FILE s2056.pcs Calendar No. 580 104th CONGRESS 2d Session A BILL To prohibit employment discrimination on the basis of sexual orientation. September 5, 1996 Read twice and ordered to be placed on the calendar S 2056 PCS 104th CONGRESS 2d Session To prohibit employment discrimination on the basis of sexual orientation. IN THE SENATE OF THE UNITED STATES September 5, 1996 Mr. KENNEDY (for himself, Mr. JEFFORDS, and Mr. LIEBERMAN) introduced the following bill; which was read twice and ordered to be placed on the calendar A BILL To prohibit employment discrimination on the basis of sexual orientation. [Italic->] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, [<-Italic] SECTION 1. SHORT TITLE. This Act may be cited as the `Employment Nondiscrimination Act of 1996'. SEC. 2. PURPOSES. It is the purpose of this Act-- (1) to provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation; (2) to provide meaningful and effective remedies for employment discrimination on the basis of sexual orientation; and (3) to invoke congressional powers, including the powers to enforce the 14th amendment to the Constitution and to regulate commerce, in order to prohibit employment discrimination on the basis of sexual orientation. SEC. 3. DEFINITIONS. As used 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, joint labor management committee, an entity to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies, an employing authority to which section 302(a)(1) of the Government Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) applies, or an employing authority to which section 201(a)(1) of the Congressional Accountability Act of 1995 (2 U.S.C. 1311(a)(1)) applies. (3) EMPLOYEE- The term `employee' means an employee, as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f)), an employee or applicant to whom section 717(a) of the Civil Rights Act of 1964 applies, a Presidential appointee or State employee to whom section 302(a)(1) of the Government Employee Rights Act of 1991 applies, and a covered employee to whom section 201(a)(1) of the Congressional Accountability Act of 1995 applies. The term `employee' does not include an individual who volunteers to perform services if the individual receives no compensation for such services. (4) EMPLOYER- the term `employer' means 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 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 such term 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. (5) EMPLOYMENT AGENCY- The term `employment agency' has the meaning given such term in section 701(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(c)). (6) EMPLOYMENT OR EMPLOYMENT OPPORTUNITIES- Except as provided in section 9(a)(1), the term `employment or employment opportunities' includes job application procedures, hiring, advancement, discharge, compensation, job training, or any other term, condition, or privilege of employment. (7) INDIVIDUAL- The term `individual' includes an employee. (8) LABOR ORGANIZATION- The term `labor organization' has the meaning given such term in section 701(d) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(d)). (9) PERSON- The term `person' has the meaning given such term in section 701(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(a)). (10) RELIGIOUS ORGANIZATION- The term `religious organization' means-- (A) a religious corporation, association, or society; or (B) a college, school, university, or other educational institution, not otherwise a religious organization, if-- (i) it is in whole or substantial part controlled, managed, owned, or supported by a religious corporation, association, or society; or (ii) its curriculum is directed toward the propagation of a particular religion. (11) SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, bisexuality, or heterosexuality, whether such orientation is real or perceived. (12) STATE- The term `State' has the meaning given such term in section 701(i) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(i)). SEC. 4. DISCRIMINATION PROHIBITED. A covered entity shall not, with respect to the employment or employment opportunities of an individual-- (1) subject the individual to a different standard or different treatment on the basis of sexual orientation; (2) discriminate against the individual based on the sexual orientation of a person with whom the individual is believed to associate or to have associated; or (3) otherwise discriminate against the individual on the basis of sexual orientation. SEC. 5. BENEFITS. This Act does not apply to the provision of employee benefits to an individual for the benefit of such individual's partner. SEC. 6. NO DISPARATE IMPACT. The fact that an employment practice has a disparate impact, as the term `disparate impact' is used in section 703(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(k)), on the basis of sexual orientation does not establish a prima facie violation of this Act. SEC. 7. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED. (a) QUOTAS- A covered entity shall not adopt or implement a quota on the basis of sexual orientation. (b) PREFERENTIAL TREATMENT- A covered entity shall not give preferential treatment to an individual on the basis of sexual orientation. SEC. 8. RELIGIOUS EXEMPTION. (a) IN GENERAL- Except as provided in subsection (b), this Act shall not apply to a religious organization. (b) FOR-PROFIT ACTIVITIES- This Act shall apply with respect to employment and employment opportunities that relate to any employment position that pertains solely to a religious organization's for-profit activities subject to taxation under section 511(a) of the Internal Revenue Code of 1986. SEC. 9. