Sec. 103. Resource materials on policies and trainings for small businesses. Sec. 104. Education, training, and technical assistance to employers. Sec. 105. Task force regarding harassment. Sec. 106. Resource materials on employment climate assessments. Sec. 107. Establishing an Office of Education and Outreach within the Equal Employment Opportunity Commission. Sec. 108. Relationship to other laws. Sec. 109. Authorization of appropriations. Subtitle B—Research and Additional Resources for Harassment Prevention Sec. 111. National prevalence survey on harassment in employment. Sec. 112. Study and report on harassment in the Federal Government. Sec. 113. Studies, reports, and further research. Subtitle C—Preventing Harassment of Tipped Employees Sec. 121. Tipped employees. TITLE II—STRENGTHENING WORKPLACE RIGHTS Sec. 201. Clarifying sexual orientation discrimination and gender identity dis- crimination are unlawful sex discrimination. Sec. 202. Covered employers. Sec. 203. Compensatory and punitive damages available. Sec. 204. Harassment and discrimination; standards of proof. Sec. 205. Clarifying other standards of proof. Sec. 206. Supervisor liability. Sec. 207. Extending the statutes of limitations. Sec. 208. Extending the time limitations on Federal employees filing a com- plaint. TITLE III—BROADENING PROTECTIONS AND ENSURING TRANSPARENCY Sec. 301. Independent contractors, interns, fellows, volunteers, and trainees. Sec. 302. Nondisclosure agreements. Sec. 303. Prohibition on mandatory arbitration and protection of concerted legal action. Sec. 304. Federal contractor compliance with civil rights laws. TITLE IV—NATIONWIDE GRANTS TO PREVENT AND RESPOND TO WORKPLACE HARASSMENT Sec. 401. Definitions. VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 2148 IH Subtitle A—National Grants for Preventing and Addressing Employment Discrimination, Including Harassment Sec. 411. Definitions. Sec. 412. Grants. Sec. 413. Authorization of appropriations. Subtitle B—Grants for Legal Assistance for Low-Income Workers Sec. 421. Definitions. Sec. 422. Grants for civil legal needs related to employment discrimination. Sec. 423. Authorization of appropriations. Subtitle C—Grants for a System of State Advocacy Sec. 431. Purpose. Sec. 432. Definitions. Sec. 433. Allotments and payments. Sec. 434. System required. Sec. 435. Administration. Sec. 436. Authorization of appropriations. TITLE V—GENERAL PROVISIONS Sec. 501. Severability. SEC. 3. PURPOSES. 1 The purposes of this Act are— 2 (1) to prevent and reduce prohibited discrimina- 3 tion and harassment in employment; 4 (2) to prevent and reduce discriminatory and 5 harassing conduct in the workplace; 6 (3) to identify and implement best practices in 7 creating a workplace free from discrimination and 8 harassment; 9 (4) to update and clarify certain employment 10 nondiscrimination laws; and 11 (5) to expand workers’ access to counsel and 12 advocacy services to protect the legal and human 13 rights of workers by preventing and reducing dis- 14 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 2148 IH crimination and harassment and responding to viola- 1 tions of worker’s rights. 2 TITLE I—RESEARCHING AND 3 PREVENTING WORKPLACE 4 HARASSMENT; TIPPED EM- 5 PLOYEES 6 SEC. 100. DEFINITIONS. 7 In this title: 8 (1) COMMISSION.—The term ‘‘Commission’’ 9 means the Equal Employment Opportunity Commis- 10 sion. 11 (2) EMPLOYER.—The term ‘‘employer’’ has the 12 meaning given the term in section 701 of the Civil 13 Rights Act of 1964 (42 U.S.C. 2000e), as amended 14 by section 202 of this Act. 15 Subtitle A—Preventing Workplace 16 Harassment 17 SEC. 101. MANDATORY NONDISCRIMINATION POLICIES. 18 (a) POLICIES.— 19 (1) IN GENERAL.—Beginning not later than 1 20 year after the date of enactment of this Act, each 21 employer who has 15 or more employees shall adopt, 22 maintain, and periodically review a comprehensive 23 nondiscrimination policy, which shall establish poli- 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 2148 IH cies and procedures concerning prohibited discrimi- 1 nation and harassment in employment. 2 (2) DISSEMINATION AND POSTING.—The em- 3 ployer shall disseminate the comprehensive non- 4 discrimination policy to each employee at the begin- 5 ning of employment, annually, and on the issuance 6 of any update to the comprehensive nondiscrimina- 7 tion policy. The employer shall post the comprehen- 8 sive nondiscrimination policy in prominent locations, 9 including in a prominent location on the employer’s 10 website. 11 (b) CONTENTS.—At a minimum, the comprehensive 12 nondiscrimination policy shall include— 13 (1) a definition of prohibited discrimination and 14 prohibited harassment in employment; 15 (2) a description of the types of behaviors pro- 16 hibited by the policy; 17 (3) the identification of multiple persons to 18 whom an employee may report such discrimination 19 or harassment; 20 (4) a description of multiple methods for re- 21 porting such discrimination or harassment; 22 (5) a general description of how the employer 23 will conduct prompt, thorough, and impartial inves- 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 2148 IH tigations and respond to complaints regarding such 1 discrimination or harassment; 2 (6) a prohibition against retaliation related to 3 such discrimination or harassment, including dis- 4 closing, reporting, or challenging such discrimination 5 or harassment; 6 (7) a description of potential consequences for 7 violating the policy; and 8 (8) any additional components required by the 9 Commission for the purpose of preventing unlawful 10 discrimination and harassment. 11 (c) ACCESSIBILITY.—The comprehensive non- 12 discrimination policy shall be made available in plain 13 English and in an accessible manner for individuals with 14 disabilities and for individuals who primarily speak a lan- 15 guage other than English. 16 (d) ENFORCEMENT.— 17 (1) Subject to paragraph (2), an employer who 18 fails to comply with this section shall be fined not 19 more than $1,000 for each separate offense. 20 (2) An employer who repeatedly or willfully fails 21 to comply with this section shall be fined not less 22 than $5,000 for each separate offense. 23 (e) REGULATIONS.—The Commission shall have au- 24 thority to promulgate regulations to carry out this section. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 2148 IH SEC. 102. NONDISCRIMINATION TRAINING. 1 (a) IN GENERAL.—The Commission shall promulgate 2 regulations to require appropriate employers, as deter- 3 mined by the Commission, to provide— 4 (1) in-person or other interactive training for 5 each employee regarding discriminatory and haras- 6 sing behaviors in employment; and 7 (2) training specifically designed for supervisors 8 regarding the prevention of and response to dis- 9 crimination and harassment in employment, includ- 10 ing retaliation. 11 (b) REQUIRED TRAINING.—The requirements de- 12 scribed in subsection (a) shall— 13 (1) be based on research on effective training; 14 and 15 (2) identify specific elements of such training. 16 (c) ENFORCEMENT.—The Commission shall issue 17 remedies for noncompliance by regulation. 18 SEC. 103. RESOURCE MATERIALS ON POLICIES AND 19 TRAININGS FOR SMALL BUSINESSES. 20 (a) IN GENERAL.—Not later than 1 year after the 21 date of enactment of this Act, the Commission shall make 22 publicly available resource materials on comprehensive 23 nondiscrimination policies and trainings on such policies 24 for employers with fewer than 15 employees. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 2148 IH (b) CONTENTS.—Such resource materials shall in- 1 clude, at a minimum— 2 (1) model comprehensive nondiscrimination 3 policies concerning prohibited discrimination and 4 harassment in employment, as described in section 5 101, for use by employers with fewer than 15 em- 6 ployees, which shall— 7 (A) be designed to be easily distributed by 8 such employers to employees; 9 (B) take into account the resources avail- 10 able to such employers; 11 (C) take into account the particular needs 12 of employees of such employers; 13 (D) be made available in plain English and 14 in accessible formats for individuals with dis- 15 abilities and for individuals who primarily speak 16 a language other than English; 17 (E) include a definition of prohibited dis- 18 crimination and harassment in employment; 19 (F) include examples of prohibited dis- 20 criminatory and harassing behaviors; 21 (G) describe how the employer may con- 22 duct prompt, thorough, and impartial investiga- 23 tions and respond to complaints regarding such 24 prohibited discrimination and harassment; 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 2148 IH (H) include a prohibition against retalia- 1 tion related to such discrimination or harass- 2 ment; 3 (I) include policies that reflect the needs of 4 a variety of different types of workplaces, in- 5 cluding those with differing work structures, fa- 6 cilities, or tasks; 7 (J) describe behaviors that would con- 8 stitute retaliation; and 9 (K) include a description of potential con- 10 sequences for violating the comprehensive non- 11 discrimination policy; and 12 (2) model trainings regarding prohibited dis- 13 crimination and harassment in employment, as de- 14 scribed in section 102, for use by employers with 15 fewer than 15 employees, which shall— 16 (A) take into account the resources avail- 17 able to such employers; 18 (B) take into account the particular needs 19 of employees of such employers; 20 (C) be made available in plain English and 21 in accessible formats for individuals with dis- 22 abilities and for individuals who primarily speak 23 a language other than English; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 2148 IH (D) be made available in an online format 1 that is widely available to such employers and 2 employees of such employers; 3 (E) include an explanation of prohibited 4 discrimination and harassment in employment, 5 including retaliation related to such discrimina- 6 tion and harassment; 7 (F) describe the affirmative behaviors that 8 contribute to preventing and reducing harass- 9 ment and discrimination in employment; 10 (G) include trainings designed to address 11 the needs of a variety of workplaces, including 12 those with differing work structures, facilities, 13 and tasks; 14 (H) include best practices for preventing 15 prohibited discrimination and harassment spe- 16 cific to industries in which the Commission de- 17 termines that harassment is particularly preva- 18 lent or severe; and 19 (I) include any additional information the 20 Commission determines may prevent discrimi- 21 nation and harassment of employees. 22 (c) INDIVIDUALIZATION.—The Commission shall en- 23 sure that resource materials under this section are de- 24 signed to facilitate individual employers to customize 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 2148 IH training to address the needs of their workplaces, includ- 1 ing differing work structures, facilities, and tasks. 2 SEC. 104. EDUCATION, TRAINING, AND TECHNICAL ASSIST- 3 ANCE TO EMPLOYERS. 4 The Commission shall have the authority to— 5 (1) reasonably adjust the fees the Commission 6 charges for any education, technical assistance, or 7 training the Commission offers in accordance with 8 section 705(j)(1) of the Civil Rights Act of 1964 (42 9 U.S.C. 2000e–4(j)(1)); 10 (2) use the materials developed by the Commis- 11 sion for any education, technical assistance, or train- 12 ing offered by the Commission in accordance with 13 that section in any education and outreach activities 14 carried out by the Commission; and 15 (3) use funds from the Commission’s EEOC 16 Education, Technical Assistance, and Training Re- 17 volving Fund, established under section 705(k) of 18 the Civil Rights Act of 1964 (42 U.S.C. 2000e– 19 4(k)), to pay the full salaries of any Commission em- 20 ployees that develop and administer any education, 21 technical assistance, or training programs offered by 22 the Commission. 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 2148 IH SEC. 105. TASK FORCE REGARDING HARASSMENT. 1 (a) IN GENERAL.—The Commission shall establish 2 and periodically convene a harassment prevention task 3 force (referred to in this subsection as the ‘‘Task Force’’) 4 to study prohibited harassment in employment. 5 (b) MEMBERSHIP.—The Task Force established 6 under paragraph (1) shall include membership that re- 7 flects a broad diversity of experience and expertise relating 8 to prohibited harassment, including— 9 (1) employee advocates; 10 (2) researchers with expertise in organizational 11 culture change or reducing behavior related to har- 12 assment and discrimination; 13 (3) legal practitioners with professional exper- 14 tise related to harassment litigation on behalf of em- 15 ployees; 16 (4) legal practitioners with experience serving 17 as a chief legal officer or human resource officer in 18 a corporate legal department; 19 (5) individuals with expertise in diversity and 20 inclusion initiatives; 21 (6) individuals who have experienced prohibited 22 harassment in employment; and 23 (7) union leaders. 24 (c) DUTIES.—The Task Force shall— 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 13 •HR 2148 IH (1) identify strategies and recommend proposals 1 to prevent prohibited harassment in employment; 2 and 3 (2) provide guidance on effective strategies to 4 prevent prohibited harassment that are specific to 5 industries in which the Task Force determines that 6 harassment is particularly prevalent or severe. 7 (d) REPORT.—Not less than once every 5 years, the 8 Commission shall prepare and publish a report on the 9 Commission’s website, which shall be based on the work 10 of the Task Force and shall include— 11 (1) a review of the prevalence of prohibited har- 12 assment in employment, including the results of the 13 national prevalence survey described in section 112; 14 (2) recommendations for Federal, State, and 15 local initiatives, reforms, and legislation to prevent 16 prohibited harassment in employment; 17 (3) assessments of the effectiveness of employ- 18 ment policies designed to prevent prohibited harass- 19 ment in employment by changing behavior and cul- 20 ture; 21 (4) assessments of the effectiveness of processes 22 for investigations into prohibited harassment in em- 23 ployment; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 14 •HR 2148 IH (5) assessments of the effectiveness of different 1 types of training to reduce and prevent harassment 2 in employment; and 3 (6) assessments of the effectiveness of other 4 proactive initiatives and interventions to reduce and 5 prevent harassment in employment. 6 SEC. 106. RESOURCE MATERIALS ON EMPLOYMENT CLI- 7 MATE ASSESSMENTS. 8 (a) IN GENERAL.—Not later than 1 year after the 9 date of enactment of this Act, the Commission shall de- 10 velop and make publicly available resource materials for 11 employers on assessing the employment climate, including 12 the occurrence of prohibited harassment in employment, 13 in order to assist such employers in determining the effec- 14 tiveness of measures the employer takes to prevent and 15 address prohibited harassment in employment. 16 (b) EMPLOYMENT CLIMATE SURVEY.—Such resource 17 materials shall include a model survey regarding prohib- 18 ited harassment in employment, which shall be available 19 for an employer to use (at the employer’s discretion and 20 employer’s expense) in order to assess the employment cli- 21 mate. The model survey shall be— 22 (1) designed to assess employees’ experiences 23 related to prohibited harassment in employment; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 15 •HR 2148 IH (2) fair, unbiased, and scientifically valid to the 1 greatest extent practicable; 2 (3) designed to solicit confidential submissions 3 and to provide data without revealing personally 4 identifiable information; and 5 (4) inclusive of individuals required to be af- 6 forded protection under section 301. 7 (c) CONTENTS.—The model survey may include— 8 (1) questions designed to assess the prevalence 9 of prohibited harassment in employment; 10 (2) questions designed to understand whether 11 employees have access to and are familiar with the 12 employer’s nondiscrimination and anti-harassment 13 policies and procedures; 14 (3) questions to assess the employment climate; 15 and 16 (4) any additional questions the Commission 17 determines are consistent with the purposes of this 18 section. 19 (d) MANDATORY EMPLOYEE PARTICIPATION PRO- 20 HIBITED.—An employer may not compel or require em- 21 ployees to participate in a survey regarding prohibited 22 harassment or discrimination in employment. 23 (e) REVIEW AND REVISION.—The Commission shall 24 periodically review and revise the resource materials de- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 16 •HR 2148 IH scribed in subsection (a) and the model survey developed 1 under subsection (b). 2 SEC. 107. ESTABLISHING AN OFFICE OF EDUCATION AND 3 OUTREACH WITHIN THE EQUAL EMPLOY- 4 MENT OPPORTUNITY COMMISSION. 5 (a) IN GENERAL.—The Commission shall establish 6 and maintain an Office of Education and Outreach to— 7 (1) conduct outreach and education concerning 8 prohibited discrimination and harassment in employ- 9 ment under Federal civil rights laws and available 10 resources and remedies relating to those laws; and 11 (2) conduct a multi-year public awareness cam- 12 paign to improve public awareness of the Commis- 13 sion, which shall include disseminating information 14 about— 15 (A) the purpose of the Commission; 16 (B) the resources available through the 17 Commission to prevent prohibited discrimina- 18 tion and harassment in employment; 19 (C) the ways in which an individual can 20 file a complaint with the Commission; and 21 (D) the process by which the Commission 22 investigates charges of discrimination. 23 (b) INFORMATION DISSEMINATED.—The information 24 disseminated in accordance with subsection (a)(2) shall be 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 17 •HR 2148 IH made available in plain English and in an accessible man- 1 ner for individuals with disabilities and for individuals who 2 primarily speak a language other than English. 3 SEC. 108. RELATIONSHIP TO OTHER LAWS. 4 Compliance with section 101 or 102, or use of mate- 5 rials provided under subtitle A, is not an affirmative de- 6 fense under applicable employment nondiscrimination 7 laws. 8 SEC. 109. AUTHORIZATION OF APPROPRIATIONS. 9 There are authorized to be appropriated to the Com- 10 mission such sums as may be necessary to carry out the 11 Commission’s duties and activities, including such duties 12 and activities authorized under this subtitle. 13 Subtitle B—Research and Addi- 14 tional Resources for Harass- 15 ment Prevention 16 SEC. 111. NATIONAL PREVALENCE SURVEY ON HARASS- 17 MENT IN EMPLOYMENT. 18 (a) SURVEY.—The Bureau of the Census, the Com- 19 mission, and the Bureau of Labor Statistics shall jointly 20 develop a national prevalence survey on the prevalence of 21 prohibited harassment in employment (referred to in this 22 section as the ‘‘national prevalence survey’’). Such survey 23 shall be administered by the Bureau of the Census not 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 18 •HR 2148 IH later than 1 year after the date of enactment of this Act, 1 and every 3 years thereafter. 2 (b) CONTENTS.—The national prevalence survey 3 shall include questions designed to collect such informa- 4 tion from individuals as may be necessary to examine ex- 5 isting beliefs, attitudes, and understanding of prohibited 6 harassment in employment, and the extent to which such 7 harassment is experienced or observed by individuals, su- 8 pervisors, and employers, including the information nec- 9 essary for the report described in subsection (c). 10 (c) REPORT.— 11 (1) IN GENERAL.—Not later than 6 months 12 after each national prevalence survey has been ad- 13 ministered, the Bureau of the Census, the Commis- 14 sion, and the Bureau of Labor Statistics shall jointly 15 prepare and submit to the Committee on Health, 16 Education, Labor, and Pensions of the Senate and 17 the Committee on Education and Labor of the 18 House of Representatives a report on the results of 19 that survey. 20 (2) REQUIRED INFORMATION.—The report 21 under this subsection shall include, at minimum— 22 (A) information about the extent to which 23 individuals experience prohibited harassment in 24 employment on the basis of sex (including sex- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 19 •HR 2148 IH ual orientation, gender identity, pregnancy, 1 childbirth, a medical condition related to preg- 2 nancy or childbirth, and a sex stereotype), race, 3 color, religion, national origin, age, disability, 4 genetic information, and uniformed service sta- 5 tus, and information about the interaction of 6 different characteristics that may be the basis 7 of harassment in employment; 8 (B) information about the prevalence of 9 each such form of prohibited harassment in em- 10 ployment, disaggregated by industry and salary 11 level, including across all wage bands; and 12 (C) an analysis of the economic impacts of 13 prohibited harassment. 14 (3) DISAGGREGATION OF SEX BASED HARASS- 15 MENT.—The report under this subsection shall sepa- 16 rately, and in the aggregate, report each of the fol- 17 lowing bases of sex harassment: 18 (A) Sexual orientation. 19 (B) Gender identity. 20 (C) Pregnancy. 21 (D) Childbirth. 22 (E) A medical condition related to preg- 23 nancy or childbirth. 24 (F) A sex stereotype. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 20 •HR 2148 IH (G) Sexual in nature. 1 (4) PUBLIC AVAILABILITY.—The report shall be 2 made publicly available on the websites of the Bu- 3 reau of the Census, the Commission, and Bureau of 4 Labor Statistics. 5 (d) AUTHORIZATION OF APPROPRIATIONS.—There 6 are authorized to be appropriated for the Bureau of the 7 Census to carry out this section $1,200,000 for fiscal year 8 2019 and such sums as may be necessary for each fiscal 9 year the national prevalence survey is to be administered 10 under subsection (a) or the report is to be submitted under 11 subsection (c). 12 SEC. 112. STUDY AND REPORT ON HARASSMENT IN THE 13 FEDERAL GOVERNMENT. 14 (a) IN GENERAL.—Not later than 1 year after the 15 date of enactment of this Act, and not less than once every 16 3 years thereafter, the Merit Systems Protection Board 17 shall prepare and submit to the Committee on Health, 18 Education, Labor, and Pensions of the Senate and the 19 Committee on Education and Labor of the House of Rep- 20 resentatives a report containing the following information: 21 (1) The prevalence of specific behaviors associ- 22 ated with prohibited harassment in employment 23 among Federal employees, including information 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 21 •HR 2148 IH about such behaviors disaggregated by each wage 1 band. 2 (2) The impact of prohibited harassment in em- 3 ployment and violations of Federal civil rights laws 4 on the Federal Government, in terms of monetary 5 costs, attrition, and morale. 6 (3) The particular impact of prohibited harass- 7 ment in employment on the experience of Federal 8 employees with disabilities. 9 (4) Working in coordination with the Commis- 10 sion’s Office of Federal Operations, a description of 11 the differences in Federal agency policies, strategies, 12 reporting mechanisms, training programs, and other 13 practices regarding preventing and addressing pro- 14 hibited harassment in employment. 15 (5) A description of which policies, strategies, 16 reporting mechanisms, training programs, and other 17 practices described in paragraph (4) have prevented, 18 addressed, or reduced prohibited harassment in em- 19 ployment. 20 (6) Working in coordination with the Commis- 21 sion’s Office of Federal Operations, joint rec- 22 ommendations from such Office and the Merit Sys- 23 tems Protection Board to Federal agencies on how 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 22 •HR 2148 IH to prevent and address prohibited harassment in em- 1 ployment. 2 (b) AUTHORIZATION OF APPROPRIATIONS.—There 3 are authorized to be appropriated to the Merit Systems 4 Protection Board such sums as may be necessary to carry 5 out this section. 6 SEC. 113. STUDIES, REPORTS, AND FURTHER RESEARCH. 7 (a) STUDY AND REPORT ON ENFORCEMENT OF NON- 8 DISCRIMINATION LAWS PROHIBITING HARASSMENT 9 LAWS.—Not later than 1 year after the date of enactment 10 of this Act, the United States Commission on Civil Rights 11 shall prepare and submit to the Committee on Health, 12 Education, Labor, and Pensions of the Senate and the 13 Committee on Education and Labor of the House of Rep- 14 resentatives a report that shall examine enforcement of 15 the nondiscrimination laws prohibiting harassment includ- 16 ing— 17 (1) trends in enforcement of such laws; 18 (2) barriers to effective enforcement of such 19 laws; 20 (3) best practices in enforcement of such laws; 21 (4) recommendations about how to improve en- 22 forcement of such laws, including whether estab- 23 lishing individual liability for discrimination and har- 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 23 •HR 2148 IH assment in employment would improve enforcement 1 of such laws; and 2 (5) how the experience of harassment for em- 3 ployees and individuals required to be afforded pro- 4 tections under section 301 has changed over time 5 since the passage of such laws. 6 (b) STUDY AND REPORT ON PREVENTION OF HAR- 7 ASSMENT IN EMPLOYMENT.