I 

114TH CONGRESS 

2D SESSION H. R. 5692 

To restore the effective use of group actions for claims arising under title 

VII of the Civil Rights Act of 1964, title I of the Americans with 

Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, 

section 1977 of the Revised Statutes, and the Genetic Information Nondiscrimination Act of 2008, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 8, 2016 

Ms. DELAURO (for herself, Mr. NADLER, Ms. NORTON, Ms. SLAUGHTER, Mr. 

CICILLINE, Ms. LEE, Mr. MCDERMOTT, Mr. SCHIFF, and Ms. JUDY CHU

of California) introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To restore the effective use of group actions for claims arising under title VII of the Civil Rights Act of 1964, 

title I of the Americans with Disabilities Act of 1990, 

title V of the Rehabilitation Act of 1973, section 1977 

of the Revised Statutes, and the Genetic Information 

Nondiscrimination Act of 2008, and for other purposes. 

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 ‘‘Equal Employment 

5 Opportunity Restoration Act of 2016’’. 

mstockstill on DSK3G9T082PROD with BILLS

2 

•HR 5692 IH

1 SEC. 2. FINDINGS AND PURPOSE. 

2 (a) FINDINGS.—Congress finds the following: 

3 (1) Congress has enacted laws to eradicate 

4 workplace discrimination and to secure equal em5 ployment opportunities for all Americans, as noted 

6 in Teamsters v. United States, 431 U.S. 324 (1977) 

7 and McDonnell Douglas Corp. v. Green, 411 U.S. 

8 792 (1973) (stating that civil rights laws are meant 

9 ‘‘to assure equality of employment opportunities and 

10 to eliminate . . . discriminatory practices and de11 vices’’ in the workplace). 

12 (2) Workplace discrimination laws prohibit sub13 jective employment practices that operate to deny 

14 equal employment opportunities to employees, as ex15 plained in Watson v. Fort Worth Bank & Trust, 487 

16 U.S. 977 (1988), which stated that personnel deci17 sions ‘‘based on the exercise of personal judgment or 

18 the application of inherently subjective criteria’’ are 

19 unlawful when the personnel decisions have the ef20 fect of discriminating on grounds prohibited by law. 

21 (3) Class actions often have been the most ef22 fective means to enforce employment discrimination 

23 laws, as explained in East Texas Motor Freight Sys24 tem Inc. v. Rodriguez, 431 U.S. 395 (1977) 

25 (‘‘[S]uits alleging . . . discrimination are often by 

26 their very nature class suits, involving classwide 

mstockstill on DSK3G9T082PROD with BILLS

3 

•HR 5692 IH

1 wrongs’’ where ‘‘[c]ommon questions of law or fact 

2 are typically present.’’) and in Eisen v. Carlisle & 

3 Jacquelin, 417 U.S. 156 (1974) (‘‘Economic reality 

4 dictates that [claims of relatively small value] pro5 ceed as a class action or not at all.’’). 

6 (4) Historically, a class action alleging employ7 ment discrimination could be maintained if the class 

8 was united by a common issue of law or fact. As a 

9 leading legal treatise, William B. Rubenstein, 1 

10 Newberg on Class Actions § 3:20 (5th ed. 2011), ex11 plained, ‘‘this requirement [was] easily met in most 

12 cases’’. As another leading treatise, Charles A. 

13 Wright et al., 7A Federal Practice and Procedure, 

14 Wright and Miller § 1763 (3rd ed. 2005), explained, 

15 this requirement had been given ‘‘permissive applica16 tion’’. 

