II

106TH CONGRESS

2D SESSION S. 3008

To amend the Age Discrimination in Employment Act of 1967 to require,

as a condition of receipt of Federal funding, that States waive immunity

to suit for certain violations of that Act, and to affirm the availability

of certain suits for injunctive relief to ensure compliance with that

Act.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 6, 2000

Mr. JEFFORDS (for himself, Mr. KENNEDY, and Mr. FEINGOLD) introduced

the following bill; which was read twice and referred to the Committee

on Health, Education, Labor, and Pensions

A BILL

To amend the Age Discrimination in Employment Act of

1967 to require, as a condition of receipt of Federal

funding, that States waive immunity to suit for certain

violations of that Act, and to affirm the availability of

certain suits for injunctive relief to ensure compliance

with that Act.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Older Workers Rights

5 Restoration Act of 2000’’.
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1 SEC. 2. FINDINGS.

2 Congress finds the following:

3 (1) Since 1974, the Age Discrimination in Em4 ployment Act of 1967 (29 U.S.C. 621 et seq.) has

5 prohibited States from discriminating in employment

6 on the basis of age. In EEOC v. Wyoming, 460 U.S.

7 226 (1983), the Supreme Court upheld Congress’

8 constitutional authority to prohibit States from dis9 criminating in employment on the basis of age. The

10 prohibitions of the Age Discrimination in Employ11 ment Act of 1967 remain in effect and continue to

12 apply to the States, as the prohibitions have for

13 more than 25 years.

14 (2) Age discrimination in employment remains

15 a serious problem both nationally and among State

16 agencies, and has invidious effects on its victims, the

17 labor force, and the economy as a whole. For exam18 ple, age discrimination in employment—

19 (A) increases the risk of unemployment

20 among older workers, who will as a result be

21 more likely to be dependent on government re22 sources;

23 (B) prevents the best use of available labor

24 resources;

25 (C) adversely effects the morale and pro26 ductivity of older workers; and
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1 (D) perpetuates unwarranted stereotypes

2 about the abilities of older workers.

3 (3) Private civil suits by the victims of employ4 ment discrimination have been a crucial tool for en5 forcement of the Age Discrimination in Employment

6 Act of 1967 since the enactment of that Act. In

7 Kimel v. Florida Board of Regents, 120 S. Ct. 631

8 (2000), however, the Supreme Court held that Con9 gress lacks the power under the 14th amendment to

10 abrogate State sovereign immunity to suits by indi11 viduals under the Age Discrimination in Employ12 ment Act of 1967. The Federal Government has an

13 important interest in ensuring that Federal funds

14 are not used to facilitate violation of, the Age Dis15 crimination in Employment Act of 1967. Private

16 civil suits are a critical tool for advancing that inter17 est.

18 (4) As a result of the Kimel decision, although

19 age-based discrimination by State employers remains

20 unlawful, the victims of such discrimination lack im21 portant remedies for vindication of their rights that

22 are available to all other employees covered under

23 the Act, including employees in the private sector, of

24 local government, and of the Federal Government.

25 Unless a State chooses to waive sovereign immunity,
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1 or the Equal Employment Opportunity Commission

2 brings an action on their behalf, State employees

3 victimized by violations of the Age Discrimination in

4 Employment Act of 1967 have no adequate Federal

5 remedy for violations of the Act. In the absence of

6 the deterrent effect that such remedies provide,

7 there is a greater likelihood that entities carrying

8 out federally funded programs and activities will use

9 Federal funds to violate the Act, or that the Federal

10 funds will otherwise subsidize or facilitate violations

11 of the Act.

12 (5) Federal law has long treated nondiscrimina13 tion obligations as a core component of programs or

14 activities that are, in whole or part, assisted by Fed15 eral funds. Federal funds should not be used, di16 rectly or indirectly, to subsidize invidious discrimina17 tion. Assuring nondiscrimination in employment is a

18 crucial aspect of assuring nondiscrimination in those

19 programs and activities.

20 (6) Discrimination on the basis of age in feder21 ally assisted programs or activities is, in contexts

22 other than employment, forbidden by the Age Dis23 crimination Act of 1975 (42 U.S.C. 6101 et seq.).

24 Congress determined that it was not necessary for

25 the Age Discrimination Act of 1975 to apply to em-
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1 ployment discrimination because the Age Discrimi2 nation in Employment Act of 1974 already forbade

3 discrimination in employment by, and authorized

4 suits against, State agencies and other entities that

5 receive Federal funds. In section 1003 of the Reha6 bilitation Act Amendments of 1986 (42 U.S.C.

7 2000d–7), Congress required all State recipients of

8 Federal assistance to waive any immunity from suit

9 for discrimination claims arising under the Age Dis10 crimination Act of 1975. The earlier limitation in

11 the Age Discrimination Act of 1975, originally in12 tended only to avoid duplicative coverage and rem13 edies, has in the wake of the Kimel decision become

14 a serious loophole leaving millions of State employ15 ees without an important Federal remedy for age

16 discrimination resulting in the use of such funds to

17 subsidize or facilitate violations of the Age Discrimi18 nation in Employment Act of 1967.