— 8 (1) IN GENERAL.—Not later than 60 days after 9 the date of enactment of this Act, the Director of 10 the National Institutes of Health shall enter into an 11 agreement with the National Academies of Sciences, 12 Engineering, and Medicine, through which the Na- 13 tional Academies of Science, Engineering, and Medi- 14 cine shall conduct a study on preventing and ad- 15 dressing prohibited harassment in employment. 16 (2) CONTENTS.—Such study shall include— 17 (A) an evaluation of the existing research 18 of the causes of prohibited harassment in em- 19 ployment, including retaliation related to such 20 harassment, and gaps in such research; 21 (B) a review of the existing research re- 22 garding how prohibited harassment in employ- 23 ment impacts individuals; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 24 •HR 2148 IH (C) an evaluation of the existing research 1 on training to prevent prohibited harassment in 2 employment, including essential components of 3 effective training to prevent such prohibited 4 harassment and retaliation, and gaps in such 5 research; 6 (D) an assessment of the efficacy and 7 availability of training models and programs to 8 prevent prohibited harassment in employment; 9 (E) the identification of employment or so- 10 cietal factors that increase the likelihood of pro- 11 hibited harassment in employment, particularly 12 across industries with a high number of individ- 13 uals who are vulnerable to experiencing such 14 prohibited harassment, including whether diver- 15 sity in leadership positions within an organiza- 16 tion reduces the likelihood of such prohibited 17 harassment; 18 (F) an examination of methods of induc- 19 ing, scaling, and sustaining institutional or or- 20 ganizational change to prevent prohibited har- 21 assment in employment; 22 (G) an analysis of policies, strategies, and 23 practices that have been the most successful in 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 25 •HR 2148 IH preventing and addressing prohibited harass- 1 ment in employment; and 2 (H) any other information or analysis nec- 3 essary to identify the gaps in research and 4 other measures described in subsection (c). 5 (3) REPORT.—Not later than 1 year after the 6 date of enactment of this Act, the National Acad- 7 emies of Sciences, Engineering, and Medicine shall 8 prepare and submit to the Committee on Health, 9 Education, Labor, and Pensions of the Senate, the 10 Committee on Education and Labor of the House of 11 Representatives, and the Director of the National 12 Institutes of Health, a report containing the results 13 of the study conducted under this subsection and 14 make recommendations to Congress, executive 15 branch agencies, private employers, and researchers. 16 Such recommendations shall include ways that such 17 training could be improved to result in behavioral 18 and cultural changes that prevent and reduce behav- 19 iors associated with prohibited harassment in em- 20 ployment. The report and recommendations shall be 21 made publicly available. 22 (c) SUPPORTING FURTHER RESEARCH ON PRE- 23 VENTING AND UNDERSTANDING HARASSMENT IN EM- 24 PLOYMENT.— 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 26 •HR 2148 IH (1) IN GENERAL.—Not later than 6 months 1 after the submission required under subsection 2 (b)(3), the Director of the National Institutes of 3 Health, in consultation with the Commission and the 4 Secretary of Labor, shall enter into agreements (in- 5 cluding through the use of grants, contracts, cooper- 6 ative agreements, or other transactions) to support 7 research regarding— 8 (A) the gaps identified in the report re- 9 quired under subsection (b)(3) in research on 10 the causes of prohibited harassment in employ- 11 ment, including retaliation related to such har- 12 assment; 13 (B) the gaps identified in the report re- 14 quired under subsection (b)(3) in research on 15 the psychological sequelae of prohibited harass- 16 ment in employment, including retaliation re- 17 lated to such harassment; 18 (C) gaps identified in the report required 19 under subsection (b)(3) in research on special 20 populations and their risk for prohibited harass- 21 ment in employment, including adolescents, 22 older individuals, racial and ethnic minorities, 23 individuals with disabilities, women, and other 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 27 •HR 2148 IH populations that could be disproportionately af- 1 fected by prohibited harassment in employment; 2 (D) gaps identified in the report required 3 under subsection (b)(3) in research on prohib- 4 ited harassment in employment, including retal- 5 iation related to such harassment, as a risk fac- 6 tor for various mental health problems; 7 (E) gaps identified in the report required 8 under subsection (b)(3) in research on 9 sociocultural correlations within prohibited har- 10 assment in employment, including retaliation 11 related to such harassment; and 12 (F) systematic and quantifiable measures 13 to evaluate prevention strategies for victims and 14 perpetrators of prohibited harassment in em- 15 ployment, including retaliation related to such 16 harassment. 17 (2) AUTHORIZATION OF APPROPRIATIONS.— 18 There are authorized to be appropriated to the Na- 19 tional Institutes of Health to carry out this sub- 20 section such sums as may be necessary. 21 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 28 •HR 2148 IH Subtitle C—Preventing Harassment 1 of Tipped Employees 2 SEC. 121. TIPPED EMPLOYEES. 3 (a) BASE MINIMUM WAGE FOR TIPPED EMPLOYEES 4 AND TIPS RETAINED BY EMPLOYEES.—Section 5 3(m)(2)(A)(i) of the Fair Labor Standards Act of 1938 6 (29 U.S.C. 203(m)(2)(A)(i)) is amended to read as fol- 7 lows: 8 ‘‘(i) the cash wage paid such em- 9 ployee, which for purposes of such deter- 10 mination shall be not less than— 11 ‘‘(I) for the 1-year period begin- 12 ning on the effective date under sub- 13 section (e), $3.60 an hour; 14 ‘‘(II) for each succeeding 1-year 15 period until the hourly wage under 16 this clause equals the wage in effect 17 under section 6(a)(1) for such period, 18 an hourly wage equal to the amount 19 determined under this clause for the 20 preceding year, increased by the lesser 21 of— 22 ‘‘(aa) $1.50; or 23 ‘‘(bb) the amount necessary 24 for the wage in effect under this 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 29 •HR 2148 IH clause to equal the wage in effect 1 under section 6(a)(1) for such 2 period, rounded up to the nearest 3 multiple of $0.05; and 4 ‘‘(III) for each succeeding 1-year 5 period after the increase made pursu- 6 ant to subclause (II), the minimum 7 wage in effect under section 6(a)(1); 8 and’’. 9 (b) TIPS RETAINED BY EMPLOYEES.—Section 10 3(m)(2)(A) of the Fair Labor Standards Act of 1938 (29 11 U.S.C. 203(m)(2)(A)) is amended— 12 (1) in the second sentence of the matter fol- 13 lowing clause (ii), by striking ‘‘of this subsection, 14 and all tips received by such employee have been re- 15 tained by the employee’’ and inserting ‘‘of this sub- 16 section. Any employee shall have the right to retain 17 any tips received by such employee’’; and 18 (2) by adding at the end the following: ‘‘An em- 19 ployer shall inform each employee of the right and 20 exception provided under the preceding sentence.’’. 21 (c) PUBLICATION OF NOTICE.—Section 6 of the Fair 22 Labor Standards Act of 1938 (29 U.S.C. 206) is amended 23 by adding at the end the following: 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 30 •HR 2148 IH ‘‘(h) Not later than 60 days prior to the effective date 1 of any increase in the required wage determined in accord- 2 ance with subclause (II) or (III) of section 3(m)(2)(A)(i), 3 the Secretary shall publish in the Federal Register and 4 on the website of the Department of Labor a notice an- 5 nouncing each increase in such required wage.’’. 6 (d) SCHEDULED REPEAL OF SEPARATE MINIMUM 7 WAGE FOR TIPPED EMPLOYEES.— 8 (1) TIPPED EMPLOYEES.—Section 3(m)(2)(A) 9 of the Fair Labor Standards Act of 1938 (29 U.S.C. 10 203(m)(2)(A)), as amended by subsections (a) and 11 (b), is further amended by striking the sentence be- 12 ginning with ‘‘In determining the wage an employer 13 is required to pay a tipped employee,’’ and all that 14 follows through ‘‘of this subsection.’’ and inserting 15 ‘‘The wage required to be paid to a tipped employee 16 shall be the wage set forth in section 6(a)(1).’’. 17 (2) PUBLICATION OF NOTICE.—Section 6 of the 18 Fair Labor Standards Act of 1938 (29 U.S.C. 206), 19 as amended by subsection (c), is further amended by 20 striking subsection (h). 21 (3) EFFECTIVE DATE.—The amendments made 22 by paragraphs (1) and (2) shall take effect on the 23 date that is one day after the date on which the 24 hourly wage under subclause (III) of section 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 31 •HR 2148 IH 3(m)(2)(A)(i) of the Fair Labor Standards Act of 1 1938 (29 U.S.C. 203(m)(2)(A)(i)), as amended by 2 subsection (a), takes effect. 3 (e) EFFECTIVE DATE.—Except as provided in sub- 4 section (d)(3), this section and the amendments made by 5 this section shall take effect on the first day of the third 6 month that begins after the date of enactment of this Act. 7 TITLE II—STRENGTHENING 8 WORKPLACE RIGHTS 9 SEC. 201. CLARIFYING SEXUAL ORIENTATION DISCRIMINA- 10 TION AND GENDER IDENTITY DISCRIMINA- 11 TION ARE UNLAWFUL SEX DISCRIMINATION. 12 (a) EMPLOYMENT.— 13 (1) RULES OF CONSTRUCTION.—Title VII of 14 the Civil Rights Act of 1964 is amended by inserting 15 after section 701 (42 U.S.C. 2000e) the following: 16 ‘‘SEC. 701A. RULES OF CONSTRUCTION. 17 ‘‘Section 1106 shall apply to this title except that for 18 purposes of that application, a reference in that section 19 to an ‘unlawful practice’ shall be considered to be a ref- 20 erence to an ‘unlawful employment practice’.’’. 21 (2) UNLAWFUL EMPLOYMENT PRACTICES.— 22 Section 703 of the Civil Rights Act of 1964 (42 23 U.S.C. 2000e–2) is amended— 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 32 •HR 2148 IH (A) in the section header, by striking 1 ‘‘SEX,’’ and inserting ‘‘SEX (INCLUDING SEX- 2 UAL ORIENTATION, GENDER IDENTITY, 3 PREGNANCY, CHILDBIRTH, A MEDICAL 4 CONDITION RELATED TO PREGNANCY OR 5 CHILDBIRTH, AND A SEX STEREOTYPE),’’; 6 (B) except in subsections (e), (j) and (m), 7 by striking ‘‘sex,’’ each place it appears and in- 8 serting ‘‘sex (including sexual orientation, gen- 9 der identity, pregnancy, childbirth, a medical 10 condition related to pregnancy or childbirth, 11 and a sex stereotype),’’; 12 (C) in subsection (e)(1), by striking ‘‘en- 13 terprise,’’ and inserting ‘‘enterprise, if, in a sit- 14 uation in which sex is a bona fide occupational 15 qualification, individuals are recognized as 16 qualified in accordance with their gender iden- 17 tity,’’; 18 (D) in subsection (h), by striking ‘‘sex’’ 19 the second place it appears and inserting ‘‘sex 20 (including sexual orientation, gender identity, 21 pregnancy, childbirth, a medical condition re- 22 lated to pregnancy or childbirth, and a sex 23 stereotype),’’; 24 (E) in subsection (j)— 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 33 •HR 2148 IH (i) by striking ‘‘sex,’’ the first place it 1 appears and inserting ‘‘sex (including sex- 2 ual orientation, gender identity, pregnancy, 3 childbirth, a medical condition related to 4 pregnancy or childbirth, and a sex stereo- 5 type),’’; and 6 (ii) by striking ‘‘sex,’’ the second and 7 third places it appears and inserting ‘‘sex 8 (including sexual orientation, gender iden- 9 tity, pregnancy, childbirth, a medical con- 10 dition related to pregnancy or childbirth, 11 and a sex stereotype),’’; and 12 (F) in subsection (m), by striking ‘‘sex,’’ 13 and inserting ‘‘sex (including sexual orientation, 14 gender identity, pregnancy, childbirth, a med- 15 ical condition related to pregnancy or childbirth, 16 and a sex stereotype),’’. 17 (3) OTHER UNLAWFUL EMPLOYMENT PRAC- 18 TICES.—Section 704(b) of the Civil Rights Act of 19 1964 (42 U.S.C. 2000e–3(b)) is amended— 20 (A) by striking ‘‘sex,’’ the first place it ap- 21 pears and inserting ‘‘sex (including sexual ori- 22 entation, gender identity, pregnancy, childbirth, 23 a medical condition related to pregnancy or 24 childbirth, and a sex stereotype),’’; and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 34 •HR 2148 IH (B) by striking ‘‘employment.’’ and insert- 1 ing ‘‘employment, if, in a situation in which sex 2 is a bona fide occupational qualification, indi- 3 viduals are recognized as qualified in accord- 4 ance with their gender identity.’’. 5 (4) CLAIMS.—Section 706(g)(2)(A) of the Civil 6 Rights Act of 1964 (2000e–5(g)(2)(A)) is amended 7 by striking ‘‘sex,’’ and inserting ‘‘sex (including sex- 8 ual orientation, gender identity, pregnancy, child- 9 birth, a medical condition related to pregnancy or 10 childbirth, and a sex stereotype),’’. 11 (5) EMPLOYMENT BY FEDERAL GOVERN- 12 MENT.—Section 717 of the Civil Rights Act of 1964 13 (42 U.S.C. 2000e–16) is amended— 14 (A) in subsection (a), by striking ‘‘sex,’’ 15 and inserting ‘‘sex (including sexual orientation, 16 gender identity, pregnancy, childbirth, a med- 17 ical condition related to pregnancy or childbirth, 18 and a sex stereotype),’’; and 19 (B) in subsection (c), by striking ‘‘sex’’ 20 and inserting ‘‘sex (including sexual orientation, 21 gender identity, pregnancy, childbirth, a med- 22 ical condition related to pregnancy or childbirth, 23 and a sex stereotype),’’. 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 35 •HR 2148 IH (6) GOVERNMENT EMPLOYEE RIGHTS ACT OF 1 1991.—The Government Employee Rights Act of 2 1991 (42 U.S.C. 2000e–16a et seq.) is amended— 3 (A) in section 301(b), by striking ‘‘sex,’’ 4 and inserting ‘‘sex (including sexual orientation, 5 gender identity, pregnancy, childbirth, a med- 6 ical condition related to pregnancy or childbirth, 7 and a sex stereotype),’’; 8 (B) in section 302(a)(1), by striking ‘‘sex,’’ 9 and inserting ‘‘sex (including sexual orientation, 10 gender identity, pregnancy, childbirth, a med- 11 ical condition related to pregnancy or childbirth, 12 and a sex stereotype),’’; and 13 (C) by adding at the end the following: 14 ‘‘SEC. 305. RULES OF CONSTRUCTION AND CLAIMS. 15 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 16 Rights Act of 1964 shall apply to this title except that 17 for purposes of that application, a reference in that section 18 1106 to ‘race, color, religion, sex (including sexual orienta- 19 tion, gender identity, pregnancy, childbirth, a medical con- 20 dition related to pregnancy or childbirth, and a sex stereo- 21 type), or national origin’ shall be considered to be a ref- 22 erence to ‘race, color, religion, sex (including sexual ori- 23 entation, gender identity, pregnancy, childbirth, a medical 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 36 •HR 2148 IH condition related to pregnancy or childbirth, and a sex 1 stereotype), national origin, age, or disability’.’’. 2 (7) CONGRESSIONAL ACCOUNTABILITY ACT OF 3 1995.—The Congressional Accountability Act of 1995 4 (2 U.S.C. 1301 et seq.) is amended— 5 (A) in section 201(a)(1) (2 U.S.C. 6 1311(a)(1)) by striking ‘‘sex,’’ and inserting 7 ‘‘sex (including sexual orientation, gender iden- 8 tity, pregnancy, childbirth, a medical condition 9 related to pregnancy or childbirth, and a sex 10 stereotype),’’; and 11 (B) by adding at the end of title II (42 12 U.S.C. 1311 et seq.) the following: 13 ‘‘SEC. 208. RULES OF CONSTRUCTION AND CLAIMS. 14 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 15 Rights Act of 1964 shall apply to section 201 (and reme- 16 dial provisions of this Act related to section 201) except 17 that for purposes of that application, a reference in that 18 section 1106 to ‘race, color, religion, sex (including sexual 19 orientation, gender identity, pregnancy, childbirth, a med- 20 ical condition related to pregnancy or childbirth, and a sex 21 stereotype), or national origin’ shall be considered to be 22 a reference to ‘race, color, religion, sex (including sexual 23 orientation, gender identity, pregnancy, childbirth, a med- 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 37 •HR 2148 IH ical condition related to pregnancy or childbirth, and a sex 1 stereotype), national origin, age, or disability’.’’. 2 (8) CIVIL SERVICE REFORM ACT OF 1978.— 3 Chapter 23 of title 5, United States Code, is amend- 4 ed— 5 (A) in section 2301(b)(2), by striking 6 ‘‘sex,’’ and inserting ‘‘sex (including sexual ori- 7 entation, gender identity, pregnancy, childbirth, 8 a medical condition related to pregnancy or 9 childbirth, and a sex stereotype),’’; 10 (B) in section 2302— 11 (i) in subsection (b)(1)(A), by striking 12 ‘‘sex,’’ and inserting ‘‘sex (including sexual 13 orientation, gender identity, pregnancy, 14 childbirth, a medical condition related to 15 pregnancy or childbirth, and a sex stereo- 16 type),’’; and 17 (ii) in subsection (d)(1), by striking 18 ‘‘sex,’’ and inserting ‘‘sex (including sexual 19 orientation, gender identity, pregnancy, 20 childbirth, a medical condition related to 21 pregnancy or childbirth, and a sex stereo- 22 type),’’; and 23 (C) by adding at the end the following: 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 38 •HR 2148 IH ‘‘SEC. 2307. RULES OF CONSTRUCTION AND CLAIMS. 1 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 2 Rights Act of 1964 shall apply to this chapter (and reme- 3 dial provisions of this title related to this chapter) except 4 that for purposes of that application, a reference in that 5 section 1106 to ‘race, color, religion, sex (including sexual 6 orientation, gender identity, pregnancy, childbirth, a med- 7 ical condition related to pregnancy or childbirth, and a sex 8 stereotype), or national origin’ shall be considered to be 9 a reference to ‘race, color, religion, sex (including sexual 10 orientation, gender identity, pregnancy, childbirth, a med- 11 ical condition related to pregnancy or childbirth, and a sex 12 stereotype), national origin, age, disability, marital status, 13 or political affiliation’.’’. 14 (b) MISCELLANEOUS.—Title XI of the Civil Rights 15 Act of 1964 is amended— 16 (1) by redesignating sections 1101 through 17 1104 (42 U.S.C. 2000h et seq.) and sections 1105 18 and 1106 (42 U.S.C. 2000h–5, 2000h–6) as sections 19 1102 through 1105 and sections 1108 and 1109, re- 20 spectively; 21 (2) by inserting after the title heading the fol- 22 lowing: 23 ‘‘SEC. 1101. DEFINITIONS AND RULES. 24 ‘‘(a) DEFINITIONS.—In title VII: 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 39 •HR 2148 IH ‘‘(1) RACE; COLOR; RELIGION; SEX; SEXUAL 1 ORIENTATION; GENDER IDENTITY; NATIONAL ORI- 2 GIN.—The term ‘race’, ‘color’, ‘religion’, ‘sex’, or 3 ‘national origin’, used with respect to an individual, 4 includes— 5 ‘‘(A) the race, color, religion, sex (includ- 6 ing sexual orientation, gender identity, preg- 7 nancy, childbirth, a medical condition related to 8 pregnancy or childbirth, and a sex stereotype), 9 or national origin, respectively, of another per- 10 son with whom the individual is associated or 11 has been associated; and 12 ‘‘(B) a perception or belief, even if inac- 13 curate, concerning the race, color, religion, sex 14 (including sexual orientation, gender identity, 15 pregnancy, childbirth, a medical condition re- 16 lated to pregnancy or childbirth, and a sex 17 stereotype), or national origin, respectively, of 18 the individual. 19 ‘‘(2) GENDER IDENTITY.—The term ‘gender 20 identity’ means the gender-related identity, appear- 21 ance, mannerisms, or other gender-related character- 22 istics of an individual, regardless of the individual’s 23 designated sex at birth. 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 40 •HR 2148 IH ‘‘(3) INCLUDING.—The term ‘including’ means 1 including, but not limited to, consistent with the 2 term’s standard meaning in Federal law. 3 ‘‘(4) SEXUAL ORIENTATION.—The term ‘sexual 4 orientation’ means homosexuality, heterosexuality, or 5 bisexuality. 6 ‘‘(b) RULES.—In title VII— 7 ‘‘(1) with respect to sex, an individual’s preg- 8 nancy, childbirth, or related medical condition shall 9 not receive less favorable treatment than other phys- 10 ical conditions; and 11 ‘‘(2) with respect to gender identity, an indi- 12 vidual shall not be denied access to a shared facility, 13 including a restroom, a locker room, and a dressing 14 room, that is in accordance with the individual’s 15 gender identity.’’; and 16 (3) by inserting after section 1105 the fol- 17 lowing: 18 ‘‘SEC. 1106. RULES OF CONSTRUCTION. 19 ‘‘(a) SEX.—Nothing in section 1101 or the provisions 20 of title VII incorporating a term defined or a rule specified 21 in that section shall be construed— 22 ‘‘(1) to limit the protection against an unlawful 23 practice on the basis of pregnancy, childbirth, a 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 41 •HR 2148 IH medical condition related to pregnancy or childbirth 1 provided by section 701(k); or 2 ‘‘(2) to limit the protection against an unlawful 3 practice on the basis of sex available under any pro- 4 vision of Federal law other than title VII, prohib- 5 iting a practice on the basis of sex. 6 ‘‘(b) CLAIMS AND REMEDIES NOT PRECLUDED.— 7 Nothing in section 1101 or title VII shall be construed 8 to limit the claims or remedies available to any individual 9 for an unlawful practice on the basis of race, color, reli- 10 gion, sex (including sexual orientation, gender identity, 11 pregnancy, childbirth, a medical condition related to preg- 12 nancy or childbirth, and a sex stereotype), or national ori- 13 gin including claims brought pursuant to section 1979 or 14 1980 of the Revised Statutes (42 U.S.C. 1983, 1985) or 15 any other law, including a Federal law amended by the 16 BE HEARD in the Workplace Act, regulation, or policy. 17 ‘‘(c) NO NEGATIVE INFERENCE.—Nothing in section 18 1101 or title VII shall be construed to support any infer- 19 ence that any Federal law prohibiting a practice on the 20 basis of sex does not prohibit discrimination on the basis 21 of pregnancy, childbirth, a medical condition related to 22 pregnancy or childbirth, sexual orientation, gender iden- 23 tity, or a sex stereotype. 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 42 •HR 2148 IH ‘‘SEC. 1107. CLAIMS. 1 ‘‘The Religious Freedom Restoration Act of 1993 (42 2 U.S.C. 2000bb et seq.) shall not provide a claim con- 3 cerning, or a defense to a claim under, title VII, or provide 4 a basis for challenging the application or enforcement of 5 title VII.’’. 6 SEC. 202. COVERED EMPLOYERS. 7 Section 701(b) of the Civil Rights Act of 1964 (42 8 U.S.C. 2000e(b)) is amended by striking ‘‘fifteen’’ and in- 9 serting ‘‘one’’. 10 SEC. 203. COMPENSATORY AND PUNITIVE DAMAGES AVAIL- 11 ABLE. 12 (a) CIVIL RIGHTS; DISABILITY.— 13 (1) IN GENERAL.—Section 1977A(b) of the Re- 14 vised Statutes (42 U.S.C. 1981a(b)) is amended by 15 striking paragraph (3) and inserting the following: 16 ‘‘(3) LOSSES.—Compensatory damages are 17 available under this section for future pecuniary 18 losses, emotional pain, suffering, inconvenience, 19 mental anguish, loss of enjoyment of life, and other 20 nonpecuniary losses.’’. 21 (2) CONFORMING AMENDMENTS.— 22 (A) Section 201(b) of the Congressional 23 Accountability Act of 1995 (2 U.S.C. 1311(b)) 24 is amended, in paragraphs (1)(B) and (3)(B)— 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 43 •HR 2148 IH (i) by striking ‘‘and, irrespective of 1 the size of the employing office, 2 1977A(b)(3)(D)’’ and inserting ‘‘and 3 1977A(b)(3)’’; and 4 (ii) by striking ‘‘and 1981a(b)(3)(D)’’ 5 and inserting ‘‘and 1981a(b)(3)’’. 6 (B) Section 411(b) of title 3, United 7 States Code, is amended, in paragraphs (1)(B) 8 and (3)(B), by striking ‘‘and, irrespective of the 9 size of the employing office, 1977A(b)(3)(D)’’ 10 and inserting ‘‘and 1977A(b)(3)’’. 11 (C) Section 207 of the Genetic Information 12 Nondiscrimination Act of 2008 (42 U.S.C. 13 2000ff–16) is amended, in paragraph (3) of 14 each of subsections (a) through (e), by striking 15 ‘‘, including the limitations contained in sub- 16 section (b)(3) of such section 1977A,’’. 17 (b) AGE.—Section 7(b) of the Age Discrimination in 18 Employment Act of 1967 (29 U.S.C. 626(b)) is amend- 19 ed— 20 (1) by striking ‘‘(b) The’’ and all that follows 21 through the third sentence and inserting the fol- 22 lowing: 23 ‘‘(b)(1) Except as otherwise provided in another sub- 24 section of this section, or section 9, the powers, remedies, 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 44 •HR 2148 IH and procedures set forth in sections 705, 706, 707, 709, 1 and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2 2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9) 3 shall be the powers, remedies, and procedures this Act 4 provides to the Commission, to the Attorney General, or 5 to any person alleging discrimination on the basis of age 6 in violation of section 4, or regulations promulgated under 7 section 9.’’; and 8 (2) in the second sentence of that subsection 9 (b), as amended by paragraph (1), by striking ‘‘or 10 enforcing the liability for amounts deemed to be un- 11 paid minimum wages or unpaid overtime compensa- 12 tion under this section’’ and inserting ‘‘and includ- 13 ing any type of legal or equitable relief available 14 under title VII of the Civil Rights Act of 1964 (42 15 U.S.C. 2000e et seq.)’’