I 

116TH CONGRESS 

2D SESSION H. R. 8698 

To amend the Civil Rights Act of 1964 to clarify that disparate impacts 

on certain populations constitute a sufficient basis for rights of action 

under such Act, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 27, 2020 

Ms. TLAIB (for herself, Mr. KENNEDY, and Ms. HAALAND) introduced the following bill; which was referred to the Committee on the Judiciary, and 

in addition to the Committee on Education and Labor, for a period to 

be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee 

concerned 

A BILL 

To amend the Civil Rights Act of 1964 to clarify that disparate impacts on certain populations constitute a sufficient basis for rights of action under such Act, 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 ‘‘Justice for All Act 

5 of 2020’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) This Act is made necessary by a decision of 

4 the Supreme Court in Alexander v. Sandoval, 532 

5 U.S. 275 (2001) that significantly impairs statutory 

6 protections against discrimination that Congress has 

7 erected over a period of almost 4 decades. The 

8 Sandoval decision undermines these statutory pro9 tections by stripping victims of discrimination (de10 fined under regulations that Congress required Fed11 eral departments and agencies to promulgate to im12 plement title VI of the Civil Rights Act of 1964 (42 

13 U.S.C. 2000d et seq.)) of the right to bring action 

14 in Federal court to redress the discrimination. 

15 (2) The Sandoval decision contradicts settled 

16 expectations created by title VI of the Civil Rights 

17 Act of 1964, title IX of the Education Amendments 

18 of 1972 (also known as the ‘‘Patsy Takemoto Mink 

19 Equal Opportunity in Education Act’’) (20 U.S.C. 

20 1681 et seq.), the Age Discrimination Act of 1975 

21 (42 U.S.C. 6101 et seq.), and section 504 of the Re22 habilitation Act of 1973 (29 U.S.C. 794) (collec23 tively referred to in this Act as the ‘‘covered civil 

24 rights provisions’’). The covered civil rights provi25 sions were designed to establish and make effective 

26 the rights of persons to be free from discrimination 


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1 on the part of entities that are subject to 1 or more 

2 of the covered civil rights provisions, as appropriate 

3 (referred to in this Act as ‘‘covered entities’’). In 

4 1964 Congress adopted title VI of the Civil Rights 

5 Act of 1964 to ensure that Federal dollars would not 

6 be used to subsidize or support programs or activi7 ties that discriminated on racial, color, or national 

8 origin grounds. In the years that followed, Congress 

9 extended these protections by enacting laws barring 

10 discrimination in federally funded education activi11 ties on the basis of sex in title IX of the Education 

12 Amendments of 1972, and discrimination in feder13 ally funded activities on the basis of age in the Age 

14 Discrimination Act of 1975 and disability in section 

15 504 of the Rehabilitation Act of 1973. 

16 (3) All of the statutes cited in this section were 

17 designed to protect persons subject to discrimina18 tion. As Congress has consistently recognized, effec19 tive enforcement of the statutes and protection of 

20 the rights guaranteed under the statutes depend 

21 heavily on the efforts of private attorneys general. 

22 Congress acknowledged that it could not secure com23 pliance solely through administrative efforts and en24 forcement actions initiated by the Attorney General. 


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1 Newman v. Piggie Park Enterprises, 390 U.S. 400 

2 (1968) (per curiam). 

3 (4) The Supreme Court has made it clear that 

4 individuals suffering discrimination under these stat5 utes have a private right of action in the Federal 

6 courts, and that this is necessary for effective pro7 tection of the law, although Congress did not make 

8 such a right of action explicit in the statute involved. 

9 Cannon v. University of Chicago, 441 U.S. 677 

10 (1979). 

11 (5) Furthermore, for effective enforcement of 

12 the statutes cited in this section, it is necessary that 

13 the private right of action include a means to chal14 lenge all forms of discrimination that are prohibited 

15 by the statutes, including practices that have a dis16 parate impact and are not justified as necessary to 

17 achieve the legitimate goals of programs or activities 

18 supported by Federal financial assistance. 

19 (6) By reinstating a private right of action to 

20 challenge disparate impact discrimination under title 

21 VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 

22 et seq.) and confirming that right for other civil 

23 rights statutes, Congress is not acting in a manner 

24 that would expose covered entities to unfair findings 

25 of discrimination. The legal standard for a disparate 


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1 impact claim has never been structured so that a 

2 finding of discrimination could be based on numer3 ical imbalance alone. 

4 (7) In contrast, a failure to reinstate or confirm 

5 a private right of action would leave vindication of 

6 the rights to equality of opportunity solely to Fed7 eral agencies. Action by Congress to specify a pri8 vate right of action is necessary to ensure that per9 sons will have a remedy if they are denied equal ac10 cess to education, housing, health, environmental 

11 protection, transportation, and many other programs 

12 and services by practices of covered entities that re13 sult in discrimination. 

14 (8) As a result of the Supreme Court’s decision 

15 in Sandoval, courts have dismissed numerous claims 

16 brought under the regulations promulgated pursuant 

17 to title VI of the Civil Rights Act of 1964 (42 

18 U.S.C. 2000d et seq.) that challenged actions with 

19 an unjustified discriminatory effect. Although the 

20 Sandoval Court did not address title IX of the Edu21 cation Amendments of 1972 (20 U.S.C. 1681 et 

22 seq.), lower courts have similarly dismissed claims 

23 under such title. 

24 (9) Section 504 of the Rehabilitation Act of 

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1 ment by the Supreme Court. In Alexander v. Choate, 

2 469 U.S. 287 (1985), the Court proceeded on the 

3 assumption that the statute itself prohibited some 

4 actions that had a disparate impact on disabled indi5 viduals—an assumption borne out by congressional 

6 statements made during passage of the Act. In 

7 Sandoval, the Court appeared to accept this prin8 ciple of Alexander. Moreover, the Supreme Court ex9 plicitly recognized congressional approval of the reg10 ulations promulgated to implement section 504 of 

11 the Rehabilitation Act of 1973 in Consolidated Rail 

12 Corp. v. Darrone, 465 U.S. 624, 634 (1984). Rely13 ing on the validity of the regulations, Congress in14 corporated the regulations into the statutory require15 ments of section 204 of the Americans with Disabil16 ities Act of 1990 (42 U.S.C. 12134). Nonetheless, 

17 Sandoval creates the potential for uncertainty in the 

18 application of critical protections of Section 504, 

19 particularly in the lower courts. 

20 (10) The right to maintain a private right of 

21 action under a provision added to a statute under 

22 this Act will be effectuated by a waiver of sovereign 

23 immunity in the same manner as sovereign immu24 nity is waived under the remaining provisions of that 

25 statute. 


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1 (11) Numerous provisions of Federal law ex2 pressly prohibit discrimination on the basis of sex, 

3 and Federal agencies and courts have correctly in4 terpreted these prohibitions on sex discrimination to 

5 include discrimination based on sexual orientation, 

6 gender identity, and sex stereotypes. In particular, 

7 the Equal Employment Opportunity Commission 

8 correctly interpreted title VII of the Civil Rights Act 

9 of 1964 in Macy v. Holder, Baldwin v. Foxx, and 

10 Lusardi v. McHugh. 

11 (12) In forbidding discrimination based on sex, 

12 Congress intended to strike at the entire spectrum 

13 of disparate treatment resulting from sex-related 

14 characteristics. The Supreme Court correctly recog15 nized in Price Waterhouse v. Hopkins and Oncale v. 

16 Sundowner Offshore Services that among these char17 acteristics are sex-stereotypes, including masculinity 

18 and femininity. Congress reaffirmed in the Preg19 nancy Discrimination Act of 1978 that discrimina20 tion on the basis of ‘‘sex’’ includes but is not limited 

21 to discrimination on the basis of ‘‘pregnancy, child22 birth, or related medical conditions.’’ 

23 (13) The absence of explicit prohibitions of dis24 crimination on the basis of sexual orientation and 

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1 ated uncertainty for employers and other entities 

2 covered by Federal nondiscrimination laws and 

3 caused unnecessary hardships for LGBTQ individ4 uals. 

