BE HEARD in the Workplace Act

II 116TH CONGRESS 1ST SESSION S. 1082 To prevent discrimination and harassment in employment. IN THE SENATE OF THE UNITED STATES APRIL 9, 2019 Mrs. MURRAY (for herself, Ms. HARRIS, Mr. MERKLEY, Ms. WARREN, Mrs. GILLIBRAND, Mr. BLUMENTHAL, Ms. BALDWIN, Mr. CASEY, Mr. SAND- ERS, Mr. KAINE, Mr. BROWN, Mr. MARKEY, Ms. ROSEN, Ms. KLO- BUCHAR, Mr. CARDIN, Mr. VAN HOLLEN, Mr. BOOKER, Mr. DURBIN, and Ms. DUCKWORTH) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pen- sions A BILL To prevent discrimination and harassment in employment. 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 ‘‘Bringing an End to 4 Harassment by Enhancing Accountability and Rejecting 5 Discrimination in the Workplace Act’’ or the ‘‘BE 6 HEARD in the Workplace Act’’. 7 SEC. 2. TABLE OF CONTENTS. 8 The table of contents of this Act is as follows: 9 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1082 IS Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Purposes. TITLE I—RESEARCHING AND PREVENTING WORKPLACE HARASSMENT; TIPPED EMPLOYEES Sec. 100. Definitions. Subtitle A—Preventing Workplace Harassment Sec. 101. Mandatory nondiscrimination policies. Sec. 102. Nondiscrimination training. Sec. 103. Resource materials on policies and trainings for small businesses. Sec. 104. Education, training, and technical assistance to employers. Sec. 105. Task force regarding harassment. Sec. 106. Resource materials on employment climate assessments. Sec. 107. Establishing an Office of Education and Outreach within the Equal Employment Opportunity Commission. Sec. 108. Relationship to other laws. Sec. 109. Authorization of appropriations. Subtitle B—Research and Additional Resources for Harassment Prevention Sec. 111. National prevalence survey on harassment in employment. Sec. 112. Study and report on harassment in the Federal Government. Sec. 113. Studies, reports, and further research. Subtitle C—Preventing Harassment of Tipped Employees Sec. 121. Tipped employees. TITLE II—STRENGTHENING WORKPLACE RIGHTS Sec. 201. Clarifying sexual orientation discrimination and gender identity dis- crimination are unlawful sex discrimination. Sec. 202. Covered employers. Sec. 203. Compensatory and punitive damages available. Sec. 204. Harassment and discrimination; standards of proof. Sec. 205. Clarifying other standards of proof. Sec. 206. Supervisor liability. Sec. 207. Extending the statutes of limitations. Sec. 208. Extending the time limitations on Federal employees filing a com- plaint. TITLE III—BROADENING PROTECTIONS AND ENSURING TRANSPARENCY Sec. 301. Independent contractors, interns, fellows, volunteers, and trainees. Sec. 302. Nondisclosure agreements. Sec. 303. Prohibition on mandatory arbitration and protection of concerted legal action. Sec. 304. Federal contractor compliance with civil rights laws. TITLE IV—NATIONWIDE GRANTS TO PREVENT AND RESPOND TO WORKPLACE HARASSMENT Sec. 401. Definitions. VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1082 IS Subtitle A—National Grants for Preventing and Addressing Employment Discrimination, Including Harassment Sec. 411. Definitions. Sec. 412. Grants. Sec. 413. Authorization of appropriations. Subtitle B—Grants for Legal Assistance for Low-Income Workers Sec. 421. Definitions. Sec. 422. Grants for civil legal needs related to employment discrimination. Sec. 423. Authorization of appropriations. Subtitle C—Grants for a System of State Advocacy Sec. 431. Purpose. Sec. 432. Definitions. Sec. 433. Allotments and payments. Sec. 434. System required. Sec. 435. Administration. Sec. 436. Authorization of appropriations. TITLE V—GENERAL PROVISIONS Sec. 501. Severability. SEC. 3. PURPOSES. 1 The purposes of this Act are— 2 (1) to prevent and reduce prohibited discrimina- 3 tion and harassment in employment; 4 (2) to prevent and reduce discriminatory and 5 harassing conduct in the workplace; 6 (3) to identify and implement best practices in 7 creating a workplace free from discrimination and 8 harassment; 9 (4) to update and clarify certain employment 10 nondiscrimination laws; and 11 (5) to expand workers’ access to counsel and 12 advocacy services to protect the legal and human 13 rights of workers by preventing and reducing dis- 14 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1082 IS crimination and harassment and responding to viola- 1 tions of worker’s rights. 2 TITLE I—RESEARCHING AND 3 PREVENTING WORKPLACE 4 HARASSMENT; TIPPED EM- 5 PLOYEES 6 SEC. 100. DEFINITIONS. 7 In this title: 8 (1) COMMISSION.