Text of US SB 3219 (2021)

II 117TH CONGRESS 1ST SESSION S. 3219 To prevent discrimination and harassment in employment. IN THE SENATE OF THE UNITED STATES NOVEMBER 17, 2021 Mrs. MURRAY (for herself, Ms. HIRONO, Ms. BALDWIN, Mr. BLUMENTHAL, Mr. BOOKER, Mr. BROWN, Mr. CARDIN, Mr. CASEY, Mrs. GILLIBRAND, Ms. DUCKWORTH, Mr. DURBIN, Mr. KAINE, Mr. MARKEY, Mr. MERKLEY, Mr. LUJA´N, Ms. KLOBUCHAR, Mr. PADILLA, Ms. ROSEN, Mr. SANDERS, Mr. VAN HOLLEN, Ms. WARREN, and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 3219 IS (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 111; 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 14 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 15 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 16 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 17 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 18 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 19 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 20 •S 3219 IS (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 such sums as may be nec- 8 essary for each fiscal year the national prevalence survey 9 is to be administered under subsection (a) or the report 10 is to be submitted under subsection (c). 11 SEC. 112. STUDY AND REPORT ON HARASSMENT IN THE 12 FEDERAL GOVERNMENT. 13 (a) IN GENERAL.—Not later than 1 year after the 14 date of enactment of this Act, and not less than once every 15 3 years thereafter, the Merit Systems Protection Board 16 shall prepare and submit to the Committee on Health, 17 Education, Labor, and Pensions of the Senate and the 18 Committee on Education and Labor of the House of Rep- 19 resentatives a report containing the following information: 20 (1) The prevalence of specific behaviors associ- 21 ated with prohibited harassment in employment 22 among Federal employees, including information 23 about such behaviors disaggregated by each wage 24 band. 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 21 •S 3219 IS (2) The impact of prohibited harassment in em- 1 ployment and violations of Federal civil rights laws 2 on the Federal Government, in terms of monetary 3 costs, attrition, and morale. 4 (3) The particular impact of prohibited harass- 5 ment in employment on the experience of Federal 6 employees with disabilities. 7 (4) Working in coordination with the Commis- 8 sion’s Office of Federal Operations, a description of 9 the differences in Federal agency policies, strategies, 10 reporting mechanisms, training programs, and other 11 practices regarding preventing and addressing pro- 12 hibited harassment in employment. 13 (5) A description of which policies, strategies, 14 reporting mechanisms, training programs, and other 15 practices described in paragraph (4) have prevented, 16 addressed, or reduced prohibited harassment in em- 17 ployment. 18 (6) Working in coordination with the Commis- 19 sion’s Office of Federal Operations, joint rec- 20 ommendations from such Office and the Merit Sys- 21 tems Protection Board to Federal agencies on how 22 to prevent and address prohibited harassment in em- 23 ployment. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 22 •S 3219 IS (b) AUTHORIZATION OF APPROPRIATIONS.—There 1 are authorized to be appropriated to the Merit Systems 2 Protection Board such sums as may be necessary to carry 3 out this section. 4 SEC. 113. STUDIES, REPORTS, AND FURTHER RESEARCH. 5 (a) STUDY AND REPORT ON ENFORCEMENT OF NON- 6 DISCRIMINATION LAWS PROHIBITING HARASSMENT 7 LAWS.—Not later than 1 year after the date of enactment 8 of this Act, the United States Commission on Civil Rights 9 shall prepare and submit to the Committee on Health, 10 Education, Labor, and Pensions of the Senate and the 11 Committee on Education and Labor of the House of Rep- 12 resentatives a report that shall examine enforcement of 13 the nondiscrimination laws prohibiting harassment includ- 14 ing— 15 (1) trends in enforcement of such laws; 16 (2) barriers to effective enforcement of such 17 laws; 18 (3) best practices in enforcement of such laws; 19 (4) recommendations about how to improve en- 20 forcement of such laws, including whether estab- 21 lishing individual liability for discrimination and har- 22 assment in employment would improve enforcement 23 of such laws; and 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 23 •S 3219 IS (5) how the experience of harassment for em- 1 ployees and individuals required to be afforded pro- 2 tections under section 301 has changed over time 3 since the passage of such laws. 4 (b) STUDY AND REPORT ON PREVENTION OF HAR- 5 ASSMENT IN EMPLOYMENT.— 6 (1) IN GENERAL.—Not later than 60 days after 7 the date of enactment of this Act, the Director of 8 the National Institutes of Health shall enter into an 9 agreement with the National Academies of Sciences, 10 Engineering, and Medicine, through which the Na- 11 tional Academies of Science, Engineering, and Medi- 12 cine shall conduct a study on preventing and ad- 13 dressing prohibited harassment in employment. 14 (2) CONTENTS.—Such study shall include— 15 (A) an evaluation of the existing research 16 of the causes of prohibited harassment in em- 17 ployment, including retaliation related to such 18 harassment, and gaps in such research; 19 (B) a review of the existing research re- 20 garding how prohibited harassment in employ- 21 ment impacts individuals; 22 (C) an evaluation of the existing research 23 on training to prevent prohibited harassment in 24 employment, including essential components of 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 24 •S 3219 IS effective training to prevent such prohibited 1 harassment and retaliation, and gaps in such 2 research; 3 (D) an assessment of the efficacy and 4 availability of training models and programs to 5 prevent prohibited harassment in employment; 6 (E) the identification of employment or so- 7 cietal factors that increase the likelihood of pro- 8 hibited harassment in employment, particularly 9 across industries with a high number of individ- 10 uals who are vulnerable to experiencing such 11 prohibited harassment, including whether diver- 12 sity in leadership positions within an organiza- 13 tion reduces the likelihood of such prohibited 14 harassment; 15 (F) an examination of methods of induc- 16 ing, scaling, and sustaining institutional or or- 17 ganizational change to prevent prohibited har- 18 assment in employment; 19 (G) an analysis of policies, strategies, and 20 practices that have been the most successful in 21 preventing and addressing prohibited harass- 22 ment in employment; and 23 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 25 •S 3219 IS (H) any other information or analysis nec- 1 essary to identify the gaps in research and 2 other measures described in subsection (c). 3 (3) REPORT.—Not later than 1 year after the 4 date of enactment of this Act, the National Acad- 5 emies of Sciences, Engineering, and Medicine shall 6 prepare and submit to the Committee on Health, 7 Education, Labor, and Pensions of the Senate, the 8 Committee on Education and Labor of the House of 9 Representatives, and the Director of the National 10 Institutes of Health, a report containing the results 11 of the study conducted under this subsection and 12 make recommendations to Congress, executive 13 branch agencies, private employers, and researchers. 14 Such recommendations shall include ways that such 15 training could be improved to result in behavioral 16 and cultural changes that prevent and reduce behav- 17 iors associated with prohibited harassment in em- 18 ployment. The report and recommendations shall be 19 made publicly available. 20 (c) SUPPORTING FURTHER RESEARCH ON PRE- 21 VENTING AND UNDERSTANDING HARASSMENT IN EM- 22 PLOYMENT.— 23 (1) IN GENERAL.—Not later than 6 months 24 after the submission required under subsection 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 26 •S 3219 IS (b)(3), the Director of the National Institutes of 1 Health, in consultation with the Commission and the 2 Secretary of Labor, shall enter into agreements (in- 3 cluding through the use of grants, contracts, cooper- 4 ative agreements, or other transactions) to support 5 research regarding— 6 (A) the gaps identified in the report re- 7 quired under subsection (b)(3) in research on 8 the causes of prohibited harassment in employ- 9 ment, including retaliation related to such har- 10 assment; 11 (B) the gaps identified in the report re- 12 quired under subsection (b)(3) in research on 13 the psychological sequelae of prohibited harass- 14 ment in employment, including retaliation re- 15 lated to such harassment; 16 (C) gaps identified in the report required 17 under subsection (b)(3) in research on special 18 populations and their risk for prohibited harass- 19 ment in employment, including adolescents, 20 older individuals, racial and ethnic minorities, 21 individuals with disabilities, women, and other 22 populations that could be disproportionately af- 23 fected by prohibited harassment in employment; 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 27 •S 3219 IS (D) gaps identified in the report required 1 under subsection (b)(3) in research on prohib- 2 ited harassment in employment, including retal- 3 iation related to such harassment, as a risk fac- 4 tor for various mental health problems; 5 (E) gaps identified in the report required 6 under subsection (b)(3) in research on 7 sociocultural correlations within prohibited har- 8 assment in employment, including retaliation 9 related to such harassment; and 10 (F) systematic and quantifiable measures 11 to evaluate prevention strategies for victims and 12 perpetrators of prohibited harassment in em- 13 ployment, including retaliation related to such 14 harassment. 15 (2) AUTHORIZATION OF APPROPRIATIONS.— 16 There are authorized to be appropriated to the Na- 17 tional Institutes of Health to carry out this sub- 18 section such sums as may be necessary. 19 Subtitle C—Preventing Harassment 20 of Tipped Employees 21 SEC. 121. TIPPED EMPLOYEES. 22 (a) BASE MINIMUM WAGE FOR TIPPED EMPLOYEES 23 AND TIPS RETAINED BY EMPLOYEES.—Section 24 3(m)(2)(A)(i) of the Fair Labor Standards Act of 1938 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 28 •S 3219 IS (29 U.S.C. 203(m)(2)(A)(i)) is amended to read as fol- 1 lows: 2 ‘‘(i) the cash wage paid such em- 3 ployee, which for purposes of such deter- 4 mination shall be not less than— 5 ‘‘(I) for the 1-year period begin- 6 ning on the effective date under sub- 7 section (e), $3.60 an hour; 8 ‘‘(II) for each succeeding 1-year 9 period until the hourly wage under 10 this clause equals the wage in effect 11 under section 6(a)(1) for such period, 12 an hourly wage equal to the amount 13 determined under this clause for the 14 preceding year, increased by the lesser 15 of— 16 ‘‘(aa) $1.50; or 17 ‘‘(bb) the amount necessary 18 for the wage in effect under this 19 clause to equal the wage in effect 20 under section 6(a)(1) for such 21 period, rounded up to the nearest 22 multiple of $0.05; and 23 ‘‘(III) for each succeeding 1-year 24 period after the increase made pursu- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 29 •S 3219 IS ant to subclause (II), the minimum 1 wage in effect under section 6(a)(1); 2 and’’. 3 (b) TIPS RETAINED BY EMPLOYEES.—Section 4 3(m)(2)(A) of the Fair Labor Standards Act of 1938 (29 5 U.S.C. 203(m)(2)(A)) is amended— 6 (1) in the second sentence of the matter fol- 7 lowing clause (ii), by striking ‘‘of this subsection, 8 and all tips received by such employee have been re- 9 tained by the employee’’ and inserting ‘‘of this sub- 10 section. Any employee shall have the right to retain 11 any tips received by such employee’’; and 12 (2) by adding at the end the following: ‘‘An em- 13 ployer shall inform each employee of the right and 14 exception provided under the preceding sentence.’’. 15 (c) PUBLICATION OF NOTICE.—Section 6 of the Fair 16 Labor Standards Act of 1938 (29 U.S.C. 206) is amended 17 by adding at the end the following: 18 ‘‘(h) Not later than 60 days prior to the effective date 19 of any increase in the required wage determined in accord- 20 ance with subclause (II) or (III) of section 3(m)(2)(A)(i), 21 the Secretary shall publish in the Federal Register and 22 on the website of the Department of Labor a notice an- 23 nouncing each increase in such required wage.’’. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 30 •S 3219 IS (d) SCHEDULED REPEAL OF SEPARATE MINIMUM 1 WAGE FOR TIPPED EMPLOYEES.— 2 (1) TIPPED EMPLOYEES.—Section 3(m)(2)(A) 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 4 203(m)(2)(A)), as amended by subsections (a) and 5 (b), is further amended by striking the sentence be- 6 ginning with ‘‘In determining the wage an employer 7 is required to pay a tipped employee,’’ and all that 8 follows through ‘‘of this subsection.’’ and inserting 9 ‘‘The wage required to be paid to a tipped employee 10 shall be the wage set forth in section 6(a)(1).’’. 11 (2) PUBLICATION OF NOTICE.—Section 6 of the 12 Fair Labor Standards Act of 1938 (29 U.S.C. 206), 13 as amended by subsection (c), is further amended by 14 striking subsection (h). 15 (3) EFFECTIVE DATE.—The amendments made 16 by paragraphs (1) and (2) shall take effect on the 17 date that is one day after the date on which the 18 hourly wage under subclause (III) of section 19 3(m)(2)(A)(i) of the Fair Labor Standards Act of 20 1938 (29 U.S.C. 203(m)(2)(A)(i)), as amended by 21 subsection (a), takes effect. 22 (e) EFFECTIVE DATE.—Except as provided in sub- 23 section (d)(3), this section and the amendments made by 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 31 •S 3219 IS this section shall take effect on the first day of the third 1 month that begins after the date of enactment of this Act. 2 TITLE II—STRENGTHENING 3 WORKPLACE RIGHTS 4 SEC. 201. CLARIFYING SEXUAL ORIENTATION DISCRIMINA- 5 TION AND GENDER IDENTITY DISCRIMINA- 6 TION ARE UNLAWFUL SEX DISCRIMINATION. 7 (a) EMPLOYMENT.— 8 (1) RULES OF CONSTRUCTION.—Title VII of 9 the Civil Rights Act of 1964 is amended by inserting 10 after section 701 (42 U.S.C. 2000e) the following: 11 ‘‘SEC. 701A. RULES OF CONSTRUCTION. 12 ‘‘Section 1106 shall apply to this title except that for 13 purposes of that application, a reference in that section 14 to an ‘unlawful practice’ shall be considered to be a ref- 15 erence to an ‘unlawful employment practice’.’’. 16 (2) UNLAWFUL EMPLOYMENT PRACTICES.— 17 Section 703 of the Civil Rights Act of 1964 (42 18 U.S.C. 2000e–2) is amended— 19 (A) in the section header, by striking 20 ‘‘SEX,’’ and inserting ‘‘SEX (INCLUDING SEX- 21 UAL ORIENTATION, GENDER IDENTITY, 22 PREGNANCY, CHILDBIRTH, A MEDICAL 23 CONDITION RELATED TO PREGNANCY OR 24 CHILDBIRTH, AND A SEX STEREOTYPE),’’; 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 32 •S 3219 IS (B) except in subsections (e), (j) and (m), 1 by striking ‘‘sex,’’ each place it appears and in- 2 serting ‘‘sex (including sexual orientation, gen- 3 der identity, pregnancy, childbirth, a medical 4 condition related to pregnancy or childbirth, 5 and a sex stereotype),’’; 6 (C) in subsection (e)(1), by striking ‘‘en- 7 terprise,’’ and inserting ‘‘enterprise, if, in a sit- 8 uation in which sex is a bona fide occupational 9 qualification, individuals are recognized as 10 qualified in accordance with their gender iden- 11 tity,’’; 12 (D) in subsection (h), by striking ‘‘sex’’ 13 the second place it appears and inserting ‘‘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),’’; 18 (E) in subsection (j)— 19 (i) by striking ‘‘sex,’’ the first place it 20 appears and inserting ‘‘sex (including sex- 21 ual orientation, gender identity, pregnancy, 22 childbirth, a medical condition related to 23 pregnancy or childbirth, and a sex stereo- 24 type),’’; and 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 33 •S 3219 IS (ii) by striking ‘‘sex,’’ the second and 1 third places it appears and inserting ‘‘sex 2 (including sexual orientation, gender iden- 3 tity, pregnancy, childbirth, a medical con- 4 dition related to pregnancy or childbirth, 5 and a sex stereotype),’’; and 6 (F) in subsection (m), by striking ‘‘sex,’’ 7 and inserting ‘‘sex (including sexual orientation, 8 gender identity, pregnancy, childbirth, a med- 9 ical condition related to pregnancy or childbirth, 10 and a sex stereotype),’’. 11 (3) OTHER UNLAWFUL EMPLOYMENT PRAC- 12 TICES.—Section 704(b) of the Civil Rights Act of 13 1964 (42 U.S.C. 2000e–3(b)) is amended— 14 (A) by striking ‘‘sex,’’ the first place it ap- 15 pears and inserting ‘‘sex (including sexual ori- 16 entation, gender identity, pregnancy, childbirth, 17 a medical condition related to pregnancy or 18 childbirth, and a sex stereotype),’’; and 19 (B) by striking ‘‘employment.’’ and insert- 20 ing ‘‘employment, if, in a situation in which sex 21 is a bona fide occupational qualification, indi- 22 viduals are recognized as qualified in accord- 23 ance with their gender identity.’’. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 34 •S 3219 IS (4) CLAIMS.—Section 706(g)(2)(A) of the Civil 1 Rights Act of 1964 (2000e–5(g)(2)(A)) is amended 2 by striking ‘‘sex,’’ and inserting ‘‘sex (including sex- 3 ual orientation, gender identity, pregnancy, child- 4 birth, a medical condition related to pregnancy or 5 childbirth, and a sex stereotype),’’. 6 (5) EMPLOYMENT BY FEDERAL GOVERN- 7 MENT.—Section 717 of the Civil Rights Act of 1964 8 (42 U.S.C. 2000e–16) is amended— 9 (A) in subsection (a), by striking ‘‘sex,’’ 10 and inserting ‘‘sex (including sexual orientation, 11 gender identity, pregnancy, childbirth, a med- 12 ical condition related to pregnancy or childbirth, 13 and a sex stereotype),’’; and 14 (B) in subsection (c), 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),’’. 19 (6) GOVERNMENT EMPLOYEE RIGHTS ACT OF 20 1991.—The Government Employee Rights Act of 21 1991 (42 U.S.C. 2000e–16a et seq.) is amended— 22 (A) in section 301(b), by striking ‘‘sex,’’ 23 and inserting ‘‘sex (including sexual orientation, 24 gender identity, pregnancy, childbirth, a med- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 35 •S 3219 IS ical condition related to pregnancy or childbirth, 1 and a sex stereotype),’’; 2 (B) in section 302(a)(1), by striking ‘‘sex,’’ 3 and inserting ‘‘sex (including sexual orientation, 4 gender identity, pregnancy, childbirth, a med- 5 ical condition related to pregnancy or childbirth, 6 and a sex stereotype),’’; and 7 (C) by adding at the end the following: 8 ‘‘SEC. 305. RULES OF CONSTRUCTION AND CLAIMS. 9 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 10 Rights Act of 1964 shall apply to this title except that 11 for purposes of that application, a reference in that section 12 1106 to ‘race, color, religion, sex (including sexual orienta- 13 tion, gender identity, pregnancy, childbirth, a medical con- 14 dition related to pregnancy or childbirth, and a sex stereo- 15 type), or national origin’ shall be considered to be a ref- 16 erence to ‘race, color, religion, sex (including sexual ori- 17 entation, gender identity, pregnancy, childbirth, a medical 18 condition related to pregnancy or childbirth, and a sex 19 stereotype), national origin, age, or disability’.’’. 20 (7) CONGRESSIONAL ACCOUNTABILITY ACT OF 21 1995.—The Congressional Accountability Act of 1995 22 (2 U.S.C. 1301 et seq.) is amended— 23 (A) in section 201(a)(1) (2 U.S.C. 24 1311(a)(1)) by striking ‘‘sex,’’ and inserting 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 36 •S 3219 IS ‘‘sex (including sexual orientation, gender iden- 1 tity, pregnancy, childbirth, a medical condition 2 related to pregnancy or childbirth, and a sex 3 stereotype),’’; and 4 (B) by adding at the end of title II (42 5 U.S.C. 1311 et seq.) the following: 6 ‘‘SEC. 209. RULES OF CONSTRUCTION AND CLAIMS. 7 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 8 Rights Act of 1964 shall apply to section 201 (and reme- 9 dial provisions of this Act related to section 201) except 10 that for purposes of that application, a reference in that 11 section 1106 to ‘race, color, religion, sex (including sexual 12 orientation, gender identity, pregnancy, childbirth, a med- 13 ical condition related to pregnancy or childbirth, and a sex 14 stereotype), or national origin’ shall be considered to be 15 a reference to ‘race, color, religion, sex (including sexual 16 orientation, gender identity, pregnancy, childbirth, a med- 17 ical condition related to pregnancy or childbirth, and a sex 18 stereotype), national origin, age, or disability’.’’. 19 (8) CIVIL SERVICE REFORM ACT OF 1978.