I 

110TH CONGRESS 

2D SESSION H. R. 5129 

To restore, reaffirm, and reconcile legal rights and remedies under civil 

rights statutes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 23, 2008 

Mr. LEWIS of Georgia (for himself, Mr. GEORGE MILLER of California, Mr. 

CONYERS, Mr. ANDREWS, Ms. NORTON, Mr. MCDERMOTT, Mr. 

SERRANO, Mr. MCGOVERN, Mr. WEXLER, Mr. GRIJALVA, Ms. LEE, Mr. 

FATTAH, Mr. FARR, Mr. ELLISON, Mr. HASTINGS of Florida, Ms. WOOLSEY, Mr. BERMAN, Ms. SOLIS, Ms. CORRINE BROWN of Florida, Mr. 

WYNN, Ms. DELAURO, Mr. COHEN, Mr. AL GREEN of Texas, Mrs. 

MALONEY of New York, Mr. KUCINICH, Ms. SUTTON, and Mr. CROWLEY) 

introduced the following bill; which was referred to the Committee on the 

Judiciary, and in addition to the Committees on Education and Labor 

and Transportation and Infrastructure, 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 restore, reaffirm, and reconcile legal rights and remedies 

under civil rights statutes. 

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 ‘‘Civil Rights Act of 

5 2008’’. 


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1 SEC. 2. TABLE OF CONTENTS. 

2 The table of contents for this Act is as follows: 

Sec. 1. Short title. 

Sec. 2. Table of contents. 

TITLE I—NONDISCRIMINATION IN FEDERALLY FUNDED 

PROGRAMS AND ACTIVITIES 

Subtitle A—Private Rights of Action and the Disparate Impact Standard of 

Proof 

Sec. 101. Findings. 

Sec. 102. Prohibited discrimination. 

Sec. 103. Rights of action. 

Sec. 104. Right of recovery. 

Sec. 105. Construction. 

Sec. 106. Effective date. 

Subtitle B—Harassment 

Sec. 111. Findings. 

Sec. 112. Right of recovery. 

Sec. 113. Construction. 

Sec. 114. Effective date. 

TITLE II—EMPLOYER ACCOUNTABILITY FOR DISCRIMINATION 

BASED ON MILITARY SERVICE 

Sec. 201. Amendment to the Uniformed Services Employment and Reemployment Rights Act of 1994. 

TITLE III—EMPLOYER ACCOUNTABILITY FOR AGE 

DISCRIMINATION 

Sec. 301. Short title. 

Sec. 302. Findings. 

Sec. 303. Purposes. 

Sec. 304. Remedies for State employees. 

Sec. 305. Disparate impact claims. 

Sec. 306. Effective date. 

TITLE IV—IMPROVED ACCOUNTABILITY FOR OTHER VIOLATIONS 

OF CIVIL RIGHTS AND WORKERS’ RIGHTS 

Subtitle A—Air Carrier Access Act of 1986 Amendment 

Sec. 401. Findings. 

Sec. 402. Civil action. 

Subtitle B—Prevailing Party 

Sec. 411. Short title. 

Sec. 412. Definition of prevailing party. 

Subtitle C—Arbitration 

Sec. 421. Short title. 


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Sec. 422. Amendment to Federal Arbitration Act. 

Sec. 423. Unenforceability of arbitration clauses in employment contracts. 

Sec. 424. Application of amendments. 

Subtitle D—Expert Witness Fees 

Sec. 431. Purpose. 

Sec. 432. Findings. 

Sec. 433. Effective provisions. 

Subtitle E—Equal Remedies Act of 2008 

Sec. 441. Short title. 

Sec. 442. Equalization of remedies. 

Subtitle F—Prohibitions Against Sex Discrimination 

Sec. 451. Findings. 

Sec. 452. Enhanced enforcement of equal pay requirements. 

Subtitle G—Protections for Workers 

CHAPTER 1—PROTECTION FOR UNDOCUMENTED WORKERS

Sec. 461. Findings. 

Sec. 462. Continued application of backpay remedies. 

CHAPTER 2—FAIR LABOR STANDARDS ACT AMENDMENTS

Sec. 466. Short title. 

Sec. 467. Findings. 

Sec. 468. Purposes. 

Sec. 469. Remedies for State employees. 

1 TITLE I—NONDISCRIMINATION 

2 IN FEDERALLY FUNDED PRO3 GRAMS AND ACTIVITIES 

4 Subtitle A—Private Rights of Ac5 tion and the Disparate Impact 

6 Standard of Proof 

7 SEC. 101. FINDINGS. 

8 Congress finds the following: 

9 (1) This subtitle is made necessary by a deci10 sion of the Supreme Court in Alexander v. Sandoval, 

11 532 U.S. 275 (2001) that significantly impairs statVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 utory protections against discrimination that Con2 gress has erected over a period of almost 4 decades. 

3 The Sandoval decision undermines these statutory 

4 protections by stripping victims of discrimination 

5 (defined under regulations that Congress required 

6 Federal departments and agencies to promulgate to 

7 implement title VI of the Civil Rights Act of 1964 

8 (42 U.S.C. 2000d et seq.)) of the right to bring ac9 tion in Federal court to redress the discrimination. 

10 (2) The Sandoval decision contradicts settled 

11 expectations created by title VI of the Civil Rights 

12 Act of 1964, title IX of the Education Amendments 

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

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

15 1681 et seq.), the Age Discrimination Act of 1975 

16 (42 U.S.C. 6101 et seq.), and section 504 of the Re17 habilitation Act of 1973 (29 U.S.C. 794) (collec18 tively referred to in this Act as the ‘‘covered civil 

19 rights provisions’’). The covered civil rights provi20 sions were designed to establish and make effective 

21 the rights of persons to be free from discrimination 

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

23 of the covered civil rights provisions, as appropriate 

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

25 1964 Congress adopted title VI of the Civil Rights 


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1 Act of 1964 to ensure that Federal dollars would not 

2 be used to subsidize or support programs or activi3 ties that discriminated on racial, color, or national 

4 origin grounds. In the years that followed, Congress 

5 extended these protections by enacting laws barring 

6 discrimination in federally funded education activi7 ties on the basis of sex in title IX of the Education 

8 Amendments of 1972, and discrimination in feder9 ally funded activities on the basis of age in the Age 

10 Discrimination Act of 1975 and disability in section 

11 504 of the Rehabilitation Act of 1973. 

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

13 designed to confer a benefit on persons subject to 

14 discrimination. As Congress has consistently recog15 nized, effective enforcement of the statutes and pro16 tection of the rights guaranteed under the statutes 

17 depend heavily on the efforts of private attorneys 

18 general. Congress acknowledged that it could not se19 cure compliance solely through administrative efforts 

20 and enforcement actions initiated by the Attorney 

21 General. Newman v. Piggie Park Enterprises, 390 

22 U.S. 400 (1968) (per curiam). 

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

24 individuals suffering discrimination under these stat25 utes have a private right of action in the Federal 


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1 courts, and that this is necessary for effective pro2 tection of the law, although Congress did not make 

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

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

5 (1979). 

6 (5) Furthermore, for effective enforcement of 

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

8 the private right of action include a means to chal9 lenge all forms of discrimination that are prohibited 

10 by the statutes, including practices that have a dis11 parate impact and are not justified as necessary to 

12 achieve the legitimate goals of programs or activities 

13 supported by Federal financial assistance. 

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

15 challenge disparate impact discrimination under title 

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

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

18 rights statutes, Congress is not acting in a manner 

19 that would expose covered entities to unfair findings 

20 of discrimination. The legal standard for a disparate 

21 impact claim has never been structured so that a 

22 finding of discrimination could be based on numer23 ical imbalance alone. 

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

25 a private right of action would leave vindication of 


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1 the rights to equality of opportunity solely to Fed2 eral agencies. Action by Congress to specify a pri3 vate right of action is necessary to ensure that per4 sons will have a remedy if they are denied equal ac5 cess to education, housing, health, environmental 

6 protection, transportation, and many other programs 

7 and services by practices of covered entities that re8 sult in discrimination. 

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

10 in Sandoval, courts have dismissed numerous claims 

11 brought under the regulations promulgated pursuant 

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

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

14 an unjustified discriminatory effect. Although the 

15 Sandoval Court did not address title IX of the Edu16 cation Amendments of 1972 (20 U.S.C. 1681 et 

17 seq.), lower courts have similarly dismissed claims 

18 under such title. 

19 (9) Section 504 of the Rehabilitation Act of 

20 1973 (29 U.S.C. 794) has received different treat21 ment by the Supreme Court. In Alexander v. Choate, 

22 469 U.S. 287 (1985), the Court proceeded on the 

23 assumption that the statute itself prohibited some 

24 actions that had a disparate impact on handicapped 

25 individuals—an assumption borne out by congresVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 sional statements made during passage of the Act. 

2 In Sandoval, the Court appeared to accept this prin3 ciple of Alexander. Moreover, the Supreme Court ex4 plicitly recognized congressional approval of the reg5 ulations promulgated to implement section 504 of 

6 the Rehabilitation Act of 1973 in Consolidated Rail 

7 Corp. v. Darrone, 465 U.S. 624, 634 (1984). Rely8 ing on the validity of the regulations, Congress in9 corporated the regulations into the statutory require10 ments of section 204 of the Americans with Disabil11 ities Act of 1990 (42 U.S.C. 12134). Thus it does 

12 not appear at this time that there is a risk that the 

13 private right of action to challenge disparate impact 

14 discrimination under section 504 of the Rehabilita15 tion Act of 1973 will become unavailable. 

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

17 action under a provision added to a statute under 

18 this subtitle will be effectuated by a waiver of sov19 ereign immunity in the same manner as sovereign 

20 immunity is waived under the remaining provisions 

21 of that statute. 

22 SEC. 102. PROHIBITED DISCRIMINATION. 

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

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


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

2 and 

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

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

5 participation and denial of benefits) based on disparate 

6 impact is established under this title only if— 

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

8 basis of race, color, or national origin (referred to in 

9 this title as an ‘aggrieved person’) demonstrates that 

10 an entity subject to this title (referred to in this title 

11 as a ‘covered entity’) has a policy or practice that 

12 causes a disparate impact on the basis of race, color, 

13 or national origin and the covered entity fails to 

14 demonstrate that the challenged policy or practice is 

15 related to and necessary to achieve the nondiscrim16 inatory goals of the program or activity alleged to 

17 have been operated in a discriminatory manner; or 

18 ‘‘(ii) the aggrieved person demonstrates (con19 sistent with the demonstration required under title 

20 VII with respect to an ‘alternative employment prac21 tice’) that a less discriminatory alternative policy or 

22 practice exists, and the covered entity refuses to 

23 adopt such alternative policy or practice. 

24 ‘‘(B)(i) With respect to demonstrating that a par25 ticular policy or practice causes a disparate impact as deVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 scribed in subparagraph (A)(i), the aggrieved person shall 

2 demonstrate that each particular challenged policy or 

3 practice causes a disparate impact, except that if the ag4 grieved person demonstrates to the court that the elements 

5 of a covered entity’s decisionmaking process are not capa6 ble of separation for analysis, the decisionmaking process 

7 may be analyzed as 1 policy or practice. 

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

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

10 covered entity shall not be required to demonstrate that 

11 such policy or practice is necessary to achieve the goals 

12 of its program or activity. 

13 ‘‘(2) A demonstration that a policy or practice is nec14 essary to achieve the goals of a program or activity may 

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

16 discrimination under this title. 

