SHAPE Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 8465 To require the Secretary of State to develop policy and procedures on preven- tion and response to harassment, discrimination, sexual assault, and related retaliation, and for other purposes. IN THE HOUSE OF REPRESENTATIVES SEPTEMBER 30, 2020 Ms. SPEIER (for herself, Mr. ENGEL, Mr. CASTRO of Texas, Ms. NORTON, Ms. ESCOBAR, Ms. HAALAND, Mr. GONZALEZ of Texas, Mrs. DINGELL, Mr. CARSON of Indiana, Mr. PRICE of North Carolina, Mr. SAN NICOLAS, Mr. KIND, Mrs. WATSON COLEMAN, Mr. LARSON of Connecticut, Ms. PINGREE, Ms. SCHAKOWSKY, and Ms. OMAR) introduced the following bill; which was referred to the Committee on Foreign Affairs, and in ad- dition to the Committees on Education and Labor, Oversight and Re- form, House Administration, and the Judiciary, for a period to be subse- quently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To require the Secretary of State to develop policy and procedures on prevention and response to harassment, discrimination, sexual assault, and related retaliation, 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 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 8465 IH SECTION 1. SHORT TITLE; TABLE OF CONTENTS; RULE OF 1 CONSTRUCTION. 2 (a) SHORT TITLE.—This Act may be cited as the 3 ‘‘State Harassment and Assault Prevention and Eradi- 4 cation Act of 2020’’ or the ‘‘SHAPE Act of 2020’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents; rule of construction. Sec. 2. Department of State policy and procedures on prevention and response to harassment, discrimination, sexual assault, and related retal- iation. Sec. 3. Reporting, documentation, and investigation procedures. Sec. 4. Sexual assault protocol and victim care. Sec. 5. Rights of employees harassed, discriminated against, retaliated against, or sexually assaulted. Sec. 6. Provision of climate surveys. Sec. 7. Reports to Congress, the Department, and the public. Sec. 8. Required training for Department personnel. Sec. 9. Hiring, vetting, and promotion. Sec. 10. Nondisclosure and nondisparagement agreements. (c) RULE OF CONSTRUCTION.—Nothing in this Act 8 shall be construed to supersede or otherwise affect the dis- 9 crimination protections or related processes provided 10 under section 717 of the Civil Rights Act of 1964 (42 11 U.S.C. 2000e–16) to officers and employees of the Depart- 12 ment of State or applicants for employment at the Depart- 13 ment. 14 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 8465 IH SEC. 2. DEPARTMENT OF STATE POLICY AND PROCEDURES 1 ON PREVENTION AND RESPONSE TO HARASS- 2 MENT, DISCRIMINATION, SEXUAL ASSAULT, 3 AND RELATED RETALIATION. 4 (a) COMPREHENSIVE POLICY ON PREVENTION AND 5 RESPONSE.—Not later than one year after the date of the 6 enactment of this Act, the Secretary of State shall develop 7 a comprehensive policy for the Department of State on 8 the prevention of and response to harassment, discrimina- 9 tion, sexual assault, and related retaliation involving em- 10 ployees, contractors, and officials of the Department. 11 (b) ELEMENTS OF COMPREHENSIVE POLICY.—The 12 policy developed under subsection (a) may include ele- 13 ments as the Secretary deems necessary, but shall include, 14 at a minimum, the following: 15 (1) Prevention measures. 16 (2) Education and training on prevention and 17 response, as provided in this Act. 18 (3) Investigation of complaints. 19 (4) Medical treatment of victims. 20 (5) Mechanisms for confidential reporting of in- 21 cidents by staff and service contractors, to include 22 online and telephonic methods. 23 (6) Victim advocacy, intervention, and coun- 24 seling for covered employees of the Department who 25 are victims of harassment, discrimination, sexual as- 26 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 8465 IH sault, and related retaliation that shall be made 1 available, irrespective of where such covered employ- 2 ees are located, to assist and guide such victims. 3 (7) Supportive services, including counseling 4 and victim advocacy, that shall be made available ir- 5 respective of whether the victim identifies the ac- 6 cused individual. 7 (8) Oversight and review of administrative and 8 disciplinary actions, to include termination, for em- 9 ployees and officials of the Department of State. 10 (9) Review by appropriate authority of adminis- 11 trative separation actions involving victims of har- 12 assment, discrimination, sexual assault, and related 13 retaliation. 