BE HEARD in the Workplace Act

[Congressional Bills 119th Congress] [From the U.S. Government Publishing Office] [S. 3865 Introduced in Senate (IS)]

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119th CONGRESS 2d Session S. 3865

To prevent discrimination, including harassment, in employment.

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

February 12, 2026

Mrs. Murray (for herself, Ms. Baldwin, Mr. Booker, Mr. Blumenthal, Ms. Blunt Rochester, Mr. Durbin, Mr. Fetterman, Ms. Hirono, Mr. Kaine, Ms. Klobuchar, Mr. Lujan, Mr. Markey, Mr. Merkley, Mr. Padilla, Mr. Sanders, Mr. Van Hollen, Ms. Warren, Mr. Whitehouse, and Mr. Wyden) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

A BILL

To prevent discrimination, including harassment, in employment.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act'' or the ``BE HEARD in the Workplace Act''.

SEC. 2. TABLE OF CONTENTS.

The table of contents of this Act is as follows:

Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Purposes. TITLE I--RESEARCHING AND PREVENTING WORKPLACE DISCRIMINATION, INCLUDING HARASSMENT; TIPPED EMPLOYEES

Sec. 100. Definitions. Subtitle A--Preventing Workplace Discrimination, Including Harassment

Sec. 101. Mandatory nondiscrimination policies. Sec. 102. Nondiscrimination training. Sec. 103. Resource materials on policies and trainings for small businesses. Sec. 104. Education, training, and technical assistance to employers. Sec. 105. Task force regarding harassment. Sec. 106. Resource materials on employment climate assessments. Sec. 107. Establishing an Office of Education and Outreach within the Equal Employment Opportunity Commission. Sec. 108. Relationship to other laws. Sec. 109. Authorization of appropriations. Subtitle B--Research and Additional Resources for Harassment Prevention

Sec. 111. National prevalence survey on harassment in employment. Sec. 112. Study and report on harassment in the Federal Government. Sec. 113. Studies, reports, and further research. Subtitle C--Preventing Harassment of Tipped Employees

Sec. 121. Tipped employees. TITLE II--STRENGTHENING WORKPLACE RIGHTS

Sec. 201. Clarifying sexual orientation discrimination and gender identity discrimination are unlawful sex discrimination. Sec. 202. Covered employers. Sec. 203. Compensatory and punitive damages available. Sec. 204. Discrimination, including harassment; standards of proof. Sec. 205. Clarifying other standards of proof. Sec. 206. Supervisor liability. Sec. 207. Extending the statutes of limitations. Sec. 208. Extending the time limitations on Federal employees filing a complaint. TITLE III--BROADENING PROTECTIONS AND ENSURING TRANSPARENCY

Sec. 301. Independent contractors, interns, fellows, volunteers, and trainees. Sec. 302. Nondisclosure agreements. Sec. 303. Prohibition on mandatory arbitration and protection of concerted legal action. Sec. 304. Federal contractor compliance with labor and civil rights laws. TITLE IV--NATIONWIDE GRANTS TO PREVENT AND RESPOND TO WORKPLACE DISCRIMINATION, INCLUDING HARASSMENT

Sec. 401. Definitions. Subtitle A--National Grants for Preventing and Addressing Employment Discrimination, Including Harassment

Sec. 411. Definitions. Sec. 412. Grants. Sec. 413. Authorization of appropriations. Subtitle B--Grants for Legal Assistance for Low-Income Workers

Sec. 421. Definitions. Sec. 422. Grants for civil legal needs related to employment discrimination. Sec. 423. Authorization of appropriations. Subtitle C--Grants for a System of State Advocacy

Sec. 431. Purpose. Sec. 432. Definitions. Sec. 433. Allotments and payments. Sec. 434. System required. Sec. 435. Administration. Sec. 436. Authorization of appropriations. TITLE V--GENERAL PROVISIONS

Sec. 501. Severability.

SEC. 3. PURPOSES.

The purposes of this Act are-- (1) to prevent and reduce prohibited discrimination, including harassment, in employment; (2) to prevent and reduce discriminatory, including harassing, conduct in the workplace; (3) to identify and implement best practices in creating a workplace free from discrimination, including harassment; (4) to update and clarify certain employment nondiscrimination laws; and (5) to expand workers' access to counsel and advocacy services to protect the legal and human rights of workers by preventing and reducing discrimination, including harassment, and responding to violations of worker's rights.

