[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2133 Introduced in Senate (IS)]
113th CONGRESS
2d Session
S. 2133
To amend title VII of the Civil Rights Act of 1964 and other statutes
to clarify appropriate liability standards for Federal
antidiscrimination claims.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 13, 2014
Ms. Baldwin (for herself, Mr. Harkin, Mr. Leahy, Mrs. Murray, Mr.
Whitehouse, Mr. Blumenthal, Ms. Mikulski, Mr. Durbin, Mr. Schumer, Mr.
Schatz, Ms. Warren, Mr. Casey, and Mr. Franken) introduced the
following bill; which was read twice and referred to the Committee on
Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend title VII of the Civil Rights Act of 1964 and other statutes
to clarify appropriate liability standards for Federal
antidiscrimination claims.
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 ``Fair Employment Protection Act of
2014''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds the following:
(1) Harassment is a widespread problem in workplaces in the
United States. Surveys indicate that at least one-fourth of all
working women and 10 percent of men have experienced sexual
harassment on the job.
(2) In fiscal year 2013, a combined total of over 30,000
harassment charges were filed with the Equal Employment
Opportunity Commission and State fair employment practices
agencies. More than 10,000 of these charges involved sexual
harassment.
(3) Women and people of color working in low-wage jobs are
particularly vulnerable to harassment in the workplace.
(4) In some industries harassment is even more widespread.
For example, 80 percent of female farm-workers working in the
fields in central California reported that they had experienced
sexual harassment.
(5) Studies indicate that sexual harassment of women,
including unwanted touching, grabbing, and stalking, is also
common in male-dominated industries, such as construction,
public safety, manufacturing, farming, and the high-tech
industry. Harassment in male-dominated industries operates as a
barrier to women's entry into higher-paying jobs.
(6) Racial harassment remains a pervasive problem in the
workplace in the United States. In fiscal year 2013, more than
11,000 of the charges of harassment filed with the Equal
Employment Opportunity Commission and State fair employment
practices agencies were charges of racial harassment.
(7) Research shows that workers in a wide spectrum of
occupations, ranging from service and support positions to
management and professional positions, report experiencing
race-based harassment while on the job.
(8) Harassment in the workplace is a persistent barrier to
opportunity for people with disabilities. Harassment can result
in workers with disabilities being forced off the job.
Workplace harassment is used to send the message that workers
with disabilities do not belong at work.
(9) Age discrimination continues to be a barrier to
employment for older workers. Over one-third of older workers
report that they or someone they know experienced age
discrimination in the workplace.
(10) Three-quarters of older Americans surveyed are
concerned that age may be an obstacle to finding work.
(11) The Supreme Court's decision in Vance v. Ball State
University, No. 11-556 (June 24, 2013), significantly
undermines protections against discrimination that the Supreme
Court established in Faragher v. Boca Raton, 524 U.S. 775
(1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998), which held that an employer may be vicariously liable
under title VII of the Civil Rights Act of 1964 for harassment
of an employee by an individual that has supervisory authority
over that employee.
(12) In Faragher and Ellerth, the Supreme Court held that
employers will be subject to a strict liability standard when
employees with supervisory authority engage in harassment that
results in ``tangible employment actions''. However, in
situations where ``supervisors'' engage in harassment that does
not result in tangible employment actions, the Court explained,
an employer can avoid vicarious liability by showing that--
(A) the employer exercised reasonable care to
prevent and correct any harassing behavior; and
(B) the plaintiff unreasonably failed to take
advantage of the preventive or corrective opportunities
that the employer provided.
(13) Whether an employer should be vicariously liable for
harassment is a functional analysis that is based not on the
title of the harasser or the employer's job description for the
harasser's position but on the authority vested in that
individual by the employer.
