Fair Employment Protection Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 4015 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 HOUSE OF REPRESENTATIVES JULY 25, 2019 Ms. DELAURO (for herself, Ms. NORTON, Mr. DESAULNIER, Ms. FRANKEL, Ms. DELBENE, Ms. BROWNLEY of California, and Ms. LEE of California) introduced the following bill; which was referred to the Committee on Education and Labor, and in addition to the Committees on House Ad- ministration, the Judiciary, and Oversight and Reform, for a period to be subsequently determined by the Speaker, in each case for consider- ation of such provisions as fall within the jurisdiction of the committee concerned 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 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 2 •HR 4015 IH (1) In fiscal year 2018, sex discrimination 1 charges comprised 32.3 percent of the charges filed 2 with the Equal Employment Opportunity Commis- 3 sion (referred to in this section as the ‘‘EEOC’’) 4 under all the statutes the agency enforces. In fiscal 5 year 2018, 84.1 percent of sexual harassment 6 charges were filed by women. 7 (2) Women and people of color working in low- 8 wage jobs are particularly vulnerable to harassment 9 in the workplace. 10 (3) In some industries, harassment is even 11 more widespread. For example, a survey conducted 12 by the Restaurant Opportunities Centers United 13 Forward Together found that two-thirds of women 14 workers and over half of men workers had experi- 15 enced some form of sexual harassment from man- 16 agement in the restaurant industry; nearly 80 per- 17 cent of women and 70 percent of men experienced 18 some form of sexual harassment from co-workers; 19 and nearly 80 percent of women and 55 percent of 20 men experienced some form of sexual harassment 21 from customers. 22 (4) Studies indicate that sexual harassment of 23 women, including unwanted touching, grabbing, and 24 stalking, is also common in male-dominated indus- 25 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 3 •HR 4015 IH tries, such as construction, public safety, manufac- 1 turing, farming, and the high-tech industry. Harass- 2 ment in male-dominated industries operates as a 3 barrier to women’s entry into higher paying jobs. 4 (5) Racial harassment remains a pervasive 5 problem in the workplace in the United States. In 6 fiscal year 2018, 32.2 percent of the charges of al- 7 leged violations filed with the EEOC were charges 8 on the basis of race. 9 (6) Research shows that workers in a wide 10 spectrum of occupations, ranging from service and 11 support positions to management and professional 12 positions, report experiencing race-based harassment 13 while on the job. 14 (7) Harassment in the workplace is a persistent 15 barrier to opportunity for people with disabilities. 16 Harassment can result in workers with disabilities 17 being forced off the job. Workplace harassment is 18 used to send the message that workers with disabil- 19 ities do not belong at work. 20 (8) Age discrimination continues to be a barrier 21 to employment for older workers. Nearly one-third of 22 older workers report that they or someone they know 23 experienced age discrimination in the workplace. 24 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 4 •HR 4015 IH (9) The Supreme Court’s decision in Vance v. 1 Ball State University, No. 11–556 (June 24, 2013), 2 significantly undermines protections against dis- 3 crimination that the Supreme Court established in 4 Faragher v. Boca Raton, 524 U.S. 775 (1998) and 5 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 6 (1998), which held that an employer may be vicari- 7 ously liable under title VII of the Civil Rights Act 8 of 1964 for harassment of an employee by an indi- 9 vidual that has supervisory authority over that em- 10 ployee. 11 (10) In Faragher and Ellerth, the Supreme 12 Court held that employers will be subject to a strict 13 liability standard when employees with supervisory 14 authority engage in harassment that results in ‘‘tan- 15 gible employment actions’’. However, in situations 16 where ‘‘supervisors’’ engage in harassment that does 17 not result in tangible employment actions, the Court 18 explained, an employer can avoid vicarious liability 19 by showing that— 20 (A) the employer exercised reasonable care 21 to prevent and correct any harassing behavior; 22 and 23 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 5 •HR 4015 IH (B) the plaintiff unreasonably failed to 1 take advantage of the preventive or corrective 2 opportunities that the employer provided. 