5 (14) The Supreme Court correctly recognized in 

6 Hobby Lobby v. Burwell that the Religious Freedom 

7 Restoration Act of 1993 (RFRA) ‘‘provides no . . . 

8 shield’’ to those who ‘‘cloak’’ discrimination as ‘‘reli9 gious practice to escape legal sanction.’’ This Act re10 affirms that crucial limitation on RFRA, that Con11 gress did not intend for it to be used—and indeed 

12 it cannot be used—to provide a defense against alle13 gations of discrimination on the basis of any pro14 tected trait. 

15 (15) Chapter 1 of title 9, United States Code 

16 (commonly known as the ‘‘Federal Arbitration 

17 Act’’), represented an exercise of legislative power 

18 that required courts to recognize private voluntary 

19 agreements to arbitrate commercial disputes at a 

20 time when the courts were refusing to do so on 

21 grounds that arbitration represented a usurpation of 

22 the authority of the courts to resolve legal disputes. 

23 (16) The Federal Arbitration Act did not, and 

24 should not have been interpreted to, supplant or nul25 lify the legislatively created rights and remedies that 


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1 Congress, exercising its power under article I of the 

2 Constitution of the United States, has granted to 

3 the people of the United States for resolving dis4 putes in State and Federal courts. 

5 (17) Recent court decisions, including AT&T 

6 Mobility LLC v. Concepcion, 563 U.S. 333 (2011) 

7 and American Express Co. v. Italian Colors Res8 taurant, 133 S. Ct. 2304 (2013), have interpreted 

9 the Federal Arbitration Act to broadly preempt 

10 rights and remedies established under substantive 

11 State and Federal law. As a result, these decisions 

12 have enabled business entities to avoid or nullify 

13 legal duties created by congressional enactment, re14 sulting in millions of people in the United States 

15 being unable to vindicate their rights in State and 

16 Federal courts. 

17 (18) States have a compelling interest in enact18 ing rights and remedies to protect the welfare of 

19 their citizens, and the Federal Arbitration Act 

20 should not be, and should not have been, interpreted 

21 to preempt State legislation that enacted rights and 

22 remedies to protect the welfare of their citizens. 

23 (19) The Supreme Court misinterpreted Title 

24 VII of the Civil Rights Act in establishing the 

25 Faragher-Ellerth affirmative defense in Faragher v. 


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1 City of Boca Raton and Burlington Industries, Inc. 

2 v. Ellerth. This affirmative defense often leaves vic3 tims of sexual harassment with no remedy or re4 course after incidence of sexual or other harassment. 

5 Violations of the law, and injuries to a victim and 

6 their rights, are not cured by the existence of an 

7 anti-harassment policy or the lack of future harm, 

8 and in a hostile work environment taking preventa9 tive measures is not a requirement that falls on the 

10 victim. 

11 (20) Bringing a lawsuit to vindicate civil rights 

12 is financially risky, and law firms, whether large or 

13 small, are unlikely to take such cases on. Congress 

14 enacted the Civil Rights Attorney’s Fees Award Act 

15 of 1976 in order to make lawsuits to vindicate civil 

16 rights more accessible to potential plaintiffs. The 

17 Supreme Court correctly recognized in City of River18 side v. Rivera that the effectuation of congressional 

19 intent requires viable civil rights lawsuits, which are 

20 dependent on the availability of private enforcement 

21 mechanisms and the corresponding availability of at22 torney’s fees. 

23 (21) However, the Supreme Court incorrectly 

24 held that the ‘‘catalyst theory’’ is not a permissible 

25 basis for the award of attorney’s fees in Buckhannon 


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1 v. West Virginia Department of Health & Human 

2 Resources. In doing so, the Court deprived plaintiffs 

3 who effectively win a lawsuit through a settlement, 

4 from receiving pre-trial attorney’s fees. Congress en5 acted fee-shifting provisions in civil rights laws to 

6 encourage private enforcement of those laws, and 

7 fees must be awarded when a lawsuit vindicates the 

8 rights Congress sought to secure. In disapproving of 

9 the ‘‘catalyst theory’’ the Court incentivized poten10 tial defendants to draw out the pre-trial process and 

11 settle at the last second, making the lawsuit too ex12 pensive for the average victim to undertake and too 

13 risky for the average attorney to accept a civil rights 

14 case. 

15 (22) The Civil Rights Act of 1964, and other 

16 civil rights laws that followed it, were written, in 

17 part, to banish rampant disparate treatment on the 

18 basis of race from American society. Congress 

19 sought to overcome the pervasive, racist ideology 

20 that Black traits were inferior by prohibiting dis21 crimination, and intended the Act to be interpreted 

22 broadly—encompassing race and all its attributes, 

23 especially those traits historically associated with 

24 race. 


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1 (23) ‘‘Blackness’’ and its associated physical 

2 traits, such as dark skin and kinky and curly hair, 

3 have too often been equated with inferiority and 

4 ‘‘unprofessionalism’’. Professionalism was, and still 

5 is, closely linked to European features and manner6 isms, which entails that those who do not naturally 

7 fall into Eurocentric norms must alter their appear8 ances, sometimes drastically and permanently, in 

9 order to be deemed professional. Such norms are, on 

10 their face, proxies for race. 

11 (24) Federal courts have correctly interpreted, 

12 e.g. that Title VII of the Civil Rights Act of 1964 

13 prohibits discrimination on the basis of race, and 

14 thus protect individuals from discrimination against 

15 afros. However, the courts have yet to accept that 

16 the Act outlaws dress codes and grooming policies 

17 that prohibit any natural presentation of Black hair, 

18 including afros, braids, twists, and locks. Although 

19 purportedly ‘‘race-neutral’’, these policies have a dis20 parate impact on Black individuals as they are more 

21 likely to deter, burden, or punish Black individuals 

22 than any other group. Therefore, hair discrimination 

23 targeting hairstyles associated with race is racial dis24 crimination. 


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1 SEC. 3. PROHIBITED DISCRIMINATION. 

2 (a) CIVIL RIGHTS ACT OF 1964.—Section 601 of the 

3 Civil Rights Act of 1964 (42 U.S.C. 2000d) is amended— 

4 (1) by striking ‘‘No’’ and inserting ‘‘(a) No’’; 

5 (2) by inserting ‘‘religion, sex (as such term is 

6 defined in section 208),’’ before ‘‘or national origin’’; 

7 and 

8 (3) by adding at the end the following: 

9 ‘‘(b)(1)(A) Discrimination (including exclusion from 

10 participation and denial of benefits) based on disparate 

11 impact is established under this title only if— 

12 ‘‘(i) a person aggrieved by discrimination on the 

13 basis of race, color, sex (as defined in section 208), 

14 or national origin (referred to in this title as a ‘per15 son aggrieved’) demonstrates that an entity subject 

16 to this title (referred to in this title as a ‘covered en17 tity’) has a policy or practice that causes a disparate 

18 impact on the basis of race, color, sex (as such term 

19 is defined in section 208), or national origin and the 

20 covered entity fails to demonstrate that the chal21 lenged policy or practice is related to and necessary 

22 to achieve the nondiscriminatory goals of the pro23 gram or activity alleged to have been operated in a 

24 discriminatory manner; or 

25 ‘‘(ii) the person aggrieved demonstrates (con26 sistent with the demonstration required under title 


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1 VII with respect to an ‘alternative employment prac2 tice’) that a less discriminatory alternative policy or 

3 practice exists, and the covered entity refuses to 

4 adopt such alternative policy or practice. 

5 ‘‘(B)(i) With respect to demonstrating that a par6 ticular policy or practice causes a disparate impact as de7 scribed in subparagraph (A)(i), the person aggrieved shall 

8 demonstrate that each particular challenged policy or 

9 practice causes a disparate impact, except that if the per10 son aggrieved demonstrates to the court that the elements 

11 of a covered entity’s decisionmaking process are not capa12 ble of separation for analysis, the decisionmaking process 

13 may be analyzed as 1 policy or practice. 