TITLE I--RESEARCHING AND PREVENTING WORKPLACE DISCRIMINATION, INCLUDING HARASSMENT; TIPPED EMPLOYEES

SEC. 100. DEFINITIONS.

In subtitles A and B: (1) Commission.--The term ``Commission'' means the Equal Employment Opportunity Commission. (2) Employer.--The term ``employer'' has the meaning given the term in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e), as amended by section 202 of this Act.

Subtitle A--Preventing Workplace Discrimination, Including Harassment

SEC. 101. MANDATORY NONDISCRIMINATION POLICIES.

(a) Policies.-- (1) In general.--Beginning not later than 1 year after the date of enactment of this Act, each employer who has 15 or more employees shall adopt, maintain, and periodically review a comprehensive nondiscrimination policy, which shall establish policies and procedures concerning prohibited discrimination, including harassment, in employment. (2) Dissemination and posting.--The employer shall disseminate the comprehensive nondiscrimination policy to each employee at the beginning of employment, annually, and on the issuance of any update to the comprehensive nondiscrimination policy. The employer shall post the comprehensive nondiscrimination policy in prominent locations, including in a prominent location on the employer's website. (b) Contents.--At a minimum, the comprehensive nondiscrimination policy shall include-- (1) a definition of prohibited discrimination, including harassment, in employment; (2) a description of the types of behaviors prohibited by the policy; (3) the identification of multiple individuals to whom an employee may report such discrimination, and the contact information for those individuals; (4) a description of multiple methods for reporting such discrimination; (5) a general description of how the employer will conduct prompt, thorough, and impartial investigations and respond to complaints regarding such discrimination; (6) a prohibition against retaliation related to such discrimination, including disclosing, reporting, or challenging such discrimination; (7) a description of the confidentiality protections available for such discrimination complaints; (8) a description of potential consequences for violating the policy; and (9) any additional components required by the Commission for the purpose of preventing such discrimination. (c) Accessibility.--The comprehensive nondiscrimination policy shall be made available in plain English and in an accessible manner for individuals with disabilities and for individuals who primarily speak a language other than English. (d) Enforcement.-- (1) In general.--Subject to paragraph (2), an employer who fails to comply with this section shall be fined not more than $1,000 for each separate offense. (2) Repeated or willful violations.--An employer who repeatedly or willfully fails to comply with this section shall be fined not less than $5,000 for each separate offense. (e) Regulations.--The Commission shall have authority to promulgate regulations to carry out this section.

SEC. 102. NONDISCRIMINATION TRAINING.

(a) In General.--The Commission shall promulgate regulations-- (1) to require appropriate employers, as determined by the Commission, to provide-- (A) in-person or other interactive training for each employee regarding discriminatory, including harassing, behaviors in employment; and (B) training specifically designed for supervisors regarding the prevention of and response to discrimination (including harassment) in employment, including retaliation; and (2) to identify specific elements of such training. (b) Required Training.--The requirements described in subsection (a) shall be based on research on effective training. (c) Enforcement.--The Commission shall issue remedies for noncompliance by regulation.

SEC. 103. RESOURCE MATERIALS ON POLICIES AND TRAININGS FOR SMALL BUSINESSES.