— 20 Chapter 23 of title 5, United States Code, is amend- 21 ed— 22 (A) in section 2301(b)(2), by striking 23 ‘‘sex,’’ and inserting ‘‘sex (including sexual ori- 24 entation, gender identity, pregnancy, childbirth, 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 37 •S 3219 IS a medical condition related to pregnancy or 1 childbirth, and a sex stereotype),’’; 2 (B) in section 2302— 3 (i) in subsection (b)(1)(A), by striking 4 ‘‘sex,’’ and inserting ‘‘sex (including sexual 5 orientation, gender identity, pregnancy, 6 childbirth, a medical condition related to 7 pregnancy or childbirth, and a sex stereo- 8 type),’’; and 9 (ii) in subsection (d)(1), by striking 10 ‘‘sex,’’ and inserting ‘‘sex (including sexual 11 orientation, gender identity, pregnancy, 12 childbirth, a medical condition related to 13 pregnancy or childbirth, and a sex stereo- 14 type),’’; and 15 (C) by adding at the end the following: 16 ‘‘SEC. 2307. RULES OF CONSTRUCTION AND CLAIMS. 17 ‘‘Sections 1101(b), 1106, and 1107 of the Civil 18 Rights Act of 1964 shall apply to this chapter (and reme- 19 dial provisions of this title related to this chapter) except 20 that for purposes of that application, a reference in that 21 section 1106 to ‘race, color, religion, sex (including sexual 22 orientation, gender identity, pregnancy, childbirth, a med- 23 ical condition related to pregnancy or childbirth, and a sex 24 stereotype), or national origin’ shall be considered to be 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 38 •S 3219 IS a reference to ‘race, color, religion, sex (including sexual 1 orientation, gender identity, pregnancy, childbirth, a med- 2 ical condition related to pregnancy or childbirth, and a sex 3 stereotype), national origin, age, disability, marital status, 4 or political affiliation’.’’. 5 (b) MISCELLANEOUS.—Title XI of the Civil Rights 6 Act of 1964 is amended— 7 (1) by redesignating sections 1101 through 8 1104 (42 U.S.C. 2000h et seq.) and sections 1105 9 and 1106 (42 U.S.C. 2000h–5, 2000h–6) as sections 10 1102 through 1105 and sections 1108 and 1109, re- 11 spectively; 12 (2) by inserting after the title heading the fol- 13 lowing: 14 ‘‘SEC. 1101. DEFINITIONS AND RULES. 15 ‘‘(a) DEFINITIONS.—In title VII: 16 ‘‘(1) RACE; COLOR; RELIGION; SEX; SEXUAL 17 ORIENTATION; GENDER IDENTITY; NATIONAL ORI- 18 GIN.—The term ‘race’, ‘color’, ‘religion’, ‘sex’, or 19 ‘national origin’, used with respect to an individual, 20 includes— 21 ‘‘(A) the race, color, religion, sex (includ- 22 ing sexual orientation, gender identity, preg- 23 nancy, childbirth, a medical condition related to 24 pregnancy or childbirth, and a sex stereotype), 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 39 •S 3219 IS or national origin, respectively, of another per- 1 son with whom the individual is associated or 2 has been associated; and 3 ‘‘(B) a perception or belief, even if inac- 4 curate, concerning the race, color, religion, sex 5 (including sexual orientation, gender identity, 6 pregnancy, childbirth, a medical condition re- 7 lated to pregnancy or childbirth, and a sex 8 stereotype), or national origin, respectively, of 9 the individual. 10 ‘‘(2) GENDER IDENTITY.—The term ‘gender 11 identity’ means the gender-related identity, appear- 12 ance, mannerisms, or other gender-related character- 13 istics of an individual, regardless of the individual’s 14 designated sex at birth. 15 ‘‘(3) INCLUDING.—The term ‘including’ means 16 including, but not limited to, consistent with the 17 term’s standard meaning in Federal law. 18 ‘‘(4) SEXUAL ORIENTATION.—The term ‘sexual 19 orientation’ means homosexuality, heterosexuality, or 20 bisexuality. 21 ‘‘(b) RULES.—In title VII— 22 ‘‘(1) with respect to sex, an individual’s preg- 23 nancy, childbirth, or related medical condition shall 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 40 •S 3219 IS not receive less favorable treatment than other phys- 1 ical conditions; and 2 ‘‘(2) with respect to gender identity, an indi- 3 vidual shall not be denied access to a shared facility, 4 including a restroom, a locker room, and a dressing 5 room, that is in accordance with the individual’s 6 gender identity.’’; and 7 (3) by inserting after section 1105 the fol- 8 lowing: 9 ‘‘SEC. 1106. RULES OF CONSTRUCTION. 10 ‘‘(a) SEX.—Nothing in section 1101 or the provisions 11 of title VII incorporating a term defined or a rule specified 12 in that section shall be construed— 13 ‘‘(1) to limit the protection against an unlawful 14 practice on the basis of pregnancy, childbirth, a 15 medical condition related to pregnancy or childbirth 16 provided by section 701(k); or 17 ‘‘(2) to limit the protection against an unlawful 18 practice on the basis of sex available under any pro- 19 vision of Federal law other than title VII, prohib- 20 iting a practice on the basis of sex. 21 ‘‘(b) CLAIMS AND REMEDIES NOT PRECLUDED.— 22 Nothing in section 1101 or title VII shall be construed 23 to limit the claims or remedies available to any individual 24 for an unlawful practice on the basis of race, color, reli- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 41 •S 3219 IS gion, sex (including sexual orientation, gender identity, 1 pregnancy, childbirth, a medical condition related to preg- 2 nancy or childbirth, and a sex stereotype), or national ori- 3 gin including claims brought pursuant to section 1979 or 4 1980 of the Revised Statutes (42 U.S.C. 1983, 1985) or 5 any other law, including a Federal law amended by the 6 BE HEARD in the Workplace Act, regulation, or policy. 7 ‘‘(c) NO NEGATIVE INFERENCE.—Nothing in section 8 1101 or title VII shall be construed to support any infer- 9 ence that any Federal law prohibiting a practice on the 10 basis of sex does not prohibit discrimination on the basis 11 of pregnancy, childbirth, a medical condition related to 12 pregnancy or childbirth, sexual orientation, gender iden- 13 tity, or a sex stereotype. 14 ‘‘SEC. 1107. CLAIMS. 15 ‘‘The Religious Freedom Restoration Act of 1993 (42 16 U.S.C. 2000bb et seq.) shall not provide a claim con- 17 cerning, or a defense to a claim under, title VII, or provide 18 a basis for challenging the application or enforcement of 19 title VII.’’. 20 SEC. 202. COVERED EMPLOYERS. 21 Section 701(b) of the Civil Rights Act of 1964 (42 22 U.S.C. 2000e(b)) is amended by striking ‘‘fifteen’’ and in- 23 serting ‘‘one’’. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 42 •S 3219 IS SEC. 203. COMPENSATORY AND PUNITIVE DAMAGES AVAIL- 1 ABLE. 2 (a) CIVIL RIGHTS; DISABILITY.— 3 (1) IN GENERAL.—Section 1977A(b) of the Re- 4 vised Statutes (42 U.S.C. 1981a(b)) is amended by 5 striking paragraph (3) and inserting the following: 6 ‘‘(3) LOSSES.—Compensatory damages are 7 available under this section for future pecuniary 8 losses, emotional pain, suffering, inconvenience, 9 mental anguish, loss of enjoyment of life, and other 10 nonpecuniary losses.’’. 11 (2) CONFORMING AMENDMENTS.— 12 (A) Section 201(b) of the Congressional 13 Accountability Act of 1995 (2 U.S.C. 1311(b)) 14 is amended, in paragraphs (1)(B) and (3)(B)— 15 (i) by striking ‘‘and, irrespective of 16 the size of the employing office, 17 1977A(b)(3)(D)’’ and inserting ‘‘and 18 1977A(b)(3)’’; and 19 (ii) by striking ‘‘and 1981a(b)(3)(D)’’ 20 and inserting ‘‘and 1981a(b)(3)’’. 21 (B) Section 411(b) of title 3, United 22 States Code, is amended, in paragraphs (1)(B) 23 and (3)(B), by striking ‘‘and, irrespective of the 24 size of the employing office, 1977A(b)(3)(D)’’ 25 and inserting ‘‘and 1977A(b)(3)’’. 26 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 43 •S 3219 IS (C) Section 207 of the Genetic Information 1 Nondiscrimination Act of 2008 (42 U.S.C. 2 2000ff–16) is amended, in paragraph (3) of 3 each of subsections (a) through (e), by striking 4 ‘‘, including the limitations contained in sub- 5 section (b)(3) of such section 1977A,’’. 6 (b) AGE.—Section 7(b) of the Age Discrimination in 7 Employment Act of 1967 (29 U.S.C. 626(b)) is amend- 8 ed— 9 (1) by striking ‘‘(b) The’’ and all that follows 10 through the third sentence and inserting the fol- 11 lowing: 12 ‘‘(b)(1) Except as otherwise provided in another sub- 13 section of this section, or section 9, the powers, remedies, 14 and procedures set forth in sections 705, 706, 707, 709, 15 and 710 of the Civil Rights Act of 1964 (42 U.S.C. 16 2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9) 17 shall be the powers, remedies, and procedures this Act 18 provides to the Commission, to the Attorney General, or 19 to any person alleging discrimination on the basis of age 20 in violation of section 4, or regulations promulgated under 21 section 9.’’; and 22 (2) in the second sentence of that subsection 23 (b), as amended by paragraph (1), by striking ‘‘or 24 enforcing the liability for amounts deemed to be un- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 44 •S 3219 IS paid minimum wages or unpaid overtime compensa- 1 tion under this section’’ and inserting ‘‘and includ- 2 ing any type of legal or equitable relief available 3 under title VII of the Civil Rights Act of 1964 (42 4 U.S.C. 2000e et seq.)’’. 5 SEC. 204. HARASSMENT AND DISCRIMINATION; STANDARDS 6 OF PROOF. 7 (a) FINDINGS.—Congress finds that— 8 (1) harassment is a persistent and significant 9 problem in the workplace in the United States; 10 (2) workers are harassed because of their sex 11 (including sexual orientation, gender identity, preg- 12 nancy, childbirth, or a medical condition related to 13 pregnancy or childbirth, and a sex stereotype), race, 14 color, religion, national origin, age, disability, genetic 15 information, and uniformed services status; 16 (3) Congress enacted title VII of the Civil 17 Rights Act of 1964 intending to provide broad pro- 18 tection from many forms of bias in the workplace; 19 (4) the Supreme Court has recognized in City 20 of Los Angeles Department of Water and Power v. 21 Manhart, 435 U.S. 702 (1978), that the protection 22 against sex discrimination in the terms, conditions, 23 or privileges of employment under title VII of the 24 Civil Rights Act of 1964 reflects Congress’ intent to 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 45 •S 3219 IS ‘‘strike at the entire spectrum’’ of sex-based dis- 1 crimination in employment; 2 (5) in 1980, the Equal Employment Oppor- 3 tunity Commission (referred to in this section as 4 ‘‘the Commission’’) amended its Guidelines on Dis- 5 crimination Because of Sex (referred to in this sec- 6 tion as ‘‘the Guidelines’’) to specify that sexual har- 7 assment is a form of sex discrimination prohibited 8 by title VII of the Civil Rights Act of 1964; 9 (6) in the Guidelines, the Commission explained 10 that harassing conduct is unlawful where— 11 (A) ‘‘submission to such conduct is made 12 either explicitly or implicitly a term or condition 13 of an individual’s employment’’; 14 (B) ‘‘submission to or rejection of such 15 conduct by an individual is used as the basis for 16 employment decisions’’; or 17 (C) the conduct ‘‘has the purpose or effect 18 of unreasonably interfering with an individual’s 19 work performance or creating an intimidating, 20 hostile, or offensive working environment’’; 21 (7) the Commission further explained that, with 22 respect to the evidence required to support a finding 23 of unlawful harassment, it ‘‘will look at the record 24 as a whole and at the totality of the circumstances, 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 46 •S 3219 IS such as the nature of the sexual advances and the 1 context in which the alleged incidents occurred’’ and 2 emphasized that the ‘‘determination of the legality of 3 a particular action will be made from the facts, on 4 a case by case basis’’; 5 (8) six years later, the Supreme Court in 6 Meritor Savings Bank v. Vinson, 477 U.S. 57 7 (1986), recognized that the protections under title 8 VII of the Civil Rights Act of 1964 are not limited 9 to discrimination that causes ‘‘economic’’ or ‘‘tan- 10 gible’’ loss, and held that the phrase ‘‘terms, condi- 11 tions, or privileges of employment’’ in title VII of 12 such Act is an ‘‘expansive concept that sweeps with- 13 in its protective ambit’’ the practice of creating a 14 hostile work environment based on discrimination in 15 the form of harassment; 16 (9) in reaching this conclusion in the Meritor 17 decision, the Supreme Court cited and approved the 18 Guidelines; 19 (10) in the Meritor decision, the Supreme Court 20 cited with approval lower court decisions that con- 21 cluded that a hostile work environment based on 22 race, religion, or national origin violates the prohibi- 23 tion of discrimination in the terms, conditions, or 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 47 •S 3219 IS privileges of employment under title VII of the Civil 1 Rights Act of 1964, which decisions included— 2 (A) Rogers v. EEOC, 454 F.2d 234 (5th 3 Cir. 1971); 4 (B) Firefighters Institute for Racial 5 Equality v. City of St. Louis, 549 F.2d 506 6 (8th Cir. 1977); 7 (C) Gray v. Greyhound Lines, 545 F.2d 8 169 (D.C. Cir. 1976); 9 (D) Compston v. Borden, Inc., 424 F. 10 Supp. 157 (S.D. Ohio 1976); and 11 (E) Cariddi v. Kansas City Chiefs Football 12 Club, Inc., 568 F.2d 87 (8th Cir. 1977); 13 (11) in defining the evidence required to prove 14 a violation of title VII of the Civil Rights Act of 15 1964, in the Meritor decision, the Supreme Court 16 noted that harassment would be actionable when it 17 is ‘‘sufficiently severe or pervasive ‘to alter the con- 18 ditions of [the victim’s] employment and create an 19 abusive working environment’ ’’ (quoting Rogers v. 20 EEOC, 454 F.2d 234 (5th Cir. 1971)); 21 (12) in Harris v. Forklift Systems, Inc., 510 22 U.S. 17 (1993), the Supreme Court clarified that 23 harassment need not seriously affect an employee’s 24 psychological well-being or lead the employee to suf- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 48 •S 3219 IS fer injury in order to be unlawful, but rather, need 1 merely create a work environment that a reasonable 2 person in the protected class would find hostile or 3 abusive; 4 (13) in Harris v. Forklift Systems, Inc., the Su- 5 preme Court held that whether a work environment 6 is unlawfully hostile or abusive does not depend on 7 any mathematically precise test, but rather, is to be 8 determined by looking at all of the circumstances, 9 with no single factor required; 10 (14) in National Railroad Passenger Corp. v. 11 Morgan, 536 U.S. 101 (2002), the Supreme Court 12 reaffirmed the Harris decision and further held that 13 the hostility or abusiveness of each harassing act 14 should be considered in the aggregate, not in isola- 15 tion, regardless of whether such acts occur over days 16 or even years; 17 (15) notwithstanding the rulings of the Su- 18 preme Court specified in this subsection, some lower 19 court decisions have treated harassing conduct’s se- 20 verity or pervasiveness as the only 2 relevant factors 21 in evaluating whether such conduct violates title VII 22 of the Civil Rights Act of 1964; 23 (16) some lower court decisions have treated 24 ‘‘severe or pervasive’’ as a threshold for liability, 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 49 •S 3219 IS when the relevant inquiry is whether the harassing 1 conduct actually altered the terms, conditions, or 2 privileges of employment; 3 (17) some lower court decisions further have in- 4 terpreted the ‘‘severe or pervasive’’ language in the 5 Meritor decision so narrowly as to recognize only the 6 most egregious conduct as unlawful, despite Con- 7 gress’ intent that title VII of the Civil Rights Act of 8 1964 afford a broad scope of protection from dis- 9 crimination; 10 (18) examples of decisions that use the erro- 11 neous analysis described in paragraphs (15) through 12 (17) in the context of harassment on the basis of sex 13 include— 14 (A) Singleton v. Department of Correc- 15 tional Education, 115 Fed. Appx. 119 (4th Cir. 16 2004); 17 (B) Black v. Zaring Homes, Inc., 104 F.3d 18 822 (6th Cir. 1997); 19 (C) Weiss v. Coca-Cola Bottling Co., 990 20 F.2d 333 (7th Cir. 1993); 21 (D) Rickard v. Swedish Match North 22 America, Inc., 773 F.3d 181 (8th Cir. 2014); 23 (E) Mitchell v. Pope, 189 F. Appx. 911 24 (11th Cir. 2006); and 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 50 •S 3219 IS (F) Brooks v. City of San Mateo, 229 1 F.3d 917 (9th Cir. 2000); 2 (19) lower courts have made similar erroneous 3 decisions in the context of harassment on the basis 4 of race, national origin, age, and disability such as 5 in Crawford v. Medina General Hospital, 96 F.3d 6 830 (6th Cir. 1996), Shaver v. Independent Stave 7 Co., 350 F.3d 716 (8th Cir. 2003), and Motley v. 8 Parker-Hannifan Corp., No. 1: 94–CV–639 (W.D. 9 Mich. 1995); 10 (20) in contrast, other lower court decisions ap- 11 plying the Meritor case and its progeny have appro- 12 priately recognized that a wide range of harassing 13 behavior may alter the terms, conditions, or privi- 14 leges of employment, with no single type, frequency, 15 or duration of conduct required to make a showing 16 of severe or pervasive harassment; 17 (21) for example, in the context of harassment 18 based on sex, those decisions have recognized that— 19 (A) conduct need not be physical to create 20 a hostile or abusive work environment, as in 21 Billings v. Town of Grafton, 515 F.3d 39 (1st 22 Cir. 2008); 23 (B) an individual need not be the target of 24 sexually demeaning conduct in order to experi- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 51 •S 3219 IS ence unlawful harassment, as in Petrosino v. 1 Bell Atlantic, 385 F.3d 210 (2d Cir. 2004); 2 (C) power disparities, such as the young 3 age of the individual harassed, compound the 4 conduct’s harmful effects, as in EEOC v. R&R 5 Ventures, 244 F.3d 334 (4th Cir. 2001); 6 (D) gender-based epithets were based on 7 sex and supported a finding that the workplace 8 was objectively hostile, as in Gallagher v. C.H. 9 Robinson Worldwide, Inc., 567 F.3d 263 (6th 10 Cir. 2009); and 11 (E) a single incident can alter the terms, 12 conditions, or privileges of employment, as in 13 Howley v. Town of Stratford, 217 F.3d 141 (2d 14 Cir. 2000); 15 (22) similarly, in the context of harassment 16 based on other protected characteristics, other 17 courts have appropriately held that— 18 (A) calling an individual an ‘‘old man’’ and 19 ‘‘pops’’ could contribute to actionably hostile 20 work environment based on age, as in Dediol v. 21 Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 22 2011); 23 (B) repeatedly calling an individual with 24 mental illness ‘‘crazy’’ and stating that the indi- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 52 •S 3219 IS vidual is a threat to security is sufficient to 1 support a finding of a hostile work environment 2 based on disability, as in Quiles-Quiles v. Hen- 3 derson, 439 F.3d 1 (1st Cir. 2006); and 4 (C) a single incident of calling an African- 5 American individual the ‘‘n word’’ by a super- 6 visor is sufficient to support a finding of a hos- 7 tile work environment based on race, as in Rod- 8 gers v. Western-Southern Life Insurance Co., 9 12 F.3d 668 (7th Cir. 1993); and 10 (23) similar erroneous decisions have been ren- 11 dered in the context of harassment on the basis of 12 sex in employment under title IX of the Education 13 Amendments of 1972 (20 U.S.C. 1681 et seq.), as 14 in Farmer v. Troy University, No. 5:17–CV–70–B0 15 (E.D.N.C. 2017). 16 (b) PURPOSES.—The purposes of this section are 17 to— 18 (1) enact into statutory law provisions that es- 19 tablish that workplace harassment is a violation of 20 the— 21 (A) protections from discrimination in the 22 ‘‘terms, conditions, or privileges of employ- 23 ment’’ found in title VII of the Civil Rights Act 24 of 1964 (42 U.S.C. 2000e et seq.); 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 53 •S 3219 IS (B) protections from disability discrimina- 1 tion found in title I of the Americans with Dis- 2 abilities Act of 1990 (42 U.S.C. 12111 et seq.) 3 and sections 501 and 505 of the Rehabilitation 4 Act of 1973 (29 U.S.C. 791, 794a); 5 (C) protections from age discrimination 6 found in the Age Discrimination in Employ- 7 ment Act of 1967 (29 U.S.C. 621 et seq.); 8 (D) protections from genetic information 9 discrimination found in title II of the Genetic 10 Information Nondiscrimination Act of 2008 (42 11 U.S.C. 2000ff et seq.); and 12 (E) protections from uniformed services 13 status discrimination found in section 4311 of 14 title 38, United States Code; and 15 (2) establish a liability standard for workplace 16 harassment that fulfills Congress’ intent of providing 17 broad protection from discrimination in employment 18 on the basis of race, color, religion, sex (including 19 sexual orientation, gender identity, pregnancy, child- 20 birth, a medical condition related to pregnancy or 21 childbirth, and a sex stereotype), national origin, 22 age, disability, genetic information, and uniformed 23 services status. