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. MILLENDER-
MCDONALD, 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 Mis-
sissippi, Mrs. JONES of Ohio, Mr. SERRANO, Mr. BALLANCE, Mr. WATT, 
Mr. RYAN of Ohio, Mr. BLUMENAUER, Mr. BACA, Ms. KAPTUR, Ms. WA-
TERS, 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. EMAN-
UEL, Mr. HINOJOSA, Mr. MCNULTY, Mr. PASTOR, Ms. CARSON of Indi-
ana, Mr. WYNN, Mr. BISHOP of Georgia, Ms. MAJETTE, and Mr. SCOTT 
of Georgia) introduced the following bill; which was referred to the Com-
mittee 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 consider-
ation of such provisions as fall within the jurisdiction of the committee 
concerned
A BILL 
To restore, reaffirm, and reconcile legal rights and remedies 
under civil rights statutes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Fairness and Indi-
vidual Rights Necessary to Ensure a Stronger Society: 
Civil Rights Act of 2004’’. 
SEC. 2. TABLE OF CONTENTS. 
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 Reemploy-
ment Rights Act of 1994. 
TITLE III—AIR CARRIER ACCESS ACT OF 1986 AMENDMENT 
Sec. 301. Findings. 
Sec. 302. Civil action.
TITLE IV—AGE DISCRIMINATION IN EMPLOYMENT ACT 
AMENDMENTS 
Sec. 401. Short title. 
Sec. 402. Findings. 
Sec. 403. Purposes. 
Sec. 404. Remedies for State employees. 
Sec. 405. Disparate impact claims. 
Sec. 406. Effective date. 
TITLE V—CIVIL RIGHTS REMEDIES AND RELIEF 
Subtitle A—Prevailing Party 
Sec. 501. Short title. 
Sec. 502. Definition of prevailing party. 
Subtitle B—Arbitration 
Sec. 511. Short title. 
Sec. 512. Amendment to Federal Arbitration Act. 
Sec. 513. Unenforceability of arbitration clauses in employment contracts. 
Sec. 514. Application of amendments. 
Subtitle C—Expert Witness Fees 
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 Work-
place. 
Sec. 608. Collection of pay information by the Equal Employment Opportunity 
Commission. 
Sec. 609. Authorization of appropriations. 
TITLE VII—PROTECTIONS FOR WORKERS 
Subtitle A—Protection for Undocumented Workers 
Sec. 701. Findings. 
Sec. 702. Continued application of backpay remedies. 
Subtitle B—Fair Labor Standards Act Amendments 
Sec. 711. Short title.
Sec. 712. Findings. 
Sec. 713. Purposes. 
Sec. 714. Remedies for State employees.
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-
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 
and by casting doubt on the validity of the regula-
tions themselves. 
(2) The Sandoval decision attacks settled expec-
tations 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 
Rehabilitation 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 
Act of 1964 to ensure that Federal dollars would 
not be used to subsidize or support programs or ac-
tivities that discriminated on racial, color, or na-
tional origin grounds. In the years that followed, 
Congress extended these protections by enacting 
laws barring discrimination in federally funded ac-
tivities on the basis of sex in title IX of the Edu-
cation Amendments of 1972, age in the Age Dis-
crimination Act of 1975, and disability in section 
504 of the Rehabilitation Act of 1973.
(3) From the outset, Congress and the execu-
tive branch made clear that the regulatory process 
would be used to ensure broad protections for bene-
ficiaries of the law. The first regulations promul-
gated by the Department of Justice under title VI 
of the Civil Rights Act of 1964 (42 U.S.C. 2000d 
et seq.) forbade the use of ‘‘criteria or methods of 
administration which have the effect of subjecting 
individuals to discrimination . . .’’ (section 80.3 of 
title 45, Code of Federal Regulations) and prohib-
ited retaliation against persons participating in liti-
gation or administrative resolution of charges of dis-
crimination brought under the Act. These regula-
tions were drafted by the same executive branch offi-
cials who played a central role in drafting title VI 
of the Civil Rights Act of 1964. The language used 
is, in relevant respects, virtually indistinguishable 
from regulations under the several Acts in effect 
today. For example, section 304 of the Age Dis-
crimination Act of 1975 (42 U.S.C. 6103) required 
the Secretary of the Department of Health, Edu-
cation, and Welfare (HEW) (now Health and 
Human Services (HHS)) to promulgate ‘‘general 
regulations’’ to effectuate the purposes of the Act. 
These ‘‘government-wide regulations,’’ governing age
discrimination in programs and activities receiving 
Federal financial assistance condemn ‘‘any actions 
which have [a discriminatory] effect, on the basis of 
age . . .’’ (section 90.12 of title 45, Code of Federal 
Regulations). 
(4) None of the regulations under the laws ad-
dressed in this subtitle have ever been invalidated. 
In 1966, Congress considered and rejected a pro-
posal to invalidate the disparate impact regulations 
promulgated pursuant to title VI of the Civil Rights 
Act of 1964 (42 U.S.C. 2000d et seq.). In 1975, 
Congress reviewed and maintained the implementing 
regulations promulgated pursuant to title IX of the 
Education Amendments of 1972 (20 U.S.C. 1681 et 
seq.), pursuant to a statutory procedure designed to 
afford Congress the opportunity to invalidate provi-
sions deemed to be inconsistent with congressional 
intent. The Supreme Court has recognized that 
Congress’s failure to disapprove regulations implies 
that the regulations accurately reflect congressional 
intent. North Haven Bd. of Educ. v. Bell, 456 U.S. 
