II 

108TH CONGRESS 

2D SESSION S. 2088

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

rights statutes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 12, 2004

Mr. KENNEDY (for himself, Mr. DASCHLE, Mr. REID, Mr. LEAHY, Mr. DODD, 

Mr. HARKIN, Mr. KERRY, Mr. FEINGOLD, Ms. MIKULSKI, Mr. SCHUMER, 

Mrs. MURRAY, Mr. DURBIN, Mr. EDWARDS, Mrs. CLINTON, Mr. SARBANES, Mr. LAUTENBERG, Mr. CORZINE, Ms. LANDRIEU, and Ms. CANTWELL) introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

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 ‘‘Fairness and Indi5 vidual Rights Necessary to Ensure a Stronger Society: 

6 Civil Rights Act of 2004’’. 

7 SEC. 2. TABLE OF CONTENTS. 

8 The table of contents for this Act is as follows:
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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—UNIFORMED SERVICES EMPLOYMENT AND 

REEMPLOYMENT RIGHTS ACT OF 1994 AMENDMENT 

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

TITLE III—AIR CARRIER ACCESS ACT OF 1986 AMENDMENT 

Sec. 301. Findings. 

Sec. 302. Civil action. 

TITLE IV—AGE DISCRIMINATION IN EMPLOYMENT ACT 

AMENDMENTS 

Sec. 401. Short title. 

Sec. 402. Findings. 

Sec. 403. Purposes. 

Sec. 404. Remedies for State employees. 

Sec. 405. Disparate impact claims. 

Sec. 406. Effective date. 

TITLE V—CIVIL RIGHTS REMEDIES AND RELIEF 

Subtitle A—Prevailing Party 

Sec. 501. Short title. 

Sec. 502. Definition of prevailing party. 

Subtitle B—Arbitration 

Sec. 511. Short title. 

Sec. 512. Amendment to Federal Arbitration Act. 

Sec. 513. Unenforceability of arbitration clauses in employment contracts. 

Sec. 514. Application of amendments. 

Subtitle C—Expert Witness Fees 
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Sec. 521. Purpose. 

Sec. 522. Findings. 

Sec. 523. Effective provisions. 

Subtitle D—Equal Remedies Act of 2004

Sec. 531. Short title. 

Sec. 532. Equalization of remedies. 

TITLE VI—PROHIBITIONS AGAINST SEX DISCRIMINATION 

Sec. 601. Short title. 

Sec. 602. Findings. 

Sec. 603. Enhanced enforcement of equal pay requirements. 

Sec. 604. Training. 

Sec. 605. Research, education, and outreach. 

Sec. 606. Technical assistance and employer recognition program. 

Sec. 607. Establishment of the National Award for Pay Equity in the Workplace. 

Sec. 608. Collection of pay information by the Equal Employment Opportunity 

Commission. 

Sec. 609. Authorization of appropriations. 

TITLE VII—PROTECTIONS FOR WORKERS 

Subtitle A—Protection for Undocumented Workers 

Sec. 701. Findings. 

Sec. 702. Continued application of backpay remedies. 

Subtitle B—Fair Labor Standards Act Amendments 

Sec. 711. Short title. 

Sec. 712. Findings. 

Sec. 713. Purposes. 

Sec. 714. 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: 
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1 (1) This subtitle is made necessary by a deci2 sion of the Supreme Court in Alexander v. Sandoval, 

3 532 U.S. 275 (2001) that significantly impairs stat4 utory protections against discrimination that Con5 gress has erected over a period of almost 4 decades. 

6 The Sandoval decision undermines these statutory 

7 protections by stripping victims of discrimination 

8 (defined under regulations that Congress required 

9 Federal departments and agencies to promulgate to 

10 implement title VI of the Civil Rights Act of 1964 

11 (42 U.S.C. 2000d et seq.)) of the right to bring ac12 tion in Federal court to redress the discrimination 

13 and by casting doubt on the validity of the regula14 tions themselves. 

15 (2) The Sandoval decision attacks settled expec16 tations created by title VI of the Civil Rights Act of 

17 1964, title IX of the Education Amendments of 

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

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

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

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

24 rights provisions’’). The covered civil rights provi25 sions were designed to establish and make effective 
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1 the rights of persons to be free from discrimination 

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

3 of the covered civil rights provisions, as appropriate 

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

5 1964 Congress adopted title VI of the Civil Rights 

6 Act of 1964 to ensure that Federal dollars would not 

7 be used to subsidize or support programs or activi8 ties that discriminated on racial, color, or national 

9 origin grounds. In the years that followed, Congress 

10 extended these protections by enacting laws barring 

11 discrimination in federally funded activities on the 

12 basis of sex in title IX of the Education Amend13 ments of 1972, age in the Age Discrimination Act 

14 of 1975, and disability in section 504 of the Reha15 bilitation Act of 1973. 

16 (3) From the outset, Congress and the execu17 tive branch made clear that the regulatory process 

18 would be used to ensure broad protections for bene19 ficiaries of the law. The first regulations promul20 gated by the Department of Justice under title VI 

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

22 et seq.) forbade the use of ‘‘criteria or methods of 

23 administration which have the effect of subjecting 

24 individuals to discrimination . . .’’ (section 80.3 of 

25 title 45, Code of Federal Regulations) and prohib-
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1 ited retaliation against persons participating in liti2 gation or administrative resolution of charges of dis3 crimination brought under the Act. These regula4 tions were drafted by the same executive branch offi5 cials who played a central role in drafting title VI 

6 of the Civil Rights Act of 1964. The language used 

7 is, in relevant respects, virtually indistinguishable 

8 from regulations under the several Acts in effect 

9 today. For example, section 304 of the Age Dis10 crimination Act of 1975 (42 U.S.C. 6103) required 

11 the Secretary of the Department of Health, Edu12 cation, and Welfare (HEW) (now Health and 

13 Human Services (HHS)) to promulgate ‘‘general 

14 regulations’’ to effectuate the purposes of the Act. 

15 These ‘‘government-wide regulations,’’ governing age 

16 discrimination in programs and activities receiving 

17 Federal financial assistance condemn ‘‘any actions 

18 which have [a discriminatory] effect, on the basis of 

19 age . . .’’ (section 90.12 of title 45, Code of Federal 

20 Regulations). 

21 (4) None of the regulations under the laws ad22 dressed in this subtitle have ever been invalidated. 

23 In 1966, Congress considered and rejected a pro24 posal to invalidate the disparate impact regulations 

25 promulgated pursuant to title VI of the Civil Rights
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1 Act of 1964 (42 U.S.C. 2000d et seq.). In 1975, 

2 Congress reviewed and maintained the implementing 

3 regulations promulgated pursuant to title IX of the 

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

5 seq.), pursuant to a statutory procedure designed to 

6 afford Congress the opportunity to invalidate provi7 sions deemed to be inconsistent with congressional 

8 intent. The Supreme Court has recognized that 

9 Congress’s failure to disapprove regulations implies 

10 that the regulations accurately reflect congressional 

11 intent. North Haven Bd. of Educ. v. Bell, 456 U.S. 

12 512, 533–34 (1982). Moreover, the Supreme Court 

13 explicitly recognized congressional approval of the 

14 regulations promulgated to implement section 504 of 

15 the Rehabilitation Act of 1973 (29 U.S.C. 794) in 

16 Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 

17 634 (1984), stating that ‘‘[t]he regulations particu18 larly merit deference in the present case: the respon19 sible Congressional committees participated in their 

20 formation and both these committees and Congress 

21 itself endorsed the regulations in their final form.’’. 

22 (5) All of the civil rights provisions cited in this 

23 section were designed to confer a benefit on persons 

24 who were discriminated against. They relied heavily 

25 on private attorneys general for effective enforce-
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1 ment. Congress acknowledged that it could not se2 cure compliance solely through enforcement actions 

3 initiated by the Attorney General. Newman v. Piggie 

4 Park Enterprises, 390 U.S. 400 (1968) (per cu5 riam). 

6 (6) The Supreme Court has made it clear that 

7 individuals suffering discrimination under these stat8 utes have a private right of action in the Federal 

9 courts, and that this is necessary for effective pro10 tection of the law, although Congress did not make 

11 such a right of action explicit in the statute. Cannon 

12 v. University of Chicago, 441 U.S. 677 (1979). 

13 (7)(A) Notwithstanding the decision of the Su14 preme Court in Cort v. Ash, 422 U.S. 66 (1975) to 

15 abandon prior precedent and require explicit statu16 tory statements of a right of action, Congress and 

17 the Courts both before and after Cort have recog18 nized an implied right of action under the above 

19 statutes. For example, Congress has consistently 

20 provided the means for enforcing the statutes. In 

21 1972, Congress established a right to attorney’s fees 

22 in private actions brought under title VI of the Civil 

23 Rights Act of 1964 (42 U.S.C. 2000d et seq.) and 

24 title IX of the Education Amendments of 1972 (20 

25 U.S.C. 1681 et seq.) that continued with enactment 
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1 of the Civil Rights Attorneys’ Fees Awards Act of 

2 1976 (Public Law 94–559; 90 Stat. 2641). In 1973, 

3 Congress provided a right to attorney’s fees for pre4 vailing parties under section 504 of the Rehabilita5 tion Act of 1973 (29 U.S.C. 794) without expressly 

6 stating that there was a right of action. In 1978 

7 Congress amended the Age Discrimination Act of 

8 1975 (42 U.S.C. 6101 et seq.) to include a right to 

9 attorney’s fees. Because the Age Discrimination Act 

10 of 1975 was enacted while the Cort decision was 

11 pending, Congress also enacted in 1978 a limited 

12 private right of action to enforce the Age Discrimi13 nation Act of 1975. 

14 (B) The Senate Report that accompanied the 

15 Civil Rights Attorneys’ Fees Awards Act of 1976 

16 (Public Law 94–559; 90 Stat. 2641) stated that 

17 ‘‘All of these civil rights laws . . . depend heavily 

18 upon private enforcement, and fee awards have 

19 proved an essential remedy if private citizens are to 

20 have a meaningful opportunity to vindicate the im21 portant congressional policies which these laws con22 tain.’’ S. Rep. No. 94–1011 (1976). 

23 (8) The Supreme Court had no basis in law or 

24 in legislative history in Sandoval for denying a right 

25 of action under regulations promulgated pursuant to 
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1 title VI of the Civil Rights Act of 1964 (42 U.S.C. 

2 2000d et seq.) while permitting it under the statute. 

3 The regulations were congressionally mandated and 

4 their promulgation was specifically directed by Con5 gress under section 602 of that Act (42 U.S.C. 

6 2000d–1) ‘‘to effectuate’’ the antidiscrimination pro7 visions of the statute. Title VI of the Civil Rights 

8 Act of 1964 stressed the importance of the regula9 tions by requiring them to be ‘‘approved by the 

10 President’’. Similarly, the regulations promulgated 

11 pursuant to title IX of the Education Amendments 

12 of 1972 (20 U.S.C. 1681 et seq.) were also congres13 sionally authorized and specifically directed by Con14 gress to effectuate the provisions of the statute. 

15 Title IX of the Education Amendments of 1972 

16 stressed the importance of the regulations by requir17 ing them to be ‘‘approved by the President’’. 

18 (9) Regulations that prohibit practices that 

19 have the effect of discrimination are consistent with 

20 prohibitions of disparate treatment that require a 

21 showing of intent, as the Supreme Court has ac22 knowledged in the following decisions: 

23 (A) A disparate impact standard allows a 

24 court to reach discrimination that could actu25 ally exist under the guise of compliance with 
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1 the law. Griggs v. Duke Power Co., 401 U.S. 

2 424 (1971). 

3 (B) Evidence of a disproportionate burden 

4 will often be the starting point in any analysis 

5 of unlawful discrimination. Village of Arlington 

6 Heights v. Metropolitan Hous. Dev. Corp., 429 

7 U.S. 252 (1977). 

8 (C) An invidious purpose may often be in9 ferred from the totality of the relevant facts, in10 cluding, where true, that the practice bears 

11 more heavily on one race than another. Wash12 ington v. Davis, 426 U.S. 229 (1976). 

13 (D) The disparate impact method of proof 

14 is critical to ferreting out stereotypes under15 lying intentional discrimination. Watson v. Fort 

16 Worth Bank & Trust, 487 U.S. 977 (1988). 

17 (10) The interpretation of title VI of the Civil 

18 Rights Act of 1964 (42 U.S.C. 2000d et seq.), title 

19 IX of the Education Amendments of 1972 (20 

20 U.S.C. 1681 et seq.), and other statutes barring dis21 crimination by covered entities as prohibiting prac22 tices that have disparate impact and that are not 

23 justified as necessary to achieve the goals of the pro24 grams or activities supported by the Federal finan25 cial assistance is powerfully reinforced by the use of
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1 such a standard in enforcing title VII of the Civil 

2 Rights Act of 1964 (42 U.S.C. 2000e et seq.). When 

3 the Supreme Court wavered on the application of a 

4 disparate impact standard under title VII, Congress 

5 specifically reinstated it as law in the Civil Rights 

6 Act of 1991 (Public Law 102–166; 105 Stat. 1071). 

7 (11) By reinstating a private right of action 

8 under title VI of the Civil Rights Act of 1964 (42 

9 U.S.C. 2000d et seq.) and confirming that right for 

10 other civil rights statutes, Congress is not acting in 

11 a manner that would expose covered entities to un12 fair findings of discrimination. The legal standard 

13 for a disparate impact claim has never been struc14 tured so that a finding of discrimination could be 

15 based on numerical imbalance alone. 