—The term ‘‘Commission’’ 9 means the Equal Employment Opportunity Commis- 10 sion. 11 (2) EMPLOYER.—The term ‘‘employer’’ has the 12 meaning given the term in section 701 of the Civil 13 Rights Act of 1964 (42 U.S.C. 2000e), as amended 14 by section 202 of this Act. 15 Subtitle A—Preventing Workplace 16 Harassment 17 SEC. 101. MANDATORY NONDISCRIMINATION POLICIES. 18 (a) POLICIES.— 19 (1) IN GENERAL.—Beginning not later than 1 20 year after the date of enactment of this Act, each 21 employer who has 15 or more employees shall adopt, 22 maintain, and periodically review a comprehensive 23 nondiscrimination policy, which shall establish poli- 24 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1082 IS cies and procedures concerning prohibited discrimi- 1 nation and harassment in employment. 2 (2) DISSEMINATION AND POSTING.—The em- 3 ployer shall disseminate the comprehensive non- 4 discrimination policy to each employee at the begin- 5 ning of employment, annually, and on the issuance 6 of any update to the comprehensive nondiscrimina- 7 tion policy. The employer shall post the comprehen- 8 sive nondiscrimination policy in prominent locations, 9 including in a prominent location on the employer’s 10 website. 11 (b) CONTENTS.—At a minimum, the comprehensive 12 nondiscrimination policy shall include— 13 (1) a definition of prohibited discrimination and 14 prohibited harassment in employment; 15 (2) a description of the types of behaviors pro- 16 hibited by the policy; 17 (3) the identification of multiple persons to 18 whom an employee may report such discrimination 19 or harassment; 20 (4) a description of multiple methods for re- 21 porting such discrimination or harassment; 22 (5) a general description of how the employer 23 will conduct prompt, thorough, and impartial inves- 24 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1082 IS tigations and respond to complaints regarding such 1 discrimination or harassment; 2 (6) a prohibition against retaliation related to 3 such discrimination or harassment, including dis- 4 closing, reporting, or challenging such discrimination 5 or harassment; 6 (7) a description of potential consequences for 7 violating the policy; and 8 (8) any additional components required by the 9 Commission for the purpose of preventing unlawful 10 discrimination and harassment. 11 (c) ACCESSIBILITY.—The comprehensive non- 12 discrimination policy shall be made available in plain 13 English and in an accessible manner for individuals with 14 disabilities and for individuals who primarily speak a lan- 15 guage other than English. 16 (d) ENFORCEMENT.— 17 (1) Subject to paragraph (2), an employer who 18 fails to comply with this section shall be fined not 19 more than $1,000 for each separate offense. 20 (2) An employer who repeatedly or willfully fails 21 to comply with this section shall be fined not less 22 than $5,000 for each separate offense. 23 (e) REGULATIONS.—The Commission shall have au- 24 thority to promulgate regulations to carry out this section. 25 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1082 IS SEC. 102. NONDISCRIMINATION TRAINING. 1 (a) IN GENERAL.—The Commission shall promulgate 2 regulations to require appropriate employers, as deter- 3 mined by the Commission, to provide— 4 (1) in-person or other interactive training for 5 each employee regarding discriminatory and haras- 6 sing behaviors in employment; and 7 (2) training specifically designed for supervisors 8 regarding the prevention of and response to dis- 9 crimination and harassment in employment, includ- 10 ing retaliation. 11 (b) REQUIRED TRAINING.—The requirements de- 12 scribed in subsection (a) shall— 13 (1) be based on research on effective training; 14 and 15 (2) identify specific elements of such training. 16 (c) ENFORCEMENT.—The Commission shall issue 17 remedies for noncompliance by regulation. 18 SEC. 103. RESOURCE MATERIALS ON POLICIES AND 19 TRAININGS FOR SMALL BUSINESSES. 20 (a) IN GENERAL.—Not later than 1 year after the 21 date of enactment of this Act, the Commission shall make 22 publicly available resource materials on comprehensive 23 nondiscrimination policies and trainings on such policies 24 for employers with fewer than 15 employees. 25 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1082 IS (b) CONTENTS.