[House Report 116-56]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-56
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
EQUALITY ACT
_______
May 10, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 5]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5) to prohibit discrimination on the basis of sex,
gender identity, and sexual orientation, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Purpose and Summary.............................................. 8
Background and Need for the Legislation.......................... 9
Hearings......................................................... 23
Committee Consideration.......................................... 24
Committee Votes.................................................. 24
Committee Oversight Findings..................................... 34
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 34
Duplication of Federal Programs.................................. 34
Performance Goals and Objectives................................. 34
Advisory on Earmarks............................................. 34
Section-by-Section Analysis...................................... 34
Changes in Existing Law Made by the Bill, as Reported............ 43
Committee Correspondence......................................... 91
Dissenting Views................................................. 100
The amendment is as follows:
Strike all that follows after the enacting clause and insert
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Equality Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Discrimination can occur on the basis of the sex, sexual
orientation, gender identity, or pregnancy, childbirth, or a
related medical condition of an individual, as well as because
of sex-based stereotypes. Each of these factors alone can serve
as the basis for discrimination, and each is a form of sex
discrimination.
(2) A single instance of discrimination may have more than
one basis. For example, discrimination against a married same-
sex couple could be based on the sex stereotype that marriage
should only be between heterosexual couples, the sexual
orientation of the two individuals in the couple, or both.
Discrimination against a pregnant lesbian could be based on her
sex, her sexual orientation, her pregnancy, or on the basis of
multiple factors.
(3) Lesbian, gay, bisexual, transgender, and queer (referred
to as ``LGBTQ'') people commonly experience discrimination in
securing access to public accommodations--including
restaurants, senior centers, stores, places of or
establishments that provide entertainment, health care
facilities, shelters, government offices, youth service
providers including adoption and foster care providers, and
transportation. Forms of discrimination include the exclusion
and denial of entry, unequal or unfair treatment, harassment,
and violence. This discrimination prevents the full
participation of LGBTQ people in society and disrupts the free
flow of commerce.
(4) Women also have faced discrimination in many
establishments such as stores and restaurants, and places or
establishments that provide other goods or services, such as
entertainment or transportation, including sexual harassment,
differential pricing for substantially similar products and
services, and denial of services because they are pregnant or
breastfeeding.
(5) Many employers already and continue to take proactive
steps, beyond those required by some States and localities, to
ensure they are fostering positive and respectful cultures for
all employees. Many places of public accommodation also
recognize the economic imperative to offer goods and services
to as many consumers as possible.
(6) Regular and ongoing discrimination against LGBTQ people,
as well as women, in accessing public accommodations
contributes to negative social and economic outcomes, and in
the case of public accommodations operated by State and local
governments, abridges individuals' constitutional rights.
(7) The discredited practice known as ``conversion therapy''
is a form of discrimination that harms LGBTQ people by
undermining individuals sense of self worth, increasing suicide
ideation and substance abuse, exacerbating family conflict, and
contributing to second class status.
(8) Both LGBTQ people and women face widespread
discrimination in employment and various services, including by
entities that receive Federal financial assistance. Such
discrimination--
(A) is particularly troubling and inappropriate for
programs and services funded wholly or in part by the
Federal Government;
(B) undermines national progress toward equal
treatment regardless of sex, sexual orientation, or
gender identity; and
(C) is inconsistent with the constitutional principle
of equal protection under the Fourteenth Amendment to
the Constitution of the United States.
(9) Federal courts have widely recognized that, in enacting
the Civil Rights Act of 1964, Congress validly invoked its
powers under the Fourteenth Amendment to provide a full range
of remedies in response to persistent, widespread, and
pervasive discrimination by both private and government actors.
(10) Discrimination by State and local governments on the
basis of sexual orientation or gender identity in employment,
housing, and public accommodations, and in programs and
activities receiving Federal financial assistance, violates the
Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States. In many circumstances, such
discrimination also violates other constitutional rights such
as those of liberty and privacy under the due process clause of
the Fourteenth Amendment.
(11) Individuals who are LGBTQ, or are perceived to be LGBTQ,
have been subjected to a history and pattern of persistent,
widespread, and pervasive discrimination on the bases of sexual
orientation and gender identity by both private sector and
Federal, State, and local government actors, including in
employment, housing, and public accommodations, and in programs
and activities receiving Federal financial assistance. An
explicit and comprehensive national solution is needed to
address such discrimination, which has sometimes resulted in
violence or death, including the full range of remedies
available under the Civil Rights Act of 1964.
(12) Numerous provisions of Federal law expressly prohibit
discrimination on the basis of sex, and Federal agencies and
courts have correctly interpreted these prohibitions on sex
discrimination to include discrimination based on sexual
orientation, gender identity, and sex stereotypes. In
particular, the Equal Employment Opportunity Commission
correctly interpreted title VII of the Civil Rights Act of 1964
in Macy v. Holder, Baldwin v. Foxx, and Lusardi v. McHugh.
(13) The absence of explicit prohibitions of discrimination
on the basis of sexual orientation and gender identity under
Federal statutory law has created uncertainty for employers and
other entities covered by Federal nondiscrimination laws and
caused unnecessary hardships for LGBTQ individuals.
(14) LGBTQ people often face discrimination when seeking to
rent or purchase housing, as well as in every other aspect of
obtaining and maintaining housing. LGBTQ people in same-sex
relationships are often discriminated against when two names
associated with one gender appear on a housing application, and
transgender people often encounter discrimination when credit
checks or inquiries reveal a former name.
(15) National surveys, including a study commissioned by the
Department of Housing and Urban Development, show that housing
discrimination against LGBTQ people is very prevalent. For
instance, when same-sex couples inquire about housing that is
available for rent, they are less likely to receive positive
responses from landlords. A national matched-pair testing
investigation found that nearly one-half of same-sex couples
face adverse, differential treatment when seeking elder
housing. According to other studies, transgender people have
half the homeownership rate of non-transgender people and about
1 in 5 transgender people experience homelessness.
(16) As a result of the absence of explicit prohibitions
against discrimination on the basis of sexual orientation and
gender identity, credit applicants who are LGBTQ, or perceived
to be LGBTQ, have unequal opportunities to establish credit.
LGBTQ people can experience being denied a mortgage, credit
card, student loan, or many other types of credit simply
because of their sexual orientation or gender identity.
(17) Numerous studies demonstrate that LGBTQ people,
especially transgender people and women, are economically
disadvantaged and at a higher risk for poverty compared with
other groups of people. For example, older women in same-sex
couples have twice the poverty rate of older different-sex
couples.
(18) The right to an impartial jury of one's peers and the
reciprocal right to jury service are fundamental to the free
and democratic system of justice in the United States and are
based in the Bill of Rights. There is, however, an unfortunate
and long-documented history in the United States of attorneys
discriminating against LGBTQ individuals, or those perceived to
be LGBTQ, in jury selection. Failure to bar peremptory
challenges based on the actual or perceived sexual orientation
or gender identity of an individual not only erodes a
fundamental right, duty, and obligation of being a citizen of
the United States, but also unfairly creates a second class of
citizenship for LGBTQ victims, witnesses, plaintiffs, and
defendants.
(19) Numerous studies document the shortage of qualified and
available homes for the 437,000 youth in the child welfare
system and the negative outcomes for the many youth who live in
group care as opposed to a loving home or who age out without a
permanent family. Although same-sex couples are 7 times more
likely to foster or adopt than their different-sex
counterparts, many child placing agencies refuse to serve same-
sex couples and LGBTQ individuals. This has resulted in a
reduction of the pool of qualified and available homes for
youth in the child welfare system who need placement on a
temporary or permanent basis. Barring discrimination in foster
care and adoption will increase the number of homes available
to foster children waiting for foster and adoptive families.
(20) LGBTQ youth are overrepresented in the foster care
system by at least a factor of two and report twice the rate of
poor treatment while in care compared to their non-LGBTQ
counterparts. LGBTQ youth in foster care have a higher average
number of placements, higher likelihood of living in a group
home, and higher rates of hospitalization for emotional reasons
and juvenile justice involvement than their non-LGBTQ peers
because of the high level of bias and discrimination that they
face and the difficulty of finding affirming foster placements.
Further, due to their physical distance from friends and
family, traumatic experiences, and potentially unstable living
situations, all youth involved with child welfare are at risk
for being targeted by traffickers seeking to exploit children.
Barring discrimination in child welfare services will ensure
improved treatment and outcomes for LGBTQ foster children.
(b) Purpose.--It is the purpose of this Act to expand as well as
clarify, confirm and create greater consistency in the protections and
remedies against discrimination on the basis of all covered
characteristics and to provide guidance and notice to individuals,
organizations, corporations, and agencies regarding their obligations
under the law.
SEC. 3. PUBLIC ACCOMMODATIONS.
(a) Prohibition on Discrimination or Segregation in Public
Accommodations.--Section 201 of the Civil Rights Act of 1964 (42 U.S.C.
2000a) is amended--
(1) in subsection (a), by inserting ``sex (including sexual
orientation and gender identity),'' before ``or national
origin''; and
(2) in subsection (b)--
(A) in paragraph (3), by striking ``stadium'' and all
that follows and inserting ``stadium or other place of
or establishment that provides exhibition,
entertainment, recreation, exercise, amusement, public
gathering, or public display;'';
(B) by redesignating paragraph (4) as paragraph (6);
and
(C) by inserting after paragraph (3) the following:
``(4) any establishment that provides a good, service, or
program, including a store, shopping center, online retailer or
service provider, salon, bank, gas station, food bank, service
or care center, shelter, travel agency, or funeral parlor, or
establishment that provides health care, accounting, or legal
services;
``(5) any train service, bus service, car service, taxi
service, airline service, station, depot, or other place of or
establishment that provides transportation service; and''.
(b) Prohibition on Discrimination or Segregation Under Law.--Section
202 of such Act (42 U.S.C. 2000a-1) is amended by inserting ``sex
(including sexual orientation and gender identity),'' before ``or
national origin''.
(c) Rule of Construction.--Title II of such Act (42 U.S.C. 2000a et
seq.) is amended by adding at the end the following:
``SEC. 208. RULE OF CONSTRUCTION.
``A reference in this title to an establishment--
``(1) shall be construed to include an individual whose
operations affect commerce and who is a provider of a good,
service, or program; and
``(2) shall not be construed to be limited to a physical
facility or place.''.
SEC. 4. DESEGREGATION OF PUBLIC FACILITIES.
Section 301(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000b(a))
is amended by inserting ``sex (including sexual orientation and gender
identity),'' before ``or national origin''.
SEC. 5. DESEGREGATION OF PUBLIC EDUCATION.
(a) Definitions.--Section 401(b) of the Civil Rights Act of 1964 (42
U.S.C. 2000c(b)) is amended by inserting ``(including sexual
orientation and gender identity),'' before ``or national origin''.
(b) Civil Actions by the Attorney General.--Section 407 of such Act
(42 U.S.C. 2000c-6) is amended, in subsection (a)(2), by inserting
``(including sexual orientation and gender identity),'' before ``or
national origin''.
(c) Classification and Assignment.--Section 410 of such Act (42
U.S.C. 2000c-9) is amended by inserting ``(including sexual orientation
and gender identity),'' before ``or national origin''.
SEC. 6. FEDERAL FUNDING.
Section 601 of the Civil Rights Act of 1964 (42 U.S.C. 2000d) is
amended by inserting ``sex (including sexual orientation and gender
identity),'' before ``or national origin,''.
SEC. 7. EMPLOYMENT.
(a) Rules of Construction.--Title VII of the Civil Rights Act of 1964
is amended by inserting after section 701 (42 U.S.C. 2000e) the
following:
``SEC. 701A. RULES OF CONSTRUCTION.
``Section 1106 shall apply to this title except that for purposes of
that application, a reference in that section to an `unlawful practice'
shall be considered to be a reference to an `unlawful employment
practice'.''.
(b) Unlawful Employment Practices.--Section 703 of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-2) is amended--
(1) in the section header, by striking ``sex,'' and inserting
``sex (including sexual orientation and gender identity),'';
(2) except in subsection (e), by striking ``sex,'' each place
it appears and inserting ``sex (including sexual orientation
and gender identity),''; and
(3) in subsection (e)(1), by striking ``enterprise,'' and
inserting ``enterprise, if, in a situation in which sex is a
bona fide occupational qualification, individuals are
recognized as qualified in accordance with their gender
identity,''.
(c) Other Unlawful Employment Practices.--Section 704(b) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-3(b)) is amended--
(1) by striking ``sex,'' the first place it appears and
inserting ``sex (including sexual orientation and gender
identity),''; and
(2) by striking ``employment.'' and inserting ``employment,
if, in a situation in which sex is a bona fide occupational
qualification, individuals are recognized as qualified in
accordance with their gender identity.''.
(d) Claims.--Section 706(g)(2)(A) of the Civil Rights Act of 1964
(2000e-5(g)(2)(A)) is amended by striking ``sex,'' and inserting ``sex
(including sexual orientation and gender identity),''.
(e) Employment by Federal Government.--Section 717 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-16) is amended--
(1) in subsection (a), by striking ``sex,'' and inserting
``sex (including sexual orientation and gender identity),'';
and
(2) in subsection (c), by striking ``sex'' and inserting
``sex (including sexual orientation and gender identity),''.
(f) Government Employee Rights Act of 1991.--The Government Employee
Rights Act of 1991 (42 U.S.C. 2000e-16a et seq.) is amended--
(1) in section 301(b), by striking ``sex,'' and inserting
``sex (including sexual orientation and gender identity),'';
(2) in section 302(a)(1), by striking ``sex,'' and inserting
``sex (including sexual orientation and gender identity),'';
and
(3) by adding at the end the following:
``SEC. 305. RULES OF CONSTRUCTION AND CLAIMS.
``Sections 1101(b), 1106, and 1107 of the Civil Rights Act of 1964
shall apply to this title except that for purposes of that application,
a reference in that section 1106 to `race, color, religion, sex
(including sexual orientation and gender identity), or national origin'
shall be considered to be a reference to `race, color, religion, sex,
sexual orientation, gender identity, national origin, age, or
disability'.''.
(g) Congressional Accountability Act of 1995.--The Congressional
Accountability Act of 1995 (2 U.S.C. 1301 et seq.) is amended--
(1) in section 201(a)(1) (2 U.S.C. 1311(a)(1)) by inserting
``(including sexual orientation and gender identity),'' before
``or national origin,''; and
(2) by adding at the end of title II (42 U.S.C. 1311 et seq.)
the following:
``SEC. 208. RULES OF CONSTRUCTION AND CLAIMS.
``Sections 1101(b), 1106, and 1107 of the Civil Rights Act of 1964
shall apply to section 201 (and remedial provisions of this Act related
to section 201) except that for purposes of that application, a
reference in that section 1106 to `race, color, religion, sex
(including sexual orientation and gender identity), or national origin'
shall be considered to be a reference to `race, color, religion, sex
(including sexual orientation and gender identity), national origin,
age, or disability'.''.
(h) Civil Service Reform Act of 1978.--Chapter 23 of title 5, United
States Code, is amended--
(1) in section 2301(b)(2), by striking ``sex,'' and inserting
``sex (including sexual orientation and gender identity),'';
(2) in section 2302--
(A) in subsection (b)(1)(A), by inserting
``(including sexual orientation and gender identity),''
before ``or national origin,''; and
(B) in subsection (d)(1), by inserting ``(including
sexual orientation and gender identity),'' before ``or
national origin;''; and
(3) by adding at the end the following:
``SEC. 2307. RULES OF CONSTRUCTION AND CLAIMS.
``Sections 1101(b), 1106, and 1107 of the Civil Rights Act of 1964
shall apply to this chapter (and remedial provisions of this title
related to this chapter) except that for purposes of that application,
a reference in that section 1106 to `race, color, religion, sex
(including sexual orientation and gender identity), or national origin'
shall be considered to be a reference to `race, color, religion, sex
(including sexual orientation and gender identity), national origin,
age, a handicapping condition, marital status, or political
affiliation'.''.
SEC. 8. INTERVENTION.
Section 902 of the Civil Rights Act of 1964 (42 U.S.C. 2000h-2) is
amended by inserting ``(including sexual orientation and gender
identity),'' before ``or national origin,''.
SEC. 9. MISCELLANEOUS.
Title XI of the Civil Rights Act of 1964 is amended--
(1) by redesignating sections 1101 through 1104 (42 U.S.C.
2000h et seq.) and sections 1105 and 1106 (42 U.S.C. 2000h-5,
2000h-6) as sections 1102 through 1105 and sections 1108 and
1109, respectively;
(2) by inserting after the title heading the following:
``SEC. 1101. DEFINITIONS AND RULES.
``(a) Definitions.--In titles II, III, IV, VI, VII, and IX (referred
to individually in sections 1106 and 1107 as a `covered title'):
``(1) Race; color; religion; sex; sexual orientation; gender
identity; national origin.--The term `race', `color',
`religion', `sex' (including `sexual orientation' and `gender
identity'), or `national origin', used with respect to an
individual, includes--
``(A) the race, color, religion, sex (including
sexual orientation and gender identity), or national
origin, respectively, of another person with whom the
individual is associated or has been associated; and
``(B) a perception or belief, even if inaccurate,
concerning the race, color, religion, sex (including
sexual orientation and gender identity), or national
origin, respectively, of the individual.
``(2) Gender identity.--The term `gender identity' means the
gender-related identity, appearance, mannerisms, or other
gender-related characteristics of an individual, regardless of
the individual's designated sex at birth.
``(3) Including.--The term `including' means including, but
not limited to, consistent with the term's standard meaning in
Federal law.
``(4) Sex.--The term `sex' includes--
``(A) a sex stereotype;
``(B) pregnancy, childbirth, or a related medical
condition;
``(C) sexual orientation or gender identity; and
``(D) sex characteristics, including intersex traits.
``(5) Sexual orientation.--The term `sexual orientation'
means homosexuality, heterosexuality, or bisexuality.
``(b) Rules.--In a covered title referred to in subsection (a)--
``(1) (with respect to sex) pregnancy, childbirth, or a
related medical condition shall not receive less favorable
treatment than other physical conditions; and
``(2) (with respect to gender identity) an individual shall
not be denied access to a shared facility, including a
restroom, a locker room, and a dressing room, that is in
accordance with the individual's gender identity.''; and
(3) by inserting after section 1105 the following:
``SEC. 1106. RULES OF CONSTRUCTION.
``(a) Sex.--Nothing in section 1101 or the provisions of a covered
title incorporating a term defined or a rule specified in that section
shall be construed--
``(1) to limit the protection against an unlawful practice on
the basis of pregnancy, childbirth, or a related medical
condition provided by section 701(k); or
``(2) to limit the protection against an unlawful practice on
the basis of sex available under any provision of Federal law
other than that covered title, prohibiting a practice on the
basis of sex.
``(b) Claims and Remedies Not Precluded.--Nothing in section 1101 or
a covered title shall be construed to limit the claims or remedies
available to any individual for an unlawful practice on the basis of
race, color, religion, sex (including sexual orientation and gender
identity), or national origin including claims brought pursuant to
section 1979 or 1980 of the Revised Statutes (42 U.S.C. 1983, 1985) or
any other law, including a Federal law amended by the Equality Act,
regulation, or policy.
``(c) No Negative Inference.--Nothing in section 1101 or a covered
title shall be construed to support any inference that any Federal law
prohibiting a practice on the basis of sex does not prohibit
discrimination on the basis of pregnancy, childbirth, or a related
medical condition, sexual orientation, gender identity, or a sex
stereotype.
``SEC. 1107. CLAIMS.
``The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et
seq.) shall not provide a claim concerning, or a defense to a claim
under, a covered title, or provide a basis for challenging the
application or enforcement of a covered title.''.
SEC. 10. HOUSING.
(a) Fair Housing Act.--The Fair Housing Act (42 U.S.C. 3601 et seq.)
is amended--
(1) in section 802 (42 U.S.C. 3602), by adding at the end the
following:
``(p) `Gender identity', `sex', and `sexual orientation' have the
meanings given those terms in section 1101(a) of the Civil Rights Act
of 1964.
``(q) `Race', `color', `religion', `sex' (including `sexual
orientation' and `gender identity'), `handicap', `familial status', or
`national origin', used with respect to an individual, includes--
``(1) the race, color, religion, sex (including sexual
orientation and gender identity), handicap, familial status, or
national origin, respectively, of another person with whom the
individual is associated or has been associated; and
``(2) a perception or belief, even if inaccurate, concerning
the race, color, religion, sex (including sexual orientation
and gender identity), handicap, familial status, or national
origin, respectively, of the individual.'';
(2) in section 804, by inserting ``(including sexual
orientation and gender identity),'' after ``sex,'' each place
that term appears;
(3) in section 805, by inserting ``(including sexual
orientation and gender identity),'' after ``sex,'' each place
that term appears;
(4) in section 806, by inserting ``(including sexual
orientation and gender identity),'' after ``sex,'';
(5) in section 808(e)(6), by inserting ``(including sexual
orientation and gender identity),'' after ``sex,''; and
(6) by adding at the end the following:
``SEC. 821. RULES OF CONSTRUCTION.
``Sections 1101(b) and 1106 of the Civil Rights Act of 1964 shall
apply to this title and section 901, except that for purposes of that
application, a reference in that section 1101(b) or 1106 to a `covered
title' shall be considered a reference to `this title and section 901'.
``SEC. 822. CLAIMS.
``Section 1107 of the Civil Rights Act of 1964 shall apply to this
title and section 901, except that for purposes of that application, a
reference in that section 1107 to a `covered title' shall be considered
a reference to `this title and section 901'.''.
(b) Prevention of Intimidation in Fair Housing Cases.--Section 901 of
the Civil Rights Act of 1968 (42 U.S.C. 3631) is amended by inserting
``(including sexual orientation (as such term is defined in section 802
of this Act) and gender identity (as such term is defined in section
802 of this Act)),'' after ``sex,'' each place that term appears.
SEC. 11. EQUAL CREDIT OPPORTUNITY.
(a) Prohibited Discrimination.--Section 701(a)(1) of the Equal Credit
Opportunity Act (15 U.S.C. 1691(a)(1)) is amended by inserting
``(including sexual orientation and gender identity),'' after ``sex''.
(b) Definitions.--Section 702 of the Equal Credit Opportunity Act (15
U.S.C. 1691a) is amended--
(1) by redesignating subsections (f) and (g) as subsections
(h) and (i), respectively;
(2) by inserting after subsection (e) the following:
``(f) The terms `gender identity', `sex', and `sexual orientation'
have the meanings given those terms in section 1101(a) of the Civil
Rights Act of 1964.
``(g) The term `race', `color', `religion', `national origin', `sex'
(including `sexual orientation' and `gender identity'), `marital
status', or `age', used with respect to an individual, includes--
``(1) the race, color, religion, national origin, sex
(including sexual orientation and gender identity), marital
status, or age, respectively, of another person with whom the
individual is associated or has been associated; and
``(2) a perception or belief, even if inaccurate, concerning
the race, color, religion, national origin, sex (including
sexual orientation and gender identity), marital status, or
age, respectively, of the individual.''; and
(3) by adding at the end the following:
``(j) Sections 1101(b) and 1106 of the Civil Rights Act of 1964 shall
apply to this title, except that for purposes of that application--
``(1) a reference in those sections to a `covered title'
shall be considered a reference to `this title'; and
``(2) paragraph (1) of such section 1101(b) shall apply with
respect to all aspects of a credit transaction.''.
(c) Relation to State Laws.--Section 705(a) of the Equal Credit
Opportunity Act (15 U.S.C. 1691d(a)) is amended by inserting
``(including sexual orientation and gender identity),'' after ``sex''.
(d) Civil Liability.--Section 706 of the Equal Credit Opportunity Act
(15 U.S.C. 1691e) is amended by adding at the end the following:
``(l) Section 1107 of the Civil Rights Act of 1964 shall apply to
this title, except that for purposes of that application, a reference
in that section to a `covered title' shall be considered a reference to
`this title'.''.
SEC. 12. JURIES.
(a) In General.--Chapter 121 of title 28, United States Code, is
amended--
(1) in section 1862, by inserting ``(including sexual
orientation and gender identity),'' after ``sex,'';
(2) in section 1867(e), in the second sentence, by inserting
``(including sexual orientation and gender identity),'' after
``sex,'';
(3) in section 1869--
(A) in subsection (j), by striking ``and'' at the
end;
(B) in subsection (k), by striking the period at the
end and inserting a semicolon; and
(C) by adding at the end the following:
``(l) `gender identity', `sex', and `sexual orientation' have the
meanings given such terms under section 1101(a) of the Civil Rights Act
of 1964; and
``(m) `race', `color', `religion', `sex' (including `sexual
orientation' and `gender identity'), `economic status', or `national
origin', used with respect to an individual, includes--
``(1) the race, color, religion, sex (including sexual
orientation and gender identity), economic status, or national
origin, respectively, of another person with whom the
individual is associated or has been associated; and
``(2) a perception or belief, even if inaccurate, concerning
the race, color, religion, sex (including sexual orientation
and gender identity), economic status, or national origin,
respectively, of the individual.''; and
(4) by adding at the end the following:
``Sec. 1879. Rules of construction and claims
``Sections 1101(b), 1106, and 1107 of the Civil Rights Act of 1964
shall apply to this chapter, except that for purposes of that
application, a reference in those sections to a `covered title' shall
be considered a reference to `this chapter'.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 121 of title 28, United States Code, is amended by adding at
the end the following:
``1879. Rules of construction and claims.''.
Purpose and Summary
H.R. 5, the ``Equality Act,'' ensures that federal law will
explicitly and comprehensively prohibit discrimination on the
basis of sexual orientation and gender identity to secure full
integration of and equal opportunity for lesbian, gay,
bisexual, transgender, and queer (``LGBTQ'') persons in most
key aspects of American life. It does this by codifying recent
federal judicial and administrative decisions and by following
the example of numerous states and localities that already
provide explicit protections against such discrimination.