16 (12) In contrast, a failure to reinstate or con17 firm a private right of action would leave vindication 

18 of the rights to equality of opportunity solely to Fed19 eral agencies, which may fail to take necessary and 

20 appropriate action because of administrative over21 burden or other reasons. Action by Congress to 

22 specify a private right of action is necessary to en23 sure that persons will have a remedy if they are de24 nied equal access to education, housing, health, envi25 ronmental protection, transportation, and many 
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1 other programs and services by practices of covered 

2 entities that result in discrimination. 

3 (13) As a result of the Supreme Court’s deci4 sion in Sandoval, courts have dismissed numerous 

5 claims brought under the regulations promulgated 

6 pursuant to title VI of the Civil Rights Act of 1964 

7 (42 U.S.C. 2000d et seq.) that challenged actions 

8 with an unjustified discriminatory effect. Although 

9 the Sandoval Court did not address title IX of the 

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

11 seq.), lower courts have similarly dismissed claims 

12 under such Act. Courts relying on the Sandoval deci13 sion have also dismissed claims seeking redress for 

14 unlawful retaliation against persons who opposed 

15 prohibited acts, brought actions, or participated in 

16 actions, under title VI of the Civil Rights Act of 

17 1964 and title IX of the Education Amendments of 

18 1972. Because judicial interpretation of the Age 

19 Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) 

20 has tracked that of title VI of the Civil Rights Act 

21 of 1964 and title IX of the Education Amendments 

22 of 1972, without clarification of Sandoval, plaintiffs 

23 run the risk that courts may dismiss claims brought 

24 under regulations promulgated pursuant to the Age 

25 Discrimination Act of 1975 challenging actions with 
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1 an unjustified discriminatory effect and claims seek2 ing redress for unlawful retaliation against persons 

3 who have brought or participated in actions under 

4 the Age Discrimination Act of 1975. 

5 (14) Section 504 of the Rehabilitation Act of 

6 1973 (29 U.S.C. 794) has received different treat7 ment by the Supreme Court. In Alexander v. Choate, 

8 469 U.S. 287 (1985), the Court proceeded on the 

9 assumption that the statute itself prohibited some 

10 actions that had a disparate impact on handicapped 

11 individuals—an assumption borne out by congres12 sional statements made during passage of the Act. 

13 In Sandoval, the Court appeared to accept this prin14 ciple of Alexander. Moreover, the Supreme Court ex15 plicitly recognized congressional approval of the reg16 ulations promulgated to implement section 504 of 

17 the Rehabilitation Act of 1973 in Consolidated Rail 

18 Corp. v. Darrone, 465 U.S. 624, 634 (1984). Rely19 ing on the validity of the regulations, Congress in20 corporated the regulations into the statutory require21 ments of section 204 of the Americans with Disabil22 ities Act of 1990 (42 U.S.C. 12134). Thus it does 

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

24 private right of action to challenge disparate impact 
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1 discrimination under section 504 of the Rehabilita2 tion Act of 1973 will become unavailable. 

3 (15) Since the enactment of title VI of the Civil 

4 Rights Act of 1964, title IX of the Education 

5 Amendments of 1972, the Age Discrimination Act of 

6 1975, and section 504 of the Rehabilitation Act of 

7 1973, Congress has intended that the prohibitions 

8 on discrimination in those provisions include a prohi9 bition on retaliation. The ability to prevent retalia10 tion against persons who oppose any policy or prac11 tice prohibited by those provisions, or make a 

12 charge, testify, assist, or participate in any manner 

13 in an investigation, proceeding, or hearing under 

14 those provisions, is essential to realizing the prohibi15 tions on discrimination in those provisions. 

16 (16) 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 de-
17

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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 one 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 ‘‘(c) No person in the United States shall be sub20 jected to discrimination, including retaliation, because 

21 such person opposed any policy or practice prohibited by 

22 this title, or because such person made a charge, testified, 

23 assisted, or participated in any manner in an investiga24 tion, proceeding, or hearing under this title.’’.
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1 (b) EDUCATION AMENDMENTS OF 1972.—Section 

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

3 1681) is amended—

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

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

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

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

11 benefits) based on disparate impact is established under 

12 this title only if—

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

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

15 person’) demonstrates that an entity subject to this 

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

17 has a policy or practice that causes a disparate im18 pact on the basis of sex and the covered entity fails 

19 to demonstrate that the challenged policy or practice 

20 is related to and necessary to achieve the non21 discriminatory goals of the program or activity al22 leged to have been operated in a discriminatory 

23 manner; or 

24 ‘‘(ii) the aggrieved person demonstrates (con25 sistent with the demonstration required under title 
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1 VII of the Civil Rights Act of 1964 (42 U.S.C. 

2 2000e et seq.) with respect to an ‘alternative em3 ployment practice’) that a less discriminatory alter4 native policy or practice exists, and the covered enti5 ty refuses to adopt such alternative policy or prac6 tice. 

7 ‘‘(B)(i) With respect to demonstrating that a par8 ticular policy or practice causes a disparate impact as de9 scribed in subparagraph (A)(i), the aggrieved person shall 

10 demonstrate that each particular challenged policy or 

11 practice causes a disparate impact, except that if the ag12 grieved person demonstrates to the court that the elements 

13 of a covered entity’s decisionmaking process are not capa14 ble of separation for analysis, the decisionmaking process 

15 may be analyzed as one policy or practice. 

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

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

18 covered entity shall not be required to demonstrate that 

19 such policy or practice is necessary to achieve the goals 

20 of its program or activity. 

21 ‘‘(2) A demonstration that a policy or practice is nec22 essary to achieve the goals of a program or activity may 

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

24 discrimination under this title. 
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1 ‘‘(3) In this subsection, the term ‘demonstrates’ 

2 means meets the burdens of production and persuasion. 

3 ‘‘(d) No person in the United States shall be sub4 jected to discrimination, including retaliation, because 

5 such person opposed any policy or practice prohibited by 

6 this title, or because such person made a charge, testified, 

7 assisted, or participated in any manner in an investiga8 tion, proceeding, or hearing under this title.’’. 

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

10 303 of the Age Discrimination Act of 1975 (42 U.S.C. 

11 6102) is amended—

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

13 Pursuant’’; and 

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

15 ‘‘(b)(1)(A) Subject to the conditions described in sub16 sections (b) and (c) of section 304, discrimination (includ17 ing exclusion from participation and denial of benefits) 

18 based on disparate impact is established under this title 

19 only if—

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

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

22 person’) demonstrates that an entity subject to this 

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

24 has a policy or practice that causes a disparate im25 pact on the basis of age and the covered entity fails 
21

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1 to demonstrate that the challenged policy or practice 

2 is related to and necessary to achieve the non3 discriminatory goals of the program or activity al4 leged to have been operated in a discriminatory 

5 manner; or 

6 ‘‘(ii) the aggrieved person demonstrates (con7 sistent with the demonstration required under title 

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

9 2000e et seq.) with respect to an ‘alternative em10 ployment practice’) that a less discriminatory alter11 native policy or practice exists, and the covered enti12 ty refuses to adopt such alternative policy or prac13 tice. 

14 ‘‘(B)(i) With respect to demonstrating that a par15 ticular policy or practice causes a disparate impact as de16 scribed in subparagraph (A)(i), the aggrieved person shall 

17 demonstrate that each particular challenged policy or 

18 practice causes a disparate impact, except that if the ag19 grieved person demonstrates to the court that the elements 

20 of a covered entity’s decisionmaking process are not capa21 ble of separation for analysis, the decisionmaking process 

22 may be analyzed as one policy or practice. 

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

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

25 covered entity shall not be required to demonstrate that 
22

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1 such policy or practice is necessary to achieve the goals 

2 of its program or activity. 

3 ‘‘(2) A demonstration that a policy or practice is nec4 essary to achieve the goals of a program or activity may 

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

6 discrimination under this title. 

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

8 means meets the burdens of production and persuasion. 

9 ‘‘(c) No person in the United States shall be sub10 jected to discrimination, including retaliation, because 

11 such person opposed any policy or practice prohibited by 

12 this title, or because such person made a charge, testified, 

13 assisted, or participated in any manner in an investiga14 tion, proceeding, or hearing under this title.’’. 

15 SEC. 103. RIGHTS OF ACTION. 

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

17 Civil Rights Act of 1964 (42 U.S.C. 2000d–1) is amend18 ed—

19 (1) by inserting ‘‘(a)’’ before ‘‘Each Federal de20 partment and agency which is empowered’’; and 

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

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

23 entity to comply with this title, including any regulation 

24 promulgated pursuant to this title, may bring a civil action
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1 in any Federal or State court of competent jurisdiction 

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

3 (b) EDUCATION AMENDMENTS OF 1972.—Section 

4 902 of the Education Amendments of 1972 (20 U.S.C. 

5 1682) is amended—

6 (1) by inserting ‘‘(a)’’ before ‘‘Each Federal de7 partment and agency which is empowered’’; and 

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

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

10 entity to comply with this title, including any regulation 

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

12 in any Federal or State court of competent jurisdiction 

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

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

15 305(e) of the Age Discrimination Act of 1975 (42 U.S.C. 

16 6104(e)) is amended in the first sentence of paragraph 

17 (1), by striking ‘‘this Act’’ and inserting ‘‘this title, includ18 ing a regulation promulgated to carry out this title,’’.

19 SEC. 104. RIGHT OF RECOVERY. 

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

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

22 amended by inserting after section 602 the following: 

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

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

25 DISCRIMINATION.—In an action brought by an aggrieved 
24

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1 person under this title against a covered entity who has 

2 engaged in unlawful intentional discrimination (not a 

3 practice that is unlawful because of its disparate impact) 

4 prohibited under this title (including its implementing reg5 ulations), the aggrieved person may recover equitable and 

6 legal relief (including compensatory and punitive dam7 ages), attorney’s fees (including expert fees), and costs, 

8 except that punitive damages are not available against a 

9 government, government agency, or political subdivision. 

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

11 STANDARD OF PROOF.—In an action brought by an ag12 grieved person under this title against a covered entity 

13 who has engaged in unlawful discrimination based on dis14 parate impact prohibited under this title (including its im15 plementing regulations), the aggrieved person may recover 

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

17 costs.’’. 

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

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

20 seq.) is amended by inserting after section 902 the fol21 lowing: 

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

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

24 DISCRIMINATION.—In an action brought by an aggrieved 

25 person under this title against a covered entity who has 
25

•S 2088 IS 

1 engaged in unlawful intentional discrimination (not a 

2 practice that is unlawful because of its disparate impact) 

3 prohibited under this title (including its implementing reg4 ulations), the aggrieved person may recover equitable and 

5 legal relief (including compensatory and punitive dam6 ages), attorney’s fees (including expert fees), and costs, 

7 except that punitive damages are not available against a 

8 government, government agency, or political subdivision. 

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

10 STANDARD OF PROOF.—In an action brought by an ag11 grieved person under this title against a covered entity 

12 who has engaged in unlawful discrimination based on dis13 parate impact prohibited under this title (including its im14 plementing regulations), the aggrieved person may recover 

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

16 costs.’’. 

17 (c) AGE DISCRIMINATION ACT OF 1975.—

18 (1) IN GENERAL.—Section 305 of the Age Dis19 crimination Act of 1975 (42 U.S.C. 6104) is amend20 ed by adding at the end the following: 

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

22 under this title against a covered entity who has engaged 

23 in unlawful intentional discrimination (not a practice that 

24 is unlawful because of its disparate impact) prohibited 

25 under this title (including its implementing regulations), 
26

•S 2088 IS 

1 the aggrieved person may recover equitable and legal relief 

2 (including compensatory and punitive damages), attor3 ney’s fees (including expert fees), and costs, except that 

4 punitive damages are not available against a government, 

5 government agency, or political subdivision. 

