Amends the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Age Discrimination in Employment Act of 1967 (ADEA), and the Fair Labor Standards Act of 1938 (FLSA) to provide that a state's receipt or use of federal financial assistance for a state program or activity constitutes a waiver of sovereign immunity for a suit by a program employee.
Amends the Air Carrier Access Act of 1986 to authorize civil actions in federal court for discrimination based on disability.
Settlement Encouragement and Fairness Act - Modifies the definition of "prevailing party" for purposes of provisions governing the recovery of attorney's fees to include a party whose pursuit of a non-frivolous 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.
Preservation of Civil Rights Protections Act of 2008 - Makes arbitration clauses in employment contracts unenforceable, with exceptions.
Authorizes recovery of expert fees by prevailing parties in civil rights actions.
Equal Remedies Act of 2008 - Repeals provisions limiting the amount of compensatory and punitive damages that may be awarded in cases of intentional discrimination in employment.
Amends the FLSA to revise provisions governing discrimination in the payment of wages, including equal pay requirements.
Amends the Immigration and Nationality Act to prohibit denying back-pay or other monetary relief for unlawful employment practices against undocumented immigrant workers.
Applies specified provisions of this act to violations pending as of enactment or occurring prior to enactment.
[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2554 Introduced in Senate (IS)]
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. 1. Short title.
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. 101. Findings.
Sec. 102. Prohibited discrimination.
Sec. 103. Rights of action.
Sec. 104. Right of recovery.
Sec. 105. Construction.
Sec. 106. Effective date.
Subtitle B--Harassment
Sec. 111. Findings.
Sec. 112. Right of recovery.
Sec. 113. Construction.
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. 301. Short title.
Sec. 302. Findings.
Sec. 303. Purposes.
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
Sec. 401. Findings.
Sec. 402. Civil action.
Subtitle B--Prevailing Party
Sec. 411. Short title.
Sec. 412. Definition of prevailing party.
Subtitle C--Arbitration
Sec. 421. Short title.
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. 431. Purpose.
Sec. 432. Findings.
Sec. 433. Effective provisions.
Subtitle E--Equal Remedies Act of 2008
Sec. 441. Short title.
Sec. 442. Equalization of remedies.
Subtitle F--Prohibitions Against Sex Discrimination
Sec. 451. Findings.
Sec. 452. Enhanced enforcement of equal pay requirements.
Subtitle G--Protections for Workers
Chapter 1--Protection for Undocumented Workers
Sec. 461. Findings.
Sec. 462. Continued application of backpay remedies.
Chapter 2--Fair Labor Standards Act Amendments
Sec. 466. Short title.
Sec. 467. Findings.
Sec. 468. Purposes.
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.
(b) Exceptions.--
(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--
(1) in subsection (b)--
(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) such factor--
``(AA) is job-related with respect to the
position in question; or
``(BB) furthers a legitimate business
purpose, except that this item shall not apply
where the employee demonstrates that an
alternative employment practice exists that
would serve the same business purpose without
producing such differential and that the
employer has refused to adopt such alternative
practice; and
``(bb) such factor was actually applied and used
reasonably in light of the asserted justification; and
``(II) upon the employer succeeding under subclause (I),
the employee fails to demonstrate that the differential
produced by the reliance of the employer on such factor is
itself the result of discrimination on the basis of sex by the
employer.
An employer that is not otherwise in compliance with this paragraph may
not reduce the wages of any employee in order to achieve such
compliance.''.
(b) Application of Provisions.--Section 6(d)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended by adding at the
end the following: ``The provisions of this subsection shall apply to
applicants for employment if such applicants, upon employment by the
employer, would be subject to any provisions of this section.''.
(c) Elimination of Establishment Requirement.--Section 6(d) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)) is amended--
(1) by striking ``, within any establishment in which such
employees are employed,''; and
(2) by striking ``in such establishment'' each place it
appears.
(d) Nonretaliation Provision.--Section 15(a)(3) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
(1) by striking ``or has'' each place it appears and
inserting ``has''; and
(2) by inserting before the semicolon the following: ``, or
has inquired about, discussed, or otherwise disclosed the wages
of the employee or another employee, or because the employee
(or applicant) has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
hearing, or action under section 6(d)''.