512, 533–34 (1982). Moreover, the Supreme Court 
explicitly recognized congressional approval of the 
regulations promulgated to implement section 504 of 
the Rehabilitation Act of 1973 (29 U.S.C. 794) in
Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 
634 (1984), stating that ‘‘[t]he regulations particu-
larly merit deference in the present case: the respon-
sible Congressional committees participated in their 
formation and both these committees and Congress 
itself endorsed the regulations in their final form.’’. 
(5) All of the civil rights provisions cited in this 
section were designed to confer a benefit on persons 
who were discriminated against. They relied heavily 
on private attorneys general for effective enforce-
ment. Congress acknowledged that it could not se-
cure compliance solely through enforcement actions 
initiated by the Attorney General. Newman v. Piggie 
Park Enterprises, 390 U.S. 400 (1968) (per cu-
riam). 
(6) The Supreme Court has made it clear that 
individuals suffering discrimination under these stat-
utes have a private right of action in the Federal 
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. Cannon 
v. University of Chicago, 441 U.S. 677 (1979). 
(7)(A) Notwithstanding the decision of the Su-
preme Court in Cort v. Ash, 422 U.S. 66 (1975) to 
abandon prior precedent and require explicit statu-
tory statements of a right of action, Congress and 
the Courts both before and after Cort have recog-
nized an implied right of action under the above 
statutes. For example, Congress has consistently 
provided the means for enforcing the statutes. In 
1972, Congress established a right to attorney’s fees 
in private actions brought under title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d et seq.) and 
title IX of the Education Amendments of 1972 (20 
U.S.C. 1681 et seq.) that continued with enactment 
of the Civil Rights Attorneys’ Fees Awards Act of 
1976 (Public Law 94–559; 90 Stat. 2641). In 1973, 
Congress provided a right to attorney’s fees for pre-
vailing parties under section 504 of the Rehabilita-
tion Act of 1973 (29 U.S.C. 794) without expressly 
stating that there was a right of action. In 1978 
Congress amended the Age Discrimination Act of 
1975 (42 U.S.C. 6101 et seq.) to include a right 
to attorney’s fees. Because the Age Discrimination 
Act of 1975 was enacted while the Cort decision was 
pending, Congress also enacted in 1978 a limited 
private right of action to enforce the Age Discrimi-
nation Act of 1975. 
(B) The Senate Report that accompanied the 
Civil Rights Attorneys’ Fees Awards Act of 1976
(Public Law 94–559; 90 Stat. 2641) stated that 
‘‘All of these civil rights laws . . . depend heavily 
upon private enforcement, and fee awards have 
proved an essential remedy if private citizens are to 
have a meaningful opportunity to vindicate the im-
portant congressional policies which these laws con-
tain.’’ S. Rep. No. 94–1011 (1976). 
(8) The Supreme Court had no basis in law or 
in legislative history in Sandoval for denying a right 
of action under regulations promulgated pursuant to 
title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d et seq.) while permitting it under the statute. 
The regulations were congressionally mandated and 
their promulgation was specifically directed by Con-
gress under section 602 of that Act (42 U.S.C. 
2000d–1) ‘‘to effectuate’’ the antidiscrimination pro-
visions of the statute. Title VI of the Civil Rights 
Act of 1964 stressed the importance of the regula-
tions by requiring them to be ‘‘approved by the 
President’’. Similarly, the regulations promulgated 
pursuant to title IX of the Education Amendments 
of 1972 (20 U.S.C. 1681 et seq.) were also congres-
sionally authorized and specifically directed by Con-
gress to effectuate the provisions of the statute. 
Title IX of the Education Amendments of 1972
stressed the importance of the regulations by requir-
ing them to be ‘‘approved by the President’’. 
(9) Regulations that prohibit practices that 
have the effect of discrimination are consistent with 
prohibitions of disparate treatment that require a 
showing of intent, as the Supreme Court has ac-
knowledged in the following decisions: 
(A) A disparate impact standard allows a 
court to reach discrimination that could actu-
ally exist under the guise of compliance with 
the law. Griggs v. Duke Power Co., 401 U.S. 
424 (1971). 
(B) Evidence of a disproportionate burden 
will often be the starting point in any analysis 
of unlawful discrimination. Village of Arlington 
Heights v. Metropolitan Hous. Dev. Corp., 429 
U.S. 252 (1977). 
(C) An invidious purpose may often be in-
ferred from the totality of the relevant facts, in-
cluding, where true, that the practice bears 
more heavily on one race than another. Wash-
ington v. Davis, 426 U.S. 229 (1976). 
(D) The disparate impact method of proof 
is critical to ferreting out stereotypes under-
lying intentional discrimination. Watson v. Fort 
Worth Bank & Trust, 487 U.S. 977 (1988). 
(10) The interpretation of title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d et seq.), title 
IX of the Education Amendments of 1972 (20 
U.S.C. 1681 et seq.), and other statutes barring dis-
crimination by covered entities as prohibiting prac-
tices that have disparate impact and that are not 
justified as necessary to achieve the goals of the pro-
grams or activities supported by the Federal finan-
cial assistance is powerfully reinforced by the use of 
such a standard in enforcing title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.). When 
the Supreme Court wavered on the application of a 
disparate impact standard under title VII, Congress 
specifically reinstated it as law in the Civil Rights 
Act of 1991 (Public Law 102–166; 105 Stat. 1071). 
(11) By reinstating a private right of action 
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 un-
fair findings of discrimination. The legal standard 
for a disparate impact claim has never been struc-
tured so that a finding of discrimination could be 
based on numerical imbalance alone. 