14 ‘‘(ii) If the covered entity demonstrates that a specific 

15 policy or practice does not cause the disparate impact, the 

16 covered entity shall not be required to demonstrate that 

17 such policy or practice is necessary to achieve the goals 

18 of its program or activity. 

19 ‘‘(2) A demonstration that a policy or practice is nec20 essary to achieve the goals of a program or activity may 

21 not be used as a defense against a claim of intentional 

22 discrimination under this title. 

23 ‘‘(3) In this subsection, the term ‘demonstrates’ 

24 means meets the burdens of production and persuasion.’’. 


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1 (b) EDUCATION AMENDMENTS OF 1972.—Section 

2 901 of the Education Amendments of 1972 (20 U.S.C. 

3 1681) is amended— 

4 (1) by redesignating subsection (c) as sub5 section (e); and 

6 (2) by inserting after subsection (b) the fol7 lowing: 

8 ‘‘(c)(1)(A) Subject to the conditions described in 

9 paragraphs (1) through (9) of subsection (a), discrimina10 tion (including exclusion from participation and denial of 

11 benefits) based on disparate impact is established under 

12 this title only if— 

13 ‘‘(i) a person aggrieved by discrimination on the 

14 basis of sex (as such term is defined in section 208 

15 of the Civil Rights Act of 1964) (referred to in this 

16 title as a ‘person aggrieved’) demonstrates that an 

17 entity subject to this title (referred to in this title as 

18 a ‘covered entity’) has a policy or practice that 

19 causes a disparate impact on the basis of sex and 

20 the covered entity fails to demonstrate that the chal21 lenged policy or practice is related to and necessary 

22 to achieve the nondiscriminatory goals of the pro23 gram or activity alleged to have been operated in a 

24 discriminatory manner; or 


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1 ‘‘(ii) the person aggrieved demonstrates (con2 sistent with the demonstration required under title 

3 VII of the Civil Rights Act of 1964 (42 U.S.C. 

4 2000e et seq.) with respect to an ‘alternative em5 ployment practice’) that a less discriminatory alter6 native policy or practice exists, and the covered enti7 ty refuses to adopt such alternative policy or prac8 tice. 

9 ‘‘(B)(i) With respect to demonstrating that a par10 ticular policy or practice causes a disparate impact as de11 scribed in subparagraph (A)(i), the person aggrieved shall 

12 demonstrate that each particular challenged policy or 

13 practice causes a disparate impact, except that if the per14 son aggrieved demonstrates to the court that the elements 

15 of a covered entity’s decisionmaking process are not capa16 ble of separation for analysis, the decisionmaking process 

17 may be analyzed as 1 policy or practice. 

18 ‘‘(ii) If the covered entity demonstrates that a specific 

19 policy or practice does not cause the disparate impact, the 

20 covered entity shall not be required to demonstrate that 

21 such policy or practice is necessary to achieve the goals 

22 of its program or activity. 

23 ‘‘(2) A demonstration that a policy or practice is nec24 essary to achieve the goals of a program or activity may 


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1 not be used as a defense against a claim of intentional 

2 discrimination under this title. 

3 ‘‘(3) In this subsection, the term ‘demonstrates’ 

4 means meets the burdens of production and persuasion.’’. 

5 (c) AGE DISCRIMINATION ACT OF 1975.—Section 

6 303 of the Age Discrimination Act of 1975 (42 U.S.C. 

7 6102) is amended— 

8 (1) by striking ‘‘Pursuant’’ and inserting ‘‘(a) 

9 Pursuant’’; and 

10 (2) by adding at the end the following: 

11 ‘‘(b)(1)(A) Subject to the conditions described in sub12 sections (b) and (c) of section 304, discrimination (includ13 ing exclusion from participation and denial of benefits) 

14 based on disparate impact is established under this title 

15 only if— 

16 ‘‘(i) a person aggrieved by discrimination on the 

17 basis of age (referred to in this title as a ‘person ag18 grieved’) demonstrates that an entity subject to this 

19 title (referred to in this title as a ‘covered entity’) 

20 has a policy or practice that causes a disparate im21 pact on the basis of age and the covered entity fails 

22 to demonstrate that the challenged policy or practice 

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1 leged to have been operated in a discriminatory 

2 manner; or 

3 ‘‘(ii) the person aggrieved demonstrates (con4 sistent with the demonstration required under title 

5 VII of the Civil Rights Act of 1964 (42 U.S.C. 

6 2000e et seq.) with respect to an ‘alternative em7 ployment practice’) that a less discriminatory alter8 native policy or practice exists, and the covered enti9 ty refuses to adopt such alternative policy or prac10 tice. 

11 ‘‘(B)(i) With respect to demonstrating that a par12 ticular policy or practice causes a disparate impact as de13 scribed in subparagraph (A)(i), the person aggrieved shall 

14 demonstrate that each particular challenged policy or 

15 practice causes a disparate impact, except that if the per16 son aggrieved demonstrates to the court that the elements 

17 of a covered entity’s decisionmaking process are not capa18 ble of separation for analysis, the decisionmaking process 

19 may be analyzed as 1 policy or practice. 

20 ‘‘(ii) If the covered entity demonstrates that a specific 

21 policy or practice does not cause the disparate impact, the 

22 covered entity shall not be required to demonstrate that 

23 such policy or practice is necessary to achieve the goals 

24 of its program or activity. 


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1 ‘‘(2) A demonstration that a policy or practice is nec2 essary to achieve the goals of a program or activity may 

3 not be used as a defense against a claim of intentional 

4 discrimination under this title. 

5 ‘‘(3) In this subsection, the term ‘demonstrates’ 

6 means meets the burdens of production and persuasion.’’. 

7 (d) FAIR HOUSING ACT.—The Fair Housing Act 

8 (title VIII of the Civil Rights Act of 1968; 42 U.S.C. 3601 

9 et seq.) is amended— 

10 (1) in section 802, by adding at the end the fol11 lowing: 

12 ‘‘(p) ‘Sex’ has the meaning given such term in section 

13 208 of the Civil Rights Act of 1964. 

14 ‘‘(q) ‘Source of income’ includes— 

15 ‘‘(1) any income from a profession, occupation, 

16 or job; 

17 ‘‘(2) any form of Federal, State, or local hous18 ing assistance provided to a family or provided to a 

19 housing owner on behalf of a family, or private as20 sistance, grant, loan or rental assistance program, 

21 including low-income housing assistance certificates, 

22 rental subsidies from nongovernmental organiza23 tions, and vouchers issued under the United States 

24 Housing Act of 1937 (42 U.S.C. 1437 et seq.); 


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1 ‘‘(3) any income received during a taxable year 

2 as Social Security benefits, as defined in section 

3 86(d) of the Internal Revenue Code of 1986, or as 

4 supplemental security income benefits under title 

5 XVI of the Social Security Act (42 U.S.C. 1381 et 

6 seq.); 

7 ‘‘(4) any gift, inheritance, pension, annuity, or 

8 other consideration or benefit; 

9 ‘‘(5) any income received pursuant to court 

10 order, including spousal support and child support; 

11 ‘‘(6) any payment from a trust, guardian, or 

12 conservator; 

13 ‘‘(7) any income from the sale or pledge of 

14 property or an interest in property; and 

15 ‘‘(8) any other lawful source of income. 

