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Title II — Strengthening Workplace Rights

H.R. 2148 · 116th Congress · Apr 9, 2019 · Lineage

II Strengthening Workplace Rights

Sec. 201 Clarifying sexual orientation discrimination and gender identity discrimination are unlawful sex discrimination

(a)
Employment—
(1)
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:

“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”.”

(2)
Unlawful employment practices— Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) is amended—
(A)
in the section header, by striking “Sex,” and inserting “Sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”;
(B)
except in subsections (e), (j) and (m), by striking “sex,” each place it appears and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”;
(C)
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,”;
(D)
in subsection (h), by striking “sex” the second place it appears and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”;
(E)
in subsection (j)—
(i)
by striking “sex,” the first place it appears and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”; and
(ii)
by striking “sex,” the second and third places it appears and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”; and
(F)
in subsection (m), by striking “sex,” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”.
(3)
Other unlawful employment practices— Section 704(b) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3(b)) is amended—
(A)
by striking “sex,” the first place it appears and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”; and
(B)
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.”.
(4)
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, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”.
(5)
Employment by Federal Government— Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16) is amended—
(A)
in subsection (a), by striking “sex,” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”; and
(B)
in subsection (c), by striking “sex” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”.
(6)
Government Employee Rights Act of 1991— The Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16a et seq.) is amended—
(A)
in section 301(b), by striking “sex,” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”;
(B)
in section 302(a)(1), by striking “sex,” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”; and
(C)
by adding at the end the following:

“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, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), or national origin” shall be considered to be a reference to “race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), national origin, age, or disability”.”

(7)
Congressional Accountability Act of 1995— The Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.) is amended—
(A)
in section 201(a)(1) (2 U.S.C. 1311(a)(1)) by striking “sex,” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”; and
(B)
by adding at the end of title II (42 U.S.C. 1311 et seq.) the following:

“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, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), or national origin” shall be considered to be a reference to “race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), national origin, age, or disability”.”

(8)
Civil Service Reform Act of 1978— Chapter 23 of title 5, United States Code, is amended—
(A)
in section 2301(b)(2), by striking “sex,” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”;
(B)
in section 2302—
(i)
in subsection (b)(1)(A), by striking “sex,” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”; and
(ii)
in subsection (d)(1), by striking “sex,” and inserting “sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype),”; and
(C)
by adding at the end the following:

“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, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), or national origin” shall be considered to be a reference to “race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), national origin, age, disability, marital status, or political affiliation”.”

(b)
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:

“1101. Definitions and rules

“(a) Definitions—In title VII:

“(1) Race; color; religion; sex; sexual orientation; gender identity; national origin—The term race, color, religion, sex, or national origin, used with respect to an individual, includes—

“(A) the race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), 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, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), 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) Sexual orientation—The term sexual orientation means homosexuality, heterosexuality, or bisexuality.

“(b) Rules—In title VII—

“(1) with respect to sex, an individual's pregnancy, childbirth, or 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.”

(3)
by inserting after section 1105 the following:

“1106. Rules of construction

“(a) Sex—Nothing in section 1101 or the provisions of title VII 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, a medical condition related to pregnancy or childbirth 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 title VII, prohibiting a practice on the basis of sex.

“(b) Claims and remedies not precluded—Nothing in section 1101 or title VII 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, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), 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 BE HEARD in the Workplace Act, regulation, or policy.

“(c) No negative inference—Nothing in section 1101 or title VII 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, a medical condition related to pregnancy or childbirth, sexual orientation, gender identity, or a sex stereotype.

“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, title VII, or provide a basis for challenging the application or enforcement of title VII.”

Sec. 202 Covered employers

Section 701(b) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(b)) is amended by striking “fifteen” and inserting “one”.

Sec. 203 Compensatory and punitive damages available

(a)
Civil rights; disability—
(1)
In general— Section 1977A(b) of the Revised Statutes (42 U.S.C. 1981a(b)) is amended by striking paragraph (3) and inserting the following:

“(3) Losses—Compensatory damages are available under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.”

(2)
Conforming amendments—
(A)
Section 201(b) of the Congressional Accountability Act of 1995 (2 U.S.C. 1311(b)) is amended, in paragraphs (1)(B) and (3)(B)—
(i)
by striking “and, irrespective of the size of the employing office, 1977A(b)(3)(D)” and inserting “and 1977A(b)(3)”; and
(ii)
by striking “and 1981a(b)(3)(D)” and inserting “and 1981a(b)(3)”.
(B)
Section 411(b) of title 3, United States Code, is amended, in paragraphs (1)(B) and (3)(B), by striking “and, irrespective of the size of the employing office, 1977A(b)(3)(D)” and inserting “and 1977A(b)(3)”.
(C)
Section 207 of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff–16) is amended, in paragraph (3) of each of subsections (a) through (e), by striking “, including the limitations contained in subsection (b)(3) of such section 1977A,”.
(b)
Age— Section 7(b) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(b)) is amended—
(1)
by striking “(b) The” and all that follows through the third sentence and inserting the following:

“(b)

“(1) Except as otherwise provided in another subsection of this section, or section 9, the powers, remedies, and procedures set forth in sections 705, 706, 707, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9) shall be the powers, remedies, and procedures this Act provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of age in violation of section 4, or regulations promulgated under section 9.”

