HR 5129
110th CONGRESS
2d Session
H. R. 5129
To restore, reaffirm, and reconcile legal rights and remedies
under civil rights statutes.
IN THE HOUSE OF REPRESENTATIVES
January 23, 2008
Mr. LEWIS of Georgia (for himself, Mr. GEORGE MILLER of California, Mr.
CONYERS, Mr. ANDREWS, Ms. NORTON, Mr. MCDERMOTT, Mr. SERRANO, Mr. MCGOVERN,
Mr. WEXLER, Mr. GRIJALVA, Ms. LEE, Mr. FATTAH, Mr. FARR, Mr. ELLISON,
Mr. HASTINGS of Florida, Ms. WOOLSEY, Mr. BERMAN, Ms. SOLIS, Ms. CORRINE
BROWN of Florida, Mr. WYNN, Ms. DELAURO, Mr. COHEN, Mr. AL GREEN of Texas,
Mrs. MALONEY of New York, Mr. KUCINICH, Ms. SUTTON, and Mr. CROWLEY) introduced
the following bill; which was referred to the Committee on the Judiciary,
and in addition to the Committees on Education and Labor and Transportation
and Infrastructure, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall within
the jurisdiction of the committee concerned
A BILL
To restore, reaffirm, and reconcile legal rights and remedies
under civil rights statutes.
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 `Civil Rights Act of 2008'.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 2. Table of contents.
TITLE I--NONDISCRIMINATION IN FEDERALLY FUNDED PROGRAMS AND ACTIVITIES
Subtitle A--Private Rights of Action and the Disparate Impact Standard
of Proof
Sec. 102. Prohibited discrimination.
Sec. 103. Rights of action.
Sec. 104. Right of recovery.
Sec. 106. Effective date.
Subtitle B--Harassment
Sec. 112. Right of recovery.
Sec. 114. Effective date.
TITLE II--EMPLOYER ACCOUNTABILITY FOR DISCRIMINATION BASED ON MILITARY
SERVICE
Sec. 201. Amendment to the Uniformed Services Employment and Reemployment
Rights Act of 1994.
TITLE III--EMPLOYER ACCOUNTABILITY FOR AGE DISCRIMINATION
Sec. 304. Remedies for State employees.
Sec. 305. Disparate impact claims.
Sec. 306. Effective date.
TITLE IV--IMPROVED ACCOUNTABILITY FOR OTHER VIOLATIONS OF CIVIL RIGHTS
AND WORKERS' RIGHTS
Subtitle A--Air Carrier Access Act of 1986 Amendment
Subtitle B--Prevailing Party
Sec. 412. Definition of prevailing party.
Subtitle C--Arbitration
Sec. 422. Amendment to Federal Arbitration Act.
Sec. 423. Unenforceability of arbitration clauses in employment contracts.
Sec. 424. Application of amendments.
Subtitle D--Expert Witness Fees
Sec. 433. Effective provisions.
Subtitle E--Equal Remedies Act of 2008
Sec. 442. Equalization of remedies.
Subtitle F--Prohibitions Against Sex Discrimination
Sec. 452. Enhanced enforcement of equal pay requirements.
Subtitle G--Protections for Workers
Chapter 1--Protection for Undocumented Workers
Sec. 462. Continued application of backpay remedies.
Chapter 2--Fair Labor Standards Act Amendments
Sec. 469. Remedies for State employees.
TITLE I--NONDISCRIMINATION IN FEDERALLY FUNDED PROGRAMS AND ACTIVITIES
Subtitle A--Private Rights of Action and the Disparate Impact Standard
of Proof
SEC. 101. FINDINGS.
Congress finds the following:
(1) This subtitle is made necessary by a decision of the Supreme Court
in Alexander v. Sandoval, 532 U.S. 275 (2001) that significantly impairs
statutory protections against discrimination that Congress has erected
over a period of almost 4 decades. The Sandoval decision undermines
these statutory protections by stripping victims of discrimination (defined
under regulations that Congress required Federal departments and agencies
to promulgate to implement title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d et seq.)) of the right to bring action in Federal court
to redress the discrimination.
(2) The Sandoval decision contradicts settled expectations created by
title VI of the Civil Rights Act of 1964, title IX of the Education
Amendments of 1972 (also known as the `Patsy Takemoto Mink Equal Opportunity
in Education Act') (20 U.S.C. 1681 et seq.), the Age Discrimination
Act of 1975 (42 U.S.C. 6101 et seq.), and section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794) (collectively referred to in this Act as
the `covered civil rights provisions'). The covered civil rights provisions
were designed to establish and make effective the rights of persons
to be free from discrimination on the part of entities that are subject
to 1 or more of the covered civil rights provisions, as appropriate
(referred to in this Act as `covered entities'). In 1964 Congress adopted
title VI of the Civil Rights Act of 1964 to ensure that Federal dollars
would not be used to subsidize or support programs or activities that
discriminated on racial, color, or national origin grounds. In the years
that followed, Congress extended these protections by enacting laws
barring discrimination in federally funded education activities on the
basis of sex in title IX of the Education Amendments of 1972, and discrimination
in federally funded activities on the basis of age in the Age Discrimination
Act of 1975 and disability in section 504 of the Rehabilitation Act
of 1973.
(3) All of the statutes cited in this section were designed to confer
a benefit on persons subject to discrimination. As Congress has consistently
recognized, effective enforcement of the statutes and protection of
the rights guaranteed under the statutes depend heavily on the efforts
of private attorneys general. Congress acknowledged that it could not
secure compliance solely through administrative efforts and enforcement
actions initiated by the Attorney General. Newman v. Piggie Park Enterprises,
390 U.S. 400 (1968) (per curiam).
(4) The Supreme Court has made it clear that individuals suffering discrimination
under these statutes have a private right of action in the Federal courts,
and that this is necessary for effective protection of the law, although
Congress did not make such a right of action explicit in the statute
involved. Cannon v. University of Chicago, 441 U.S. 677 (1979).
(5) Furthermore, for effective enforcement of the statutes cited in
this section, it is necessary that the private right of action include
a means to challenge all forms of discrimination that are prohibited
by the statutes, including practices that have a disparate impact and
are not justified as necessary to achieve the legitimate goals of programs
or activities supported by Federal financial assistance.
(6) By reinstating a private right of action to challenge disparate
impact discrimination under title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d et seq.) and confirming that right for other civil
rights statutes, Congress is not acting in a manner that would expose
covered entities to unfair findings of discrimination. The legal standard
for a disparate impact claim has never been structured so that a finding
of discrimination could be based on numerical imbalance alone.
(7) In contrast, a failure to reinstate or confirm a private right of
action would leave vindication of the rights to equality of opportunity
solely to Federal agencies. Action by Congress to specify a private
right of action is necessary to ensure that persons will have a remedy
if they are denied equal access to education, housing, health, environmental
protection, transportation, and many other programs and services by
practices of covered entities that result in discrimination.
(8) As a result of the Supreme Court's decision in Sandoval, courts
have dismissed numerous claims brought under the regulations promulgated
pursuant to title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
et seq.) that challenged actions with an unjustified discriminatory
effect. Although the Sandoval Court did not address title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.), lower courts
have similarly dismissed claims under such title.
(9) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) has
received different treatment by the Supreme Court. In Alexander v. Choate,
469 U.S. 287 (1985), the Court proceeded on the assumption that the
statute itself prohibited some actions that had a disparate impact on
handicapped individuals--an assumption borne out by congressional statements
made during passage of the Act. In Sandoval, the Court appeared to accept
this principle of Alexander. Moreover, the Supreme Court explicitly
recognized congressional approval of the regulations promulgated to
implement section 504 of the Rehabilitation Act of 1973 in Consolidated
Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984). Relying on the validity
of the regulations, Congress incorporated the regulations into the statutory
requirements of section 204 of the Americans with Disabilities Act of
1990 (42 U.S.C. 12134). Thus it does not appear at this time that there
is a risk that the private right of action to challenge disparate impact
discrimination under section 504 of the Rehabilitation Act of 1973 will
become unavailable.