. 16 SEC. 204. HARASSMENT AND DISCRIMINATION; STANDARDS 17 OF PROOF. 18 (a) FINDINGS.—Congress finds that— 19 (1) harassment is a persistent and significant 20 problem in the workplace in the United States; 21 (2) workers are harassed because of their sex 22 (including sexual orientation, gender identity, preg- 23 nancy, childbirth, or a medical condition related to 24 pregnancy or childbirth, and a sex stereotype), race, 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 45 •HR 2148 IH color, religion, national origin, age, disability, genetic 1 information, and uniformed services status; 2 (3) Congress enacted title VII of the Civil 3 Rights Act of 1964 intending to provide broad pro- 4 tection from many forms of bias in the workplace; 5 (4) the Supreme Court has recognized in City 6 of Los Angeles Department of Water and Power v. 7 Manhart, 435 U.S. 702 (1978), that the protection 8 against sex discrimination in the terms, conditions, 9 or privileges of employment under title VII of the 10 Civil Rights Act of 1964 reflects Congress’ intent to 11 ‘‘strike at the entire spectrum’’ of sex-based dis- 12 crimination in employment; 13 (5) in 1980, the Equal Employment Oppor- 14 tunity Commission (referred to in this section as 15 ‘‘the Commission’’) amended its Guidelines on Dis- 16 crimination Because of Sex (referred to in this sec- 17 tion as ‘‘the Guidelines’’) to specify that sexual har- 18 assment is a form of sex discrimination prohibited 19 by title VII of the Civil Rights Act of 1964; 20 (6) in the Guidelines, the Commission explained 21 that harassing conduct is unlawful where— 22 (A) ‘‘submission to such conduct is made 23 either explicitly or implicitly a term or condition 24 of an individual’s employment’’; 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 46 •HR 2148 IH (B) ‘‘submission to or rejection of such 1 conduct by an individual is used as the basis for 2 employment decisions’’; or 3 (C) the conduct ‘‘has the purpose or effect 4 of unreasonably interfering with an individual’s 5 work performance or creating an intimidating, 6 hostile, or offensive working environment’’; 7 (7) the Commission further explained that, with 8 respect to the evidence required to support a finding 9 of unlawful harassment, it ‘‘will look at the record 10 as a whole and at the totality of the circumstances, 11 such as the nature of the sexual advances and the 12 context in which the alleged incidents occurred’’ and 13 emphasized that the ‘‘determination of the legality of 14 a particular action will be made from the facts, on 15 a case by case basis’’; 16 (8) six years later, the Supreme Court in 17 Meritor Savings Bank v. Vinson, 477 U.S. 57 18 (1986), recognized that the protections under title 19 VII of the Civil Rights Act of 1964 are not limited 20 to discrimination that causes ‘‘economic’’ or ‘‘tan- 21 gible’’ loss, and held that the phrase ‘‘terms, condi- 22 tions, or privileges of employment’’ in title VII of 23 such Act is an ‘‘expansive concept that sweeps with- 24 in its protective ambit’’ the practice of creating a 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 47 •HR 2148 IH hostile work environment based on discrimination in 1 the form of harassment; 2 (9) in reaching this conclusion in the Meritor 3 decision, the Supreme Court cited and approved the 4 Guidelines; 5 (10) in the Meritor decision, the Supreme Court 6 cited with approval lower court decisions that con- 7 cluded that a hostile work environment based on 8 race, religion, or national origin violates the prohibi- 9 tion of discrimination in the terms, conditions, or 10 privileges of employment under title VII of the Civil 11 Rights Act of 1964, which decisions included— 12 (A) Rogers v. EEOC, 454 F.2d 234 (5th 13 Cir. 1971); 14 (B) Firefighters Institute for Racial 15 Equality v. City of St. Louis, 549 F.2d 506 16 (8th Cir. 1977); 17 (C) Gray v. Greyhound Lines, 545 F.2d 18 169 (D.C. Cir. 1976); 19 (D) Compston v. Borden, Inc., 424 F. 20 Supp. 157 (S.D. Ohio 1976); and 21 (E) Cariddi v. Kansas City Chiefs Football 22 Club, Inc., 568 F.2d 87 (8th Cir. 1977); 23 (11) in defining the evidence required to prove 24 a violation of title VII of the Civil Rights Act of 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 48 •HR 2148 IH 1964, in the Meritor decision, the Supreme Court 1 noted that harassment would be actionable when it 2 is ‘‘sufficiently severe or pervasive ‘to alter the con- 3 ditions of [the victim’s] employment and create an 4 abusive working environment’ ’’ (quoting Rogers v. 5 EEOC, 454 F.2d 234 (5th Cir. 1971)); 6 (12) in Harris v. Forklift Systems, Inc., 510 7 U.S. 17 (1993), the Supreme Court clarified that 8 harassment need not seriously affect an employee’s 9 psychological well-being or lead the employee to suf- 10 fer injury in order to be unlawful, but rather, need 11 merely create a work environment that a reasonable 12 person in the protected class would find hostile or 13 abusive; 14 (13) in Harris v. Forklift Systems, Inc., the Su- 15 preme Court held that whether a work environment 16 is unlawfully hostile or abusive does not depend on 17 any mathematically precise test, but rather, is to be 18 determined by looking at all of the circumstances, 19 with no single factor required; 20 (14) in National Railroad Passenger Corp. v. 21 Morgan, 536 U.S. 101 (2002), the Supreme Court 22 reaffirmed the Harris decision and further held that 23 the hostility or abusiveness of each harassing act 24 should be considered in the aggregate, not in isola- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 49 •HR 2148 IH tion, regardless of whether such acts occur over days 1 or even years; 2 (15) notwithstanding the rulings of the Su- 3 preme Court specified in this subsection, some lower 4 court decisions have treated harassing conduct’s se- 5 verity or pervasiveness as the only 2 relevant factors 6 in evaluating whether such conduct violates title VII 7 of the Civil Rights Act of 1964; 8 (16) some lower court decisions have treated 9 ‘‘severe or pervasive’’ as a threshold for liability, 10 when the relevant inquiry is whether the harassing 11 conduct actually altered the terms, conditions, or 12 privileges of employment; 13 (17) some lower court decisions further have in- 14 terpreted the ‘‘severe or pervasive’’ language in the 15 Meritor decision so narrowly as to recognize only the 16 most egregious conduct as unlawful, despite Con- 17 gress’ intent that title VII of the Civil Rights Act of 18 1964 afford a broad scope of protection from dis- 19 crimination; 20 (18) examples of decisions that use the erro- 21 neous analysis described in paragraphs (15) through 22 (17) in the context of harassment on the basis of sex 23 include— 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 50 •HR 2148 IH (A) Singleton v. Department of Correc- 1 tional Education, 115 Fed. Appx. 119 (4th Cir. 2 2004); 3 (B) Black v. Zaring Homes, Inc., 104 F.3d 4 822 (6th Cir. 1997); 5 (C) Weiss v. Coca-Cola Bottling Co., 990 6 F.2d 333 (7th Cir. 1993); 7 (D) Rickard v. Swedish Match North 8 America, Inc., 773 F.3d 181 (8th Cir. 2014); 9 (E) Mitchell v. Pope, 189 F. Appx. 911 10 (11th Cir. 2006); and 11 (F) Brooks v. City of San Mateo, 229 12 F.3d 917 (9th Cir. 2000); 13 (19) lower courts have made similar erroneous 14 decisions in the context of harassment on the basis 15 of race, national origin, age, and disability such as 16 in Crawford v. Medina General Hospital, 96 F.3d 17 830 (6th Cir. 1996), Shaver v. Independent Stave 18 Co., 350 F.3d 716 (8th Cir. 2003), and Motley v. 19 Parker-Hannifan Corp., No. 1: 94–CV–639 (W.D. 20 Mich. 1995); 21 (20) in contrast, other lower court decisions ap- 22 plying the Meritor case and its progeny have appro- 23 priately recognized that a wide range of harassing 24 behavior may alter the terms, conditions, or privi- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 51 •HR 2148 IH leges of employment, with no single type, frequency, 1 or duration of conduct required to make a showing 2 of severe or pervasive harassment; 3 (21) for example, in the context of harassment 4 based on sex, those decisions have held that— 5 (A) conduct need not be physical to create 6 a hostile or abusive work environment, as in 7 Billings v. Town of Grafton, 515 F.3d 39 (1st 8 Cir. 2008); 9 (B) an individual need not be the target of 10 sexually demeaning conduct in order to experi- 11 ence unlawful harassment, as in Petrosino v. 12 Bell Atlantic, 385 F.3d 210 (2d Cir. 2004); 13 (C) power disparities, such as the young 14 age of the individual harassed, compound the 15 conduct’s harmful effects, as in EEOC v. R&R 16 Ventures, 244 F.3d 334 (4th Cir. 2001); 17 (D) gender-based epithets are equally as 18 unlawful as overtly sexual conduct, as in Galla- 19 gher v. C.H. Robinson Worldwide, Inc., 567 20 F.3d 263 (6th Cir. 2009); and 21 (E) a single incident can alter the terms, 22 conditions, or privileges of employment, as in 23 Howley v. Town of Stratford, 217 F.3d 141 (2d 24 Cir. 2000); 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 52 •HR 2148 IH (22) similarly, in the context of harassment 1 based on other protected characteristics, other 2 courts have appropriately held that— 3 (A) calling an individual an ‘‘old man’’ and 4 ‘‘pops’’ could create an actionably hostile work 5 environment based on age, as in Dediol v. Best 6 Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011); 7 (B) repeatedly calling an individual with 8 mental illness ‘‘crazy’’ and stating that the indi- 9 vidual is a threat to security is sufficient to 10 support a finding of a hostile work environment 11 based on disability, as in Quiles-Quiles v. Hen- 12 derson, 439 F.3d 1 (1st Cir. 2006); and 13 (C) a single incident of calling an African- 14 American individual the ‘‘n word’’ is sufficient 15 to support a finding of a hostile work environ- 16 ment based on race, as in Rodgers v. Western- 17 Southern Life Insurance Co., 12 F.3d 668 (7th 18 Cir. 1993); and 19 (23) similar erroneous decisions have been ren- 20 dered in the context of harassment on the basis of 21 sex in employment under title IX of the Education 22 Amendments of 1972 (20 U.S.C. 1681 et seq.), as 23 in Farmer v. Troy University, No. 5:17–CV–70–B0 24 (E.D.N.C. 2017). 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 53 •HR 2148 IH (b) PURPOSES.—The purposes of this section are 1 to— 2 (1) enact into statutory law provisions that es- 3 tablish that workplace harassment is a violation of 4 the— 5 (A) protections from discrimination in the 6 ‘‘terms, conditions, or privileges of employ- 7 ment’’ found in title VII of the Civil Rights Act 8 of 1964 (42 U.S.C. 2000e et seq.); 9 (B) protections from disability discrimina- 10 tion found in title I of the Americans with Dis- 11 abilities Act of 1990 (42 U.S.C. 12111 et seq.) 12 and sections 501 and 505 of the Rehabilitation 13 Act of 1973 (29 U.S.C. 791, 794a); 14 (C) protections from age discrimination 15 found in the Age Discrimination in Employ- 16 ment Act of 1967 (29 U.S.C. 621 et seq.); 17 (D) protections from genetic information 18 discrimination found in title II of the Genetic 19 Information Nondiscrimination Act of 2008 (42 20 U.S.C. 2000ff et seq.); and 21 (E) protections from uniformed services 22 status discrimination found in section 4311 of 23 title 38, United States Code; and 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 54 •HR 2148 IH (2) establish a liability standard for workplace 1 harassment that fulfills Congress’ intent of providing 2 broad protection from discrimination in employment 3 on the basis of race, color, religion, sex (including 4 sexual orientation, gender identity, pregnancy, child- 5 birth, a medical condition related to pregnancy or 6 childbirth, and a sex stereotype), national origin, 7 age, disability, genetic information, and uniformed 8 services status. 9 (c) ENACTING INTO STATUTORY LAW PROVISIONS 10 ESTABLISHING WORKPLACE HARASSMENT AS AN UNLAW- 11 FUL EMPLOYMENT PRACTICE.— 12 (1) CIVIL RIGHTS ACT OF 1964.—Section 703 of 13 the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) 14 is amended by adding at the end the following: 15 ‘‘(o)(1)(A) In this subsection, the term ‘workplace 16 harassment’ means conduct based on race, color, religion, 17 sex (including sexual orientation, gender identity, preg- 18 nancy, childbirth, a medical condition related to pregnancy 19 or childbirth, and a sex stereotype), or national origin, re- 20 gardless of whether it is direct or indirect, or verbal or 21 nonverbal, that unreasonably alters an individual’s terms, 22 conditions, or privileges of employment, including by cre- 23 ating an intimidating, hostile, or offensive work environ- 24 ment. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 55 •HR 2148 IH ‘‘(B)(i) In this subsection, the term includes sexual 1 harassment, which is conduct that takes place in a cir- 2 cumstance described in clause (ii) and that takes the form 3 of— 4 ‘‘(I) a sexual advance; 5 ‘‘(II) a request for sexual favors; or 6 ‘‘(III) any other conduct of a sexual nature. 7 ‘‘(ii) A circumstance described in this clause is a situ- 8 ation in which— 9 ‘‘(I) submission to the conduct involved is made 10 either explicitly or implicitly a term or condition of 11 employment; 12 ‘‘(II) submission to or rejection of such conduct 13 is used as the basis for an employment decision af- 14 fecting an individual’s employment; or 15 ‘‘(III) such conduct unreasonably alters an indi- 16 vidual’s terms, conditions, or privileges of employ- 17 ment, including by creating an intimidating hostile, 18 or offensive work environment. 19 ‘‘(2) It shall be an unlawful employment practice 20 under subsection (a) to engage in workplace harassment. 21 ‘‘(3) In determining, for purposes of this subsection, 22 whether conduct constitutes workplace harassment be- 23 cause the conduct unreasonably alters an individual’s 24 terms, conditions, or privileges of employment, including 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 56 •HR 2148 IH by creating an intimidating, hostile, or offensive work en- 1 vironment, the following rules shall apply: 2 ‘‘(A) That determination shall be made on the 3 basis of the record as a whole, according to the to- 4 tality of the circumstances. A single incident may 5 constitute workplace harassment. 6 ‘‘(B) Incidents that may be workplace harass- 7 ment shall be considered in the aggregate, with— 8 ‘‘(i) conduct of varying types (such as ex- 9 pressions of sex-based hostility, requests for 10 sexual favors, and denial of employment oppor- 11 tunities due to sexual orientation) viewed in to- 12 tality, rather than in isolation; and 13 ‘‘(ii) conduct based on multiple protected 14 characteristics (such as sex and race) viewed in 15 totality, rather than in isolation. 16 ‘‘(C) The factors specified in this subparagraph 17 are among the factors to be considered in deter- 18 mining whether conduct constitutes workplace har- 19 assment and are not meant to be exhaustive. No one 20 of those factors shall be considered to be determina- 21 tive in establishing whether conduct constitutes 22 workplace harassment. Such factors are each of the 23 following: 24 ‘‘(i) The frequency of the conduct. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 57 •HR 2148 IH ‘‘(ii) The duration of the conduct. 1 ‘‘(iii) The location where the conduct oc- 2 curred. 3 ‘‘(iv) The number of individuals engaged in 4 the conduct. 5 ‘‘(v) The nature of the conduct, which may 6 include physical, verbal, pictorial, or visual con- 7 duct, and conduct that occurs in person or is 8 transmitted, such as electronically. 9 ‘‘(vi) Whether the conduct is threatening. 10 ‘‘(vii) Any power differential between the 11 alleged harasser and the person allegedly har- 12 assed. 13 ‘‘(viii) Any use of epithets, slurs, or other 14 conduct that is humiliating or degrading. 15 ‘‘(ix) Whether the conduct reflects stereo- 16 types about individuals in the protected class 17 involved. 18 ‘‘(4) In determining, for purposes of this subsection, 19 whether conduct constitutes workplace harassment, con- 20 duct may be workplace harassment regardless of whether, 21 for example— 22 ‘‘(A) the complaining party is not the individual 23 being harassed; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 58 •HR 2148 IH ‘‘(B) the complaining party acquiesced or other- 1 wise submitted to, or participated in, the conduct; 2 ‘‘(C) the conduct is also experienced by others 3 outside the protected class involved; 4 ‘‘(D) the complaining party was able to con- 5 tinue carrying out duties and responsibilities of the 6 party’s job despite the conduct; 7 ‘‘(E) the conduct did not cause a tangible in- 8 jury or psychological injury; or 9 ‘‘(F) the conduct occurred outside of the work- 10 place.’’. 11 (2) AMERICANS WITH DISABILITIES ACT OF 12 1990.—Section 102(b) of the Americans with Disabil- 13 ities Act (42 U.S.C. 12112(b)) is amended— 14 (A) in paragraph (6), by striking ‘‘and’’ at 15 the end; 16 (B) in paragraph (7), by striking the pe- 17 riod and inserting ‘‘; and’’; and 18 (C) by adding at the end the following: 19 ‘‘(8) engaging in workplace harassment, which 20 is conduct based on disability, regardless of whether 21 it is direct or indirect, or verbal or nonverbal, that— 22 ‘‘(A) unreasonably alters an individual’s 23 terms, conditions, or privileges of employment, 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 59 •HR 2148 IH including by creating an intimidating, hostile, 1 or offensive work environment; and 2 ‘‘(B) is determined to be such harassment 3 in accordance with paragraphs (3) and (4) of 4 section 703(o) of the Civil Rights Act of 1964 5 (42 U.S.C. 2000e–2(o)).’’. 6 (3) REHABILITATION ACT OF 1973.—Section 7 501(f) of the Rehabilitation Act of 1973 (29 U.S.C. 8 791(f)) is amended by inserting ‘‘, including section 9 102(b) of that Act (42 U.S.C. 12112(b))’’, before 10 ‘‘and the provisions’’. 11 (4) AGE DISCRIMINATION IN EMPLOYMENT 12 ACT.—Section 4 of the Age Discrimination in Em- 13 ployment Act of 1967 (29 U.S.C. 623) is amended 14 by adding at the end the following: 15 ‘‘(n) It shall be unlawful under subsection (a) to en- 16 gage in workplace harassment, which is conduct based on 17 age, regardless of whether it is direct or indirect, or verbal 18 or nonverbal, that— 19 ‘‘(1) unreasonably alters an individual’s terms, 20 conditions, or privileges of employment, including by 21 creating an intimidating, hostile, or offensive work 22 environment; and 23 ‘‘(2) is determined to be such harassment in ac- 24 cordance with paragraphs (3) and (4) of section 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00059 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 60 •HR 2148 IH 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 1 2000e–2(o)).’’. 2 (5) GENETIC INFORMATION NONDISCRIMINA- 3 TION ACT OF 2008.—Section 202 of the Genetic In- 4 formation Nondiscrimination Act of 2008 (42 U.S.C. 5 2000ff–1) is amended by adding at the end the fol- 6 lowing: 7 ‘‘(d) WORKPLACE HARASSMENT.—It shall be an un- 8 lawful employment practice under subsection (a) to engage 9 in workplace harassment, which is conduct based on ge- 10 netic information, regardless of whether it is direct or indi- 11 rect, or verbal or nonverbal, that— 12 ‘‘(1) unreasonably alters an individual’s terms, 13 conditions, or privileges of employment, including by 14 creating an intimidating, hostile, or offensive work 15 environment; and 16 ‘‘(2) is determined to be such harassment in ac- 17 cordance with paragraphs (3) and (4) of section 18 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 19 2000e–2(o)).’’. 20 (6) CHAPTER 43 OF TITLE 38, UNITED STATES 21 CODE.—Section 4311 of title 38, United States 22 Code, is amended by adding at the end the fol- 23 lowing: 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00060 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 61 •HR 2148 IH ‘‘(e) It shall be an unlawful employment practice 1 under subsection (a) to engage in workplace harassment, 2 which is conduct based on uniformed services status 3 (meaning the membership, application for membership, 4 performance of service, application for service, or obliga- 5 tion, described in subsection (a)), regardless of whether 6 it is direct or indirect, or verbal or nonverbal, that— 7 ‘‘(1) unreasonably alters an individual’s benefits 8 of employment, including by creating an intimi- 9 dating, hostile, or offensive work environment; and 10 ‘‘(2) is determined to be such harassment in ac- 11 cordance with paragraphs (3) and (4) of section 12 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 13 2000e–2(o)).’’. 14 SEC. 205. CLARIFYING OTHER STANDARDS OF PROOF. 15 (a) AMENDMENTS TO DEFINITIONS.— 16 (1) AMERICANS WITH DISABILITIES ACT OF 17 1990.—Section 101 of the Americans with Disabil- 18 ities Act of 1990 (42 U.S.C. 12111) is amended by 19 adding at the end the following: 20 ‘‘(11) DEMONSTRATES.—The term ‘dem- 21 onstrates’ means meets the burdens of production 22 and persuasion.’’. 23 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT 24 OF 1967.—Section 11 of the Age Discrimination in 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 62 •HR 2148 IH Employment Act of 1967 (29 U.S.C. 630) is amend- 1 ed by adding at the end the following: 2 ‘‘(m) The term ‘demonstrates’ means meets the bur- 3 dens of production and persuasion.’’. 4 (3) GENETIC INFORMATION NONDISCRIMINA- 5 TION ACT OF 2008.—Section 201 of the Genetic In- 6 formation Nondiscrimination Act of 2008 (42 U.S.C. 7 2000ff) is amended by adding at the end the fol- 8 lowing: 9 ‘‘(8) DEMONSTRATES.—The term ‘dem- 10 onstrates’ means meets the burdens of production 11 and persuasion.’’. 12 (b) CLARIFYING PROHIBITION AGAINST IMPERMIS- 13 SIBLE CONSIDERATION IN EMPLOYMENT PRACTICES.— 14 (1) RACE, COLOR, RELIGION, SEX, OR NA- 15 TIONAL ORIGIN.—Section 703 of the Civil Rights 16 Act of 1964 (42 U.S.C. 2000e–2) is amended by 17 striking subsection (m) and inserting the following: 18 ‘‘(m) Except as otherwise provided in this title, an 19 unlawful employment practice is established under this 20 title when the complaining party demonstrates that race, 21 color, religion, sex, or national origin or an activity pro- 22 tected by section 704(a) was a motivating factor for any 23 employment practice, even though other factors also moti- 24 vated the practice.’’. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 63 •HR 2148 IH (2) DISABILITY.—Section 102 of the Americans 1 with Disabilities Act of 1990 (42 U.S.C. 12112) is 2 amended by adding at the end the following: 3 ‘‘(e) PROOF.— 4 ‘‘(1) ESTABLISHMENT.—Except as otherwise 5 provided in this Act, a discriminatory practice is es- 6 tablished under this Act when the complaining party 7 demonstrates that disability or an activity protected 8 by subsection (a) or (b) of section 503 was a moti- 9 vating factor for any employment practice, even 10 though other factors also motivated the practice. 11 ‘‘(2) DEMONSTRATION.—In establishing a dis- 12 criminatory practice under paragraph (1) or by any 13 other method of proof, a complaining party— 14 ‘‘(A) may rely on any type or form of ad- 15 missible evidence and need only produce evi- 16 dence sufficient for a reasonable trier of fact to 17 find that a discriminatory practice occurred 18 under this Act; and 19 ‘‘(B) shall not be required to demonstrate 20 that disability or an activity protected by sub- 21 section (a) or (b) of section 503 was the sole 22 cause of an employment practice.’’. 23 (3) AGE.—Section 4 of the Age Discrimination 24 in Employment Act of 1967 (29 U.S.C. 623) is 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00063 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 64 •HR 2148 IH amended by inserting after subsection (f) the fol- 1 lowing: 2 ‘‘(g)(1) Except as otherwise provided in this Act, an 3 unlawful practice is established under this Act when the 4 complaining party demonstrates that age or an activity 5 protected by subsection (d) was a motivating factor for 6 any practice, even though other factors also motivated the 7 practice. 8 ‘‘(2) In establishing an unlawful practice under this 9 Act, including under paragraph (1) or by any other meth- 10 od of proof, a complaining party— 11 ‘‘(A) may rely on any type or form of admis- 12 sible evidence and need only produce evidence suffi- 13 cient for a reasonable trier of fact to find that an 14 unlawful practice occurred under this Act; and 15 ‘‘(B) shall not be required to demonstrate that 16 age or an activity protected by subsection (d) was 17 the sole cause of a practice.’’. 18 (4) GENETIC INFORMATION.—Section 202 of 19 the Genetic Information Nondiscrimination Act of 20 2008 (42 U.S.C. 2000ff–1), as amended by section 21 204(c)(5), is further amended by adding at the end 22 the following: 23 ‘‘(e) PROOF.— 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 65 •HR 2148 IH ‘‘(1) ESTABLISHMENT.—Except as otherwise 1 provided in this title, an unlawful employment prac- 2 tice is established under this title when the com- 3 plaining party demonstrates that genetic information 4 or an activity protected by section 207(f) was a mo- 5 tivating factor for any employment practice, even 6 though other factors also motivated the practice. 