(2)
in the second sentence of that subsection (b), as amended by paragraph (1), by striking “or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section” and inserting “and including any type of legal or equitable relief available under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)”.

Sec. 204 Harassment and discrimination; standards of proof

(a)
Findings— Congress finds that—
(1)
harassment is a persistent and significant problem in the workplace in the United States;
(2)
workers are harassed because of their sex (including sexual orientation, gender identity, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth, and a sex stereotype), race, color, religion, national origin, age, disability, genetic information, and uniformed services status;
(3)
Congress enacted title VII of the Civil Rights Act of 1964 intending to provide broad protection from many forms of bias in the workplace;
(4)
the Supreme Court has recognized in City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978), that the protection against sex discrimination in the terms, conditions, or privileges of employment under title VII of the Civil Rights Act of 1964 reflects Congress’ intent to “strike at the entire spectrum” of sex-based discrimination in employment;
(5)
in 1980, the Equal Employment Opportunity Commission (referred to in this section as “the Commission”) amended its Guidelines on Discrimination Because of Sex (referred to in this section as “the Guidelines”) to specify that sexual harassment is a form of sex discrimination prohibited by title VII of the Civil Rights Act of 1964;
(6)
in the Guidelines, the Commission explained that harassing conduct is unlawful where—
(A)
“submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment”;
(B)
“submission to or rejection of such conduct by an individual is used as the basis for employment decisions”; or
(C)
the conduct “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment”;
(7)
the Commission further explained that, with respect to the evidence required to support a finding of unlawful harassment, it “will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred” and emphasized that the “determination of the legality of a particular action will be made from the facts, on a case by case basis”;
(8)
six years later, the Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), recognized that the protections under title VII of the Civil Rights Act of 1964 are not limited to discrimination that causes “economic” or “tangible” loss, and held that the phrase “terms, conditions, or privileges of employment” in title VII of such Act is an “expansive concept that sweeps within its protective ambit” the practice of creating a hostile work environment based on discrimination in the form of harassment;
(9)
in reaching this conclusion in the Meritor decision, the Supreme Court cited and approved the Guidelines;
(10)
in the Meritor decision, the Supreme Court cited with approval lower court decisions that concluded that a hostile work environment based on race, religion, or national origin violates the prohibition of discrimination in the terms, conditions, or privileges of employment under title VII of the Civil Rights Act of 1964, which decisions included—
(A)
Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971);
(B)
Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir. 1977);
(C)
Gray v. Greyhound Lines, 545 F.2d 169 (D.C. Cir. 1976);
(D)
Compston v. Borden, Inc., 424 F. Supp. 157 (S.D. Ohio 1976); and
(E)
Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87 (8th Cir. 1977);
(11)
in defining the evidence required to prove a violation of title VII of the Civil Rights Act of 1964, in the Meritor decision, the Supreme Court noted that harassment would be actionable when it is “sufficiently severe or pervasive “to alter the conditions of [the victim's] employment and create an abusive working environment”” (quoting Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971));
(12)
in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court clarified that harassment need not seriously affect an employee’s psychological well-being or lead the employee to suffer injury in order to be unlawful, but rather, need merely create a work environment that a reasonable person in the protected class would find hostile or abusive;
(13)
in Harris v. Forklift Systems, Inc., the Supreme Court held that whether a work environment is unlawfully hostile or abusive does not depend on any mathematically precise test, but rather, is to be determined by looking at all of the circumstances, with no single factor required;
(14)
in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court reaffirmed the Harris decision and further held that the hostility or abusiveness of each harassing act should be considered in the aggregate, not in isolation, regardless of whether such acts occur over days or even years;
(15)
notwithstanding the rulings of the Supreme Court specified in this subsection, some lower court decisions have treated harassing conduct’s severity or pervasiveness as the only 2 relevant factors in evaluating whether such conduct violates title VII of the Civil Rights Act of 1964;
(16)
some lower court decisions have treated “severe or pervasive” as a threshold for liability, when the relevant inquiry is whether the harassing conduct actually altered the terms, conditions, or privileges of employment;
(17)
some lower court decisions further have interpreted the “severe or pervasive” language in the Meritor decision so narrowly as to recognize only the most egregious conduct as unlawful, despite Congress’ intent that title VII of the Civil Rights Act of 1964 afford a broad scope of protection from discrimination;
(18)
examples of decisions that use the erroneous analysis described in paragraphs (15) through (17) in the context of harassment on the basis of sex include—
(A)
Singleton v. Department of Correctional Education, 115 Fed. Appx. 119 (4th Cir. 2004);
(B)
Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir. 1997);
(C)
Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993);
(D)
Rickard v. Swedish Match North America, Inc., 773 F.3d 181 (8th Cir. 2014);
(E)
Mitchell v. Pope, 189 F. Appx. 911 (11th Cir. 2006); and
(F)
Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000);
(19)
lower courts have made similar erroneous decisions in the context of harassment on the basis of race, national origin, age, and disability such as in Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996), Shaver v. Independent Stave Co., 350 F.3d 716 (8th Cir. 2003), and Motley v. Parker-Hannifan Corp., No. 1: 94–CV–639 (W.D. Mich. 1995);
(20)
in contrast, other lower court decisions applying the Meritor case and its progeny have appropriately recognized that a wide range of harassing behavior may alter the terms, conditions, or privileges of employment, with no single type, frequency, or duration of conduct required to make a showing of severe or pervasive harassment;
(21)
for example, in the context of harassment based on sex, those decisions have held that—
(A)
conduct need not be physical to create a hostile or abusive work environment, as in Billings v. Town of Grafton, 515 F.3d 39 (1st Cir. 2008);
(B)
an individual need not be the target of sexually demeaning conduct in order to experience unlawful harassment, as in Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004);
(C)
power disparities, such as the young age of the individual harassed, compound the conduct’s harmful effects, as in EEOC v. R&R Ventures, 244 F.3d 334 (4th Cir. 2001);
(D)
gender-based epithets are equally as unlawful as overtly sexual conduct, as in Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009); and
(E)
a single incident can alter the terms, conditions, or privileges of employment, as in Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000);
(22)
similarly, in the context of harassment based on other protected characteristics, other courts have appropriately held that—
(A)
calling an individual an “old man” and “pops” could create an actionably hostile work environment based on age, as in Dediol v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011);
(B)
repeatedly calling an individual with mental illness “crazy” and stating that the individual is a threat to security is sufficient to support a finding of a hostile work environment based on disability, as in Quiles-Quiles v. Henderson, 439 F.3d 1 (1st Cir. 2006); and
(C)
a single incident of calling an African-American individual the “n word” is sufficient to support a finding of a hostile work environment based on race, as in Rodgers v. Western-Southern Life Insurance Co., 12 F.3d 668 (7th Cir. 1993); and
(23)
similar erroneous decisions have been rendered in the context of harassment on the basis of sex in employment under title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), as in Farmer v. Troy University, No. 5:17–CV–70–B0 (E.D.N.C. 2017).
(b)
Purposes— The purposes of this section are to—
(1)
enact into statutory law provisions that establish that workplace harassment is a violation of the—
(A)
protections from discrimination in the “terms, conditions, or privileges of employment” found in title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
(B)
protections from disability discrimination found in title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and sections 501 and 505 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 794a);
(C)
protections from age discrimination found in the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.);
(D)
protections from genetic information discrimination found in title II of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.); and
(E)
protections from uniformed services status discrimination found in section 4311 of title 38, United States Code; and
(2)
establish a liability standard for workplace harassment that fulfills Congress’ intent of providing broad protection from discrimination in employment on the basis of race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), national origin, age, disability, genetic information, and uniformed services status.
(c)
Enacting into statutory law provisions establishing workplace harassment as an unlawful employment practice—
(1)
Civil Rights Act of 1964— Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by adding at the end the following:

