Text of US SB 811 (2012)

II 112TH CONGRESS 1ST SESSION S. 811 To prohibit employment discrimination on the basis of sexual orientation or gender identity. IN THE SENATE OF THE UNITED STATES APRIL 13, 2011 Mr. MERKLEY (for himself, Mr. KIRK, Mr. HARKIN, and Ms. COLLINS) intro- duced the following bill; which was read twice and referred to the Com- mittee on Health, Education, Labor, and Pensions A BILL To prohibit employment discrimination on the basis of sexual orientation or gender identity. 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 ‘‘Employment Non-Dis- 4 crimination Act of 2011’’. 5 SEC. 2. PURPOSES. 6 The purposes of this Act are— 7 (1) to address the history and widespread pat- 8 tern of discrimination on the basis of sexual orienta- 9 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 2 •S 811 IS tion or gender identity by private sector employers 1 and local, State, and Federal government employers; 2 (2) to provide a comprehensive Federal prohibi- 3 tion of employment discrimination on the basis of 4 sexual orientation or gender identity, including 5 meaningful and effective remedies for any such dis- 6 crimination; and 7 (3) to invoke congressional powers, including 8 the powers to enforce the 14th Amendment to the 9 Constitution, and to regulate interstate commerce 10 and provide for the general welfare pursuant to sec- 11 tion 8 of article I of the Constitution, in order to 12 prohibit employment discrimination on the basis of 13 sexual orientation or gender identity. 14 SEC. 3. DEFINITIONS. 15 (a) IN GENERAL.—In this Act: 16 (1) COMMISSION.—The term ‘‘Commission’’ 17 means the Equal Employment Opportunity Commis- 18 sion. 19 (2) COVERED ENTITY.—The term ‘‘covered en- 20 tity’’ means an employer, employment agency, labor 21 organization, or joint labor-management committee. 22 (3) EMPLOYEE.— 23 (A) IN GENERAL.—The term ‘‘employee’’ 24 means— 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 3 •S 811 IS (i) an employee as defined in section 1 701(f) of the Civil Rights Act of 1964 (42 2 U.S.C. 2000e(f)); 3 (ii) a State employee to which section 4 302(a)(1) of the Government Employee 5 Rights Act of 1991 (42 U.S.C. 2000e– 6 16b(a)(1)) applies; 7 (iii) a covered employee, as defined in 8 section 101 of the Congressional Account- 9 ability Act of 1995 (2 U.S.C. 1301) or sec- 10 tion 411(c) of title 3, United States Code; 11 or 12 (iv) an employee or applicant to which 13 section 717(a) of the Civil Rights Act of 14 1964 (42 U.S.C. 2000e–16(a)) applies. 15 (B) EXCEPTION.—The provisions of this 16 Act that apply to an employee or individual 17 shall not apply to a volunteer who receives no 18 compensation. 19 (4) EMPLOYER.—The term ‘‘employer’’ 20 means— 21 (A) a person engaged in an industry affect- 22 ing commerce (as defined in section 701(h) of 23 the Civil Rights Act of 1964 (42 U.S.C. 24 2000e(h)) who has 15 or more employees (as 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 4 •S 811 IS defined in subparagraphs (A)(i) and (B) of 1 paragraph (3)) for each working day in each of 2 20 or more calendar weeks in the current or 3 preceding calendar year, and any agent of such 4 a person, but does not include a bona fide pri- 5 vate membership club (other than a labor orga- 6 nization) that is exempt from taxation under 7 section 501(c) of the Internal Revenue Code of 8 1986; 9 (B) an employing authority to which sec- 10 tion 302(a)(1) of the Government Employee 11 Rights Act of 1991 applies; 12 (C) an employing office, as defined in sec- 13 tion 101 of the Congressional Accountability 14 Act of 1995 or section 411(c) of title 3, United 15 States Code; or 16 (D) an entity to which section 717(a) of 17 the Civil Rights Act of 1964 applies. 18 (5) EMPLOYMENT AGENCY.—The term ‘‘em- 19 ployment agency’’ has the meaning given the term in 20 section 701(c) of the Civil Rights Act of 1964 (42 21 U.S.C. 2000e(c)). 22 (6) GENDER IDENTITY.—The term ‘‘gender 23 identity’’ means the gender-related identity, appear- 24 ance, or mannerisms or other gender-related charac- 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 5 •S 811 IS teristics of an individual, with or without regard to 1 the individual’s designated sex at birth. 