7 ‘‘(2) DEMONSTRATION.—In establishing an un- 8 lawful employment practice under paragraph (1) or 9 by any other method of proof, a complaining party— 10 ‘‘(A) may rely on any type or form of ad- 11 missible evidence and need only produce evi- 12 dence sufficient for a reasonable trier of fact to 13 find that an unlawful employment practice oc- 14 curred under this title; and 15 ‘‘(B) shall not be required to demonstrate 16 that genetic information or an activity protected 17 by section 207(f) was the sole cause of an em- 18 ployment practice.’’. 19 (c) CERTAIN RETALIATION CLAIMS.— 20 (1) AMERICANS WITH DISABILITIES ACT OF 21 1990.—Section 503(c) of the Americans with Disabil- 22 ities Act of 1990 (42 U.S.C. 12203(c)) is amend- 23 ed— 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 66 •HR 2148 IH (A) by striking ‘‘The remedies’’ and insert- 1 ing the following: 2 ‘‘(1) IN GENERAL.—Except as provided in para- 3 graph (2), the remedies’’; and 4 (B) by adding at the end the following: 5 ‘‘(2) CERTAIN ANTIRETALIATION CLAIMS.—Sec- 6 tion 107(c) shall apply to claims under section 7 102(e)(1) with respect to title I.’’. 8 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT 9 OF 1967.—Section 4(d) of the Age Discrimination in 10 Employment Act of 1967 (29 U.S.C. 623(d)) is 11 amended— 12 (A) by striking ‘‘(d) It shall be’’ and in- 13 serting ‘‘(d)(1) It shall be’’; and 14 (B) by adding at the end the following: 15 ‘‘(2) Section 7(b)(2) shall apply to claims under sec- 16 tion 4(g)(1).’’. 17 (3) GENETIC INFORMATION NONDISCRIMINA- 18 TION ACT OF 2008.—Section 207(f) of the Genetic 19 Information Nondiscrimination Act of 2008 (42 20 U.S.C. 2000ff–6(f)) is amended— 21 (A) by striking ‘‘No’’ and inserting the fol- 22 lowing: 23 ‘‘(1) IN GENERAL.—No’’; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 67 •HR 2148 IH (B) in the second sentence, by striking 1 ‘‘The remedies’’ and inserting ‘‘Except as pro- 2 vided in paragraph (2), the remedies’’; and 3 (C) by adding at the end the following: 4 ‘‘(2) CERTAIN RETALIATION CLAIMS.—Sub- 5 section (g) shall apply to claims under section 6 202(d)(1).’’. 7 (d) REMEDIES.— 8 (1) AMERICANS WITH DISABILITIES ACT OF 9 1990.—Section 107 of the Americans with Disabil- 10 ities Act of 1990 (42 U.S.C. 12117) is amended by 11 adding at the end the following: 12 ‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a 13 claim in which an individual demonstrates that disability 14 was a motivating factor for any employment practice, 15 under section 102(e)(1), and a respondent demonstrates 16 that the respondent would have taken the same action in 17 the absence of the impermissible motivating factor, the 18 court— 19 ‘‘(1) may grant declaratory relief, injunctive re- 20 lief (except as provided in paragraph (2)), and attor- 21 ney’s fees and costs demonstrated to be directly at- 22 tributable only to the pursuit of a claim under sec- 23 tion 102(e)(1); and 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00067 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 68 •HR 2148 IH ‘‘(2) shall not award damages or issue an order 1 requiring any admission, reinstatement, hiring, pro- 2 motion, or payment.’’. 3 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT 4 OF 1967.—Section 7 of the Age Discrimination in 5 Employment Act of 1967 (29 U.S.C. 626) is amend- 6 ed— 7 (A) in subsection (b), as amended by sec- 8 tion 203(b)— 9 (i) in the second sentence, by striking 10 ‘‘In’’ and inserting ‘‘Subject to paragraph 11 (2), in’’; 12 (ii) in the third sentence, by striking 13 ‘‘Before’’ and inserting the following: 14 ‘‘(3) Before’’; and 15 (iii) by inserting before paragraph (3), 16 as designated by clause (ii), the following: 17 ‘‘(2) On a claim in which an individual demonstrates 18 that age was a motivating factor for any employment prac- 19 tice, under section 4(g)(1), and a respondent demonstrates 20 that the respondent would have taken the same action in 21 the absence of the impermissible motivating factor, the 22 court— 23 ‘‘(A) may grant declaratory relief, injunctive re- 24 lief (except as provided in subparagraph (B)), and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00068 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 69 •HR 2148 IH attorney’s fees and costs demonstrated to be directly 1 attributable only to the pursuit of a claim under sec- 2 tion 4(g)(1); and 3 ‘‘(B) shall not award damages or issue an order 4 requiring any admission, reinstatement, hiring, pro- 5 motion, or payment.’’; and 6 (B) in subsection (c)— 7 (i) in paragraph (1), by striking 8 ‘‘Any’’ and inserting ‘‘Subject to sub- 9 section (b)(2), any’’; and 10 (ii) in paragraph (2), by striking ‘‘of 11 any issue of fact’’ and all that follows 12 through the period and inserting ‘‘under 13 the same circumstances as a trial by jury 14 is available under title VII of the Civil 15 Rights Act of 1964 (42 U.S.C. 2000e et 16 seq.).’’. 17 (3) GENETIC INFORMATION NONDISCRIMINA- 18 TION ACT OF 2008.—Section 207 of the Genetic In- 19 formation Nondiscrimination Act of 2008 (42 U.S.C. 20 2000ff–6) is amended— 21 (A) by redesignating subsection (g) as sub- 22 section (h); and 23 (B) by inserting after subsection (f) the 24 following: 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 70 •HR 2148 IH ‘‘(g) MOTIVATING FACTOR.—On a claim in which an 1 individual demonstrates that genetic information was a 2 motivating factor for any employment practice, under sec- 3 tion 202(e)(1), including a claim involving an employee or 4 applicant described in any of subsections (a) through (e), 5 and a respondent demonstrates that the respondent would 6 have taken the same action in the absence of the imper- 7 missible motivating factor, the court or the corresponding 8 decisionmaker specified in subsections (a) through (e)— 9 ‘‘(1) may grant declaratory relief, injunctive re- 10 lief (except as provided in paragraph (2)), and attor- 11 ney’s fees and costs demonstrated to be directly at- 12 tributable only to the pursuit of a claim under sec- 13 tion 202(d)(1); and 14 ‘‘(2) shall not award damages or issue an order 15 requiring any admission, reinstatement, hiring, pro- 16 motion, or payment.’’. 17 (e) FEDERAL EMPLOYEES.— 18 (1) TITLE VII OF THE CIVIL RIGHTS ACT OF 19 1964.—Section 717 of the Civil Rights Act of 1964 20 (42 U.S.C. 2000e–16) is amended by adding at the 21 end the following: 22 ‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 23 to mixed motive cases (involving practices described in sec- 24 tion 703(m)) under this section.’’. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 71 •HR 2148 IH (2) REHABILITATION ACT OF 1973.—The 1 amendment made by subsection (f) to section 501(f) 2 of the Rehabilitation Act of 1973 (29 U.S.C. 791(f)) 3 shall be construed to apply to all employees covered 4 by section 501 of that Act (29 U.S.C. 791). 5 (3) AGE DISCRIMINATION IN EMPLOYMENT ACT 6 OF 1967.—Section 15 of the Age Discrimination in 7 Employment Act of 1967 (29 U.S.C. 633a) is 8 amended— 9 (A) in subsection (a)— 10 (i) by striking ‘‘States) in’’ and insert- 11 ing ‘‘States) shall be made free from any 12 discrimination based on age, in—’’; 13 (ii) by striking ‘‘military depart- 14 ments’’ and inserting the following: 15 ‘‘(1) military departments’’; 16 (iii) by striking ‘‘Code, in executive 17 agencies’’ and inserting the following: 18 ‘‘Code; 19 ‘‘(2) executive agencies’’; 20 (iv) by striking ‘‘funds), in the United 21 States Postal’’ and inserting the following: 22 ‘‘funds); 23 ‘‘(3) the United States Postal’’; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 72 •HR 2148 IH (v) by striking ‘‘Commission, in those 1 units’’ and inserting the following: ‘‘Com- 2 mission; 3 ‘‘(4) those units’’; 4 (vi) by striking ‘‘competitive service, 5 and in those units’’ and inserting the fol- 6 lowing: ‘‘competitive service; 7 ‘‘(5) those units’’; 8 (vii) by striking ‘‘competitive service, 9 in the Smithsonian’’ and inserting ‘‘com- 10 petitive service; 11 ‘‘(6) the Smithsonian’’; 12 (viii) by striking ‘‘Institution, and in 13 the Government’’ and inserting ‘‘Institu- 14 tion; 15 ‘‘(7) the Government’’; 16 (ix) by striking ‘‘Printing Office, the 17 General’’ and inserting ‘‘Printing Office; 18 ‘‘(8) the General’’; 19 (x) by striking ‘‘Office, and the Li- 20 brary’’ and inserting ‘‘Office; and 21 ‘‘(9) the Library’’; and 22 (xi) by striking ‘‘of Congress’’ and all 23 that follows and inserting ‘‘of Congress.’’; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00072 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 73 •HR 2148 IH (B) in subsection (b), by striking the first, 1 second, third, fourth, and sixth sentences; 2 (C) in subsection (c), by striking ‘‘Any per- 3 son’’ and inserting ‘‘Notwithstanding any other 4 provision of this Act, any person’’; 5 (D) by striking subsection (g) and insert- 6 ing the following: 7 ‘‘(g) Except as otherwise provided in another sub- 8 section of this section, section 7, or section 9, the powers, 9 remedies, and procedures provided in section 717 of the 10 Civil Rights Act of 1964 (42 U.S.C. 2000e–16) to the 11 Commission, the Attorney General, the Librarian of Con- 12 gress, or any person, alleging a violation of that section 13 shall be the powers, remedies, and procedures this Act 14 provides to the Commission, the Attorney General, the Li- 15 brarian of Congress, or any person, respectively, alleging 16 an unlawful employment practice in violation of subsection 17 (a) against an employee or applicant for employment de- 18 scribed in subsection (a).’’; and 19 (E) by adding at the end the following: 20 ‘‘(h) Section 4(g) shall apply to mixed motive claims 21 (involving practices described in section 4(g)(1)) under 22 this section.’’. 23 (f) ADDITIONAL AMENDMENTS TO THE REHABILITA- 24 TION ACT OF 1973.—Sections 501(f), 503(d), and 504(d) 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00073 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 74 •HR 2148 IH of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 1 793(d), and 794(d)), are each amended by adding after 2 the words ‘‘title I of the Americans with Disabilities Act 3 of 1990 (42 U.S.C. 12111 et seq.)’’ the following: ‘‘, in- 4 cluding the standards of causation and methods of proof 5 applied under section 102(e) of that Act (42 U.S.C. 6 12112(e)),’’. 7 (g) OTHER GOVERNMENT EMPLOYEES.— 8 (1) CONGRESSIONAL ACCOUNTABILITY ACT OF 9 1995.—Section 201 of the Congressional Account- 10 ability Act of 1995 (2 U.S.C. 1311) is amended— 11 (A) in subsection (a)(2), by striking ‘‘sec- 12 tion 15 of the Age Discrimination in Employ- 13 ment Act of 1967 (29 U.S.C. 633a)’’ and in- 14 serting ‘‘sections 4(g) and 15 of the Age Dis- 15 crimination in Employment Act of 1967 (29 16 U.S.C. 623(g), 633a)’’; and 17 (B) in subsection (b)— 18 (i) in paragraph (2)(A), by striking 19 ‘‘section 15(c) of the Age Discrimination in 20 Employment Act of 1967 (29 U.S.C. 21 633a(c))’’ and inserting ‘‘section 4(d)(2), 22 paragraphs (1) and (2) of section 7(b), 23 and section 15(c) of the Age Discrimina- 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 75 •HR 2148 IH tion in Employment Act of 1967 (29 1 U.S.C. 623(d)(2), 626(b), 633a(c))’’; and 2 (ii) in paragraph (3)(A), by striking 3 ‘‘section 107(a) of the Americans with Dis- 4 abilities Act of 1990 (42 U.S.C. 5 12117(a))’’ and inserting ‘‘subsections (a) 6 and (c) of section 107, and section 7 503(c)(2), of the Americans with Disabil- 8 ities Act of 1990 (42 U.S.C. 12117, 9 12203)’’. 10 (2) TITLE 3, UNITED STATES CODE.—Section 11 411 of title 3, United States Code, is amended— 12 (A) in subsection (a)(2), by striking ‘‘sec- 13 tion 15 of the Age Discrimination in Employ- 14 ment Act of 1967’’ and inserting ‘‘sections 4(g) 15 and 15 of the Age Discrimination in Employ- 16 ment Act of 1967’’; and 17 (B) in subsection (b)— 18 (i) in paragraph (2)(A), by striking 19 ‘‘section 15(c) of the Age Discrimination in 20 Employment Act of 1967’’ and inserting 21 ‘‘section 4(d)(2), paragraphs (1) and (2) of 22 section 7(b), and section 15(c) of the Age 23 Discrimination in Employment Act of 24 1967’’; and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 76 •HR 2148 IH (ii) in paragraph (3)(A), by striking 1 ‘‘section 107(a) of the Americans with Dis- 2 abilities Act of 1990’’ and inserting ‘‘sub- 3 sections (a) and (c) of section 107, and 4 section 503(c)(2), of the Americans with 5 Disabilities Act of 1990’’. 6 (3) GOVERNMENT EMPLOYEE RIGHTS ACT OF 7 1991.—Section 302 of the Government Employee 8 Rights Act of 1991 (42 U.S.C. 2000e–16b) is 9 amended— 10 (A) in subsection (a)(2), by striking ‘‘sec- 11 tion 15 of the Age Discrimination in Employ- 12 ment Act of 1967 (29 U.S.C. 633a)’’ and in- 13 serting ‘‘sections 4(g) and 15 of the Age Dis- 14 crimination in Employment Act of 1967 (29 15 U.S.C. 623(g), 633a)’’; and 16 (B) in subsection (b)— 17 (i) in paragraph (1), by inserting 18 ‘‘(and, in the case of a violation of sub- 19 section (a)(3), sections 107(c) and 20 503(c)(2) of the Americans with Disabil- 21 ities Act of 1990 (42 U.S.C. 12117(c), 22 12203(c)(2)))’’ before ‘‘, and’’; and 23 (ii) in paragraph (2), by striking ‘‘sec- 24 tion 15(c) of the Age Discrimination in 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00076 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 77 •HR 2148 IH Employment Act of 1967 (29 U.S.C. 1 633a(c))’’ and inserting ‘‘section 4(d)(2), 2 paragraphs (1) and (2) of section 7(b), 3 and section 15(c) of the Age Discrimina- 4 tion in Employment Act of 1967 (29 5 U.S.C. 623(d)(2), 626(b), 633a(c))’’. 6 (h) APPLICATION.—This section, and the amend- 7 ments made by this section, shall apply to all claims pend- 8 ing on or after the date of enactment of this Act. 9 SEC. 206. SUPERVISOR LIABILITY. 10 (a) AMENDMENT TO TITLE VII OF THE CIVIL 11 RIGHTS ACT OF 1964.— 12 (1) STANDARD FOR EMPLOYER LIABILITY FOR 13 HOSTILE WORK ENVIRONMENT.—Section 703 of the 14 Civil Rights Act of 1964 (42 U.S.C. 2000e–2), as 15 amended by 204(c)(1), is further amended by adding 16 at the end the following: 17 ‘‘(p) Subject to section 206(j) of the BE HEARD in 18 the Workplace Act, an employer shall be liable for the acts 19 of any individual whose harassment of an employee has 20 created or continued a hostile work environment that con- 21 stitutes an unlawful employment practice under this sec- 22 tion if, at the time of the harassment— 23 ‘‘(1) such individual was authorized by that em- 24 ployer— 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 78 •HR 2148 IH ‘‘(A) to undertake or recommend tangible 1 employment actions affecting the employee; or 2 ‘‘(B) to direct the employee’s daily work 3 activities; or 4 ‘‘(2) the negligence of the employer led to the 5 creation or continuation of that hostile work environ- 6 ment.’’. 7 (2) STANDARD FOR EMPLOYER LIABILITY FOR 8 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec- 9 tion 704 of the Civil Rights Act of 1964 (42 U.S.C. 10 2000e–3), as amended by section 201(a)(3), is fur- 11 ther amended— 12 (A) by redesignating subsection (b) as sub- 13 section (c); and 14 (B) by inserting after subsection (a) the 15 following: 16 ‘‘(b) Subject to section 206(j) of the BE HEARD in 17 the Workplace Act, an employer shall be liable for the acts 18 of any individual whose harassment of an employee has 19 created or continued a retaliatory hostile work environ- 20 ment that constitutes an unlawful employment practice as 21 described under subsection (a) if, at the time of the har- 22 assment— 23 ‘‘(1) such individual was authorized by that em- 24 ployer— 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00078 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 79 •HR 2148 IH ‘‘(A) to undertake or recommend tangible 1 employment actions affecting the employee; or 2 ‘‘(B) to direct the employee’s daily work 3 activities; or 4 ‘‘(2) the negligence of the employer led to the 5 creation or continuation of that retaliatory hostile 6 work environment.’’. 7 (3) FEDERAL EMPLOYEES.—Section 717 of the 8 Civil Rights Act of 1964 (42 U.S.C. 2000e–16), as 9 amended by section 205(e)(1), is further amended 10 by adding at the end the following: 11 ‘‘(h) The provisions of sections 703(p) and 704(b) 12 shall apply to hostile work environment claims and retalia- 13 tory hostile work environment claims, respectively, under 14 this section.’’. 15 (b) AMENDMENT TO THE AGE DISCRIMINATION IN 16 EMPLOYMENT ACT OF 1967.— 17 (1) STANDARD FOR EMPLOYER LIABILITY FOR 18 HOSTILE WORK ENVIRONMENT.—Section 4 of the 19 Age Discrimination in Employment Act of 1967 (29 20 U.S.C. 623), as amended by section 204(c)(4), is 21 further amended by adding at the end the following: 22 ‘‘(o) Subject to section 206(j) of the BE HEARD in 23 the Workplace Act, an employer shall be liable for the acts 24 of any individual whose harassment of an employee has 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00079 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 80 •HR 2148 IH created or continued a hostile work environment that is 1 unlawful under this section if, at the time of the harass- 2 ment— 3 ‘‘(1) such individual was authorized by that em- 4 ployer— 5 ‘‘(A) to undertake or recommend tangible 6 employment actions affecting the employee; or 7 ‘‘(B) to direct the employee’s daily work 8 activities; or 9 ‘‘(2) the negligence of the employer led to the 10 creation or continuation of that hostile work environ- 11 ment.’’. 12 (2) STANDARD FOR EMPLOYER LIABILITY FOR 13 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec- 14 tion 4(d)(1) of the Age Discrimination in Employ- 15 ment Act of 1967 (29 U.S.C. 623(d)(1)), as amend- 16 ed by section 205(c)(2), is further amended by strik- 17 ing ‘‘or litigation under this Act.’’ and inserting ‘‘or 18 litigation under this Act. Subject to section 206(j) of 19 the BE HEARD in the Workplace Act, an employer 20 shall be liable for the acts of any individual whose 21 harassment of an employee has created or continued 22 a retaliatory hostile work environment that is unlaw- 23 ful under this subsection if, at the time of the har- 24 assment— 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00080 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 81 •HR 2148 IH ‘‘(A) such individual was authorized by 1 that employer— 2 ‘‘(i) to undertake or recommend tan- 3 gible employment actions affecting the em- 4 ployee; or 5 ‘‘(ii) to direct the employee’s daily 6 work activities; or 7 ‘‘(B) the negligence of the employer led to 8 the creation or continuation of that retaliatory 9 hostile work environment.’’. 10 (3) FEDERAL EMPLOYEES.—Section 15 of the 11 Age Discrimination in Employment Act of 1967 (29 12 U.S.C. 633a), as amended by section 205(e)(3), is 13 further amended by adding at the end the following: 14 ‘‘(i) Subsections (d) and (o) of section 4 shall apply 15 to retaliatory hostile work environment claims and hostile 16 work environment claims, respectively, under this sec- 17 tion.’’. 18 (c) AMENDMENT TO THE AMERICANS WITH DISABIL- 19 ITIES ACT OF 1990.— 20 (1) STANDARD FOR EMPLOYER LIABILITY FOR 21 HOSTILE WORK ENVIRONMENT.—Section 102 of the 22 Americans with Disabilities Act of 1990 (42 U.S.C. 23 12112), as amended by section 205(b)(2), is further 24 amended by adding at the end the following: 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00081 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 82 •HR 2148 IH ‘‘(f) Subject to section 206(j) of the BE HEARD in 1 the Workplace Act, an employer shall be liable for the acts 2 of any individual whose harassment of an employee has 3 created or continued a hostile work environment that con- 4 stitutes discrimination against a qualified individual on 5 the basis of disability under this section if, at the time 6 of the harassment— 7 ‘‘(1) such individual was authorized by the em- 8 ployer— 9 ‘‘(A) to undertake or recommend tangible 10 employment actions affecting the qualified indi- 11 vidual; or 12 ‘‘(B) to direct the qualified individual’s 13 daily work activities; or 14 ‘‘(2) the negligence of the employer led to the 15 creation or continuation of that hostile work environ- 16 ment.’’. 17 (2) STANDARD FOR EMPLOYER LIABILITY FOR 18 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec- 19 tion 503 of the Americans with Disabilities Act of 20 1990 (42 U.S.C. 12203) is amended— 21 (A) by redesignating subsection (c) as sub- 22 section (d); 23 (B) by inserting after subsection (b) the 24 following: 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00082 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 83 •HR 2148 IH ‘‘(c) Subject to section 206(j) of the BE HEARD in 1 the Workplace Act, an employer shall be liable for the acts 2 of any individual whose harassment of an employee has 3 created or continued a retaliatory hostile work environ- 4 ment that constitutes retaliatory discrimination, as de- 5 scribed in subsection (a), or the carrying out of any unlaw- 6 ful acts described in subsection (b), if, at the time of the 7 harassment— 8 ‘‘(1) such individual was authorized by the em- 9 ployer— 10 ‘‘(A) to undertake or recommend tangible 11 employment actions affecting the employee; or 12 ‘‘(B) to direct the employee’s daily work 13 activities; or 14 ‘‘(2) the negligence of the employer led to the 15 creation or continuation of that retaliatory hostile 16 work environment.’’; and 17 (C) in subsection (d), as redesignated by 18 subparagraph (A), by striking ‘‘subsections (a) 19 and (b)’’ and inserting ‘‘subsections (a), (b), 20 and (c)’’. 21 (d) AMENDMENT TO THE REHABILITATION ACT OF 22 1973.— 23 (1) STANDARD FOR EMPLOYER LIABILITY FOR 24 HOSTILE WORK ENVIRONMENT AND RETALIATORY 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00083 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 84 •HR 2148 IH HOSTILE WORK ENVIRONMENT.—Section 501 of the 1 Rehabilitation Act of 1973 (29 U.S.C. 791) is 2 amended by adding at the end the following: 3 ‘‘(h) Subject to section 206(j) of the BE HEARD in 4 the Workplace Act, each department, agency, and instru- 5 mentality in the executive branch of Government and the 6 Smithsonian Institution shall be liable for the acts of any 7 individual within such department, agency, instrumen- 8 tality, or the Smithsonian Institution whose harassment 9 of an individual with a disability has created or continued 10 a hostile work environment, or a retaliatory hostile work 11 environment, that constitutes nonaffirmative action em- 12 ployment discrimination under this section if, at the time 13 of the harassment— 14 ‘‘(1) such individual was authorized by that de- 15 partment, agency, instrumentality, or the Smithso- 16 nian Institution— 17 ‘‘(A) to undertake or recommend tangible 18 employment actions affecting the individual 19 with a disability; or 20 ‘‘(B) to direct the daily work activities of 21 the individual with a disability; or 22 ‘‘(2) the negligence of that department, agency, 23 instrumentality, or the Smithsonian Institution led 24 to the creation or continuation of that hostile work 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00084 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 85 •HR 2148 IH environment or retaliatory hostile work environ- 1 ment.’’. 2 (2) STANDARD FOR EMPLOYER LIABILITY FOR 3 HOSTILE WORK ENVIRONMENT AND RETALIATORY 4 HOSTILE WORK ENVIRONMENT.—Section 504 of the 5 Rehabilitation Act of 1973 (29 U.S.C. 794) is 6 amended by adding at the end the following: 7 ‘‘(e) Subject to section 206(j) of the BE HEARD in 8 the Workplace Act, an employer described under sub- 9 section (b) shall be liable for the acts of any individual 10 whose harassment of a qualified individual with a dis- 11 ability has created or continued a hostile work environ- 12 ment, or a retaliatory hostile work environment, that con- 13 stitutes employment discrimination under this section if, 14 at the time of the harassment— 15 ‘‘(1) such individual was authorized by such 16 employer— 17 ‘‘(A) to undertake or recommend tangible 18 employment actions affecting the qualified indi- 19 vidual with a disability; or 20 ‘‘(B) to direct the daily work activities of 21 the qualified individual with a disability; or 22 ‘‘(2) the negligence of such employer led to the 23 creation or continuation of that hostile work environ- 24 ment or retaliatory hostile work environment.’’. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00085 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 86 •HR 2148 IH (3) REMEDIES.—Section 505 of the Rehabilita- 1 tion Act of 1973 (29 U.S.C. 794a) is amended by 2 adding at the end of subsection (a) the following: 3 ‘‘(3) Sections 501(h) and 504(e) shall apply to 4 hostile work environment claims and retaliatory hos- 5 tile work environment claims under this section.’’. 6 (e) AMENDMENT TO SECTION 1977 OF THE REVISED 7 STATUTES.—Section 1977 of the Revised Statutes (42 8 U.S.C. 1981) is amended by adding at the end the fol- 9 lowing: 10 ‘‘(d) Subject to section 206(j) of the BE HEARD in 11 the Workplace Act, a nongovernmental employer shall be 12 liable for the acts of any individual whose harassment of 13 an employee has created a hostile work environment or 14 a retaliatory hostile work environment, constituting an un- 15 lawful employment practice, if, at the time of the harass- 16 ment— 17 ‘‘(1) such individual was authorized by the em- 18 ployer— 19 ‘‘(A) to undertake or recommend tangible 20 employment actions affecting the employee; or 21 ‘‘(B) to direct the employee’s daily work 22 activities; or 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00086 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 87 •HR 2148 IH ‘‘(2) the negligence of the employer led to the 1 creation or continuation of that hostile work environ- 2 ment or retaliatory hostile work environment.’’