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[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3823 Introduced in Senate (IS)]

109th CONGRESS
  2d Session
                                S. 3823

   To amend the Americans with Disabilities Act of 1990 and the Age 
 Discrimination in Employment Act of 1967 to provide a means to combat 
  discrimination on the basis of age or disability, by conditioning a 
 State's receipt or use of Federal financial assistance on the State's 
      waiver of immunity from suit for violations under such Acts.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             August 3, 2006

  Mr. DeWine introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL

 
   To amend the Americans with Disabilities Act of 1990 and the Age 
 Discrimination in Employment Act of 1967 to provide a means to combat 
  discrimination on the basis of age or disability, by conditioning a 
 State's receipt or use of Federal financial assistance on the State's 
      waiver of immunity from suit for violations under such Acts.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Civil Rights Restoration Act of 
2006''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) For over 30 years, Congress has outlawed employment 
        discrimination by State employers. In 1974, in the face of 
        pervasive age discrimination by State and other employers, 
        Congress amended the Age Discrimination in Employment Act of 
        1967 (29 U.S.C. 621 et seq.) (referred to in this Act as the 
        ``ADEA'') to outlaw age discrimination by such employers. In 
        1990, Congress passed the Americans with Disabilities Act of 
        1990 (42 U.S.C. 12101 et seq.) (referred to in this Act as the 
        ``ADA'') to provide a ``clear and comprehensive national 
        mandate'', as described in section 2(b)(1) of that Act (42 
        U.S.C. 12101(b)(1)), to eliminate discrimination against 
        individuals with disabilities, even when that discrimination 
        came at the hands of States, including State employers.
            (2)(A) Many years have passed since the enactment of those 
        laws, but discrimination on the basis of age or disability 
        remains a serious problem in the United States.
            (B) Discrimination has invidious effects on its victims, 
        the workforce, the economy as a whole, and government revenues. 
        Discrimination on the basis of age or disability--
                    (i) increases the risk of unemployment among older 
                workers or individuals with disabilities, who may, as a 
                result of the discrimination, be forced to depend on 
                government programs;
                    (ii) adversely affects the morale and productivity 
                of the workforce;
                    (iii) perpetuates unwarranted stereotypes about the 
                abilities of older workers or individuals with 
                disabilities, thus reducing the effectiveness of 
                government programs promoting nondiscrimination and 
                integration; and
                    (iv) prevents the best use of both public and 
                private resources.
            (3) Since the passage of the ADA and the ADEA, private 
        civil suits by the victims of discrimination have been an 
        essential tool in combating illegal discrimination. As one 
        witness explained during hearings on the legislation that 
        became the ADA, ``civil rights laws depend heavily on private 
        enforcement''. ``[D]amages are essential to provide private 
        citizens a meaningful opportunity to vindicate their rights. 
        Attempts to weaken the remedies available under the ADA are 
        attacks on the ADA itself, and their success would make the ADA 
        an empty promise of equality.''. Field Hearing on Americans 
        with Disabilities Act, Before the Subcommittee on Select 
        Education of the House Committee on Education and Labor, 101st 
        Cong. 68 (1989) (statement of Mr. Howard Wolf).
            (4) In recent years, however, the Supreme Court has created 
        a serious loophole in the ADA and the ADEA, weakening their 
        ``promise of equality''. In Kimel v. Florida Board of Regents, 
        528 U.S. 62 (2000), for instance, the Supreme Court held that 
        Congress lacked the power to subject States to suit for money 
        damages under the ADEA. In Board of Trustees of the University 
        of Alabama v. Garrett, 531 U.S. 356 (2001), the Court again 
        held that Congress lacked the power to subject States to suit 
        for money damages, this time under title I of the ADA (42 
        U.S.C. 12111 et seq.).
            (5) As a result of those decisions, State employees who are 
        victimized by discrimination on the basis of age or disability 
        cannot sue in Federal court for money damages to vindicate 
        their Federal rights. Those decisions have, in turn, had 2 
        unfortunate consequences.
            (6) First, they have undermined the enforcement of the ADA 
        and the ADEA. Lawsuits for money damages are the primary means 
        for private individuals to obtain redress for discrimination. 
        In addition, lawsuits for money damages promote deterrence and 
        provide an important way for the Federal Government to enforce 
        antidiscrimination laws. By eliminating the ability for State 
        employees to sue their employers for such damages, the Supreme 
        Court's Kimel and Garrett decisions have made enforcement of 
        these civil rights laws more difficult.