(14) The Supreme Court holding in Vance limits the category
of individuals who are considered supervisors and for which an
employer may be held vicariously liable under Faragher and
Ellerth to those individuals that have authority to take
tangible employment actions. This holding ignores the reality
that employees with the authority to control their
subordinates' daily work should be included in that category,
for which an employer may be held vicariously liable, because
such individuals are aided by that authority in perpetuating a
discriminatory work environment.
(15) Individuals who direct the daily work activities of
employees but do not have the authority to take tangible
employment actions against those employees are common in the
workplace in the United States, particularly in industries that
employ low-wage workers. Workers in industries including
retail, restaurant, health care, housekeeping, and personal
care, which may pay low wages and employ a large numbers of
female workers, are particularly vulnerable to harassment by
individuals who have the power to direct day-to-day work
activities but lack the power to take tangible employment
actions.
(b) Purpose.--The purpose of this Act is to clarify that an
employer's vicarious liability for harassment under title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act of
1967, the Americans with Disabilities Act of 1990, the Rehabilitation
Act of 1973, section 1977 of the Revised Statutes, the Genetic
Information Nondiscrimination Act of 2008, the Government Employee
Rights Act of 1991, the Congressional Accountability Act of 1995, and
title III of the United States Code extends to--
(1) an individual with the authority to undertake or
recommend tangible employment actions affecting the victim of
the harassment; or
(2) an individual with the authority to direct the victim's
daily work activities.
SEC. 3. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.
(a) Standard for Employer Liability for Hostile Work Environment.--
Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) is
amended by adding at the end the following:
``(o) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer shall be liable for the acts of any individual
whose harassment of an employee has created or continued a hostile work
environment that constitutes an unlawful employment practice under this
section if, at the time of the harassment--
``(1) such individual was authorized by that employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that hostile work environment.''.
(b) Standard for Employer Liability for Retaliatory Hostile Work
Environment.--Section 704 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-3) is amended--
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
``(b) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer shall be liable for the acts of any individual
whose harassment of an employee has created or continued a retaliatory
hostile work environment that constitutes an unlawful employment
practice as described under subsection (a) if, at the time of the
harassment--
``(1) such individual was authorized by that employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that retaliatory hostile work environment.''.
(c) Federal Employees.--Section 717 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-16) is amended by adding at the end the following:
``(g) The provisions of sections 703(o) and 704(b) shall apply to
hostile work environment claims and retaliatory hostile work
environment claims, respectively, under this section.''.
SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT.
(a) Standard for Employer Liability for Hostile Work Environment.--
Section 4 of the Age Discrimination in Employment Act of 1967 (29
U.S.C. 623) is amended by adding at the end the following:
``(n) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer shall be liable for the acts of any individual
whose harassment of an employee has created or continued a hostile work
environment that is unlawful under this section if, at the time of the
harassment--
``(1) such individual was authorized by that employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that hostile work environment.''.
(b) Standard for Employer Liability for Retaliatory Hostile Work
Environment.--Section 4(d) of the Age Discrimination in Employment Act
of 1967 (29 U.S.C. 623) is amended by striking ``or litigation under
this Act.'' and inserting ``or litigation under this Act. Subject to
section 12 of the Fair Employment Protection Act of 2014, an employer
shall be liable for the acts of any individual whose harassment of an
employee has created or continued a retaliatory hostile work
environment that is unlawful under this subsection if, at the time of
the harassment--
``(1) such individual was authorized by that employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that retaliatory hostile work environment.''.
(c) Federal Employees.--Section 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 633a) is amended by adding at the end
the following:
``(h) Subsections (d) and (n) of section 4 shall apply to
retaliatory hostile work environment claims and hostile work
environment claims, respectively, under this section.''.
SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABILITIES ACT.
