Jump to TITLE X--PROTECTING AMERICANS' PRIVACY
S 16 IS
108th CONGRESS
1st Session
S. 16
To protect the civil rights of all Americans, and for other purposes.
IN THE SENATE OF THE UNITED STATES
January 7, 2003
Mr. DASCHLE (for himself, Mr. Leahy, Mr. Kennedy, Mr. Biden, Mr.
Schumer, Mr. Durbin, Mr. Edwards, Mr. Akaka, Mrs. Clinton, Mr.
Corzine, Mr. Dayton, Mr. Harkin, Ms. Landrieu, Mr. Levin, Mr.
Lieberman, Ms. Mikulski, Mrs. Murray, Mr. Rockefeller, Mr. Sarbanes,
Ms. Stabenow, Mr. Lautenberg, and Mr. Reid) introduced the following
bill; which was read twice and referred to the Committee on Finance
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A BILL
To protect the civil rights of all Americans, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the 'Equal Rights and Equal
Dignity for Americans Act of 2003'.
(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--LOCAL LAW ENFORCEMENT ENHANCEMENT ACT
Sec. 101. Short title.
Sec. 102. Findings.
Sec. 103. Definition of hate crime.
Sec. 104. Support for criminal investigations and prosecutions by
State and local law enforcement officials.
Sec. 105. Grant program.
Sec. 106. Authorization for additional personnel to assist State
and local law enforcement.
Sec. 107. Prohibition of certain hate crime acts.
Sec. 108. Duties of Federal Sentencing Commission.
Sec. 109. Statistics.
Sec. 110. Severability.
TITLE II--INCREASE IN FUNDING FOR ENFORCING CIVIL RIGHTS LAWS
Sec. 201. Increase in funding.
TITLE III--SUPPORTING INDIGENT DEFENSE
Sec. 301. Findings.
Sec. 302. Authorization of appropriations.
TITLE IV--INDIAN TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM
Sec. 401. Short title.
Sec. 402. Findings.
Sec. 403. Definitions.
Sec. 404. Responsibilities of Secretary.
Sec. 405. Indian participation in trust fund activities.
Sec. 406. Deputy Secretary for Trust Management and Reform.
Sec. 407. Advisory board and Tribal Task Force.
Sec. 408. Regulations.
Sec. 409. No effect on certain judicial decision.
TITLE V--RACIAL PROFILING
Sec. 501. Sense of the Senate on racial profiling.
TITLE VI--PAYCHECK FAIRNESS
Sec. 601. Short title.
Sec. 602. Findings.
Sec. 603. Enhanced enforcement of equal pay requirements.
Sec. 604. Training.
Sec. 605. Research, education, and outreach.
Sec. 606. Technical assistance and employer recognition program.
Sec. 607. Establishment of the National Award for Pay Equity in
the Workplace.
Sec. 608. Collection of pay information by the Equal Employment
Opportunity Commission.
Sec. 609. Authorization of appropriations.
TITLE VII--EMPLOYMENT NON-DISCRIMINATION
Sec. 701. Short title.
Sec. 702. Purposes.
Sec. 703. Definitions.
Sec. 704. Discrimination prohibited.
Sec. 705. Retaliation prohibited.
Sec. 706. Benefits.
Sec. 707. Collection of statistics prohibited.
Sec. 708. Quotas and preferential treatment prohibited.
Sec. 709. Religious exemption.
Sec. 710. Nonapplication to members of the Armed Forces; veterans'
preferences.
Sec. 711. Construction.
Sec. 712. Enforcement.
Sec. 713. State and Federal immunity.
Sec. 714. Attorneys' fees.
Sec. 715. Posting notices.
Sec. 716. Regulations.
Sec. 717. Relationship to other laws.
Sec. 718. Severability.
Sec. 719. Effective date.
TITLE VIII--GENETIC NONDISCRIMINATION
Sec. 801. Short title.
Subtitle A--Prohibition of Health Insurance Discrimination on the Basis of
Protected Genetic Information
Sec. 811. Amendments to Employee Retirement Income Security Act of
1974.
Sec. 812. Amendments to the Public Health Service Act.
Sec. 813. Amendments to Internal Revenue Code of 1986.
Sec. 814. Amendments to title XVIII of the Social Security Act
relating to MEDIGAP.
Subtitle B--Prohibition of Employment Discrimination on the Basis of
Protected Genetic Information
Sec. 821. Definitions.
Sec. 822. Limitations with respect to definition.
Sec. 823. Employer practices.
Sec. 824. Employment agency practices.
Sec. 825. Labor organization practices.
Sec. 826. Training programs.
Sec. 827. Maintenance and disclosure of protected genetic
information.
Sec. 828. Civil action.
Sec. 829. Construction.
Sec. 830. Authorization of appropriations.
Sec. 831. Effective date.
Subtitle C--Miscellaneous Provisions
Sec. 841. Severability.
TITLE IX--MEDICAL PRIVACY
Sec. 901. Short title.
Sec. 902. Purpose.
Sec. 903. Restoration of privacy protections.
Sec. 904. Definitions; effective date.
TITLE X--PROTECTING AMERICANS' PRIVACY
Sec. 1001. Use of Department of Defense personnel or funds to
collect intelligence or law enforcement information on United
States citizens inside the United States.
TITLE XI--ELECTION REFORM
Sec. 1101. Reform.
TITLE I--LOCAL LAW ENFORCEMENT ENHANCEMENT ACT
SEC. 101. SHORT TITLE.
This title may be cited as the 'Local Law Enforcement Enhancement Act
of 2003'.
SEC. 102. FINDINGS.
Congress makes the following findings:
(1) The incidence of violence motivated by the actual or perceived
race, color, religion, national origin, gender, sexual
orientation, or disability of the victim poses a serious national
problem.
(2) Such violence disrupts the tranquility and safety of
communities and is deeply divisive.
(3) State and local authorities are now and will continue to be
responsible for prosecuting the overwhelming majority of violent
crimes in the United States, including violent crimes motivated by
bias. These authorities can carry out their responsibilities more
effectively with greater Federal assistance.
(4) Existing Federal law is inadequate to address this problem.
(5) The prominent characteristic of a violent crime motivated by
bias is that it devastates not just the actual victim and the
family and friends of the victim, but frequently savages the
community sharing the traits that caused the victim to be
selected.
(6) Such violence substantially affects interstate commerce in
many ways, including--
(A) by impeding the movement of members of targeted groups
and forcing such members to move across State lines to escape
the incidence or risk of such violence; and
(B) by preventing members of targeted groups from purchasing
goods and services, obtaining or sustaining employment, or
participating in other commercial activity.
(7) Perpetrators cross State lines to commit such violence.
(8) Channels, facilities, and instrumentalities of interstate
commerce are used to facilitate the commission of such violence.
(9) Such violence is committed using articles that have traveled
in interstate commerce.
(10) For generations, the institutions of slavery
and involuntary servitude were defined by the race, color, and ancestry of
those held in bondage. Slavery and involuntary servitude were enforced, both
prior to and after the adoption of the 13th amendment to the Constitution of
the United States, through widespread public and private violence directed
at persons because of their race, color, or ancestry, or perceived race,
color, or ancestry. Accordingly, eliminating racially motivated violence is
an important means of eliminating, to the extent possible, the badges,
incidents, and relics of slavery and involuntary servitude.
(11) Both at the time when the 13th, 14th, and 15th amendments to
the Constitution of the United States were adopted, and continuing
to date, members of certain religious and national origin groups
were and are perceived to be distinct 'races'. Thus, in order to
eliminate, to the extent possible, the badges, incidents, and
relics of slavery, it is necessary to prohibit assaults on the
basis of real or perceived religions or national origins, at least
to the extent such religions or national origins were regarded as
races at the time of the adoption of the 13th, 14th, and 15th
amendments to the Constitution of the United States.
(12) Federal jurisdiction over certain violent crimes motivated by
bias enables Federal, State, and local authorities to work
together as partners in the investigation and prosecution of such
crimes.
(13) The problem of crimes motivated by bias is sufficiently
serious, widespread, and interstate in nature as to warrant
Federal assistance to States and local jurisdictions.
SEC. 103. DEFINITION OF HATE CRIME.
In this title, the term 'hate crime' has the same meaning as in section
280003(a) of the Violent Crime Control and Law Enforcement Act of 1994
(28 U.S.C. 994 note).
SEC. 104. SUPPORT FOR CRIMINAL INVESTIGATIONS AND PROSECUTIONS BY STATE AND
LOCAL LAW ENFORCEMENT OFFICIALS.
(a) ASSISTANCE OTHER THAN FINANCIAL ASSISTANCE-
(1) IN GENERAL- At the request of a law enforcement official of a
State or Indian tribe, the Attorney General may provide technical,
forensic, prosecutorial, or any other form of assistance in the
criminal investigation or prosecution of any crime that--
(A) constitutes a crime of violence (as defined in section 16
of title 18, United States Code);
(B) constitutes a felony under the laws of the State or
Indian tribe; and
(C) is motivated by prejudice based on the race, color,
religion, national origin, gender, sexual orientation, or
disability of the victim, or is a violation of the hate crime
laws of the State or Indian tribe.
(2) PRIORITY- In providing assistance under paragraph (1), the
Attorney General shall give priority to crimes committed by
offenders who have committed crimes in more than 1 State and to
rural jurisdictions that have difficulty covering the
extraordinary expenses relating to the investigation or
prosecution of the crime.
(b) GRANTS-
(1) IN GENERAL- The Attorney General may award grants to assist
State, local, and Indian law enforcement officials with the
extraordinary expenses associated with the investigation and
prosecution of hate crimes.
(2) OFFICE OF JUSTICE PROGRAMS- In implementing the grant program,
the Office of Justice Programs shall work closely with the funded
jurisdictions to ensure that the concerns and needs of all
affected parties, including community groups and schools,
colleges, and universities, are addressed through the local
infrastructure developed under the grants.
(3) APPLICATION-
(A) IN GENERAL- Each State that desires a grant under this
subsection shall submit an application to the Attorney
General at such time, in such manner, and accompanied by or
containing such information as the Attorney General shall
reasonably require.
(B) DATE FOR SUBMISSION- Applications submitted pursuant to
subparagraph (A) shall be submitted during the 60-day period
beginning on a date that the Attorney General shall
prescribe.
(C) REQUIREMENTS- A State or political subdivision of a State
or tribal official applying for assistance under this
subsection shall--
(i) describe the extraordinary purposes for which the
grant is needed;
(ii) certify that the State, political subdivision, or
Indian tribe lacks the resources necessary to
investigate or prosecute the hate crime;
(iii) demonstrate that, in developing a plan to
implement the grant, the State, political subdivision,
or tribal official has consulted and coordinated with
nonprofit, nongovernmental victim services programs that
have experience in providing services to victims of hate
crimes; and
(iv) certify that any Federal funds received under this
subsection will be used to supplement, not supplant,
non-Federal funds that would otherwise be available for
activities funded under this subsection.
(4) DEADLINE- An application for a grant under this subsection
shall be approved or disapproved by the Attorney General not later
than 30 business days after the date on which the Attorney General
receives the application.
(5) GRANT AMOUNT- A grant under this subsection shall not exceed
$100,000 for any single jurisdiction within a 1-year period.