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

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

19 (b) EDUCATION AMENDMENTS OF 1972.—Section 

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

21 1681) is amended— 

22 (1) by redesignating subsection (c) as sub23 section (e); and 

24 (2) by inserting after subsection (b) the fol25 lowing: 


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

2 paragraphs (1) through (9) of subsection (a), discrimina3 tion (including exclusion from participation and denial of 

4 benefits) based on disparate impact is established under 

5 this title only if— 

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

7 basis of sex (referred to in this title as an ‘aggrieved 

8 person’) demonstrates that an entity subject to this 

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

10 has a policy or practice that causes a disparate im11 pact on the basis of sex and the covered entity fails 

12 to demonstrate that the challenged policy or practice 

13 is related to and necessary to achieve the non14 discriminatory goals of the program or activity al15 leged to have been operated in a discriminatory 

16 manner; or 

17 ‘‘(ii) the aggrieved person demonstrates (con18 sistent with the demonstration required under title 

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

20 2000e et seq.) with respect to an ‘alternative em21 ployment practice’) that a less discriminatory alter22 native policy or practice exists, and the covered enti23 ty refuses to adopt such alternative policy or prac24 tice. 


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1 ‘‘(B)(i) With respect to demonstrating that a par2 ticular policy or practice causes a disparate impact as de3 scribed in subparagraph (A)(i), the aggrieved person shall 

4 demonstrate that each particular challenged policy or 

5 practice causes a disparate impact, except that if the ag6 grieved person demonstrates to the court that the elements 

7 of a covered entity’s decisionmaking process are not capa8 ble of separation for analysis, the decisionmaking process 

9 may be analyzed as 1 policy or practice. 

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

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

12 covered entity shall not be required to demonstrate that 

13 such policy or practice is necessary to achieve the goals 

14 of its program or activity. 

15 ‘‘(2) A demonstration that a policy or practice is nec16 essary to achieve the goals of a program or activity may 

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

18 discrimination under this title. 

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

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

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

22 303 of the Age Discrimination Act of 1975 (42 U.S.C. 

23 6102) is amended— 

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

25 Pursuant’’; and 


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

2 ‘‘(b)(1)(A) Subject to the conditions described in sub3 sections (b) and (c) of section 304, discrimination (includ4 ing exclusion from participation and denial of benefits) 

5 based on disparate impact is established under this title 

6 only if— 

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

8 basis of age (referred to in this title as an ‘aggrieved 

9 person’) demonstrates that an entity subject to this 

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

11 has a policy or practice that causes a disparate im12 pact on the basis of age and the covered entity fails 

13 to demonstrate that the challenged policy or practice 

14 is related to and necessary to achieve the non15 discriminatory goals of the program or activity al16 leged to have been operated in a discriminatory 

17 manner; or 

18 ‘‘(ii) the aggrieved person demonstrates (con19 sistent with the demonstration required under title 

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

21 2000e et seq.) with respect to an ‘alternative em22 ployment practice’) that a less discriminatory alter23 native policy or practice exists, and the covered enti24 ty refuses to adopt such alternative policy or prac25 tice. 


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1 ‘‘(B)(i) With respect to demonstrating that a par2 ticular policy or practice causes a disparate impact as de3 scribed in subparagraph (A)(i), the aggrieved person shall 

4 demonstrate that each particular challenged policy or 

5 practice causes a disparate impact, except that if the ag6 grieved person demonstrates to the court that the elements 

7 of a covered entity’s decisionmaking process are not capa8 ble of separation for analysis, the decisionmaking process 

9 may be analyzed as 1 policy or practice. 

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

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

12 covered entity shall not be required to demonstrate that 

13 such policy or practice is necessary to achieve the goals 

14 of its program or activity. 

15 ‘‘(2) A demonstration that a policy or practice is nec16 essary to achieve the goals of a program or activity may 

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

18 discrimination under this title. 

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

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

21 SEC. 103. RIGHTS OF ACTION. 

22 (a) CIVIL RIGHTS ACT OF 1964.—Section 602 of the 

23 Civil Rights Act of 1964 (42 U.S.C. 2000d–1) is amend24 ed— 


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1 (1) by inserting ‘‘(a)’’ before ‘‘Each Federal de2 partment and agency which is empowered’’; and 

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

4 ‘‘(b) Any person aggrieved by the failure of a covered 

5 entity to comply with this title, including any regulation 

6 promulgated pursuant to this title, may bring a civil action 

7 in any Federal or State court of competent jurisdiction 

8 to enforce such person’s rights.’’. 

9 (b) EDUCATION AMENDMENTS OF 1972.—Section 

10 902 of the Education Amendments of 1972 (20 U.S.C. 

11 1682) is amended— 

12 (1) by inserting ‘‘(a)’’ before ‘‘Each Federal de13 partment and agency which is empowered’’; and 

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

15 ‘‘(b) Any person aggrieved by the failure of a covered 

16 entity to comply with this title, including any regulation 

17 promulgated pursuant to this title, may bring a civil action 

18 in any Federal or State court of competent jurisdiction 

19 to enforce such person’s rights.’’. 

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

21 305(e) of the Age Discrimination Act of 1975 (42 U.S.C. 

22 6104(e)) is amended in the first sentence of paragraph 

23 (1), by striking ‘‘this Act’’ and inserting ‘‘this title, includ24 ing a regulation promulgated to carry out this title,’’. 


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1 SEC. 104. RIGHT OF RECOVERY. 

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

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

4 amended by inserting after section 602 the following: 

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

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

7 DISCRIMINATION.—In an action brought by an aggrieved 

8 person under this title against a covered entity who has 

9 engaged in unlawful intentional discrimination (not a 

10 practice that is unlawful because of its disparate impact) 

11 prohibited under this title (including its implementing reg12 ulations), the aggrieved person may recover equitable and 

13 legal relief (including compensatory and punitive dam14 ages), attorney’s fees (including expert fees), and costs, 

15 except that punitive damages are not available against a 

16 government, government agency, or political subdivision. 

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

18 STANDARD OF PROOF.—In an action brought by an ag19 grieved person under this title against a covered entity 

20 who has engaged in unlawful discrimination based on dis21 parate impact prohibited under this title (including its im22 plementing regulations), the aggrieved person may recover 

23 equitable relief, attorney’s fees (including expert fees), and 

24 costs.’’. 

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

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


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1 seq.) is amended by inserting after section 902 the fol2 lowing: 

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

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

5 DISCRIMINATION.—In an action brought by an aggrieved 

6 person under this title against a covered entity who has 

7 engaged in unlawful intentional discrimination (not a 

8 practice that is unlawful because of its disparate impact) 

9 prohibited under this title (including its implementing reg10 ulations), the aggrieved person may recover equitable and 

11 legal relief (including compensatory and punitive dam12 ages), attorney’s fees (including expert fees), and costs, 

13 except that punitive damages are not available against a 

14 government, government agency, or political subdivision. 

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

16 STANDARD OF PROOF.—In an action brought by an ag17 grieved person under this title against a covered entity 

18 who has engaged in unlawful discrimination based on dis19 parate impact prohibited under this title (including its im20 plementing regulations), the aggrieved person may recover 

21 equitable relief, attorney’s fees (including expert fees), and 

22 costs.’’. 

23 (c) AGE DISCRIMINATION ACT OF 1975.— 


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1 (1) IN GENERAL.—Section 305 of the Age Dis2 crimination Act of 1975 (42 U.S.C. 6104) is amend3 ed by adding at the end the following: 

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

5 under this title against a covered entity who has engaged 

6 in unlawful intentional discrimination (not a practice that 

7 is unlawful because of its disparate impact) prohibited 

8 under this title (including its implementing regulations), 

9 the aggrieved person may recover equitable and legal relief 

10 (including compensatory and punitive damages), attor11 ney’s fees (including expert fees), and costs, except that 

12 punitive damages are not available against a government, 

13 government agency, or political subdivision. 

14 ‘‘(2) In an action brought by an aggrieved person 

15 under this title against a covered entity who has engaged 

16 in unlawful discrimination based on disparate impact pro17 hibited under this title (including its implementing regula18 tions), the aggrieved person may recover equitable relief, 

19 attorney’s fees (including expert fees), and costs.’’. 

20 (2) CONFORMITY OF ADA WITH TITLE vi AND

21 TITLE ix.— 

22 (A) ELIMINATING WAIVER OF RIGHT TO

23 FEES IF NOT REQUESTED IN COMPLAINT.—Sec24 tion 305(e)(1) of the Age Discrimination Act of 

25 1975 (42 U.S.C. 6104(e)) is amended— 


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

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

3 (ii) by striking the second sentence 

4 and inserting the following: ‘‘The Court 

5 shall award the costs of suit, including a 

6 reasonable attorney’s fee (including expert 

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

8 (B) ELIMINATING UNNECESSARY MAN9 DATES: TO EXHAUST ADMINISTRATIVE REM10 EDIES; AND TO DELAY SUIT LONGER THAN 180

11 DAYS TO OBTAIN AGENCY REVIEW.—Section 

12 305(f) of the Age Discrimination Act of 1975 

13 (42 U.S.C. 6104(f)) is amended by striking 

14 ‘‘With respect to actions brought for relief 

15 based on an alleged violation of the provisions 

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

17 for relief based on an alleged violation of the 

18 provisions of this title may be initiated in a 

19 court of competent jurisdiction, pursuant to 

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

21 department or agency. With respect to such ac22 tions brought initially before the relevant Fed23 eral department or agency,’’. 

24 (C) ELIMINATING DUPLICATIVE ‘‘REASON25 ABLENESS’’ REQUIREMENT; CLARIFYING THAT


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1 ‘‘REASONABLE FACTORS OTHER THAN AGE’’ IS

2 DEFENSE TO A DISPARATE IMPACT CLAIM, NOT

3 AN EXCEPTION TO ADA COVERAGE.—Section 

4 304(b)(1) of the Age Discrimination Act of 

5 1975 (42 U.S.C. 6103(b)(1)) is amended by 

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

7 through the period and inserting ‘‘involved such 

8 action reasonably takes into account age as a 

9 factor necessary to the normal operation or the 

10 achievement of any statutory objective of such 

11 program or activity.’’. 

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

13 the Rehabilitation Act of 1973 (29 U.S.C. 794) is amend14 ed by adding at the end the following: 

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

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

17 this section as an ‘aggrieved person’) under this section 

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

19 this section as a ‘covered entity’) who has engaged in un20 lawful intentional discrimination (not a practice that is 

21 unlawful because of its disparate impact) prohibited under 

22 this section (including its implementing regulations), the 

23 aggrieved person may recover equitable and legal relief 

24 (including compensatory and punitive damages), attor25 ney’s fees (including expert fees), and costs, except that 


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1 punitive damages are not available against a government, 

2 government agency, or political subdivision. 

3 ‘‘(2) In an action brought by an aggrieved person 

4 under this section against a covered entity who has en5 gaged in unlawful discrimination based on disparate im6 pact prohibited under this section (including its imple7 menting regulations), the aggrieved person may recover 

8 equitable relief, attorney’s fees (including expert fees), and 

9 costs.’’. 

10 SEC. 105. CONSTRUCTION. 

11 (a) RELIEF.—Nothing in this subtitle, including any 

12 amendment made by this subtitle, shall be construed to 

13 limit the scope of, or the relief available under, section 

14 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), 

15 the Americans with Disabilities Act of 1990 (42 U.S.C. 

16 12101 et seq.), or any other provision of law. 

17 (b) DEFENDANTS.—Nothing in this subtitle, includ18 ing any amendment made by this subtitle, shall be con19 strued to limit the scope of the class of persons who may 

20 be subjected to civil actions under the covered civil rights 

21 provisions. 