(12) In contrast, a failure to reinstate or con-
firm a private right of action would leave vindication 
of the rights to equality of opportunity solely to Fed-
eral agencies, which may fail to take necessary and 
appropriate action because of administrative over-
burden or other reasons. Action by Congress to 
specify a private right of action is necessary to en-
sure that persons will have a remedy if they are de-
nied equal access to education, housing, health, envi-
ronmental protection, transportation, and many 
other programs and services by practices of covered 
entities that result in discrimination. 
(13) As a result of the Supreme Court’s deci-
sion 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 
Education Amendments of 1972 (20 U.S.C. 1681 et 
seq.), lower courts have similarly dismissed claims 
under such Act. Courts relying on the Sandoval deci-
sion have also dismissed claims seeking redress for
unlawful retaliation against persons who opposed 
prohibited acts, brought actions, or participated in 
actions, under title VI of the Civil Rights Act of 
1964 and title IX of the Education Amendments of 
1972. Because judicial interpretation of the Age 
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) 
has tracked that of title VI of the Civil Rights Act 
of 1964 and title IX of the Education Amendments 
of 1972, without clarification of Sandoval, plaintiffs 
run the risk that courts may dismiss claims brought 
under regulations promulgated pursuant to the Age 
Discrimination Act of 1975 challenging actions with 
an unjustified discriminatory effect and claims seek-
ing redress for unlawful retaliation against persons 
who have brought or participated in actions under 
the Age Discrimination Act of 1975. 
(14) 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-
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. 
(15) Since the enactment of title VI of the Civil 
Rights Act of 1964, title IX of the Education 
Amendments of 1972, the Age Discrimination Act of 
1975, and section 504 of the Rehabilitation Act of 
1973, Congress has intended that the prohibitions 
on discrimination in those provisions include a prohi-
bition on retaliation. The ability to prevent retalia-
tion against persons who oppose any policy or prac-
tice prohibited by those provisions, or make a 
charge, testify, assist, or participate in any manner 
in an investigation, proceeding, or hearing under
‘‘(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) No person in the United States shall be sub-
jected to discrimination, including retaliation, because 
such person opposed any policy or practice prohibited by 
this title, or because such person made a charge, testified, 
assisted, or participated in any manner in an investiga-
tion, proceeding, or hearing under this title.’’. 
(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: 
‘‘(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. 
‘‘(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 one 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. 
‘‘(d) No person in the United States shall be sub-
jected to discrimination, including retaliation, because 
such person opposed any policy or practice prohibited by 
this title, or because such person made a charge, testified, 
assisted, or participated in any manner in an investiga-
tion, proceeding, or hearing under this title.’’. 
(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
(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.
‘‘(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 one 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) No person in the United States shall be sub-
jected to discrimination, including retaliation, because 
such person opposed any policy or practice prohibited by 
this title, or because such person made a charge, testified,
assisted, or participated in any manner in an investiga-
tion, proceeding, or hearing under this title.’’. 
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—
(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,’’.
SEC. 104. RIGHT OF RECOVERY. 
(a) CIVIL RIGHTS ACT OF 1964.—Title VI of the 
Civil Rights Act of 1964 (42 U.S.C. 2000–d 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 
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.—
(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—
(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 
‘‘REASONABLE FACTORS OTHER THAN AGE’’ IS 
DEFENSE TO A DISPARATE IMPACT CLAIM, NOT 
AN
EXCEPTION
TO
ADA
COVERAGE.—Section 
304(b)(1) of the Age Discrimination Act of 
1975 (42 U.S.C. 6103(b)(1)) is amended by 
striking ‘‘involved—’’ and all that follows 
through the period and inserting ‘‘involved such 
action reasonably takes into account age as a 
factor necessary to the normal operation or the 
achievement of any statutory objective of such 
program or activity.’’. 
(d) REHABILITATION ACT OF 1973.—Section 504 of 
the Rehabilitation Act of 1973 (29 U.S.C. 794) is amend-
ed by adding at the end the following: 
‘‘(e)(1) In an action brought by a person aggrieved 
by discrimination on the basis of disability (referred to in 
this section as an ‘aggrieved person’) under this section 
against an entity subject to this section (referred to in 
this section as a ‘covered entity’) who has engaged in un-
lawful intentional discrimination (not a practice that is 
unlawful because of its disparate impact) prohibited under
this section (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 section against a covered entity who has en-
gaged in unlawful discrimination based on disparate im-
pact prohibited under this section (including its imple-
menting regulations), the aggrieved person may recover 
equitable relief, attorney’s fees (including expert fees), and 
costs.’’. 
SEC. 105. CONSTRUCTION. 
(a) RELIEF.—Nothing in this subtitle, including any 
amendment made by this subtitle, shall be construed to 
limit the scope of, or the relief available under, section 
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), 
the Americans with Disabilities Act of 1990 (42 U.S.C. 
12101 et seq.), or any other provision of law. 
(b) DEFENDANTS.—Nothing in this subtitle, includ-
ing any amendment made by this subtitle, shall be con-
strued to limit the scope of the class of persons who may 
be subjected to civil actions under the covered civil rights 
provisions.
SEC. 106. EFFECTIVE DATE. 
(a) IN GENERAL.—This subtitle, and the amend-
ments made by this subtitle, are retroactive to April 24, 
2001, and effective as of that date. 
(b) APPLICATION.—This subtitle, and the amend-
ments made by this subtitle, apply to all actions or pro-
ceedings pending on or after April 24, 2001, except as 
to an action against a State on a claim brought under 
the disparate impact standard, as to which the effective 
date is the date of enactment of this Act. 
