I 

108TH CONGRESS 

2D SESSION H. R. 3809

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

rights statutes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 11, 2004

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

CONYERS, Ms. DELAURO, Ms. PELOSI, Ms. SLAUGHTER, Mr. MEEKS of 

New York, Ms. WOOLSEY, Mrs. CHRISTENSEN, Ms. NORTON, Ms. LEE, 

Ms. SOLIS, Mr. FRANK of Massachusetts, Mr. FROST, Mr. KUCINICH, 

Mr. RODRIGUEZ, Mr. GREEN of Texas, Mr. BERMAN, Ms. MILLENDERMCDONALD, Mr. GRIJALVA, Mrs. MCCARTHY of New York, Mr. DAVIS

of Illinois, Mr. NADLER, Mrs. MALONEY, Ms. WATSON, Mr. TIERNEY, 

Mr. BROWN of Ohio, Mr. RANGEL, Mr. OWENS, Mr. KILDEE, Mr. FARR, 

Mr. MATSUI, Mr. MCGOVERN, Mr. HONDA, Mr. THOMPSON of Mississippi, Mrs. JONES of Ohio, Mr. SERRANO, Mr. BALLANCE, Mr. WATT, 

Mr. RYAN of Ohio, Mr. BLUMENAUER, Mr. BACA, Ms. KAPTUR, Ms. WATERS, Mr. PAYNE, Ms. JACKSON-LEE of Texas, Ms. MCCOLLUM, Mr. 

FATTAH, Mr. ANDREWS, Mr. TOWNS, Ms. EDDIE BERNICE JOHNSON of 

Texas, Ms. CORRINE BROWN of Florida, Mr. DELAHUNT, Mr. LANGEVIN, 

Mr. BISHOP of New York, Mr. ALLEN, Mr. FILNER, Ms. KILPATRICK, 

Ms. BALDWIN, Mr. RUSH, Mr. CUMMINGS, Ms. LINDA T. SA ́NCHEZ of 

California, Mrs. DAVIS of California, Mr. GEPHARDT, Mr. UDALL of New 

Mexico, Mr. WEINER, Mr. GUTIERREZ, Ms. LOFGREN, Mr. STARK, Mr. 

STRICKLAND, Ms. MCCARTHY of Missouri, Mr. HASTINGS of Florida, Mr. 

SCOTT of Virginia, Mr. OLVER, Mr. HOLT, Mr. CLAY, Ms. SCHAKOWSKY, 

Ms. ROYBAL-ALLARD, Mr. MEEK of Florida, Mr. HOEFFEL, Mr. EMANUEL, Mr. HINOJOSA, Mr. MCNULTY, Mr. PASTOR, Ms. CARSON of Indiana, Mr. WYNN, Mr. BISHOP of Georgia, Ms. MAJETTE, and Mr. SCOTT

of Georgia) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education 

and the Workforce, and Transportation and Infrastructure, for a period 

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

concerned 
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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:

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. 
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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 

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. 
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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: 

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

11 532 U.S. 275 (2001) that significantly impairs stat12 utory protections against discrimination that Con13 gress has erected over a period of almost 4 decades. 

14 The Sandoval decision undermines these statutory 

15 protections by stripping victims of discrimination 

16 (defined under regulations that Congress required 

17 Federal departments and agencies to promulgate to 

18 implement title VI of the Civil Rights Act of 1964 

19 (42 U.S.C. 2000d et seq.)) of the right to bring ac20 tion in Federal court to redress the discrimination 

21 and by casting doubt on the validity of the regula22 tions themselves. 

23 (2) The Sandoval decision attacks settled expec24 tations created by title VI of the Civil Rights Act of
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1 1964, title IX of the Education Amendments of 

2 1972 (also known as the ‘‘Patsy Takemoto Mink 

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

4 1681 et seq.), the Age Discrimination Act of 1975 

5 (42 U.S.C. 6101 et seq.), and section 504 of the 

6 Rehabilitation Act of 1973 (29 U.S.C. 794) (collec7 tively referred to in this Act as the ‘‘covered civil 

8 rights provisions’’). The covered civil rights provi9 sions were designed to establish and make effective 

10 the rights of persons to be free from discrimination 

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

12 of the covered civil rights provisions, as appropriate 

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

14 1964 Congress adopted title VI of the Civil Rights 

15 Act of 1964 to ensure that Federal dollars would 

16 not be used to subsidize or support programs or ac17 tivities that discriminated on racial, color, or na18 tional origin grounds. In the years that followed, 

19 Congress extended these protections by enacting 

20 laws barring discrimination in federally funded ac21 tivities on the basis of sex in title IX of the Edu22 cation Amendments of 1972, age in the Age Dis23 crimination Act of 1975, and disability in section 

24 504 of the Rehabilitation Act of 1973. 
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1 (3) From the outset, Congress and the execu2 tive branch made clear that the regulatory process 

3 would be used to ensure broad protections for bene4 ficiaries of the law. The first regulations promul5 gated by the Department of Justice under title VI 

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

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

8 administration which have the effect of subjecting 

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

10 title 45, Code of Federal Regulations) and prohib11 ited retaliation against persons participating in liti12 gation or administrative resolution of charges of dis13 crimination brought under the Act. These regula14 tions were drafted by the same executive branch offi15 cials who played a central role in drafting title VI 

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

17 is, in relevant respects, virtually indistinguishable 

18 from regulations under the several Acts in effect 

19 today. For example, section 304 of the Age Dis20 crimination Act of 1975 (42 U.S.C. 6103) required 

21 the Secretary of the Department of Health, Edu22 cation, and Welfare (HEW) (now Health and 

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

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

25 These ‘‘government-wide regulations,’’ governing age 
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1 discrimination in programs and activities receiving 

2 Federal financial assistance condemn ‘‘any actions 

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

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

5 Regulations). 

6 (4) None of the regulations under the laws ad7 dressed in this subtitle have ever been invalidated. 

8 In 1966, Congress considered and rejected a pro9 posal to invalidate the disparate impact regulations 

10 promulgated pursuant to title VI of the Civil Rights 

11 Act of 1964 (42 U.S.C. 2000d et seq.). In 1975, 

12 Congress reviewed and maintained the implementing 

13 regulations promulgated pursuant to title IX of the 

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

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

16 afford Congress the opportunity to invalidate provi17 sions deemed to be inconsistent with congressional 

18 intent. The Supreme Court has recognized that 

19 Congress’s failure to disapprove regulations implies 

20 that the regulations accurately reflect congressional 

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

22 512, 533–34 (1982). Moreover, the Supreme Court 

23 explicitly recognized congressional approval of the 

24 regulations promulgated to implement section 504 of 

25 the Rehabilitation Act of 1973 (29 U.S.C. 794) in 
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1 Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 

2 634 (1984), stating that ‘‘[t]he regulations particu3 larly merit deference in the present case: the respon4 sible Congressional committees participated in their 

5 formation and both these committees and Congress 

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

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

8 section were designed to confer a benefit on persons 

9 who were discriminated against. They relied heavily 

10 on private attorneys general for effective enforce11 ment. Congress acknowledged that it could not se12 cure compliance solely through enforcement actions 

13 initiated by the Attorney General. Newman v. Piggie 

14 Park Enterprises, 390 U.S. 400 (1968) (per cu15 riam). 

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

17 individuals suffering discrimination under these stat18 utes have a private right of action in the Federal 

19 courts, and that this is necessary for effective pro20 tection of the law, although Congress did not make 

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

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

23 (7)(A) Notwithstanding the decision of the Su24 preme Court in Cort v. Ash, 422 U.S. 66 (1975) to 

25 abandon prior precedent and require explicit statu-
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1 tory statements of a right of action, Congress and 

2 the Courts both before and after Cort have recog3 nized an implied right of action under the above 

4 statutes. For example, Congress has consistently 

5 provided the means for enforcing the statutes. In 

6 1972, Congress established a right to attorney’s fees 

7 in private actions brought under title VI of the Civil 

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

9 title IX of the Education Amendments of 1972 (20 

10 U.S.C. 1681 et seq.) that continued with enactment 

11 of the Civil Rights Attorneys’ Fees Awards Act of 

12 1976 (Public Law 94–559; 90 Stat. 2641). In 1973, 

13 Congress provided a right to attorney’s fees for pre14 vailing parties under section 504 of the Rehabilita15 tion Act of 1973 (29 U.S.C. 794) without expressly 

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

17 Congress amended the Age Discrimination Act of 

18 1975 (42 U.S.C. 6101 et seq.) to include a right 

19 to attorney’s fees. Because the Age Discrimination 

20 Act of 1975 was enacted while the Cort decision was 

21 pending, Congress also enacted in 1978 a limited 

22 private right of action to enforce the Age Discrimi23 nation Act of 1975. 

24 (B) The Senate Report that accompanied the 

25 Civil Rights Attorneys’ Fees Awards Act of 1976 
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1 (Public Law 94–559; 90 Stat. 2641) stated that 

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

3 upon private enforcement, and fee awards have 

4 proved an essential remedy if private citizens are to 

5 have a meaningful opportunity to vindicate the im6 portant congressional policies which these laws con7 tain.’’ S. Rep. No. 94–1011 (1976). 

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

9 in legislative history in Sandoval for denying a right 

10 of action under regulations promulgated pursuant to 

11 title VI of the Civil Rights Act of 1964 (42 U.S.C. 

12 2000d et seq.) while permitting it under the statute. 

13 The regulations were congressionally mandated and 

14 their promulgation was specifically directed by Con15 gress under section 602 of that Act (42 U.S.C. 

16 2000d–1) ‘‘to effectuate’’ the antidiscrimination pro17 visions of the statute. Title VI of the Civil Rights 

18 Act of 1964 stressed the importance of the regula19 tions by requiring them to be ‘‘approved by the 

20 President’’. Similarly, the regulations promulgated 

21 pursuant to title IX of the Education Amendments 

22 of 1972 (20 U.S.C. 1681 et seq.) were also congres23 sionally authorized and specifically directed by Con24 gress to effectuate the provisions of the statute. 

25 Title IX of the Education Amendments of 1972 
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1 stressed the importance of the regulations by requir2 ing them to be ‘‘approved by the President’’. 

3 (9) Regulations that prohibit practices that 

4 have the effect of discrimination are consistent with 

5 prohibitions of disparate treatment that require a 

6 showing of intent, as the Supreme Court has ac7 knowledged in the following decisions: 

8 (A) A disparate impact standard allows a 

9 court to reach discrimination that could actu10 ally exist under the guise of compliance with 

11 the law. Griggs v. Duke Power Co., 401 U.S. 

12 424 (1971). 

13 (B) Evidence of a disproportionate burden 

14 will often be the starting point in any analysis 

15 of unlawful discrimination. Village of Arlington 

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

17 U.S. 252 (1977). 

18 (C) An invidious purpose may often be in19 ferred from the totality of the relevant facts, in20 cluding, where true, that the practice bears 

21 more heavily on one race than another. Wash22 ington v. Davis, 426 U.S. 229 (1976). 

23 (D) The disparate impact method of proof 

24 is critical to ferreting out stereotypes under-
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1 lying intentional discrimination. Watson v. Fort 

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

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

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

5 IX of the Education Amendments of 1972 (20 

6 U.S.C. 1681 et seq.), and other statutes barring dis7 crimination by covered entities as prohibiting prac8 tices that have disparate impact and that are not 

9 justified as necessary to achieve the goals of the pro10 grams or activities supported by the Federal finan11 cial assistance is powerfully reinforced by the use of 

12 such a standard in enforcing title VII of the Civil 

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

14 the Supreme Court wavered on the application of a 

15 disparate impact standard under title VII, Congress 

16 specifically reinstated it as law in the Civil Rights 

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

18 (11) By reinstating a private right of action 

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

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

21 other civil rights statutes, Congress is not acting in 

22 a manner that would expose covered entities to un23 fair findings of discrimination. The legal standard 

24 for a disparate impact claim has never been struc-
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1 tured so that a finding of discrimination could be 

2 based on numerical imbalance alone. 