“(o)

“(1)

“(A) In this subsection, the term workplace harassment means conduct based on race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and a sex stereotype), or national origin, regardless of whether it is direct or indirect, or verbal or nonverbal, that unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment.

“(B)

“(i) In this subsection, the term includes sexual harassment, which is conduct that takes place in a circumstance described in clause (ii) and that takes the form of—

“(I) a sexual advance;

“(II) a request for sexual favors; or

“(III) any other conduct of a sexual nature.

“(ii) A circumstance described in this clause is a situation in which—

“(I) submission to the conduct involved is made either explicitly or implicitly a term or condition of employment;

“(II) submission to or rejection of such conduct is used as the basis for an employment decision affecting an individual’s employment; or

“(III) such conduct unreasonably alters an individual's terms, conditions, or privileges of employment, including by creating an intimidating hostile, or offensive work environment.

“(2) It shall be an unlawful employment practice under subsection (a) to engage in workplace harassment.

“(3) In determining, for purposes of this subsection, whether conduct constitutes workplace harassment because the conduct unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment, the following rules shall apply:

“(A) That determination shall be made on the basis of the record as a whole, according to the totality of the circumstances. A single incident may constitute workplace harassment.

“(B) Incidents that may be workplace harassment shall be considered in the aggregate, with—

“(i) conduct of varying types (such as expressions of sex-based hostility, requests for sexual favors, and denial of employment opportunities due to sexual orientation) viewed in totality, rather than in isolation; and

“(ii) conduct based on multiple protected characteristics (such as sex and race) viewed in totality, rather than in isolation.

“(C) The factors specified in this subparagraph are among the factors to be considered in determining whether conduct constitutes workplace harassment and are not meant to be exhaustive. No one of those factors shall be considered to be determinative in establishing whether conduct constitutes workplace harassment. Such factors are each of the following:

“(i) The frequency of the conduct.

“(ii) The duration of the conduct.

“(iii) The location where the conduct occurred.

“(iv) The number of individuals engaged in the conduct.

“(v) The nature of the conduct, which may include physical, verbal, pictorial, or visual conduct, and conduct that occurs in person or is transmitted, such as electronically.

“(vi) Whether the conduct is threatening.

“(vii) Any power differential between the alleged harasser and the person allegedly harassed.

“(viii) Any use of epithets, slurs, or other conduct that is humiliating or degrading.

“(ix) Whether the conduct reflects stereotypes about individuals in the protected class involved.

“(4) In determining, for purposes of this subsection, whether conduct constitutes workplace harassment, conduct may be workplace harassment regardless of whether, for example—

“(A) the complaining party is not the individual being harassed;

“(B) the complaining party acquiesced or otherwise submitted to, or participated in, the conduct;

“(C) the conduct is also experienced by others outside the protected class involved;

“(D) the complaining party was able to continue carrying out duties and responsibilities of the party's job despite the conduct;

“(E) the conduct did not cause a tangible injury or psychological injury; or

“(F) the conduct occurred outside of the workplace.”