17 (5) However, the Supreme Court recently made 

18 it more difficult for victims of discrimination to vin19 dicate claims for their rights. In Wal-Mart Stores, 

20 Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Court re21 quired ‘‘convincing proof of a companywide discrimi22 natory pay and promotion policy’’ as a prerequisite 

23 to class certification. In a dissent in that case, Jus24 tice Ginsberg wrote that the Court’s decision ‘‘dis25 qualifies the class at the starting gate’’. 

mstockstill on DSK3G9T082PROD with BILLS

4 

•HR 5692 IH

1 (b) PURPOSE.—The purpose of this Act is to restore 

2 employees’ ability to challenge, as a group, discriminatory 

3 employment practices, including subjective employment 

4 practices. 

5 SEC. 3. GROUP ACTIONS. 

6 (a) IN GENERAL.—Part VI of title 28, United States 

7 Code, is amended by adding at the end the following: 

8 ‘‘CHAPTER 182—GROUP ACTIONS 

‘‘Sec. 

‘‘4201. Group actions in certain employment discrimination cases. 

9 ‘‘§ 4201. Group actions in certain employment dis10 crimination cases 

11 ‘‘(a) GROUP ACTIONS.—In seeking relief under title 

12 VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 

13 seq.), title I of the Americans with Disabilities Act of 1990 

14 (42 U.S.C. 12111 et seq.), title V of the Rehabilitation 

15 Act of 1973 (29 U.S.C. 791 et seq.), section 1977 of the 

16 Revised Statutes (42 U.S.C. 1981), or title II of the Ge17 netic Information Nondiscrimination Act of 2008 (42 

18 U.S.C. 2000ff et seq.) (individually referred to in this sec19 tion as a ‘covered employment statute’), one or more mem20 bers (collectively referred to in this section as the ‘rep21 resentative party’) of a group may sue on behalf of all 

22 members of the group if the representative party shows, 

23 by a reasonable inference, that— 

mstockstill on DSK3G9T082PROD with BILLS

5 

•HR 5692 IH

1 ‘‘(1) the members of the group are so numerous 

2 that their joinder is impracticable; 

3 ‘‘(2) the claims of the representative party are 

4 typical of the claims of the group the representative 

5 party seeks to represent and the representative party 

6 and the representative party’s counsel will fairly and 

7 adequately protect the interests of the group; and 

8 ‘‘(3) the members of the group are, or have 

9 been, subject to an employment practice that has ad10 versely affected or is adversely affecting a significant 

11 portion of the group’s members. 

12 ‘‘(b) SUBJECTIVE EMPLOYMENT PRACTICES.— 

13 ‘‘(1) DEFINITION.—In this subsection, the term 

14 ‘subjective employment practice’ means— 

15 ‘‘(A) an employer’s policy of leaving per16 sonnel decisions to the unguided discretion of 

17 supervisors, managers, and other employees 

18 with authority to make such personnel deci19 sions; or 

20 ‘‘(B) an employment practice that com21 bines a subjective employment practice, as de22 fined in subparagraph (A), with other types of 

23 personnel decisions. 

24 ‘‘(2) CHALLENGES.—A representative party 

25 may challenge a subjective employment practice covmstockstill on DSK3G9T082PROD with BILLS

6 

•HR 5692 IH

1 ered by a covered employment statute in a group ac2 tion filed under this section to the same extent as 

3 the party may challenge any other employment prac4 tice covered by the covered employment statute in 

5 such an action. 

6 ‘‘(3) EXERCISE OF DISCRETION IN DIFFERENT

7 WAYS.—The fact that individual supervisors, man8 agers, or other employees with authority to make 

9 personnel decisions may exercise discretion in dif10 ferent ways in applying a subjective employment 

11 practice under the covered employment statute shall 

12 not preclude a representative party from filing a cor13 responding group action under this section. 

14 ‘‘(4) CONSIDERATION OF WRITTEN NON15 DISCRIMINATION POLICY.—In determining whether 

16 to certify a group action challenging an employment 

17 practice, the court may consider as evidence, in op18 position to certification, an employer’s written non19 discrimination policy only to the extent that the em20 ployer demonstrates that the policy has been consist21 ently and effectively used to prevent and, where nec22 essary, promptly correct discrimination against the 

23 group. 

