Protecting Family Caregivers from Discrimination Act of 2020

II 116TH CONGRESS 2D SESSION S. 3878 To protect employees from discrimination based on family caregiver responsibilities, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 3, 2020 Mr. BOOKER introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To protect employees from discrimination based on family caregiver responsibilities, 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. 3 This Act may be cited as the ‘‘Protecting Family 4 Caregivers from Discrimination Act of 2020’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) ADVERSE ACTION.—The term ‘‘adverse ac- 8 tion’’ means— 9 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3878 IS (A) to fail or refuse to hire or to discharge 1 any individual, or otherwise to discriminate 2 against any individual with respect to the indi- 3 vidual’s compensation, terms, conditions, sched- 4 uling, or privileges of employment; 5 (B) to limit, segregate, or classify employ- 6 ees or applicants for employment in any way 7 which would deprive or tend to deprive any in- 8 dividual of employment opportunities or other- 9 wise adversely affect an individual’s status as 10 an employee; or 11 (C) any other act or practice that is con- 12 sidered an adverse action under title VII of the 13 1964 Civil Rights Act (42 U.S.C. 2000e et 14 seq.). 15 (2) COMMERCE.—The term ‘‘commerce’’ has 16 the meaning given such term in section 3 of the Fair 17 Labor Standards Act of 1938 (29 U.S.C. 203). 18 (3) COMMISSION.—The term ‘‘Commission’’ 19 means the Equal Employment Opportunity Commis- 20 sion. 21 (4) EMPLOYEE.—The term ‘‘employee’’ 22 means— 23 (A) an employee, as defined in section 3 of 24 the Fair Labor Standards Act of 1938 (29 25 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3878 IS U.S.C. 203), who in any workweek is engaged 1 in commerce or in the production of goods for 2 commerce, or is employed in an enterprise en- 3 gaged in commerce or in the production of 4 goods for commerce; or 5 (B) an individual who is engaged, for a 6 majority of the individual’s work time, by— 7 (i) an employer; or 8 (ii) an individual or entity that is not 9 acting as an employer and engages the 10 services of a worker to perform services or 11 work as an independent contractor (re- 12 gardless of the label or classification as- 13 signed or used by the employer or an indi- 14 vidual or entity that is not acting as an 15 employer and engages the services of a 16 worker). 17 (5) EMPLOYER; ENTERPRISE ENGAGED IN COM- 18 MERCE OR IN THE PRODUCTION OF GOODS FOR 19 COMMERCE.—The terms ‘‘employer’’ and ‘‘enterprise 20 engaged in commerce or in the production of goods 21 for commerce’’ have the meanings given such terms 22 in section 3 of the Fair Labor Standards Act of 23 1938 (29 U.S.C. 203). 24 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3878 IS (6) FAMILY CAREGIVER RESPONSIBILITIES.— 1 The term ‘‘family caregiver responsibilities’’, with re- 2 spect to an individual having such responsibilities, 3 means the responsibilities of the individual as being 4 responsible, or being regarded as being responsible, 5 as a contributor to the support or care of one or 6 more family members of the individual, regardless of 7 the age of the family member. 8 (7) FAMILY MEMBER.— 9 (A) IN GENERAL.—The term ‘‘family 10 member’’, with respect to an individual, in- 11 cludes— 12 (i) the spouse or domestic partner of 13 the individual; 14 (ii) the parent, grandparent, or sibling 15 of the individual, including if such parent, 16 grandparent, or sibling is an in-law of the 17 individual; 18 (iii) any child, grandchild, niece, or 19 nephew of the individual; 20 (iv) any aunt, uncle, or cousin of the 21 individual; and 22 (v) any other individual related to the 23 employee by blood or affinity whose close 24 association to the employee is the equiva- 25 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3878 IS lent of the family relationships described in 1 clauses (i) through (iv). 2 (B) RELATIONSHIP.—A relationship de- 3 scribed in subparagraph (A) may be acquired 4 through adoption, marriage, or a dependent or 5 custodial relationship. 6 SEC. 3. PROHIBITION ON DISCRIMINATION. 7 It shall be unlawful for an employer or an individual 8 or entity described in section 2(4)(B)(ii) to— 9 (1) fail or refuse to hire an applicant as an em- 10 ployee of such employer, or such individual or entity, 11 because of the family caregiver responsibilities of the 12 applicant; or 13 (2) take adverse action against an employee of 14 such employer or such individual or entity, or other- 15 wise discriminate against such an employee, with re- 16 spect to the compensation, terms, conditions, or 17 privileges of employment of the employee because of 18 the family caregiver responsibilities of the employee. 