(6) REPORT- Not later than December 31, 2004, the Attorney General
shall submit to Congress a report describing the applications
submitted for grants under this subsection, the award of such
grants, and the purposes for which the grant amounts were expended.
(7) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be
appropriated $5,000,000 to carry out this subsection for each of
fiscal years 2004 and 2005.
SEC. 105. GRANT PROGRAM.
(a) AUTHORITY TO MAKE GRANTS- The Office of Justice Programs of the
Department of Justice shall award grants, in accordance with such
regulations as the Attorney General may prescribe, to State and local
programs designed to combat hate crimes committed by juveniles,
including programs to train local law enforcement officers in
identifying, investigating, prosecuting, and preventing hate crimes.
(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be
appropriated such sums as may be necessary to carry out this section.
SEC. 106. AUTHORIZATION FOR ADDITIONAL PERSONNEL TO ASSIST STATE AND LOCAL
LAW ENFORCEMENT.
There are authorized to be appropriated to the Department of the
Treasury and the Department of Justice, including the Community
Relations Service, for fiscal years 2004, 2005, and 2006 such sums as
are necessary to increase the number of personnel to prevent and
respond to alleged violations of section 249 of title 18, United States
Code, as added by section 107.
SEC. 107. PROHIBITION OF CERTAIN HATE CRIME ACTS.
(a) IN GENERAL- Chapter 13 of title 18, United States Code, is amended
by adding at the end the following:
'Sec. 249. Hate crime acts
'(a) IN GENERAL-
'(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION,
OR NATIONAL ORIGIN- Whoever, whether or not acting under color of
law, willfully causes bodily injury to any person or,
through the use of fire, a firearm, or an explosive or incendiary device,
attempts to cause bodily injury to any person, because of the actual or
perceived race, color, religion, or national origin of any person--
'(A) shall be imprisoned not more than 10 years, fined in
accordance with this title, or both; and
'(B) shall be imprisoned for any term of years or for life,
fined in accordance with this title, or both, if--
'(i) death results from the offense; or
'(ii) the offense includes kidnaping or an attempt to
kidnap, aggravated sexual abuse or an attempt to commit
aggravated sexual abuse, or an attempt to kill.
'(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL
ORIGIN, GENDER, SEXUAL ORIENTATION, OR DISABILITY-
'(A) IN GENERAL- Whoever, whether or not acting under color
of law, in any circumstance described in subparagraph (B),
willfully causes bodily injury to any person or, through the
use of fire, a firearm, or an explosive or incendiary device,
attempts to cause bodily injury to any person, because of the
actual or perceived religion, national origin, gender, sexual
orientation, or disability of any person--
'(i) shall be imprisoned not more than 10 years, fined
in accordance with this title, or both; and
'(ii) shall be imprisoned for any term of years or for
life, fined in accordance with this title, or both, if--
'(I) death results from the offense; or
'(II) the offense includes kidnaping or an attempt
to kidnap, aggravated sexual abuse or an attempt to
commit aggravated sexual abuse, or an attempt to
kill.
'(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph
(A), the circumstances described in this subparagraph are
that--
'(i) the conduct described in subparagraph (A) occurs
during the course of, or as the result of, the travel of
the defendant or the victim--
'(I) across a State line or national border; or
'(II) using a channel, facility, or instrumentality
of interstate or foreign commerce;
'(ii) the defendant uses a channel, facility, or
instrumentality of interstate or foreign commerce in
connection with the conduct described in subparagraph
(A);
'(iii) in connection with the conduct described in
subparagraph (A), the defendant employs a firearm,
explosive or incendiary device, or other weapon that has
traveled in interstate or foreign commerce; or
'(iv) the conduct described in subparagraph (A)--
'(I) interferes with commercial or other economic
activity in which the victim is engaged at the time
of the conduct; or
'(II) otherwise affects interstate or foreign
commerce.
'(b) CERTIFICATION REQUIREMENT- No prosecution of any offense described
in this subsection may be
undertaken by the United States, except under the certification in writing
of the Attorney General, the Deputy Attorney General, the Associate Attorney
General, or any Assistant Attorney General specially designated by the
Attorney General that--
'(1) he or she has reasonable cause to believe that the actual or
perceived race, color, religion, national origin, gender, sexual
orientation, or disability of any person was a motivating factor
underlying the alleged conduct of the defendant; and
'(2) he or his designee or she or her designee has consulted with
State or local law enforcement officials regarding the prosecution
and determined that--
'(A) the State does not have jurisdiction or does not intend
to exercise jurisdiction;
'(B) the State has requested that the Federal Government
assume jurisdiction;
'(C) the State does not object to the Federal Government
assuming jurisdiction; or
'(D) the verdict or sentence obtained pursuant to State
charges left demonstratively unvindicated the Federal
interest in eradicating bias-motivated violence.
'(c) DEFINITIONS- In this section--
'(1) the term 'explosive or incendiary device' has the meaning
given the term in section 232 of this title; and
'(2) the term 'firearm' has the meaning given the term in section
921(a) of this title.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The analysis for chapter 13 of
title 18, United States Code, is amended by adding at the end the
following:
'249. Hate crime acts.'.
SEC. 108. DUTIES OF FEDERAL SENTENCING COMMISSION.
(a) AMENDMENT OF FEDERAL SENTENCING GUIDELINES- Pursuant to the
authority provided under section 994 of title 28, United States Code,
the United States Sentencing Commission shall study the issue of adult
recruitment of juveniles to commit hate crimes and shall, if
appropriate, amend the Federal sentencing guidelines to provide
sentencing enhancements (in addition to the sentencing enhancement
provided for the use of a minor during the commission of an offense)
for adult defendants who recruit juveniles to assist in the commission
of hate crimes.
(b) CONSISTENCY WITH OTHER GUIDELINES- In carrying out this section,
the United States Sentencing Commission shall--
(1) ensure that there is reasonable consistency with other Federal
sentencing guidelines; and
(2) avoid duplicative punishments for substantially the same
offense.
SEC. 109. STATISTICS.
Subsection (b)(1) of the first section of the Hate Crimes Statistics
Act (28 U.S.C. 534 note) is amended by inserting 'gender,' after
'race,'.
SEC. 110. SEVERABILITY.
If any provision of this title, an amendment made by this title, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this
title, the amendments made by this title, and the application of the
provisions of such to any person or circumstance shall not be affected
thereby.
TITLE II--INCREASE IN FUNDING FOR ENFORCING CIVIL RIGHTS LAWS
SEC. 201. INCREASE IN FUNDING.
Notwithstanding any other provision of law, there are authorized to be
appropriated for fiscal year 2004--
(1) to the Equal Employment Opportunity Commission, to carry out
the activities of the Commission, $339,691,800;
(2) to the Civil Rights Division of the Department of Justice, to
carry out the activities of the Division, $110,360,000;
(3) to the Office of Civil Rights of the Department of Education,
to carry out the activities of the Office, $97,760,000; and
(4) to the Office of Federal Contract Compliance Programs of the
Department of Labor, to carry out the activities of the Office,
$81,421,200.
TITLE III--SUPPORTING INDIGENT DEFENSE
SEC. 301. FINDINGS.
Congress finds the following:
(1) It is important to provide equal access to the system of
justice in the United States for all individuals, regardless of
economic stature.
(2) The Legal Services Corporation provides high quality legal
assistance for persons who would otherwise be unable to afford
legal counsel.
(3) The programs of the Legal Services Corporation serve clients
with cases concerning housing, family law, income maintenance,
consumer issues, and employment.
(4) For just under a decade the Federal resources available to the
Legal Services Corporation have been inadequate. Nearly half of
all people who applied for assistance from local Legal Services
Corporation programs have been turned away in recent years.
(5) Congress must adequately fund Legal Services Corporation
programs to preserve the strength of the programs.
SEC. 302. AUTHORIZATION OF APPROPRIATIONS.
Section 1010(a) of the Legal Services Corporation Act (42 U.S.C.
2996i(a)) is amended to read as follows:
'(a) There is authorized to be appropriated for the purpose of carrying
out the activities of the Corporation, $400,000,000 for fiscal year
2004.'.
TITLE IV--INDIAN TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM
SEC. 401. SHORT TITLE.
This title may be cited as the 'Indian Trust Asset and Trust Fund
Management and Reform Act of 2003'.
SEC. 402. FINDINGS.
Congress finds and affirms that the proper discharge of trust
responsibility of the United States requires, without limitation, that
the trustee, using a high degree of care, skill, and loyalty--
(1) protect and preserve Indian trust assets from loss, damage,
unlawful alienation, waste, and depletion;
(2) ensure that any management of Indian trust assets required to
be carried out by the Secretary--
(A) promotes the interest of the beneficial owner; and
(B) supports, to the maximum extent practicable in accordance
with the trust responsibility of the Secretary, the
beneficial owner's intended use of the assets;
(3)(A) enforce the terms of all leases or other agreements that
provide for the use of trust assets; and
(B) take appropriate steps to remedy trespass on trust or
restricted land;
(4) promote tribal control and self-determination over tribal
trust land and resources;
(5) select and oversee persons that manage Indian trust assets;
(6) confirm that Indian tribes that manage Indian trust assets
pursuant to contracts and compacts authorized by the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450 et
seq.) protect and prudently manage those Indian trust assets;
(7) provide oversight and review of the performance of the trust
responsibility of the Secretary, including Indian trust asset and
investment management programs, operational systems, and
information systems;
(8) account for and identify, collect, deposit, invest, and
distribute, in a timely manner, income due or held on behalf of
tribal and individual Indian account holders;
(9) maintain a verifiable system of records that, at a minimum, is
capable of identifying, with respect to a trust asset--
(A) the location of the trust asset;
(B) the beneficial owners of the trust asset;
(C) any legal encumbrances (such as leases or permits)
applicable to the trust asset;
(D) the user of the trust asset;
(E) any rent or other payments made;
(F) the value of trust or restricted land and resources
associated with the trust asset;
(G) dates of--
(i) collections;
(ii) deposits;
(iii) transfers;
(iv) disbursements;
(v) imposition of third-party obligations (such as
court-ordered child support or judgments);
(vi) statements of earnings;
(vii) investment instruments; and
(viii) closure of all trust fund accounts relating to
the trust fund asset;
(H) documents pertaining to actions taken to prevent or
compensate for any diminishment of the Indian trust asset;
and
(I) documents that evidence the actions of the Secretary
regarding the management and disposition of the Indian trust
asset;
(10) establish and maintain a system of records that--
(A) permits beneficial owners to obtain information regarding
Indian trust assets in a timely manner; and
(B) protects the privacy of that information;
(11) invest tribal and individual Indian trust funds to ensure
that the trust account remains reasonably productive for the
beneficial owner consistent with market conditions existing at the
time at which investment is made;
(12) communicate with beneficial owners regarding the management
and administration of Indian trust assets; and
(13) protect treaty-based fishing, hunting, gathering, and similar
rights-of-access and resource use on traditional tribal land.
SEC. 403. DEFINITIONS.