(2)
Americans with Disabilities Act of 1990— Section 102(b) of the Americans with Disabilities Act (42 U.S.C. 12112(b)) is amended—
(A)
in paragraph (6), by striking “and” at the end;
(B)
in paragraph (7), by striking the period and inserting “; and”; and
(C)
by adding at the end the following:

“(8) engaging in workplace harassment, which is conduct based on disability, regardless of whether it is direct or indirect, or verbal or nonverbal, that—

“(A) unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment; and

“(B) is determined to be such harassment in accordance with paragraphs (3) and (4) of section 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2(o)).”

(3)
Rehabilitation Act of 1973— Section 501(f) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f)) is amended by inserting “, including section 102(b) of that Act (42 U.S.C. 12112(b))”, before “and the provisions”.
(4)
Age Discrimination in Employment Act— Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is amended by adding at the end the following:

“(n) It shall be unlawful under subsection (a) to engage in workplace harassment, which is conduct based on age, regardless of whether it is direct or indirect, or verbal or nonverbal, that—

“(1) unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment; and

“(2) is determined to be such harassment in accordance with paragraphs (3) and (4) of section 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2(o)).”

(5)
Genetic Information Nondiscrimination Act of 2008— Section 202 of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff–1) is amended by adding at the end the following:

“(d) Workplace harassment—It shall be an unlawful employment practice under subsection (a) to engage in workplace harassment, which is conduct based on genetic information, regardless of whether it is direct or indirect, or verbal or nonverbal, that—

“(1) unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment; and

“(2) is determined to be such harassment in accordance with paragraphs (3) and (4) of section 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2(o)).”

(6)
Chapter 43 of title 38, United States Code— Section 4311 of title 38, United States Code, is amended by adding at the end the following:

“(e) It shall be an unlawful employment practice under subsection (a) to engage in workplace harassment, which is conduct based on uniformed services status (meaning the membership, application for membership, performance of service, application for service, or obligation, described in subsection (a)), regardless of whether it is direct or indirect, or verbal or nonverbal, that—

“(1) unreasonably alters an individual’s benefits of employment, including by creating an intimidating, hostile, or offensive work environment; and

“(2) is determined to be such harassment in accordance with paragraphs (3) and (4) of section 703(o) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2(o)).”

Sec. 205 Clarifying other standards of proof

(a)
Amendments to definitions—
(1)
Americans with Disabilities Act of 1990— Section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) is amended by adding at the end the following:

“(11) Demonstrates—The term demonstrates means meets the burdens of production and persuasion.”

(2)
Age Discrimination in Employment Act of 1967— Section 11 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 630) is amended by adding at the end the following:

“(m) The term demonstrates means meets the burdens of production and persuasion.”

(3)
Genetic Information Nondiscrimination Act of 2008— Section 201 of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff) is amended by adding at the end the following:

“(8) Demonstrates—The term demonstrates means meets the burdens of production and persuasion.”

(b)
Clarifying prohibition against impermissible consideration in employment practices—
(1)
Race, color, religion, sex, or national origin— Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by striking subsection (m) and inserting the following:

“(m) Except as otherwise provided in this title, an unlawful employment practice is established under this title when the complaining party demonstrates that race, color, religion, sex, or national origin or an activity protected by section 704(a) was a motivating factor for any employment practice, even though other factors also motivated the practice.”

(2)
Disability— Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is amended by adding at the end the following:

“(e) Proof

“(1) Establishment—Except as otherwise provided in this Act, a discriminatory practice is established under this Act when the complaining party demonstrates that disability or an activity protected by subsection (a) or (b) of section 503 was a motivating factor for any employment practice, even though other factors also motivated the practice.

“(2) Demonstration—In establishing a discriminatory practice under paragraph (1) or by any other method of proof, a complaining party—

“(A) may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that a discriminatory practice occurred under this Act; and

“(B) shall not be required to demonstrate that disability or an activity protected by subsection (a) or (b) of section 503 was the sole cause of an employment practice.”

(3)
Age— Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is amended by inserting after subsection (f) the following:

“(g)

“(1) Except as otherwise provided in this Act, an unlawful practice is established under this Act when the complaining party demonstrates that age or an activity protected by subsection (d) was a motivating factor for any practice, even though other factors also motivated the practice.

“(2) In establishing an unlawful practice under this Act, including under paragraph (1) or by any other method of proof, a complaining party—

“(A) may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that an unlawful practice occurred under this Act; and

“(B) shall not be required to demonstrate that age or an activity protected by subsection (d) was the sole cause of a practice.”

(4)
Genetic information— Section 202 of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff–1), as amended by section 204(c)(5), is further amended by adding at the end the following:

“(e) Proof

“(1) Establishment—Except as otherwise provided in this title, an unlawful employment practice is established under this title when the complaining party demonstrates that genetic information or an activity protected by section 207(f) was a motivating factor for any employment practice, even though other factors also motivated the practice.

“(2) Demonstration—In establishing an unlawful employment practice under paragraph (1) or by any other method of proof, a complaining party—

“(A) may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that an unlawful employment practice occurred under this title; and

“(B) shall not be required to demonstrate that genetic information or an activity protected by section 207(f) was the sole cause of an employment practice.”

