II 116TH CONGRESS 1ST SESSION S. 2287 To amend title VII of the Civil Rights Act of 1964 and other statutes to clarify appropriate liability standards for Federal antidiscrimination claims. IN THE SENATE OF THE UNITED STATES JULY 25, 2019 Ms. BALDWIN (for herself and Mr. LEAHY) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend title VII of the Civil Rights Act of 1964 and other statutes to clarify appropriate liability standards for Federal antidiscrimination claims. 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 ‘‘Fair Employment Pro- 4 tection Act of 2019’’. 5 SEC. 2. FINDINGS AND PURPOSE. 6 (a) FINDINGS.—Congress finds the following: 7 (1) In fiscal year 2018, sex discrimination 8 charges comprised 32.3 percent of the charges filed 9 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 2 •S 2287 IS with the Equal Employment Opportunity Commis- 1 sion (referred to in this section as the ‘‘EEOC’’) 2 under all the statutes the agency enforces. In fiscal 3 year 2018, 84.1 percent of sexual harassment 4 charges were filed by women. 5 (2) Women and people of color working in low- 6 wage jobs are particularly vulnerable to harassment 7 in the workplace. 8 (3) In some industries, harassment is even 9 more widespread. For example, a survey conducted 10 by the Restaurant Opportunities Centers United 11 Forward Together found that two-thirds of women 12 workers and over half of men workers had experi- 13 enced some form of sexual harassment from man- 14 agement in the restaurant industry; nearly 80 per- 15 cent of women and 70 percent of men experienced 16 some form of sexual harassment from co-workers; 17 and nearly 80 percent of women and 55 percent of 18 men experienced some form of sexual harassment 19 from customers. 20 (4) Studies indicate that sexual harassment of 21 women, including unwanted touching, grabbing, and 22 stalking, is also common in male-dominated indus- 23 tries, such as construction, public safety, manufac- 24 turing, farming, and the high-tech industry. Harass- 25 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 3 •S 2287 IS ment in male-dominated industries operates as a 1 barrier to women’s entry into higher paying jobs. 2 (5) Racial harassment remains a pervasive 3 problem in the workplace in the United States. In 4 fiscal year 2018, 32.2 percent of the charges of al- 5 leged violations filed with the EEOC were charges 6 on the basis of race. 7 (6) Research shows that workers in a wide 8 spectrum of occupations, ranging from service and 9 support positions to management and professional 10 positions, report experiencing race-based harassment 11 while on the job. 12 (7) Harassment in the workplace is a persistent 13 barrier to opportunity for people with disabilities. 14 Harassment can result in workers with disabilities 15 being forced off the job. Workplace harassment is 16 used to send the message that workers with disabil- 17 ities do not belong at work. 18 (8) Age discrimination continues to be a barrier 19 to employment for older workers. Nearly one-third of 20 older workers report that they or someone they know 21 experienced age discrimination in the workplace. 22 (9) The Supreme Court’s decision in Vance v. 23 Ball State University, 570 U.S. 421 (2013), signifi- 24 cantly undermines protections against discrimination 25 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 4 •S 2287 IS that the Supreme Court established in Faragher v. 1 Boca Raton, 524 U.S. 775 (1998) and Burlington 2 Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), 3 which held that an employer may be vicariously lia- 4 ble under title VII of the Civil Rights Act of 1964 5 for harassment of an employee by an individual that 6 has supervisory authority over that employee. 7 (10) In Faragher and Ellerth, the Supreme 8 Court held that employers will be subject to a strict 9 liability standard when employees with supervisory 10 authority engage in harassment that results in ‘‘tan- 11 gible employment actions’’. However, in situations 12 where ‘‘supervisors’’ engage in harassment that does 13 not result in tangible employment actions, the Court 14 explained, an employer can avoid vicarious liability 15 by showing that— 16 (A) the employer exercised reasonable care 17 to prevent and correct any harassing behavior; 18 and 19 (B) the plaintiff unreasonably failed to 20 take advantage of the preventive or corrective 21 opportunities that the employer provided. 