(a) Standard for Employer Liability for Hostile Work Environment.--
Section 102 of the Americans with Disabilities Act (42 U.S.C. 12112) is
amended by adding at the end the following:
``(e) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer shall be liable for the acts of any individual
whose harassment of an employee has created or continued a hostile work
environment that constitutes discrimination against a qualified
individual on the basis of disability under this section if, at the
time of the harassment--
``(1) such individual was authorized by the employer--
``(A) to undertake or recommend tangible employment
actions affecting the qualified individual; or
``(B) to direct the qualified individual's daily
work activities; or
``(2) the negligence of the employer led to the creation or
continuation of that hostile work environment.''.
(b) Standard for Employer Liability for Retaliatory Hostile Work
Environment.--Section 503 of the Americans with Disabilities Act of
1990 (42 U.S.C. 12203) is amended--
(1) by redesignating subsection (c) as subsection (d);
(2) by inserting after subsection (b) the following:
``(c) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer shall be liable for the acts of any individual
whose harassment of an employee has created or continued a retaliatory
hostile work environment that constitutes retaliatory discrimination,
as described in subsection (a), or the carrying out of any unlawful
acts described in subsection (b), if, at the time of the harassment--
``(1) such individual was authorized by the employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that retaliatory hostile work environment.'';
and
(3) in subsection (d), as redesignated by paragraph (1), by
striking ``subsections (a) and (b)'' and inserting
``subsections (a), (b), and (c)''.
SEC. 6. AMENDMENT TO THE REHABILITATION ACT.
(a) Standard for Employer Liability for Hostile Work Environment
and Retaliatory Hostile Work Environment.--Section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791) is amended by adding at the
end the following:
``(h) Subject to section 12 of the Fair Employment Protection Act
of 2014, each department, agency, and instrumentality in the executive
branch of Government and the Smithsonian Institution shall be liable
for the acts of any individual within such department, agency,
instrumentality, or the Smithsonian Institution whose harassment of an
individual with a disability has created or continued a hostile work
environment, or a retaliatory hostile work environment, that
constitutes nonaffirmative action employment discrimination under this
section if, at the time of the harassment--
``(1) such individual was authorized by that department,
agency, instrumentality, or the Smithsonian Institution--
``(A) to undertake or recommend tangible employment
actions affecting the individual with a disability; or
``(B) to direct the daily work activities of the
individual with a disability; or
``(2) the negligence of that department, agency,
instrumentality, or the Smithsonian Institution led to the
creation or continuation of that hostile work environment or
retaliatory hostile work environment.''.
(b) Standard for Employer Liability for Hostile Work Environment
and Retaliatory Hostile Work Environment.--Section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794) is amended by adding at the
end the following:
``(e) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer described under subsection (b) shall be liable for
the acts of any individual whose harassment of a qualified individual
with a disability has created or continued a hostile work environment,
or a retaliatory hostile work environment, that constitutes employment
discrimination under this section if, at the time of the harassment--
``(1) such individual was authorized by such employer--
``(A) to undertake or recommend tangible employment
actions affecting the qualified individual with a
disability; or
``(B) to direct the daily work activities of the
qualified individual with a disability; or
``(2) the negligence of such employer led to the creation
or continuation of that hostile work environment or retaliatory
hostile work environment.''.
(c) Remedies.--Section 505 of the Rehabilitation Act (29 U.S.C.
794a) is amended by adding at the end of subsection (a) the following:
``(3) Sections 501(h) and 504(e) shall apply to hostile
work environment claims and retaliatory hostile work
environment claims under this section.''.
SEC. 7. AMENDMENT TO SECTION 1977 OF THE REVISED STATUTES.
Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended by
adding at the end the following:
``(d) Subject to section 12 of the Fair Employment Protection Act
of 2014, a nongovernmental employer shall be liable for the acts of any
individual whose harassment of an employee has created a hostile work
environment or a retaliatory hostile work environment, constituting an
unlawful employment practice, if, at the time of the harassment--
``(1) such individual was authorized by the employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that hostile work environment or retaliatory
hostile work environment.''.
SEC. 8. AMENDMENT TO THE GENETIC INFORMATION NONDISCRIMINATION ACT OF
2008.