(c)
Certain retaliation claims—
(1)
Americans with Disabilities Act of 1990— Section 503(c) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12203(c)) is amended—
(A)
by striking “The remedies” and inserting the following:

“(1) In general—Except as provided in paragraph (2), the remedies”

(B)
by adding at the end the following:

“(2) Certain antiretaliation claims—Section 107(c) shall apply to claims under section 102(e)(1) with respect to title I.”

(2)
Age Discrimination in Employment Act of 1967— Section 4(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(d)) is amended—
(A)
by striking “(d) It shall be” and inserting “(d)(1) It shall be”; and
(B)
by adding at the end the following:

“(2) Section 7(b)(2) shall apply to claims under section 4(g)(1).”

(3)
Genetic Information Nondiscrimination Act of 2008— Section 207(f) of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff–6(f)) is amended—
(A)
by striking “No” and inserting the following:

“(1) In general—No”

(B)
in the second sentence, by striking “The remedies” and inserting “Except as provided in paragraph (2), the remedies”; and
(C)
by adding at the end the following:

“(2) Certain retaliation claims—Subsection (g) shall apply to claims under section 202(d)(1).”

(d)
Remedies—
(1)
Americans with Disabilities Act of 1990— Section 107 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117) is amended by adding at the end the following:

“(c) Discriminatory motivating factor—On a claim in which an individual demonstrates that disability was a motivating factor for any employment practice, under section 102(e)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—

“(1) may grant declaratory relief, injunctive relief (except as provided in paragraph (2)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 102(e)(1); and

“(2) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.”

(2)
Age Discrimination in Employment Act of 1967— Section 7 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626) is amended—
(A)
in subsection (b), as amended by section 203(b)—
(i)
in the second sentence, by striking “In” and inserting “Subject to paragraph (2), in”;
(ii)
in the third sentence, by striking “Before” and inserting the following:

“(3) Before”

(iii)
by inserting before paragraph (3), as designated by clause (ii), the following:

“(2) On a claim in which an individual demonstrates that age was a motivating factor for any employment practice, under section 4(g)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—

“(A) may grant declaratory relief, injunctive relief (except as provided in subparagraph (B)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 4(g)(1); and

“(B) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.”

(B)
in subsection (c)—
(i)
in paragraph (1), by striking “Any” and inserting “Subject to subsection (b)(2), any”; and
(ii)
in paragraph (2), by striking “of any issue of fact” and all that follows through the period and inserting “under the same circumstances as a trial by jury is available under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.).”.
(3)
Genetic Information Nondiscrimination Act of 2008— Section 207 of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff–6) is amended—
(A)
by redesignating subsection (g) as subsection (h); and
(B)
by inserting after subsection (f) the following:

“(g) Motivating factor—On a claim in which an individual demonstrates that genetic information was a motivating factor for any employment practice, under section 202(e)(1), including a claim involving an employee or applicant described in any of subsections (a) through (e), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court or the corresponding decisionmaker specified in subsections (a) through (e)—

“(1) may grant declaratory relief, injunctive relief (except as provided in paragraph (2)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 202(d)(1); and

“(2) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.”

(e)
Federal employees—
(1)
Title VII of the Civil Rights Act of 1964— Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16) is amended by adding at the end the following:

“(g) Sections 703(m) and 706(g)(2)(B) shall apply to mixed motive cases (involving practices described in section 703(m)) under this section.”

(2)
Rehabilitation Act of 1973— The amendment made by subsection (f) to section 501(f) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f)) shall be construed to apply to all employees covered by section 501 of that Act (29 U.S.C. 791).
(3)
Age Discrimination in Employment Act of 1967— Section 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a) is amended—
(A)
in subsection (a)—
(i)
by striking “States) in” and inserting “States) shall be made free from any discrimination based on age, in—”;
(ii)
by striking “military departments” and inserting the following:

“(1) military departments”

(iii)
by striking “Code, in executive agencies” and inserting the following: “Code;

“(2) executive agencies”

(iv)
by striking “funds), in the United States Postal” and inserting the following: “funds);

“(3) the United States Postal”

(v)
by striking “Commission, in those units” and inserting the following: “Commission;

“(4) those units”

(vi)
by striking “competitive service, and in those units” and inserting the following: “competitive service;

“(5) those units”

(vii)
by striking “competitive service, in the Smithsonian” and inserting “competitive service;

“(6) the Smithsonian”

(viii)
by striking “Institution, and in the Government” and inserting “Institution;

“(7) the Government”

(ix)
by striking “Printing Office, the General” and inserting “Printing Office;

“(8) the General”

(x)
by striking “Office, and the Library” and inserting “Office; and

“(9) the Library”

(xi)
by striking “of Congress” and all that follows and inserting “of Congress.”;
(B)
in subsection (b), by striking the first, second, third, fourth, and sixth sentences;
(C)
in subsection (c), by striking “Any person” and inserting “Notwithstanding any other provision of this Act, any person”;
(D)
by striking subsection (g) and inserting the following:

“(g) Except as otherwise provided in another subsection of this section, section 7, or section 9, the powers, remedies, and procedures provided in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16) to the Commission, the Attorney General, the Librarian of Congress, or any person, alleging a violation of that section shall be the powers, remedies, and procedures this Act provides to the Commission, the Attorney General, the Librarian of Congress, or any person, respectively, alleging an unlawful employment practice in violation of subsection (a) against an employee or applicant for employment described in subsection (a).”