3 (12) In contrast, a failure to reinstate or con4 firm a private right of action would leave vindication 

5 of the rights to equality of opportunity solely to Fed6 eral agencies, which may fail to take necessary and 

7 appropriate action because of administrative over8 burden or other reasons. Action by Congress to 

9 specify a private right of action is necessary to en10 sure that persons will have a remedy if they are de11 nied equal access to education, housing, health, envi12 ronmental protection, transportation, and many 

13 other programs and services by practices of covered 

14 entities that result in discrimination. 

15 (13) As a result of the Supreme Court’s deci16 sion in Sandoval, courts have dismissed numerous 

17 claims brought under the regulations promulgated 

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

19 (42 U.S.C. 2000d et seq.) that challenged actions 

20 with an unjustified discriminatory effect. Although 

21 the Sandoval Court did not address title IX of the 

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

23 seq.), lower courts have similarly dismissed claims 

24 under such Act. Courts relying on the Sandoval deci25 sion have also dismissed claims seeking redress for
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1 unlawful retaliation against persons who opposed 

2 prohibited acts, brought actions, or participated in 

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

4 1964 and title IX of the Education Amendments of 

5 1972. Because judicial interpretation of the Age 

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

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

8 of 1964 and title IX of the Education Amendments 

9 of 1972, without clarification of Sandoval, plaintiffs 

10 run the risk that courts may dismiss claims brought 

11 under regulations promulgated pursuant to the Age 

12 Discrimination Act of 1975 challenging actions with 

13 an unjustified discriminatory effect and claims seek14 ing redress for unlawful retaliation against persons 

15 who have brought or participated in actions under 

16 the Age Discrimination Act of 1975. 

17 (14) Section 504 of the Rehabilitation Act of 

18 1973 (29 U.S.C. 794) has received different treat19 ment by the Supreme Court. In Alexander v. Choate, 

20 469 U.S. 287 (1985), the Court proceeded on the 

21 assumption that the statute itself prohibited some 

22 actions that had a disparate impact on handicapped 

23 individuals—an assumption borne out by congres24 sional statements made during passage of the Act. 

25 In Sandoval, the Court appeared to accept this prin-
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1 ciple of Alexander. Moreover, the Supreme Court ex2 plicitly recognized congressional approval of the reg3 ulations promulgated to implement section 504 of 

4 the Rehabilitation Act of 1973 in Consolidated Rail 

5 Corp. v. Darrone, 465 U.S. 624, 634 (1984). Rely6 ing on the validity of the regulations, Congress in7 corporated the regulations into the statutory require8 ments of section 204 of the Americans with Disabil9 ities Act of 1990 (42 U.S.C. 12134). Thus it does 

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

11 private right of action to challenge disparate impact 

12 discrimination under section 504 of the Rehabilita13 tion Act of 1973 will become unavailable. 

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

15 Rights Act of 1964, title IX of the Education 

16 Amendments of 1972, the Age Discrimination Act of 

17 1975, and section 504 of the Rehabilitation Act of 

18 1973, Congress has intended that the prohibitions 

19 on discrimination in those provisions include a prohi20 bition on retaliation. The ability to prevent retalia21 tion against persons who oppose any policy or prac22 tice prohibited by those provisions, or make a 

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

24 in an investigation, proceeding, or hearing under 
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1 those provisions, is essential to realizing the prohibi2 tions on discrimination in those provisions. 

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

4 action under a provision added to a statute under 

5 this subtitle will be effectuated by a waiver of sov6 ereign immunity in the same manner as sovereign 

7 immunity is waived under the remaining provisions 

8 of that statute. 

9 SEC. 102. PROHIBITED DISCRIMINATION. 

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

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

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

13 and 

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

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

16 participation and denial of benefits) based on disparate 

17 impact is established under this title only if—

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

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

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

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

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

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

24 or national origin and the covered entity fails to 

25 demonstrate that the challenged policy or practice 
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1 is related to and necessary to achieve the non2 discriminatory goals of the program or activity al3 leged to have been operated in a discriminatory 

4 manner; or 

5 ‘‘(ii) the aggrieved person demonstrates (con6 sistent with the demonstration required under title 

7 VII with respect to an ‘alternative employment prac8 tice’) that a less discriminatory alternative policy or 

9 practice exists, and the covered entity refuses to 

10 adopt such alternative policy or practice. 

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

14 demonstrate that each particular challenged policy or 

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

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

19 may be analyzed as one policy or practice. 

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

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

22 covered entity shall not be required to demonstrate that 

23 such policy or practice is necessary to achieve the goals 

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

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

4 discrimination under this title. 

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

6 means meets the burdens of production and persuasion. 

7 ‘‘(c) No person in the United States shall be sub8 jected to discrimination, including retaliation, because 

9 such person opposed any policy or practice prohibited by 

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

11 assisted, or participated in any manner in an investiga12 tion, proceeding, or hearing under this title.’’. 

13 (b) EDUCATION AMENDMENTS OF 1972.—Section 

14 901 of the Education Amendments of 1972 (20 U.S.C. 

15 1681) is amended—

16 (1) by redesignating subsection (c) as sub17 section (e); and 

18 (2) by inserting after subsection (b) the fol19 lowing: 

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

21 paragraphs (1) through (9) of subsection (a), discrimina22 tion (including exclusion from participation and denial of 

23 benefits) based on disparate impact is established under 

24 this title only if—
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1 ‘‘(i) a person aggrieved by discrimination on the 

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

3 person’) demonstrates that an entity subject to this 

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

5 has a policy or practice that causes a disparate im6 pact on the basis of sex and the covered entity fails 

7 to demonstrate that the challenged policy or practice 

8 is related to and necessary to achieve the non9 discriminatory goals of the program or activity al10 leged to have been operated in a discriminatory 

11 manner; or 

12 ‘‘(ii) the aggrieved person demonstrates (con13 sistent with the demonstration required under title 

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

15 2000e et seq.) with respect to an ‘alternative em16 ployment practice’) that a less discriminatory alter17 native policy or practice exists, and the covered enti18 ty refuses to adopt such alternative policy or prac19 tice. 

20 ‘‘(B)(i) With respect to demonstrating that a par21 ticular policy or practice causes a disparate impact as de22 scribed in subparagraph (A)(i), the aggrieved person shall 

23 demonstrate that each particular challenged policy or 

24 practice causes a disparate impact, except that if the ag25 grieved person demonstrates to the court that the elements 
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1 of a covered entity’s decisionmaking process are not capa2 ble of separation for analysis, the decisionmaking process 

3 may be analyzed as one policy or practice. 

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

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

6 covered entity shall not be required to demonstrate that 

7 such policy or practice is necessary to achieve the goals 

8 of its program or activity. 

9 ‘‘(2) A demonstration that a policy or practice is nec10 essary to achieve the goals of a program or activity may 

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

12 discrimination under this title. 

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

14 means meets the burdens of production and persuasion. 

15 ‘‘(d) No person in the United States shall be sub16 jected to discrimination, including retaliation, because 

17 such person opposed any policy or practice prohibited by 

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

19 assisted, or participated in any manner in an investiga20 tion, proceeding, or hearing under this title.’’. 

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

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

23 6102) is amended—

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

25 Pursuant’’; and 
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1 (2) by adding at the end the following: 

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

5 based on disparate impact is established under this title 

6 only if—

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

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

9 person’) demonstrates that an entity subject to this 

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

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

13 to demonstrate that the challenged policy or practice 

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

17 manner; or 

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

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

21 2000e et seq.) with respect to an ‘alternative em22 ployment practice’) that a less discriminatory alter23 native policy or practice exists, and the covered enti24 ty refuses to adopt such alternative policy or prac25 tice. 
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1 ‘‘(B)(i) With respect to demonstrating that a par2 ticular policy or practice causes a disparate impact as de3 scribed in subparagraph (A)(i), the aggrieved person shall 

4 demonstrate that each particular challenged policy or 

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

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

9 may be analyzed as one policy or practice. 

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

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

12 covered entity shall not be required to demonstrate that 

13 such policy or practice is necessary to achieve the goals 

14 of its program or activity. 

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

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

18 discrimination under this title. 

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

20 means meets the burdens of production and persuasion. 

21 ‘‘(c) No person in the United States shall be sub22 jected to discrimination, including retaliation, because 

23 such person opposed any policy or practice prohibited by 

24 this title, or because such person made a charge, testified, 
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1 assisted, or participated in any manner in an investiga2 tion, proceeding, or hearing under this title.’’. 

3 SEC. 103. RIGHTS OF ACTION. 

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

5 Civil Rights Act of 1964 (42 U.S.C. 2000d–1) is amend6 ed—

7 (1) by inserting ‘‘(a)’’ before ‘‘Each Federal de8 partment and agency which is empowered’’; and 

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

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

11 entity to comply with this title, including any regulation 

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

13 in any Federal or State court of competent jurisdiction 

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

15 (b) EDUCATION AMENDMENTS OF 1972.—Section 

16 902 of the Education Amendments of 1972 (20 U.S.C. 

17 1682) is amended—

18 (1) by inserting ‘‘(a)’’ before ‘‘Each Federal de19 partment and agency which is empowered’’; and 

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

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

22 entity to comply with this title, including any regulation 

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

24 in any Federal or State court of competent jurisdiction 

25 to enforce such person’s rights.’’. 
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1 (c) AGE DISCRIMINATION ACT OF 1975.—Section 

2 305(e) of the Age Discrimination Act of 1975 (42 U.S.C. 

3 6104(e)) is amended in the first sentence of paragraph

4 (1), by striking ‘‘this Act’’ and inserting ‘‘this title, includ5 ing a regulation promulgated to carry out this title,’’.

6 SEC. 104. RIGHT OF RECOVERY. 

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

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

9 amended by inserting after section 602 the following: 

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

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

12 DISCRIMINATION.—In an action brought by an aggrieved 

13 person under this title against a covered entity who has 

14 engaged in unlawful intentional discrimination (not a 

15 practice that is unlawful because of its disparate impact) 

16 prohibited under this title (including its implementing reg17 ulations), the aggrieved person may recover equitable and 

18 legal relief (including compensatory and punitive dam19 ages), attorney’s fees (including expert fees), and costs, 

20 except that punitive damages are not available against a 

21 government, government agency, or political subdivision. 

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

23 STANDARD OF PROOF.—In an action brought by an ag24 grieved person under this title against a covered entity 

25 who has engaged in unlawful discrimination based on dis-
25

•HR 3809 IH 

1 parate impact prohibited under this title (including its im2 plementing regulations), the aggrieved person may recover 

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

4 costs.’’. 

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

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

7 seq.) is amended by inserting after section 902 the fol8 lowing: 

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

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

11 DISCRIMINATION.—In an action brought by an aggrieved 

12 person under this title against a covered entity who has 

13 engaged in unlawful intentional discrimination (not a 

14 practice that is unlawful because of its disparate impact) 

15 prohibited under this title (including its implementing reg16 ulations), the aggrieved person may recover equitable and 

17 legal relief (including compensatory and punitive dam18 ages), attorney’s fees (including expert fees), and costs, 

19 except that punitive damages are not available against a 

20 government, government agency, or political subdivision. 

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

22 STANDARD OF PROOF.—In an action brought by an ag23 grieved person under this title against a covered entity 

24 who has engaged in unlawful discrimination based on dis25 parate impact prohibited under this title (including its im-
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•HR 3809 IH 

1 plementing regulations), the aggrieved person may recover 

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

3 costs.’’. 

4 (c) AGE DISCRIMINATION ACT OF 1975.—

5 (1) IN GENERAL.—Section 305 of the Age Dis6 crimination Act of 1975 (42 U.S.C. 6104) is amend7 ed by adding at the end the following: 

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

9 under this title against a covered entity who has engaged 

10 in unlawful intentional discrimination (not a practice that 

11 is unlawful because of its disparate impact) prohibited 

12 under this title (including its implementing regulations), 

13 the aggrieved person may recover equitable and legal relief 

14 (including compensatory and punitive damages), attor15 ney’s fees (including expert fees), and costs, except that 

16 punitive damages are not available against a government, 

17 government agency, or political subdivision. 