(e) Enhanced Penalties.--Section 16(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following:
``Any employer who violates section 6(d) shall additionally be
liable for such compensatory or punitive damages as may be
appropriate, except that the United States shall not be liable
for punitive damages.'';
(2) in the sentence beginning ``An action to'', by striking
``either of the preceding sentences'' and inserting ``any of
the preceding sentences of this subsection'';
(3) in the sentence beginning ``No employees shall'', by
striking ``No employees'' and inserting ``Except with respect
to class actions brought to enforce section 6(d), no
employee'';
(4) by inserting after the sentence referred to in
paragraph (3), the following: ``Notwithstanding any other
provision of Federal law, any action brought to enforce section
6(d) may be maintained as a class action as provided by the
Federal Rules of Civil Procedure.''; and
(5) in the sentence beginning ``The court in''--
(A) by striking ``in such action'' and inserting
``in any action brought to recover the liability
prescribed in any of the preceding sentences of this
subsection''; and
(B) by inserting before the period the following:
``, including expert fees''.
(f) Action by Secretary.--Section 16(c) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting ``or, in the case of a violation
of section 6(d), additional compensatory or punitive
damages,'' before ``and the agreement''; and
(B) by inserting before the period the following:
``, or such compensatory or punitive damages, as
appropriate'';
(2) in the second sentence, by inserting before the period
the following: ``and, in the case of a violation of section
6(d), additional compensatory or punitive damages'';
(3) in the third sentence, by striking ``the first
sentence'' and inserting ``the first or second sentence''; and
(4) in the last sentence--
(A) by striking ``commenced in the case'' and
inserting ``commenced--
``(1) in the case'';
(B) by striking the period and inserting ``; or'';
and
(C) by adding at the end the following:
``(2) in the case of a class action brought to enforce
section 6(d), on the date on which the individual becomes a
party plaintiff to the class action.''.
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 Court held by a 5 to 4 vote that Federal
immigration policy, as articulated in amendments made by the
Immigration Reform and Control Act of 1986 (Public Law 99-603;
100 Stat. 3359), prevented the NLRB from awarding backpay to an
undocumented immigrant who was discharged in violation of the
NLRA because of his support for union representation at his
workplace.
(4) The decision in Hoffman has an impact on all employees,
regardless of immigration or citizenship status, who try to
improve their working conditions. In the wake of Hoffman
Plastics, employers may be more likely to report to the
Department of Homeland Security minority workers, regardless of
their immigration or citizenship status, who pursue claims
under the NLRA against their employers. Fear that employers may
retaliate against employees that exercise their rights under
the NLRA has a chilling effect on all employees who exercise
their labor rights.
(5) The NLRA is not the only Federal employment statute
that provides for a backpay award as a remedy for an unlawful
discharge. For example, courts routinely award backpay to
employees who are found to have been discharged in violation of
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et
seq.) or the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et
seq.) (in retaliation for complaining about a failure to comply
with the minimum wage). In the wake of the Hoffman decision,
defendant employers will now argue that backpay awards to
unlawfully discharged undocumented workers are barred under
Federal employment statutes and even under State employment
statutes.
(6) Because the Hoffman decision prevents the imposition of
sanctions on employers who discriminate against undocumented
immigrant workers, employers are encouraged to employ such
workers for low-paying and dangerous jobs because they have no
legal redress for violations of the law. This creates an
economic incentive for employers to hire and exploit
undocumented workers, which in turn tends to undermine the
living standards and working conditions of all Americans,
citizens and noncitizens alike.
(7) The Hoffman decision disadvantages many employers as
well. Employers who are forced to compete with firms that hire
and exploit undocumented immigrant workers are saddled with an
economic disadvantage in the labor marketplace. The unintended
creation of an economic inducement for employers to exploit
undocumented immigrant workers gives those employers an unfair
competitive advantage over employers that treat workers
lawfully and fairly.
(8) The Court's decision in Hoffman makes clear that ``any
`perceived deficiency in the NLRA's existing remedial arsenal'
must be `addressed by congressional action[.]''' Hoffman
Plastic Compounds Inc. v. NLRB, 535 U.S. 137, 152 (2002)
(quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 904 (1984)). In
emphasizing the importance of back pay awards, Justice Breyer
noted that such awards against employers ``help[] to deter
unlawful activity that both labor laws and immigration laws
seek to prevent''. Hoffman Plastic Compounds Inc. v. NLRB, 535
U.S. 137, 152 (2002). Because back pay awards are designed both
to remedy the individual's private right to be free from
discrimination as well as to enforce the important public
policy against discriminatory employment practices, Congress
must take the following corrective action.