Specifically, H.R. 5 amends Titles II (public accommodations),
III (public facilities), IV (public education), VI (federally-
funded programs), VII (employment), IX (intervention and
removal of cases), and XI (miscellaneous provisions) of the
Civil Rights Act of 1964 (``1964 Act'');\1\ the Fair Housing
Act;\2\ the Equal Credit Opportunity Act;\3\ and the
nondiscrimination provisions of the statute governing jury
selection\4\ by either adding sex--including sexual orientation
and gender identity--as a protected characteristic or, where
sex is already included as a protected characteristic, by
explicitly clarifying that unlawful sex discrimination includes
discrimination on the basis of sexual orientation or gender
identity. It also expands the list of businesses and services
that would be subject to the 1964 Act's public accommodations
provisions and adds definitions of key terms and rules of
construction clarifying that nothing in the bill undermines the
rights of pregnant women or the rights of anyone to pursue
claims for race, color, religion, sex (including sexual
orientation and gender identity), or national origin
discrimination under any other law. Finally, the bill contains
a provision prohibiting the use of the Religious Freedom
Restoration Act as a basis for a defense or claim in response
to the enforcement of any of the civil rights statutes amended
by H.R. 5.
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\1\42 U.S.C. Sec. Sec. 2000a-2000h--6 (2019).
\2\42 U.S.C. Sec. Sec. 3601-3619 & 3631 (2019).
\3\15 U.S.C. Sec. Sec. 1691 et seq. (2019).
\4\28 U.S.C. Sec. Sec. 1862, 1867, 1869 (2019).
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H.R. 5 is supported by more than 360 civil rights, public
interest, business, labor, and professional organizations,
including the Human Rights Campaign, the National Women's Law
Center, the NAACP, the National Urban League, the American
Civil Liberties Union, the Sports and Fitness Industry
Association, the National Alliance to End Sexual Violence,
Lambda Legal, the American Medical Association, the National
Association of Secondary School Principals, the AFL-CIO,
AFSCME, the Business Roundtable, the National Association of
Manufacturers, and the U.S. Chamber of Commerce.\5\
---------------------------------------------------------------------------
\5\See Human Rights Campaign, Business Coalition for the Equality
Act, May 8, 2019, available at http://assets2.hrc.org/files/assets/
resources/Keep_Updated_-_Company_List_For_Website_-
_Business_Coalition_for_Equality.pdf?_ga=2.182789092.378477246.155724177
8-403308507.1547139001; Human Rights Campaign, 364 Organizations
Endorsing the Equality Act, April 25, 2019, available at https://
assets2.hrc.org/files/assets/resources/
Orgs_Endorsing_EqualityAct.pdf?_ga=2.177553511.378477246.1557241778-
403308507.1547139001; Human Rights Campaign, Associations Endorsing the
Equality Act, Apr. 8, 2019, available at https://assets2.hrc.org/files/
assets/resources/Endorsing-associations-equality-act-
3.13.19.pdf?_ga=2.182446949.378477246.1557241778-403308507.1547139001.
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Background and Need for the Legislation
I. BACKGROUND
A. Federal Statutes and Executive Orders
There is no federal statute that provides explicit and
comprehensive protection against discrimination on the basis of
sexual orientation or gender identity, and no federal statute
explicitly prohibits such discrimination in employment,
housing, public accommodations, federally-funded programs,
education, credit opportunity, or jury service. What federal
statutory protections currently exist are limited. For example,
the Violence Against Women Reauthorization Act of 2013\6\
prohibits sexual orientation and gender identity discrimination
in programs and activities funded by that Act. In addition,
Executive Order 13087, issued by President Bill Clinton,
prohibits sexual orientation discrimination in the federal
civilian workforce\7\ and Executive Order 13672, issued by
President Barack Obama, prohibits gender identity
discrimination in the federal civilian workforce and sexual
orientation and gender identity discrimination in federal
contracting.\8\ Neither of these measures, however, fully
addresses the problem of sexual orientation and gender identity
discrimination.
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\6\Pub. L. No. 113-4, 127 Stat, 54 (2013), available at https://
www.govinfo.gov/content/pkg/PLAW-113publ4/pdf/PLAW-113publ4.pdf.
\7\Exec. Order No. 13087 (May 28, 1998), available at https://
www.govinfo.gov/content/pkg/FR-1998-06-02/pdf/98-14689.pdf.
\8\Exec. Order No. 13672 (July 21, 2014), available at https://
www.govinfo.gov/content/pkg/CFR-2015-title3-vol1/pdf/CFR-2015-title3-
vol1-eo13672.pdf.
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B. Developments in Federal Judicial and Administrative Decisions
With respect to constitutional protections against
discrimination on the basis of sexual orientation, the United
States Supreme Court has issued several decisions that struck
down state and federal laws differentiating between persons
based on sexual orientation, finding that such laws were based
on illegitimate animus and violated equal protection
principles\9\ or invaded privacy rights guaranteed by the
Fourteenth Amendment.\10\ Most recently, in Obergefell v.
Hodges,\11\ the Court invalidated state laws that only
recognized marriage as being exclusively between a man and a
woman as violations of the Fourteenth Amendment's Due Process
and Equal Protection Clauses. Yet, despite this general long-
term trend towards recognizing greater constitutional
protections against sexual orientation discrimination, the
Court has also identified limits to state public accommodation
laws that seek to protect sexual minorities from discrimination
when those laws were applied in a manner that was in tension
with the First Amendment rights of religious or moral
objectors.\12\
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\9\United States v. Windsor, 570 U.S. 744 (2013) (holding that
section of the federal Defense of Marriage Act (``DOMA'') defining
``marriage'' and ``spouse'' to be limited to opposite-sex unions
violated equal protection and due process principles and concluding
that DOMA served no legitimate purpose); Romer v. Evans, 517 U.S. 620
(1996) (striking down state constitutional amendment that banned all
legal protections against anti-gay discrimination at the state and
local level as a violation of the Fourteenth Amendment's Equal
Protection Clause, reasoning that animus toward the gay community could
not justify harmful governmental actions).
\10\Lawrence v. Texas, 539 U.S. 558 (2003) (holding that Texas
statute banning same-sex sexual intercourse violated Fourteenth
Amendment's privacy and equal protection guarantees).
\11\135 S. Ct. 2584 (2015).
\12\Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,
138 S. Ct. 1719 (2018) (holding that state civil rights commission
violated the First Amendment's Free Exercise Clause when it found that
a baker who refused to make a wedding cake for a same-sex couple
violated state antidiscrimination law because the Commission displayed
a clear and impermissible hostility toward the sincere religious
beliefs motivating the baker's objection); Boy Scouts of America v.
Dale, 530 U.S. 640 (2000) (holding that the constitutional right to
freedom of association permitted the Boys Scouts of America to exclude
LGBT persons from membership notwithstanding state law prohibiting
discrimination on the basis of sexual orientation in public
accommodations).
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A number of federal court decisions have addressed the
treatment of discrimination based on sexual orientation and
gender identity under federal civil rights law, particularly in
the employment context. In Oncale v. Sundowner Offshore
Services, Inc.,\13\ the Supreme Court recognized that a claim
of same-sex sexual harassment was actionable as a sex
discrimination claim under Title VII of the 1964 Act, which
prohibits, in relevant part, employment discrimination based on
sex.\14\ The Court reasoned that, while Congress may not have
envisioned same-sex sexual harassment when it passed Title VII,
``statutory prohibitions often go beyond the principal evil to
cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of
our legislators by which we are governed.''\15\ Additionally,
in Price Waterhouse v. Hopkins,\16\ the Court held that
discrimination on the basis of gender stereotypes could
constitute a sex discrimination claim under Title VII.
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\13\523 U.S. 75 (1998).
\14\42 U.S.C. Sec. 2000e-2 (2019).
\15\Oncale, 523 U.S. at 79-80.
\16\490 U.S. 228 (1989).
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In recent years, the United States Courts of Appeals for
the Second and Seventh Circuits, both sitting en banc, as well
as the Equal Employment Opportunity Commission (``EEOC''), have
issued decisions explicitly holding that employment
discrimination on the basis of sexual orientation constitutes
unlawful sex discrimination in violation of Title VII, based in
part on an extension of the reasoning in Price Waterhouse and
Oncale.\17\ In reaching this conclusion, they reasoned that sex
is necessarily a factor in sexual orientation discrimination
because one cannot fully define a person's sexual orientation
without consideration of the person's sex and, as would be the
case in any sex discrimination case, the person would not have
been treated differently but for that person's sex.\18\ They
also reasoned that sexual orientation discrimination is sex
discrimination because it amounts to associational
discrimination on the basis of sex, i.e., an employer
unlawfully took an employee's sex into account by treating the
employee adversely for associating with a person of the same
sex.\19\ Finally, they concluded that sexual orientation
discrimination could also amount to discrimination based on sex
stereotypes, which, according to the Price Waterhouse decision,
could amount to sex discrimination under Title VII.\20\ Other
circuit courts have come to the opposite conclusion, holding
that Title VII does not protect against sexual orientation
discrimination.\21\
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\17\Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018)
(en banc); Hively v. Ivy Tech Comm. Coll., 853 F.3d 339 (7th Cir. 2017)
(en banc); Baldwin v. Foxx, No. 0120133080, 2015 WL 4397641 (E.E.O.C.
July 15, 2015).
\18\Id.
\19\Id.
\20\Id.
\21\Wittmer v. Phillips 66 Co., 915 F.3d 328 (5th Cir. 2019)
(reaffirming circuit precedent that expressly held that Title VII does
not prohibit discrimination on the basis of sexual orientation); Evans
v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017) (holding
that plaintiff failed to state Title VII claim by alleging that she
endured workplace discrimination because of her sexual orientation).
---------------------------------------------------------------------------
With respect to whether discrimination on the basis of
gender identity constitutes unlawful sex discrimination under
Title VII, circuit courts have also come to differing
conclusions. Adopting reasoning that was similar to that
followed by the Second and Seventh Circuits and the EEOC
concerning sexual orientation-based discrimination, the United
States Court of Appeals for the Sixth Circuit, in its 2018
decision in Equal Employment Opportunity Commission v. R.G. &
G.R. Harris Funeral Homes, Inc.,\22\ held that Title VII
prohibited discrimination on the basis of transgender or
transitioning status as a form of sex discrimination, reasoning
that such discrimination is necessarily motivated because of
sex. It further reasoned that such discrimination would
constitute discrimination on the basis of sex stereotypes,
which would also violate Title VII's prohibition on
discrimination ``because of'' sex. Other circuits, however,
have reached the opposite conclusion with regard to whether
Title VII directly prohibits discrimination on the basis of a
person's gender identity.\23\
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\22\884 F.3d 560 (2018). See also Whitaker v. Kenosha Unified
School District, 858 F.3d 1034 (2017) (holding that transgendered
student transitioning from female to male was likely to succeed on the
merits of his claim that a local public school district's unwritten
policy prohibiting him from using boys' restroom violated his rights
under Title IX of the Education Amendments Act of 1972 and the
Fourteenth Amendment's Equal Protection Clause); Rosa v. Park West Bank
& Trust Co., 214 F.3d 213 (2000) (reversing district court's grant of
defendant's motion to dismiss for failure to state a claim where
plaintiff, a biological male who sought and was denied a loan
application from the defendant bank while dressed in traditionally
feminine clothing, alleged that the bank violated the Equal Credit
Opportunity Act's prohibition on sex discrimination).
\23\See, e.g., Etsitty v. Utah Transit Authority, 502 F.3d 1215
(10th Cir. 2007) (holding that Title VII and the Equal Protection
Clause do not recognize ``transsexuals'' as a protected class, but also
declining to hold as a general matter that discrimination on the basis
of gender identity could not constitute unlawful sex stereotyping under
Price Waterhouse); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th
Cir. 1984) (Title VII does not protect ``transsexuals''); Sommers v.
Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982) (same).
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Recently, the Supreme Court announced it would consider
next term the questions of whether Title VII's prohibition on
sex discrimination in employment includes discrimination based
on sexual orientation and gender identity.\24\ On the question
of whether Title VII prohibits sexual orientation
discrimination, the Court will consider an appeal of the Second
Circuit's decision holding that it does as well as an Eleventh
Circuit decision reaching the contrary conclusion.\25\ On the
question of whether Title VII covers gender identity
discrimination, the Court will consider an appeal of the Sixth
Circuit's decision in the R.G. & G.R. Harris Funeral Homes
case.\26\ Among other things, H.R. 5 codifies the holdings of
the Second and Seventh Circuits finding that sexual orientation
discrimination is sex discrimination under Title VII, and the
analogous holding of the Sixth Circuit that gender identity
discrimination is prohibited sex discrimination under Title
VII.\27\
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\24\Adam Liptak, Supreme Court to Decide Whether Landmark Civil
Rights Law Applies to Gay and Transgender Workers, N.Y. Times, Apr. 22,
2019, available at https://www.nytimes.com/2019/04/22/us/politics/
supreme-court-gay-transgender-employees.html.
\25\Id.
\26\Id.
\27\Some concerns have been raised regarding the potential
application of H.R. 5 to other aspects of employment law. The following
describes these concerns and how H.R. 5 does or does not address the
particular question of law.
First, a concern has been raised about whether the definition of
gender identity would require employers to identify individuals based
on their appearance, mannerisms, or other gender-related
characteristics. The definition of gender identity, contained in H.R.
5, is not meant to be construed in a manner that would require
employers to identify, stereotype, or make assumptions about employees'
or job applicants' gender identity. Rather the definition should be
construed in a manner that allows an employee or job applicant to
represent their gender identity to the employer, if necessary, in a
manner that allows for a discussion without discrimination. Likewise,
the definition of sexual orientation, contained in H.R. 5, is not meant
to be construed in a manner that would require employers to identify,
stereotype, or make assumptions about employees' or job applicants'
sexual orientation. Rather the definition should be construed in a
manner that allows an employee or job applicant to represent their
sexual orientation to the employer, if necessary, without
discrimination.
Second, a concern has been raised about whether the bill changes
current law with respect to the provision of employer provided
benefits. H.R. 5 should not be construed to prohibit a covered entity
from enforcing any rules, policies, or agreements that are uniformly
applied to all individuals regardless of actual or perceived sexual
orientation or gender identity and that do not circumvent the purposes
of this Act.
Third, a concern has been raised about whether the Equal Employment
Opportunity Commission must collect information in the EEO-1 form
related to sexual orientation and gender identity. In considering
collection of such information, under H.R. 5, Congress suggests that
the EEOC take due care of the sometimes private and personal nature of
these characteristics. The EEOC should not solicit information in such
a way that would require employers to assume an employees' or job
applicants' sexual orientation or gender identity. Further, the EEOC
should not require an employee or job applicant to disclose this
information except on a voluntary basis. Any disclosure of information
by employees or job applicants should be made in accordance with their
gender identity.
Fourth, a concern has been raised about whether H.R. 5 changes
current law with respect to the Pregnancy Discrimination Act. The
underlying bill affirms that women affected by pregnancy should be
treated the same for all employment-related purposes as other persons
not so affected but similar in their ability or inability to work. H.R.
5 does nothing to expand or constrict current law.
Fifth, a concern has been raised about whether H.R. 5's amendments
to current law related to ``public accommodation'' affect other
employment-related statutes with ``public accommodation'' provisions.
Changes to the definition of public accommodation in the underlying
bill are contained solely within Section 201 of the 1964 Act. Courts
should not construe these changes to affect other statutes or instances
not included under Section 201 of the 1964 Act.
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C. State Laws
While there is no comprehensive federal statute explicitly
prohibiting discrimination on the basis of sexual orientation
or gender identity, there is a patchwork of state
nondiscrimination protections that explicitly prohibit such
kind of discrimination. Currently, 22 states prohibit sexual
orientation-based discrimination in employment and housing,
while another 21 states prohibit discrimination in public
accommodations, 17 in education, 15 in terms of credit
opportunities, and 10 in jury selection. With respect to
prohibitions on discrimination on the basis of gender identity,
21 states expressly prohibit such discrimination in employment
and housing, 20 in public accommodations, 15 in education and
credit opportunities, and 6 in jury selection.\28\
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\28\Sarah Warbelow, Cathryn Oakley & Collen Kutney, 2018 State
Equality Index, Human Rights Campaign Foundation and Equality
Federation Institute available at https://assets2.hrc.org/files/assets/
resources/SEI-2018-Report.pdf?--ga=2.85439129.1252111100.1553270783-
682024502.1549305648.
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This patchwork of state law protections against LGBTQ
discrimination leaves many individuals without legal protection
from such discrimination. A March 2019 study by The Williams
Institute at the University of California, Los Angeles School
of Law found that an estimated 4.1 million LGBTQ workers (aged
16 and older) lived in states without explicit LGBTQ
nondiscrimination protections in employment.\29\ Additionally,
according to the study, 5.6 million LGBTQ adults (aged 18 and
older) lived in states without explicit LGBTQ non-
discrimination protections in housing, 6.9 million LGBTQ people
(13 and older) lived in states without explicit LGBTQ non-
discrimination protections in public accommodations, 2.1
million LGBTQ students (aged 15 and older) lived in states
without explicit LGBTQ non-discrimination protections in
education, and 8 million LGBTQ adults lived in states without
LGBTQ non-discrimination protections in terms of credit
opportunity.\30\
---------------------------------------------------------------------------
\29\UCLA School of Law Williams Institute, LGBT People in the U.S.
Not Protected by State Nondiscrimination Statutes, UCLA School of Law
Williams Institute (Mar. 2019), available at https://
williamsinstitute.law.ucla.edu/wp-content/uploads/Equality-Act-March-
2019.pdf.
\30\Id.
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D. Religious Exemptions to Generally Applicable Federal
Nondiscrimination Laws
The First Amendment's Free Exercise Clause prohibits
governmental interference with the free exercise of religion.
In 1990, the Supreme Court narrowed the scope of the Free
Exercise Clause's protections in a series of decisions, to
which Congress responded by passing the Religious Freedom
Restoration Act (``RFRA'').\31\ Until 1990, the Supreme Court
applied strict scrutiny to any governmental action that imposed
a burden on the free exercise of religion. Under strict
scrutiny, a governmental burden on the free exercise of
religion would be justified only if it served a compelling
governmental interest and was the least restrictive means of
serving that interest. In Employment Division v. Smith,\32\ the
Supreme Court diluted its strict scrutiny approach to
governmental burdens on the free exercise of religion where the
burden was incidental to a generally applicable law. In an
effort to protect followers of minority religions, Congress
passed RFRA to re-establish the pre-Smith standard by
subjecting generally applicable laws and other government
actions that substantially burden the free exercise of religion
to strict scrutiny.\33\
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\31\42 U.S.C. Sec. Sec. 2000bb et seq. (2019).
\32\494 U.S. 872 (1990).
\33\See S. Rept. No. 103-111, at 12 (1993) (RFRA's purpose was
``only to overturn the Supreme Court's decision in Smith,'' not to
``unsettle other areas of law'').
---------------------------------------------------------------------------
While the Supreme Court in Employment Division held that
incidental burdens on religious belief, alone, would be
insufficient to justify an exemption from otherwise valid and
generally applicable laws, it has also clarified, most recently
in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission, that government actions, including the enforcement
of civil rights laws, that are motivated by animus towards a
particular religious group would violate the Free Exercise
Clause.\34\ Additionally, the First Amendment protects freedom
of association, which provides additional constitutional
protection for houses of worship and other religious entities
with respect to the application of nondiscrimination laws.
---------------------------------------------------------------------------
\34\Masterpiece Cakeshop, 138 S. Ct. at 1727.
---------------------------------------------------------------------------
The potential for RFRA to be used to justify broad
exemptions to generally applicable nondiscrimination laws has
grown considerably in recent years. For instance, in the R.G. &
G.R. Harris Funeral Homes decision from the Sixth Circuit
discussed earlier, the lower court had ruled in favor of the
defendant funeral home, finding that RFRA could be invoked as a
defense to a Title VII sex discrimination claim.\35\ Indeed,
Justice Ruth Bader Ginsburg suggested with alarm in her dissent
in Burwell v. Hobby Lobby that the Court's decision allowing a
closely-held for-profit corporation to obtain an exemption from
a generally applicable law under RFRA based on the owners'
religious beliefs could lead to that Act being used to permit
discrimination against minority groups,\36\ and the district
court in the R.G. & G.R. Harris case cited Hobby Lobby in its
RFRA analysis.\37\
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\35\R.G. & G.R. Harris Funeral Homes, 884 F.3d at 570.
\36\573 U.S. 682, 769-70 (2014).
\37\EEOC v. R.G. & G. R. Harris Funeral Homes, 201 F.Supp.3d 837,
863 (E.D. Mich. 2016).
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In another recent example of RFRA's expansive application
to nondiscrimination laws, the Trump Administration earlier
this year cited RFRA in exempting federally-funded foster care
and adoption agencies in South Carolina from the religious
nondiscrimination protections\38\ provided by a Department of
Health and Human Services regulation.\39\ This waiver allowed
an evangelical Christian foster placement agency that received
public funding to potentially discriminate against LGBTQ and
non-Christian families based on the agency's religious beliefs
in making a foster placement decision.\40\
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\38\Letter from Steve Wagner, Principal Deputy Assistant Secretary,
Administration for Children and Families, Dep't of Health and Human
Servs., to Henry McMaster, Governor, State of South Carolina (Jan. 23,
2019), available at https://governor.sc.gov/sites/default/files/
Documents/newsroom/HHS%20Response%20Letter%20to%20McMaster.pdf.
\39\45 C.F.R. 75.300(c) (2019).
\40\Associated Press, S.C. Group Can Reject Gays and Jews As Foster
Parents, Trump Admin. Says, Jan. 24, 2019, available at https://
www.nbcnews.com/feature/nbc-out/s-c-group-can-reject-gays-jews-foster-
parents-trump-n962306.
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In addition to constitutional and statutory protections for
religious free exercise and freedom of association, several
exemptions in civil rights statutes provide further protection
for religious entities in certain circumstances. For instance,
Title II of the 1964 Act, which covers public accommodations,
contains an exemption for private clubs and other
establishments that are not open to the general public, and
H.R. 5 does not amend this exemption in any way.\41\ With
respect to houses of worship, it is clear that when houses of
worship provide spaces and services to congregants and
worshippers, and not to the public at large, they are not
acting as places of public accommodation. This has been the
case in the more than five decades that this exemption has been
in effect. Moreover, clergy operating in their ministerial
capacity would never be compelled to perform a religious
ceremony in conflict with their religious beliefs, even when
working in a place of public accommodation.
---------------------------------------------------------------------------
\41\42 U.S.C. 2000a(e) (2019).
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Title VII of the 1964 Act contains an explicit exemption
for religious organizations from its general prohibition on
employment discrimination. This exemption allows religious
corporations, associations, and societies to limit employment
to members of their own faith. The exemption also extends to
schools, colleges, and universities owned, supported,
controlled, or managed by a religious organization. Also,
courts and the EEOC have recognized that Title VII requires
that employers provide accommodation for an employee's
sincerely-held religious beliefs and practices where the
requested accommodation does not impose an undue hardship for
the employer. Examples of such accommodations include allowing
the wearing of head coverings that conflict with workplace
dress codes, prayer breaks, and schedule changes to accommodate
religious observances.
Additionally, the Supreme Court has recognized a
``ministerial exception'' with respect to the employment
practices of religious organizations.\42\ Under this exception,
rooted in the First Amendment, religious employers are exempt
from nondiscrimination laws to the extent that an employment
practice concerns employees who play roles with respect to the
teaching or inculcating of faith.\43\ This exception applies
broadly to include not only those employees who hold formal
ministerial positions, but can also include any employee who
organizes religious services, theology professors, and church
music directors. It would not, however, apply with respect to
employees serving in purely administrative, custodial, or
janitorial roles.
---------------------------------------------------------------------------
\42\Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565
U.S. 171 (2012).
\43\Id.
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Title VI of the 1964 Act, which prohibits discrimination in
federally-funded programs, does not prohibit discrimination on
the basis of religion. Therefore, religious entities are free
to discriminate on the basis of religion when making decisions
regarding employment or who may receive services from these
programs and are free to determine who is and is not a member
of their respective faiths.\44\
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\44\Courts historically have interpreted the scope of protection
available under Title VI to be coextensive with that afforded by the
Equal Protection Clause. In adding sex as a protected characteristic
under Title VI, Congress intends for courts to extend that approach,
continuing to apply strict scrutiny with respect to classifications
based on race, color, or national origin, and intermediate scrutiny to
those based on sex, as would be the case under the Equal Protection
Clause. Additionally, courts should not draw any inference from H.R.
5's amendment of Title VI in some ways and not in others to mean that
Congress implicitly endorses any particular judicial interpretations
regarding any other aspect of Title VI.
The Committee acknowledges that the addition of sex as a protected
characteristic under Title VI may raise some questions about how the
revised Title VI should be read in relation to Title IX of the
Education Amendments Act of 1972. It is the Committee's intention not
to alter in any way Title IX or the scope or availability of its
exemptions as they currently stand. Rather, Title IX and the revised
Title VI should be read as being complementary provisions that provide
overlapping protection against sex discrimination. Indeed, the addition
of sex as a protected characteristic under Title VI should be read in
light of the way that courts and enforcement agencies have interpreted
other legal prohibitions against sex discrimination, including
analogous constitutional and statutory provisions, so as to permit
gender-specific programming and facilities when they are justified. For
example, in United States v. Virginia Military Institute, 518 U.S. 515
(1996), the Supreme Court acknowledged that, while single-sex education
may violate the Equal Protection Clause in the absence of a sufficient
justification, single-sex education can also provide benefits to some
students, particularly where such education serves to remedy past
discrimination, and that other sex-specific distinctions may be
permissible.