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

19 under this title against a covered entity who has engaged 

20 in unlawful discrimination based on disparate impact pro21 hibited under this title (including its implementing regula22 tions), the aggrieved person may recover equitable relief, 

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

24 (2) CONFORMITY OF ADA WITH TITLE VI AND

25 TITLE IX.—
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1 (A) ELIMINATING WAIVER OF RIGHT TO

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

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

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

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

7 (ii) by striking the second sentence 

8 and inserting the following: ‘‘The Court 

9 shall award the costs of suit, including a 

10 reasonable attorney’s fee (including expert 

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

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

15 DAYS TO OBTAIN AGENCY REVIEW.—Section 

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

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

18 ‘‘With respect to actions brought for relief 

19 based on an alleged violation of the provisions 

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

21 for relief based on an alleged violation of the 

22 provisions of this title may be initiated in a 

23 court of competent jurisdiction, pursuant to 

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

25 department or agency. With respect to such ac-
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•HR 3809 IH 

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

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

5 ‘‘REASONABLE FACTORS OTHER THAN AGE’’ IS

6 DEFENSE TO A DISPARATE IMPACT CLAIM, NOT

7 AN EXCEPTION TO ADA COVERAGE.—Section 

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

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

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

11 through the period and inserting ‘‘involved such 

12 action reasonably takes into account age as a 

13 factor necessary to the normal operation or the 

14 achievement of any statutory objective of such 

15 program or activity.’’. 

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

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

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

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

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

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

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

25 unlawful because of its disparate impact) prohibited under
29

•HR 3809 IH 

1 this section (including its implementing regulations), the 

2 aggrieved person may recover equitable and legal relief 

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

5 punitive damages are not available against a government, 

6 government agency, or political subdivision. 

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

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

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

13 costs.’’. 

14 SEC. 105. CONSTRUCTION. 

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

16 amendment made by this subtitle, shall be construed to 

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

18 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), 

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

20 12101 et seq.), or any other provision of law. 

21 (b) DEFENDANTS.—Nothing in this subtitle, includ22 ing any amendment made by this subtitle, shall be con23 strued to limit the scope of the class of persons who may 

24 be subjected to civil actions under the covered civil rights 

25 provisions. 
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1 SEC. 106. EFFECTIVE DATE. 

2 (a) IN GENERAL.—This subtitle, and the amend3 ments made by this subtitle, are retroactive to April 24, 

4 2001, and effective as of that date. 

5 (b) APPLICATION.—This subtitle, and the amend6 ments made by this subtitle, apply to all actions or pro7 ceedings pending on or after April 24, 2001, except as 

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

9 the disparate impact standard, as to which the effective 

10 date is the date of enactment of this Act. 

11 Subtitle B—Harassment 

12 SEC. 111. FINDINGS. 

13 Congress finds the following: 

14 (1) As the Supreme Court has held, covered en15 tities are liable for harassment on the basis of sex 

16 under their education programs and activities under 

17 title IX of the Education Amendments of 1972 (20 

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

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

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

21 available for harassment of student by a teacher 

22 coach); Davis v. Monroe County Board of Edu23 cation, 526 U.S. 629, 633 (1999) (authorizing dam24 ages action against school board for student-on-stu25 dent sexual harassment). 
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1 (2) Courts have confirmed that covered entities 

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

3 or national origin under title VI of the Civil Rights 

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

5 in this subtitle as ‘‘title VI’’), e.g., Bryant v. Inde6 pendent School District No. I–38, 334 F.3d 928 

7 (10th Cir. 2003) (liability for student-on-student ra8 cial harassment). Moreover, judicial interpretation of 

9 the similarly worded Age Discrimination Act of 1975 

10 (42 U.S.C. 6101 et seq.) and section 504 of the Re11 habilitation Act of 1973 (29 U.S.C. 794) has 

12 tracked that of title VI and title IX. 

13 (3) As these courts have properly recognized, 

14 harassment on a prohibited basis under a program 

15 or activity, whether perpetrated by employees or 

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

17 victim, or by others who conduct harassment under 

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

19 intentional discrimination that inflicts substantial 

20 harm on beneficiaries of the program or activity and 

21 violates the obligation of a covered entity to main22 tain a nondiscriminatory environment. 

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

24 that students subjected to sexual harassment may 

25 receive a damages remedy under title IX only when 
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•HR 3809 IH 

1 school officials have ‘‘actual notice’’ of the harass2 ment and are ‘‘deliberately indifferent’’ to it. Gebser 

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

4 274 (1998). See also Davis v. Monroe County Board 

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

6 (5) The standard delineated in Gebser and fol7 lowed in Davis has been applied by lower courts re8 garding the liability of covered entities for damages 

9 for harassment based on race, color, or national ori10 gin under title VI. E.g., Bryant v. Independent 

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

12 2003). Because of the similarities in the wording 

13 and interpretation of the underlying statutes, this 

14 standard may be applied to claims for damages 

15 brought under the Age Discrimination Act of 1975 

16 (42 U.S.C. 6101 et seq.) and section 504 of the Re17 habilitation Act of 1973 (29 U.S.C. 794) as well. 

18 (6) Although they do not affect the relevant 

19 standards for individuals to obtain injunctive and 

20 equitable relief for harassment on the basis of race, 

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

22 covered programs and activities, Gebser and its 

23 progeny severely limit the availability of remedies for 

24 such individuals by imposing new, more stringent 

25 standards for recovery of damages under title VI 
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•HR 3809 IH 

1 and title IX, and potentially under the Age Discrimi2 nation Act of 1975 and section 504 of the Rehabili3 tation Act of 1973. Yet in many cases, damages are 

4 the only remedy that would effectively rectify past 

5 harassment. 

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

7 these limitations on effective relief thwart Congress’s 

8 underlying purpose to protect students from harass9 ment. By making the ‘‘policy choice’’ to ‘‘rank[] pro10 tection of the school district’s purse above the pro11 tection of immature high school students’’, the 

12 Gebser case ‘‘is not faithful to the intent of the pol13 icymaking branch of our Government’’. Gebser, 524 

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

15 (8) The rulings in Gebser and its progeny cre16 ate an incentive for covered entities to insulate 

17 themselves from knowledge of harassment on the 

18 basis of race, color, sex, national origin, age, or dis19 ability rather than adopting and enforcing practices 

20 that will minimize the danger of such harassment. 

21 The rulings thus undermine the purpose of prohibi22 tions on discrimination in the civil rights laws: ‘‘to 

23 induce [covered programs or activities] to adopt and 

24 enforce practices that will minimize the danger that 

25 vulnerable students [or other beneficiaries] will be
34

•HR 3809 IH 

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

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

3 (9) The Gebser ruling contravened the interpre4 tations of title VI and title IX by the Department 

5 of Education, which interpretations recognized liabil6 ity for damages for harassment based on race, color, 

7 sex, or national origin based on agency principles. 

8 Sexual Harassment Guidance: Harassment of Stu9 dents by School Employees, Other Students, or 

10 Third Parties, 62 Fed. Reg. 12034 (March 13, 

11 1997); Racial Incidents and Harassment Against 

12 Students at Educational Institutions: Investigative 

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

14 (10) Legislative action is necessary and appro15 priate to reverse Gebser and its progeny and restore 

16 the availability of a full range of remedies for har17 assment based on race, color, sex, national origin, 

18 age, or disability. The Gebser majority itself invited 

19 Congress to ‘‘speak directly on the subject’’ of dam20 ages liability to provide additional guidance to the 

21 courts. 524 U.S. at 292. 

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

23 remedies for harassment will—

24 (A) ensure that students and other bene25 ficiaries of federally funded programs and ac-
35

•HR 3809 IH 

1 tivities have protection from harassment on the 

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

3 disability that is comparable in strength and ef4 fectiveness to that available to employees under 

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

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

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

8 seq.), and title I of the Americans with Disabil9 ities Act of 1990 (42 U.S.C. 12111 et seq.); 

10 (B) encourage covered entities to adopt 

11 and enforce meaningful policies and procedures 

12 to prevent and remedy harassment; 

13 (C) deter incidents of harassment; and 

14 (D) provide appropriate remedies for dis15 crimination. 

16 (12) Congress has the same affirmative powers 

17 to enact legislation restoring the availability of a full 

18 range of remedies for harassment as it did to enact 

19 the underlying statutory prohibitions on harassment, 

20 including powers under section 5 of the 14th amend21 ment and section 8 of article I of the Constitution. 

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

23 action under a provision added to a statute under 

24 this subtitle will be effectuated by a waiver of sov25 ereign immunity in the same manner as sovereign 
36

•HR 3809 IH 

1 immunity is waived under the remaining provisions 

2 of that statute. 

3 SEC. 112. RIGHT OF RECOVERY. 

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

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

6 is amended by adding at the end the following: 

7 ‘‘(c) CLAIMS BASED ON HARASSMENT.—

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

9 brought against a covered entity by (including on be10 half of) an aggrieved person who has been subjected 

11 to unlawful harassment under a program or activity, 

12 the aggrieved person may recover equitable and legal 

13 relief (including compensatory and punitive damages 

14 subject to the provisions of paragraph (2)), attor15 ney’s fees (including expert fees), and costs. 

16 ‘‘(2) AVAILABILITY OF DAMAGES.—

17 ‘‘(A) TANGIBLE ACTION BY AGENT OR EM18 PLOYEE.—If an agent or employee of a covered 

19 entity engages in unlawful harassment under a 

20 program or activity that results in a tangible 

21 action to the aggrieved person, damages shall 

22 be available against the covered entity. 

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

24 EMPLOYEE.—If an agent or employee of a cov25 ered entity engages in unlawful harassment 
37

•HR 3809 IH 

1 under a program or activity that results in no 

2 tangible action to the aggrieved person, no 

3 damages shall be available against the covered 

4 entity if it can demonstrate that—

5 ‘‘(i) it exercised reasonable care to 

6 prevent and correct promptly any harass7 ment based on race, color, or national ori8 gin; and 

9 ‘‘(ii) the aggrieved person unreason10 ably failed to take advantage of preventive 

11 or corrective opportunities offered by the 

12 covered entity that—

13 ‘‘(I) would likely have provided 

14 redress and avoided the harm de15 scribed by the aggrieved person; and 

16 ‘‘(II) would not have exposed the 

17 aggrieved person to undue risk, effort, 

18 or expense. 

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

20 person who is not an agent or employee of a 

21 covered entity subjects an aggrieved person to 

22 unlawful harassment under a program or activ23 ity, and the covered entity involved knew or 

24 should have known of the harassment, no dam25 ages shall be available against the covered enti-
38

•HR 3809 IH 

1 ty if it can demonstrate that it exercised rea2 sonable care to prevent and correct promptly 

3 any harassment based on race, color, or na4 tional origin. 

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

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

7 covered entity has exercised reasonable care to 

8 prevent and correct promptly any harassment 

9 based on race, color, or national origin includes 

10 a demonstration by the covered entity that it 

11 has—

12 ‘‘(i) established, adequately publicized, 

13 and enforced an effective, comprehensive, 

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

16 redress and avoid harm without exposing 

17 the person subjected to the harassment to 

18 undue risk, effort, or expense; 

19 ‘‘(ii) undertaken prompt, thorough, 

20 and impartial investigations pursuant to 

21 its complaint procedure; and 

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

24 harassment that has occurred, correct its
39

•HR 3809 IH 

1 effects on the aggrieved person and ensure 

2 that the harassment does not recur. 

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

5 against a government, government agency, or 

6 political subdivision. 

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

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

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

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

14 individual’s status caused by an agent or 

15 employee of a covered entity with regard to 

16 the individual’s participation in, access to, 

17 or enjoyment of, the benefits of a program 

18 or activity; or 

19 ‘‘(ii) an explicit or implicit condition 

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

23 program or activity based on the individ24 ual’s submission to the harassment. 
40

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

2 ‘unlawful harassment’ means harassment that 

3 is unlawful under this title.’’. 