Subtitle B—Harassment 
SEC. 111. FINDINGS. 
Congress finds the following: 
(1) As the Supreme Court has held, covered en-
tities are liable for harassment on the basis of sex 
under their education programs and activities under 
title IX of the Education Amendments of 1972 (20 
U.S.C. 1681 et seq.) (referred to in this subtitle as 
‘‘title IX’’). Franklin v. Gwinnett County Public 
Schools, 503 U.S. 60, 75 (1992) (damages remedy 
available for harassment of student by a teacher 
coach); Davis v. Monroe County Board of Edu-
cation, 526 U.S. 629, 633 (1999) (authorizing dam-
ages action against school board for student-on-stu-
dent sexual harassment).
(2) Courts have confirmed that covered entities 
are liable for harassment on the basis of race, color, 
or national origin under title VI of the Civil Rights 
Act of 1964 (42 U.S.C. 2000d et seq.) (referred to 
in this subtitle as ‘‘title VI’’), e.g., Bryant v. Inde-
pendent School District No. I–38, 334 F.3d 928 
(10th Cir. 2003) (liability for student-on-student ra-
cial harassment). Moreover, judicial interpretation of 
the similarly worded 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) has 
tracked that of title VI and title IX. 
(3) As these courts have properly recognized, 
harassment on a prohibited basis under a program 
or activity, whether perpetrated by employees or 
agents of the program or activity, by peers of the 
victim, or by others who conduct harassment under 
the program or activity, is a form of unlawful and 
intentional discrimination that inflicts substantial 
harm on beneficiaries of the program or activity and 
violates the obligation of a covered entity to main-
tain a nondiscriminatory environment. 
(4) In a 5 to 4 ruling, the Supreme Court held 
that students subjected to sexual harassment may 
receive a damages remedy under title IX only when
school officials have ‘‘actual notice’’ of the harass-
ment and are ‘‘deliberately indifferent’’ to it. Gebser 
v. Lago Vista Independent School District, 524 U.S. 
274 (1998). See also Davis v. Monroe County Board 
of Education, 526 U.S. 629 (1999). 
(5) The standard delineated in Gebser and fol-
lowed in Davis has been applied by lower courts re-
garding the liability of covered entities for damages 
for harassment based on race, color, or national ori-
gin under title VI. E.g., Bryant v. Independent 
School District No. I–38, 334 F.3d 928 (10th Cir. 
2003). Because of the similarities in the wording 
and interpretation of the underlying statutes, this 
standard may be applied to claims for damages 
brought under 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) as well. 
(6) Although they do not affect the relevant 
standards for individuals to obtain injunctive and 
equitable relief for harassment on the basis of race, 
color, sex, national origin, age, or disability under 
covered programs and activities, Gebser and its 
progeny severely limit the availability of remedies for 
such individuals by imposing new, more stringent 
standards for recovery of damages under title VI
and title IX, and potentially under the Age Discrimi-
nation Act of 1975 and section 504 of the Rehabili-
tation Act of 1973. Yet in many cases, damages are 
the only remedy that would effectively rectify past 
harassment. 
(7) As recognized by the dissenters in Gebser, 
these limitations on effective relief thwart Congress’s 
underlying purpose to protect students from harass-
ment. By making the ‘‘policy choice’’ to ‘‘rank[] pro-
tection of the school district’s purse above the pro-
tection of immature high school students’’, the 
Gebser case ‘‘is not faithful to the intent of the pol-
icymaking branch of our Government’’. Gebser, 524 
U.S. at 306 (Stevens, J., dissenting). 
(8) The rulings in Gebser and its progeny cre-
ate an incentive for covered entities to insulate 
themselves from knowledge of harassment on the 
basis of race, color, sex, national origin, age, or dis-
ability rather than adopting and enforcing practices 
that will minimize the danger of such harassment. 
The rulings thus undermine the purpose of prohibi-
tions on discrimination in the civil rights laws: ‘‘to 
induce [covered programs or activities] to adopt and 
enforce practices that will minimize the danger that 
vulnerable students [or other beneficiaries] will be
exposed to such odious behavior’’. Gebser, 524 U.S. 
at 300 (Stevens, J., dissenting). 
(9) The Gebser ruling contravened the interpre-
tations of title VI and title IX by the Department 
of Education, which interpretations recognized liabil-
ity for damages for harassment based on race, color, 
sex, or national origin based on agency principles. 
Sexual Harassment Guidance: Harassment of Stu-
dents by School Employees, Other Students, or 
Third Parties, 62 Fed. Reg. 12034 (March 13, 
1997); Racial Incidents and Harassment Against 
Students at Educational Institutions: Investigative 
Guidance, 59 Fed. Reg. 11448 (March 10, 1994). 
(10) Legislative action is necessary and appro-
priate to reverse Gebser and its progeny and restore 
the availability of a full range of remedies for har-
assment based on race, color, sex, national origin, 
age, or disability. The Gebser majority itself invited 
Congress to ‘‘speak directly on the subject’’ of dam-
ages liability to provide additional guidance to the 
courts. 524 U.S. at 292. 