Section 2 of the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001) is amended--
(1) by striking paragraph (1);
(2) in paragraph (2), by striking '(2) The term' and inserting the
following:
'(5) INDIAN TRIBE- The term';
(3) in paragraph (3), by striking '(3) The term' and inserting the
following:
'(8) SECRETARY- The term';
(4) in paragraph (4), by striking '(4) The term' and inserting the
following:
'(6) OFFICE- The term';
(5) in paragraph (5), by striking '(5) The term' and inserting the
following:
'(2) BUREAU- The term';
(6) in paragraph (6), by striking '(6) The term' and inserting the
following:
'(3) DEPARTMENT- The term';
(7) by moving paragraphs (2), (3), (5), (6), and (8) (as
redesignated by this subsection) so as to appear in numerical
order;
(8) by inserting before paragraph (2) (as redesignated by
paragraph (5)) the following:
'(1) BENEFICIAL OWNER- The term 'beneficial owner' means an Indian
tribe or member of an Indian tribe that is the beneficial owner of
Indian trust assets.';
(9) by inserting after paragraph (3) (as redesignated by paragraph
(6)) the following:
'(4) DEPUTY SECRETARY- The term 'Deputy Secretary' means the
Deputy Secretary for Trust Management and Reform appointed under
section 307(a)(2).';
(10) by inserting after paragraph (6) (as redesignated by
paragraph (4)) the following:
'(7) REFORM OFFICE- The term 'Reform Office' means the Office of
Trust Reform Implementation and Oversight established by section
307(e).'; and
(11) by adding at the end the following:
'(9) TASK FORCE- The term 'Task Force' means the Tribal Task Force
for Trust Reform established under section 307(a).
'(10) TRUST ASSETS- The term 'trust assets' means all tangible
property including land, minerals, coal, oil and gas, forest
resources, agricultural resources, water and water sources, and
fish and wildlife held by the Secretary for the benefit of an
Indian tribe or an individual member of an Indian tribe pursuant
to Federal law.
'(11) TRUST FUNDS- The term 'trust funds' means all funds held by
the Secretary for the benefit of an Indian tribe or and individual
member of an Indian tribe pursuant to Federal law.
'(12) TRUSTEE- The term 'trustee' means the Secretary or any other
person that is authorized to act as a trustee for Indian trust
assets and trust funds.'.
SEC. 404. RESPONSIBILITIES OF SECRETARY.
Section 102 of the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4011) is amended to read as follows:
'SEC. 4011. RESPONSIBILITIES OF SECRETARY.
'(a) ACCOUNTING FOR DAILY AND ANNUAL BALANCES OF INDIAN TRUST FUNDS-
'(1) IN GENERAL- The Secretary shall account for the daily and
annual balances of all trust funds that are deposited or invested
pursuant to the Act of June 24, 1938 (25 U.S.C. 162a).
'(2) PERIODIC STATEMENT OF PERFORMANCE-
'(A) IN GENERAL- Not later than 20 business days after the
close of a calendar quarter, the Secretary shall provide a
statement of performance to each Indian tribe and member of
Indian tribe with respect to which funds are deposited or
invested pursuant to the Act of June 24, 1938 (25 U.S.C.
162a).
'(B) REQUIREMENTS- Each statement under subparagraph (A)
shall identify, with respect to the period covered by the
statement--
'(i) the source, type, and status of the funds;
'(ii) the beginning balance of the funds;
'(iii) the gains and losses of the funds;
'(iv) receipts and disbursements of the funds; and
'(v) the ending balance of the funds.
'(3) ANNUAL AUDIT- With respect to each account containing trust
funds in an amount in excess of $1,000, the Secretary shall--
'(A) conduct, for each fiscal year, an audit of all trust
funds described in paragraph (1); and
'(B) include, in the first statement of performance completed
under paragraph (2) after completion of the audit, a letter
describing the results of the audit.
'(b) ADDITIONAL RESPONSIBILITIES- In addition to the responsibilities
described in subsection (a), subject to the availability of
appropriations, the Secretary, in carrying out the trust responsibility
of the United States, shall, at a minimum--
'(1) provide for adequate systems for accounting for and reporting
trust fund balances;
'(2) provide for adequate controls over receipts and
disbursements;
'(3) provide for periodic, timely reconciliations of financial
records to ensure the accuracy of account information;
'(4) determine accurate cash balances;
'(5) prepare and supply to account holders periodic account
statements;
'(6) establish and publish in the Federal Register consistent
policies and procedures for trust fund management and accounting;
'(7) provide adequate staffing, supervision, and training for
trust fund management and accounting; and
'(8) manage natural resources located within the boundaries of
Indian reservations and trust land.'.
SEC. 405. INDIAN PARTICIPATION IN TRUST FUND ACTIVITIES.
Title II of the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4021 et seq.) is amended--
(1) by striking sections 202 and 203; and
(2) by inserting after section 201 the following:
'SEC. 202. PARTICIPATION IN TRUST FUND AND TRUST ASSET MANAGEMENT ACTIVITIES
BY INDIAN TRIBES.
'(a) PLANNING PROGRAM- To meet the purposes of this title, an Indian
Trust Fund and Trust Asset Management and Monitoring Plan (in this
section referred to as the 'Plan') shall be developed and implemented
as follows:
'(1) Pursuant to a self-determination contract or compact under
section 102 of the Indian Self-Determination Act (25 U.S.C. 450f)
or section 403 of the Indian Self Determination and Education
Assistance Act (25 U.S.C. 458cc), an Indian tribe may develop or
implement a Plan to provide for management of the trust funds and
assets (or portions of trust funds or assets) of which the Indian
tribe is the beneficial owner. Subject to the provisions of
paragraphs (3) and (4), the tribe shall have broad discretion in
designing and carrying out the planning process.
'(2) To include in a Plan particular trust funds or assets held by
multiple individuals, an Indian tribe shall obtain the approval of
a majority of the individuals who hold an interest in any such
trust funds or assets.
'(3) The Plan shall be submitted to the Secretary for approval
pursuant to the Indian Self-Determination Act (25 U.S.C. 450f et
seq.).
'(4) If an Indian tribe chooses not to develop or implement a
Plan, the Secretary shall, at the request of the Indian tribe,
develop or implement, as appropriate, a Plan in close consultation
with the affected Indian tribe.
'(5) Whether developed directly by the Indian tribe or by the
Secretary, the Plan shall--
'(A) determine the amount and source of funds held in trust;
'(B) identify and include an inventory of trust assets based
on the information available to the Indian tribe and the
Secretary;
'(C) identify specific tribal goals and objectives;
'(D) establish management objectives for the funds and assets
held in trust;
'(E) define critical values of the Indian tribe and its
members and provide identified management objectives;
'(F) identify actions to be taken to reach established
objectives;
'(G) use existing survey documents, reports and other
research from Federal agencies, tribal community colleges,
and land grant universities; and
'(H)(i) be completed not later than 3 years after the date of
initiation of activity to establish the Plan; and
'(ii) be revised periodically thereafter as necessary to
accomplish the purposes of this Act.
'(b) MANAGEMENT AND ADMINISTRATION- Plans developed and approved under
subsection (a) shall govern the management and administration of funds
and assets (or portions of funds and assets) held in trust by the
Bureau and the Indian tribal government.
'(c) PLAN DOES NOT TERMINATE TRUST- Developing or implementing a Plan
shall not be construed or deemed to constitute a termination of the
trust status of the assets or funds that are included in, or subject
to, the Plan.
'(d) LIABILITY- An Indian tribe managing and administering trust funds
and trust assets in a manner that is consistent with an approved Plan
shall not be liable for waste or loss of an asset or funds that are
included in such Plan.
'(e) INDIAN PARTICIPATION IN MANAGEMENT ACTIVITIES-
'(1) TRIBAL RECOGNITION- The Secretary shall conduct all
management activities of funds and assets held in trust in
accordance with goals and objectives set forth in a Plan approved
pursuant to and in accordance with all tribal laws and ordinances,
except in specific instances where such compliance would be
contrary to the
trust responsibility of the United States.
'(2) TRIBAL LAWS-
'(A) IN GENERAL- Unless otherwise prohibited by Federal law,
the Secretary shall comply with tribal law pertaining to the
management of funds and assets held in trust.
'(B) DUTIES- The Secretary shall--
'(i) provide assistance in the enforcement of tribal
laws described in subparagraph (A);
'(ii) provide notice of such tribal laws to persons or
entities dealing with tribal funds and assets held in
trust; and
'(iii) upon the request of an Indian tribe, require
appropriate Federal officials to appear in tribal
forums.
'(3) WAIVER OF REGULATIONS- In any case in which a regulation or
administrative policy of the Department of the Interior conflicts
with the objectives of the Plan, or with a tribal law, the
Secretary shall waive the application of such regulation or
administrative policy unless such waiver would constitute a
violation of a Federal statute or judicial decision or would
conflict with the Secretary's trust responsibility under Federal
law.
'(4) SOVEREIGN IMMUNITY- This section does not constitute a waiver
of the sovereign immunity of the United States, nor does it
authorize tribal justice systems to review actions of the
Secretary.
'(5) TRUST RESPONSIBILITY- Nothing in this section shall be
construed to diminish or expand the trust responsibility of the
United States toward Indian funds and assets held in trust, or any
legal obligation or remedy resulting from such funds and assets.
'(f) REPORT-
'(1) IN GENERAL- Not later than 180 days after the enactment of
this section, and annually thereafter, the Secretary shall submit
a report to the Committee on Indian Affairs of the Senate and the
Committee on Resources of the House of Representatives.
'(2) CONTENTS- The report required under paragraph (1) shall
detail the following:
'(A) The efforts of the Department to implement this section.
'(B) The nature and extent of consultation between the
Department, Tribes, and individual Indians with respect to
implementation of this section.
'(C) Any recommendations of the Department for further
changes to this Act, accompanied by a record of consultation
with Tribes and individual Indians regarding such
recommendations.'.
SEC. 406. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.
(a) IN GENERAL- Section 302 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4042) is amended to read as
follows:
'SEC. 302. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.
'(a) ESTABLISHMENT-
'(1) IN GENERAL- There is established within the Department the
position of Deputy Secretary for Trust Management and Reform.
'(2) APPOINTMENT AND REMOVAL-
'(A) APPOINTMENT- The Deputy Secretary shall be appointed by
the President, by and with the advice and consent of the
Senate.
'(B) TERM- The Deputy Secretary shall be appointed for a term
of 6 years.
'(C) REMOVAL- The Deputy Secretary may be removed only for
good cause.
'(3) ADMINISTRATIVE AUTHORITY- The Deputy Secretary shall report
directly to the Secretary.
'(4) COMPENSATION- The Deputy Secretary shall be paid at a rate
determined by the Secretary to be appropriate for the position,
but not less than the rate of basic pay prescribed for Level II of
the Executive Schedule under section 5313 of title 5, United
States Code.
'(b) DUTIES- The Deputy Secretary shall--
'(1) oversee all trust fund and trust asset matters of the
Department, including--
'(A) administration and management of the Reform Office;
'(B) financial and human resource matters of the Reform
Office; and
'(C) all duties relating to trust fund and trust asset
matters; and
'(2) engage in appropriate government-to-government relations and
consultations with Indian tribes and individual trust asset and
trust fund account holders on matters involving trust asset and
trust fund management and reform within the Department.
'(c) STAFF- In carrying out this section, the Deputy Secretary may hire
such staff having expertise in trust asset and trust fund management,
financial organization and management, and tribal policy as the Deputy
Secretary determines is necessary to carry out this title.