(10) The right to maintain a private right of action under a provision
added to a statute under this subtitle will be effectuated by a waiver
of sovereign immunity in the same manner as sovereign immunity is waived
under the remaining provisions of that statute.
SEC. 102. PROHIBITED DISCRIMINATION.
(a) Civil Rights Act of 1964- Section 601 of the Civil Rights Act of 1964
(42 U.S.C. 2000d) is amended--
(1) by striking `No' and inserting `(a) No'; and
(2) by adding at the end the following:
`(b)(1)(A) Discrimination (including exclusion from participation and
denial of benefits) based on disparate impact is established under this
title only if--
`(i) a person aggrieved by discrimination on the basis of race, color,
or national origin (referred to in this title as an `aggrieved person')
demonstrates that an entity subject to this title (referred to in this
title as a `covered entity') has a policy or practice that causes a
disparate impact on the basis of race, color, or national origin and
the covered entity fails to demonstrate that the challenged policy or
practice is related to and necessary to achieve the nondiscriminatory
goals of the program or activity alleged to have been operated in a
discriminatory manner; or
`(ii) the aggrieved person demonstrates (consistent with the demonstration
required under title VII with respect to an `alternative employment
practice') that a less discriminatory alternative policy or practice
exists, and the covered entity refuses to adopt such alternative policy
or practice.
`(B)(i) With respect to demonstrating that a particular policy or practice
causes a disparate impact as described in subparagraph (A)(i), the aggrieved
person shall demonstrate that each particular challenged policy or practice
causes a disparate impact, except that if the aggrieved person demonstrates
to the court that the elements of a covered entity's decisionmaking process
are not capable of separation for analysis, the decisionmaking process
may be analyzed as 1 policy or practice.
`(ii) If the covered entity demonstrates that a specific policy or practice
does not cause the disparate impact, the covered entity shall not be required
to demonstrate that such policy or practice is necessary to achieve the
goals of its program or activity.
`(2) A demonstration that a policy or practice is necessary to achieve
the goals of a program or activity may not be used as a defense against
a claim of intentional discrimination under this title.
`(3) In this subsection, the term `demonstrates' means meets the burdens
of production and persuasion.'.
(b) Education Amendments of 1972- Section 901 of the Education Amendments
of 1972 (20 U.S.C. 1681) is amended--
(1) by redesignating subsection (c) as subsection (e); and
(2) by inserting after subsection (b) the following:
`(c)(1)(A) Subject to the conditions described in paragraphs (1) through
(9) of subsection (a), discrimination (including exclusion from participation
and denial of benefits) based on disparate impact is established under
this title only if--
`(i) a person aggrieved by discrimination on the basis of sex (referred
to in this title as an `aggrieved person') demonstrates that an entity
subject to this title (referred to in this title as a `covered entity')
has a policy or practice that causes a disparate impact on the basis
of sex and the covered entity fails to demonstrate that the challenged
policy or practice is related to and necessary to achieve the nondiscriminatory
goals of the program or activity alleged to have been operated in a
discriminatory manner; or
`(ii) the aggrieved person demonstrates (consistent with the demonstration
required under title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.) with respect to an `alternative employment practice')
that a less discriminatory alternative policy or practice exists, and
the covered entity refuses to adopt such alternative policy or practice.
`(B)(i) With respect to demonstrating that a particular policy or practice
causes a disparate impact as described in subparagraph (A)(i), the aggrieved
person shall demonstrate that each particular challenged policy or practice
causes a disparate impact, except that if the aggrieved person demonstrates
to the court that the elements of a covered entity's decisionmaking process
are not capable of separation for analysis, the decisionmaking process
may be analyzed as 1 policy or practice.
`(ii) If the covered entity demonstrates that a specific policy or practice
does not cause the disparate impact, the covered entity shall not be required
to demonstrate that such policy or practice is necessary to achieve the
goals of its program or activity.
`(2) A demonstration that a policy or practice is necessary to achieve
the goals of a program or activity may not be used as a defense against
a claim of intentional discrimination under this title.
`(3) In this subsection, the term `demonstrates' means meets the burdens
of production and persuasion.'.
(c) Age Discrimination Act of 1975- Section 303 of the Age Discrimination
Act of 1975 (42 U.S.C. 6102) is amended--
(1) by striking `Pursuant' and inserting `(a) Pursuant'; and
(2) by adding at the end the following:
`(b)(1)(A) Subject to the conditions described in subsections (b) and
(c) of section 304, discrimination (including exclusion from participation
and denial of benefits) based on disparate impact is established under
this title only if--
`(i) a person aggrieved by discrimination on the basis of age (referred
to in this title as an `aggrieved person') demonstrates that an entity
subject to this title (referred to in this title as a `covered entity')
has a policy or practice that causes a disparate impact on the basis
of age and the covered entity fails to demonstrate that the challenged
policy or practice is related to and necessary to achieve the nondiscriminatory
goals of the program or activity alleged to have been operated in a
discriminatory manner; or
`(ii) the aggrieved person demonstrates (consistent with the demonstration
required under title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.) with respect to an `alternative employment practice')
that a less discriminatory alternative policy or practice exists, and
the covered entity refuses to adopt such alternative policy or practice.
`(B)(i) With respect to demonstrating that a particular policy or practice
causes a disparate impact as described in subparagraph (A)(i), the aggrieved
person shall demonstrate that each particular challenged policy or practice
causes a disparate impact, except that if the aggrieved person demonstrates
to the court that the elements of a covered entity's decisionmaking process
are not capable of separation for analysis, the decisionmaking process
may be analyzed as 1 policy or practice.
`(ii) If the covered entity demonstrates that a specific policy or practice
does not cause the disparate impact, the covered entity shall not be required
to demonstrate that such policy or practice is necessary to achieve the
goals of its program or activity.
`(2) A demonstration that a policy or practice is necessary to achieve
the goals of a program or activity may not be used as a defense against
a claim of intentional discrimination under this title.
`(3) In this subsection, the term `demonstrates' means meets the burdens
of production and persuasion.'.
SEC. 103. RIGHTS OF ACTION.
(a) Civil Rights Act of 1964- Section 602 of the Civil Rights Act of 1964
(42 U.S.C. 2000d-1) is amended--
(1) by inserting `(a)' before `Each Federal department and agency which
is empowered'; and
(2) by adding at the end the following:
`(b) Any person aggrieved by the failure of a covered entity to comply
with this title, including any regulation promulgated pursuant to this
title, may bring a civil action in any Federal or State court of competent
jurisdiction to enforce such person's rights.'.
(b) Education Amendments of 1972- Section 902 of the Education Amendments
of 1972 (20 U.S.C. 1682) is amended--
(1) by inserting `(a)' before `Each Federal department and agency which
is empowered'; and
(2) by adding at the end the following:
`(b) Any person aggrieved by the failure of a covered entity to comply
with this title, including any regulation promulgated pursuant to this
title, may bring a civil action in any Federal or State court of competent
jurisdiction to enforce such person's rights.'.
(c) Age Discrimination Act of 1975- Section 305(e) of the Age Discrimination
Act of 1975 (42 U.S.C. 6104(e)) is amended in the first sentence of paragraph
(1), by striking `this Act' and inserting `this title, including a regulation
promulgated to carry out this title,'.
SEC. 104. RIGHT OF RECOVERY.
(a) Civil Rights Act of 1964- Title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d et seq.) is amended by inserting after section 602 the
following:
`SEC. 602A. ACTIONS BROUGHT BY AGGRIEVED PERSONS.