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

7 under this title against a covered entity who has engaged 

8 in unlawful discrimination based on disparate impact pro9 hibited under this title (including its implementing regula10 tions), the aggrieved person may recover equitable relief, 

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

12 (2) CONFORMITY OF ADA WITH TITLE VI AND

13 TITLE IX.—

14 (A) ELIMINATING WAIVER OF RIGHT TO

15 FEES IF NOT REQUESTED IN COMPLAINT.—Sec16 tion 305(e)(1) of the Age Discrimination Act of 

17 1975 (42 U.S.C. 6104(e)) is amended—

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

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

20 (ii) by striking the second sentence 

21 and inserting the following: ‘‘The Court 

22 shall award the costs of suit, including a 

23 reasonable attorney’s fee (including expert 

24 fees), to the prevailing plaintiff.’’. 
27

•S 2088 IS 

1 (B) ELIMINATING UNNECESSARY MAN2 DATES: TO EXHAUST ADMINISTRATIVE REM3 EDIES; AND TO DELAY SUIT LONGER THAN 180

4 DAYS TO OBTAIN AGENCY REVIEW.—Section 

5 305(f) of the Age Discrimination Act of 1975 

6 (42 U.S.C. 6104(f)) is amended by striking 

7 ‘‘With respect to actions brought for relief 

8 based on an alleged violation of the provisions 

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

10 for relief based on an alleged violation of the 

11 provisions of this title may be initiated in a 

12 court of competent jurisdiction, pursuant to 

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

14 department or agency. With respect to such ac15 tions brought initially before the relevant Fed16 eral department or agency,’’. 

17 (C) ELIMINATING DUPLICATIVE ‘‘REASON18 ABLENESS’’ REQUIREMENT; CLARIFYING THAT

19 ‘‘REASONABLE FACTORS OTHER THAN AGE’’ IS

20 DEFENSE TO A DISPARATE IMPACT CLAIM, NOT

21 AN EXCEPTION TO ADA COVERAGE.—Section 

22 304(b)(1) of the Age Discrimination Act of 

23 1975 (42 U.S.C. 6103(b)(1)) is amended by 

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

25 through the period and inserting ‘‘involved such
28

•S 2088 IS 

1 action reasonably takes into account age as a 

2 factor necessary to the normal operation or the 

3 achievement of any statutory objective of such 

4 program or activity.’’. 

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

6 the Rehabilitation Act of 1973 (29 U.S.C. 794) is amend7 ed by adding at the end the following: 

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

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

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

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

12 this section as a ‘covered entity’) who has engaged in un13 lawful intentional discrimination (not a practice that is 

14 unlawful because of its disparate impact) prohibited under 

15 this section (including its implementing regulations), the 

16 aggrieved person may recover equitable and legal relief 

17 (including compensatory and punitive damages), attor18 ney’s fees (including expert fees), and costs, except that 

19 punitive damages are not available against a government, 

20 government agency, or political subdivision. 

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

22 under this section against a covered entity who has en23 gaged in unlawful discrimination based on disparate im24 pact prohibited under this section (including its imple25 menting regulations), the aggrieved person may recover 
29

•S 2088 IS 

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

2 costs.’’. 

3 SEC. 105. CONSTRUCTION. 

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

5 amendment made by this subtitle, shall be construed to 

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

7 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), 

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

9 12101 et seq.), or any other provision of law. 

10 (b) DEFENDANTS.—Nothing in this subtitle, includ11 ing any amendment made by this subtitle, shall be con12 strued to limit the scope of the class of persons who may 

13 be subjected to civil actions under the covered civil rights 

14 provisions. 

15 SEC. 106. EFFECTIVE DATE. 

16 (a) IN GENERAL.—This subtitle, and the amend17 ments made by this subtitle, are retroactive to April 24, 

18 2001, and effective as of that date. 

19 (b) APPLICATION.—This subtitle, and the amend20 ments made by this subtitle, apply to all actions or pro21 ceedings pending on or after April 24, 2001, except as 

22 to an action against a State on a claim brought under 

23 the disparate impact standard, as to which the effective 

24 date is the date of enactment of this Act. 
30

•S 2088 IS 

1 Subtitle B—Harassment 

2 SEC. 111. FINDINGS. 

3 Congress finds the following: 

4 (1) As the Supreme Court has held, covered en5 tities are liable for harassment on the basis of sex 

6 under their education programs and activities under 

7 title IX of the Education Amendments of 1972 (20 

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

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

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

11 available for harassment of student by a teacher 

12 coach); Davis v. Monroe County Board of Edu13 cation, 526 U.S. 629, 633 (1999) (authorizing dam14 ages action against school board for student-on-stu15 dent sexual harassment). 

16 (2) Courts have confirmed that covered entities 

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

18 or national origin under title VI of the Civil Rights 

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

20 in this subtitle as ‘‘title VI’’), e.g., Bryant v. Inde21 pendent School District No. I–38, 334 F.3d 928 

22 (10th Cir. 2003) (liability for student-on-student ra23 cial harassment). Moreover, judicial interpretation of 

24 the similarly worded Age Discrimination Act of 1975 

25 (42 U.S.C. 6101 et seq.) and section 504 of the Re-
31

•S 2088 IS 

1 habilitation Act of 1973 (29 U.S.C. 794) has 

2 tracked that of title VI and title IX. 

3 (3) As these courts have properly recognized, 

4 harassment on a prohibited basis under a program 

5 or activity, whether perpetrated by employees or 

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

7 victim, or by others who conduct harassment under 

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

9 intentional discrimination that inflicts substantial 

10 harm on beneficiaries of the program or activity and 

11 violates the obligation of a covered entity to main12 tain a nondiscriminatory environment. 

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

14 that students subjected to sexual harassment may 

15 receive a damages remedy under title IX only when 

16 school officials have ‘‘actual notice’’ of the harass17 ment and are ‘‘deliberately indifferent’’ to it. Gebser 

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

19 274 (1998). See also Davis v. Monroe County Board 

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

21 (5) The standard delineated in Gebser and fol22 lowed in Davis has been applied by lower courts re23 garding the liability of covered entities for damages 

24 for harassment based on race, color, or national ori25 gin under title VI. E.g., Bryant v. Independent 
32

•S 2088 IS 

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

2 2003). Because of the similarities in the wording 

3 and interpretation of the underlying statutes, this 

4 standard may be applied to claims for damages 

5 brought under the Age Discrimination Act of 1975 

6 (42 U.S.C. 6101 et seq.) and section 504 of the Re7 habilitation Act of 1973 (29 U.S.C. 794) as well. 

8 (6) Although they do not affect the relevant 

9 standards for individuals to obtain injunctive and 

10 equitable relief for harassment on the basis of race, 

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

12 covered programs and activities, Gebser and its 

13 progeny severely limit the availability of remedies for 

14 such individuals by imposing new, more stringent 

15 standards for recovery of damages under title VI 

16 and title IX, and potentially under the Age Discrimi17 nation Act of 1975 and section 504 of the Rehabili18 tation Act of 1973. Yet in many cases, damages are 

19 the only remedy that would effectively rectify past 

20 harassment. 

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

22 these limitations on effective relief thwart Congress’s 

23 underlying purpose to protect students from harass24 ment. By making the ‘‘policy choice’’ to ‘‘rank[] pro25 tection of the school district’s purse above the pro-
33

•S 2088 IS 

1 tection of immature high school students’’, the 

2 Gebser case ‘‘is not faithful to the intent of the pol3 icymaking branch of our Government’’. Gebser, 524 

4 U.S. at 306 (Stevens, J., dissenting). 

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) The Gebser ruling contravened the interpre19 tations of title VI and title IX by the Department 

20 of Education, which interpretations recognized liabil21 ity for damages for harassment based on race, color, 

22 sex, or national origin based on agency principles. 

23 Sexual Harassment Guidance: Harassment of Stu24 dents by School Employees, Other Students, or 

25 Third Parties, 62 Fed. Reg. 12034 (March 13,
34

•S 2088 IS 

1 1997); Racial Incidents and Harassment Against 

2 Students at Educational Institutions: Investigative 

3 Guidance, 59 Fed. Reg. 11448 (March 10, 1994). 

4 (10) Legislative action is necessary and appro5 priate to reverse Gebser and its progeny and restore 

6 the availability of a full range of remedies for har7 assment based on race, color, sex, national origin, 

8 age, or disability. The Gebser majority itself invited 

9 Congress to ‘‘speak directly on the subject’’ of dam10 ages liability to provide additional guidance to the 

11 courts. 524 U.S. at 292. 

12 (11) Restoring the availability of a full range of 

13 remedies for harassment will—

14 (A) ensure that students and other bene15 ficiaries of federally funded programs and ac16 tivities have protection from harassment on the 

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

18 disability that is comparable in strength and ef19 fectiveness to that available to employees under 

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

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

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

23 seq.), and title I of the Americans with Disabil24 ities Act of 1990 (42 U.S.C. 12111 et seq.); 
35

•S 2088 IS 

1 (B) encourage covered entities to adopt 

2 and enforce meaningful policies and procedures 

3 to prevent and remedy harassment; 

4 (C) deter incidents of harassment; and 

5 (D) provide appropriate remedies for dis6 crimination. 

7 (12) Congress has the same affirmative powers 

8 to enact legislation restoring the availability of a full 

9 range of remedies for harassment as it did to enact 

10 the underlying statutory prohibitions on harassment, 

11 including powers under section 5 of the 14th amend12 ment and section 8 of article I of the Constitution. 

13 (13) The right to maintain a private right of 

14 action under a provision added to a statute under 

15 this subtitle will be effectuated by a waiver of sov16 ereign immunity in the same manner as sovereign 

17 immunity is waived under the remaining provisions 

18 of that statute. 

19 SEC. 112. RIGHT OF RECOVERY. 

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

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

22 is amended by adding at the end the following: 

23 ‘‘(c) CLAIMS BASED ON HARASSMENT.—

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

25 brought against a covered entity by (including on be-
36

•S 2088 IS 

1 half of) an aggrieved person who has been subjected 

2 to unlawful harassment under a program or activity, 

3 the aggrieved person may recover equitable and legal 

4 relief (including compensatory and punitive damages 

5 subject to the provisions of paragraph (2)), attor6 ney’s fees (including expert fees), and costs. 

7 ‘‘(2) AVAILABILITY OF DAMAGES.—

8 ‘‘(A) TANGIBLE ACTION BY AGENT OR EM9 PLOYEE.—If an agent or employee of a covered 

10 entity engages in unlawful harassment under a 

11 program or activity that results in a tangible 

12 action to the aggrieved person, damages shall 

13 be available against the covered entity. 

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

15 EMPLOYEE.—If an agent or employee of a cov16 ered entity engages in unlawful harassment 

17 under a program or activity that results in no 

18 tangible action to the aggrieved person, no 

19 damages shall be available against the covered 

20 entity if it can demonstrate that—

21 ‘‘(i) it exercised reasonable care to 

22 prevent and correct promptly any harass23 ment based on race, color, or national ori24 gin; and 
37

•S 2088 IS 

1 ‘‘(ii) the aggrieved person unreason2 ably failed to take advantage of preventive 

3 or corrective opportunities offered by the 

4 covered entity that—

5 ‘‘(I) would likely have provided 

6 redress and avoided the harm de7 scribed by the aggrieved person; and 

8 ‘‘(II) would not have exposed the 

9 aggrieved person to undue risk, effort, 

10 or expense. 

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

12 person who is not an agent or employee of a 

13 covered entity subjects an aggrieved person to 

14 unlawful harassment under a program or activ15 ity, and the covered entity involved knew or 

16 should have known of the harassment, no dam17 ages shall be available against the covered enti18 ty if it can demonstrate that it exercised rea19 sonable care to prevent and correct promptly 

20 any harassment based on race, color, or na21 tional origin. 

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

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

24 covered entity has exercised reasonable care to 

25 prevent and correct promptly any harassment 
38

•S 2088 IS 

1 based on race, color, or national origin includes 

2 a demonstration by the covered entity that it 

3 has—

4 ‘‘(i) established, adequately publicized, 

5 and enforced an effective, comprehensive, 

6 harassment prevention policy and com7 plaint procedure that is likely to provide 

8 redress and avoid harm without exposing 

9 the person subjected to the harassment to 

10 undue risk, effort, or expense; 

11 ‘‘(ii) undertaken prompt, thorough, 

12 and impartial investigations pursuant to 

13 its complaint procedure; and 

14 ‘‘(iii) taken immediate and appro15 priate corrective action designed to stop 

16 harassment that has occurred, correct its 

17 effects on the aggrieved person and ensure 

18 that the harassment does not recur. 

19 ‘‘(E) PUNITIVE DAMAGES.—Punitive dam20 ages shall not be available under this subsection 

21 against a government, government agency, or 

22 political subdivision. 

23 ‘‘(3) DEFINITIONS.—As used in this subsection:
39

•S 2088 IS 

1 ‘‘(A) DEMONSTRATES.—The term ‘dem2 onstrates’ means meets the burdens of produc3 tion and persuasion. 

4 ‘‘(B) TANGIBLE ACTION.—The term ‘tan5 gible action’ means—

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

7 individual’s status caused by an agent or 

8 employee of a covered entity with regard to 

9 the individual’s participation in, access to, 

10 or enjoyment of, the benefits of a program 

11 or activity; or 

12 ‘‘(ii) an explicit or implicit condition 

13 by an agent or employee of a covered enti14 ty on an individual’s participation in, ac15 cess to, or enjoyment of, the benefits of a 

16 program or activity based on the individ17 ual’s submission to the harassment. 