2 (7) LABOR ORGANIZATION.—The term ‘‘labor 3 organization’’ has the meaning given the term in 4 section 701(d) of the Civil Rights Act of 1964 (42 5 U.S.C. 2000e(d)). 6 (8) PERSON.—The term ‘‘person’’ has the 7 meaning given the term in section 701(a) of the 8 Civil Rights Act of 1964 (42 U.S.C. 2000e(a)). 9 (9) SEXUAL ORIENTATION.—The term ‘‘sexual 10 orientation’’ means homosexuality, heterosexuality, 11 or bisexuality. 12 (10) STATE.—The term ‘‘State’’ has the mean- 13 ing given the term in section 701(i) of the Civil 14 Rights Act of 1964 (42 U.S.C. 2000e(i)). 15 (b) APPLICATION OF DEFINITIONS.—For purposes of 16 this section, a reference in section 701 of the Civil Rights 17 Act of 1964— 18 (1) to an employee or an employer shall be con- 19 sidered to refer to an employee (as defined in sub- 20 section (a)(3)) or an employer (as defined in sub- 21 section (a)(4)), respectively, except as provided in 22 paragraph (2) of this subsection; and 23 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 6 •S 811 IS (2) to an employer in subsection (f) of that sec- 1 tion shall be considered to refer to an employer (as 2 defined in subsection (a)(4)(A)). 3 SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED. 4 (a) EMPLOYER PRACTICES.—It shall be an unlawful 5 employment practice for an employer— 6 (1) to fail or refuse to hire or to discharge any 7 individual, or otherwise discriminate against any in- 8 dividual with respect to the compensation, terms, 9 conditions, or privileges of employment of the indi- 10 vidual, because of such individual’s actual or per- 11 ceived sexual orientation or gender identity; or 12 (2) to limit, segregate, or classify the employees 13 or applicants for employment of the employer in any 14 way that would deprive or tend to deprive any indi- 15 vidual of employment or otherwise adversely affect 16 the status of the individual as an employee, because 17 of such individual’s actual or perceived sexual ori- 18 entation or gender identity. 19 (b) EMPLOYMENT AGENCY PRACTICES.—It shall be 20 an unlawful employment practice for an employment agen- 21 cy to fail or refuse to refer for employment, or otherwise 22 to discriminate against, any individual because of the ac- 23 tual or perceived sexual orientation or gender identity of 24 the individual or to classify or refer for employment any 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 7 •S 811 IS individual on the basis of the actual or perceived sexual 1 orientation or gender identity of the individual. 2 (c) LABOR ORGANIZATION PRACTICES.—It shall be 3 an unlawful employment practice for a labor organiza- 4 tion— 5 (1) to exclude or to expel from its membership, 6 or otherwise to discriminate against, any individual 7 because of the actual or perceived sexual orientation 8 or gender identity of the individual; 9 (2) to limit, segregate, or classify its member- 10 ship or applicants for membership, or to classify or 11 fail or refuse to refer for employment any individual, 12 in any way that would deprive or tend to deprive any 13 individual of employment, or would limit such em- 14 ployment or otherwise adversely affect the status of 15 the individual as an employee or as an applicant for 16 employment because of such individual’s actual or 17 perceived sexual orientation or gender identity; or 18 (3) to cause or attempt to cause an employer to 19 discriminate against an individual in violation of this 20 section. 21 (d) TRAINING PROGRAMS.—It shall be an unlawful 22 employment practice for any employer, labor organization, 23 or joint labor-management committee controlling appren- 24 ticeship or other training or retraining, including on-the- 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 8 •S 811 IS job training programs, to discriminate against any indi- 1 vidual because of the actual or perceived sexual orientation 2 or gender identity of the individual in admission to, or em- 3 ployment in, any program established to provide appren- 4 ticeship or other training. 5 (e) ASSOCIATION.