`(a) Claims Based on Proof of Intentional Discrimination- In an action
brought by an aggrieved person under this title against a covered entity
who has engaged in unlawful intentional discrimination (not a practice
that is unlawful because of its disparate impact) prohibited under this
title (including its implementing regulations), the aggrieved person may
recover equitable and legal relief (including compensatory and punitive
damages), attorney's fees (including expert fees), and costs, except that
punitive damages are not available against a government, government agency,
or political subdivision.
`(b) Claims Based on the Disparate Impact Standard of Proof- In an action
brought by an aggrieved person under this title against a covered entity
who has engaged in unlawful discrimination based on disparate impact prohibited
under this title (including its implementing regulations), the aggrieved
person may recover equitable relief, attorney's fees (including expert
fees), and costs.'.
(b) Education Amendments of 1972- Title IX of the Education Amendments
of 1972 (20 U.S.C. 1681 et seq.) is amended by inserting after section
902 the following:
`SEC. 902A. ACTIONS BROUGHT BY AGGRIEVED PERSONS.
`(a) Claims Based on Proof of Intentional Discrimination- In an action
brought by an aggrieved person under this title against a covered entity
who has engaged in unlawful intentional discrimination (not a practice
that is unlawful because of its disparate impact) prohibited under this
title (including its implementing regulations), the aggrieved person may
recover equitable and legal relief (including compensatory and punitive
damages), attorney's fees (including expert fees), and costs, except that
punitive damages are not available against a government, government agency,
or political subdivision.
`(b) Claims Based on the Disparate Impact Standard of Proof- In an action
brought by an aggrieved person under this title against a covered entity
who has engaged in unlawful discrimination based on disparate impact prohibited
under this title (including its implementing regulations), the aggrieved
person may recover equitable relief, attorney's fees (including expert
fees), and costs.'.
(c) Age Discrimination Act of 1975-
(1) IN GENERAL- Section 305 of the Age Discrimination Act of 1975 (42
U.S.C. 6104) is amended by adding at the end the following:
`(g)(1) In an action brought by an aggrieved person under this title against
a covered entity who has engaged in unlawful intentional discrimination
(not a practice that is unlawful because of its disparate impact) prohibited
under this title (including its implementing regulations), the aggrieved
person may recover equitable and legal relief (including compensatory
and punitive damages), attorney's fees (including expert fees), and costs,
except that punitive damages are not available against a government, government
agency, or political subdivision.
`(2) In an action brought by an aggrieved person under this title against
a covered entity who has engaged in unlawful discrimination based on disparate
impact prohibited under this title (including its implementing regulations),
the aggrieved person may recover equitable relief, attorney's fees (including
expert fees), and costs.'.
(2) CONFORMITY OF ADA WITH TITLE vi AND TITLE ix-
(A) ELIMINATING WAIVER OF RIGHT TO FEES IF NOT REQUESTED IN COMPLAINT-
Section 305(e)(1) of the Age Discrimination Act of 1975 (42 U.S.C.
6104(e)) is amended--
(i) by striking `to enjoin a violation' and inserting `to redress
a violation'; and
(ii) by striking the second sentence and inserting the following:
`The Court shall award the costs of suit, including a reasonable
attorney's fee (including expert fees), to the prevailing plaintiff.'.
(B) ELIMINATING UNNECESSARY MANDATES: TO EXHAUST ADMINISTRATIVE REMEDIES;
AND TO DELAY SUIT LONGER THAN 180 DAYS TO OBTAIN AGENCY REVIEW- Section
305(f) of the Age Discrimination Act of 1975 (42 U.S.C. 6104(f)) is
amended by striking `With respect to actions brought for relief based
on an alleged violation of the provisions of this title,' and inserting
`Actions brought for relief based on an alleged violation of the provisions
of this title may be initiated in a court of competent jurisdiction,
pursuant to section 305(e), or before the relevant Federal department
or agency. With respect to such actions brought initially before the
relevant Federal department or agency,'.
(C) ELIMINATING DUPLICATIVE `REASONABLENESS' REQUIREMENT; CLARIFYING
THAT `REASONABLE FACTORS OTHER THAN AGE' IS DEFENSE TO A DISPARATE
IMPACT CLAIM, NOT AN EXCEPTION TO ADA COVERAGE- Section 304(b)(1)
of the Age Discrimination Act of 1975 (42 U.S.C. 6103(b)(1)) is amended
by striking `involved--' and all that follows through the period and
inserting `involved such action reasonably takes into account age
as a factor necessary to the normal operation or the achievement of
any statutory objective of such program or activity.'.
(d) Rehabilitation Act of 1973- Section 504 of the Rehabilitation Act
of 1973 (29 U.S.C. 794) is amended by adding at the end the following:
`(e)(1) In an action brought by a person aggrieved by discrimination on
the basis of disability (referred to in this section as an `aggrieved
person') under this section against an entity subject to this section
(referred to in this section as a `covered entity') who has engaged in
unlawful intentional discrimination (not a practice that is unlawful because
of its disparate impact) prohibited under this section (including its
implementing regulations), the aggrieved person may recover equitable
and legal relief (including compensatory and punitive damages), attorney's
fees (including expert fees), and costs, except that punitive damages
are not available against a government, government agency, or political
subdivision.
`(2) In an action brought by an aggrieved person under this section against
a covered entity who has engaged in unlawful discrimination based on disparate
impact prohibited under this section (including its implementing regulations),
the aggrieved person may recover equitable relief, attorney's fees (including
expert fees), and costs.'.
SEC. 105. CONSTRUCTION.
(a) Relief- Nothing in this subtitle, including any amendment made by
this subtitle, shall be construed to limit the scope of, or the relief
available under, section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794), the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.), or any other provision of law.
(b) Defendants- Nothing in this subtitle, including any amendment made
by this subtitle, shall be construed to limit the scope of the class of
persons who may be subjected to civil actions under the covered civil
rights provisions.
SEC. 106. EFFECTIVE DATE.
(a) In General- This subtitle, and the amendments made by this subtitle,
take effect on the date of enactment of this Act.
(b) Application- This subtitle, and the amendments made by this subtitle,
apply to all actions or proceedings pending on or after the date of enactment
of this Act.
Subtitle B--Harassment
SEC. 111. FINDINGS.
Congress finds the following:
(1) As the Supreme Court has held, covered entities are liable for harassment
on the basis of sex under their education programs and activities under
title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)
(referred to in this subtitle as `title IX'). Franklin v. Gwinnett County
Public Schools, 503 U.S. 60, 75 (1992) (damages remedy available for
harassment of student by a teacher coach); Davis v. Monroe County Board
of Education, 526 U.S. 629, 633 (1999) (authorizing damages action against
school board for student-on-student sexual harassment).
(2) Courts have confirmed that covered entities are liable for harassment
on the basis of race, color, or national origin under title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) (referred to in this
subtitle as `title VI'), e.g., Bryant v. Independent School District
No. I-38, 334 F.3d 928 (10th Cir. 2003) (liability for student-on-student
racial harassment). Moreover, judicial interpretation of the similarly
worded Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) and section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) has tracked that
of title VI and title IX.
(3) As these courts have properly recognized, harassment on a prohibited
basis under a program or activity, whether perpetrated by employees
or agents of the program or activity, by peers of the victim, or by
others who conduct harassment under the program or activity, is a form
of unlawful and intentional discrimination that inflicts substantial
harm on beneficiaries of the program or activity and violates the obligation
of a covered entity to maintain a nondiscriminatory environment.
(4) In a 5 to 4 ruling, the Supreme Court held that students subjected
to sexual harassment may receive a damages remedy under title IX only
when school officials have `actual notice' of the harassment and are
`deliberately indifferent' to it. Gebser v. Lago Vista Independent School
District, 524 U.S. 274 (1998). See also Davis v. Monroe County Board
of Education, 526 U.S. 629 (1999).