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 54 •S 3219 IS (c) ENACTING INTO STATUTORY LAW PROVISIONS 1 ESTABLISHING WORKPLACE HARASSMENT AS AN UNLAW- 2 FUL EMPLOYMENT PRACTICE.— 3 (1) CIVIL RIGHTS ACT OF 1964.—Section 703 of 4 the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) 5 is amended by adding at the end the following: 6 ‘‘(o)(1)(A) In this subsection, the term ‘workplace 7 harassment’ means conduct based on race, color, religion, 8 sex (including sexual orientation, gender identity, preg- 9 nancy, childbirth, a medical condition related to pregnancy 10 or childbirth, and a sex stereotype), or national origin, re- 11 gardless of whether it is direct or indirect, or verbal or 12 nonverbal, that unreasonably alters an individual’s terms, 13 conditions, or privileges of employment, including by cre- 14 ating an intimidating, hostile, or offensive work environ- 15 ment. 16 ‘‘(B)(i) In this subsection, the term also means sexual 17 harassment, which is conduct that takes place in a cir- 18 cumstance described in clause (ii) and that takes the form 19 of— 20 ‘‘(I) a sexual advance; 21 ‘‘(II) a request for sexual favors; or 22 ‘‘(III) any other conduct of a sexual nature. 23 ‘‘(ii) A circumstance described in this clause is a situ- 24 ation in which— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 55 •S 3219 IS ‘‘(I) submission to the conduct involved is made 1 either explicitly or implicitly a term or condition of 2 employment; 3 ‘‘(II) submission to or rejection of such conduct 4 is used as the basis for an employment decision af- 5 fecting an individual’s employment; or 6 ‘‘(III) such conduct unreasonably alters an indi- 7 vidual’s terms, conditions, or privileges of employ- 8 ment, including by creating an intimidating hostile, 9 or offensive work environment. 10 ‘‘(2) It shall be an unlawful employment practice 11 under subsection (a) to engage in workplace harassment. 12 ‘‘(3) In determining, for purposes of this subsection, 13 whether conduct constitutes workplace harassment be- 14 cause the conduct unreasonably alters an individual’s 15 terms, conditions, or privileges of employment, including 16 by creating an intimidating, hostile, or offensive work en- 17 vironment, the following rules shall apply: 18 ‘‘(A) That determination shall be made on the 19 basis of the record as a whole, according to the to- 20 tality of the circumstances. A single incident may 21 constitute workplace harassment. 22 ‘‘(B) Incidents that may be workplace harass- 23 ment shall be considered in the aggregate, with— 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 56 •S 3219 IS ‘‘(i) conduct of varying types (such as ex- 1 pressions of sex-based hostility, requests for 2 sexual favors, and denial of employment oppor- 3 tunities due to sexual orientation) viewed in to- 4 tality, rather than in isolation; and 5 ‘‘(ii) conduct based on multiple protected 6 characteristics (such as sex and race) viewed in 7 totality, rather than in isolation. 8 ‘‘(C) The factors specified in this subparagraph 9 are among the factors to be considered in deter- 10 mining whether conduct constitutes workplace har- 11 assment and are not meant to be exhaustive. No one 12 of those factors shall be considered to be determina- 13 tive in establishing whether conduct constitutes 14 workplace harassment. Such factors are each of the 15 following: 16 ‘‘(i) The frequency of the conduct. 17 ‘‘(ii) The duration of the conduct. 18 ‘‘(iii) The location where the conduct oc- 19 curred. 20 ‘‘(iv) The number of individuals engaged in 21 the conduct. 22 ‘‘(v) The nature of the conduct, which may 23 include physical, verbal, pictorial, or visual con- 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 57 •S 3219 IS duct, and conduct that occurs in person or is 1 transmitted, such as electronically. 2 ‘‘(vi) Whether the conduct is threatening. 3 ‘‘(vii) Any power differential between the 4 alleged harasser and the person allegedly har- 5 assed. 6 ‘‘(viii) Any use of epithets, slurs, or other 7 conduct that is humiliating or degrading. 8 ‘‘(ix) Whether the conduct reflects stereo- 9 types about individuals in the protected class 10 involved. 11 ‘‘(4) In determining, for purposes of this subsection, 12 whether conduct constitutes workplace harassment, con- 13 duct may be workplace harassment regardless of whether, 14 for example— 15 ‘‘(A) the complaining party is not the individual 16 being harassed; 17 ‘‘(B) the complaining party acquiesced or other- 18 wise submitted to, or participated in, the conduct; 19 ‘‘(C) the conduct is also experienced by others 20 outside the protected class involved; 21 ‘‘(D) the complaining party was able to con- 22 tinue carrying out duties and responsibilities of the 23 party’s job despite the conduct; 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 58 •S 3219 IS ‘‘(E) the conduct did not cause a tangible in- 1 jury or psychological injury; or 2 ‘‘(F) the conduct occurred outside of the work- 3 place.’’. 4 (2) AMERICANS WITH DISABILITIES ACT OF 5 1990.—Section 102(b) of the Americans with Disabil- 6 ities Act (42 U.S.C. 12112(b)) is amended— 7 (A) in paragraph (6), by striking ‘‘and’’ at 8 the end; 9 (B) in paragraph (7), by striking the pe- 10 riod and inserting ‘‘; and’’; and 11 (C) by adding at the end the following: 12 ‘‘(8) engaging in workplace harassment, which 13 is conduct based on disability, regardless of whether 14 it is direct or indirect, or verbal or nonverbal, that— 15 ‘‘(A) unreasonably alters an individual’s 16 terms, conditions, or privileges of employment, 17 including by creating an intimidating, hostile, 18 or offensive work environment; and 19 ‘‘(B) is determined to be such harassment 20 in accordance with paragraphs (3) and (4) of 21 section 703(o) of the Civil Rights Act of 1964 22 (42 U.S.C. 2000e–2(o)).’’. 23 (3) REHABILITATION ACT OF 1973.—Section 24 501(f) of the Rehabilitation Act of 1973 (29 U.S.C. 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 59 •S 3219 IS 791(f)) is amended by inserting ‘‘, including section 1 102(b) of that Act (42 U.S.C. 12112(b))’’, before 2 ‘‘and the provisions’’. 3 (4) AGE DISCRIMINATION IN EMPLOYMENT 4 ACT.—Section 4 of the Age Discrimination in Em- 5 ployment Act of 1967 (29 U.S.C. 623) is amended 6 by adding at the end the following: 7 ‘‘(n) It shall be unlawful under subsection (a) to en- 8 gage in workplace harassment, which is conduct based on 9 age, regardless of whether it is direct or indirect, or verbal 10 or nonverbal, that— 11 ‘‘(1) unreasonably alters an individual’s terms, 12 conditions, or privileges of employment, including by 13 creating an intimidating, hostile, or offensive work 14 environment; and 15 ‘‘(2) is determined to be such harassment in ac- 16 cordance with paragraphs (3) and (4) of section 17 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 18 2000e–2(o)).’’. 19 (5) GENETIC INFORMATION NONDISCRIMINA- 20 TION ACT OF 2008.—Section 202 of the Genetic In- 21 formation Nondiscrimination Act of 2008 (42 U.S.C. 22 2000ff–1) is amended by adding at the end the fol- 23 lowing: 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00059 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 60 •S 3219 IS ‘‘(d) WORKPLACE HARASSMENT.—It shall be an un- 1 lawful employment practice under subsection (a) to engage 2 in workplace harassment, which is conduct based on ge- 3 netic information, regardless of whether it is direct or indi- 4 rect, or verbal or nonverbal, that— 5 ‘‘(1) unreasonably alters an individual’s terms, 6 conditions, or privileges of employment, including by 7 creating an intimidating, hostile, or offensive work 8 environment; and 9 ‘‘(2) is determined to be such harassment in ac- 10 cordance with paragraphs (3) and (4) of section 11 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 12 2000e–2(o)).’’. 13 (6) CHAPTER 43 OF TITLE 38, UNITED STATES 14 CODE.—Section 4311 of title 38, United States 15 Code, is amended by adding at the end the fol- 16 lowing: 17 ‘‘(e) It shall be an unlawful employment practice 18 under subsection (a) to engage in workplace harassment, 19 which is conduct based on uniformed services status 20 (meaning the membership, application for membership, 21 performance of service, application for service, or obliga- 22 tion, described in subsection (a)), regardless of whether 23 it is direct or indirect, or verbal or nonverbal, that— 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00060 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 61 •S 3219 IS ‘‘(1) unreasonably alters an individual’s benefits 1 of employment, including by creating an intimi- 2 dating, hostile, or offensive work environment; and 3 ‘‘(2) is determined to be such harassment in ac- 4 cordance with paragraphs (3) and (4) of section 5 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 6 2000e–2(o)).’’. 7 SEC. 205. CLARIFYING OTHER STANDARDS OF PROOF. 8 (a) AMENDMENTS TO DEFINITIONS.— 9 (1) AMERICANS WITH DISABILITIES ACT OF 10 1990.—Section 101 of the Americans with Disabil- 11 ities Act of 1990 (42 U.S.C. 12111) is amended by 12 adding at the end the following: 13 ‘‘(11) DEMONSTRATES.—The term ‘dem- 14 onstrates’ means meets the burdens of production 15 and persuasion.’’. 16 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT 17 OF 1967.—Section 11 of the Age Discrimination in 18 Employment Act of 1967 (29 U.S.C. 630) is amend- 19 ed by adding at the end the following: 20 ‘‘(m) The term ‘demonstrates’ means meets the bur- 21 dens of production and persuasion.’’. 22 (3) GENETIC INFORMATION NONDISCRIMINA- 23 TION ACT OF 2008.—Section 201 of the Genetic In- 24 formation Nondiscrimination Act of 2008 (42 U.S.C. 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 62 •S 3219 IS 2000ff) is amended by adding at the end the fol- 1 lowing: 2 ‘‘(8) DEMONSTRATES.—The term ‘dem- 3 onstrates’ means meets the burdens of production 4 and persuasion.’’. 5 (b) CLARIFYING PROHIBITION AGAINST IMPERMIS- 6 SIBLE CONSIDERATION IN EMPLOYMENT PRACTICES.— 7 (1) RACE, COLOR, RELIGION, SEX, OR NA- 8 TIONAL ORIGIN.—Section 703 of the Civil Rights 9 Act of 1964 (42 U.S.C. 2000e–2) is amended by 10 striking subsection (m) and inserting the following: 11 ‘‘(m) Except as otherwise provided in this title, an 12 unlawful employment practice is established under this 13 title when the complaining party demonstrates that race, 14 color, religion, sex, or national origin or an activity pro- 15 tected by section 704(a) was a motivating factor for any 16 employment practice, even though other factors also moti- 17 vated the practice.’’. 18 (2) DISABILITY.—Section 102 of the Americans 19 with Disabilities Act of 1990 (42 U.S.C. 12112) is 20 amended by adding at the end the following: 21 ‘‘(e) PROOF.— 22 ‘‘(1) ESTABLISHMENT.—Except as otherwise 23 provided in this Act, a discriminatory practice is es- 24 tablished under this Act when the complaining party 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 63 •S 3219 IS demonstrates that disability or an activity protected 1 by subsection (a) or (b) of section 503 was a moti- 2 vating factor for any employment practice, even 3 though other factors also motivated the practice. 4 ‘‘(2) DEMONSTRATION.—In establishing a dis- 5 criminatory practice under paragraph (1) or by any 6 other method of proof, a complaining party— 7 ‘‘(A) may rely on any type or form of ad- 8 missible evidence and need only produce evi- 9 dence sufficient for a reasonable trier of fact to 10 find that a discriminatory practice occurred 11 under this Act; and 12 ‘‘(B) shall not be required to demonstrate 13 that disability or an activity protected by sub- 14 section (a) or (b) of section 503 was the sole 15 cause of an employment practice.’’. 16 (3) AGE.—Section 4 of the Age Discrimination 17 in Employment Act of 1967 (29 U.S.C. 623) is 18 amended by inserting after subsection (f) the fol- 19 lowing: 20 ‘‘(g)(1) Except as otherwise provided in this Act, an 21 unlawful practice is established under this Act when the 22 complaining party demonstrates that age or an activity 23 protected by subsection (d) was a motivating factor for 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00063 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 64 •S 3219 IS any practice, even though other factors also motivated the 1 practice. 2 ‘‘(2) In establishing an unlawful practice under this 3 Act, including under paragraph (1) or by any other meth- 4 od of proof, a complaining party— 5 ‘‘(A) may rely on any type or form of admis- 6 sible evidence and need only produce evidence suffi- 7 cient for a reasonable trier of fact to find that an 8 unlawful practice occurred under this Act; and 9 ‘‘(B) shall not be required to demonstrate that 10 age or an activity protected by subsection (d) was 11 the sole cause of a practice.’’. 12 (4) GENETIC INFORMATION.—Section 202 of 13 the Genetic Information Nondiscrimination Act of 14 2008 (42 U.S.C. 2000ff–1), as amended by section 15 204(c)(5), is further amended by adding at the end 16 the following: 17 ‘‘(e) PROOF.— 18 ‘‘(1) ESTABLISHMENT.—Except as otherwise 19 provided in this title, an unlawful employment prac- 20 tice is established under this title when the com- 21 plaining party demonstrates that genetic information 22 or an activity protected by section 207(f) was a mo- 23 tivating factor for any employment practice, even 24 though other factors also motivated the practice. 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 65 •S 3219 IS ‘‘(2) DEMONSTRATION.—In establishing an un- 1 lawful employment practice under paragraph (1) or 2 by any other method of proof, a complaining party— 3 ‘‘(A) may rely on any type or form of ad- 4 missible evidence and need only produce evi- 5 dence sufficient for a reasonable trier of fact to 6 find that an unlawful employment practice oc- 7 curred under this title; and 8 ‘‘(B) shall not be required to demonstrate 9 that genetic information or an activity protected 10 by section 207(f) was the sole cause of an em- 11 ployment practice.’’. 12 (c) CERTAIN RETALIATION CLAIMS.— 13 (1) AMERICANS WITH DISABILITIES ACT OF 14 1990.—Section 503(c) of the Americans with Disabil- 15 ities Act of 1990 (42 U.S.C. 12203(c)) is amend- 16 ed— 17 (A) by striking ‘‘The remedies’’ and insert- 18 ing the following: 19 ‘‘(1) IN GENERAL.—Except as provided in para- 20 graph (2), the remedies’’; and 21 (B) by adding at the end the following: 22 ‘‘(2) CERTAIN ANTIRETALIATION CLAIMS.—Sec- 23 tion 107(c) shall apply to claims under section 24 102(e)(1) with respect to title I.’’. 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 66 •S 3219 IS (2) AGE DISCRIMINATION IN EMPLOYMENT ACT 1 OF 1967.—Section 4(d) of the Age Discrimination in 2 Employment Act of 1967 (29 U.S.C. 623(d)) is 3 amended— 4 (A) by striking ‘‘(d) It shall be’’ and in- 5 serting ‘‘(d)(1) It shall be’’; and 6 (B) by adding at the end the following: 7 ‘‘(2) Section 7(b)(2) shall apply to claims under sec- 8 tion 4(g)(1).’’. 9 (3) GENETIC INFORMATION NONDISCRIMINA- 10 TION ACT OF 2008.—Section 207(f) of the Genetic 11 Information Nondiscrimination Act of 2008 (42 12 U.S.C. 2000ff–6(f)) is amended— 13 (A) by striking ‘‘No’’ and inserting the fol- 14 lowing: 15 ‘‘(1) IN GENERAL.—No’’; 16 (B) in the second sentence, by striking 17 ‘‘The remedies’’ and inserting ‘‘Except as pro- 18 vided in paragraph (2), the remedies’’; and 19 (C) by adding at the end the following: 20 ‘‘(2) CERTAIN RETALIATION CLAIMS.—Sub- 21 section (g) shall apply to claims under section 22 202(d)(1).’’. 23 (d) REMEDIES.— 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 67 •S 3219 IS (1) AMERICANS WITH DISABILITIES ACT OF 1 1990.—Section 107 of the Americans with Disabil- 2 ities Act of 1990 (42 U.S.C. 12117) is amended by 3 adding at the end the following: 4 ‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a 5 claim in which an individual proves a violation under sec- 6 tion 102(e)(1), and a respondent demonstrates that the 7 respondent would have taken the same action in the ab- 8 sence of the impermissible motivating factor, the court— 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 102(e)(1); and 14 ‘‘(2) shall not award damages or issue an order 15 requiring any admission, reinstatement, hiring, pro- 16 motion, or payment.’’. 17 (2) AGE DISCRIMINATION IN EMPLOYMENT ACT 18 OF 1967.—Section 7 of the Age Discrimination in 19 Employment Act of 1967 (29 U.S.C. 626) is amend- 20 ed— 21 (A) in subsection (b), as amended by sec- 22 tion 203(b)— 23 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00067 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 68 •S 3219 IS (i) in the second sentence, by striking 1 ‘‘In’’ and inserting ‘‘Subject to paragraph 2 (2), in’’; 3 (ii) in the third sentence, by striking 4 ‘‘Before’’ and inserting the following: 5 ‘‘(3) Before’’; and 6 (iii) by inserting before paragraph (3), 7 as designated by clause (ii), the following: 8 ‘‘(2) On a claim in which an individual proves a viola- 9 tion under section 4(g)(1), and a respondent demonstrates 10 that the respondent would have taken the same action in 11 the absence of the impermissible motivating factor, the 12 court— 13 ‘‘(A) may grant declaratory relief, injunctive re- 14 lief (except as provided in subparagraph (B)), and 15 attorney’s fees and costs demonstrated to be directly 16 attributable only to the pursuit of a claim under sec- 17 tion 4(g)(1); and 18 ‘‘(B) shall not award damages or issue an order 19 requiring any admission, reinstatement, hiring, pro- 20 motion, or payment.’’; and 21 (B) in subsection (c)— 22 (i) in paragraph (1), by striking 23 ‘‘Any’’ and inserting ‘‘Subject to sub- 24 section (b)(2), any’’; and 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00068 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 69 •S 3219 IS (ii) in paragraph (2), by striking ‘‘of 1 any issue of fact’’ and all that follows 2 through the period and inserting ‘‘under 3 the same circumstances as a trial by jury 4 is available under title VII of the Civil 5 Rights Act of 1964 (42 U.S.C. 2000e et 6 seq.).’’. 7 (3) GENETIC INFORMATION NONDISCRIMINA- 8 TION ACT OF 2008.—Section 207 of the Genetic In- 9 formation Nondiscrimination Act of 2008 (42 U.S.C. 10 2000ff–6) is amended— 11 (A) by redesignating subsection (g) as sub- 12 section (h); and 13 (B) by inserting after subsection (f) the 14 following: 15 ‘‘(g) MOTIVATING FACTOR.—On a claim in which an 16 individual proves a violation under section 202(e)(1), in- 17 cluding a claim involving an employee or applicant de- 18 scribed in any of subsections (a) through (e), and a re- 19 spondent demonstrates that the respondent would have 20 taken the same action in the absence of the impermissible 21 motivating factor, the court or the corresponding decision- 22 maker specified in subsections (a) through (e)— 23 ‘‘(1) may grant declaratory relief, injunctive re- 24 lief (except as provided in paragraph (2)), and attor- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 70 •S 3219 IS ney’s fees and costs demonstrated to be directly at- 1 tributable only to the pursuit of a claim under sec- 2 tion 202(d)(1); and 3 ‘‘(2) shall not award damages or issue an order 4 requiring any admission, reinstatement, hiring, pro- 5 motion, or payment.’’. 6 (e) FEDERAL EMPLOYEES.— 7 (1) TITLE VII OF THE CIVIL RIGHTS ACT OF 8 1964.—Section 717 of the Civil Rights Act of 1964 9 (42 U.S.C. 2000e–16) is amended by adding at the 10 end the following: 11 ‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 12 to mixed motive cases (involving practices described in sec- 13 tion 703(m)) under this section.’’. 14 (2) REHABILITATION ACT OF 1973.—The 15 amendment made by subsection (f) to section 501(f) 16 of the Rehabilitation Act of 1973 (29 U.S.C. 791(f)) 17 shall be construed to apply to all employees covered 18 by section 501 of that Act (29 U.S.C. 791). 19 (3) AGE DISCRIMINATION IN EMPLOYMENT ACT 20 OF 1967.