EMPOWER Act—Part 1

II 116TH CONGRESS 1ST SESSION S. 575 To deter, prevent, reduce, and respond to harassment in the workplace, including sexual harassment, sexual assault, and harassment based on protected categories. IN THE SENATE OF THE UNITED STATES FEBRUARY 27, 2019 Ms. HARRIS (for herself and Ms. MURKOWSKI) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To deter, prevent, reduce, and respond to harassment in the workplace, including sexual harassment, sexual as- sault, and harassment based on protected categories. 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 ‘‘Ending the Monopoly 4 of Power Over Workplace harassment through Education 5 and Reporting Act—Part 1’’ or the ‘‘EMPOWER Act— 6 Part 1’’. 7 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 2 •S 575 IS SEC. 2. PURPOSE AND AUTHORITY. 1 It is the purpose of this Act, through the exercise by 2 Congress of its power to regulate commerce among the 3 several States, to deter, prevent, reduce, and respond to 4 harassment in the workplace, including sexual harass- 5 ment, sexual assault, and harassment based on other pro- 6 tected categories. 7 SEC. 3. DEFINITIONS. 8 In this Act: 9 (1) APPLICANT.—The term ‘‘applicant’’ means 10 an applicant for employment as an employee, inde- 11 pendent contractor, or outside worker. 12 (2) CHARGE OF DISCRIMINATION.—The term 13 ‘‘Charge of Discrimination’’ means a charge of dis- 14 crimination filed pursuant to section 706 of the Civil 15 Rights Act of 1964 (42 U.S.C. 2000e–5). 16 (3) COMMISSION.—The term ‘‘Commission’’ 17 means the Equal Employment Opportunity Commis- 18 sion. 19 (4) EMPLOYEE.—The term ‘‘employee’’ 20 means— 21 (A) an individual employed by an employer 22 described in paragraph (5), including an outside 23 worker in such individual’s office or place of 24 employment; 25 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 3 •S 575 IS (B) an employee to which section 703, 1 704, or 717(a) of the Civil Rights Act of 1964 2 (42 U.S.C. 2000e–2; 2000e–3; 2000e–16(a)) 3 applies, including an outside worker in such an 4 employee’s office or place of employment; 5 (C) a State employee to which section 6 302(a)(1) of the Government Employee Rights 7 Act of 1991 (42 U.S.C. 2000e–16b(a)(1)) ap- 8 plies, including an outside worker in such a 9 State employee’s office or place of employment; 10 or 11 (D) a covered employee, as defined in sec- 12 tion 101 of the Congressional Accountability 13 Act of 1995 (2 U.S.C. 1301) or section 411(c) 14 of title 3, United States Code, including an out- 15 side worker in such a covered employee’s office 16 or place of employment. 17 (5) EMPLOYER.—The term ‘‘employer’’ 18 means— 19 (A) a person engaged in an industry affect- 20 ing commerce, and any agent of such a person; 21 (B) an entity to which section 703, 704, or 22 717(a) of the Civil Rights Act of 1964 applies; 23 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 4 •S 575 IS (C) an employing authority to which sec- 1 tion 302(a)(1) of the Government Employee 2 Rights Act of 1991 applies; or 3 (D) an employing office, as defined in sec- 4 tion 101 of the Congressional Accountability 5 Act of 1995 or section 411(c) of title 3, United 6 States Code. 7 (6) FAIR EMPLOYMENT PRACTICES AGEN- 8 CIES.—The term ‘‘fair employment practices agen- 9 cies’’ means State and local agencies with the au- 10 thority to enforce laws or regulations to prohibit dis- 11 crimination in employment. 12 (7) INDEPENDENT CONTRACTOR.—The term 13 ‘‘independent contractor’’ means an individual who, 14 with respect to an employer, is a contractor based on 15 the common law of agency. 16 (8) LAW ENFORCEMENT AGENCY.—The term 17 ‘‘law enforcement agency’’ means a government 18 agency with criminal or civil law enforcement pow- 19 ers, which may include a government agency with 20 regulatory or licensing authority. 21 (9) NONDISCLOSURE CLAUSE.—The term ‘‘non- 22 disclosure clause’’ means a provision in a contract or 23 agreement establishing that the parties to the con- 24 tract or agreement agree not to disclose information 25 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 5 •S 575 IS covered by the terms and conditions of the contract 1 or agreement. 2 (10) NONDISPARAGEMENT CLAUSE.—The term 3 ‘‘nondisparagement clause’’ means a provision in a 4 contract or agreement requiring one or more parties 5 to the contract or agreement not to make negative 6 statements about the other. 7 (11) OUTSIDE WORKER.