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

19 ‘unlawful harassment’ means harassment that 

20 is unlawful under this title.’’. 

21 (b) EDUCATION AMENDMENTS OF 1972.—Section 

22 902A of the Civil Rights Act of 1964, as added by section 

23 104, is amended by adding at the end the following: 

24 ‘‘(c) CLAIMS BASED ON HARASSMENT.—
40

•S 2088 IS 

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

2 brought against a covered entity by (including on be3 half of) an aggrieved person who has been subjected 

4 to unlawful harassment under a program or activity, 

5 the aggrieved person may recover equitable and legal 

6 relief (including compensatory and punitive damages 

7 subject to the provisions of paragraph (2)), attor8 ney’s fees (including expert fees), and costs. 

9 ‘‘(2) AVAILABILITY OF DAMAGES.—

10 ‘‘(A) TANGIBLE ACTION BY AGENT OR EM11 PLOYEE.—If an agent or employee of a covered 

12 entity engages in unlawful harassment under a 

13 program or activity that results in a tangible 

14 action to the aggrieved person, damages shall 

15 be available against the covered entity. 

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

17 EMPLOYEE.—If an agent or employee of a cov18 ered entity engages in unlawful harassment 

19 under a program or activity that results in no 

20 tangible action to the aggrieved person, no 

21 damages shall be available against the covered 

22 entity if it can demonstrate that—

23 ‘‘(i) it exercised reasonable care to 

24 prevent and correct promptly any harass25 ment based on sex; and 
41

•S 2088 IS 

1 ‘‘(ii) the aggrieved person unreason2 ably failed to take advantage of preventive 

3 or corrective opportunities offered by the 

4 covered entity that—

5 ‘‘(I) would likely have provided 

6 redress and avoided the harm de7 scribed by the aggrieved person; and 

8 ‘‘(II) would not have exposed the 

9 aggrieved person to undue risk, effort, 

10 or expense. 

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

12 person who is not an agent or employee of a 

13 covered entity subjects an aggrieved person to 

14 unlawful harassment under a program or activ15 ity, and the covered entity knew or should have 

16 known of the harassment, no damages shall be 

17 available against the covered entity if it can 

18 demonstrate that it exercised reasonable care to 

19 prevent and correct promptly any harassment 

20 based on sex. 

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

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

23 covered entity has exercised reasonable care to 

24 prevent and correct promptly any harassment 
42

•S 2088 IS 

1 based on sex includes a demonstration by the 

2 covered entity that it has—

3 ‘‘(i) established, adequately publicized, 

4 and enforced an effective, comprehensive, 

5 harassment prevention policy and com6 plaint procedure that is likely to provide 

7 redress and avoid harm without exposing 

8 the person subjected to the harassment to 

9 undue risk, effort, or expense; 

10 ‘‘(ii) undertaken prompt, thorough, 

11 and impartial investigations pursuant to 

12 its complaint procedure; and 

13 ‘‘(iii) taken immediate and appro14 priate corrective action designed to stop 

15 harassment that has occurred, correct its 

16 effects on the aggrieved person, and ensure 

17 that the harassment does not recur. 

18 ‘‘(E) PUNITIVE DAMAGES.—Punitive dam19 ages shall not be available under this subsection 

20 against a government, government agency, or 

21 political subdivision. 

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

23 ‘‘(A) DEMONSTRATES.—The term ‘dem24 onstrates’ means meets the burdens of produc25 tion and persuasion. 
43

•S 2088 IS 

1 ‘‘(B) TANGIBLE ACTION.—The term ‘tan2 gible action’ means—

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

4 individual’s status caused by an agent or 

5 employee of a covered entity with regard to 

6 the individual’s participation in, access to, 

7 or enjoyment of, the benefits of a program 

8 or activity; or 

9 ‘‘(ii) an explicit or implicit condition 

10 by an agent or employee of a covered enti11 ty on an individual’s participation in, ac12 cess to, or enjoyment of, the benefits of a 

13 program or activity based on the individ14 ual’s submission to the harassment. 

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

16 ‘unlawful harassment’ means harassment that 

17 is unlawful under this title.’’. 

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

19 305(g) of the Age Discrimination Act of 1975, as added 

20 by section 104, is amended by adding at the end the fol21 lowing: 

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

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

24 been subjected to unlawful harassment under a program 

25 or activity, the aggrieved person may recover equitable and
44

•S 2088 IS 

1 legal relief (including compensatory and punitive damages 

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

3 fees (including expert fees), and costs. 

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

5 engages in unlawful harassment under a program or activ6 ity that results in a tangible action to the aggrieved per7 son, damages shall be available against the covered entity. 

8 ‘‘(ii) If an agent or employee of a covered entity en9 gages in unlawful harassment under a program or activity 

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

11 no damages shall be available against the covered entity 

12 if it can demonstrate that—

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

14 correct promptly any harassment based on age; and 

15 ‘‘(II) the aggrieved person unreasonably failed 

16 to take advantage of preventive or corrective oppor17 tunities offered by the covered entity that—

18 ‘‘(aa) would likely have provided redress 

19 and avoided the harm described by the ag20 grieved person; and 

21 ‘‘(bb) would not have exposed the ag22 grieved person to undue risk, effort, or expense. 

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

24 of a covered entity subjects an aggrieved person to unlaw25 ful harassment under a program or activity, and the cov-
45

•S 2088 IS 

1 ered entity knew or should have known of the harassment, 

2 no damages shall be available against the covered entity 

3 if it can demonstrate that it exercised reasonable care to 

4 prevent and correct promptly any harassment based on 

5 age. 

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

7 that the covered entity has exercised reasonable care to 

8 prevent and correct promptly any harassment based on 

9 age includes a demonstration by the covered entity that 

10 it has—

11 ‘‘(I) established, adequately publicized, and en12 forced an effective, comprehensive, harassment pre13 vention policy and complaint procedure that is likely 

14 to provide redress and avoid harm without exposing 

15 the person subjected to the harassment to undue 

16 risk, effort, or expense; 

17 ‘‘(II) undertaken prompt, thorough, and impar18 tial investigations pursuant to its complaint proce19 dure; and 

20 ‘‘(III) taken immediate and appropriate correc21 tive action designed to stop harassment that has oc22 curred, correct its effects on the aggrieved person, 

23 and ensure that the harassment does not recur. 
46

•S 2088 IS 

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

2 this paragraph against a government, government agency, 

3 or political subdivision. 

4 ‘‘(C) As used in this paragraph: 

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

6 burdens of production and persuasion. 

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

8 ‘‘(I) a significant adverse change in an in9 dividual’s status caused by an agent or em10 ployee of a covered entity with regard to the in11 dividual’s participation in, access to, or enjoy12 ment of, the benefits of a program or activity; 

13 or 

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

15 agent or employee of a covered entity on an in16 dividual’s participation in, access to, or enjoy17 ment of, the benefits of a program or activity 

18 based on the individual’s submission to the har19 assment. 

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

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

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

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

24 is amended by adding at the end the following: 
47

•S 2088 IS 

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

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

3 been subjected to unlawful harassment under a program 

4 or activity, the aggrieved person may recover equitable and 

5 legal relief (including compensatory and punitive damages 

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

7 fees (including expert fees), and costs. 

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

9 engages in unlawful harassment under a program or activ10 ity that results in a tangible action to the aggrieved per11 son, damages shall be available against the covered entity. 

12 ‘‘(ii) If an agent or employee of a covered entity en13 gages in unlawful harassment under a program or activity 

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

15 no damages shall be available against the covered entity 

16 if it can demonstrate that—

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

18 correct promptly any harassment based on disability; 

19 and 

20 ‘‘(II) the aggrieved person unreasonably failed 

21 to take advantage of preventive or corrective oppor22 tunities offered by the covered entity that—

23 ‘‘(aa) would likely have provided redress 

24 and avoided the harm described by the ag25 grieved person; and 
48

•S 2088 IS 

1 ‘‘(bb) would not have exposed the ag2 grieved person to undue risk, effort, or expense. 

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

4 of a covered entity subjects an aggrieved person to unlaw5 ful harassment under a program or activity, and the cov6 ered entity knew or should have known of the harassment, 

7 no damages shall be available against the covered entity 

8 if it can demonstrate that it exercised reasonable care to 

9 prevent and correct promptly any harassment based on 

10 disability. 

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

12 that the covered entity has exercised reasonable care to 

13 prevent and correct promptly any harassment based on 

14 disability includes a demonstration by the covered entity 

15 that it has—

16 ‘‘(I) established, adequately publicized, and en17 forced an effective, comprehensive, harassment pre18 vention policy and complaint procedure that is likely 

19 to provide redress and avoid harm without exposing 

20 the person subjected to the harassment to undue 

21 risk, effort, or expense; 

22 ‘‘(II) undertaken prompt, thorough, and impar23 tial investigations pursuant to its complaint proce24 dure; and
49

•S 2088 IS 

1 ‘‘(III) taken immediate and appropriate correc2 tive action designed to stop harassment that has oc3 curred, correct its effects on the aggrieved person, 

4 and ensure that the harassment does not recur. 

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

6 this paragraph against a government, government agency, 

7 or political subdivision. 

8 ‘‘(C) As used in this paragraph: 

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

10 burdens of production and persuasion. 

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

12 ‘‘(I) a significant adverse change in an in13 dividual’s status caused by an agent or em14 ployee of a covered entity with regard to the in15 dividual’s participation in, access to, or enjoy16 ment of, the benefits of a program or activity; 

17 or 

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

19 agent or employee of a covered entity on an in20 dividual’s participation in, access to, or enjoy21 ment of, the benefits of a program or activity 

22 based on the individual’s submission to the har23 assment. 

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

25 harassment that is unlawful under this section.’’. 
50

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1 SEC. 113. CONSTRUCTION. 

2 Nothing in this subtitle, including any amendment 

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

4 of the class of persons who may be subjected to civil ac5 tions under the covered civil rights provisions. 

6 SEC. 114. EFFECTIVE DATE. 

7 (a) IN GENERAL.—This subtitle, and the amend8 ments made by this subtitle, are retroactive to June 22, 

9 1998, and effective as of that date. 

10 (b) APPLICATION.—This subtitle, and the amend11 ments made by this subtitle, apply to all actions or pro12 ceedings pending on or after June 22, 1998, except as to 

13 an action against a State, as to which the effective date 

14 is the date of enactment of this Act. 

15 TITLE II—UNIFORMED SERVICES 

16 EMPLOYMENT AND REEM17 PLOYMENT RIGHTS ACT OF 

18 1994 AMENDMENT

19 SEC. 201. AMENDMENT TO THE UNIFORMED SERVICES EM20 PLOYMENT AND REEMPLOYMENT RIGHTS 

21 ACT OF 1994. 

22 (a) FINDINGS.—Congress makes the following find23 ings: 

24 (1) The Federal Government has an important 

25 interest in attracting and training a military to pro26 vide for the National defense. The Constitution 
51

•S 2088 IS 

1 grants Congress the power to raise and support an 

2 army for purposes of the common defense. The Na3 tion’s military readiness requires that all members of 

4 the Armed Forces, including those employed in State 

5 programs and activities, be able to serve without 

6 jeopardizing their civilian employment opportunities. 

7 (2) The Uniformed Services Employment and 

8 Reemployment Rights Act of 1994, commonly re9 ferred to as ‘‘USERRA’’ and codified as chapter 43 

10 of title 38, United States Code, is intended to safe11 guard the reemployment rights of members of the 

12 uniformed services (as that term is defined in sec13 tion 4303(16) of title 38, United States Code) and 

14 to prevent discrimination against any person who is 

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

16 has performed, applies to perform, or has an obliga17 tion to perform service in a uniformed service. Effec18 tive enforcement of the Act depends on the ability of 

19 private individuals to enforce its provisions in court. 

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

21 517 U.S. 44 (1996), the Supreme Court held that 

22 congressional legislation enacted pursuant to the 

23 commerce clause of Article I, section 8, of the Con24 stitution cannot abrogate the immunity of States 

25 under the 11th amendment to the Constitution. 
52

•S 2088 IS 

1 Some courts have interpreted Seminole Tribe of 

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

3 persons affected by a State violation of USERRA. 

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

5 (1999), the Supreme Court held that this immunity 

6 also prohibits the Federal Government from sub7 jecting ‘‘non-consenting states to private suits for 

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

9 USERRA specifically provides that a person may 

10 commence an action for relief against a State for its 

11 violation of that Act, persons harmed by State viola12 tions of that Act lack important remedies to vindi13 cate the rights and benefits that are available to all 

14 other persons covered by that Act. Unless a State 

15 chooses to waive sovereign immunity, or the Attor16 ney General brings an action on their behalf, per17 sons affected by State violations of USERRA may 

18 have no adequate Federal remedy for such viola19 tions. 