(5) The standard delineated in Gebser and followed in Davis has been
applied by lower courts regarding the liability of covered entities
for damages for harassment based on race, color, or national origin
under title VI. E.g., Bryant v. Independent School District No. I-38,
334 F.3d 928 (10th Cir. 2003). Because of the similarities in the wording
and interpretation of the underlying statutes, this standard may be
applied to claims for damages brought under the Age Discrimination Act
of 1975 (42 U.S.C. 6101 et seq.) and section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794) as well.
(6) Although they do not affect the relevant standards for individuals
to obtain injunctive and equitable relief for harassment on the basis
of race, color, sex, national origin, age, or disability under covered
programs and activities, Gebser and its progeny severely limit the availability
of remedies for such individuals by imposing new, more stringent standards
for recovery of damages under title VI and title IX, and potentially
under the Age Discrimination Act of 1975 and section 504 of the Rehabilitation
Act of 1973. Yet in many cases, damages are the only remedy that would
effectively rectify past harassment.
(7) As recognized by the dissenters in Gebser, these limitations on
effective relief thwart Congress's underlying purpose to protect students
from harassment.
(8) The rulings in Gebser and its progeny create an incentive for covered
entities to insulate themselves from knowledge of harassment on the
basis of race, color, sex, national origin, age, or disability rather
than adopting and enforcing practices that will minimize the danger
of such harassment. The rulings thus undermine the purpose of prohibitions
on discrimination in the civil rights laws: `to induce [covered programs
or activities] to adopt and enforce practices that will minimize the
danger that vulnerable students [or other beneficiaries] will be exposed
to such odious behavior'. Gebser, 524 U.S. at 300 (Stevens, J., dissenting).
(9)(A) Legislative action is necessary and appropriate to reverse Gebser
and its progeny and restore the availability of a full range of remedies
for harassment based on race, color, sex, national origin, age, or disability.
(B) Restoring the availability of a full range of remedies for harassment
will--
(i) ensure that students and other beneficiaries of federally funded
programs and activities have protection from harassment on the basis
of race, color, sex, national origin, age, or disability that is comparable
in strength and effectiveness to that available to employees under
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.),
the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et
seq.), and title I of the Americans with Disabilities Act of 1990
(42 U.S.C. 12111 et seq.);
(ii) encourage covered entities to adopt and enforce meaningful policies
and procedures to prevent and remedy harassment;
(iii) deter incidents of harassment; and
(iv) provide appropriate remedies for discrimination.
(10) Congress has the same affirmative powers to enact legislation restoring
the availability of a full range of remedies for harassment as it did
to enact the underlying statutory prohibitions on harassment, including
powers under section 5 of the 14th amendment and section 8 of article
I of the Constitution.
(11) The right to maintain a private right of action under a provision
added to a statute under this subtitle will be effectuated by a waiver
of sovereign immunity in the same manner as sovereign immunity is waived
under the remaining provisions of that statute.
SEC. 112. RIGHT OF RECOVERY.
(a) Civil Rights Act of 1964- Section 602A of the Civil Rights Act of
1964, as added by section 104, is amended by adding at the end the following:
`(c) Claims Based on Harassment-
`(1) RIGHT OF RECOVERY- In an action brought against a covered entity
by (including on behalf of) an aggrieved person who has been subjected
to unlawful harassment under a program or activity, the aggrieved person
may recover equitable and legal relief (including compensatory and punitive
damages subject to the provisions of paragraph (2)), attorney's fees
(including expert fees), and costs.
`(2) AVAILABILITY OF DAMAGES-
`(A) TANGIBLE ACTION BY AGENT OR EMPLOYEE- If an agent or employee
of a covered entity engages in unlawful harassment under a program
or activity that results in a tangible action to the aggrieved person,
damages shall be available against the covered entity.
`(B) NO TANGIBLE ACTION BY AGENT OR EMPLOYEE- If an agent or employee
of a covered entity engages in unlawful harassment under a program
or activity that results in no tangible action to the aggrieved person,
no damages shall be available against the covered entity if it can
demonstrate that--
`(i) it exercised reasonable care to prevent and correct promptly
any harassment based on race, color, or national origin; and
`(ii) the aggrieved person unreasonably failed to take advantage
of preventive or corrective opportunities offered by the covered
entity that--
`(I) would likely have provided redress and avoided the harm described
by the aggrieved person; and
`(II) would not have exposed the aggrieved person to undue risk,
effort, or expense.
`(C) HARASSMENT BY THIRD PARTY- If a person who is not an agent or
employee of a covered entity subjects an aggrieved person to unlawful
harassment under a program or activity, and the covered entity involved
knew or should have known of the harassment, no damages shall be available
against the covered entity if it can demonstrate that it exercised
reasonable care to prevent and correct promptly any harassment based
on race, color, or national origin.
`(D) DEMONSTRATION- For purposes of subparagraphs (B) and (C), a showing
that the covered entity has exercised reasonable care to prevent and
correct promptly any harassment based on race, color, or national
origin includes a demonstration by the covered entity that it has--
`(i) established, adequately publicized, and enforced an effective,
comprehensive, harassment prevention policy and complaint procedure
that is likely to provide redress and avoid harm without exposing
the person subjected to the harassment to undue risk, effort, or
expense;
`(ii) undertaken prompt, thorough, and impartial investigations
pursuant to its complaint procedure; and
`(iii) taken immediate and appropriate corrective action designed
to stop harassment that has occurred, correct its effects on the
aggrieved person, and ensure that the harassment does not recur.
`(E) PUNITIVE DAMAGES- Punitive damages shall not be available under
this subsection against a government, government agency, or political
subdivision.
`(3) DEFINITIONS- As used in this subsection:
`(A) DEMONSTRATES- The term `demonstrates' means meets the burdens
of production and persuasion.
`(B) TANGIBLE ACTION- The term `tangible action' means--
`(i) a significant adverse change in an individual's status caused
by an agent or employee of a covered entity with regard to the individual's
participation in, access to, or enjoyment of, the benefits of a
program or activity; or
`(ii) an explicit or implicit condition by an agent or employee
of a covered entity on an individual's participation in, access
to, or enjoyment of, the benefits of a program or activity based
on the individual's submission to the harassment.
`(C) UNLAWFUL HARASSMENT- The term `unlawful harassment' means harassment
that is unlawful under this title.'.
(b) Education Amendments of 1972- Section 902A of the Civil Rights Act
of 1964, as added by section 104, is amended by adding at the end the
following:
`(c) Claims Based on Harassment-
`(1) RIGHT OF RECOVERY- In an action brought against a covered entity
by (including on behalf of) an aggrieved person who has been subjected
to unlawful harassment under a program or activity, the aggrieved person
may recover equitable and legal relief (including compensatory and punitive
damages subject to the provisions of paragraph (2)), attorney's fees
(including expert fees), and costs.
`(2) AVAILABILITY OF DAMAGES-
`(A) TANGIBLE ACTION BY AGENT OR EMPLOYEE- If an agent or employee
of a covered entity engages in unlawful harassment under a program
or activity that results in a tangible action to the aggrieved person,
damages shall be available against the covered entity.
`(B) NO TANGIBLE ACTION BY AGENT OR EMPLOYEE- If an agent or employee
of a covered entity engages in unlawful harassment under a program
or activity that results in no tangible action to the aggrieved person,
no damages shall be available against the covered entity if it can
demonstrate that--
`(i) it exercised reasonable care to prevent and correct promptly
any harassment based on sex; and
`(ii) the aggrieved person unreasonably failed to take advantage
of preventive or corrective opportunities offered by the covered
entity that--
`(I) would likely have provided redress and avoided the harm described
by the aggrieved person; and
`(II) would not have exposed the aggrieved person to undue risk,
effort, or expense.