19 (7) The Supreme Court has upheld Congress’

20 authority to condition receipt of Federal funds on

21 acceptance by the States or other recipients of con22 ditions regarding or related to the use of those

23 funds, as in Cannon v. University of Chicago, 441

24 U.S. 677 (1979). The Court has further recognized

25 that Congress may require a State, as a condition of
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1 receipt of Federal assistance, to waive the State’s

2 sovereign immunity to suits for a violation of Fed3 eral law, as in College Savings Bank v. Florida Pre4 paid Postsecondary Education Expense Board, 527

5 U.S. 666 (1999). In the wake of the Kimel decision,

6 in order to assure compliance with, and to provide

7 effective remedies for violations of, the Age Dis8 crimination in Employment Act of 1967 in State

9 programs or activities receiving Federal assistance,

10 and in order to ensure that Federal funds do not

11 subsidize or facilitate violations of the Age Discrimi12 nation in Employment Act of 1967, it is necessary

13 to require such a waiver as a condition of receipt

14 of that Federal financial assistance.

15 (8) The waiver resulting from the acceptance of

16 Federal funds by 1 State program or activity under

17 this Act will not eliminate a State’s immunity with

18 respect to other programs or activities that do not

19 receive Federal funds; a State waives sovereign im20 munity only with respect to Age Discrimination in

21 Employment Act of 1967 suits brought by employees

22 within the programs or activities that receive such

23 funds. With regard to those programs and activities

24 that are covered by the waiver, the State employees

25 will be accorded only the same remedies that were
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1 available to State employees under the Age Discrimi2 nation in Employment Act of 1967 before Kimel and

3 that are accorded to all other covered employees

4 under the Act.

5 (9) The Supreme Court has repeatedly held

6 that State sovereign immunity does not bar suits for

7 prospective injunctive relief brought against State

8 officials, as in ex parte Young, 209 U.S. 123 (1908).

9 Clarification of the language of the Age Discrimina10 tion in Employment Act of 1967 will confirm that

11 the Act authorizes such suits. The injunctive relief

12 available in such suits will continue to be no broader

13 than the injunctive relief that was available under

14 the Act before the Kimel decision, and that is avail15 able to all other employees under that Act.

16 SEC. 3. PURPOSES.

17 The purposes of this Act are—

18 (1) to provide to State employees in federally

19 assisted programs or activities the same rights and

20 remedies for practices violating the Age Discrimina21 tion in Employment Act of 1967 as are available to

22 other employees under that Act, and that were avail23 able to State employees prior to the Supreme

24 Court’s decision in Kimel v. Florida Board of Re25 gents, 120 S. Ct. 631 (2000);
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1 (2) to provide that the receipt of Federal fund2 ing for use in a program or activity constitutes a

3 State waiver of sovereign immunity from suits by

4 employees within that program or activity for viola5 tions of the Age Discrimination in Employment Act

6 of 1967; and

7 (3) to affirm that suits for equitable relief are

8 available against State officials in their official ca9 pacities for violations of the Age Discrimination in

10 Employment Act of 1967.

11 SEC. 4. REMEDIES FOR STATE EMPLOYEES.

12 Section 7 of the Age Discrimination in Employment

13 Act of 1967 (29 U.S.C. 626) is amended by adding at

14 the end the following:

15 ‘‘(g)(1)(A) A State’s receipt or use of Federal finan16 cial assistance in any program or activity of a State shall

17 constitute a waiver of sovereign immunity, under the 11th

18 amendment to the Constitution or otherwise, to a suit

19 brought by an employee of that program or activity under

20 this Act for equitable, legal, or other relief authorized

21 under this Act.

22 ‘‘(B) In this paragraph, the term ‘program or activ23 ity’ has the meaning given the term in section 309 of the

24 Age Discrimination Act of 1975 (42 U.S.C. 6107).
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1 ‘‘(2) An official of a State may be sued in the official

2 capacity of the official by any employee who has complied

3 with the procedures of subsections (d) and (e), for equi4 table relief that is authorized under this Act. In such a

5 suit the court may award to the prevailing party those

6 costs authorized by section 722 of the Revised Statutes

7 (42 U.S.C. 1988).’’.

8 SEC. 5. SEVERABILITY.

9 If any provision of this Act, an amendment made by

10 this Act, or the application of such provision or amend11 ment to any person or circumstance is held to be unconsti12 tutional, the remainder of this Act, the amendments made

13 by this Act, and the application of such provision or

14 amendment to another person or circumstance shall not

15 be affected.

16 SEC. 6. EFFECTIVE DATE.

17 (a) WAIVER OF SOVEREIGN IMMUNITY.—With re18 spect to a particular program or activity, section 7(g)(1)

19 of the Age Discrimination in Employment Act of 1967 (29

20 U.S.C. 626(g)(1)) applies to conduct occurring on or after

21 the day, after the date of enactment of this Act, on which

22 a State first receives Federal financial assistance for use

23 in that program or activity.

24 (b) SUITS AGAINST OFFICIALS.—Section 7(g)(2) of

25 the Age Discrimination in Employment Act of 1967 (29
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1 U.S.C. 626(g)(2)) applies to any suit pending on or after

2 the date of enactment of this Act.

Æ