—An unlawful employment practice 6 described in any of subsections (a) through (d) shall be 7 considered to include an action described in that sub- 8 section, taken against an individual based on the actual 9 or perceived sexual orientation or gender identity of a per- 10 son with whom the individual associates or has associated. 11 (f) NO PREFERENTIAL TREATMENT OR QUOTAS.— 12 Nothing in this Act shall be construed or interpreted to 13 require or permit— 14 (1) any covered entity to grant preferential 15 treatment to any individual or to any group because 16 of the actual or perceived sexual orientation or gen- 17 der identity of such individual or group on account 18 of an imbalance which may exist with respect to the 19 total number or percentage of persons of any actual 20 or perceived sexual orientation or gender identity 21 employed by any employer, referred or classified for 22 employment by any employment agency or labor or- 23 ganization, admitted to membership or classified by 24 any labor organization, or admitted to, or employed 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 9 •S 811 IS in, any apprenticeship or other training program, in 1 comparison with the total number or percentage of 2 persons of such actual or perceived sexual orienta- 3 tion or gender identity in any community, State, sec- 4 tion, or other area, or in the available work force in 5 any community, State, section, or other area; or 6 (2) the adoption or implementation by a cov- 7 ered entity of a quota on the basis of actual or per- 8 ceived sexual orientation or gender identity. 9 (g) DISPARATE IMPACT.—Only disparate treatment 10 claims may be brought under this Act. 11 SEC. 5. RETALIATION PROHIBITED. 12 It shall be an unlawful employment practice for a cov- 13 ered entity to discriminate against an individual because 14 such individual— 15 (1) opposed any practice made an unlawful em- 16 ployment practice by this Act; or 17 (2) made a charge, testified, assisted, or partici- 18 pated in any manner in an investigation, proceeding, 19 or hearing under this Act. 20 SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS. 21 This Act shall not apply to a corporation, association, 22 educational institution or institution of learning, or society 23 that is exempt from the religious discrimination provisions 24 of title VII of the Civil Rights Act of 1964 pursuant (42 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 10 •S 811 IS U.S.C. 2000e et seq.) to section 702(a) or 703(e)(2) of 1 such Act (42 U.S.C. 2000e–1(a), 2000e–2(e)(2)). 2 SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED 3 FORCES; VETERANS’ PREFERENCES. 4 (a) ARMED FORCES.— 5 (1) EMPLOYMENT.—In this Act, the term ‘‘em- 6 ployment’’ does not apply to the relationship be- 7 tween the United States and members of the Armed 8 Forces. 9 (2) ARMED FORCES.—In paragraph (1) the 10 term ‘‘Armed Forces’’ means the Army, Navy, Air 11 Force, Marine Corps, and Coast Guard. 12 (b) VETERANS’ PREFERENCES.—This title does not 13 repeal or modify any Federal, State, territorial, or local 14 law creating a special right or preference concerning em- 15 ployment for a veteran. 16 SEC. 8. CONSTRUCTION. 17 (a) EMPLOYER RULES AND POLICIES.— 18 (1) IN GENERAL.—Nothing in this Act shall be 19 construed to prohibit a covered entity from enforcing 20 rules and policies that do not intentionally cir- 21 cumvent the purposes of this Act, if the rules or 22 policies are designed for, and uniformly applied to, 23 all individuals regardless of actual or perceived sex- 24 ual orientation or gender identity. 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 11 •S 811 IS (2) SEXUAL HARASSMENT.—Nothing in this 1 Act shall be construed to limit a covered entity from 2 taking adverse action against an individual because 3 of a charge of sexual harassment against that indi- 4 vidual, provided that rules and policies on sexual 5 harassment, including when adverse action is taken, 6 are designed for, and uniformly applied to, all indi- 7 viduals regardless of actual or perceived sexual ori- 8 entation or gender identity. 9 (3) CERTAIN SHARED FACILITIES.