`(C) HARASSMENT BY THIRD PARTY- If a person who is not an agent or
employee of a covered entity subjects an aggrieved person to unlawful
harassment under a program or activity, and the covered entity knew
or should have known of the harassment, no damages shall be available
against the covered entity if it can demonstrate that it exercised
reasonable care to prevent and correct promptly any harassment based
on sex.
`(D) DEMONSTRATION- For purposes of subparagraphs (B) and (C), a showing
that the covered entity has exercised reasonable care to prevent and
correct promptly any harassment based on sex includes a demonstration
by the covered entity that it has--
`(i) established, adequately publicized, and enforced an effective,
comprehensive, harassment prevention policy and complaint procedure
that is likely to provide redress and avoid harm without exposing
the person subjected to the harassment to undue risk, effort, or
expense;
`(ii) undertaken prompt, thorough, and impartial investigations
pursuant to its complaint procedure; and
`(iii) taken immediate and appropriate corrective action designed
to stop harassment that has occurred, correct its effects on the
aggrieved person, and ensure that the harassment does not recur.
`(E) PUNITIVE DAMAGES- Punitive damages shall not be available under
this subsection against a government, government agency, or political
subdivision.
`(3) DEFINITIONS- As used in this subsection:
`(A) DEMONSTRATES- The term `demonstrates' means meets the burdens
of production and persuasion.
`(B) TANGIBLE ACTION- The term `tangible action' means--
`(i) a significant adverse change in an individual's status caused
by an agent or employee of a covered entity with regard to the individual's
participation in, access to, or enjoyment of, the benefits of a
program or activity; or
`(ii) an explicit or implicit condition by an agent or employee
of a covered entity on an individual's participation in, access
to, or enjoyment of, the benefits of a program or activity based
on the individual's submission to the harassment.
`(C) UNLAWFUL HARASSMENT- The term `unlawful harassment' means harassment
that is unlawful under this title.'.
(c) Age Discrimination Act of 1975- Section 305(g) of the Age Discrimination
Act of 1975, as added by section 104, is amended by adding at the end
the following:
`(3)(A) If an action brought against a covered entity by (including on
behalf of) an aggrieved person who has been subjected to unlawful harassment
under a program or activity, the aggrieved person may recover equitable
and legal relief (including compensatory and punitive damages subject
to the provisions of subparagraph (B)), attorney's fees (including expert
fees), and costs.
`(B)(i) If an agent or employee of a covered entity engages in unlawful
harassment under a program or activity that results in a tangible action
to the aggrieved person, damages shall be available against the covered
entity.
`(ii) If an agent or employee of a covered entity engages in unlawful
harassment under a program or activity that results in no tangible action
to the aggrieved person, no damages shall be available against the covered
entity if it can demonstrate that--
`(I) it exercised reasonable care to prevent and correct promptly any
harassment based on age; and
`(II) the aggrieved person unreasonably failed to take advantage of
preventive or corrective opportunities offered by the covered entity
that--
`(aa) would likely have provided redress and avoided the harm described
by the aggrieved person; and
`(bb) would not have exposed the aggrieved person to undue risk, effort,
or expense.
`(iii) If a person who is not an agent or employee of a covered entity
subjects an aggrieved person to unlawful harassment under a program or
activity, and the covered entity knew or should have known of the harassment,
no damages shall be available against the covered entity if it can demonstrate
that it exercised reasonable care to prevent and correct promptly any
harassment based on age.
`(iv) For purposes of clauses (ii) and (iii), a showing that the covered
entity has exercised reasonable care to prevent and correct promptly any
harassment based on age includes a demonstration by the covered entity
that it has--
`(I) established, adequately publicized, and enforced an effective,
comprehensive, harassment prevention policy and complaint procedure
that is likely to provide redress and avoid harm without exposing the
person subjected to the harassment to undue risk, effort, or expense;
`(II) undertaken prompt, thorough, and impartial investigations pursuant
to its complaint procedure; and
`(III) taken immediate and appropriate corrective action designed to
stop harassment that has occurred, correct its effects on the aggrieved
person, and ensure that the harassment does not recur.
`(v) Punitive damages shall not be available under this paragraph against
a government, government agency, or political subdivision.
`(C) As used in this paragraph:
`(i) The term `demonstrates' means meets the burdens of production and
persuasion.
`(ii) The term `tangible action' means--
`(I) a significant adverse change in an individual's status caused
by an agent or employee of a covered entity with regard to the individual's
participation in, access to, or enjoyment of, the benefits of a program
or activity; or
`(II) an explicit or implicit condition by an agent or employee of
a covered entity on an individual's participation in, access to, or
enjoyment of, the benefits of a program or activity based on the individual's
submission to the harassment.
`(iii) The term `unlawful harassment' means harassment that is unlawful
under this title.'.
(d) Rehabilitation Act of 1973- Section 504(e) of the Rehabilitation Act
of 1973, as added by section 104, is amended by adding at the end the
following:
`(3)(A) In an action brought against a covered entity by (including on
behalf of) an aggrieved person who has been subjected to unlawful harassment
under a program or activity, the aggrieved person may recover equitable
and legal relief (including compensatory and punitive damages subject
to the provisions of subparagraph (B)), attorney's fees (including expert
fees), and costs.
`(B)(i) If an agent or employee of a covered entity engages in unlawful
harassment under a program or activity that results in a tangible action
to the aggrieved person, damages shall be available against the covered
entity.
`(ii) If an agent or employee of a covered entity engages in unlawful
harassment under a program or activity that results in no tangible action
to the aggrieved person, no damages shall be available against the covered
entity if it can demonstrate that--
`(I) it exercised reasonable care to prevent and correct promptly any
harassment based on disability; and
`(II) the aggrieved person unreasonably failed to take advantage of
preventive or corrective opportunities offered by the covered entity
that--
`(aa) would likely have provided redress and avoided the harm described
by the aggrieved person; and
`(bb) would not have exposed the aggrieved person to undue risk, effort,
or expense.
`(iii) If a person who is not an agent or employee of a covered entity
subjects an aggrieved person to unlawful harassment under a program or
activity, and the covered entity knew or should have known of the harassment,
no damages shall be available against the covered entity if it can demonstrate
that it exercised reasonable care to prevent and correct promptly any
harassment based on disability.
`(iv) For purposes of clauses (ii) and (iii), a showing that the covered
entity has exercised reasonable care to prevent and correct promptly any
harassment based on disability includes a demonstration by the covered
entity that it has--
`(I) established, adequately publicized, and enforced an effective,
comprehensive, harassment prevention policy and complaint procedure
that is likely to provide redress and avoid harm without exposing the
person subjected to the harassment to undue risk, effort, or expense;
`(II) undertaken prompt, thorough, and impartial investigations pursuant
to its complaint procedure; and
`(III) taken immediate and appropriate corrective action designed to
stop harassment that has occurred, correct its effects on the aggrieved
person, and ensure that the harassment does not recur.
`(v) Punitive damages shall not be available under this paragraph against
a government, government agency, or political subdivision.
`(C) As used in this paragraph:
`(i) The term `demonstrates' means meets the burdens of production and
persuasion.
`(ii) The term `tangible action' means--
`(I) a significant adverse change in an individual's status caused
by an agent or employee of a covered entity with regard to the individual's
participation in, access to, or enjoyment of, the benefits of a program
or activity; or
`(II) an explicit or implicit condition by an agent or employee of
a covered entity on an individual's participation in, access to, or
enjoyment of, the benefits of a program or activity based on the individual's
submission to the harassment.
`(iii) The term `unlawful harassment' means harassment that is unlawful
under this section.'.
SEC. 113. CONSTRUCTION.
Nothing in this subtitle, including any amendment made by this subtitle,
shall be construed to limit the scope of the class of persons who may
be subjected to civil actions under the covered civil rights provisions.
SEC. 114. EFFECTIVE DATE.
(a) In General- This subtitle, and the amendments made by this subtitle,
take effect on the date of enactment of this Act.
