Sunlight in Workplace Harassment Act

II 118TH CONGRESS 1ST SESSION S. 1393 To amend the Securities Exchange Act of 1934 to require disclosure of payments for settlements of disputes regarding sexual abuse and certain types of harassment and discrimination, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 1, 2023 Ms. WARREN (for herself, Ms. ROSEN, Mr. MARKEY, Mrs. FEINSTEIN, Mr. MERKLEY, Mr. SANDERS, Mr. DURBIN, and Mr. BLUMENTHAL) intro- duced the following bill; which was read twice and referred to the Com- mittee on Banking, Housing, and Urban Affairs A BILL To amend the Securities Exchange Act of 1934 to require disclosure of payments for settlements of disputes re- garding sexual abuse and certain types of harassment and discrimination, 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 ‘‘Sunlight in Workplace 4 Harassment Act’’. 5 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1393 IS SEC. 2. DISCLOSURE OF PAYMENTS FOR SETTLEMENTS OF 1 DISPUTES REGARDING SEXUAL ABUSE AND 2 CERTAIN TYPES OF HARASSMENT AND DIS- 3 CRIMINATION. 4 Section 13 of the Securities Exchange Act of 1934 5 (15 U.S.C. 78m) is amended by adding at the end the 6 following: 7 ‘‘(t) DISCLOSURE OF CERTAIN ACTIVITIES REGARD- 8 ING SETTLEMENTS OF DISPUTES RELATING TO SEXUAL 9 ABUSE AND CERTAIN TYPES OF HARASSMENT OR DIS- 10 CRIMINATION.— 11 ‘‘(1) DEFINITIONS.—In this subsection— 12 ‘‘(A) the term ‘covered discrimination’ 13 means— 14 ‘‘(i) discrimination described in any of 15 clauses (i) through (vi) of subparagraph 16 (B); or 17 ‘‘(ii)(I) a violation of section 704(a) of 18 the Civil Rights Act of 1964 (42 U.S.C. 19 2000e–3(a)) that is related to discrimina- 20 tion described in subparagraph (B)(i) or 21 (B)(vi)(I); 22 ‘‘(II) a violation of section 4(d) of the 23 Age Discrimination in Employment Act of 24 1967 (29 U.S.C. 623(d)) that is related to 25 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1393 IS discrimination described in subparagraph 1 (B)(ii); 2 ‘‘(III) a violation of subsection (a) or 3 (b) of section 503 of the Americans with 4 Disabilities Act of 1990 (42 U.S.C. 12203) 5 that is related to discrimination described 6 in subparagraph (B)(iii); 7 ‘‘(IV) a violation of section 207(f) of 8 the Genetic Information Nondiscrimination 9 Act of 2008 (42 U.S.C. 2000ff–6(f)) that 10 is related to discrimination described in 11 subparagraph (B)(iv); 12 ‘‘(V) a violation of section 4311(b) of 13 title 38, United States Code, that is re- 14 lated to discrimination described in sub- 15 paragraph (B)(v); and 16 ‘‘(VI) a violation of section 17 40002(b)(13)(A) of the Violence Against 18 Women Act of 1994 (34 U.S.C. 19 12291(b)(13)(A)) that— 20 ‘‘(aa) may cover retaliation de- 21 scribed in a provision specified in any 22 of subclauses (I) through (V); and 23 ‘‘(bb) is related to discrimination 24 described in subparagraph (B)(vi)(II); 25 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1393 IS ‘‘(B) the term ‘covered harassment’ means 1 harassment that is— 2 ‘‘(i) discrimination because of a char- 3 acteristic consisting of race, color, religion, 4 sex, sexual orientation, gender identity, or 5 national origin, whether the characteristic 6 is actual or perceived, under title VII of 7 the Civil Rights Act of 1964 (42 U.S.C. 8 2000e et seq.); 9 ‘‘(ii) discrimination because of actual 10 or perceived age under the Age Discrimi- 11 nation in Employment Act of 1967 (29 12 U.S.C. 621 et seq.); 13 ‘‘(iii) discrimination on the basis of 14 actual or perceived disability under— 15 ‘‘(I) title I of the Americans with 16 Disabilities Act of 1990 (42 U.S.C. 17 12111 et seq.); or 18 ‘‘(II) section 501 of the Rehabili- 19 tation Act of 1973 (29 U.S.C. 791); 20 ‘‘(iv) discrimination because of actual 21 or perceived genetic information under title 22 II of the Genetic Information Non- 23 discrimination Act of 2008 (42 U.S.C. 24 2000ff et seq.); 25 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1393 IS ‘‘(v) discrimination on the basis of ac- 1 tual or perceived status concerning service 2 in a uniformed service under section 3 4311(a) of title 38, United States Code; or 4 ‘‘(vi) discrimination because of a char- 5 acteristic consisting of sexual orientation 6 or gender identity, whether the char- 7 acteristic is actual or perceived, under sec- 8 tion 40002(b)(13)(A) of the Violence 9 Against Women Act of 1994 (34 U.S.C. 10 12291(b)(13)(A)); 11 ‘‘(C) the term ‘covered issuer’ means an 12 issuer that is