22 SEC. 106. EFFECTIVE DATE. 

23 (a) IN GENERAL.—This subtitle, and the amend24 ments made by this subtitle, take effect on the date of 

25 enactment of this Act. 


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1 (b) APPLICATION.—This subtitle, and the amend2 ments made by this subtitle, apply to all actions or pro3 ceedings pending on or after the date of enactment of this 

4 Act. 

5 Subtitle B—Harassment 

6 SEC. 111. FINDINGS. 

7 Congress finds the following: 

8 (1) As the Supreme Court has held, covered en9 tities are liable for harassment on the basis of sex 

10 under their education programs and activities under 

11 title IX of the Education Amendments of 1972 (20 

12 U.S.C. 1681 et seq.) (referred to in this subtitle as 

13 ‘‘title IX’’). Franklin v. Gwinnett County Public 

14 Schools, 503 U.S. 60, 75 (1992) (damages remedy 

15 available for harassment of student by a teacher 

16 coach); Davis v. Monroe County Board of Edu17 cation, 526 U.S. 629, 633 (1999) (authorizing dam18 ages action against school board for student-on-stu19 dent sexual harassment). 

20 (2) Courts have confirmed that covered entities 

21 are liable for harassment on the basis of race, color, 

22 or national origin under title VI of the Civil Rights 

23 Act of 1964 (42 U.S.C. 2000d et seq.) (referred to 

24 in this subtitle as ‘‘title VI’’), e.g., Bryant v. Inde25 pendent School District No. I–38, 334 F.3d 928 


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1 (10th Cir. 2003) (liability for student-on-student ra2 cial harassment). Moreover, judicial interpretation of 

3 the similarly worded Age Discrimination Act of 1975 

4 (42 U.S.C. 6101 et seq.) and section 504 of the Re5 habilitation Act of 1973 (29 U.S.C. 794) has 

6 tracked that of title VI and title IX. 

7 (3) As these courts have properly recognized, 

8 harassment on a prohibited basis under a program 

9 or activity, whether perpetrated by employees or 

10 agents of the program or activity, by peers of the 

11 victim, or by others who conduct harassment under 

12 the program or activity, is a form of unlawful and 

13 intentional discrimination that inflicts substantial 

14 harm on beneficiaries of the program or activity and 

15 violates the obligation of a covered entity to main16 tain a nondiscriminatory environment. 

17 (4) In a 5 to 4 ruling, the Supreme Court held 

18 that students subjected to sexual harassment may 

19 receive a damages remedy under title IX only when 

20 school officials have ‘‘actual notice’’ of the harass21 ment and are ‘‘deliberately indifferent’’ to it. Gebser 

22 v. Lago Vista Independent School District, 524 U.S. 

23 274 (1998). See also Davis v. Monroe County Board 

24 of Education, 526 U.S. 629 (1999). 


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1 (5) The standard delineated in Gebser and fol2 lowed in Davis has been applied by lower courts re3 garding the liability of covered entities for damages 

4 for harassment based on race, color, or national ori5 gin under title VI. E.g., Bryant v. Independent 

6 School District No. I–38, 334 F.3d 928 (10th Cir. 

7 2003). Because of the similarities in the wording 

8 and interpretation of the underlying statutes, this 

9 standard may be applied to claims for damages 

10 brought under the Age Discrimination Act of 1975 

11 (42 U.S.C. 6101 et seq.) and section 504 of the Re12 habilitation Act of 1973 (29 U.S.C. 794) as well. 

13 (6) Although they do not affect the relevant 

14 standards for individuals to obtain injunctive and 

15 equitable relief for harassment on the basis of race, 

16 color, sex, national origin, age, or disability under 

17 covered programs and activities, Gebser and its 

18 progeny severely limit the availability of remedies for 

19 such individuals by imposing new, more stringent 

20 standards for recovery of damages under title VI 

21 and title IX, and potentially under the Age Discrimi22 nation Act of 1975 and section 504 of the Rehabili23 tation Act of 1973. Yet in many cases, damages are 

24 the only remedy that would effectively rectify past 

25 harassment. 


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1 (7) As recognized by the dissenters in Gebser, 

2 these limitations on effective relief thwart Congress’s 

3 underlying purpose to protect students from harass4 ment. 

5 (8) The rulings in Gebser and its progeny cre6 ate an incentive for covered entities to insulate 

7 themselves from knowledge of harassment on the 

8 basis of race, color, sex, national origin, age, or dis9 ability rather than adopting and enforcing practices 

10 that will minimize the danger of such harassment. 

11 The rulings thus undermine the purpose of prohibi12 tions on discrimination in the civil rights laws: ‘‘to 

13 induce [covered programs or activities] to adopt and 

14 enforce practices that will minimize the danger that 

15 vulnerable students [or other beneficiaries] will be 

16 exposed to such odious behavior’’. Gebser, 524 U.S. 

17 at 300 (Stevens, J., dissenting). 

18 (9)(A) Legislative action is necessary and ap19 propriate to reverse Gebser and its progeny and re20 store the availability of a full range of remedies for 

21 harassment based on race, color, sex, national origin, 

22 age, or disability. 

23 (B) Restoring the availability of a full range of 

24 remedies for harassment will— 


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1 (i) ensure that students and other bene2 ficiaries of federally funded programs and ac3 tivities have protection from harassment on the 

4 basis of race, color, sex, national origin, age, or 

5 disability that is comparable in strength and ef6 fectiveness to that available to employees under 

7 title VII of the Civil Rights Act of 1964 (42 

8 U.S.C. 2000e et seq.), the Age Discrimination 

9 in Employment Act of 1967 (29 U.S.C. 621 et 

10 seq.), and title I of the Americans with Disabil11 ities Act of 1990 (42 U.S.C. 12111 et seq.); 

12 (ii) encourage covered entities to adopt and 

13 enforce meaningful policies and procedures to 

14 prevent and remedy harassment; 

15 (iii) deter incidents of harassment; and 

16 (iv) provide appropriate remedies for dis17 crimination. 

18 (10) Congress has the same affirmative powers 

19 to enact legislation restoring the availability of a full 

20 range of remedies for harassment as it did to enact 

21 the underlying statutory prohibitions on harassment, 

22 including powers under section 5 of the 14th amend23 ment and section 8 of article I of the Constitution. 

24 (11) The right to maintain a private right of 

25 action under a provision added to a statute under 


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1 this subtitle will be effectuated by a waiver of sov2 ereign immunity in the same manner as sovereign 

3 immunity is waived under the remaining provisions 

4 of that statute. 

5 SEC. 112. RIGHT OF RECOVERY. 

6 (a) CIVIL RIGHTS ACT OF 1964.—Section 602A of 

7 the Civil Rights Act of 1964, as added by section 104, 

8 is amended by adding at the end the following: 

9 ‘‘(c) CLAIMS BASED ON HARASSMENT.— 

10 ‘‘(1) RIGHT OF RECOVERY.—In an action 

11 brought against a covered entity by (including on be12 half of) an aggrieved person who has been subjected 

13 to unlawful harassment under a program or activity, 

14 the aggrieved person may recover equitable and legal 

15 relief (including compensatory and punitive damages 

16 subject to the provisions of paragraph (2)), attor17 ney’s fees (including expert fees), and costs. 

18 ‘‘(2) AVAILABILITY OF DAMAGES.— 

19 ‘‘(A) TANGIBLE ACTION BY AGENT OR EM20 PLOYEE.—If an agent or employee of a covered 

21 entity engages in unlawful harassment under a 

22 program or activity that results in a tangible 

23 action to the aggrieved person, damages shall 

24 be available against the covered entity. 


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1 ‘‘(B) NO TANGIBLE ACTION BY AGENT OR

2 EMPLOYEE.—If an agent or employee of a cov3 ered entity engages in unlawful harassment 

4 under a program or activity that results in no 

5 tangible action to the aggrieved person, no 

6 damages shall be available against the covered 

7 entity if it can demonstrate that— 

8 ‘‘(i) it exercised reasonable care to 

9 prevent and correct promptly any harass10 ment based on race, color, or national ori11 gin; and 

12 ‘‘(ii) the aggrieved person unreason13 ably failed to take advantage of preventive 

14 or corrective opportunities offered by the 

15 covered entity that— 

16 ‘‘(I) would likely have provided 

17 redress and avoided the harm de18 scribed by the aggrieved person; and 

19 ‘‘(II) would not have exposed the 

20 aggrieved person to undue risk, effort, 

21 or expense. 

22 ‘‘(C) HARASSMENT BY THIRD PARTY.—If a 

23 person who is not an agent or employee of a 

24 covered entity subjects an aggrieved person to 

25 unlawful harassment under a program or activVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 ity, and the covered entity involved knew or 

2 should have known of the harassment, no dam3 ages shall be available against the covered enti4 ty if it can demonstrate that it exercised rea5 sonable care to prevent and correct promptly 

6 any harassment based on race, color, or na7 tional origin. 

8 ‘‘(D) DEMONSTRATION.—For purposes of 

9 subparagraphs (B) and (C), a showing that the 

10 covered entity has exercised reasonable care to 

11 prevent and correct promptly any harassment 

12 based on race, color, or national origin includes 

13 a demonstration by the covered entity that it 

14 has— 

15 ‘‘(i) established, adequately publicized, 

16 and enforced an effective, comprehensive, 

17 harassment prevention policy and com18 plaint procedure that is likely to provide 

19 redress and avoid harm without exposing 

20 the person subjected to the harassment to 

21 undue risk, effort, or expense; 

22 ‘‘(ii) undertaken prompt, thorough, 

23 and impartial investigations pursuant to 

24 its complaint procedure; and 


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1 ‘‘(iii) taken immediate and appro2 priate corrective action designed to stop 

3 harassment that has occurred, correct its 

4 effects on the aggrieved person, and ensure 

5 that the harassment does not recur. 

6 ‘‘(E) PUNITIVE DAMAGES.—Punitive dam7 ages shall not be available under this subsection 

8 against a government, government agency, or 

9 political subdivision. 

10 ‘‘(3) DEFINITIONS.—As used in this subsection: 

11 ‘‘(A) DEMONSTRATES.—The term ‘dem12 onstrates’ means meets the burdens of produc13 tion and persuasion. 

14 ‘‘(B) TANGIBLE ACTION.—The term ‘tan15 gible action’ means— 

16 ‘‘(i) a significant adverse change in an 

17 individual’s status caused by an agent or 

18 employee of a covered entity with regard to 

19 the individual’s participation in, access to, 

20 or enjoyment of, the benefits of a program 

21 or activity; or 

22 ‘‘(ii) an explicit or implicit condition 

23 by an agent or employee of a covered enti24 ty on an individual’s participation in, ac25 cess to, or enjoyment of, the benefits of a 


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1 program or activity based on the individ2 ual’s submission to the harassment. 

3 ‘‘(C) UNLAWFUL HARASSMENT.—The term 

4 ‘unlawful harassment’ means harassment that 

5 is unlawful under this title.’’. 

6 (b) EDUCATION AMENDMENTS OF 1972.—Section 

7 902A of the Civil Rights Act of 1964, as added by section 

8 104, is amended by adding at the end the following: 

9 ‘‘(c) CLAIMS BASED ON HARASSMENT.— 

10 ‘‘(1) RIGHT OF RECOVERY.—In an action 

11 brought against a covered entity by (including on be12 half of) an aggrieved person who has been subjected 

13 to unlawful harassment under a program or activity, 

14 the aggrieved person may recover equitable and legal 

15 relief (including compensatory and punitive damages 

16 subject to the provisions of paragraph (2)), attor17 ney’s fees (including expert fees), and costs. 