. 3 (f) AMENDMENT TO THE GENETIC INFORMATION 4 NONDISCRIMINATION ACT OF 2008.— 5 (1) STANDARD FOR EMPLOYER LIABILITY FOR 6 HOSTILE WORK ENVIRONMENT.—Section 202 of the 7 Genetic Information Nondiscrimination Act of 2008 8 (42 U.S.C. 2000ff–1), as amended by sections 9 204(c)(5) and 205(b)(4), is further amended by add- 10 ing at the end the following: 11 ‘‘(f) Subject to section 206(j) of the BE HEARD in 12 the Workplace Act, an employer shall be liable for the acts 13 of any individual whose harassment of an employee has 14 created or continued a hostile work environment that con- 15 stitutes an unlawful employment practice under this sec- 16 tion if, at the time of the harassment— 17 ‘‘(1) such individual was authorized by the em- 18 ployer— 19 ‘‘(A) to undertake or recommend tangible 20 employment actions affecting the employee; or 21 ‘‘(B) to direct the employee’s daily work 22 activities; or 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 88 •HR 2148 IH ‘‘(2) the negligence of the employer led to the 1 creation or continuation of that hostile work environ- 2 ment.’’. 3 (2) STANDARD FOR EMPLOYER LIABILITY FOR 4 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec- 5 tion 207(f)(1) of the Genetic Information Non- 6 discrimination Act (42 U.S.C. 2000ff–6(f)(1)), as 7 amended by section 205(c)(2), is further amended 8 by striking ‘‘violations of this subsection.’’ and in- 9 serting ‘‘violations of this subsection. Subject to sec- 10 tion 206(j) of the BE HEARD in the Workplace 11 Act, an employer shall be liable for the acts of any 12 individual whose harassment of an employee has cre- 13 ated or continued a retaliatory hostile work environ- 14 ment that constitutes discrimination under this sub- 15 section if, at the time of the harassment— 16 ‘‘(A) such individual was authorized by the 17 employer— 18 ‘‘(i) to undertake or recommend tan- 19 gible employment actions affecting the em- 20 ployee; or 21 ‘‘(ii) to direct the employee’s daily 22 work activities; or 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00088 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 89 •HR 2148 IH ‘‘(B) the negligence of the employer led to 1 the creation or continuation of that retaliatory 2 hostile work environment.’’. 3 (g) AMENDMENT TO THE GOVERNMENT EMPLOYEE 4 RIGHTS ACT OF 1991.—Section 302 of the Government 5 Employee Rights Act of 1991 (42 U.S.C. 2000e–16b) is 6 amended by adding at the end the following: 7 ‘‘(c) Subject to section 206(j) of the BE HEARD in 8 the Workplace Act, an employer of an individual described 9 under section 304(a) shall be liable for the acts of any 10 individual whose harassment of a State employee de- 11 scribed in section 304 has created or continued a hostile 12 work environment or a retaliatory hostile work environ- 13 ment constituting discrimination under this section, if at 14 the time of the harassment— 15 ‘‘(1) such individual was authorized by such 16 employer— 17 ‘‘(A) to undertake or recommend tangible 18 employment actions affecting the employee; or 19 ‘‘(B) to direct the employee’s daily work 20 activities; or 21 ‘‘(2) the negligence of the employer led to the 22 creation or continuation of that hostile work environ- 23 ment or retaliatory hostile work environment.’’. 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00089 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 90 •HR 2148 IH (h) AMENDMENT TO TITLE 3, UNITED STATES 1 CODE.—Section 411 of title 3, United States Code, is 2 amended— 3 (1) by redesignating subsections (c) through (f) 4 as subsections (d) through (g), respectively; 5 (2) by inserting after subsection (b) the fol- 6 lowing: 7 ‘‘(c) LIABILITY OF EMPLOYING OFFICE.—Subject to 8 section 206(j) of the BE HEARD in the Workplace Act, 9 an employing office shall be liable for the acts of any indi- 10 vidual whose harassment of a covered employee has cre- 11 ated or continued a hostile work environment or a retalia- 12 tory hostile work environment constituting discrimination 13 under this section if, at the time of the harassment— 14 ‘‘(1) such individual was authorized by the em- 15 ploying office— 16 ‘‘(A) to undertake or recommend tangible 17 employment actions affecting the covered em- 18 ployee; or 19 ‘‘(B) to direct the covered employee’s daily 20 work activities; or 21 ‘‘(2) the negligence of the employing office led 22 to the creation or continuation of that hostile work 23 environment or retaliatory hostile work environ- 24 ment.’’; and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00090 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 91 •HR 2148 IH (3) in subsection (f), as redesignated by para- 1 graph (1), by striking ‘‘subsections (a) through (c)’’ 2 and inserting ‘‘subsections (a) through (d).’’. 3 (i) AMENDMENT TO THE CONGRESSIONAL ACCOUNT- 4 ABILITY ACT OF 1995.—Section 201 of the Congressional 5 Accountability Act of 1995 (2 U.S.C. 1311), as amended 6 by section 302(a) of the Congressional Accountability Act 7 of 1995 Reform Act, is further amended— 8 (1) by striking subsection (e); and 9 (2) by adding at the end the following: 10 ‘‘(e) OUTSIDE INDIVIDUALS.—Subject to section 11 206(j) of the BE HEARD in the Workplace Act, an em- 12 ploying office shall be liable for the acts of any individual 13 whose harassment of a covered employee has created or 14 continued a hostile work environment or a retaliatory hos- 15 tile work environment that constitutes discrimination 16 under this section if, at the time of the harassment— 17 ‘‘(1) such individual was authorized by the em- 18 ploying office— 19 ‘‘(A) to undertake or recommend tangible 20 employment actions affecting the covered em- 21 ployee; or 22 ‘‘(B) to direct the covered employee’s daily 23 work activities; or 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00091 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 92 •HR 2148 IH ‘‘(2) the negligence of the employing office led 1 to the creation or continuation of that hostile work 2 environment or retaliatory hostile work environ- 3 ment.’’. 4 (j) RULE OF CONSTRUCTION.—Nothing in this sec- 5 tion shall be construed to limit the availability of, or access 6 to, defenses available under the law. 7 (k) APPLICATION.—This section, and the amend- 8 ments made by this section, shall apply to all claims pend- 9 ing on or after the date of enactment of this Act. 10 SEC. 207. EXTENDING THE STATUTES OF LIMITATIONS. 11 (a) CIVIL RIGHTS ACT OF 1964; AMERICANS WITH 12 DISABILITIES ACT OF 1990; GENETIC INFORMATION 13 NONDISCRIMINATION ACT OF 2008.—Section 706 of the 14 Civil Rights Act of 1964 (42 U.S.C. 2000e–5) is amend- 15 ed— 16 (1) in subsection (e)— 17 (A) in paragraph (1)— 18 (i) by striking ‘‘one hundred and 19 eighty days after the alleged unlawful em- 20 ployment practice occurred’’ and inserting 21 ‘‘4 years after the alleged unlawful employ- 22 ment practice occurred.’’; and 23 (ii) by striking ‘‘three hundred days 24 after the alleged unlawful employment 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00092 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 93 •HR 2148 IH practice occurred’’ and inserting ‘‘4 years 1 and 120 days after the alleged unlawful 2 employment practice occurred.’’; and 3 (B) in paragraph (3)(B), by striking ‘‘two 4 years preceding the filing of the charge’’ and all 5 that follows and inserting ‘‘4 years preceding 6 the filing of the charge.’’; and 7 (2) in subsection (g)(1), by striking ‘‘two years 8 prior to the filing of a charge’’ and inserting ‘‘4 9 years preceding the filing of the charge’’. 10 (b) AGE DISCRIMINATION IN EMPLOYMENT ACT OF 11 1967.—Section 7(d) of the Age Discrimination in Employ- 12 ment Act of 1967 (29 U.S.C. 626(d)) is amended— 13 (1) in the second sentence, by redesignating 14 paragraphs (1) and (2) as subparagraphs (A) and 15 (B), respectively; 16 (2) by striking ‘‘(d)’’ and all that follows 17 through ‘‘No’’ and inserting ‘‘(d)(1) No’’; and 18 (3) in paragraph (1), as designated by para- 19 graph (2) of this subsection— 20 (A) by striking ‘‘Secretary. Such’’ and in- 21 serting ‘‘Secretary, and such’’; 22 (B) in subparagraph (A), by striking ‘‘180 23 days after the alleged unlawful practice oc- 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00093 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 94 •HR 2148 IH curred’’ and inserting ‘‘4 years after the alleged 1 unlawful practice occurred’’; and 2 (C) in subparagraph (B), by striking ‘‘300 3 days after the alleged unlawful practice oc- 4 curred’’ and inserting ‘‘4 years and 120 days 5 after the alleged unlawful practice occurred’’. 6 SEC. 208. EXTENDING THE TIME LIMITATIONS ON FEDERAL 7 EMPLOYEES FILING A COMPLAINT. 8 (a) IN GENERAL.—The Equal Employment Oppor- 9 tunity Commission (referred to in this section as ‘‘the 10 Commission’’) shall ensure that a covered Federal em- 11 ployee shall not be required to take any action necessary 12 to bring a complaint to the department, agency, unit, or 13 instrumentality involved prior to 4 years from the date of 14 the matter alleged to be discriminatory or, in the case of 15 personnel action, 4 years from the effective date of the 16 personnel action. 17 (b) COVERED EMPLOYEES AND COMPLAINTS.—In 18 this section, the term ‘‘covered Federal employee’’ 19 means— 20 (1) an employee or applicant to whom section 21 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 22 2000e–16(a)) applies, in the case of a complaint 23 brought under section 717 of that Act (42 U.S.C. 24 2000e–16); 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00094 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 95 •HR 2148 IH (2) an employee or applicant to whom section 1 15(a) of the Age Discrimination in Employment Act 2 of 1967 (29 U.S.C. 633a(a)) applies, in the case of 3 a complaint brought under section 15 of that Act 4 (29 U.S.C. 633a); 5 (3) an employee or applicant to whom section 6 501 of the Rehabilitation Act of 1973 (29 U.S.C. 7 791) applies, in the case of a complaint brought to 8 enforce that section under section 505 of that Act 9 (29 U.S.C. 794a); and 10 (4) an employee or applicant described in sec- 11 tion 201(2)(A)(v) of the Genetic Information Non- 12 discrimination Act of 2008 (42 U.S.C. 13 2000ff(2)(A)(v)), in the case of a complaint brought 14 to enforce title II of that Act (42 U.S.C. 2000ff et 15 seq.) under section 207(e) of that Act (42 U.S.C. 16 2000ff–6(e)). 17 TITLE III—BROADENING PRO- 18 TECTIONS AND ENSURING 19 TRANSPARENCY 20 SEC. 301. INDEPENDENT CONTRACTORS, INTERNS, FEL- 21 LOWS, VOLUNTEERS, AND TRAINEES. 22 (a) COVERED EMPLOYER OR ENTITY.—All protec- 23 tions afforded to an employee or individual under a provi- 24 sion that consists of title VII of the Civil Rights Act of 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00095 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 96 •HR 2148 IH 1964 (42 U.S.C. 2000e et seq.), the Government Em- 1 ployee Rights Act of 1991 (42 U.S.C. 2000e–16a et seq.), 2 the Congressional Accountability Act of 1995 (2 U.S.C. 3 1301 et seq.), subchapter II of chapter 5 of title 3, United 4 States Code, the Age Discrimination in Employment Act 5 of 1967 (29 U.S.C. 621 et seq.), title I and section 503 6 (for violations with respect to that title) of the Americans 7 with Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 8 12203), sections 501 and 505 of the Rehabilitation Act 9 of 1973 (29 U.S.C. 791, 794a), section 6(d) of the Fair 10 Labor Standards Act of 1938 (commonly known as the 11 ‘‘Equal Pay Act of 1963’’) (29 U.S.C. 206(d)), title II 12 of the Genetic Information Nondiscrimination Act of 2008 13 (42 U.S.C. 2000ff et seq.), and section 4311 of title 38, 14 United States Code, shall be afforded, in the same manner 15 and to the same extent, to— 16 (1) an individual who is engaged by an em- 17 ployer or entity covered by that provision (referred 18 to in this subsection as a ‘‘covered employer or enti- 19 ty’’) as an independent contractor (regardless of 20 business structure, including organization as a legal 21 or commercial entity) or as an intern, fellow, volun- 22 teer, or trainee, whether or not the individual re- 23 ceives compensation, academic credit, or other remu- 24 neration from the covered employer or entity; or 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 97 •HR 2148 IH (2) an individual who applies or seeks to be- 1 come such an independent contractor (regardless of 2 business structure, including organization as a legal 3 or commercial entity), intern, fellow, volunteer, or 4 trainee, for the covered employer or entity. 5 (b) COVERED ESTABLISHMENTS.— 6 (1) DEFINITION.—In this subsection, the term 7 ‘‘covered establishment’’ means an individual or enti- 8 ty that— 9 (A) is not acting as an employer or entity 10 covered by a provision specified in subsection 11 (a); and 12 (B) engages the services (including solic- 13 iting such services) of an independent con- 14 tractor (regardless of business structure, includ- 15 ing organization as a legal or commercial enti- 16 ty), intern, fellow, volunteer, or trainee by 17 means of an instrument of transportation or 18 communication in interstate commerce, or 19 through an arrangement that involves the use 20 of such an instrument to carry out or be con- 21 veyed to carry out those services. 22 (2) PROTECTIONS.—All protections afforded to 23 an employee or individual under a provision that 24 consists of title VII of the Civil Rights Act of 1964, 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00097 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 98 •HR 2148 IH the Age Discrimination in Employment Act of 1967, 1 title I and section 503 (for violations with respect to 2 that title) of the Americans with Disabilities Act of 3 1990, section 6(d) of the Fair Labor Standards Act 4 of 1938, title II of the Genetic Information Non- 5 discrimination Act of 2008, and section 4311 of title 6 38, United States Code, shall be afforded, in the 7 same manner and to the same extent that the provi- 8 sion covers an individual described in section 701(f) 9 of the Civil Rights Act of 1964 (42 U.S.C. 10 2000e(f)), to— 11 (A) an individual who is engaged by a cov- 12 ered establishment as an independent con- 13 tractor (regardless of business structure, includ- 14 ing organization as a legal or commercial enti- 15 ty) or as an intern, fellow, volunteer, or trainee, 16 whether or not the individual receives com- 17 pensation, academic credit, or other remunera- 18 tion from the covered establishment; or 19 (B) an individual who applies or seeks to 20 become such an independent contractor (regard- 21 less of business structure, including organiza- 22 tion as a legal or commercial entity), intern, fel- 23 low, volunteer, or trainee, for the covered estab- 24 lishment. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00098 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 99 •HR 2148 IH (c) DOMESTIC SERVICE.—For purposes of the provi- 1 sions listed in subsection (a) and the provisions of this 2 Act, an individual or entity who engages the services (by 3 means of an instrument of transportation or communica- 4 tion in interstate commerce, or through an arrangement 5 that involves the use of such an instrument to carry out 6 or be conveyed to carry out those services) of a person 7 in domestic service in a household, as an employee, or as 8 an independent contractor, intern, fellow, volunteer, or 9 trainee, referred to in subsection (a) or (b) shall be consid- 10 ered to be engaged in interstate commerce. 11 (d) RULE OF CONSTRUCTION.—Nothing in this sec- 12 tion shall be construed to limit the individuals protected 13 under any provision described in subsection (a). 14 (e) INTERSTATE COMMERCE.—In this section, the 15 term ‘‘interstate commerce’’ means Commerce (as defined 16 in section 3 of the Fair Labor Standards Act of 1938 (29 17 U.S.C. 203)) among the several States. 18 SEC. 302. NONDISCLOSURE AGREEMENTS. 19 (a) DEFINITIONS.—In this section: 20 (1) COMMISSION.—The term ‘‘Commission’’ 21 means the Equal Employment Opportunity Commis- 22 sion. 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00099 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 100 •HR 2148 IH (2) COVERED ESTABLISHMENT.—The term 1 ‘‘covered establishment’’ has the meaning given the 2 term in section 301. 3 (3) COVERED INDIVIDUAL.—The term ‘‘covered 4 individual’’ means— 5 (A) in the case of an individual required to 6 be afforded protections under section 301(a)— 7 (i) an individual required to be af- 8 forded those protections by an employer 9 described in paragraph (5)(A); 10 (ii) an individual required to be af- 11 forded those protections by an employer 12 described in paragraph (5)(B); 13 (iii) an individual required to be af- 14 forded those protections by an employer 15 described in paragraph (5)(C); 16 (iv) an individual required to be af- 17 forded those protections by an employer 18 described in paragraph (5)(D); or 19 (v) an individual required to be af- 20 forded those protections by an employer 21 described in paragraph (5)(E); and 22 (B) in the case of an individual required to 23 be afforded protections under section 301(b) by 24 a covered establishment, that individual. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00100 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 101 •HR 2148 IH (4) EMPLOYEE.—The term ‘‘employee’’ 1 means— 2 (A) an employee (including an applicant), 3 as defined in section 701(f) of the Civil Rights 4 Act of 1964 (42 U.S.C. 2000e(f)); 5 (B) a State employee (including an appli- 6 cant) described in section 304(a) of the Govern- 7 ment Employee Rights Act of 1991 (42 U.S.C. 8 2000e–16c(a)); 9 (C) a covered employee (including an appli- 10 cant), as defined in section 101 of the Congres- 11 sional Accountability Act of 1995 (2 U.S.C. 12 1301), including an individual treated as a cov- 13 ered employee under that section; 14 (D) a covered employee (including an ap- 15 plicant), as defined in section 411(c) of title 3, 16 United States Code; or 17 (E) an employee or applicant to which sec- 18 tion 717(a) of the Civil Rights Act of 1964 (42 19 U.S.C. 2000e–16(a)) applies. 20 (5) EMPLOYER.—The term ‘‘employer’’ 21 means— 22 (A) an employer (as defined in section 23 701(b) of the Civil Rights Act of 1964 (42 24 U.S.C. 2000e(b))); 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00101 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 102 •HR 2148 IH (B) an entity employing a State employee 1 described in section 304(a) of the Government 2 Employee Rights Act of 1991; 3 (C) an employing office, as defined in sec- 4 tion 101(a) of the Congressional Accountability 5 Act of 1995 (2 U.S.C. 1301(a)); 6 (D) an employing office, as defined in sec- 7 tion 411(c) of title 3, United States Code; or 8 (E) an entity to which section 717(a) of 9 the Civil Rights Act of 1964 applies. 10 (6) NONDISCLOSURE CLAUSE.—The term ‘‘non- 11 disclosure clause’’ means a provision in a contract or 12 agreement establishing that each party to the con- 13 tract or agreement agrees not to disclose informa- 14 tion covered by the terms and conditions of the con- 15 tract or agreement. 16 (7) NONDISPARAGEMENT CLAUSE.—The term 17 ‘‘nondisparagement clause’’ means a provision in a 18 contract or agreement requiring one or more parties 19 to the contract or agreement not to make negative 20 statements about another such party. 21 (8) WORKER.—The term ‘‘worker’’ means an 22 employee or a covered individual. 23 (b) UNLAWFUL PRACTICES.— 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00102 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 103 •HR 2148 IH (1) NONDISPARAGEMENT AND NONDISCLOSURE 1 CLAUSES.—Subject to paragraph (3), it shall be an 2 unlawful practice for an employer to enter into a 3 contract or agreement with a worker, or for a cov- 4 ered establishment to enter into a contract or agree- 5 ment with a covered individual, as a condition of em- 6 ployment or contracting, promotion, compensation, 7 benefits, or change in employment status or contrac- 8 tual relationship, or as a term, condition, or privilege 9 of employment or contracting, if that contract or 10 agreement contains a nondisparagement clause or 11 nondisclosure clause that covers prohibited discrimi- 12 nation or harassment in employment or contracting, 13 or retaliation for reporting, resisting, opposing, or 14 assisting in the investigation of such discrimination 15 or harassment. 16 (2) PROHIBITION ON ENFORCEMENT.—Subject 17 to paragraph (3) but notwithstanding any other pro- 18 vision of law, it shall be an unlawful practice for an 19 employer or covered establishment to enforce or at- 20 tempt to enforce a nondisparagement clause or non- 21 disclosure clause that covers prohibited discrimina- 22 tion or harassment in employment or contracting, or 23 retaliation for reporting, resisting, opposing, or as- 24 sisting in the investigation of such discrimination or 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00103 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 104 •HR 2148 IH harassment. An employer or covered establishment 1 that enforces or attempts to enforce such a non- 2 disparagement clause or such a nondisclosure clause 3 against a worker shall be liable for the reasonable 4 attorney’s fees and costs of the worker. 5 (3) SETTLEMENT OR SEPARATION AGREE- 6 MENTS.— 7 (A) IN GENERAL.—The provisions of para- 8 graphs (1) and (2) do not apply to a nondispar- 9 agement clause or nondisclosure clause con- 10 tained in a settlement agreement or separation 11 agreement that resolves legal claims or disputes 12 if— 13 (i) such legal claims accrued or such 14 disputes arose before the settlement agree- 15 ment or separation agreement was exe- 16 cuted; 17 (ii) the clause involved is mutually 18 agreed upon by and mutually benefits 19 both— 20 (I) the employer or covered es- 21 tablishment, as the case may be; and 22 (II) the worker; 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00104 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 105 •HR 2148 IH (iii) the worker’s agreement to such 1 clause is knowing and voluntary, as de- 2 scribed in subparagraph (C); and 3 (iv) the settlement agreement or sepa- 4 ration agreement expressly states that the 5 agreement involved does not prohibit, pre- 6 vent, or otherwise restrict a worker from— 7 (I) filing a complaint with the 8 Commission, any other Federal, State, 9 or local agency with the authority to 10 enforce laws (including regulations) 11 that prohibit discrimination or harass- 12 ment in employment or contracting, 13 as the case may be, or law enforce- 14 ment; 15 (II) testifying at, assisting, or 16 participating in an investigation or 17 proceeding conducted by the Commis- 18 sion, any other Federal, State, or local 19 agency with the authority to enforce 20 laws (including regulations) that pro- 21 hibit discrimination or harassment in 22 employment or contracting, as the 23 case may be, or law enforcement; or 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00105 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 106 •HR 2148 IH (III) testifying in a hearing or 1 trial or complying with a request for 2 discovery in relation to civil litigation. 3 (B) PROHIBITION ON SOLE BENEFIT.—For 4 purposes of this paragraph, it shall be an un- 5 lawful practice for an employer or covered es- 6 tablishment to unilaterally include a nondispar- 7 agement clause or nondisclosure clause that 8 solely benefits the employer or covered estab- 9 lishment in a separation or settlement agree- 10 ment. 11 (C) KNOWING AND VOLUNTARY AGREE- 12 MENT.—For purposes of this paragraph, agree- 13 ment to a nondisparagement clause or non- 14 disclosure clause may not be considered know- 15 ing and voluntary unless at a minimum— 16 (i) the nondisparagement clause or 17 nondisclosure clause is written in a manner 18 designed to ensure that the worker under- 19 stands the content of the clause involved; 20 (ii) the nondisparagement clause or 21 nondisclosure clause is included only in ex- 22 change for consideration of value provided 23 to the worker, in addition to anything of 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00106 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 107 •HR 2148 IH value to which the worker is already enti- 1 tled; 2 (iii) the nondisparagement clause or 3 nondisclosure clause does not apply to any 4 rights or claims that arise after the date 5 the settlement or separation agreement is 6 executed; 7 (iv) the worker is advised in writing to 8 consult with an attorney prior to agreeing 9 to such an agreement that includes a non- 10 disparagement clause or nondisclosure 11 clause; 12 (v) the worker is given a period of at 13 least 21 days to consider any proposal for 14 a settlement or separation agreement that 15 includes a nondisparagement clause or 16 nondisclosure clause; and 17 (vi) the settlement or separation 18 agreement provides that for a period of at 19 least 7 days following the execution of such 20 agreement the worker may revoke the 21 agreement, and the agreement shall not be- 22 come effective or enforceable until the rev- 23 ocation period has expired. 