[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2981 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 2981
To prohibit employment discrimination on the basis of sexual
orientation or gender identity.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 19, 2009
Mr. Frank of Massachusetts (for himself, Mr. George Miller of
California, Mr. Conyers, Ms. Baldwin, Mr. Polis of Colorado, Mr.
Andrews, Ms. Ros-Lehtinen, Mr. Castle, Mr. Kirk, Mr. Lance, and Mr.
Platts) introduced the following bill; which was referred to the
Committee on Education and Labor, and in addition to the Committees on
House Administration, Oversight and Government Reform, and the
Judiciary, for a period to be subsequently determined by the Speaker,
in each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To prohibit employment discrimination on the basis of sexual
orientation or gender identity.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Employment Non-Discrimination Act of
2009''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to address the history and widespread pattern of
irrational discrimination on the basis of sexual orientation or
gender identity by private sector employers and local, State,
and Federal government employers;
(2) to provide a comprehensive Federal prohibition of
employment discrimination on the basis of sexual orientation or
gender identity;
(3) to provide meaningful and effective remedies for
employment discrimination on the basis of sexual orientation or
gender identity; and
(4) to invoke congressional powers, including the powers to
enforce the 14th amendment to the Constitution, and to regulate
interstate commerce and provide for the general welfare
pursuant to section 8 of article I of the Constitution, in
order to prohibit employment discrimination on the basis of
sexual orientation or gender identity.
SEC. 3. DEFINITIONS.
(a) In General.--In this Act:
(1) Commission.--The term ``Commission'' means the Equal
Employment Opportunity Commission.
(2) Covered entity.--The term ``covered entity'' means an
employer, employment agency, labor organization, or joint
labor-management committee.
(3) Employee.--
(A) In general.--The term ``employee'' means--
(i) an employee as defined in section
701(f) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(f);
(ii) a Presidential appointee or State
employee to which section 302(a)(1) of the
Government Employee Rights Act of 1991 (42
U.S.C. 2000e-16(a)(1)) applies;
(iii) a covered employee, as defined in
section 101 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1301) or section 411(c)
of title 3, United States Code; or
(iv) an employee or applicant to which
section 717(a) of the Civil Rights Act of 1964
(42 U.S.C. 2000e-16(a)) applies.
(B) Exception.--The provisions of this Act that
apply to an employee or individual shall not apply to a
volunteer who receives no compensation.
(4) Employer.--The term ``employer'' means--
(A) a person engaged in an industry affecting
commerce (as defined in section 701(h) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or
more employees (as defined in subparagraphs (A)(i) and
(B) of paragraph (3)) for each working day in each of
20 or more calendar weeks in the current or preceding
calendar year, and any agent of such a person, but does
not include a bona fide private membership club (other
than a labor organization) that is exempt from taxation
under section 501(c) of the Internal Revenue Code of
1986;
(B) an employing authority to which section
302(a)(1) of the Government Employee Rights Act of 1991
applies;
(C) an employing office, as defined in section 101
of the Congressional Accountability Act of 1995 or
section 411(c) of title 3, United States Code; or
(D) an entity to which section 717(a) of the Civil
Rights Act of 1964 applies.
(5) Employment agency.--The term ``employment agency'' has
the meaning given the term in section 701(c) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(c)).
(6) Gender identity.--The term ``gender identity'' means
the gender-related identity, appearance, or mannerisms or other
gender-related characteristics of an individual, with or
without regard to the individual's designated sex at birth.
(7) Labor organization.--The term ``labor organization''
has the meaning given the term in section 701(d) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(d)).
(8) Person.--The term ``person'' has the meaning given the
term in section 701(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(a)).
(9) Sexual orientation.--The term ``sexual orientation''
means homosexuality, heterosexuality, or bisexuality.
(10) State.--The term ``State'' has the meaning given the
term in section 701(i) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(i)).
(b) Application of Definitions.--For purposes of this section, a
reference in section 701 of the Civil Rights Act of 1964--
(1) to an employee or an employer shall be considered to
refer to an employee (as defined in paragraph (3)) or an
employer (as defined in paragraph (4)), respectively, except as
provided in paragraph (2) below; and
(2) to an employer in subsection (f) of that section shall
be considered to refer to an employer (as defined in paragraph
(4)(A)).
SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.