19 SEC. 4. PROHIBITION ON RETALIATION. 20 (a) INTERFERENCE WITH RIGHTS.— 21 (1) EXERCISE OF RIGHTS.—It shall be unlawful 22 for any employer or an individual or entity described 23 in section 2(4)(B)(ii) to retaliate against, interfere 24 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3878 IS with, restrain, or deny the exercise of or the attempt 1 to exercise, any right provided under this section. 2 (2) ADVERSE ACTION.—It shall be unlawful for 3 any employer or an individual or entity described in 4 section 2(4)(B)(ii) to take any adverse action 5 against any employee or applicant because the em- 6 ployee or applicant has exercised in good faith the 7 rights protected under this section. 8 (3) IMMIGRATION STATUS.—It shall be unlawful 9 for any employer or an individual or entity described 10 in section 2(4)(B)(ii) to communicate to an em- 11 ployee or applicant exercising rights protected under 12 this section, directly or indirectly, the willingness to 13 inform a government employee that the employee or 14 applicant is not lawfully in the United States, or to 15 report, or to make an implied or express assertion 16 of a willingness to report, suspected citizenship or 17 immigration status of an employee or applicant or 18 family member of the employee or applicant to a 19 Federal, State, or local agency because the employee 20 has exercised a right under this section. 21 (b) RIGHTS OF EMPLOYEES.—The rights of an em- 22 ployee or applicant shall include the right to— 23 (1) inform the employee’s employer, union, or 24 similar organization, or the employee’s legal counsel 25 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3878 IS or any other person about an alleged violation of this 1 Act; 2 (2) file any charge, or institute or cause to be 3 instituted any proceeding, under or related to this 4 Act, or otherwise take action in accordance with sec- 5 tion 6 relating to the enforcement of this Act; 6 (3) cooperate in investigations under or relating 7 to this Act, including by giving or preparing to give 8 information in connection with any inquiry or pro- 9 ceeding under or related to this Act; 10 (4) testify in any inquiry or proceeding under 11 or related to this Act; and 12 (5) refuse to participate in, or otherwise oppose, 13 any policy, practice, or act that is unlawful under 14 this Act. 15 (c) PRESUMPTION OF RETALIATION.—There shall be 16 a rebuttable presumption that retaliation has occurred in 17 violation of this section if an employer or an individual 18 or entity described in section 2(4)(B)(ii) takes an adverse 19 action against an employee or applicant during the period 20 that is 2 years after the date on which that employee or 21 applicant exercised rights protected under this section. In 22 the case of seasonal work, the presumption also applies 23 if the employer or individual or entity described in section 24 2(4)(B)(ii) fails to rehire a former employee at the next 25 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3878 IS opportunity for work in the same position. The employer 1 or individual or entity described in section 2(4)(B)(ii) may 2 rebut the presumption with clear and convincing evidence 3 that the adverse action was taken for a permissible pur- 4 pose. 5 (d) PROTECTIONS FOR GOOD FAITH ALLEGA- 6 TIONS.—The protections afforded under this section shall 7 apply to any individual who mistakenly but in good faith 8 alleges a violation of this section or section 3. 9 (e) EXPLICIT REFERENCE NOT REQUIRED.—A com- 10 plaint or other communication by an employee or any ap- 11 plicant may be an action described in subsection (b) that 12 gives rise to the protections described in this section re- 13 gardless of whether the complaint or communication is in 14 writing or makes explicit reference to this Act. 15 SEC. 5. POSTING OF NOTICES. 16 (a) IN GENERAL.—Each employer shall, not later 17 than 180 days after the date of enactment of this Act, 18 post, and keep posted, in a conspicuous place upon the 19 premises of the employer a notice, to be prepared or ap- 20 proved by the Commission, setting forth information as 21 the Commission determines appropriate to effectuate the 22 purposes of this Act, including the pertinent provisions of 23 this Act and information pertinent to the filing of a charge 24 with the Commission. 