(E)
by adding at the end the following:

“(h) Section 4(g) shall apply to mixed motive claims (involving practices described in section 4(g)(1)) under this section.”

(f)
Additional amendments to the Rehabilitation Act of 1973— Sections 501(f), 503(d), and 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 793(d), and 794(d)), are each amended by adding after the words “title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)” the following: “, including the standards of causation and methods of proof applied under section 102(e) of that Act (42 U.S.C. 12112(e)),”.
(g)
Other Government employees—
(1)
Congressional Accountability Act of 1995— Section 201 of the Congressional Accountability Act of 1995 (2 U.S.C. 1311) is amended—
(A)
in subsection (a)(2), by striking “section 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a)” and inserting “sections 4(g) and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(g), 633a)”; and
(B)
in subsection (b)—
(i)
in paragraph (2)(A), by striking “section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c))” and inserting “section 4(d)(2), paragraphs (1) and (2) of section 7(b), and section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(d)(2), 626(b), 633a(c))”; and
(ii)
in paragraph (3)(A), by striking “section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a))” and inserting “subsections (a) and (c) of section 107, and section 503(c)(2), of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117, 12203)”.
(2)
Title 3, United States Code— Section 411 of title 3, United States Code, is amended—
(A)
in subsection (a)(2), by striking “section 15 of the Age Discrimination in Employment Act of 1967” and inserting “sections 4(g) and 15 of the Age Discrimination in Employment Act of 1967”; and
(B)
in subsection (b)—
(i)
in paragraph (2)(A), by striking “section 15(c) of the Age Discrimination in Employment Act of 1967” and inserting “section 4(d)(2), paragraphs (1) and (2) of section 7(b), and section 15(c) of the Age Discrimination in Employment Act of 1967”; and
(ii)
in paragraph (3)(A), by striking “section 107(a) of the Americans with Disabilities Act of 1990” and inserting “subsections (a) and (c) of section 107, and section 503(c)(2), of the Americans with Disabilities Act of 1990”.
(3)
Government Employee Rights Act of 1991— Section 302 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b) is amended—
(A)
in subsection (a)(2), by striking “section 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a)” and inserting “sections 4(g) and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(g), 633a)”; and
(B)
in subsection (b)—
(i)
in paragraph (1), by inserting “(and, in the case of a violation of subsection (a)(3), sections 107(c) and 503(c)(2) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(c), 12203(c)(2)))” before “, and”; and
(ii)
in paragraph (2), by striking “section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c))” and inserting “section 4(d)(2), paragraphs (1) and (2) of section 7(b), and section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(d)(2), 626(b), 633a(c))”.
(h)
Application— This section, and the amendments made by this section, shall apply to all claims pending on or after the date of enactment of this Act.

Sec. 206 Supervisor liability

(a)
Amendment to Title VII of the Civil Rights Act of 1964—
(1)
Standard for employer liability for hostile work environment— Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2), as amended by 204(c)(1), is further amended by adding at the end the following:

“(p) Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes an unlawful employment practice under this section if, at the time of the harassment—

“(1) such individual was authorized by that employer—

“(A) to undertake or recommend tangible employment actions affecting the employee; or

“(B) to direct the employee’s daily work activities; or

“(2) the negligence of the employer led to the creation or continuation of that hostile work environment.”

(2)
Standard for employer liability for retaliatory hostile work environment— Section 704 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3), as amended by section 201(a)(3), is further amended—
(A)
by redesignating subsection (b) as subsection (c); and
(B)
by inserting after subsection (a) the following:

“(b) Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes an unlawful employment practice as described under subsection (a) if, at the time of the harassment—

“(1) such individual was authorized by that employer—

“(A) to undertake or recommend tangible employment actions affecting the employee; or

“(B) to direct the employee’s daily work activities; or

“(2) the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment.”

(3)
Federal employees— Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), as amended by section 205(e)(1), is further amended by adding at the end the following:

“(h) The provisions of sections 703(p) and 704(b) shall apply to hostile work environment claims and retaliatory hostile work environment claims, respectively, under this section.”

(b)
Amendment to the Age Discrimination in Employment Act of 1967—
(1)
Standard for employer liability for hostile work environment— Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623), as amended by section 204(c)(4), is further amended by adding at the end the following:

“(o) Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that is unlawful under this section if, at the time of the harassment—

“(1) such individual was authorized by that employer—

“(A) to undertake or recommend tangible employment actions affecting the employee; or

“(B) to direct the employee’s daily work activities; or

“(2) the negligence of the employer led to the creation or continuation of that hostile work environment.”

(2)
Standard for employer liability for retaliatory hostile work environment— Section 4(d)(1) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623(d)(1)), as amended by section 205(c)(2), is further amended by striking “or litigation under this Act.” and inserting “or litigation under this Act. Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that is unlawful under this subsection if, at the time of the harassment—

“(A) such individual was authorized by that employer—

“(i) to undertake or recommend tangible employment actions affecting the employee; or

“(ii) to direct the employee’s daily work activities; or

“(B) the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment.”

(3)
Federal employees— Section 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), as amended by section 205(e)(3), is further amended by adding at the end the following:

“(i) Subsections (d) and (o) of section 4 shall apply to retaliatory hostile work environment claims and hostile work environment claims, respectively, under this section.”