(a) In General.--Not later than 1 year after the date of enactment of this Act, the Commission shall make publicly available resource materials on comprehensive nondiscrimination policies and trainings on such policies for employers with fewer than 15 employees. (b) Contents.--Such resource materials shall include, at a minimum-- (1) model comprehensive nondiscrimination policies concerning prohibited discrimination, including harassment, in employment, as described in section 101, for use by employers with fewer than 15 employees, which shall-- (A) be designed to be easily distributed by such employers to employees; (B) take into account the resources available to such employers; (C) take into account the particular needs of employees of such employers; (D) be made available in plain English and in accessible formats for individuals with disabilities and for individuals who primarily speak a language other than English; (E) include a definition of prohibited discrimination, including harassment, in employment; (F) include examples of prohibited discriminatory, including harassing, behaviors; (G) describe how the employer may conduct prompt, thorough, and impartial investigations and respond to complaints regarding such prohibited discrimination; (H) include a prohibition against retaliation related to such discrimination; (I) include policies that reflect the needs of a variety of different types of workplaces, including those with differing work structures, facilities, or tasks; (J) describe behaviors that would constitute retaliation; and (K) include a description of potential consequences for violating the comprehensive nondiscrimination policy; and (2) model trainings regarding prohibited discrimination, including harassment, in employment, as described in section 102, for use by employers with fewer than 15 employees, which shall-- (A) take into account the resources available to such employers; (B) take into account the particular needs of employees of such employers; (C) be made available in plain English and in accessible formats for individuals with disabilities and for individuals who primarily speak a language other than English; (D) be made available in an online format that is widely available to such employers and employees of such employers; (E) include an explanation of prohibited discrimination, including harassment, in employment, including retaliation related to such discrimination; (F) describe the affirmative behaviors that contribute to preventing and reducing discrimination, including harassment, in employment; (G) include trainings designed to address the needs of a variety of workplaces, including those with differing work structures, facilities, and tasks; (H) include best practices for preventing prohibited discrimination, including harassment, specific to industries in which the Commission determines that discrimination, including harassment, is particularly prevalent or severe; and (I) include any additional information the Commission determines may prevent discrimination, including harassment, of employees. (c) Individualization.--The Commission shall ensure that resource materials under this section are designed to facilitate individual employers to customize training to address the needs of their workplaces, including differing work structures, facilities, and tasks.

SEC. 104. EDUCATION, TRAINING, AND TECHNICAL ASSISTANCE TO EMPLOYERS.

The Commission shall have the authority to-- (1) reasonably adjust the fees the Commission charges for any education, technical assistance, or training the Commission offers through the Technical Assistance Training Institute established in accordance with section 705(j)(1) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4(j)(1)); (2) use the materials developed by the Commission for any education, technical assistance, or training offered by the Commission in accordance with that section in any education and outreach activities carried out by the Commission; and (3) use funds from the Commission's EEOC Education, Technical Assistance, and Training Revolving Fund, established under section 705(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4(k)), to pay the full salaries of any Commission employees that develop and administer any education, technical assistance, or training programs offered by the Commission in connection with activities under this Act.

SEC. 105. TASK FORCE REGARDING HARASSMENT.

(a) In General.--The Commission shall establish and periodically convene a harassment prevention task force (referred to in this section as the ``Task Force'') to study prohibited harassment in employment. (b) Membership.--The Task Force established under subsection (a) shall include membership that reflects a broad diversity of experience and expertise relating to prohibited harassment, including-- (1) employee advocates; (2) researchers with expertise in organizational culture change or reducing behavior related to harassment; (3) legal practitioners with professional expertise related to harassment litigation on behalf of employees; (4) legal practitioners with experience serving as a chief legal officer or human resource officer in a corporate legal department; (5) individuals with expertise in diversity and inclusion initiatives; (6) individuals who have experienced prohibited harassment in employment; and (7) labor organization leaders. (c) Duties.--The Task Force shall-- (1) identify strategies and recommend proposals to prevent prohibited harassment in employment; and (2) provide guidance on effective strategies to prevent prohibited harassment that are specific to industries in which the Task Force determines that harassment is particularly prevalent or severe. (d) Report.--Not less than once every 5 years, the Commission shall prepare and publish a report on the Commission's website, which shall be based on the work of the Task Force and shall include-- (1) a review of the prevalence of prohibited harassment in employment, including the results of the national prevalence survey described in section 111; (2) recommendations for Federal, State, and local initiatives, reforms, and legislation to prevent prohibited harassment in employment; (3) assessments of the effectiveness of employment policies designed to prevent prohibited harassment in employment by changing behavior and culture; (4) assessments of the effectiveness of processes for investigations into prohibited harassment in employment; (5) assessments of the effectiveness of different types of training to reduce and prevent harassment in employment; and (6) assessments of the effectiveness of other proactive initiatives and interventions to reduce and prevent harassment in employment.

SEC. 106. RESOURCE MATERIALS ON EMPLOYMENT CLIMATE ASSESSMENTS.

