Ending Secrecy About Workplace Sexual Harassment Act

I 116TH CONGRESS 1ST SESSION H. R. 1828 To require annual reporting by employers of the number of settlements with employees regarding claims of discrimination on the basis of sex, including verbal and physical sexual harassment, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 18, 2019 Mrs. CAROLYN B. MALONEY of New York introduced the following bill; which was referred to the Committee on Education and Labor A BILL To require annual reporting by employers of the number of settlements with employees regarding claims of dis- crimination on the basis of sex, including verbal and physical sexual harassment, and for other purposes. 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; FINDINGS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Ending Secrecy About Workplace Sexual Harassment 5 Act’’. 6 (b) FINDINGS.—Congress finds that the following: 7 VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS 2 •HR 1828 IH (1) Thirty years after the United States Su- 1 preme Court held in Meritor Savings Bank v. Vinson 2 that sexual harassment creates a hostile or abusive 3 work environment and is a violation of title VII of 4 the Civil Rights Act of 1964, sexual harassment re- 5 mains a widespread problem, affecting victims in 6 every industry, at every level of employment. 7 (2) In fiscal year 2015, almost one-third of the 8 90,000 charges filed with the Equal Employment 9 Opportunity Commission involved harassment, and 10 nearly a quarter of those harassment charges in- 11 volved sexual harassment. Of the total number of 12 charges received that alleged harassment from em- 13 ployees working for private employers or for State 14 and local government employers, approximately 45 15 percent alleged harassment on the basis of sex. 16 (3) According to the Commission’s Select Task 17 Force in 2016, on the Study of Harassment in the 18 Workplace, the prevalence of such harassment— 19 (A) causes mental and physical harm to 20 the victim, as the study concluded that ‘‘em- 21 ployees experiencing sexual harassment are 22 more likely to report symptoms of depression, 23 general stress and anxiety, posttraumatic stress 24 VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS 3 •HR 1828 IH disorder (PTSD), and overall impaired psycho- 1 logical well-being’’; 2 (B) results in harms, which are not limited 3 to victims, as the study concluded that ‘‘em- 4 ployees, female and male alike, who observed 5 hostility directed toward female coworkers (both 6 incivility and sexually harassing behavior) were 7 more likely to experience lower psychological 8 well-being’’, which were ‘‘in turn linked to lower 9 physical well-being’’. 10 (4) Prevalence of sexual harassment in the 11 workplace causes substantial financial harm to vic- 12 tims, as they often try to avoid the harassing behav- 13 ior by taking leave without pay or leaving the work- 14 place entirely, resulting in a loss of wages. The U.S. 15 Merit Systems Protection Board’s 1995 report on 16 Sexual Harassment in the Federal Workplace found 17 sexual harassment cost Federal employees $4.4 mil- 18 lion between 1992 and 1994. 19 (5) According to Commission records, from fis- 20 cal year 2010 to 2016, U.S. companies have paid 21 out more than $295 million in public penalties over 22 sexual harassment claims. This sum does not include 23 any private settlements or internally resolved com- 24 VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS 4 •HR 1828 IH plaints about which there is limited public informa- 1 tion. 2 (6) The Commission is responsible for enforcing 3 Federal anti-discrimination laws that protect job ap- 4 plicants and employees, and has the authority to in- 5 vestigate charges of discrimination against employ- 6 ers who are covered by the law. 7 (7) The Commission does not currently receive 8 disclosures from employers on annual EEO–1 re- 9 ports regarding claims of discrimination on the basis 10 of sex, including verbal and physical sexual harass- 11 ment made directly to the employer and resolved in- 12 ternally through out-of-court settlements or other 13 mediation. 14 SEC. 2. EMPLOYER REPORTING REQUIREMENT. 15 (a) REPORTING REQUIREMENT.—Every employer re- 16 quired to submit to the Equal Employment Opportunity 17 Commission an Employer Information Report EEO–1 18 shall include in such report the number of settlements 19 reached by the employer with an employee in the resolu- 20 tion of claims pertaining to discrimination on the basis 21 of sex, including verbal and physical sexual harassment. 22 (b) REQUIRED REPORTING.—Examples of settle- 23 ments required to be reported under this section include 24 any agreement where anything of value is conferred to the 25 VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS 5 •HR 1828 IH individual raising the claim in return for such individual 1 declining to further pursue the claim, any internal medi- 2 ation or other workplace resolution that results in the indi- 3 vidual declining to further pursue the claim. 4 (c) EXAMPLES OF OFFENSIVE CONDUCT THAT CON- 5 STITUTE SEXUAL HARASSMENT.