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

21 by persons affected by State violations of USERRA 

22 would leave vindication of their rights and benefits 

23 under that Act solely to Federal agencies, which may 

24 fail to take necessary and appropriate action because 

25 of administrative overburden or other reasons. Ac-
53

•S 2088 IS 

1 tion by Congress to specify such a private right of 

2 action ensures that persons affected by State viola3 tions of USERRA have a remedy if they are denied 

4 their rights and benefits under that Act. 

5 (b) CLARIFICATION OF RIGHT OF ACTION UNDER

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

7 is amended—

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

9 and inserting the following new paragraph (2): 

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

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

12 district court of the United States or State court of com13 petent jurisdiction.’’; 

14 (2) by redesignating subsection (j) as sub15 section (k); and 

16 (3) by inserting after subsection (i) the fol17 lowing new subsection (j): 

18 ‘‘(j)(1)(A) A State’s receipt or use of Federal finan19 cial assistance for any program or activity of a State shall 

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

21 amendment to the Constitution or otherwise, to a suit 

22 brought by an employee of that program or activity under 

23 this chapter for the rights or benefits authorized the em24 ployee by this chapter.
54

•S 2088 IS 

1 ‘‘(B) In this paragraph, the term ‘program or activ2 ity’ has the meaning given the term in section 309 of the 

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

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

5 capacity of the official by any person covered by paragraph 

6 (1) who seeks injunctive relief against a State (as an em7 ployer) under subsection (e). In such a suit the court may 

8 award to the prevailing party those costs authorized by 

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

10 TITLE III—AIR CARRIER ACCESS 

11 ACT OF 1986 AMENDMENT 

12 SEC. 301. FINDINGS. 

13 Congress finds the following: 

14 (1) In Love v. Delta Air Lines, 310 F. 3d 1347 

15 (11th Cir. 2002), the United States Court of Ap16 peals for the Eleventh Circuit held that when Con17 gress passed the Air Carrier Access Act of 1986, 

18 adding a provision now codified at section 41705 of 

19 title 49, United States Code (referred to in this title 

20 as the ‘‘ACAA’’), Congress did not intend to create 

21 a private right of action with which individuals with 

22 disabilities could sue air carriers in Federal court for 

23 discrimination on the basis of disability. The court 

24 recognized that other courts of appeals have held 

25 that the ACAA created a private right of action. 
55

•S 2088 IS 

1 Nevertheless, the court, relying on the Supreme 

2 Court’s decision in Alexander v. Sandoval, 532 U.S. 

3 275 (2001), concluded that the ACAA did not create 

4 a private right of action. 

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

6 leaves enforcement of the ACAA solely in the hands 

7 of the Department of Transportation, which is over8 burdened and lacks the resources to investigate, 

9 prosecute violators for, and remediate all of the vio10 lations of the rights of travelers who are individuals 

11 with disabilities. Nor can the Department of Trans12 portation bring an action that will redress the injury 

13 of an individual resulting from such a violation. The 

14 Department of Transportation can take action that 

15 fines an air carrier or requires the air carrier to 

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

17 not authorized to issue orders that redress the inju18 ries sustained by individual air passengers. Action 

19 by Congress is necessary to ensure that individuals 

20 with disabilities will have adequate remedies avail21 able when air carriers violate the ACAA (including 

22 its regulations), and only courts may provide this re23 dress to individuals. 

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

25 discriminates against an individual with a disability, 
56

•S 2088 IS 

1 frequently the only way to compensate that indi2 vidual for the harm the individual has suffered is 

3 through an award of money damages. For example, 

4 violations of the ACAA may result in travelers who 

5 are individuals with disabilities missing flights for 

6 business appointments or important personal events, 

7 or in such travelers suffering humiliating treatment 

8 at the hands of air carriers. Those harms cannot be 

9 remedied solely through injunctive relief. 

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

11 does not contain a fee-shifting provision under which 

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

13 Action by Congress is necessary to correct this 

14 anomaly. The availability of attorney’s fees is essen15 tial to ensuring that persons who have been ag16 grieved by violations of the ACAA can enforce their 

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

18 the ACAA will permit individuals to serve as private 

19 attorneys general, a necessary role on which enforce20 ment of civil rights statutes depends. 

21 SEC. 302. CIVIL ACTION. 

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

23 amended by adding at the end the following: 

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

25 air carrier’s violation of subsection (a) (including any reg-
57

•S 2088 IS 

1 ulation implementing such subsection) may bring a civil 

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

3 district in which the aggrieved person resides, in the dis4 trict containing the air carrier’s principal place of busi5 ness, or in the district in which the violation took place. 

6 Any such action must be commenced within 2 years after 

7 the date of the violation. 

8 ‘‘(2) In any civil action brought by an aggrieved per9 son pursuant to paragraph (1), the plaintiff may obtain 

10 both equitable and legal relief, including compensatory 

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

12 addition to such relief awarded to a prevailing plaintiff, 

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

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

15 TITLE IV—AGE DISCRIMINATION 

16 IN EMPLOYMENT ACT AMEND17 MENTS 

18 SEC. 401. SHORT TITLE. 

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

20 Restoration Act of 2004’’. 

21 SEC. 402. FINDINGS. 

22 Congress finds the following: 

23 (1) Since 1974, the Age Discrimination in Em24 ployment Act of 1967 (29 U.S.C. 621 et seq.) (re25 ferred to in this section as the ‘‘ADEA’’) has prohib-
58

•S 2088 IS 

1 ited States from discriminating in employment on 

2 the basis of age. In EEOC v. Wyoming, 460 U.S. 

3 226 (1983), the Supreme Court upheld Congress’s 

4 constitutional authority to prohibit States from dis5 criminating in employment on the basis of age. The 

6 prohibitions of the ADEA remain in effect and con7 tinue to apply to the States, as the prohibitions have 

8 for more than 25 years. 

9 (2) Age discrimination in employment remains 

10 a serious problem both nationally and among State 

11 agencies, and has invidious effects on its victims, the 

12 labor force, and the economy as a whole. For exam13 ple, age discrimination in employment—

14 (A) increases the risk of unemployment 

15 among older workers, who will as a result be 

16 more likely to be dependent on government re17 sources; 

18 (B) prevents the best use of available labor 

19 resources; 

20 (C) adversely effects the morale and pro21 ductivity of older workers; and 

22 (D) perpetuates unwarranted stereotypes 

23 about the abilities of older workers. 

24 (3) Private civil suits by the victims of employ25 ment discrimination have been a crucial tool for en-
59

•S 2088 IS 

1 forcement of the ADEA since the enactment of that 

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

3 62 (2000), however, the Supreme Court held that 

4 Congress had not abrogated State sovereign immu5 nity to suits by individuals under the ADEA. The 

6 Federal Government has an important interest in 

7 ensuring that Federal financial assistance is not 

8 used to subsidize or facilitate violations of the 

9 ADEA. Private civil suits are a critical tool for ad10 vancing that interest. 

11 (4) As a result of the Kimel decision, although 

12 age-based discrimination by State employers remains 

13 unlawful, the victims of such discrimination lack im14 portant remedies for vindication of their rights that 

15 are available to all other employees covered under 

16 that Act, including employees in the private sector, 

17 local government, and the Federal Government. Un18 less a State chooses to waive sovereign immunity, or 

19 the Equal Employment Opportunity Commission 

20 brings an action on their behalf, State employees 

21 victimized by violations of the ADEA have no ade22 quate Federal remedy for violations of that Act. In 

23 the absence of the deterrent effect that such rem24 edies provide, there is a greater likelihood that enti25 ties carrying out programs and activities receiving
60

•S 2088 IS 

1 Federal financial assistance will use that assistance 

2 to violate that Act, or that the assistance will other3 wise subsidize or facilitate violations of that Act. 

4 (5) Federal law has long treated nondiscrimina5 tion obligations as a core component of programs or 

6 activities that, in whole or part, receive Federal fi7 nancial assistance. That assistance should not be 

8 used, directly or indirectly, to subsidize invidious dis9 crimination. Assuring nondiscrimination in employ10 ment is a crucial aspect of assuring nondiscrimina11 tion in those programs and activities. 

12 (6) Discrimination on the basis of age in pro13 grams or activities receiving Federal financial assist14 ance is, in contexts other than employment, forbid15 den by the Age Discrimination Act of 1975 (42 

16 U.S.C. 6101 et seq.). Congress determined that it 

17 was not necessary for the Age Discrimination Act of 

18 1975 to apply to employment discrimination because 

19 the ADEA already forbade discrimination in employ20 ment by, and authorized suits against, State agen21 cies and other entities that receive Federal financial 

22 assistance. In section 1003 of the Rehabilitation Act 

23 Amendments of 1986 (42 U.S.C. 2000d–7), Con24 gress required all State entities subject to the Age 

25 Discrimination Act of 1975 to waive any immunity 
61

•S 2088 IS 

1 from suit for discrimination claims arising under the 

2 Age Discrimination Act of 1975. The earlier limita3 tion in the Age Discrimination Act of 1975, origi4 nally intended only to avoid duplicative coverage and 

5 remedies, has in the wake of the Kimel decision be6 come a serious loophole leaving millions of State em7 ployees without an important Federal remedy for 

8 age discrimination, resulting in the use of Federal fi9 nancial assistance to subsidize or facilitate violations 

10 of the ADEA. 

11 (7) The Supreme Court has upheld Congress’s 

12 authority to condition receipt of Federal financial 

13 assistance on acceptance by the States or other cov14 ered entities of conditions regarding or related to the 

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

16 Chicago, 441 U.S. 677 (1979). The Court has fur17 ther recognized that Congress may require a State, 

18 as a condition of receipt of Federal financial assist19 ance, to waive the State’s sovereign immunity to 

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

21 Savings Bank v. Florida Prepaid Postsecondary 

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

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

24 compliance with, and to provide effective remedies 

25 for violations of, the ADEA in State programs or ac-
62

•S 2088 IS 

1 tivities receiving or using Federal financial assist2 ance, and in order to ensure that Federal financial 

3 assistance does not subsidize or facilitate violations 

4 of the ADEA, it is necessary to require such a waiv5 er as a condition of receipt or use of that assistance. 

6 (8) A State’s receipt or use of Federal financial 

7 assistance in any program or activity of a State will 

8 constitute a limited waiver of sovereign immunity 

9 under section 7(g) of the ADEA (as added by sec10 tion 404). The waiver will not eliminate a State’s 

11 immunity with respect to programs or activities that 

12 do not receive or use Federal financial assistance. 

13 The State will waive sovereign immunity only with 

14 respect to suits under the ADEA brought by employ15 ees within the programs or activities that receive or 

16 use that assistance. With regard to those programs 

17 and activities that are covered by the waiver, the 

18 State employees will be accorded only the same rem19 edies that are accorded to other covered employees 

20 under the ADEA. 

21 (9) The Supreme Court has repeatedly held 

22 that State sovereign immunity does not bar suits for 

23 prospective injunctive relief brought against State 

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

25 (1908)). Clarification of the language of the ADEA 
63

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1 will confirm that that Act authorizes such suits. The 

2 injunctive relief available in such suits will continue 

3 to be no broader than the injunctive relief that was 

4 available under that Act before the Kimel decision, 

5 and that is available to all other employees under 

6 that Act. 

7 (10) In Griggs v. Duke Power Co., 401 U.S. 

8 424, 431 (1971), the Supreme Court recognized that 

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

10 2000e et seq.) ‘‘proscribes not only overt discrimina11 tion [in employment] but also [employment] prac12 tices that are fair in form, but discriminatory in op13 eration. . . .’’ In doing so, the Court relied on sec14 tion 703(a)(2) of title VII of the Civil Rights Act of 

15 1964 (42 U.S.C. 2000e–2(a)(2)), which contains 

16 language identical to section 4(a)(2) of the ADEA, 

17 except that the latter substitutes the word age for 

18 the grounds of prohibited discrimination specified by 

19 title VII of the Civil Rights Act of 1964: ‘‘race, 

20 color, religion, sex, or national origin.’’ The Court 

21 has confirmed that this and other related statutory 

22 language, identical to both title VII of the Civil 

23 Rights Act of 1964 and the ADEA, supports appli24 cation of the disparate impact doctrine. Connecticut
64

•S 2088 IS 

1 v. Teal, 457 U.S. 440 (1982); General Electric Co. 

2 v. Gilbert, 429 U.S. 125 (1976). 