(a) In General.--Not later than 1 year after the date of enactment of this Act, the Commission shall develop and make publicly available resource materials for employers on assessing the employment climate, including the occurrence of prohibited harassment in employment, in order to assist such employers in determining the effectiveness of measures the employer takes to prevent and address prohibited harassment in employment. (b) Employment Climate Survey.--Such resource materials shall include a model survey regarding prohibited harassment in employment, which shall be available for an employer to use (at the employer's discretion and employer's expense) in order to assess the employment climate. The model survey shall be-- (1) designed to assess employees' experiences related to prohibited harassment in employment; (2) fair, unbiased, and scientifically valid to the greatest extent practicable; (3) designed to solicit confidential submissions and to provide data without revealing personally identifiable information; and (4) inclusive of individuals required to be afforded protection under section 301. (c) Contents.--The model survey may include-- (1) questions designed to assess the prevalence of prohibited harassment in employment; (2) questions designed to understand whether employees have access to and are familiar with the employer's nondiscrimination, including anti-harassment, policies and procedures; (3) questions to assess the employment climate; and (4) any additional questions the Commission determines are consistent with the purposes of this section. (d) Mandatory Employee Participation Prohibited.--An employer may not compel or require employees to participate in a survey regarding prohibited discrimination, including harassment, in employment. (e) Review and Revision.--The Commission shall periodically review and revise the resource materials described in subsection (a) and the model survey developed under subsection (b).

SEC. 107. ESTABLISHING AN OFFICE OF EDUCATION AND OUTREACH WITHIN THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

(a) In General.--The Commission shall establish and maintain an Office of Education and Outreach to-- (1) conduct outreach and education concerning prohibited discrimination, including harassment, in employment under Federal civil rights laws and available resources and remedies relating to those laws; and (2) conduct a multi-year public awareness campaign to improve public awareness of the Commission, which shall include disseminating information about-- (A) the purpose of the Commission; (B) the resources available through the Commission to prevent prohibited discrimination, including harassment, in employment; (C) the ways in which an individual can file a complaint with the Commission; and (D) the process by which the Commission investigates charges of discrimination. (b) Information Disseminated.--The information disseminated in accordance with subsection (a)(2) shall be made available in plain English and in an accessible manner for individuals with disabilities and for individuals who primarily speak a language other than English.

SEC. 108. RELATIONSHIP TO OTHER LAWS.

Compliance with section 101 or 102, or use of materials provided under this subtitle, is not an affirmative defense under applicable employment nondiscrimination laws.

SEC. 109. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Commission such sums as may be necessary to carry out the Commission's duties and activities, including such duties and activities authorized under this subtitle.

Subtitle B--Research and Additional Resources for Harassment Prevention

SEC. 111. NATIONAL PREVALENCE SURVEY ON HARASSMENT IN EMPLOYMENT.

(a) Survey.--The Bureau of the Census, the Commission, and the Bureau of Labor Statistics shall jointly develop a national prevalence survey on the prevalence of prohibited harassment in employment (referred to in this section as the ``national prevalence survey''). Such survey shall be administered by the Bureau of the Census not later than 1 year after the date of enactment of this Act, and every 3 years thereafter. (b) Contents.--The national prevalence survey shall include questions designed to collect such information from individuals as may be necessary to examine existing beliefs, attitudes, and understanding of prohibited harassment in employment, and the extent to which such harassment is experienced or observed by individuals, supervisors, and employers, including the information necessary for the report described in subsection (c). (c) Report.-- (1) In general.--Not later than 6 months after each national prevalence survey has been administered, the Bureau of the Census, the Commission, and the Bureau of Labor Statistics shall jointly prepare and submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and Workforce of the House of Representatives a report on the results of that survey. (2) Required information.--The report under this subsection shall include, at minimum-- (A) information about the extent to which individuals experience prohibited harassment in employment on the basis of sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), race, color, religion, national origin, age, disability, genetic information, and uniformed service status, and information about the interaction of different characteristics that may be the basis of harassment in employment; (B) information about the prevalence of each such form of prohibited harassment in employment, disaggregated by industry and salary level, including across all wage bands; and (C) an analysis of the economic impacts of prohibited harassment. (3) Disaggregation of sex-based harassment.--The report under this subsection shall separately, and in the aggregate, report each of the following bases of sex harassment: (A) Sexual orientation. (B) Gender identity. (C) Pregnancy. (D) Childbirth. (E) A medical condition related to pregnancy or childbirth. (F) A sex stereotype. (G) Sexual in nature. (4) Public availability.--The report shall be made publicly available on the websites of the Bureau of the Census, the Commission, and the Bureau of Labor Statistics. (d) Authorization of Appropriations.--There are authorized to be appropriated for the Bureau of the Census to carry out this section such sums as may be necessary for each fiscal year the national prevalence survey is to be administered under subsection (a) or the report is to be submitted under subsection (c).