4 (b) EDUCATION AMENDMENTS OF 1972.—Section 

5 902A of the Civil Rights Act of 1964, as added by section 

6 104, is amended by adding at the end the following: 

7 ‘‘(c) CLAIMS BASED ON HARASSMENT.—

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

9 brought against a covered entity by (including on be10 half of) aggrieved person who has been subjected to 

11 unlawful harassment under a program or activity, 

12 the aggrieved person may recover equitable and legal 

13 relief (including compensatory and punitive damages 

14 subject to the provisions of paragraph (2)), attor15 ney’s fees (including expert fees), and costs. 

16 ‘‘(2) AVAILABILITY OF DAMAGES.—

17 ‘‘(A) TANGIBLE ACTION BY AGENT OR EM18 PLOYEE.—If an agent or employee of a covered 

19 entity engages in unlawful harassment under a 

20 program or activity that results in a tangible 

21 action to the aggrieved person, damages shall 

22 be available against the covered entity. 

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

24 EMPLOYEE.—If an agent or employee of a cov25 ered entity engages in unlawful harassment 
41

•HR 3809 IH 

1 under a program or activity that results in no 

2 tangible action to the aggrieved person, no 

3 damages shall be available against the covered 

4 entity if it can demonstrate that—

5 ‘‘(i) it exercised reasonable care to 

6 prevent and correct promptly any harass7 ment based on sex; and 

8 ‘‘(ii) the aggrieved person unreason9 ably failed to take advantage of preventive 

10 or corrective opportunities offered by the 

11 covered entity that—

12 ‘‘(I) would likely have provided 

13 redress and avoided the harm de14 scribed by the aggrieved person; and 

15 ‘‘(II) would not have exposed the 

16 aggrieved person to undue risk, effort, 

17 or expense. 

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

19 person who is not an agent or employee of a 

20 covered entity subjects an aggrieved person to 

21 unlawful harassment under a program or activ22 ity, and the covered entity knew or should have 

23 known of the harassment, no damages shall be 

24 available against the covered entity if it can 

25 demonstrate that it exercised reasonable care to 
42

•HR 3809 IH 

1 prevent and correct promptly any harassment 

2 based on sex. 

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

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

5 covered entity has exercised reasonable care to 

6 prevent and correct promptly any harassment 

7 based on sex includes a demonstration by the 

8 covered entity that it has—

9 ‘‘(i) established, adequately publicized, 

10 and enforced an effective, comprehensive, 

11 harassment prevention policy and com12 plaint procedure that is likely to provide 

13 redress and avoid harm without exposing 

14 the person subjected to the harassment to 

15 undue risk, effort, or expense; 

16 ‘‘(ii) undertaken prompt, thorough, 

17 and impartial investigations pursuant to 

18 its complaint procedure; and 

19 ‘‘(iii) taken immediate and appro20 priate corrective action designed to stop 

21 harassment that has occurred, correct its 

22 effects on the aggrieved person, and ensure 

23 that the harassment does not recur. 

24 ‘‘(E) PUNITIVE DAMAGES.—Punitive dam25 ages shall not be available under this subsection 
43

•HR 3809 IH 

1 against a government, government agency, or 

2 political subdivision. 

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

4 ‘‘(A) DEMONSTRATES.—The term ‘dem5 onstrates’ means meets the burdens of produc6 tion and persuasion. 

7 ‘‘(B) TANGIBLE ACTION.—The term ‘tan8 gible action’ means—

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

10 individual’s status caused by an agent or 

11 employee of a covered entity with regard to 

12 the individual’s participation in, access to, 

13 or enjoyment of, the benefits of a program 

14 or activity; or 

15 ‘‘(ii) an explicit or implicit condition 

16 by an agent or employee of a covered enti17 ty on an individual’s participation in, ac18 cess to, or enjoyment of, the benefits of a 

19 program or activity based on the individ20 ual’s submission to the harassment. 

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

22 ‘unlawful harassment’ means harassment that 

23 is unlawful under this title.’’. 

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

25 305(g) of the Age Discrimination Act of 1975, as added
44

•HR 3809 IH 

1 by section 104, is amended by adding at the end the fol2 lowing: 

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

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

5 been subjected to unlawful harassment under a program 

6 or activity, the aggrieved person may recover equitable and 

7 legal relief (including compensatory and punitive damages 

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

9 fees (including expert fees), and costs. 

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

11 engages in unlawful harassment under a program or activ12 ity that results in a tangible action to the aggrieved per13 son, damages shall be available against the covered entity. 

14 ‘‘(ii) If an agent or employee of a covered entity en15 gages in unlawful harassment under a program or activity 

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

17 no damages shall be available against the covered entity 

18 if it can demonstrate that—

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

20 correct promptly any harassment based on age; and 

21 ‘‘(II) the aggrieved person unreasonably failed 

22 to take advantage of preventive or corrective oppor23 tunities offered by the covered entity that—
45

•HR 3809 IH 

1 ‘‘(aa) would likely have provided redress 

2 and avoided the harm described by the ag3 grieved person; and 

4 ‘‘(bb) would not have exposed the ag5 grieved person to undue risk, effort, or expense. 

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

7 of a covered entity subjects an aggrieved person to unlaw8 ful harassment under a program or activity, and the cov9 ered entity knew or should have known of the harassment, 

10 no damages shall be available against the covered entity 

11 if it can demonstrate that it exercised reasonable care to 

12 prevent and correct promptly any harassment based on 

13 age. 

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

15 that the covered entity has exercised reasonable care to 

16 prevent and correct promptly any harassment based on 

17 age includes a demonstration by the covered entity that 

18 it has—

19 ‘‘(I) established, adequately publicized, and en20 forced an effective, comprehensive, harassment pre21 vention policy and complaint procedure that is likely 

22 to provide redress and avoid harm without exposing 

23 the person subjected to the harassment to undue 

24 risk, effort, or expense; 
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•HR 3809 IH 

1 ‘‘(II) undertaken prompt, thorough, and impar2 tial investigations pursuant to its complaint proce3 dure; and 

4 ‘‘(III) taken immediate and appropriate correc5 tive action designed to stop harassment that has oc6 curred, correct its effects on the aggrieved person, 

7 and ensure that the harassment does not recur. 

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

9 this paragraph against a government, government agency, 

10 or political subdivision. 

11 ‘‘(C) As used in this paragraph: 

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

13 burdens of production and persuasion. 

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

15 ‘‘(I) a significant adverse change in an in16 dividual’s status caused by an agent or em17 ployee of a covered entity with regard to the in18 dividual’s participation in, access to, or enjoy19 ment of, the benefits of a program or activity; 

20 or 

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

22 agent or employee of a covered entity on an in23 dividual’s participation in, access to, or enjoy24 ment of, the benefits of a program or activity 
47

•HR 3809 IH 

1 based on the individual’s submission to the har2 assment. 

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

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

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

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

7 is amended by adding at the end the following: 

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

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

10 been subjected to unlawful harassment under a program 

11 or activity, the aggrieved person may recover equitable and 

12 legal relief (including compensatory and punitive damages 

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

14 fees (including expert fees), and costs. 

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

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

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

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

22 no damages shall be available against the covered entity 

23 if it can demonstrate that—
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1 ‘‘(I) it exercised reasonable care to prevent and 

2 correct promptly any harassment based on disability; 

3 and 

4 ‘‘(II) the aggrieved person unreasonably failed 

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

7 ‘‘(aa) would likely have provided redress 

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

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

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

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

16 no damages shall be available against the covered entity 

17 if it can demonstrate that it exercised reasonable care to 

18 prevent and correct promptly any harassment based on 

19 disability. 

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

21 that the covered entity has exercised reasonable care to 

22 prevent and correct promptly any harassment based on 

23 disability includes a demonstration by the covered entity 

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

4 to provide redress and avoid harm without exposing 

5 the person subjected to the harassment to undue 

6 risk, effort, or expense; 

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

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

13 and ensure that the harassment does not recur. 

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

15 this paragraph against a government, government agency, 

16 or political subdivision. 

17 ‘‘(C) As used in this paragraph: 

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

19 burdens of production and persuasion. 

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

21 ‘‘(I) a significant adverse change in an in22 dividual’s status caused by an agent or em23 ployee of a covered entity with regard to the in24 dividual’s participation in, access to, or enjoy-
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•HR 3809 IH 

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

2 or 

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

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

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

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

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

11 SEC. 113. CONSTRUCTION. 

12 Nothing in this subtitle, including any amendment 

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

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

16 SEC. 114. EFFECTIVE DATE. 

17 (a) IN GENERAL.—This subtitle, and the amend18 ments made by this subtitle, are retroactive to June 22, 

19 1998, and effective as of that date. 

20 (b) APPLICATION.—This subtitle, and the amend21 ments made by this subtitle, apply to all actions or pro22 ceedings pending on or after June 22, 1998, except as to 

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

24 is the date of enactment of this Act. 
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1 TITLE II—UNIFORMED SERVICES 

2 EMPLOYMENT AND REEM3 PLOYMENT RIGHTS ACT OF 

4 1994 AMENDMENT

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

7 ACT OF 1994. 

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

10 (1) The Federal Government has an important 

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

13 grants Congress the power to raise and support an 

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

16 the Armed Forces, including those employed in State 

17 programs and activities, be able to serve without 

18 jeopardizing their civilian employment opportunities. 

19 (2) The Uniformed Services Employment and 

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

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

24 uniformed services (as that term is defined in sec25 tion 4303(16) of title 38, United States Code) and 
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•HR 3809 IH 

1 to prevent discrimination against any person who is 

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

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

6 private individuals to enforce its provisions in court. 

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

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

9 congressional legislation enacted pursuant to the 

10 commerce clause of article I, section 8, of the Con11 stitution cannot abrogate the immunity of States 

12 under the 11th amendment to the Constitution. 

13 Some courts have interpreted Seminole Tribe of 

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

15 persons affected by a State violation of USERRA. 

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

17 (1999), the Supreme Court held that this immunity 

18 also prohibits the Federal Government from sub19 jecting ‘‘non-consenting states to private suits for 

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

21 USERRA specifically provides that a person may 

22 commence an action for relief against a State for its 

23 violation of that Act, persons harmed by State viola24 tions of that Act lack important remedies to vindi25 cate the rights and benefits that are available to all 
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•HR 3809 IH 

1 other persons covered by that Act. Unless a State 

2 chooses to waive sovereign immunity, or the Attor3 ney General brings an action on their behalf, per4 sons affected by State violations of USERRA may 

5 have no adequate Federal remedy for such viola6 tions. 

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

8 by persons affected by State violations of USERRA 

9 would leave vindication of their rights and benefits 

10 under that Act solely to Federal agencies, which may 

11 fail to take necessary and appropriate action because 

12 of administrative overburden or other reasons. Ac13 tion by Congress to specify such a private right of 

14 action ensures that persons affected by State viola15 tions of USERRA have a remedy if they are denied 

16 their rights and benefits under that Act. 

17 (b) CLARIFICATION OF RIGHT OF ACTION UNDER

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

19 is amended—

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

21 and inserting the following new paragraph (2): 

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

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

24 district court of the United States or State court of com25 petent jurisdiction.’’;
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•HR 3809 IH 

1 (2) by redesignating subsection (j) as sub2 section (k); and 

3 (3) by inserting after subsection (i) the fol4 lowing new subsection (j): 

5 ‘‘(j)(1)(A) A State’s receipt or use of Federal finan6 cial assistance for any program or activity of a State shall 

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

8 amendment to the Constitution or otherwise, to a suit 

9 brought by an employee of that program or activity under 

10 this chapter for the rights or benefits authorized the em11 ployee by this chapter. 

