Sec. 422. Amendment to Federal Arbitration Act. 
Sec. 423. Unenforceability of arbitration clauses in employment contracts. 
Sec. 424. Application of amendments. 
Subtitle D—Expert Witness Fees 
Sec. 431. Purpose. 
Sec. 432. Findings. 
Sec. 433. Effective provisions. 
Subtitle E—Equal Remedies Act of 2008 
Sec. 441. Short title. 
Sec. 442. Equalization of remedies. 
Subtitle F—Prohibitions Against Sex Discrimination 
Sec. 451. Findings. 
Sec. 452. Enhanced enforcement of equal pay requirements. 
Subtitle G—Protections for Workers 
CHAPTER 1—PROTECTION FOR UNDOCUMENTED WORKERS 
Sec. 461. Findings. 
Sec. 462. Continued application of backpay remedies. 
CHAPTER 2—FAIR LABOR STANDARDS ACT AMENDMENTS 
Sec. 466. Short title. 
Sec. 467. Findings. 
Sec. 468. Purposes. 
Sec. 469. Remedies for State employees. 
TITLE 
I—NONDISCRIMINATION 
IN FEDERALLY FUNDED PRO-
GRAMS AND ACTIVITIES 
Subtitle A—Private Rights of Ac-
tion and the Disparate Impact 
Standard of Proof 
SEC. 101. FINDINGS. 
Congress finds the following: 
(1) This subtitle is made necessary by a deci-
sion of the Supreme Court in Alexander v. Sandoval, 
532 U.S. 275 (2001) that significantly impairs stat-
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utory protections against discrimination that Con-
gress has erected over a period of almost 4 decades. 
The Sandoval decision undermines these statutory 
protections by stripping victims of discrimination 
(defined under regulations that Congress required 
Federal departments and agencies to promulgate to 
implement title VI of the Civil Rights Act of 1964 
(42 U.S.C. 2000d et seq.)) of the right to bring ac-
tion in Federal court to redress the discrimination. 
(2) The Sandoval decision contradicts settled 
expectations created by title VI of the Civil Rights 
Act of 1964, title IX of the Education Amendments 
of 1972 (also known as the ‘‘Patsy Takemoto Mink 
Equal Opportunity in Education Act’’) (20 U.S.C. 
1681 et seq.), the Age Discrimination Act of 1975 
(42 U.S.C. 6101 et seq.), and section 504 of the Re-
habilitation Act of 1973 (29 U.S.C. 794) (collec-
tively referred to in this Act as the ‘‘covered civil 
rights provisions’’). The covered civil rights provi-
sions were designed to establish and make effective 
the rights of persons to be free from discrimination 
on the part of entities that are subject to 1 or more 
of the covered civil rights provisions, as appropriate 
(referred to in this Act as ‘‘covered entities’’). In 
1964 Congress adopted title VI of the Civil Rights 
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Act of 1964 to ensure that Federal dollars would not 
be used to subsidize or support programs or activi-
ties that discriminated on racial, color, or national 
origin grounds. In the years that followed, Congress 
extended these protections by enacting laws barring 
discrimination in federally funded education activi-
ties on the basis of sex in title IX of the Education 
Amendments of 1972, and discrimination in feder-
ally funded activities on the basis of age in the Age 
Discrimination Act of 1975 and disability in section 
504 of the Rehabilitation Act of 1973. 
(3) All of the statutes cited in this section were 
designed to confer a benefit on persons subject to 
discrimination. As Congress has consistently recog-
nized, effective enforcement of the statutes and pro-
tection of the rights guaranteed under the statutes 
depend heavily on the efforts of private attorneys 
general. Congress acknowledged that it could not se-
cure compliance solely through administrative efforts 
and enforcement actions initiated by the Attorney 
General. Newman v. Piggie Park Enterprises, 390 
U.S. 400 (1968) (per curiam). 
(4) The Supreme Court has made it clear that 
individuals suffering discrimination under these stat-
utes have a private right of action in the Federal 
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courts, and that this is necessary for effective pro-
tection of the law, although Congress did not make 
such a right of action explicit in the statute involved. 