(11) Restoring the availability of a full range of 
remedies for harassment will—
(A) ensure that students and other bene-
ficiaries of federally funded programs and ac-
tivities have protection from harassment on the 
basis of race, color, sex, national origin, age, or 
disability that is comparable in strength and ef-
fectiveness to that available to employees under 
title VII of the Civil Rights Act of 1964 (42 
U.S.C. 2000e et seq.), the Age Discrimination 
in Employment Act of 1967 (29 U.S.C. 621 et 
seq.), and title I of the Americans with Disabil-
ities Act of 1990 (42 U.S.C. 12111 et seq.); 
(B) encourage covered entities to adopt 
and enforce meaningful policies and procedures 
to prevent and remedy harassment; 
(C) deter incidents of harassment; and 
(D) provide appropriate remedies for dis-
crimination. 
(12) Congress has the same affirmative powers 
to enact legislation restoring the availability of a full 
range of remedies for harassment as it did to enact 
the underlying statutory prohibitions on harassment, 
including powers under section 5 of the 14th amend-
ment and section 8 of article I of the Constitution. 
(13) 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. 112. RIGHT OF RECOVERY. 
(a) CIVIL RIGHTS ACT OF 1964.—Section 602A of 
the Civil Rights Act of 1964, as added by section 104, 
is amended by adding at the end the following: 
‘‘(c) CLAIMS BASED ON HARASSMENT.—
‘‘(1) RIGHT
OF
RECOVERY.—In an action 
brought against a covered entity by (including on be-
half of) an aggrieved person who has been subjected 
to unlawful harassment under a program or activity, 
the aggrieved person may recover equitable and legal 
relief (including compensatory and punitive damages 
subject to the provisions of paragraph (2)), attor-
ney’s fees (including expert fees), and costs. 
‘‘(2) AVAILABILITY OF DAMAGES.—
‘‘(A) TANGIBLE ACTION BY AGENT OR EM-
PLOYEE.—If an agent or employee of a covered 
entity engages in unlawful harassment under a 
program or activity that results in a tangible 
action to the aggrieved person, damages shall 
be available against the covered entity. 
‘‘(B) NO TANGIBLE ACTION BY AGENT OR 
EMPLOYEE.—If an agent or employee of a cov-
ered entity engages in unlawful harassment
under a program or activity that results in no 
tangible action to the aggrieved person, no 
damages shall be available against the covered 
entity if it can demonstrate that—
‘‘(i) it exercised reasonable care to 
prevent and correct promptly any harass-
ment based on race, color, or national ori-
gin; and 
‘‘(ii) the aggrieved person unreason-
ably failed to take advantage of preventive 
or corrective opportunities offered by the 
covered entity that—
‘‘(I) would likely have provided 
redress and avoided the harm de-
scribed by the aggrieved person; and 
‘‘(II) would not have exposed the 
aggrieved person to undue risk, effort, 
or expense. 
‘‘(C) HARASSMENT BY THIRD PARTY.—If a 
person who is not an agent or employee of a 
covered entity subjects an aggrieved person to 
unlawful harassment under a program or activ-
ity, and the covered entity involved knew or 
should have known of the harassment, no dam-
ages shall be available against the covered enti-
ty if it can demonstrate that it exercised rea-
sonable care to prevent and correct promptly 
any harassment based on race, color, or na-
tional origin. 
‘‘(D) DEMONSTRATION.—For purposes of 
subparagraphs (B) and (C), a showing that the 
covered entity has exercised reasonable care to 
prevent and correct promptly any harassment 
based on race, color, or national origin includes 
a demonstration by the covered entity that it 
has—
‘‘(i) established, adequately publicized, 
and enforced an effective, comprehensive, 
harassment prevention policy and com-
plaint procedure that is likely to provide 
redress and avoid harm without exposing 
the person subjected to the harassment to 
undue risk, effort, or expense; 
‘‘(ii) undertaken prompt, thorough, 
and impartial investigations pursuant to 
its complaint procedure; and 
‘‘(iii) taken immediate and appro-
priate corrective action designed to stop 
harassment that has occurred, correct its
effects on the aggrieved person and ensure 
that the harassment does not recur. 
‘‘(E) PUNITIVE DAMAGES.—Punitive dam-
ages shall not be available under this subsection 
against a government, government agency, or 
political subdivision. 
‘‘(3) DEFINITIONS.—As used in this subsection: 
‘‘(A) DEMONSTRATES.—The term ‘dem-
onstrates’ means meets the burdens of produc-
tion and persuasion. 
‘‘(B) TANGIBLE ACTION.—The term ‘tan-
gible action’ means—
‘‘(i) a significant adverse change in an 
individual’s status caused by an agent or 
employee of a covered entity with regard to 
the individual’s participation in, access to, 
or enjoyment of, the benefits of a program 
or activity; or 
‘‘(ii) an explicit or implicit condition 
by an agent or employee of a covered enti-
ty on an individual’s participation in, ac-
cess to, or enjoyment of, the benefits of a 
program or activity based on the individ-
ual’s submission to the harassment.
‘‘(C) UNLAWFUL HARASSMENT.—The term 
‘unlawful harassment’ means harassment that 
is unlawful under this title.’’. 
(b) EDUCATION AMENDMENTS
OF 1972.—Section 
902A of the Civil Rights Act of 1964, as added by section 
104, is amended by adding at the end the following: 
‘‘(c) CLAIMS BASED ON HARASSMENT.—
‘‘(1) RIGHT
OF
RECOVERY.—In an action 
brought against a covered entity by (including on be-
half of) aggrieved person who has been subjected to 
unlawful harassment under a program or activity, 
the aggrieved person may recover equitable and legal 
relief (including compensatory and punitive damages 
subject to the provisions of paragraph (2)), attor-
ney’s fees (including expert fees), and costs. 