Also, while H.R. 5 does not amend Title IX to explicitly include
sexual orientation and gender identity as protected characteristics, it
expressly prohibits, in new proposed section 1106(c) of the 1964 Act
that would be added by H.R. 5, the drawing of ``any inference [based on
the changes to current law made by H.R. 5] that any Federal law
prohibiting a practice on the basis of sex does not prohibit
discrimination on the basis of . . . sexual orientation, gender
identity, or a sex stereotype.''
---------------------------------------------------------------------------
Beyond the 1964 Act, the Fair Housing Act also specifically
exempts those religious organizations that provide preferences
to members of their own religion from its nondiscrimination
provisions.\45\ That exemption, however, is not available to a
religious organization that discriminates in its membership
based on race, color, or national origin.\46\
---------------------------------------------------------------------------
\45\42 U.S.C. Sec. 3607(a) (2019).
\46\Id.
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II. NEED FOR THE LEGISLATION
While federal statutes, state laws, court decisions, and
agency interpretations provide some measure of protection
against discrimination on the basis of sexual orientation and
gender identity, such protections are incomplete and leave many
LGBTQ Americans vulnerable to discrimination. Moreover, despite
polling showing that society has become increasingly more
accepting of LGBTQ people in recent years,\47\ these
individuals continue to face numerous forms of discrimination
because of their sexual orientation or gender identity in many
areas. Comprehensive, consistent, and explicit federal
nondiscrimination protections, therefore, are necessary to
ensure that LGBTQ people are fully protected from invidious
discrimination and integrated into all aspects of American
life.
---------------------------------------------------------------------------
\47\Gallup, Gay and Lesbian Rights (2018), available at https://
news.gallup.com/poll/1651/gay-lesbian-rights.aspx.
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In addition, women also continue to face discrimination in
public accommodations and federally-funded programs with less-
than-complete protection under federal law. Adding sex as a
protected characteristic to those nondiscrimination laws
dealing with public accommodations and federally-funded
programs would provide important additional protections for
women who experience discrimination in these areas. African
Americans and other racial minorities also have less-than-full
protection from racial discrimination in the provision of
public spaces and services such as those provided by retail or
online businesses, a situation that the Equality Act will
remedy.
The Reverend Dr. Dennis Wiley, Pastor Emeritus of Covenant
Baptist United Church of Christ in Washington, D.C., in his
testimony in support of H.R. 5 at the Committee's hearing on
this legislation, emphasized the moral imperative of opposing
ongoing discrimination, citing his own experiences of racial
discrimination while growing up in the Jim Crow-era South and
how that experience of discrimination sensitized him to all
forms of discrimination.\48\ He also testified about his
daughter coming out as a lesbian and how that only strengthened
his already-strong commitment to equality for LGBTQ
persons.\49\
---------------------------------------------------------------------------
\48\Equality Act, Hearing on H.R. 5 Before the H. Comm. on the
Judiciary, 116th Cong. (2019) [hereinafter ``Equality Act Hearing'']
(statement of the Rev. Dr. Dennis Wiley, Pastor Emeritus, Covenant
Baptist United Church of Christ).
\49\Id.
---------------------------------------------------------------------------
A. Employment
Anti-LGBTQ employment discrimination can take many forms,
including failing to hire a job applicant, firing or refusing
to promote an employee, or mistreating employees because of
their gender identity or sexual orientation. These forms of
discrimination can also significantly affect LGBTQ people's
income, having a wide-ranging impact on their lives.
A 2013 Pew Research Center poll found that 21% of LGBTQ
respondents reported being treated unfairly by an employer
because of their gender identity or sexual orientation at one
point in their lifetimes, with 5% of all respondents reporting
that they experienced this form of discrimination in the past
year.\50\ In a 2017 National Public Radio (``NPR''), Robert
Wood Johnson Foundation, and Harvard survey (``NPR Survey''),
20% of LGBTQ respondents reported being discriminated against
because of their gender identity or sexual orientation when
applying for jobs and 22% reported discrimination in terms of
unequal pay or when being considered for promotion.\51\ A 2016
survey by Prudential Financial also found that sexual
orientation impacts income; both gay men and lesbian women
earned, on average, less than their heterosexual
counterparts.\52\
---------------------------------------------------------------------------
\50\Pew Research Center, A Survey of LGBT Americans Chapter 2:
Social Acceptance, June 13, 2013, available at https://
www.pewsocialtrends.org/2013/06/13/chapter-2-social-acceptance/
[hereinafter ``Pew Research Center''].
\51\Nat'l Public Radio, the Robert Wood Johnson Foundation, &
Harvard T.H. Chan School of Public Health, Discrimination in America:
Experiences And Views Of LGBTQ Americans, Nov. 2017, available at
https://cdn1.sph.harvard.edu/wp-content/uploads/sites/94/2017/11/NPR-
RWJF-HSPH-Discrimination-LGBTQ-Final-Report.pdf [hereinafter ``NPR
Survey''].
\52\Prudential Financial, The LGBT Financial Experience 2016-2017,
June 2017, available at http://corporate.prudential.com/media/managed/
PrudentialLGBT2016-2017.pdf. The number of transgender respondents was
too small in this study to draw statistical conclusions.
---------------------------------------------------------------------------
Moreover, the 2015 U.S. Transgender Survey--the largest
survey of transgender people in the United States--found that
30% of respondents who had been employed in the past year had
been fired, denied a promotion, or experienced mistreatment in
the workplace because of their gender identity or expression.
Additionally, 29% of respondents reported incomes that fell
below 125% of the official poverty line.\53\
---------------------------------------------------------------------------
\53\Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling,
Lisa Mottet, & Ma'ayan Anafi, The Report of the 2015 U.S. Transgender
Survey, National Center for Transgender Equality (2016), available at
https://transequality.org/sites/default/files/docs/usts/USTS-Full-
Report-Dec17.pdf [hereinafter ``Transgender Survey''].
---------------------------------------------------------------------------
Behind these statistics are people with stories of
discrimination. For example, a teacher in Texas was put on paid
administrative leave after showing the class a photo of her and
her now-wife, as well as mentioning that the artist Jasper
Johns had a same-sex partner.\54\ In Michigan, a transgender
woman who worked at a funeral home was fired two weeks after
coming out to her employer.\55\
---------------------------------------------------------------------------
\54\Emma Platoff, A Gay Texas Teacher is on Leave after She Showed
Students a Photo of Her Wife. She Has Few Legal Protections, Texas
Trib., May 24, 2018, available at https://www.texastribune.org/2018/05/
24/mansfield-isd-texas-art-teacher-LGBTQ-few-legal-protections/.
\55\Adam Liptak, Can a Fired Transgender Worker Sue for Job
Discrimination?, N.Y. Times (November 12, 2018), available at https://
www.nytimes.com/2018/11/12/us/politics/transgender-job-
discrimination.html.
---------------------------------------------------------------------------
During the hearing, Majority witness Carter Brown, who
lives in a state without explicit LGBTQ nondiscrimination
protections, shared his experience of how his life changed
after he was outed as a transgender man at his job. Prior to
being outed, he earned three promotions in two years.
Nevertheless, after a coworker outed him, he was the target of
gossip and harassment and was eventually fired.\56\ As a
result, he was forced to cash out his 401K and defer auto loans
and mortgage payments to stay financially afloat.\57\ He also
lost his health insurance.\58\ Mr. Brown explained that he
supported H.R. 5 because, as a transgender black man who has
experienced workplace discrimination, H.R. 5 would have
protected him.\59\ In addition, he testified that the bill's
expanded definition of public accommodations would protect him
not only as a transgender man but as a person of color.\60\
---------------------------------------------------------------------------
\56\Equality Act Hearing (statement of Carter Brown).
\57\Id.
\58\Id.
\59\Id.
\60\Id.
---------------------------------------------------------------------------
B. Housing
Housing is another area where LGBTQ people face
discrimination because of their sexual orientation or gender
identity. A 2011 federal study by the Department of Housing and
Urban Development found that same-sex couples received fewer
responses to e-mail inquiries about nbhousing opportunities
than opposite-sex couples in metropolitan areas.\61\
Additionally, 23% of respondents in the 2015 U.S. Transgender
Survey reported experiencing some form of housing
discrimination in just the past year\62\ and 22% of LGBTQ
respondents in the NPR Survey reported experiencing
discrimination in housing.\63\ These forms of discrimination
can impact people at all ages. For example, in Missouri, a
lesbian couple that was in a committed relationship for four
decades, was rejected from a retirement home they applied to
join because they were in a same-sex relationship.\64\
---------------------------------------------------------------------------
\61\Samantha Friedman, Angela Reynolds, Susan Scovill, Florence R.
Brassier, Ron Campbell,
and McKenzie Ballou, An Estimate Of Housing Discrimination Against
Same-Sex Couples,
U.S. Department of Housing and Urban Development Office of Policy
Development and
Research (June 2013) available at https://www.huduser.gov/portal/
Publications/pdf/Hsg_Disc_against_SameSexCpls_v3.pdf.
\62\Transgender Survey.
\63\NPR Survey.
\64\Tim Fitzsimons, Judge Rules Against Lesbians Rejected From
Retirement Home, NBC News (January 18, 2019) available at https://
www.nbcnews.com/feature/nbc-out/judge-rules-against-elderly-lesbians-
rejected-retirement-home-n960211.
---------------------------------------------------------------------------
C. Public Accommodations
The Pew Research Center poll found that 23% of respondents
reported receiving poor service in a restaurant, hotel, or
other place of business open to the public because of their
gender identity or sexual orientation.\65\ The 2015 U.S.
Transgender survey found that 31% of respondents who visited a
place of public accommodation where the staff or employees
thought or knew they were transgender experienced at least one
type of mistreatment, with 14% of respondents reporting that
they had been denied equal treatment or service.\66\
---------------------------------------------------------------------------
\65\Pew Research Center.
\66\Transgender Survey.
---------------------------------------------------------------------------
Sometimes, denial of equal treatment or service can include
being completely denied service. For example, in Indiana
earlier this year, a same-sex couple was refused service at a
tax service company because they were in a same-sex
marriage.\67\ Similarly, last year in Arizona, a pharmacist
refused to fill a prescription for hormone therapy for a
transgender woman.\68\
---------------------------------------------------------------------------
\67\Vic Ryckaert, An Indiana Tax Service Turned Away a Gay Couple.
Both Sides Claim Discrimination, Indianapolis Star, Feb. 18, 2019,
available at https://www.indystar.com/story/news/2019/02/18/rfra-same-
sex-marriage-indiana-discrimination-russiaville-mike-pence/2903487002/.
\68\Julia Jacobs, Transgender Woman Says CVS Pharmacist Refused to
Fill Hormone Prescription, N.Y. Times, July 20, 2018, available at
https://www.nytimes.com/2018/07/20/us/cvs-pharmacy-transgender-woman-
nyt.html.
---------------------------------------------------------------------------
During the hearing, Jami Contreras, a Majority witness,
shared the story of her six-year-old daughter being denied
medical services as a newborn by a pediatrician. Contreras
explained that when she and her wife decided to start a family
they moved 230 miles to the Metro Detroit area to help ensure
that their children would grow up in a community free from
discrimination.\69\ She explained that she and her wife
interviewed a number of pediatricians and found one who met
their requirements and did not seem concerned that they were a
same-sex married couple, but that when they arrived for their
baby's appointment, a different doctor appeared and that when
questioned, the doctor explained that the Contreras' handpicked
pediatrician had ``prayed on it'' and decided she could not
take on their daughter as a patient.\70\ She testified that she
had continuing concerns that her daughter would experience
additional discrimination and that Congress should pass H.R. 5
to prevent such discrimination in the future.\71\
---------------------------------------------------------------------------
\69\Equality Act Hearing (statement of Jami Contreras).
\70\Id.
\71\Id.
---------------------------------------------------------------------------
LGBTQ people are not the only individuals who experience
discrimination in public accommodations with no federal legal
recourse. For instance, women are often charged more for goods
and services marketed towards them than men are for nearly
identical goods and services marketed towards them.\72\ A Study
of Gender Pricing in New York City by the New York City
Department of Consumer Affairs found that women's products cost
7% more than similar products for men and that women's products
cost more 42% of the time while men's products cost more 18% of
the time.\73\
---------------------------------------------------------------------------
\72\Democratic staff of the Joint Economic Committee, The Pink Tax
How Gender-Based
Pricing Hurts Women's Buying Power, United States Congress Joint
Economic Committee (Dec. 2016) available at https://www.jec.senate.gov/
public/_cache/files/8a42df04-8b6d-4949-b20b-6f40a326db9e/the-pink-tax_-
how-gender-based-pricing-hurts-women-s-buying-power.pdf.
\73\Anna Bessendorf, From Cradle to Cane: The Cost of Being a
Female Consumer: A Study of Gender Pricing in New York City, New York
City Department of Consumer Affairs (Dec. 2015) available at https://
www1.nyc.gov/assets/dca/downloads/pdf/partners/Study-of-Gender-Pricing-
in-NYC.pdf.
---------------------------------------------------------------------------
Moreover, current federal antidiscrimination law does not
cover all of the public spaces and services where people may
face discrimination, such as retail stores, online businesses,
homeless shelters, banks, and providers of health care,
accounting, legal, and transportation services. For instance,
in the past year, there have been notable examples of racial
discrimination and profiling in retail stores, including an
instance where a Nordstrom Rack employee called the police to
investigate African-American teenagers who were shopping for
prom outfits after wrongly suspecting them of shoplifting.\74\
---------------------------------------------------------------------------
\74\Rachel Siegel, Nordstrom Rack Apologizes After Calling The
Police on Three Black Teens who were Shopping for Prom, Wash. Post, May
9, 2018, available at https://www.washingtonpost.com/news/business/wp/
2018/05/08/nordstrom-rack-called-the-police-on-three-black-teens-who-
were-shopping-for-prom/?utm_term=.6627c82186fa.
---------------------------------------------------------------------------
D. Education
More than six in ten LGBTQ students in the GLSEN 2017
National School Climate Survey reported that they had
experienced anti-LGBTQ discriminatory policies and practices in
school. Moreover, nearly half of transgender and gender
nonconforming students in the survey reported being prevented
from using their chosen name or pronoun and a quarter reported
being prevented from wearing clothing that matched their gender
identity or expression.\75\
---------------------------------------------------------------------------
\75\Joseph G. Kosciw, Emily A. Greytak, Adrian D. Zongrone, Caitlin
M. Clark, & Nhan L. Truong, The 2017 National School Climate Survey The
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in
Our Nation's Schools, GLSEN (2018) available at https://www.glsen.org/
sites/default/files/
GLSEN%202017%20National%20School%20Climate%20Survey%20%28NSCS%29%20-
%20Full%20Report.pdf.
---------------------------------------------------------------------------
One notable example of anti-transgender discrimination in
education is the experience of Gavin Grimm, a transgender boy
who was denied access to facilities that aligned with his
gender identity in his Virginia high school.\76\ Grimm sued his
school and his case was almost considered by the Supreme Court.
The Supreme Court, however, sent the case back to the lower
courts to be reconsidered after the Trump Administration
rescinded Department of Education guidance on the rights of
transgender students.\77\
---------------------------------------------------------------------------
\76\Matt Stevens, Transgender Student in Bathroom Dispute Wins
Court Ruling, N.Y. Times, May 22, 2018, available at https://
www.nytimes.com/2018/05/22/us/gavin-grimm-transgender-bathrooms.html.
\77\American Civil Liberties Union, G.G. V. Gloucester County
School Board, (updated Feb. 25, 2019), available at https://
www.aclu.org/cases/gg-v-gloucester-county-school-board. Many states and
localities have enacted nondiscrimination measures to protect against
gender identity-based discrimination. As both Professor Kenji Yoshino
and Sunu Chandy of the National Women's Law Center testified at the
Committee hearing on H.R. 5, the experience of these states and
localities--some of which have had such kinds of protections in places
for decades--demonstrates that protecting against gender identity
discrimination has in no way resulted in a ``parade of horribles,''
including any sort of increase in assault, sex crimes, or voyeurism
targeting women in locker rooms, restrooms, and other shared spaces.
Equality Act Hearing (statements of Sunu Chandy, Legal Director,
National Women's Law Center and Kenji Yoshino, Chief Justice Earl
Warren Professor of Constitutional Law, New York University School of
Law).
---------------------------------------------------------------------------
E. Federally-funded programs
Discrimination in federally-funded programs can take many
forms. For example, in prisons receiving federal financial
assistance, discrimination against the LGBTQ community can
include failure to provide necessary medications, unsafe
housing assignments, and disproportionate use of solitary
confinement.\78\ This can also include mistreatment by local
and state law enforcement agencies receiving federal funds,
with 26% of respondents in the NPR Survey, for instance,
stating that they have been treated unfairly by the police
because they are LGBTQ.\79\
---------------------------------------------------------------------------
\78\Lambda Legal, Protected and Served? Jails and Prisons, Lambda
Legal (2015) available at https://www.lambdalegal.org/protected-and-
served/jails-and-prisons.
\79\NPR Survey.
---------------------------------------------------------------------------
In federally-funded homeless shelters, discrimination can
include unsafe housing assignments and even denying entry to
LGBTQ people. The 2015 U.S. Transgender Survey found that 70%
of respondents who stayed in a shelter in the past year
reported some form of mistreatment, including being harassed,
assaulted, or ejected from the shelter because they were
transgender.\80\
---------------------------------------------------------------------------
\80\Transgender Survey.
---------------------------------------------------------------------------
F. Credit
Discrimination in access to credit can adversely impact
many aspects of a person's life, from getting a car to buying a
house. For example, a study of Home Mortgage Disclosure Act
data showed that same-sex pairs of borrowers were denied
mortgages at higher rates than different-sex pairs in which a
man was the primary applicant (though male same-sex pairs were
denied at about the same rate as different-sex pairs where a
woman was the primary applicant).\81\
---------------------------------------------------------------------------
\81\Mark Fogarty, HMDA Data Offers Clues on Discrimination Against
Gays, Am. Banker (June 9, 2014) available at https://
www.americanbanker.com/news/hmda-data-offers-clues-on-discrimination-
against-gays. The study examined the treatment of same-sex pairs of
borrowers, which may not necessarily consist solely of LGBTQ partners
(two male relatives, for example, may also be encompassed in the
study.)
---------------------------------------------------------------------------
G. The judicial system
Given that LGBTQ people are overrepresented in the criminal
justice system, mistreatment in the courts exacerbates this
problem. In the NPR survey, 24% of respondents stated that they
have been treated unfairly by the courts because they are
LGBTQ.\82\ In a Lambda Legal survey, 19% of respondents who
interacted with a court heard discriminatory comments about
sexual orientation or gender identity and expression in the
courts.\83\ While prohibiting LGBTQ discrimination in jury
service will not completely eliminate these biases, this
prohibition will help ensure that cases with LGBTQ defendants
are truly heard by a jury of their peers that would include a
full cross-section of their communities.
---------------------------------------------------------------------------
\82\NPR Survey supra.
\83\Lambda Legal, Protected and Served? Courts, Lambda Legal (2015)
available at https://www.lambdalegal.org/protected-and-served/courts.
---------------------------------------------------------------------------
H. RFRA exception and nondiscrimination laws
Constitutional protections for the free exercise of
religion and the various religious exemptions under current
civil rights statutes properly balance individuals' ability to
freely exercise their religion on the one hand, with the
government's compelling interest in eradicating discrimination
on the other. Any attempt to include new religious exemptions
or to expand upon existing ones in the underlying civil rights
statutes that H.R. 5 amends would upset this careful balance
and erode our nation's civil rights laws and nondiscrimination
protections for all people. Yet, as outlined above, through a
series of misguided interpretations of RFRA, courts and the
Executive Branch have threatened to do just that.
The bill's provision prohibiting the use of RFRA as the
basis of a defense or claim to any enforcement of any of the
civil rights provisions amended by H.R. 5 reflects Congress's
longstanding view that, while the right of Americans, and
particularly of religious minorities, to freely exercise their
religions should be protected, religious belief should not be
the basis for broad exemptions from generally applicable anti-
discrimination laws. In other words, Congress intended RFRA to
be a ``shield'' for religious minorities, not a ``sword'' that
would permit businesses and others to harm minorities. As
Professor Kenji Yoshino of New York University School of Law
testified at the Committee's hearing on H.R. 5, ``Civil rights
statutes safeguarding vulnerable groups have never included an
unlimited license to refuse compliance on religious
grounds.''\84\ He noted that the Supreme Court expressly
rejected such an argument in an early challenge to the 1964 Act
by a business owner who refused to serve African American
customers on religious grounds.\85\ H.R. 5's RFRA-related
provision simply reaffirms that longstanding principle,
articulated more than 50 years ago.
---------------------------------------------------------------------------
\84\Equality Act Hearing (statement of Kenji Yoshino, Chief Justice
Earl Warren Professor of Constitutional Law, New York University School
of Law).
\85\Id.; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400
(1968); see also Masterpiece Cakeshop, 138 S. Ct. at 1727 (noting that
exemptions from civil rights statutes must be confined or else ``a long
list of persons who provide goods and services for marriages and
weddings might refuse to do so for gay persons, thus resulting in a
community-wide stigma inconsistent with . . . civil rights laws.'').
---------------------------------------------------------------------------
I. Public and business support for Equality Act
There is strong bipartisan public support for LGBTQ
nondiscrimination protections and majority support for such
protections among every major religious denomination, yet
Congress has thus far failed to act on this public support.
According to the Public Religion Research Institute's
(``PRRI's'') 2017 American Values Atlas, 70% of Americans favor
nondiscrimination protections for LGBTQ people in employment,
housing, and public accommodations, including 35% who strongly
support them.\86\ Supporters of LGBTQ nondiscrimination
protections included 79% of Democrats, 72% of Independents, and
58% of Republicans.\87\ Similarly, a poll conducted by
Greenberg Quinlan Rosner Research and commissioned by the Human
Rights Campaign found that 65% of 2018 voters in battleground
districts supported the Equality Act.\88\
---------------------------------------------------------------------------
\86\Alex Vandermaas-Peeler, Daniel Cox, Molly Fisch-Friedman, Rob
Griffin, & Robert P. Jones, Emerging Consensus on LGBT Issues: Findings
From the 2017 American Values Atlas, Public Religion Research Institute
(May 1, 2018) available at https://www.prri.org/research/ emerging-
consensus-on-lgbt-issues-findings-from-the-2017-american-values-atlas/.
\87\Id.
\88\Greenberg Quinlan Rosner Research & Human Rights Campaign,
People Who Were
Pushed Down Push Back Post-Election Survey and Election Result
Analysis, Human
Rights Campaign (Nov. 7, 2018) available at https://assets2.hrc.org/
files/assets/
resources/HRC_2018_Post_Election_Polling.pdf?_ga=2.253357769.
1387538649.1551969720-682024502.1549305648.
---------------------------------------------------------------------------
Moreover, there is substantial support for LGBTQ
nondiscrimination protections across geographic, racial, and
religious lines. The PRRI poll found that majorities of
residents in all 50 states favored LGBTQ nondiscrimination
protections and that 75% of Asian-Pacific Islander Americans,
71% of White Americans, 69% of Hispanic Americans, and 66% of
African Americans favored such nondiscrimination
protections.\89\ In addition, the majority of followers of each
religious group that was polled expressed support for these
protections, including Unitarian Universalists (95%), Jews
(80%), Buddhists (78%), Hindus (75%), Catholics (74%), white
mainline Protestants (71%), Hispanic Catholics (70%), Orthodox
Christians (69%), Mormons (69%), black Protestants (65%),
Hispanic Protestants (59%), white evangelical Protestants
(54%), and Jehovah's Witnesses (50%).\90\ Additionally, 79% of
religiously unaffiliated Americans support nondiscrimination
protections for LGBTQ people.\91\
---------------------------------------------------------------------------
\89\Vandermaas-Peeler-et al.
\90\Id.
\91\Id.
---------------------------------------------------------------------------
In addition to general public support, the business
community also strongly supports the Equality Act. For
instance, as of this writing, more than 200 companies have
endorsed the Equality Act and are members of the Business
Coalition for the Equality Act.\92\ These companies have
operations in all 50 states, maintain headquarters in 29
states, have a combined total revenue of $4.5 trillion, and
employ more than 10.4 million people in the United States.\93\
---------------------------------------------------------------------------
\92\Human Rights Campaign, Business Coalition for the Equality Act,
May 8, 2019, available at http://assets2.hrc.org/files/assets/
resources/Keep_Updated_-_Company_List_For_Website_-
_Business_Coalition_for_Equality.pdf?_ga=2.144860787.638557940.155737513
4-916488279.1557375134.
\93\Id.
---------------------------------------------------------------------------
During the Committee's hearing on H.R. 5, Tia Silas, Vice
President and Global Chief Diversity and Inclusion Officer for
IBM, explained IBM's support for the bill and outlined IBM's
history of having LGBTQ-inclusive policies.\94\ She stressed
that diversity ``ensures differentiated innovation,'' that in
order for IBM to succeed it needs to retain the best talent,
and that discriminating against people based on their identity
is bad for business.\95\ She emphasized that the lack of
affirmative nondiscrimination protections can lead employees to
feel stress, impact their productivity, and limit where they
can safely live and work.\96\ She also testified that
businesses are not only concerned about nondiscrimination
protections in employment, but also in other key areas of
life--like housing and credit--which can impact where employees
can travel and relocate to and thrive.\97\ She also noted the
widespread business support for the bill, including from the
Business Roundtable's member companies.\98\
---------------------------------------------------------------------------
\94\Equality Act Hearing (statement of Tia Silas, Vice President
and Global Chief Diversity and Inclusion Officer, IBM).
\95\Id.
\96\Id.
\97\Id.
\98\Id.
---------------------------------------------------------------------------
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the following hearing was used to consider H.R.
5: Hearing on ``H.R. 5, the `Equality Act,''' held before the
full Committee on April 2, 2019. The witnesses were Sunu
Chandy, Legal Director, National Women's Law Center; Rev. Dr.