Cannon v. University of Chicago, 441 U.S. 677 
(1979). 
(5) Furthermore, for effective enforcement of 
the statutes cited in this section, it is necessary that 
the private right of action include a means to chal-
lenge all forms of discrimination that are prohibited 
by the statutes, including practices that have a dis-
parate impact and are not justified as necessary to 
achieve the legitimate goals of programs or activities 
supported by Federal financial assistance. 
(6) By reinstating a private right of action to 
challenge disparate impact discrimination under title 
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 
et seq.) and confirming that right for other civil 
rights statutes, Congress is not acting in a manner 
that would expose covered entities to unfair findings 
of discrimination. The legal standard for a disparate 
impact claim has never been structured so that a 
finding of discrimination could be based on numer-
ical imbalance alone. 
(7) In contrast, a failure to reinstate or confirm 
a private right of action would leave vindication of 
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the rights to equality of opportunity solely to Fed-
eral agencies. Action by Congress to specify a pri-
vate right of action is necessary to ensure that per-
sons will have a remedy if they are denied equal ac-
cess to education, housing, health, environmental 
protection, transportation, and many other programs 
and services by practices of covered entities that re-
sult in discrimination. 
(8) As a result of the Supreme Court’s decision 
in Sandoval, courts have dismissed numerous claims 
brought under the regulations promulgated pursuant 
to title VI of the Civil Rights Act of 1964 (42 
U.S.C. 2000d et seq.) that challenged actions with 
an unjustified discriminatory effect. Although the 
Sandoval Court did not address title IX of the Edu-
cation Amendments of 1972 (20 U.S.C. 1681 et 
seq.), lower courts have similarly dismissed claims 
under such title. 
(9) Section 504 of the Rehabilitation Act of 
1973 (29 U.S.C. 794) has received different treat-
ment by the Supreme Court. In Alexander v. Choate, 
469 U.S. 287 (1985), the Court proceeded on the 
assumption that the statute itself prohibited some 
actions that had a disparate impact on handicapped 
individuals—an assumption borne out by congres-
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sional statements made during passage of the Act. 
In Sandoval, the Court appeared to accept this prin-
ciple of Alexander. Moreover, the Supreme Court ex-
plicitly recognized congressional approval of the reg-
ulations promulgated to implement section 504 of 
the Rehabilitation Act of 1973 in Consolidated Rail 
Corp. v. Darrone, 465 U.S. 624, 634 (1984). Rely-
ing on the validity of the regulations, Congress in-
corporated the regulations into the statutory require-
ments of section 204 of the Americans with Disabil-
ities Act of 1990 (42 U.S.C. 12134). Thus it does 
not appear at this time that there is a risk that the 
private right of action to challenge disparate impact 
discrimination under section 504 of the Rehabilita-
tion Act of 1973 will become unavailable. 
(10) The right to maintain a private right of 
action under a provision added to a statute under 
this subtitle will be effectuated by a waiver of sov-
ereign immunity in the same manner as sovereign 
immunity is waived under the remaining provisions 
of that statute. 
SEC. 102. PROHIBITED DISCRIMINATION. 
(a) CIVIL RIGHTS ACT OF 1964.—Section 601 of the 
Civil Rights Act of 1964 (42 U.S.C. 2000d) is amended— 
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(1) by striking ‘‘No’’ and inserting ‘‘(a) No’’; 
and 
(2) by adding at the end the following: 
‘‘(b)(1)(A) Discrimination (including exclusion from 
participation and denial of benefits) based on disparate 
impact is established under this title only if— 
‘‘(i) a person aggrieved by discrimination on the 
basis of race, color, or national origin (referred to in 
this title as an ‘aggrieved person’) demonstrates that 
an entity subject to this title (referred to in this title 
as a ‘covered entity’) has a policy or practice that 
causes a disparate impact on the basis of race, color, 
or national origin and the covered entity fails to 
demonstrate that the challenged policy or practice is 
related to and necessary to achieve the nondiscrim-
inatory goals of the program or activity alleged to 
have been operated in a discriminatory manner; or 
‘‘(ii) the aggrieved person demonstrates (con-
sistent with the demonstration required under title 
VII with respect to an ‘alternative employment prac-
tice’) that a less discriminatory alternative policy or 
practice exists, and the covered entity refuses to 
adopt such alternative policy or practice. 