—Section 15 of the Age Discrimination in 21 Employment Act of 1967 (29 U.S.C. 633a) is 22 amended— 23 (A) in subsection (a)— 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 71 •S 3219 IS (i) by striking ‘‘States) in’’ and insert- 1 ing ‘‘States) shall be made free from any 2 discrimination based on age, in—’’; 3 (ii) by striking ‘‘military depart- 4 ments’’ and inserting the following: 5 ‘‘(1) military departments’’; 6 (iii) by striking ‘‘Code, in executive 7 agencies’’ and inserting the following: 8 ‘‘Code; 9 ‘‘(2) executive agencies’’; 10 (iv) by striking ‘‘funds), in the United 11 States Postal’’ and inserting the following: 12 ‘‘funds); 13 ‘‘(3) the United States Postal’’; 14 (v) by striking ‘‘Commission, in those 15 units’’ and inserting the following: ‘‘Com- 16 mission; 17 ‘‘(4) those units’’; 18 (vi) by striking ‘‘competitive service, 19 and in those units’’ and inserting the fol- 20 lowing: ‘‘competitive service; 21 ‘‘(5) those units’’; 22 (vii) by striking ‘‘competitive service, 23 in the Smithsonian’’ and inserting ‘‘com- 24 petitive service; 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 72 •S 3219 IS ‘‘(6) the Smithsonian’’; 1 (viii) by striking ‘‘Institution, and in 2 the Government’’ and inserting ‘‘Institu- 3 tion; 4 ‘‘(7) the Government’’; 5 (ix) by striking ‘‘Printing Office, the 6 General’’ and inserting ‘‘Printing Office; 7 ‘‘(8) the General’’; 8 (x) by striking ‘‘Office, and the Li- 9 brary’’ and inserting ‘‘Office; and 10 ‘‘(9) the Library’’; and 11 (xi) by striking ‘‘of Congress’’ and all 12 that follows and inserting ‘‘of Congress.’’; 13 (B) in subsection (b), by striking the first, 14 second, third, fourth, and sixth sentences; 15 (C) in subsection (c), by striking ‘‘Any per- 16 son’’ and inserting ‘‘Notwithstanding any other 17 provision of this Act, any person’’; 18 (D) by striking subsection (g) and insert- 19 ing the following: 20 ‘‘(g) Except as otherwise provided in another sub- 21 section of this section, section 7, or section 9, the powers, 22 remedies, and procedures provided in section 717 of the 23 Civil Rights Act of 1964 (42 U.S.C. 2000e–16) to the 24 Commission, the Attorney General, the Librarian of Con- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00072 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 73 •S 3219 IS gress, or any person, alleging a violation of that section 1 shall be the powers, remedies, and procedures this Act 2 provides to the Commission, the Attorney General, the Li- 3 brarian of Congress, or any person, respectively, alleging 4 an unlawful employment practice in violation of subsection 5 (a) against an employee or applicant for employment de- 6 scribed in subsection (a).’’; and 7 (E) by adding at the end the following: 8 ‘‘(h) Section 4(g) shall apply to mixed motive claims 9 (involving practices described in section 4(g)(1)) under 10 this section.’’. 11 (f) ADDITIONAL AMENDMENTS TO THE REHABILITA- 12 TION ACT OF 1973.—Sections 501(f), 503(d), and 504(d) 13 of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 14 793(d), and 794(d)), are each amended by adding after 15 the words ‘‘title I of the Americans with Disabilities Act 16 of 1990 (42 U.S.C. 12111 et seq.)’’ the following: ‘‘, in- 17 cluding the standards of causation and methods of proof 18 applied under section 102(e) of that Act (42 U.S.C. 19 12112(e)),’’. 20 (g) OTHER GOVERNMENT EMPLOYEES.— 21 (1) CONGRESSIONAL ACCOUNTABILITY ACT OF 22 1995.—Section 201 of the Congressional Account- 23 ability Act of 1995 (2 U.S.C. 1311) is amended— 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00073 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 74 •S 3219 IS (A) in subsection (a)(2), by striking ‘‘sec- 1 tion 15 of the Age Discrimination in Employ- 2 ment Act of 1967 (29 U.S.C. 633a)’’ and in- 3 serting ‘‘sections 4(g) and 15 of the Age Dis- 4 crimination in Employment Act of 1967 (29 5 U.S.C. 623(g), 633a)’’; and 6 (B) in subsection (b)— 7 (i) in paragraph (2)(A), by striking 8 ‘‘section 15(c) of the Age Discrimination in 9 Employment Act of 1967 (29 U.S.C. 10 633a(c))’’ and inserting ‘‘section 4(d)(2), 11 paragraphs (1) and (2) of section 7(b), 12 and section 15(c) of the Age Discrimina- 13 tion in Employment Act of 1967 (29 14 U.S.C. 623(d)(2), 626(b), 633a(c))’’; and 15 (ii) in paragraph (3)(A), by striking 16 ‘‘section 107(a) of the Americans with Dis- 17 abilities Act of 1990 (42 U.S.C. 18 12117(a))’’ and inserting ‘‘subsections (a) 19 and (c) of section 107, and section 20 503(c)(2), of the Americans with Disabil- 21 ities Act of 1990 (42 U.S.C. 12117, 22 12203)’’. 23 (2) TITLE 3, UNITED STATES CODE.—Section 24 411 of title 3, United States Code, is amended— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 75 •S 3219 IS (A) in subsection (a)(2), by striking ‘‘sec- 1 tion 15 of the Age Discrimination in Employ- 2 ment Act of 1967’’ and inserting ‘‘sections 4(g) 3 and 15 of the Age Discrimination in Employ- 4 ment Act of 1967’’; and 5 (B) in subsection (b)— 6 (i) in paragraph (2)(A), by striking 7 ‘‘section 15(c) of the Age Discrimination in 8 Employment Act of 1967’’ and inserting 9 ‘‘section 4(d)(2), paragraphs (1) and (2) of 10 section 7(b), and section 15(c) of the Age 11 Discrimination in Employment Act of 12 1967’’; and 13 (ii) in paragraph (3)(A), by striking 14 ‘‘section 107(a) of the Americans with Dis- 15 abilities Act of 1990’’ and inserting ‘‘sub- 16 sections (a) and (c) of section 107, and 17 section 503(c)(2), of the Americans with 18 Disabilities Act of 1990’’. 19 (3) GOVERNMENT EMPLOYEE RIGHTS ACT OF 20 1991.—Section 302 of the Government Employee 21 Rights Act of 1991 (42 U.S.C. 2000e–16b) is 22 amended— 23 (A) in subsection (a)(2), by striking ‘‘sec- 24 tion 15 of the Age Discrimination in Employ- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 76 •S 3219 IS ment Act of 1967 (29 U.S.C. 633a)’’ and in- 1 serting ‘‘sections 4(g) and 15 of the Age Dis- 2 crimination in Employment Act of 1967 (29 3 U.S.C. 623(g), 633a)’’; and 4 (B) in subsection (b)— 5 (i) in paragraph (1), by inserting 6 ‘‘(and, in the case of a violation of sub- 7 section (a)(3), sections 107(c) and 8 503(c)(2) of the Americans with Disabil- 9 ities Act of 1990 (42 U.S.C. 12117(c), 10 12203(c)(2)))’’ before ‘‘, and’’; and 11 (ii) in paragraph (2), by striking ‘‘sec- 12 tion 15(c) of the Age Discrimination in 13 Employment Act of 1967 (29 U.S.C. 14 633a(c))’’ and inserting ‘‘section 4(d)(2), 15 paragraphs (1) and (2) of section 7(b), 16 and section 15(c) of the Age Discrimina- 17 tion in Employment Act of 1967 (29 18 U.S.C. 623(d)(2), 626(b), 633a(c))’’. 19 (h) APPLICATION.—This section, and the amend- 20 ments made by this section, shall apply to all claims pend- 21 ing on or after the date of enactment of this Act. 22 SEC. 206. SUPERVISOR LIABILITY. 23 (a) AMENDMENT TO TITLE VII OF THE CIVIL 24 RIGHTS ACT OF 1964.— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00076 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 77 •S 3219 IS (1) STANDARD FOR EMPLOYER LIABILITY FOR 1 HOSTILE WORK ENVIRONMENT.—Section 703 of the 2 Civil Rights Act of 1964 (42 U.S.C. 2000e–2), as 3 amended by 204(c)(1), is further amended by adding 4 at the end the following: 5 ‘‘(p) Subject to section 206(j) of the BE HEARD in 6 the Workplace Act, an employer shall be liable for the acts 7 of any individual whose harassment of an employee has 8 created or continued a hostile work environment that con- 9 stitutes an unlawful employment practice under this sec- 10 tion if, at the time of the harassment— 11 ‘‘(1) such individual was authorized by that em- 12 ployer— 13 ‘‘(A) to undertake or recommend tangible 14 employment actions affecting the employee; or 15 ‘‘(B) to direct the employee’s daily work 16 activities; or 17 ‘‘(2) the negligence of the employer led to the 18 creation or continuation of that hostile work environ- 19 ment.’’. 20 (2) STANDARD FOR EMPLOYER LIABILITY FOR 21 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec- 22 tion 704 of the Civil Rights Act of 1964 (42 U.S.C. 23 2000e–3), as amended by section 201(a)(3), is fur- 24 ther amended— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 78 •S 3219 IS (A) by redesignating subsection (b) as sub- 1 section (c); and 2 (B) by inserting after subsection (a) the 3 following: 4 ‘‘(b) Subject to section 206(j) of the BE HEARD in 5 the Workplace Act, an employer shall be liable for the acts 6 of any individual whose harassment of an employee has 7 created or continued a retaliatory hostile work environ- 8 ment that constitutes an unlawful employment practice as 9 described under subsection (a) if, at the time of the har- 10 assment— 11 ‘‘(1) such individual was authorized by that em- 12 ployer— 13 ‘‘(A) to undertake or recommend tangible 14 employment actions affecting the employee; or 15 ‘‘(B) to direct the employee’s daily work 16 activities; or 17 ‘‘(2) the negligence of the employer led to the 18 creation or continuation of that retaliatory hostile 19 work environment.’’. 20 (3) FEDERAL EMPLOYEES.—Section 717 of the 21 Civil Rights Act of 1964 (42 U.S.C. 2000e–16), as 22 amended by section 205(e)(1), is further amended 23 by adding at the end the following: 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00078 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 79 •S 3219 IS ‘‘(h) The provisions of sections 703(p) and 704(b) 1 shall apply to hostile work environment claims and retalia- 2 tory hostile work environment claims, respectively, under 3 this section.’’. 4 (b) AMENDMENT TO THE AGE DISCRIMINATION IN 5 EMPLOYMENT ACT OF 1967.— 6 (1) STANDARD FOR EMPLOYER LIABILITY FOR 7 HOSTILE WORK ENVIRONMENT.—Section 4 of the 8 Age Discrimination in Employment Act of 1967 (29 9 U.S.C. 623), as amended by section 204(c)(4), is 10 further amended by adding at the end the following: 11 ‘‘(o) 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 is 15 unlawful under this section if, at the time of the harass- 16 ment— 17 ‘‘(1) such individual was authorized by that 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00079 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 80 •S 3219 IS ‘‘(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 4(d)(1) of the Age Discrimination in Employ- 6 ment Act of 1967 (29 U.S.C. 623(d)(1)), as amend- 7 ed by section 205(c)(2), is further amended by strik- 8 ing ‘‘or litigation under this Act.’’ and inserting ‘‘or 9 litigation under this Act. Subject to section 206(j) of 10 the BE HEARD in the Workplace Act, an employer 11 shall be liable for the acts of any individual whose 12 harassment of an employee has created or continued 13 a retaliatory hostile work environment that is unlaw- 14 ful under this subsection if, at the time of the har- 15 assment— 16 ‘‘(A) such individual was authorized by 17 that 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00080 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 81 •S 3219 IS ‘‘(B) the negligence of the employer led to 1 the creation or continuation of that retaliatory 2 hostile work environment.’’. 3 (3) FEDERAL EMPLOYEES.—Section 15 of the 4 Age Discrimination in Employment Act of 1967 (29 5 U.S.C. 633a), as amended by section 205(e)(3), is 6 further amended by adding at the end the following: 7 ‘‘(i) Subsections (d) and (o) of section 4 shall apply 8 to retaliatory hostile work environment claims and hostile 9 work environment claims, respectively, under this sec- 10 tion.’’. 11 (c) AMENDMENT TO THE AMERICANS WITH DISABIL- 12 ITIES ACT OF 1990.— 13 (1) STANDARD FOR EMPLOYER LIABILITY FOR 14 HOSTILE WORK ENVIRONMENT.—Section 102 of the 15 Americans with Disabilities Act of 1990 (42 U.S.C. 16 12112), as amended by section 205(b)(2), is further 17 amended by adding at the end the following: 18 ‘‘(f) Subject to section 206(j) of the BE HEARD in 19 the Workplace Act, an employer shall be liable for the acts 20 of any individual whose harassment of an employee has 21 created or continued a hostile work environment that con- 22 stitutes discrimination against a qualified individual on 23 the basis of disability under this section if, at the time 24 of the harassment— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00081 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 82 •S 3219 IS ‘‘(1) such individual was authorized by the em- 1 ployer— 2 ‘‘(A) to undertake or recommend tangible 3 employment actions affecting the qualified indi- 4 vidual; or 5 ‘‘(B) to direct the qualified individual’s 6 daily work activities; or 7 ‘‘(2) the negligence of the employer led to the 8 creation or continuation of that hostile work environ- 9 ment.’’. 10 (2) STANDARD FOR EMPLOYER LIABILITY FOR 11 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec- 12 tion 503 of the Americans with Disabilities Act of 13 1990 (42 U.S.C. 12203) is amended— 14 (A) by redesignating subsection (c) as sub- 15 section (d); 16 (B) by inserting after subsection (b) the 17 following: 18 ‘‘(c) Subject to section 206(j) of the BE HEARD in 19 the Workplace Act, an employer shall be liable for the acts 20 of any individual whose harassment of an employee has 21 created or continued a retaliatory hostile work environ- 22 ment that constitutes retaliatory discrimination, as de- 23 scribed in subsection (a), or the carrying out of any unlaw- 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00082 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 83 •S 3219 IS ful acts described in subsection (b), if, at the time of the 1 harassment— 2 ‘‘(1) such individual was authorized by the em- 3 ployer— 4 ‘‘(A) to undertake or recommend tangible 5 employment actions affecting the employee; or 6 ‘‘(B) to direct the employee’s daily work 7 activities; or 8 ‘‘(2) the negligence of the employer led to the 9 creation or continuation of that retaliatory hostile 10 work environment.’’; and 11 (C) in subsection (d), as redesignated by 12 subparagraph (A), by striking ‘‘subsections (a) 13 and (b)’’ and inserting ‘‘subsections (a), (b), 14 and (c)’’. 15 (d) AMENDMENT TO THE REHABILITATION ACT OF 16 1973.— 17 (1) STANDARD FOR EMPLOYER LIABILITY FOR 18 HOSTILE WORK ENVIRONMENT AND RETALIATORY 19 HOSTILE WORK ENVIRONMENT.—Section 501 of the 20 Rehabilitation Act of 1973 (29 U.S.C. 791) is 21 amended by adding at the end the following: 22 ‘‘(h) Subject to section 206(j) of the BE HEARD in 23 the Workplace Act, each department, agency, and instru- 24 mentality in the executive branch of Government and the 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00083 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 84 •S 3219 IS Smithsonian Institution shall be liable for the acts of any 1 individual within such department, agency, instrumen- 2 tality, or the Smithsonian Institution whose harassment 3 of an individual with a disability has created or continued 4 a hostile work environment, or a retaliatory hostile work 5 environment, that constitutes nonaffirmative action em- 6 ployment discrimination under this section if, at the time 7 of the harassment— 8 ‘‘(1) such individual was authorized by that de- 9 partment, agency, instrumentality, or the Smithso- 10 nian Institution— 11 ‘‘(A) to undertake or recommend tangible 12 employment actions affecting the individual 13 with a disability; or 14 ‘‘(B) to direct the daily work activities of 15 the individual with a disability; or 16 ‘‘(2) the negligence of that department, agency, 17 instrumentality, or the Smithsonian Institution led 18 to the creation or continuation of that hostile work 19 environment or retaliatory hostile work environ- 20 ment.’’. 21 (2) STANDARD FOR EMPLOYER LIABILITY FOR 22 HOSTILE WORK ENVIRONMENT AND RETALIATORY 23 HOSTILE WORK ENVIRONMENT.—Section 504 of the 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00084 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 85 •S 3219 IS Rehabilitation Act of 1973 (29 U.S.C. 794) is 1 amended by adding at the end the following: 2 ‘‘(e) Subject to section 206(j) of the BE HEARD in 3 the Workplace Act, an employer described under sub- 4 section (b) shall be liable for the acts of any individual 5 whose harassment of a qualified individual with a dis- 6 ability has created or continued a hostile work environ- 7 ment, or a retaliatory hostile work environment, that con- 8 stitutes employment discrimination under this section if, 9 at the time of the harassment— 10 ‘‘(1) such individual was authorized by such 11 employer— 12 ‘‘(A) to undertake or recommend tangible 13 employment actions affecting the qualified indi- 14 vidual with a disability; or 15 ‘‘(B) to direct the daily work activities of 16 the qualified individual with a disability; or 17 ‘‘(2) the negligence of such employer led to the 18 creation or continuation of that hostile work environ- 19 ment or retaliatory hostile work environment.’’. 20 (3) REMEDIES.—Section 505 of the Rehabilita- 21 tion Act of 1973 (29 U.S.C. 794a) is amended by 22 adding at the end of subsection (a) the following: 23 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00085 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 86 •S 3219 IS ‘‘(3) Sections 501(h) and 504(e) shall apply to 1 hostile work environment claims and retaliatory hos- 2 tile work environment claims under this section.’’. 3 (e) AMENDMENT TO SECTION 1977 OF THE REVISED 4 STATUTES.—Section 1977 of the Revised Statutes (42 5 U.S.C. 1981) is amended by adding at the end the fol- 6 lowing: 7 ‘‘(d) Subject to section 206(j) of the BE HEARD in 8 the Workplace Act, a nongovernmental employer shall be 9 liable for the acts of any individual whose harassment of 10 an employee has created a hostile work environment or 11 a retaliatory hostile work environment, constituting an un- 12 lawful employment practice, if, at the time of the harass- 13 ment— 14 ‘‘(1) such individual was authorized by the em- 15 ployer— 16 ‘‘(A) to undertake or recommend tangible 17 employment actions affecting the employee; or 18 ‘‘(B) to direct the employee’s daily work 19 activities; or 20 ‘‘(2) the negligence of the employer led to the 21 creation or continuation of that hostile work environ- 22 ment or retaliatory hostile work environment.’’. 23 (f) AMENDMENT TO THE GENETIC INFORMATION 24 NONDISCRIMINATION ACT OF 2008.— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00086 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 87 •S 3219 IS (1) STANDARD FOR EMPLOYER LIABILITY FOR 1 HOSTILE WORK ENVIRONMENT.—Section 202 of the 2 Genetic Information Nondiscrimination Act of 2008 3 (42 U.S.C. 2000ff–1), as amended by sections 4 204(c)(5) and 205(b)(4), is further amended by add- 5 ing at the end the following: 6 ‘‘(f) Subject to section 206(j) of the BE HEARD in 7 the Workplace Act, an employer shall be liable for the acts 8 of any individual whose harassment of an employee has 9 created or continued a hostile work environment that con- 10 stitutes an unlawful employment practice under this sec- 11 tion if, at the time of the harassment— 12 ‘‘(1) such individual was authorized by the em- 13 ployer— 14 ‘‘(A) to undertake or recommend tangible 15 employment actions affecting the employee; or 16 ‘‘(B) to direct the employee’s daily work 17 activities; or 18 ‘‘(2) the negligence of the employer led to the 19 creation or continuation of that hostile work environ- 20 ment.’’. 21 (2) STANDARD FOR EMPLOYER LIABILITY FOR 22 RETALIATORY HOSTILE WORK ENVIRONMENT.—Sec- 23 tion 207(f)(1) of the Genetic Information Non- 24 discrimination Act (42 U.S.C. 2000ff–6(f)(1)), as 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 88 •S 3219 IS amended by section 205(c)(2), is further amended 1 by striking ‘‘violations of this subsection.’’ and in- 2 serting ‘‘violations of this subsection. Subject to sec- 3 tion 206(j) of the BE HEARD in the Workplace 4 Act, an employer shall be liable for the acts of any 5 individual whose harassment of an employee has cre- 6 ated or continued a retaliatory hostile work environ- 7 ment that constitutes discrimination under this sub- 8 section if, at the time of the harassment— 9 ‘‘(A) such individual was authorized by the 10 employer— 11 ‘‘(i) to undertake or recommend tan- 12 gible employment actions affecting the em- 13 ployee; or 14 ‘‘(ii) to direct the employee’s daily 15 work activities; or 16 ‘‘(B) the negligence of the employer led to 17 the creation or continuation of that retaliatory 18 hostile work environment.’’. 19 (g) AMENDMENT TO THE GOVERNMENT EMPLOYEE 20 RIGHTS ACT OF 1991.—Section 302 of the Government 21 Employee Rights Act of 1991 (42 U.S.C. 2000e–16b) is 22 amended by adding at the end the following: 23 ‘‘(c) Subject to section 206(j) of the BE HEARD in 24 the Workplace Act, an employer of an individual described 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00088 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 89 •S 3219 IS under section 304(a) shall be liable for the acts of any 1 individual whose harassment of a State employee de- 2 scribed in section 304 has created or continued a hostile 3 work environment or a retaliatory hostile work environ- 4 ment constituting discrimination under this section, if at 5 the time of the harassment— 6 ‘‘(1) such individual was authorized by such 7 employer— 8 ‘‘(A) to undertake or recommend tangible 9 employment actions affecting the employee; or 10 ‘‘(B) to direct the employee’s daily work 11 activities; or 12 ‘‘(2) the negligence of the employer led to the 13 creation or continuation of that hostile work environ- 14 ment or retaliatory hostile work environment.’’. 15 (h) AMENDMENT TO TITLE 3, UNITED STATES 16 CODE.—Section 411 of title 3, United States Code, is 17 amended— 18 (1) by redesignating subsections (c) through (f) 19 as subsections (d) through (g), respectively; 20 (2) by inserting after subsection (b) the fol- 21 lowing: 22 ‘‘(c) LIABILITY OF EMPLOYING OFFICE.