EMPOWER Act

I 116TH CONGRESS 1ST SESSION H. R. 1521 To deter, prevent, reduce, and respond to harassment in the workplace, including sexual harassment, sexual assault, and harassment based on protected categories; and to amend the Internal Revenue Code of 1986 to modify the tax treatment of amounts related to employment discrimi- nation and harassment in the workplace, including sexual harassment, sexual assault, and harassment based on protected categories. IN THE HOUSE OF REPRESENTATIVES MARCH 5, 2019 Ms. FRANKEL (for herself, Mr. KATKO, Mr. NADLER, Mr. FITZPATRICK, Ms. BLUNT ROCHESTER, Ms. UNDERWOOD, Ms. STEFANIK, Ms. MOORE, Miss GONZA´LEZ-COLO´N of Puerto Rico, Ms. SPEIER, Ms. WASSERMAN SCHULTZ, Ms. WILD, Mrs. DINGELL, Ms. HAALAND, Ms. KUSTER of New Hampshire, Mr. DESAULNIER, Mrs. DAVIS of California, Ms. CLARKE of New York, Ms. MENG, Ms. WILSON of Florida, Ms. ROYBAL- ALLARD, Mr. LOWENTHAL, Mrs. DEMINGS, Ms. LEE of California, Ms. NORTON, Ms. VELA´ZQUEZ, Ms. MCCOLLUM, Mrs. WATSON COLEMAN, Ms. JACKSON LEE, Mr. HASTINGS, Mr. CASTEN of Illinois, Ms. KAPTUR, Mr. RASKIN, Ms. DEAN, Ms. SCHAKOWSKY, Ms. HILL of California, Ms. PORTER, Ms. DELAURO, Mr. CISNEROS, Ms. CASTOR of Florida, Mrs. LAWRENCE, Mr. COHEN, Mr. ESPAILLAT, Mr. HARDER of California, Miss RICE of New York, Mr. COOPER, Mr. RUSH, Ms. JOHNSON of Texas, Ms. OMAR, Mr. SABLAN, Mr. COX of California, Ms. TLAIB, Mr. POCAN, Ms. CLARK of Massachusetts, and Ms. PRESSLEY) introduced the following bill; which was referred to the Committee on Education and Labor, and in addition to the Committees on Ways and Means, Financial Services, House Administration, Oversight and Reform, and the Judici- ary, 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 deter, prevent, reduce, and respond to harassment in VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 1521 IH the workplace, including sexual harassment, sexual as- sault, and harassment based on protected categories; and to amend the Internal Revenue Code of 1986 to modify the tax treatment of amounts related to employment discrimination and harassment in the workplace, includ- ing sexual harassment, sexual assault, 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’’ or the ‘‘EMPOWER Act’’. 6 TITLE I—PREVENTING AND RE- 7 SPONDING TO WORKPLACE 8 HARASSMENT 9 SEC. 101. PURPOSE AND AUTHORITY. 10 It is the purpose of this title, through the exercise 11 by Congress of its power to regulate commerce among the 12 several States, to deter, prevent, reduce, and respond to 13 harassment in the workplace, including sexual harass- 14 ment, sexual assault, and harassment based on other pro- 15 tected categories. 16 SEC. 102. DEFINITIONS. 17 In this title: 18 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 1521 IH (1) APPLICANT.—The term ‘‘applicant’’ means 1 an applicant for employment as an employee, inde- 2 pendent contractor, or outside worker. 3 (2) CHARGE OF DISCRIMINATION.—The term 4 ‘‘Charge of Discrimination’’ means a charge of dis- 5 crimination filed pursuant to section 706 of the Civil 6 Rights Act of 1964 (42 U.S.C. 2000e–5). 7 (3) COMMISSION.—The term ‘‘Commission’’ 8 means the Equal Employment Opportunity Commis- 9 sion. 10 (4) EMPLOYEE.—The term ‘‘employee’’ 11 means— 12 (A) an individual employed by an employer 13 described in paragraph (5), including an outside 14 worker in such individual’s office or place of 15 employment; 16 (B) an employee to which section 703, 704 17 or 717(a) of the Civil Rights Act of 1964 (42 18 U.S.C. 2000e–2; 2000e–3; 2000e–16(a)) ap- 19 plies, including an outside worker in such an 20 employee’s office or place of employment; 21 (C) a State employee to which section 22 302(a)(1) of the Government Employee Rights 23 Act of 1991 (42 U.S.C. 2000e–16b(a)(1)) ap- 24 plies, including an outside worker in such a 25 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 1521 IH State employee’s office or place of employment; 1 or 2 (D) a covered employee, as defined in sec- 3 tion 101 of the Congressional Accountability 4 Act of 1995 (2 U.S.C. 1301) or section 411(c) 5 of title 3, United States Code, including an out- 6 side worker in such a covered employee’s office 7 or place of employment. 8 (5) EMPLOYER.