16 ‘‘(r) ‘Race’, ‘color’, ‘religion’, ‘sex’, ‘sexual orienta17 tion’, ‘gender identity’, ‘handicap’, ‘familial status’, 

18 ‘source of income’, or ‘national origin’, used with respect 

19 to an individual, includes— 

20 ‘‘(1) the race, color, religion, sex, sexual ori21 entation, gender identity, handicap, familial status, 

22 source of income, or national origin, respectively, of 

23 another person with whom the individual is associ24 ated or has been associated; and 


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1 ‘‘(2) a perception or belief, even if inaccurate, 

2 concerning the race, color, religion, sex, sexual ori3 entation, gender identity, handicap, familial status, 

4 source of income, or national origin, respectively, of 

5 the individual.’’; 

6 (2) in section 804, by inserting ‘‘(as defined in 

7 section 208 of the Civil Rights Act of 1964), source 

8 of income,’’ after ‘‘sex’’ each place that term ap9 pears; 

10 (3) in section 805, by inserting ‘‘(as defined in 

11 section 208 of the Civil Rights Act of 1964), source 

12 of income,’’ after ‘‘sex’’ each place that term ap13 pears; 

14 (4) in section 806, by inserting ‘‘(as defined in 

15 section 208 of the Civil Rights Act of 1964), source 

16 of income,’’ after ‘‘sex’’; 

17 (5) in section 807 (42 U.S.C. 3607), by adding 

18 at the end the following: 

19 ‘‘(c) Nothing in this title shall be construed to— 

20 ‘‘(1) prohibit an entity from providing housing 

21 assistance under section 8(o)(19) of the United 

22 States Housing Act of 1937 (42 U.S.C. 

23 1437f(o)(19)) in a nondiscriminatory manner; or 

24 ‘‘(2) limit the ability of the owner of a dwelling 

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1 discriminatory manner, the ability of a person to af2 ford to purchase or rent the dwelling.’’; and 

3 (6) in section 808(e)(6) (42 U.S.C. 3608(e)(6)), 

4 by inserting ‘‘source of income,’’ after ‘‘handicap,’’. 

5 (e) PREVENTION OF INTIMIDATION IN FAIR HOUS6 ING CASES.—Section 901 of the Civil Rights Act of 1968 

7 (42 U.S.C. 3631) is amended by inserting ‘‘(as such term 

8 is defined in section 208 of the Civil Rights Act of 1964), 

9 source of income (as defined in section 802),’’ after ‘‘sex’’ 

10 each place that term appears. 

11 SEC. 4. RIGHT OF RECOVERY. 

12 (a) CIVIL RIGHTS ACT OF 1964.—Title VI of the 

13 Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) is 

14 amended by inserting after section 602 the following: 

15 ‘‘SEC. 602A. ACTIONS BROUGHT BY PERSONS AGGRIEVED. 

16 ‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL

17 DISCRIMINATION.—In an action brought by a person ag18 grieved under this title against a covered entity who has 

19 engaged in unlawful intentional discrimination (not a 

20 practice that is unlawful because of its disparate impact) 

21 prohibited under this title (including its implementing reg22 ulations), the person aggrieved may recover equitable and 

23 legal relief (including compensatory and punitive dam24 ages), attorney’s fees (including expert fees), and costs, 


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1 except that punitive damages are not available against a 

2 government, government agency, or political subdivision. 

3 ‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT

4 STANDARD OF PROOF.—In an action brought by a person 

5 aggrieved under this title against a covered entity who has 

6 engaged in unlawful discrimination based on disparate im7 pact prohibited under this title (including its implementing 

8 regulations), the person aggrieved may recover equitable 

9 and legal relief (including compensatory and punitive dam10 ages), attorney’s fees (including expert fees), and costs, 

11 except that punitive damages are not available against a 

12 government, government agency, or political subdivision. 

13 ‘‘(c) SETTLEMENT.—In any settlement agreement or 

14 consent decree to resolve an action brought or which may 

15 be brought under this title, attorney’s fees of the plaintiff 

16 shall be included.’’. 

17 (b) EDUCATION AMENDMENTS OF 1972.—Title IX of 

18 the Education Amendments of 1972 (20 U.S.C. 1681 et 

19 seq.) is amended by inserting after section 902 the fol20 lowing: 

21 ‘‘SEC. 902A. ACTIONS BROUGHT BY PERSONS AGGRIEVED. 

22 ‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL

23 DISCRIMINATION.—In an action brought by a person ag24 grieved under this title against a covered entity who has 

25 engaged in unlawful intentional discrimination (not a 


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1 practice that is unlawful because of its disparate impact) 

2 prohibited under this title (including its implementing reg3 ulations), the person aggrieved may recover equitable and 

4 legal relief (including compensatory and punitive dam5 ages), attorney’s fees (including expert fees), and costs, 

6 except that punitive damages are not available against a 

7 government, government agency, or political subdivision. 

8 ‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT

9 STANDARD OF PROOF.—In an action brought by a person 

10 aggrieved under this title against a covered entity who has 

11 engaged in unlawful discrimination based on disparate im12 pact prohibited under this title (including its implementing 

13 regulations), the person aggrieved may recover equitable 

14 and legal relief (including compensatory and punitive dam15 ages), attorney’s fees (including expert fees), and costs, 

16 except that punitive damages are not available against a 

17 government, government agency, or political subdivision. 

18 ‘‘(c) SETTLEMENT.—In any settlement agreement or 

19 consent decree to resolve an action brought or which may 

20 be brought under this title, attorney’s fees of the plaintiff 

21 shall be included.’’. 

22 (c) AGE DISCRIMINATION ACT OF 1975.— 

23 (1) IN GENERAL.—Section 305 of the Age Dis24 crimination Act of 1975 (42 U.S.C. 6104) is amend25 ed by adding at the end the following: 


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1 ‘‘(g)(1) In an action brought by a person aggrieved 

2 under this title against a covered entity who has engaged 

3 in unlawful intentional discrimination (not a practice that 

4 is unlawful because of its disparate impact) prohibited 

5 under this title (including its implementing regulations), 

6 the person aggrieved may recover equitable and legal relief 

7 (including compensatory and punitive damages), attor8 ney’s fees (including expert fees), and costs, except that 

9 punitive damages are not available against a government, 

10 government agency, or political subdivision. 

11 ‘‘(2) In an action brought by a person aggrieved 

12 under this title against a covered entity who has engaged 

13 in unlawful discrimination based on disparate impact pro14 hibited under this title (including its implementing regula15 tions), the person aggrieved may recover equitable and 

16 legal relief (including compensatory and punitive dam17 ages), attorney’s fees (including expert fees), and costs, 

18 except that punitive damages are not available against a 

19 government, government agency, or political subdivision. 

20 ‘‘(3) In any settlement agreement or consent decree 

21 to resolve an action brought or which may be brought 

22 under this title, attorney’s fees of the plaintiff shall be 

23 included.’’. 

24 (2) CONFORMITY OF ADA WITH TITLE VI AND

25 TITLE IX.— 


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1 (A) ELIMINATING WAIVER OF RIGHT TO

2 FEES IF NOT REQUESTED IN COMPLAINT.—Sec3 tion 305(e)(1) of the Age Discrimination Act of 

4 1975 (42 U.S.C. 6104(e)) is amended— 

5 (i) by striking ‘‘to enjoin a violation’’ 

6 and inserting ‘‘to redress a violation’’; and 

7 (ii) by striking the second sentence 

8 and inserting the following: ‘‘The Court 

9 shall award the costs of suit, including a 

10 reasonable attorney’s fee (including expert 

11 fees), to the prevailing plaintiff.’’. 

12 (B) ELIMINATING UNNECESSARY MAN13 DATES: TO EXHAUST ADMINISTRATIVE REM14 EDIES; AND TO DELAY SUIT LONGER THAN 180

15 DAYS TO OBTAIN AGENCY REVIEW.—Section 

16 305(f) of the Age Discrimination Act of 1975 

17 (42 U.S.C. 6104(f)) is amended by striking 

18 ‘‘With respect to actions brought for relief 

19 based on an alleged violation of the provisions 

20 of this title,’’ and inserting ‘‘Actions brought 

21 for relief based on an alleged violation of the 

22 provisions of this title may be initiated in a 

23 court of competent jurisdiction, pursuant to 

24 section 305(e), or before the relevant Federal 

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1 tions brought initially before the relevant Fed2 eral department or agency,’’. 