Dennis Wiley, Pastor Emeritus, Covenant Baptist United Church
of Christ; Carter Brown, a transgender discrimination victim;
Tia Silas, Vice President and Chief Diversity and Inclusion
Officer, IBM; Jami Contreras, a victim of sexual orientation
discrimination; Kenji Yoshino, Chief Justice Earl Warren
Professor of Constitutional Law, New York University School of
Law; Doriane Lambelet Coleman, Professor of Law, Duke Law
School; and Julia Beck, Women's Liberation Front. While the
Minority witnesses expressed concern about the potential effect
of H.R. 5 on single-sex programs and facilities, the Majority
witnesses strongly supported the legislation and explained the
vast extent of the continuing discrimination faced by LGBTQ
persons, women, and racial minorities in public accommodations,
employment, the provision of health care services, and other
areas and outlining the limited scope and reach of protections
in current law against sexual orientation and gender identity
discrimination.
Committee Consideration
On May 1, 2019, the Committee met in open session and
ordered the bill, H.R. 5, favorably reported as an amendment in
the nature of a substitute, by a rollcall vote of 22 to 10, a
quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 5:
1. An amendment by Mr. Gohmert to strike the section of the
bill prohibiting defenses or claims based on the Religious
Freedom Restoration Act to any enforcement of any of the
statutes amended by the bill was defeated by a rollcall vote of
8 to 18.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. An amendment by Mr. McClintock to add a rule of
construction providing that nothing in the Act or any amendment
made by it should be construed to require a health care
provider to affirm the gender identity of a minor was defeated
by a rollcall vote of 7 to 19.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
3. An amendment by Mr. Steube to add a rule of construction
providing that nothing in the Act or any amendment made by it
may be construed to require a biological female to face
competition from a biological male in any sporting event was
defeated by a rollcall vote of 10 to 22.
4. An amendment in the nature of a substitute by Mr. Nadler
making a series of technical revisions to the bill was agreed
to by a rollcall vote of 22 to 10.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
5. Motion to report H.R. 5, as amended, favorably was
agreed to by a vote of 22 to 10.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures.
Duplication of Federal Programs
No provision of H.R. 5 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R. 5
would amend the Civil Rights Act of 1964 and other federal
civil rights statutes to prohibit discrimination on the basis
of sexual orientation and gender identity.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title. Section 1 sets forth the short
title of the bill as the ``Equality Act.''
Section 2. Findings and Purpose. Section 2(a) sets forth
various findings about the history, nature, and prevalence of
discrimination against lesbian, gay, bisexual, transgender, and
queer (``LGBTQ'') people and discrimination against women by
places of public accommodation and by entities that receive
federal financial assistance. Section 2(b) provides that the
purpose of the Equality Act is to expand, clarify, confirm, and
create greater consistency in the anti-discrimination
protections and remedies provided for under current civil
rights statutes.
Section 3. Public Accommodations. Section 3(a) amends
section 201 of the Civil Rights Act of 1964 (``1964 Act'').
Section 201 of the 1964 Act currently prohibits discrimination
or segregation on the basis of race, color, religion, or
national origin by places of public accommodation whose
operations affect interstate commerce or where discrimination
is supported by state action. Places of public accommodation
currently include hotels, restaurants, movie theaters, concert
halls, sports arenas, stadiums, and any facilities physically
located within such places. Section 3(a)(1) of the bill would
add ``sex (including sexual orientation and gender identity)''
to the list of characteristics protected by Section 201 of the
1964 Act. Section 3(a)(2) would also strike ``stadium or other
place of exhibition or entertainment'' from the list of public
accommodations under Section 201 and replace it with ``stadium
or other place of or establishment that provides exhibition,
entertainment, recreation, exercise, amusement, public
gathering, or public display.'' It would also add to the list
of public accommodations covered by Section 201 the following
places: any establishment that provides a good, service, or
program, including a store, shopping center, online retailer or
service provider, salon, bank, gas station, food bank, service
or care center, shelter, travel agency, or funeral parlor, or
that provides health care, accounting, or legal services.
Finally, it would add any train service, bus service, car
service, taxi service, airline service, station, depot, or
other place of or establishment that provides transportation
service to the list of public accommodations covered by Section
201.
Section 3(b) of the bill amends Section 202 of the 1964
Act. Section 202 currently prohibits discrimination or
segregation of any kind at any establishment or place based on
race, color, religion, or national origin where such
discrimination or segregation is or purports to be required by
state or local law. Section 3(b) would add ``sex (including
sexual orientation and gender identity)'' to the list of
protected characteristics under Section 202 of the 1964 Act.
Section 3(c) of the bill would amend Title II of the 1964
Act (governing public accommodations) to add a new Section 208
setting forth a rule of construction. The rule of construction
would provide that a reference to an ``establishment'' in Title
II must be construed to ``include an individual whose
operations affect commerce and who is a provider of a good,
service, or program'' and must not be construed ``to be limited
to a physical facility or place.'' The purpose of this rule of
construction is to clarify that public accommodations include
non-physical providers of goods and services, like online-only
businesses.
Section 4. Desegregation of Public Facilities. Section 4 of
the bill amends Section 301(a) of the 1964 Act. Section 301(a)
currently authorizes the Attorney General to initiate a civil
action against any appropriate parties and for any appropriate
relief when: (1) the Attorney General receives a complaint from
an individual that the individual is being deprived of or
threatened with the loss of his right to equal protection of
the laws on account of the individual's race, color, religion,
or national origin; (2) by a facility owned by a state or one
of its subdivisions, other than a public school or public
college; (3) the Attorney General believes that the complaint
is meritorious and certifies that the person complaining of the
deprivation is unable to initiate and maintain appropriate
legal proceedings; and (4) the institution of a civil action by
the Attorney General would ``materially further the orderly
progress of desegregation of public facilities.'' Section 4 of
the bill would add ``sex (including sexual orientation and
gender identity)'' to the list of bases for discrimination that
would trigger this litigation authority under Section 301(a) of
the 1964 Act.
Section 5. Desegregation of Public Education. Section 5(a)
amends the definition of ``desegregation'' contained in Section
401(b) of the 1964 Act, which defines the term for purposes of
Title IV of the Act (covering discrimination in public
education). Section 401(b) defines ``desegregation'' to mean
``the assignment of students to public schools and within such
schools without regard to their race, color, religion, sex or
national origin, but `desegregation' shall not mean the
assignment of students to public schools in order to overcome
racial imbalance.'' Section 5 of the bill would add
``(including sexual orientation and gender identity)'' before
``or national origin.''
Section 5(b) amends Section 407(a) of the 1964 Act. Section
407(a) authorizes the Attorney General to pursue a civil action
when, among other things, he or she receives a written
complaint ``signed by an individual, or his parent, to the
effect that he has been denied admission to or not permitted to
continue in attendance at a public college by reason of race,
color, religion, sex or national origin.'' Section 5(b) would
add ``(including sexual orientation and gender identity)''
before ``or national origin.''
Finally, Section 5(c) amends Section 410 of the 1964 Act.
Section 410 provides that nothing in Title IV of the Act
``shall prohibit classification and assignment for reasons
other than race, color, religion, sex or national origin.''
Section 5(c) would add ``(including sexual orientation and
gender identity)'' before ``or national origin.''
Section 6. Federal Funding. Section 6 amends Section 601 of
the 1964 Act. Section 601 prohibits discrimination under,
exclusion from, participation in, or denial of the benefits of
any program or activity that receives federal funding on the
ground of race, color, or national origin. Section 6 of the
bill would add ``sex (including sexual orientation and gender
identity)'' to the list of protected characteristics.
Section 7. Employment. Section 7 makes a number of
amendments to Title VII of the 1964 Act, which governs
employment discrimination. Section 7(a) provides that the rules
of construction added to the 1964 Act by Section 9(3) of the
bill apply to Title VII, except that references in those rules
to an ``unlawful practice'' should be considered references to
an ``unlawful employment practice.''
Section 7(b) amends section 703 of the 1964 Act. Section
703 outlaws employment discrimination on the basis of ``race,
color, religion, sex, or national origin.'' Section 7(b) would
replace references to ``sex'' with references to ``sex
(including sexual orientation and gender identity).'' It also
amends Section 703(e)(1). Section 703(e)(1) is an exception to
the general prohibition on employment discrimination on the
basis of religion, sex, or national origin for those instances
where religion, sex, or national origin ``is a bona fide
occupational qualification reasonably necessary to the normal
operation of that particular business or enterprise . . . .''
Section 7(b) of the bill would add after ``enterprise'' the
clarification that this exception applies only if ``in a
situation in which sex is a bona fide occupational
qualification, individuals are recognized as qualified in
accordance with their gender identity.'' For example, if it
were a bona fide occupational qualification for a position that
the employee or applicant be a woman, the employer would be
allowed to discriminate against men but could not discriminate
against a transgender woman.
Section 7(c) of the bill amends Section 704(b) of the 1964
Act. Section 704(b) makes it an unlawful employment practice
for ``an employer, labor organization, employment agency, or
joint labor-management committee controlling apprenticeship or
other training or retraining'' to print or publish or cause to
be printed or published any notice or advertisement relating to
employment or membership indicating any preference, limitation,
specification, or discrimination based on race, color,
religion, sex, or national origin. Section 704(b) also makes an
exception for situations when religion, sex, or national origin
is a bona fide occupational qualification for employment.
Section 7(c) of the bill explicitly clarifies that the
prohibition on sex discrimination in this context includes
sexual orientation and gender identity. It also clarifies that,
with respect to the ``bona fide occupation qualification''
exception, ``sex'' can constitute a bona fide occupational
qualification only where individuals are recognized as
qualified in accordance with their gender identity.
Section 7(d) of the bill amends Section 706(g)(2)(A) of the
1964 Act. Section 706(g)(2)(A) provides that no court order may
``require the admission or reinstatement of an individual as a
member of a union, or the hiring, reinstatement, or promotion
of an individual as an employee, or the payment to him of any
back pay, if such individual was refused admission, suspended,
or expelled, or was refused employment or advancement or was
suspended or discharged for any reason other than
discrimination on account of race, color, religion, sex, or
national origin or'' in retaliation for opposing an employment
practice that is unlawful under Title VII. Section 7(d)
clarifies that ``sex'' as used in this provision includes
sexual orientation and gender identity.
Section 7(e) amends Section 717 of the 1964 Act. Section
717, among other things, makes it unlawful for the federal
government to discriminate in employment decisions based on
race, color, religion, sex, or national origin. Section 7(e)
clarifies that ``sex'' as used in this provision includes
sexual orientation and gender identity.
Section 7(f) amends the Government Employee Rights Act of
1991 (``GERA''). The GERA prohibits discrimination against
presidential appointees and certain other government officials
based on, among other things, race, color, religion, sex, or
national origin. Section 7(f) clarifies that ``sex'' as used in
this Act includes sexual orientation and gender identity. It
also adds at the end a provision applying to the Act by cross-
reference the rules of construction and the provision
prohibiting the Religious Freedom Restoration Act (``RFRA'') to
be used as a basis for a claim or defense against enforcement
of the civil rights statutes amended by H.R. 5 that were added
to the 1964 Act by Section 9 of the bill, except that a
reference to the protected classes in those provisions also
includes age and disability as protected characteristics under
the GERA.
Section 7(g) amends the Congressional Accountability Act of
1995 (``CAA''). The CAA applied various labor and employment
laws to Congress, including the employment discrimination
prohibitions under Title VII of the 1964 Act. Section 7(g)(1)
clarifies that the prohibition on sex discrimination includes
prohibitions on discrimination based on sexual orientation and
gender identity. Section 7(g)(2) adds a provision applying to
the Act by cross-reference the rules of construction and the
RFRA-related provision that were added to the 1964 Act by
Section 9 of the bill, except that a reference to the protected
classes in those provisions also includes age and disability as
protected characteristics under the CAA.
Section 7(h) amends the Civil Service Reform Act of 1978
(``CSRA''). The CSRA generally establishes various rules and
procedures governing the federal civil service. Section
2301(b)(2) of the Act provides that ``All employees and
applicants for employment should receive fair and equitable
treatment in all aspects of personnel management without regard
to political affiliation, race, color, religion, national
origin, sex, marital status, age, or handicapping condition,
and with proper regard for their privacy and constitutional
rights.'' Section 7(h)(1) would explicitly clarify that ``sex''
as used in this provision includes sexual orientation and
gender identity. Section 7(h)(2) would make a similar
clarification in Section 2302(b)(1)(A) of the Act, which
prohibits a supervisory employee from discriminating against a
subordinate on the basis of race, color, religion, sex, or
national origin, and to Section 2303(d)(1) of the CSRA, which
provides that the Act does not diminish, among other things,
any right or remedy under Title VII of the 1964 Act. Finally,
Section 7(h)(3) of the bill adds a provision applying to the
CSRA by cross-reference the rules of construction and the RFRA-
related provision that were added to the 1964 Act by Section 9
of the bill, except that a reference to the protected classes
in those provisions also includes age, a ``handicapping
condition,'' marital status, and political affiliation as
protected characteristics under the CSRA.
Section 8. Intervention. Section 8 of the bill amends
Section 902 of the 1964 Act. Section 902 authorizes the
Attorney General to intervene in any civil action ``seeking
relief from the denial of equal protection of the laws under
the fourteenth amendment to the Constitution on account of
race, color, religion, sex or national origin'' where the
Attorney General certifies that the case is of general public
importance. Section 8 would expressly clarify that ``sex'' as
used in this provision includes sexual orientation and gender
identity.
Section 9. Miscellaneous. Section 9 of the bill amends
Title XI of the 1964 Act. Title XI contains miscellaneous
provisions of the Act, including provisions governing criminal
contempt, providing the Attorney General with authority to
intervene in cases under certain circumstances, rules of
construction, and authorization of appropriations. Section 9(1)
of the bill re-designates Sections 1101 through 1104 and
sections 1105 and 1106 of the 1964 Act as Sections 1102 through
1105 and 1108 and 1109, respectively.
Section 9(2) creates a new Section 1101 of the 1964 Act.
New Section 1101(a) would provide definitions for certain terms
used in Titles II, III, IV, VI, VII, and IX of the 1964 Act,
referred to collectively as the ``covered titles.'' New Section
1101(a)(1) defines ``race, color, religion, sex (including
sexual orientation and gender identity), or national origin'',
when used with respect to an individual, to include (A) the
race, color, religion, sex (including sexual orientation and
gender identity), or national origin, respectively, of another
person with whom the individual is or has been associated and
(B) a perception or belief, even if inaccurate, concerning the
race, color, religion, sex (including sexual orientation and
gender identity), or national origin, respectively, of the
individual. These changes comport the statute with the
reasoning of judicial and administrative decisions finding that
associational discrimination and discrimination based on
perceived protected characteristics can constitute unlawful
discrimination under the 1964 Act.
New Section 1101(a)(2) defines ``gender identity'' to mean
``the gender-related identity, appearance, mannerisms, or other
gender-related characteristics of an individual, regardless of
the individual's designated sex at birth.''
New Section 1101(a)(3) defines ``including'' to mean
``including, but not limited to,'' consistent with the term's
standard meaning in federal law.
New Section 1101(a)(4) defines ``sex'' to include: (A) a
sex stereotype; (B) pregnancy, childbirth, or a related medical
condition; (C) sexual orientation or gender identity; and (D)
sex characteristics, including intersex traits. This definition
conforms the statute with judicial and administrative decisions
interpreting portions of the 1964 Act in this manner.
New Section 1101(a)(5) defines ``sexual orientation'' to
mean ``homosexuality, heterosexuality, or bisexuality.''
New Section 1101(b)(1) provides that, with respect to any
of the covered titles of the 1964 Act, pregnancy, childbirth,
or a related medical condition may not receive less favorable
treatment than other physical conditions when considering a
claim of sex-based discrimination.
New Section 1101(b)(2) prohibits an individual from being
denied access to a ``shared facility,'' including a restroom, a
locker room, and a dressing room, that is in accordance with
the person's gender identity.
Section 9(3) of the bill creates new Sections 1106 and 1107
of the 1964 Act. New Section 1106(a) provides a rule of
construction specifying that nothing in the definitions of the
Act or in any covered title shall be construed to either limit
the protection against employment discrimination on the basis
of pregnancy, childbirth, or a related medical or any other
protection against sex discrimination under any other provision
of federal law.
New Section 1106(b) provides that nothing in the Act's
definitions or in any covered title shall be construed to limit
claims or remedies available to an individual for
discrimination based on race, color, religion, sex (including
sexual orientation and gender identity), or national origin
under any other law, regulation, or policy.
New Section 1106(c) provides that nothing in the Act's
definitions or in any covered title shall be construed to
support an inference that any federal law prohibiting sex
discrimination does not also prohibit discrimination on the
basis of pregnancy, childbirth, or a related medical condition,
sexual orientation, gender identity, or a sex stereotype.
New Section 1107 provides an exception to RFRA. RFRA
provides that, in order to survive a legal challenge,
government action that places a substantial burden on the free
exercise of religion must serve a compelling government
interest and be the least restrictive means available to serve
that interest. New Section 1107 states that RFRA shall not
provide a claim or defense or a basis for challenging the
application or enforcement of a covered title under the 1964
Act.
Section 10. Housing. Section 10 of the bill amends the Fair
Housing Act. Section 10(a) amends Section 802 of the Act, which
contains definitions for terms used in the Act. Section
10(a)(1) would add definitions for ``gender identity,''
``sex,'' and ``sexual orientation'' through a cross-reference
to the definitions of those terms provided in new Section
1101(a) of the 1964 Act (added by Section 9(2) of the bill).
Section 10(a)(1) also adds a clarifying definition for ``race,
color, religion, sex (including sexual orientation and gender
identity), handicap, familial status, or national origin'' to
provide that these terms, when used with respect to an
individual, include: (1) the race, color, religion, sex
(including sexual orientation and gender identity), handicap,
familial status, or national origin, respectively, of another
person with whom the individual is or has been associated; or
(2) a perception or belief concerning the individual's race,
color, religion, sex (including sexual orientation and gender
identity), handicap, familial status, or national origin.
Section 10(a)(2) of the bill amends Section 804 of the Fair
Housing Act. Section 804 prohibits discrimination on the basis
of race, color, religion, sex, familial status, or national
origin in the sale or rental of housing. Section 10(a)(2) would
make clear that sex discrimination in this context includes
discrimination based on sexual orientation or gender identity
by inserting ``(including sexual orientation and gender
identity)'' after ``sex'' in every place that term appears in
Section 804.
Section 10(a)(3) of the bill amends Section 805 of the Fair
Housing Act. Section 805 prohibits discrimination on the basis
of race, color, religion, sex, handicap, familial status, or
national origin in real estate-related transactions. Section
10(a)(3) would make clear that sex discrimination in this
context includes discrimination based on sexual orientation or
gender identity by inserting ``(including sexual orientation
and gender identity)'' after ``sex'' in every place that term
appears in Section 805.
Section 10(a)(4) of the bill amends Section 806 of the Fair
Housing Act. Section 806 prohibits discrimination on the basis
of race, color, religion, sex, handicap, familial status, or
national origin in the provision of brokerage services. Section
10(a)(4) would make clear that sex discrimination in this
context includes discrimination on the basis of sexual
orientation or gender identity by inserting ``(including sexual
orientation and gender identity'' after ``sex.''
Section 10(a)(5) of the bill amends Section 808(e)(6) of
the Fair Housing Act. Section 808(e)(6) requires the Secretary
of Housing and Urban Development to issue a report to Congress
and the public providing ``data on the race, color, religion,
sex, national origin, age, handicap, and family
characteristics'' of persons and households who are applicants
for, participants in, or beneficiaries or potential
beneficiaries of, programs administered by the Department of
Housing and Urban Development. Section 10(a)(5) amends this
provision by adding ``(including sexual orientation and gender
identity)'' after ``sex.''
Section 10(a)(6) adds at the end of the Fair Housing Act
new Sections 821 and 822. New Section 821 adds to the Fair
Housing Act and Section 901 of the Civil Rights Act of 1968
(which provides criminal penalties for certain acts of
discrimination with respect to housing) by cross-reference the
rules of construction added to the 1964 Act by Sections 9(2)
and 9(3) of the bill, except that references to a ``covered
title'' in those provisions would refer instead to the Fair
Housing Act and Section 901. Similarly, Section 10(a)(6) would
also add a new Section 822, which would add to the Fair Housing
Act and Section 901 by cross-reference the RFRA-related
provision added to the 1964 Act by Section 9(3) of the bill),
except that the Fair Housing Act and Section 901 would be the
``covered title'' for purposes of this section.
Section 10(b) amends Section 901 of the Civil Rights Act of
1968. Section 901 provides for criminal penalties for any
person who, among other things, by force or threat of force,
willfully injures, intimidates or interferes with, or attempts
to injure, intimidate or interfere with any person because he
or she is, or is engaged in activities related to, selling,
purchasing, or renting housing, because of his race, color,
religion, sex, handicap, familial status, or national origin.
Section 10(b) inserts ``(including sexual orientation (as such
term is defined in section 802 of this Act) and gender identity
(as such term is defined in section 802 of this Act))'' after
``sex'' in each place that term appears in Section 901.
Section 11. Equal Credit Opportunity. Section 11(a) of the
bill amends Section 701(a)(1) of the Equal Credit Opportunity
Act (``ECOA''). Section 701(a)(1) prohibits a creditor from
discriminating against a credit applicant ``on the basis of
race, color, religion, national origin, sex or marital status,
or age (provided the applicant has the capacity to contract).''
Section 11(a) inserts ``(including sexual orientation and
gender identity)'' after ``sex'' in Section 701(a)(1).
Section 11(b) amends Section 702 of ECOA, which contains
the definitions for certain terms as used in the Act. Section
11(b) would add a provision defining ``gender identity,''
``sex,'' and ``sexual orientation'' with a cross reference to
the definitions of these terms in Section 1101(a) of the 1964
Act (as added by Section 9(2) of the bill.) Similarly, it would
add a provision to Section 702 clarifying that the terms
``race, color, religion, national origin, sex (including sexual
orientation and gender identity), marital status, or age,'' as
used with respect to an individual, includes these respective
characteristics as to another person with whom the individual
is or has been associated and any perception or belief, even if
inaccurate, regarding the individual's race, color, religion,
national origin, sex, marital status, or age. Finally, Section
11(b) would add at the end of Section 702 a provision applying
the rules outlined in Section 1101(b) (concerning pregnancy and
childbirth, gender identity and shared facilities) and the
rules of construction in Section 1106 of the 1964 Act (as added
by Sections 9(2) and 9(3) of the bill) apply to ECOA, except
that references to a ``covered title'' would refer to ECOA and
that 1101(b) would apply to all aspects of a credit
transaction.
Section 11(c) amends Section 705(a) of ECOA. Section 705(a)
provides that ``A request for the signature of both parties to
a marriage for the purpose of creating a valid lien, passing
clear title, waiving inchoate rights to property, or assigning
earnings, shall not constitute discrimination under this
subchapter: Provided, however, That this provision shall not be
construed to permit a creditor to take sex or marital status
into account in connection with the evaluation of
creditworthiness of any applicant.'' Section 11(c) would insert
``(including sexual orientation and gender identity)'' after
``sex.''
Section 11(d) amends Section 706 of ECOA. Section 706
governs private rights of action to enforce ECOA. Section 11(d)
would add at the end a new subparagraph (l) providing that the
RFRA-related provision contained in Section 1107 of the 1964
Act (added by Section 9(3) of the bill) applies, except that
its reference to a ``covered title'' would be considered a
reference to ECOA.
Section 12. Juries. Section 12 of the bill amends various
provisions of Chapter 121 of Title 28 of the United States
Code, which outlines jury-related requirements for federal
courts. Section 12(a)(1) amends 28 U.S.C. Sec. 1862, which
prohibits discrimination against citizens from serving on
federal juries ``on account of race, color, religion, sex,
national origin, or economic status.'' Section 12(a)(1) inserts
``(including sexual orientation and gender identity)'' after
``sex.''
Section 12(a)(2) amends 28 U.S.C. Sec. 1867(e), which
provides that the procedures outlined in Section 1867 shall be
the exclusive procedures for challenging juror selection in
federal court. The second sentence of Section 1867(e) clarifies
that nothing ``in this section shall preclude any person or the
United States from pursuing any other remedy, civil or
criminal, which may be available for the vindication or
enforcement of any law prohibiting discrimination on account of
race, color, religion, sex, national origin or economic status
in the selection of persons for service on grand or petit
juries.'' Section 12(a)(2) inserts ``(including sexual
orientation and gender identity)'' after ``sex.''
Section 12(a)(3) amends 28 U.S.C. Sec. 1869, which defines
certain terms used in jury-related provisions of the United
States Code. Section 12(a)(3) adds by cross reference to
Section 1101(a) of the 1964 Act (as added by Section 9 of the
bill) definitions of ``gender identity,'' ``sex,'' and ``sexual
orientation.'' It also provides that ``race, color, religion,
sex (including sexual orientation and gender identity),
economic status, or national origin, as applied to an
individual, includes'' these characteristics with respect to
another person who is or has been associated with the
individual and the perception or belief, even if inaccurate, of
the individuals race, color, religion, sex (including sexual
orientation and gender identity), economic status, or national
origin.
Section 12(a)(4) adds at the end of Chapter 121 of Title 28
a new Section 1879 that applies the pregnancy and gender
identity-related rules of construction and RFRA-related
provision outlined in Sections 1101(b), 1106, and 1107 of the
1964 Act (as added by Section 9 of the bill), except that
references to ``covered title'' in those sections are to be
considered references to Chapter 121.
Finally, Section 12(b) of the bill makes technical and
conforming amendments to the table of sections for Chapter 121
of Title 28.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 5, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
CIVIL RIGHTS ACT OF 1964
* * * * * * *
TITLE II--INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC
ACCOMMODATION
Sec. 201. (a) All persons shall be entitled to the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public
accommodation, as defined in this section, without
discrimination or segregation on the ground of race, color,
religion, sex (including sexual orientation and gender
identity), or national origin.