'(d) EFFECT ON DUTIES OF OTHER OFFICIALS-
'(1) IN GENERAL- Except as provided in paragraph (2), nothing in
this section shall be construed to diminish any responsibility or
duty of the Assistant Secretary of the Interior for Indian
Affairs, or any other Federal official, relating to any duty of
the Assistant Secretary or official established under this Act or
any other provision of law.
'(2) TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM-
Notwithstanding any other provision of law, the Deputy Secretary
shall have overall management and oversight authority on matters
of the Department relating to trust asset and trust fund
management and reform (including matters that, as of the day
before the date of enactment of the Indian Trust Asset and Trust
Fund Management and Reform Act of 2003, were carried out by the
Commissioner of Indian Affairs).
'(e) OFFICE OF TRUST REFORM IMPLEMENTATION AND OVERSIGHT-
'(1) ESTABLISHMENT- There is established within the Office of the
Secretary the Office of Trust Reform Implementation and Oversight.
'(2) REFORM OFFICE HEAD- The Reform Office shall be headed by the
Deputy Secretary.
'(3) DUTIES- The Reform Office shall--
'(A) supervise and direct the day-to-day activities of the
Assistant Secretary of the Interior for Indian Affairs, the
Commissioner of Reclamation, the Director
of the Bureau of Land Management, and the Director of the Minerals
Management Service, to the extent they administer or manage any Indian trust
assets or funds;
'(B) administer, in accordance with title II, all trust
properties, funds, and other assets held by the United States
for the benefit of Indian tribes and individual members of
Indian tribes;
'(C) require the development and maintenance of an accurate
inventory of all trust funds and trust assets;
'(D) ensure the prompt posting of revenue derived from a
trust fund or trust asset for the benefit of each Indian
tribe (or individual member of each Indian tribe) that owns a
beneficial interest in the trust fund or trust asset;
'(E) ensure that all trust fund accounts are audited at least
annually, and more frequently as determined to be necessary
by the Deputy Secretary;
'(F) ensure that the Assistant Secretary of the Interior for
Indian Affairs, the Director of the Bureau of Land
Management, the Commissioner of Reclamation, and the Director
of the Minerals Management Service provide to the Secretary
current and accurate information relating to the
administration and management of trust funds and trust
assets;
'(G) provide for regular consultation with trust fund account
holders on the administration of trust funds and trust assets
to ensure, to the maximum extent practicable in accordance
with applicable law and a Plan approved under section 202,
the greatest return on those funds and assets for the trust
fund account holders; and
'(H) enter into contracts and compacts under section 102 of
the Indian Self-Determination Act (25 U.S.C. 450f) or section
403 of the Indian Self Determination and Education Assistance
Act (25 U.S.C. 458cc) to provide for the management of trust
assets and trust funds by Indian tribes pursuant to a Trust
Fund and Trust Asset Management and Monitoring Plan developed
under section 202 of this Act.
'(f) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be
appropriated such sums as are necessary to carry out this section.'.
(b) CONFORMING AMENDMENTS-
(1) Title III of the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4041 et seq.) is amended by striking the
title heading and inserting the following:
'TITLE III--REFORMS RELATING TO TRUST RESPONSIBILITY'.
(2) Section 301(1) of the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4041(1)) is amended by striking 'by
establishing in the Department of this Interior an Office of
Special Trustee for American Indians' and inserting 'by directing
the Deputy Secretary'.
(3) Section 303 of the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4043) is amended--
(A) by striking the section heading and inserting the
following:
'SEC. 303. ADDITIONAL AUTHORITIES AND FUNCTIONS OF THE DEPUTY SECRETARY.';
(B) in subsection (a)(1), by striking 'section 302(b) of this
title' and inserting 'section 302(a)(2)';
(C) in subsection (e)--
(i) by striking the subsection heading and inserting the
following:
'(e) ACCESS OF DEPUTY SECRETARY- '; and
(ii) by striking 'and his staff' and inserting 'and
staff of the Deputy Secretary'; and
(D) by striking 'Special Trustee' each place it appears and
inserting 'Deputy Secretary'.
(4) Sections 304 and 305 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4044, 4045) are amended
by striking 'Special Trustee' each place it appears and inserting
'Deputy Secretary'.
SEC. 407. ADVISORY BOARD AND TRIBAL TASK FORCE.
The American Indian Trust Fund Management Reform Act of 1994 is amended
by striking section 306 (25 U.S.C. 4046) and inserting the following:
'SEC. 306. TRIBAL TASK FORCE ON TRUST REFORM.
'(a) ESTABLISHMENT- As soon as practicable after the date of enactment
of this section, the Deputy Secretary shall establish a Tribal Task
Force on Trust Reform.
'(b) COMPOSITION-
'(1) IN GENERAL- The Task Force shall be composed of 18 members
and 12 alternates, of which--
'(A) 6 members shall--
'(i) serve as primary members; and
'(ii) be selected by the Deputy Secretary;
'(B) 12 members shall--
'(i) serve as primary members; and
'(ii) be selected by members of federally-recognized
Indian tribes located within the regions of the Bureau
represented by the members; and
'(C) the 12 alternates shall--
'(i) serve as alternate members for the members
described in subparagraph (B); and
'(ii) be selected by members of federally-recognized
Indian tribes located within the regions of the Bureau
represented by the members.
'(2) REGIONAL REPRESENTATION- Each region of the Bureau shall be
represented by a primary member and alternate member on the Task
Force.
'(3) TERM- A member of the Task Force shall serve for a term of 2
years.
'(c) DUTIES- The Task Force, in cooperation with the Deputy Secretary,
shall--
'(1) not later than 1 year after the date of enactment of this
section, conduct and submit to Congress a report on a study of
appropriate standards and procedures for inventorying and
management of trust assets; and
'(2) not later than 2 years after the date of enactment of this
section, identify, and submit to Congress a report that includes
recommendations relating to, modifications to existing law
relating to trust reform, including recommendations on matters
such as--
'(A) the need for an independent commission to oversee the
administration of trust funds and assets; and
'(B) the most beneficial administrative structure and
procedures.
'(d) FACA- The Task Force shall not be subject to the Federal Advisory
Committee Act (5 U.S.C. App.).
'(e) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be
appropriated such sums as are necessary to carry out this section.
'(f) TERMINATION OF AUTHORITY- The Task Force and authority of the Task
Force under this section terminate on the date that is 3 years after
the date of enactment of the Indian Trust Asset and Trust Fund
Management and Reform Act of 2003.'.
SEC. 408. REGULATIONS.
(a) IN GENERAL- Not later than 1 year after the date of enactment of
this Act, the Secretary of the Interior shall promulgate regulations to
carry out the amendments made by this title.
(b) ACTIVE PARTICIPATION-
(1) IN GENERAL- All regulations promulgated under subsection (a)
shall be developed through a negotiated rulemaking in accordance
with subchapter II of chapter 5, and chapter 7, of title 5, United
States Code (commonly known as the 'Administrative Procedure
Act').
(2) PARTICIPANTS- With the exception of the Secretary of the
Interior, each participant in the negotiated rulemaking under
paragraph (1) shall be a federally-recognized Indian tribe.
SEC. 409. NO EFFECT ON CERTAIN JUDICIAL DECISION.
Nothing in this title or any amendment made by this title limits or
otherwise affects any finding, remedy, jurisdiction, authority, or
discretion of any court with respect to Cobell v. Norton, Civ. No.
96-1285 (RCL).
TITLE V--RACIAL PROFILING
SEC. 501. SENSE OF THE SENATE ON RACIAL PROFILING.
(a) FINDINGS- The Senate finds the following:
(1) The vast majority of police officers and other law enforcement
agents nationwide discharge their duties and protect their
communities in a professional manner, without bias.
(2) The use by some law enforcement agents of race, ethnicity, or
national origin in deciding which persons should be subject to
traffic stops and other discretionary law enforcement
interventions (referred to in this section as 'racial profiling')
is wrong. Statistical evidence from throughout the United States
demonstrates that such racial profiling is a real and measurable
phenomenon.
(3) The vast majority of individuals subjected to such stops and
interventions based on race, ethnicity, or national origin are
found to be law-abiding. Therefore, racial profiling is not an
effective means to uncover criminal activity.
(4) Racial profiling harms individuals subjected to it because the
individuals experience fear, anxiety, humiliation, anger,
resentment, and cynicism when unjustifiably treated as criminal
suspects.
(5) Racial profiling damages the criminal justice system as a
whole by undermining public confidence and trust in the police,
the courts, and criminal law.
(6) President Bush, in his first address to a joint session of
Congress on February 27, 2001, said that the practice of racial
profiling is wrong and pledged to end the practice.
(7) Attorney General John Ashcroft, as recently as July 25, 2002,
made a commitment to work with Congress, to get a bill to the
President's desk that will make clear that racial profiling is
wrong and should be banned in the United States.
(b) SENSE OF THE SENATE- It is the sense of the Senate that Congress
should enact legislation--
(1) to ban the practice of racial profiling; and
(2) to require Federal, State, and local law enforcement to take
steps to prevent the practice.
TITLE VI--PAYCHECK FAIRNESS
SEC. 601. SHORT TITLE.
This title may be cited as the 'Paycheck Fairness Act'.
SEC. 602. FINDINGS.
Congress makes the following findings:
(1) Women have entered the workforce in record numbers.
(2) Even today, women earn significantly lower pay than men for
work on jobs that require equal skill, effort, and responsibility
and that are performed under similar working conditions. These pay
disparities exist in both the private and governmental sectors. In
many instances, the pay disparities can only be due to continued
intentional discrimination or the lingering effects of past
discrimination.
(3) The existence of such pay disparities--
(A) depresses the wages of working families who rely on the
wages of all members of the family to make ends meet;
(B) prevents the optimum utilization of available labor
resources;
(C) has been spread and perpetuated, through commerce and the
channels and instrumentalities of commerce, among the workers
of the several States;
(D) burdens commerce and the free flow of goods in commerce;
(E) constitutes an unfair method of competition in commerce;
(F) leads to labor disputes burdening and obstructing
commerce and the free flow of goods in commerce;
(G) interferes with the orderly and fair marketing of goods
in commerce; and
(H) in many instances, may deprive workers of equal
protection on the basis of sex in violation of the 5th and
14th amendments.
(4)(A) Artificial barriers to the elimination of discrimination in
the payment of wages on the basis of sex continue to exist decades
after the enactment of the Fair Labor Standards Act of 1938 (29
U.S.C. 201 et seq.) and the Civil Rights Act of 1964 (42 U.S.C.
2000a et seq.).
(B) Elimination of such barriers would have positive effects,
including--
(i) providing a solution to problems in the economy created
by unfair pay disparities;
(ii) substantially reducing the number of working women
earning unfairly low wages, thereby reducing the dependence
on public assistance;
(iii) promoting stable families by enabling all family
members to earn a fair rate of pay;
(iv) remedying the effects of past discrimination on the
basis of sex and ensuring that in the future workers are
afforded equal protection on the basis of sex; and
(v) ensuring equal protection pursuant to Congress' power to
enforce the 5th and 14th amendments.
(5) With increased information about the provisions added by the
Equal Pay Act of 1963 and wage data, along with more effective
remedies, women will be better able to recognize and enforce their
rights to equal pay for work on jobs that require equal skill,
effort, and responsibility and that are performed under similar
working conditions.
(6) Certain employers have already made great strides in
eradicating unfair pay disparities in the workplace and their
achievements should be recognized.