—Nothing in 10 this Act shall be construed to establish an unlawful 11 employment practice based on actual or perceived 12 gender identity due to the denial of access to shared 13 shower or dressing facilities in which being seen 14 unclothed is unavoidable, provided that the employer 15 provides reasonable access to adequate facilities that 16 are not inconsistent with the employee’s gender iden- 17 tity as established with the employer at the time of 18 employment or upon notification to the employer 19 that the employee has undergone or is undergoing 20 gender transition, whichever is later. 21 (4) ADDITIONAL FACILITIES NOT REQUIRED.— 22 Nothing in this Act shall be construed to require the 23 construction of new or additional facilities. 24 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 12 •S 811 IS (5) DRESS AND GROOMING STANDARDS.—Noth- 1 ing in this Act shall prohibit an employer from re- 2 quiring an employee, during the employee’s hours at 3 work, to adhere to reasonable dress or grooming 4 standards not prohibited by other provisions of Fed- 5 eral, State, or local law, provided that the employer 6 permits any employee who has undergone gender 7 transition prior to the time of employment, and any 8 employee who has notified the employer that the em- 9 ployee has undergone or is undergoing gender tran- 10 sition after the time of employment, to adhere to the 11 same dress or grooming standards as apply for the 12 gender to which the employee has transitioned or is 13 transitioning. 14 (b) EMPLOYEE BENEFITS.—Nothing in this Act shall 15 be construed to require a covered entity to treat an unmar- 16 ried couple in the same manner as the covered entity 17 treats a married couple for purposes of employee benefits. 18 (c) DEFINITION OF MARRIAGE.—In this Act, the 19 term ‘‘married’’ refers to marriage as such term is defined 20 in section 7 of title 1, United States Code (commonly 21 known as the ‘‘Defense of Marriage Act’’). 22 SEC. 9. COLLECTION OF STATISTICS PROHIBITED. 23 The Commission shall not collect statistics on actual 24 or perceived sexual orientation or gender identity from 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 13 •S 811 IS covered entities, or compel the collection of such statistics 1 by covered entities. 2 SEC. 10. ENFORCEMENT. 3 (a) ENFORCEMENT POWERS.—With respect to the 4 administration and enforcement of this Act in the case of 5 a claim alleged by an individual for a violation of this 6 Act— 7 (1) the Commission shall have the same powers 8 as the Commission has to administer and enforce— 9 (A) title VII of the Civil Rights Act of 10 1964 (42 U.S.C. 2000e et seq.); or 11 (B) sections 302 and 304 of the Govern- 12 ment Employee Rights Act of 1991 (42 U.S.C. 13 2000e–16b and 2000e–16c), 14 in the case of a claim alleged by such individual for 15 a violation of such title, or of section 302(a)(1) of 16 the Government Employee Rights Act of 1991 (42 17 U.S.C. 2000e–16b(a)(1)), respectively; 18 (2) the Librarian of Congress shall have the 19 same powers as the Librarian of Congress has to ad- 20 minister and enforce title VII of the Civil Rights Act 21 of 1964 (42 U.S.C. 2000e et seq.) in the case of a 22 claim alleged by such individual for a violation of 23 such title; 24 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 14 •S 811 IS (3) the Board (as defined in section 101 of the 1 Congressional Accountability Act of 1995 (2 U.S.C. 2 1301)) shall have the same powers as the Board has 3 to administer and enforce the Congressional Ac- 4 countability Act of 1995 (2 U.S.C. 1301 et seq.) in 5 the case of a claim alleged by such individual for a 6 violation of section 201(a)(1) of such Act (2 U.S.C. 7 1311(a)(1)); 8 (4) the Attorney General shall have the same 9 powers as the Attorney General has to administer 10 and enforce— 11 (A) title VII of the Civil Rights Act of 12 1964 (42 U.S.C. 2000e et seq.); or 13 (B) sections 302 and 304 of the Govern- 14 ment Employee Rights Act of 1991 (42 U.S.C. 15 2000e–16b and 2000e–16c); 16 in the case of a claim alleged by such individual for 17 a violation of such title, or of section 302(a)(1) of 18 the Government Employee Rights Act of 1991 (42 19 U.S.C. 2000e–16b(a)(1)), respectively; 20 (5) the President, the Commission, and the 21 Merit Systems Protection Board shall have the same 22 powers as the President, the Commission, and the 23 