(b) Each of the following establishments which serves the
public is a place of public accommodation within the meaning of
this title if its operations affect commerce, or if
discrimination or segregation by it is supported by State
action:
(1) any inn, hotel, motel, or other establishment
which provides lodging to transient guests, other than
an establishment located within a building which
contains not more than five rooms for rent or hire and
which is actually occupied by the proprietor of such
establishment as his residence;
(2) any restaurant cafeteria, lunchroom, lunch
counter, soda fountain, other facility principally
engaged in selling food for consumption on the
premises, including but not limited to, any such
facility located on the premises of any retail
establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall,
sports arena, [stadium or other place exhibition or
entertainment; and] stadium or other place of or
establishment that provides exhibition, entertainment,
recreation, exercise, amusement, public gathering, or
public display;
(4) any establishment that provides a good, service,
or program, including a store, shopping center, online
retailer or service provider, salon, bank, gas station,
food bank, service or care center, shelter, travel
agency, or funeral parlor, or establishment that
provides health care, accounting, or legal services;
(5) any train service, bus service, car service, taxi
service, airline service, station, depot, or other
place of or establishment that provides transportation
service; and
[(4)] (6) any establishment (A)(i) which is
physically located within the premises of any
establishment otherwise covered by this subsection, or
(ii) within the premises of which is physically located
any such covered establishment, and (B) which holds
itself out as serving patrons of such covered
establishment.
(c) The operations of an establishment affect commerce within
the meaning of this title if (1) it is one of the
establishments described in paragraph (1) of subsection (b);
(2) in the case of an establishment described in paragraph (2)
of subsection (b), it serves or offers to serve interstate
travelers or a substantial portion of the food which it serves,
or gasoline or other products which it sells, has moved in
commerce; (3) in the case of an establishment described in
paragraph (3) of subsection (b), it customarily presents films,
performances, athletic teams, exhibitions, or other sources of
entertainment which move in commerce; and (4) in the case of an
establishment described in paragraph (4) of subsection (b), it
is physically located within the premises of, or there is
physically located within its premises, and establishment the
operations of which affect commerce within the meaning of this
subsection. For purposes of this section, ``commerce'' means
travel, trade, traffic, commerce, transportation, or
communication among the several States, or between the District
of Columbia and any State, or between any foreign country or
any territory or possession and any State or the District of
Columbia, or between points in the same State but through any
other State or the District of Columbia or a foreign country.
(d) Discrimination or segregation by an establishment is
supported by State action within the meaning of this title if
such discrimination or segregation (1) is carried on under
color of any law, statute, ordinance, or regulation; or (2) is
carried on under color of any custom or usage required or
enforced by officials of the State or political subdivision
thereof; or (3) is required by action of the State or political
subdivision thereof.
(e) The provisions of this title shall not apply to private
club or other establishment not in fact open to the public,
except to the extent that the facilities of such establishment
are made available to the customers or patrons of an
establishment within the scope of subsection (b).
Sec. 202. All persons shall be entitled to be free, at any
establishment or place, from discrimination or segregation of
any kind on the ground of race, color, religion, sex (including
sexual orientation and gender identity), or national origin, if
such discrimination or segregation is or purports to be
required by any law, statute, ordinance, regulation, rule, or
order of a State or any agency or political subdivision
thereof.
* * * * * * *
SEC. 208. RULE OF CONSTRUCTION.
A reference in this title to an establishment--
(1) shall be construed to include an individual whose
operations affect commerce and who is a provider of a
good, service, or program; and
(2) shall not be construed to be limited to a
physical facility or place.
TITLE III--DESEGREGATION OF PUBLIC FACILITIES
Sec. 301. (a) Whenever the Attorney General receives a
complaint in writing signed by an individual to the effect that
he is being deprived of or threatened with the loss of his
right to the equal protection of the laws, on account of his
race, color, religion, sex (including sexual orientation and
gender identity), or national origin, by being denied equal
utilization of any public facility, which is owned, operated,
or managed by or on behalf of any State or subdivision thereof,
other than a public school or public college as defined in
section 401 of title IV hereof, and the Attorney General
believes the complaint is meritorious and certifies that the
signer or signers of such complaint are unable, in his
judgment, to initiate and maintain appropriate legal
proceedings for relief and that the institution of an action
will materially further the orderly progress of desegregation
in public facilities, the Attorney General is authorized to
institute for or in the name of the United States a civil
action in any appropriate district court of the United States
against such parties and for such relief as may be appropriate,
and such court shall have and shall exercise jurisdiction of
proceedings instituted pursuant to this section. The Attorney
General may implead as defendants such additional parties as
are or become necessary to the grant of effective relief
hereunder.
(b) The Attorney General may deem a person or persons unable
to initiate and maintain appropriate legal proceedings within
the meaning of subsection (a) of this section when such person
or persons are unable, either directly or through other
interested persons or organizations, to bear the expense of the
litigation or to obtain effective legal representation; or
whenever he is satisfied that the institution of such
litigation would jeopardize the personal safety, employment, or
economic standing of such person or persons, their families, or
their property.
* * * * * * *
TITLE IV--DESEGREGATION OF PUBLIC EDUCATION
definitions
Sec. 401. As used in this title--
(a) ``Commissioner'' means the Commissioner of Education.
(b) ``Desegregation'' means the assignment of students to
public schools and within such schools without regard to their
race, color, religion, sex (including sexual orientation and
gender identity), or national origin, but ``desegregation''
shall not mean the assignment of students to public schools in
order to overcome racial imbalance.
(c) ``Public school'' means any elementary or secondary
educational institution, and ``public college'' means any
institution of higher education or any technical or vocational
school above the secondary school level, provided that such
public school or public college is operated by a State,
subdivision of a State, or governmental agency within a State,
or operated wholly or predominantly from or through the use of
governmental funds or property, or funds or property derived
from a governmental source.
(d) ``School board'' means any agency or agencies which
administer a system of one or more public schools and any other
agency which is responsible for the assignment of students to
or within such system.
* * * * * * *
suits by the attorney general
Sec. 407. (a) Whenever the Attorney General receives a
complaint in writing--
(1) signed by a parent or group of parents to the
effect that his or their minor children, as members of
a class of persons similarly situated, are being
deprived by a school board of the equal protection of
the laws, or
(2) signed by an individual, or his parent, to the
effect that he has been denied admission to or not
permitted to continue in attendance at a public college
by reason or race, color, religion, sex (including
sexual orientation and gender identity), or national
origin,
and the Attorney General believes the complaint is meritorious
and certifies that the signer or signers of such complaint are
unable, in his judgment, to initiate and maintain appropriate
legal proceedings for relief and that the institution of an
action will materially further the orderly achievement of
desegregation in public education, the Attorney General is
authorized, after giving notice of such complaint to the
appropriate school board or college authority and after
certifying that he is satisfied that such board or authority
has had a reasonable time to adjust the conditions alleged in
such complaint, to institute for or in the name of the United
States a civil action in any appropriate district court of the
United States against such parties and for such relief as may
be appropriate, and such court shall have and shall exercise
jurisdiction of proceedings instituted pursuant to this
section, provided that nothing herein shall empower any
official or court of the United States to issue any order
seeking to achieve a racial balance in any school by requiring
the transportation of pupils or students from one school to
another or one school district to another in order to achieve
such racial balance, or otherwise enlarge the existing power of
the court to insure compliance with constitutional standards.
The Attorney General may implead as defendants such additional
parties as are or become necessary to the grant of effective
relief hereunder.
(b) The Attorney General may deem a person or persons unable
to initiate and maintain appropriate legal proceedings within
the meaning of subsection (a) of this section when such person
or persons are unable, either directly or through other
interested persons or organizations, to bear the expense of the
litigation or to obtain effective legal representation; or
whenever he is satisfied that the institution of such
litigation would jeopardize the personal safety, employment, or
economic standing of such person or persons, their families, or
their property.
(c) The term ``parent'' as used in this section includes any
person standing in loco parentis. A ``complaint'' as used in
this section is a writing or document within the meaning of
section 1001, title 18, United States Code.
* * * * * * *
Sec. 410. Nothing in this title shall prohibit classification
and assignment for reasons other than race, color, religion,
sex (including sexual orientation and gender identity), or
national origin.
* * * * * * *
TITLE VI--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
Sec. 601. No person in the United States shall, on the ground
of race, color, sex (including sexual orientation and gender
identity), or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to,
discrimination under any program or activity receiving Federal
financial assistance.
* * * * * * *
TITLE VII--EQUAL EMPLOYMENT OPPORTUNITY
* * * * * * *
SEC. 701A. RULES OF CONSTRUCTION.
Section 1106 shall apply to this title except that for
purposes of that application, a reference in that section to an
``unlawful practice'' shall be considered to be a reference to
an ``unlawful employment practice''.
* * * * * * *
discrimination because of race, color, religion, [sex,] sex (including
sexual orientation and gender identity), or national origin
Sec. 703. (a) It shall be an unlawful employment practice for
an employer--
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, [sex,] sex
(including sexual orientation and gender identity), or
national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status
as an employee, because of such individual's race,
color, religion, [sex,] sex (including sexual
orientation and gender identity), or national origin.
(b) It shall be an unlawful employment practice for an
employment agency to fail or refuse to refer for employment, or
otherwise discriminate against, any individual because of his
race, color, religion, [sex,] sex (including sexual orientation
and gender identity), or national origin, or to classify or
refer for employment any individual on the basis of his race,
color, religion, [sex,] sex (including sexual orientation and
gender identity), or national origin.
(c) It shall be an unlawful employment practice for a labor
organization--
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual
because of his race, color, religion, [sex,] sex
(including sexual orientation and gender identity), or
national origin;
(2) to limit, segregate, or classify its membership
or applicants for membership, or to classify or fail or
refuse to refer for employment any individual, in any
way which would deprive or tend to deprive any
individual of employment opportunities, or would limit
such employment opportunities or otherwise adversely
affect his status as an employee or as an applicant for
employment, because of such individual's race, color
religion, [sex,] sex (including sexual orientation and
gender identity), or national origin; or
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.
(d) It shall be an unlawful employment practice for any
employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or
retraining, including on-the-job training programs to
discriminate against any individual because of his race, color,
religion, [sex,] sex (including sexual orientation and gender
identity), or national origin in admission to, or employment
in, any program established to provide apprenticeship or other
training.
(e) Notwithstanding any other provision of this title, (1) it
shall not be an unlawful employment practice for an employer to
hire and employ employees, for an employment agency to
classify, or refer for employment any individual, for a labor
organization to classify its membership or to classify or refer
for employment any individual, or for an employer, labor
organization, or joint labor-management committee controlling
apprenticeship or other training or retraining programs to
admit or employ any individual in any such program, on the
basis of his religion, sex, or national origin in those certain
instances where religion, sex, or national origin is a bona
fide occupational qualification reasonably necessary to the
normal operation of that particular business or [enterprise,]
enterprise, if, in a situation in which sex is a bona fide
occupational qualification, individuals are recognized as
qualified in accordance with their gender identity, and (2) it
shall not be an unlawful employment practice for a school,
college, university, or other educational institution or
institution of learning to hire and employ employees of a
particular religion if such school, college, university, or
other educational institution or institution of learning is, in
whole or in substantial part, owned, supported, controlled, or
managed by a particular religion or by a particular religious
corporation, association, or society, or if the curriculum of
such school, college, university, or other educational
institution or institution of learning is directed toward the
propagation of a particular religion.
(f) As used in this title, the phrase ``unlawful employment
practice'' shall not be deemed to include any action or measure
taken by any employer, labor organization, joint labor-
management committee, or employment agency with respect to an
individual who is a member of the Communist Party of the United
States or of any other organization required to register as a
Communist-action or Communist-front organization by final order
of the Subversive Activities Control Board pursuant to the
Subversive Activities Control Act of 1950.
(g) Notwithstanding any other provision of this title, it
shall not be an unlawful employment practice for an employer to
fail or refuse to hire and employ any individual for any
position, for an employer to discharge any individual from any
position, or for an employment agency to fail or refuse to
refer any individual for employment in any position, or for a
labor organization to fail or refuse to refer any individual
for employment in any position, if--
(1) the occupancy of such position, or access to the
premises in or upon which any part of the duties of
such position is performed or is to be performed, is
subject to any requirement imposed in the interest of
the national security of the United States under any
security program in effect pursuant to or administered
under any statute of the United States or any Executive
order of the President; and
(2) such individual has not fulfilled or has ceased
to fulfill that requirement.
(h) Notwithstanding any other provision of this title, it
shall not be an unlawful employment practice for an employer to
apply different standards of compensation, or different terms,
conditions, or privileges of employment pursuant to a bona fide
seniority or merit system, or a system which measures earnings
by quantity or quality of production or to employees who work
in different locations, provided that such differences are not
the result of an intention to discriminate because of race,
color, religion, [sex,] sex (including sexual orientation and
gender identity), or national origin, nor shall it be an
unlawful employment practice for an employer to give and to act
upon the results of any professionally developed ability test
provided that such test, its administration or action upon the
results is not designed, intended or used to discriminate
because of race, color, religion, sex or national origin. It
shall not be an unlawful employment practice under this title
for any employer to differentiate upon the basis of sex in
determining the amount of the wages or compensation paid or to
be paid to employees of such employer if such differentiation
is authorized by the provisions of section 6(d) of the Fair
Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)).
(i) Nothing contained in this title shall apply to any
business or enterprise on or near an Indian reservation with
respect to any publicly announced employment practice of such
business or enterprise under which a preferential treatment is
given to any individual because he is an Indian living on or
near a reservation.
(j) Nothing contained in this title shall be interpreted to
require any employer, employment agency, labor organization, or
joint labor-management committee subject to this title to grant
preferential treatment to any individual or to any group
because of the race, color, religion, [sex,] sex (including
sexual orientation and gender identity), or national origin of
such individual or group on account of an imbalance which may
exist with respect to the total number or percentage of persons
of any race, color, religion, [sex,] sex (including sexual
orientation and gender identity), or national origin employed
by any employer, referred or classified for employment by any
employment agency or labor organization, admitted to membership
or classified by any labor organization, or admitted to, or
employed in, any apprenticeship or other training program, in
comparison with the total number or percentage of persons of
such race, color, religion, [sex,] sex (including sexual
orientation and gender identity), or national origin in any
community, State, section, or other area, or in the available
work force in any community, State, section, or other area.
(k)(1)(A) An unlawful employment practice based on disparate
impact is established under this title only if--
(i) a complaining party demonstrates that a
respondent uses a particular employment practice that
causes a disparate impact on the basis of race, color,
religion, [sex,] sex (including sexual orientation and
gender identity), or national origin and the respondent
fails to demonstrate that the challenged practice is
job related for the position in question and consistent
with business necessity; or
(ii) the complaining party makes the demonstration
described in subparagraph (C) with respect to an
alternative employment practice and the respondent
refuses to adopt such alternative employment practice.
(B)(i) With respect to demonstrating that a particular
employment practice causes a disparate impact as described in
subparagraph (A)(i), the complaining party shall demonstrate
that each particular challenged employment practice causes a
disparate impact, except that if the complaining party can
demonstrate to the court that the elements of a respondent's
decisionmaking process are not capable of separation for
analysis, the decisionmaking process may be analyzed as one
employment practice.
(ii) If the respondent demonstrates that a specific
employment practice does not cause the disparate impact, the
respondent shall not be required to demonstrate that such
practice is required by business necessity.
(C) The demonstration referred to by subparagraph (A)(ii)
shall be in accordance with the law as it existed on June 4,
1989, with respect to the concept of ``alternative employment
practice''.
(2) A demonstration that an employment practice is required
by business necessity may not be used as a defense against a
claim of intentional discrimination under this title.
(3) Notwithstanding any other provision of this title, a rule
barring the employment of an individual who currently and
knowingly uses or possesses a controlled substance, as defined
in schedules I and II of section 102(6) of the Controlled
Substances Act (21 U.S.C. 802(6)), other than the use or
possession of a drug taken under the supervision of a licensed
health care professional, or any other use or possession
authorized by the Controlled Substances Act or any other
provision of Federal law, shall be considered an unlawful
employment practice under this title only if such rule is
adopted or applied with an intent to discriminate because of
race, color, religion, [sex,] sex (including sexual orientation
and gender identity), or national origin.
(l) It shall be an unlawful employment practice for a
respondent, in connection with the selection or referral of
applicants or candidates for employment or promotion, to adjust
the scores of, use different cutoff scores for, or otherwise
alter the results of, employment related tests on the basis of
race, color, religion, [sex,] sex (including sexual orientation
and gender identity), or national origin.
(m) Except as otherwise provided in this title, an unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, [sex,] sex (including
sexual orientation and gender identity), or national origin was
a motivating factor for any employment practice, even though
other factors also motivated the practice.
(n)(1)(A) Notwithstanding any other provision of law, and
except as provided in paragraph (2), an employment practice
that implements and is within the scope of a litigated or
consent judgment or order that resolves a claim of employment
discrimination under the Constitution or Federal civil rights
laws may not be challenged under the circumstances described in
subparagraph (B).
(B) A practice described in subparagraph (A) may not be
challenged in a claim under the Constitution or Federal civil
rights laws--
(i) by a person who, prior to the entry of the
judgment or order described in subparagraph (A), had--
(I) actual notice of the proposed judgment or
order sufficient to apprise such person that
such judgment or order might adversely affect
the interests and legal rights of such person
and that an opportunity was available to
present objections to such judgment or order by
a future date certain; and
(II) a reasonable opportunity to present
objections to such judgment or order; or
(ii) by a person whose interests were adequately
represented by another person who had previously
challenged the judgment or order on the same legal
grounds and with a similar factual situation, unless
there has been an intervening change in law or fact.
(2) Nothing in this subsection shall be construed to--
(A) alter the standards for intervention under rule
24 of the Federal Rules of Civil Procedure or apply to
the rights of parties who have successfully intervened
pursuant to such rule in the proceeding in which the
parties intervened;
(B) apply to the rights of parties to the action in
which a litigated or consent judgment or order was
entered, or of members of a class represented or sought
to be represented in such action, or of members of a
group on whose behalf relief was sought in such action
by the Federal Government;
(C) prevent challenges to a litigated or consent
judgment or order on the ground that such judgment or
order was obtained through collusion or fraud, or is
transparently invalid or was entered by a court lacking
subject matter jurisdiction; or
(D) authorize or permit the denial to any person of
the due process of law required by the Constitution.
(3) Any action not precluded under this subsection that
challenges an employment consent judgment or order described in
paragraph (1) shall be brought in the court, and if possible
before the judge, that entered such judgment or order. Nothing
in this subsection shall preclude a transfer of such action
pursuant to section 1404 of title 28, United States Code.
other unlawful employment practices
Sec. 704. (a) It shall be an unlawful employment practice for
an employer to discriminate against any of his employees or
applicants for employment, for an employment agency, or joint
labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs,
to discriminate against any individual, or for a labor
organization to discriminate against any member thereof or
applicant for membership, because he has opposed any practice
made an unlawful employment practice by this title, or because
he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under
this title.
(b) It shall be an unlawful employment practice for an
employer, labor organization, employment agency, or joint
labor-management committee controlling apprenticeship or other
training or retraining including on-the-job training programs,
to print or publish or cause to be printed or published any
notice or advertisement relating to employment by such an
employer or membership in or any classification or referral for
employment by such a labor organization, or relating to any
classification or referral for employment by such an employment
agency, or relating to admission to, or employment in, any
program established to provide apprenticeship or other training
by such a joint labor-management committee indicating any
preference, limitation, specification, or discrimination, based
on race, color, religion, [sex,] sex (including sexual
orientation and gender identity), or national origin, except
that such a notice or advertisement may indicate a preference,
limitation, specification, or discrimination based on religion,
sex, or national origin when religion, sex, or national origin
is a bona fide occupational qualification for [employment.]
employment, if, in a situation in which sex is a bona fide
occupational qualification, individuals are recognized as
qualified in accordance with their gender identity.
* * * * * * *
prevention of unlawful employment practices
Sec. 706. (a) The Commission is empowered, as hereinafter
provided, to prevent any person from engaging in any unlawful
employment practice as set forth in section 703 or 704 of this
title.
(b) Whenever a charge is filed by or on behalf of a person
claiming to be aggrieved, or by a member of the Commission,
alleging that an employer, employment agency, labor
organization, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-
the-job training programs, has engaged in an unlawful
employment practice, the Commission shall serve a notice of the
charge (including the date, place and circumstances of the
alleged unlawful employment practice) on such employer,
employment agency, labor organization, or joint labor-
management committee (hereinafter referred to as the
``respondent'') within ten days, and shall make an
investigation thereof. Charges shall be in writing under oath
or affirmation and shall contain such information and be in
such form as the Commission requires. Charges shall not be made
public by the Commission. If the Commission determines after
such investigation that there is not reasonable cause to
believe that the charge is true, it shall dismiss the charge
and promptly notify the person claiming to be aggrieved and the
respondent of its action. In determining whether reasonable
cause exists, the Commission shall accord substantial weight to
final findings and orders made by State or local authorities in
proceedings commenced under State or local law pursuant to the
requirements of subsections (c) and (d). If the Commission
determines after such investigation that there is reasonable
cause to believe that the charge is true, the Commission shall
endeavor to eliminate any such alleged unlawful employment
practice by informal methods of conference, conciliation, and
persuasion. Nothing said or done during and as a part of such
informal endeavors may be made public by the Commission, its
officers or employees, or used as evidence in a subsequent
proceeding without the written consent of the persons
concerned. Any person who makes public information in violation
of this subsection shall be fined not more than $1,000 or
imprisoned for not more than one year, or both. The Commission
shall make its determination on reasonable cause as promptly as
possible and, so far as practicable, not later than one hundred
and twenty days from the filing of the charge or, where
applicable under subsection (c) or (d), from the date upon
which the Commission is authorized to take action with respect
to the charge.
(c) In the case of an alleged unlawful employment practice
occurring in a State, or political subdivision of a State,
which has a State or local law prohibiting the unlawful
employment practice alleged and establishing or authorizing a
State or local authority to grant or seek relief from such
practice or to institute criminal proceedings with respect
thereto upon receiving notice thereof, no charge may be filed
under subsection (a) by the person aggrieved before the
expiration of sixty days after proceedings have been commenced
under the State or local law, unless such proceedings have been
earlier terminated, provided that such sixty-day period shall
be extended to one hundred and twenty days during the first
year after the effective date of such State or local law. If
any requirement for the commencement of such proceedings is
imposed by a State or local authority other than a requirement
of the filing of a written and signed statement of the facts
upon which the proceeding is based, the proceeding shall be
deemed to have been commenced for the purposes of this
subsection at the time such statement is sent by registered
mail to the appropriate State or local authority.
(d) In the case of any charge filed by a member of the
Commission alleging an unlawful employment practice occurring
in a State or political subdivision of a State which has a
State or local law prohibiting the practice alleged and
establishing or authorizing a State or local authority to grant
or seek relief from such practice or to institute criminal
proceedings with respect thereto upon receiving notice thereof,
the Commission shall, before taking any action with respect to
such charge notify the appropriate State or local officials
and, upon request, afford them a reasonable time, but not less
than sixty days (provided that such sixty-day period shall be
extended to one hundred and twenty days during the first year
after the effective day of such State or local law), unless a
shorter period is requested, to act under such State or local
law to remedy the practice alleged.
(e)(1) A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful employment
practice occurred and notice of the charge (including the date,
place and circumstances of the alleged unlawful employment
practice) shall be served upon the person against whom such
charge is made within ten days thereafter, except that in a
case of an unlawful employment practice with respect to which
the person aggrieved has initially instituted proceedings with
a State or local agency with authority to grant or seek relief
from such practice or to institute criminal proceedings with
respect thereto upon receiving notice thereof, such charge
shall be filed by or on behalf of the person aggrieved within
three hundred days after the alleged unlawful employment
practice occurred, or within thirty days after receiving notice
that the State or local agency has terminated the proceedings
under State or local law, whichever is earlier, and a copy of
such charge shall be filed by the Commission with the State or
local agency.
(2) For purposes of this section, an unlawful employment
practice occurs, with respect to a seniority system that has
been adopted for an intentionally discriminatory purpose in
violation of this title (whether or not that discriminatory
purpose is apparent on the face of the seniority provision),
when the seniority system is adopted, when an individual
becomes subject to the seniority system, or when a person
aggrieved is injured by the application of the seniority system
or provision of the system.
(3)(A) For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in compensation
in violation of this title, when a discriminatory compensation
decision or other practice is adopted, when an individual
becomes subject to a discriminatory compensation decision or
other practice, or when an individual is affected by
application of a discriminatory compensation decision or other
practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a
decision or other practice.
(B) In addition to any relief authorized by section 1977A of
the Revised Statutes (42 U.S.C. 1981a), liability may accrue
and an aggrieved person may obtain relief as provided in
subsection (g)(1), including recovery of back pay for up to two
years preceding the filing of the charge, where the unlawful
employment practices that have occurred during the charge
filing period are similar or related to unlawful employment
practices with regard to discrimination in compensation that
occurred outside the time for filing a charge.