(a) Employer Practices.--It shall be an unlawful employment
practice for an employer--
(1) to fail or refuse to hire or to discharge any
individual, or otherwise discriminate against any individual
with respect to the compensation, terms, conditions, or
privileges of employment of the individual, because of such
individual's actual or perceived sexual orientation or gender
identity; or
(2) to limit, segregate, or classify the employees or
applicants for employment of the employer in any way that would
deprive or tend to deprive any individual of employment or
otherwise adversely affect the status of the individual as an
employee, because of such individual's actual or perceived
sexual orientation or gender identity.
(b) Employment Agency Practices.--It shall be an unlawful
employment practice for an employment agency to fail or refuse to refer
for employment, or otherwise to discriminate against, any individual
because of the actual or perceived sexual orientation or gender
identity of the individual or to classify or refer for employment any
individual on the basis of the actual or perceived sexual orientation
or gender identity of the individual.
(c) Labor Organization Practices.--It shall be an unlawful
employment practice for a labor organization--
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of
the actual or perceived sexual orientation or gender identity
of the individual;
(2) to limit, segregate, or classify its membership or
applicants for membership, or to classify or fail or refuse to
refer for employment any individual, in any way that would
deprive or tend to deprive any individual of employment, or
would limit such employment or otherwise adversely affect the
status of the individual as an employee or as an applicant for
employment because of such individual's actual or perceived
sexual orientation or gender identity; or
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.
(d) Training Programs.--It shall be an unlawful employment practice
for any employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any
individual because of the actual or perceived sexual orientation or
gender identity of the individual in admission to, or employment in,
any program established to provide apprenticeship or other training.
(e) Association.--An unlawful employment practice described in any
of subsections (a) through (d) shall be considered to include an action
described in that subsection, taken against an individual based on the
actual or perceived sexual orientation or gender identity of a person
with whom the individual associates or has associated.
(f) No Preferential Treatment or Quotas.--Nothing in this Act shall
be construed or interpreted to require or permit--
(1) any covered entity to grant preferential treatment to
any individual or to any group because of the actual or
perceived sexual orientation or gender identity of such
individual or group on account of an imbalance which may exist
with respect to the total number or percentage of persons of
any actual or perceived sexual orientation or gender identity
employed by any employer, referred or classified for employment
by any employment agency or labor organization, admitted to
membership or classified by any labor organization, or admitted
to, or employed in, any apprenticeship or other training
program, in comparison with the total number or percentage of
persons of such actual or perceived sexual orientation or
gender identity in any community, State, section, or other
area, or in the available work force in any community, State,
section, or other area; or
(2) the adoption or implementation by a covered entity of a
quota on the basis of actual or perceived sexual orientation or
gender identity.
(g) Disparate Impact.--Only disparate treatment claims may be
brought under this Act.
SEC. 5. RETALIATION PROHIBITED.
It shall be an unlawful employment practice for a covered entity to
discriminate against an individual because such individual (1) opposed
any practice made an unlawful employment practice by this Act; or (2)
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this Act.
SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.
This Act shall not apply to a corporation, association, educational
institution, or society that is exempt from the religious
discrimination provisions of title VII of the Civil Rights Acts of 1964
pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-
1(a); 2000e-2(e)(2)).
SEC. 7. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS'
PREFERENCES.
(a) Armed Forces.--
(1) Employment.--In this Act, the term ``employment'' does
not apply to the relationship between the United States and
members of the Armed Forces.
(2) Armed forces.--In paragraph (1) the term ``Armed
Forces'' means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
(b) Veterans' Preferences.--This title does not repeal or modify
any Federal, State, territorial, or local law creating a special right
or preference concerning employment for a veteran.
SEC. 8. CONSTRUCTION.
(a) Employer Rules and Policies.--
(1) In general.--Nothing in this Act shall be construed to
prohibit a covered entity from enforcing rules and policies
that do not intentionally circumvent the purposes of this Act,
if the rules or policies are designed for, and uniformly
applied to, all individuals regardless of actual or perceived
sexual orientation or gender identity.
(2) Sexual harassment.--Nothing in this Act shall be
construed to limit a covered entity from taking adverse action
against an individual because of a charge of sexual harassment
against that individual, provided that rules and policies on
sexual harassment, including when adverse action is taken, are
designed for, and uniformly applied to, all individuals
regardless of actual or perceived sexual orientation or gender
identity.