24 ‘‘(c) RELATIONSHIP TO RULE 23 OF THE FEDERAL

25 RULES OF CIVIL PROCEDURE.— 

mstockstill on DSK3G9T082PROD with BILLS

7 

•HR 5692 IH

1 ‘‘(1) ELECTION OF PROCEDURE.—The rep2 resentative party may elect to proceed in a group ac3 tion under this section or in a class action under 

4 rule 23 of the Federal Rules of Civil Procedure. This 

5 election shall occur not later than the latest date on 

6 which the representative party may petition for class 

7 certification under rule 23 of the Federal Rules of 

8 Civil Procedure. 

9 ‘‘(2) RULE 23 REQUIREMENTS.—To the extent 

10 consistent with this section, the court shall apply the 

11 provisions of rule 23(c) through rule 23(h) of the 

12 Federal Rules of Civil Procedure, including the re13 quirements under rule 23 regarding notice and re14 quests for exclusion, to claims brought pursuant to 

15 this section. 

16 ‘‘(3) INTERLOCUTORY APPELLATE REVIEW.— 

17 Decisions granting or denying certification of claims 

18 as group actions under this section are subject to re19 view to the same extent as orders granting or deny20 ing class certification pursuant to rule 23 of the 

21 Federal Rules of Civil Procedure. 

22 ‘‘(4) CLASS ACTION FAIRNESS ACT.—Group ac23 tions certified under this section shall be subject to 

24 section 1332(d), section 1453, and chapter 114 to 

mstockstill on DSK3G9T082PROD with BILLS

8 

•HR 5692 IH

1 the same extent as class actions certified pursuant 

2 to rule 23 of the Federal Rules of Civil Procedure. 

3 ‘‘(5) RULE OF CONSTRUCTION.—Nothing in 

4 this section shall be construed to create any infer5 ence regarding the standards for determining wheth6 er claims may be adjudicated together under any law 

7 other than the covered employment statutes. 

8 ‘‘(d) REMEDIES.— 

9 ‘‘(1) AVAILABILITY OF REMEDIES.—If an em10 ployer has been found liable under a covered employ11 ment statute against a group certified under this 

12 section, the court may deny a remedy available 

13 under the covered employment statute to a member 

14 of the group only if the employer demonstrates, by 

15 a preponderance of the evidence, that the member of 

16 the group would not have received the corresponding 

17 employment opportunity or benefit even in the ab18 sence of a violation of the covered employment stat19 ute. 

20 ‘‘(2) RELIEF.— 

21 ‘‘(A) IN GENERAL.—The court shall fash22 ion the most complete relief possible for mem23 bers of a prevailing group described in this sec24 tion and shall have broad discretion in deter25 mining how to fashion that relief. 

mstockstill on DSK3G9T082PROD with BILLS

9 

•HR 5692 IH

1 ‘‘(B) EXERCISE OF DISCRETION.—In exer2 cising its discretion under this paragraph, the 

3 court shall— 

4 ‘‘(i) use such procedures as the inter5 ests of justice warrant, which procedures 

6 may include economic or statistical mod7 eling, mathematical calculation, sampling, 

8 individual adjudication, and other means 

9 the court may adopt; 

10 ‘‘(ii) consider which procedure will 

11 best ensure that members of the group will 

12 be made whole; 

13 ‘‘(iii) consider which procedure will 

14 best minimize the cost to and burden on 

15 the parties; and 

16 ‘‘(iv) consider which procedure most 

17 reliably and efficiently accounts for limita18 tions on the court’s ability to identify indi19 vidual members of the group and to meas20 ure the harm incurred by individual mem21 bers of the group.’’. 

22 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

23 The table of chapters for part VI of title 28, United States 

24 Code, is amended by adding at the end the following: 

‘‘182. Group actions ................................................................................. 4201’’. 

Æ 

mstockstill on DSK3G9T082PROD with BILLS