S 2554
110th CONGRESS
2d Session
S. 2554
To restore, reaffirm, and reconcile legal rights and remedies
under civil rights statutes.
IN THE SENATE OF THE UNITED STATES
January 24, 2008
Mr. KENNEDY (for himself, Mr. LEAHY, Mr. DODD, Mr. BINGAMAN, Mr. KERRY,
Mr. HARKIN, Ms. MIKULSKI, Mr. AKAKA, Mrs. BOXER, Mr. FEINGOLD, Mrs.
MURRAY, Mr. DURBIN, Mr. SCHUMER, Ms. CANTWELL, Mrs. CLINTON, Mr. LAUTENBERG,
Mr. OBAMA, Mr. MENENDEZ, Mr. CARDIN, and Mr. BROWN) introduced the following
bill; which was read twice and referred to the Committee on Health,
Education, Labor, and Pensions
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 any 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
