II 

112TH CONGRESS 

2D SESSION S. 3317 

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 SENATE OF THE UNITED STATES 

JUNE 20, 2012 

Mr. FRANKEN (for himself, Mr. LEAHY, Mrs. MURRAY, Mr. HARKIN, Mr. 

WHITEHOUSE, Mr. BLUMENTHAL, Ms. MIKULSKI, Mr. SANDERS, Mrs. 

BOXER, Mr. AKAKA, Mr. COONS, Mr. INOUYE, Mr. KERRY, Mrs. SHAHEEN, Mr. BINGAMAN, Mr. BROWN of Ohio, Mrs. GILLIBRAND, Mr. 

UDALL of New Mexico, Mr. DURBIN, Mr. WYDEN, Mr. MERKLEY, Ms. 

CANTWELL, Mr. UDALL of Colorado, and Mr. LAUTENBERG) introduced 

the following bill; which was read twice and 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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Equal Employment 

3 Opportunity Restoration Act of 2012’’. 

4 SEC. 2. FINDINGS AND PURPOSE. 

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

6 (1) Congress has enacted laws to eradicate 

7 workplace discrimination and to secure equal em8 ployment opportunities for all Americans, as noted 

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

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

11 792 (1973) (stating that civil rights laws are meant 

12 ‘‘to assure equality of employment opportunities and 

13 to eliminate . . . discriminatory practices and de14 vices’’ in the workplace). 

15 (2) Workplace discrimination laws prohibit sub16 jective employment practices that operate to deny 

17 equal employment opportunities to employees, as ex18 plained in Watson v. Fort Worth Bank & Trust, 487 

19 U.S. 977 (1988), which stated that personnel deci20 sions ‘‘based on the exercise of personal judgment or 

21 the application of inherently subjective criteria’’ are 

22 unlawful when the personnel decisions have the ef23 fect of discriminating on grounds prohibited by law. 

24 (3) Class actions often have been the most ef25 fective means to enforce employment discrimination 

26 laws, as explained in East Texas Motor Freight SysVerDate Mar 15 2010 01:56 Jun 23, 2012 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3317.IS S3317

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1 tem Inc. v. Rodriguez, 431 U.S. 395 (1977) 

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

3 their very nature class suits, involving classwide 

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

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

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

7 dictates that [claims of relatively small value] pro8 ceed as a class action or not at all.’’). 

9 (4) Historically, a class action alleging employ10 ment discrimination could be maintained if the class 

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

12 leading legal treatise, William B. Rubenstein, 1 

13 Newberg on Class Actions § 3:20 (5th ed. 2011), ex14 plained, ‘‘this requirement [was] easily met in most 

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

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

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

18 this requirement had been given ‘‘permissive applica19 tion’’. 

20 (5) However, the Supreme Court recently made 

21 it more difficult for victims of discrimination to vin22 dicate claims for their rights. In Wal-Mart Stores, 

23 Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Court re24 quired ‘‘convincing proof of a companywide discrimi25 natory pay and promotion policy’’ as a prerequisite 


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1 to class certification. In a dissent in that case, Jus2 tice Ginsberg wrote that the Court’s decision ‘‘dis3 qualifies the class at the starting gate’’. 

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

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

6 employment practices, including subjective employment 

7 practices. 

8 SEC. 3. GROUP ACTIONS. 

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

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

11 ‘‘CHAPTER 182—GROUP ACTIONS 

‘‘Sec. 

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

12 ‘‘§ 4201. Group actions in certain employment dis13 crimination cases 

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

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

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

17 (42 U.S.C. 12111 et seq.), title V of the Rehabilitation 

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

19 Revised Statutes (42 U.S.C. 1981), or title II of the Ge20 netic Information Nondiscrimination Act of 2008 (42 

21 U.S.C. 2000ff et seq.) (individually referred to in this sec22 tion as a ‘covered employment statute’), 1 or more mem23 bers (collectively referred to in this section as the ‘rep24 resentative party’) of a group may sue on behalf of all 


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1 members of the group if the representative party shows, 

2 by a reasonable inference, that— 

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

4 that their joinder is impracticable; 

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

6 typical of the claims of the group the representative 

7 party seeks to represent and the representative party 

8 and the representative party’s counsel will fairly and 

9 adequately protect the interests of the group; and 

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

11 been, subject to an employment practice that has ad12 versely affected or is adversely affecting a significant 

13 portion of the group’s members. 