12 ‘‘(B) In this paragraph, the term ‘program or activ13 ity’ has the meaning given the term in section 309 of the 

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

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

16 capacity of the official by any person covered by paragraph 

17 (1) who seeks injunctive relief against a State (as an em18 ployer) under subsection (e). In such a suit the court may 

19 award to the prevailing party those costs authorized by 

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

21 TITLE III—AIR CARRIER ACCESS 

22 ACT OF 1986 AMENDMENT 

23 SEC. 301. FINDINGS. 

24 Congress finds the following: 
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1 (1) In Love v. Delta Air Lines, 310 F. 3d 1347 

2 (11th Cir. 2002), the United States Court of Ap3 peals for the Eleventh Circuit held that when Con4 gress passed the Air Carrier Access Act of 1986, 

5 adding a provision now codified at section 41705 of 

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

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

8 a private right of action with which individuals with 

9 disabilities could sue air carriers in Federal court for 

10 discrimination on the basis of disability. The court 

11 recognized that other courts of appeals have held 

12 that the ACAA created a private right of action. 

13 Nevertheless, the court, relying on the Supreme 

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

15 275 (2001), concluded that the ACAA did not create 

16 a private right of action. 

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

18 leaves enforcement of the ACAA solely in the hands 

19 of the Department of Transportation, which is over20 burdened and lacks the resources to investigate, 

21 prosecute violators for, and remediate all of the vio22 lations of the rights of travelers who are individuals 

23 with disabilities. Nor can the Department of Trans24 portation bring an action that will redress the injury 

25 of an individual resulting from such a violation. The 
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•HR 3809 IH 

1 Department of Transportation can take action that 

2 fines an air carrier or requires the air carrier to 

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

4 not authorized to issue orders that redress the inju5 ries sustained by individual air passengers. Action 

6 by Congress is necessary to ensure that individuals 

7 with disabilities will have adequate remedies avail8 able when air carriers violate the ACAA (including 

9 its regulations), and only courts may provide this re10 dress to individuals. 

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

12 discriminates against an individual with a disability, 

13 frequently the only way to compensate that indi14 vidual for the harm the individual has suffered is 

15 through an award of money damages. For example, 

16 violations of the ACAA may result in travelers who 

17 are individuals with disabilities missing flights for 

18 business appointments or important personal events, 

19 or in such travelers suffering humiliating treatment 

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

21 remedied solely through injunctive relief. 

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

23 does not contain a fee-shifting provision under which 

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

25 Action by Congress is necessary to correct this 
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1 anomaly. The availability of attorney’s fees is essen2 tial to ensuring that persons who have been ag3 grieved by violations of the ACAA can enforce their 

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

5 the ACAA will permit individuals to serve as private 

6 attorneys general, a necessary role on which enforce7 ment of civil rights statutes depends. 

8 SEC. 302. CIVIL ACTION. 

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

10 amended by adding at the end the following: 

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

12 air carrier’s violation of subsection (a) (including any reg13 ulation implementing such subsection) may bring a civil 

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

15 district in which the aggrieved person resides, in the dis16 trict containing the air carrier’s principal place of busi17 ness, or in the district in which the violation took place. 

18 Any such action must be commenced within 2 years after 

19 the date of the violation. 

20 ‘‘(2) In any civil action brought by an aggrieved per21 son pursuant to paragraph (1), the plaintiff may obtain 

22 both equitable and legal relief, including compensatory 

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

24 addition to such relief awarded to a prevailing plaintiff, 
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1 award reasonable attorney’s fees, reasonable expert fees, 

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

3 TITLE IV—AGE DISCRIMINATION 

4 IN EMPLOYMENT ACT AMEND5 MENTS 

6 SEC. 401. SHORT TITLE. 

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

8 Restoration Act of 2004’’. 

9 SEC. 402. FINDINGS. 

10 Congress finds the following: 

11 (1) Since 1974, the Age Discrimination in Em12 ployment Act of 1967 (29 U.S.C. 621 et seq.) (re13 ferred to in this section as the ‘‘ADEA’’) has prohib14 ited States from discriminating in employment on 

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

16 226 (1983), the Supreme Court upheld Congress’ 

17 constitutional authority to prohibit States from dis18 criminating in employment on the basis of age. The 

19 prohibitions of the ADEA remain in effect and con20 tinue to apply to the States, as the prohibitions have 

21 for more than 25 years. 

22 (2) Age discrimination in employment remains 

23 a serious problem both nationally and among State 

24 agencies, and has invidious effects on its victims, the
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1 labor force, and the economy as a whole. For exam2 ple, age discrimination in employment—

3 (A) increases the risk of unemployment 

4 among older workers, who will as a result be 

5 more likely to be dependent on government re6 sources; 

7 (B) prevents the best use of available labor 

8 resources; 

9 (C) adversely effects the morale and pro10 ductivity of older workers; and 

11 (D) perpetuates unwarranted stereotypes 

12 about the abilities of older workers. 

13 (3) Private civil suits by the victims of employ14 ment discrimination have been a crucial tool for en15 forcement of the ADEA since the enactment of that 

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

17 62 (2000), however, the Supreme Court held that 

18 Congress had not abrogated State sovereign immu19 nity to suits by individuals under the ADEA. The 

20 Federal Government has an important interest in 

21 ensuring that Federal financial assistance is not 

22 used to subsidize or facilitate violations of the 

23 ADEA. Private civil suits are a critical tool for ad24 vancing that interest. 
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1 (4) As a result of the Kimel decision, although 

2 age-based discrimination by State employers remains 

3 unlawful, the victims of such discrimination lack im4 portant remedies for vindication of their rights that 

5 are available to all other employees covered under 

6 that Act, including employees in the private sector, 

7 local government, and the Federal Government. Un8 less a State chooses to waive sovereign immunity, or 

9 the Equal Employment Opportunity Commission 

10 brings an action on their behalf, State employees 

11 victimized by violations of the ADEA have no ade12 quate Federal remedy for violations of that Act. In 

13 the absence of the deterrent effect that such rem14 edies provide, there is a greater likelihood that enti15 ties carrying out programs and activities receiving 

16 Federal financial assistance will use that assistance 

17 to violate that Act, or that the assistance will other18 wise subsidize or facilitate violations of that Act. 

19 (5) Federal law has long treated nondiscrimina20 tion obligations as a core component of programs or 

21 activities that, in whole or part, receive Federal fi22 nancial assistance. That assistance should not be 

23 used, directly or indirectly, to subsidize invidious dis24 crimination. Assuring nondiscrimination in employ-
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1 ment is a crucial aspect of assuring nondiscrimina2 tion in those programs and activities. 

3 (6) Discrimination on the basis of age in pro4 grams or activities receiving Federal financial assist5 ance is, in contexts other than employment, forbid6 den by the Age Discrimination Act of 1975 (42 

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

8 was not necessary for the Age Discrimination Act of 

9 1975 to apply to employment discrimination because 

10 the ADEA already forbade discrimination in employ11 ment by, and authorized suits against, State agen12 cies and other entities that receive Federal financial 

13 assistance. In section 1003 of the Rehabilitation Act 

14 Amendments of 1986 (42 U.S.C. 2000d–7), Con15 gress required all State entities subject to the Age 

16 Discrimination Act of 1975 to waive any immunity 

17 from suit for discrimination claims arising under the 

18 Age Discrimination Act of 1975. The earlier limita19 tion in the Age Discrimination Act of 1975, origi20 nally intended only to avoid duplicative coverage and 

21 remedies, has in the wake of the Kimel decision be22 come a serious loophole leaving millions of State em23 ployees without an important Federal remedy for 

24 age discrimination, resulting in the use of Federal fi-
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1 nancial assistance to subsidize or facilitate violations 

2 of the ADEA. 

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

4 authority to condition receipt of Federal financial 

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

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

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

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

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

13 Savings Bank v. Florida Prepaid Postsecondary 

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

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

16 compliance with, and to provide effective remedies 

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

20 assistance does not subsidize or facilitate violations 

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

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

24 assistance in any program or activity of a State will 

25 constitute a limited waiver of sovereign immunity 
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1 under section 7(g) of the ADEA (as added by sec2 tion 404). The waiver will not eliminate a State’s 

3 immunity with respect to programs or activities that 

4 do not receive or use Federal financial assistance. 

5 The State will waive sovereign immunity only with 

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

8 use that assistance. With regard to those programs 

9 and activities that are covered by the waiver, the 

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

12 under the ADEA. 

13 (9) The Supreme Court has repeatedly held 

14 that State sovereign immunity does not bar suits for 

15 prospective injunctive relief brought against State 

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

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

18 will confirm that that Act authorizes such suits. The 

19 injunctive relief available in such suits will continue 

20 to be no broader than the injunctive relief that was 

21 available under that Act before the Kimel decision, 

22 and that is available to all other employees under 

23 that Act. 

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

25 424, 431 (1971), the Supreme Court recognized that
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1 title VII of the Civil Rights Act of 1964 (42 U.S.C. 

2 2000e et seq.) ‘‘proscribes not only overt discrimina3 tion [in employment] but also [employment] prac4 tices that are fair in form, but discriminatory in op5 eration. . . .’’ In doing so, the Court relied on sec6 tion 703(a)(2) of title VII of the Civil Rights Act 

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

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

9 except that the latter substitutes the word age for 

10 the grounds of prohibited discrimination specified by 

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

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

13 has confirmed that this and other related statutory 

14 language, identical to both title VII of the Civil 

15 Rights Act of 1964 and the ADEA, supports appli16 cation of the disparate impact doctrine. Connecticut 

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

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

19 (11) Other indicia of Congress’s intent to per20 mit the disparate impact method of proving viola21 tions of the ADEA are legion, and include numerous 

22 other textual parallels between the ADEA and title 

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

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

25 434 U.S. 575, 584 (1978) (the ADEA’s substantive 
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1 prohibitions ‘‘were derived in haec verba from Title 

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

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

4 ‘the elimination of discrimination in the work5 place,’ ’’. McKennon v. Nashville Banner Pub. Co., 

6 513 U.S. 352, 358 (1995) (quoting Oscar Mayer & 

7 Co. v. Evans, 441 U.S. 750, 756 (1979)). Inter8 preting title VII of the Civil Rights Act of 1964 in 

9 a consistent manner is particularly appropriate when 

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

11 Northcross v. Board of Educ. of Memphis City 

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

13 (12) The ADEA’s legislative history confirms 

14 Congress’s intent to redress all ‘‘arbitrary’’ age dis15 crimination in the workplace, including arbitrary 

16 facially neutral policies and practices falling more 

17 harshly on older workers. Such policies continue to 

18 be based on the kind of ‘‘subconscious stereotypes 

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

20 through disparate treatment analysis,’’ and thus, re21 quire application of the disparate impact theory of 

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

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

24 noted, these prejudices are ‘‘the essence of age dis-
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1 crimination.’’. Hazen Paper Co. v. Biggins, 507 U.S. 

2 604, 610, n.15 (1993). 

3 (13) In 1991, Congress reaffirmed that title 

4 VII of the Civil Rights Act of 1964 permits victims 

5 of employment bias to state a cause of action for 

6 disparate impact discrimination when it added a pro7 vision to title VII of the Civil Rights Act of 1964 to 

8 clarify the burden of proof in disparate impact cases 

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

10 U.S.C. 2000e–2(k)). 

11 (14) Subsequently, several lower courts and 

12 Federal Courts of Appeal have mistakenly relied on 

13 language in the Supreme Court’s opinion in Hazen 

14 Paper Co. v. Biggins, 507 U.S. 604 (1993), to sug15 gest that the disparate impact method of proof does 

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

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

18 1999); EEOC v. Francis W. Parker School, 41 F.3d 

19 1073, 1076–77 (7th Cir. 1994); Ellis v. United Air20 lines, Inc., 73 F.3d 999, 1006–07 (10th Cir. 1996); 

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

22 732 (3d Cir. 1995); Lyon v. Ohio Educ. Ass’n and 

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

24 1995). Congress did not intend the ADEA to be in25 terpreted to provide older workers less protections 
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1 against discrimination than those protected under 

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

3 it is necessary to clarify the burden of proof in a dis4 parate impact case under the ADEA, and thereby 

5 reaffirm that victims of age discrimination in em6 ployment discrimination may state a cause of action 

7 based on the disparate impact method of proving 

8 discrimination in appropriate circumstances. 