(f)(1) If within thirty days after a charge is filed with the
Commission or within thirty days after expiration of any period
of reference under subsection (c) or (d), the Commission has
been unable to secure from the respondent a conciliation
agreement acceptable to the Commission, the Commission may
bring a civil action against any respondent not a government,
governmental agency, or political subdivision named in the
charge. In the case of a respondent which is a government,
governmental agency, or political subdivision, if the
Commission has been unable to secure from the respondent a
conciliation agreement acceptable to the Commission, the
Commission shall take no further action and shall refer the
case to the Attorney General who may bring a civil action
against such respondent in the appropriate United States
district court. The person or persons aggrieved shall have the
right to intervene in a civil action brought by the Commission
or the Attorney General in a case involving a government,
governmental agency, or political subdivision. If a charge
filed with the Commission pursuant to subsection (b) is
dismissed by the Commission, or if within one hundred and
eighty days from the filing of such charge or the expiration of
any period of reference under subsection (c) or (d), whichever
is later, the Commission has not filed a civil action under
this section or the Attorney General has not filed a civil
action in a case involving a government, governmental agency,
or political subdivision, or the Commission has not entered
into a conciliation agreement to which the person aggrieved is
a party, the Commission, or the Attorney General in a case
involving a government, governmental agency, or political
subdivision, shall so notify the person aggrieved and within
ninety days after the giving of such notice a civil action may
be brought against the respondent named in the charge (A) by
the person claiming to be aggrieved or (B) if such charge was
filed by a member of the Commission, by any person whom the
charge alleges was aggrieved by the alleged unlawful employment
practice. Upon application by the complainant and in such
circumstances as the court may deem just, the court may appoint
an attorney for such complainant and may authorize the
commencement of the action without the payment of fees, costs,
or security. Upon timely application, the court may, in its
discretion, permit the Commission, or the Attorney General in a
case involving a government, governmental agency, or political
subdivision, to intervene in such civil action upon
certification that the case is of general public importance.
Upon request, the court may, in its discretion, stay further
proceedings for not more than sixty days pending the
termination of State or local proceedings described in
subsection (c) or (d) of this section or further efforts of the
Commission to obtain voluntary compliance.
(2) Whenever a charge is filed with the Commission and the
Commission concludes on the basis of a preliminary
investigation that prompt judicial action is necessary to carry
out the purposes of this Act, the Commission, or the Attorney
General in a case involving a government, governmental agency,
or political subdivision, may bring an action for appropriate
temporary or preliminary relief pending final disposition of
such charge. Any temporary restraining order or other order
granting preliminary or temporary relief shall be issued in
accordance with rule 65 of the Federal Rules of Civil
Procedure. It shall be the duty of a court having jurisdiction
over proceedings under this section to assign cases for hearing
at the earliest practicable date and to cause such cases to be
in every way expedited.
(3) Each United States district court and each United States
court of a place subject to the jurisdiction of the United
States shall have jurisdiction of actions brought under this
title. Such an action may be brought in any judicial district
in the State in which the unlawful employment practice is
alleged to have been committed, in the judicial district in
which the employment records relevant to such practice are
maintained and administered, or in the judicial district in
which the aggrieved person would have worked but for the
alleged unlawful employment practice, but if the respondent is
not found within any such district, such an action may be
brought within the judicial district in which the respondent
has his principal office. For purposes of sections 1404 and
1406 of title 28 of the United States Code, the judicial
district in which the respondent has his principal office shall
in all cases be considered a district in which the action might
have been brought.
(4) It shall be the duty of the chief judge of the district
(or in his absence, the acting chief judge) in which the case
is pending immediately to designate a judge in such district to
hear and determine the case. In the event that no judge in the
district is available to hear and determine the case, the chief
judge of the district, or the acting chief judge, as the case
may be, shall certify this fact to the chief judge of the
circuit (or in his absence, the acting chief judge) who shall
then designate a district or circuit judge of the circuit to
hear and determine the case.
(5) It shall be the duty of the judge designated pursuant to
this subsection to assign the case for hearing at the earliest
practicable date and to cause the case to be in every way
expedited. If such judge has not scheduled the case for trial
within one hundred and twenty days after issue has been joined,
that judge may appoint a master pursuant to rule 53 of the
Federal Rules of Civil Procedure.
(g)(1) If the court finds that the respondent has
intentionally engaged in or is intentionally engaging in an
unlawful employment practice charged in the complaint, the
court may enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action as may
be appropriate, which may include, but is not limited to,
reinstatement or hiring of employees, with or without back pay
(payable by the employer, employment agency, or labor
organization, as the case may be, responsible for the unlawful
employment practice), or any other equitable relief as the
court deems appropriate. Back pay liability shall not accrue
from a date more than two years prior to the filing of a charge
with the Commission. Interim earnings or amounts earnable with
reasonable diligence by the person or persons discriminated
against shall operate to reduce the back pay otherwise
allowable.
(2)(A) No order of the court shall require the admission or
reinstatement of an individual as a member of a union, or the
hiring, reinstatement, or promotion of an individual as an
employee, or the payment to him of any back pay, if such
individual was refused admission, suspended or expelled, or was
refused employment or advancement or was suspended or
discharged for any reason other than discrimination on account
of race, color, religion, [sex,] sex (including sexual
orientation and gender identity), or national origin or in
violation of section 704(a).
(B) On a claim in which an individual proves a violation
under section 703(m) and a respondent demonstrates that the
respondent would have taken the same action in the absence of
the impermissible motivating factor, the court--
(i) may grant declaratory relief, injunctive relief
(except as provided in clause (ii)), and attorney's
fees and costs demonstrated to be directly attributable
only to the pursuit of a claim under section 703(m);
and
(ii) shall not award damages or issue an order
requiring any admission, reinstatement, hiring,
promotion, or payment, described in subparagraph (A).
(h) The provisions of the Act entitled ``An Act to amend the
Judicial Code and to define and limit the jurisdiction of
courts sitting in equity, and for other purposes,'' approved
March 23, 1932 (29 U.S.C. 101-115), shall not apply with
respect to civil actions brought under this section.
(i) In any case in which an employer, employment agency, or
labor organization fails to comply with an order of a court
issued in a civil action brought under this section, the
Commission may commence proceedings to compel compliance with
such order.
(j) Any civil action brought under this section and any
proceedings brought under subsection (i) shall be subject to
appeal as provided in sections 1291 and 1292, title 28, United
States Code.
(k) In any action or proceeding under this title the court,
in its discretion, may allow the prevailing party, other than
the Commission or the United States, a reasonable attorney's
fee (including expert fees) as part of the costs, and the
Commission and the United States shall be liable for costs the
same as a private person.
* * * * * * *
nondiscrimination in federal government employment
Sec. 717. (a) All personnel actions affecting employees or
applicants for employment (except with regard to aliens
employed outside the limits of the United States) in military
departments as defined in section 102 of title 5, United States
Code, in executive agencies as defined in section 105 of title
5, United States Code (including employees and applicants for
employment who are paid from nonappropriated funds), in the
United States Postal Service and the Postal Rate Commission, in
those units of the Government of the District of Columbia
having positions in the competitive service, and in those units
of the judicial branch of the Federal Government having
positions in the competitive service, in the Smithsonian
Institution, and in the Government Printing Office, the General
Accounting Office, and the Library of Congress shall be made
free from any discrimination based on race, color, religion,
[sex,] sex (including sexual orientation and gender identity),
or national origin.
(b) Except as otherwise provided in this subsection, the
Civil Service Commission shall have authority to enforce the
provisions of subsection (a) through appropriate remedies,
including reinstatement or hiring of employees with or without
back pay, as will effectuate the policies of this section, and
shall issue such rules, regulations, orders and instructions as
it deems necessary and appropriate to carry out its
responsibilities under this section. The Civil Service
Commission shall--
(1) be responsible for the annual review and approval
of a national and regional equal employment opportunity
plan which each department and agency and each
appropriate unit referred to in subsection (a) of this
section shall submit in order to maintain an
affirmative program of equal employment opportunity for
all such employees and applicants for employment;
(2) be responsible for the review and evaluation of
the operation of all agency equal employment
opportunity programs, periodically obtaining and
publishing (on at least a semiannual basis) progress
reports from each such department, agency, or unit; and
(3) consult with and solicit the recommendations of
interested individuals, groups, and organizations
relating to equal employment opportunity.
The head of each such department, agency, or unit shall comply
with such rules, regulations, orders, and instructions which
shall include a provision that an employee or applicant for
employment shall be notified of any final action taken on any
complaint of discrimination filed by him thereunder. The plan
submitted by each department, agency, and unit shall include,
but not be limited to--
(1) provision for the establishment of training and
education programs designed to provide a maximum
opportunity for employees to advance so as to perform
at their highest potential; and
(2) a description of the qualifications in terms of
training and experience relating to equal employment
opportunity for the principal and operating officials
of each such department, agency, or unit responsible
for carrying out the equal employment opportunity
program and of the allocation of personnel and
resources proposed by such department, agency, or unit
to carry out its equal employment opportunity program.
With respect to employment in the Library of Congress,
authorities granted in this subsection to the Civil Service
Commission shall be exercised by the Librarian of Congress.
(c) Within 90 days of receipt of notice of final action taken
by a department, agency, or unit referred to in subsection
717(a), or by the Civil Service Commission upon an appeal from
a decision or order of such department, agency, or unit on a
complaint of discrimination based on race, color, religion,
[sex] sex (including sexual orientation and gender identity),
or national origin, brought pursuant to subsection (a) of this
section, Executive Order 11478 or any succeeding Executive
orders, or after one hundred and eighty days from the filing of
the initial charge with the department, agency, or unit or with
the Civil Service Commission on appeal from a decision or order
of such department, agency, or unit until such time as final
action may be taken by a department, agency, or unit, an
employee or applicant for employment, if aggrieved by the final
disposition of his complaint, or by the failure to take final
action on his complaint, may file a civil action as provided in
section 706, in which civil action the head of the department,
agency, or unit, as appropriate, shall be the defendant.
(d) The provisions of section 706 (f) through (k), as
applicable, shall govern civil actions brought hereunder, and
the same interest to compensate for delay in payment shall be
available as in cases involving nonpublic parties..
(e) Nothing contained in this Act shall relieve any
Government agency or official of its or his primary
responsibility to assure nondiscrimination in employment as
required by the Constitution and statutes or of its or his
responsibilities under Executive Order 11478 relating to equal
employment opportunity in the Federal Government.
(f) Section 706(e)(3) shall apply to complaints of
discrimination in compensation under this section.
* * * * * * *
TITLE IX--INTERVENTION AND PROCEDURE AFTER REMOVAL IN CIVIL RIGHTS
CASES
* * * * * * *
Sec. 902. Whenever an action has been commenced in any court
of the United States seeking relief from the denial of equal
protection of the laws under the fourteenth amendment to the
Constitution on account of race, color, religion, sex
(including sexual orientation and gender identity), or national
origin, the Attorney General for or in the name of the United
States may intervene in such action upon timely application if
the Attorney General certifies that the case is of general
public importance. In such action the United States shall be
entitled to the same relief as if it had instituted the action.
* * * * * * *
TITLE XI--MISCELLANEOUS
SEC. 1101. DEFINITIONS AND RULES.
(a) Definitions.--In titles II, III, IV, VI, VII, and IX
(referred to individually in sections 1106 and 1107 as a
``covered title''):
(1) Race; color; religion; sex; sexual orientation;
gender identity; national origin.--The term ``race'',
``color'', ``religion'', ``sex'' (including ``sexual
orientation'' and ``gender identity''), or ``national
origin'', used with respect to an individual,
includes--
(A) the race, color, religion, sex (including
sexual orientation and gender identity), or
national origin, respectively, of another
person with whom the individual is associated
or has been associated; and
(B) a perception or belief, even if
inaccurate, concerning the race, color,
religion, sex (including sexual orientation and
gender identity), or national origin,
respectively, of the individual.
(2) Gender identity.--The term ``gender identity''
means the gender-related identity, appearance,
mannerisms, or other gender-related characteristics of
an individual, regardless of the individual's
designated sex at birth.
(3) Including.--The term ``including'' means
including, but not limited to, consistent with the
term's standard meaning in Federal law.
(4) Sex.--The term ``sex'' includes--
(A) a sex stereotype;
(B) pregnancy, childbirth, or a related
medical condition;
(C) sexual orientation or gender identity;
and
(D) sex characteristics, including intersex
traits.
(5) Sexual orientation.--The term ``sexual
orientation'' means homosexuality, heterosexuality, or
bisexuality.
(b) Rules.--In a covered title referred to in subsection
(a)--
(1) (with respect to sex) pregnancy, childbirth, or a
related medical condition shall not receive less
favorable treatment than other physical conditions; and
(2) (with respect to gender identity) an individual
shall not be denied access to a shared facility,
including a restroom, a locker room, and a dressing
room, that is in accordance with the individual's
gender identity.
[Sec. [1101.] 1102. In any proceeding for criminal contempt
arising under title II, III, IV, V, VI, or VII of this Act, the
accused, upon demand therefor, shall be entitled to a trial by
jury, which shall conform as near as may be to the practice in
criminal cases. Upon conviction, the accused shall not be fined
more than $1,000 or imprisoned for more than six months.
This section shall not apply to contempts committed in the
presence of the court, or so near thereto as to obstruct the
administration of justice, nor to the misbehavior, misconduct,
or disobedience of any officer of the court in respect to
writs, orders, or process of the court. No person shall be
convicted of criminal contempt hereunder unless the act or
omission constituting such contempt shall have been
intentional, as required in other cases of criminal contempt.
Nor shall anything herein be construed to deprive courts of
their power, by civil contempt proceedings, without a jury, to
secure compliance with or to prevent obstruction of, as
distinguished from punishment for violations of, any lawful
writ, process, order, rule, decree, or command of the court in
accordance with the prevailing usages of law and equity,
including the power of detention.
[Sec. [1102.] 1103. No person should be put twice in
jeopardy under the laws of the United States for the same act
or omission. For this reason, an acquittal or conviction in a
prosecution for a specific crime under the laws of the United
States shall bar a proceeding for criminal contempt, which is
based upon the same act or omission and which arises under the
provisions of this Act; and an acquittal or conviction in a
proceeding for criminal contempt, which arises under the
provisions of this Act, shall bar a prosecution for a specific
crime under the laws of the United States based upon the same
act or omission.
[Sec. [1103.] 1104. Nothing in this Act shall be construed
to deny, impair, or otherwise affect any right or authority of
the Attorney General or of the United States or any agency or
officer thereof under existing law to institute or intervene in
any action or proceeding.
[Sec. [1104.] 1105. Nothing contained in any title of this
Act shall be construed as indicating an intent on the part of
Congress to occupy the field in which any such title operates
to the exclusion of State laws on the same subject matter, nor
shall any provision of this Act be construed as invalidating
any provision of State law unless such provision is
inconsistent with any of the purposes of this Act, or any
provision thereof.
SEC. 1106. RULES OF CONSTRUCTION.
(a) Sex.--Nothing in section 1101 or the provisions of a
covered title incorporating a term defined or a rule specified
in that section shall be construed--
(1) to limit the protection against an unlawful
practice on the basis of pregnancy, childbirth, or a
related medical condition provided by section 701(k);
or
(2) to limit the protection against an unlawful
practice on the basis of sex available under any
provision of Federal law other than that covered title,
prohibiting a practice on the basis of sex.
(b) Claims and Remedies Not Precluded.--Nothing in section
1101 or a covered title shall be construed to limit the claims
or remedies available to any individual for an unlawful
practice on the basis of race, color, religion, sex (including
sexual orientation and gender identity), or national origin
including claims brought pursuant to section 1979 or 1980 of
the Revised Statutes (42 U.S.C. 1983, 1985) or any other law,
including a Federal law amended by the Equality Act,
regulation, or policy.
(c) No Negative Inference.--Nothing in section 1101 or a
covered title shall be construed to support any inference that
any Federal law prohibiting a practice on the basis of sex does
not prohibit discrimination on the basis of pregnancy,
childbirth, or a related medical condition, sexual orientation,
gender identity, or a sex stereotype.
SEC. 1107. CLAIMS.
The Religious Freedom Restoration Act of 1993 (42 U.S.C.
2000bb et seq.) shall not provide a claim concerning, or a
defense to a claim under, a covered title, or provide a basis
for challenging the application or enforcement of a covered
title.
[Sec. [1105.] 1108. There are hereby authorized to be
appropriated such sums as are necessary to carry out the
provisions of this Act.
[Sec. [1106.] 1109. If any provision of this Act or the
application thereof to any person or circumstances is held
invalid, the remainder of the Act and the application of the
provision to other persons not similarly situated or to other
circumstances shall not be affected thereby.
----------
GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991
TITLE III--GOVERNMENT EMPLOYEE RIGHTS
SEC. 301. GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991.
(a) Short Title.--This title may be cited as the ``Government
Employee Rights Act of 1991''.
(b) Purpose.--The purpose of this title is to provide
procedures to protect the rights of certain government
employees, with respect to their public employment, to be free
of discrimination on the basis of race, color, religion, [sex,]
sex (including sexual orientation and gender identity),
national origin, age, or disability.
(c) Definition.--For purposes of this title, ``violation''
means a practice that violates section 302(a) of this title.
SEC. 302. DISCRDIINATORY PRACTICES PROHIBITED.
(a) Practices.--All personnel actions affecting the
Presidential appointees described in section 303 or the State
employees described in section 304 shall be made free from any
discrimination based on--
(1) race, color, religion, [sex,] sex (including
sexual orientation and gender identity), or national
origin, within the meaning of section 717 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-16);
(2) age, within the meaning of section 15 of the Age
Discrimination in Employment Act of 1967 (29 U.S.C.
633a); or
(3) disability, within the meaning of section 501 of
the Rehabilitation Act of 1973 (29 U.S.C. 791) and
sections 102 through 104 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12112-14).
(b) Remedies.--The remedies referred to in sections 303(a)(1)
and 304(a)--
(1) may include, in the case of a determination that
a violation of subsection (a)(l) or (a)(3) has
occurred, such remedies as would be appropriate if
awarded under sections 706(g), 706(k), and 717(d) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g),
2000e-5(k), 2000e-16(d)), and such compensatory damages
as would be appropriate if awarded under section 1977
or sections 1977A(a) and 1977A(b)(2) of the Revised
Statutes (42 U.S.C. 1981 and 1981a (a) and (b)(2));
(2) may include, in the case of a determination that
a violation of subsection (a)(2) has occurred, such
remedies as would be appropriate if awarded under
section 15(c) of the Age Discrimination in Employment
Act of 1967 (29 U.S.C. 633a(c)); and
(3) may not include punitive damages.
* * * * * * *
SEC. 305. RULES OF CONSTRUCTION AND CLAIMS.
Sections 1101(b), 1106, and 1107 of the Civil Rights Act of
1964 shall apply to this title except that for purposes of that
application, a reference in that section 1106 to ``race, color,
religion, sex (including sexual orientation and gender
identity), or national origin'' shall be considered to be a
reference to ``race, color, religion, sex, sexual orientation,
gender identity, national origin, age, or disability''.
----------
CONGRESSIONAL ACCOUNTABILITY ACT OF 1995
* * * * * * *
TITLE II--EXTENSION OF RIGHTS AND PROTECTIONS
PART A--EMPLOYMENT DISCRIMINATION, FAMILY AND MEDICAL LEAVE, FAIR LABOR
STANDARDS, EMPLOYEE POLYGRAPH PROTECTION, WORKER ADJUSTMENT AND
RETRAINING, EMPLOYMENT AND REEMPLOYMENT OF VETERANS, AND INTIMIDATION
SEC. 201. RIGHTS AND PROTECTIONS UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE REHABILITATION ACT OF 1973, AND
TITLE I OF THE AMERICANS WITH DISABILITIES ACT OF
1990.
(a) Discriminatory Practices Prohibited.--All personnel
actions affecting covered employees shall be made free from any
discrimination based on--
(1) race, color, religion, sex, (including sexual
orientation and gender identity), or national origin,
within the meaning of section 703 of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-2);
(2) age, within the meaning of section 15 of the Age
Discrimination in Employment Act of 1967 (29 U.S.C.
633a); or
(3) disability, within the meaning of section 501 of
the Rehabilitation Act of 1973 (29 U.S.C. 791) and
sections 102 through 104 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12112-12114).
(b) Remedy.--
(1) Civil rights.--The remedy for a violation of
subsection (a)(1) shall be--
(A) such remedy as would be appropriate if
awarded under section 706(g) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-5(g)); and
(B) such compensatory damages as would be
appropriate if awarded under section 1977 of
the Revised Statutes (42 U.S.C. 1981), or as
would be appropriate if awarded under sections
1977A(a)(1), 1977A(b)(2), and, irrespective of
the size of the employing office,
1977A(b)(3)(D) of the Revised Statutes (42
U.S.C. 1981a(a)(1), 1981a(b)(2), and
1981a(b)(3)(D)).
(2) Age discrimination.--The remedy for a violation
of subsection (a)(2) shall be--
(A) such remedy as would be appropriate if
awarded under section 15(c) of the Age
Discrimination in Employment Act of 1967 (29
U.S.C. 633a(c)); and
(B) such liquidated damages as would be
appropriate if awarded under section 7(b) of
such Act (29 U.S.C. 626(b)).
In addition, the waiver provisions of section 7(f) of
such Act (29 U.S.C. 626(f)) shall apply to covered
employees.
(3) Disabilities discrimination.--The remedy for a
violation of subsection (a)(3) shall be--
(A) such remedy as would be appropriate if
awarded under section 505(a)(1) of the
Rehabilitation Act of 1973 (29 U.S.C.
794a(a)(1)) or section 107(a) of the Americans
with Disabilities Act of 1990 (42 U.S.C.
12117(a)); and
(B) such compensatory damages as would be
appropriate if awarded under sections
1977A(a)(2), 1977A(a)(3), 1977A(b)(2), and,
irrespective of the size of the employing
office, 1977A(b)(3)(D) of the Revised Statutes
(42 U.S.C. 1981a(a)(2), 1981a(a)(3),
1981a(b)(2), and 1981a(b)(3)(D)).
(c) Application to General Accounting Office, Government
Printing Office, and Library of Congress.--
(1) Section 717 of the civil rights act of 1964.--
Section 717(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16) is amended by--
(A) striking ``legislative and'';
(B) striking ``branches'' and inserting
``branch''; and
(C) inserting ``Government Printing Office,
the General Accounting Office, and the'' after
``and in the''.
(2) Section 15 of the age discrimination in
employment act of 1967.--Section 15(a) of the Age
Discrimination in Employment Act of 1967 (29 U.S.C.
633a(a)) is amended by--
(A) striking ``legislative and'';
(B) striking ``branches'' and inserting
``branch''; and
(C) inserting ``Government Printing Office,
the General Accounting Office, and the'' after
``and in the''.
(3) Section 509 of the americans with disabilities
act of 1990.--Section 509 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12209) is amended--
(A) by striking subsections (a) and (b) of
section 509;
(B) in subsection (c), by striking
``(c)Instrumentalities of Congress.--'' and
inserting ``The General Accounting Office, the
Government Printing Office, and the Library of
Congress shall be covered as follows:'';
(C) by striking the second sentence of
paragraph (2);
(D) in paragraph (4), by striking ``the
instrumentalities of the Congress include'' and
inserting ``the term`instrumentality of the
Congress'means'', by striking ``the Architect
of the Capitol, the Congressional Budget
Office'', by inserting ``and'' before ``the
Library'', and by striking ``the Office of
Technology Assessment, and the United States
Botanic Garden'';
(E) by redesignating paragraph (5) as
paragraph (7) and by inserting after paragraph
(4) the following new paragraph:
``(5) Enforcement of employment rights.--The remedies
and procedures set forth in section 717 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-16) shall be
available to any employee of an instrumentality of the
Congress who alleges a violation of the rights and
protections under sections 102 through 104 of this Act
that are made applicable by this section, except that
the authorities of the Equal Employment Opportunity
Commission shall be exercised by the chief official of
the instrumentality of the Congress.''; and
(F) by amending the title of the section to
read ``INSTRUMENTALITIES OF THE CONGRESS''.
(d) Effective Date.--This section shall take effect 1 year
after the date of the enactment of this Act.
* * * * * * *
SEC. 208. RULES OF CONSTRUCTION AND CLAIMS.
Sections 1101(b), 1106, and 1107 of the Civil Rights Act of
1964 shall apply to section 201 (and remedial provisions of
this Act related to section 201) except that for purposes of
that application, a reference in that section 1106 to ``race,
color, religion, sex (including sexual orientation and gender
identity), or national origin'' shall be considered to be a
reference to ``race, color, religion, sex (including sexual
orientation and gender identity), national origin, age, or
disability''.
* * * * * * *
----------
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART A--GENERAL PROVISIONS
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
Sec.
2301. Merit system principles.
2302. Prohibited personnel practices.
2303. Prohibited personnel practices in the Federal Bureau of
Investigation.
2304. Prohibited personnel practices affecting the Transportation
Security Administration.
2305. Responsibility of the Government Accountability Office.
2306. Coordination with certain other provisions of law.
Sec. 2301. Merit system principles
(a) This section shall apply to--
(1) an Executive agency; and
(2) the Government Publishing Office.
(b) Federal personnel management should be implemented
consistent with the following merit system principles:
(1) Recruitment should be from qualified individuals
from appropriate sources in an endeavor to achieve a
work force from all segments of society, and selection
and advancement should be determined solely on the
basis of relative ability, knowledge, and skills, after
fair and open competition which assures that all
receive equal opportunity.
(2) All employees and applicants for employment
should receive fair and equitable treatment in all
aspects of personnel management without regard to
political affiliation, race, color, religion, national
origin, [sex,] sex (including sexual orientation and
gender identity), marital status, age, or handicapping
condition, and with proper regard for their privacy and
constitutional rights.
(3) Equal pay should be provided for work of equal
value, with appropriate consideration of both national
and local rates paid by employers in the private
sector, and appropriate incentives and recognition
should be provided for excellence in performance.
(4) All employees should maintain high standards of
integrity, conduct, and concern for the public
interest.
(5) The Federal work force should be used efficiently
and effectively.
(6) Employees should be retained on the basis of the
adequacy of their performance, inadequate performance
should be corrected, and employees should be separated
who cannot or will not improve their performance to
meet required standards.
(7) Employees should be provided effective education
and training in cases in which such education and
training would result in better organizational and
individual performance.
(8) Employees should be--
(A) protected against arbitrary action,
personal favoritism, or coercion for partisan
political purposes, and
(B) prohibited from using their official
authority or influence for the purpose of
interfering with or affecting the result of an
election or a nomination for election.