—The term ‘‘outside 8 worker’’ means— 9 (A) a temporary worker hired through an 10 employment agency (as defined in section 701 11 of the Civil Rights Act of 1964 (42 U.S.C. 12 2000e)) to provide services to an employer pur- 13 suant to an agreement between the employment 14 agency and the employer; 15 (B) an independent contractor for an em- 16 ployer or a subcontractor thereof; or 17 (C) an intern or volunteer, whether paid or 18 unpaid, for an employer. 19 (12) SEXUAL ASSAULT.—The term ‘‘sexual as- 20 sault’’ means any nonconsensual sexual act pro- 21 scribed by Federal, tribal, or State law, including 22 such an act that occurs when the victim lacks capac- 23 ity to consent. 24 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 6 •S 575 IS (13) SUBCONTRACTOR.—The term ‘‘subcon- 1 tractor’’ means any employer having a contract with 2 a prime contractor or another subcontractor calling 3 for supplies or services required for the performance 4 of a contract or a government contract. 5 (14) WORKPLACE HARASSMENT.—The term 6 ‘‘workplace harassment’’ means unwelcome or offen- 7 sive conduct based on sex (including such conduct 8 based on sexual orientation, gender identity, and 9 pregnancy), race, color, national origin, disability, 10 age, or religion, whether that conduct occurs in-per- 11 son or through an electronic medium (which may in- 12 clude social media), in a work or work-related con- 13 text, which affects any term, condition, or privilege 14 of employment. 15 SEC. 4. PROHIBITING NONDISPARAGEMENT AND NON- 16 DISCLOSURE CLAUSES THAT COVER WORK- 17 PLACE HARASSMENT, INCLUDING SEXUAL 18 HARASSMENT. 19 (a) UNLAWFUL PRACTICES.— 20 (1) PROHIBITION ON WORKPLACE HARASSMENT 21 NONDISCLOSURE CLAUSE.—Subject to subsection 22 (b)(1), it shall be an unlawful practice for an em- 23 ployer to enter into a contract or agreement with an 24 employee or applicant, as a condition of employment, 25 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 7 •S 575 IS promotion, compensation, benefits, or change in em- 1 ployment status or contractual relationship, or as a 2 term, condition, or privilege of employment, if that 3 contract or agreement contains a nondisparagement 4 or nondisclosure clause that covers workplace har- 5 assment, including sexual harassment or retaliation 6 for reporting, resisting, opposing, or assisting in the 7 investigation of workplace harassment. 8 (2) PROHIBITION ON ENFORCEMENT.—Not- 9 withstanding any other provision of law, it shall be 10 an unlawful practice and otherwise unlawful for an 11 employer to enforce or attempt to enforce a non- 12 disparagement clause or nondisclosure clause de- 13 scribed in paragraph (1). 14 (b) SETTLEMENT OR SEPARATION AGREEMENTS.— 15 (1) IN GENERAL.—The provisions of subsection 16 (a) do not apply to a nondisclosure clause or non- 17 disparagement clause contained in a settlement 18 agreement or separation agreement that resolves 19 legal claims or disputes when— 20 (A) such legal claims accrued or such dis- 21 putes arose before the settlement agreement or 22 separation agreement was executed; and 23 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 8 •S 575 IS (B) such clauses are mutually agreed upon 1 and mutually benefit both the employer and em- 2 ployee. 3 (2) UNLAWFUL PRACTICE.—It shall be an un- 4 lawful practice for an employer to unilaterally in- 5 clude a nondisclosure clause or a nondisparagement 6 clause that solely benefits the employer in a separa- 7 tion or settlement agreement. 8 (c) RIGHT TO REPORT RESERVED.—Notwithstand- 9 ing signing (before or after the effective date of this Act) 10 any nondisparagement or nondisclosure clause including 11 a clause referred to in subsection (a)(1), an employee or 12 applicant retains any right that person would otherwise 13 have had to report a concern about workplace harassment, 14 including sexual harassment or another violation of the 15 law to the Commission, another Federal agency (including 16 an office of the legislative or judicial branch), a State or 17 local fair employment practices agency or any State or 18 local agency, or a law enforcement agency, and any right 19 that person would otherwise have had to bring an action 20 in a court of the United States. 21 (d) ENFORCEMENT.— 22 (1) ENFORCEMENT POWERS.