3 (C) ELIMINATING DUPLICATIVE ‘‘REASON4 ABLENESS’’ REQUIREMENT; CLARIFYING THAT

5 ‘‘REASONABLE FACTORS OTHER THAN AGE’’ IS

6 DEFENSE TO A DISPARATE IMPACT CLAIM, NOT

7 AN EXCEPTION TO ADA COVERAGE.—Section 

8 304(b)(1) of the Age Discrimination Act of 

9 1975 (42 U.S.C. 6103(b)(1)) is amended by 

10 striking ‘‘involved—’’ and all that follows 

11 through the period and inserting ‘‘involved such 

12 action reasonably takes into account age as a 

13 factor necessary to the normal operation or the 

14 achievement of any statutory objective of such 

15 program or activity.’’. 

16 (d) REHABILITATION ACT OF 1973.—Section 504 of 

17 the Rehabilitation Act of 1973 (29 U.S.C. 794) is amend18 ed by adding at the end the following: 

19 ‘‘(e)(1) In an action brought by a person aggrieved 

20 by discrimination on the basis of disability (referred to in 

21 this section as a ‘person aggrieved’) under this section 

22 against an entity subject to this section (referred to in 

23 this section as a ‘covered entity’) who has engaged in un24 lawful intentional discrimination (not a practice that is 

25 unlawful because of its disparate impact) prohibited under 


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1 this section (including its implementing regulations), the 

2 person aggrieved may recover equitable and legal relief 

3 (including compensatory and punitive damages), attor4 ney’s fees (including expert fees), and costs, except that 

5 punitive damages are not available against a government, 

6 government agency, or political subdivision. 

7 ‘‘(2) In an action brought by a person aggrieved 

8 under this section against a covered entity who has en9 gaged in unlawful discrimination based on disparate im10 pact prohibited under this section (including its imple11 menting regulations), the person aggrieved may recover 

12 equitable and legal relief (including compensatory and pu13 nitive damages), attorney’s fees (including expert fees), 

14 and costs, except that punitive damages are not available 

15 against a government, government agency, or political 

16 subdivision. 

17 ‘‘(3) Equitable and legal relief (including compen18 satory and punitive damages), attorney’s fees (including 

19 expert fees), and costs shall be available in all cases 

20 brought for the failure to provide reasonable accommoda21 tions or reasonable modifications, or the failure to comply 

22 with requirements of effective communication, accessible 

23 design, maintenance of accessible features, or program ac24 cessibility. 


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1 ‘‘(4) In any settlement agreement or consent decree 

2 to resolve an action brought or which may be brought 

3 under this section, attorney’s fees of the plaintiff shall be 

4 included.’’. 

5 (e) FAIR HOUSING ACT.—The Fair Housing Act 

6 (title VIII of the Civil Rights Act of 1968; 42 U.S.C. 3601 

7 et seq.), as amended by this Act, is further amended by 

8 adding at the end the following: 

9 ‘‘SEC. 823. DISPARATE IMPACT. 

10 ‘‘(a) IN GENERAL.— 

11 ‘‘(1) ESTABLISHMENT.—Discrimination (includ12 ing exclusion from participation and denial of bene13 fits) based on disparate impact is established under 

14 this title only if— 

15 ‘‘(A) a person aggrieved by discrimination 

16 on the basis of race, color, sex, or national ori17 gin demonstrates that an entity subject to this 

18 title (referred to in this title as a ‘covered enti19 ty’) has a policy or practice that causes a dis20 parate impact on the basis of race, color, sex, 

21 or national origin and the covered entity fails to 

22 demonstrate that the challenged policy or prac23 tice is related to and necessary to achieve the 

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1 tivity alleged to have been operated in a dis2 criminatory manner; or 

3 ‘‘(B) the person aggrieved demonstrates 

4 that a less discriminatory alternative policy or 

5 practice exists, and the covered entity refuses to 

6 adopt such alternative policy or practice. 

7 ‘‘(2) DEMONSTRATION.— 

8 ‘‘(A) CAUSATION.—With respect to dem9 onstrating that a particular policy or practice 

10 causes a disparate impact as described in sub11 section (a)(1), the person aggrieved shall dem12 onstrate that each particular challenged policy 

13 or practice causes a disparate impact, except 

14 that if the person aggrieved demonstrates to the 

15 court that the elements of a covered entity’s de16 cisionmaking process are not capable of separa17 tion for analysis, the decisionmaking process 

18 may be analyzed as 1 policy or practice. 

19 ‘‘(B) NO REQUIREMENT TO DEM20 ONSTRATE.—If the covered entity demonstrates 

21 that a specific policy or practice does not cause 

22 the disparate impact, the covered entity shall 

23 not be required to demonstrate that such policy 

24 or practice is necessary to achieve the goals of 

25 its program or activity. 


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1 ‘‘(b) NECESSITY OF INTENTIONAL DISCRIMINATION

2 TO ACHIEVE POLICY GOALS NOT A DEFENSE.—A dem3 onstration that a policy or practice is necessary to achieve 

4 the goals of a program or activity may not be used as 

5 a defense against a claim of intentional discrimination 

6 under this title. 

7 ‘‘(c) DEFINITION.—In this section, the term ‘dem8 onstrates’ means meets the burdens of production and per9 suasion. 

10 ‘‘SEC. 824. RELIEF FOR CLAIMS BASED ON DIFFERING 

11 STANDARDS OF PROOF. 

12 ‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL

13 DISCRIMINATION.—In an action brought by a person ag14 grieved under this title against a covered entity who has 

15 engaged in unlawful intentional discrimination (not a 

16 practice that is unlawful because of its disparate impact) 

17 prohibited under this title (including its implementing reg18 ulations), the person aggrieved may recover equitable and 

19 legal relief (including compensatory and punitive dam20 ages), attorney’s fees (including expert fees), and costs, 

21 except that punitive damages are not available against a 

22 government, government agency, or political subdivision. 

23 ‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT

24 STANDARD OF PROOF.—In an action brought by a person 

25 aggrieved under this title against a covered entity who has 


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1 engaged in unlawful discrimination based on disparate im2 pact prohibited under this title (including its implementing 

3 regulations), the person aggrieved may recover equitable 

4 and legal relief (including compensatory and punitive dam5 ages), attorney’s fees (including expert fees), and costs, 

6 except that punitive damages are not available against a 

7 government, government agency, or political subdivision. 

8 ‘‘(c) RELIEF AVAILABLE.—Equitable and legal relief 

9 (including compensatory and punitive damages), attor10 ney’s fees (including expert fees), and costs shall be avail11 able in all cases brought for the failure to permit reason12 able accommodations, make reasonable modifications, or 

13 design and construct accessible dwellings as required by 

14 section 804(f)(3)(C). 

15 ‘‘(d) SETTLEMENT.—In any settlement agreement or 

16 consent decree to resolve an action brought or which may 

17 be brought under this title, attorney’s fees of the plaintiff 

18 shall be included.’’. 

19 SEC. 5. PROHIBITION ON DISCRIMINATION BY LAW EN20 FORCEMENT. 

21 (a) DEFINITIONS.—In this section— 

22 (1) The term ‘‘governmental body’’ means any 

23 department, agency, special purpose district, or 

24 other instrumentality of Federal, State, local, or In25 dian tribal government. 


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1 (2) The term ‘‘Indian tribe’’ has the meaning 

2 given the term in section 102 of the Federally Rec3 ognized Indian Tribe List Act of 1994 (25 U.S.C. 

4 479a). 

5 (3) The term ‘‘law enforcement agency’’ means 

6 any Federal, State, local, or Indian tribal govern7 mental body engaged in the prevention, detection, or 

8 investigation of violations of criminal, immigration, 

9 or customs laws. 

10 (4) The term ‘‘law enforcement agent’’ means 

11 any Federal, State, local, or Indian tribal official re12 sponsible for enforcing criminal, immigration, or 

13 customs laws, including police officers and other 

14 agents of a law enforcement agency. 