(3) Certain shared facilities.--Nothing in this Act shall
be construed to establish an unlawful employment practice based
on actual or perceived gender identity due to the denial of
access to shared shower or dressing facilities in which being
seen unclothed is unavoidable, provided that the employer
provides reasonable access to adequate facilities that are not
inconsistent with the employee's gender identity as established
with the employer at the time of employment or upon
notification to the employer that the employee has undergone or
is undergoing gender transition, whichever is later.
(4) Additional facilities not required.--Nothing in this
Act shall be construed to require the construction of new or
additional facilities.
(5) Dress and grooming standards.--Nothing in this Act
shall prohibit an employer from requiring an employee, during
the employee's hours at work, to adhere to reasonable dress or
grooming standards not prohibited by other provisions of
Federal, State, or local law, provided that the employer
permits any employee who has undergone gender transition prior
to the time of employment, and any employee who has notified
the employer that the employee has undergone or is undergoing
gender transition after the time of employment, to adhere to
the same dress or grooming standards for the gender to which
the employee has transitioned or is transitioning.
(b) Employee Benefits.--Nothing in this Act shall be construed to
require a covered entity to treat an unmarried couple in the same
manner as the covered entity treats a married couple for purposes of
employee benefits.
(c) Definition of Marriage.--As used in this Act, the term
``married'' refers to marriage as such term is defined in section 7 of
title I, United States Code (referred to as the Defense of Marriage
Act).
SEC. 9. COLLECTION OF STATISTICS PROHIBITED.
The Commission shall not collect statistics on actual or perceived
sexual orientation or gender identity from covered entities, or compel
the collection of such statistics by covered entities.
SEC. 10. ENFORCEMENT.
(a) Enforcement Powers.--With respect to the administration and
enforcement of this Act in the case of a claim alleged by an individual
for a violation of this Act--
(1) the Commission shall have the same powers as the
Commission has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.); or
(B) sections 302 and 304 of the Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c),
in the case of a claim alleged by such individual for a
violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
16b(a)(1)), respectively;
(2) the Librarian of Congress shall have the same powers as
the Librarian of Congress has to administer and enforce title
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)
in the case of a claim alleged by such individual for a
violation of such title;
(3) the Board (as defined in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301)) shall
have the same powers as the Board has to administer and enforce
the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et
seq.) in the case of a claim alleged by such individual for a
violation of section 201(a)(1) of such Act (2 U.S.C.
1311(a)(1));
(4) the Attorney General shall have the same powers as the
Attorney General has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.); or
(B) sections 302 and 304 of the Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c);
in the case of a claim alleged by such individual for a
violation of such title, or of section 302(a)(1) of the
Government Employee Rights Act of 1991 (42 U.S.C. 2000e-
16b(a)(1)), respectively;
(5) the President, the Commission, and the Merit Systems
Protection Board shall have the same powers as the President,
the Commission, and the Board, respectively, have to administer
and enforce chapter 5 of title 3, United States Code, in the
case of a claim alleged by such individual for a violation of
section 411 of such title; and
(6) a court of the United States shall have the same
jurisdiction and powers as the court has to enforce--
(A) title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) in the case of a claim alleged by
such individual for a violation of such title;
(B) sections 302 and 304 of the Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16b and 2000e-16c)
in the case of a claim alleged by such individual for a
violation of section 302(a)(1) of such Act (42 U.S.C.
2000e-16b(a)(1));
(C) the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) in the case of a claim alleged by
such individual for a violation of section 201(a)(1) of
such Act (2 U.S.C. 1311(a)(1)); and
(D) chapter 5 of title 3, United States Code, in
the case of a claim alleged by such individual for a
violation of section 411 of such title.
(b) Procedures and Remedies.--The procedures and remedies
applicable to a claim alleged by an individual for a violation of this
Act are--
(1) the procedures and remedies applicable for a violation
of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e
et seq.) in the case of a claim alleged by such individual for
a violation of such title;
(2) the procedures and remedies applicable for a violation
of section 302(a)(1) of the Government Employee Rights Act of
1991 (2 U.S.C. 1202(a)(1)) in the case of a claim alleged by
such individual for a violation of such section;
(3) the procedures and remedies applicable for a violation
of section 201(a)(1) of the Congressional Accountability Act of
1995 (2 U.S.C. 1311(a)(1)) in the case of a claim alleged by
such individual for a violation of such section; and
(4) the procedures and remedies applicable for a violation
of section 411 of title 3, United States Code, in the case of a
claim alleged by such individual for a violation of such
section.