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00107 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 108 •HR 2148 IH (D) BURDEN OF PROOF.—In any dispute 1 that may arise over whether any of the require- 2 ments of subparagraph (A) have been met, the 3 party asserting the validity of an agreement 4 shall have the burden of proving that the re- 5 quirements of subparagraph (A) have been met. 6 (E) PARTICIPATION IN INVESTIGATIONS OR 7 PROCEEDINGS.—No nondisparagement clause 8 or nondisclosure clause may affect the ability of 9 a worker to testify at, assist, or participate in 10 an investigation or proceeding conducted by the 11 Commission, any Federal, State, or local agency 12 with the authority to enforce laws (including 13 regulations) that prohibit discrimination in em- 14 ployment or contracting, as the case may be, or 15 a law enforcement agency. 16 (F) PROHIBITION ON DAMAGES.—Under 17 no circumstances shall a worker be required to 18 pay damages for breach of a nondisparagement 19 clause or nondisclosure clause permitted by this 20 paragraph in excess of an amount equal to the 21 consideration of value provided to the worker in 22 exchange for the workers’ agreement to the 23 nondisparagement clause or nondisclosure 24 clause. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00108 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 109 •HR 2148 IH (c) ENFORCEMENT AGAINST EMPLOYERS.— 1 (1) ENFORCEMENT POWERS.—With respect to 2 the administration and enforcement of this section 3 in the case of a claim alleged by a worker against 4 an employer for a violation of this section— 5 (A) the Commission shall have the same 6 powers as the Commission has to administer 7 and enforce— 8 (i) title VII of the Civil Rights Act of 9 1964 (42 U.S.C. 2000e et seq.); or 10 (ii) sections 302 and 304 of the Gov- 11 ernment Employee Rights Act of 1991 (42 12 U.S.C. 2000e–16b and 2000e–16c), 13 in the case of a claim alleged by an employee 14 of the employer for a violation of such title, or 15 of section 302(a)(1) of the Government Em- 16 ployee Rights Act of 1991 (42 U.S.C. 2000e– 17 16b(a)(1)), respectively; 18 (B) the Librarian of Congress shall have 19 the same powers as the Librarian of Congress 20 has to administer and enforce title VII of the 21 Civil Rights Act of 1964 (42 U.S.C. 2000e et 22 seq.) in the case of a claim alleged by an em- 23 ployee of the employer for a violation of such 24 title; 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00109 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 110 •HR 2148 IH (C) the Board (as defined in section 1 101(a) of the Congressional Accountability Act 2 of 1995 (2 U.S.C. 1301(a))) shall have the 3 same powers as the Board has to administer 4 and enforce the Congressional Accountability 5 Act of 1995 (2 U.S.C. 1301 et seq.) in the case 6 of a claim alleged by an employee of the em- 7 ployer for a violation of section 201(a)(1) of 8 such Act (2 U.S.C. 1311(a)(1)); 9 (D) the Attorney General shall have the 10 same powers as the Attorney General has to ad- 11 minister and enforce— 12 (i) title VII of the Civil Rights Act of 13 1964 (42 U.S.C. 2000e et seq.); or 14 (ii) sections 302 and 304 of the Gov- 15 ernment Employee Rights Act of 1991 (42 16 U.S.C. 2000e–16b and 2000e–16c), 17 in the case of a claim alleged by an employee 18 of the employer for a violation of such title, or 19 of section 302(a)(1) of the Government Em- 20 ployee Rights Act of 1991 (42 U.S.C. 2000e– 21 16b(a)(1)), respectively; 22 (E) the President, the Commission, and 23 the Merit Systems Protection Board shall have 24 the same powers as the President, the Commis- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00110 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 111 •HR 2148 IH sion, and the Board, respectively, have to ad- 1 minister and enforce chapter 5 of title 3, 2 United States Code, in the case of a claim al- 3 leged by an employee of the employer for a vio- 4 lation of section 411 of such title; and 5 (F) a court of the United States shall have 6 the same jurisdiction and powers as the court 7 has to enforce— 8 (i) title VII of the Civil Rights Act of 9 1964 (42 U.S.C. 2000e et seq.) in the case 10 of a claim alleged by an employee of the 11 employer for a violation of such title; 12 (ii) sections 302 and 304 of the Gov- 13 ernment Employee Rights Act of 1991 (42 14 U.S.C. 2000e–16b and 2000e–16c) in the 15 case of a claim alleged by an employee of 16 the employer for a violation of section 17 302(a)(1) of such Act (42 U.S.C. 2000e– 18 16b(a)(1)); 19 (iii) the Congressional Accountability 20 Act of 1995 (2 U.S.C. 1301 et seq.) in the 21 case of a claim alleged by an employee of 22 the employer for a violation of section 23 201(a)(1) of such Act (2 U.S.C. 24 1311(a)(1)); and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00111 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 112 •HR 2148 IH (iv) chapter 5 of title 3, United States 1 Code, in the case of a claim alleged by an 2 employee of the employer for a violation of 3 section 411 of such title. 4 (2) PROCEDURES AND REMEDIES.—The proce- 5 dures and remedies applicable to a claim alleged by 6 a worker against the employer for a violation of this 7 section are— 8 (A) the procedures and remedies applicable 9 for a violation of title VII of the Civil Rights 10 Act of 1964 (42 U.S.C. 2000e et seq.) in the 11 case of a claim alleged by an employee of the 12 employer for a violation of such title; 13 (B) the procedures and remedies applicable 14 for a violation of section 302(a)(1) of the Gov- 15 ernment Employee Rights Act of 1991 (42 16 U.S.C. 2000e–16b(a)(1)) in the case of a claim 17 alleged by an employee of the employer for a 18 violation of such section; 19 (C) the procedures and remedies applicable 20 for a violation of section 201(a)(1) of the Con- 21 gressional Accountability Act of 1995 (2 U.S.C. 22 1311(a)(1)) in the case of a claim alleged by an 23 employee of the employer for a violation of such 24 section; and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00112 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 113 •HR 2148 IH (D) the procedures and remedies applicable 1 for a violation of section 411 of title 3, United 2 States Code, in the case of a claim alleged by 3 an employee of the employer for a violation of 4 such section. 5 (3) OTHER APPLICABLE PROVISIONS.—With re- 6 spect to a claim alleged by an employee described in 7 subsection (a)(4)(C) or a covered individual de- 8 scribed in subsection (a)(3)(A)(iii) for a violation of 9 this section, title III of the Congressional Account- 10 ability Act of 1995 (2 U.S.C. 1381 et seq.) shall 11 apply in the same manner as such title applies with 12 respect to a claim alleged by such an employee for 13 a violation of section 201(a)(1) of such Act (2 14 U.S.C. 1311(a)(1)). 15 (d) ENFORCEMENT AGAINST COVERED ESTABLISH- 16 MENTS.— 17 (1) ENFORCEMENT POWERS.—With respect to 18 the administration and enforcement of this section 19 in the case of a claim alleged by a covered individual 20 against a covered establishment for a violation of 21 this section— 22 (A) the Commission shall have the same 23 powers as the Commission has to administer 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00113 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 114 •HR 2148 IH and enforce title VII of the Civil Rights Act of 1 1964 (42 U.S.C. 2000e et seq.); 2 (B) the Attorney General shall have the 3 same powers as the Attorney General has to ad- 4 minister and enforce title VII of the Civil 5 Rights Act of 1964; and 6 (C) a court of the United States shall have 7 the same jurisdiction and powers as the court 8 has to enforce title VII of the Civil Rights Act 9 of 1964, 10 in the case of a claim alleged by an employee de- 11 scribed in subsection (a)(4)(A) for a violation of 12 such title. 13 (2) PROCEDURES AND REMEDIES.—The proce- 14 dures and remedies applicable to a claim alleged by 15 a covered individual against the covered establish- 16 ment for a violation of this section are the proce- 17 dures and remedies applicable for a violation of title 18 VII of the Civil Rights Act of 1964 (42 U.S.C. 19 2000e et seq.) in the case of a claim alleged by an 20 employee described in subsection (a)(4)(A) for a vio- 21 lation of such title. 22 (e) RIGHT TO REPORT RESERVED.—Notwith- 23 standing signing (before, on, or after the effective date of 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00114 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 115 •HR 2148 IH this Act) any nondisparagement clause or nondisclosure 1 clause, a worker retains— 2 (1) any right that person would otherwise have 3 had to report a concern about harassment, including 4 sexual harassment, in employment or contracting or 5 another violation of the law to the Commission, an- 6 other Federal agency (including an office of the leg- 7 islative or judicial branch), a State or local fair em- 8 ployment practices agency or any other State or 9 local agency, or a law enforcement agency; and 10 (2) any right that person would otherwise have 11 had to bring an action in a court of the United 12 States. 13 (f) REGULATIONS.— 14 (1) IN GENERAL.—Except as provided in para- 15 graphs (2), (3), and (4), the Commission shall have 16 authority to issue regulations to carry out this sec- 17 tion. 18 (2) LIBRARIAN OF CONGRESS.—The Librarian 19 of Congress shall have authority to issue regulations 20 to carry out this section with respect to workers of 21 the Library of Congress. 22 (3) BOARD.—The Board referred to in sub- 23 section (c)(1)(C) shall have authority to issue regu- 24 lations to carry out this section, in accordance with 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00115 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 116 •HR 2148 IH section 304 of the Congressional Accountability Act 1 of 1995 (2 U.S.C. 1384), with respect to employees 2 described in subsection (a)(4)(C) and covered indi- 3 viduals described in subsection (a)(3)(A)(iii). 4 (4) PRESIDENT.—The President shall have au- 5 thority to issue regulations to carry out this section 6 with respect to employees described in subsection 7 (a)(4)(D) and covered individuals described in sub- 8 section (a)(3)(A)(iv). 9 (g) STATE AND FEDERAL IMMUNITY.— 10 (1) ABROGATION OF STATE IMMUNITY.—A 11 State shall not be immune under the 11th Amend- 12 ment to the Constitution from a suit brought in a 13 Federal court of competent jurisdiction for a viola- 14 tion of this section. 15 (2) WAIVER OF STATE IMMUNITY.— 16 (A) IN GENERAL.— 17 (i) WAIVER.—A State’s receipt or use 18 of Federal financial assistance for any pro- 19 gram or activity of a State shall constitute 20 a waiver of sovereign immunity, under the 21 11th Amendment to the Constitution or 22 otherwise, to a suit brought by a covered 23 individual in that program or activity 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00116 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 117 •HR 2148 IH under this section for a remedy authorized 1 under paragraph (4). 2 (ii) DEFINITION.—In this subpara- 3 graph, the term ‘‘program or activity’’ has 4 the meaning given the term in section 606 5 of the Civil Rights Act of 1964 (42 U.S.C. 6 2000d–4a). 7 (B) EFFECTIVE DATE.—With respect to a 8 particular program or activity, subparagraph 9 (A) applies to conduct occurring on or after the 10 day, after the date of enactment of this Act, on 11 which a State first receives or uses Federal fi- 12 nancial assistance for that program or activity. 13 (3) REMEDIES AGAINST STATE OFFICIALS.—An 14 official of a State may be sued in the official capac- 15 ity of the official by a covered individual who has 16 complied with the applicable procedures of sub- 17 section (c), for equitable relief that is authorized 18 under this section. In such a suit the court may 19 award to the prevailing party those costs authorized 20 by section 722 of the Revised Statutes (42 U.S.C. 21 1988). 22 (4) REMEDIES AGAINST THE UNITED STATES 23 AND THE STATES.—Notwithstanding any other pro- 24 vision of this Act, in an action or administrative pro- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00117 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 118 •HR 2148 IH ceeding against the United States or a State for a 1 violation of this section, remedies (including rem- 2 edies at law and in equity, and interest) are avail- 3 able for the violation to the same extent as the rem- 4 edies are available for a violation of title VII of the 5 Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 6 by an employer described in subsection (a)(5)(A), 7 except that— 8 (A) punitive damages are not available; 9 and 10 (B) compensatory damages are available to 11 the extent specified in section 1977A(b) of the 12 Revised Statutes (42 U.S.C. 1981a(b)). 13 SEC. 303. PROHIBITION ON MANDATORY ARBITRATION AND 14 PROTECTION OF CONCERTED LEGAL ACTION. 15 (a) PROTECTION OF CONCERTED ACTIVITY.— 16 (1) AGREEMENTS.—Section 8(a) of the Na- 17 tional Labor Relations Act (29 U.S.C. 158(a)) is 18 amended— 19 (A) in paragraph (5), by striking the pe- 20 riod at the end and inserting ‘‘; and’’; and 21 (B) by adding at the end the following: 22 ‘‘(6)(A) to enter into or attempt to enforce any 23 agreement, express or implied, whereby prior to a 24 dispute to which the agreement applies, a worker 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00118 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 119 •HR 2148 IH (for purposes of this paragraph, as defined in sec- 1 tion 401 of title 9, United States Code) undertakes 2 or promises not to pursue, bring, join, litigate, or 3 support any kind of joint, class, or collective claim 4 arising from or relating to the employment of, or 5 provision of services by, such worker in any forum 6 that, but for such agreement, is of competent juris- 7 diction; 8 ‘‘(B) to coerce such worker into undertaking or 9 promising not to pursue, bring, join, litigate, or sup- 10 port any kind of joint, class, or collective claim aris- 11 ing from or relating to the employment of, or provi- 12 sion of services by, such worker; or 13 ‘‘(C) to retaliate or threaten to retaliate against 14 a worker for refusing to undertake or promise not 15 to pursue, bring, join, litigate, or support any kind 16 of joint, class, or collective claim arising from or re- 17 lating to the employment of, or provision or services 18 by, such worker: 19 Provided, That any agreement that violates this 20 paragraph or results from a violation of this para- 21 graph shall be to such extent unenforceable and 22 void: Provided further, That this paragraph shall not 23 apply to any agreement embodied in or expressly 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00119 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 120 •HR 2148 IH permitted by a contract between an employer and a 1 labor organization.’’. 2 (2) CONFORMING AMENDMENT.—Section 10(b) 3 of the National Labor Relations Act (29 U.S.C. 4 160(b)) is amended by striking ‘‘discharge’’ and in- 5 serting ‘‘discharge, or unless the person aggrieved 6 thereby is a worker alleging a violation of section 7 8(a)(6) whose charge involves a postdispute arbitra- 8 tion agreement that meets the requirements under 9 section 402(a)(2) of title 9, United States Code, in 10 which event the six-month period shall be computed 11 from the day the waiting period described in sub- 12 paragraph (C) of such section ends’’. 13 (b) ARBITRATION OF WORK DISPUTES.— 14 (1) IN GENERAL.—Title 9 of the United States 15 Code is amended by adding at the end the following: 16 ‘‘CHAPTER 4—ARBITRATION OF WORK 17 DISPUTES 18 ‘‘Sec. ‘‘401. Definitions. ‘‘402. Validity and enforceability. ‘‘§ 401. Definitions 19 ‘‘In this chapter— 20 ‘‘(1) the terms ‘commerce’, ‘employee’, and ‘em- 21 ployer’ have the meanings given the terms in section 22 3 of the Fair Labor Standards Act of 1938 (29 23 U.S.C. 203); 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00120 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 121 •HR 2148 IH ‘‘(2) the term ‘covered entity’ means— 1 ‘‘(A) an employer; or 2 ‘‘(B) an individual or entity that is not 3 acting as an employer and engages the services 4 of a worker; 5 ‘‘(3) the term ‘predispute arbitration agree- 6 ment’ means any agreement to arbitrate a dispute 7 that had not yet arisen at the time of the making 8 of the agreement; 9 ‘‘(4) the term ‘postdispute arbitration agree- 10 ment’ means any agreement to arbitrate a dispute 11 that arose before the time of the making of the 12 agreement; 13 ‘‘(5) the term ‘worker’ means— 14 ‘‘(A) an employee; or 15 ‘‘(B) an individual who is engaged by a 16 covered entity to perform services or work as an 17 independent contractor (regardless of the label 18 or classification assigned or used by the covered 19 entity); and 20 ‘‘(6) the term ‘work dispute’— 21 ‘‘(A) means a dispute between one or more 22 workers (or their authorized representatives) 23 and a covered entity arising out of or related to 24 the work relationship or prospective work rela- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00121 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 122 •HR 2148 IH tionship between the workers and the covered 1 entity; and 2 ‘‘(B) includes, but is not limited to— 3 ‘‘(i) a dispute regarding the terms of, 4 payment for, advertising of, recruitment of, 5 referring of, arranging for, or discipline or 6 discharge in connection with such work; 7 ‘‘(ii) a dispute arising under any law 8 referred to or described in section 62(e) of 9 the Internal Revenue Code of 1986, includ- 10 ing any part of such a law not explicitly 11 referenced in such section that relates to 12 protecting individuals on a basis that is 13 protected under a law referred to or de- 14 scribed in such section; and 15 ‘‘(iii) a dispute in which an individual 16 or individuals seek certification— 17 ‘‘(I) as a class under rule 23 of 18 the Federal Rules of Civil Procedure; 19 ‘‘(II) as a collective action under 20 section 16(b) of the Fair Labor 21 Standards Act of 1938 (29 U.S.C. 22 216(b)); or 23 ‘‘(III) under a comparable rule or 24 provision of State law. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00122 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 123 •HR 2148 IH ‘‘§ 402. Validity and enforceability 1 ‘‘(a) IN GENERAL.—Notwithstanding any other chap- 2 ter of this title— 3 ‘‘(1) no predispute arbitration agreement shall 4 be valid or enforceable if it requires arbitration of a 5 work dispute; 6 ‘‘(2) no postdispute arbitration agreement that 7 requires arbitration of a work dispute shall be valid 8 or enforceable unless— 9 ‘‘(A) the agreement was not required by 10 the covered entity, obtained by coercion or 11 threat of adverse action, or made a condition of 12 employment, work, or any employment-related 13 or work-related privilege or benefit; 14 ‘‘(B) each worker entering into the agree- 15 ment was informed in writing using sufficiently 16 plain language likely to be understood by the 17 average worker of— 18 ‘‘(i) the right of the worker under 19 paragraph (3) to refuse to enter the agree- 20 ment without retaliation; and 21 ‘‘(ii) the protections under section 22 8(a)(6) of the National Labor Relations 23 Act (29 U.S.C. 158(a)(6)); 24 ‘‘(C) each worker entering into the agree- 25 ment entered the agreement after a waiting pe- 26 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00123 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 124 •HR 2148 IH riod of not fewer than 45 days, beginning on 1 the date on which the employee was provided 2 both the final text of the agreement and the 3 disclosures required under subparagraph (B); 4 and 5 ‘‘(D) each worker entering into the agree- 6 ment affirmatively consented to the agreement 7 in writing; and 8 ‘‘(3) no covered entity may retaliate or threaten 9 to retaliate against a worker for refusing to enter 10 into an agreement that provides for arbitration of a 11 work dispute. 12 ‘‘(b) STATUTE OF LIMITATIONS.—During the waiting 13 period described in subsection (a)(2)(C), the statute of 14 limitations for any claims that arise from or form the basis 15 for the applicable work dispute shall be tolled. 16 ‘‘(c) CIVIL ACTION.—Any person who is injured by 17 reason of a violation of subsection (a)(3) may bring a civil 18 action in the appropriate district court of the United 19 States against the covered entity within 2 years of the vio- 20 lation, or within 3 years if such violation is willful. Relief 21 granted in such an action shall include a reasonable attor- 22 ney’s fee, other reasonable costs associated with maintain- 23 ing the action, and any appropriate relief authorized by 24 section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00124 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 125 •HR 2148 IH 2000e–5(g)) or by section 1977A(b) of the Revised Stat- 1 utes (42 U.S.C. 1981a(b)). 2 ‘‘(d) APPLICABILITY.— 3 ‘‘(1) IN GENERAL.—This chapter applies to cov- 4 ered entities and workers engaged in activity affect- 5 ing commerce to the fullest extent permitted by the 6 Constitution of the United States, including the 7 work of persons engaged in domestic service in 8 households, as described in section 2(a) of the Fair 9 Labor Standards Act of 1938 (29 U.S.C. 202(a)). 10 An issue as to whether this chapter applies to an ar- 11 bitration agreement shall be determined under Fed- 12 eral law. The applicability of this chapter to an 13 agreement to arbitrate and the validity and enforce- 14 ability of an agreement to which this chapter applies 15 shall be determined by a court, rather than an arbi- 16 trator, regardless of whether any contractual provi- 17 sion purports to delegate such determinations to the 18 arbitrator and irrespective of whether the party re- 19 sisting arbitration challenges the arbitration agree- 20 ment specifically or in conjunction with other terms 21 of the contract containing such agreement. 22 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 23 Nothing in this chapter shall apply to any arbitra- 24 tion provision in a contract between a covered entity 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00125 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 126 •HR 2148 IH and a labor organization, except that no such arbi- 1 tration provision shall have the effect of waiving the 2 right of a worker to seek judicial enforcement of a 3 right arising under a provision of the Constitution of 4 the United States, the constitution of a State, or a 5 Federal or State statute, or public policy arising 6 therefrom.’’. 7 (2) TECHNICAL AND CONFORMING AMEND- 8 MENTS.— 9 (A) IN GENERAL.—Title 9 of the United 10 States Code is amended— 11 (i) in section 1, by striking ‘‘of sea- 12 men,’’ and all that follows through ‘‘inter- 13 state commerce’’; 14 (ii) in section 2, by inserting ‘‘or as 15 otherwise provided in chapter 4’’ before the 16 period at the end; 17 (iii) in section 208— 18 (I) in the section heading, by 19 striking ‘‘Chapter 1; residual 20 application’’ and inserting ‘‘Ap- 21 plication’’; and 22 (II) by adding at the end the fol- 23 lowing: ‘‘This chapter applies to the 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00126 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 127 •HR 2148 IH extent that this chapter is not in con- 1 flict with chapter 4.’’; and 2 (iv) in section 307— 3 (I) in the section heading, by 4 striking ‘‘Chapter 1; residual 5 application’’ and inserting ‘‘Ap- 6 plication’’; and 7 (II) by adding at the end the fol- 8 lowing: ‘‘This chapter applies to the 9 extent that this chapter is not in con- 10 flict with chapter 4.’’. 11 (B) TABLE OF SECTIONS.— 12 (i) CHAPTER 2.—The table of sections 13 for chapter 2 of title 9, United States 14 Code, is amended by striking the item re- 15 lating to section 208 and inserting the fol- 16 lowing: 17 ‘‘208. Application.’’. (ii) CHAPTER 3.—The table of sec- 18 tions for chapter 3 of title 9, United States 19 Code, is amended by striking the item re- 20 lating to section 307 and inserting the fol- 21 lowing: 22 ‘‘307. Application.’’. VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00127 Fmt 6652 Sfmt 6211 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 128 •HR 2148 IH (C) TABLE OF CHAPTERS.—The table of 1 chapters for title 9, United States Code, is 2 amended by adding at the end the following: 3 ‘‘4. Arbitration of work disputes .............................................................. 401.’’. (c) EFFECTIVE DATE.—This section, and the amend- 4 ments made by this section, shall take effect on the date 5 of enactment of this Act and shall apply with respect to 6 any dispute or claim that arises or accrues on or after 7 such date, including any dispute or claim to which an 8 agreement predating such date applies. 9 SEC. 304. FEDERAL CONTRACTOR COMPLIANCE WITH CIVIL 10 RIGHTS LAWS. 11 (a) DEFINITIONS.—In this section: 12 (1) COVERED CONTRACT.—The term ‘‘covered 13 contract’’ means a Federal contract for the procure- 14 ment of property or services, including construction, 15 valued in excess of $500,000. 16 (2) COVERED SUBCONTRACT.