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS' PREFERENCES. (a) ARMED FORCES- (1) EMPLOYMENT OR EMPLOYMENT OPPORTUNITIES- For purposes of this Act, the term `employment or employment opportunities' does not apply to the relationship between the United States and members of the Armed Forces. (2) ARMED FORCES- As used in paragraph (1), the term `Armed Forces' means the Army, Navy, Air Force, Marine Corps, and Coast Guard. (b) VETERANS' PREFERENCES- This Act does not repeal or modify any Federal, State, territorial, or local law creating a special right or preference for a veteran. SEC. 10. CONSTRUCTION. Nothing in this Act shall be construed to prohibit a covered entity from enforcing rules regarding nonprivate sexual conduct, if such rules of conduct are designed for, and uniformly applied to, all individuals regardless of sexual orientation. SEC. 11. 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, 303, and 304 of the Government Employee Rights Act of 1991 (2 U.S.C. 1202, 1203, and 1204); in the case of a claim alleged by such individual for a violation of such title or of section 302(a)(1) of such Act (2 U.S.C. 1202(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 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, 303, and 304 of the Government Employee Rights Act of 1991 (2 U.S.C. 1202, 1203, and 1204); in the case of a claim alleged by such individual for a violation of such title or of section 302(a)(1) of such Act, respectively; and (5) a court of the United States shall have the same jurisdiction and powers as such 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, 303, and 304 of the Government Employee Rights Act of 1991 (2 U.S.C. 1202, 1203, and 1204) in the case of a claim alleged by such individual for a violation of section 302(a)(1) of such Act; and (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. (b) PROCEDURES AND REMEDIES- The procedures and remedies applicable to a claim alleged by an individual for a violation of this title 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; and (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. (c) OTHER APPLICABLE PROVISIONS- With respect to claims 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. SEC. 12. FEDERAL AND STATE IMMUNITY. (a) STATE IMMUNITY- A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in a Federal court of competent jurisdiction for a violation of this Act. In an action against a State for a violation of this Act, remedies (including remedies at law and in equity) are available for the violation to the same extent as such remedies are available in an action against any public or private entity other than a State. (b) LIABILITY OF THE UNITED STATES- The United States shall be liable for all remedies (excluding punitive damages) under this Act to the same extent as a private person and shall be liable to the same extent as a nonpublic party for interest to compensate for delay in payment. SEC. 13. ATTORNEYS' FEES. In any action or administrative proceeding commenced pursuant to this Act, an entity described in section 11(a), in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including expert fees and other litigation expenses, and costs. The United States shall be liable for the fees, expenses and costs described in the preceding sentence to the same extent as a private person. SEC. 14. RETALIATION AND COERCION PROHIBITED. (a) RETALIATION- A covered entity shall not discriminate against an individual because such individual opposed any act or practice prohibited by this Act or because such individual made a charge, assisted, testified, or participated in any manner in an investigation, proceeding, or hearing under this Act. (b) COERCION- A person shall not coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of such individual's having exercised, enjoyed, assisted, or encouraged the exercise or enjoyment of, any right granted or protected by this Act. SEC. 15. POSTING NOTICES. A covered entity shall post notices for employees, applicants for employment, and members describing 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 (42 U.S.C. 2000e-10). SEC. 16. REGULATIONS. (a) IN GENERAL- Except as provided in subsections (b) and (c), 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 of the Library of Congress. (c) BOARD- The Board referred to in section 11(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 to which section 201(a)(1) of such Act applies (2 U.S.C. 1311(a)(1)). SEC. 17. 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 any law of a State or political subdivision of a State. SEC. 18. SEVERABILITY. If any provision of this Act, or the application of such provision to any person or circumstance, is held to be invalid, the remainder of this Act and the application of such provision to other persons or circumstances shall not be affected by such invalidity. SEC. 19. EFFECTIVE DATE. This Act shall take effect 60 days after the date of enactment of this Act and shall not apply to conduct occurring before such effective date.