—The term ‘‘employer’’ 9 means— 10 (A) a person engaged in an industry affect- 11 ing commerce, and any agent of such a person; 12 (B) an entity to which section 703, 704, or 13 717(a) of the Civil Rights Act of 1964 applies; 14 (C) an employing authority to which sec- 15 tion 302(a)(1) of the Government Employee 16 Rights Act of 1991 applies; or 17 (D) an employing office, as defined in sec- 18 tion 101 of the Congressional Accountability 19 Act of 1995 or section 411(c) of title 3, United 20 States Code. 21 (6) FAIR EMPLOYMENT PRACTICES AGEN- 22 CIES.—The term ‘‘fair employment practices agen- 23 cies’’ means State and local agencies with the au- 24 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 1521 IH thority to enforce laws or regulations to prohibit dis- 1 crimination in employment. 2 (7) INDEPENDENT CONTRACTOR.—The term 3 ‘‘independent contractor’’ means an individual who, 4 with respect to an employer, is a contractor based on 5 the common law of agency. 6 (8) LAW ENFORCEMENT AGENCY.—The term 7 ‘‘law enforcement agency’’ means a government 8 agency with criminal or civil law enforcement pow- 9 ers, which may include a government agency with 10 regulatory or licensing authority. 11 (9) NONDISCLOSURE CLAUSE.—The term ‘‘non- 12 disclosure clause’’ means a provision in a contract or 13 agreement establishing that the parties to the con- 14 tract or agreement agree not to disclose information 15 covered by the terms and conditions of the contract 16 or agreement. 17 (10) NONDISPARAGEMENT CLAUSE.—The term 18 ‘‘nondisparagement clause’’ means a provision in a 19 contract or agreement requiring one or more parties 20 to the contract or agreement not to make negative 21 statements about the other. 22 (11) OUTSIDE WORKER.—The term ‘‘outside 23 worker’’ means— 24 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 1521 IH (A) a temporary worker hired through an 1 employment agency (as defined in section 701 2 of the Civil Rights Act of 1964 (42 U.S.C. 3 2000e)) to provide services to an employer pur- 4 suant to an agreement between the employment 5 agency and the employer; 6 (B) an independent contractor for an em- 7 ployer or a subcontractor thereof; or 8 (C) an intern or volunteer, whether paid or 9 unpaid, for an employer. 10 (12) SEXUAL ASSAULT.—The term ‘‘sexual as- 11 sault’’ means any nonconsensual sexual act pro- 12 scribed by Federal, tribal, or State law, including 13 such an act that occurs when the victim lacks capac- 14 ity to consent. 15 (13) SUBCONTRACTOR.—The term ‘‘subcon- 16 tractor’’ means any employer having a contract with 17 a prime contractor or another subcontractor calling 18 for supplies or services required for the performance 19 of a contract or a government contract. 20 (14) WORKPLACE HARASSMENT.—The term 21 ‘‘workplace harassment’’ means unwelcome or offen- 22 sive conduct based on sex (including such conduct 23 based on sexual orientation, gender identity, and 24 pregnancy), race, color, national origin, disability, 25 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 1521 IH age, or religion, whether that conduct occurs in-per- 1 son or through an electronic medium (which may in- 2 clude social media), in a work or work-related con- 3 text, which affects any term, condition, or privilege 4 of employment. 5 SEC. 103. PROHIBITING NONDISPARAGEMENT AND NON- 6 DISCLOSURE CLAUSES THAT COVER WORK- 7 PLACE HARASSMENT, INCLUDING SEXUAL 8 HARASSMENT. 9 (a) UNLAWFUL PRACTICES.— 10 (1) PROHIBITION ON WORKPLACE HARASSMENT 11 NONDISCLOSURE CLAUSE.—Subject to subsection 12 (b)(1), it shall be an unlawful practice for an em- 13 ployer to enter into a contract or agreement with an 14 employee or applicant, as a condition of employment, 15 promotion, compensation, benefits, or change in em- 16 ployment status or contractual relationship, or as a 17 term, condition, or privilege of employment, if that 18 contract or agreement contains a nondisparagement 19 or nondisclosure clause that covers workplace har- 20 assment, including sexual harassment or retaliation 21 for reporting, resisting, opposing, or assisting in the 22 investigation of workplace harassment. 23 (2) PROHIBITION ON ENFORCEMENT.—Not- 24 withstanding any other provision of law, it shall be 25 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 1521 IH an unlawful practice and otherwise unlawful for an 1 employer to enforce or attempt to enforce a non- 2 disparagement clause or nondisclosure clause de- 3 scribed in paragraph (1). 4 (b) SETTLEMENT OR SEPARATION AGREEMENTS.— 5 (1) IN GENERAL.