—The term ‘‘cov- 17 ered subcontract’’— 18 (A) means a subcontract for property or 19 services under a Federal contract that is valued 20 in excess of $500,000; and 21 (B) does not include a subcontract for the 22 procurement of commercially available off-the- 23 shelf items. 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00128 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 129 •HR 2148 IH (3) EXECUTIVE AGENCY.—The term ‘‘executive 1 agency’’ has the meaning given the term in section 2 133 of title 41, United States Code. 3 (b) REQUIRED PRE-CONTRACT AWARD ACTIONS.— 4 (1) DISCLOSURES.—The head of an executive 5 agency shall ensure that the solicitation for a cov- 6 ered contract requires the offeror— 7 (A) to represent, to the best of the 8 offeror’s knowledge and belief, whether there 9 has been any administrative merits determina- 10 tion, arbitral award or decision, or civil judg- 11 ment, as defined in guidance issued by the Sec- 12 retary of Labor, rendered against the offeror in 13 the preceding 3 years for violations of— 14 (i) the Fair Labor Standards Act of 15 1938 (29 U.S.C. 201 et seq.); 16 (ii) the Occupational Safety and 17 Health Act of 1970 (29 U.S.C. 651 et 18 seq.); 19 (iii) the Migrant and Seasonal Agri- 20 cultural Worker Protection Act (29 U.S.C. 21 1801 et seq.); 22 (iv) the National Labor Relations Act 23 (29 U.S.C. 151 et seq.); 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00129 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 130 •HR 2148 IH (v) subchapter IV of chapter 31 of 1 title 40, United States Code (commonly 2 known as the ‘‘Davis-Bacon Act’’); 3 (vi) chapter 67 of title 41, United 4 States Code (commonly known as the 5 ‘‘Service Contract Act’’); 6 (vii) Executive Order 11246 (42 7 U.S.C. 2000e note; relating to equal em- 8 ployment opportunity); 9 (viii) section 503 of the Rehabilitation 10 Act of 1973 (29 U.S.C. 793); 11 (ix) section 4212 of title 38, United 12 States Code; 13 (x) the Family and Medical Leave Act 14 of 1993 (29 U.S.C. 2601 et seq.); 15 (xi) title VII of the Civil Rights Act of 16 1964 (42 U.S.C. 2000e et seq.); 17 (xii) the Americans with Disabilities 18 Act of 1990 (42 U.S.C. 12101 et seq.); 19 (xiii) the Age Discrimination in Em- 20 ployment Act of 1967 (29 U.S.C. 621 et 21 seq.); 22 (xiv) title II of the Genetic Informa- 23 tion Nondiscrimination Act of 2008 (42 24 U.S.C. 2000ff et seq.); 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00130 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 131 •HR 2148 IH (xv) Executive Order 13658 (79 Fed. 1 Reg. 9851; relating to establishing a min- 2 imum wage for contractors); or 3 (xvi) equivalent State laws, as defined 4 in guidance issued by the Secretary of 5 Labor; 6 (B) to require each subcontractor for a 7 covered subcontract— 8 (i) to represent to the offeror, and the 9 entity designated by the final rule reissued 10 under subsection (e)(1), to the best of the 11 subcontractor’s knowledge and belief, 12 whether there has been any administrative 13 merits determination, arbitral award or de- 14 cision, or civil judgment, as defined in 15 guidance issued by the Secretary of Labor, 16 rendered against the subcontractor in the 17 preceding 3 years for violations of any of 18 the labor laws listed under subparagraph 19 (A); and 20 (ii) to update such information every 21 6 months for the duration of the sub- 22 contract; and 23 (C) to consider the advice rendered by the 24 entity designated by the final rule reissued 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00131 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 132 •HR 2148 IH under subsection (e)(1), or information sub- 1 mitted by a subcontractor pursuant to subpara- 2 graph (B), in determining whether the subcon- 3 tractor is a responsible source with a satisfac- 4 tory record of integrity and business ethics— 5 (i) prior to awarding the subcontract; 6 or 7 (ii) in the case of a subcontract that 8 is awarded or will become effective within 9 5 days of the prime contract being award- 10 ed, not later than 30 days after awarding 11 the subcontract. 12 (2) PRE-AWARD CORRECTIVE MEASURES.— 13 (A) IN GENERAL.—A contracting officer, 14 prior to awarding a covered contract, shall, as 15 part of the responsibility determination, provide 16 an offeror who makes a disclosure pursuant to 17 paragraph (1) an opportunity to report any 18 steps taken to correct the violations of or im- 19 prove compliance with the labor laws listed in 20 subparagraph (A) of such paragraph, including 21 any agreements entered into with an enforce- 22 ment agency. 23 (B) CONSULTATION.—The executive agen- 24 cy’s Labor Compliance Advisor designated 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00132 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 133 •HR 2148 IH under subsection (d), in consultation with rel- 1 evant enforcement agencies, shall advise the 2 contracting officer whether agreements are in 3 place or are otherwise needed to address appro- 4 priate remedial measures, compliance assist- 5 ance, steps to resolve issues to avoid further 6 violations, or other related matters concerning 7 the offeror. 8 (C) RESPONSIBILITY DETERMINATION.— 9 The contracting officer, in consultation with the 10 executive agency’s Labor Compliance Advisor 11 designated under subsection (d), shall consider 12 information provided by the offeror under this 13 subsection in determining whether the offeror is 14 a responsible source with a satisfactory record 15 of integrity and business ethics. The determina- 16 tion shall be based on the guidance reissued 17 under subsection (e)(2)(A) and the final rule 18 reissued under subsection (e)(1). 19 (3) REFERRAL OF INFORMATION TO SUSPEN- 20 SION AND DEBARMENT OFFICIALS.—As appropriate, 21 contracting officers, in consultation with their execu- 22 tive agency’s Labor Compliance Advisor, shall refer 23 matters related to information provided under sub- 24 paragraphs (A) and (B) of paragraph (1) to the ex- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00133 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 134 •HR 2148 IH ecutive agency’s suspension and debarment official 1 in accordance with agency procedures. 2 (c) POST-AWARD CONTRACT ACTIONS.— 3 (1) INFORMATION UPDATES.—The contracting 4 officer for a covered contract shall require that the 5 contractor update the information provided under 6 subparagraphs (A) and (B) of subsection (b)(1) 7 every 6 months. 8 (2) CORRECTIVE ACTIONS.— 9 (A) PRIME CONTRACT.—The contracting 10 officer, in consultation with the Labor Compli- 11 ance Advisor designated pursuant to subsection 12 (d), shall determine whether any information 13 provided under paragraph (1) warrants correc- 14 tive action. Such action may include— 15 (i) an agreement requiring appro- 16 priate remedial measures; 17 (ii) compliance assistance; 18 (iii) resolving issues to avoid further 19 violations; 20 (iv) the decision not to exercise an op- 21 tion on a contract or to terminate the con- 22 tract; or 23 (v) referral to the agency suspending 24 and debarring official. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00134 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 135 •HR 2148 IH (B) SUBCONTRACTS.—The prime con- 1 tractor for a covered contract, in consultation 2 with the Labor Compliance Advisor, shall deter- 3 mine whether any information provided under 4 subsection (b)(1)(B) warrants corrective action, 5 including remedial measures, compliance assist- 6 ance, and resolving issues to avoid further viola- 7 tions. 8 (C) DEPARTMENT OF LABOR.—The Sec- 9 retary of Labor shall, as appropriate, inform 10 executive agencies of its investigations of con- 11 tractors and subcontractors on current Federal 12 contracts for purposes of determining the ap- 13 propriateness of actions described under sub- 14 paragraphs (A) and (B). 15 (d) LABOR COMPLIANCE ADVISORS.— 16 (1) IN GENERAL.—Each executive agency shall 17 designate a senior official to act as the agency’s 18 Labor Compliance Advisor. 19 (2) DUTIES.—The Labor Compliance Advisor 20 shall— 21 (A) meet quarterly with the Deputy Sec- 22 retary, Deputy Administrator, or equivalent ex- 23 ecutive agency official with regard to matters 24 covered under this section; 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00135 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 136 •HR 2148 IH (B) work with the acquisition workforce, 1 agency officials, and agency contractors to pro- 2 mote greater awareness and understanding of 3 the requirements of the labor laws listed in sub- 4 section (b)(1)(A), including record keeping, re- 5 porting, and notice requirements, as well as 6 best practices for obtaining compliance with 7 these requirements; 8 (C) coordinate assistance for executive 9 agency contractors seeking help in addressing 10 and preventing violations of such laws; 11 (D) in consultation with the Secretary of 12 Labor or other relevant enforcement agencies, 13 and pursuant to subsection (b)(2) as necessary, 14 provide assistance to contracting officers re- 15 garding appropriate actions to be taken in re- 16 sponse to violations of the labor laws listed in 17 subsection (b)(1)(A) identified prior to or after 18 contracts are awarded, and address complaints 19 in a timely manner, by— 20 (i) providing assistance to contracting 21 officers and other executive agency officials 22 in reviewing the information provided 23 under paragraphs (1) and (2) of subsection 24 (b) and subsection (c)(1), or other infor- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00136 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 137 •HR 2148 IH mation indicating such a violation, in order 1 to assess the serious, repeated, willful, or 2 pervasive nature of any such violation and 3 evaluate steps contractors have taken to 4 correct such violations or improve compli- 5 ance with relevant requirements; 6 (ii) helping agency officials determine 7 the appropriate response to address viola- 8 tions of the labor laws listed in subsection 9 (b)(1)(A) or other information indicating 10 such a violation (particularly a serious, re- 11 peated, willful, or pervasive violation), in- 12 cluding an agreement requiring appro- 13 priate remedial measures, a decision not to 14 award a contract or exercise an option on 15 a contract, contract termination, or a re- 16 ferral to the executive agency suspension 17 and debarment official; 18 (iii) providing assistance to appro- 19 priate executive agency officials in receiv- 20 ing and responding to, or making referrals 21 of, complaints alleging violations by agency 22 contractors and subcontractors of the labor 23 laws listed in subsection (b)(1)(A); and 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00137 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 138 •HR 2148 IH (iv) supporting contracting officers, 1 suspension and debarment officials, and 2 other agency officials in the coordination of 3 actions taken pursuant to this subsection 4 to ensure agency-wide consistency, to the 5 extent practicable; 6 (E) as appropriate, send information to 7 agency suspension and debarment officials in 8 accordance with agency procedures; 9 (F) consult with the agency’s Chief Acqui- 10 sition Officer and Senior Procurement Execu- 11 tive, and the Department of Labor as nec- 12 essary, in the development of regulations, poli- 13 cies, and guidance addressing compliance by 14 contractors and subcontractors with the labor 15 laws listed in subsection (b)(1)(A); 16 (G) make recommendations to the agency 17 to strengthen agency management of contractor 18 compliance with such labor laws; 19 (H) publicly report, on an annual basis, a 20 summary of agency actions taken to promote 21 greater compliance with such laws, including 22 the agency’s response under this section to seri- 23 ous, repeated, willful, or pervasive violations of 24 such laws; and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00138 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 139 •HR 2148 IH (I) participate in the interagency meetings 1 regularly convened by the Secretary of Labor 2 under subsection (e)(2)(B)(iii). 3 (e) MEASURES TO ENSURE GOVERNMENT-WIDE 4 CONSISTENCY.— 5 (1) FEDERAL ACQUISITION REGULATION.— 6 (A) IN GENERAL.—Notwithstanding Public 7 Law 115–11 (131 Stat. 75) and section 553 of 8 title 5, United States Code, not later than 1 9 year after the date of enactment of this Act, the 10 Secretary of Defense, the Administrator of the 11 General Services Administration, and the Ad- 12 ministrator of the National Aeronautics and 13 Space Administration shall reissue the final rule 14 entitled ‘‘Federal Acquisition Regulation; Fair 15 Pay and Safe Workplaces’’ (81 Fed. Reg. 16 58,562 (Aug. 25, 2016)), subject to subpara- 17 graph (B). 18 (B) UPDATED DATES.—The agencies de- 19 scribed in subparagraph (A) may, in reissuing 20 the final rule under such subparagraph, update 21 any date provided in such final rule as reason- 22 able and necessary. 23 (2) DEPARTMENT OF LABOR.— 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00139 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 140 •HR 2148 IH (A) GUIDANCE.—Not later than 1 year 1 after the date of enactment of this Act, the Sec- 2 retary of Labor shall reissue the guidance enti- 3 tled ‘‘Guidance for Executive Order 13673, 4 ‘Fair Pay and Safe Workplaces’ ’’ (81 Fed. 5 Reg. 58,654 (Aug. 25, 2016)). In reissuing 6 such guidance, the Secretary of Labor may up- 7 date any date provided in such guidance as rea- 8 sonable. 9 (B) ADDITIONAL ACTIVITIES.—The Sec- 10 retary of Labor shall— 11 (i) develop a process— 12 (I) for the Labor Compliance Ad- 13 visors designated pursuant to sub- 14 section (d) to consult with the Sec- 15 retary of Labor in carrying out their 16 responsibilities under subsection 17 (d)(2)(D); 18 (II) by which contracting officers 19 and Labor Compliance Advisors may 20 give appropriate consideration to de- 21 terminations and agreements made by 22 the Secretary of Labor and the heads 23 of other executive agencies; and 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00140 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 141 •HR 2148 IH (III) by which contractors may 1 enter into agreements with the Sec- 2 retary of Labor, or the head of an- 3 other executive agency, prior to being 4 considered for a contract; 5 (ii) review data collection require- 6 ments and processes, and work with the 7 Director of the Office of Management and 8 Budget, the Administrator of General 9 Services, and other agency heads to im- 10 prove such requirements and processes, as 11 necessary, to reduce the burden on con- 12 tractors and increase the amount of infor- 13 mation available to executive agencies; 14 (iii) regularly convene interagency 15 meetings of Labor Compliance Advisors to 16 share and promote best practices for im- 17 proving labor law compliance; and 18 (iv) designate an appropriate contact 19 for executive agencies seeking to consult 20 with the Secretary of Labor with respect to 21 the requirements and activities under this 22 section. 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00141 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 142 •HR 2148 IH (3) OFFICE OF MANAGEMENT AND BUDGET.— 1 The Director of the Office of Management and 2 Budget shall— 3 (A) work with the Administrator of Gen- 4 eral Services to include in the Federal Awardee 5 Performance and Integrity Information System 6 the information provided by contractors pursu- 7 ant to subsections (b)(1)(A) and (c)(1) and 8 data on the resolution of any issues related to 9 such information; and 10 (B) designate an appropriate contact for 11 agencies seeking to consult with the Office of 12 Management and Budget on matters arising 13 under this section. 14 (4) GENERAL SERVICES ADMINISTRATION.— 15 (A) IN GENERAL.—The Administrator of 16 General Services, in consultation with other rel- 17 evant executive agencies, shall establish a single 18 Internet website for Federal contractors to use 19 for all Federal contract reporting requirements 20 under this section, as well as any other Federal 21 contract reporting requirements to the extent 22 practicable. 23 (B) AGENCY COOPERATION.—The heads of 24 executive agencies with covered contracts shall 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00142 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 143 •HR 2148 IH provide the Administrator of General Services 1 with the data necessary to maintain the Inter- 2 net website established under subparagraph 3 (A). 4 (5) MINIMIZING COMPLIANCE BURDEN.—After 5 reissuing the guidance under paragraph (2)(A) or 6 the final rule under paragraph (1), the Secretary of 7 Labor or the Secretary of Defense, the Adminis- 8 trator of the General Services Administration, and 9 the Administrator of the National Aeronautics and 10 Space Administration may, respectively, amend such 11 guidance or final rule consistent with the require- 12 ments under chapter 5 of title 5, United States 13 Code. 14 (f) IMPLEMENTING REGULATIONS.—Not later than 9 15 months after the date of enactment of this Act, the Fed- 16 eral Acquisition Regulatory Council shall amend the Fed- 17 eral Acquisition Regulation to carry out the provisions of 18 this section. 19 (g) RULES OF CONSTRUCTION.—Nothing in this sec- 20 tion shall be construed as— 21 (1) impairing or otherwise affecting the author- 22 ity granted by law to an executive agency or the 23 head thereof; or 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00143 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 144 •HR 2148 IH (2) impairing or otherwise affecting the func- 1 tions of the Director of the Office of Management 2 and Budget relating to budgetary, administrative, or 3 legislative proposals. 4 TITLE IV—NATIONWIDE GRANTS 5 TO PREVENT AND RESPOND 6 TO WORKPLACE HARASS- 7 MENT 8 SEC. 401. DEFINITIONS. 9 In this title: 10 (1) COMMISSION.—The term ‘‘Commission’’ 11 means the Equal Employment Opportunity Commis- 12 sion. 13 (2) EMPLOYEE.—The term ‘‘employee’’ has the 14 meaning given the term in section 302(a)(4). 15 (3) EMPLOYMENT DISCRIMINATION.—The term 16 ‘‘employment discrimination’’ means discrimination 17 that is in violation of applicable Federal, State, or 18 local employment law, including: 19 (A) Title VII of the Civil Rights Act of 20 1964 (42 U.S.C. 2000e et seq.). 21 (B) The Government Employee Rights Act 22 of 1991 (42 U.S.C. 2000e–16a et seq.). 23 (C) The Congressional Accountability Act 24 of 1995 (2 U.S.C. 1301 et seq.). 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00144 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 145 •HR 2148 IH (D) Subchapter II of chapter 5 of title 3, 1 United States Code. 2 (E) The Age Discrimination in Employ- 3 ment Act of 1967 (29 U.S.C. 621 et seq.). 4 (F) Title I and section 503 (for violations 5 with respect to that title) of the Americans with 6 Disabilities Act of 1990 (42 U.S.C. 12111 et 7 seq., 12203). 8 (G) Sections 501 and 505 of the Rehabili- 9 tation Act of 1973 (29 U.S.C. 791, 794a). 10 (H) Section 6(d) of the Fair Labor Stand- 11 ards Act of 1938 (commonly known as the 12 ‘‘Equal Pay Act of 1963’’) (29 U.S.C. 206(d)). 13 (I) Title II of the Genetic Information 14 Nondiscrimination Act of 2008 (42 U.S.C. 15 2000ff et seq.). 16 (J) Section 4311 of title 38, United States 17 Code. 18 (K) Other Federal, State, or local employ- 19 ment law. 20 (4) WORKER.—The term ‘‘worker’’ has the 21 meaning given the term in section 302(a)(7). 22 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00145 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 146 •HR 2148 IH Subtitle A—National Grants for 1 Preventing and Addressing Em- 2 ployment Discrimination, In- 3 cluding Harassment 4 SEC. 411. DEFINITIONS. 5 In this subtitle: 6 (1) DIRECTOR.—The term ‘‘Director’’ means 7 the Director of the Women’s Bureau of the Depart- 8 ment of Labor. 9 (2) ELIGIBLE ENTITY.—The term ‘‘eligible enti- 10 ty’’ means any of the following: 11 (A) A nonprofit organization, including a 12 community-based organization, nonprofit legal 13 aid organization, or labor organization, that 14 provides services and support to workers, in- 15 cluding by assisting workers in filing charges of 16 employment discrimination. 17 (B) An institution of higher education, as 18 defined in section 101 of the Higher Education 19 Act of 1965 (20 U.S.C. 1001). 20 SEC. 412. GRANTS. 21 (a) GRANTS.—The Director, in consultation with the 22 Commission, shall award grants under this section, on a 23 competitive basis, to eligible entities to assist such entities 24 in carrying out a program for preventing and addressing 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00146 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 147 •HR 2148 IH employment discrimination, including harassment, 1 through activities authorized under subsection (b). 2 (b) USE OF FUNDS.— 3 (1) PERMISSIBLE ACTIVITIES.—A grant award- 4 ed under this section shall be used for activities to 5 prevent and address employment discrimination, in- 6 cluding harassment, which may include— 7 (A) educating workers about their rights 8 related to harassment in employment under 9 Federal, State, and local civil rights, labor, and 10 employment laws; 11 (B) educating employers about their obli- 12 gations to prevent and address harassment in 13 employment under Federal, State, and local 14 civil rights, labor, and employment laws; 15 (C) providing assistance to workers in 16 bringing complaints of employment discrimina- 17 tion, including filing charges of harassment; 18 (D) establishing networks for education, 19 communication, and participation in the work- 20 place and community; 21 (E) monitoring employer compliance with 22 Federal, State, and local civil rights, labor, and 23 employment laws; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00147 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 148 •HR 2148 IH (F) recruiting and hiring of staff and vol- 1 unteers; and 2 (G) any other activity the Director, in con- 3 sultation with the Commission, may reasonably 4 prescribe for the purpose of preventing and ad- 5 dressing employment discrimination, including 6 harassment. 7 (2) PROHIBITED ACTIVITIES.—Notwithstanding 8 paragraph (1), an eligible entity receiving a grant 9 under this section may not use the grant funds for 10 any purpose reasonably prohibited by the Director, 11 in consultation with the Commission, through notice 12 and comment rulemaking. 13 (c) TERM OF GRANTS.—Each grant awarded under 14 this section shall be available for expenditure for a period 15 not to exceed 3 years. 16 (d) APPLICATIONS.— 17 (1) IN GENERAL.—An eligible entity seeking a 18 grant under this section shall submit an application 19 for such grant to the Director in accordance with 20 this subsection. 21 (2) PARTNERSHIPS.—Multiple eligible entities 22 may submit a joint application under this subsection 23 that designates a single entity as the lead entity for 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00148 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 149 •HR 2148 IH the purposes of receiving and disbursing funds re- 1 ceived through a grant under this section. 2 (3) CONTENTS.—An application under this sub- 3 section shall include— 4 (A) a description of a plan for the program 5 that the eligible entity proposes to carry out 6 with a grant under this section, including a 7 long-term strategy and detailed implementation 8 plan; 9 (B) information on the prevalence of viola- 10 tions of prohibitions on employment discrimina- 11 tion, including harassment, under Federal, 12 State, and local civil rights, labor, and employ- 13 ment laws in the population served by the eligi- 14 ble entity; 15 (C) information on any industry or geo- 16 graphic area targeted by the plan for such pro- 17 gram; 18 (D) information on the type of outreach 19 and relationship building that will be conducted 20 under such program; 21 (E) information on the training and edu- 22 cation that will be provided to workers and em- 23 ployers under such program; and 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00149 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 150 •HR 2148 IH (F) the method by which the eligible entity 1 will measure the results of such program. 2 (e) SELECTION.— 3 (1) COMPETITIVE BASIS.—In accordance with 4 this section, the Director, in consultation with the 5 Commission, shall, on a competitive basis, select 6 grant recipients from among eligible entities that 7 have submitted an application meeting the require- 8 ments under subsection (d). 9 (2) PRIORITY.—The Director, in consultation 10 with the Commission, in selecting grant recipients 11 under paragraph (1), shall give priority to eligible 12 entities that— 13 (A) serve workers in any industry or geo- 14 graphic area that is most highly at risk for em- 15 ployment discrimination, including harassment, 16 as identified by the Director, in consultation 17 with the Commission; and 18 (B) demonstrate past and ongoing work to 19 prevent employment discrimination, including 20 harassment. 21 (f) PERFORMANCE EVALUATIONS.— 22 (1) IN GENERAL.—Each grant recipient under 23 this section shall develop procedures for reporting, 24 monitoring, measuring, and evaluating the activities 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00150 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 151 •HR 2148 IH of each program or activity funded under this sec- 1 tion. 2 (2) GUIDELINES.