18 ‘‘(2) AVAILABILITY OF DAMAGES.— 

19 ‘‘(A) TANGIBLE ACTION BY AGENT OR EM20 PLOYEE.—If an agent or employee of a covered 

21 entity engages in unlawful harassment under a 

22 program or activity that results in a tangible 

23 action to the aggrieved person, damages shall 

24 be available against the covered entity. 


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1 ‘‘(B) NO TANGIBLE ACTION BY AGENT OR

2 EMPLOYEE.—If an agent or employee of a cov3 ered entity engages in unlawful harassment 

4 under a program or activity that results in no 

5 tangible action to the aggrieved person, no 

6 damages shall be available against the covered 

7 entity if it can demonstrate that— 

8 ‘‘(i) it exercised reasonable care to 

9 prevent and correct promptly any harass10 ment based on sex; and 

11 ‘‘(ii) the aggrieved person unreason12 ably failed to take advantage of preventive 

13 or corrective opportunities offered by the 

14 covered entity that— 

15 ‘‘(I) would likely have provided 

16 redress and avoided the harm de17 scribed by the aggrieved person; and 

18 ‘‘(II) would not have exposed the 

19 aggrieved person to undue risk, effort, 

20 or expense. 

21 ‘‘(C) HARASSMENT BY THIRD PARTY.—If a 

22 person who is not an agent or employee of a 

23 covered entity subjects an aggrieved person to 

24 unlawful harassment under a program or activ25 ity, and the covered entity knew or should have 


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1 known of the harassment, no damages shall be 

2 available against the covered entity if it can 

3 demonstrate that it exercised reasonable care to 

4 prevent and correct promptly any harassment 

5 based on sex. 

6 ‘‘(D) DEMONSTRATION.—For purposes of 

7 subparagraphs (B) and (C), a showing that the 

8 covered entity has exercised reasonable care to 

9 prevent and correct promptly any harassment 

10 based on sex includes a demonstration by the 

11 covered entity that it has— 

12 ‘‘(i) established, adequately publicized, 

13 and enforced an effective, comprehensive, 

14 harassment prevention policy and com15 plaint procedure that is likely to provide 

16 redress and avoid harm without exposing 

17 the person subjected to the harassment to 

18 undue risk, effort, or expense; 

19 ‘‘(ii) undertaken prompt, thorough, 

20 and impartial investigations pursuant to 

21 its complaint procedure; and 

22 ‘‘(iii) taken immediate and appro23 priate corrective action designed to stop 

24 harassment that has occurred, correct its 


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•HR 5129 IH

1 effects on the aggrieved person, and ensure 

2 that the harassment does not recur. 

3 ‘‘(E) PUNITIVE DAMAGES.—Punitive dam4 ages shall not be available under this subsection 

5 against a government, government agency, or 

6 political subdivision. 

7 ‘‘(3) DEFINITIONS.—As used in this subsection: 

8 ‘‘(A) DEMONSTRATES.—The term ‘dem9 onstrates’ means meets the burdens of produc10 tion and persuasion. 

11 ‘‘(B) TANGIBLE ACTION.—The term ‘tan12 gible action’ means— 

13 ‘‘(i) a significant adverse change in an 

14 individual’s status caused by an agent or 

15 employee of a covered entity with regard to 

16 the individual’s participation in, access to, 

17 or enjoyment of, the benefits of a program 

18 or activity; or 

19 ‘‘(ii) an explicit or implicit condition 

20 by an agent or employee of a covered enti21 ty on an individual’s participation in, ac22 cess to, or enjoyment of, the benefits of a 

23 program or activity based on the individ24 ual’s submission to the harassment. 


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1 ‘‘(C) UNLAWFUL HARASSMENT.—The term 

2 ‘unlawful harassment’ means harassment that 

3 is unlawful under this title.’’. 

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

5 305(g) of the Age Discrimination Act of 1975, as added 

6 by section 104, is amended by adding at the end the fol7 lowing: 

8 ‘‘(3)(A) If an action brought against a covered entity 

9 by (including on behalf of) an aggrieved person who has 

10 been subjected to unlawful harassment under a program 

11 or activity, the aggrieved person may recover equitable and 

12 legal relief (including compensatory and punitive damages 

13 subject to the provisions of subparagraph (B)), attorney’s 

14 fees (including expert fees), and costs. 

15 ‘‘(B)(i) If an agent or employee of a covered entity 

16 engages in unlawful harassment under a program or activ17 ity that results in a tangible action to the aggrieved per18 son, damages shall be available against the covered entity. 

19 ‘‘(ii) If an agent or employee of a covered entity en20 gages in unlawful harassment under a program or activity 

21 that results in no tangible action to the aggrieved person, 

22 no damages shall be available against the covered entity 

23 if it can demonstrate that— 

24 ‘‘(I) it exercised reasonable care to prevent and 

25 correct promptly any harassment based on age; and 


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1 ‘‘(II) the aggrieved person unreasonably failed 

2 to take advantage of preventive or corrective oppor3 tunities offered by the covered entity that— 

4 ‘‘(aa) would likely have provided redress 

5 and avoided the harm described by the ag6 grieved person; and 

7 ‘‘(bb) would not have exposed the ag8 grieved person to undue risk, effort, or expense. 

9 ‘‘(iii) If a person who is not an agent or employee 

10 of a covered entity subjects an aggrieved person to unlaw11 ful harassment under a program or activity, and the cov12 ered entity knew or should have known of the harassment, 

13 no damages shall be available against the covered entity 

14 if it can demonstrate that it exercised reasonable care to 

15 prevent and correct promptly any harassment based on 

16 age. 

17 ‘‘(iv) For purposes of clauses (ii) and (iii), a showing 

18 that the covered entity has exercised reasonable care to 

19 prevent and correct promptly any harassment based on 

20 age includes a demonstration by the covered entity that 

21 it has— 

22 ‘‘(I) established, adequately publicized, and en23 forced an effective, comprehensive, harassment pre24 vention policy and complaint procedure that is likely 

25 to provide redress and avoid harm without exposing 


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1 the person subjected to the harassment to undue 

2 risk, effort, or expense; 

3 ‘‘(II) undertaken prompt, thorough, and impar4 tial investigations pursuant to its complaint proce5 dure; and 

6 ‘‘(III) taken immediate and appropriate correc7 tive action designed to stop harassment that has oc8 curred, correct its effects on the aggrieved person, 

9 and ensure that the harassment does not recur. 

10 ‘‘(v) Punitive damages shall not be available under 

11 this paragraph against a government, government agency, 

12 or political subdivision. 

13 ‘‘(C) As used in this paragraph: 

14 ‘‘(i) The term ‘demonstrates’ means meets the 

15 burdens of production and persuasion. 

16 ‘‘(ii) The term ‘tangible action’ means— 

17 ‘‘(I) a significant adverse change in an in18 dividual’s status caused by an agent or em19 ployee of a covered entity with regard to the in20 dividual’s participation in, access to, or enjoy21 ment of, the benefits of a program or activity; 

22 or 

23 ‘‘(II) an explicit or implicit condition by an 

24 agent or employee of a covered entity on an in25 dividual’s participation in, access to, or enjoyVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 ment of, the benefits of a program or activity 

2 based on the individual’s submission to the har3 assment. 

4 ‘‘(iii) The term ‘unlawful harassment’ means 

5 harassment that is unlawful under this title.’’. 

6 (d) REHABILITATION ACT OF 1973.—Section 504(e) 

7 of the Rehabilitation Act of 1973, as added by section 104, 

8 is amended by adding at the end the following: 

9 ‘‘(3)(A) In an action brought against a covered entity 

10 by (including on behalf of) an aggrieved person who has 

11 been subjected to unlawful harassment under a program 

12 or activity, the aggrieved person may recover equitable and 

13 legal relief (including compensatory and punitive damages 

14 subject to the provisions of subparagraph (B)), attorney’s 

15 fees (including expert fees), and costs. 

16 ‘‘(B)(i) If an agent or employee of a covered entity 

17 engages in unlawful harassment under a program or activ18 ity that results in a tangible action to the aggrieved per19 son, damages shall be available against the covered entity. 

20 ‘‘(ii) If an agent or employee of a covered entity en21 gages in unlawful harassment under a program or activity 

22 that results in no tangible action to the aggrieved person, 

23 no damages shall be available against the covered entity 

24 if it can demonstrate that— 


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1 ‘‘(I) it exercised reasonable care to prevent and 

2 correct promptly any harassment based on disability; 

3 and 

4 ‘‘(II) the aggrieved person unreasonably failed 

5 to take advantage of preventive or corrective oppor6 tunities offered by the covered entity that— 

7 ‘‘(aa) would likely have provided redress 

8 and avoided the harm described by the ag9 grieved person; and 

10 ‘‘(bb) would not have exposed the ag11 grieved person to undue risk, effort, or expense. 

12 ‘‘(iii) If a person who is not an agent or employee 

13 of a covered entity subjects an aggrieved person to unlaw14 ful harassment under a program or activity, and the cov15 ered entity knew or should have known of the harassment, 

16 no damages shall be available against the covered entity 

17 if it can demonstrate that it exercised reasonable care to 

18 prevent and correct promptly any harassment based on 

19 disability. 

20 ‘‘(iv) For purposes of clauses (ii) and (iii), a showing 

21 that the covered entity has exercised reasonable care to 

22 prevent and correct promptly any harassment based on 

23 disability includes a demonstration by the covered entity 

24 that it has— 


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1 ‘‘(I) established, adequately publicized, and en2 forced an effective, comprehensive, harassment pre3 vention policy and complaint procedure that is likely 

4 to provide redress and avoid harm without exposing 

5 the person subjected to the harassment to undue 

6 risk, effort, or expense; 

7 ‘‘(II) undertaken prompt, thorough, and impar8 tial investigations pursuant to its complaint proce9 dure; and 

10 ‘‘(III) taken immediate and appropriate correc11 tive action designed to stop harassment that has oc12 curred, correct its effects on the aggrieved person, 

13 and ensure that the harassment does not recur. 

14 ‘‘(v) Punitive damages shall not be available under 

15 this paragraph against a government, government agency, 

16 or political subdivision. 

17 ‘‘(C) As used in this paragraph: 

18 ‘‘(i) The term ‘demonstrates’ means meets the 

19 burdens of production and persuasion. 

20 ‘‘(ii) The term ‘tangible action’ means— 

21 ‘‘(I) a significant adverse change in an in22 dividual’s status caused by an agent or em23 ployee of a covered entity with regard to the in24 dividual’s participation in, access to, or enjoyVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 ment of, the benefits of a program or activity; 

2 or 

3 ‘‘(II) an explicit or implicit condition by an 

4 agent or employee of a covered entity on an in5 dividual’s participation in, access to, or enjoy6 ment of, the benefits of a program or activity 

7 based on the individual’s submission to the har8 assment. 

9 ‘‘(iii) The term ‘unlawful harassment’ means 

10 harassment that is unlawful under this section.’’. 

11 SEC. 113. CONSTRUCTION. 

12 Nothing in this subtitle, including any amendment 

13 made by this subtitle, shall be construed to limit the scope 

14 of the class of persons who may be subjected to civil ac15 tions under the covered civil rights provisions. 

16 SEC. 114. EFFECTIVE DATE. 

17 (a) IN GENERAL.—This subtitle, and the amend18 ments made by this subtitle, take effect on the date of 

19 enactment of this Act. 