15 (5) The term ‘‘profiling’’ means the practice of 

16 a law enforcement agent or agency relying, to any 

17 degree, on actual or perceived race, ethnicity, na18 tional origin, religion, sex (as defined in section 208 

19 of the Civil Rights Act of 1964), gender identity, or 

20 sexual orientation in selecting which individual to 

21 subject to routine or spontaneous investigatory ac22 tivities or in deciding upon the scope and substance 

23 of law enforcement activity following any initial in24 vestigatory procedure, except when there is trust25 worthy information, relevant to the locality and 


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1 timeframe, that links a person with a particular 

2 characteristic described in this paragraph to an 

3 identified criminal incident or scheme. 

4 (6) The term ‘‘routine or spontaneous investiga5 tory activities’’ means the following activities by a 

6 law enforcement agent: 

7 (A) Interviews. 

8 (B) Traffic stops. 

9 (C) Pedestrian stops. 

10 (D) Frisks and other types of body 

11 searches. 

12 (E) Consensual or nonconsensual searches 

13 of the persons, property, or possessions (includ14 ing vehicles) of individuals using any form of 

15 public or private transportation, including mo16 torists and pedestrians. 

17 (F) Data collection, analysis, assessments, 

18 and predicated investigations. 

19 (G) Inspections and interviews of entrants 

20 into the United States that are more extensive 

21 than those customarily carried out. 

22 (H) Immigration-related workplace inves23 tigations. 

24 (I) Such other types of law enforcement 

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1 reau of Investigation or the Department of Jus2 tice Bureau of Justice Statistics. 

3 (7) The term ‘‘State’’ means each of the 50 

4 States, the District of Columbia, the Commonwealth 

5 of Puerto Rico, and any other territory or possession 

6 of the United States. 

7 (8) The term ‘‘unit of local government’’ 

8 means— 

9 (A) any city, county, township, town, bor10 ough, parish, village, or other general purpose 

11 political subdivision of a State; 

12 (B) any law enforcement district or judicial 

13 enforcement district that— 

14 (i) is established under applicable 

15 State law; and 

16 (ii) has the authority to, in a manner 

17 independent of other State entities, estab18 lish a budget and impose taxes; or 

19 (C) any Indian tribe that performs law en20 forcement functions, as determined by the Sec21 retary of the Interior. 

22 (b) PROHIBITION OF PROFILING.— 

23 (1) IN GENERAL.—No law enforcement agent 

24 or law enforcement agency shall engage in profiling. 

25 (2) ENFORCEMENT.— 


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1 (A) REMEDY.—The United States, or an 

2 individual injured by profiling, may enforce this 

3 title in a civil action for equitable or legal relief, 

4 filed in a State court of general jurisdiction or 

5 in a district court of the United States. 

6 (B) PARTIES.—In any action brought 

7 under this title, relief may be obtained 

8 against— 

9 (i) any governmental body that em10 ployed any law enforcement agent who en11 gaged in profiling; 

12 (ii) any agent of such body who en13 gaged in profiling; and 

14 (iii) any person with supervisory au15 thority over such agent. 

16 (C) NATURE OF PROOF.—Proof that the 

17 routine or spontaneous investigatory activities 

18 of law enforcement agents in a jurisdiction have 

19 had a disparate impact on individuals with a 

20 particular characteristic described in subsection 

21 (a)(5) shall constitute prima facie evidence of a 

22 violation of this section. 

23 (D) ATTORNEY’S FEES.—In any action or 

24 proceeding to enforce this section against any 

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1 vailing plaintiff, other than the United States, 

2 reasonable attorney’s fees as part of the costs, 

3 and may include expert fees as part of the at4 torney’s fees. 

5 SEC. 6. PUBLIC ACCOMMODATIONS. 

6 (a) PROHIBITION ON DISCRIMINATION OR SEGREGA7 TION IN PUBLIC ACCOMMODATIONS.—Section 201 of the 

8 Civil Rights Act of 1964 (42 U.S.C. 2000a) is amended— 

9 (1) in subsection (a), by inserting ‘‘sex,’’ before 

10 ‘‘or national origin’’; and 

11 (2) in subsection (b)— 

12 (A) in paragraph (3), by striking ‘‘sta13 dium’’ and all that follows and inserting ‘‘sta14 dium or other place or establishment that pro15 vides exhibition, entertainment, recreation, exer16 cise, amusement, gathering, or display;’’; 

17 (B) by redesignating paragraph (4) as 

18 paragraph (6); and 

19 (C) by inserting after paragraph (3) the 

20 following: 

21 ‘‘(4) any establishment that provides a good, 

22 service, or program, including a store, shopping cen23 ter, online retailer or service provider, salon, bank, 

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1 ment that provides health care, accounting, or legal 

2 services; 

3 ‘‘(5) any train service, bus service, car service, 

4 taxi service, airline service, station, depot, or other 

5 place of or establishment that provides transpor6 tation service; and’’. 

7 (b) PROHIBITION ON DISCRIMINATION OR SEGREGA8 TION UNDER LAW.—Section 202 of such Act (42 U.S.C. 

9 2000a–1) is amended by inserting ‘‘sex,’’ before ‘‘or na10 tional origin’’. 

11 (c) DEFINITIONS AND RULES OF CONSTRUCTION.— 

12 Title II of such Act (42 U.S.C. 2000a et seq.) is amended 

13 by adding at the end the following: 

14 ‘‘SEC. 208. DEFINITIONS AND RULES. 

15 ‘‘(a) DEFINITIONS.— 

16 ‘‘(1) RACE; COLOR; RELIGION; SEX; SEXUAL

17 ORIENTATION; GENDER IDENTITY; NATIONAL ORI18 GIN.—The term ‘race’, ‘color’, ‘religion’, ‘sex (includ19 ing sexual orientation and gender identity)’, or ‘na20 tional origin’, used with respect to an individual, in21 cludes— 

22 ‘‘(A) the race, color, religion, sex (includ23 ing sexual orientation and gender identity), or 

24 national origin, respectively, of another person 


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1 with whom the individual is associated or has 

2 been associated; 

3 ‘‘(B) a perception or belief, even if inac4 curate, concerning the race, color, religion, sex 

5 (including sexual orientation and gender iden6 tity), or national origin, respectively, of the in7 dividual; and 

8 ‘‘(C) in the case of race, traits historically 

9 associated with race, including natural hair tex10 ture and protective hairstyles. 

11 ‘‘(2) GENDER IDENTITY.—The term ‘gender 

12 identity’ means the gender-related identity, appear13 ance, mannerisms, or other gender-related character14 istics of an individual, regardless of the individual’s 

15 designated sex at birth. 

16 ‘‘(3) INCLUDING.—The term ‘including’ means 

17 including, but not limited to, consistent with the 

18 term’s standard meaning in Federal law. 

19 ‘‘(4) NATURAL HAIRSTYLES.—The term ‘nat20 ural hair’ includes— 

21 ‘‘(A) protective and natural hairstyles, 

22 which includes braids, locs, weaves, twists, 

23 afros; and 


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1 ‘‘(B) natural hair texture, which includes 

2 wavy, kinky, curl, and coily, and also the vari3 ation of texture in between. 

4 ‘‘(5) SEX.—The term ‘sex’ includes— 

5 ‘‘(A) a sex stereotype; 

6 ‘‘(B) pregnancy, childbirth, or a related 

7 medical condition; 

8 ‘‘(C) sexual orientation or gender identity; 

9 and 

10 ‘‘(D) sex characteristics, including intersex 

11 traits. 

12 ‘‘(6) SEXUAL ORIENTATION.—The term ‘sexual 

13 orientation’ means an individual’s actual or per14 ceived romantic, physical, or sexual attraction to 

15 other persons, or lack thereof, that includes hetero16 sexuality, homosexuality, and bisexuality. 

17 ‘‘(b) RULES.—In providing a remedy under this Act: 

18 ‘‘(1) In the case of any conduct alleged to be 

19 discriminatory on the basis of sex, the remedy under 

20 this Act for such conduct, to the extent it pertains 

21 to pregnancy, childbirth, or a related medical condi22 tion may not result in a less substantial remedy than 

23 any other remedy for discrimination on the basis of 

24 sex. 