14 (10) Uniform collection of data on the incidence 15 of violations and on disciplinary actions taken in 16 cases of harassment, discrimination, sexual assault, 17 and related retaliation. 18 (11) Procedures for disciplinary action in cases 19 of harassment, discrimination, sexual assault, and 20 related retaliation by employees or officials of the 21 Department. 22 (12) Workforce communications relating to har- 23 assment, discrimination, sexual assault, and related 24 retaliation prevention, discipline, and reporting, to 25 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 8465 IH include printed and electronic materials made avail- 1 able in both English and the working languages at 2 overseas posts, made available for all staff. 3 (13) Acknowledgment of the challenges facing 4 vulnerable groups including women, people of color, 5 entry-level officers, locally employed staff, and the 6 lesbian, gay, bisexual, transgender, and queer 7 (LGBTQ) community. 8 (14) Policies regarding the retention of docu- 9 ments relating to complaints, investigations, and dis- 10 ciplinary action. 11 (c) CLARIFICATION OF VICTIM REPORTING AND 12 CASE RESOLUTION.—The Secretary of State shall review 13 Department of State processes for victim reporting and 14 resolution of complaints, as in effect on the date of enact- 15 ment of this Act, to ensure that the Department’s proce- 16 dures are clear and easily accessible to all covered employ- 17 ees. Such review shall be included in the report to be sub- 18 mitted in section 7. 19 (d) APPLICATION OF COMPREHENSIVE POLICY TO 20 OFFICES IN THE DEPARTMENT OF STATE.—The Sec- 21 retary of State shall ensure that the policy developed 22 under subsection (a) is implemented uniformly by the bu- 23 reaus and offices of the Department of State. 24 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 8465 IH (e) COORDINATION WITH OTHER AGENCIES.—The 1 Department of State is directed to coordinate with other 2 United States government agencies which provide per- 3 sonnel to serve in overseas posts under Chief of Mission 4 authority to develop interagency policies for addressing, 5 reporting, and discipline for incidents of harassment, dis- 6 crimination, sexual assault, or related retaliation occurring 7 between covered employees and non-covered employees. 8 SEC. 3. REPORTING, DOCUMENTATION, AND INVESTIGA- 9 TION PROCEDURES. 10 (a) DEFINITIONS.—In this Act— 11 (1) the term ‘‘covered employee’’ means— 12 (A) any officer or employee (including any 13 temporary, part-time, contract, intermittent em- 14 ployee, interns, fellows, or other unpaid staff; 15 both American citizens and foreign nationals) 16 performing work for or on behalf of the Depart- 17 ment of State; 18 (B) members of the Foreign Service (as 19 that term is defined under section 103 of the 20 Foreign Service Act of 1980 (22 U.S.C. 3903)), 21 to include Foreign Service Officers, Foreign 22 Service Specialists, Locally Employed Staff, and 23 Consular Agents; and 24 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 8465 IH (C) an individual who is engaged by an 1 employer or entity as a contractor; 2 (2) the term ‘‘Office of Employee Advocacy’’ 3 means the Office of Employee Advocacy, as estab- 4 lished under subsection (b); 5 (3) the term ‘‘Office of Civil Rights’’ means the 6 Office of Civil Rights within the Department of 7 State; 8 (4) the term ‘‘Global Talent Management’’ 9 means the Bureau of Global Talent Management, 10 Office of Employee Relations, Conduct, Suitability, 11 and Discipline Division within the Department of 12 State; and 13 (5) the term ‘‘Diplomatic Security’’ means the 14 Bureau of Diplomatic Security within the Depart- 15 ment of State. 16 (6) the term ‘‘harassment’’ means— 17 (A) conduct based on race, color, religion, 18 sex (including sexual orientation, gender iden- 19 tity, pregnancy, childbirth, a medical condition 20 related to pregnancy or childbirth, and a sex 21 stereotype), or national origin, regardless of 22 whether it is direct or indirect, or verbal or 23 nonverbal, that unreasonably alters an individ- 24 ual’s terms, conditions, or privileges of employ- 25 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 8465 IH ment, including by creating an intimidating, 1 hostile, or offensive work environment; 2 (B) sexual harassment is conduct that 3 takes place in a circumstance described in sub- 4 paragraph (C) and that takes the form of— 5 (i) a sexual advance; 6 (ii) a request for sexual favors; or 7 (iii) any other conduct of a sexual na- 8 ture; 9 (C) a