—Subject to 23 section 206(j) of the BE HEARD in the Workplace Act, 24 an employing office shall be liable for the acts of any indi- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00089 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 90 •S 3219 IS vidual whose harassment of a covered employee has cre- 1 ated or continued a hostile work environment or a retalia- 2 tory hostile work environment constituting discrimination 3 under this section if, at the time of the harassment— 4 ‘‘(1) such individual was authorized by the em- 5 ploying office— 6 ‘‘(A) to undertake or recommend tangible 7 employment actions affecting the covered em- 8 ployee; or 9 ‘‘(B) to direct the covered employee’s daily 10 work activities; or 11 ‘‘(2) the negligence of the employing office led 12 to the creation or continuation of that hostile work 13 environment or retaliatory hostile work environ- 14 ment.’’; and 15 (3) in subsection (f), as redesignated by para- 16 graph (1), by striking ‘‘subsections (a) through (c)’’ 17 and inserting ‘‘subsections (a) through (d).’’. 18 (i) AMENDMENT TO THE CONGRESSIONAL ACCOUNT- 19 ABILITY ACT OF 1995.—Section 201 of the Congressional 20 Accountability Act of 1995 (2 U.S.C. 1311) is amended— 21 (1) by striking subsection (e); and 22 (2) by adding at the end the following: 23 ‘‘(e) OUTSIDE INDIVIDUALS.—Subject to section 24 206(j) of the BE HEARD in the Workplace Act, an em- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00090 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 91 •S 3219 IS ploying office shall be liable for the acts of any individual 1 whose harassment of a covered employee has created or 2 continued a hostile work environment or a retaliatory hos- 3 tile work environment that constitutes discrimination 4 under this section if, at the time of the harassment— 5 ‘‘(1) such individual was authorized by the em- 6 ploying office— 7 ‘‘(A) to undertake or recommend tangible 8 employment actions affecting the covered em- 9 ployee; or 10 ‘‘(B) to direct the covered employee’s daily 11 work activities; or 12 ‘‘(2) the negligence of the employing office led 13 to the creation or continuation of that hostile work 14 environment or retaliatory hostile work environ- 15 ment.’’. 16 (j) RULE OF CONSTRUCTION.—Nothing in this sec- 17 tion shall be construed to limit the availability of, or access 18 to, defenses available under the law. 19 (k) APPLICATION.—This section, and the amend- 20 ments made by this section, shall apply to all claims pend- 21 ing on or after the date of enactment of this Act. 22 SEC. 207. EXTENDING THE STATUTES OF LIMITATIONS. 23 (a) CIVIL RIGHTS ACT OF 1964; AMERICANS WITH 24 DISABILITIES ACT OF 1990; GENETIC INFORMATION 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00091 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 92 •S 3219 IS NONDISCRIMINATION ACT OF 2008.—Section 706 of the 1 Civil Rights Act of 1964 (42 U.S.C. 2000e–5) is amend- 2 ed— 3 (1) in subsection (e)— 4 (A) in paragraph (1)— 5 (i) by striking ‘‘one hundred and 6 eighty days after the alleged unlawful em- 7 ployment practice occurred’’ and inserting 8 ‘‘4 years after the alleged unlawful employ- 9 ment practice occurred.’’; and 10 (ii) by striking ‘‘three hundred days 11 after the alleged unlawful employment 12 practice occurred’’ and inserting ‘‘4 years 13 and 120 days after the alleged unlawful 14 employment practice occurred.’’; and 15 (B) in paragraph (3)(B), by striking ‘‘two 16 years preceding the filing of the charge’’ and all 17 that follows and inserting ‘‘4 years and 120 18 days preceding the filing of the charge.’’; and 19 (2) in subsection (g)(1), by striking ‘‘two years 20 prior to the filing of a charge’’ and inserting ‘‘4 21 years and 120 days preceding the filing of the 22 charge’’. 23 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00092 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 93 •S 3219 IS (b) AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1 1967.—Section 7(d) of the Age Discrimination in Employ- 2 ment Act of 1967 (29 U.S.C. 626(d)) is amended— 3 (1) in the second sentence, by redesignating 4 paragraphs (1) and (2) as subparagraphs (A) and 5 (B), respectively; 6 (2) by striking ‘‘(d)’’ and all that follows 7 through ‘‘No’’ and inserting ‘‘(d)(1) No’’; and 8 (3) in paragraph (1), as designated by para- 9 graph (2) of this subsection— 10 (A) by striking ‘‘Secretary. Such’’ and in- 11 serting ‘‘Secretary, and such’’; 12 (B) in subparagraph (A), by striking ‘‘180 13 days after the alleged unlawful practice oc- 14 curred’’ and inserting ‘‘4 years after the alleged 15 unlawful practice occurred’’; and 16 (C) in subparagraph (B), by striking ‘‘300 17 days after the alleged unlawful practice oc- 18 curred’’ and inserting ‘‘4 years and 120 days 19 after the alleged unlawful practice occurred’’. 20 SEC. 208. EXTENDING THE TIME LIMITATIONS ON FEDERAL 21 EMPLOYEES FILING A COMPLAINT. 22 (a) IN GENERAL.—The Equal Employment Oppor- 23 tunity Commission (referred to in this section as ‘‘the 24 Commission’’) shall ensure that a covered Federal em- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00093 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 94 •S 3219 IS ployee shall not be required to take any action necessary 1 to bring a complaint to the department, agency, unit, or 2 instrumentality involved prior to 4 years from the date of 3 the matter alleged to be discriminatory or, in the case of 4 personnel action, 4 years from the effective date of the 5 personnel action. 6 (b) COVERED EMPLOYEES AND COMPLAINTS.—In 7 this section, the term ‘‘covered Federal employee’’ 8 means— 9 (1) an employee or applicant to whom section 10 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 11 2000e–16(a)) applies, in the case of a complaint 12 brought under section 717 of that Act (42 U.S.C. 13 2000e–16); 14 (2) an employee or applicant to whom section 15 15(a) of the Age Discrimination in Employment Act 16 of 1967 (29 U.S.C. 633a(a)) applies, in the case of 17 a complaint brought under section 15 of that Act 18 (29 U.S.C. 633a); 19 (3) an employee or applicant to whom section 20 501 of the Rehabilitation Act of 1973 (29 U.S.C. 21 791) applies, in the case of a complaint brought to 22 enforce that section under section 505 of that Act 23 (29 U.S.C. 794a); and 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00094 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 95 •S 3219 IS (4) an employee or applicant described in sec- 1 tion 201(2)(A)(v) of the Genetic Information Non- 2 discrimination Act of 2008 (42 U.S.C. 3 2000ff(2)(A)(v)), in the case of a complaint brought 4 to enforce title II of that Act (42 U.S.C. 2000ff et 5 seq.) under section 207(e) of that Act (42 U.S.C. 6 2000ff–6(e)). 7 TITLE III—BROADENING PRO- 8 TECTIONS AND ENSURING 9 TRANSPARENCY 10 SEC. 301. INDEPENDENT CONTRACTORS, INTERNS, FEL- 11 LOWS, VOLUNTEERS, AND TRAINEES. 12 (a) COVERED EMPLOYER OR ENTITY.—All protec- 13 tions afforded to an employee or individual under a provi- 14 sion that consists of title VII of the Civil Rights Act of 15 1964 (42 U.S.C. 2000e et seq.), the Government Em- 16 ployee Rights Act of 1991 (42 U.S.C. 2000e–16a et seq.), 17 the Congressional Accountability Act of 1995 (2 U.S.C. 18 1301 et seq.), subchapter II of chapter 5 of title 3, United 19 States Code, the Age Discrimination in Employment Act 20 of 1967 (29 U.S.C. 621 et seq.), title I and section 503 21 (for violations with respect to that title) of the Americans 22 with Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 23 12203), sections 501 and 505 of the Rehabilitation Act 24 of 1973 (29 U.S.C. 791, 794a), section 6(d) of the Fair 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00095 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 96 •S 3219 IS Labor Standards Act of 1938 (commonly known as the 1 ‘‘Equal Pay Act of 1963’’) (29 U.S.C. 206(d)), title II 2 of the Genetic Information Nondiscrimination Act of 2008 3 (42 U.S.C. 2000ff et seq.), and section 4311 of title 38, 4 United States Code, shall be afforded, in the same manner 5 and to the same extent, to— 6 (1) an individual who is engaged by an em- 7 ployer or entity covered by that provision (referred 8 to in this subsection as a ‘‘covered employer or enti- 9 ty’’) as an independent contractor (regardless of 10 business structure, including organization as a legal 11 or commercial entity) or as an intern, fellow, volun- 12 teer, or trainee, whether or not the individual re- 13 ceives compensation, academic credit, or other remu- 14 neration from the covered employer or entity; or 15 (2) an individual who applies or seeks to be- 16 come such an independent contractor (regardless of 17 business structure, including organization as a legal 18 or commercial entity), intern, fellow, volunteer, or 19 trainee, for the covered employer or entity. 20 (b) COVERED ESTABLISHMENTS.— 21 (1) DEFINITION.—In this subsection, the term 22 ‘‘covered establishment’’ means an individual or enti- 23 ty that— 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 97 •S 3219 IS (A) is not acting as an employer or entity 1 covered by a provision specified in subsection 2 (a); and 3 (B) engages the services (including solic- 4 iting such services) of an independent con- 5 tractor (regardless of business structure, includ- 6 ing organization as a legal or commercial enti- 7 ty), intern, fellow, volunteer, or trainee by 8 means of an instrument of transportation or 9 communication in interstate commerce, or 10 through an arrangement that involves the use 11 of such an instrument to carry out or be con- 12 veyed to carry out those services. 13 (2) PROTECTIONS.—All protections afforded to 14 an employee or individual under a provision that 15 consists of title VII of the Civil Rights Act of 1964, 16 the Age Discrimination in Employment Act of 1967, 17 title I and section 503 (for violations with respect to 18 that title) of the Americans with Disabilities Act of 19 1990, section 6(d) of the Fair Labor Standards Act 20 of 1938, title II of the Genetic Information Non- 21 discrimination Act of 2008, and section 4311 of title 22 38, United States Code, shall be afforded, in the 23 same manner and to the same extent that the provi- 24 sion covers an individual described in section 701(f) 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00097 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 98 •S 3219 IS of the Civil Rights Act of 1964 (42 U.S.C. 1 2000e(f)), to— 2 (A) an individual who is engaged by a cov- 3 ered establishment as an independent con- 4 tractor (regardless of business structure, includ- 5 ing organization as a legal or commercial enti- 6 ty) or as an intern, fellow, volunteer, or trainee, 7 whether or not the individual receives com- 8 pensation, academic credit, or other remunera- 9 tion from the covered establishment; or 10 (B) an individual who applies or seeks to 11 become such an independent contractor (regard- 12 less of business structure, including organiza- 13 tion as a legal or commercial entity), intern, fel- 14 low, volunteer, or trainee, for the covered estab- 15 lishment. 16 (c) DOMESTIC SERVICE.—For purposes of the provi- 17 sions listed in subsection (a) and the provisions of this 18 Act, an individual or entity who engages the services (by 19 means of an instrument of transportation or communica- 20 tion in interstate commerce, or through an arrangement 21 that involves the use of such an instrument to carry out 22 or be conveyed to carry out those services) of a person 23 in domestic service in a household, as an employee, or as 24 an independent contractor, intern, fellow, volunteer, or 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00098 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 99 •S 3219 IS trainee, referred to in subsection (a) or (b) shall be consid- 1 ered to be engaged in interstate commerce. 2 (d) RULE OF CONSTRUCTION.—Nothing in this sec- 3 tion shall be construed to limit the individuals protected 4 under any provision described in subsection (a). 5 (e) INTERSTATE COMMERCE.—In this section, the 6 term ‘‘interstate commerce’’ means Commerce (as defined 7 in section 3 of the Fair Labor Standards Act of 1938 (29 8 U.S.C. 203)) among the several States. 9 SEC. 302. NONDISCLOSURE AGREEMENTS. 10 (a) DEFINITIONS.—In this section: 11 (1) COMMISSION.—The term ‘‘Commission’’ 12 means the Equal Employment Opportunity Commis- 13 sion. 14 (2) COVERED ESTABLISHMENT.—The term 15 ‘‘covered establishment’’ has the meaning given the 16 term in section 301. 17 (3) COVERED INDIVIDUAL.—The term ‘‘covered 18 individual’’ means— 19 (A) in the case of an individual required to 20 be afforded protections under section 301(a)— 21 (i) an individual required to be af- 22 forded those protections by an employer 23 described in paragraph (5)(A); 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00099 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 100 •S 3219 IS (ii) an individual required to be af- 1 forded those protections by an employer 2 described in paragraph (5)(B); 3 (iii) an individual required to be af- 4 forded those protections by an employer 5 described in paragraph (5)(C); 6 (iv) an individual required to be af- 7 forded those protections by an employer 8 described in paragraph (5)(D); or 9 (v) an individual required to be af- 10 forded those protections by an employer 11 described in paragraph (5)(E); and 12 (B) in the case of an individual required to 13 be afforded protections under section 301(b) by 14 a covered establishment, that individual. 15 (4) EMPLOYEE.—The term ‘‘employee’’ 16 means— 17 (A) an employee (including an applicant), 18 as defined in section 701(f) of the Civil Rights 19 Act of 1964 (42 U.S.C. 2000e(f)); 20 (B) a State employee (including an appli- 21 cant) described in section 304(a) of the Govern- 22 ment Employee Rights Act of 1991 (42 U.S.C. 23 2000e–16c(a)); 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00100 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 101 •S 3219 IS (C) a covered employee (including an appli- 1 cant), as defined in section 101 of the Congres- 2 sional Accountability Act of 1995 (2 U.S.C. 3 1301), including an individual treated as a cov- 4 ered employee under that section; 5 (D) a covered employee (including an ap- 6 plicant), as defined in section 411(c) of title 3, 7 United States Code; or 8 (E) an employee or applicant to which sec- 9 tion 717(a) of the Civil Rights Act of 1964 (42 10 U.S.C. 2000e–16(a)) applies. 11 (5) EMPLOYER.—The term ‘‘employer’’ 12 means— 13 (A) an employer (as defined in section 14 701(b) of the Civil Rights Act of 1964 (42 15 U.S.C. 2000e(b))); 16 (B) an entity employing a State employee 17 described in section 304(a) of the Government 18 Employee Rights Act of 1991; 19 (C) an employing office, as defined in sec- 20 tion 101(a) of the Congressional Accountability 21 Act of 1995 (2 U.S.C. 1301(a)); 22 (D) an employing office, as defined in sec- 23 tion 411(c) of title 3, United States Code; or 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00101 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 102 •S 3219 IS (E) an entity to which section 717(a) of 1 the Civil Rights Act of 1964 applies. 2 (6) NONDISCLOSURE CLAUSE.—The term ‘‘non- 3 disclosure clause’’ means a provision in a contract or 4 agreement establishing that each party to the con- 5 tract or agreement agrees not to disclose informa- 6 tion covered by the terms and conditions of the con- 7 tract or agreement. 8 (7) NONDISPARAGEMENT CLAUSE.—The term 9 ‘‘nondisparagement clause’’ means a provision in a 10 contract or agreement requiring one or more parties 11 to the contract or agreement not to make negative 12 statements about another such party. 13 (8) WORKER.—The term ‘‘worker’’ means an 14 employee or a covered individual. 15 (b) UNLAWFUL PRACTICES.— 16 (1) NONDISPARAGEMENT AND NONDISCLOSURE 17 CLAUSES.—Subject to paragraph (3), it shall be an 18 unlawful practice for an employer to enter into a 19 contract or agreement with a worker, or for a cov- 20 ered establishment to enter into a contract or agree- 21 ment with a covered individual, as a condition of em- 22 ployment or contracting, promotion, compensation, 23 benefits, or change in employment status or contrac- 24 tual relationship, or as a term, condition, or privilege 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00102 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 103 •S 3219 IS of employment or contracting, if that contract or 1 agreement contains a nondisparagement clause or 2 nondisclosure clause that covers prohibited discrimi- 3 nation or harassment in employment or contracting, 4 or retaliation for reporting, resisting, opposing, or 5 assisting in the investigation of such discrimination 6 or harassment. 7 (2) PROHIBITION ON ENFORCEMENT.—Subject 8 to paragraph (3) but notwithstanding any other pro- 9 vision of law, it shall be an unlawful practice for an 10 employer or covered establishment to enforce or at- 11 tempt to enforce a nondisparagement clause or non- 12 disclosure clause that covers prohibited discrimina- 13 tion or harassment in employment or contracting, or 14 retaliation for reporting, resisting, opposing, or as- 15 sisting in the investigation of such discrimination or 16 harassment. An employer or covered establishment 17 that enforces or attempts to enforce such a non- 18 disparagement clause or such a nondisclosure clause 19 against a worker shall be liable for the reasonable 20 attorney’s fees and costs of the worker. 21 (3) SETTLEMENT OR SEPARATION AGREE- 22 MENTS.— 23 (A) IN GENERAL.—The provisions of para- 24 graphs (1) and (2) do not apply to a nondispar- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00103 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 104 •S 3219 IS agement clause or nondisclosure clause con- 1 tained in a settlement agreement or separation 2 agreement that resolves legal claims or disputes 3 if— 4 (i) such legal claims accrued or such 5 disputes arose before the settlement agree- 6 ment or separation agreement was exe- 7 cuted; 8 (ii) the clause involved is mutually 9 agreed upon by and mutually benefits 10 both— 11 (I) the employer or covered es- 12 tablishment, as the case may be; and 13 (II) the worker; 14 (iii) the worker’s agreement to such 15 clause is knowing and voluntary, as de- 16 scribed in subparagraph (C); and 17 (iv) the settlement agreement or sepa- 18 ration agreement expressly states that the 19 agreement involved does not prohibit, pre- 20 vent, or otherwise restrict a worker from— 21 (I) filing a complaint with the 22 Commission, any other Federal, State, 23 or local agency with the authority to 24 enforce laws (including regulations) 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00104 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 105 •S 3219 IS that prohibit discrimination or harass- 1 ment in employment or contracting, 2 as the case may be, or law enforce- 3 ment; 4 (II) testifying at, assisting, or 5 participating in an investigation or 6 proceeding conducted by the Commis- 7 sion, any other Federal, State, or local 8 agency with the authority to enforce 9 laws (including regulations) that pro- 10 hibit discrimination or harassment in 11 employment or contracting, as the 12 case may be, or law enforcement; or 13 (III) testifying in a hearing or 14 trial or complying with a request for 15 discovery in relation to civil litigation. 16 (B) PROHIBITION ON SOLE BENEFIT.—For 17 purposes of this paragraph, it shall be an un- 18 lawful practice for an employer or covered es- 19 tablishment to unilaterally include a nondispar- 20 agement clause or nondisclosure clause that 21 solely benefits the employer or covered estab- 22 lishment in a separation or settlement agree- 23 ment. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00105 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 106 •S 3219 IS (C) KNOWING AND VOLUNTARY AGREE- 1 MENT.