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1 ‘‘(2) In the case of any conduct alleged to be 

2 discriminatory on the basis of sex (with respect to 

3 gender identity), an individual shall not be denied 

4 access to a shared facility, including a restroom, a 

5 locker room, and a dressing room, that is in accord6 ance with the individual’s gender identity. 

7 ‘‘SEC. 209. RULES OF CONSTRUCTION. 

8 ‘‘(a) CLAIMS AND REMEDIES NOT PRECLUDED.— 

9 Nothing in this title shall be construed to limit the claims 

10 or remedies available to any individual for an unlawful 

11 practice on the basis of race, color, religion, sex, or na12 tional origin including claims brought pursuant to section 

13 1979 or 1980 of the Revised Statutes (42 U.S.C. 1983, 

14 1985) or any other law, including the Federal law amend15 ed by the Customer Non-Discrimination Act, regulation, 

16 or policy. 

17 ‘‘(b) NO NEGATIVE INFERENCE.—Nothing in this 

18 title shall be construed to support any inference that any 

19 Federal law prohibiting a practice on the basis of sex does 

20 not prohibit discrimination on the basis of pregnancy, 

21 childbirth, or a related medical condition, sexual orienta22 tion, gender identity, or a sex stereotype. 

23 ‘‘(c) SCOPE OF AN ESTABLISHMENT.—A reference in 

24 this title to an establishment— 


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1 ‘‘(1) shall be construed to include an individual 

2 whose operations affect commerce and who is a pro3 vider of a good, service, or program; and 

4 ‘‘(2) shall not be construed to be limited to a 

5 physical facility or place. 

6 ‘‘SEC. 210. CLAIMS. 

7 ‘‘The Religious Freedom Restoration Act of 1993 (42 

8 U.S.C. 2000bb et seq.) shall not provide a claim con9 cerning, or a defense to a claim under this title or provide 

10 a basis for challenging the application or enforcement of 

11 this title.’’. 

12 SEC. 7. STRICT VICARIOUS EMPLOYER LIABILITY AND 

13 FARAGHER-ELLERTH AFFIRMATIVE DEFENSE 

14 REMOVED. 

15 Section 706 of the Civil Rights Act of 1964 (42 

16 U.S.C. 2000e–5 et seq.) is amended by adding at the end 

17 the following: 

18 ‘‘(l) An employer shall be liable for any act of dis19 crimination prohibited under this title (including harass20 ment, intimidation, or retaliation) committed by any of its 

21 employees. 

22 ‘‘(m) It shall not be a defense to a claim under this 

23 title or provide a basis for challenging the application or 

24 enforcement of this title— 


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1 ‘‘(1) that an employer exercised reasonable care 

2 in attempting to prevent or took corrective action re3 garding any act of discrimination on the basis of sex 

4 (including intimidation, harassment, or retaliation); 

5 ‘‘(2) that adverse employment action was not 

6 taken by such an employer; or 

7 ‘‘(3) that an employee affected by that act did 

8 not take advantage of preventive opportunities to 

9 avoid harm.’’. 

10 SEC. 8. ARBITRATION OF EMPLOYMENT, CONSUMER, AND 

11 CIVIL RIGHTS DISPUTES. 

12 (a) PURPOSES.—The purposes of this section are 

13 to— 

14 (1) prohibit predispute arbitration agreements 

15 that force arbitration of future employment, con16 sumer, or civil rights disputes; and 

17 (2) prohibit agreements and practices that 

18 interfere with the right of individuals, workers, and 

19 small businesses to participate in a joint, class, or 

20 collective action related to an employment, con21 sumer, or civil rights dispute. 

22 (b) IN GENERAL.—Title 9 of the United States Code 

23 is amended by adding at the end the following: 


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1 ‘‘CHAPTER 4—ARBITRATION OF EMPLOY2 MENT, CONSUMER, AND CIVIL RIGHTS 

3 DISPUTES 

4 ‘‘SEC. 401. DEFINITIONS. 

5 ‘‘In this chapter— 

6 ‘‘(1) the term ‘civil rights dispute’ means a dis7 pute— 

8 ‘‘(A) arising from an alleged violation of— 

9 ‘‘(i) the Constitution of the United 

10 States or the constitution of a State; and 

11 ‘‘(ii) any Federal, State, or local law 

12 that prohibits discrimination on the basis 

13 of race, sex, age, gender identity, sexual 

14 orientation, disability, religion, national or15 igin, or any legally protected status in edu16 cation, employment, credit, housing, public 

17 accommodations and facilities, voting, vet18 erans or servicemembers, health care, or a 

19 program funded or conducted by the Fed20 eral Government or State government, in21 cluding any law referred to or described in 

22 section 62(e) of the Internal Revenue Code 

23 of 1986, including parts of such law not 

24 explicitly referenced in such section but 


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1 that relate to protecting individuals on any 

2 such basis; and 

3 ‘‘(B) in which at least one party alleging a 

4 violation described in subparagraph (A) is one 

5 or more individuals (or their authorized rep6 resentative), including one or more individuals 

7 seeking certification as a class under rule 23 of 

8 the Federal Rules of Civil Procedure or a com9 parable rule or provision of State law; 

10 ‘‘(2) the term ‘consumer dispute’ means a dis11 pute between— 

12 ‘‘(A) one or more individuals who seek or 

13 acquire real or personal property, services (in14 cluding services related to digital technology), 

15 securities or other investments, money, or credit 

16 for personal, family, or household purposes in17 cluding an individual or individuals who seek 

18 certification as a class under rule 23 of the 

19 Federal Rules of Civil Procedure or a com20 parable rule or provision of State law; and 

21 ‘‘(B)(i) the seller or provider of such prop22 erty, services, securities or other investments, 

23 money, or credit; or 

24 ‘‘(ii) a third party involved in the selling, 

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1 formation about, or other relationship to any 

2 such property, services, securities or other in3 vestments, money, or credit; 

4 ‘‘(3) the term ‘employment dispute’ means a 

5 dispute between one or more individuals (or their 

6 authorized representative) and a person arising out 

7 of or related to the work relationship or prospective 

8 work relationship between them, including a dispute 

9 regarding the terms of or payment for, advertising 

10 of, recruiting for, referring of, arranging for, or dis11 cipline or discharge in connection with, such work, 

12 regardless of whether the individual is or would be 

13 classified as an employee or an independent con14 tractor with respect to such work, and including a 

15 dispute arising under any law referred to or de16 scribed in section 62(e) of the Internal Revenue 

17 Code of 1986, including parts of such law not explic18 itly referenced in such section but that relate to pro19 tecting individuals on any such basis, and including 

20 a dispute in which an individual or individuals seek 

21 certification as a class under rule 23 of the Federal 

22 Rules of Civil Procedure or as a collective action 

23 under section 16(b) of the Fair Labor Standards 

24 Act, or a comparable rule or provision of State law; 


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1 ‘‘(4) the term ‘predispute arbitration agree2 ment’ means an agreement to arbitrate a dispute 

3 that has not yet arisen at the time of the making 

4 of the agreement; and 

5 ‘‘(5) the term ‘predispute joint-action waiver’ 

6 means an agreement, whether or not part of a 

7 predispute arbitration agreement, that would pro8 hibit, or waive the right of, one of the parties to the 

9 agreement to participate in a joint, class, or collec10 tive action in a judicial, arbitral, administrative, or 

11 other forum, concerning a dispute that has not yet 

12 arisen at the time of the making of the agreement. 

13 ‘‘SEC. 402. NO VALIDITY OR ENFORCEABILITY. 

14 ‘‘(a) IN GENERAL.—Notwithstanding any other pro15 vision of this title, no predispute arbitration agreement or 

16 predispute joint-action waiver shall be valid or enforceable 

17 with respect to an employment dispute, consumer dispute, 

18 or civil rights dispute. 