‘‘(2) AVAILABILITY OF DAMAGES.—
‘‘(A) TANGIBLE ACTION BY AGENT OR EM-
PLOYEE.—If an agent or employee of a covered 
entity engages in unlawful harassment under a 
program or activity that results in a tangible 
action to the aggrieved person, damages shall 
be available against the covered entity. 
‘‘(B) NO TANGIBLE ACTION BY AGENT OR 
EMPLOYEE.—If an agent or employee of a cov-
ered entity engages in unlawful harassment
under a program or activity that results in no 
tangible action to the aggrieved person, no 
damages shall be available against the covered 
entity if it can demonstrate that—
‘‘(i) it exercised reasonable care to 
prevent and correct promptly any harass-
ment based on sex; and 
‘‘(ii) the aggrieved person unreason-
ably failed to take advantage of preventive 
or corrective opportunities offered by the 
covered entity that—
‘‘(I) would likely have provided 
redress and avoided the harm de-
scribed by the aggrieved person; and 
‘‘(II) would not have exposed the 
aggrieved person to undue risk, effort, 
or expense. 
‘‘(C) HARASSMENT BY THIRD PARTY.—If a 
person who is not an agent or employee of a 
covered entity subjects an aggrieved person to 
unlawful harassment under a program or activ-
ity, and the covered entity knew or should have 
known of the harassment, no damages shall be 
available against the covered entity if it can 
demonstrate that it exercised reasonable care to
prevent and correct promptly any harassment 
based on sex. 
‘‘(D) DEMONSTRATION.—For purposes of 
subparagraphs (B) and (C), a showing that the 
covered entity has exercised reasonable care to 
prevent and correct promptly any harassment 
based on sex includes a demonstration by the 
covered entity that it has—
‘‘(i) established, adequately publicized, 
and enforced an effective, comprehensive, 
harassment prevention policy and com-
plaint procedure that is likely to provide 
redress and avoid harm without exposing 
the person subjected to the harassment to 
undue risk, effort, or expense; 
‘‘(ii) undertaken prompt, thorough, 
and impartial investigations pursuant to 
its complaint procedure; and 
‘‘(iii) taken immediate and appro-
priate corrective action designed to stop 
harassment that has occurred, correct its 
effects on the aggrieved person, and ensure 
that the harassment does not recur. 
‘‘(E) PUNITIVE DAMAGES.—Punitive dam-
ages shall not be available under this subsection
against a government, government agency, or 
political subdivision. 
‘‘(3) DEFINITIONS.—As used in this subsection: 
‘‘(A) DEMONSTRATES.—The term ‘dem-
onstrates’ means meets the burdens of produc-
tion and persuasion. 
‘‘(B) TANGIBLE ACTION.—The term ‘tan-
gible action’ means—
‘‘(i) a significant adverse change in an 
individual’s status caused by an agent or 
employee of a covered entity with regard to 
the individual’s participation in, access to, 
or enjoyment of, the benefits of a program 
or activity; or 
‘‘(ii) an explicit or implicit condition 
by an agent or employee of a covered enti-
ty on an individual’s participation in, ac-
cess to, or enjoyment of, the benefits of a 
program or activity based on the individ-
ual’s submission to the harassment. 
‘‘(C) UNLAWFUL HARASSMENT.—The term 
‘unlawful harassment’ means harassment that 
is unlawful under this title.’’. 
(c) AGE DISCRIMINATION ACT OF 1975.—Section 
305(g) of the Age Discrimination Act of 1975, as added
by section 104, is amended by adding at the end the fol-
lowing: 
‘‘(3)(A) If an action brought against a covered entity 
by (including on behalf of) an aggrieved person who has 
been subjected to unlawful harassment under a program 
or activity, the aggrieved person may recover equitable and 
legal relief (including compensatory and punitive damages 
subject to the provisions of subparagraph (B)), attorney’s 
fees (including expert fees), and costs. 
‘‘(B)(i) If an agent or employee of a covered entity 
engages in unlawful harassment under a program or activ-
ity that results in a tangible action to the aggrieved per-
son, damages shall be available against the covered entity. 
‘‘(ii) If an agent or employee of a covered entity en-
gages in unlawful harassment under a program or activity 
that results in no tangible action to the aggrieved person, 
no damages shall be available against the covered entity 
if it can demonstrate that—
‘‘(I) it exercised reasonable care to prevent and 
correct promptly any harassment based on age; and 
‘‘(II) the aggrieved person unreasonably failed 
to take advantage of preventive or corrective oppor-
tunities offered by the covered entity that—
‘‘(aa) would likely have provided redress 
and avoided the harm described by the ag-
grieved person; and 
‘‘(bb) would not have exposed the ag-
grieved person to undue risk, effort, or expense. 
‘‘(iii) If a person who is not an agent or employee 
of a covered entity subjects an aggrieved person to unlaw-
ful harassment under a program or activity, and the cov-
ered entity knew or should have known of the harassment, 
no damages shall be available against the covered entity 
if it can demonstrate that it exercised reasonable care to 
prevent and correct promptly any harassment based on 
age. 
‘‘(iv) For purposes of clauses (ii) and (iii), a showing 
that the covered entity has exercised reasonable care to 
prevent and correct promptly any harassment based on 
age includes a demonstration by the covered entity that 
it has—
‘‘(I) established, adequately publicized, and en-
forced an effective, comprehensive, harassment pre-
vention policy and complaint procedure that is likely 
to provide redress and avoid harm without exposing 
the person subjected to the harassment to undue 
risk, effort, or expense;
‘‘(II) undertaken prompt, thorough, and impar-
tial investigations pursuant to its complaint proce-
dure; and 
‘‘(III) taken immediate and appropriate correc-
tive action designed to stop harassment that has oc-
curred, correct its effects on the aggrieved person, 
and ensure that the harassment does not recur. 