SEC. 603. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.
(a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE DEFENSE- Section 6(d)(1) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended
by striking '(iv) a differential' and all that follows through the
period and inserting the following: '(iv) a differential based on a
bona fide factor other than sex, such as education, training or
experience, except that this clause shall apply only if--
'(I) the employer demonstrates that--
'(aa) such factor--
'(AA) is job-related with respect to the position in question; or
'(BB) furthers a legitimate business purpose, except that this item shall
not apply where the employee demonstrates that an alternative employment
practice exists that would serve the same business purpose without producing
such differential and that the employer has refused to adopt such
alternative practice; and
'(bb) such factor was actually applied and used
reasonably in light of the asserted justification;
and
'(II) upon the employer succeeding under subclause (I),
the employee fails to
demonstrate that the differential produced by the reliance of the employer
on such factor is itself the result of discrimination on the basis of sex by
the employer.
'An employer that is not otherwise in compliance with this
paragraph may not reduce the wages of any employee in order to
achieve such compliance.'.
(b) APPLICATION OF PROVISIONS- Section 6(d)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended by adding at the
end the following: 'The provisions of this subsection shall apply to
applicants for employment if such applicants, upon employment by the
employer, would be subject to any provisions of this section.'.
(c) ELIMINATION OF ESTABLISHMENT REQUIREMENT- Section 6(d) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 206(d)) is amended--
(1) by striking ', within any establishment in which such
employees are employed,'; and
(2) by striking 'in such establishment' each place it appears.
(d) NONRETALIATION PROVISION- Section 15(a)(3) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
(1) by striking 'or has' each place it appears and inserting
'has'; and
(2) by inserting before the semicolon the following: ', or has
inquired about, discussed, or otherwise disclosed the wages of the
employee or another employee, or because the employee (or
applicant) has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, hearing, or action
under section 6(d)'.
(e) ENHANCED PENALTIES- Section 16(b) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following: 'Any
employer who violates section 6(d) shall additionally be liable
for such compensatory or punitive damages as may be appropriate,
except that the United States shall not be liable for punitive
damages.';
(2) in the sentence beginning 'An action to', by striking 'either
of the preceding sentences' and inserting 'any of the preceding
sentences of this subsection';
(3) in the sentence beginning 'No employees shall', by striking
'No employees' and inserting 'Except with respect to class actions
brought to enforce section 6(d), no employee';
(4) by inserting after the sentence referred to in paragraph (3),
the following: 'Notwithstanding any other provision of Federal
law, any action brought to enforce section 6(d) may be maintained
as a class action as provided by the Federal Rules of Civil
Procedure.'; and
(5) in the sentence beginning 'The court in'--
(A) by striking 'in such action' and inserting 'in any action
brought to recover the liability prescribed in any of the
preceding sentences of this subsection'; and
(B) by inserting before the period the following: ',
including expert fees'.
(f) ACTION BY SECRETARY- Section 16(c) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting 'or, in the case of a violation of section
6(d), additional compensatory or punitive damages,' before
'and the agreement'; and
(B) by inserting before the period the following: ', or such
compensatory or punitive damages, as appropriate';
(2) in the second sentence, by inserting before the period the
following: 'and, in the case of a violation of section 6(d),
additional compensatory or punitive damages';
(3) in the third sentence, by striking 'the first sentence' and
inserting 'the first or second sentence'; and
(4) in the last sentence--
(A) by striking 'commenced in the case' and inserting
'commenced--
'(1) in the case';
(B) by striking the period and inserting '; or'; and
(C) by adding at the end the following:
'(2) in the case of a class action brought to enforce section
6(d), on the date on which the individual becomes a party
plaintiff to the class action'.
SEC. 604. TRAINING.
The Equal Employment Opportunity Commission and the Office of Federal
Contract Compliance Programs, subject to the availability of funds
appropriated under section 609, shall provide training to Commission
employees and affected individuals and entities on matters involving
discrimination in the payment of wages.
SEC. 605. RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and provide information to
employers, labor organizations, and the general public concerning the
means available to eliminate pay disparities between men and women,
including--
(1) conducting and promoting research to develop the means to
correct expeditiously the conditions leading to the pay
disparities;
(2) publishing and otherwise making available to employers, labor
organizations, professional associations, educational
institutions, the media, and the
general public the findings resulting from studies and other materials,
relating to eliminating the pay disparities;
(3) sponsoring and assisting State and community informational and
educational programs;
(4) providing information to employers, labor organizations,
professional associations, and other interested persons on the
means of eliminating the pay disparities;
(5) recognizing and promoting the achievements of employers, labor
organizations, and professional
associations that have worked to eliminate the pay disparities; and
(6) convening a national summit to discuss, and consider
approaches for rectifying, the pay disparities.
SEC. 606. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNITION PROGRAM.
(a) GUIDELINES-
(1) IN GENERAL- The Secretary of Labor shall develop guidelines to
enable employers to evaluate job categories based on objective
criteria such as
educational requirements, skill requirements, independence, working
conditions, and responsibility, including decisionmaking responsibility and
de facto supervisory responsibility.
(2) USE- The guidelines developed under paragraph (1) shall be
designed to enable employers voluntarily to compare wages paid for
different jobs to determine if the pay scales involved adequately
and fairly reflect the educational requirements, skill
requirements, independence, working conditions, and responsibility
for each such job with the goal of eliminating unfair pay
disparities between occupations traditionally dominated by men or
women.
(3) PUBLICATION- The guidelines shall be developed under paragraph
(1) and published in the Federal Register not later than 180 days
after the date of enactment of this Act.
(b) EMPLOYER RECOGNITION-
(1) PURPOSE- It is the purpose of this subsection to emphasize the
importance of, encourage the improvement of, and recognize the
excellence of employer efforts to pay wages to women that reflect
the real value of the contributions of such women to the
workplace.
(2) IN GENERAL- To carry out the purpose of this subsection, the
Secretary of Labor shall establish a program under which the
Secretary shall provide for the recognition of employers who,
pursuant to a voluntary job evaluation conducted by the employer,
adjust their wage scales (such adjustments shall not include the
lowering of wages paid to men) using the guidelines developed
under subsection (a) to ensure that women are paid fairly in
comparison to men.
(3) TECHNICAL ASSISTANCE- The Secretary of Labor may provide
technical assistance to assist an employer in carrying out an
evaluation under paragraph (2).
(c) REGULATIONS- The Secretary of Labor shall promulgate such rules and
regulations as may be necessary to carry out this section.
SEC. 607. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE
WORKPLACE.
(a) IN GENERAL- There is established the Secretary of Labor's National
Award for Pay Equity in the Workplace, which shall be evidenced by a
medal bearing the inscription 'Secretary of Labor's National Award for
Pay Equity in the Workplace'. The medal shall be of such design and
materials, and bear such additional inscriptions, as the Secretary of
Labor may prescribe.
(b) CRITERIA FOR QUALIFICATION- To qualify to receive an award under
this section a business shall--
(1) submit a written application to the Secretary of Labor, at
such time, in such manner, and containing such information as the
Secretary may require, including at a minimum information that
demonstrates that the business has made substantial effort to eliminate pay
disparities between men and women, and deserves special recognition as a
consequence; and
(2) meet such additional requirements and specifications as the
Secretary of Labor determines to be appropriate.
(c) MAKING AND PRESENTATION OF AWARD-
(1) AWARD- After receiving recommendations from the Secretary of
Labor, the President or the designated representative of the
President shall annually present the award described in subsection
(a) to businesses that meet the qualifications described in
subsection (b).
(2) PRESENTATION- The President or the designated representative
of the President shall present the award under this section with
such ceremonies as the President or the designated representative
of the President may determine to be appropriate.
(d) BUSINESS- In this section, the term 'business' includes--
(1)(A) a corporation, including a nonprofit corporation;
(B) a partnership;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to an entity described in any of
subparagraphs (A) through (D);
(2) an entity carrying out an education referral program, a
training program, such as an apprenticeship or management training
program, or a similar program; and
(3) an entity carrying out a joint program, formed by a
combination of any entities described in paragraph (1) or (2).
SEC. 608. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION.
Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-8) is
amended by adding at the end the following:
'(f)(1) Not later than 18 months after the date of enactment of this
subsection, the Commission shall--
'(A) complete a survey of the data that is currently available to
the Federal Government relating to employee pay information for
use in the enforcement of Federal laws prohibiting pay
discrimination and, in consultation with other relevant Federal
agencies, identify additional data collections that will enhance
the enforcement of such laws; and
'(B) based on the results of the survey and consultations under
subparagraph (A), issue regulations to provide for the collection
of pay information data from employers as described by the sex,
race, and national origin of employees.
'(2) In implementing paragraph (1), the Commission shall have as its
primary consideration the most effective and efficient means for
enhancing the enforcement of Federal laws prohibiting pay
discrimination. For this purpose, the Commission shall consider factors
including the imposition of burdens on employers, the frequency of
required reports (including which employers should be required to
prepare reports), appropriate protections for maintaining data
confidentiality, and the most effective format for the data collection
reports.'.
SEC. 609. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary
to carry out this title.
TITLE VII--EMPLOYMENT NON-DISCRIMINATION
SEC. 701. SHORT TITLE.
This title may be cited as the 'Employment Non-Discrimination Act of
2003'.
SEC. 702. PURPOSES.
The purposes of this title are--
(1) to provide a comprehensive Federal prohibition of employment
discrimination on the basis of sexual orientation;
(2) to provide meaningful and effective remedies for employment
discrimination on the basis of sexual orientation; and
(3) to invoke congressional powers, including the powers to
enforce the 14th amendment to the Constitution, and to regulate
interstate commerce and provide for the general welfare pursuant
to section 8 of article I of the Constitution, in order to
prohibit employment discrimination on the basis of sexual
orientation.
SEC. 703. DEFINITIONS.
(a) IN GENERAL- In this title:
(1) COMMISSION- The term 'Commission' means the Equal Employment
Opportunity Commission.
(2) COVERED ENTITY- The term 'covered entity' means an employer,
employment agency, labor organization, or joint labor-management
committee.
(3) EMPLOYEE-
(A) IN GENERAL- The term 'employee' means--
(i) an employee (as defined in section 701(f) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e(f));
(ii) a Presidential appointee or State employee to which
section 302(a)(1) of the Government Employee Rights Act
of 1991 (2 U.S.C. 1202(a)(1)) applies;
(iii) a covered employee, as defined in section 101 of
the Congressional Accountability Act of 1995 (2 U.S.C.
1301) or section 411(c) of title 3, United States Code;
or
(iv) an employee or applicant to which section 717(a) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a))
applies.
(B) EXCEPTION- The provisions of this title that apply to an
employee or individual shall not apply to a volunteer who
receives no compensation.
(4) EMPLOYER- The term 'employer' means--
(A) a person engaged in an industry affecting commerce (as
defined in section 701(h) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(h)) who has 15 or more employees (as
defined in subparagraphs (A)(i) and (B) of paragraph (3)) for each working
day in each of 20 or more calendar weeks in the current or preceding
calendar year, and any agent of such a person, but does not include a bona
fide private membership club (other than a labor organization) that is
exempt from taxation under section 501(c) of the Internal Revenue Code of
1986;
(B) an employing authority to which section 302(a)(1) of the
Government Employee Rights Act of 1991 applies;
(C) an employing office, as defined in section 101 of the
Congressional Accountability Act of 1995 or section 411(c) of
title 3, United States Code; or
(D) an entity to which section 717(a) of the Civil Rights Act
of 1964 applies.