22 (11) Whether an employer should be vicariously 23 liable for harassment is a functional analysis that is 24 based not on the title of the harasser or the employ- 25 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 5 •S 2287 IS er’s job description for the harasser’s position but on 1 the authority vested in that individual by the em- 2 ployer. 3 (12) The Supreme Court holding in Vance lim- 4 its the category of individuals who are considered su- 5 pervisors and for which an employer may be held vi- 6 cariously liable under Faragher and Ellerth to those 7 individuals that have authority to take tangible em- 8 ployment actions. This holding ignores the reality 9 that employees with the authority to control their 10 subordinates’ daily work should be included in that 11 category, for which an employer may be held vicari- 12 ously liable, because such individuals are aided by 13 that authority in perpetuating a discriminatory work 14 environment. 15 (13) Individuals who direct the daily work ac- 16 tivities of employees but do not have the authority 17 to take tangible employment actions against those 18 employees are common in the workplace in the 19 United States, particularly in industries that employ 20 low-wage workers. Workers in industries including 21 retail, restaurant, health care, housekeeping, and 22 personal care, which may pay low wages and employ 23 large numbers of female workers, are particularly 24 vulnerable to harassment by individuals who have 25 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 6 •S 2287 IS the power to direct day-to-day work activities but 1 lack the power to take tangible employment actions. 2 (b) PURPOSE.—The purpose of this Act is to clarify 3 that an employer’s vicarious liability for harassment under 4 title VII of the Civil Rights Act of 1964, the Age Discrimi- 5 nation in Employment Act of 1967, the Americans with 6 Disabilities Act of 1990, the Rehabilitation Act of 1973, 7 section 1977 of the Revised Statutes, the Genetic Informa- 8 tion Nondiscrimination Act of 2008, the Government Em- 9 ployee Rights Act of 1991, the Congressional Account- 10 ability Act of 1995, and title 3, United States Code, ex- 11 tends to— 12 (1) an individual with the authority to under- 13 take or recommend tangible employment actions af- 14 fecting the victim of the harassment; or 15 (2) an individual with the authority to direct 16 the victim’s daily work activities. 17 SEC. 3. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS 18 ACT OF 1964. 19 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS- 20 TILE WORK ENVIRONMENT.—Section 703 of the Civil 21 Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by 22 adding at the end the following: 23 ‘‘(o) Subject to section 12 of the Fair Employment 24 Protection Act of 2019, an employer shall be liable for 25 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 7 •S 2287 IS the acts of any individual whose harassment of an em- 1 ployee has created or continued a hostile work environ- 2 ment that constitutes an unlawful employment practice 3 under this section if, at the time of the harassment— 4 ‘‘(1) such individual was authorized by that em- 5 ployer— 6 ‘‘(A) to undertake or recommend tangible 7 employment actions affecting the employee; or 8 ‘‘(B) to direct the employee’s daily work 9 activities; or 10 ‘‘(2) the negligence of the employer led to the 11 creation or continuation of that hostile work environ- 12 ment.’’. 13 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE- 14 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 704 15 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3) is 16 amended— 17 (1) by redesignating subsection (b) as sub- 18 section (c); and 19 (2) by inserting after subsection (a) the fol- 20 lowing: 21 ‘‘(b) Subject to section 12 of the Fair Employment 22 Protection Act of 2019, an employer shall be liable for 23 the acts of any individual whose harassment of an em- 24 ployee has created or continued a retaliatory hostile work 25 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 8 •S 2287 IS environment that constitutes an unlawful employment 1 practice as described under subsection (a) if, at the time 2 of the harassment— 3 ‘‘(1) such individual was authorized by that em- 4 ployer— 5 ‘‘(A) to undertake or recommend tangible 6 employment actions affecting the employee; or 7 ‘‘(B) to direct the employee’s daily work 8 activities; or 9 ‘‘(2) the negligence of the employer led to the 10 creation or continuation of that retaliatory hostile 11 work environment.’’. 12 (c) FEDERAL EMPLOYEES.—Section 717 of the Civil 13 Rights Act of 1964 (42 U.S.C. 2000e–16) is amended by 14 adding at the end the following: 15 ‘‘(g) The provisions of sections 703(o) and 704(b) 16 shall apply to hostile work environment claims and retalia- 17 tory hostile work environment claims, respectively, under 18 this section.’’