Board, respectively, have to administer and enforce 24 chapter 5 of title 3, United States Code, in the case 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 15 •S 811 IS of a claim alleged by such individual for a violation 1 of section 411 of such title; and 2 (6) a court of the United States shall have the 3 same jurisdiction and powers as the court has to en- 4 force— 5 (A) title VII of the Civil Rights Act of 6 1964 (42 U.S.C. 2000e et seq.) in the case of 7 a claim alleged by such individual for a viola- 8 tion of such title; 9 (B) sections 302 and 304 of the Govern- 10 ment Employee Rights Act of 1991 (42 U.S.C. 11 2000e–16b and 2000e–16c) in the case of a 12 claim alleged by such individual for a violation 13 of section 302(a)(1) of such Act (42 U.S.C. 14 2000e–16b(a)(1)); 15 (C) the Congressional Accountability Act 16 of 1995 (2 U.S.C. 1301 et seq.) in the case of 17 a claim alleged by such individual for a viola- 18 tion of section 201(a)(1) of such Act (2 U.S.C. 19 1311(a)(1)); and 20 (D) chapter 5 of title 3, United States 21 Code, in the case of a claim alleged by such in- 22 dividual for a violation of section 411 of such 23 title. 24 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 16 •S 811 IS (b) PROCEDURES AND REMEDIES.—The procedures 1 and remedies applicable to a claim alleged by an individual 2 for a violation of this Act are— 3 (1) the procedures and remedies applicable for 4 a violation of title VII of the Civil Rights Act of 5 1964 (42 U.S.C. 2000e et seq.) in the case of a 6 claim alleged by such individual for a violation of 7 such title; 8 (2) the procedures and remedies applicable for 9 a violation of section 302(a)(1) of the Government 10 Employee Rights Act of 1991 (42 U.S.C. 2000e– 11 16b(a)(1)) in the case of a claim alleged by such in- 12 dividual for a violation of such section; 13 (3) the procedures and remedies applicable for 14 a violation of section 201(a)(1) of the Congressional 15 Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) in 16 the case of a claim alleged by such individual for a 17 violation of such section; and 18 (4) the procedures and remedies applicable for 19 a violation of section 411 of title 3, United States 20 Code, in the case of a claim alleged by such indi- 21 vidual for a violation of such section. 22 (c) OTHER APPLICABLE PROVISIONS.—With respect 23 to a claim alleged by a covered employee (as defined in 24 section 101 of the Congressional Accountability Act of 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 17 •S 811 IS 1995 (2 U.S.C. 1301)) for a violation of this Act, title 1 III of the Congressional Accountability Act of 1995 (2 2 U.S.C. 1381 et seq.) shall apply in the same manner as 3 such title applies with respect to a claim alleged by such 4 a covered employee for a violation of section 201(a)(1) of 5 such Act (2 U.S.C. 1311(a)(1)). 6 SEC. 11. STATE AND FEDERAL IMMUNITY. 7 (a) ABROGATION OF STATE IMMUNITY.—A State 8 shall not be immune under the 11th Amendment to the 9 Constitution from a suit brought in a Federal court of 10 competent jurisdiction for a violation of this Act. 11 (b) WAIVER OF STATE IMMUNITY.— 12 (1) IN GENERAL.— 13 (A) WAIVER.—A State’s receipt or use of 14 Federal financial assistance for any program or 15 activity of a State shall constitute a waiver of 16 sovereign immunity, under the 11th Amend- 17 ment to the Constitution or otherwise, to a suit 18 brought by an employee or applicant for em- 19 ployment of that program or activity under this 20 Act for a remedy authorized under subsection 21 (d). 22 (B) DEFINITION.—In this paragraph, the 23 term ‘‘program or activity’’ has the meaning 24 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 18 •S 811 IS given the term in section 606 of the Civil 1 Rights Act of 1964 (42 U.S.C. 2000d–4a). 2 (2) EFFECTIVE DATE.—With respect to a par- 3 ticular program or activity, paragraph (1) applies to 4 conduct occurring on or after the day, after the date 5 of enactment of this Act, on which a State first re- 6 ceives or uses Federal financial assistance for that 7 program or activity. 8 (c) REMEDIES AGAINST STATE OFFICIALS.