—Claims pertaining to 6 sexual harassment are those that complain of acts such 7 as— 8 (1) inappropriate or unwanted touching; 9 (2) verbal comments about sex or of a sexual 10 nature, which may include comments to an indi- 11 vidual about her or his body or sexual or romantic 12 activity, or the body or sexual or romantic activity 13 of the individual making the comments; 14 (3) referring to another individual by a name or 15 nickname of a romantic, demeaning, or sexual na- 16 ture; 17 (4) inappropriate gestures of a sexual nature; 18 (5) unwanted proposals for sexual activity; 19 (6) showing another individual photos or other 20 images that are sexually explicit or are otherwise of 21 a sexual nature; or 22 (7) undue attention to or questions about a per- 23 son’s sexual relationships, sexual history, sexual ori- 24 entation, or gender identity. 25 VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS 6 •HR 1828 IH SEC. 3. RIGHTS OF EMPLOYEES. 1 (a) PROTECTION FROM RETALIATION.— 2 (1) CONDUCT PROHIBITED.—An employer may 3 not terminate any employee nor discriminate against 4 any such employee with regards to terms and condi- 5 tions of employment because such employee— 6 (A) inquires about an employer’s meeting 7 of the requirements of this Act; or 8 (B) complains about an employer’s failure 9 to meet the requirements of this Act. 10 (2) ENFORCEMENT.— 11 (A) LIABILITY.—In addition to civil rights 12 protections and remedies for retaliation avail- 13 able under other Federal, State, or local law, 14 any employer who violates paragraph (1) shall 15 be liable to any eligible employee affected for— 16 (i) damages equal to the amount of 17 any wages, salary, employment benefits, or 18 other compensation denied or lost to such 19 employee by reason of the violation; 20 (ii) the interest on the amount de- 21 scribed in clause (i) calculated at the pre- 22 vailing rate; 23 (iii) an additional amount as liq- 24 uidated damages equal to the sum of the 25 VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS 7 •HR 1828 IH amount described in clause (i) and the in- 1 terest described in clause (ii); and 2 (iv) such equitable relief as may be 3 appropriate, including employment, rein- 4 statement, and promotion. 5 (B) RIGHT OF ACTION.—An action to re- 6 cover the damages or equitable relief prescribed 7 in subparagraph (A) may be maintained against 8 any employer in any Federal or State court of 9 competent jurisdiction by any one or more em- 10 ployees for and on behalf of— 11 (i) the employee or employees; or 12 (ii) the employees and other employ- 13 ees similarly situated. 14 (C) FEES AND COSTS.—The court in such 15 an action shall, in addition to any judgment 16 awarded to the plaintiff, allow a reasonable at- 17 torney’s fee, reasonable expert witness fees, and 18 other costs of the action to be paid by the de- 19 fendant. 20 (b) CONFIDENTIALITY AGREEMENTS AND SETTLE- 21 MENTS.— 22 (1) RULE OF CONSTRUCTION.—Nothing in this 23 Act shall be construed to interfere with the right of 24 an employee to enter into a confidentiality agree- 25 VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS 8 •HR 1828 IH ment with his or her employer with respect to a 1 claim of discrimination on the basis of sex, including 2 verbal and physical sexual harassment, the investiga- 3 tion of such a claim, or the out-of-court settlement 4 of such a claim. 5 (2) LIMITATIONS ON AGREEMENTS.— 6 (A) An employer may not use a confiden- 7 tiality agreement described in paragraph (1) as 8 a basis for not submitting the information re- 9 quired by section 2. 10 (B) A confidentiality agreement described 11 in paragraph (1) shall not be construed as pro- 12 hibiting any party to such agreement from co- 13 operating with law enforcement investigations 14 into any claims of discrimination on the basis 15 of sex, including verbal and physical sexual har- 16 assment. 17 SEC. 4. EEOC REPORT TO CONGRESS. 18 The Equal Employment Opportunity Commission 19 shall annually report to Congress information relating to 20 claims of discrimination on the basis of sex, including 21 verbal and physical sexual harassment, including— 22 (1) the number of settlements that were re- 23 ported to the Commission as defined by and re- 24 ported pursuant to section 2; 25 VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS 9 •HR 1828 IH (2) the number of charges alleging discrimina- 1 tion on the basis of sex that were reported to the 2 Equal Employment Opportunity Commission, includ- 3 ing verbal and physical sexual harassment made di- 4 rectly to the Commission; and 5 (3) a summary of any action taken by the Com- 6 mission based upon any such charges or complaints 7 collected pursuant to this Act, such as litigation or 8 settlements facilitated by the Commission pertaining 9 to discrimination on the basis of sex, including 10 verbal and physical sexual harassment, including a 11 brief description of any outcome of such actions. 12 SEC. 5. GAO STUDY AND REPORT. 13 The Comptroller General of the United States shall 14 conduct a comprehensive study of claims of discrimination 15 on the basis of sex, including verbal and physical sexual 16 harassment involving both government and private sector 17 employees and shall report to Congress not later than one 18 year after the date of enactment of this Act the results 19 of such study and recommendations for legislation or other 20 action for improving transparency and accountability re- 21 garding such claims. 22 Æ VerDate Sep 11 2014 05:00 Apr 02, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H1828.IH H1828 kjohnson on DSK79L0C42 with BILLS