SEC. 112. STUDY AND REPORT ON HARASSMENT IN THE FEDERAL GOVERNMENT.

(a) In General.--Not later than 1 year after the date of enactment of this Act, and not less than once every 3 years thereafter, the Merit Systems Protection Board shall prepare and submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and Workforce of the House of Representatives a report containing the following information: (1) The prevalence of specific behaviors associated with prohibited harassment in employment among Federal employees, including information about such behaviors disaggregated by each wage band. (2) The impact of prohibited harassment in employment and violations of Federal civil rights laws on the Federal Government, in terms of monetary costs, attrition, and morale. (3) The particular impact of prohibited harassment in employment on the experience of Federal employees with disabilities. (4) Working in coordination with the Commission's Office of Federal Operations, a description of the differences in Federal agency policies, strategies, reporting mechanisms, training programs, and other practices regarding preventing and addressing prohibited harassment in employment. (5) A description of which policies, strategies, reporting mechanisms, training programs, and other practices described in paragraph (4) have prevented, addressed, or reduced prohibited harassment in employment. (6) Working in coordination with the Commission's Office of Federal Operations, joint recommendations from such Office and the Merit Systems Protection Board to Federal agencies on how to prevent and address prohibited harassment in employment. (b) Authorization of Appropriations.--There are authorized to be appropriated to the Merit Systems Protection Board such sums as may be necessary to carry out this section.

SEC. 113. STUDIES, REPORTS, AND FURTHER RESEARCH.

(a) Study and Report on Enforcement of Nondiscrimination Laws Prohibiting Harassment Laws.--Not later than 1 year after the date of enactment of this Act, the United States Commission on Civil Rights shall prepare and submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and Workforce of the House of Representatives a report that shall examine enforcement of the nondiscrimination laws prohibiting harassment including-- (1) trends in enforcement of such laws; (2) barriers to effective enforcement of such laws; (3) best practices in enforcement of such laws; (4) recommendations about how to improve enforcement of such laws, including whether establishing individual liability for harassment in employment would improve enforcement of such laws; and (5) how the experience of harassment for employees and individuals required to be afforded protections under section 301 has changed over time since the passage of such laws. (b) Study and Report on Prevention of Harassment in Employment.-- (1) In general.--Not later than 60 days after the date of enactment of this Act, the Director of the National Institutes of Health shall seek to enter into an agreement with the National Academies of Sciences, Engineering, and Medicine, through which the National Academies of Sciences, Engineering, and Medicine shall conduct a study on preventing and addressing prohibited harassment in employment. (2) Contents.--Such study shall include-- (A) an evaluation of the existing research of the causes of prohibited harassment in employment, including retaliation related to such harassment, and gaps in such research; (B) a review of the existing research regarding how prohibited harassment in employment impacts individuals; (C) an evaluation of the existing research on training to prevent prohibited harassment in employment, including essential components of effective training to prevent such prohibited harassment, including retaliation, and gaps in such research; (D) an assessment of the efficacy and availability of training models and programs to prevent prohibited harassment in employment; (E) the identification of employment or societal factors that increase the likelihood of prohibited harassment in employment, particularly across industries with a high number of individuals who are vulnerable to experiencing such prohibited harassment, including whether diversity in leadership positions within an organization reduces the likelihood of such prohibited harassment; (F) an examination of methods of inducing, scaling, and sustaining institutional or organizational change to prevent prohibited harassment in employment; (G) an analysis of policies, strategies, and practices that have been the most successful in preventing and addressing prohibited harassment in employment; and (H) any other information or analysis necessary to identify the gaps in research and other measures described in subsection (c). (3) Report.--Through an agreement under paragraph (1), not later than 1 year after the date of enactment of this Act, the National Academies of Sciences, Engineering, and Medicine shall prepare and submit to the Committee on Health, Education, Labor, and Pensions of the Senate, the Committee on Education and Workforce of the House of Representatives, and the Director of the National Institutes of Health, a report containing the results of the study conducted under this subsection and make recommendations to Congress, executive branch agencies, private employers, and researchers. Such recommendations shall include ways that such training to prevent prohibited harassment in employment could be improved to result in behavioral and cultural changes that prevent and reduce behaviors associated with prohibited harassment in employment. The report and recommendations under this paragraph shall be made publicly available. (c) Supporting Further Research on Preventing and Understanding Harassment in Employment.-- (1) In general.--Not later than 6 months after the submission of the report under subsection (b)(3), the Director of the National Institutes of Health, in consultation with the Commission and the Secretary of Labor, shall enter into agreements (including through the use of grants, contracts, cooperative agreements, or other transactions) to support research regarding-- (A) the gaps identified in such report in research on the causes of prohibited harassment in employment, including retaliation related to such harassment; (B) the gaps identified in such report in research on the psychological sequelae of prohibited harassment in employment, including retaliation related to such harassment; (C) gaps identified in such report in research on special populations and the risk for prohibited harassment in employment, including retaliation related to such harassment, including such research with respect to special populations, including adolescents, older individuals, racial and ethnic minorities, individuals with disabilities, women, and other populations that could be disproportionately affected by such prohibited harassment in employment, and retaliation related to such harassment; (D) gaps identified in such report in research on prohibited harassment in employment, including retaliation related to such harassment, as a risk factor for various mental health problems; (E) gaps identified in such report in research on sociocultural correlations within prohibited harassment in employment, including retaliation related to such harassment; and (F) systematic and quantifiable measures to evaluate prevention strategies for victims and perpetrators of prohibited harassment in employment, including retaliation related to such harassment. (2) Authorization of appropriations.--There are authorized to be appropriated to the National Institutes of Health to carry out this subsection such sums as may be necessary.