‘‘(v) Punitive damages shall not be available under 
this paragraph against a government, government agency, 
or political subdivision. 
‘‘(C) As used in this paragraph: 
‘‘(i) The term ‘demonstrates’ means meets the 
burdens of production and persuasion. 
‘‘(ii) The term ‘tangible action’ means—
‘‘(I) a significant adverse change in an in-
dividual’s status caused by an agent or em-
ployee of a covered entity with regard to the in-
dividual’s participation in, access to, or enjoy-
ment of, the benefits of a program or activity; 
or 
‘‘(II) an explicit or implicit condition by an 
agent or employee of a covered entity on an in-
dividual’s participation in, access to, or enjoy-
ment of, the benefits of a program or activity
based on the individual’s submission to the har-
assment. 
‘‘(iii) The term ‘unlawful harassment’ means 
harassment that is unlawful under this title.’’. 
(d) REHABILITATION ACT OF 1973.—Section 504(e) 
of the Rehabilitation Act of 1973, as added by section 104, 
is amended by adding at the end the following: 
‘‘(3)(A) In an action brought against a covered entity 
by (including on behalf of) an aggrieved person who has 
been subjected to unlawful harassment under a program 
or activity, the aggrieved person may recover equitable and 
legal relief (including compensatory and punitive damages 
subject to the provisions of subparagraph (B)), attorney’s 
fees (including expert fees), and costs. 
‘‘(B)(i) If an agent or employee of a covered entity 
engages in unlawful harassment under a program or activ-
ity that results in a tangible action to the aggrieved per-
son, damages shall be available against the covered entity. 
‘‘(ii) If an agent or employee of a covered entity en-
gages in unlawful harassment under a program or activity 
that results in no tangible action to the aggrieved person, 
no damages shall be available against the covered entity 
if it can demonstrate that—
‘‘(I) it exercised reasonable care to prevent and 
correct promptly any harassment based on disability; 
and 
‘‘(II) the aggrieved person unreasonably failed 
to take advantage of preventive or corrective oppor-
tunities offered by the covered entity that—
‘‘(aa) would likely have provided redress 
and avoided the harm described by the ag-
grieved person; and 
‘‘(bb) would not have exposed the ag-
grieved person to undue risk, effort, or expense. 
‘‘(iii) If a person who is not an agent or employee 
of a covered entity subjects an aggrieved person to unlaw-
ful harassment under a program or activity, and the cov-
ered entity knew or should have known of the harassment, 
no damages shall be available against the covered entity 
if it can demonstrate that it exercised reasonable care to 
prevent and correct promptly any harassment based on 
disability. 
‘‘(iv) For purposes of clauses (ii) and (iii), a showing 
that the covered entity has exercised reasonable care to 
prevent and correct promptly any harassment based on 
disability includes a demonstration by the covered entity 
that it has—
‘‘(I) established, adequately publicized, and en-
forced an effective, comprehensive, harassment pre-
vention policy and complaint procedure that is likely 
to provide redress and avoid harm without exposing 
the person subjected to the harassment to undue 
risk, effort, or expense; 
‘‘(II) undertaken prompt, thorough, and impar-
tial investigations pursuant to its complaint proce-
dure; and 
‘‘(III) taken immediate and appropriate correc-
tive action designed to stop harassment that has oc-
curred, correct its effects on the aggrieved person, 
and ensure that the harassment does not recur. 
‘‘(v) Punitive damages shall not be available under 
this paragraph against a government, government agency, 
or political subdivision. 
‘‘(C) As used in this paragraph: 
‘‘(i) The term ‘demonstrates’ means meets the 
burdens of production and persuasion. 
‘‘(ii) The term ‘tangible action’ means—
‘‘(I) a significant adverse change in an in-
dividual’s status caused by an agent or em-
ployee of a covered entity with regard to the in-
dividual’s participation in, access to, or enjoy-
ment of, the benefits of a program or activity; 
or 
‘‘(II) an explicit or implicit condition by an 
agent or employee of a covered entity on an in-
dividual’s participation in, access to, or enjoy-
ment of, the benefits of a program or activity 
based on the individual’s submission to the har-
assment. 
‘‘(iii) The term ‘unlawful harassment’ means 
harassment that is unlawful under this section.’’. 
SEC. 113. CONSTRUCTION. 
Nothing in this subtitle, including any amendment 
made by this subtitle, shall be construed to limit the scope 
of the class of persons who may be subjected to civil ac-
tions under the covered civil rights provisions. 
SEC. 114. EFFECTIVE DATE. 
(a) IN GENERAL.—This subtitle, and the amend-
ments made by this subtitle, are retroactive to June 22, 
1998, and effective as of that date. 
(b) APPLICATION.—This subtitle, and the amend-
ments made by this subtitle, apply to all actions or pro-
ceedings pending on or after June 22, 1998, except as to 
an action against a State, as to which the effective date 
is the date of enactment of this Act.
TITLE II—UNIFORMED SERVICES 
EMPLOYMENT 
AND 
REEM-
PLOYMENT RIGHTS ACT OF 
1994 AMENDMENT
SEC. 201. AMENDMENT TO THE UNIFORMED SERVICES EM-
PLOYMENT AND REEMPLOYMENT RIGHTS 
ACT OF 1994. 