(5) EMPLOYMENT AGENCY- The term 'employment agency' has the
meaning given the term in section 701(c) of the Civil Rights Act
of 1964 (42 U.S.C. 2000e(c)).
(6) LABOR ORGANIZATION- The term 'labor organization' has the
meaning given the term in section 701(d) of the Civil Rights Act
of 1964 (42 U.S.C. 2000e(d)).
(7) PERSON- The term 'person' has the meaning given the term in
section 701(a) of the Civil Rights Act of 1964 (42 U.S.C.
2000e(a)).
(8) RELIGIOUS ORGANIZATION- The term 'religious organization'
means--
(A) a religious corporation, association, or society; or
(B) a school, college, university, or other educational
institution or institution of learning, if--
(i) the institution is in whole or substantial part
controlled, managed, owned, or supported by a religion,
religious corporation, association, or society; or
(ii) the curriculum of the institution is directed
toward the propagation of a religion.
(9) SEXUAL ORIENTATION- The term 'sexual orientation' means
homosexuality, bisexuality, or heterosexuality, whether the
orientation is real or perceived.
(10) STATE- The term 'State' has the meaning given the term in
section 701(i) of the Civil Rights Act of 1964 (42 U.S.C.
2000e(i)).
(b) APPLICATION OF DEFINITIONS- For purposes of this section, a
reference in section 701 of the Civil Rights Act of 1964--
(1) to an employee or an employer shall be considered to refer to
an employee (as defined in paragraph (3)) or an employer (as
defined in paragraph (4)), respectively, except as provided in
paragraph (2); and
(2) to an employer in subsection (f) of that section shall be
considered to refer to an employer (as defined in paragraph
(4)(A)).
SEC. 704. DISCRIMINATION PROHIBITED.
(a) EMPLOYER PRACTICES- 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
the compensation, terms, conditions, or privileges of employment
of the individual, because of such individual's sexual
orientation; or
(2) to limit, segregate, or classify the employees or applicants
for employment of the employer in any way that would deprive or
tend to deprive any individual of employment or otherwise
adversely affect the status of the individual as an employee,
because of such individual's sexual orientation.
(b) EMPLOYMENT AGENCY PRACTICES- It shall be an unlawful employment
practice for an employment agency to fail or refuse to refer for
employment, or otherwise to discriminate against, any individual
because of the sexual orientation of the individual or to classify or
refer for employment any individual on the basis of the sexual
orientation of the individual.
(c) LABOR ORGANIZATION PRACTICES- 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 the sexual
orientation of the individual;
(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 that would deprive or tend
to deprive any individual of employment, or would limit such
employment or otherwise adversely affect the status of the
individual as an employee or as an applicant for employment,
because of such individual's sexual orientation; or
(3) to cause or attempt to cause an employer to discriminate
against an individual in violation of this section.
(d) TRAINING PROGRAMS- 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 the sexual orientation of the individual in admission to, or
employment in, any program established to provide apprenticeship or
other training.
(e) ASSOCIATION- An unlawful employment practice described in any of
subsections (a) through (d) shall be considered to include an action
described in that subsection, taken against an individual based on the
sexual orientation of a person with whom the individual associates or
has associated.
(f) DISPARATE IMPACT- Only disparate treatment claims may be brought
under this title.
SEC. 705. RETALIATION PROHIBITED.
It shall be an unlawful employment practice for a covered entity to
discriminate against an individual because such individual opposed any
practice made an unlawful
employment practice by this title, or because such individual made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title.
SEC. 706. BENEFITS.
This title does not apply to the provision of employee benefits to an
individual for the benefit of the domestic partner of such individual.
SEC. 707. COLLECTION OF STATISTICS PROHIBITED.
The Commission shall not collect statistics on sexual orientation from
covered entities, or compel the collection of such statistics by
covered entities.
SEC. 708. QUOTAS AND PREFERENTIAL TREATMENT PROHIBITED.
(a) QUOTAS- A covered entity shall not adopt or implement a quota on
the basis of sexual orientation.
(b) PREFERENTIAL TREATMENT- A covered entity shall not give
preferential treatment to an individual on the basis of sexual
orientation.
(c) ORDERS AND CONSENT DECREES- Notwithstanding any other provision of
this title, an order or consent decree entered for a violation of this
title may not include a quota, or preferential treatment to an
individual, based on sexual orientation.
SEC. 709. RELIGIOUS EXEMPTION.
This title shall not apply to a religious organization.
SEC. 710. NONAPPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS'
PREFERENCES.
(a) ARMED FORCES-
(1) EMPLOYMENT- In this title, the term 'employment' does not
apply to the relationship between the United States and members of
the Armed Forces.
(2) ARMED FORCES- In paragraph (1), the term 'Armed Forces' means
the Army, Navy, Air Force, Marine Corps, and Coast Guard.
(b) VETERANS' PREFERENCES- This title does not repeal or modify any
Federal, State, territorial, or local law creating a special right or
preference concerning employment for a veteran.
SEC. 711. CONSTRUCTION.
(a) EMPLOYER RULES AND POLICIES- Nothing in this title shall be
construed to prohibit a covered entity from enforcing rules and
policies, if the rules or policies are designed for, and uniformly
applied to, all individuals regardless of sexual orientation.
(b) ASSOCIATION- Nothing in this title shall be construed to prohibit
any association, or infringe upon any right of association, guaranteed
by the first amendment to the Constitution, of any nonprofit, voluntary
membership organization.
SEC. 712. ENFORCEMENT.
(a) ENFORCEMENT POWERS- With respect to the administration and
enforcement of this title in the case of a claim alleged by an
individual for a violation of this title--
(1) the Commission shall have the same powers as the Commission
has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.); or
(B) sections 302 and 304 of the Government Employee Rights
Act of 1991 (2 U.S.C. 1202 and 1220);
in the case of a claim alleged by such individual for a violation
of such title, or of section 302(a)(1) of the Government Employee
Rights Act of 1991 (2 U.S.C. 1202(a)(1)), respectively;
(2) the Librarian of Congress shall have the same powers as the
Librarian of Congress has to administer and enforce title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) in the case
of a claim alleged by such individual for a violation of such
title;
(3) the Board (as defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301)) shall have the same
powers as the Board has to administer and enforce the
Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.)
in the case of a claim alleged by such individual for a violation
of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1));
(4) the Attorney General shall have the same powers as the
Attorney General has to administer and enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.); or
(B) sections 302 and 304 of the Government Employee Rights
Act of 1991 (2 U.S.C. 1202 and 1220);
in the case of a claim alleged by such individual for a violation
of such title, or of section 302(a)(1) of the Government Employee
Rights Act of 1991 (2 U.S.C. 1202(a)(1)), respectively;
(5) the President, the Commission, and the Merit Systems
Protection Board shall have the same powers as the President, the
Commission, and the Board, respectively, have to administer and
enforce chapter 5 of title 3, United States Code, in the case of a
claim alleged by such individual for a violation of section 411 of
such title;
(6) a court of the United States shall have the same jurisdiction
and powers as the court has to enforce--
(A) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.) in the case of a claim alleged by such
individual for a violation of such title;
(B) sections 302 and 304 of the Government Employee Rights
Act of 1991 (2 U.S.C. 1202 and 1220) in the case of a claim
alleged by such individual for a violation of section
302(a)(1) of such Act (2 U.S.C. 1202(a)(1));
(C) the Congressional Accountability Act of 1995 (2 U.S.C.
1301 et seq.) in the case of a claim alleged by such
individual for a violation of section 201(a)(1) of such Act
(2 U.S.C. 1311(a)(1)); and
(D) chapter 5 of title 3, United States Code, in the case of
a claim alleged by such individual for a violation of section
411 of such title.
(b) PROCEDURES AND REMEDIES- The procedures and remedies applicable to
a claim alleged by an individual for a violation of this title are--
(1) the procedures and remedies applicable for a violation of
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et
seq.) in the case of a claim alleged by such individual for a
violation of such title;
(2) the procedures and remedies applicable for a violation of
section 302(a)(1) of the Government Employee Rights Act of 1991 (2
U.S.C. 1202(a)(1)) in the case of a claim alleged by such
individual for a violation of such section;
(3) the procedures and remedies applicable for a violation of
section 201(a)(1) of the Congressional Accountability Act of 1995
(2 U.S.C. 1311(a)(1)) in the case of a claim alleged by such
individual for a violation of such section; and
(4) the procedures and remedies applicable for a violation of
section 411 of title 3, United States Code, in the case of a claim
alleged by such individual for a violation of such section.
(c) OTHER APPLICABLE PROVISIONS- With respect to a claim alleged by a
covered employee (as defined in section 101 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301)) for a violation of this
title, title III of the Congressional Accountability Act of 1995 (2
U.S.C. 1381 et seq.) shall apply in the same manner as such title
applies with respect to a claim alleged by such a covered employee for
a violation of section 201(a)(1) of such Act (2 U.S.C. 1311(a)(1)).
(d) PROHIBITION OF AFFIRMATIVE ACTION- Notwithstanding any other
provision of this section, affirmative action for a violation of this
title may not be imposed. Nothing in this section shall prevent the
granting of relief to any individual who suffers a violation of such
individual's rights provided in this title.
SEC. 713. STATE AND FEDERAL IMMUNITY.
(a) STATE IMMUNITY- A State shall not be immune under the 11th
amendment to the Constitution from a suit described in subsection (b)
and brought in a Federal court of competent jurisdiction for a
violation of this title.
(b) REMEDIES FOR STATE EMPLOYEES-
(1) IN GENERAL-
(A) WAIVER- A State's receipt or use of Federal financial
assistance for any program or activity of a State shall
constitute a waiver of sovereign immunity, under the 11th
amendment to the Constitution or otherwise, to a suit brought
by an employee or applicant for employment of that program or
activity under this title for a remedy authorized under
subsection (c).
(B) DEFINITION- In this paragraph, the term 'program or
activity' has the meaning given the term in section 606 of
the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
(2) OFFICIALS- An official of a State may be sued in the official
capacity of the official by any employee or applicant for
employment who has complied with the applicable procedures of
section 712, for equitable relief that is authorized under this
title. In such a suit the court may award to the prevailing party
those costs authorized by section 722 of the Revised Statutes (42
U.S.C. 1988).
(3) EFFECTIVE DATE- With respect to a particular program or
activity, paragraphs (1) and (2) apply to conduct occurring on or
after the day, after the date of enactment of this Act, on which a
State first receives or uses Federal financial assistance for that
program or activity.
(c) REMEDIES AGAINST THE UNITED STATES AND THE STATES- Notwithstanding
any other provision of this
Act, in an action or administrative proceeding against the United States or
a State for a violation of this title, remedies (including remedies at law
and in equity, and interest) are available for the violation to the same
extent as the remedies are available for a violation of title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) by a private entity,
except that--
(1) punitive damages are not available; and
(2) compensatory damages are available to the extent specified in
section 1977A(b) of the Revised Statutes (42 U.S.C. 1981a(b)).
SEC. 714. ATTORNEYS' FEES.
