Sec. 204. Discrimination, including harassment; standards of proof

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Congress finds that— harassment is a persistent and significant problem in the workplace in the United States; workers are harassed because of their sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), race, color, religion, national origin, age, disability, genetic information, and uniformed services status; Congress enacted title VII of the Civil Rights Act of 1964 intending to provide broad protection from many forms of bias in the workplace; 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; 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; in the Guidelines, the Commission explained that harassing conduct is unlawful where— submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment ; submission to or rejection of such conduct by an individual is used as the basis for employment decisions ; or 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 ; 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 ; 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; in reaching this conclusion in the Meritor decision, the Supreme Court cited and approved the Guidelines; 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— Rogers v.

EEOC, 454 F.2d 234 (5th Cir. 1971); Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir. 1977); Gray v. Greyhound Lines, 545 F.2d 169 (D.C. Cir. 1976); Compston v. Borden, Inc., 424 F. Supp. 157 (S.D. Ohio 1976); and Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87 (8th Cir. 1977); 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 (quoting Rogers v.

EEOC, 454 F.2d 234 (5th Cir. 1971)); to alter the conditions of [the victim's] employment and create an abusive working environment 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; 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; 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; 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; 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; 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; 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— Singleton v. Department of Correctional Education, 115 Fed. Appx. 119 (4th Cir. 2004); Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir. 1997); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993); Rickard v. Swedish Match North America, Inc., 773 F.3d 181 (8th Cir. 2014); Mitchell v. Pope, 189 F. Appx. 911 (11th Cir. 2006); and Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000); 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); 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; for example, in the context of harassment based on sex, those decisions have recognized that— 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); 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); 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); gender-based epithets were based on sex and supported a finding that the workplace was objectively hostile, as in Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009); and 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); similarly, in the context of harassment based on other protected characteristics, other courts have appropriately held that— calling an individual an old man and pops could contribute to actionably hostile work environment based on age, as in Dediol v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011); 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 a single incident of calling an African-American individual the n word by a supervisor 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 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). The purposes of this section are to— enact into statutory law provisions that establish that workplace harassment is a violation of the— 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. ); 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); protections from age discrimination found in the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 621 et seq. ); 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 protections from uniformed services status discrimination found in section 4311 of title 38, United States Code; and 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, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), national origin, age, disability, genetic information, and uniformed services status. Section 703 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–2 ) is amended by adding at the end the following: In this subsection, the term workplace harassment means conduct based on race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), 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. In this subsection, the term also means sexual harassment, which is conduct that takes place in a circumstance described in clause

(ii)and that takes the form of— a sexual advance; a request for sexual favors; or any other conduct of a sexual nature. A circumstance described in this clause is a situation in which— submission to the conduct involved is made either explicitly or implicitly a term or condition of employment; submission to or rejection of such conduct is used as the basis for an employment decision affecting an individual’s employment; or such conduct unreasonably alters an individual's terms, conditions, or privileges of employment, including by creating an intimidating hostile, or offensive work environment. It shall be an unlawful employment practice under subsection

(a)to engage in workplace harassment. 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: 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. Incidents that may be workplace harassment shall be considered in the aggregate, with— 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 conduct based on multiple protected characteristics (such as sex and race) viewed in totality, rather than in isolation. 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: The frequency of the conduct. The duration of the conduct. The location where the conduct occurred. The number of individuals engaged in the conduct. 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. Whether the conduct is threatening. Any power differential between the alleged harasser and the person allegedly harassed. Any use of epithets, slurs, or other conduct that is humiliating or degrading. Whether the conduct reflects stereotypes about individuals in the protected class involved. In determining, for purposes of this subsection, whether conduct constitutes workplace harassment, conduct may be workplace harassment regardless of whether, for example— the complaining party is not the individual being harassed; the complaining party acquiesced or otherwise submitted to, or participated in, the conduct; the conduct is also experienced by others outside the protected class involved; the complaining party was able to continue carrying out duties and responsibilities of the party's job despite the conduct; the conduct did not cause a tangible injury or psychological injury; or the conduct occurred outside of the workplace. . Section 102(b) of the Americans with Disabilities Act ( 42 U.S.C. 12112(b) ) is amended— in paragraph (6), by striking and at the end; in paragraph (7), by striking the period and inserting ; and ; and by adding at the end the following: engaging in workplace harassment, which is conduct based on disability, 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; and 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) ). . 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 ( , before 42 U.S.C. 12112(b) ) and the provisions . 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: 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— unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment; and 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) ). . 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: 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— unreasonably alters an individual’s terms, conditions, or privileges of employment, including by creating an intimidating, hostile, or offensive work environment; and 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) ). . Section 4311 of title 38, United States Code, is amended by adding at the end the following: 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— unreasonably alters an individual’s benefits of employment, including by creating an intimidating, hostile, or offensive work environment; and 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) ). .

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