—For purposes of this paragraph, agree- 2 ment to a nondisparagement clause or non- 3 disclosure clause may not be considered know- 4 ing and voluntary unless at a minimum— 5 (i) the nondisparagement clause or 6 nondisclosure clause is written in a manner 7 designed to ensure that the worker under- 8 stands the content of the clause involved; 9 (ii) the nondisparagement clause or 10 nondisclosure clause is included only in ex- 11 change for consideration of value provided 12 to the worker, in addition to anything of 13 value to which the worker is already enti- 14 tled; 15 (iii) the nondisparagement clause or 16 nondisclosure clause does not apply to any 17 rights or claims that arise after the date 18 the settlement or separation agreement is 19 executed; 20 (iv) the worker is advised in writing to 21 consult with an attorney prior to agreeing 22 to such an agreement that includes a non- 23 disparagement clause or nondisclosure 24 clause; 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00106 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 107 •S 3219 IS (v) the worker is given a period of at 1 least 21 days to consider any proposal for 2 a settlement or separation agreement that 3 includes a nondisparagement clause or 4 nondisclosure clause; and 5 (vi) the settlement or separation 6 agreement provides that for a period of at 7 least 7 days following the execution of such 8 agreement the worker may revoke the 9 agreement, and the agreement shall not be- 10 come effective or enforceable until the rev- 11 ocation period has expired. 12 (D) BURDEN OF PROOF.—In any dispute 13 that may arise over whether any of the require- 14 ments of subparagraph (A) have been met, the 15 party asserting the validity of an agreement 16 shall have the burden of proving that the re- 17 quirements of subparagraph (A) have been met. 18 (E) PARTICIPATION IN INVESTIGATIONS OR 19 PROCEEDINGS.—No nondisparagement clause 20 or nondisclosure clause may affect the ability of 21 a worker to testify at, assist, or participate in 22 an investigation or proceeding conducted by the 23 Commission, any Federal, State, or local agency 24 with the authority to enforce laws (including 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00107 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 108 •S 3219 IS regulations) that prohibit discrimination in em- 1 ployment or contracting, as the case may be, or 2 a law enforcement agency. 3 (F) PROHIBITION ON DAMAGES.—Under 4 no circumstances shall a worker be required to 5 pay damages for breach of a nondisparagement 6 clause or nondisclosure clause permitted by this 7 paragraph in excess of an amount equal to the 8 consideration of value provided to the worker in 9 exchange for the workers’ agreement to the 10 nondisparagement clause or nondisclosure 11 clause. 12 (c) ENFORCEMENT AGAINST EMPLOYERS.— 13 (1) ENFORCEMENT POWERS.—With respect to 14 the administration and enforcement of this section 15 in the case of a claim alleged by a worker against 16 an employer for a violation of this section— 17 (A) the Commission shall have the same 18 powers as the Commission has to administer 19 and enforce— 20 (i) title VII of the Civil Rights Act of 21 1964 (42 U.S.C. 2000e et seq.); or 22 (ii) sections 302 and 304 of the Gov- 23 ernment Employee Rights Act of 1991 (42 24 U.S.C. 2000e–16b and 2000e–16c), 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00108 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 109 •S 3219 IS in the case of a claim alleged by an employee 1 of the employer for a violation of such title, or 2 of section 302(a)(1) of the Government Em- 3 ployee Rights Act of 1991 (42 U.S.C. 2000e– 4 16b(a)(1)), respectively; 5 (B) the Librarian of Congress shall have 6 the same powers as the Librarian of Congress 7 has to administer and enforce title VII of the 8 Civil Rights Act of 1964 (42 U.S.C. 2000e et 9 seq.) in the case of a claim alleged by an em- 10 ployee of the employer for a violation of such 11 title; 12 (C) the Board (as defined in section 13 101(a) of the Congressional Accountability Act 14 of 1995 (2 U.S.C. 1301(a))) shall have the 15 same powers as the Board has to administer 16 and enforce the Congressional Accountability 17 Act of 1995 (2 U.S.C. 1301 et seq.) in the case 18 of a claim alleged by an employee of the em- 19 ployer for a violation of section 201(a)(1) of 20 such Act (2 U.S.C. 1311(a)(1)); 21 (D) the Attorney General shall have the 22 same powers as the Attorney General has to ad- 23 minister and enforce— 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00109 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 110 •S 3219 IS (i) title VII of the Civil Rights Act of 1 1964 (42 U.S.C. 2000e et seq.); or 2 (ii) sections 302 and 304 of the Gov- 3 ernment Employee Rights Act of 1991 (42 4 U.S.C. 2000e–16b and 2000e–16c), 5 in the case of a claim alleged by an employee 6 of the employer for a violation of such title, or 7 of section 302(a)(1) of the Government Em- 8 ployee Rights Act of 1991 (42 U.S.C. 2000e– 9 16b(a)(1)), respectively; 10 (E) the President, the Commission, and 11 the Merit Systems Protection Board shall have 12 the same powers as the President, the Commis- 13 sion, and the Board, respectively, have to ad- 14 minister and enforce chapter 5 of title 3, 15 United States Code, in the case of a claim al- 16 leged by an employee of the employer for a vio- 17 lation of section 411 of such title; and 18 (F) a court of the United States shall have 19 the same jurisdiction and powers as the court 20 has to enforce— 21 (i) title VII of the Civil Rights Act of 22 1964 (42 U.S.C. 2000e et seq.) in the case 23 of a claim alleged by an employee of the 24 employer for a violation of such title; 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00110 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 111 •S 3219 IS (ii) sections 302 and 304 of the Gov- 1 ernment Employee Rights Act of 1991 (42 2 U.S.C. 2000e–16b and 2000e–16c) in the 3 case of a claim alleged by an employee of 4 the employer for a violation of section 5 302(a)(1) of such Act (42 U.S.C. 2000e– 6 16b(a)(1)); 7 (iii) the Congressional Accountability 8 Act of 1995 (2 U.S.C. 1301 et seq.) in the 9 case of a claim alleged by an employee of 10 the employer for a violation of section 11 201(a)(1) of such Act (2 U.S.C. 12 1311(a)(1)); and 13 (iv) chapter 5 of title 3, United States 14 Code, in the case of a claim alleged by an 15 employee of the employer for a violation of 16 section 411 of such title. 17 (2) PROCEDURES AND REMEDIES.—The proce- 18 dures and remedies applicable to a claim alleged by 19 a worker against the employer for a violation of this 20 section are— 21 (A) the procedures and remedies applicable 22 for a violation of title VII of the Civil Rights 23 Act of 1964 (42 U.S.C. 2000e et seq.) in the 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00111 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 112 •S 3219 IS case of a claim alleged by an employee of the 1 employer for a violation of such title; 2 (B) the procedures and remedies applicable 3 for a violation of section 302(a)(1) of the Gov- 4 ernment Employee Rights Act of 1991 (42 5 U.S.C. 2000e–16b(a)(1)) in the case of a claim 6 alleged by an employee of the employer for a 7 violation of such section; 8 (C) the procedures and remedies applicable 9 for a violation of section 201(a)(1) of the Con- 10 gressional Accountability Act of 1995 (2 U.S.C. 11 1311(a)(1)) in the case of a claim alleged by an 12 employee of the employer for a violation of such 13 section; and 14 (D) the procedures and remedies applicable 15 for a violation of section 411 of title 3, United 16 States Code, in the case of a claim alleged by 17 an employee of the employer for a violation of 18 such section. 19 (3) OTHER APPLICABLE PROVISIONS.—With re- 20 spect to a claim alleged by an employee described in 21 subsection (a)(4)(C) or a covered individual de- 22 scribed in subsection (a)(3)(A)(iii) for a violation of 23 this section, title III of the Congressional Account- 24 ability Act of 1995 (2 U.S.C. 1381 et seq.) shall 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00112 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 113 •S 3219 IS apply in the same manner as such title applies with 1 respect to a claim alleged by such an employee for 2 a violation of section 201(a)(1) of such Act (2 3 U.S.C. 1311(a)(1)). 4 (d) ENFORCEMENT AGAINST COVERED ESTABLISH- 5 MENTS.— 6 (1) ENFORCEMENT POWERS.—With respect to 7 the administration and enforcement of this section 8 in the case of a claim alleged by a covered individual 9 against a covered establishment for a violation of 10 this section— 11 (A) the Commission shall have the same 12 powers as the Commission has to administer 13 and enforce title VII of the Civil Rights Act of 14 1964 (42 U.S.C. 2000e et seq.); 15 (B) the Attorney General shall have the 16 same powers as the Attorney General has to ad- 17 minister and enforce title VII of the Civil 18 Rights Act of 1964; and 19 (C) a court of the United States shall have 20 the same jurisdiction and powers as the court 21 has to enforce title VII of the Civil Rights Act 22 of 1964, 23 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00113 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 114 •S 3219 IS in the case of a claim alleged by an employee de- 1 scribed in subsection (a)(4)(A) for a violation of 2 such title. 3 (2) PROCEDURES AND REMEDIES.—The proce- 4 dures and remedies applicable to a claim alleged by 5 a covered individual against the covered establish- 6 ment for a violation of this section are the proce- 7 dures and remedies applicable for a violation of title 8 VII of the Civil Rights Act of 1964 (42 U.S.C. 9 2000e et seq.) in the case of a claim alleged by an 10 employee described in subsection (a)(4)(A) for a vio- 11 lation of such title. 12 (e) RIGHT TO REPORT RESERVED.—Notwith- 13 standing signing (before, on, or after the effective date of 14 this Act) any nondisparagement clause or nondisclosure 15 clause, a worker retains— 16 (1) any right that person would otherwise have 17 had to report a concern about harassment, including 18 sexual harassment, in employment or contracting or 19 another violation of the law to the Commission, an- 20 other Federal agency (including an office of the leg- 21 islative or judicial branch), a State or local fair em- 22 ployment practices agency or any other State or 23 local agency, or a law enforcement agency; and 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00114 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 115 •S 3219 IS (2) any right that person would otherwise have 1 had to bring an action in a court of the United 2 States. 3 (f) REGULATIONS.— 4 (1) IN GENERAL.—Except as provided in para- 5 graphs (2), (3), and (4), the Commission shall have 6 authority to issue regulations to carry out this sec- 7 tion. 8 (2) LIBRARIAN OF CONGRESS.—The Librarian 9 of Congress shall have authority to issue regulations 10 to carry out this section with respect to workers of 11 the Library of Congress. 12 (3) BOARD.—The Board referred to in sub- 13 section (c)(1)(C) shall have authority to issue regu- 14 lations to carry out this section, in accordance with 15 section 304 of the Congressional Accountability Act 16 of 1995 (2 U.S.C. 1384), with respect to employees 17 described in subsection (a)(4)(C) and covered indi- 18 viduals described in subsection (a)(3)(A)(iii). 19 (4) PRESIDENT.—The President shall have au- 20 thority to issue regulations to carry out this section 21 with respect to employees described in subsection 22 (a)(4)(D) and covered individuals described in sub- 23 section (a)(3)(A)(iv). 24 (g) STATE AND FEDERAL IMMUNITY.— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00115 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 116 •S 3219 IS (1) ABROGATION OF STATE IMMUNITY.—A 1 State shall not be immune under the 11th Amend- 2 ment to the Constitution from a suit brought in a 3 Federal court of competent jurisdiction for a viola- 4 tion of this section. 5 (2) WAIVER OF STATE IMMUNITY.— 6 (A) IN GENERAL.— 7 (i) WAIVER.—A State’s receipt or use 8 of Federal financial assistance for any pro- 9 gram or activity of a State shall constitute 10 a waiver of sovereign immunity, under the 11 11th Amendment to the Constitution or 12 otherwise, to a suit brought by a covered 13 individual in that program or activity 14 under this section for a remedy authorized 15 under paragraph (4). 16 (ii) DEFINITION.—In this subpara- 17 graph, the term ‘‘program or activity’’ has 18 the meaning given the term in section 606 19 of the Civil Rights Act of 1964 (42 U.S.C. 20 2000d–4a). 21 (B) EFFECTIVE DATE.—With respect to a 22 particular program or activity, subparagraph 23 (A) applies to conduct occurring on or after the 24 day, after the date of enactment of this Act, on 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00116 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 117 •S 3219 IS which a State first receives or uses Federal fi- 1 nancial assistance for that program or activity. 2 (3) REMEDIES AGAINST STATE OFFICIALS.—An 3 official of a State may be sued in the official capac- 4 ity of the official by a covered individual who has 5 complied with the applicable procedures of sub- 6 section (c), for equitable relief that is authorized 7 under this section. In such a suit the court may 8 award to the prevailing party those costs authorized 9 by section 722 of the Revised Statutes (42 U.S.C. 10 1988). 11 (4) REMEDIES AGAINST THE UNITED STATES 12 AND THE STATES.—Notwithstanding any other pro- 13 vision of this Act, in an action or administrative pro- 14 ceeding against the United States or a State for a 15 violation of this section, remedies (including rem- 16 edies at law and in equity, and interest) are avail- 17 able for the violation to the same extent as the rem- 18 edies are available for a violation of title VII of the 19 Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 20 by an employer described in subsection (a)(5)(A), 21 except that— 22 (A) punitive damages are not available; 23 and 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00117 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 118 •S 3219 IS (B) compensatory damages are available to 1 the extent specified in section 1977A(b) of the 2 Revised Statutes (42 U.S.C. 1981a(b)). 3 SEC. 303. PROHIBITION ON MANDATORY ARBITRATION AND 4 PROTECTION OF CONCERTED LEGAL ACTION. 5 (a) PROTECTION OF CONCERTED ACTIVITY.— 6 (1) AGREEMENTS.—Section 8(a) of the Na- 7 tional Labor Relations Act (29 U.S.C. 158(a)) is 8 amended— 9 (A) in paragraph (5), by striking the pe- 10 riod at the end and inserting ‘‘; and’’; and 11 (B) by adding at the end the following: 12 ‘‘(6)(A) to enter into or attempt to enforce any 13 agreement, express or implied, whereby prior to a 14 dispute to which the agreement applies, a worker 15 (for purposes of this paragraph, as defined in sec- 16 tion 401 of title 9, United States Code) undertakes 17 or promises not to pursue, bring, join, litigate, or 18 support any kind of joint, class, or collective claim 19 arising from or relating to the employment of, or 20 provision of services by, such worker in any forum 21 that, but for such agreement, is of competent juris- 22 diction; 23 ‘‘(B) to coerce such worker into undertaking or 24 promising not to pursue, bring, join, litigate, or sup- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00118 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 119 •S 3219 IS port any kind of joint, class, or collective claim aris- 1 ing from or relating to the employment of, or provi- 2 sion of services by, such worker; or 3 ‘‘(C) to retaliate or threaten to retaliate against 4 a worker for refusing to undertake or promise not 5 to pursue, bring, join, litigate, or support any kind 6 of joint, class, or collective claim arising from or re- 7 lating to the employment of, or provision or services 8 by, such worker: Provided, That any agreement that 9 violates this paragraph or results from a violation of 10 this paragraph shall be to such extent unenforceable 11 and void: Provided further, That this paragraph shall 12 not apply to any agreement embodied in or expressly 13 permitted by a contract between an employer and a 14 labor organization.’’. 15 (2) CONFORMING AMENDMENT.—Section 10(b) 16 of the National Labor Relations Act (29 U.S.C. 17 160(b)) is amended by striking ‘‘discharge’’ and in- 18 serting ‘‘discharge, or unless the person aggrieved 19 thereby is a worker alleging a violation of section 20 8(a)(6) whose charge involves a postdispute arbitra- 21 tion agreement that meets the requirements under 22 section 402(a)(2) of title 9, United States Code, in 23 which event the six-month period shall be computed 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00119 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 120 •S 3219 IS from the day the waiting period described in sub- 1 paragraph (C) of such section ends’’. 2 (b) ARBITRATION OF WORK DISPUTES.— 3 (1) IN GENERAL.—Title 9 of the United States 4 Code is amended by adding at the end the following: 5 ‘‘CHAPTER 4—ARBITRATION OF WORK 6 DISPUTES 7 ‘‘Sec. ‘‘401. Definitions. ‘‘402. Validity and enforceability. ‘‘§ 401. Definitions 8 ‘‘In this chapter— 9 ‘‘(1) the terms ‘commerce’, ‘employee’, and ‘em- 10 ployer’ have the meanings given the terms in section 11 3 of the Fair Labor Standards Act of 1938 (29 12 U.S.C. 203); 13 ‘‘(2) the term ‘covered entity’ means— 14 ‘‘(A) an employer; or 15 ‘‘(B) an individual or entity that is not 16 acting as an employer and engages the services 17 of a worker; 18 ‘‘(3) the term ‘predispute arbitration agree- 19 ment’ means any agreement to arbitrate a dispute 20 that had not yet arisen at the time of the making 21 of the agreement; 22 ‘‘(4) the term ‘postdispute arbitration agree- 23 ment’ means any agreement to arbitrate a dispute 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00120 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 121 •S 3219 IS that arose before the time of the making of the 1 agreement; 2 ‘‘(5) the term ‘worker’ means— 3 ‘‘(A) an employee; or 4 ‘‘(B) an individual who is engaged by a 5 covered entity to perform services or work as an 6 independent contractor (regardless of the label 7 or classification assigned or used by the covered 8 entity); and 9 ‘‘(6) the term ‘work dispute’— 10 ‘‘(A) means a dispute between one or more 11 workers (or their authorized representatives) 12 and a covered entity arising out of or related to 13 the work relationship or prospective work rela- 14 tionship between the workers and the covered 15 entity; and 16 ‘‘(B) includes— 17 ‘‘(i) a dispute regarding the terms of, 18 payment for, advertising of, recruitment of, 19 referring of, arranging for, or discipline or 20 discharge in connection with work per- 21 formed in connection with such work rela- 22 tionship; 23 ‘‘(ii) a dispute arising under any law 24 referred to or described in section 62(e) of 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00121 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 122 •S 3219 IS the Internal Revenue Code of 1986, includ- 1 ing any part of such a law not explicitly 2 referenced in such section that relates to 3 protecting individuals on a basis that is 4 protected under a law referred to or de- 5 scribed in such section; and 6 ‘‘(iii) a dispute in which an individual 7 or individuals seek certification— 8 ‘‘(I) as a class under rule 23 of 9 the Federal Rules of Civil Procedure; 10 ‘‘(II) as a collective action under 11 section 16(b) of the Fair Labor 12 Standards Act of 1938 (29 U.S.C. 13 216(b)); or 14 ‘‘(III) under a comparable rule or 15 provision of State law. 16 ‘‘§ 402. Validity and enforceability 17 ‘‘(a) IN GENERAL.—Notwithstanding any other chap- 18 ter of this title— 19 ‘‘(1) no predispute arbitration agreement shall 20 be valid or enforceable if it requires arbitration of a 21 work dispute; 22 ‘‘(2) no postdispute arbitration agreement that 23 requires arbitration of a work dispute shall be valid 24 or enforceable unless— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00122 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 123 •S 3219 IS ‘‘(A) the agreement was not required by 1 the covered entity, obtained by coercion or 2 threat of adverse action, or made a condition of 3 employment, work, or any employment-related 4 or work-related privilege or benefit; 5 ‘‘(B) each worker entering into the agree- 6 ment was informed in writing using sufficiently 7 plain language likely to be understood by the 8 average worker of— 9 ‘‘(i) the right of the worker under 10 paragraph (3) to refuse to enter the agree- 11 ment without retaliation; and 12 ‘‘(ii) the protections under section 13 8(a)(6) of the National Labor Relations 14 Act (29 U.S.C. 158(a)(6)); 15 ‘‘(C) each worker entering into the agree- 16 ment entered the agreement after a waiting pe- 17 riod of not fewer than 45 days, beginning on 18 the date on which the employee was provided 19 both the final text of the agreement and the 20 disclosures required under subparagraph (B); 21 and 22 ‘‘(D) each worker entering into the agree- 23 ment affirmatively consented to the agreement 24 in writing; and 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00123 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 124 •S 3219 IS ‘‘(3) no covered entity may retaliate or threaten 1 to retaliate against a worker for refusing to enter 2 into an agreement that provides for arbitration of a 3 work dispute. 