9 SEC. 403. PURPOSES. 

10 The purposes of this title are—

11 (1) to provide to State employees in programs 

12 or activities that receive or use Federal financial as13 sistance the same rights and remedies for practices 

14 violating the Age Discrimination in Employment Act 

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

16 other employees under that Act, and that were avail17 able to State employees prior to the Supreme 

18 Court’s decision in Kimel v. Florida Board of Re19 gents, 528 U.S. 62 (2000); 

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

21 financial assistance for a program or activity con22 stitutes a State waiver of sovereign immunity from 

23 suits by employees within that program or activity 

24 for violations of the Age Discrimination in Employ25 ment Act of 1967; 
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1 (3) to affirm that suits for injunctive relief are 

2 available against State officials in their official ca3 pacities for violations of the Age Discrimination in 

4 Employment Act of 1967; and 

5 (4) to reaffirm the applicability of the disparate 

6 impact standard of proof to claims under the Age 

7 Discrimination in Employment Act of 1967. 

8 SEC. 404. REMEDIES FOR STATE EMPLOYEES. 

9 Section 7 of the Age Discrimination in Employment 

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

11 the end the following: 

12 ‘‘(g)(1)(A) A State’s receipt or use of Federal finan13 cial assistance for any program or activity of a State shall 

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

15 amendment to the Constitution or otherwise, to a suit 

16 brought by an employee of that program or activity under 

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

18 under this Act. 

19 ‘‘(B) In this paragraph, the term ‘program or activ20 ity’ has the meaning given the term in section 309 of the 

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

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

23 capacity of the official by any employee who has complied 

24 with the procedures of subsections (d) and (e), for injunc25 tive relief that is authorized under this Act. In such a suit
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1 the court may award to the prevailing party those costs 

2 authorized by section 722 of the Revised Statutes (42 

3 U.S.C. 1988).’’. 

4 SEC. 405. DISPARATE IMPACT CLAIMS. 

5 Section 4 of the Age Discrimination in Employment 

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

7 the end the following: 

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

9 established under this title only if—

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

11 employer, employment agency, or labor organization 

12 has a policy or practice that causes a disparate im13 pact on the basis of age and the employer, employ14 ment agency, or labor organization fails to dem15 onstrate that the challenged policy or practice is 

16 based on reasonable factors that are job-related and 

17 consistent with business necessity other than age; or 

18 ‘‘(B) the aggrieved party demonstrates (con19 sistent with the demonstration standard under title 

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

21 2000e et seq.) with respect to an ‘alternative em22 ployment practice’) that a less discriminatory alter23 native policy or practice exists, and the employer, 

24 employment agency, or labor organization refuses to 

25 adopt such alternative policy or practice. 
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1 ‘‘(2)(A) With respect to demonstrating that a par2 ticular policy or practice causes a disparate impact as de3 scribed in paragraph (1)(A), the aggrieved party shall 

4 demonstrate that each particular challenged policy or 

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

7 of an employer, employment agency, or labor organiza8 tion’s decisionmaking process are not capable of separa9 tion for analysis, the decisionmaking process may be ana10 lyzed as one policy or practice. 

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

12 organization demonstrates that a specific policy or prac13 tice does not cause the disparate impact, the employer, 

14 employment agency, or labor organization shall not be re15 quired to demonstrate that such policy or practice is nec16 essary to the operation of its business. 

17 ‘‘(3) A demonstration that a policy or practice is nec18 essary to the operation of the employer, employment agen19 cy, or labor organization’s business may not be used as 

20 a defense against a claim of intentional discrimination 

21 under this title. 

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

23 means meets the burdens of production and persuasion.’’. 
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1 SEC. 406. EFFECTIVE DATE. 

2 (a) WAIVER OF SOVEREIGN IMMUNITY.—With re3 spect to a particular program or activity, section 7(g)(1) 

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

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

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

7 a State first receives or uses Federal financial assistance 

8 for that program or activity. 

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

10 the Age Discrimination in Employment Act of 1967 (29 

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

12 the date of enactment of this title. 

13 TITLE V—CIVIL RIGHTS 

14 REMEDIES AND RELIEF 

15 Subtitle A—Prevailing Party 

16 SEC. 501. SHORT TITLE. 

17 This subtitle may be cited as the ‘‘Settlement En18 couragement and Fairness Act’’. 

19 SEC. 502. DEFINITION OF PREVAILING PARTY. 

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

21 States Code, is amended by adding at the end the fol22 lowing: 

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

24 ‘‘(a) In determining the meaning of any Act of Con25 gress, or of any ruling, regulation, or interpretation of the 

26 various administrative bureaus and agencies of the United 
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1 States, or of any judicial or administrative rule, which pro2 vides for the recovery of attorney’s fees, the term ‘pre3 vailing party’ shall include, in addition to a party who sub4 stantially prevails through a judicial or administrative 

5 judgment or order, or an enforceable written agreement, 

6 a party whose pursuit of a nonfrivolous claim or defense 

7 was a catalyst for a voluntary or unilateral change in posi8 tion by the opposing party that provides any significant 

9 part of the relief sought. 

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

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

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

13 criteria to qualify for the recovery of attorney’s fees, sub14 section (a) shall not affect the requirement that such de15 fendant satisfy such criteria. 

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

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

18 certain criteria, unrelated to whether or not such party 

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

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

21 party satisfy such criteria.’’. 

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

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

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

25 item:

‘‘9. Definition of ‘prevailing party’.’’.
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1 (c) APPLICATION.—Section 9 of title 1, United States 

2 Code, as added by this Act, shall apply to any case pend3 ing or filed on or after the date of enactment of this sub4 title. 

5 Subtitle B—Arbitration 

6 SEC. 511. SHORT TITLE. 

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

8 Civil Rights Protections Act of 2004’’. 

9 SEC. 512. AMENDMENT TO FEDERAL ARBITRATION ACT. 

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

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

12 ‘‘commerce’’. 

13 SEC. 513. UNENFORCEABILITY OF ARBITRATION CLAUSES 

14 IN EMPLOYMENT CONTRACTS. 

15 (a) PROTECTION OF EMPLOYEE RIGHTS.—Notwith16 standing any other provision of law, any clause of any 

17 agreement between an employer and an employee that re18 quires arbitration of a dispute arising under the Constitu19 tion or laws of the United States shall not be enforceable. 

20 (b) EXCEPTIONS.—

21 (1) WAIVER OR CONSENT AFTER DISPUTE

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

23 to any dispute if, after such dispute arises, the par24 ties involved knowingly and voluntarily consent to 

25 submit such dispute to arbitration.
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1 (2) COLLECTIVE BARGAINING AGREEMENTS.—

2 Subsection (a) shall not preclude an employee or 

3 union from enforcing any of the rights or terms of 

4 a valid collective bargaining agreement. 

5 SEC. 514. APPLICATION OF AMENDMENTS. 

6 This subtitle and the amendment made by section 

7 512 shall apply with respect to all employment contracts 

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

9 subtitle. 

10 Subtitle C—Expert Witness Fees 

11 SEC. 521. PURPOSE. 

12 The purpose of this subtitle is to allow recovery of 

13 expert fees by prevailing parties under civil rights fee14 shifting statutes. 

15 SEC. 522. FINDINGS. 

16 Congress finds the following: 

17 (1) This subtitle is made necessary by the deci18 sion of the Supreme Court in West Virginia Univer19 sity Hospitals Inc. v. Casey, 499 U.S. 83 (1991). In 

20 Casey, the Court, per Justice Scalia, ruled that ex21 pert fees were not recoverable under section 722 of 

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

23 by the Civil Rights Attorneys’ Fees Awards Act of 

24 1976 (Public Law 94–559; 90 Stat. 2641), because 

25 the Civil Rights Attorneys’ Fees Awards Act of 1976 
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1 expressly authorized an award of an ‘‘attorney’s fee’’ 

2 to a prevailing party but said nothing expressly 

3 about expert fees. 

4 (2) This subtitle is especially necessary both be5 cause of the important roles played by experts in 

6 civil rights litigation and because expert fees often 

7 represent a major cost of the litigation. In fact, in 

8 Casey itself, as pointed out by Justice Stevens in 

9 dissent, the district court had found that the expert 

10 witnesses were ‘‘essential’’ and ‘‘necessary’’ to the 

11 successful prosecution of the plaintiffs case, and the 

12 expert fees were not paltry but amounted to 

13 $104,133. Justice Stevens also pointed out that the 

14 majority opinion requiring the plaintiff to ‘‘assume 

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

16 with the congressional purpose of making the pre17 vailing party whole.’’. Casey (499 U.S. at 111). 

18 (3) Much of the rationale for denying expert 

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

20 provisions of law such as section 722 of the Revised 

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

22 expressly include expert fees, was based on the fact 

23 that many fee-shifting statutes enacted by Congress 

24 ‘‘explicitly shift expert witness fees as well as attor25 ney’s fees.’’. Casey (499 U.S. at 88). In fact, Justice 
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1 Scalia pointed out that in 1976—the same year that 

2 Congress amended section 722 of the Revised Stat3 utes (42 U.S.C. 1988) by providing for the shifting 

4 of attorney’s fees—Congress expressly authorized 

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

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

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

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

9 Recovery Act of 1976 (Public Law 94–580; 90 Stat. 

10 2795), and the Natural Gas Pipeline Safety Act 

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

12 2073). Casey (499 U.S. at 88). Congress had done 

13 the same in other years on dozens of occasions. 

14 Casey (499 U.S. at 88–90 & n. 4). 

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

16 decided Casey, Congress responded quickly but only 

17 through the Civil Rights Act of 1991 (Public Law 

18 102–166; 105 Stat. 1071) by amending title VII of 

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

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

21 U.S.C. 1988) with express authorizations of the re22 covery of expert fees in successful employment dis23 crimination litigation. It is long past time to correct, 

24 in Federal civil rights litigation, Casey’s denial of ex25 pert fees. 
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1 SEC. 523. EFFECTIVE PROVISIONS. 

2 (a) SECTION 722 OF THE REVISED STATUTES.—Sec3 tion 722 of the Revised Statutes (42 U.S.C. 1988) is 

4 amended—

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

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

7 (2) by striking subsection (c). 

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

9 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

10 216(b)) is amended by inserting ‘‘(including expert fees)’’ 

11 after ‘‘attorney’s fee’’. 

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

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

14 amended by inserting ‘‘(including expert fees)’’ after ‘‘at15 torney’s fee’’. 

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

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

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

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

20 (2) in section 813(c)(2), by inserting ‘‘(includ21 ing expert fees)’’ after ‘‘attorney’s fee’’; and 

22 (3) in section 814(d)(2), by inserting ‘‘(includ23 ing expert fees)’’ after ‘‘attorney’s fee’’. 

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

25 with Disabilities Education Act (20 U.S.C. 1415(i)(3)(B)) 
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1 is amended by inserting ‘‘(including expert fees)’’ after 

2 ‘‘attorney’s fees’’. 

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

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

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

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

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

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

11 (h) EQUAL CREDIT OPPORTUNITY ACT.—Section 

12 706(d) of the Equal Credit Opportunity Act (15 U.S.C. 

13 1691e(d)) is amended by inserting ‘‘(including expert 

14 fees)’’ after ‘‘attorney’s fee’’. 

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

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

17 (1) in section 616(a)(3), by inserting ‘‘(includ18 ing expert fees)’’ after ‘‘attorney’s fees’’; and 

19 (2) in section 617(a)(2), by inserting ‘‘(includ20 ing expert fees)’’ after ‘‘attorney’s fees’’. 

21 (j) FREEDOM OF INFORMATION ACT.—Section 

22 552(a)(4)(E) of title 5, United States Code, is amended 

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

24 fees’’.
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1 (k) PRIVACY ACT.—Section 552a(g) of title 5, United 

2 States Code, is amended—

3 (1) in paragraph (2)(B), by inserting ‘‘(includ4 ing expert fees)’’ after ‘‘attorney fees’’; 

5 (2) in paragraph (3)(B), by inserting ‘‘(includ6 ing expert fees)’’ after ‘‘attorney fees’’; and 

7 (3) in paragraph (4)(B), by inserting ‘‘(includ8 ing expert fees)’’ after ‘‘attorney fees’’. 