3 (11) Whether an employer should be vicariously 4 liable for harassment is a functional analysis that is 5 based not on the title of the harasser or the employ- 6 er’s job description for the harasser’s position but on 7 the authority vested in that individual by the em- 8 ployer. 9 (12) The Supreme Court holding in Vance lim- 10 its the category of individuals who are considered su- 11 pervisors and for which an employer may be held vi- 12 cariously liable under Faragher and Ellerth to those 13 individuals that have authority to take tangible em- 14 ployment actions. This holding ignores the reality 15 that employees with the authority to control their 16 subordinates’ daily work should be included in that 17 category, for which an employer may be held vicari- 18 ously liable, because such individuals are aided by 19 that authority in perpetuating a discriminatory work 20 environment. 21 (13) Individuals who direct the daily work ac- 22 tivities of employees but do not have the authority 23 to take tangible employment actions against those 24 employees are common in the workplace in the 25 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 6 •HR 4015 IH United States, particularly in industries that employ 1 low-wage workers. Workers in industries including 2 retail, restaurant, health care, housekeeping, and 3 personal care, which may pay low wages and employ 4 large numbers of female workers, are particularly 5 vulnerable to harassment by individuals who have 6 the power to direct day-to-day work activities but 7 lack the power to take tangible employment actions. 8 (b) PURPOSE.—The purpose of this Act is to clarify 9 that an employer’s vicarious liability for harassment under 10 title VII of the Civil Rights Act of 1964, the Age Discrimi- 11 nation in Employment Act of 1967, the Americans with 12 Disabilities Act of 1990, the Rehabilitation Act of 1973, 13 section 1977 of the Revised Statutes, the Genetic Informa- 14 tion Nondiscrimination Act of 2008, the Government Em- 15 ployee Rights Act of 1991, the Congressional Account- 16 ability Act of 1995, and title 3, United States Code, ex- 17 tends to— 18 (1) an individual with the authority to under- 19 take or recommend tangible employment actions af- 20 fecting the victim of the harassment; or 21 (2) an individual with the authority to direct 22 the victim’s daily work activities. 23 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 7 •HR 4015 IH SEC. 3. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS 1 ACT OF 1964. 2 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS- 3 TILE WORK ENVIRONMENT.—Section 703 of the Civil 4 Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by 5 adding at the end the following: 6 ‘‘(o) Subject to section 12 of the Fair Employment 7 Protection Act of 2019, an employer shall be liable for 8 the acts of any individual whose harassment of an em- 9 ployee has created or continued a hostile work environ- 10 ment that constitutes an unlawful employment practice 11 under this section if, at the time of the harassment— 12 ‘‘(1) such individual was authorized by that em- 13 ployer— 14 ‘‘(A) to undertake or recommend tangible 15 employment actions affecting the employee; or 16 ‘‘(B) to direct the employee’s daily work 17 activities; or 18 ‘‘(2) the negligence of the employer led to the 19 creation or continuation of that hostile work environ- 20 ment.’’. 21 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE- 22 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 704 23 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3) is 24 amended— 25 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 8 •HR 4015 IH (1) by redesignating subsection (b) as sub- 1 section (c); and 2 (2) by inserting after subsection (a) the fol- 3 lowing: 4 ‘‘(b) Subject to section 12 of the Fair Employment 5 Protection Act of 2019, an employer shall be liable for 6 the acts of any individual whose harassment of an em- 7 ployee has created or continued a retaliatory hostile work 8 environment that constitutes an unlawful employment 9 practice as described under subsection (a) if, at the time 10 of the harassment— 11 ‘‘(1) such individual was authorized by that em- 12 ployer— 13 ‘‘(A) to undertake or recommend tangible 14 employment actions affecting the employee; or 15 ‘‘(B) to direct the employee’s daily work 16 activities; or 17 ‘‘(2) the negligence of the employer led to the 18 creation or continuation of that retaliatory hostile 19 work environment.’’