3 (11) Other indicia of Congress’s intent to per4 mit the disparate impact method of proving viola5 tions of the ADEA are legion, and include numerous 

6 other textual parallels between the ADEA and title 

7 VII of the Civil Rights Act of 1964, such as in the 

8 two laws’ substantive prohibitions. Lorillard v. Pons, 

9 434 U.S. 575, 584 (1978) (the ADEA’s substantive 

10 prohibitions ‘‘were derived in haec verba from Title 

11 VII’’). Moreover, the ADEA and title VII of the 

12 Civil Rights Act of 1964 share ‘‘a common purpose: 

13 ‘the elimination of discrimination in the work14 place,’ ’’. McKennon v. Nashville Banner Pub. Co., 

15 513 U.S. 352, 358 (1995) (quoting Oscar Mayer & 

16 Co. v. Evans, 441 U.S. 750, 756 (1979)). Inter17 preting title VII of the Civil Rights Act of 1964 in 

18 a consistent manner is particularly appropriate when 

19 ‘‘the two provisions share a common raison d’etre.’’. 

20 Northcross v. Board of Educ. of Memphis City 

21 Schools, 412 U.S. 427, 428 (1973). 

22 (12) The ADEA’s legislative history confirms 

23 Congress’s intent to redress all ‘‘arbitrary’’ age dis24 crimination in the workplace, including arbitrary 

25 facially neutral policies and practices falling more 
65

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1 harshly on older workers. Such policies continue to 

2 be based on the kind of ‘‘subconscious stereotypes 

3 and prejudices’’ which cannot be ‘‘adequately policed 

4 through disparate treatment analysis,’’ and thus, re5 quire application of the disparate impact theory of 

6 proof. Watson v. Fort Worth Bank & Trust, 487 

7 U.S. 977, 990 (1988). As the Supreme Court has 

8 noted, these prejudices are ‘‘the essence of age dis9 crimination.’’. Hazen Paper Co. v. Biggins, 507 U.S. 

10 604, 610, n.15 (1993). 

11 (13) In 1991, Congress reaffirmed that title 

12 VII of the Civil Rights Act of 1964 permits victims 

13 of employment bias to state a cause of action for 

14 disparate impact discrimination when it added a pro15 vision to title VII of the Civil Rights Act of 1964 to 

16 clarify the burden of proof in disparate impact cases 

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

18 U.S.C. 2000e–2(k)). 

19 (14) Subsequently, several lower courts and 

20 Federal Courts of Appeal have mistakenly relied on 

21 language in the Supreme Court’s opinion in Hazen 

22 Paper Co. v. Biggins, 507 U.S. 604 (1993), to sug23 gest that the disparate impact method of proof does 

24 not apply to claims under the ADEA. Mullin v. 

25 Raytheon Co., 164 F.3d 696, 700–01 (1st Cir. 
66

•S 2088 IS 

1 1999); EEOC v. Francis W. Parker School, 41 F.3d 

2 1073, 1076–77 (7th Cir. 1994); Ellis v. United Air3 lines, Inc., 73 F.3d 999, 1006–07 (10th Cir. 1996); 

4 DiBiase v. Smithkline Beecham Corp., 48 F.3d 719, 

5 732 (3d Cir. 1995); Lyon v. Ohio Educ. Ass’n and 

6 Prof’l Staff Union, 53 F.3d 135, 139 n.5 (6th Cir. 

7 1995). Congress did not intend the ADEA to be in8 terpreted to provide older workers less protections 

9 against discrimination than those protected under 

10 title VII of the Civil Rights Act of 1964. As a result, 

11 it is necessary to clarify the burden of proof in a dis12 parate impact case under the ADEA, and thereby 

13 reaffirm that victims of age discrimination in em14 ployment discrimination may state a cause of action 

15 based on the disparate impact method of proving 

16 discrimination in appropriate circumstances. 

17 SEC. 403. PURPOSES. 

18 The purposes of this title 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 Age Discrimination in Employment Act 

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

24 other employees under that Act, and that were avail25 able to State employees prior to the Supreme 
67

•S 2088 IS 

1 Court’s decision in Kimel v. Florida Board of Re2 gents, 528 U.S. 62 (2000); 

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

4 financial assistance for a program or activity con5 stitutes a State waiver of sovereign immunity from 

6 suits by employees within that program or activity 

7 for violations of the Age Discrimination in Employ8 ment Act of 1967; 

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

10 available against State officials in their official ca11 pacities for violations of the Age Discrimination in 

12 Employment Act of 1967; and 

13 (4) to reaffirm the applicability of the disparate 

14 impact standard of proof to claims under the Age 

15 Discrimination in Employment Act of 1967. 

16 SEC. 404. REMEDIES FOR STATE EMPLOYEES. 

17 Section 7 of the Age Discrimination in Employment 

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

19 the end the following: 

20 ‘‘(g)(1)(A) A State’s receipt or use of Federal finan21 cial assistance for any program or activity of a State shall 

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

23 amendment to the Constitution or otherwise, to a suit 

24 brought by an employee of that program or activity under 
68

•S 2088 IS 

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

2 under this Act. 

3 ‘‘(B) In this paragraph, the term ‘program or activ4 ity’ has the meaning given the term in section 309 of the 

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

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

7 capacity of the official by any employee who has complied 

8 with the procedures of subsections (d) and (e), for injunc9 tive relief that is authorized under this Act. In such a suit 

10 the court may award to the prevailing party those costs 

11 authorized by section 722 of the Revised Statutes (42 

12 U.S.C. 1988).’’. 

13 SEC. 405. DISPARATE IMPACT CLAIMS. 

14 Section 4 of the Age Discrimination in Employment 

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

16 the end the following: 

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

18 established under this title only if—

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

20 employer, employment agency, or labor organization 

21 has a policy or practice that causes a disparate im22 pact on the basis of age and the employer, employ23 ment agency, or labor organization fails to dem24 onstrate that the challenged policy or practice is
69

•S 2088 IS 

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, 

24 employment agency, or labor organization shall not be re-
70

•S 2088 IS 

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 title. 

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

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

10 SEC. 406. 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 V—CIVIL RIGHTS 

2 REMEDIES AND RELIEF 

3 Subtitle A—Prevailing Party 

4 SEC. 501. SHORT TITLE. 

5 This subtitle may be cited as the ‘‘Settlement En6 couragement and Fairness Act’’. 

7 SEC. 502. DEFINITION OF PREVAILING PARTY. 

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

9 States Code, is amended by adding at the end the fol10 lowing: 

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

12 ‘‘(a) In determining the meaning of any Act of Con13 gress, or of any ruling, regulation, or interpretation of the 

14 various administrative bureaus and agencies of the United 

15 States, or of any judicial or administrative rule, which pro16 vides for the recovery of attorney’s fees, the term ‘pre17 vailing party’ shall include, in addition to a party who sub18 stantially prevails through a judicial or administrative 

19 judgment or order, or an enforceable written agreement, 

20 a party whose pursuit of a nonfrivolous claim or defense 

21 was a catalyst for a voluntary or unilateral change in posi22 tion by the opposing party that provides any significant 

23 part of the relief sought. 

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

25 or rule described in subsection (a) requires a defendant, 
72

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

2 criteria to qualify for the recovery of attorney’s fees, sub3 section (a) shall not affect the requirement that such de4 fendant satisfy such criteria. 

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

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

7 certain criteria, unrelated to whether or not such party 

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

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

10 party satisfy such criteria.’’. 

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

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

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

14 item:

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

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

16 Code, as added by this Act, shall apply to any case pend17 ing or filed on or after the date of enactment of this sub18 title. 

19 Subtitle B—Arbitration 

20 SEC. 511. SHORT TITLE. 

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

22 Civil Rights Protections Act of 2004’’. 
73

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1 SEC. 512. AMENDMENT TO FEDERAL ARBITRATION ACT. 

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

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

4 ‘‘commerce’’. 

5 SEC. 513. UNENFORCEABILITY OF ARBITRATION CLAUSES 

6 IN EMPLOYMENT CONTRACTS. 

7 (a) PROTECTION OF EMPLOYEE RIGHTS.—Notwith8 standing any other provision of law, any clause of any 

9 agreement between an employer and an employee that re10 quires arbitration of a dispute arising under the Constitu11 tion or laws of the United States shall not be enforceable. 

12 (b) EXCEPTIONS.—

13 (1) WAIVER OR CONSENT AFTER DISPUTE

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

15 to any dispute if, after such dispute arises, the par16 ties involved knowingly and voluntarily consent to 

17 submit such dispute to arbitration. 

18 (2) COLLECTIVE BARGAINING AGREEMENTS.—

19 Subsection (a) shall not preclude an employee or 

20 union from enforcing any of the rights or terms of 

21 a valid collective bargaining agreement. 

22 SEC. 514. APPLICATION OF AMENDMENTS. 

23 This subtitle and the amendment made by section 

24 512 shall apply with respect to all employment contracts 

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

26 subtitle.
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1 Subtitle C—Expert Witness Fees 

2 SEC. 521. 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. 522. 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 Attorneys’ Fees Awards Act of 

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

16 the Civil Rights Attorneys’ Fees Awards Act of 1976 

17 expressly authorized an award of an ‘‘attorney’s fee’’ 

18 to a prevailing party but said nothing expressly 

19 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. In fact, in 

24 Casey itself, as pointed out by Justice Stevens in 

25 dissent, the district court had found that the expert 
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1 witnesses were ‘‘essential’’ and ‘‘necessary’’ to the 

2 successful prosecution of the plaintiffs case, and the 

3 expert fees were not paltry but amounted to 

4 $104,133. Justice Stevens also pointed out that the 

5 majority opinion requiring the plaintiff to ‘‘assume 

6 the cost of $104,133 in expert witness fees is at war 

7 with the congressional purpose of making the pre8 vailing party whole.’’. Casey (499 U.S. at 111). 

9 (3) Much of the rationale for denying expert 

10 fees as part of the shifting of attorney’s fees under 

11 provisions of law such as section 722 of the Revised 

12 Statutes (42 U.S.C. 1988), whose language does not 

13 expressly include expert fees, was based on the fact 

14 that many fee-shifting statutes enacted by Congress 

15 ‘‘explicitly shift expert witness fees as well as attor16 ney’s fees.’’. Casey (499 U.S. at 88). In fact, Justice 

17 Scalia pointed out that in 1976—the same year that 

18 Congress amended section 722 of the Revised Stat19 utes (42 U.S.C. 1988) by providing for the shifting 

20 of attorney’s fees—Congress expressly authorized 

21 the shifting of attorney’s fees and of expert fees in 

22 the Toxic Substances Control Act (15 U.S.C. 2601 

23 et seq.), the Consumer Product Safety Act (15 

24 U.S.C. 2051 et seq.), the Resource Conservation and 

25 Recovery Act of 1976 (Public Law 94–580; 90 Stat. 
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1 2795), and the Natural Gas Pipeline Safety Act 

2 Amendments of 1976 (Public Law 94–477; 90 Stat. 

3 2073). Casey (499 U.S. at 88). Congress had done 

4 the same in other years on dozens of occasions. 

5 Casey (499 U.S. at 88–90 & n. 4). 

6 (4) In the same year that the Supreme Court 

7 decided Casey, Congress responded quickly but only 

8 through the Civil Rights Act of 1991 (Public Law 

9 102–166; 105 Stat. 1071) by amending title VII of 

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

11 seq.) and section 722 of the Revised Statutes (42 

12 U.S.C. 1988) with express authorizations of the re13 covery of expert fees in successful employment dis14 crimination litigation. It is long past time to correct, 

15 in Federal civil rights litigation, Casey’s denial of ex16 pert fees. 

17 SEC. 523. EFFECTIVE PROVISIONS. 

18 (a) SECTION 722 OF THE REVISED STATUTES.—Sec19 tion 722 of the Revised Statutes (42 U.S.C. 1988) is 

20 amended—

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

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

23 (2) by striking subsection (c). 

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

25 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
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1 216(b)) is amended by inserting ‘‘(including expert fees)’’ 

2 after ‘‘attorney’s fee’’. 

3 (c) VOTING RIGHTS ACT OF 1965.—Section 14(e) of 

4 the Voting Rights Act of 1965 (42 U.S.C. 1973l(e)) is 

5 amended by inserting ‘‘(including expert fees)’’ after ‘‘at6 torney’s fee’’. 

7 (d) FAIR HOUSING ACT.—Title VIII of the Civil 

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

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

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

11 (2) in section 813(c)(2), by inserting ‘‘(includ12 ing expert fees)’’ after ‘‘attorney’s fee’’; and 

13 (3) in section 814(d)(2), by inserting ‘‘(includ14 ing expert fees)’’ after ‘‘attorney’s fee’’. 

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

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

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

18 ‘‘attorney’s fees’’. 

19 (f) CIVIL RIGHTS ACT OF 1964.—Section 204(b) of 

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

21 amended by inserting ‘‘(including expert fees)’’ after ‘‘at22 torney’s fee’’. 

23 (g) REHABILITATION ACT OF 1973.—Section 505(b) 

24 of the Rehabilitation Act of 1973 (29 U.S.C. 794a(b)) is 
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1 amended by inserting ‘‘(including expert fees)’’ after ‘‘at2 torney’s fee’’. 