(c)
Amendment to the Americans with Disabilities Act of 1990—
(1)
Standard for employer liability for hostile work environment— Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), as amended by section 205(b)(2), is further amended by adding at the end the following:

“(f) Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes discrimination against a qualified individual on the basis of disability under this section if, at the time of the harassment—

“(1) such individual was authorized by the employer—

“(A) to undertake or recommend tangible employment actions affecting the qualified individual; or

“(B) to direct the qualified individual’s daily work activities; or

“(2) the negligence of the employer led to the creation or continuation of that hostile work environment.”

(2)
Standard for employer liability for retaliatory hostile work environment— Section 503 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12203) is amended—
(A)
by redesignating subsection (c) as subsection (d);
(B)
by inserting after subsection (b) the following:

“(c) Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes retaliatory discrimination, as described in subsection (a), or the carrying out of any unlawful acts described in subsection (b), if, at the time of the harassment—

“(1) such individual was authorized by the employer—

“(A) to undertake or recommend tangible employment actions affecting the employee; or

“(B) to direct the employee’s daily work activities; or

“(2) the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment.”

(C)
in subsection (d), as redesignated by subparagraph (A), by striking “subsections (a) and (b)” and inserting “subsections (a), (b), and (c)”.
(d)
Amendment to the Rehabilitation Act of 1973—
(1)
Standard for employer liability for hostile work environment and retaliatory hostile work environment— Section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) is amended by adding at the end the following:

“(h) Subject to section 206(j) of the BE HEARD in the Workplace Act, each department, agency, and instrumentality in the executive branch of Government and the Smithsonian Institution shall be liable for the acts of any individual within such department, agency, instrumentality, or the Smithsonian Institution whose harassment of an individual with a disability has created or continued a hostile work environment, or a retaliatory hostile work environment, that constitutes nonaffirmative action employment discrimination under this section if, at the time of the harassment—

“(1) such individual was authorized by that department, agency, instrumentality, or the Smithsonian Institution—

“(A) to undertake or recommend tangible employment actions affecting the individual with a disability; or

“(B) to direct the daily work activities of the individual with a disability; or

“(2) the negligence of that department, agency, instrumentality, or the Smithsonian Institution led to the creation or continuation of that hostile work environment or retaliatory hostile work environment.”

(2)
Standard for employer liability for hostile work environment and retaliatory hostile work environment— Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) is amended by adding at the end the following:

“(e) Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer described under subsection (b) shall be liable for the acts of any individual whose harassment of a qualified individual with a disability has created or continued a hostile work environment, or a retaliatory hostile work environment, that constitutes employment discrimination under this section if, at the time of the harassment—

“(1) such individual was authorized by such employer—

“(A) to undertake or recommend tangible employment actions affecting the qualified individual with a disability; or

“(B) to direct the daily work activities of the qualified individual with a disability; or

“(2) the negligence of such employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment.”

(3)
Remedies— Section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) is amended by adding at the end of subsection (a) the following:

“(3) Sections 501(h) and 504(e) shall apply to hostile work environment claims and retaliatory hostile work environment claims under this section.”

(e)
Amendment to Section 1977 of the Revised Statutes— Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended by adding at the end the following:

“(d) Subject to section 206(j) of the BE HEARD in the Workplace Act, a nongovernmental employer shall be liable for the acts of any individual whose harassment of an employee has created a hostile work environment or a retaliatory hostile work environment, constituting an unlawful employment practice, if, at the time of the harassment—

“(1) such individual was authorized by the employer—

“(A) to undertake or recommend tangible employment actions affecting the employee; or

“(B) to direct the employee’s daily work activities; or

“(2) the negligence of the employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment.”

(f)
Amendment to the Genetic Information Nondiscrimination Act of 2008—
(1)
Standard for employer liability for hostile work environment— Section 202 of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff–1), as amended by sections 204(c)(5) and 205(b)(4), is further amended by adding at the end the following:

“(f) Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a hostile work environment that constitutes an unlawful employment practice under this section if, at the time of the harassment—

“(1) such individual was authorized by the employer—

“(A) to undertake or recommend tangible employment actions affecting the employee; or

“(B) to direct the employee’s daily work activities; or

“(2) the negligence of the employer led to the creation or continuation of that hostile work environment.”

(2)
Standard for employer liability for retaliatory hostile work environment— Section 207(f)(1) of the Genetic Information Nondiscrimination Act (42 U.S.C. 2000ff–6(f)(1)), as amended by section 205(c)(2), is further amended by striking “violations of this subsection.” and inserting “violations of this subsection. Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer shall be liable for the acts of any individual whose harassment of an employee has created or continued a retaliatory hostile work environment that constitutes discrimination under this subsection if, at the time of the harassment—

“(A) such individual was authorized by the employer—

“(i) to undertake or recommend tangible employment actions affecting the employee; or

“(ii) to direct the employee’s daily work activities; or

“(B) the negligence of the employer led to the creation or continuation of that retaliatory hostile work environment.”