(b) Application- This subtitle, and the amendments made by this subtitle,
apply to all actions or proceedings pending on or after the date of enactment
of this Act.
TITLE II--EMPLOYER ACCOUNTABILITY FOR DISCRIMINATION BASED ON MILITARY
SERVICE
SEC. 201. AMENDMENT TO THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT
RIGHTS ACT OF 1994.
(a) Findings- Congress makes the following findings:
(1) The Federal Government has an important interest in attracting and
training a military to provide for the National defense. The Constitution
grants Congress the power to raise and support an army for purposes
of the common defense. The Nation's military readiness requires that
all members of the Armed Forces, including those employed in State programs
and activities, be able to serve without jeopardizing their civilian
employment opportunities.
(2) The Uniformed Services Employment and Reemployment Rights Act of
1994, commonly referred to as `USERRA' and codified as chapter 43 of
title 38, United States Code, is intended to safeguard the reemployment
rights of members of the uniformed services (as that term is defined
in section 4303(16) of title 38, United States Code) and to prevent
discrimination against any person who is a member of, applies to be
a member of, performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service. Effective enforcement
of the Act depends on the ability of private individuals to enforce
its provisions in court.
(3) In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the
Supreme Court held that congressional legislation, enacted pursuant
to the portion of section 8 of article I of the Constitution relating
to regulation of Commerce among the several States, cannot abrogate
the immunity of States under the 11th amendment to the Constitution.
Some courts have interpreted Seminole Tribe of Florida v. Florida as
a basis for denying relief to persons affected by a State violation
of USERRA. In addition, in Alden v. Maine 527 U.S. 706, 712 (1999),
the Supreme Court held that this immunity also prohibits the Federal
Government from subjecting `non-consenting states to private suits for
damages in state courts.' As a result, although USERRA specifically
provides that a person may commence an action for relief against a State
for its violation of that Act, persons harmed by State violations of
that Act lack important remedies to vindicate the rights and benefits
that are available to all other persons covered by that Act. Unless
a State chooses to waive sovereign immunity, or the Attorney General
brings an action on their behalf, persons affected by State violations
of USERRA may have no adequate Federal remedy for such violations.
(4) A failure to provide a private right of action by persons affected
by State violations of USERRA would leave vindication of their rights
and benefits under that Act solely to Federal agencies, which may fail
to take necessary and appropriate action because of administrative overburden
or other reasons. Action by Congress to specify such a private right
of action ensures that persons affected by State violations of USERRA
have a remedy if they are denied their rights and benefits under that
Act.
(b) Clarification of Right of Action Under USERRA- Section 4323 of title
38, United States Code, is amended--
(1) in subsection (b), by striking paragraph (2) and inserting the following
new paragraph (2):
`(2) In the case of an action against a State (as an employer) by a person,
the action may be brought in a district court of the United States or
State court of competent jurisdiction.';
(2) by redesignating subsection (j) as subsection (k); and
(3) by inserting after subsection (i) the following new subsection (j):
`(j)(1)(A) 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 of that program or activity under this chapter
for the rights or benefits authorized the employee by this chapter.
`(B) In this paragraph, the term `program or activity' has the meaning
given the term in section 309 of the Age Discrimination Act of 1975 (42
U.S.C. 6107).
`(2) An official of a State may be sued in the official capacity of the
official by any person covered by paragraph (1) who seeks injunctive relief
against a State (as an employer) under subsection (e). 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).'.
TITLE III--EMPLOYER ACCOUNTABILITY FOR AGE DISCRIMINATION
SEC. 301. SHORT TITLE.
This title may be cited as the `Older Workers' Rights Restoration Act
of 2008'.
SEC. 302. FINDINGS.
Congress finds the following:
(1)(A) Age discrimination in employment remains a serious problem both
nationally and among State agencies, and has invidious effects on its
victims, the labor force, and the economy as a whole.
(B) For example, age discrimination in employment--
(i) increases the risk of unemployment among older workers, who will
as a result be more likely to be dependent on government resources;
(ii) prevents the best use of available labor resources;
(iii) adversely affects the morale and productivity of older workers;
and
(iv) perpetuates unwarranted stereotypes about the abilities of older
workers.
(C) As a result, the Federal Government has an important interest in
ensuring that Federal financial assistance is not used to subsidize
or facilitate violations of the Age Discrimination in Employment Act
of 1967 (29 U.S.C. 621 et seq.) (referred to in this section as the
`ADEA').
(2) Private civil suits by the victims of employment discrimination
have been a crucial tool for enforcement of the ADEA since the enactment
of that Act. In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000),
however, the Supreme Court held that Congress had not abrogated State
sovereign immunity to suits by individuals under the ADEA.
(3) As a result of the Kimel decision, although age-based discrimination
by State employers remains unlawful, the victims of such discrimination
lack important remedies for vindication of their rights that are available
to all other employees covered under that Act, including employees in
the private sector, local government, and the Federal Government. In
the absence of the deterrent effect that such remedies provide, there
is a greater likelihood that entities carrying out programs and activities
receiving Federal financial assistance will use that assistance to violate
that Act, or that the assistance will otherwise subsidize or facilitate
violations of that Act.
(4) The Supreme Court has upheld Congress's authority to condition receipt
of Federal financial assistance on acceptance by the States or other
covered entities of conditions regarding or related to the use of that
assistance, as in Cannon v. University of Chicago, 441 U.S. 677 (1979).
The Court has further recognized that Congress may require a State,
as a condition of receipt of Federal financial assistance, to waive
the State's sovereign immunity to suits for a violation of Federal law,
as in College Savings Bank v. Florida Prepaid Postsecondary Education
Expense Board, 527 U.S. 666 (1999). In the wake of the Kimel decision,
in order to assure compliance with, and to provide effective remedies
for violations of, the ADEA in State programs or activities receiving
or using Federal financial assistance, and in order to ensure that Federal
financial assistance does not subsidize or facilitate violations of
the ADEA, it is necessary to require such a waiver as a condition of
receipt or use of that assistance.
(5) A State's receipt or use of Federal financial assistance in any
program or activity of a State will constitute a limited waiver of sovereign
immunity under section 7(g) of the ADEA (as added by section 304). The
waiver will not eliminate a State's immunity with respect to programs
or activities that do not receive or use Federal financial assistance.
The State will waive sovereign immunity only with respect to suits under
the ADEA brought by employees within the programs or activities that
receive or use that assistance. With regard to those programs and activities
that are covered by the waiver, the State employees will be accorded
only the same remedies that are accorded to other covered employees
under the ADEA.
(6) The Supreme Court has repeatedly held that State sovereign immunity
does not bar suits for prospective injunctive relief brought against
State officials, as in Ex parte Young (209 U.S. 123 (1908)). Clarification
of the language of the ADEA will confirm that Act authorizes such suits.
The injunctive relief available in such suits will continue to be no
broader than the injunctive relief that was available under that Act
before the Kimel decision, and that is available to all other employees
under that Act.
(7) In 1991, Congress reaffirmed that title VII of the Civil Rights
Act of 1964 permits victims of employment bias to state a cause of action
for disparate impact discrimination when it added a provision to title
VII of the Civil Rights Act of 1964 to clarify the burden of proof in
disparate impact cases in section 703(k) of the Civil Rights Act of
1964 (42 U.S.C. 2000e-2(k)).
(8) In Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme Court
held that the ADEA permits older workers to state a cause of action
for disparate impact discrimination. The Smith Court incorrectly held,
however, that the scope of disparate impact claims is narrower under
the ADEA than under title VII. Congress did not intend the ADEA to be
interpreted to provide older workers less protections against discrimination
than those protected under title VII of the Civil Rights Act of 1964.
As a result, it is necessary to clarify the burden of proof in a disparate
impact case under the ADEA.
SEC. 303. PURPOSES.