—The provisions of subsection 6 (a) do not apply to a nondisclosure clause or non- 7 disparagement clause contained in a settlement 8 agreement or separation agreement that resolves 9 legal claims or disputes when— 10 (A) such legal claims accrued or such dis- 11 putes arose before the settlement agreement or 12 separation agreement was executed; and 13 (B) such clauses are mutually agreed upon 14 and mutually benefit both the employer and em- 15 ployee. 16 (2) UNLAWFUL PRACTICE.—It shall be an un- 17 lawful practice for an employer to unilaterally in- 18 clude a nondisclosure clause or a nondisparagement 19 clause that solely benefits the employer in a separa- 20 tion or settlement agreement. 21 (c) RIGHT TO REPORT RESERVED.—Notwith- 22 standing signing (before or after the effective date of this 23 title) any nondisparagement or nondisclosure clause in- 24 cluding a clause referred to in subsection (a)(1), an em- 25 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 1521 IH ployee or applicant retains any right that person would 1 otherwise have had to report a concern about workplace 2 harassment, including sexual harassment or another viola- 3 tion of the law to the Commission, another Federal agency 4 (including an office of the legislative or judicial branch), 5 a State or local fair employment practices agency or any 6 State or local agency, or a law enforcement agency, and 7 any right that person would otherwise have had to bring 8 an action in a court of the United States. 9 (d) ENFORCEMENT.— 10 (1) ENFORCEMENT POWERS.—With respect to 11 the administration and enforcement of this section 12 in the case of a claim alleged by an employee for a 13 violation of this section— 14 (A) the Commission shall have the same 15 powers as the Commission has to administer 16 and enforce— 17 (i) title VII of the Civil Rights Act of 18 1964 (42 U.S.C. 2000e et seq.); or 19 (ii) sections 302 and 304 of the Gov- 20 ernment Employee Rights Act of 1991 (42 21 U.S.C. 2000e–16b and 2000e–16c), 22 in the case of a claim alleged by such employee 23 for a violation of such title, or of section 24 302(a)(1) of the Government Employee Rights 25 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 1521 IH Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), re- 1 spectively; 2 (B) the Librarian of Congress shall have 3 the same powers as the Librarian of Congress 4 has to administer and enforce title VII of the 5 Civil Rights Act of 1964 (42 U.S.C. 2000e et 6 seq.) in the case of a claim alleged by such em- 7 ployee for a violation of such title; 8 (C) the Board (as defined in section 101 of 9 the Congressional Accountability Act of 1995 (2 10 U.S.C. 1301)) shall have the same powers as 11 the Board has to administer and enforce the 12 Congressional Accountability Act of 1995 (2 13 U.S.C. 1301 et seq.) in the case of a claim al- 14 leged by such employee for a violation of section 15 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)); 16 (D) the Attorney General shall have the 17 same powers as the Attorney General has to ad- 18 minister and enforce— 19 (i) title VII of the Civil Rights Act of 20 1964 (42 U.S.C. 2000e et seq.); or 21 (ii) sections 302 and 304 of the Gov- 22 ernment Employee Rights Act of 1991 (42 23 U.S.C. 2000e–16b and 2000e–16c), 24 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 1521 IH in the case of a claim alleged by such employee 1 for a violation of such title, or of section 2 302(a)(1) of the Government Employee Rights 3 Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), re- 4 spectively; 5 (E) the President, the Commission, and 6 the Merit Systems Protection Board shall have 7 the same powers as the President, the Commis- 8 sion, and the Board, respectively, have to ad- 9 minister and enforce chapter 5 of title 3, 10 United States Code, in the case of a claim al- 11 leged by such employee for a violation of section 12 411 of such title; 13 (F) the Commission shall have the same 14 powers as described in subparagraph (A) to ad- 15 minister and enforce a claim by any employee 16 who is not otherwise able to seek remedy for a 17 claim through an enforcement entity described 18 in subparagraph (A) through (E); and 19 (G) a court of the United States shall have 20 the same jurisdiction and powers as the court 21 has to enforce— 22 (i) title VII of the Civil Rights Act of 23 1964 (42 U.S.C. 2000e et seq.) in the case 24 of a claim alleged by such employee for a 25 VerDate Sep 11 2014 20:29 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1521.IH H1521 pamtmann on DSKBFK8HB2PROD with BIL [Text truncated for display. Full text available on Congress.gov.]