(9) Employees should be protected against reprisal
for the lawful disclosure of information which the
employees reasonably believe evidences--
(A) a violation of any law, rule, or
regulation, or
(B) mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and
specific danger to public health or safety.
(c) In administering the provisions of this chapter--
(1) with respect to any agency (as defined in section
2302(a)(2)(C) of this title), the President shall,
pursuant to the authority otherwise available under
this title, take any action, including the issuance of
rules, regulations, or directives; and
(2) with respect to any entity in the executive
branch which is not such an agency or part of such an
agency, the head of such entity shall, pursuant to
authority otherwise available, take any action,
including the issuance of rules, regulations, or
directives;
which is consistent with the provisions of this title and which
the President or the head, as the case may be, determines is
necessary to ensure that personnel management is based on and
embodies the merit system principles.
Sec. 2302. Prohibited personnel practices
(a)(1) For the purpose of this title, ``prohibited personnel
practice'' means any action described in subsection (b).
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this
title or other disciplinary or corrective
action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter
43 of this title or under title 38;
(ix) a decision concerning pay, benefits, or
awards, or concerning education or training if
the education or training may reasonably be
expected to lead to an appointment, promotion,
performance evaluation, or other action
described in this subparagraph;
(x) a decision to order psychiatric testing
or examination;
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties,
responsibilities, or working conditions;
with respect to an employee in, or applicant for, a covered
position in an agency, and in the case of an alleged prohibited
personnel practice described in subsection (b)(8), an employee
or applicant for employment in a Government corporation as
defined in section 9101 of title 31;
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) excepted from the competitive service
because of its confidential, policy-
determining, policy-making, or policy-
advocating character; or
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration;
(C) ``agency'' means an Executive agency and the
Government Publishing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under subsection (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D);
(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security
Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance
Office; and
(II) as determined by the President, any
executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
provided that the determination be made prior
to a personnel action; or
(iii) the Government Accountability Office;
and
(D) ``disclosure'' means a formal or informal
communication or transmission, but does not include a
communication concerning policy decisions that lawfully
exercise discretionary authority unless the employee or
applicant providing the disclosure reasonably believes
that the disclosure evidences--
(i) any violation of any law, rule, or
regulation; or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) discriminate for or against any employee or
applicant for employment--
(A) on the basis of race, color, religion,
sex, (including sexual orientation and gender
identity), or national origin, as prohibited
under section 717 of the Civil Rights Act of
1964 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under
sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited under
section 6(d) of the Fair Labor Standards Act of
1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition,
as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or
political affiliation, as prohibited under any
law, rule, or regulation;
(2) solicit or consider any recommendation or
statement, oral or written, with respect to any
individual who requests or is under consideration for
any personnel action unless such recommendation or
statement is based on the personal knowledge or records
of the person furnishing it and consists of--
(A) an evaluation of the work performance,
ability, aptitude, or general qualifications of
such individual; or
(B) an evaluation of the character, loyalty,
or suitability of such individual;
(3) coerce the political activity of any person
(including the providing of any political contribution
or service), or take any action against any employee or
applicant for employment as a reprisal for the refusal
of any person to engage in such political activity;
(4) deceive or willfully obstruct any person with
respect to such person's right to compete for
employment;
(5) influence any person to withdraw from competition
for any position for the purpose of improving or
injuring the prospects of any other person for
employment;
(6) grant any preference or advantage not authorized
by law, rule, or regulation to any employee or
applicant for employment (including defining the scope
or manner of competition or the requirements for any
position) for the purpose of improving or injuring the
prospects of any particular person for employment;
(7) appoint, employ, promote, advance, or advocate
for appointment, employment, promotion, or advancement,
in or to a civilian position any individual who is a
relative (as defined in section 3110(a)(3) of this
title) of such employee if such position is in the
agency in which such employee is serving as a public
official (as defined in section 3110(a)(2) of this
title) or over which such employee exercises
jurisdiction or control as such an official;
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) any violation of any law, rule,
or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety,
if such disclosure is not specifically
prohibited by law and if such information is
not specifically required by Executive order to
be kept secret in the interest of national
defense or the conduct of foreign affairs; or
(B) any disclosure to the Special Counsel, or
to the Inspector General of an agency or
another employee designated by the head of the
agency to receive such disclosures, of
information which the employee or applicant
reasonably believes evidences--
(i) any violation (other than a
violation of this section) of any law,
rule, or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(9) take or fail to take, or threaten to take or fail
to take, any personnel action against any employee or
applicant for employment because of--
(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation--
(i) with regard to remedying a
violation of paragraph (8); or
(ii) other than with regard to
remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in subparagraph (A)(i) or
(ii);
(C) cooperating with or disclosing
information to the Inspector General (or any
other component responsible for internal
investigation or review) of an agency, or the
Special Counsel, in accordance with applicable
provisions of law; or
(D) refusing to obey an order that would
require the individual to violate a law, rule,
or regulation;
(10) discriminate for or against any employee or
applicant for employment on the basis of conduct which
does not adversely affect the performance of the
employee or applicant or the performance of others;
except that nothing in this paragraph shall prohibit an
agency from taking into account in determining
suitability or fitness any conviction of the employee
or applicant for any crime under the laws of any State,
of the District of Columbia, or of the United States;
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or
approve any personnel action if the failure to
take such action would violate a veterans'
preference requirement;
(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title;
(13) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or agreement
does not contain the following statement: ``These
provisions are consistent with and do not supersede,
conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by existing
statute or Executive order relating to (1) classified
information, (2) communications to Congress, (3) the
reporting to an Inspector General of a violation of any
law, rule, or regulation, or mismanagement, a gross
waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety, or (4)
any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and
liabilities created by controlling Executive orders and
statutory provisions are incorporated into this
agreement and are controlling.''; or
(14) access the medical record of another employee or
an applicant for employment as a part of, or otherwise
in furtherance of, any conduct described in paragraphs
(1) through (13).
This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses information
to Congress. For purposes of paragraph (8), (i) any presumption
relating to the performance of a duty by an employee whose
conduct is the subject of a disclosure as defined under
subsection (a)(2)(D) may be rebutted by substantial evidence,
and (ii) a determination as to whether an employee or applicant
reasonably believes that such employee or applicant has
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to
public health or safety shall be made by determining whether a
disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee or applicant
could reasonably conclude that the actions of the Government
evidence such violations, mismanagement, waste, abuse, or
danger.
(c)(1) In this subsection--
(A) the term ``new employee'' means an
individual--
(i) appointed to a position as an
employee on or after the date of
enactment of this subsection; and
(ii) who has not previously served as
an employee; and
(B) the term ``whistleblower protections''
means the protections against and remedies for
a prohibited personnel practice described in
paragraph (8) or subparagraph (A)(i), (B), (C),
or (D) of paragraph (9) of subsection (b).
(2) The head of each agency shall be responsible
for--
(A) preventing prohibited personnel practices;
(B) complying with and enforcing applicable civil
service laws, rules, and regulations and other aspects
of personnel management; and
(C) ensuring, in consultation with the Special
Counsel and the Inspector General of the agency, that
employees of the agency are informed of the rights and
remedies available to the employees under this chapter
and chapter 12, including--
(i) information with respect to whistleblower
protections available to new employees during a
probationary period;
(ii) the role of the Office of Special
Counsel and the Merit Systems Protection Board
with respect to whistleblower protections; and
(iii) the means by which, with respect to
information that is otherwise required by law
or Executive order to be kept classified in the
interest of national defense or the conduct of
foreign affairs, an employee may make a lawful
disclosure of the information to--
(I) the Special Counsel;
(II) the Inspector General of an
agency;
(III) Congress; or
(IV) another employee of the agency
who is designated to receive such a
disclosure.
(3) The head of each agency shall ensure that the
information described in paragraph (2) is provided to
each new employee of the agency not later than 180 days
after the date on which the new employee is appointed.
(4) The head of each agency shall make available
information regarding whistleblower protections
applicable to employees of the agency on the public
website of the agency and on any online portal that is
made available only to employees of the agency, if such
portal exists.
(5) Any employee to whom the head of an agency
delegates authority for any aspect of personnel
management shall, within the limits of the scope of the
delegation, be responsible for the activities described
in paragraph (2).
(d) This section shall not be construed to extinguish or
lessen any effort to achieve equal employment opportunity
through affirmative action or any right or remedy available to
any employee or applicant for employment in the civil service
under--
(1) section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16), prohibiting discrimination on the
basis of race, color, religion, sex, (including sexual
orientation and gender identity), or national origin;
(2) sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a),
prohibiting discrimination on the basis of age;
(3) under section 6(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d)), prohibiting
discrimination on the basis of sex;
(4) section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), prohibiting discrimination on the basis of
handicapping condition; or
(5) the provisions of any law, rule, or regulation
prohibiting discrimination on the basis of marital
status or political affiliation.
(e)(1) For the purpose of this section, the term ``veterans'
preference requirement'' means any of the following provisions
of law:
(A) Sections 2108, 3305(b), 3309, 3310, 3311,
3312, 3313, 3314, 3315, 3316, 3317(b), 3318,
3320, 3351, 3352, 3363, 3501, 3502(b), 3504,
and 4303(e) and (with respect to a preference
eligible referred to in section 7511(a)(1)(B))
subchapter II of chapter 75 and section 7701.
(B) Sections 943(c)(2) and 1784(c) of title
10.
(C) Section 1308(b) of the Alaska National
Interest Lands Conservation Act.
(D) Section 301(c) of the Foreign Service Act
of 1980.
(E) Sections 106(f), 7281(e), and 7802(5) of
title 38.
(F) Section 1005(a) of title 39.
(G) Any other provision of law that the
Director of the Office of Personnel Management
designates in regulations as being a veterans'
preference requirement for the purposes of this
subsection.
(H) Any regulation prescribed under
subsection (b) or (c) of section 1302 and any
other regulation that implements a provision of
law referred to in any of the preceding
subparagraphs.
(2) Notwithstanding any other provision of this
title, no authority to order corrective action shall be
available in connection with a prohibited personnel
practice described in subsection (b)(11). Nothing in
this paragraph shall be considered to affect any
authority under section 1215 (relating to disciplinary
action).
(f)(1) A disclosure shall not be excluded from subsection
(b)(8) because--
(A) the disclosure was made to a supervisor
or to a person who participated in an activity
that the employee or applicant reasonably
believed to be covered by subsection
(b)(8)(A)(i) and (ii);
(B) the disclosure revealed information that
had been previously disclosed;
(C) of the employee's or applicant's motive
for making the disclosure;
(D) the disclosure was not made in writing;
(E) the disclosure was made while the
employee was off duty;
(F) the disclosure was made before the date
on which the individual was appointed or
applied for appointment to a position; or
(G) of the amount of time which has passed
since the occurrence of the events described in
the disclosure.
(2) If a disclosure is made during the normal course
of duties of an employee, the principal job function of
whom is to regularly investigate and disclose
wrongdoing (referred to in this paragraph as the
``disclosing employee''), the disclosure shall not be
excluded from subsection (b)(8) if the disclosing
employee demonstrates that an employee who has the
authority to take, direct other individuals to take,
recommend, or approve any personnel action with respect
to the disclosing employee took, failed to take, or
threatened to take or fail to take a personnel action
with respect to the disclosing employee in reprisal for
the disclosure made by the disclosing employee.
* * * * * * *
SEC. 2307. RULES OF CONSTRUCTION AND CLAIMS.
Sections 1101(b), 1106, and 1107 of the Civil Rights Act of
1964 shall apply to this chapter (and remedial provisions of
this title related to this chapter) except that for purposes of
that application, a reference in that section 1106 to ``race,
color, religion, sex (including sexual orientation and gender
identity), or national origin'' shall be considered to be a
reference to ``race, color, religion, sex (including sexual
orientation and gender identity), national origin, age, a
handicapping condition, marital status, or political
affiliation''.
* * * * * * *
----------
FAIR HOUSING ACT
* * * * * * *
TITLE VIII--FAIR HOUSING
* * * * * * *
definitions
Sec. 802. As used in this title--
(a) ``Secretary'' means the Secretary of Housing and Urban
Development.
(b) ``Dwelling'' means any building, structure, or portion
thereof which is occupied as, or designed or intended for
occupancy as, a residence by one or more families, and any
vacant land which is offered for sale or lease for the
construction or location thereon of any such building,
structure, or portion thereof.
(c) ``Family'' includes a single individual.
(d) ``Person'' includes one or more individuals,
corporations, partnerships, associations, labor organizations,
legal representatives, mutual companies, joint-stock companies,
trusts, unincorporated organizations, trustees, trustees in
cases under title 11 of the United States Code, receivers, and
fiduciaries.
(e) ``To rent'' includes to lease, to sublease, to let and
otherwise to grant for a consideration the right to occupy
premises not owned by the occupant.
(f) ``Discriminatory housing practice'' means an act that is
unlawful under section 804, 805, 806, or 818.
(g) ``State'' means any of the several States, the District
of Columbia, the Commonwealth of Puerto Rico, or any of the
territories and possessions of the United States.
(h) ``Handicap'' means, with respect to a person--
(1) a physical or mental impairment which
substantially limits one or more of such person's major
life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment,
but such term does not include current, illegal use of or
addiction to a controlled substance (as defined in section 102
of the Controlled Substances Act (21 U.S.C. 802)).
(i) ``Aggrieved person'' includes any person who--
(1) claims to have been injured by a discriminatory
housing practice; or
(2) believes that such person will be injured by a
discriminatory housing practice that is about to occur.
(j) ``Complainant'' means the person (including the
Secretary) who files a complaint under section 810.
(k) ``Familial status'' means one or more individuals (who
have not attained the age of 18 years) being domiciled with--
(1) a parent or another person having legal custody
of such individual or individuals; or
(2) the designee of such parent or other person
having such custody, with the written permission of
such parent or other person.
The protections afforded against discrimination on the basis of
familial status shall apply to any person who is pregnant or is
in the process of securing legal custody of any individual who
has not attained the age of 18 years.
(l) ``Conciliation'' means the attempted resolution of issues
raised by a complaint, or by the investigation of such
complaint, through informal negotiations involving the
aggrieved person, the respondent, and the Secretary.
(m) ``Conciliation agreement'' means a written agreement
setting forth the resolution of the issues in conciliation.
(n) ``Respondent'' means--
(1) the person or other entity accused in a complaint
of an unfair housing practice; and
(2) any other person or entity identified in the
course of investigation and notified as required with
respect to respondents so identified under section
810(a).
(o) ``Prevailing party'' has the same meaning as such term
has in section 722 of the Revised Statutes of the United States
(42 U.S.C. 1988).
(p) ``Gender identity'', ``sex'', and ``sexual orientation''
have the meanings given those terms in section 1101(a) of the
Civil Rights Act of 1964.
(q) ``Race'', ``color'', ``religion'', ``sex'' (including
``sexual orientation'' and ``gender identity''), ``handicap'',
``familial status'', or ``national origin'', used with respect
to an individual, includes--
(1) the race, color, religion, sex (including sexual
orientation and gender identity), handicap, familial
status, or national origin, respectively, of another
person with whom the individual is associated or has
been associated; and
(2) a perception or belief, even if inaccurate,
concerning the race, color, religion, sex (including
sexual orientation and gender identity), handicap,
familial status, or national origin, respectively, of
the individual.
* * * * * * *
discrimination in the sale or rental of housing and other prohibited
practices
Sec. 804. As made applicable by section 803 and except as
exempted by sections 803(b) and 807, it shall be unlawful--
(a) To refuse to sell or rent after the making of a bona fide
offer, or to refuse to negotiate for the sale or rental of, or
otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, (including sexual
orientation and gender identity), familial status, or national
origin.
(b) To discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or
in the provision of services or facilities in connection
therewith, because of race, color, religion, sex, (including
sexual orientation and gender identity), familial status, or
national origin.
(c) To make, print, or publish, or cause to be made, printed,
or published any notice, statement, or advertisement, with
respect to the sale or rental of a dwelling that indicates any
preference, limitation, or discrimination based on race, color,
religion, sex, (including sexual orientation and gender
identity), handicap, familial status, or national origin, or an
intention to make any such preference, limitation, or
discrimination.
(d) To represent to any person because of race, color,
religion, sex, (including sexual orientation and gender
identity), handicap, familial status, or national origin that
any dwelling is not available for inspection, sale, or rental
when such dwelling is in fact so available.
(e) For profit, to induce or attempt to induce any person to
sell or rent any dwelling by representations regarding the
entry or prospective entry into the neighborhood of a person or
persons of a particular race, color, religion, sex, (including
sexual orientation and gender identity), handicap, familial
status, or national origin.
(f)(1) To discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter
because of a handicap of--
(A) that buyer or renter,
(B) a person residing in or intending to reside in
that dwelling after it is so sold, rented, or made
available; or
(C) any person associated with that buyer or renter.
(2) To discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or
in the provision of services or facilities in connection with
such dwelling, because of a handicap of--
(A) that person; or
(B) a person residing in or intending to reside in
that dwelling after it is so sold, rented, or made
available; or
(C) any person associated with that person.
(3) For purposes of this subsection, discrimination
includes--
(A) a refusal to permit, at the expense of the
handicapped person, reasonable modifications of
existing premises occupied or to be occupied by such
person if such modifications may be necessary to afford
such person full enjoyment of the premises except that,
in the case of a rental, the landlord may where it is
reasonable to do so condition permission for a
modification on the renter agreeing to restore the
interior of the premises to the condition that existed
before the modification, reasonable wear and tear
excepted.
(B) a refusal to make reasonable accommodations in
rules, policies, practices, or services, when such
accommodations may be necessary to afford such person
equal opportunity to use and enjoy a dwelling; or
(C) in connection with the design and construction of
covered multifamily dwellings for first occupancy after
the date that is 30 months after the date of enactment
of the Fair Housing Amendments Act of 1988, a failure
to design and construct those dwellings in such a
manner that--
(i) the public use and common use portions of
such dwellings are readily accessible to and
usable by handicapped persons;
(ii) all the doors designed to allow passage
into and within all premises within such
dwellings are sufficiently wide to allow
passage by handicapped persons in wheelchairs;
and
(iii) all premises within such dwellings
contain the following features of adaptive
design:
(I) an accessible route into and
through the dwelling;
(II) light switches, electrical
outlets, thermostats, and other
environmental controls in accessible
locations;
(III) reinforcements in bathroom
walls to allow later installation of
grab bars; and
(IV) usable kitchens and bathrooms
such that an individual in a wheelchair
can maneuver about the space.
(4) Compliance with the appropriate requirements of the
American National Standard for buildings and facilities
providing accessibility and usability for physically
handicapped people (commonly cited as ``ANSI A117.1'') suffices
to satisfy the requirements of paragraph (3)(C)(iii).
(5)(A) If a State or unit of general local government has
incorporated into its laws the requirements set forth in
paragraph (3)(C), compliance with such laws shall be deemed to
satisfy the requirements of that paragraph.
(B) A State or unit of general local government may review
and approve newly constructed covered multifamily dwellings for
the purpose of making determinations as to whether the design
and construction requirements of paragraph (3)(C) are met.
(C) The Secretary shall encourage, but may not require,
States and units of local government to include in their
existing procedures for the review and approval of newly
constructed covered multifamily dwellings, determinations as to
whether the design and construction of such dwellings are
consistent with paragraph (3)(C), and shall provide technical
assistance to States and units of local government and other
persons to implement the requirements of paragraph (3)(C).
(D) Nothing in this title shall be construed to require the
Secretary to review or approve the plans, designs or
construction of all covered multifamily dwellings, to determine
whether the design and construction of such dwellings are
consistent with the requirements of paragraph 3(C).
(6)(A) Nothing in paragraph (5) shall be construed to affect
the authority and responsibility of the Secretary or a State or
local public agency certified pursuant to section 810(f)(3) of
this Act to receive and process complaints or otherwise engage
in enforcement activities under this title.
(B) Determinations by a State or a unit of general local
government under paragraphs (5) (A) and (B) shall not be
conclusive in enforcement proceedings under this title.
(7) As used in this subsection, the term ``covered
multifamily dwellings'' means--
(A) buildings consisting of 4 or more units if such
buildings have one or more elevators; and
(B) ground floor units in other buildings consisting
of 4 or more units.
(8) Nothing in this title shall be construed to invalidate or
limit any law of a State or political subdivision of a State,
or other jurisdiction in which this title shall be effective,
that requires dwellings to be designed and constructed in a
manner that affords handicapped persons greater access than is
required by this title.
(9) Nothing in this subsection requires that a dwelling be
made available to an individual whose tenancy would constitute
a direct threat to the health or safety of other individuals or
whose tenancy would result in substantial physical damage to
the property of others.
discrimination in residential real estate-related transactions
Sec. 805. (a) In General.--It shall be unlawful for any
person or other entity whose business includes engaging in
residential real estate-related transactions to discriminate
against any person in making available such a transaction, or
in the terms or conditions of such a transaction, because of
race, color, religion, sex, (including sexual orientation and
gender identity), handicap, familial status, or national
origin.
(b) Definition.--As used in this section, the term
``residential real estate-related transaction'' means any of
the following:
(1) The making or purchasing of loans or providing
other financial assistance--
(A) for purchasing, constructing, improving,
repairing, or maintaining a dwelling; or
(B) secured by residential real estate.
(2) The selling, brokering, or appraising of
residential real property.
(c) Appraisal Exemption.--Nothing in this title prohibits a
person engaged in the business of furnishing appraisals of real
property to take into consideration factors other than race,
color, religion, national origin, sex, (including sexual
orientation and gender identity), handicap, or familial status.
discrimination in the provision of brokerage services
Sec. 806. After December 31, 1968, it shall be unlawful to
deny any person access to or membership or participation in any
multiple-listing service, real estate brokers' organization or
other service, organization, or facility relating to the
business of selling or renting dwellings, or to discriminate
against him in the terms or conditions of such access,
membership, or participation, on account of race, color,
religion, sex, (including sexual orientation and gender
identity), handicap, familial status, or national origin.
* * * * * * *
administration
Sec. 808. (a) The authority and responsibility for
administering this Act shall be in the Secretary of Housing and
Urban Development.
(b) The Department of Housing and Urban Development shall be
provided an additional Assistant Secretary.
(c) The Secretary may delegate any of his functions, duties
and powers to employees of the Department of Housing and Urban
Development or to boards of such employees, including
functions, duties, and powers with respect to investigating,
conciliating, hearing, determining, ordering, certifying,
reporting, or otherwise acting as to any work, business, or
matter under this title. The persons to whom such delegations
are made with respect to hearing functions, duties, and powers
shall be appointed and shall serve in the Department of Housing
and Urban Development in compliance with sections 3105, 3344,
5372, and 7521 of title 5 of the United States Code. Insofar as
possible, conciliation meetings shall be held in the cities or
other localities where the discriminatory housing practices
allegedly occurred. The Secretary shall by rule prescribe such
rights of appeal from the decisions of his hearing examiners to
other hearing examiners or to other officers in the Department,
to boards of officers or to himself, as shall be appropriate
and in accordance with law.
(d) All executive departments and agencies shall administer
their programs and activities relating to housing and urban
development (including any Federal agency having regulatory or
supervisory authority over financial institution) development
in a manner affirmatively to further the purposes of this title
and shall cooperate with the Secretary to further such
purposes.
(e) The Secretary of Housing and Urban Development shall--
(1) make studies with respect to the nature and
extent of discriminatory housing practices in
representative communities, urban, suburban, and rural
throughout the United States;
(2) publish and disseminate reports, recommendations,
and information derived from such studies, including an
annual report to the Congress--
(A) specifying the nature and extent of
progress made nationally in eliminating
discriminatory housing practices and furthering
the purposes of this title, obstacles remaining
to achieving equal housing opportunity, and
recommendations for further legislative or
executive action; and
(B) containing tabulations of the number of
instances (and the reasons therefor) in the
preceding year in which--
(i) investigations are not completed
as required by section 810(a)(1)(B);
(ii) determinations are not made
within the time specified in section
810(g); and
(iii) hearings are not commenced or
findings and conclusions are not made
as required by section 812(g);
(3) cooperate with and render technical assistance to
Federal, State, local, and other public or private
agencies, organizations, and institutions which are
formulating or carrying on programs to prevent or
eliminate discriminatory housing practices;
(4) cooperate with and render such technical and
other assistance to the Community Relations Service as
may be appropriate to further its activities in
preventing or eliminating discriminatory housing
practices
(5) administer the programs and activities relating
to housing and urban development in a manner
affirmatively to further the policies of this title;
and
(6) annually report to the Congress, and make
available to the public, data on the race, color,
religion, sex, (including sexual orientation and gender
identity), national origin, age, handicap, and family
characteristics of persons and households who are
applicants for, participants in, or beneficiaries or
potential beneficiaries of, programs administered by
the Department to the extent such characteristics are
within the coverage of the provisions of law and
Executive orders referred to in subsection (f) which
apply to such programs (and in order to develop the
data to be included and made available to the public
under this subsection, the Secretary shall, without
regard to any other provision of law, collect such
information relating to those characteristics as the
Secretary determines to be necessary or appropriate).
(f) The provisions of law and Executive orders to which
subsection (e)(6) applies are--
(1) title VI of the Civil Rights Act of 1964;
(2) title VIII of the Civil Rights Act of 1968;
(3) section 504 of the Rehabilitation Act of 1973;
(4) the Age Discrimination Act of 1975;
(5) the Equal Credit Opportunity Act;
(6) section 1978 of the Revised Statutes (42 U.S.C.
1982);
(7) section 8(a) of the Small Business Act;
(8) section 527 of the National Housing Act;
(9) section 109 of the Housing and Community
Development Act of 1974;
(10) section 3 of the Housing and Urban Development
Act of 1968;
(11) Executive orders 11063, 11246, 11625, 12250,
12259, and 12432; and
(12) any other provision of law which the Secretary
specifies by publication in the Federal Register for
the purpose of this subsection.