3 (h) EQUAL CREDIT OPPORTUNITY ACT.—Section 

4 706(d) of the Equal Credit Opportunity Act (15 U.S.C. 

5 1691e(d)) is amended by inserting ‘‘(including expert 

6 fees)’’ after ‘‘attorney’s fee’’. 

7 (i) FAIR CREDIT REPORTING ACT.—The Fair Credit 

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

9 (1) in section 616(a)(3), by inserting ‘‘(includ10 ing expert fees)’’ after ‘‘attorney’s fees’’; and 

11 (2) in section 617(a)(2), by inserting ‘‘(includ12 ing expert fees)’’ after ‘‘attorney’s fees’’. 

13 (j) FREEDOM OF INFORMATION ACT.—Section 

14 552(a)(4)(E) of title 5, United States Code, is amended 

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

16 fees’’. 

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

18 States Code, is amended—

19 (1) in paragraph (2)(B), by inserting ‘‘(includ20 ing expert fees)’’ after ‘‘attorney fees’’; 

21 (2) in paragraph (3)(B), by inserting ‘‘(includ22 ing expert fees)’’ after ‘‘attorney fees’’; and 

23 (3) in paragraph (4)(B), by inserting ‘‘(includ24 ing expert fees)’’ after ‘‘attorney fees’’.
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1 (l) TRUTH IN LENDING ACT.—Section 130(a)(3) of 

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

3 amended by inserting ‘‘(including expert fees)’’ after ‘‘at4 torney’s fee’’. 

5 Subtitle D—Equal Remedies Act of 

6 2004

7 SEC. 531. SHORT TITLE. 

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

9 Act of 2004’’. 

10 SEC. 532. EQUALIZATION OF REMEDIES. 

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

12 1981a), as added by section 102 of the Civil Rights Act 

13 of 1991, is amended—

14 (1) in subsection (b)—

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

16 (B) by redesignating paragraph (4) as 

17 paragraph (3); and 

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

19 and all that follows through the period, and insert20 ing ‘‘section, any party may demand a jury trial.’’. 

21 TITLE VI—PROHIBITIONS 

22 AGAINST SEX DISCRIMINATION 

23 SEC. 601. SHORT TITLE. 

24 This title may be cited as the ‘‘Paycheck Fairness 

25 Act’’. 
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1 SEC. 602. FINDINGS. 

2 Congress makes the following findings: 

3 (1) Women have entered the workforce in 

4 record numbers. 

5 (2) Even today, women earn significantly lower 

6 pay than men for work on jobs that require equal 

7 skill, effort, and responsibility and that are per8 formed under similar working conditions. These pay 

9 disparities exist in both the private and govern10 mental sectors. In many instances, the pay dispari11 ties can only be due to continued intentional dis12 crimination or the lingering effects of past discrimi13 nation. 

14 (3) The existence of such pay disparities—

15 (A) depresses the wages of working fami16 lies who rely on the wages of all members of the 

17 family to make ends meet; 

18 (B) prevents the optimum utilization of 

19 available labor resources; 

20 (C) has been spread and perpetuated, 

21 through commerce and the channels and instru22 mentalities of commerce, among the workers of 

23 the several States; 

24 (D) burdens commerce and the free flow of 

25 goods in commerce; 
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1 (E) constitutes an unfair method of com2 petition in commerce; 

3 (F) leads to labor disputes burdening and 

4 obstructing commerce and the free flow of 

5 goods in commerce; 

6 (G) interferes with the orderly and fair 

7 marketing of goods in commerce; and 

8 (H) in many instances, may deprive work9 ers of equal protection on the basis of sex in 

10 violation of the 5th and 14th amendments. 

11 (4)(A) Artificial barriers to the elimination of 

12 discrimination in the payment of wages on the basis 

13 of sex continue to exist decades after the enactment 

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

15 201 et seq.) and the Civil Rights Act of 1964 (42 

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

17 (B) Elimination of such barriers would have 

18 positive effects, including—

19 (i) providing a solution to problems in the 

20 economy created by unfair pay disparities; 

21 (ii) substantially reducing the number of 

22 working women earning unfairly low wages, 

23 thereby reducing the dependence on public as24 sistance; 
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1 (iii) promoting stable families by enabling 

2 all family members to earn a fair rate of pay; 

3 (iv) remedying the effects of past discrimi4 nation on the basis of sex and ensuring that in 

5 the future workers are afforded equal protection 

6 on the basis of sex; and 

7 (v) ensuring equal protection pursuant to 

8 Congress’s power to enforce the 5th and 14th 

9 amendments. 

10 (5) With increased information about the provi11 sions added by the Equal Pay Act of 1963 and wage 

12 data, along with more effective remedies, women will 

13 be better able to recognize and enforce their rights 

14 to equal pay for work on jobs that require equal 

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

17 (6) Certain employers have already made great 

18 strides in eradicating unfair pay disparities in the 

19 workplace and their achievements should be recog20 nized. 

21 SEC. 603. ENHANCED ENFORCEMENT OF EQUAL PAY RE22 QUIREMENTS. 

23 (a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE

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

25 Act of 1938 (29 U.S.C. 206(d)(1)) is amended by striking 
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1 ‘‘(iv) a differential’’ and all that follows through the period 

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

3 a bona fide factor other than sex, such as education, train4 ing or experience, except that this clause shall apply only 

5 if—

6 ‘‘(I) the employer demonstrates that—

7 ‘‘(aa) such factor—

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

9 the position in question; or 

10 ‘‘(BB) furthers a legitimate business 

11 purpose, except that this item shall not 

12 apply where the employee demonstrates 

13 that an alternative employment practice 

14 exists that would serve the same business 

15 purpose without producing such differen16 tial and that the employer has refused to 

17 adopt such alternative practice; and 

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

19 used reasonably in light of the asserted jus20 tification; and 

21 ‘‘(II) upon the employer succeeding under sub22 clause (I), the employee fails to demonstrate that 

23 the differential produced by the reliance of the em24 ployer on such factor is itself the result of discrimi25 nation on the basis of sex by the employer. 
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1 An employer that is not otherwise in compliance with this 

2 paragraph may not reduce the wages of any employee in 

3 order to achieve such compliance.’’. 

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

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

6 206(d)(1)) is amended by adding at the end the following: 

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

8 for employment if such applicants, upon employment by 

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

10 section.’’. 

11 (c) ELIMINATION OF ESTABLISHMENT REQUIRE12 MENT.—Section 6(d) of the Fair Labor Standards Act of 

13 1938 (29 U.S.C. 206(d)) is amended—

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

15 which such employees are employed,’’; and 

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

17 place it appears. 

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

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

20 215(a)(3)) is amended—

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

22 and inserting ‘‘has’’; and 

23 (2) by inserting before the semicolon the fol24 lowing: ‘‘, or has inquired about, discussed, or other25 wise disclosed the wages of the employee or another
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1 employee, or because the employee (or applicant) has 

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

3 any manner in an investigation, proceeding, hearing, 

4 or action under section 6(d)’’. 

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

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

7 amended—

8 (1) by inserting after the first sentence the fol9 lowing: ‘‘Any employer who violates section 6(d) 

10 shall additionally be liable for such compensatory or 

11 punitive damages as may be appropriate, except that 

12 the United States shall not be liable for punitive 

13 damages.’’; 

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

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

16 inserting ‘‘any of the preceding sentences of this 

17 subsection’’; 

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

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

20 ‘‘Except with respect to class actions brought to en21 force section 6(d), no employee’’; 

22 (4) by inserting after the sentence referred to 

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

24 any other provision of Federal law, any action 

25 brought to enforce section 6(d) may be maintained 
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1 as a class action as provided by the Federal Rules 

2 of Civil Procedure.’’; and 

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

4 (A) by striking ‘‘in such action’’ and in5 serting ‘‘in any action brought to recover the li6 ability prescribed in any of the preceding sen7 tences of this subsection’’; and 

8 (B) by inserting before the period the fol9 lowing: ‘‘, including expert fees’’. 

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

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

12 amended—

13 (1) in the first sentence—

14 (A) by inserting ‘‘or, in the case of a viola15 tion of section 6(d), additional compensatory or 

16 punitive damages,’’ before ‘‘and the agree17 ment’’; and 

18 (B) by inserting before the period the fol19 lowing: ‘‘, or such compensatory or punitive 

20 damages, as appropriate’’; 

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

22 the period the following: ‘‘and, in the case of a viola23 tion of section 6(d), additional compensatory or pu24 nitive damages’’; 
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1 (3) in the third sentence, by striking ‘‘the first 

2 sentence’’ and inserting ‘‘the first or second sen3 tence’’; and 

4 (4) in the last sentence—

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

6 and inserting ‘‘commenced—

7 ‘‘(1) in the case’’; 

8 (B) by striking the period and inserting

9 ‘‘; or’’; and 

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

11 ‘‘(2) in the case of a class action brought to en12 force section 6(d), on the date on which the indi13 vidual becomes a party plaintiff to the class action.’’. 

14 SEC. 604. TRAINING. 

15 The Equal Employment Opportunity Commission 

16 and the Office of Federal Contract Compliance Programs, 

17 subject to the availability of funds appropriated under sec18 tion 609, shall provide training to Commission employees 

19 and affected individuals and entities on matters involving 

20 discrimination in the payment of wages. 

21 SEC. 605. RESEARCH, EDUCATION, AND OUTREACH. 

22 The Secretary of Labor shall conduct studies and 

23 provide information to employers, labor organizations, and 

24 the general public concerning the means available to elimi25 nate pay disparities between men and women, including—
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1 (1) conducting and promoting research to de2 velop the means to correct expeditiously the condi3 tions leading to the pay disparities; 

4 (2) publishing and otherwise making available 

5 to employers, labor organizations, professional asso6 ciations, educational institutions, the media, and the 

7 general public the findings resulting from studies 

8 and other materials, relating to eliminating the pay 

9 disparities; 

10 (3) sponsoring and assisting State and commu11 nity informational and educational programs; 

12 (4) providing information to employers, labor 

13 organizations, professional associations, and other 

14 interested persons on the means of eliminating the 

15 pay disparities; 

16 (5) recognizing and promoting the achievements 

17 of employers, labor organizations, and professional 

18 associations that have worked to eliminate the pay 

19 disparities; and 

20 (6) convening a national summit to discuss, and 

21 consider approaches for rectifying, the pay dispari22 ties. 

23 SEC. 606. TECHNICAL ASSISTANCE AND EMPLOYER REC24 OGNITION PROGRAM. 

25 (a) GUIDELINES.—
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1 (1) IN GENERAL.—The Secretary of Labor shall 

2 develop guidelines to enable employers to evaluate 

3 job categories based on objective criteria such as 

4 educational requirements, skill requirements, inde5 pendence, working conditions, and responsibility, in6 cluding decisionmaking responsibility and de facto 

7 supervisory responsibility. 

8 (2) USE.—The guidelines developed under 

9 paragraph (1) shall be designed to enable employers 

10 voluntarily to compare wages paid for different jobs 

11 to determine if the pay scales involved adequately 

12 and fairly reflect the educational requirements, skill 

13 requirements, independence, working conditions, and 

14 responsibility for each such job with the goal of 

15 eliminating unfair pay disparities between occupa16 tions traditionally dominated by men or women. 

17 (3) PUBLICATION.—The guidelines shall be de18 veloped under paragraph (1) and published in the 

19 Federal Register not later than 180 days after the 

20 date of enactment of this title. 

21 (b) EMPLOYER RECOGNITION.—

22 (1) PURPOSE.—It is the purpose of this sub23 section to emphasize the importance of, encourage 

24 the improvement of, and recognize the excellence of 

25 employer efforts to pay wages to women that reflect 
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1 the real value of the contributions of such women to 

2 the workplace. 

3 (2) IN GENERAL.—To carry out the purpose of 

4 this subsection, the Secretary of Labor shall estab5 lish a program under which the Secretary shall pro6 vide for the recognition of employers who, pursuant 

7 to a voluntary job evaluation conducted by the em8 ployer, adjust their wage scales (such adjustments 

9 shall not include the lowering of wages paid to men) 

10 using the guidelines developed under subsection (a) 

11 to ensure that women are paid fairly in comparison 

12 to men. 

13 (3) TECHNICAL ASSISTANCE.—The Secretary of 

14 Labor may provide technical assistance to assist an 

15 employer in carrying out an evaluation under para16 graph (2). 

17 (c) REGULATIONS.—The Secretary of Labor shall 

18 promulgate such rules and regulations as may be nec19 essary to carry out this section. 

20 SEC. 607. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

21 PAY EQUITY IN THE WORKPLACE. 

22 (a) IN GENERAL.—There is established the Secretary 

23 of Labor’s National Award for Pay Equity in the Work24 place, which shall be evidenced by a medal bearing the 

25 inscription ‘‘Secretary of Labor’s National Award for Pay 
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1 Equity in the Workplace’’. The medal shall be of such de2 sign and materials, and bear such additional inscriptions, 

3 as the Secretary of Labor may prescribe. 