—The procedures required 3 under paragraph (1) shall be in accordance with 4 guidelines established by the Director, in consulta- 5 tion with the Commission. 6 SEC. 413. AUTHORIZATION OF APPROPRIATIONS. 7 There are authorized to be appropriated to the Direc- 8 tor such sums as may be necessary to carry out this sub- 9 title. 10 Subtitle B—Grants for Legal Assist- 11 ance for Low-Income Workers 12 SEC. 421. DEFINITIONS. 13 In this subtitle: 14 (1) SECRETARY.—The term ‘‘Secretary’’ means 15 the Secretary of Labor. 16 (2) COVERED CLIENT.—The term ‘‘covered cli- 17 ent’’ means an individual who— 18 (A) is an eligible client; and 19 (B) faces legal issues related to employ- 20 ment discrimination, including harassment. 21 (3) ELIGIBLE CLIENT.—The term ‘‘eligible cli- 22 ent’’ has the meaning given the term in section 1002 23 of the Legal Services Corporation Act (42 U.S.C. 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00151 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 152 •HR 2148 IH 2996a) and the regulations of the Legal Services 1 Corporation. 2 (4) ELIGIBLE ENTITY.—The term ‘‘eligible enti- 3 ty’’ means— 4 (A) a nonprofit organization; and 5 (B) an individual who is licensed to prac- 6 tice law. 7 SEC. 422. GRANTS FOR CIVIL LEGAL NEEDS RELATED TO 8 EMPLOYMENT DISCRIMINATION. 9 (a) GRANTS AUTHORIZED.— 10 (1) IN GENERAL.—The Secretary is authorized 11 to provide financial assistance to eligible entities to 12 enable those eligible entities to provide for the civil 13 legal needs of covered clients that are related to em- 14 ployment discrimination, and to provide for those cli- 15 ents such other services as are necessary to carry 16 out the purposes of this subtitle, including any of 17 the following activities: 18 (A) Providing covered clients advice, legal 19 services, or representation. 20 (B) Assisting covered clients in utilizing 21 the Commission employment discrimination 22 complaint process. 23 (C) Assisting covered clients in utilizing a 24 private employment complaint process. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00152 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 153 •HR 2148 IH (D) Conducting outreach activities to pub- 1 licize the services offered under this section. 2 (2) CITIZENSHIP STATUS.—An eligible entity 3 receiving a grant under this section shall provide 4 services to a covered client without regard to the 5 citizenship status or authorization to work of the 6 covered client. 7 (b) APPLICATION.—In order to be eligible to receive 8 a grant under this section, an eligible entity shall submit 9 an application to the Secretary at such time and in such 10 manner as the Secretary may require. Such application 11 shall include— 12 (1) a description of the services that the eligible 13 entity proposes to provide, implement, improve, or 14 expand; 15 (2) a description of the covered clients the eligi- 16 ble entity intends to serve; 17 (3) evidence of the eligible entity’s capacity to 18 provide services to covered clients with legal issues 19 related to employment discrimination, such as the el- 20 igible entity’s record of success representing eligible 21 clients in employment-related legal matters, or the 22 eligible entity’s prior experience serving clients who 23 cannot afford legal counsel; 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00153 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 154 •HR 2148 IH (4) an explanation of how the services the eligi- 1 ble entity intends to provide will assist covered cli- 2 ents in addressing legal issues related to employment 3 discrimination; and 4 (5) any other information that the Secretary 5 may require. 6 (c) AWARD BASIS.—The Secretary shall, in consulta- 7 tion with the Legal Services Corporation, award and over- 8 see grants under this section pursuant to such procedures 9 and criteria as the Secretary may require. Such proce- 10 dures and criteria shall include consideration of— 11 (1) whether the eligible entity has demonstrated 12 an understanding of the legal needs of covered cli- 13 ents; 14 (2) the eligible entity’s capacity to provide serv- 15 ices to covered clients with legal issues related to 16 employment discrimination, which may be dem- 17 onstrated through evidence described in subsection 18 (b)(3); 19 (3) the eligible entity’s knowledge of applicable 20 Federal, State, and local employment laws; 21 (4) the eligible entity’s capacity and ability to 22 access other resources; 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00154 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 155 •HR 2148 IH (5) the eligible entity’s ability to ensure con- 1 tinuity of service to covered clients with pending 2 legal issues; and 3 (6) other factors that the Secretary determines 4 are relevant. 5 (d) EQUITABLE DISTRIBUTION.—To the extent prac- 6 ticable, in awarding grants under this section, the Sec- 7 retary, in consultation with the Legal Services Corpora- 8 tion, shall ensure that grants are made so as to provide 9 the most economical and effective delivery of legal assist- 10 ance to covered clients in both urban and rural areas, with 11 consideration of the geographic distribution of persons in 12 poverty. 13 (e) DURATION OF THE GRANT.— 14 (1) IN GENERAL.—A grant under this section 15 shall be for a term of not less than 1 year and not 16 more than 5 years. 17 (2) RENEWAL.—The Secretary may renew a 18 grant awarded under this section for a period of not 19 more than 2 additional years if the eligible entity 20 demonstrates that the eligible entity is effectively 21 using funds and that the renewal of funds will allow 22 the eligible entity to scale up the provision of serv- 23 ices, replicate the program, or provide continuity of 24 service to covered clients. 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00155 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 156 •HR 2148 IH (f) REPORT.—Two years after the enactment of this 1 section, the Secretary shall provide to the Committee on 2 Health, Education, Labor, and Pensions of the Senate and 3 the Committee on Education and Labor of the House of 4 Representatives a report on the implementation of the 5 grant program under this section, including— 6 (1) a description of the services provided using 7 grant assistance under this section, including a de- 8 tailed description of the types of legal issues ad- 9 dressed by eligible entities and the number of cov- 10 ered clients served; and 11 (2) an assessment of the number of individuals 12 facing one or more legal issues related to employ- 13 ment discrimination who cannot afford adequate 14 legal counsel, and the largest areas of unmet need. 15 SEC. 423. AUTHORIZATION OF APPROPRIATIONS. 16 There are authorized to be appropriated to carry out 17 this subtitle such sums as may be necessary. 18 Subtitle C—Grants for a System of 19 State Advocacy 20 SEC. 431. PURPOSE. 21 The purpose of this subtitle is to provide allotments 22 to support a system of advocacy (referred to in this sub- 23 title as a ‘‘system’’) in each State to protect the legal and 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00156 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 157 •HR 2148 IH human rights of workers in accordance with applicable 1 Federal, State, and local employment discrimination laws. 2 SEC. 432. DEFINITIONS. 3 In this subtitle: 4 (1) RECORD.—The term ‘‘record’’ includes— 5 (A) a report prepared by an employer or 6 staff person charged with investigating reports 7 of employment discrimination that describes in- 8 cidents of possible discrimination and the steps 9 taken to investigate those incidents; 10 (B) statistical information related to em- 11 ployment decisions and the race, sex (including 12 sexual orientation and gender identity), religion, 13 national origin, age, disability, genetic informa- 14 tion, or other protected characteristics of work- 15 ers; 16 (C) records described in section 11(c) of 17 the Fair Labor Standards Act (29 U.S.C. 18 211(c)); and 19 (D) any such similar record, as may be 20 necessary to carry out the purposes of this sub- 21 title. 22 (2) SECRETARY.—The term ‘‘Secretary’’ means 23 the Secretary of Labor. 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00157 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 158 •HR 2148 IH (3) STATE.—The term ‘‘State’’, except as oth- 1 erwise provided, includes, in addition to each of the 2 several States of the United States, the District of 3 Columbia, the Commonwealth of Puerto Rico, the 4 United States Virgin Islands, Guam, American 5 Samoa, and the Commonwealth of the Northern 6 Mariana Islands. 7 SEC. 433. ALLOTMENTS AND PAYMENTS. 8 (a) ALLOTMENTS.— 9 (1) IN GENERAL.—To assist States in meeting 10 the requirements of section 434, the Secretary shall 11 make allotments to States from the amounts appro- 12 priated under section 436 and not reserved under 13 paragraph (5). 14 (2) MINIMUM ALLOTMENTS.—In any case in 15 which— 16 (A) the total amount appropriated under 17 section 436 for a fiscal year is not less than 18 $20,000,000, the allotment under paragraph 19 (1) for such fiscal year— 20 (i) to each of American Samoa, 21 Guam, the United States Virgin Islands, 22 and the Commonwealth of the Northern 23 Mariana Islands may not be less than 24 $100,000; and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00158 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 159 •HR 2148 IH (ii) to any State not described in 1 clause (i) may not be less than $200,000; 2 and 3 (B) the total amount appropriated under 4 section 436 for a fiscal year is less than 5 $20,000,000, the allotment under paragraph 6 (1) for such fiscal year— 7 (i) to each of American Samoa, 8 Guam, the United States Virgin Islands, 9 and the Commonwealth of the Northern 10 Mariana Islands may not be less than 11 $50,000; and 12 (ii) to any State not described in 13 clause (i) may not be less than $150,000. 14 (3) REDUCTION OF ALLOTMENT.—Notwith- 15 standing paragraphs (1) and (2), if the aggregate of 16 the amounts to be allotted to the States pursuant to 17 such paragraphs for any fiscal year exceeds the total 18 amount appropriated for such allotments under sec- 19 tion 436 for such fiscal year, the amount to be allot- 20 ted to each State for such fiscal year shall be pro- 21 portionately reduced. 22 (4) INCREASE IN ALLOTMENTS.—If the sum ap- 23 propriated under section 436 and not reserved under 24 paragraph (5) for any fiscal year exceeds the aggre- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00159 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 160 •HR 2148 IH gate of the minimum allotments for all States under 1 this subsection for that fiscal year, such excess 2 amount shall be allotted among the States, including 3 American Samoa, Guam, the United States Virgin 4 Islands, and the Commonwealth of the Northern 5 Mariana Islands, so as to increase proportionately 6 the minimum allotment for each such State. 7 (5) TECHNICAL ASSISTANCE.—In any case in 8 which the total amount appropriated under section 9 436 for a fiscal year is more than $24,500,000, the 10 Secretary shall— 11 (A) use not more than 2 percent of the 12 amount appropriated to provide technical assist- 13 ance to eligible systems with respect to activi- 14 ties carried out under this subtitle (consistent 15 with requests by such systems for such assist- 16 ance for the year); and 17 (B) provide a grant in accordance with sec- 18 tion 434(d) and in an amount described in 19 paragraph (2)(A)(i), to an American Indian 20 consortium to provide protection and advocacy 21 services. 22 (6) REALLOTMENTS.— 23 (A) IN GENERAL.—If the Secretary deter- 24 mines that an amount of an allotment to a 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00160 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 161 •HR 2148 IH State for a period (of a fiscal year or longer) 1 will not be required by the State during the pe- 2 riod for the purpose for which the allotment 3 was made, the Secretary shall reallot the 4 amount. 5 (B) TIMING.—The Secretary may make 6 such a reallotment from time to time, on such 7 date as the Secretary may fix, but not earlier 8 than 30 days after the Secretary has published 9 notice of the intention of the Secretary to make 10 the reallotment in the Federal Register. 11 (C) AMOUNTS.—The Secretary shall reallot 12 the amount to other States with respect to 13 which the Secretary has not made that deter- 14 mination. The Secretary shall reallot the 15 amount in proportion to the original allotments 16 of the other States for such fiscal year, but 17 shall reduce such proportionate amount for any 18 of the other States to the extent the propor- 19 tionate amount exceeds the sum that the Sec- 20 retary estimates the State needs and will be 21 able to use during such period. 22 (D) REALLOTMENT OF REDUCTIONS.—The 23 Secretary shall similarly reallot the total of the 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00161 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 162 •HR 2148 IH reductions among the States whose propor- 1 tionate amounts were not so reduced. 2 (E) TREATMENT.—Any amount reallotted 3 to a State under this subsection for a fiscal 4 year shall be deemed to be a part of the allot- 5 ment of the State under paragraph (1) for such 6 fiscal year. 7 (b) PAYMENT TO SYSTEMS.—The Secretary shall pay 8 directly to each State that has a system in the State that 9 complies with the provisions of this subtitle the amount 10 of the allotment made for the State under this section, 11 unless the system specifies otherwise, to be used in sup- 12 port of the system. 13 (c) UNOBLIGATED FUNDS.—Any amount paid to a 14 State under this subtitle for a fiscal year and remaining 15 unobligated at the end of such year shall remain available 16 to such State for the next fiscal year, for the purposes 17 for which such amount was paid. 18 SEC. 434. SYSTEM REQUIRED. 19 (a) IN GENERAL.—In order for a State to receive an 20 allotment under this subtitle the State shall— 21 (1) have in effect a system to protect and advo- 22 cate for the rights of workers within the State who 23 are or who may be eligible for relief from applicable 24 employment discrimination laws; and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00162 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 163 •HR 2148 IH (2) designate a private nonprofit entity (re- 1 ferred to in this subtitle as an ‘‘agency’’) to support 2 and carry out the activities of that system. 3 (b) AGENCY REQUIREMENTS.— 4 (1) CHARACTERISTICS OF AGENCY.—The State 5 shall ensure that the agency designated under sub- 6 section (a) shall— 7 (A) not be administered by the State, or 8 an agency or instrumentality of a State; and 9 (B) be independent of any entity that rep- 10 resents the interest of the State, employers, or 11 other corporations. 12 (2) NO REDESIGNATION OF AGENCY.—The 13 agency implementing the system shall not be redes- 14 ignated unless— 15 (A) there is good cause for the redesigna- 16 tion; 17 (B) the State has given the agency notice 18 of the intention to make such redesignation, in- 19 cluding notice regarding the good cause for 20 such redesignation, and given the agency an op- 21 portunity to respond to the assertion that good 22 cause has been shown; 23 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00163 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 164 •HR 2148 IH (C) the agency has given timely notice of 1 the intended redesignation directly to clients of 2 the agency; 3 (D) the State has provided, in plain 4 English and in accessible formats for individ- 5 uals with disabilities and for individuals who 6 primarily speak a language other than English, 7 an opportunity for public comment; and 8 (E) the agency has an opportunity to ap- 9 peal the redesignation to the Secretary, on the 10 basis that the redesignation was not for good 11 cause. 12 (3) COSTS OF NOTICE.—The costs of the notice 13 required under paragraph (2)(C) shall be paid by 14 the State. 15 (c) SYSTEM REQUIRED.—The system described in 16 subsection (a) shall— 17 (1) have the authority to— 18 (A) pursue legal, administrative, and other 19 appropriate remedies or approaches, as applica- 20 ble, to ensure the protection of, and advocacy 21 for, the rights of individuals within the State 22 who are or who may be eligible for relief from 23 employment discrimination; and 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00164 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 165 •HR 2148 IH (B) provide information on and referral to 1 programs and services addressing the needs of 2 such individuals; 3 (2) have the authority— 4 (A) to investigate incidents of employment 5 discrimination, including harassment, and to 6 conduct investigations of systemic employment 7 discrimination, of such individuals if the inci- 8 dents are reported to the agency or if there is 9 probable cause to believe that the incidents oc- 10 curred; and 11 (B) to investigate and gather data in the 12 same manner as the Secretary under section 13 11(a) of the Fair Labor Standards Act (29 14 U.S.C. 211(a)); 15 (3) on an annual basis, develop, submit to the 16 Secretary, and take action with regard to goals and 17 priorities developed through data driven strategic 18 planning for the system’s activities; 19 (4) on an annual basis, provide to the public, 20 including individuals described in paragraph (1)(A), 21 the regional office of the Commission that serves the 22 State, and any State agency whose purpose is to re- 23 duce or eliminate employment discrimination, an op- 24 portunity to comment on— 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00165 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 166 •HR 2148 IH (A) the goals and priorities established by 1 the agency and the rationale for the establish- 2 ment of such goals; and 3 (B) the activities of the agency, including 4 the coordination of services with the District of- 5 fice of the Commission that serves the State, 6 and any State agency whose purpose is to re- 7 duce, eliminate, or redress employment dis- 8 crimination, and with entities carrying out 9 other related programs; 10 (5) establish a grievance procedure for clients 11 or prospective clients of the agency to ensure that 12 individuals described in paragraph (1)(A) have full 13 access to services of the agency; 14 (6) have access at reasonable times to any indi- 15 vidual described in paragraph (1)(A) in a location in 16 which services and other assistance are provided to 17 such an individual, in order to carry out the purpose 18 of this subtitle; 19 (7) have access, not later than 3 business days 20 after the agency makes a written request, to the 21 records of any individual described in paragraph 22 (1)(A) (including Federal and State workers) who is 23 a client of the agency if such individual, or other 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00166 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 167 •HR 2148 IH legal representative of such individual, has author- 1 ized the agency to have such access; 2 (8) hire and maintain sufficient numbers and 3 types of staff (qualified by training and experience) 4 to carry out the agency’s functions, except that the 5 State involved shall not apply hiring freezes, reduc- 6 tions in force, prohibitions on travel, or other poli- 7 cies to the staff of the agency, to the extent that 8 such policies would impact the staff or functions of 9 the agency funded with Federal funds or would pre- 10 vent the agency from carrying out the functions of 11 the system under this subtitle; 12 (9) have the authority to educate policymakers; 13 and 14 (10) provide assurances to the Secretary that 15 funds allotted to the State under section 433 will be 16 used to supplement, and not supplant, the non-Fed- 17 eral funds that would otherwise be made available 18 for the purposes for which the allotted funds are 19 provided. 20 (d) AMERICAN INDIAN CONSORTIUM.— 21 (1) IN GENERAL.—Upon application to the Sec- 22 retary, the Secretary shall allot funds to one or more 23 American Indian consortium established to provide 24 services under this subtitle, in accordance with sec- 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00167 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 168 •HR 2148 IH tion 433(a)(5). Such funds shall be used to support 1 services under this subtitle. 2 (2) COORDINATION OF SYSTEMS.—An American 3 Indian consortium under paragraph (1) shall be con- 4 sidered to be a system for purposes of this subtitle 5 and shall coordinate those services with other sys- 6 tems serving the same geographic area. 7 (3) RESPONSIBLE PARTY.—The tribal council 8 that designates the consortium shall carry out the 9 responsibilities and exercise the authorities specified 10 for a State in this subtitle, with regard to the con- 11 sortium. 12 SEC. 435. ADMINISTRATION. 13 (a) GOVERNING BOARD.—The system described in 14 section 434 shall be organized as a private nonprofit entity 15 with a multimember governing board, and such governing 16 board shall be selected according to the policies and proce- 17 dures of the system, except that— 18 (1) the governing board shall be composed of 19 members who broadly represent or are knowledge- 20 able about the needs of the individuals served by the 21 system; 22 (2) a majority of the members of the board 23 shall be— 24 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00168 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 169 •HR 2148 IH (A) attorneys representing the interests of 1 workers; 2 (B) advocates for workers with experience 3 working to protect or expand workers’ rights; or 4 (C) workers who have experienced employ- 5 ment discrimination; 6 (3) not more than 1⁄3 of the members of the 7 governing board may be appointed by the chief exec- 8 utive officer of the State involved, in the case of any 9 State in which such officer has the authority to ap- 10 point members of the board; 11 (4) the membership of the governing board 12 shall be subject to term limits set by the system to 13 ensure rotating membership; and 14 (5) any vacancy in the board shall be filled not 15 later than 60 days after the date on which the va- 16 cancy occurs. 17 (b) LEGAL ACTION.— 18 (1) IN GENERAL.—Nothing in this subtitle shall 19 preclude a system from bringing a suit on behalf of 20 individuals described in section 434(c)(1)(A) against 21 a State, or an agency or instrumentality of a State. 22 (2) USE OF AMOUNTS FROM JUDGMENT.—An 23 amount received pursuant to a suit described in 24 paragraph (1) through a court judgment may only 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00169 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 170 •HR 2148 IH be used by the system to further the purpose of this 1 subtitle and shall not be used to augment payments 2 to legal contractors or to award personal bonuses. 3 (c) PUBLIC NOTICE OF FEDERAL ONSITE REVIEW.— 4 The Secretary shall provide advance public notice of, and 5 solicit public comments regarding, any Federal pro- 6 grammatic or administrative onsite review of a system 7 conducted under this subtitle. The Secretary shall prepare 8 an onsite visit report containing the results of such review, 9 which shall be distributed to the Governor of the State 10 and to other interested public and private parties. The 11 comments received in response to the notice and public 12 comment solicitation shall be included in the onsite visit 13 report. 14 (d) REPORTS.— 15 (1) IN GENERAL.—Beginning for the fiscal year 16 after the fiscal year during which this Act is en- 17 acted, each system established in a State pursuant 18 to this subtitle shall annually prepare and transmit 19 to the Secretary a report that describes the activi- 20 ties, accomplishments, and expenditures of the sys- 21 tem during the preceding fiscal year, including— 22 (A) a description of the system’s goals, the 23 extent to which the goals were achieved, and 24 barriers to that achievement; and 25 VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00170 Fmt 6652 Sfmt 6201 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS 171 •HR 2148 IH (B) the process used to obtain public 1 input, the nature of such input, and how such 2 input was used. 3 (2) DISCLOSURE OF INFORMATION.—For pur- 4 poses of the report described in paragraph (1) the 5 Secretary shall not require the system disclose the 6 identity of, or any other personally identifiable infor- 7 mation related to, any individual requesting assist- 8 ance from the system. 9 SEC. 436. AUTHORIZATION OF APPROPRIATIONS. 10 There are authorized to be appropriated for allot- 11 ments under section 433 such sums as may be necessary. 12 TITLE V—GENERAL PROVISIONS 13 SEC. 501. SEVERABILITY. 14 If any provision of this Act, an amendment made by 15 this Act, or the application of such provision or amend- 16 ment to any person or circumstance is held to be unconsti- 17 tutional, the remainder of this Act and the amendments 18 made by this Act, and the application of the provision or 19 amendment to any other person or circumstance, shall not 20 be affected. 21 Æ VerDate Sep 11 2014 22:25 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00171 Fmt 6652 Sfmt 6301 E:\BILLS\H2148.IH H2148 pamtmann on DSKBFK8HB2PROD with BILLS