‘‘(B)(i) With respect to demonstrating that a par-
ticular policy or practice causes a disparate impact as de-
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scribed in subparagraph (A)(i), the aggrieved person shall 
demonstrate that each particular challenged policy or 
practice causes a disparate impact, except that if the ag-
grieved person demonstrates to the court that the elements 
of a covered entity’s decisionmaking process are not capa-
ble of separation for analysis, the decisionmaking process 
may be analyzed as 1 policy or practice. 
‘‘(ii) If the covered entity demonstrates that a specific 
policy or practice does not cause the disparate impact, the 
covered entity shall not be required to demonstrate that 
such policy or practice is necessary to achieve the goals 
of its program or activity. 
‘‘(2) A demonstration that a policy or practice is nec-
essary to achieve the goals of a program or activity may 
not be used as a defense against a claim of intentional 
discrimination under this title. 
‘‘(3) In this subsection, the term ‘demonstrates’ 
means meets the burdens of production and persuasion.’’. 
(b) EDUCATION AMENDMENTS
OF 1972.—Section 
901 of the Education Amendments of 1972 (20 U.S.C. 
1681) is amended— 
(1) by redesignating subsection (c) as sub-
section (e); and 
(2) by inserting after subsection (b) the fol-
lowing: 
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‘‘(c)(1)(A) Subject to the conditions described in 
paragraphs (1) through (9) of subsection (a), discrimina-
tion (including exclusion from participation and denial of 
benefits) based on disparate impact is established under 
this title only if— 
‘‘(i) a person aggrieved by discrimination on the 
basis of sex (referred to in this title as an ‘aggrieved 
person’) demonstrates that an entity subject to this 
title (referred to in this title as a ‘covered entity’) 
has a policy or practice that causes a disparate im-
pact on the basis of sex and the covered entity fails 
to demonstrate that the challenged policy or practice 
is related to and necessary to achieve the non-
discriminatory goals of the program or activity al-
leged to have been operated in a discriminatory 
manner; or 
‘‘(ii) the aggrieved person demonstrates (con-
sistent with the demonstration required under title 
VII of the Civil Rights Act of 1964 (42 U.S.C. 
2000e et seq.) with respect to an ‘alternative em-
ployment practice’) that a less discriminatory alter-
native policy or practice exists, and the covered enti-
ty refuses to adopt such alternative policy or prac-
tice. 
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‘‘(B)(i) With respect to demonstrating that a par-
ticular policy or practice causes a disparate impact as de-
scribed in subparagraph (A)(i), the aggrieved person shall 
demonstrate that each particular challenged policy or 
practice causes a disparate impact, except that if the ag-
grieved person demonstrates to the court that the elements 
of a covered entity’s decisionmaking process are not capa-
ble of separation for analysis, the decisionmaking process 
may be analyzed as 1 policy or practice. 
‘‘(ii) If the covered entity demonstrates that a specific 
policy or practice does not cause the disparate impact, the 
covered entity shall not be required to demonstrate that 
such policy or practice is necessary to achieve the goals 
of its program or activity. 
‘‘(2) A demonstration that a policy or practice is nec-
essary to achieve the goals of a program or activity may 
not be used as a defense against a claim of intentional 
discrimination under this title. 
‘‘(3) In this subsection, the term ‘demonstrates’ 
means meets the burdens of production and persuasion.’’. 
(c) AGE DISCRIMINATION ACT OF 1975.—Section 
303 of the Age Discrimination Act of 1975 (42 U.S.C. 