4 (b) CRITERIA FOR QUALIFICATION.—To qualify to 

5 receive an award under this section a business shall—

6 (1) submit a written application to the Sec7 retary of Labor, at such time, in such manner, and 

8 containing such information as the Secretary may 

9 require, including at a minimum information that 

10 demonstrates that the business has made substantial 

11 effort to eliminate pay disparities between men and 

12 women, and deserves special recognition as a con13 sequence; and 

14 (2) meet such additional requirements and 

15 specifications as the Secretary of Labor determines 

16 to be appropriate. 

17 (c) MAKING AND PRESENTATION OF AWARD.—

18 (1) AWARD.—After receiving recommendations 

19 from the Secretary of Labor, the President or the 

20 designated representative of the President shall an21 nually present the award described in subsection (a) 

22 to businesses that meet the qualifications described 

23 in subsection (b). 

24 (2) PRESENTATION.—The President or the des25 ignated representative of the President shall present 
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1 the award under this section with such ceremonies 

2 as the President or the designated representative of 

3 the President may determine to be appropriate. 

4 (d) BUSINESS.—In this section, the term ‘‘business’’ 

5 includes—

6 (1)(A) a corporation, including a nonprofit cor7 poration; 

8 (B) a partnership; 

9 (C) a professional association; 

10 (D) a labor organization; and 

11 (E) a business entity similar to an entity de12 scribed in any of subparagraphs (A) through (D); 

13 (2) an entity carrying out an education referral 

14 program, a training program, such as an apprentice15 ship or management training program, or a similar 

16 program; and 

17 (3) an entity carrying out a joint program, 

18 formed by a combination of any entities described in 

19 paragraph (1) or (2). 

20 SEC. 608. COLLECTION OF PAY INFORMATION BY THE 

21 EQUAL EMPLOYMENT OPPORTUNITY COM22 MISSION. 

23 Section 709 of the Civil Rights Act of 1964 (42 

24 U.S.C. 2000e–8) is amended by adding at the end the fol25 lowing: 
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1 ‘‘(f)(1) Not later than 18 months after the date of 

2 enactment of this subsection, the Commission shall—

3 ‘‘(A) complete a survey of the data that is cur4 rently available to the Federal Government relating 

5 to employee pay information for use in the enforce6 ment of Federal laws prohibiting pay discrimination 

7 and, in consultation with other relevant Federal 

8 agencies, identify additional data collections that will 

9 enhance the enforcement of such laws; and 

10 ‘‘(B) based on the results of the survey and 

11 consultations under subparagraph (A), issue regula12 tions to provide for the collection of pay information 

13 data from employers as described by the sex, race, 

14 and national origin of employees. 

15 ‘‘(2) In implementing paragraph (1), the Commission 

16 shall have as its primary consideration the most effective 

17 and efficient means for enhancing the enforcement of Fed18 eral laws prohibiting pay discrimination. For this purpose, 

19 the Commission shall consider factors including the impo20 sition of burdens on employers, the frequency of required 

21 reports (including which employers should be required to 

22 prepare reports), appropriate protections for maintaining 

23 data confidentiality, and the most effective format for the 

24 data collection reports.’’.
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1 SEC. 609. AUTHORIZATION OF APPROPRIATIONS. 

2 There are authorized to be appropriated such sums 

3 as may be necessary to carry out this title. 

4 TITLE VII—PROTECTIONS FOR 

5 WORKERS 

6 Subtitle A—Protection for 

7 Undocumented Workers 

8 SEC. 701. FINDINGS. 

9 Congress finds the following: 

10 (1) The National Labor Relations Act (29 

11 U.S.C. 151 et seq.) (in this subtitle referred to as 

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

13 of employees to organize and to bargain collectively 

14 with their employers. The NLRA implements the na15 tional labor policy of assuring free choice and en16 couraging collective bargaining as a means of main17 taining industrial peace. The National Labor Rela18 tions Board (in this subtitle referred to as the 

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

20 provisions of the NLRA. 

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

22 are prohibited from discriminating against employ23 ees ‘‘in regard to hire or tenure of employment or 

24 any term or condition of employment to encourage 

25 or discourage membership in any labor organiza26 tion’’. (29 U.S.C. 158(a)(3)). Employers who violate 
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1 these provisions are subject to a variety of sanctions, 

2 including reinstatement of workers found to be ille3 gally discharged because of their union support or 

4 activity and provision of backpay to those employees. 

5 Such sanctions serve to remedy and deter illegal ac6 tions by employers. 

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

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

9 held by a 5 to 4 vote that Federal immigration pol10 icy, as articulated in the Immigration Reform and 

11 Control Act of 1986, prevented the NLRB from 

12 awarding backpay to an undocumented immigrant 

13 who was discharged in violation of the NLRA be14 cause of his support for union representation at his 

15 workplace. 

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

17 all employees, regardless of immigration or citizen18 ship status, who try to improve their working condi19 tions. In the wake of Hoffman Plastics, employers 

20 may be more likely to report to the Department of 

21 Homeland Security minority workers, regardless of 

22 their immigration or citizenship status, who pursue 

23 claims under the NLRA against their employers. 

24 Fear that employers may retaliate against employees 

25 that exercise their rights under the NLRA has a 
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1 chilling effect on all employees who exercise their 

2 labor rights. 

3 (5) The NLRA is not the only Federal employ4 ment statute that provides for a backpay award as 

5 a remedy for an unlawful discharge. For example, 

6 courts routinely award backpay to employees who 

7 are found to have been discharged in violation of 

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

9 2000e et seq.) or the Fair Labor Standards Act of 

10 1938 (29 U.S.C. 201 et seq.) (in retaliation for com11 plaining about a failure to comply with the minimum 

12 wage). In the wake of the Hoffman decision, defend13 ant employers will now argue that backpay awards 

14 to unlawfully discharged undocumented workers are 

15 barred under Federal employment statutes and even 

16 under State employment statutes. 

17 (6) Because the Hoffman decision prevents the 

18 imposition of sanctions on employers who discrimi19 nate against undocumented immigrant workers, em20 ployers are encouraged to employ such workers for 

21 low-paying and dangerous jobs because they have no 

22 legal redress for violations of the law. This creates 

23 an economic incentive for employers to hire and ex24 ploit undocumented workers, which in turn tends to 
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1 undermine the living standards and working condi2 tions of all Americans, citizens and noncitizens alike. 

3 (7) The Hoffman decision disadvantages many 

4 employers as well. Employers who are forced to com5 pete with firms that hire and exploit undocumented 

6 immigrant workers are saddled with an economic 

7 disadvantage in the labor marketplace. The unin8 tended creation of an economic inducement for em9 ployers to exploit undocumented immigrant workers 

10 gives those employers an unfair competitive advan11 tage over employers that treat workers lawfully and 

12 fairly. 

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

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

15 existing remedial arsenal’ must be ‘addressed by 

16 congressional action[.]’ ’’ Hoffman Plastic Com17 pounds Inc. v. NLRB, 535 U.S. 137, 152 (2002) 

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

19 904 (1984)). In emphasizing the importance of back 

20 pay awards, Justice Breyer noted that such awards 

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

22 that both labor laws and immigration laws seek to 

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

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

25 pay awards are designed both to remedy the individ-
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1 ual’s private right to be free from discrimination as 

2 well as to enforce the important public policy against 

3 discriminatory employment practices, Congress must 

4 take the following corrective action. 

5 SEC. 702. CONTINUED APPLICATION OF BACKPAY REM6 EDIES. 

7 (a) IN GENERAL.—Section 274A(h) of the Immigra8 tion and Nationality Act (8 U.S.C. 1324a(h)) is amended 

9 by adding at the end the following: 

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

11 monetary relief for unlawful employment practices 

12 shall not be denied to a present or former employee 

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

14 ‘‘(A) failure to comply with the require15 ments of this section; or 

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

17 related to the employment verification system 

18 described in subsection (b) in establishing or 

19 maintaining the employment relationship.’’. 

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

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

22 violation that occurs prior to, on, or after the date of en23 actment of this title.
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1 Subtitle B—Fair Labor Standards 

2 Act Amendments 

3 SEC. 711. SHORT TITLE. 

4 This subtitle may be cited as the ‘‘Workers’ Minimum 

5 Wage and Overtime Rights Restoration Act of 2004’’. 

6 SEC. 712. FINDINGS. 

7 Congress finds the following with respect to the Fair 

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

9 this subtitle referred to as the ‘‘FLSA’’): 

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

11 with respect to the payment of minimum wage and 

12 overtime rates. In Garcia v. San Antonio Metropoli13 tan Transit Authority, 469 U.S. 528 (1985), the Su14 preme Court upheld Congress’s constitutional au15 thority to regulate States in the payment of min16 imum wages and overtime. The prohibitions of the 

17 FLSA remain in effect and continue to apply to the 

18 States. 

19 (2) Wage and overtime violations in employ20 ment remain a serious problem both nationally and 

21 among State and other public and private entities 

22 receiving Federal financial assistance, and has invid23 ious effects on its victims, the labor force, and the 

24 general welfare and economy as a whole. For exam25 ple, seven State governments have no overtime laws 
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1 at all. Fourteen State governments have minimum 

2 wage and overtime laws; however, they exclude em3 ployees covered under the FLSA. As such, public 

4 employees, since they are covered under the FLSA 

5 are not protected under these State laws. Addition6 ally, four States have minimum wage and overtime 

7 laws which are inferior to the FLSA. Further, the 

8 Department of Labor continues to receive a substan9 tial number of wage and overtime charges against 

10 State government employers. 

11 (3) Private civil suits by the victims of employ12 ment law violations have been a crucial tool for en13 forcement of the FLSA. In Alden v. Maine, 527 

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

15 that Congress lacks the power under the 14th 

16 amendment to the Constitution to abrogate State 

17 sovereign immunity to suits for legal relief by indi18 viduals under the FLSA. The Federal Government 

19 has an important interest in ensuring that Federal 

20 financial assistance is not used to facilitate viola21 tions of the FLSA, and private civil suits for mone22 tary relief are a critical tool for advancing that in23 terest. 

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

25 violations by State employers remain unlawful, but 
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1 victims of such violations lack important remedies 

2 for vindication of their rights available to all other 

3 employees covered by the FLSA. In the absence of 

4 the deterrent effect that such remedies provide, 

5 there is a great likelihood that State entities car6 rying out federally funded programs and activities 

7 will use Federal financial assistance to violate the 

8 FLSA, or that the Federal financial assistance will 

9 otherwise subsidize or facilitate FLSA violations. 

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

11 authority to condition receipt of Federal financial 

12 assistance on acceptance by State or other covered 

13 entities of conditions regarding or related to the use 

14 of those funds, as in Cannon v. University of Chi15 cago, 441 U.S. 677 (1979). 

16 (6) The Court has further recognized that Con17 gress may require State entities, as a condition of 

18 receipt of Federal financial assistance, to waive their 

19 State sovereign immunity to suits for a violation of 

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

21 Prepaid Postsecondary Education Expense Board, 

22 527 U.S. 666 (1999). 

23 (7) In the wake of the Alden decision, it is nec24 essary, in order to foster greater compliance with, 

25 and adequate remedies for violations of, the FLSA, 
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1 particularly in federally funded programs or activi2 ties operated by State entities, to require State enti3 ties to consent to a waiver of State sovereign immu4 nity as a condition of receipt of such Federal finan5 cial assistance. 

6 (8) The Supreme Court has repeatedly held 

7 that State sovereign immunity does not bar suits for 

8 prospective injunctive relief brought against State 

9 officials acting in their official capacity, as in Ex 

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

11 relief available in such suits under the FLSA will 

12 continue to be the same as that which was available 

13 under those laws prior to enactment of this subtitle. 

14 SEC. 713. PURPOSES. 

15 The purposes of this subtitle are—

16 (1) to provide to State employees in programs 

17 or activities that receive or use Federal financial as18 sistance the same rights and remedies for practices 

19 violating the FLSA as are available to other employ20 ees under the FLSA, and that were available to 

21 State employees prior to the Supreme Court’s deci22 sion in Alden v. Maine, 527 U.S. 706 (1999); 

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

24 financial assistance for a program or activity con25 stitutes a State waiver of sovereign immunity from 
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1 suits by employees within that program or activity 

2 for violations of the FLSA; and 

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

4 available against State officials in their official ca5 pacities for violations of the FLSA. 

6 SEC. 714. REMEDIES FOR STATE EMPLOYEES. 

7 Section 16 of the Fair Labor Standards Act of 1938 

8 (29 U.S.C. 216) is amended by adding at the end the fol9 lowing: 

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

11 assistance for any program or activity of a State shall con12 stitute a waiver of sovereign immunity, under the 11th 

13 amendment to the Constitution or otherwise, to a suit 

14 brought by an employee of that program or activity under 

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

16 under this Act. 

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

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

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

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