            (7) Second, they have created a legal regime that gives 
        State employees fewer rights than other employees covered by 
        the ADA and the ADEA. At present, employees of local 
        governments and employees in the private sector are entitled to 
        sue in Federal court for money damages for violations of the 
        ADA or the ADEA. For the more than 2,500,000 individuals who 
        work for the States, however, such relief is no longer 
        available.
            (8) Although most States have laws in effect that bar 
        discrimination on the basis of age or disability, those laws 
        are insufficient to provide redress for those individuals who 
        are subjected to discrimination by State employers or agencies.
            (9) A few States apply the doctrine of sovereign immunity 
        to completely bar State employees from suing in State court for 
        age discrimination. In several States, it is still unclear 
        whether State law claims can proceed in State court for age 
        discrimination or whether those claims are barred by sovereign 
        immunity. Finally, there are many States that severely limit or 
        restrict the kinds of remedies or monetary relief available to 
        State employees who bring suits for discrimination on the basis 
        of age.
            (10) The same problems exist with State laws regarding 
        disability discrimination. In fact, one recent analysis has 
        shown that there are significant gaps in the coverage and 
        remedies available under State laws outlawing discrimination.
            (11) Thus, while State laws are important in trying to stem 
        discrimination on the basis of age or disability, they are 
        currently inadequate to close the loophole created by the Kimel 
        and Garrett decisions.
            (12) In the years since the Kimel and Garrett decisions, 
        many States have also challenged the constitutionality of title 
        II of the ADA (42 U.S.C. 12131 et seq.). These challenges have 
        forced individuals with disabilities into extensive litigation 
        about sovereign immunity when they seek redress for disability 
        discrimination in such fundamental areas as access to the 
        courts, access to community-based services, access to State-
        sponsored health insurance, access to public transportation, 
        access to handicapped parking, access to mental health 
        services, and access to public education. The Supreme Court has 
        issued several decisions that invite even more litigation. In 
        Tennessee v. Lane, for instance, the Court held that, under the 
        particular facts of that case, a plaintiff could sue the State 
        for money damages under title II of the ADA, even though the 
        Court, in the Garrett case, had barred a claim for such damages 
        under title I of that Act (42 U.S.C. 12111 et seq.) Tennessee 
        v. Lane, 541 U.S. 509 (2004).
            (13) After the Lane decision, some claims against States 
        are permitted to proceed under the ADA, while others are not. 
        This has made it extremely difficult for the victims of 
        discrimination, States, and Congress to determine precisely 
        when States are subject to suit under the ADA and when they are 
        not. The confusion has spawned a significant amount of 
        litigation in the lower Federal courts. This jurisprudence has 
        even caused the Chairman of the Committee on the Judiciary of 
        the Senate, Senator Arlen Specter, to condemn the Court's 
        recent decisions as ``inexplicable''.
            (14) The Constitution provides Congress with the power to 
        enact legislation--
                    (A) to clarify that, despite the Supreme Court's 
                decisions in the Kimel and Garrett cases, the States 
                are subject to suit just like other entities when the 
                States violate the ADA and the ADEA; and
                    (B) to end the confusion created by the Court's 
                decision in the Lane case.
            (15) Under section 8 of article I of the Constitution, 
        ``The Congress shall have power to lay and collect taxes, 
        duties, imposts and excises, to pay the debts and provide for 
        the common defense and general welfare of the United States''.
            (16) Congress' power under this language, known as the 
        Spending Clause, is well-established. Under this Clause, 
        Congress has the power to require the States to abide by 
        certain conditions in exchange for receiving Federal financial 
        assistance. This authority has been recognized by the Supreme 
        Court repeatedly through the years and reaffirmed recently. 
        United States v. Butler, 297 U.S. 1 (1936) (declaring that 
        Congress may exert authority through its spending power); South 
        Dakota v. Dole, 483 U.S. 203 (1987) (upholding condition 
        requiring the establishment of a drinking age of 21 years in 
        exchange for the receipt of Federal highway dollars). In fact, 
        the Supreme Court has specifically held that Congress may 
        require a State, as a condition of receiving Federal financial 
        assistance, to waive its immunity from suit for violations of 
        Federal law. College Savings Bank v. Florida Prepaid 
        Postsecondary Education Expense Board, 527 U.S. 666 (1999).