. 19 SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EM- 20 PLOYMENT ACT OF 1967. 21 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS- 22 TILE WORK ENVIRONMENT.—Section 4 of the Age Dis- 23 crimination in Employment Act of 1967 (29 U.S.C. 623) 24 is amended by adding at the end the following: 25 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 9 •S 2287 IS ‘‘(n) Subject to section 12 of the Fair Employment 1 Protection Act of 2019, an employer shall be liable for 2 the acts of any individual whose harassment of an em- 3 ployee has created or continued a hostile work environ- 4 ment that is unlawful under this section if, at the time 5 of the harassment— 6 ‘‘(1) such individual was authorized by that em- 7 ployer— 8 ‘‘(A) to undertake or recommend tangible 9 employment actions affecting the employee; or 10 ‘‘(B) to direct the employee’s daily work 11 activities; or 12 ‘‘(2) the negligence of the employer led to the 13 creation or continuation of that hostile work environ- 14 ment.’’. 15 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE- 16 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 17 4(d) of the Age Discrimination in Employment Act of 18 1967 (29 U.S.C. 623) is amended by striking ‘‘or litiga- 19 tion under this Act.’’ and inserting ‘‘or litigation under 20 this Act. Subject to section 12 of the Fair Employment 21 Protection Act of 2019, an employer shall be liable for 22 the acts of any individual whose harassment of an em- 23 ployee has created or continued a retaliatory hostile work 24 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 10 •S 2287 IS environment that is unlawful under this subsection if, at 1 the time of the harassment— 2 ‘‘(1) such individual was authorized by that em- 3 ployer— 4 ‘‘(A) to undertake or recommend tangible 5 employment actions affecting the employee; or 6 ‘‘(B) to direct the employee’s daily work 7 activities; or 8 ‘‘(2) the negligence of the employer led to the 9 creation or continuation of that retaliatory hostile 10 work environment.’’. 11 (c) FEDERAL EMPLOYEES.—Section 15 of the Age 12 Discrimination in Employment Act of 1967 (29 U.S.C. 13 633a) is amended by adding at the end the following: 14 ‘‘(h) Subsections (d) and (n) of section 4 shall apply 15 to retaliatory hostile work environment claims and hostile 16 work environment claims, respectively, under this sec- 17 tion.’’. 18 SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABIL- 19 ITIES ACT OF 1990. 20 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS- 21 TILE WORK ENVIRONMENT.—Section 102 of the Ameri- 22 cans with Disabilities Act of 1990 (42 U.S.C. 12112) is 23 amended by adding at the end the following: 24 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 11 •S 2287 IS ‘‘(e) STANDARD FOR EMPLOYER LIABILITY FOR 1 HOSTILE WORK ENVIRONMENT.—Subject to section 12 of 2 the Fair Employment Protection Act of 2019, an employer 3 shall be liable for the acts of any individual whose harass- 4 ment of an employee has created or continued a hostile 5 work environment that constitutes discrimination against 6 a qualified individual on the basis of disability under this 7 section if, at the time of the harassment— 8 ‘‘(1) such individual was authorized by the em- 9 ployer— 10 ‘‘(A) to undertake or recommend tangible 11 employment actions affecting the qualified indi- 12 vidual; or 13 ‘‘(B) to direct the qualified individual’s 14 daily work activities; or 15 ‘‘(2) the negligence of the employer led to the 16 creation or continuation of that hostile work environ- 17 ment.’’. 18 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE- 19 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 503 20 of the Americans with Disabilities Act of 1990 (42 U.S.C. 21 12203) is amended— 22 (1) by redesignating subsection (c) as sub- 23 section (d); 24 VerDate Sep 11 2014 02:05 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2287.IS S2287 kjohnson on DSK79L0C42 with BILLS 12 •S 2287 IS (2) by inserting after subsection (b) the fol- 1 lowing: 2 ‘‘(c) EMPLOYER LIABILITY.—Subject to section 12 of 3 the Fair Employment Protection Act of 2019, an employer 4 shall be liable for the acts of any individual whose harass- 5 ment of an employee has created or continued a retaliatory 6 hostile work environment that constitutes retaliatory dis- 7 crimination, as described in subsection (a), or the carryi [Text truncated for display. 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