Notwithstanding any other provision of this title, in an action or
administrative proceeding for a violation of this title, an entity
described in section 712(a) (other than paragraph (4) of such section),
in the discretion of the entity, 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. The Commission and the
United States shall be liable for the costs to the same extent as a
private person.
SEC. 715. POSTING NOTICES.
A covered entity who is required to post notices described in section
711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10) shall post
notices for employees, applicants for employment, and members, to whom
the provisions specified in section 712(b) of this Act apply, that
describe the applicable provisions of this title in the manner
prescribed by, and subject to the penalty provided under, section 711
of the Civil Rights Act of 1964.
SEC. 716. REGULATIONS.
(a) IN GENERAL- Except as provided in subsections (b), (c), and (d),
the Commission shall have authority to issue regulations to carry out
this title.
(b) LIBRARIAN OF CONGRESS- The Librarian of Congress shall have
authority to issue regulations to carry out this title with respect to
employees and applicants for employment of the Library of Congress.
(c) BOARD- The Board referred to in section 712(a)(3) shall have
authority to issue regulations to carry out this title, in accordance
with section 304 of the Congressional Accountability Act of 1995 (2
U.S.C. 1384), with respect to covered employees, as defined in section
101 of such Act (2 U.S.C. 1301).
(d) PRESIDENT- The President shall have authority to issue regulations
to carry out this title with respect to covered employees, as defined
in section 411(c) of title 3, United States Code.
SEC. 717. RELATIONSHIP TO OTHER LAWS.
This title shall not invalidate or limit the rights, remedies, or
procedures available to an individual claiming discrimination
prohibited under any other Federal law or any law of a State or
political subdivision of a State.
SEC. 718. SEVERABILITY.
If any provision of this title, or the application of the provision to
any person or circumstance, is held to be invalid, the remainder of
this title and the application of the provision to any other person or
circumstance shall not be affected by the invalidity.
SEC. 719. EFFECTIVE DATE.
This title shall take effect 60 days after the date of enactment of
this Act and shall not apply to conduct occurring before the effective
date.
TITLE VIII--GENETIC NONDISCRIMINATION
SEC. 801. SHORT TITLE.
This title may be cited as the 'Genetic Nondiscrimination in Health
Insurance and Employment Act'.
Subtitle A--Prohibition of Health Insurance Discrimination on the Basis of
Protected Genetic Information
SEC. 811. AMENDMENTS TO EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974.
(a) PROHIBITION OF HEALTH INSURANCE DISCRIMINATION ON THE BASIS OF
GENETIC SERVICES OR PROTECTED GENETIC INFORMATION-
(1) NO ENROLLMENT RESTRICTION FOR GENETIC SERVICES- Section
702(a)(1)(F) of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1182(a)(1)(F)) is amended by inserting before the
period '(or information about a request for or the receipt of
genetic services by such individual or family member of such
individual)'.
(2) NO DISCRIMINATION IN GROUP RATE BASED ON PROTECTED GENETIC
INFORMATION-
(A) IN GENERAL- Subpart B of part 7 of subtitle B of title I
of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1185 et seq.) is amended by adding at the end the
following:
'SEC. 714. PROHIBITING DISCRIMINATION AGAINST GROUPS ON THE BASIS OF
PROTECTED GENETIC INFORMATION.
'A group health plan, and a health insurance issuer offering group
health insurance coverage in connection with a group health plan, shall
not deny eligibility to a group or adjust premium or contribution rates
for a group on the basis of protected genetic information concerning an
individual in the group (or information about a request for or the
receipt of genetic services by such individual or family member of such
individual).'.
(B) CONFORMING AMENDMENTS-
(i) Section 702(b)(2)(A) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1182(b)) is
amended to read as follows:
'(A) to restrict the amount that an employer may be charged
for coverage under a group health plan, except as provided in
section 714; or'.
(ii) Section 732(a) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1191a(a)) is amended by
striking 'section 711' and inserting 'subsections
(a)(1)(F), (b) (with respect to cases relating to
genetic information or information about a request or
receipt of genetic services by an individual or family
member of such individual), (c), (d), (e), (f), or (g)
of section 702, section 711 and section 714'.
(b) LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND DISCLOSURE OF
PROTECTED GENETIC INFORMATION- Section 702 of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1182) is amended by adding at
the end the following:
'(c) GENETIC TESTING-
'(1) LIMITATION ON REQUESTING OR REQUIRING GENETIC TESTING- A
group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, shall
not request or require an individual or a family member of such
individual to undergo a genetic test.
'(2) RULE OF CONSTRUCTION- Nothing in this part shall be construed
to limit the authority of a health care professional, who is
providing treatment with respect to an individual and who is
employed by a group health plan or a health insurance issuer, to
request that such individual or family member of such individual
undergo a genetic test. Such a health care professional shall not
require that such individual or family member undergo a genetic
test.
'(d) COLLECTION OF PROTECTED GENETIC INFORMATION- Except as provided in
subsections (f) and (g), a group health plan, or a health insurance
issuer offering health insurance coverage in connection with a group
health plan, shall not request, require, collect, or purchase protected
genetic information concerning an individual (or information about a
request for or the receipt of genetic services by such individual or
family member of such individual).
'(e) DISCLOSURE OF PROTECTED GENETIC INFORMATION- A group health plan,
or a health insurance issuer offering health insurance coverage in
connection with a group health plan, shall not disclose protected
genetic information about an individual (or information about a request
for or the receipt of genetic services by such individual or family
member of such individual) to--
'(1) any entity that is a member of the same controlled group as
such issuer or plan sponsor of such group health plan;
'(2) any other group health plan or health insurance issuer or any
insurance agent, third party administrator, or other person
subject to regulation under State insurance laws;
'(3) the Medical Information Bureau or any other person that
collects, compiles, publishes, or otherwise disseminates insurance
information;
'(4) the individual's employer or any plan sponsor; or
'(5) any other person the Secretary may specify in regulations.
'(f) INFORMATION FOR PAYMENT FOR GENETIC SERVICES-
'(1) IN GENERAL- With respect to payment for genetic services
conducted concerning an individual or the coordination of
benefits, a group health plan, or a health insurance issuer
offering group health insurance coverage in connection with a
group health plan, may request that the individual provide the
plan or issuer with evidence that such services were performed.
'(2) RULE OF CONSTRUCTION- Nothing in paragraph (1) shall be
construed to--
'(A) permit a group health plan or health insurance issuer to
request (or require) the results of the services referred to
in such paragraph; or
'(B) require that a group health plan or health insurance
issuer make payment for services described in such paragraph
where the individual involved has refused to provide evidence
of the performance of such services pursuant to a request by
the plan or issuer in accordance with such paragraph.
'(g) INFORMATION FOR PAYMENT OF OTHER CLAIMS- With respect to the
payment of claims for benefits other than genetic services, a group
health plan, or a health insurance issuer offering group health
insurance coverage in connection with a group health plan, may request
that an individual provide protected genetic information so long as
such information--
'(1) is used solely for the payment of a claim;
'(2) is limited to information that is directly related to and
necessary for the payment of such claim and the claim would
otherwise be denied but for the protected genetic information; and
'(3) is used only by an individual (or individuals) within such
plan or issuer who needs access to such information for purposes
of payment of a claim.
'(h) RULES OF CONSTRUCTION-
'(1) COLLECTION OR DISCLOSURE AUTHORIZED BY INDIVIDUAL- The
provisions of subsections (d) (regarding collection) and (e) shall
not apply to an individual if the individual (or legal
representative of the individual) provides prior, knowing,
voluntary, and written authorization for the collection or
disclosure of protected genetic information.
'(2) DISCLOSURE FOR HEALTH CARE TREATMENT- Nothing in this section
shall be construed to limit or restrict the disclosure of
protected genetic information from a health care provider to
another health care provider for the purpose of providing health
care treatment to the individual involved.
'(i) DEFINITIONS- In this section:
'(1) CONTROLLED GROUP- The term 'controlled group' means any group
treated as a single employer under subsection (b), (c), (m), or
(o) of section 414 of the Internal Revenue Code of 1986.
'(2) GROUP HEALTH PLAN, HEALTH INSURANCE ISSUER- The terms 'group
health plan' and
'health insurance issuer' include a third party administrator or other
person acting for or on behalf of such plan or issuer.'.
(c) ENFORCEMENT- Section 502 (29 U.S.C. 1132) is amended by adding at
the end the following:
'(n) VIOLATION OF GENETIC DISCRIMINATION OR GENETIC DISCLOSURE
PROVISIONS- In any action under this section against any administrator
of a group health plan, or health insurance issuer offering group
health insurance coverage in connection with a group health plan
(including any third party administrator or other person acting for or
on behalf of such plan or issuer) alleging a violation of subsection
(a)(1)(F), (b) (with respect to cases relating to genetic information
or information about a request or receipt of genetic services by an
individual or family member of such individual), (c), (d), (e), (f), or
(g) of section 702, or section 714, the court may award any appropriate
legal or equitable relief. Such relief may include a requirement for
the payment of attorney's fees and costs, including the costs of expert
witnesses.
'(o) CIVIL PENALTY- The monetary provisions of section 308(b)(2)(C) of
Public Law 101-336 (42 U.S.C. 12188(b)(2)(C)) shall apply for purposes
of the Secretary enforcing the provisions referred to in subsection
(n), except that any such relief awarded shall be paid only into the
general fund of the Treasury.'.
(d) PREEMPTION- Section 731 of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1191) is amended--
(1) in subsection (a)(1), by inserting 'or (e)' after 'subsection
(b)'; and
(2) by adding at the end the following:
'(e) SPECIAL RULE IN CASE OF GENETIC INFORMATION- With respect to group
health insurance coverage offered by a health insurance issuer, the
provisions of this part relating to genetic information (including
information about a request for or the receipt of genetic services by
an individual or a family member of such individual) shall not be
construed to supersede any provision of State law which establishes,
implements, or continues in effect a standard, requirement, or remedy
that more completely--
'(1) protects the confidentiality of genetic information
(including information about a request for or the receipt of
genetic services by an individual or a family member of such
individual) or the privacy of an individual or a family member of
the individual with respect to genetic information (including
information about a request for or the receipt of genetic services
by an individual or a family member of such individual) than does
this part; or
'(2) prohibits discrimination on the basis of genetic information
than does this part.'.
(e) DEFINITIONS- Section 733(d) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1191b(d)) is amended by adding at the
end the following:
'(5) FAMILY MEMBER- The term 'family member' means with respect to
an individual--
'(A) the spouse of the individual;
'(B) a dependent child of the individual, including a child
who is born to or placed for adoption with the individual; or
'(C) any other individuals related by blood to the individual
or to the spouse or child described in subparagraph (A) or
(B).
'(6) GENETIC INFORMATION- The term 'genetic information' means
information about genes, gene products, or inherited
characteristics that may derive from an individual or a family
member of such individual (including information about a request
for or the receipt of genetic services by such individual or
family member of such individual).
'(7) GENETIC SERVICES- The term 'genetic services' means health
services, including genetic tests, provided to obtain, assess, or
interpret genetic information for diagnostic and therapeutic
purposes, and for genetic education and counseling.
'(8) GENETIC TEST-
'(A) IN GENERAL- The term 'genetic test' means the analysis
of human DNA, RNA, chromosomes, proteins, or metabolites that
detect genotypes, mutations, or chromosomal changes.