4 ‘‘(b) STATUTE OF LIMITATIONS.—During the waiting 5 period described in subsection (a)(2)(C), the statute of 6 limitations for any claims that arise from or form the basis 7 for the applicable work dispute shall be tolled. 8 ‘‘(c) CIVIL ACTION.—Any person who is injured by 9 reason of a violation of subsection (a)(3) may bring a civil 10 action in the appropriate district court of the United 11 States against the covered entity within 2 years of the vio- 12 lation, or within 3 years if such violation is willful. Relief 13 granted in such an action shall include a reasonable attor- 14 ney’s fee, other reasonable costs associated with maintain- 15 ing the action, and any appropriate relief authorized by 16 section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 17 2000e–5(g)) or by section 1977A(b) of the Revised Stat- 18 utes (42 U.S.C. 1981a(b)). 19 ‘‘(d) APPLICABILITY.— 20 ‘‘(1) IN GENERAL.—This chapter applies to cov- 21 ered entities and workers engaged in activity affect- 22 ing commerce to the fullest extent permitted by the 23 Constitution of the United States, including the 24 work of persons engaged in domestic service in 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00124 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 125 •S 3219 IS households, as described in section 2(a) of the Fair 1 Labor Standards Act of 1938 (29 U.S.C. 202(a)). 2 An issue as to whether this chapter applies to an ar- 3 bitration agreement shall be determined under Fed- 4 eral law. The applicability of this chapter to an 5 agreement to arbitrate and the validity and enforce- 6 ability of an agreement to which this chapter applies 7 shall be determined by a court, rather than an arbi- 8 trator, regardless of whether any contractual provi- 9 sion purports to delegate such determinations to the 10 arbitrator and irrespective of whether the party re- 11 sisting arbitration challenges the arbitration agree- 12 ment specifically or in conjunction with other terms 13 of the contract containing such agreement. 14 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 15 Nothing in this chapter shall apply to any arbitra- 16 tion provision in a contract between a covered entity 17 and a labor organization, except that no such arbi- 18 tration provision shall have the effect of waiving the 19 right of a worker to seek judicial enforcement of a 20 right arising under a provision of the Constitution of 21 the United States, the constitution of a State, or a 22 Federal or State statute, or public policy arising 23 therefrom.’’. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00125 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 126 •S 3219 IS (2) TECHNICAL AND CONFORMING AMEND- 1 MENTS.— 2 (A) IN GENERAL.—Title 9 of the United 3 States Code is amended— 4 (i) in section 1, by striking ‘‘of sea- 5 men,’’ and all that follows through ‘‘inter- 6 state commerce’’; 7 (ii) in section 2, by inserting ‘‘or as 8 otherwise provided in chapter 4’’ before the 9 period at the end; 10 (iii) in section 208— 11 (I) in the section heading, by 12 striking ‘‘Chapter 1; residual 13 application’’ and inserting ‘‘Ap- 14 plication’’; and 15 (II) by adding at the end the fol- 16 lowing: ‘‘This chapter applies to the 17 extent that this chapter is not in con- 18 flict with chapter 4.’’; and 19 (iv) in section 307— 20 (I) in the section heading, by 21 striking ‘‘Chapter 1; residual 22 application’’ and inserting ‘‘Ap- 23 plication’’; and 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00126 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 127 •S 3219 IS (II) by adding at the end the fol- 1 lowing: ‘‘This chapter applies to the 2 extent that this chapter is not in con- 3 flict with chapter 4.’’. 4 (B) TABLE OF SECTIONS.— 5 (i) CHAPTER 2.—The table of sections 6 for chapter 2 of title 9, United States 7 Code, is amended by striking the item re- 8 lating to section 208 and inserting the fol- 9 lowing: 10 ‘‘208. Application.’’. (ii) CHAPTER 3.—The table of sec- 11 tions for chapter 3 of title 9, United States 12 Code, is amended by striking the item re- 13 lating to section 307 and inserting the fol- 14 lowing: 15 ‘‘307. Application.’’. (C) TABLE OF CHAPTERS.—The table of 16 chapters for title 9, United States Code, is 17 amended by adding at the end the following: 18 ‘‘4. Arbitration of work disputes .............................................................. 401.’’. (c) EFFECTIVE DATE.—This section, and the amend- 19 ments made by this section, shall take effect on the date 20 of enactment of this Act and shall apply with respect to 21 any dispute or claim that arises or accrues on or after 22 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00127 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 128 •S 3219 IS such date, including any dispute or claim to which an 1 agreement predating such date applies. 2 SEC. 304. FEDERAL CONTRACTOR COMPLIANCE WITH CIVIL 3 RIGHTS LAWS. 4 (a) DEFINITIONS.—In this section: 5 (1) COVERED CONTRACT.—The term ‘‘covered 6 contract’’ means a Federal contract for the procure- 7 ment of property or services, including construction, 8 valued in excess of $500,000. 9 (2) COVERED SUBCONTRACT.—The term ‘‘cov- 10 ered subcontract’’— 11 (A) means a subcontract for property or 12 services under a Federal contract that is valued 13 in excess of $500,000; and 14 (B) does not include a subcontract for the 15 procurement of commercially available off-the- 16 shelf items. 17 (3) EXECUTIVE AGENCY.—The term ‘‘executive 18 agency’’ has the meaning given the term in section 19 133 of title 41, United States Code. 20 (b) REQUIRED PRE-CONTRACT AWARD ACTIONS.— 21 (1) DISCLOSURES.—The head of an executive 22 agency shall ensure that the solicitation for a cov- 23 ered contract requires the offeror— 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00128 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 129 •S 3219 IS (A) to represent, to the best of the 1 offeror’s knowledge and belief, whether there 2 has been any administrative merits determina- 3 tion, arbitral award or decision, or civil judg- 4 ment, as defined in guidance issued by the Sec- 5 retary of Labor, rendered against the offeror in 6 the preceding 3 years for violations of— 7 (i) the Fair Labor Standards Act of 8 1938 (29 U.S.C. 201 et seq.); 9 (ii) the Occupational Safety and 10 Health Act of 1970 (29 U.S.C. 651 et 11 seq.); 12 (iii) the Migrant and Seasonal Agri- 13 cultural Worker Protection Act (29 U.S.C. 14 1801 et seq.); 15 (iv) the National Labor Relations Act 16 (29 U.S.C. 151 et seq.); 17 (v) subchapter IV of chapter 31 of 18 title 40, United States Code (commonly 19 known as the ‘‘Davis-Bacon Act’’); 20 (vi) chapter 67 of title 41, United 21 States Code (commonly known as the 22 ‘‘Service Contract Act’’); 23 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00129 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 130 •S 3219 IS (vii) Executive Order 11246 (42 1 U.S.C. 2000e note; relating to equal em- 2 ployment opportunity); 3 (viii) section 503 of the Rehabilitation 4 Act of 1973 (29 U.S.C. 793); 5 (ix) section 4212 of title 38, United 6 States Code; 7 (x) the Family and Medical Leave Act 8 of 1993 (29 U.S.C. 2601 et seq.); 9 (xi) title VII of the Civil Rights Act of 10 1964 (42 U.S.C. 2000e et seq.); 11 (xii) the Americans with Disabilities 12 Act of 1990 (42 U.S.C. 12101 et seq.); 13 (xiii) the Age Discrimination in Em- 14 ployment Act of 1967 (29 U.S.C. 621 et 15 seq.); 16 (xiv) title II of the Genetic Informa- 17 tion Nondiscrimination Act of 2008 (42 18 U.S.C. 2000ff et seq.); 19 (xv) as applicable, Executive Order 20 13658 (79 Fed. Reg. 9851; relating to es- 21 tablishing a minimum wage for contrac- 22 tors) or Executive Order 14026 (86 Fed. 23 Reg. 22835; relating to increasing the min- 24 imum wage for Federal contractors); or 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00130 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 131 •S 3219 IS (xvi) equivalent State laws, as defined 1 in guidance issued by the Secretary of 2 Labor; 3 (B) to require each subcontractor for a 4 covered subcontract— 5 (i) to represent to the offeror, and the 6 executive agency’s Labor Compliance Advi- 7 sor designated under subsection (d), to the 8 best of the subcontractor’s knowledge and 9 belief, whether there has been any adminis- 10 trative merits determination, arbitral 11 award or decision, or civil judgment, as de- 12 fined in guidance issued by the Secretary 13 of Labor, rendered against the subcon- 14 tractor in the preceding 3 years for viola- 15 tions of any of the labor laws listed under 16 subparagraph (A); and 17 (ii) to update such information every 18 6 months for the duration of the sub- 19 contract; and 20 (C) to consider the advice rendered by the 21 executive agency’s Labor Compliance Advisor 22 designated under subsection (d), or information 23 submitted by a subcontractor pursuant to sub- 24 paragraph (B), in determining whether the sub- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00131 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 132 •S 3219 IS contractor is a responsible source with a satis- 1 factory record of integrity and business ethics— 2 (i) prior to awarding the subcontract; 3 or 4 (ii) in the case of a subcontract that 5 is awarded or will become effective within 6 5 days of the prime contract being award- 7 ed, not later than 30 days after awarding 8 the subcontract. 9 (2) PRE-AWARD CORRECTIVE MEASURES.— 10 (A) IN GENERAL.—A contracting officer, 11 prior to awarding a covered contract, shall, as 12 part of the responsibility determination, provide 13 an offeror who makes a disclosure pursuant to 14 paragraph (1) an opportunity to report any 15 steps taken to correct the violations of or im- 16 prove compliance with the labor laws listed in 17 subparagraph (A) of such paragraph, including 18 any agreements entered into with an enforce- 19 ment agency. 20 (B) CONSULTATION.—The executive agen- 21 cy’s Labor Compliance Advisor designated 22 under subsection (d), in consultation with rel- 23 evant enforcement agencies, shall advise the 24 contracting officer whether agreements are in 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00132 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 133 •S 3219 IS place or are otherwise needed to address appro- 1 priate remedial measures, compliance assist- 2 ance, steps to resolve issues to avoid further 3 violations, or other related matters concerning 4 the offeror. 5 (C) RESPONSIBILITY DETERMINATION.— 6 The contracting officer, in consultation with the 7 executive agency’s Labor Compliance Advisor 8 designated under subsection (d), shall consider 9 information provided by the offeror under this 10 subsection in determining whether the offeror is 11 a responsible source with a satisfactory record 12 of integrity and business ethics. The determina- 13 tion shall be based on the guidance reissued 14 under subsection (e)(2)(A) and the final rule 15 reissued under subsection (e)(1). 16 (3) REFERRAL OF INFORMATION TO SUSPEN- 17 SION AND DEBARMENT OFFICIALS.—As appropriate, 18 contracting officers, in consultation with their execu- 19 tive agency’s Labor Compliance Advisor, shall refer 20 matters related to information provided under sub- 21 paragraphs (A) and (B) of paragraph (1) to the ex- 22 ecutive agency’s suspension and debarment official 23 in accordance with agency procedures. 24 (c) POST-AWARD CONTRACT ACTIONS.— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00133 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 134 •S 3219 IS (1) INFORMATION UPDATES.—The contracting 1 officer for a covered contract shall require that the 2 contractor update the information provided under 3 subparagraphs (A) and (B) of subsection (b)(1) 4 every 6 months. 5 (2) CORRECTIVE ACTIONS.— 6 (A) PRIME CONTRACT.—The contracting 7 officer, in consultation with the Labor Compli- 8 ance Advisor designated pursuant to subsection 9 (d), shall determine whether any information 10 provided under paragraph (1) warrants correc- 11 tive action. Such action may include— 12 (i) an agreement requiring appro- 13 priate remedial measures; 14 (ii) compliance assistance; 15 (iii) resolving issues to avoid further 16 violations; 17 (iv) the decision not to exercise an op- 18 tion on a contract or to terminate the con- 19 tract; or 20 (v) referral to the agency suspending 21 and debarring official. 22 (B) SUBCONTRACTS.—The prime con- 23 tractor for a covered contract, in consultation 24 with the Labor Compliance Advisor, shall deter- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00134 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 135 •S 3219 IS mine whether any information provided under 1 subsection (b)(1)(B) warrants corrective action, 2 including remedial measures, compliance assist- 3 ance, and resolving issues to avoid further viola- 4 tions. 5 (C) DEPARTMENT OF LABOR.—The Sec- 6 retary of Labor shall, as appropriate, inform 7 executive agencies of its investigations of con- 8 tractors and subcontractors on current Federal 9 contracts for purposes of determining the ap- 10 propriateness of actions described under sub- 11 paragraphs (A) and (B). 12 (d) LABOR COMPLIANCE ADVISORS.— 13 (1) IN GENERAL.—Each executive agency shall 14 designate a senior official to act as the agency’s 15 Labor Compliance Advisor. 16 (2) DUTIES.—The Labor Compliance Advisor 17 shall— 18 (A) meet quarterly with the Deputy Sec- 19 retary, Deputy Administrator, or equivalent ex- 20 ecutive agency official with regard to matters 21 covered under this section; 22 (B) work with the acquisition workforce, 23 agency officials, and agency contractors to pro- 24 mote greater awareness and understanding of 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00135 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 136 •S 3219 IS the requirements of the labor laws listed in sub- 1 section (b)(1)(A), including record keeping, re- 2 porting, and notice requirements, as well as 3 best practices for obtaining compliance with 4 these requirements; 5 (C) coordinate assistance for executive 6 agency contractors seeking help in addressing 7 and preventing violations of such laws; 8 (D) in consultation with the Secretary of 9 Labor or other relevant enforcement agencies, 10 and pursuant to subsection (b)(2) as necessary, 11 provide assistance to contracting officers re- 12 garding appropriate actions to be taken in re- 13 sponse to violations of the labor laws listed in 14 subsection (b)(1)(A) identified prior to or after 15 contracts are awarded, and address complaints 16 in a timely manner, by— 17 (i) providing assistance to contracting 18 officers and other executive agency officials 19 in reviewing the information provided 20 under paragraphs (1) and (2) of subsection 21 (b) and subsection (c)(1), or other infor- 22 mation indicating such a violation, in order 23 to assess the serious, repeated, willful, or 24 pervasive nature of any such violation and 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00136 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 137 •S 3219 IS evaluate steps contractors have taken to 1 correct such violations or improve compli- 2 ance with relevant requirements; 3 (ii) helping agency officials determine 4 the appropriate response to address viola- 5 tions of the labor laws listed in subsection 6 (b)(1)(A) or other information indicating 7 such a violation (particularly a serious, re- 8 peated, willful, or pervasive violation), in- 9 cluding an agreement requiring appro- 10 priate remedial measures, a decision not to 11 award a contract or exercise an option on 12 a contract, contract termination, or a re- 13 ferral to the executive agency suspension 14 and debarment official; 15 (iii) providing assistance to appro- 16 priate executive agency officials in receiv- 17 ing and responding to, or making referrals 18 of, complaints alleging violations by agency 19 contractors and subcontractors of the labor 20 laws listed in subsection (b)(1)(A); and 21 (iv) supporting contracting officers, 22 suspension and debarment officials, and 23 other agency officials in the coordination of 24 actions taken pursuant to this subsection 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00137 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 138 •S 3219 IS to ensure agency-wide consistency, to the 1 extent practicable; 2 (E) as appropriate, send information to 3 agency suspension and debarment officials in 4 accordance with agency procedures; 5 (F) consult with the agency’s Chief Acqui- 6 sition Officer and Senior Procurement Execu- 7 tive, and the Department of Labor as nec- 8 essary, in the development of regulations, poli- 9 cies, and guidance addressing compliance by 10 contractors and subcontractors with the labor 11 laws listed in subsection (b)(1)(A); 12 (G) make recommendations to the agency 13 to strengthen agency management of contractor 14 compliance with such labor laws; 15 (H) publicly report, on an annual basis, a 16 summary of agency actions taken to promote 17 greater compliance with such laws, including 18 the agency’s response under this section to seri- 19 ous, repeated, willful, or pervasive violations of 20 such laws; and 21 (I) participate in the interagency meetings 22 regularly convened by the Secretary of Labor 23 under subsection (e)(2)(B)(iii). 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00138 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 139 •S 3219 IS (e) MEASURES TO ENSURE GOVERNMENTWIDE CON- 1 SISTENCY.— 2 (1) FEDERAL ACQUISITION REGULATION.— 3 (A) IN GENERAL.—Notwithstanding the 4 Joint Resolution disapproving the rule sub- 5 mitted by the Department of Defense, the Gen- 6 eral Services Administration, and the National 7 Aeronautics and Space Administration relating 8 to the Federal Acquisition Regulation (Public 9 Law 115–11; 131 Stat. 75) and section 553 of 10 title 5, United States Code, not later than 1 11 year after the date of enactment of this Act, the 12 Secretary of Defense, the Administrator of the 13 General Services Administration, and the Ad- 14 ministrator of the National Aeronautics and 15 Space Administration shall reissue the final rule 16 entitled ‘‘Federal Acquisition Regulation; Fair 17 Pay and Safe Workplaces’’ (81 Fed. Reg. 18 58562 (Aug. 25, 2016)), subject to subpara- 19 graph (B). 20 (B) UPDATED DATES.—The agencies de- 21 scribed in subparagraph (A) may, in reissuing 22 the final rule under such subparagraph— 23 (i) update any date provided in such 24 final rule as reasonable and necessary; and 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00139 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 140 •S 3219 IS (ii) revise any provision in such rule 1 for consistency with the requirements of 2 this section. 3 (2) DEPARTMENT OF LABOR.— 4 (A) GUIDANCE.—Not later than 1 year 5 after the date of enactment of this Act, the Sec- 6 retary of Labor shall reissue the guidance enti- 7 tled ‘‘Guidance for Executive Order 13673, 8 ‘Fair Pay and Safe Workplaces’ ’’ (81 Fed. 9 Reg. 58654 (Aug. 25, 2016)). In reissuing such 10 guidance, the Secretary of Labor may— 11 (i) update any date provided in such 12 guidance as reasonable and necessary; and 13 (ii) revise any provision in such guid- 14 ance for consistency with the requirements 15 of this section. 16 (B) ADDITIONAL ACTIVITIES.—The Sec- 17 retary of Labor shall— 18 (i) develop a process— 19 (I) for the Labor Compliance Ad- 20 visors designated pursuant to sub- 21 section (d) to consult with the Sec- 22 retary of Labor in carrying out their 23 responsibilities under subsection 24 (d)(2)(D); 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00140 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 141 •S 3219 IS (II) by which contracting officers 1 and Labor Compliance Advisors may 2 give appropriate consideration to de- 3 terminations and agreements made by 4 the Secretary of Labor and the heads 5 of other executive agencies; and 6 (III) by which contractors may 7 enter into agreements with the Sec- 8 retary of Labor, or the head of an- 9 other executive agency, prior to being 10 considered for a contract; 11 (ii) review data collection require- 12 ments and processes, and work with the 13 Director of the Office of Management and 14 Budget, the Administrator of General 15 Services, and other agency heads to im- 16 prove such requirements and processes, as 17 necessary, to reduce the burden on con- 18 tractors and increase the amount of infor- 19 mation available to executive agencies; 20 (iii) regularly convene interagency 21 meetings of Labor Compliance Advisors to 22 share and promote best practices for im- 23 proving labor law compliance; and 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00141 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 142 •S 3219 IS (iv) designate an appropriate contact 1 for executive agencies seeking to consult 2 with the Secretary of Labor with respect to 3 the requirements and activities under this 4 section. 