* * * * * * *
SEC. 821. RULES OF CONSTRUCTION.
Sections 1101(b) and 1106 of the Civil Rights Act of 1964
shall apply to this title and section 901, except that for
purposes of that application, a reference in that section
1101(b) or 1106 to a ``covered title'' shall be considered a
reference to ``this title and section 901''.
SEC. 822. CLAIMS.
Section 1107 of the Civil Rights Act of 1964 shall apply to
this title and section 901, except that for purposes of that
application, a reference in that section 1107 to a ``covered
title'' shall be considered a reference to ``this title and
section 901''.
----------
CIVIL RIGHTS ACT OF 1968
* * * * * * *
TITLE IX
prevention of intimidation in fair housing cases
Sec. 901. Whoever, whether or not acting under color of law,
by force or threat of force willfully injures, intimidates or
interferes with or attempts to injure, intimidate or interfere
with--
(a) any person because of his race, color, religion,
sex, (including sexual orientation (as such term is
defined in section 802 of this Act) and gender identity
(as such term is defined in section 802 of this Act)),
handicap (as such term is defined in section 802 of
this Act), familial status (as such term is defined in
section 802 of this Act), or national origin and
because he is or has been selling, purchasing, renting,
financing, occupying, or contracting or negotiating for
the sale, purchase, rental, financing or occupation of
any dwelling, or applying for or participating in any
service, organization, or facility relating to the
business of selling or renting dwellings; or
(b) any person because he is or has been, or in order
to intimidate such person or any other person or any
class of persons from--
(1) participating, without discrimination on
account of race, color, religion, sex,
(including sexual orientation (as such term is
defined in section 802 of this Act) and gender
identity (as such term is defined in section
802 of this Act)), handicap (as such term is
defined in section 802 of this Act), familial
status (as such term is defined in section 802
of this Act), or national origin, in any of the
activities, services, organizations or
facilities described in subsection 901(a); or
(2) affording another person or class of
persons opportunity or protection so to
participate; or
(c) any citizen because he is or has been, or in
order to discourage such citizen or any other citizen
from lawfully aiding or encouraging other persons to
participate, without discrimination on account of race,
color, religion, sex, (including sexual orientation (as
such term is defined in section 802 of this Act) and
gender identity (as such term is defined in section 802
of this Act)), handicap (as such term is defined in
section 802 of this Act), familial status (as such term
is defined in section 802 of this Act), or national
origin, in any of the activities, services,
organizations or facilities described in subsection
901(a), or participating lawfully in speech or peaceful
assembly opposing any denial of the opportunity to so
participate--
shall be fined under title 18, United States Code, or
imprisoned not more than one year, or both; and if bodily
injury results from the acts committed in violation of this
section or if such acts include the use, attempted use, or
threatened use of a dangerous weapon, explosives, or fire shall
be fined under title 18, United States Code, or imprisoned not
more than ten years, or both; and if death results from the
acts committed in violation of this section or if such acts
include kidnapping or an attempt to kidnap, aggravated sexual
abuse or an attempt to commit aggravated sexual abuse, or an
attempt to kill, shall be fined under title 18, United States
Code, or imprisoned for any term of years or for life, or both.
* * * * * * *
----------
EQUAL CREDIT OPPORTUNITY ACT
* * * * * * *
TITLE VII--EQUAL CREDIT OPPORTUNITY
* * * * * * *
Sec. 701. Prohibited discrimination; reasons for adverse action
(a) It shall be unlawful for any creditor to discriminate
against any applicant, with respect to any aspect of a credit
transaction--
(1) on the basis of race, color, religion, national
origin, sex (including sexual orientation and gender
identity), or marital status, or age (provided the
applicant has the capacity to contract);
(2) because all or part of the applicant's income
derives from any public assistance program; or
(3) because the applicant has in good faith exercised
any right under the Consumer Credit Protection Act.
(b) It shall not constitute discrimination for purposes of
this title for a creditor--
(1) to make an inquiry of marital status if such
inquiry is for the purpose of ascertaining the
creditor's rights and remedies applicable to the
particular extension of credit and not to discriminate
in a determination of credit-worthiness;
(2) to make an inquiry of the applicant's age or of
whether the applicant's income derives from any public
assistance program if such inquiry is for the purpose
of determining the amount and probable continuance of
income levels, credit history, or other pertinent
element of credit-worthiness as provided in regulations
of the Board;
(3) to use any empirically derived credit system
which considers age if such system is demonstrably and
statistically sound in accordance with regulations of
the Bureau, except that in the operation of such system
the age of an elderly applicant may not be assigned a
negative factor or value;
(4) to make an inquiry or to consider the age of an
elderly applicant when the age of such applicant is to
be used by the creditor in the extension of credit in
favor of such applicant; or
(5) to make an inquiry under section 704B, in
accordance with the requirements of that section.
(c) It is not a violation of this section for a creditor to
refuse to extend credit offered pursuant to--
(1) any credit assistance program expressly
authorized by law for an economically disadvantaged
class of persons;
(2) any credit assistance program administered by a
nonprofit organization for its members or an
economically disadvantaged class of persons; or
(3) any special purpose credit program offered by a
profit-making organization to meet special social needs
which meets standards prescribed in regulations by the
Board;
if such refusal is required by or made pursuant to such
program.
(d)(1) Within thirty days (or such longer reasonable time as
specified in regulations of the Bureau for any class of credit
transaction) after receipt of a completed application for
credit, a creditor shall notify the applicant of its action on
the application.
(2) Each applicant against whom adverse action is taken shall
be entitled to a statement of reasons for such action from the
creditor. A creditor satisfies this obligation by--
(A) providing statements of reasons in writing as a
matter of course to applicants against whom adverse
action is taken; or
(B) giving written notification of adverse action
which discloses (i) the applicant's right to a
statement of reasons within thirty days after receipt
by the creditor of a request made within sixty days
after such notification, and (ii) the identity of the
person or office from which such statement may be
obtained. Such statement may be given orally, if the
written notification advises the applicant of his right
to have the statement of reasons confirmed in writing
on written request.
(3) A statement of reasons meets the requirements of this
section only if it contains the specific reasons for the
adverse action taken.
(4) Where a creditor has been requested by a third party to
make a specific extension of credit directly or indirectly to
an applicant, the notification and statement of reasons
required by this subsection may be made directly by such
creditor, or indirectly through the third party, provided in
either case that the identity of the creditor is disclosed.
(5) The requirements of paragraphs (2), (3), or (4) may be
satisfied by verbal statements or notifications in the case of
any creditor who did not act on more than one hundred and fifty
applications during the calendar year preceding the calendar
year in which the adverse action is taken, as determined under
regulations of the Board.
(6) For purposes of this subsection, the term ``adverse
action'' means a denial or revocation of credit, a change in
the terms of an existing credit arrangement, or a refusal to
grant credit in substantially the amount or on substantially
the terms requested. Such term does not include a refusal to
extend additional credit under an existing credit arrangement
where the applicant is delinquent or otherwise in default, or
where such additional credit would exceed a previously
established credit limit.
(e) Copies Furnished to Applicants.--
(1) In general.--Each creditor shall furnish to an
applicant a copy of any and all written appraisals and
valuations developed in connection with the applicant's
application for a loan that is secured or would have
been secured by a first lien on a dwelling promptly
upon completion, but in no case later than 3 days prior
to the closing of the loan, whether the creditor grants
or denies the applicant's request for credit or the
application is incomplete or withdrawn.
(2) Waiver.--The applicant may waive the 3 day
requirement provided for in paragraph (1), except where
otherwise required in law.
(3) Reimbursement.--The applicant may be required to
pay a reasonable fee to reimburse the creditor for the
cost of the appraisal, except where otherwise required
in law.
(4) Free copy.--Notwithstanding paragraph (3), the
creditor shall provide a copy of each written appraisal
or valuation at no additional cost to the applicant.
(5) Notification to applicants.--At the time of
application, the creditor shall notify an applicant in
writing of the right to receive a copy of each written
appraisal and valuation under this subsection.
(6) Valuation defined.--For purposes of this
subsection, the term ``valuation'' shall include any
estimate of the value of a dwelling developed in
connection with a creditor's decision to provide
credit, including those values developed pursuant to a
policy of a government sponsored enterprise or by an
automated valuation model, a broker price opinion, or
other methodology or mechanism.
Sec. 702. Definitions
(a) The definitions and rules of construction set forth in
this section are applicable for the purposes of this title.
(b) The term ``applicant'' means any person who applies to a
creditor directly for an extension, renewal, or continuation of
credit, or applies to a creditor indirectly by use of an
existing credit plan for an amount exceeding a previously
established credit limit.
(c) The term ``Bureau'' means the Bureau of Consumer
Financial Protection.
(d) The term ``credit'' means the right granted by a creditor
to a debtor to defer payment of debt or to incur debts and
defer its payment or to purchase property or services and defer
payment therefor.
(e) The term ``creditor'' means any person who regularly
extends, renews, or continues credit; any person who regularly
arranges for the extension, renewal, or continuation of credit;
or any assignee of an original creditor who participates in the
decision to extend, renew, or continue credit.
(f) The terms ``gender identity'', ``sex'', and ``sexual
orientation'' have the meanings given those terms in section
1101(a) of the Civil Rights Act of 1964.
(g) The term ``race'', ``color'', ``religion'', ``national
origin'', ``sex'' (including ``sexual orientation'' and
``gender identity''), ``marital status'', or ``age'', used with
respect to an individual, includes--
(1) the race, color, religion, national origin, sex
(including sexual orientation and gender identity),
marital status, or age, respectively, of another person
with whom the individual is associated or has been
associated; and
(2) a perception or belief, even if inaccurate,
concerning the race, color, religion, national origin,
sex (including sexual orientation and gender identity),
marital status, or age, respectively, of the
individual.
[(f)] (h) The term ``person'' means a natural person, a
corporation, government or governmental subdivision or agency,
trust, estate, partnership, cooperative, or association.
[(g)] (i) Any reference to any requirement imposed under this
title or any provision thereof includes reference to the
regulations of the Bureau under this title or the provision
thereof in question.
(j) Sections 1101(b) and 1106 of the Civil Rights Act of 1964
shall apply to this title, except that for purposes of that
application--
(1) a reference in those sections to a ``covered
title'' shall be considered a reference to ``this
title''; and
(2) paragraph (1) of such section 1101(b) shall apply
with respect to all aspects of a credit transaction.
* * * * * * *
Sec. 705. Relation to State laws
(a) A request for the signature of both parties to a marriage
for the purpose of creating a valid lien, passing clear title,
waiving inchoate rights to property, or assigning earnings,
shall not constitute discrimination under this title: Provided,
however, That this provision shall not be construed to permit a
creditor to take sex (including sexual orientation and gender
identity), or marital status into account in connection with
the evaluation of creditworthiness of any applicant.
(b) Consideration or application of State property laws
directly or indirectly affecting creditworthiness shall not
constitute discrimination for purposes of this title.
(c) Any provision of State law which prohibits the separate
extension of consumer credit to each party to a marriage shall
not apply in any case where each party to a marriage
voluntarily applies for separate credit from the same creditor:
Provided, That in any case where such a State law is so
preempted, each party to the marriage shall be solely
responsible for the debt so contracted.
(d) When each party to a marriage separately and voluntarily
applies for and obtains separate credit accounts with the same
creditor, those accounts shall not be aggregated or otherwise
combined for purposes of determining permissible finance
charges or permissible loan ceilings under the laws of any
State or of the United States.
(e) Where the same act or omission constitutes a violation of
this title and of applicable State law, a person aggrieved by
such conduct may bring a legal action to recover monetary
damages either under this title or under such State law, but
not both. This election of remedies shall not apply to court
actions in which the relief sought does not include monetary
damages or to administrative actions.
(f) This title does not annul, alter, or affect, or exempt
any person subject to the provisions of this title from
complying with, the laws of any State with respect to credit
discrimination, except to the extent that those laws are
inconsistent with any provision of this title, and then only to
the extent of the inconsistency. The Bureau is authorized to
determine whether such inconsistencies exist. The Bureau may
not determine that any State law is inconsistent with any
provision of this title if the Bureau determines that such law
gives greater protection to the applicant.
(g) The Bureau shall by regulation exempt from the
requirements of sections 701 and 702 of this title any class of
credit transactions within any State if it determines that
under the law of that State that class of transactions is
subject to requirements substantially similar to those imposed
under this title or that such law gives greater protection to
the applicant, and that there is adequate provision for
enforcement. Failure to comply with any requirement of such
State law in any transaction so exempted shall constitute a
violation of this title for the purposes of section 706.
Sec. 706. Civil liability
(a) Any creditor who fails to comply with any requirement
imposed under this title shall be liable to the aggrieved
applicant for any actual damages sustained by such applicant
acting either in an individual capacity or as a member of a
class.
(b) Any creditor, other than a government or governmental
subdivision or agency, who fails to comply with any requirement
imposed under this title shall be liable to the aggrieved
applicant for punitive damages in an amount not greater than
$10,000, in addition to any actual damages provided in
subsection (a), except that in the case of a class action the
total recovery under this subsection shall not exceed the
lesser of $500,000 or 1 per centum of the net worth of the
creditor. In determining the amount of such damages in any
action, the court shall consider, among other relevant factors,
the amount of any actual damages awarded, the frequency and
persistence of failures of compliance by the creditor, the
resources of the creditor, the number of persons adversely
affected, and the extent to which the creditor's failure of
compliance was intentional.
(c) Upon application by an aggrieved applicant, the
appropriate United States district court or any other court of
competent jurisdiction may grant such equitable and declaratory
relief as is necessary to enforce the requirements imposed
under this title.
(d) In the case of any successful action under subsection
(a), (b), or (c), the costs of the action, together with a
reasonable attorney's fee as determined by the court, shall be
added to any damages awarded by the court under such
subsection.
(e) No provision of this title imposing liability shall apply
to any act done or omitted in good faith in conformity with any
official rule, regulation, or interpretation thereof by the
Bureau or in conformity with any interpretation or approval by
an official or employee of the Bureau of Consumer Financial
Protection duly authorized by the Bureau to issue such
interpretations or approvals under such procedures as the
Bureau may prescribe therefor, notwithstanding that after such
act or omission has occurred, such rule, regulation,
interpretation, or approval is amended, rescinded, or
determined by judicial or other authority to be invalid for any
reason.
(f) Any action under this section may be brought in the
appropriate United States district court without regard to the
amount in controversy, or in any other court of competent
jurisdiction. No such action shall be brought later than 5
years after the date of the occurrence of the violation, except
that--
(1) whenever any agency having responsibility for
administrative enforcement under section 704 commences
an enforcement proceeding within 5 years after the date
of the occurrence of the violation,
(2) whenever the Attorney General commences a civil
action under this section within 5 years after the date
of the occurrence of the violation,
then any applicant who has been a victim of the discrimination
which is the subject of such proceeding or civil action may
bring an action under this section not later than one year
after the commencement of that proceeding or action.
(g) The agencies having responsibility for administrative
enforcement under section 704, if unable to obtain compliance
with section 701, are authorized to refer the matter to the
Attorney General with a recommendation that an appropriate
civil action be instituted. Each agency referred to in
paragraphs (1), (2), and (9) of section 704(a) shall refer the
matter to the Attorney General whenever the agency has reason
to believe that 1 or more creditors has engaged in a pattern or
practice of discouraging or denying applications for credit in
violation of section 701(a). Each such agency may refer the
matter to the Attorney General whenever the agency has reason
to believe that 1 or more creditors has violated section
701(a).
(h) When a matter is referred to the Attorney General
pursuant to subsection (g), or whenever he has reason to
believe that one or more creditors are engaged in a pattern or
practice in violation of this title, the Attorney General may
bring a civil action in any appropriate United States district
court for such relief as may be appropriate, including actual
and punitive damages and injunctive relief.
(i) No person aggrieved by a violation of this title and by a
violation of section 805 of the Civil Rights Act of 1968 shall
recover under this title and section 812 of the Civil Rights
Act of 1968, if such violation is based on the same
transaction.
(j) Nothing in this title shall be construed to prohibit the
discovery of a creditor's credit granting standards under
appropriate discovery procedures in the court or agency in
which an action or proceeding is brought.
(k) Notice to HUD of Violations.--Whenever an agency referred
to in paragraph (1), (2), or (3) of section 704(a)--
(1) has reason to believe, as a result of receiving a
consumer complaint, conducting a consumer compliance
examination, or otherwise, that a violation of this
title has occurred;
(2) has reason to believe that the alleged violation
would be a violation of the Fair Housing Act; and
(3) does not refer the matter to the Attorney General
pursuant to subsection (g),
the agency shall notify the Secretary of Housing and Urban
Development of the violation, and shall notify the applicant
that the Secretary of Housing and Urban Development has been
notified of the alleged violation and that remedies for the
violation may be available under the Fair Housing Act.
(l) Section 1107 of the Civil Rights Act of 1964 shall apply
to this title, except that for purposes of that application, a
reference in that section to a ``covered title'' shall be
considered a reference to ``this title''.
* * * * * * *
----------
TITLE 28, UNITED STATES CODE
* * * * * * *
PART V--PROCEDURE
* * * * * * *
CHAPTER 121--JURIES; TRIAL BY JURY
Sec.
1861. Declaration of policy.
* * * * * * *
1879. Rules of construction and claims.
* * * * * * *
Sec. 1862. Discrimination prohibited
No citizen shall be excluded from service as a grand or petit
juror in the district courts of the United States or in the
Court of International Trade on account of race, color,
religion, sex, (including sexual orientation and gender
identity), national origin, or economic status.
* * * * * * *
Sec. 1867. Challenging compliance with selection procedures
(a) In criminal cases, before the voir dire examination
begins, or within seven days after the defendant discovered or
could have discovered, by the exercise of diligence, the
grounds therefor, whichever is earlier, the defendant may move
to dismiss the indictment or stay the proceedings against him
on the ground of substantial failure to comply with the
provisions of this title in selecting the grand or petit jury.
(b) In criminal cases, before the voir dire examination
begins, or within seven days after the Attorney General of the
United States discovered or could have discovered, by the
exercise of diligence, the grounds therefor, whichever is
earlier, the Attorney General may move to dismiss the
indictment or stay the proceedings on the ground of substantial
failure to comply with the provisions of this title in
selecting the grand or petit jury.
(c) In civil cases, before the voir dire examination begins,
or within seven days after the party discovered or could have
discovered, by the exercise of diligence, the grounds therefor,
whichever is earlier, any party may move to stay the
proceedings on the ground of substantial failure to comply with
the provisions of this title in selecting the petit jury.
(d) Upon motion filed under subsection (a), (b), or (c) of
this section, containing a sworn statement of facts which, if
true, would constitute a substantial failure to comply with the
provisions of this title, the moving party shall be entitled to
present in support of such motion the testimony of the jury
commission or clerk, if available, any relevant records and
papers not public or otherwise available used by the jury
commissioner or clerk, and any other relevant evidence. If the
court determines that there has been a substantial failure to
comply with the provisions of this title in selecting the grand
jury, the court shall stay the proceedings pending the
selection of a grand jury in conformity with this title or
dismiss the indictment, whichever is appropriate. If the court
determines that there has been a substantial failure to comply
with the provisions of this title in selecting the petit jury,
the court shall stay the proceedings pending the selection of a
petit jury in conformity with this title.
(e) The procedures prescribed by this section shall be the
exclusive means by which a person accused of a Federal crime,
the Attorney General of the United States or a party in a civil
case may challenge any jury on the ground that such jury was
not selected in conformity with the provisions of this title.
Nothing in this section shall preclude any person or the United
States from pursuing any other remedy, civil or criminal, which
may be available for the vindication or enforcement of any law
prohibiting discrimination on account of race, color, religion,
sex, (including sexual orientation and gender identity),
national origin or economic status in the selection of persons
for service on grand or petit juries.
(f) The contents of records or papers used by the jury
commission or clerk in connection with the jury selection
process shall not be disclosed, except pursuant to the district
court plan or as may be necessary in the preparation or
presentation of a motion under subsection (a), (b), or (c) of
this section, until after the master jury wheel has been
emptied and refilled pursuant to section 1863(b)(4) of this
title and all persons selected to serve as jurors before the
master wheel was emptied have completed such service. The
parties in a case shall be allowed to inspect, reproduce, and
copy such records or papers at all reasonable times during the
preparation and pendency of such a motion. Any person who
discloses the contents of any record or paper in violation of
this subsection may be fined not more than $1,000 or imprisoned
not more than one year, or both.
* * * * * * *
Sec. 1869. Definitions
For purposes of this chapter--
(a) ``clerk'' and ``clerk of the court'' shall mean the clerk
of the district court of the United States, any authorized
deputy clerk, and any other person authorized by the court to
assist the clerk in the performance of functions under this
chapter;
(b) ``chief judge'' shall mean the chief judge of any
district court of the United States;
(c) ``voter registration lists'' shall mean the official
records maintained by State or local election officials of
persons registered to vote in either the most recent State or
the most recent Federal general election, or, in the case of a
State or political subdivision thereof that does not require
registration as a prerequisite to voting, other official lists
of persons qualified to vote in such election. The term shall
also include the list of eligible voters maintained by any
Federal examiner pursuant to the Voting Rights Act of 1965
where the names on such list have not been included on the
official registration lists or other official lists maintained
by the appropriate State or local officials. With respect to
the districts of Guam and the Virgin Islands, ``voter
registration lists'' shall mean the official records maintained
by territorial election officials of persons registered to vote
in the most recent territorial general election;
(d) ``lists of actual voters'' shall mean the official lists
of persons actually voting in either the most recent State or
the most recent Federal general election;
(e) ``division'' shall mean: (1) one or more statutory
divisions of a judicial district; or (2) in statutory divisions
that contain more than one place of holding court, or in
judicial districts where there are no statutory divisions, such
counties, parishes, or similar political subdivisions
surrounding the places where court is held as the district
court plan shall determine: Provided, That each county, parish,
or similar political subdivision shall be included in some such
division;
(f) ``district court of the United States'', ``district
court'', and ``court'' shall mean any district court
established by chapter 5 of this title, and any court which is
created by Act of Congress in a territory and is invested with
any jurisdiction of a district court established by chapter 5
of this title;
(g) ``jury wheel'' shall include any device or system similar
in purpose or function, such as a properly programed electronic
data processing system or device;
(h) ``juror qualification form'' shall mean a form prescribed
by the Administrative Office of the United States Courts and
approved by the Judicial Conference of the United States, which
shall elicit the name, address, age, race, occupation,
education, length of residence within the judicial district,
distance from residence to place of holding court, prior jury
service, and citizenship of a potential juror, and whether he
should be excused or exempted from jury service, has any
physical or mental infirmity impairing his capacity to serve as
juror, is able to read, write, speak, and understand the
English language, has pending against him any charge for the
commission of a State or Federal criminal offense punishable by
imprisonment for more than one year, or has been convicted in
any State or Federal court of record of a crime punishable by
imprisonment for more than one year and has not had his civil
rights restored. The form shall request, but not require, any
other information not inconsistent with the provisions of this
title and required by the district court plan in the interests
of the sound administration of justice. The form shall also
elicit the sworn statement that his responses are true to the
best of his knowledge. Notarization shall not be required. The
form shall contain words clearly informing the person that the
furnishing of any information with respect to his religion,
national origin, or economic status is not a prerequisite to
his qualification for jury service, that such information need
not be furnished if the person finds it objectionable to do so,
and that information concerning race is required solely to
enforce nondiscrimination in jury selection and has no bearing
on an individual's qualification for jury service.
(i) ``public officer'' shall mean a person who is either
elected to public office or who is directly appointed by a
person elected to public office;
(j) ``undue hardship or extreme inconvenience'', as a basis
for excuse from immediate jury service under section 1866(c)(1)
of this chapter, shall mean great distance, either in miles or
traveltime, from the place of holding court, grave illness in
the family or any other emergency which outweighs in immediacy
and urgency the obligation to serve as a juror when summoned,
or any other factor which the court determines to constitute an
undue hardship or to create an extreme inconvenience to the
juror; and in addition, in situations where it is anticipated
that a trial or grand jury proceeding may require more than
thirty days of service, the court may consider, as a further
basis for temporary excuse, severe economic hardship to an
employer which would result from the absence of a key employee
during the period of such service; [and]
(k) ``jury summons'' shall mean a summons issued by a clerk
of court, jury commission, or their duly designated deputies,
containing either a preprinted or stamped seal of court, and
containing the name of the issuing clerk imprinted in
preprinted, type, or facsimile manner on the summons or the
envelopes transmitting the summons[.];
(l) ``gender identity'', ``sex'', and ``sexual orientation''
have the meanings given such terms under section 1101(a) of the
Civil Rights Act of 1964; and
(m) ``race'', ``color'', ``religion'', ``sex'' (including
``sexual orientation'' and ``gender identity''), ``economic
status'', or ``national origin'', used with respect to an
individual, includes--
(1) the race, color, religion, sex (including sexual
orientation and gender identity), economic status, or
national origin, respectively, of another person with
whom the individual is associated or has been
associated; and
(2) a perception or belief, even if inaccurate,
concerning the race, color, religion, sex (including
sexual orientation and gender identity), economic
status, or national origin, respectively, of the
individual.
* * * * * * *
Sec. 1879. Rules of construction and claims
Sections 1101(b), 1106, and 1107 of the Civil Rights Act of
1964 shall apply to this chapter, except that for purposes of
that application, a reference in those sections to a ``covered
title'' shall be considered a reference to ``this chapter''.
* * * * * * *
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Signed,
Doug Collins,
Ranking Member.
Louie Gohmert.
Matt Gaetz.
Mike Johnson.
Tom McClintock.
Debbie Lesko.
Kelly Armstrong.
W. Gregory Steube.
Guy Reschenthaler.
Andy Biggs.
[all]