19 ‘‘(b) APPLICABILITY.— 

20 ‘‘(1) IN GENERAL.—An issue as to whether this 

21 chapter applies with respect to a dispute shall be de22 termined under Federal law. The applicability of this 

23 chapter to an agreement to arbitrate and the validity 

24 and enforceability of an agreement to which this 

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1 er than an arbitrator, irrespective of whether the 

2 party resisting arbitration challenges the arbitration 

3 agreement specifically or in conjunction with other 

4 terms of the contract containing such agreement, 

5 and irrespective of whether the agreement purports 

6 to delegate such determinations to an arbitrator. 

7 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 

8 Nothing in this chapter shall apply to any arbitra9 tion provision in a contract between an employer and 

10 a labor organization or between labor organizations, 

11 except that no such arbitration provision shall have 

12 the effect of waiving the right of a worker to seek 

13 judicial enforcement of a right arising under a provi14 sion of the Constitution of the United States, a 

15 State constitution, or a Federal or State statute, or 

16 public policy arising therefrom.’’. 

17 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 

18 (1) IN GENERAL.—Title 9 of the United States 

19 Code is amended— 

20 (A) in section 1 by striking ‘‘of seamen,’’ 

21 and all that follows through ‘‘interstate com22 merce,’’ and inserting in its place ‘‘of individ23 uals, regardless of whether such individuals are 

24 designated as employees or independent con25 tractors for other purposes’’, 


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1 (B) in section 2 by inserting ‘‘or as other2 wise provided in chapter 4’’ before the period at 

3 the end, 

4 (C) in section 208— 

5 (i) in the section heading by striking 

6 ‘‘CHAPTER 1; RESIDUAL APPLICA7 TION’’ and inserting ‘‘APPLICATION’’, 

8 and 

9 (ii) by adding at the end the fol10 lowing: ‘‘This chapter applies to the extent 

11 that this chapter is not in conflict with 

12 chapter 4.’’, and 

13 (D) in section 307— 

14 (i) in the section heading by striking 

15 ‘‘CHAPTER 1; RESIDUAL APPLICA16 TION’’ and inserting ‘‘APPLICATION’’, 

17 and 

18 (ii) by adding at the end the fol19 lowing: ‘‘This chapter applies to the extent 

20 that this chapter is not in conflict with 

21 chapter 4.’’. 

22 (2) TABLE OF SECTIONS.— 

23 (A) CHAPTER 2.—The table of sections of 

24 chapter 2 of title 9, United States Code, is 


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1 amended by striking the item relating to section 

2 208 and inserting the following: 

‘‘208. Application.’’. 

3 (B) CHAPTER 3.—The table of sections of 

4 chapter 3 of title 9, United States Code, is 

5 amended by striking the item relating to section 

6 307 and inserting the following: 

‘‘307. Application.’’. 

7 (3) TABLE OF CHAPTERS.—The table of chap8 ters of title 9, United States Code, is amended by 

9 adding at the end the following: 

‘‘4. Arbitration of employment, consumer, antitrust, and civil rights disputes.’’. 

10 SEC. 9. LIABILITY OF CERTAIN GOVERNMENT OFFICIALS. 

11 In any action under Revised Statute 1979, the fol12 lowing shall apply: 

13 (1) DEFINITION OF STATE.—The term ‘‘State’’ 

14 includes any person or entity that undertakes action 

15 under color of any statute, ordinance, regulation, 

16 custom, or usage, of any State or Territory or the 

17 District of Columbia. 

18 (2) ACTION UNDER COLOR OF LAW.—A private 

19 person or entity undertakes action under color of 

20 any statute, ordinance, regulation, custom, or usage, 

21 of any State or Territory or the District of Colum22 bia, when— 


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1 (A) undertaking a public function dele2 gated by a State or local government; 

3 (B) voluntarily undertaking a public func4 tion; 

5 (C) acting in concert with a State or local 

6 government or acting in concert with an indi7 vidual officer, agent, or entity of a State or 

8 local government; 

9 (D) engaging in joint action towards a 

10 common goal or plan with a State or local gov11 ernment or engaging in joint action towards a 

12 common goal or plan with an individual officer, 

13 agent, or entity of a State or local government; 

14 (E) engaged in a conspiracy with a State 

15 or local government or engaged in a conspiracy 

16 with an individual officer, agent, or entity of a 

17 State or local government; 

18 (F) a close nexus exists between the pri19 vate person or entity and a State or local gov20 ernment or a close nexus exists between an in21 dividual officer, agent, or entity of a State or 

22 local government; 

23 (G) the activities of the private person or 

24 entity is so entwined with a State or local gov25 ernment or an individual officer, agent, or entiVerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698

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1 ty of a State or local government such that the 

2 private person or entity is fairly considered to 

3 be acting under color of law; or 

4 (H) otherwise exercises powers tradition5 ally reserved to State or local government. 

6 (3) PRESUMPTION.—A private person or entity 

7 is presumed to be acting under color of law when, 

8 pursuant to a contract or other legally binding 

9 agreement with a State or local government, the pri10 vate person or entity exercises any power of that 

11 State or local government or the private person or 

12 entity otherwise undertakes the administration, op13 erations, or other activities of: the judiciary, law en14 forcement, public education, jails or prisons, elec15 tions, municipal water services, municipal waste re16 moval, evictions, public parks, or public benefits pro17 grams. 

18 (4) NO DEFENSE OF QUALIFIED IMMUNITY.— 

19 Qualified immunity is not a defense in an action 

20 brought against any person who under color of any 

21 statute, ordinance, regulation, custom, or usage, of 

22 any State or Territory or the District of Columbia, 

23 subjects, or causes to be subjected, any citizen of the 

24 United States or other person within the jurisdiction 


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1 thereof to the deprivation of any rights, privileges, 

2 or immunities secured by the Constitution and laws. 

3 (5) RESPONDEAT SUPERIOR.—In the case of 

4 any official of any political subdivision of a State, if 

5 that official, acting under color of law, violates any 

6 provision of this Act, that official shall be amenable 

7 to any suit under this Act, and the political subdivi8 sion may be held liable for the acts of that official, 

9 whether acting in his or her official or individual ca10 pacity. 

11 SEC. 10. EXPLICIT INCLUSION OF RULEMAKINGS. 

12 Section 1003(a)(1) of the Rehabilitation Act Amend13 ments of 1986 (42 U.S.C. 2000d–7(a)(1)) is amended by 

14 inserting before the period at the end the following: ‘‘(in15 cluding the provisions of any rule made to implement any 

16 of the foregoing statutes)’’. 

17 SEC. 11. CONSTRUCTION. 

18 (a) RELIEF.—Nothing in this Act, including any 

19 amendment made by this Act, shall be construed to limit 

20 the scope of, or the relief available under, section 504 of 

21 the Rehabilitation Act of 1973 (29 U.S.C. 794), the Amer22 icans with Disabilities Act of 1990 (42 U.S.C. 12101 et 

23 seq.), or any other provision of law. 

24 (b) DEFENDANTS.—Nothing in this Act, including 

25 any amendment made by this Act, shall be construed to 


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1 limit the scope of the class of persons who may be sub2 jected to civil actions under the covered civil rights provi3 sions. 

4 (c) SEVERABILITY.—If any provision of this Act, or 

5 the application of such a provision to any person or cir6 cumstance, is held to be unconstitutional, the remainder 

7 of this Act and the application of the remaining provisions 

8 of this Act to any person or circumstance shall not be af9 fected thereby. 

10 (d) ARBITRATION.—Nothing in this Act, or the 

11 amendments made by this Act, shall be construed to pro12 hibit the use of arbitration on a voluntary basis after a 

13 dispute arises. 

14 SEC. 12. EFFECTIVE DATE. 

15 (a) IN GENERAL.—This Act, and the amendments 

16 made by this Act, take effect on the date of enactment 

17 of this Act. 

18 (b) APPLICATION.—This Act, and the amendments 

19 made by this Act, apply to all actions or proceedings pend20 ing on or after the date of enactment of this Act, and, 

21 in the case of section 8 and the amendments made there22 by, shall apply with respect to any dispute or claim that 

23 arises or accrues on or after such date. 

Æ 


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