20 (b) APPLICATION.—This subtitle, and the amend21 ments made by this subtitle, apply to all actions or pro22 ceedings pending on or after the date of enactment of this 

23 Act. 


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1 TITLE II—EMPLOYER ACCOUNT2 ABILITY FOR DISCRIMINA3 TION BASED ON MILITARY 

4 SERVICE 

5 SEC. 201. AMENDMENT TO THE UNIFORMED SERVICES EM6 PLOYMENT AND REEMPLOYMENT RIGHTS 

7 ACT OF 1994. 

8 (a) FINDINGS.—Congress makes the following find9 ings: 

10 (1) The Federal Government has an important 

11 interest in attracting and training a military to pro12 vide for the National defense. The Constitution 

13 grants Congress the power to raise and support an 

14 army for purposes of the common defense. The Na15 tion’s military readiness requires that all members of 

16 the Armed Forces, including those employed in State 

17 programs and activities, be able to serve without 

18 jeopardizing their civilian employment opportunities. 

19 (2) The Uniformed Services Employment and 

20 Reemployment Rights Act of 1994, commonly re21 ferred to as ‘‘USERRA’’ and codified as chapter 43 

22 of title 38, United States Code, is intended to safe23 guard the reemployment rights of members of the 

24 uniformed services (as that term is defined in sec25 tion 4303(16) of title 38, United States Code) and 


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1 to prevent discrimination against any person who is 

2 a member of, applies to be a member of, performs, 

3 has performed, applies to perform, or has an obliga4 tion to perform service in a uniformed service. Effec5 tive enforcement of the Act depends on the ability of 

6 private individuals to enforce its provisions in court. 

7 (3) In Seminole Tribe of Florida v. Florida, 

8 517 U.S. 44 (1996), the Supreme Court held that 

9 congressional legislation, enacted pursuant to the 

10 portion of section 8 of article I of the Constitution 

11 relating to regulation of Commerce among the sev12 eral States, cannot abrogate the immunity of States 

13 under the 11th amendment to the Constitution. 

14 Some courts have interpreted Seminole Tribe of 

15 Florida v. Florida as a basis for denying relief to 

16 persons affected by a State violation of USERRA. 

17 In addition, in Alden v. Maine 527 U.S. 706, 712 

18 (1999), the Supreme Court held that this immunity 

19 also prohibits the Federal Government from sub20 jecting ‘‘non-consenting states to private suits for 

21 damages in state courts.’’ As a result, although 

22 USERRA specifically provides that a person may 

23 commence an action for relief against a State for its 

24 violation of that Act, persons harmed by State viola25 tions of that Act lack important remedies to vindiVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 cate the rights and benefits that are available to all 

2 other persons covered by that Act. Unless a State 

3 chooses to waive sovereign immunity, or the Attor4 ney General brings an action on their behalf, per5 sons affected by State violations of USERRA may 

6 have no adequate Federal remedy for such viola7 tions. 

8 (4) A failure to provide a private right of action 

9 by persons affected by State violations of USERRA 

10 would leave vindication of their rights and benefits 

11 under that Act solely to Federal agencies, which may 

12 fail to take necessary and appropriate action because 

13 of administrative overburden or other reasons. Ac14 tion by Congress to specify such a private right of 

15 action ensures that persons affected by State viola16 tions of USERRA have a remedy if they are denied 

17 their rights and benefits under that Act. 

18 (b) CLARIFICATION OF RIGHT OF ACTION UNDER

19 USERRA.—Section 4323 of title 38, United States Code, 

20 is amended— 

21 (1) in subsection (b), by striking paragraph (2) 

22 and inserting the following new paragraph (2): 

23 ‘‘(2) In the case of an action against a State (as an 

24 employer) by a person, the action may be brought in a 


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1 district court of the United States or State court of com2 petent jurisdiction.’’; 

3 (2) by redesignating subsection (j) as sub4 section (k); and 

5 (3) by inserting after subsection (i) the fol6 lowing new subsection (j): 

7 ‘‘(j)(1)(A) A State’s receipt or use of Federal finan8 cial assistance for any program or activity of a State shall 

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

10 amendment to the Constitution or otherwise, to a suit 

11 brought by an employee of that program or activity under 

12 this chapter for the rights or benefits authorized the em13 ployee by this chapter. 

14 ‘‘(B) In this paragraph, the term ‘program or activ15 ity’ has the meaning given the term in section 309 of the 

16 Age Discrimination Act of 1975 (42 U.S.C. 6107). 

17 ‘‘(2) An official of a State may be sued in the official 

18 capacity of the official by any person covered by paragraph 

19 (1) who seeks injunctive relief against a State (as an em20 ployer) under subsection (e). In such a suit the court may 

21 award to the prevailing party those costs authorized by 

22 section 722 of the Revised Statutes (42 U.S.C. 1988).’’. 


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1 TITLE III—EMPLOYER ACCOUNT2 ABILITY FOR AGE DISCRIMI3 NATION 

4 SEC. 301. SHORT TITLE. 

5 This title may be cited as the ‘‘Older Workers’ Rights 

6 Restoration Act of 2008’’. 

7 SEC. 302. FINDINGS. 

8 Congress finds the following: 

9 (1)(A) Age discrimination in employment re10 mains a serious problem both nationally and among 

11 State agencies, and has invidious effects on its vic12 tims, the labor force, and the economy as a whole. 

13 (B) For example, age discrimination in employ14 ment— 

15 (i) increases the risk of unemployment 

16 among older workers, who will as a result be 

17 more likely to be dependent on government re18 sources; 

19 (ii) prevents the best use of available labor 

20 resources; 

21 (iii) adversely affects the morale and pro22 ductivity of older workers; and 

23 (iv) perpetuates unwarranted stereotypes 

24 about the abilities of older workers. 


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1 (C) As a result, the Federal Government has an 

2 important interest in ensuring that Federal financial 

3 assistance is not used to subsidize or facilitate viola4 tions of the Age Discrimination in Employment Act 

5 of 1967 (29 U.S.C. 621 et seq.) (referred to in this 

6 section as the ‘‘ADEA’’). 

7 (2) Private civil suits by the victims of employ8 ment discrimination have been a crucial tool for en9 forcement of the ADEA since the enactment of that 

10 Act. In Kimel v. Florida Board of Regents, 528 U.S. 

11 62 (2000), however, the Supreme Court held that 

12 Congress had not abrogated State sovereign immu13 nity to suits by individuals under the ADEA. 

14 (3) As a result of the Kimel decision, although 

15 age-based discrimination by State employers remains 

16 unlawful, the victims of such discrimination lack im17 portant remedies for vindication of their rights that 

18 are available to all other employees covered under 

19 that Act, including employees in the private sector, 

20 local government, and the Federal Government. In 

21 the absence of the deterrent effect that such rem22 edies provide, there is a greater likelihood that enti23 ties carrying out programs and activities receiving 

24 Federal financial assistance will use that assistance 


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1 to violate that Act, or that the assistance will other2 wise subsidize or facilitate violations of that Act. 

3 (4) The Supreme Court has upheld Congress’s 

4 authority to condition receipt of Federal financial 

5 assistance on acceptance by the States or other cov6 ered entities of conditions regarding or related to the 

7 use of that assistance, as in Cannon v. University of 

8 Chicago, 441 U.S. 677 (1979). The Court has fur9 ther recognized that Congress may require a State, 

10 as a condition of receipt of Federal financial assist11 ance, to waive the State’s sovereign immunity to 

12 suits for a violation of Federal law, as in College 

13 Savings Bank v. Florida Prepaid Postsecondary 

14 Education Expense Board, 527 U.S. 666 (1999). In 

15 the wake of the Kimel decision, in order to assure 

16 compliance with, and to provide effective remedies 

17 for violations of, the ADEA in State programs or ac18 tivities receiving or using Federal financial assist19 ance, and in order to ensure that Federal financial 

20 assistance does not subsidize or facilitate violations 

21 of the ADEA, it is necessary to require such a waiv22 er as a condition of receipt or use of that assistance. 

23 (5) A State’s receipt or use of Federal financial 

24 assistance in any program or activity of a State will 

25 constitute a limited waiver of sovereign immunity 


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1 under section 7(g) of the ADEA (as added by sec2 tion 304). The waiver will not eliminate a State’s 

3 immunity with respect to programs or activities that 

4 do not receive or use Federal financial assistance. 

5 The State will waive sovereign immunity only with 

6 respect to suits under the ADEA brought by employ7 ees within the programs or activities that receive or 

8 use that assistance. With regard to those programs 

9 and activities that are covered by the waiver, the 

10 State employees will be accorded only the same rem11 edies that are accorded to other covered employees 

12 under the ADEA. 

13 (6) The Supreme Court has repeatedly held 

14 that State sovereign immunity does not bar suits for 

15 prospective injunctive relief brought against State 

16 officials, as in Ex parte Young (209 U.S. 123 

17 (1908)). Clarification of the language of the ADEA 

18 will confirm that Act authorizes such suits. The in19 junctive relief available in such suits will continue to 

20 be no broader than the injunctive relief that was 

21 available under that Act before the Kimel decision, 

22 and that is available to all other employees under 

23 that Act. 

24 (7) In 1991, Congress reaffirmed that title VII 

25 of the Civil Rights Act of 1964 permits victims of 


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1 employment bias to state a cause of action for dis2 parate impact discrimination when it added a provi3 sion to title VII of the Civil Rights Act of 1964 to 

4 clarify the burden of proof in disparate impact cases 

5 in section 703(k) of the Civil Rights Act of 1964 (42 

6 U.S.C. 2000e–2(k)). 

7 (8) In Smith v. City of Jackson, 544 U.S. 228 

8 (2005), the Supreme Court held that the ADEA per9 mits older workers to state a cause of action for dis10 parate impact discrimination. The Smith Court in11 correctly held, however, that the scope of disparate 

12 impact claims is narrower under the ADEA than 

13 under title VII. Congress did not intend the ADEA 

14 to be interpreted to provide older workers less pro15 tections against discrimination than those protected 

16 under title VII of the Civil Rights Act of 1964. As 

17 a result, it is necessary to clarify the burden of proof 

18 in a disparate impact case under the ADEA. 

19 SEC. 303. PURPOSES. 

20 The purposes of this title are— 

21 (1) to provide to State employees in programs 

22 or activities that receive or use Federal financial as23 sistance the same rights and remedies for practices 

24 violating the Age Discrimination in Employment Act 

25 of 1967 (29 U.S.C. 621 et seq.) as are available to 


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1 other employees under that Act, and that were avail2 able to State employees prior to the Supreme 

3 Court’s decision in Kimel v. Florida Board of Re4 gents, 528 U.S. 62 (2000); 

5 (2) to provide that the receipt or use of Federal 

6 financial assistance for a program or activity con7 stitutes a State waiver of sovereign immunity from 

8 suits by employees within that program or activity 

9 for violations of the Age Discrimination in Employ10 ment Act of 1967; 

11 (3) to affirm that suits for injunctive relief are 

12 available against State officials in their official ca13 pacities for violations of the Age Discrimination in 

14 Employment Act of 1967; and 

15 (4) to clarify the disparate impact standard of 

16 proof in claims under the Age Discrimination in 

17 Employment Act of 1967. 

18 SEC. 304. REMEDIES FOR STATE EMPLOYEES. 

19 Section 7 of the Age Discrimination in Employment 

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

21 the end the following: 

22 ‘‘(g)(1)(A) A State’s receipt or use of Federal finan23 cial assistance for any program or activity of a State shall 

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

25 amendment to the Constitution or otherwise, to a suit 


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1 brought by an employee of that program or activity under 

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

3 under this Act. 