Subtitle C--Preventing Harassment of Tipped Employees

SEC. 121. TIPPED EMPLOYEES.

(a) Base Minimum Wage for Tipped Employees and Tips Retained by Employees.--Section 3(m)(2)(A)(i) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(m)(2)(A)(i)) is amended to read as follows: ``(i) the cash wage paid such employee, which for purposes of such determination shall be not less than-- ``(I) for the 1-year period beginning on the effective date under section 121(e) of the BE HEARD in the Workplace Act, $3.60 an hour; ``(II) for each succeeding 1-year period until the hourly wage under this clause equals the wage in effect under section 6(a)(1) for such period, an hourly wage equal to the amount determined under this clause for the preceding year, increased by the lesser of-- ``(aa) $1.50; or ``(bb) the amount necessary for the wage in effect under this clause to equal the wage in effect under section 6(a)(1) for such period; and ``(III) for each succeeding 1-year period after the increase made pursuant to subclause (II)(bb), the minimum wage in effect under section 6(a)(1); and''. (b) Tips Retained by Employees.--Section 3(m)(2)(A) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(m)(2)(A)) is amended-- (1) in the second sentence of the matter following clause (ii), by striking ``of this subsection, and all tips received by such employee have been retained by the employee'' and inserting ``of this subsection. Any employee shall have the right to retain any tips received by such employee''; and (2) by adding at the end the following: ``An employer shall inform each employee of the right and exception provided under the preceding sentence.''. (c) Publication of Notice.--Section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) is amended by adding at the end the following: ``(h) Not later than 60 days prior to the effective date of any increase in the required wage determined in accordance with subclause (II) or (III) of section 3(m)(2)(A)(i), the Secretary shall publish in the Federal Register and on the website of the Department of Labor a notice announcing each increase in such required wage.''. (d) Scheduled Repeal of Separate Minimum Wage for Tipped Employees.-- (1) Tipped employees.--Section 3(m)(2)(A) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(m)(2)(A)), as amended by subsections (a) and (b), is further amended by striking the sentence beginning with ``In determining the wage an employer is required to pay a tipped employee,'' and all that follows through ``of this subsection.'' and inserting ``The wage required to be paid to a tipped employee shall be the wage set forth in section 6(a)(1).''. (2) Publication of notice.--Section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206), as amended by subsection (c), is further amended by striking subsection (h). (3) Effective date.--The amendments made by paragraphs (1) and (2) shall take effect on the date that is one day after the date on which the hourly wage under subclause (III) of section 3(m)(2)(A)(i) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(m)(2)(A)(i)), as amended by subsection (a), takes effect. (e) Effective Date.--Except as provided in subsection (d)(3), this section and the amendments made by this section shall take effect on the first day of the third month that begins after the date of enactment of this Act.