—An offi- 9 cial of a State may be sued in the official capacity of the 10 official by any employee or applicant for employment who 11 has complied with the applicable procedures of section 10, 12 for equitable relief that is authorized under this Act. In 13 such a suit the court may award to the prevailing party 14 those costs authorized by section 722 of the Revised Stat- 15 utes (42 U.S.C. 1988). 16 (d) REMEDIES AGAINST THE UNITED STATES AND 17 THE STATES.—Notwithstanding any other provision of 18 this Act, in an action or administrative proceeding against 19 the United States or a State for a violation of this Act, 20 remedies (including remedies at law and in equity, and 21 interest) are available for the violation to the same extent 22 as the remedies are available for a violation of title VII 23 of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) 24 by a private entity, except that— 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 19 •S 811 IS (1) punitive damages are not available; and 1 (2) compensatory damages are available to the 2 extent specified in section 1977A(b) of the Revised 3 Statutes (42 U.S.C. 1981a(b)). 4 SEC. 12. ATTORNEYS’ FEES. 5 Notwithstanding any other provision of this Act, in 6 an action or administrative proceeding for a violation of 7 this Act, an entity described in section 10(a) (other than 8 paragraph (4) of such section), in the discretion of the 9 entity, may allow the prevailing party, other than the 10 Commission or the United States, a reasonable attorney’s 11 fee (including expert fees) as part of the costs. The Com- 12 mission and the United States shall be liable for the costs 13 to the same extent as a private person. 14 SEC. 13. POSTING NOTICES. 15 A covered entity who is required to post notices de- 16 scribed in section 711 of the Civil Rights Act of 1964 (42 17 U.S.C. 2000e–10) shall post notices for employees, appli- 18 cants for employment, and members, to whom the provi- 19 sions specified in section 10(b) apply, that describe the 20 applicable provisions of this Act in the manner prescribed 21 by, and subject to the penalty provided under, section 711 22 of the Civil Rights Act of 1964. 23 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 20 •S 811 IS SEC. 14. REGULATIONS. 1 (a) IN GENERAL.—Except as provided in subsections 2 (b), (c), and (d), the Commission shall have authority to 3 issue regulations to carry out this Act. 4 (b) LIBRARIAN OF CONGRESS.—The Librarian of 5 Congress shall have authority to issue regulations to carry 6 out this Act with respect to employees and applicants for 7 employment of the Library of Congress. 8 (c) BOARD.—The Board referred to in section 9 10(a)(3) shall have authority to issue regulations to carry 10 out this Act, in accordance with section 304 of the Con- 11 gressional Accountability Act of 1995 (2 U.S.C. 1384), 12 with respect to covered employees, as defined in section 13 101 of such Act (2 U.S.C. 1301). 14 (d) PRESIDENT.—The President shall have authority 15 to issue regulations to carry out this Act with respect to 16 covered employees, as defined in section 411(c) of title 3, 17 United States Code, and applicants for employment as 18 such employees. 19 SEC. 15. RELATIONSHIP TO OTHER LAWS. 20 This Act shall not invalidate or limit the rights, rem- 21 edies, or procedures available to an individual claiming 22 discrimination prohibited under any other Federal law or 23 regulation or any law or regulation of a State or political 24 subdivision of a State. 25 VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS 21 •S 811 IS SEC. 16. SEVERABILITY. 1 If any provision of this Act, or the application of the 2 provision to any person or circumstance, is held to be in- 3 valid, the remainder of this Act and the application of the 4 provision to any other person or circumstances shall not 5 be affected by the invalidity. 6 SEC. 17. EFFECTIVE DATE. 7 This Act shall take effect on the date that is 6 8 months after the date of enactment of this Act and shall 9 not apply to conduct occurring before the effective date. 10 Æ VerDate Mar 15 2010 18:07 Apr 14, 2011 Jkt 099200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6301 E:\BILLS\S811.IS S811 srobinson on DSKHWCL6B1PROD with BILLS