14 ‘‘(b) SUBJECTIVE EMPLOYMENT PRACTICES.— 

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

16 ‘subjective employment practice’ means— 

17 ‘‘(A) an employer’s policy of leaving per18 sonnel decisions to the unguided discretion of 

19 supervisors, managers, and other employees 

20 with authority to make such personnel deci21 sions; or 

22 ‘‘(B) an employment practice that com23 bines a subjective employment practice, as de24 fined in subparagraph (A), with other types of 

25 personnel decisions. 


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

2 may challenge a subjective employment practice cov3 ered by a covered employment statute in a group ac4 tion filed under this section to the same extent as 

5 the party may challenge any other employment prac6 tice covered by the covered employment statute in 

7 such an action. 

8 ‘‘(3) EXERCISE OF DISCRETION IN DIFFERENT

9 WAYS.—The fact that individual supervisors, man10 agers, or other employees with authority to make 

11 personnel decisions may exercise discretion in dif12 ferent ways in applying a subjective employment 

13 practice under the covered employment statute shall 

14 not preclude a representative party from filing a cor15 responding group action under this section. 

16 ‘‘(4) CONSIDERATION OF WRITTEN NON17 DISCRIMINATION POLICY.—In determining whether 

18 to certify a group action challenging an employment 

19 practice, the court may consider as evidence, in op20 position to certification, an employer’s written non21 discrimination policy only to the extent that the em22 ployer demonstrates that the policy has been consist23 ently and effectively used to prevent and, where nec24 essary, promptly correct discrimination against the 

25 group. 


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

2 RULES OF CIVIL PROCEDURE.— 

3 ‘‘(1) ELECTION OF PROCEDURE.—The rep4 resentative party may elect to proceed in a group ac5 tion under this section or in a class action under 

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

7 election shall occur not later than the latest date on 

8 which the representative party may petition for class 

9 certification under rule 23 of the Federal Rules of 

10 Civil Procedure. 

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

12 consistent with this section, the court shall apply the 

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

14 Federal Rules of Civil Procedure, including the re15 quirements under rule 23 regarding notice and re16 quests for exclusion, to claims brought pursuant to 

17 this section. 

18 ‘‘(3) INTERLOCUTORY APPELLATE REVIEW.— 

19 Decisions granting or denying certification of claims 

20 as group actions under this section are subject to re21 view to the same extent as orders granting or deny22 ing class certification pursuant to rule 23 of the 

23 Federal Rules of Civil Procedure. 

24 ‘‘(4) CLASS ACTION FAIRNESS ACT.—Group ac25 tions certified under this section shall be subject to 


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

2 the same extent as class actions certified pursuant 

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

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

5 this section shall be construed to create any infer6 ence regarding the standards for determining wheth7 er claims may be adjudicated together under any law 

8 other than the covered employment statutes. 

9 ‘‘(d) REMEDIES.— 

10 ‘‘(1) AVAILABILITY OF REMEDIES.—If an em11 ployer has been found liable under a covered employ12 ment statute against a group certified under this 

13 section, the court may deny a remedy available 

14 under the covered employment statute to a member 

15 of the group only if the employer demonstrates, by 

16 a preponderance of the evidence, that the member of 

17 the group would not have received the corresponding 

18 employment opportunity or benefit even in the ab19 sence of a violation of the covered employment stat20 ute. 

21 ‘‘(2) RELIEF.— 

22 ‘‘(A) IN GENERAL.—The court shall fash23 ion the most complete relief possible for mem24 bers of a prevailing group described in this secVerDate Mar 15 2010 01:56 Jun 23, 2012 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3317.IS S3317

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1 tion and shall have broad discretion in deter2 mining how to fashion that relief. 

3 ‘‘(B) EXERCISE OF DISCRETION.—In exer4 cising its discretion under this paragraph, the 

5 court shall— 

6 ‘‘(i) use such procedures as the inter7 ests of justice warrant, which procedures 

8 may include economic or statistical mod9 eling, mathematical calculation, sampling, 

10 individual adjudication, and other means 

11 the court may adopt; 

12 ‘‘(ii) consider which procedure will 

13 best ensure that members of the group will 

14 be made whole; 

15 ‘‘(iii) consider which procedure will 

16 best minimize the cost to and burden on 

17 the parties; and 

18 ‘‘(iv) consider which procedure most 

19 reliably and efficiently accounts for limita20 tions on the court’s ability to identify indi21 vidual members of the group and to meas22 ure the harm incurred by individual mem23 bers of the group.’’. 


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1 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

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

Æ 


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