25 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3878 IS (b) PENALTY.—A willful violation of this section shall 1 be punishable by a fine of not more than $100 for each 2 separate offense. 3 SEC. 6. ENFORCEMENT. 4 (a) IN GENERAL.—Subject to subsection (c), sections 5 3 and 4 of this Act shall be enforced by the Commission 6 in the same manner and by the same means, including 7 with the same jurisdiction, as the enforcement of a viola- 8 tion of title VII of the Civil Rights Act of 1964 (42 U.S.C. 9 2000e et seq.). Violations of this Act may be established 10 through proof of disparate treatment or disparate impact. 11 (b) ACTION BY THE COMMISSION.—Except as other- 12 wise specified in this Act, the Commission shall receive, 13 investigate, attempt to resolve, and otherwise enforce a 14 charge of a violation of section 3 or 4 of this Act in the 15 same manner that the Commission receives, investigates, 16 attempts to resolve, and enforces a charge of a violation 17 of title VII of the Civil Rights Act of 1964. 18 (c) PRIVATE RIGHT OF ACTION.—Notwithstanding 19 subsection (a) and section 706 of the Civil Rights Act of 20 1964 (42 U.S.C. 2000e–5), a private right of action shall 21 also be available to an applicant or individual who alleges 22 a violation of section 3 or 4 of this Act. Such applicant 23 or individual shall not be required to file a charge with 24 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3878 IS the Commission or pursue or exhaust any administrative 1 remedies before instituting a civil action. 2 (d) PENALTIES.— 3 (1) IN GENERAL.—In addition to sums that 4 may otherwise be collected by an aggrieved indi- 5 vidual or collected by the Commission and paid to an 6 aggrieved individual, any person who willfully vio- 7 lates sections 3 or 4 shall upon conviction thereof be 8 subject to a penalty of an amount not to exceed— 9 (A) $10,000 for each violation of section 3; 10 and 11 (B) $5,000 for each violation of section 4. 12 (2) TRANSFER OF FUNDS.—Any penalties col- 13 lected by the Commission under this subsection shall 14 be transferred to the Family Caregiver Antidiscrimi- 15 nation Fund. 16 (e) FAMILY CAREGIVER ANTIDISCRIMINATION 17 FUND.— 18 (1) IN GENERAL.—There is established in the 19 Treasury of the United States a revolving fund, to 20 be known as the ‘‘Family Caregiver Antidiscrimina- 21 tion Fund’’ (referred to in this Act as the ‘‘Fund’’), 22 consisting of the amount of penalties transferred to 23 the Fund under subsection (d)(2). 24 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3878 IS (2) USE OF FUNDS.—Amounts in the Fund 1 shall be available for the purpose of awarding grants 2 under section 7. 3 SEC. 7. GRANTS. 4 (a) IN GENERAL.— 5 (1) GRANT PROGRAM ESTABLISHED.—The 6 Commission, shall award grants, on a competitive 7 basis, to eligible entities to enable those eligible enti- 8 ties to assist in preventing and combating discrimi- 9 nation against applicants and employees who have 10 family caregiver responsibilities. 11 (2) DURATION.—A grant awarded under this 12 section shall be for a period of 3 years. 13 (b) ELIGIBLE ENTITY.—In this section, the term ‘‘el- 14 igible entity’’ means— 15 (1) a nonprofit organization with expertise in 16 family caregiver discrimination; 17 (2) an institution of higher education or re- 18 search center that employs faculty with relevant ex- 19 pertise and has expertise in family caregiver dis- 20 crimination; or 21 (3) a consortium of entities described in para- 22 graphs (1) and (2) that submit a single application 23 to carry out activities under the grant jointly. 24 VerDate Sep 11 2014 17:42 Jun 20, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3878.IS S3878 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3878 IS (c) APPLICATION.—An eligible entity desiring a grant 1 under this section shall submit an application to the Com- 2 mission at such time, in such manner, and containing such 3 information as the Commission may require. 4 (d) USE OF FUNDS.—An eligible entity receiving a 5 grant under this section shall use grant funds to carry 6 out one or more of the following activities: 7 (1) Educate employees about the prohibited ac- 8 tions under section 3, caregiver rights, and the 9 rights provided under this Act. 10 (2) Conduct educational training for employers 11 regarding caregiver discrimination. 12 (3) Provide support to appl [Text truncated for display. 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