SEC. 462. CONTINUED APPLICATION OF BACKPAY REMEDIES.
(a) In General.--Section 274A(h) of the Immigration and Nationality
Act (8 U.S.C. 1324a(h)) is amended by adding at the end the following:
``(4) Backpay remedies.--Backpay or other monetary relief
for unlawful employment practices shall not be denied to a
present or former employee as a result of the employer's or the
employee's--
``(A) failure to comply with the requirements of
this section; or
``(B) violation of a provision of Federal law
related to the employment verification system described
in subsection (b) in establishing or maintaining the
employment relationship.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to any failure to comply or any violation that occurs prior to,
on, or after the date of enactment of this subtitle.
CHAPTER 2--FAIR LABOR STANDARDS ACT AMENDMENTS
SEC. 466. SHORT TITLE.
This chapter may be cited as the ``Workers' Minimum Wage and
Overtime Rights Restoration Act of 2008''.
SEC. 467. FINDINGS.
Congress finds the following with respect to the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.) (in this chapter referred
to as the ``FLSA''):
(1) Since 1974, the FLSA has regulated States with respect
to the payment of minimum wage and overtime rates. In Garcia v.
San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985), the Supreme Court upheld Congress's constitutional
authority to regulate States in the payment of minimum wages
and overtime. The prohibitions of the FLSA remain in effect and
continue to apply to the States.
(2) Wage and overtime violations in employment remain a
serious problem both nationally and among State and other
public and private entities receiving Federal financial
assistance, and has invidious effects on its victims, the labor
force, and the general welfare and economy as a whole. For
example, 7 State governments have no overtime laws at all.
Fourteen State governments have minimum wage and overtime laws;
however, they exclude employees covered under the FLSA. As
such, public employees, since they are covered under the FLSA
are not protected under these State laws. Additionally, 4
States have minimum wage and overtime laws which are inferior
to the FLSA. Further, the Department of Labor continues to
receive a substantial number of wage and overtime charges
against State government employers.
(3) Private civil suits by the victims of employment law
violations have been a crucial tool for enforcement of the
FLSA. In Alden v. Maine, 527 U.S. 706 (1999), however, the
Supreme Court held that Congress lacks the power under the 14th
amendment to the Constitution to abrogate State sovereign
immunity to suits for legal relief by individuals under the
FLSA. The Federal Government has an important interest in
ensuring that Federal financial assistance is not used to
facilitate violations of the FLSA, and private civil suits for
monetary relief are a critical tool for advancing that
interest.
(4) After the Alden decision, wage and overtime violations
by State employers remain unlawful, but victims of such
violations lack important remedies for vindication of their
rights available to all other employees covered by the FLSA. In
the absence of the deterrent effect that such remedies provide,
there is a great likelihood that State entities carrying out
federally funded programs and activities will use Federal
financial assistance to violate the FLSA, or that the Federal
financial assistance will otherwise subsidize or facilitate
FLSA violations.
(5) The Supreme Court has upheld Congress's authority to
condition receipt of Federal financial assistance on acceptance
by State or other covered entities of conditions regarding or
related to the use of those funds, as in Cannon v. University
of Chicago, 441 U.S. 677 (1979).
(6) The Court has further recognized that Congress may
require State entities, as a condition of receipt of Federal
financial assistance, to waive their State 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).
(7) In the wake of the Alden decision, it is necessary, in
order to foster greater compliance with, and adequate remedies
for violations of, the FLSA, particularly in federally funded
programs or activities operated by State entities, to require
State entities to consent to a waiver of State sovereign
immunity as a condition of receipt of such Federal financial
assistance.
(8) The Supreme Court has repeatedly held that State
sovereign immunity does not bar suits for prospective
injunctive relief brought against State officials acting in
their official capacity, as in Ex parte Young (209 U.S. 123
(1908)). The injunctive relief available in such suits under
the FLSA will continue to be the same as that which was
available under those laws prior to enactment of this chapter.
SEC. 468. PURPOSES.
The purposes of this chapter 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 FLSA as are
available to other employees under the FLSA, and that were
available to State employees prior to the Supreme Court's
decision in Alden v. Maine, 527 U.S. 706 (1999);
(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 FLSA; and
(3) to affirm that suits for injunctive relief are
available against State officials in their official capacities
for violations of the FLSA.
SEC. 469. REMEDIES FOR STATE EMPLOYEES.
Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216)
is amended by adding at the end the following:
``(f)(1) 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.
``(2) In this subsection, 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).''.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S286)
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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