—Such resource materials shall in- 1 clude, at a minimum— 2 (1) model comprehensive nondiscrimination 3 policies concerning prohibited discrimination and 4 harassment in employment, as described in section 5 101, for use by employers with fewer than 15 em- 6 ployees, which shall— 7 (A) be designed to be easily distributed by 8 such employers to employees; 9 (B) take into account the resources avail- 10 able to such employers; 11 (C) take into account the particular needs 12 of employees of such employers; 13 (D) be made available in plain English and 14 in accessible formats for individuals with dis- 15 abilities and for individuals who primarily speak 16 a language other than English; 17 (E) include a definition of prohibited dis- 18 crimination and harassment in employment; 19 (F) include examples of prohibited dis- 20 criminatory and harassing behaviors; 21 (G) describe how the employer may con- 22 duct prompt, thorough, and impartial investiga- 23 tions and respond to complaints regarding such 24 prohibited discrimination and harassment; 25 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1082 IS (H) include a prohibition against retalia- 1 tion related to such discrimination or harass- 2 ment; 3 (I) include policies that reflect the needs of 4 a variety of different types of workplaces, in- 5 cluding those with differing work structures, fa- 6 cilities, or tasks; 7 (J) describe behaviors that would con- 8 stitute retaliation; and 9 (K) include a description of potential con- 10 sequences for violating the comprehensive non- 11 discrimination policy; and 12 (2) model trainings regarding prohibited dis- 13 crimination and harassment in employment, as de- 14 scribed in section 102, for use by employers with 15 fewer than 15 employees, which shall— 16 (A) take into account the resources avail- 17 able to such employers; 18 (B) take into account the particular needs 19 of employees of such employers; 20 (C) be made available in plain English and 21 in accessible formats for individuals with dis- 22 abilities and for individuals who primarily speak 23 a language other than English; 24 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1082 IS (D) be made available in an online format 1 that is widely available to such employers and 2 employees of such employers; 3 (E) include an explanation of prohibited 4 discrimination and harassment in employment, 5 including retaliation related to such discrimina- 6 tion and harassment; 7 (F) describe the affirmative behaviors that 8 contribute to preventing and reducing harass- 9 ment and discrimination in employment; 10 (G) include trainings designed to address 11 the needs of a variety of workplaces, including 12 those with differing work structures, facilities, 13 and tasks; 14 (H) include best practices for preventing 15 prohibited discrimination and harassment spe- 16 cific to industries in which the Commission de- 17 termines that harassment is particularly preva- 18 lent or severe; and 19 (I) include any additional information the 20 Commission determines may prevent discrimi- 21 nation and harassment of employees. 22 (c) INDIVIDUALIZATION.—The Commission shall en- 23 sure that resource materials under this section are de- 24 signed to facilitate individual employers to customize 25 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1082 IS training to address the needs of their workplaces, includ- 1 ing differing work structures, facilities, and tasks. 2 SEC. 104. EDUCATION, TRAINING, AND TECHNICAL ASSIST- 3 ANCE TO EMPLOYERS. 4 The Commission shall have the authority to— 5 (1) reasonably adjust the fees the Commission 6 charges for any education, technical assistance, or 7 training the Commission offers in accordance with 8 section 705(j)(1) of the Civil Rights Act of 1964 (42 9 U.S.C. 2000e–4(j)(1)); 10 (2) use the materials developed by the Commis- 11 sion for any education, technical assistance, or train- 12 ing offered by the Commission in accordance with 13 that section in any education and outreach activities 14 carried out by the Commission; and 15 (3) use funds from the Commission’s EEOC 16 Education, Technical Assistance, and Training Re- 17 volving Fund, established under section 705(k) of 18 the Civil Rights Act of 1964 (42 U.S.C. 2000e– 19 4(k)), to pay the full salaries of any Commission em- 20 ployees that develop and administer any education, 21 technical assistance, or training programs offered by 22 the Commission. 23 VerDate Sep 11 2014 21:42 Apr 16, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1082.IS S1082 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1082 IS SEC. 105. TASK FORCE REGARDING HARASSMENT. 1 (a) IN GENERAL.—The Com [Text truncated for display. Full text available on Congress.gov.]