(c) Other Applicable Provisions.--With respect to a claim alleged
by a covered employee (as defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301)) for a violation of this
Act, title III of the Congressional Accountability Act of 1995 (2
U.S.C. 1381 et seq.) shall apply in the same manner as such title
applies with respect to a claim alleged by such a covered employee for
a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).
SEC. 11. STATE AND FEDERAL IMMUNITY.
(a) Abrogation of State Immunity.--A State shall not be immune
under the 11th amendment to the Constitution from a suit brought in a
Federal court of competent jurisdiction for a violation of this Act.
(b) Waiver of State Immunity.--
(1) In general.--
(A) Waiver.--A State's receipt or use of Federal
financial assistance for any program or activity of a
State shall constitute a waiver of sovereign immunity,
under the 11th amendment to the Constitution or
otherwise, to a suit brought by an employee or
applicant for employment of that program or activity
under this Act for a remedy authorized under subsection
(d).
(B) Definition.--In this paragraph, the term
``program or activity'' has the meaning given the term
in section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a).
(2) Effective date.--With respect to a particular program
or activity, paragraph (1) applies to conduct occurring on or
after the day, after the date of enactment of this Act, on
which a State first receives or uses Federal financial
assistance for that program or activity.
(c) Remedies Against State Officials.--An official of a State may
be sued in the official capacity of the official by any employee or
applicant for employment who has complied with the applicable
procedures of section 10, for equitable relief that is authorized under
this Act. In such a suit the court may award to the prevailing party
those costs authorized by section 722 of the Revised Statutes of the
United States (42 U.S.C. 1988).
(d) Remedies Against the United States and the States.--
Notwithstanding any other provision of this Act, in an action or
administrative proceeding against the United States or a State for a
violation of this Act, remedies (including remedies at law and in
equity, and interest) are available for the violation to the same
extent as the remedies are available for a violation of title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private
entity, except that--
(1) punitive damages are not available; and
(2) compensatory damages are available to the extent
specified in section 1977A(b) of the Revised Statutes (42
U.S.C. 1981a(b)).
SEC. 12. ATTORNEYS' FEES.
Notwithstanding any other provision of this Act, in an action or
administrative proceeding for a violation of this Act, an entity
described in section 10(a) (other than paragraph (4) of such section),
in the discretion of the entity, may allow the prevailing party, other
than the Commission or the United States, a reasonable attorney's fee
(including expert fees) as part of the costs. The Commission and the
United States shall be liable for the costs to the same extent as a
private person.
SEC. 13. POSTING NOTICES.
A covered entity who is required to post notices described in
section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) shall
post notices for employees, applicants for employment, and members, to
whom the provisions specified in section 10(b) apply, that describe the
applicable provisions of this Act in the manner prescribed by, and
subject to the penalty provided under, section 711 of the Civil Rights
Act of 1964.
SEC. 14. REGULATIONS.
(a) In General.--Except as provided in subsections (b), (c), and
(d), the Commission shall have authority to issue regulations to carry
out this Act.
(b) Librarian of Congress.--The Librarian of Congress shall have
authority to issue regulations to carry out this Act with respect to
employees and applicants for employment of the Library of Congress.
(c) Board.--The Board referred to in section 10(a)(3) shall have
authority to issue regulations to carry out this Act, in accordance
with section 304 of the Congressional Accountability Act of 1995 (2
U.S.C. 1384), with respect to covered employees, as defined in section
101 of such Act (2 U.S.C. 1301).
(d) President.--The President shall have authority to issue
regulations to carry out this Act with respect to covered employees, as
defined in section 411(c) of title 3, United States Code.
SEC. 15. RELATIONSHIP TO OTHER LAWS.
This Act shall not invalidate or limit the rights, remedies, or
procedures available to an individual claiming discrimination
prohibited under any other Federal law or regulation or any law or
regulation of a State or political subdivision of a State.
SEC. 16. SEVERABILITY.
If any provision of this Act, or the application of the provision
to any person or circumstance, is held to be invalid, the remainder of
this Act and the application of the provision to any other person or
circumstances shall not be affected by the invalidity.
SEC. 17. EFFECTIVE DATE.
This Act shall take effect on the date that is 6 months after the
date of enactment of this Act and shall not apply to conduct occurring
before the effective date.
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