(a) Standard for Employer Liability for Hostile Work Environment.--
Section 202 of the Genetic Information Nondiscrimination Act of 2008
(42 U.S.C. 2000ff-1) is amended by adding at the end the following:
``(d) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer shall be liable for the acts of any individual
whose harassment of an employee has created or continued a hostile work
environment that constitutes an unlawful employment practice under this
section if, at the time of the harassment--
``(1) such individual was authorized by the employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that hostile work environment.''.
(b) Standard for Employer Liability for Retaliatory Hostile Work
Environment.--Section 207(f) of the Genetic Information
Nondiscrimination Act (42 U.S.C. 2000ff-6(f)) is amended by striking
``violations of this subsection.'' and inserting ``violations of this
subsection. Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer shall be liable for the acts of any individual
whose harassment of an employee has created or continued a retaliatory
hostile work environment that constitutes discrimination under this
subsection if, at the time of the harassment--
``(1) such individual was authorized by the employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that retaliatory hostile work environment.''.
SEC. 9. AMENDMENT TO THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991.
Section 302 of the Government Employee Rights Act of 1991 (42
U.S.C. 2000e-16b) is amended by adding at the end the following:
``(c) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employer of an individual described under section 304(a)
shall be liable for the acts of any individual whose harassment of a
State employee described in section 304 has created or continued a
hostile work environment or a retaliatory hostile work environment
constituting discrimination under this section, if at the time of the
harassment--
``(1) such individual was authorized by such employer--
``(A) to undertake or recommend tangible employment
actions affecting the employee; or
``(B) to direct the employee's daily work
activities; or
``(2) the negligence of the employer led to the creation or
continuation of that hostile work environment or retaliatory
hostile work environment.''.
SEC. 10. AMENDMENT TO TITLE 3 OF THE UNITED STATES CODE.
Section 411 of title 3, United States Code, is amended--
(1) by redesignating subsections (c) through (f) as
subsections (d) through (g), respectively; and
(2) by inserting after subsection (b) the following:
``(c) Liability of Employing Office.--Subject to section 12 of the
Fair Employment Protection Act of 2014, an employing office shall be
liable for the acts of any individual whose harassment of a covered
employee has created or continued a hostile work environment or a
retaliatory hostile work environment constituting discrimination under
this section if, at the time of the harassment--
``(1) such individual was authorized by the employing
office--
``(A) to undertake or recommend tangible employment
actions affecting the covered employee; or
``(B) to direct the covered employee's daily work
activities; or
``(2) the negligence of the employing office led to the
creation or continuation of that hostile work environment or
retaliatory hostile work environment.''; and
(3) in subsection (f), as redesignated by paragraph (2), by
striking ``subsections (a) through (c)'' and inserting
``subsections (a) through (d)''.
SEC. 11. AMENDMENT TO THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995.
Section 201 of the Congressional Accountability Act of 1995 (2
U.S.C. 1311) is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following:
``(d) Subject to section 12 of the Fair Employment Protection Act
of 2014, an employing office shall be liable for the acts of any
individual whose harassment of a covered employee has created or
continued a hostile work environment or a retaliatory hostile work
environment that constitutes discrimination under this section if, at
the time of the harassment--
``(1) such individual was authorized by the employing
office--
``(A) to undertake or recommend tangible employment
actions affecting the covered employee; or
``(B) to direct the covered employee's daily work
activities; or
``(2) the negligence of the employing office led to the
creation or continuation of that hostile work environment or
retaliatory hostile work environment.''.
SEC. 12. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to limit the availability
of, or access to, defenses available under the law.
SEC. 13. SAVINGS CLAUSE.
If any provision of this Act is declared invalid, the other
provisions in this Act will remain in full force and effect.
SEC. 14. APPLICATION.
This Act, and the amendments made by this Act, shall apply to all
claims pending on or after the date of enactment of this Act.
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