4 ‘‘(B) In this paragraph, the term ‘program or activ5 ity’ has the meaning given the term in section 309 of the 

6 Age Discrimination Act of 1975 (42 U.S.C. 6107). 

7 ‘‘(2) An official of a State may be sued in the official 

8 capacity of the official by any employee who has complied 

9 with the procedures of subsections (d) and (e), for injunc10 tive relief that is authorized under this Act. In such a suit 

11 the court may award to the prevailing party those costs 

12 authorized by section 722 of the Revised Statutes (42 

13 U.S.C. 1988).’’. 

14 SEC. 305. DISPARATE IMPACT CLAIMS. 

15 Section 4 of the Age Discrimination in Employment 

16 Act of 1967 (29 U.S.C. 623) is amended by adding at 

17 the end the following: 

18 ‘‘(n)(1) Discrimination based on disparate impact is 

19 established under this Act only if— 

20 ‘‘(A) an aggrieved party demonstrates that an 

21 employer, employment agency, or labor organization 

22 has a policy or practice that causes a disparate im23 pact on the basis of age and the employer, employ24 ment agency, or labor organization fails to dem25 onstrate that the challenged policy or practice is 


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1 based on reasonable factors that are job-related and 

2 consistent with business necessity other than age; or 

3 ‘‘(B) the aggrieved party demonstrates (con4 sistent with the demonstration standard 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 employer, 

9 employment agency, or labor organization refuses to 

10 adopt such alternative policy or practice. 

11 ‘‘(2)(A) With respect to demonstrating that a par12 ticular policy or practice causes a disparate impact as de13 scribed in paragraph (1)(A), the aggrieved party shall 

14 demonstrate that each particular challenged policy or 

15 practice causes a disparate impact, except that if the ag16 grieved party demonstrates to the court that the elements 

17 of an employer, employment agency, or labor organiza18 tion’s decisionmaking process are not capable of separa19 tion for analysis, the decisionmaking process may be ana20 lyzed as one policy or practice. 

21 ‘‘(B) If the employer, employment agency, or labor 

22 organization demonstrates that a specific policy or prac23 tice does not cause the disparate impact, the employer, 

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1 quired to demonstrate that such policy or practice is nec2 essary to the operation of its business. 

3 ‘‘(3) A demonstration that a policy or practice is nec4 essary to the operation of the employer, employment agen5 cy, or labor organization’s business may not be used as 

6 a defense against a claim of intentional discrimination 

7 under this Act. 

8 ‘‘(4) In this subsection, the term ‘demonstrates’ 

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

10 SEC. 306. EFFECTIVE DATE. 

11 (a) WAIVER OF SOVEREIGN IMMUNITY.—With re12 spect to a particular program or activity, section 7(g)(1) 

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

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

15 the day, after the date of enactment of this title, on which 

16 a State first receives or uses Federal financial assistance 

17 for that program or activity. 

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

19 the Age Discrimination in Employment Act of 1967 (29 

20 U.S.C. 626(g)(2)) applies to any suit pending on or after 

21 the date of enactment of this title. 


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1 TITLE IV—IMPROVED ACCOUNT2 ABILITY FOR OTHER VIOLA3 TIONS OF CIVIL RIGHTS AND 

4 WORKERS’ RIGHTS 

5 Subtitle A—Air Carrier Access Act 

6 of 1986 Amendment 

7 SEC. 401. FINDINGS. 

8 Congress finds the following: 

9 (1) Relying on the Supreme Courts’s decision in 

10 Alexander v. Sandoval, 532 U.S. 275 (2001), some 

11 courts have erroneously held that when Congress 

12 passed the Air Carrier Access Act of 1986 (Public 

13 Law 99-435; 100 Stat. 1080), adding a provision 

14 now codified at section 41705 of title 49, United 

15 States Code (referred to in this subtitle as the 

16 ‘‘ACAA’’), Congress did not intend to create a pri17 vate right of action with which individuals with dis18 abilities could sue air carriers in Federal court for 

19 discrimination on the basis of disability. Love v. 

20 Delta Air Lines, 310 F. 3d 1347 (11th Cir. 2002) 

21 (2) The absence of a private right of action 

22 leaves enforcement of the ACAA solely in the hands 

23 of the Department of Transportation, which is over24 burdened and lacks the resources to investigate, 

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1 lations of the rights of travelers who are individuals 

2 with disabilities. Nor can the Department of Trans3 portation bring an action that will redress the injury 

4 of an individual resulting from such a violation. The 

5 Department of Transportation can take action that 

6 fines an air carrier or requires the air carrier to 

7 obey the law in the future, but the Department is 

8 not authorized to issue orders that redress the inju9 ries sustained by individual air passengers. Action 

10 by Congress is necessary to ensure that individuals 

11 with disabilities will have adequate remedies avail12 able when air carriers violate the ACAA (including 

13 its regulations), and only courts may provide this re14 dress to individuals. 

15 (3) When an air carrier violates the ACAA and 

16 discriminates against an individual with a disability, 

17 frequently the only way to compensate that indi18 vidual for the harm the individual has suffered is 

19 through an award of money damages. 

20 (4) Unlike other civil rights statutes, the ACAA 

21 does not contain a fee-shifting provision under which 

22 a prevailing plaintiff can be awarded attorney’s fees. 

23 Action by Congress is necessary to correct this 

24 anomaly. The availability of attorney’s fees is essen25 tial to ensuring that persons who have been agVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 grieved by violations of the ACAA can enforce their 

2 rights. The inclusion of a fee-shifting provision in 

3 the ACAA will permit individuals to serve as private 

4 attorneys general, a necessary role on which enforce5 ment of civil rights statutes depends. 

6 SEC. 402. CIVIL ACTION. 

7 Section 41705 of title 49, United States Code, is 

8 amended by adding at the end the following: 

9 ‘‘(d) CIVIL ACTION.—(1) Any person aggrieved by an 

10 air carrier’s violation of subsection (a) (including any reg11 ulation implementing such subsection) may bring a civil 

12 action in the district court of the United States in the 

13 district in which the aggrieved person resides, in the dis14 trict containing the air carrier’s principal place of busi15 ness, or in the district in which the violation took place. 

16 Any such action must be commenced within 2 years after 

17 the date of the violation. 

18 ‘‘(2) In any civil action brought by an aggrieved per19 son pursuant to paragraph (1), the plaintiff may obtain 

20 both equitable and legal relief, including compensatory 

21 and punitive damages. The court in such action shall, in 

22 addition to such relief awarded to a prevailing plaintiff, 

23 award reasonable attorney’s fees, reasonable expert fees, 

24 and costs of the action to the plaintiff.’’. 


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1 Subtitle B—Prevailing Party 

2 SEC. 411. SHORT TITLE. 

3 This subtitle may be cited as the ‘‘Settlement En4 couragement and Fairness Act’’. 

5 SEC. 412. DEFINITION OF PREVAILING PARTY. 

6 (a) IN GENERAL.—Chapter 1 of title 1, United 

7 States Code, is amended by adding at the end the fol8 lowing: 

9 ‘‘§ 9. Definition of ‘prevailing party’

10 ‘‘(a) In determining the meaning of any Act of Con11 gress, or of any ruling, regulation, or interpretation of the 

12 various administrative bureaus and agencies of the United 

13 States, or of any judicial or administrative rule, which pro14 vides for the recovery of attorney’s fees, the term ‘pre15 vailing party’ shall include, in addition to a party who sub16 stantially prevails through a judicial or administrative 

17 judgment or order, or an enforceable written agreement, 

18 a party whose pursuit of a nonfrivolous claim or defense 

19 was a catalyst for a voluntary or unilateral change in posi20 tion by the opposing party that provides any significant 

21 part of the relief sought. 

22 ‘‘(b)(1) If an Act, ruling, regulation, interpretation, 

23 or rule described in subsection (a) requires a defendant, 

24 but not a plaintiff, to satisfy certain different or additional 

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1 section (a) shall not affect the requirement that such de2 fendant satisfy such criteria. 

3 ‘‘(2) If an Act, ruling, regulation, interpretation, or 

4 rule described in subsection (a) requires a party to satisfy 

5 certain criteria, unrelated to whether or not such party 

6 has prevailed, to qualify for the recovery of attorney’s fees, 

7 subsection (a) shall not affect the requirement that such 

8 party satisfy such criteria.’’. 

9 (b) CLERICAL AMENDMENT.—The table of sections 

10 at the beginning of chapter 1 of title 1, United States 

11 Code, is amended by adding at the end the following new 

12 item: 

‘‘9. Definition of ‘prevailing party’.’’. 

13 (c) APPLICATION.—Section 9 of title 1, United States 

14 Code, as added by this Act, shall apply to any case pend15 ing or filed on or after the date of enactment of this sub16 title. 

17 Subtitle C—Arbitration 

18 SEC. 421. SHORT TITLE. 

19 This subtitle may be cited as the ‘‘Preservation of 

20 Civil Rights Protections Act of 2008’’. 

21 SEC. 422. AMENDMENT TO FEDERAL ARBITRATION ACT. 

22 Section 1 of title 9, United States Code, is amended 

23 by striking ‘‘of seamen’’ and all that follows through 

24 ‘‘commerce’’. 


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1 SEC. 423. UNENFORCEABILITY OF ARBITRATION CLAUSES 

2 IN EMPLOYMENT CONTRACTS. 

3 (a) PROTECTION OF EMPLOYEE RIGHTS.—Notwith4 standing any other provision of law, any clause of any 

5 agreement between an employer and an employee that re6 quires arbitration of a dispute arising under the Constitu7 tion or laws of the United States shall not be enforceable. 

8 (b) EXCEPTIONS.— 

9 (1) WAIVER OR CONSENT AFTER DISPUTE

10 ARISES.—Subsection (a) shall not apply with respect 

11 to any dispute if, after such dispute arises, the par12 ties involved knowingly and voluntarily consent to 

13 submit such dispute to arbitration. 

14 (2) COLLECTIVE BARGAINING AGREEMENTS.— 

15 Subsection (a) shall not preclude the enforcement of 

16 the rights or terms of a valid collective bargaining 

17 agreement. 

18 SEC. 424. APPLICATION OF AMENDMENTS. 

19 This subtitle and the amendment made by section 

20 422 shall apply with respect to all employment contracts 

21 in force before, on, or after the date of enactment of this 

22 subtitle. 


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1 Subtitle D—Expert Witness Fees 

2 SEC. 431. PURPOSE. 

3 The purpose of this subtitle is to allow recovery of 

4 expert fees by prevailing parties under civil rights fee5 shifting statutes. 

6 SEC. 432. FINDINGS. 

7 Congress finds the following: 

8 (1) This subtitle is made necessary by the deci9 sion of the Supreme Court in West Virginia Univer10 sity Hospitals Inc. v. Casey, 499 U.S. 83 (1991). In 

11 Casey, the Court, per Justice Scalia, ruled that ex12 pert fees were not recoverable under section 722 of 

13 the Revised Statutes (42 U.S.C. 1988), as amended 

14 by the Civil Rights Attorney’s Fees Awards Act of 

15 1976 (Public Law 94–559; 90 Stat. 2641), because 

16 the amendment made by the Civil Rights Attorney’s 

17 Fees Awards Act of 1976 expressly authorized an 

18 award of an ‘‘attorney’s fee’’ to a prevailing party 

19 but said nothing expressly about expert fees. 

20 (2) This subtitle is especially necessary both be21 cause of the important roles played by experts in 

22 civil rights litigation and because expert fees often 

23 represent a major cost of the litigation. 