—With respect to 23 the administration and enforcement of this section 24 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 9 •S 575 IS in the case of a claim alleged by an employee for a 1 violation of this section— 2 (A) the Commission shall have the same 3 powers as the Commission has to administer 4 and enforce— 5 (i) title VII of the Civil Rights Act of 6 1964 (42 U.S.C. 2000e et seq.); or 7 (ii) sections 302 and 304 of the Gov- 8 ernment Employee Rights Act of 1991 (42 9 U.S.C. 2000e–16b and 2000e–16c), 10 in the case of a claim alleged by such employee 11 for a violation of such title, or of section 12 302(a)(1) of the Government Employee Rights 13 Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), re- 14 spectively; 15 (B) the Librarian of Congress shall have 16 the same powers as the Librarian of Congress 17 has to administer and enforce title VII of the 18 Civil Rights Act of 1964 (42 U.S.C. 2000e et 19 seq.) in the case of a claim alleged by such em- 20 ployee for a violation of such title; 21 (C) the Board (as defined in section 101 of 22 the Congressional Accountability Act of 1995 (2 23 U.S.C. 1301)) shall have the same powers as 24 the Board has to administer and enforce the 25 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 10 •S 575 IS Congressional Accountability Act of 1995 (2 1 U.S.C. 1301 et seq.) in the case of a claim al- 2 leged by such employee for a violation of section 3 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)); 4 (D) the Attorney General shall have the 5 same powers as the Attorney General has to ad- 6 minister and enforce— 7 (i) title VII of the Civil Rights Act of 8 1964 (42 U.S.C. 2000e et seq.); or 9 (ii) sections 302 and 304 of the Gov- 10 ernment Employee Rights Act of 1991 (42 11 U.S.C. 2000e–16b and 2000e–16c), 12 in the case of a claim alleged by such employee 13 for a violation of such title, or of section 14 302(a)(1) of the Government Employee Rights 15 Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), re- 16 spectively; 17 (E) the President, the Commission, and 18 the Merit Systems Protection Board shall have 19 the same powers as the President, the Commis- 20 sion, and the Board, respectively, have to ad- 21 minister and enforce chapter 5 of title 3, 22 United States Code, in the case of a claim al- 23 leged by such employee for a violation of section 24 411 of such title; 25 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 11 •S 575 IS (F) the Commission shall have the same 1 powers as described in subparagraph (A) to ad- 2 minister and enforce a claim by any employee 3 who is not otherwise able to seek remedy for a 4 claim through an enforcement entity described 5 in subparagraph (A) through (E); and 6 (G) a court of the United States shall have 7 the same jurisdiction and powers as the court 8 has to enforce— 9 (i) title VII of the Civil Rights Act of 10 1964 (42 U.S.C. 2000e et seq.) in the case 11 of a claim alleged by such employee for a 12 violation of such title or in the case of a 13 claim described in subparagraph (F); 14 (ii) sections 302 and 304 of the Gov- 15 ernment Employee Rights Act of 1991 (42 16 U.S.C. 2000e–16b and 2000e–16c) in the 17 case of a claim alleged by such employee 18 for a violation of section 302(a)(1) of such 19 Act (42 U.S.C. 2000e–16b(a)(1)); 20 (iii) the Congressional Accountability 21 Act of 1995 (2 U.S.C. 1301 et seq.) in the 22 case of a claim alleged by such employee 23 for a violation of section 201(a)(1) of such 24 Act (2 U.S.C. 1311(a)(1)); and 25 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C42PROD with BILLS 12 •S 575 IS (iv) chapter 5 of title 3, United States 1 Code, in the case of a claim alleged by 2 such employee for a violation of section 3 411 of such title. 4 (2) PROCEDURES AND REMEDIES.—The proce- 5 dures and remedies applicable to a claim alleged by 6 an employee for a violation of this section are— 7 (A) the procedures and remedies applicable 8 for a violation of title VII of the Civil Rights 9 Act of 1964 (42 U.S.C. 2000e et seq.) in the 10 case of a claim alleged by such employee for a 11 violation of such title or in the case of a claim 12 described in paragraph (1)(F); 13 (B) the procedures and remedies applicable 14 for a violation of section 302(a)(1) of the Gov- 15 ernment Employee Rights Act of 1991 (42 16 U.S.C. 2000e–16b(a)(1)) in the case of a claim 17 alleged by such employee for a violation of such 18 section; 19 (C) the procedures and remedies applicable 20 for a violation of section 201(a)(1) of the Con- 21 gressional Accountability Act of 1995 (2 U.S.C. 22 1311(a)(1)) in the case of a claim alleged by 23 such employee for a violation of such section; 24 and 25 VerDate Sep 11 2014 22:21 Mar 11, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S575.IS S575 pbinns on DSK79D2C4 [Text truncated for display. Full text available on Congress.gov.]