TITLE II--STRENGTHENING WORKPLACE RIGHTS

SEC. 201. CLARIFYING SEXUAL ORIENTATION DISCRIMINATION AND GENDER IDENTITY DISCRIMINATION ARE UNLAWFUL SEX DISCRIMINATION.

(a) Employment.-- (1) Rules of construction.--Title VII of the Civil Rights Act of 1964 is amended by inserting after section 701 (42 U.S.C. 2000e) the following:

``SEC. 701A. RULES OF CONSTRUCTION.

``Section 1106 shall apply to this title except that for purposes of that application, a reference in that section to an `unlawful practice' shall be considered to be a reference to an `unlawful employment practice'.''. (2) Unlawful employment practices.--Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) is amended-- (A) in the section header, by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; (B) except in subsection (e), by striking ``sex,'' each place it appears and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; (C) in subsection (e)(1), by striking ``enterprise,'' and inserting ``enterprise, if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity,''; and (D) in subsection (h), by striking ``sex'' the second place it appears and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''. (3) Other unlawful employment practices.--Section 704(b) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-3(b)) is amended-- (A) by striking ``sex,'' the first place it appears and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; and (B) by striking ``employment.'' and inserting ``employment, if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.''. (4) Claims.--Section 706(g)(2)(A) of the Civil Rights Act of 1964 (2000e-5(g)(2)(A)) is amended by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''. (5) Employment by federal government.--Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) is amended-- (A) in subsection (a), by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; and (B) in subsection (c), by striking ``sex'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''. (6) Government employee rights act of 1991.--The Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16a et seq.) is amended-- (A) in section 301(b), by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; (B) in section 302(a)(1), by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; and (C) by adding at the end the following:

``SEC. 305. RULES OF CONSTRUCTION AND CLAIMS.

``Sections 1101(b), 1106, and 1107 of the Civil Rights Act of 1964 shall apply to this title except that for purposes of that application, a reference in that section 1106 to `race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), or national origin' shall be considered to be a reference to `race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), national origin, age, or disability'.''. (7) Congressional accountability act of 1995.--The Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.) is amended-- (A) in section 201(a)(1) (2 U.S.C. 1311(a)(1)) by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; and (B) by adding at the end of title II (42 U.S.C. 1311 et seq.) the following:

``SEC. 209. RULES OF CONSTRUCTION AND CLAIMS.

``Sections 1101(b), 1106, and 1107 of the Civil Rights Act of 1964 shall apply to section 201 (and remedial provisions of this Act related to section 201) except that for purposes of that application, a reference in that section 1106 to `race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), or national origin' shall be considered to be a reference to `race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), national origin, age, or disability'.''. (8) Civil service reform act of 1978.--Chapter 23 of title 5, United States Code, is amended-- (A) in section 2301(b)(2), by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; (B) in section 2302-- (i) in subsection (b)(1)(A), by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; and (ii) in subsection (d)(1), by striking ``sex,'' and inserting ``sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions),''; and (C) by adding at the end the following:

``SEC. 2307. RULES OF CONSTRUCTION AND CLAIMS.

``Sections 1101(b), 1106, and 1107 of the Civil Rights Act of 1964 shall apply to this chapter (and remedial provisions of this title related to this chapter) except that for purposes of that application, a reference in that section 1106 to `race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), or national origin' shall be considered to be a reference to `race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), national origin, age, disability, marital status, or political affiliation'.''. (b) Miscellaneous.--Title XI of the Civil Rights Act of 1964 is amended-- (1) by redesignating sections 1101 through 1104 (42 U.S.C. 2000h et seq.) and sections 1105 and 1106 (42 U.S.C. 2000h-5, 2000h-6) as sections 1102 through 1105 and sections 1108 and 1109, respectively; (2) by inserting after the title heading the following:

``SEC. 1101. DEFINITIONS AND RULES.

``(a) Definitions.--In title VII: ``(1) Race; color; religion; sex; sexual orientation; gender identity; national origin.--The term `race', `color', `religion', `sex', or `national origin', used with respect to an individual, includes-- ``(A) the race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), or national origin, respectively, of another person with whom the individual is associated or has been associated; and ``(B) a perception or belief, even if inaccurate, concerning the race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), or national origin, respectively, of the individual. ``(2) Gender identity.--The term `gender identity' means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual's designated sex at birth. ``(3) Including.--The term `including' means including, but not limited to, consistent with the term's standard meaning in Federal law. ``(4) Sexual orientation.--The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality. ``(b) Rules.--In title VII-- ``(1) with respect to sex, an individual's pregnancy, childbirth, or related medical condition shall not receive less favorable treatment than other physical conditions; and ``(2) with respect to gender identity, an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual's gender identity.''; and (3) by inserting after section 1105 the following:

``SEC. 1106. RULES OF CONSTRUCTION.