24 (3) In the Civil Rights Act of 1991 (Public Law 

25 102–166; 105 Stat. 1071), Congress amended title 


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

2 2000e et seq.) and section 722 of the Revised Stat3 utes (42 U.S.C. 1988) to include express authoriza4 tions of the recovery of expert fees in successful em5 ployment discrimination litigation. It is long past 

6 time to ensure that expert fees are available in Fed7 eral litigation under other civil rights statutes. 

8 SEC. 433. EFFECTIVE PROVISIONS. 

9 (a) SECTION 722 OF THE REVISED STATUTES.—Sec10 tion 722 of the Revised Statutes (42 U.S.C. 1988) is 

11 amended— 

12 (1) in subsection (b), by inserting ‘‘(including 

13 expert fees)’’ after ‘‘attorney’s fee’’; and 

14 (2) by striking subsection (c). 

15 (b) FAIR LABOR STANDARDS ACT OF 1938.—Section 

16 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

17 216(b)) is amended by inserting ‘‘(including expert fees)’’ 

18 after ‘‘attorney’s fee’’. 

19 (c) FAIR HOUSING ACT.—Title VIII of the Civil 

20 Rights Act of 1968 (42 U.S.C. 3601 et seq.) is amended— 

21 (1) in section 812(p), by inserting ‘‘(including 

22 expert fees)’’ after ‘‘attorney’s fee’’; 

23 (2) in section 813(c)(2), by inserting ‘‘(includ24 ing expert fees)’’ after ‘‘attorney’s fee’’; and 


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1 (3) in section 814(d)(2), by inserting ‘‘(includ2 ing expert fees)’’ after ‘‘attorney’s fee’’. 

3 (d) IDEA.—Section 615(i)(3)(B) of the Individuals 

4 with Disabilities Education Act (20 U.S.C. 1415(i)(3)(B)) 

5 is amended by inserting ‘‘(including expert fees)’’ after 

6 ‘‘reasonable attorney’s fees’’. 

7 (e) CIVIL RIGHTS ACT OF 1964.—Section 204(b) of 

8 the Civil Rights Act of 1964 (42 U.S.C. 2000a–3(b)) is 

9 amended by inserting ‘‘(including expert fees)’’ after ‘‘at10 torney’s fee’’. 

11 (f) REHABILITATION ACT OF 1973.—Section 505(b) 

12 of the Rehabilitation Act of 1973 (29 U.S.C. 794a(b)) is 

13 amended by inserting ‘‘(including expert fees)’’ after ‘‘at14 torney’s fee’’. 

15 (g) EQUAL CREDIT OPPORTUNITY ACT.—Section 

16 706(d) of the Equal Credit Opportunity Act (15 U.S.C. 

17 1691e(d)) is amended by inserting ‘‘(including expert 

18 fees)’’ after ‘‘attorney’s fee’’. 

19 (h) FAIR CREDIT REPORTING ACT.—The Fair Credit 

20 Reporting Act (15 U.S.C. 1681 et seq.) is amended— 

21 (1) in section 616(a)(3), by inserting ‘‘(includ22 ing expert fees)’’ after ‘‘attorney’s fees’’; and 

23 (2) in section 617(a)(2), by inserting ‘‘(includ24 ing expert fees)’’ after ‘‘attorney’s fees’’. 


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1 (i) FREEDOM OF INFORMATION ACT.—Section 

2 552(a)(4)(E) of title 5, United States Code, is amended 

3 by inserting ‘‘(including expert fees)’’ after ‘‘attorney 

4 fees’’. 

5 (j) PRIVACY ACT.—Section 552a(g) of title 5, United 

6 States Code, is amended— 

7 (1) in paragraph (2)(B), by inserting ‘‘(includ8 ing expert fees)’’ after ‘‘attorney fees’’; 

9 (2) in paragraph (3)(B), by inserting ‘‘(includ10 ing expert fees)’’ after ‘‘attorney fees’’; and 

11 (3) in paragraph (4)(B), by inserting ‘‘(includ12 ing expert fees)’’ after ‘‘attorney fees’’. 

13 (k) TRUTH IN LENDING ACT.—Section 130(a)(3) of 

14 the Truth in Lending Act (15 U.S.C. 1640(a)(3)) is 

15 amended by inserting ‘‘(including expert fees)’’ after ‘‘at16 torney’s fee’’. 

17 Subtitle E—Equal Remedies Act of 

18 2008 

19 SEC. 441. SHORT TITLE. 

20 This subtitle may be cited as the ‘‘Equal Remedies 

21 Act of 2008’’. 

22 SEC. 442. EQUALIZATION OF REMEDIES. 

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

24 1981a) is amended— 

25 (1) in subsection (b)— 


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1 (A) by striking paragraph (3); and 

2 (B) by redesignating paragraph (4) as 

3 paragraph (3); and 

4 (2) in subsection (c), by striking ‘‘section—’’ 

5 and all that follows through the period, and insert6 ing ‘‘section, any party may demand a jury trial.’’. 

7 Subtitle F—Prohibitions Against 

8 Sex Discrimination 

9 SEC. 451. FINDINGS. 

10 Congress makes the following findings: 

11 (1) Women have entered the workforce in 

12 record numbers. 

13 (2) Even today, women earn significantly lower 

14 pay than men for work on jobs that require equal 

15 skill, effort, and responsibility and that are per16 formed under similar working conditions. These pay 

17 disparities exist in both the private and govern18 mental sectors. In many instances, the pay dispari19 ties can only be due to continued intentional dis20 crimination or the lingering effects of past discrimi21 nation. 

22 (3) The existence of such pay disparities— 

23 (A) depresses the wages of working fami24 lies who rely on the wages of all members of the 

25 family to make ends meet; 


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1 (B) prevents the optimum utilization of 

2 available labor resources; 

3 (C) burdens commerce and the free flow of 

4 goods in commerce; and 

5 (D) in many instances, may deprive work6 ers of equal protection on the basis of sex in 

7 violation of the 5th and 14th amendments. 

8 (4) Artificial barriers to the elimination of dis9 crimination in the payment of wages on the basis of 

10 sex continue to exist decades after the enactment of 

11 the Fair Labor Standards Act of 1938 (29 U.S.C. 

12 201 et seq.) and the Civil Rights Act of 1964 (42 

13 U.S.C. 2000a et seq.). 

14 SEC. 452. ENHANCED ENFORCEMENT OF EQUAL PAY RE15 QUIREMENTS. 

16 (a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE

17 DEFENSE.—Section 6(d)(1) of the Fair Labor Standards 

18 Act of 1938 (29 U.S.C. 206(d)(1)) is amended by striking 

19 ‘‘(iv) a differential’’ and all that follows through the period 

20 and inserting the following: ‘‘(iv) a differential based on 

21 a bona fide factor other than sex, such as education, train22 ing or experience, except that this clause shall apply only 

23 if— 

24 ‘‘(I) the employer demonstrates that— 

25 ‘‘(aa) such factor— 


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1 ‘‘(AA) is job-related with respect to 

2 the position in question; or 

3 ‘‘(BB) furthers a legitimate business 

4 purpose, except that this item shall not 

5 apply where the employee demonstrates 

6 that an alternative employment practice 

7 exists that would serve the same business 

8 purpose without producing such differen9 tial and that the employer has refused to 

10 adopt such alternative practice; and 

11 ‘‘(bb) such factor was actually applied and 

12 used reasonably in light of the asserted jus13 tification; and 

14 ‘‘(II) upon the employer succeeding under sub15 clause (I), the employee fails to demonstrate that 

16 the differential produced by the reliance of the em17 ployer on such factor is itself the result of discrimi18 nation on the basis of sex by the employer. 

19 An employer that is not otherwise in compliance with this 

20 paragraph may not reduce the wages of any employee in 

21 order to achieve such compliance.’’. 

22 (b) APPLICATION OF PROVISIONS.—Section 6(d)(1) 

23 of the Fair Labor Standards Act of 1938 (29 U.S.C. 

24 206(d)(1)) is amended by adding at the end the following: 

25 ‘‘The provisions of this subsection shall apply to applicants 


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1 for employment if such applicants, upon employment by 

2 the employer, would be subject to any provisions of this 

3 section.’’. 

4 (c) ELIMINATION OF ESTABLISHMENT REQUIRE5 MENT.—Section 6(d) of the Fair Labor Standards Act of 

6 1938 (29 U.S.C. 206(d)) is amended— 

7 (1) by striking ‘‘, within any establishment in 

8 which such employees are employed,’’; and 

9 (2) by striking ‘‘in such establishment’’ each 

10 place it appears. 

11 (d) NONRETALIATION PROVISION.—Section 15(a)(3) 

12 of the Fair Labor Standards Act of 1938 (29 U.S.C. 

13 215(a)(3)) is amended— 

14 (1) by striking ‘‘or has’’ each place it appears 

15 and inserting ‘‘has’’; and 

16 (2) by inserting before the semicolon the fol17 lowing: ‘‘, or has inquired about, discussed, or other18 wise disclosed the wages of the employee or another 

19 employee, or because the employee (or applicant) has 

20 made a charge, testified, assisted, or participated in 

21 any manner in an investigation, proceeding, hearing, 

22 or action under section 6(d)’’. 

23 (e) ENHANCED PENALTIES.—Section 16(b) of the 

24 Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 

25 amended— 


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1 (1) by inserting after the first sentence the fol2 lowing: ‘‘Any employer who violates section 6(d) 

3 shall additionally be liable for such compensatory or 

4 punitive damages as may be appropriate, except that 

5 the United States shall not be liable for punitive 

6 damages.’’; 

7 (2) in the sentence beginning ‘‘An action to’’, 

8 by striking ‘‘either of the preceding sentences’’ and 

9 inserting ‘‘any of the preceding sentences of this 

10 subsection’’; 

11 (3) in the sentence beginning ‘‘No employees 

12 shall’’, by striking ‘‘No employees’’ and inserting 

13 ‘‘Except with respect to class actions brought to en14 force section 6(d), no employee’’; 

15 (4) by inserting after the sentence referred to 

16 in paragraph (3), the following: ‘‘Notwithstanding 

17 any other provision of Federal law, any action 

18 brought to enforce section 6(d) may be maintained 

19 as a class action as provided by the Federal Rules 

20 of Civil Procedure.’’; and 

21 (5) in the sentence beginning ‘‘The court in’’— 

22 (A) by striking ‘‘in such action’’ and in23 serting ‘‘in any action brought to recover the li24 ability prescribed in any of the preceding sen25 tences of this subsection’’; and 


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1 (B) by inserting before the period the fol2 lowing: ‘‘, including expert fees’’. 

3 (f) ACTION BY SECRETARY.—Section 16(c) of the 

4 Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is 

5 amended— 

6 (1) in the first sentence— 

7 (A) by inserting ‘‘or, in the case of a viola8 tion of section 6(d), additional compensatory or 

9 punitive damages,’’ before ‘‘and the agree10 ment’’; and 

11 (B) by inserting before the period the fol12 lowing: ‘‘, or such compensatory or punitive 

13 damages, as appropriate’’; 

14 (2) in the second sentence, by inserting before 

15 the period the following: ‘‘and, in the case of a viola16 tion of section 6(d), additional compensatory or pu17 nitive damages’’; 

18 (3) in the third sentence, by striking ‘‘the first 

19 sentence’’ and inserting ‘‘the first or second sen20 tence’’; and 

21 (4) in the last sentence— 

22 (A) by striking ‘‘commenced in the case’’ 

23 and inserting ‘‘commenced— 

24 ‘‘(1) in the case’’; 


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1 (B) by striking the period and inserting ‘‘; 

2 or’’; and 

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

4 ‘‘(2) in the case of a class action brought to en5 force section 6(d), on the date on which the indi6 vidual becomes a party plaintiff to the class action.’’. 