9 (l) TRUTH IN LENDING ACT.—Section 130(a)(3) of 

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

11 amended by inserting ‘‘(including expert fees)’’ after ‘‘at12 torney’s fee’’. 

13 Subtitle D—Equal Remedies Act of 

14 2004

15 SEC. 531. SHORT TITLE. 

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

17 Act of 2004’’. 

18 SEC. 532. EQUALIZATION OF REMEDIES. 

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

20 1981a), as added by section 102 of the Civil Rights Act 

21 of 1991, is amended—

22 (1) in subsection (b)—

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

24 (B) by redesignating paragraph (4) as 

25 paragraph (3); and 
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1 (2) in subsection (c), by striking ‘‘section—’’ 

2 and all that follows through the period, and insert3 ing ‘‘section, any party may demand a jury trial.’’. 

4 TITLE VI—PROHIBITIONS 

5 AGAINST SEX DISCRIMINATION 

6 SEC. 601. SHORT TITLE. 

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

8 Act’’. 

9 SEC. 602. FINDINGS. 

10 Congress makes the following findings: 

11 (1) Women have entered the workforce in 

12 record numbers. 

13 (2) Even today, women earn significantly lower 

14 pay than men for work on jobs that require equal 

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

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

22 (3) The existence of such pay disparities—

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

25 family to make ends meet; 
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1 (B) prevents the optimum utilization of 

2 available labor resources; 

3 (C) has been spread and perpetuated, 

4 through commerce and the channels and instru5 mentalities of commerce, among the workers of 

6 the several States; 

7 (D) burdens commerce and the free flow of 

8 goods in commerce; 

9 (E) constitutes an unfair method of com10 petition in commerce; 

11 (F) leads to labor disputes burdening and 

12 obstructing commerce and the free flow of 

13 goods in commerce; 

14 (G) interferes with the orderly and fair 

15 marketing of goods in commerce; and 

16 (H) in many instances, may deprive work17 ers of equal protection on the basis of sex in 

18 violation of the 5th and 14th amendments. 

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

20 discrimination in the payment of wages on the basis 

21 of sex continue to exist decades after the enactment 

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

23 201 et seq.) and the Civil Rights Act of 1964 (42 

24 U.S.C. 2000a et seq.). 
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1 (B) Elimination of such barriers would have 

2 positive effects, including—

3 (i) providing a solution to problems in the 

4 economy created by unfair pay disparities; 

5 (ii) substantially reducing the number of 

6 working women earning unfairly low wages, 

7 thereby reducing the dependence on public as8 sistance; 

9 (iii) promoting stable families by enabling 

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

11 (iv) remedying the effects of past discrimi12 nation on the basis of sex and ensuring that in 

13 the future workers are afforded equal protection 

14 on the basis of sex; and 

15 (v) ensuring equal protection pursuant to 

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

17 amendments. 

18 (5) With increased information about the provi19 sions added by the Equal Pay Act of 1963 and wage 

20 data, along with more effective remedies, women will 

21 be better able to recognize and enforce their rights 

22 to equal pay for work on jobs that require equal 

23 skill, effort, and responsibility and that are per24 formed under similar working conditions.
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1 (6) Certain employers have already made great 

2 strides in eradicating unfair pay disparities in the 

3 workplace and their achievements should be recog4 nized. 

5 SEC. 603. ENHANCED ENFORCEMENT OF EQUAL PAY RE6 QUIREMENTS. 

7 (a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE

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

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

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

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

12 a bona fide factor other than sex, such as education, train13 ing or experience, except that this clause shall apply only 

14 if—

15 ‘‘(I) the employer demonstrates that—

16 ‘‘(aa) such factor—

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

18 the position in question; or 

19 ‘‘(BB) furthers a legitimate business 

20 purpose, except that this item shall not 

21 apply where the employee demonstrates 

22 that an alternative employment practice 

23 exists that would serve the same business 

24 purpose without producing such differen-
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1 tial and that the employer has refused to 

2 adopt such alternative practice; and 

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

4 used reasonably in light of the asserted jus5 tification; and 

6 ‘‘(II) upon the employer succeeding under sub7 clause (I), the employee fails to demonstrate that 

8 the differential produced by the reliance of the em9 ployer on such factor is itself the result of discrimi10 nation on the basis of sex by the employer. 

11 An employer that is not otherwise in compliance with this 

12 paragraph may not reduce the wages of any employee in 

13 order to achieve such compliance.’’. 

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

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

16 206(d)(1)) is amended by adding at the end the following: 

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

18 for employment if such applicants, upon employment by 

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

20 section.’’. 

21 (c) ELIMINATION OF ESTABLISHMENT REQUIRE22 MENT.—Section 6(d) of the Fair Labor Standards Act of 

23 1938 (29 U.S.C. 206(d)) is amended—

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

25 which such employees are employed,’’; and 
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1 (2) by striking ‘‘in such establishment’’ each 

2 place it appears. 

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

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

5 215(a)(3)) is amended—

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

7 and inserting ‘‘has’’; and 

8 (2) by inserting before the semicolon the fol9 lowing: ‘‘, or has inquired about, discussed, or other10 wise disclosed the wages of the employee or another 

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

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

13 any manner in an investigation, proceeding, hearing, 

14 or action under section 6(d)’’. 

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

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

17 amended—

18 (1) by inserting after the first sentence the fol19 lowing: ‘‘Any employer who violates section 6(d) 

20 shall additionally be liable for such compensatory or 

21 punitive damages as may be appropriate, except that 

22 the United States shall not be liable for punitive 

23 damages.’’; 

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

25 by striking ‘‘either of the preceding sentences’’ and 
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1 inserting ‘‘any of the preceding sentences of this 

2 subsection’’; 

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

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

5 ‘‘Except with respect to class actions brought to en6 force section 6(d), no employee’’; 

7 (4) by inserting after the sentence referred to 

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

9 any other provision of Federal law, any action 

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

11 as a class action as provided by the Federal Rules 

12 of Civil Procedure.’’; and 

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

14 (A) by striking ‘‘in such action’’ and in15 serting ‘‘in any action brought to recover the li16 ability prescribed in any of the preceding sen17 tences of this subsection’’; and 

18 (B) by inserting before the period the fol19 lowing: ‘‘, including expert fees’’. 

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

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

22 amended—

23 (1) in the first sentence—

24 (A) by inserting ‘‘or, in the case of a viola25 tion of section 6(d), additional compensatory or 
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1 punitive damages,’’ before ‘‘and the agree2 ment’’; and 

3 (B) by inserting before the period the fol4 lowing: ‘‘, or such compensatory or punitive 

5 damages, as appropriate’’; 

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

7 the period the following: ‘‘and, in the case of a viola8 tion of section 6(d), additional compensatory or pu9 nitive damages’’; 

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

11 sentence’’ and inserting ‘‘the first or second sen12 tence’’; and 

13 (4) in the last sentence—

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

15 and inserting ‘‘commenced—

16 ‘‘(1) in the case’’; 

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

18 or’’; and 

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

20 ‘‘(2) in the case of a class action brought to en21 force section 6(d), on the date on which the indi22 vidual becomes a party plaintiff to the class action.’’. 

23 SEC. 604. TRAINING. 

24 The Equal Employment Opportunity Commission 

25 and the Office of Federal Contract Compliance Programs,
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1 subject to the availability of funds appropriated under sec2 tion 609, shall provide training to Commission employees 

3 and affected individuals and entities on matters involving 

4 discrimination in the payment of wages. 

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

6 The Secretary of Labor shall conduct studies and 

7 provide information to employers, labor organizations, and 

8 the general public concerning the means available to elimi9 nate pay disparities between men and women, including—

10 (1) conducting and promoting research to de11 velop the means to correct expeditiously the condi12 tions leading to the pay disparities; 

13 (2) publishing and otherwise making available 

14 to employers, labor organizations, professional asso15 ciations, educational institutions, the media, and the 

16 general public the findings resulting from studies 

17 and other materials, relating to eliminating the pay 

18 disparities; 

19 (3) sponsoring and assisting State and commu20 nity informational and educational programs; 

21 (4) providing information to employers, labor 

22 organizations, professional associations, and other 

23 interested persons on the means of eliminating the 

24 pay disparities; 
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1 (5) recognizing and promoting the achievements 

2 of employers, labor organizations, and professional 

3 associations that have worked to eliminate the pay 

4 disparities; and 

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

6 consider approaches for rectifying, the pay dispari7 ties. 

8 SEC. 606. TECHNICAL ASSISTANCE AND EMPLOYER REC9 OGNITION PROGRAM. 

10 (a) GUIDELINES.—

11 (1) IN GENERAL.—The Secretary of Labor shall 

12 develop guidelines to enable employers to evaluate 

13 job categories based on objective criteria such as 

14 educational requirements, skill requirements, inde15 pendence, working conditions, and responsibility, in16 cluding decisionmaking responsibility and de facto 

17 supervisory responsibility. 

18 (2) USE.—The guidelines developed under 

19 paragraph (1) shall be designed to enable employers 

20 voluntarily to compare wages paid for different jobs 

21 to determine if the pay scales involved adequately 

22 and fairly reflect the educational requirements, skill 

23 requirements, independence, working conditions, and 

24 responsibility for each such job with the goal of 
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1 eliminating unfair pay disparities between occupa2 tions traditionally dominated by men or women. 

3 (3) PUBLICATION.—The guidelines shall be de4 veloped under paragraph (1) and published in the 

5 Federal Register not later than 180 days after the 

6 date of enactment of this title. 

7 (b) EMPLOYER RECOGNITION.—

8 (1) PURPOSE.—It is the purpose of this sub9 section to emphasize the importance of, encourage 

10 the improvement of, and recognize the excellence of 

11 employer efforts to pay wages to women that reflect 

12 the real value of the contributions of such women to 

13 the workplace. 

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

15 this subsection, the Secretary of Labor shall estab16 lish a program under which the Secretary shall pro17 vide for the recognition of employers who, pursuant 

18 to a voluntary job evaluation conducted by the em19 ployer, adjust their wage scales (such adjustments 

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

21 using the guidelines developed under subsection (a) 

22 to ensure that women are paid fairly in comparison 

23 to men. 

24 (3) TECHNICAL ASSISTANCE.—The Secretary of 

25 Labor may provide technical assistance to assist an 
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1 employer in carrying out an evaluation under para2 graph (2). 

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

4 promulgate such rules and regulations as may be nec5 essary to carry out this section. 

6 SEC. 607. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

7 PAY EQUITY IN THE WORKPLACE. 

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

9 of Labor’s National Award for Pay Equity in the Work10 place, which shall be evidenced by a medal bearing the 

11 inscription ‘‘Secretary of Labor’s National Award for Pay 

12 Equity in the Workplace’’. The medal shall be of such de13 sign and materials, and bear such additional inscriptions, 

14 as the Secretary of Labor may prescribe. 

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

16 receive an award under this section a business shall—

17 (1) submit a written application to the Sec18 retary of Labor, at such time, in such manner, and 

19 containing such information as the Secretary may 

20 require, including at a minimum information that 

21 demonstrates that the business has made substantial 

22 effort to eliminate pay disparities between men and 

23 women, and deserves special recognition as a con24 sequence; and 
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1 (2) meet such additional requirements and 

2 specifications as the Secretary of Labor determines 

3 to be appropriate. 

4 (c) MAKING AND PRESENTATION OF AWARD.—

5 (1) AWARD.—After receiving recommendations 

6 from the Secretary of Labor, the President or the 

7 designated representative of the President shall an8 nually present the award described in subsection (a) 

9 to businesses that meet the qualifications described 

10 in subsection (b). 