'(B) CERTAIN TESTS- Notwithstanding subparagraph (A), the
conducting of metabolic tests that are not intended to reveal
protected genetic information shall not be considered a
violation of section 702(c) for purposes of such subparagraph
regardless of the results of the tests. Test results that are
protected genetic information shall be subject to the
applicable provisions of this part.
'(9) PROTECTED GENETIC INFORMATION- The term 'protected genetic
information' means--
'(A) information about an individual's genetic tests;
'(B) information about genetic tests of family members of the
individual; or
'(C) information about the occurrence of a disease or
disorder in family members.'.
(f) LIMITATIONS WITH RESPECT TO DEFINITION- Section 702 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1182), as amended by
subsection (b), is further amended by adding at the end the following:
'(j) LIMITATIONS- As defined in section 933(d)(9), the term protected
genetic information shall not include--
'(1) information about the sex or age of the individual;
'(2) information about chemical, blood, or urine analyses of the
individual, unless these analyses are genetic tests; or
'(3) information about physical exams of the individual, and other
information that indicates the current health status of the
individual.'.
(g) AMENDMENT CONCERNING SUPPLEMENTAL EXCEPTED BENEFITS- Section
732(c)(3) of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1191a(c)(3)) is amended by inserting ', other than the
requirements of subsections (a)(1)(F), (b) (in cases relating to
genetic information or information about a request for or the receipt
of genetic services by an individual or a family member of such
individual), (c), (d), (e), (f) and (g) of section 702 and section
714,' after 'The requirements of this part'.
(h) EFFECTIVE DATE-
(1) IN GENERAL- Except as provided in this section, this section
and the amendments made by this section shall apply with respect
to group health plans for plan years beginning after October 1,
2003.
(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS- In the case
of a group health plan maintained pursuant to one or more
collective bargaining agreements between employee representatives
and one or more employers ratified before the date of the
enactment of this Act, this section and the amendments made by
this section shall not apply to plan years beginning before the
later of--
(A) the date on which the last of the collective bargaining
agreements relating to the plan terminates (determined
without regard to any extension thereof agreed to after the
date of the enactment of this Act), or
(B) October 1, 2003.
For purposes of subparagraph (A), any plan amendment made pursuant
to a collective bargaining agreement relating to the plan which
amends the plan solely to conform to any requirement of the
amendments made by this section shall not be treated as a
termination of such collective bargaining agreement.
SEC. 812. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.
(a) AMENDMENTS RELATING TO THE GROUP MARKET-
(1) PROHIBITION OF HEALTH INSURANCE DISCRIMINATION ON THE BASIS OF
PROTECTED GENETIC INFORMATION OR GENETIC SERVICES-
(A) NO ENROLLMENT RESTRICTION FOR GENETIC SERVICES- Section
2702(a)(1)(F) of the Public Health Service Act (42 U.S.C.
300gg-1(a)(1)(F)) is amended by inserting before the period
the following: '(or information about a request for or the
receipt of genetic services by an individual or a family
member of such individual)'.
(B) NO DISCRIMINATION IN GROUP RATE BASED ON PROTECTED
GENETIC INFORMATION-
(i) IN GENERAL- Subpart 2 of part A of title XXVII of
the Public Health Service (42 U.S.C. 300gg-4 et seq.) is
amended by adding at the end the following:
'SEC. 2707. PROHIBITING DISCRIMINATION AGAINST GROUPS ON THE BASIS OF
PROTECTED GENETIC INFORMATION.
'A group health plan, and a health insurance issuer offering group
health insurance coverage in connection with a group health plan, shall
not deny eligibility to a
group or adjust premium or contribution rates for a group on the basis of
protected genetic information concerning an individual in the group (or
information about a request for or the receipt of genetic services by such
individual or family member of such individual).'.
(ii) CONFORMING AMENDMENTS-
(I) Section 2702(b)(2)(A) of the Public Health
Service Act (42 U.S.C. 300gg-1(b)(2)(A)) is amended
to read as follows:
'(A) to restrict the amount that an employer may be charged
for coverage under a group health plan, except as provided in
section 2707; or'.
(II) Section 2721(a) of the Public Health Service
Act (42 U.S.C. 300gg-21(a)) is amended by inserting
'(other than subsections (a)(1)(F), (b) (with
respect to cases relating to genetic information or
information about a request or receipt of genetic
services by an individual or family member of such
individual), (c), (d), (e), (f), or (g) of section
2702 and section 2707)' after 'subparts 1 and 3'.
(2) LIMITATIONS ON GENETIC TESTING AND ON COLLECTION AND
DISCLOSURE OF PROTECTED GENETIC INFORMATION- Section 2702 of the
Public Health Service Act (42 U.S.C. 300gg-1) is amended by adding
at the end the following:
'(c) GENETIC TESTING-
'(1) LIMITATION ON REQUESTING OR REQUIRING GENETIC TESTING- A
group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, shall
not request or require an individual or a family member of such
individual to undergo a genetic test.
'(2) RULE OF CONSTRUCTION- Nothing in this title shall be
construed to limit the authority of a health care professional,
who is providing treatment with respect to an individual and who
is employed by a group health plan or a health insurance issuer,
to request that such individual or family member of such
individual undergo a genetic test. Such a health care professional
shall not require that such individual or family member undergo a
genetic test.
'(d) COLLECTION OF PROTECTED GENETIC INFORMATION- Except as provided in
subsections (f) and (g), a group health plan, or a health insurance
issuer offering health insurance coverage in connection with a group
health plan, shall not request, require, collect, or purchase
protected genetic information concerning an individual (or information about
a request for or the receipt of genetic services by such individual or
family member of such individual).
'(e) DISCLOSURE OF PROTECTED GENETIC INFORMATION- A group health plan,
or a health insurance issuer offering health insurance coverage in
connection with a group health plan, shall not disclose protected
genetic information about an individual (or information about a request
for or the receipt of genetic services by such individual or family
member of such individual) to--
'(1) any entity that is a member of the same controlled group as
such issuer or plan sponsor of such group health plan;
'(2) any other group health plan or health insurance issuer or any
insurance agent, third party administrator, or other person
subject to regulation under State insurance laws;
'(3) the Medical Information Bureau or any other person that
collects, compiles, publishes, or otherwise disseminates insurance
information;
'(4) the individual's employer or any plan sponsor; or
'(5) any other person the Secretary may specify in regulations.
'(f) INFORMATION FOR PAYMENT FOR GENETIC SERVICES-
'(1) IN GENERAL- With respect to payment for genetic services
conducted concerning an individual or the coordination of
benefits, a group health plan, or a health insurance issuer
offering group health insurance coverage in connection with a
group health plan, may request that the individual provide the
plan or issuer with evidence that such services were performed.
'(2) RULE OF CONSTRUCTION- Nothing in paragraph (1) shall be
construed to--
'(A) permit a group health plan or health insurance issuer to
request (or require) the results of the services referred to
in such paragraph; or
'(B) require that a group health plan or health insurance
issuer make payment for services described in such paragraph
where the individual involved has refused to provide evidence
of the performance of such services pursuant to a request by
the plan or issuer in accordance with such paragraph.
'(g) INFORMATION FOR PAYMENT OF OTHER CLAIMS- With respect to the
payment of claims for benefits other than genetic services, a group
health plan, or a health insurance issuer offering group health
insurance coverage in connection with a group health plan, may request
that an individual provide protected genetic information so long as
such information--
'(1) is used solely for the payment of a claim;
'(2) is limited to information that is directly related to and
necessary for the payment of such claim and the claim would
otherwise be denied but for the protected genetic information; and
'(3) is used only by an individual (or individuals) within such
plan or issuer who needs access to such information for purposes
of payment of a claim.
'(h) RULES OF CONSTRUCTION-
'(1) COLLECTION OR DISCLOSURE AUTHORIZED BY INDIVIDUAL- The
provisions of subsections (d) (regarding collection) and (e) shall
not apply to an
individual if the individual (or legal representative of the individual)
provides prior, knowing, voluntary, and written authorization for the
collection or disclosure of protected genetic information.
'(2) DISCLOSURE FOR HEALTH CARE TREATMENT- Nothing in this section
shall be construed to limit or restrict the disclosure of
protected genetic information from a health care provider to
another health care provider for the purpose of providing health
care treatment to the individual involved.
'(i) DEFINITIONS- In this section:
'(1) CONTROLLED GROUP- The term 'controlled group' means any group
treated as a single
employer under subsection (b), (c), (m), or (o) of section 414 of the
Internal Revenue Code of 1986.
'(2) GROUP HEALTH PLAN, HEALTH INSURANCE ISSUER- The terms 'group
health plan' and 'health insurance issuer' include a third party
administrator or other person acting for or on behalf of such plan
or issuer.'.
(3) DEFINITIONS- Section 2791(d) of the Public Health Service Act
(42 U.S.C. 300gg-91(d)) is amended by adding at the end the
following new paragraphs:
'(15) FAMILY MEMBER- The term 'family member' means with respect
to an individual--
'(A) the spouse of the individual;
'(B) a dependent child of the individual, including a child
who is born to or placed for adoption with the individual;
and
'(C) all other individuals related by blood to the individual
or the spouse or child described in subparagraph (A) or (B).
'(16) GENETIC INFORMATION- The term 'genetic information' means
information about genes, gene products, or inherited
characteristics that may derive from an individual or a family
member of such individual (including information about a request
for or the receipt of genetic services by such individual or
family member of such individual).
'(17) GENETIC SERVICES- The term 'genetic services' means health
services, including genetic tests, provided to obtain, assess, or
interpret genetic information for diagnostic and therapeutic
purposes, and for genetic education and counselling.
'(18) GENETIC TEST-
'(A) IN GENERAL- The term 'genetic test' means the analysis
of human DNA, RNA, chromosomes, proteins, or metabolites that
detect genotypes, mutations, or chromosomal changes.
'(B) CERTAIN TESTS- Notwithstanding subparagraph (A), the
conducting of metabolic tests that are not intended to reveal
protected genetic information shall not be considered a
violation of section 2702(c) or 2754(a) for purposes of such
subparagraph regardless of the results of the tests. Test
results that are protected genetic information shall be
subject to the applicable provisions of this title.
'(19) PROTECTED GENETIC INFORMATION- The term 'protected genetic
information' means--
'(A) information about an individual's genetic tests;
'(B) information about genetic tests of family members of the
individual; or
'(C) information about the occurrence of a disease or
disorder in family members.'.
(4) LIMITATIONS WITH RESPECT TO DEFINITION- Section 2702 of the
Public Health Service Act (42 U.S.C. 300gg-1), as amended by
paragraph (2), is further amended by adding at the end the
following:
'(j) LIMITATIONS- As defined in section 2791(d)(19), the term protected
genetic information shall not include--
'(1) information about the sex or age of the individual;
'(2) information about chemical, blood, or urine analyses of the
individual, unless these analyses are genetic tests; or
'(3) information about physical exams of the individual, and other
information that indicates the current health status of the
individual.'.
(b) AMENDMENT RELATING TO THE INDIVIDUAL MARKET- The first subpart 3 of
part B of title XXVII of the Public Health Service Act (42 U.S.C.
300gg-51 et seq.) is amended--
(1) by redesignating such subpart as subpart 2; and
(2) by adding at the end the follo