(g)
Amendment to the Government Employee Rights Act of 1991— Section 302 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b) is amended by adding at the end the following:

“(c) Subject to section 206(j) of the BE HEARD in the Workplace Act, an employer of an individual described under section 304(a) shall be liable for the acts of any individual whose harassment of a State employee described in section 304 has created or continued a hostile work environment or a retaliatory hostile work environment constituting discrimination under this section, if at the time of the harassment—

“(1) such individual was authorized by such employer—

“(A) to undertake or recommend tangible employment actions affecting the employee; or

“(B) to direct the employee’s daily work activities; or

“(2) the negligence of the employer led to the creation or continuation of that hostile work environment or retaliatory hostile work environment.”

(h)
Amendment to Title 3, United States Code— Section 411 of title 3, United States Code, is amended—
(1)
by redesignating subsections (c) through (f) as subsections (d) through (g), respectively;
(2)
by inserting after subsection (b) the following:

“(c) Liability of employing office—Subject to section 206(j) of the BE HEARD in the Workplace Act, an employing office shall be liable for the acts of any individual whose harassment of a covered employee has created or continued a hostile work environment or a retaliatory hostile work environment constituting discrimination under this section if, at the time of the harassment—

“(1) such individual was authorized by the employing office—

“(A) to undertake or recommend tangible employment actions affecting the covered employee; or

“(B) to direct the covered employee’s daily work activities; or

“(2) the negligence of the employing office led to the creation or continuation of that hostile work environment or retaliatory hostile work environment.”

(3)
in subsection (f), as redesignated by paragraph (1), by striking “subsections (a) through (c)” and inserting “subsections (a) through (d).”.
(i)
Amendment to the Congressional Accountability Act of 1995— Section 201 of the Congressional Accountability Act of 1995 (2 U.S.C. 1311), as amended by section 302(a) of the Congressional Accountability Act of 1995 Reform Act, is further amended—
(1)
by striking subsection (e); and
(2)
by adding at the end the following:

“(e) Outside individuals—Subject to section 206(j) of the BE HEARD in the Workplace Act, an employing office shall be liable for the acts of any individual whose harassment of a covered employee has created or continued a hostile work environment or a retaliatory hostile work environment that constitutes discrimination under this section if, at the time of the harassment—

“(1) such individual was authorized by the employing office—

“(A) to undertake or recommend tangible employment actions affecting the covered employee; or

“(B) to direct the covered employee’s daily work activities; or

“(2) the negligence of the employing office led to the creation or continuation of that hostile work environment or retaliatory hostile work environment.”

(j)
Rule of construction— Nothing in this section shall be construed to limit the availability of, or access to, defenses available under the law.
(k)
Application— This section, and the amendments made by this section, shall apply to all claims pending on or after the date of enactment of this Act.

Sec. 207 Extending the statutes of limitations

(a)
Civil Rights Act of 1964; Americans with Disabilities Act of 1990; Genetic Information Nondiscrimination Act of 2008— Section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–5) is amended—
(1)
in subsection (e)—
(A)
in paragraph (1)—
(i)
by striking “one hundred and eighty days after the alleged unlawful employment practice occurred” and inserting “4 years after the alleged unlawful employment practice occurred.”; and
(ii)
by striking “three hundred days after the alleged unlawful employment practice occurred” and inserting “4 years and 120 days after the alleged unlawful employment practice occurred.”; and
(B)
in paragraph (3)(B), by striking “two years preceding the filing of the charge” and all that follows and inserting “4 years preceding the filing of the charge.”; and
(2)
in subsection (g)(1), by striking “two years prior to the filing of a charge” and inserting “4 years preceding the filing of the charge”.
(b)
Age Discrimination in Employment Act of 1967— Section 7(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(d)) is amended—
(1)
in the second sentence, by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively;
(2)
by striking “(d)” and all that follows through “No” and inserting “(d)(1) No”; and
(3)
in paragraph (1), as designated by paragraph (2) of this subsection—
(A)
by striking “Secretary. Such” and inserting “Secretary, and such”;
(B)
in subparagraph (A), by striking “180 days after the alleged unlawful practice occurred” and inserting “4 years after the alleged unlawful practice occurred”; and
(C)
in subparagraph (B), by striking “300 days after the alleged unlawful practice occurred” and inserting “4 years and 120 days after the alleged unlawful practice occurred”.

Sec. 208 Extending the time limitations on Federal employees filing a complaint

(a)
In general— The Equal Employment Opportunity Commission (referred to in this section as “the Commission”) shall ensure that a covered Federal employee shall not be required to take any action necessary to bring a complaint to the department, agency, unit, or instrumentality involved prior to 4 years from the date of the matter alleged to be discriminatory or, in the case of personnel action, 4 years from the effective date of the personnel action.
(b)
Covered employees and complaints— In this section, the term covered Federal employee means—
(1)
an employee or applicant to whom section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16(a)) applies, in the case of a complaint brought under section 717 of that Act (42 U.S.C. 2000e–16);
(2)
an employee or applicant to whom section 15(a) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(a)) applies, in the case of a complaint brought under section 15 of that Act (29 U.S.C. 633a);
(3)
an employee or applicant to whom section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) applies, in the case of a complaint brought to enforce that section under section 505 of that Act (29 U.S.C. 794a); and
(4)
an employee or applicant described in section 201(2)(A)(v) of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff(2)(A)(v)), in the case of a complaint brought to enforce title II of that Act (42 U.S.C. 2000ff et seq.) under section 207(e) of that Act (42 U.S.C. 2000ff–6(e)).