. 20 (c) FEDERAL EMPLOYEES.—Section 717 of the Civil 21 Rights Act of 1964 (42 U.S.C. 2000e–16) is amended by 22 adding at the end the following: 23 ‘‘(g) The provisions of sections 703(o) and 704(b) 24 shall apply to hostile work environment claims and retalia- 25 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 9 •HR 4015 IH tory hostile work environment claims, respectively, under 1 this section.’’. 2 SEC. 4. AMENDMENT TO THE AGE DISCRIMINATION IN EM- 3 PLOYMENT ACT OF 1967. 4 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS- 5 TILE WORK ENVIRONMENT.—Section 4 of the Age Dis- 6 crimination in Employment Act of 1967 (29 U.S.C. 623) 7 is amended by adding at the end the following: 8 ‘‘(n) Subject to section 12 of the Fair Employment 9 Protection Act of 2019, an employer shall be liable for 10 the acts of any individual whose harassment of an em- 11 ployee has created or continued a hostile work environ- 12 ment that is unlawful under this section if, at the time 13 of the harassment— 14 ‘‘(1) such individual was authorized by that em- 15 ployer— 16 ‘‘(A) to undertake or recommend tangible 17 employment actions affecting the employee; or 18 ‘‘(B) to direct the employee’s daily work 19 activities; or 20 ‘‘(2) the negligence of the employer led to the 21 creation or continuation of that hostile work environ- 22 ment.’’. 23 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE- 24 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 25 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 10 •HR 4015 IH 4(d) of the Age Discrimination in Employment Act of 1 1967 (29 U.S.C. 623) is amended by striking ‘‘or litiga- 2 tion under this Act.’’ and inserting ‘‘or litigation under 3 this Act. Subject to section 12 of the Fair Employment 4 Protection Act of 2019, an employer shall be liable for 5 the acts of any individual whose harassment of an em- 6 ployee has created or continued a retaliatory hostile work 7 environment that is unlawful under this subsection if, at 8 the time of the harassment— 9 ‘‘(1) such individual was authorized by that em- 10 ployer— 11 ‘‘(A) to undertake or recommend tangible 12 employment actions affecting the employee; or 13 ‘‘(B) to direct the employee’s daily work 14 activities; or 15 ‘‘(2) the negligence of the employer led to the 16 creation or continuation of that retaliatory hostile 17 work environment.’’. 18 (c) FEDERAL EMPLOYEES.—Section 15 of the Age 19 Discrimination in Employment Act of 1967 (29 U.S.C. 20 633a) is amended by adding at the end the following: 21 ‘‘(h) Subsections (d) and (n) of section 4 shall apply 22 to retaliatory hostile work environment claims and hostile 23 work environment claims, respectively, under this sec- 24 tion.’’. 25 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 11 •HR 4015 IH SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABIL- 1 ITIES ACT OF 1990. 2 (a) STANDARD FOR EMPLOYER LIABILITY FOR HOS- 3 TILE WORK ENVIRONMENT.—Section 102 of the Ameri- 4 cans with Disabilities Act of 1990 (42 U.S.C. 12112) is 5 amended by adding at the end the following: 6 ‘‘(e) Subject to section 12 of the Fair Employment 7 Protection Act of 2019, an employer shall be liable for 8 the acts of any individual whose harassment of an em- 9 ployee has created or continued a hostile work environ- 10 ment that constitutes discrimination against a qualified 11 individual on the basis of disability under this section if, 12 at the time of the harassment— 13 ‘‘(1) such individual was authorized by the em- 14 ployer— 15 ‘‘(A) to undertake or recommend tangible 16 employment actions affecting the qualified indi- 17 vidual; or 18 ‘‘(B) to direct the qualified individual’s 19 daily work activities; or 20 ‘‘(2) the negligence of the employer led to the 21 creation or continuation of that hostile work environ- 22 ment.’’. 23 (b) STANDARD FOR EMPLOYER LIABILITY FOR RE- 24 TALIATORY HOSTILE WORK ENVIRONMENT.—Section 503 25 VerDate Sep 11 2014 02:04 Aug 03, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H4015.IH H4015 kjohnson on DSK79L0C42 with BILLS 12 •HR 4015 IH of the Americans with Disabilities Act of 1990 (42 U.S.C. 1 12203) is amended— 2 (1) by redesignating subsection (c) as sub- 3 section (d); 4 (2) by inserting after subsection (b) the fol- 5 lowing: 6 ‘‘(c) Subject to section 12 of the Fair Employment 7 Protection [Text truncated for display. 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