II 

117TH CONGRESS 

1ST SESSION S. 2298 

To amend section 1977 of the Revised Statutes to protect equal rights 

under law. 

IN THE SENATE OF THE UNITED STATES 

JUNE 24, 2021 

Mr. BLUMENTHAL (for himself, Mr. BOOKER, and Mr. WYDEN) introduced 

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

on the Judiciary 

A BILL 

To amend section 1977 of the Revised Statutes to protect 

equal rights under law. 

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 ‘‘Economic Inclusion 

5 Civil Rights Act of 2021’’. 

6 SEC. 2. EQUAL RIGHTS. 

7 Section 1977 of the Revised Statutes (42 U.S.C. 

8 1981) is amended to read as follows: 


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1 ‘‘SEC. 1977. EQUAL RIGHTS UNDER LAW. 

2 ‘‘(a) FINDING.—Congress finds that the decisions of 

3 the Supreme Court of the United States in Comcast Corp. 

4 v. National Ass’n of African American-Owned Media, 140 

5 S. Ct. 1009 (2020), and General Building Contractors 

6 Ass’n v. Pennsylvania, 458 U.S. 375 (1982), have weak7 ened the scope and effectiveness of Federal civil rights 

8 protections. 

9 ‘‘(b) PURPOSE AND AUTHORITY.— 

10 ‘‘(1) AUTHORITY.—This section is an exercise 

11 of congressional authority under section 5 of the 

12 14th Amendment, section 2 of the 13th Amendment, 

13 and the Commerce Clause of section 8 of article I, 

14 of the Constitution of the United States. 

15 ‘‘(2) PURPOSE.—The purpose of this section is 

16 to protect civil rights, including to enact into law key 

17 portions of the concurring opinion of Justice Gins18 burg in Comcast Corp. v. National Ass’n of African 

19 American-Owned Media, 140 S. Ct. 1009 (2020), 

20 and the dissenting opinion of Justice Marshall in 

21 General Building Contractors Ass’n v. Pennsylvania, 

22 458 U.S. 375 (1982). 

23 ‘‘(c) DEFINITIONS.—In this section: 

24 ‘‘(1) DEMONSTRATES.—The term ‘dem25 onstrates’ means meets the burdens of production 

26 and persuasion. 


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1 ‘‘(2) ECONOMIC ACTIVITY.—The term ‘economic 

2 activity’ shall have the broadest meaning permissible 

3 under the Constitution, including— 

4 ‘‘(A) making, performing, and enforcing 

5 contracts; 

6 ‘‘(B) producing, consuming, browsing for, 

7 shopping for, or waiting for goods or services; 

8 ‘‘(C) soliciting, selecting, hiring, or dealing 

9 with a vendor, supplier, contractor, or subcon10 tractor; 

11 ‘‘(D) dealing with or serving (including re12 fusing to serve) a shopper, patron, or customer; 

13 ‘‘(E) accessing, processing, or granting (in14 cluding denying) access to loans, credit, bond15 ing, or insurance; and 

16 ‘‘(F) purchasing, leasing, selling, holding, 

17 or conveying real or personal property, 

18 whether the activities described in this paragraph 

19 occur on the internet, at a physical location, or 

20 through any other medium. 

21 ‘‘(3) FULL AND EQUAL BENEFIT AND ENJOY22 MENT OF ECONOMIC ACTIVITY.—The term ‘full and 

23 equal benefit and enjoyment of economic activity’ 

24 means the benefit or enjoyment, respectively, of the 

25 same benefits, privileges, advantages, preferences, 


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1 opportunities, terms, conditions, goods, services, fa2 cilities, accommodations, service and treatment, em3 ployment, and rights to make, enforce, perform, 

4 modify, and terminate contracts, and freedom from 

5 intimidation, harassment, and profiling as white citi6 zens benefit from or enjoy, respectively. 

7 ‘‘(4) INCLUDING.—The term ‘including’ means 

8 including, but not limited to, consistent with the 

9 term’s standard meaning in Federal law. 

10 ‘‘(5) SECURITY OF PERSON AND PROPERTY.— 

11 The term ‘security’, used with respect to person and 

12 property, includes protection from physical harm 

13 and a threat of harm to one’s body or property, and 

14 protection against exposure to or a disproportionate 

15 burden from the negative human health and environ16 mental impacts of pollution or an environmental 

17 hazard. 