6102) is amended— 
(1) by striking ‘‘Pursuant’’ and inserting ‘‘(a) 
Pursuant’’; and 
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(2) by adding at the end the following: 
‘‘(b)(1)(A) Subject to the conditions described in sub-
sections (b) and (c) of section 304, discrimination (includ-
ing exclusion from participation and denial of benefits) 
based on disparate impact is established under this title 
only if— 
‘‘(i) a person aggrieved by discrimination on the 
basis of age (referred to in this title as an ‘aggrieved 
person’) demonstrates that an entity subject to this 
title (referred to in this title as a ‘covered entity’) 
has a policy or practice that causes a disparate im-
pact on the basis of age and the covered entity fails 
to demonstrate that the challenged policy or practice 
is related to and necessary to achieve the non-
discriminatory goals of the program or activity al-
leged to have been operated in a discriminatory 
manner; or 
‘‘(ii) the aggrieved person demonstrates (con-
sistent with the demonstration required under title 
VII of the Civil Rights Act of 1964 (42 U.S.C. 
2000e et seq.) with respect to an ‘alternative em-
ployment practice’) that a less discriminatory alter-
native policy or practice exists, and the covered enti-
ty refuses to adopt such alternative policy or prac-
tice. 
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‘‘(B)(i) With respect to demonstrating that a par-
ticular policy or practice causes a disparate impact as de-
scribed in subparagraph (A)(i), the aggrieved person shall 
demonstrate that each particular challenged policy or 
practice causes a disparate impact, except that if the ag-
grieved person demonstrates to the court that the elements 
of a covered entity’s decisionmaking process are not capa-
ble of separation for analysis, the decisionmaking process 
may be analyzed as 1 policy or practice. 
‘‘(ii) If the covered entity demonstrates that a specific 
policy or practice does not cause the disparate impact, the 
covered entity shall not be required to demonstrate that 
such policy or practice is necessary to achieve the goals 
of its program or activity. 
‘‘(2) A demonstration that a policy or practice is nec-
essary to achieve the goals of a program or activity may 
not be used as a defense against a claim of intentional 
discrimination under this title. 
‘‘(3) In this subsection, the term ‘demonstrates’ 
means meets the burdens of production and persuasion.’’. 
SEC. 103. RIGHTS OF ACTION. 
(a) CIVIL RIGHTS ACT OF 1964.—Section 602 of the 
Civil Rights Act of 1964 (42 U.S.C. 2000d–1) is amend-
ed— 
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(1) by inserting ‘‘(a)’’ before ‘‘Each Federal de-
partment and agency which is empowered’’; and 
(2) by adding at the end the following: 
‘‘(b) Any person aggrieved by the failure of a covered 
entity to comply with this title, including any regulation 
promulgated pursuant to this title, may bring a civil action 
in any Federal or State court of competent jurisdiction 
to enforce such person’s rights.’’. 
(b) EDUCATION AMENDMENTS
OF 1972.—Section 
902 of the Education Amendments of 1972 (20 U.S.C. 
1682) is amended— 
(1) by inserting ‘‘(a)’’ before ‘‘Each Federal de-
partment and agency which is empowered’’; and 
(2) by adding at the end the following: 
‘‘(b) Any person aggrieved by the failure of a covered 
entity to comply with this title, including any regulation 
promulgated pursuant to this title, may bring a civil action 
in any Federal or State court of competent jurisdiction 
to enforce such person’s rights.’’. 
(c) AGE DISCRIMINATION ACT OF 1975.—Section 
305(e) of the Age Discrimination Act of 1975 (42 U.S.C. 
6104(e)) is amended in the first sentence of paragraph 
(1), by striking ‘‘this Act’’ and inserting ‘‘this title, includ-
ing a regulation promulgated to carry out this title,’’. 
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SEC. 104. RIGHT OF RECOVERY. 
(a) CIVIL RIGHTS ACT OF 1964.—Title VI of the 
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) is 
amended by inserting after section 602 the following: 
‘‘SEC. 602A. ACTIONS BROUGHT BY AGGRIEVED PERSONS. 
‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL 
DISCRIMINATION.—In an action brought by an aggrieved 
person under this title against a covered entity who has 
engaged in unlawful intentional discrimination (not a 
practice that is unlawful because of its disparate impact) 
prohibited under this title (including its implementing reg-
ulations), the aggrieved person may recover equitable and 
legal relief (including compensatory and punitive dam-
ages), attorney’s fees (including expert fees), and costs, 
except that punitive damages are not available against a 
government, government agency, or political subdivision. 
‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT 
STANDARD OF PROOF.—In an action brought by an ag-
grieved person under this title against a covered entity 
who has engaged in unlawful discrimination based on dis-
parate impact prohibited under this title (including its im-
plementing regulations), the aggrieved person may recover 
equitable relief, attorney’s fees (including expert fees), and 
costs.’’. 
(b) EDUCATION AMENDMENTS OF 1972.—Title IX of 
the Education Amendments of 1972 (20 U.S.C. 1681 et 
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seq.) is amended by inserting after section 902 the fol-
lowing: 
‘‘SEC. 902A. ACTIONS BROUGHT BY AGGRIEVED PERSONS. 
‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL 
DISCRIMINATION.—In an action brought by an aggrieved 
person under this title against a covered entity who has 
engaged in unlawful intentional discrimination (not a 
practice that is unlawful because of its disparate impact) 
prohibited under this title (including its implementing reg-
ulations), the aggrieved person may recover equitable and 
legal relief (including compensatory and punitive dam-
ages), attorney’s fees (including expert fees), and costs, 
except that punitive damages are not available against a 
government, government agency, or political subdivision. 
‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT 
STANDARD OF PROOF.—In an action brought by an ag-
grieved person under this title against a covered entity 
who has engaged in unlawful discrimination based on dis-
parate impact prohibited under this title (including its im-
plementing regulations), the aggrieved person may recover 
equitable relief, attorney’s fees (including expert fees), and 
costs.’’. 
(c) AGE DISCRIMINATION ACT OF 1975.— 
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(1) IN GENERAL.—Section 305 of the Age Dis-
crimination Act of 1975 (42 U.S.C. 6104) is amend-
ed by adding at the end the following: 
‘‘(g)(1) In an action brought by an aggrieved person 
under this title against a covered entity who has engaged 
in unlawful intentional discrimination (not a practice that 
is unlawful because of its disparate impact) prohibited 
under this title (including its implementing regulations), 
the aggrieved person may recover equitable and legal relief 
(including compensatory and punitive damages), attor-
ney’s fees (including expert fees), and costs, except that 
punitive damages are not available against a government, 
government agency, or political subdivision. 
‘‘(2) In an action brought by an aggrieved person 
under this title against a covered entity who has engaged 
in unlawful discrimination based on disparate impact pro-
hibited under this title (including its implementing regula-
tions), the aggrieved person may recover equitable relief, 
attorney’s fees (including expert fees), and costs.’’. 
(2) CONFORMITY OF ADA WITH TITLE vi AND 
TITLE ix.— 
(A) ELIMINATING WAIVER OF RIGHT TO 
FEES IF NOT REQUESTED IN COMPLAINT.—Sec-
tion 305(e)(1) of the Age Discrimination Act of 
1975 (42 U.S.C. 6104(e)) is amended— 
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(i) by striking ‘‘to enjoin a violation’’ 
and inserting ‘‘to redress a violation’’; and 
(ii) by striking the second sentence 
and inserting the following: ‘‘The Court 
shall award the costs of suit, including a 
reasonable attorney’s fee (including expert 
fees), to the prevailing plaintiff.’’. 
(B) ELIMINATING
UNNECESSARY
MAN-
DATES: TO
EXHAUST
ADMINISTRATIVE
REM-
EDIES; AND TO DELAY SUIT LONGER THAN 180 
DAYS
TO
OBTAIN
AGENCY
REVIEW.—Section 
305(f) of the Age Discrimination Act of 1975 
(42 U.S.C. 6104(f)) is amended by striking 
‘‘With respect to actions brought for relief 
based on an alleged violation of the provisions 
of this title,’’ and inserting ‘‘Actions brought 
for relief based on an alleged violation of the 
provisions of this title may be initiated in a 
court of competent jurisdiction, pursuant to 
section 305(e), or before the relevant Federal 
department or agency. With respect to such ac-
tions brought initially before the relevant Fed-
eral department or agency,’’. 
(C) ELIMINATING DUPLICATIVE ‘‘REASON-
ABLENESS’’ REQUIREMENT; CLARIFYING THAT 
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