``(a) Sex.--Nothing in section 1101 or the provisions of title VII incorporating a term defined or a rule specified in that section shall be construed-- ``(1) to limit the protection against an unlawful practice on the basis of pregnancy, childbirth, a medical condition related to pregnancy or childbirth provided by section 701(k); or ``(2) to limit the protection against an unlawful practice on the basis of sex available under any provision of Federal law other than title VII, prohibiting a practice on the basis of sex, including under the Pregnant Workers Fairness Act (42 U.S.C. 2000gg et seq.). ``(b) Claims and Remedies Not Precluded.--Nothing in section 1101 or title VII shall be construed to limit the claims or remedies available to any individual for an unlawful practice on the basis of race, color, religion, sex (including sexual orientation, gender identity, sex stereotype, sex characteristics, and pregnancy, childbirth, or related medical conditions), or national origin including claims brought pursuant to section 1979 or 1980 of the Revised Statutes (42 U.S.C. 1983, 1985) or any other law, including a Federal law amended by the BE HEARD in the Workplace Act, regulation, or policy, and including the Pregnant Workers Fairness Act (42 U.S.C. 2000gg et seq.). ``(c) No Negative Inference.--Nothing in section 1101 or title VII shall be construed to support any inference that any Federal law prohibiting a practice on the basis of sex (including the Pregnant Workers Fairness Act (42 U.S.C. 2000gg et seq.)), does not prohibit discrimination on the basis of gender identity, sex stereotype, and pregnancy, childbirth, or related medical conditions.

``SEC. 1107. CLAIMS.

``The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, title VII, or provide a basis for challenging the application or enforcement of title VII.''.

SEC. 202. COVERED EMPLOYERS.

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

SEC. 203. COMPENSATORY AND PUNITIVE DAMAGES AVAILABLE.

(a) Civil Rights; Disability.-- (1) In general.--Section 1977A of the Revised Statutes (42 U.S.C. 1981a(b)) is amended-- (A) in subsection (b), by striking paragraph (3) and inserting the following: ``(3) Losses.--Compensatory damages are available under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.''; and (B) in subsection (c)-- (i) by striking paragraph (2); (ii) by striking ``this section'' and all that follows through ``party'' and inserting ``this section, any party''; and (iii) by striking ``; and'' and inserting a period. (2) Conforming amendments.-- (A) Section 201(b) of the Congressional Accountability Act of 1995 (2 U.S.C. 1311(b)) is amended, in paragraphs (1)(B) and (3)(B)-- (i) by striking ``and, irrespective of the size of the employing office, 1977A(b)(3)(D)'' and inserting ``and 1977A(b)(3)''; and (ii) by striking ``and 1981a(b)(3)(D)'' and inserting ``and 1981a(b)(3)''. (B) Section 411(b) of title 3, United States Code, is amended, in paragraphs (1)(B) and (3)(B), by striking ``and, irrespective of the size of the employing office, 1977A(b)(3)(D)'' and inserting ``and 1977A(b)(3)''. (C) Section 207 of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-16) is amended, in paragraph (3) of each of subsections (a) through (e), by striking ``, including the limitations contained in subsection (b)(3) of such section 1977A,''. (b) Age.--Section 7(b) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(b)) is amended-- (1) by striking ``(b) The'' and all that follows through the third sentence and inserting the following: ``(b)(1) Except as otherwise provided in another subsection of this section, or section 9, the powers, remedies, and procedures set forth in sections 705, 706, 707, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9) shall be the powers, remedies, and procedures this Act provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of age in violation of section 4, or regulations promulgated under section 9.''; and (2) in the second sentence of that subsection (b), as amended by paragraph (1), by striking ``or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section'' and inserting ``and including any type of legal or equitable relief available under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)''.

SEC. 204. DISCRIMINATION, INCLUDING HARASSMENT; STANDARDS OF PROOF.

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

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