required to file Form 10–K; 13 ‘‘(D) the term ‘Form 10–K’ means the 14 form described in section 249.310 of title 17, 15 Code of Federal Regulations, as in effect on the 16 date of enactment of this subsection; 17 ‘‘(E) the term ‘gender identity’ means a 18 characteristic consisting of the gender-related 19 identity, appearance, mannerisms, or other gen- 20 der-related characteristics of an individual, 21 whether the characteristic is actual or per- 22 ceived, regardless of the designated sex of the 23 individual at birth; 24 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1393 IS ‘‘(F) the term ‘judgment’ means, with re- 1 spect to an issuer, a judgment entered against 2 the issuer, whether imposed by a court or 3 through arbitration; 4 ‘‘(G) the term ‘settlement’ means any com- 5 mitment or agreement— 6 ‘‘(i) without regard to whether the 7 commitment or agreement, as applicable, is 8 in writing; and 9 ‘‘(ii) under which an issuer directly or 10 indirectly— 11 ‘‘(I) provides to an individual 12 compensation or other consideration 13 because of an allegation that the indi- 14 vidual has been a victim of covered 15 harassment, covered discrimination, or 16 sexual abuse; or 17 ‘‘(II) establishes conditions that 18 affect the terms of the employment, 19 including by terminating the employ- 20 ment, of the individual with the 21 issuer— 22 ‘‘(aa) because of the experi- 23 ence of the individual with, or the 24 participation of the individual in, 25 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1393 IS an alleged act of covered harass- 1 ment, covered discrimination, or 2 sexual abuse; and 3 ‘‘(bb) in exchange for which 4 the individual agrees or commits 5 not to— 6 ‘‘(AA) bring legal, ad- 7 ministrative, or any other 8 type of action against the 9 issuer; or 10 ‘‘(BB) publicly disclose, 11 for a period of time of any 12 length, any portion of the al- 13 leged act described in item 14 (aa) on which the commit- 15 ment or agreement, as appli- 16 cable, is based; 17 ‘‘(H) the term ‘sexual abuse’ means a non- 18 consensual sexual act or sexual contact, as such 19 terms are defined in section 2246 of title 18, 20 United States Code, or similar applicable Tribal 21 or State law, including such an act or contact 22 in a circumstance in which the victim lacks ca- 23 pacity to consent; and 24 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1393 IS ‘‘(I) the term ‘sexual orientation’ means a 1 characteristic consisting of homosexuality, het- 2 erosexuality, or bisexuality, whether the char- 3 acteristic is actual or perceived. 4 ‘‘(2) DISCLOSURE REQUIREMENTS.— 5 ‘‘(A) IN GENERAL.—Beginning in the first 6 fiscal year that begins after the date of enact- 7 ment of this subsection, each covered issuer 8 shall disclose annually on Form 10–K, to share- 9 holders of the covered issuer, and to the pub- 10 lic— 11 ‘‘(i) for the time periods, and in the 12 manner, described in subparagraph (B)— 13 ‘‘(I) the total number of settle- 14 ments entered into by the covered 15 issuer, a subsidiary, contractor, or 16 subcontractor of the covered issuer, or 17 a corporate executive of the covered 18 issuer that relate to any alleged act of 19 sexual abuse, covered harassment, or 20 covered discrimination that— 21 ‘‘(aa) occurred in the work- 22 place of the covered issuer or a 23 subsidiary, contractor, or subcon- 24 tractor of the covered issuer; or 25 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1393 IS ‘‘(bb) involves the behavior 1 of an employee of the covered 2 issuer, or of a subsidiary, con- 3 tractor, or subcontractor of the 4 covered issuer, toward another 5 such employee, without regard to 6 whether that behavior occurred in 7 the workplace of the covered 8 issuer or the subsidiary, con- 9 tractor, or subcontractor, as ap- 10 plicable; 11 ‘‘(II) the total dollar amount 12 paid with respect to the settlements 13 described in subclause (I); 14 ‘‘(III) the total number of settle- 15 ments entered into by the covered 16 issuer, a subsidiary, contractor, or 17 subcontractor of the covered issuer, or 18 a corporate executive of the covered 19 issuer that relate to any alleged act of 20 sexual abuse, covered harassment, or 21 covered discrimination that— 22 ‘‘(aa) was committed by a 23 corporate executive of— 24 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1393 IS ‘‘(AA) the covered 1 issuer; or 2 ‘‘(BB) a subsidiary, 3 contractor, or subcontractor 4 of the covered issuer; and 5 ‘‘(bb)(AA) occurred in the 6 workplace of the covered issuer 7 or a subsidiary, contractor, or 8 subcontractor of the covered 9 issuer, as applicable; or 10 ‘‘(BB) involved the behavior 11 of a corporate executive described 12 in item (aa) toward another em- 13 ployee of the covered issuer or a 14 subsidiary, contractor, or subcon- 15 tractor of the covered issuer, as 16 applicable, without regard to 17 whether that behavior occurred in 18 the workplace of the covered 19 issuer or a subsidiary, contractor, 20 or subcontractor of the covered 21 issuer; 22 ‘‘(IV) the total dollar amount 23 with respect to the settlements de- 24 scribed in subclause (III); 25 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1393 IS ‘‘(V) the average length of time 1 required for the covered issuer to re- 2 solve a complaint relating to an al- 3 leged act of covered discrimination, 4 covered harassment, or sexual abuse; 5 ‘‘(VI) the total number of judg- 6 ments entered against the covered 7 issuer, a subsidiary, contractor, or 8 subcontractor of the covered issuer, or 9 a corporate executive of the covered 10 issuer that relate to any alleged act of 11 sexual abuse, covered harassment, or 12 covered discrimination that— 13 ‘‘(aa) occurred in the work- 14 place of the covered issuer or a 15 subsidiary, contractor, or subcon- 16 tractor of the covered issuer; or 17 ‘‘(bb) involves the behavior 18 of an employee of the covered 19 issuer, or a subsidiary, con- 20 tractor, or subcontractor of the 21 covered issuer, toward another 22 such employee, without regard to 23 whether that behavior occurred in 24 the workplace of the covered 25 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1393 IS issuer or the subsidiary, con- 1 tractor, or subcontractor, as ap- 2 plicable; 3 ‘‘(VII) the total dollar amount 4 paid with respect to the judgments de- 5 scribed in subclause (VI); 6 ‘‘(VIII) the total number of judg- 7 ments entered against the covered 8 issuer, a subsidiary, contractor, or 9 subcontractor of the covered issuer, or 10 a corporate executive of the covered 11 issuer that relate to any alleged act of 12 sexual abuse, covered harassment, or 13 covered discrimination that— 14 ‘‘(aa) was committed by a 15 corporate executive of— 16 ‘‘(AA) the covered 17 issuer; or 18 ‘‘(BB) a subsidiary, 19 contractor, or subcontractor 20 of the covered issuer; and 21 ‘‘(bb)(AA) occurred in the 22 workplace of the covered issuer 23 or a subsidiary, contractor, or 24 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1393 IS subcontractor of the covered 1 issuer, as applicable; or 2 ‘‘(BB) involved the behavior 3 of a corporate executive described 4 in item (aa) toward another em- 5 ployee of the covered issuer or a 6 subsidiary, contractor, or subcon- 7 tractor of the covered issuer, as 8 applicable, without regard to 9 whether that behavior occurred in 10 the workplace of the covered 11 issuer or a subsidiary, contractor, 12 or subcontractor of the covered 13 issuer; and 14 ‘‘(IX) the total dollar amount 15 with respect to the judgments de- 16 scribed in subclause (VIII); 17 ‘‘(ii) as of the date on which the dis- 18 closure is made, the total number of com- 19 plaints relating to covered discrimination, 20 covered harassment, and sexual abuse that 21 the covered issuer is working to resolve 22 through— 23 ‘‘(I) processes that are internal 24 to the covered issuer; 25 VerDate Sep 11 2014 22:26 May 09, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1393.IS S1393 pbinns on DSKJLVW7X2PROD with $$_JOB 14 •S 1393 IS ‘‘(II) arbitration; and 1 ‘‘(III) litigation; and 2 ‘‘(iii) with respect to each alleged act 3 of covered discrimination, covered harass- 4 ment, or sexual abuse that is the subject of 5 a complaint or settlement described in 6 clauses (i) and (ii), the date on which that 7 alleged act occurred, with as much speci- 8 ficity as is practicable under the cir- 9 cumstances. 10 ‘‘(B) CATEGORIES.— 11 ‘‘(i) IN GENERAL.—Subject to sub- 12 paragraph (C), in each disclosure required 13 under subparagraph (A), a covered issuer 14 shall report the following: 15 ‘‘(I) For the fiscal year that is 16 the subject of that disclosure, the fol- 17 lowing: 18 ‘‘(aa) The total number of 19 settlements in subclauses (I) and 20 (III) of subparagraph (A)(i), in 21 the aggregate. 22 ‘‘(bb) The total dollar 23 amounts in subclauses (II) and 24 VerDate Sep 1 [Text truncated for display. 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