The purposes of this title are--
(1) to provide to State employees in programs or activities that receive
or use Federal financial assistance the same rights and remedies for
practices violating the Age Discrimination in Employment Act of 1967
(29 U.S.C. 621 et seq.) as are available to other employees under that
Act, and that were available to State employees prior to the Supreme
Court's decision in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000);
(2) to provide that the receipt or use of Federal financial assistance
for a program or activity constitutes a State waiver of sovereign immunity
from suits by employees within that program or activity for violations
of the Age Discrimination in Employment Act of 1967;
(3) to affirm that suits for injunctive relief are available against
State officials in their official capacities for violations of the Age
Discrimination in Employment Act of 1967; and
(4) to clarify the disparate impact standard of proof in claims under
the Age Discrimination in Employment Act of 1967.
SEC. 304. REMEDIES FOR STATE EMPLOYEES.
Section 7 of the Age Discrimination in Employment Act of 1967 (29 U.S.C.
626) is amended by adding at the end the following:
`(g)(1)(A) 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 of that program or activity under this Act
for equitable, legal, or other relief authorized under this Act.
`(B) In this paragraph, the term `program or activity' has the meaning
given the term in section 309 of the Age Discrimination Act of 1975 (42
U.S.C. 6107).
`(2) An official of a State may be sued in the official capacity of the
official by any employee who has complied with the procedures of subsections
(d) and (e), for injunctive relief that is authorized under this Act.
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).'.
SEC. 305. DISPARATE IMPACT CLAIMS.
Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C.
623) is amended by adding at the end the following:
`(n)(1) Discrimination based on disparate impact is established under
this Act only if--
`(A) an aggrieved party demonstrates that an employer, employment agency,
or labor organization has a policy or practice that causes a disparate
impact on the basis of age and the employer, employment agency, or labor
organization fails to demonstrate that the challenged policy or practice
is based on reasonable factors that are job-related and consistent with
business necessity other than age; or
`(B) the aggrieved party demonstrates (consistent with the demonstration
standard under title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.) with respect to an `alternative employment practice')
that a less discriminatory alternative policy or practice exists, and
the employer, employment agency, or labor organization refuses to adopt
such alternative policy or practice.
`(2)(A) With respect to demonstrating that a particular policy or practice
causes a disparate impact as described in paragraph (1)(A), the aggrieved
party shall demonstrate that each particular challenged policy or practice
causes a disparate impact, except that if the aggrieved party demonstrates
to the court that the elements of an employer, employment agency, or labor
organization's decisionmaking process are not capable of separation for
analysis, the decisionmaking process may be analyzed as one policy or
practice.
`(B) If the employer, employment agency, or labor organization demonstrates
that a specific policy or practice does not cause the disparate impact,
the employer, employment agency, or labor organization shall not be required
to demonstrate that such policy or practice is necessary to the operation
of its business.
`(3) A demonstration that a policy or practice is necessary to the operation
of the employer, employment agency, or labor organization's business may
not be used as a defense against a claim of intentional discrimination
under this Act.
`(4) In this subsection, the term `demonstrates' means meets the burdens
of production and persuasion.'.
SEC. 306. EFFECTIVE DATE.
(a) Waiver of Sovereign Immunity- With respect to a particular program
or activity, section 7(g)(1) of the Age Discrimination in Employment Act
of 1967 (29 U.S.C. 626(g)(1)) applies to conduct occurring on or after
the day, after the date of enactment of this title, on which a State first
receives or uses Federal financial assistance for that program or activity.
(b) Suits Against Officials- Section 7(g)(2) of the Age Discrimination
in Employment Act of 1967 (29 U.S.C. 626(g)(2)) applies to any suit pending
on or after the date of enactment of this title.
TITLE IV--IMPROVED ACCOUNTABILITY FOR OTHER VIOLATIONS OF CIVIL RIGHTS
AND WORKERS' RIGHTS
Subtitle A--Air Carrier Access Act of 1986 Amendment
SEC. 401. FINDINGS.
Congress finds the following:
(1) Relying on the Supreme Courts's decision in Alexander v. Sandoval,
532 U.S. 275 (2001), some courts have erroneously held that when Congress
passed the Air Carrier Access Act of 1986 (Public Law 99-435; 100 Stat.
1080), adding a provision now codified at section 41705 of title 49,
United States Code (referred to in this subtitle as the `ACAA'), Congress
did not intend to create a private right of action with which individuals
with disabilities could sue air carriers in Federal court for discrimination
on the basis of disability. Love v. Delta Air Lines, 310 F. 3d 1347
(11th Cir. 2002)
(2) The absence of a private right of action leaves enforcement of the
ACAA solely in the hands of the Department of Transportation, which
is overburdened and lacks the resources to investigate, prosecute violators
for, and remediate all of the violations of the rights of travelers
who are individuals with disabilities. Nor can the Department of Transportation
bring an action that will redress the injury of an individual resulting
from such a violation. The Department of Transportation can take action
that fines an air carrier or requires the air carrier to obey the law
in the future, but the Department is not authorized to issue orders
that redress the injuries sustained by individual air passengers. Action
by Congress is necessary to ensure that individuals with disabilities
will have adequate remedies available when air carriers violate the
ACAA (including its regulations), and only courts may provide this redress
to individuals.
(3) When an air carrier violates the ACAA and discriminates against
an individual with a disability, frequently the only way to compensate
that individual for the harm the individual has suffered is through
an award of money damages.
(4) Unlike other civil rights statutes, the ACAA does not contain a
fee-shifting provision under which a prevailing plaintiff can be awarded
attorney's fees. Action by Congress is necessary to correct this anomaly.
The availability of attorney's fees is essential to ensuring that persons
who have been aggrieved by violations of the ACAA can enforce their
rights. The inclusion of a fee-shifting provision in the ACAA will permit
individuals to serve as private attorneys general, a necessary role
on which enforcement of civil rights statutes depends.
SEC. 402. CIVIL ACTION.
Section 41705 of title 49, United States Code, is amended by adding at
the end the following:
`(d) Civil Action- (1) Any person aggrieved by an air carrier's violation
of subsection (a) (including any regulation implementing such subsection)
may bring a civil action in the district court of the United States in
the district in which the aggrieved person resides, in the district containing
the air carrier's principal place of business, or in the district in which
the violation took place. Any such action must be commenced within 2 years
after the date of the violation.
`(2) In any civil action brought by an aggrieved person pursuant to paragraph
(1), the plaintiff may obtain both equitable and legal relief, including
compensatory and punitive damages. The court in such action shall, in
addition to such relief awarded to a prevailing plaintiff, award reasonable
attorney's fees, reasonable expert fees, and costs of the action to the
plaintiff.'.
Subtitle B--Prevailing Party
SEC. 411. SHORT TITLE.
This subtitle may be cited as the `Settlement Encouragement and Fairness
Act'.
SEC. 412. DEFINITION OF PREVAILING PARTY.
(a) In General- Chapter 1 of title 1, United States Code, is amended by
adding at the end the following:
`Sec. 9. Definition of `prevailing party'
`(a) In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, or of any judicial or administrative rule,
which provides for the recovery of attorney's fees, the term `prevailing
party' shall include, in addition to a party who substantially prevails
through a judicial or administrative judgment or order, or an enforceable
written agreement, a party whose pursuit of a nonfrivolous claim or defense
was a catalyst for a voluntary or unilateral change in position by the
opposing party that provides any significant part of the relief sought.
`(b)(1) If an Act, ruling, regulation, interpretation, or rule described
in subsection (a) requires a defendant, but not a plaintiff, to satisfy
certain different or additional criteria to qualify for the recovery of
attorney's fees, subsection (a) shall not affect the requirement that
such defendant satisfy such criteria.