11 (2) PRESENTATION.—The President or the des12 ignated representative of the President shall present 

13 the award under this section with such ceremonies 

14 as the President or the designated representative of 

15 the President may determine to be appropriate. 

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

17 includes—

18 (1)(A) a corporation, including a nonprofit cor19 poration; 

20 (B) a partnership; 

21 (C) a professional association; 

22 (D) a labor organization; and 

23 (E) a business entity similar to an entity de24 scribed in any of subparagraphs (A) through (D);
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1 (2) an entity carrying out an education referral 

2 program, a training program, such as an apprentice3 ship or management training program, or a similar 

4 program; and 

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

6 formed by a combination of any entities described in 

7 paragraph (1) or (2). 

8 SEC. 608. COLLECTION OF PAY INFORMATION BY THE 

9 EQUAL EMPLOYMENT OPPORTUNITY COM10 MISSION. 

11 Section 709 of the Civil Rights Act of 1964 (42 

12 U.S.C. 2000e–8) is amended by adding at the end the fol13 lowing: 

14 ‘‘(f)(1) Not later than 18 months after the date of 

15 enactment of this subsection, the Commission shall—

16 ‘‘(A) complete a survey of the data that is cur17 rently available to the Federal Government relating 

18 to employee pay information for use in the enforce19 ment of Federal laws prohibiting pay discrimination 

20 and, in consultation with other relevant Federal 

21 agencies, identify additional data collections that will 

22 enhance the enforcement of such laws; and 

23 ‘‘(B) based on the results of the survey and 

24 consultations under subparagraph (A), issue regula25 tions to provide for the collection of pay information 
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1 data from employers as described by the sex, race, 

2 and national origin of employees. 

3 ‘‘(2) In implementing paragraph (1), the Commission 

4 shall have as its primary consideration the most effective 

5 and efficient means for enhancing the enforcement of Fed6 eral laws prohibiting pay discrimination. For this purpose, 

7 the Commission shall consider factors including the impo8 sition of burdens on employers, the frequency of required 

9 reports (including which employers should be required to 

10 prepare reports), appropriate protections for maintaining 

11 data confidentiality, and the most effective format for the 

12 data collection reports.’’. 

13 SEC. 609. AUTHORIZATION OF APPROPRIATIONS. 

14 There are authorized to be appropriated such sums 

15 as may be necessary to carry out this title. 

16 TITLE VII—PROTECTIONS FOR 

17 WORKERS 

18 Subtitle A—Protection for 

19 Undocumented Workers 

20 SEC. 701. FINDINGS. 

21 Congress finds the following: 

22 (1) The National Labor Relations Act (29 

23 U.S.C. 151 et seq.) (in this subtitle referred to as 

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

25 of employees to organize and to bargain collectively 
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1 with their employers. The NLRA implements the na2 tional labor policy of assuring free choice and en3 couraging collective bargaining as a means of main4 taining industrial peace. The National Labor Rela5 tions Board (in this subtitle referred to as the 

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

7 provisions of the NLRA. 

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

9 are prohibited from discriminating against employ10 ees ‘‘in regard to hire or tenure of employment or 

11 any term or condition of employment to encourage 

12 or discourage membership in any labor organiza13 tion’’. (29 U.S.C. 158(a)(3)). Employers who violate 

14 these provisions are subject to a variety of sanctions, 

15 including reinstatement of workers found to be ille16 gally discharged because of their union support or 

17 activity and provision of backpay to those employees. 

18 Such sanctions serve to remedy and deter illegal ac19 tions by employers. 

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

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

22 held by a 5 to 4 vote that Federal immigration pol23 icy, as articulated in the Immigration Reform and 

24 Control Act of 1986, prevented the NLRB from 

25 awarding backpay to an undocumented immigrant 
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1 who was discharged in violation of the NLRA be2 cause of his support for union representation at his 

3 workplace. 

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

5 all employees, regardless of immigration or citizen6 ship status, who try to improve their working condi7 tions. In the wake of Hoffman Plastics, employers 

8 may be more likely to report to the Department of 

9 Homeland Security minority workers, regardless of 

10 their immigration or citizenship status, who pursue 

11 claims under the NLRA against their employers. 

12 Fear that employers may retaliate against employees 

13 that exercise their rights under the NLRA has a 

14 chilling effect on all employees who exercise their 

15 labor rights. 

16 (5) The NLRA is not the only Federal employ17 ment statute that provides for a backpay award as 

18 a remedy for an unlawful discharge. For example, 

19 courts routinely award backpay to employees who 

20 are found to have been discharged in violation of 

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

22 2000e et seq.) or the Fair Labor Standards Act of 

23 1938 (29 U.S.C. 201 et seq.) (in retaliation for com24 plaining about a failure to comply with the minimum 

25 wage). In the wake of the Hoffman decision, defend-
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1 ant employers will now argue that backpay awards 

2 to unlawfully discharged undocumented workers are 

3 barred under Federal employment statutes and even 

4 under State employment statutes. 

5 (6) Because the Hoffman decision prevents the 

6 imposition of sanctions on employers who discrimi7 nate against undocumented immigrant workers, em8 ployers are encouraged to employ such workers for 

9 low-paying and dangerous jobs because they have no 

10 legal redress for violations of the law. This creates 

11 an economic incentive for employers to hire and ex12 ploit undocumented workers, which in turn tends to 

13 undermine the living standards and working condi14 tions of all Americans, citizens and noncitizens alike. 

15 (7) The Hoffman decision disadvantages many 

16 employers as well. Employers who are forced to com17 pete with firms that hire and exploit undocumented 

18 immigrant workers are saddled with an economic 

19 disadvantage in the labor marketplace. The unin20 tended creation of an economic inducement for em21 ployers to exploit undocumented immigrant workers 

22 gives those employers an unfair competitive advan23 tage over employers that treat workers lawfully and 

24 fairly.
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1 (8) The Court’s decision in Hoffman makes 

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

3 existing remedial arsenal’ must be ‘addressed by 

4 congressional action[.]’ ’’ Hoffman Plastic Com5 pounds Inc. v. NLRB, 535 U.S. 137, 152 (2002) 

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

7 904 (1984)). In emphasizing the importance of back 

8 pay awards, Justice Breyer noted that such awards 

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

10 that both labor laws and immigration laws seek to 

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

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

13 pay awards are designed both to remedy the individ14 ual’s private right to be free from discrimination as 

15 well as to enforce the important public policy against 

16 discriminatory employment practices, Congress must 

17 take the following corrective action. 

18 SEC. 702. CONTINUED APPLICATION OF BACKPAY REM19 EDIES. 

20 (a) IN GENERAL.—Section 274A(h) of the Immigra21 tion and Nationality Act (8 U.S.C. 1324a(h)) is amended 

22 by adding at the end the following: 

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

24 monetary relief for unlawful employment practices 
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1 shall not be denied to a present or former employee 

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

3 ‘‘(A) failure to comply with the require4 ments of this section; or 

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

6 related to the employment verification system 

7 described in subsection (b) in establishing or 

8 maintaining the employment relationship.’’. 

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

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

11 violation that occurs prior to, on, or after the date of en12 actment of this title. 

13 Subtitle B—Fair Labor Standards 

14 Act Amendments 

15 SEC. 711. SHORT TITLE. 

16 This subtitle may be cited as the ‘‘Workers’ Minimum 

17 Wage and Overtime Rights Restoration Act of 2004’’. 

18 SEC. 712. FINDINGS. 

19 Congress finds the following with respect to the Fair 

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

21 this subtitle referred to as the ‘‘FLSA’’): 

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

23 with respect to the payment of minimum wage and 

24 overtime rates. In Garcia v. San Antonio Metropoli25 tan Transit Authority, 469 U.S. 528 (1985), the Su-
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1 preme Court upheld Congress’s constitutional au2 thority to regulate States in the payment of min3 imum wages and overtime. The prohibitions of the 

4 FLSA remain in effect and continue to apply to the 

5 States. 

6 (2) Wage and overtime violations in employ7 ment remain a serious problem both nationally and 

8 among State and other public and private entities 

9 receiving Federal financial assistance, and has invid10 ious effects on its victims, the labor force, and the 

11 general welfare and economy as a whole. For exam12 ple, seven State governments have no overtime laws 

13 at all. Fourteen State governments have minimum 

14 wage and overtime laws; however, they exclude em15 ployees covered under the FLSA. As such, public 

16 employees, since they are covered under the FLSA 

17 are not protected under these State laws. Addition18 ally, four States have minimum wage and overtime 

19 laws which are inferior to the FLSA. Further, the 

20 Department of Labor continues to receive a substan21 tial number of wage and overtime charges against 

22 State government employers. 

23 (3) Private civil suits by the victims of employ24 ment law violations have been a crucial tool for en25 forcement of the FLSA. In Alden v. Maine, 527 
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1 U.S. 706 (1999), however, the Supreme Court held 

2 that Congress lacks the power under the 14th 

3 amendment to the Constitution to abrogate State 

4 sovereign immunity to suits for legal relief by indi5 viduals under the FLSA. The Federal Government 

6 has an important interest in ensuring that Federal 

7 financial assistance is not used to facilitate viola8 tions of the FLSA, and private civil suits for mone9 tary relief are a critical tool for advancing that in10 terest. 

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

12 violations by State employers remain unlawful, but 

13 victims of such violations lack important remedies 

14 for vindication of their rights available to all other 

15 employees covered by the FLSA. In the absence of 

16 the deterrent effect that such remedies provide, 

17 there is a great likelihood that State entities car18 rying out federally funded programs and activities 

19 will use Federal financial assistance to violate the 

20 FLSA, or that the Federal financial assistance will 

21 otherwise subsidize or facilitate FLSA violations. 

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

23 authority to condition receipt of Federal financial 

24 assistance on acceptance by State or other covered 

25 entities of conditions regarding or related to the use 
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1 of those funds, as in Cannon v. University of Chi2 cago, 441 U.S. 677 (1979). 

3 (6) The Court has further recognized that Con4 gress may require State entities, as a condition of 

5 receipt of Federal financial assistance, to waive their 

6 State sovereign immunity to suits for a violation of 

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

8 Prepaid Postsecondary Education Expense Board, 

9 527 U.S. 666 (1999). 

10 (7) In the wake of the Alden decision, it is nec11 essary, in order to foster greater compliance with, 

12 and adequate remedies for violations of, the FLSA, 

13 particularly in federally funded programs or activi14 ties operated by State entities, to require State enti15 ties to consent to a waiver of State sovereign immu16 nity as a condition of receipt of such Federal finan17 cial assistance. 

18 (8) The Supreme Court has repeatedly held 

19 that State sovereign immunity does not bar suits for 

20 prospective injunctive relief brought against State 

21 officials acting in their official capacity, as in Ex 

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

23 relief available in such suits under the FLSA will 

24 continue to be the same as that which was available 

25 under those laws prior to enactment of this subtitle.
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1 SEC. 713. PURPOSES. 

2 The purposes of this subtitle are—

3 (1) to provide to State employees in programs 

4 or activities that receive or use Federal financial as5 sistance the same rights and remedies for practices 

6 violating the FLSA as are available to other employ7 ees under the FLSA, and that were available to 

8 State employees prior to the Supreme Court’s deci9 sion in Alden v. Maine, 527 U.S. 706 (1999); 

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

11 financial assistance for a program or activity con12 stitutes a State waiver of sovereign immunity from 

13 suits by employees within that program or activity 

14 for violations of the FLSA; and 

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

16 available against State officials in their official ca17 pacities for violations of the FLSA. 

18 SEC. 714. REMEDIES FOR STATE EMPLOYEES. 

19 Section 16 of the Fair Labor Standards Act of 1938 

20 (29 U.S.C. 216) is amended by adding at the end the fol21 lowing: 

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

23 assistance for any program or activity of a State shall con24 stitute a waiver of sovereign immunity, under the 11th 

25 amendment to the Constitution or otherwise, to a suit 

26 brought by an employee of that program or activity under 
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1 this Act for equitable, legal, or other relief authorized 

2 under this Act. 

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

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

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

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