18 ‘‘(d) STATEMENT OF EQUAL RIGHTS.—All nonWhite 

19 persons within the jurisdiction of the United States shall 

20 have the same right in every State and territory as is en21 joyed by White citizens to the full and equal benefit and 

22 enjoyment of economic activity, to security of their persons 

23 and property, to make and enforce contracts, including 

24 carrying out the contract formation process, and to sue, 

25 be parties, and give evidence, and to the full and equal 


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1 benefit of all laws and proceedings, and shall be subject, 

2 in comparison to White citizens, to like punishment, pains, 

3 penalties, taxes, licenses, and exactions of every kind, and 

4 to no other. 

5 ‘‘(e) DISCRIMINATORY EFFECTS ALSO PROHIB6 ITED.— 

7 ‘‘(1) IN GENERAL.—No person shall use a cri8 terion, method of administration, practice, or policy 

9 that has a disparate impact in violation of sub10 section (d). 

11 ‘‘(2) DEMONSTRATION.—A challenged criterion, 

12 method of administration, practice, or policy that 

13 has an impact described in paragraph (1) shall be 

14 unjustifiable unless its user demonstrates that— 

15 ‘‘(A) the use serves a legitimate purpose, 

16 which is both required by a substantial business 

17 necessity and not a pretext for discrimination; 

18 and 

19 ‘‘(B) if the complaining party proffers an 

20 alternative, that that alternative is either incon21 sistent with substantial business necessity or 

22 would produce an equal or greater disparate im23 pact on the basis of a classification protected by 

24 subsection (d). 


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1 ‘‘(3) LIMITATION ON SUBSTANTIAL BUSINESS

2 NECESSITY DEFENSE.—A demonstration that a cri3 terion, method of administration, practice, or policy 

4 is required by a substantial business necessity may 

5 not be used as a defense against a claim of inten6 tional discrimination under this section. 

7 ‘‘(f) PROTECTION AGAINST IMPAIRMENT.—All rights 

8 protected by this section are protected against impairment 

9 by nongovernmental discrimination and impairment under 

10 color of State law. 

11 ‘‘(g) BURDEN OF PROOF FOR DISCRIMINATORY

12 TREATMENT ACTIONS.— 

13 ‘‘(1) PROTECTED CLASSIFICATION.—In this 

14 subsection, the term ‘protected classification’ means 

15 a classification protected by subsection (d). 

16 ‘‘(2) DEMONSTRATION.—The equal rights guar17 anteed under subsection (d) shall be considered to be 

18 denied when the complaining party demonstrates 

19 that race or a protected classification was a moti20 vating factor for the denial of such rights even 

21 though other factors also motivated the denial. A de22 nial of equal rights guaranteed under subsection (d) 

23 may be established with comparator evidence or any 

24 other evidence that sufficiently demonstrates a deVerDate Sep 11 2014 23:12 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2298.IS S2298

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1 nial of such rights, including evidence of conduct 

2 that a reasonable person would find racially hostile. 

3 ‘‘(h) STANDING.—Any person suffering injury in fact 

4 as a result of the alleged violation of this section may 

5 bring a claim or cause of action for damages, or for equi6 table or for declaratory relief, under this section. Standing 

7 shall not be limited to victims who were parties to, or 

8 third-party beneficiaries of, a contract with the defendant. 

9 ‘‘(i) RESPONDEAT SUPERIOR LIABILITY.—Principals 

10 shall be liable for violations of this section by their agents, 

11 and local governments shall be liable for violations of this 

12 section by their employees, acting within the scope of their 

13 duties. 

14 ‘‘(j) JURY TRIAL RIGHT.—All persons within the ju15 risdiction of the United States shall have the right to en16 force a right provided under this section in a court of law 

17 and before a jury of their peers, and no joint-action waiver 

18 or pre-dispute arbitration agreement shall be valid or en19 forceable with respect to any alleged violation of this sec20 tion. 

21 ‘‘(k) STATUTE OF LIMITATIONS.—All causes of ac22 tion under this section shall be governed by the 4-year 

23 statute of limitations provided by section 1658(a) of title 

24 28, United States Code. 


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1 ‘‘(l) REMEDIATING PAST DISCRIMINATION.—Nothing 

2 in this section shall be construed to prohibit or limit a 

3 lawful effort, under a provision other than this section, 

4 to remedy the effects of discrimination that has occurred 

5 or is occurring.’’. 

6 SEC. 3. APPLICATION TO CLAIMS. 

7 This Act, and the amendment made by this Act, shall 

8 apply to all claims of violations of section 1977 of the Re9 vised Statutes that are pending on or after the date of 

10 enactment of this Act. 

11 SEC. 4. SEVERABILITY. 

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

13 this Act, or the application of such provision or amend14 ment to any person or circumstance is held to be unconsti15 tutional, the remainder of this Act, the amendments made 

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

17 amendment to any person or circumstance shall not be af18 fected thereby. 

Æ 


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