5 (3) OFFICE OF MANAGEMENT AND BUDGET.— 6 The Director of the Office of Management and 7 Budget shall— 8 (A) work with the Administrator of Gen- 9 eral Services to include in the Federal Awardee 10 Performance and Integrity Information System 11 the information provided by contractors pursu- 12 ant to subsections (b)(1)(A) and (c)(1) and 13 data on the resolution of any issues related to 14 such information; and 15 (B) designate an appropriate contact for 16 agencies seeking to consult with the Office of 17 Management and Budget on matters arising 18 under this section. 19 (4) GENERAL SERVICES ADMINISTRATION.— 20 (A) IN GENERAL.—The Administrator of 21 General Services, in consultation with other rel- 22 evant executive agencies, shall establish a single 23 Internet website for Federal contractors to use 24 for all Federal contract reporting requirements 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00142 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 143 •S 3219 IS under this section, as well as any other Federal 1 contract reporting requirements to the extent 2 practicable. 3 (B) AGENCY COOPERATION.—The heads of 4 executive agencies with covered contracts shall 5 provide the Administrator of General Services 6 with the data necessary to maintain the Inter- 7 net website established under subparagraph 8 (A). 9 (5) MINIMIZING COMPLIANCE BURDEN.—After 10 reissuing the guidance under paragraph (2)(A) or 11 the final rule under paragraph (1), the Secretary of 12 Labor or the Secretary of Defense, the Adminis- 13 trator of the General Services Administration, and 14 the Administrator of the National Aeronautics and 15 Space Administration may, respectively, amend such 16 guidance or final rule consistent with the require- 17 ments under chapter 5 of title 5, United States 18 Code. 19 (f) IMPLEMENTING REGULATIONS.—Not later than 9 20 months after the date of enactment of this Act, the Fed- 21 eral Acquisition Regulatory Council shall amend the Fed- 22 eral Acquisition Regulation to carry out the provisions of 23 this section. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00143 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 144 •S 3219 IS (g) RULES OF CONSTRUCTION.—Nothing in this sec- 1 tion shall be construed as— 2 (1) impairing or otherwise affecting the author- 3 ity granted by law to an executive agency or the 4 head thereof; or 5 (2) impairing or otherwise affecting the func- 6 tions of the Director of the Office of Management 7 and Budget relating to budgetary, administrative, or 8 legislative proposals. 9 TITLE IV—NATIONWIDE GRANTS 10 TO PREVENT AND RESPOND 11 TO WORKPLACE HARASS- 12 MENT 13 SEC. 401. DEFINITIONS. 14 In this title: 15 (1) COMMISSION.—The term ‘‘Commission’’ 16 means the Equal Employment Opportunity Commis- 17 sion. 18 (2) EMPLOYEE.—The term ‘‘employee’’ has the 19 meaning given the term in section 302(a)(4). 20 (3) EMPLOYMENT DISCRIMINATION.—The term 21 ‘‘employment discrimination’’ means discrimination 22 that is in violation of applicable Federal, State, or 23 local employment law, including: 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00144 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 145 •S 3219 IS (A) Title VII of the Civil Rights Act of 1 1964 (42 U.S.C. 2000e et seq.). 2 (B) The Government Employee Rights Act 3 of 1991 (42 U.S.C. 2000e–16a et seq.). 4 (C) The Congressional Accountability Act 5 of 1995 (2 U.S.C. 1301 et seq.). 6 (D) Subchapter II of chapter 5 of title 3, 7 United States Code. 8 (E) The Age Discrimination in Employ- 9 ment Act of 1967 (29 U.S.C. 621 et seq.). 10 (F) Title I and section 503 (for violations 11 with respect to that title) of the Americans with 12 Disabilities Act of 1990 (42 U.S.C. 12111 et 13 seq.; 12203). 14 (G) Sections 501 and 505 of the Rehabili- 15 tation Act of 1973 (29 U.S.C. 791, 794a). 16 (H) Section 6(d) of the Fair Labor Stand- 17 ards Act of 1938 (commonly known as the 18 ‘‘Equal Pay Act of 1963’’) (29 U.S.C. 206(d)). 19 (I) Title II of the Genetic Information 20 Nondiscrimination Act of 2008 (42 U.S.C. 21 2000ff et seq.). 22 (J) Section 4311 of title 38, United States 23 Code. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00145 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 146 •S 3219 IS (K) Other Federal, State, or local employ- 1 ment law. 2 (4) WORKER.—The term ‘‘worker’’ has the 3 meaning given the term in section 302(a)(8). 4 Subtitle A—National Grants for 5 Preventing and Addressing Em- 6 ployment Discrimination, In- 7 cluding Harassment 8 SEC. 411. DEFINITIONS. 9 In this subtitle: 10 (1) DIRECTOR.—The term ‘‘Director’’ means 11 the Director of the Women’s Bureau of the Depart- 12 ment of Labor. 13 (2) ELIGIBLE ENTITY.—The term ‘‘eligible enti- 14 ty’’ means any of the following: 15 (A) A nonprofit organization, including a 16 community-based organization, nonprofit legal 17 aid organization, or labor organization, that 18 provides services and support to workers, in- 19 cluding by assisting workers in filing charges of 20 employment discrimination. 21 (B) An institution of higher education, as 22 defined in section 101 of the Higher Education 23 Act of 1965 (20 U.S.C. 1001). 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00146 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 147 •S 3219 IS SEC. 412. GRANTS. 1 (a) GRANTS.—The Director, in consultation with the 2 Commission, shall award grants under this section, on a 3 competitive basis, to eligible entities to assist such entities 4 in carrying out a program for preventing and addressing 5 employment discrimination, including harassment, 6 through activities authorized under subsection (b). 7 (b) USE OF FUNDS.— 8 (1) PERMISSIBLE ACTIVITIES.—A grant award- 9 ed under this section shall be used for activities to 10 prevent and address employment discrimination, in- 11 cluding harassment, which may include— 12 (A) educating workers about their rights 13 related to harassment in employment under 14 Federal, State, and local civil rights, labor, and 15 employment laws; 16 (B) educating employers about their obli- 17 gations to prevent and address harassment in 18 employment under Federal, State, and local 19 civil rights, labor, and employment laws; 20 (C) providing assistance to workers in 21 bringing complaints of employment discrimina- 22 tion, including filing charges of harassment; 23 (D) establishing networks for education, 24 communication, and participation in the work- 25 place and community; 26 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00147 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 148 •S 3219 IS (E) monitoring employer compliance with 1 Federal, State, and local civil rights, labor, and 2 employment laws; 3 (F) recruiting and hiring of staff and vol- 4 unteers; and 5 (G) any other activity the Director, in con- 6 sultation with the Commission, may reasonably 7 prescribe for the purpose of preventing and ad- 8 dressing employment discrimination, including 9 harassment. 10 (2) PROHIBITED ACTIVITIES.—Notwithstanding 11 paragraph (1), an eligible entity receiving a grant 12 under this section may not use the grant funds for 13 any purpose reasonably prohibited by the Director, 14 in consultation with the Commission, through notice 15 and comment rulemaking. 16 (c) TERM OF GRANTS.—Each grant awarded under 17 this section shall be available for expenditure for a period 18 not to exceed 3 years. 19 (d) APPLICATIONS.— 20 (1) IN GENERAL.—An eligible entity seeking a 21 grant under this section shall submit an application 22 for such grant to the Director in accordance with 23 this subsection. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00148 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 149 •S 3219 IS (2) PARTNERSHIPS.—Multiple eligible entities 1 may submit a joint application under this subsection 2 that designates a single entity as the lead entity for 3 the purposes of receiving and disbursing funds re- 4 ceived through a grant under this section. 5 (3) CONTENTS.—An application under this sub- 6 section shall include— 7 (A) a description of a plan for the program 8 that the eligible entity proposes to carry out 9 with a grant under this section, including a 10 long-term strategy and detailed implementation 11 plan; 12 (B) information on the prevalence of viola- 13 tions of prohibitions on employment discrimina- 14 tion, including harassment, under Federal, 15 State, and local civil rights, labor, and employ- 16 ment laws in the population served by the eligi- 17 ble entity; 18 (C) information on any industry or geo- 19 graphic area targeted by the plan for such pro- 20 gram; 21 (D) information on the type of outreach 22 and relationship building that will be conducted 23 under such program; 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00149 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 150 •S 3219 IS (E) information on the training and edu- 1 cation that will be provided to workers and em- 2 ployers under such program; and 3 (F) the method by which the eligible entity 4 will measure the results of such program. 5 (e) SELECTION.— 6 (1) COMPETITIVE BASIS.—In accordance with 7 this section, the Director, in consultation with the 8 Commission, shall, on a competitive basis, select 9 grant recipients from among eligible entities that 10 have submitted an application meeting the require- 11 ments under subsection (d). 12 (2) PRIORITY.—The Director, in consultation 13 with the Commission, in selecting grant recipients 14 under paragraph (1), shall give priority to eligible 15 entities that— 16 (A) serve workers in any industry or geo- 17 graphic area that is most highly at risk for em- 18 ployment discrimination, including harassment, 19 as identified by the Director, in consultation 20 with the Commission; and 21 (B) demonstrate past and ongoing work to 22 prevent employment discrimination, including 23 harassment. 24 (f) PERFORMANCE EVALUATIONS.— 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00150 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 151 •S 3219 IS (1) IN GENERAL.—Each grant recipient under 1 this section shall develop procedures for reporting, 2 monitoring, measuring, and evaluating the activities 3 of each program or activity funded under this sec- 4 tion. 5 (2) GUIDELINES.—The procedures required 6 under paragraph (1) shall be in accordance with 7 guidelines established by the Director, in consulta- 8 tion with the Commission. 9 SEC. 413. AUTHORIZATION OF APPROPRIATIONS. 10 There are authorized to be appropriated to the Direc- 11 tor such sums as may be necessary to carry out this sub- 12 title. 13 Subtitle B—Grants for Legal Assist- 14 ance for Low-Income Workers 15 SEC. 421. DEFINITIONS. 16 In this subtitle: 17 (1) SECRETARY.—The term ‘‘Secretary’’ means 18 the Secretary of Labor. 19 (2) COVERED CLIENT.—The term ‘‘covered cli- 20 ent’’ means an individual who— 21 (A) is an eligible client; and 22 (B) faces legal issues related to employ- 23 ment discrimination, including harassment. 24 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00151 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 152 •S 3219 IS (3) ELIGIBLE CLIENT.—The term ‘‘eligible cli- 1 ent’’ has the meaning given the term in section 1002 2 of the Legal Services Corporation Act (42 U.S.C. 3 2996a) and the regulations of the Legal Services 4 Corporation. 5 (4) ELIGIBLE ENTITY.—The term ‘‘eligible enti- 6 ty’’ means— 7 (A) a nonprofit organization; and 8 (B) an individual who is licensed to prac- 9 tice law. 10 SEC. 422. GRANTS FOR CIVIL LEGAL NEEDS RELATED TO 11 EMPLOYMENT DISCRIMINATION. 12 (a) GRANTS AUTHORIZED.— 13 (1) IN GENERAL.—The Secretary is authorized 14 to provide financial assistance to eligible entities to 15 enable those eligible entities to provide for the civil 16 legal needs of covered clients that are related to em- 17 ployment discrimination, and to provide for those cli- 18 ents such other services as are necessary to carry 19 out the purposes of this subtitle, including any of 20 the following activities: 21 (A) Providing covered clients advice, legal 22 services, or representation. 23 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00152 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 153 •S 3219 IS (B) Assisting covered clients in utilizing 1 the Commission employment discrimination 2 complaint process. 3 (C) Assisting covered clients in utilizing a 4 private employment complaint process. 5 (D) Conducting outreach activities to pub- 6 licize the services offered under this section. 7 (2) CITIZENSHIP STATUS.—An eligible entity 8 receiving a grant under this section shall provide 9 services to a covered client without regard to the 10 citizenship status or authorization to work of the 11 covered client. 12 (b) APPLICATION.—In order to be eligible to receive 13 a grant under this section, an eligible entity shall submit 14 an application to the Secretary at such time and in such 15 manner as the Secretary may require. Such application 16 shall include— 17 (1) a description of the services that the eligible 18 entity proposes to provide, implement, improve, or 19 expand; 20 (2) a description of the covered clients the eligi- 21 ble entity intends to serve; 22 (3) evidence of the eligible entity’s capacity to 23 provide services to covered clients with legal issues 24 related to employment discrimination, such as the el- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00153 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 154 •S 3219 IS igible entity’s record of success representing eligible 1 clients in employment-related legal matters, or the 2 eligible entity’s prior experience serving clients who 3 cannot afford legal counsel; 4 (4) an explanation of how the services the eligi- 5 ble entity intends to provide will assist covered cli- 6 ents in addressing legal issues related to employment 7 discrimination; and 8 (5) any other information that the Secretary 9 may require. 10 (c) AWARD BASIS.—The Secretary shall, in consulta- 11 tion with the Legal Services Corporation, award and over- 12 see grants under this section pursuant to such procedures 13 and criteria as the Secretary may require. Such proce- 14 dures and criteria shall include consideration of— 15 (1) whether the eligible entity has demonstrated 16 an understanding of the legal needs of covered cli- 17 ents; 18 (2) the eligible entity’s capacity to provide serv- 19 ices to covered clients with legal issues related to 20 employment discrimination, which may be dem- 21 onstrated through evidence described in subsection 22 (b)(3); 23 (3) the eligible entity’s knowledge of applicable 24 Federal, State, and local employment laws; 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00154 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 155 •S 3219 IS (4) the eligible entity’s capacity and ability to 1 access other resources; 2 (5) the eligible entity’s ability to ensure con- 3 tinuity of service to covered clients with pending 4 legal issues; and 5 (6) other factors that the Secretary determines 6 are relevant. 7 (d) EQUITABLE DISTRIBUTION.—To the extent prac- 8 ticable, in awarding grants under this section, the Sec- 9 retary, in consultation with the Legal Services Corpora- 10 tion, shall ensure that grants are made so as to provide 11 the most economical and effective delivery of legal assist- 12 ance to covered clients in both urban and rural areas, with 13 consideration of the geographic distribution of persons in 14 poverty. 15 (e) DURATION OF THE GRANT.— 16 (1) IN GENERAL.—A grant under this section 17 shall be for a term of not less than 1 year and not 18 more than 5 years. 19 (2) RENEWAL.—The Secretary may renew a 20 grant awarded under this section for a period of not 21 more than 2 additional years if the eligible entity 22 demonstrates that the eligible entity is effectively 23 using funds and that the renewal of funds will allow 24 the eligible entity to scale up the provision of serv- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00155 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 156 •S 3219 IS ices, replicate the program, or provide continuity of 1 service to covered clients. 2 (f) REPORT.—Two years after the enactment of this 3 section, the Secretary shall provide to the Committee on 4 Health, Education, Labor, and Pensions of the Senate and 5 the Committee on Education and Labor of the House of 6 Representatives a report on the implementation of the 7 grant program under this section, including— 8 (1) a description of the services provided using 9 grant assistance under this section, including a de- 10 tailed description of the types of legal issues ad- 11 dressed by eligible entities and the number of cov- 12 ered clients served; and 13 (2) an assessment of the number of individuals 14 facing one or more legal issues related to employ- 15 ment discrimination who cannot afford adequate 16 legal counsel, and the largest areas of unmet need. 17 SEC. 423. AUTHORIZATION OF APPROPRIATIONS. 18 There are authorized to be appropriated to carry out 19 this subtitle such sums as may be necessary. 20 Subtitle C—Grants for a System of 21 State Advocacy 22 SEC. 431. PURPOSE. 23 The purpose of this subtitle is to provide allotments 24 to support a system of advocacy (referred to in this sub- 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00156 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 157 •S 3219 IS title as a ‘‘system’’) in each State to protect the legal and 1 human rights of workers in accordance with applicable 2 Federal, State, and local employment discrimination laws. 3 SEC. 432. DEFINITIONS. 4 In this subtitle: 5 (1) RECORD.—The term ‘‘record’’ includes— 6 (A) a report prepared by an employer or 7 staff person charged with investigating reports 8 of employment discrimination that describes in- 9 cidents of possible discrimination and the steps 10 taken to investigate those incidents; 11 (B) statistical information related to em- 12 ployment decisions and the race, sex (including 13 sexual orientation and gender identity), religion, 14 national origin, age, disability, genetic informa- 15 tion, or other protected characteristics of work- 16 ers; 17 (C) records described in section 11(c) of 18 the Fair Labor Standards Act (29 U.S.C. 19 211(c)); and 20 (D) any such similar record, as may be 21 necessary to carry out the purposes of this sub- 22 title. 23 (2) SECRETARY.—The term ‘‘Secretary’’ means 24 the Secretary of Labor. 25 VerDate Sep 11 2014 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00157 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 158 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00158 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 159 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00159 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 160 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00160 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 161 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00161 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 162 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00162 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 163 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00163 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 164 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00164 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 165 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00165 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 166 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00166 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 167 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00167 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 168 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00168 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 169 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00169 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 170 •S 3219 IS 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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00170 Fmt 6652 Sfmt 6201 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS 171 •S 3219 IS (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 19:45 Nov 19, 2021 Jkt 029200 PO 00000 Frm 00171 Fmt 6652 Sfmt 6301 E:\BILLS\S3219.IS S3219 pamtmann on DSKBC07HB2PROD with BILLS