7 Subtitle G—Protections for 

8 Workers 

9 CHAPTER 1—PROTECTION FOR 

10 UNDOCUMENTED WORKERS 

11 SEC. 461. FINDINGS. 

12 Congress finds the following: 

13 (1) The National Labor Relations Act (29 

14 U.S.C. 151 et seq.) (in this chapter referred to as 

15 the ‘‘NLRA’’), enacted in 1935, guarantees the right 

16 of employees to organize and to bargain collectively 

17 with their employers. The NLRA implements the na18 tional labor policy of assuring free choice and en19 couraging collective bargaining as a means of main20 taining industrial peace. The National Labor Rela21 tions Board (in this chapter referred to as the 

22 ‘‘NLRB’’) was created by Congress to enforce the 

23 provisions of the NLRA. 

24 (2) Under section 8 of the NLRA, employers 

25 are prohibited from discriminating against employVerDate Aug 31 2005 03:55 Jan 24, 2008 Jkt 069200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 E:\BILLS\H5129.IH H5129

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1 ees ‘‘in regard to hire or tenure of employment or 

2 any term or condition of employment to encourage 

3 or discourage membership in any labor organiza4 tion’’. (29 U.S.C. 158(a)(3)). Employers who violate 

5 these provisions are subject to a variety of sanctions, 

6 including reinstatement of workers found to be ille7 gally discharged because of their union support or 

8 activity and provision of backpay to those employees. 

9 Such sanctions serve to remedy and deter illegal ac10 tions by employers. 

11 (3) In Hoffman Plastic Compounds Inc. v. 

12 NLRB, 535 U.S. 137 (2002), the Supreme Court 

13 held by a 5 to 4 vote that Federal immigration pol14 icy, as articulated in amendments made by the Im15 migration Reform and Control Act of 1986 (Public 

16 Law 99–603; 100 Stat. 3359), prevented the NLRB 

17 from awarding backpay to an undocumented immi18 grant who was discharged in violation of the NLRA 

19 because of his support for union representation at 

20 his workplace. 

21 (4) The decision in Hoffman has an impact on 

22 all employees, regardless of immigration or citizen23 ship status, who try to improve their working condi24 tions. In the wake of Hoffman Plastics, employers 

25 may be more likely to report to the Department of 


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1 Homeland Security minority workers, regardless of 

2 their immigration or citizenship status, who pursue 

3 claims under the NLRA against their employers. 

4 Fear that employers may retaliate against employees 

5 that exercise their rights under the NLRA has a 

6 chilling effect on all employees who exercise their 

7 labor rights. 

8 (5) The NLRA is not the only Federal employ9 ment statute that provides for a backpay award as 

10 a remedy for an unlawful discharge. For example, 

11 courts routinely award backpay to employees who 

12 are found to have been discharged in violation of 

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

14 2000e et seq.) or the Fair Labor Standards Act of 

15 1938 (29 U.S.C. 201 et seq.) (in retaliation for com16 plaining about a failure to comply with the minimum 

17 wage). In the wake of the Hoffman decision, defend18 ant employers will now argue that backpay awards 

19 to unlawfully discharged undocumented workers are 

20 barred under Federal employment statutes and even 

21 under State employment statutes. 

22 (6) Because the Hoffman decision prevents the 

23 imposition of sanctions on employers who discrimi24 nate against undocumented immigrant workers, em25 ployers are encouraged to employ such workers for 


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1 low-paying and dangerous jobs because they have no 

2 legal redress for violations of the law. This creates 

3 an economic incentive for employers to hire and ex4 ploit undocumented workers, which in turn tends to 

5 undermine the living standards and working condi6 tions of all Americans, citizens and noncitizens alike. 

7 (7) The Hoffman decision disadvantages many 

8 employers as well. Employers who are forced to com9 pete with firms that hire and exploit undocumented 

10 immigrant workers are saddled with an economic 

11 disadvantage in the labor marketplace. The unin12 tended creation of an economic inducement for em13 ployers to exploit undocumented immigrant workers 

14 gives those employers an unfair competitive advan15 tage over employers that treat workers lawfully and 

16 fairly. 

17 (8) The Court’s decision in Hoffman makes 

18 clear that ‘‘any ‘perceived deficiency in the NLRA’s 

19 existing remedial arsenal’ must be ‘addressed by 

20 congressional action[.]’ ’’ Hoffman Plastic Com21 pounds Inc. v. NLRB, 535 U.S. 137, 152 (2002) 

22 (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 

23 904 (1984)). In emphasizing the importance of back 

24 pay awards, Justice Breyer noted that such awards 

25 against employers ‘‘help[] to deter unlawful activity 


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1 that both labor laws and immigration laws seek to 

2 prevent’’. Hoffman Plastic Compounds Inc. v. 

3 NLRB, 535 U.S. 137, 152 (2002). Because back 

4 pay awards are designed both to remedy the individ5 ual’s private right to be free from discrimination as 

6 well as to enforce the important public policy against 

7 discriminatory employment practices, Congress must 

8 take the following corrective action. 

9 SEC. 462. CONTINUED APPLICATION OF BACKPAY REM10 EDIES. 

11 (a) IN GENERAL.—Section 274A(h) of the Immigra12 tion and Nationality Act (8 U.S.C. 1324a(h)) is amended 

13 by adding at the end the following: 

14 ‘‘(4) BACKPAY REMEDIES.—Backpay or other 

15 monetary relief for unlawful employment practices 

16 shall not be denied to a present or former employee 

17 as a result of the employer’s or the employee’s— 

18 ‘‘(A) failure to comply with the require19 ments of this section; or 

20 ‘‘(B) violation of a provision of Federal law 

21 related to the employment verification system 

22 described in subsection (b) in establishing or 

23 maintaining the employment relationship.’’. 

24 (b) EFFECTIVE DATE.—The amendment made by 

25 subsection (a) shall apply to any failure to comply or any 


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1 violation that occurs prior to, on, or after the date of en2 actment of this subtitle. 

3 CHAPTER 2—FAIR LABOR STANDARDS 

4 ACT AMENDMENTS 

5 SEC. 466. SHORT TITLE. 

6 This chapter may be cited as the ‘‘Workers’ Minimum 

7 Wage and Overtime Rights Restoration Act of 2008’’. 

8 SEC. 467. FINDINGS. 

9 Congress finds the following with respect to the Fair 

10 Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) (in 

11 this chapter referred to as the ‘‘FLSA’’): 

12 (1) Since 1974, the FLSA has regulated States 

13 with respect to the payment of minimum wage and 

14 overtime rates. In Garcia v. San Antonio Metropoli15 tan Transit Authority, 469 U.S. 528 (1985), the Su16 preme Court upheld Congress’s constitutional au17 thority to regulate States in the payment of min18 imum wages and overtime. The prohibitions of the 

19 FLSA remain in effect and continue to apply to the 

20 States. 

21 (2) Wage and overtime violations in employ22 ment remain a serious problem both nationally and 

23 among State and other public and private entities 

24 receiving Federal financial assistance, and has invid25 ious effects on its victims, the labor force, and the 


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1 general welfare and economy as a whole. For exam2 ple, 7 State governments have no overtime laws at 

3 all. Fourteen State governments have minimum 

4 wage and overtime laws; however, they exclude em5 ployees covered under the FLSA. As such, public 

6 employees, since they are covered under the FLSA 

7 are not protected under these State laws. Addition8 ally, 4 States have minimum wage and overtime laws 

9 which are inferior to the FLSA. Further, the De10 partment of Labor continues to receive a substantial 

11 number of wage and overtime charges against State 

12 government employers. 

13 (3) Private civil suits by the victims of employ14 ment law violations have been a crucial tool for en15 forcement of the FLSA. In Alden v. Maine, 527 

16 U.S. 706 (1999), however, the Supreme Court held 

17 that Congress lacks the power under the 14th 

18 amendment to the Constitution to abrogate State 

19 sovereign immunity to suits for legal relief by indi20 viduals under the FLSA. The Federal Government 

21 has an important interest in ensuring that Federal 

22 financial assistance is not used to facilitate viola23 tions of the FLSA, and private civil suits for mone24 tary relief are a critical tool for advancing that in25 terest. 


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1 (4) After the Alden decision, wage and overtime 

2 violations by State employers remain unlawful, but 

3 victims of such violations lack important remedies 

4 for vindication of their rights available to all other 

5 employees covered by the FLSA. In the absence of 

6 the deterrent effect that such remedies provide, 

7 there is a great likelihood that State entities car8 rying out federally funded programs and activities 

9 will use Federal financial assistance to violate the 

10 FLSA, or that the Federal financial assistance will 

11 otherwise subsidize or facilitate FLSA violations. 

12 (5) The Supreme Court has upheld Congress’s 

13 authority to condition receipt of Federal financial 

14 assistance on acceptance by State or other covered 

15 entities of conditions regarding or related to the use 

16 of those funds, as in Cannon v. University of Chi17 cago, 441 U.S. 677 (1979). 

18 (6) The Court has further recognized that Con19 gress may require State entities, as a condition of 

20 receipt of Federal financial assistance, to waive their 

21 State sovereign immunity to suits for a violation of 

22 Federal law, as in College Savings Bank v. Florida 

23 Prepaid Postsecondary Education Expense Board, 

24 527 U.S. 666 (1999). 


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1 (7) In the wake of the Alden decision, it is nec2 essary, in order to foster greater compliance with, 

3 and adequate remedies for violations of, the FLSA, 

4 particularly in federally funded programs or activi5 ties operated by State entities, to require State enti6 ties to consent to a waiver of State sovereign immu7 nity as a condition of receipt of such Federal finan8 cial assistance. 

9 (8) The Supreme Court has repeatedly held 

10 that State sovereign immunity does not bar suits for 

11 prospective injunctive relief brought against State 

12 officials acting in their official capacity, as in Ex 

13 parte Young (209 U.S. 123 (1908)). The injunctive 

14 relief available in such suits under the FLSA will 

15 continue to be the same as that which was available 

16 under those laws prior to enactment of this chapter. 

17 SEC. 468. PURPOSES. 

18 The purposes of this chapter are— 

19 (1) to provide to State employees in programs 

20 or activities that receive or use Federal financial as21 sistance the same rights and remedies for practices 

22 violating the FLSA as are available to other employ23 ees under the FLSA, and that were available to 

24 State employees prior to the Supreme Court’s deci25 sion in Alden v. Maine, 527 U.S. 706 (1999); 


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1 (2) to provide that the receipt or use of Federal 

2 financial assistance for a program or activity con3 stitutes a State waiver of sovereign immunity from 

4 suits by employees within that program or activity 

5 for violations of the FLSA; and 

6 (3) to affirm that suits for injunctive relief are 

7 available against State officials in their official ca8 pacities for violations of the FLSA. 

9 SEC. 469. REMEDIES FOR STATE EMPLOYEES. 

10 Section 16 of the Fair Labor Standards Act of 1938 

11 (29 U.S.C. 216) is amended by adding at the end the fol12 lowing: 

13 ‘‘(f)(1) A State’s receipt or use of Federal financial 

14 assistance for any program or activity of a State shall con15 stitute a waiver of sovereign immunity, under the 11th 

16 amendment to the Constitution or otherwise, to a suit 

17 brought by an employee of that program or activity under 

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

19 under this Act. 

20 ‘‘(2) In this subsection, the term ‘program or activity’ 

21 has the meaning given the term in section 309 of the Age 

22 Discrimination Act of 1975 (42 U.S.C. 6107).’’. 

Æ 


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