`(2) If an Act, ruling, regulation, interpretation, or rule described
in subsection (a) requires a party to satisfy certain criteria, unrelated
to whether or not such party has prevailed, to qualify for the recovery
of attorney's fees, subsection (a) shall not affect the requirement that
such party satisfy such criteria.'.
(b) Clerical Amendment- The table of sections at the beginning of chapter
1 of title 1, United States Code, is amended by adding at the end the
following new item:
`9. Definition of `prevailing party'.'.
(c) Application- Section 9 of title 1, United States Code, as added by
this Act, shall apply to any case pending or filed on or after the date
of enactment of this subtitle.
Subtitle C--Arbitration
SEC. 421. SHORT TITLE.
This subtitle may be cited as the `Preservation of Civil Rights Protections
Act of 2008'.
SEC. 422. AMENDMENT TO FEDERAL ARBITRATION ACT.
Section 1 of title 9, United States Code, is amended by striking `of seamen'
and all that follows through `commerce'.
SEC. 423. UNENFORCEABILITY OF ARBITRATION CLAUSES IN EMPLOYMENT CONTRACTS.
(a) Protection of Employee Rights- Notwithstanding any other provision
of law, any clause of any agreement between an employer and an employee
that requires arbitration of a dispute arising under the Constitution
or laws of the United States shall not be enforceable.
(1) WAIVER OR CONSENT AFTER DISPUTE ARISES- Subsection (a) shall not
apply with respect to any dispute if, after such dispute arises, the
parties involved knowingly and voluntarily consent to submit such dispute
to arbitration.
(2) COLLECTIVE BARGAINING AGREEMENTS- Subsection (a) shall not preclude
the enforcement of the rights or terms of a valid collective bargaining
agreement.
SEC. 424. APPLICATION OF AMENDMENTS.
This subtitle and the amendment made by section 422 shall apply with respect
to all employment contracts in force before, on, or after the date of
enactment of this subtitle.
Subtitle D--Expert Witness Fees
SEC. 431. PURPOSE.
The purpose of this subtitle is to allow recovery of expert fees by prevailing
parties under civil rights fee-shifting statutes.
SEC. 432. FINDINGS.
Congress finds the following:
(1) This subtitle is made necessary by the decision of the Supreme Court
in West Virginia University Hospitals Inc. v. Casey, 499 U.S. 83 (1991).
In Casey, the Court, per Justice Scalia, ruled that expert fees were
not recoverable under section 722 of the Revised Statutes (42 U.S.C.
1988), as amended by the Civil Rights Attorney's Fees Awards Act of
1976 (Public Law 94-559; 90 Stat. 2641), because the amendment made
by the Civil Rights Attorney's Fees Awards Act of 1976 expressly authorized
an award of an `attorney's fee' to a prevailing party but said nothing
expressly about expert fees.
(2) This subtitle is especially necessary both because of the important
roles played by experts in civil rights litigation and because expert
fees often represent a major cost of the litigation.
(3) In the Civil Rights Act of 1991 (Public Law 102-166; 105 Stat. 1071),
Congress amended title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.) and section 722 of the Revised Statutes (42 U.S.C. 1988)
to include express authorizations of the recovery of expert fees in
successful employment discrimination litigation. It is long past time
to ensure that expert fees are available in Federal litigation under
other civil rights statutes.
SEC. 433. EFFECTIVE PROVISIONS.
(a) Section 722 of the Revised Statutes- Section 722 of the Revised Statutes
(42 U.S.C. 1988) is amended--
(1) in subsection (b), by inserting `(including expert fees)' after
`attorney's fee'; and
(2) by striking subsection (c).
(b) Fair Labor Standards Act of 1938- Section 16(b) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 216(b)) is amended by inserting `(including
expert fees)' after `attorney's fee'.
(c) Fair Housing Act- Title VIII of the Civil Rights Act of 1968 (42 U.S.C.
3601 et seq.) is amended--
(1) in section 812(p), by inserting `(including expert fees)' after
`attorney's fee';
(2) in section 813(c)(2), by inserting `(including expert fees)' after
`attorney's fee'; and
(3) in section 814(d)(2), by inserting `(including expert fees)' after
`attorney's fee'.
(d) IDEA- Section 615(i)(3)(B) of the Individuals with Disabilities Education
Act (20 U.S.C. 1415(i)(3)(B)) is amended by inserting `(including expert
fees)' after `reasonable attorney's fees'.
(e) Civil Rights Act of 1964- Section 204(b) of the Civil Rights Act of
1964 (42 U.S.C. 2000a-3(b)) is amended by inserting `(including expert
fees)' after `attorney's fee'.
(f) Rehabilitation Act of 1973- Section 505(b) of the Rehabilitation Act
of 1973 (29 U.S.C. 794a(b)) is amended by inserting `(including expert
fees)' after `attorney's fee'.
(g) Equal Credit Opportunity Act- Section 706(d) of the Equal Credit Opportunity
Act (15 U.S.C. 1691e(d)) is amended by inserting `(including expert fees)'
after `attorney's fee'.
(h) Fair Credit Reporting Act- The Fair Credit Reporting Act (15 U.S.C.
1681 et seq.) is amended--
(1) in section 616(a)(3), by inserting `(including expert fees)' after
`attorney's fees'; and
(2) in section 617(a)(2), by inserting `(including expert fees)' after
`attorney's fees'.
(i) Freedom of Information Act- Section 552(a)(4)(E) of title 5, United
States Code, is amended by inserting `(including expert fees)' after `attorney
fees'.
(j) Privacy Act- Section 552a(g) of title 5, United States Code, is amended--
(1) in paragraph (2)(B), by inserting `(including expert fees)' after
`attorney fees';
(2) in paragraph (3)(B), by inserting `(including expert fees)' after
`attorney fees'; and
(3) in paragraph (4)(B), by inserting `(including expert fees)' after
`attorney fees'.
(k) Truth in Lending Act- Section 130(a)(3) of the Truth in Lending Act
(15 U.S.C. 1640(a)(3)) is amended by inserting `(including expert fees)'
after `attorney's fee'.
Subtitle E--Equal Remedies Act of 2008
SEC. 441. SHORT TITLE.
This subtitle may be cited as the `Equal Remedies Act of 2008'.
SEC. 442. EQUALIZATION OF REMEDIES.
Section 1977A of the Revised Statutes (42 U.S.C. 1981a) is amended--
(A) by striking paragraph (3); and
(B) by redesignating paragraph (4) as paragraph (3); and
(2) in subsection (c), by striking `section--' and all that follows
through the period, and inserting `section, any party may demand a jury
trial.'.
Subtitle F--Prohibitions Against Sex Discrimination
SEC. 451. 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) burdens commerce and the free flow of goods in commerce; and
(D) in many instances, may deprive workers of equal protection on
the basis of sex in violation of the 5th and 14th amendments.
(4) 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.).
SEC. 452. 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) 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--
(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.'.
Subtitle G--Protections for Workers
CHAPTER 1--PROTECTION FOR UNDOCUMENTED WORKERS
SEC. 461. FINDINGS.
Congress finds the following:
(1) The National Labor Relations Act (29 U.S.C. 151 et seq.) (in this
chapter referred to as the `NLRA'), enacted in 1935, guarantees the
right of employees to organize and to bargain collectively with their
employers. The NLRA implements the national labor policy of assuring
free choice and encouraging collective bargaining as a means of maintaining
industrial peace. The National Labor Relations Board (in this chapter
referred to as the `NLRB') was created by Congress to enforce the provisions
of the NLRA.
(2) Under section 8 of the NLRA, employers are prohibited from discriminating
against employees `in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership
in any labor organization'. (29 U.S.C. 158(a)(3)). Employers who violate
these provisions are subject to a variety of sanctions, including reinstatement
of workers found to be illegally discharged because of their union support
or activity and provision of backpay to those employees. Such sanctions
serve to remedy and deter illegal actions by employers.
(3) In Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 (2002),
the Supreme