            (17) Congress has previously used its spending power to 
        require States to waive their immunity from suit in exchange 
        for receiving Federal financial assistance. For instance, the 
        provisions of section 1003 of the Rehabilitation Act Amendments 
        of 1986 (42 U.S.C. 2000d-7) provide that a State shall not be 
        immune from suit under the 11th amendment for violations of 
        section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), 
        title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et 
        seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et 
        seq.), and title VI of the Civil Rights Act of 1964 (42 U.S.C. 
        2000d et seq.). At least one court, however, has suggested that 
        those provisions do not apply to the ADA or the ADEA. Brown v. 
        Washington Metro Area Transit Authority, No. DKC 2005-0052, 
        2005 U.S. Dist. LEXIS 16881 (D. Md. 2005).
            (18) By requiring States to waive their immunity from suit 
        under the ADA and the ADEA in exchange for receiving Federal 
        assistance, the Federal government can ensure that Federal 
        dollars are not ``frittered away'' on unlawful discrimination. 
        Such a conditional waiver will help Congress ``protect the 
        integrity of the vast sums of money distributed through Federal 
        programs''. Sabri v. United States, 541 U.S. 600 (2004). 
        ``Simple justice requires that public funds, to which all 
        taxpayers . . . contribute, not be spent in any fashion which 
        encourages, entrenches, subsidizes, or results in . . . 
        discrimination''. Lau v. Nichols, 414 U.S. 563 (1974). This 
        simple principle applies whether the discrimination is based on 
        race, as in the Lau case, or age, or disability, as in Barbour 
        v. Washington Metro Area Transit Authority, 374 F.3d 1161 (D.C. 
        Cir. 2004).
            (19) Such a conditional waiver does not coerce a State in 
        any way. The Supreme Court has recognized that a State's 
        voluntary waiver of its 11th amendment right is constitutional. 
        College Savings Bank v. Florida Prepaid Postsecondary Education 
        Expense Board, 527 U.S. 666 (1999) (citing Clark v. Barnard, 
        108 U.S. 436 (1883)). The Court has explicitly recognized that 
        a State's acceptance of Federal funds constitutes a knowing 
        agreement to a congressionally-imposed condition on the funds. 
        Thus, while Congress may not compel States to waive their 
        immunity granted under the 11th amendment, a voluntary State 
        waiver condition is wholly permissible. Alden v. Maine, 527 
        U.S. 706 (1999).
            (20) The Kimel and Garrett decisions frustrate the ability 
        of the ADA and the ADEA to protect individual rights and remedy 
        violations of Federal law. In the wake of those decisions, and 
        in recognition that State laws may be insufficient to protect 
        against discrimination on the basis of age or disability, it is 
        essential to require that States waive their immunity from suit 
        under the ADA and the ADEA for those programs or activities 
        receiving Federal financial assistance.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to provide to any State employee or person aggrieved by 
        any program or activity that receives Federal financial 
        assistance the right to sue the State for money damages for any 
        violation of the ADA or the ADEA; and
            (2) to provide that a State's receipt or use of Federal 
        financial assistance for any program or activity of a State 
        shall constitute a waiver of sovereign immunity, under the 11th 
        amendment to the Constitution or otherwise, to a suit brought 
        by any employee or person aggrieved by that program or activity 
        for any violation of the ADA or the ADEA.

SEC. 4. ABROGATION OF STATE SOVEREIGN IMMUNITY.

    (a) Age Discrimination in Employment Act of 1967.--Section 7 of the 
Age Discrimination in Employment Act of 1967 (29 U.S.C. 626) is amended 
by adding at the end the following:
    ``(g) Waiver of Sovereign Immunity.--
            ``(1) Waiver.--A State's receipt or use of Federal 
        financial assistance for any program or activity of a State 
        shall constitute a waiver of sovereign immunity, under the 11th 
        amendment to the Constitution or otherwise, to a suit brought 
        by any employee or person aggrieved by that program or activity 
        for equitable, legal, or other relief authorized by or through 
        this Act.
            ``(2) Abrogation for constitutional violation.--In addition 
        to the abrogation of sovereign immunity already accomplished by 
        this Act, a State's sovereign immunity, under the 11th 
        amendment to the Constitution or otherwise, is abrogated for 
        any suit brought by any employee or person for equitable, 
        legal, or other relief authorized by or through this Act, for 
        conduct that violates the 14th amendment (including the 
        constitutional rights incorporated in the 14th amendment) and 
        that also violates this Act.