circumstance described in this sub- 10 paragraph is a situation in which— 11 (i) submission to the conduct involved 12 is made either explicitly or implicitly a 13 term or condition of employment; 14 (ii) submission to or rejection of such 15 conduct is used as the basis for an employ- 16 ment decision affecting an individual’s em- 17 ployment; or 18 (iii) such conduct unreasonably alters 19 an individual’s terms, conditions, or privi- 20 leges of employment, including by creating 21 an intimidating, hostile, or offensive work 22 environment; and 23 (D) in determining whether conduct con- 24 stitutes harassment because the conduct unrea- 25 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 8465 IH sonably alters an individual’s terms, conditions, 1 or privileges of employment, including by cre- 2 ating an intimidating, hostile, or offensive work 3 environment, the following rules shall apply— 4 (i) that determination shall be made 5 on the basis of the record as a whole, ac- 6 cording to the totality of the cir- 7 cumstances. A single incident may con- 8 stitute workplace harassment; 9 (ii) incidents that may be workplace 10 harassment shall be considered in the ag- 11 gregate, with— 12 (I) conduct of varying types 13 (such as expressions of sex-based hos- 14 tility, requests for sexual favors, and 15 denial of employment opportunities 16 due to sexual orientation) viewed in 17 totality, rather than in isolation; and 18 (II) conduct based on multiple 19 protected characteristics (such as sex 20 and race) viewed in totality, rather 21 than in isolation; 22 (iii) the factors specified in this sub- 23 paragraph are among the factors to be 24 considered in determining whether conduct 25 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 8465 IH constitutes harassment and are not meant 1 to be exhaustive. No one of those factors 2 shall be considered to be determinative in 3 establishing whether conduct constitutes 4 harassment. Such factors are each of the 5 following— 6 (I) the frequency of the conduct; 7 (II) the duration of the conduct; 8 (III) the location where the con- 9 duct occurred; 10 (IV) the number of individuals 11 engaged in the conduct; 12 (V) the nature of the conduct, 13 which may include physical, verbal, 14 pictorial, or visual conduct, and con- 15 duct that occurs in person or is trans- 16 mitted, such as electronically; 17 (VI) whether the conduct is 18 threatening; 19 (VII) any power differential be- 20 tween the alleged harasser and the 21 person allegedly harassed; 22 (VIII) any use of epithets, slurs, 23 or other conduct that is humiliating 24 or degrading; or 25 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 8465 IH (IX) whether the conduct reflects 1 stereotypes about individuals in the 2 protected class involved; and 3 (iv) in determining whether conduct 4 constitutes harassment, conduct may be 5 harassment regardless of whether, for ex- 6 ample— 7 (I) the complaining party is not 8 the individual being harassed; 9 (II) the complaining party acqui- 10 esced or otherwise submitted to, or 11 participated in, the conduct; 12 (III) the conduct is also experi- 13 enced by others outside the protected 14 class involved; 15 (IV) the complaining party was 16 able to continue carrying out duties 17 and responsibilities of the party’s job 18 despite the conduct; 19 (V) the conduct did not cause a 20 tangible injury or psychological injury; 21 or 22 (VI) the conduct occurred outside 23 of the workplace. 24 VerDate Sep 11 2014 02:10 Oct 28, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8465.IH H8465 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 8465 IH (b) ESTABLISHMENT OF OFFICE OF EMPLOYEE AD- 1 VOCACY.— 2 (1) IN GENERAL.—Not later than one year 3 after the date of the enactment of this Act, the Sec- 4 retary shall establish a new office to be the Office 5 of Employee Advocacy, to be headed by a full-time 6 Chief Advocate. Personnel of the Office shall be ap- 7 pointed without regard to political affiliation and 8 solely on the basis of fitness to perform the duties 9 of the position. The Chief Advocate— 10 (A) shall report directly to the Under Sec- 11 retary for Management; and 12 (B) may not have any other duties in the 13 Department of State that are not reasonably 14 connected to employee advocacy. 15 (2) DUTIES OF OFFICE OF EMPLOYEE ADVO- 16 CACY.— 17 (A) Receive complaints from any Depart- 18 ment of State covered employee or eligibl [Text truncated for display. Full text available on Congress.gov.]