            ``(3) Definitions.--In this subsection:
                    ``(A) Program or activity.--
                            ``(i) In general.--The term `program or 
                        activity' has the meaning given the term in 
                        section 309 of the Age Discrimination Act of 
                        1975 (42 U.S.C. 6107).
                            ``(ii) Operations included.--The term 
                        includes any operation carried out, funded, or 
                        arranged by an entity described in clause (i) 
                        or (ii) of section 309(4)(A) of such Act (42 
                        U.S.C. 6107(4)(A)) that receives Federal 
                        financial assistance, even if the entity does 
                        not use the Federal financial assistance for 
                        the operation.
                    ``(B) Recipient.--A State shall be considered to 
                receive Federal financial assistance for a program or 
                activity if the program or activity--
                            ``(i) receives the assistance from an 
                        intermediary; and
                            ``(ii) is the intended recipient under the 
                        statutory provision through which the 
                        intermediary receives the assistance.
                    ``(C) Construction.--Nothing in this paragraph 
                shall be construed to suggest that, for purposes of 
                this subsection or title III of such Act--
                            ``(i) the term `program or activity' would 
                        not include the operation described in 
                        subparagraph (A)(ii), in the absence of this 
                        paragraph; or
                            ``(ii) a State described in subparagraph 
                        (B) would not be considered to receive Federal 
                        financial assistance for a program or activity, 
                        in the absence of this paragraph.''.
    (b) Title I of the Americans With Disabilities Act of 1990.--
Section 107 of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12117) is amended by adding at the end the following:
    ``(c) Waiver of Sovereign Immunity.--
            ``(1) Waiver.--A State's receipt or use of Federal 
        financial assistance for any program or activity of a State 
        shall constitute a waiver of sovereign immunity, under the 11th 
        amendment to the Constitution or otherwise, to a suit brought 
        by any employee or person alleging a violation of this title 
        (including regulations promulgated under section 106) or 
        section 503, or otherwise aggrieved, by that program or 
        activity for equitable, legal, or other relief authorized by or 
        through this Act or section 1977A of the Revised Statutes (42 
        U.S.C. 1981a).
            ``(2) Abrogation for constitutional violation.--In addition 
        to the abrogation of sovereign immunity already accomplished by 
        section 502, a State's sovereign immunity, under the 11th 
        amendment to the Constitution or otherwise, is abrogated for 
        any suit brought by any employee or person for equitable, 
        legal, or other relief authorized by or through this Act or 
        section 1977A of the Revised Statutes (42 U.S.C. 1981a), for 
        conduct that violates the 14th amendment (including the 
        constitutional rights incorporated in the 14th amendment) and 
        that also violates this title (including regulations 
        promulgated under section 106) or section 503.
            ``(3) Definitions.--In this subsection:
                    ``(A) Program or activity.--
                            ``(i) In general.--The term `program or 
                        activity' has the meaning given the term in 
                        section 504(b) of the Rehabilitation Act of 
                        1973 (29 U.S.C. 794(b)).
                            ``(ii) Operations included.--The term 
                        includes any operation carried out, funded, or 
                        arranged by an entity described in subparagraph 
                        (A) or (B) of section 504(b)(1) of such Act (29 
                        U.S.C. 794(b)(1)) that receives Federal 
                        financial assistance, even if the entity does 
                        not use the Federal financial assistance for 
                        the operation.
                    ``(B) Recipient.--A State shall be considered to 
                receive Federal financial assistance for a program or 
                activity if the program or activity--
                            ``(i) receives the assistance from an 
                        intermediary; and
                            ``(ii) is the intended recipient under the 
                        statutory provision through which the 
                        intermediary receives the assistance.
                    ``(C) Construction.--Nothing in this paragraph 
                shall be construed to suggest that, for purposes of 
                this subsection or such section 504--
                            ``(i) the term `program or activity' would 
                        not include the operation described in 
                        subparagraph (A)(ii), in the absence of this 
                        paragraph; or
                            ``(ii) a State described in subparagraph 
                        (B) would not be considered to receive Federal 
                        financial assistance for a program or activity, 
                        in the absence of this paragraph.''.
    (c) Title II of the Americans With Disabilities Act of 1990.--
Section 203 of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12133) is amended--
            (1) by inserting ``(a) In General.--'' before ``The''; and
            (2) by adding at the end the following:
    ``(b) Waiver of Sovereign Immunity.--
            ``(1) Waiver.--A State's receipt or use of Federal 
        financial assistance for any program or activity of a State 
        shall constitute a waiver of sovereign immunity, under the 11th 
        amendment to the Constitution or otherwise, to a suit brought 
        by any employee or person alleging a violation of this title 
        (including regulations promulgated under section 204, 229, or 
        244) or section 503, or otherwise aggrieved, by that program or 
        activity for equitable, legal, or other relief authorized by or 
        through this Act.
            ``(2) Abrogation for constitutional violation.--In addition 
        to the abrogation of sovereign immunity already accomplished by 
        section 502, a State's sovereign immunity, under the 11th 
        amendment to the Constitution or otherwise, is abrogated for 
        any suit brought by any employee or person for equitable, 
        legal, or other relief authorized by or through this Act, for 
        conduct that violates the 14th amendment (including the 
        constitutional rights incorporated in the 14th amendment) and 
        that also violates this title (including regulations 
        promulgated under section 204, 229, or 244) or section 503.
            ``(3) Definitions.--In this subsection:
                    ``(A) Program or activity.--
                            ``(i) In general.--The term `program or 
                        activity' has the meaning given the term in 
                        section 504(b) of the Rehabilitation Act of 
                        1973 (29 U.S.C. 794(b)).
                            ``(ii) Operations included.--The term 
                        includes any operation carried out, funded, or 
                        arranged by an entity described in subparagraph 
                        (A) or (B) of section 504(b)(1) of such Act (29 
                        U.S.C. 794(b)(1)) that receives Federal 
                        financial assistance, even if the entity does 
                        not use the Federal financial assistance for 
                        the operation.
                    ``(B) Recipient.--A State shall be considered to 
                receive Federal financial assistance for a program or 
                activity if the program or activity--
                            ``(i) receives the assistance from an 
                        intermediary; and
                            ``(ii) is the intended recipient under the 
                        statutory provision through which the 
                        intermediary receives the assistance.
                    ``(C) Construction.--Nothing in this paragraph 
                shall be construed to suggest that, for purposes of 
                this subsection or such section 504--
                            ``(i) the term `program or activity' would 
                        not include the operation described in 
                        subparagraph (A)(ii), in the absence of this 
                        paragraph; or
                            ``(ii) a State described in subparagraph 
                        (B) would not be considered to receive Federal 
                        financial assistance for a program or activity, 
                        in the absence of this paragraph.''.

SEC. 5. EFFECTIVE DATE.

    (a) Age Discrimination in Employment Act of 1967.--
            (1) In general.--With respect to a particular program or 
        activity, paragraphs (1) and (3) of section 7(g) of the Age 
        Discrimination in Employment Act of 1967 (29 U.S.C. 626(g)) 
        apply to conduct occurring on or after the day, after the date 
        of enactment of this Act, on which a State first receives or 
        uses Federal financial assistance for that program or activity. 
        Section 7(g)(2) of the Age Discrimination in Employment Act of 
        1967 (29 U.S.C. 626(g)(2)) applies to all civil actions pending 
        on that date of enactment or filed thereafter.
            (2) Program or activity; receives federal financial 
        assistance.--The definition and rule specified in subparagraphs 
        (A) and (B) of section 7(g)(3) of such Act (29 U.S.C. 
        626(g)(2)) shall apply for purposes of this subsection.
    (b) Americans With Disabilities Act of 1990.--
            (1) In general.--With respect to a particular program or 
        activity, paragraphs (1) and (3) of section 107(c) and 
        paragraphs (1) and (3) of section 203(b) of the Americans with 
        Disabilities Act of 1990 (42 U.S.C. 12117(c), 12133(b)) apply 
        to conduct occurring on or after the day, after the date of 
        enactment of this Act, on which a State first receives or uses 
        Federal financial assistance for that program or activity. 
        Sections 107(c)(2) and 203(b)(2) of the Americans with 
        Disabilities Act of 1990 (42 U.S.C. 12117(c)(2), 12133(b)(2)) 
        apply to all civil actions pending on that date of enactment or 
        filed thereafter.
            (2) Program or activity; receives federal financial 
        assistance.--The definition and rule specified in subparagraphs 
        (A) and (B) of section 107(c)(3) of such Act (42 U.S.C. 
        12117(c)(3)) shall apply for purposes of this subsection.
                                 <all>
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