(a) FINDINGS.—Congress makes the following find-
ings: 
(1) The Federal Government has an important 
interest in attracting and training a military to pro-
vide for the National defense. The Constitution 
grants Congress the power to raise and support an 
army for purposes of the common defense. The Na-
tion’s military readiness requires that all members of 
the Armed Forces, including those employed in State 
programs and activities, be able to serve without 
jeopardizing their civilian employment opportunities. 
(2) The Uniformed Services Employment and 
Reemployment Rights Act of 1994, commonly re-
ferred to as ‘‘USERRA’’ and codified as chapter 43 
of title 38, United States Code, is intended to safe-
guard the reemployment rights of members of the 
uniformed services (as that term is defined in sec-
tion 4303(16) of title 38, United States Code) and
to prevent discrimination against any person who is 
a member of, applies to be a member of, performs, 
has performed, applies to perform, or has an obliga-
tion to perform service in a uniformed service. Effec-
tive enforcement of the Act depends on the ability of 
private individuals to enforce its provisions in court. 
(3) In Seminole Tribe of Florida v. Florida, 
517 U.S. 44 (1996), the Supreme Court held that 
congressional legislation enacted pursuant to the 
commerce clause of article I, section 8, of the Con-
stitution cannot abrogate the immunity of States 
under the 11th amendment to the Constitution. 
Some courts have interpreted Seminole Tribe of 
Florida v. Florida as a basis for denying relief to 
persons affected by a State violation of USERRA. 
In addition, in Alden v. Maine 527 U.S. 706, 712 
(1999), the Supreme Court held that this immunity 
also prohibits the Federal Government from sub-
jecting ‘‘non-consenting states to private suits for 
damages in state courts.’’ As a result, although 
USERRA specifically provides that a person may 
commence an action for relief against a State for its 
violation of that Act, persons harmed by State viola-
tions of that Act lack important remedies to vindi-
cate the rights and benefits that are available to all
other persons covered by that Act. Unless a State 
chooses to waive sovereign immunity, or the Attor-
ney General brings an action on their behalf, per-
sons affected by State violations of USERRA may 
have no adequate Federal remedy for such viola-
tions. 
(4) A failure to provide a private right of action 
by persons affected by State violations of USERRA 
would leave vindication of their rights and benefits 
under that Act solely to Federal agencies, which may 
fail to take necessary and appropriate action because 
of administrative overburden or other reasons. Ac-
tion by Congress to specify such a private right of 
action ensures that persons affected by State viola-
tions of USERRA have a remedy if they are denied 
their rights and benefits under that Act. 
(b) CLARIFICATION OF RIGHT OF ACTION UNDER 
USERRA.—Section 4323 of title 38, United States Code, 
is amended—
(1) in subsection (b), by striking paragraph (2) 
and inserting the following new paragraph (2): 
‘‘(2) In the case of an action against a State (as an 
employer) by a person, the action may be brought in a 
district court of the United States or State court of com-
petent jurisdiction.’’;
(2) by redesignating subsection (j) as sub-
section (k); and 
(3) by inserting after subsection (i) the fol-
lowing new subsection (j): 
‘‘(j)(1)(A) A State’s receipt or use of Federal finan-
cial 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 an employee of that program or activity under 
this chapter for the rights or benefits authorized the em-
ployee by this chapter. 
‘‘(B) In this paragraph, the term ‘program or activ-
ity’ has the meaning given the term in section 309 of the 
Age Discrimination Act of 1975 (42 U.S.C. 6107). 
‘‘(2) An official of a State may be sued in the official 
capacity of the official by any person covered by paragraph 
(1) who seeks injunctive relief against a State (as an em-
ployer) under subsection (e). In such a suit the court may 
award to the prevailing party those costs authorized by 
section 722 of the Revised Statutes (42 U.S.C. 1988).’’. 
TITLE III—AIR CARRIER ACCESS 
ACT OF 1986 AMENDMENT 
SEC. 301. FINDINGS. 
Congress finds the following:
(1) In Love v. Delta Air Lines, 310 F. 3d 1347 
(11th Cir. 2002), the United States Court of Ap-
peals for the Eleventh Circuit held that when Con-
gress passed the Air Carrier Access Act of 1986, 
adding a provision now codified at section 41705 of 
title 49, United States Code (referred to in this title 
as the ‘‘ACAA’’), Congress did not intend to create 
a private right of action with which individuals with 
disabilities could sue air carriers in Federal court for 
discrimination on the basis of disability. The court 
recognized that other courts of appeals have held 
that the ACAA created a private right of action. 
Nevertheless, the court, relying on the Supreme 
Court’s decision in Alexander v. Sandoval, 532 U.S. 
275 (2001), concluded that the ACAA did not create 
a private right of action. 
(2) The absence of a private right of action 
leaves enforcement of the ACAA solely in the hands 
of the Department of Transportation, which is over-
burdened and lacks the resources to investigate, 
prosecute violators for, and remediate all of the vio-
lations of the rights of travelers who are individuals 
with disabilities. Nor can the Department of Trans-
portation bring an action that will redress the injury 
of an individual resulting from such a violation. The
Department of Transportation can take action that 
fines an air carrier or requires the air carrier to 
obey the law in the future, but the Department is 
not authorized to issue orders that redress the inju-
ries sustained by individual air passengers. Action 
by Congress is necessary to ensure that individuals 
with disabilities will have adequate remedies avail-
able when air carriers violate the ACAA (including 
its regulations), and only courts may provide this re-
dress to individuals. 
(3) When an air carrier violates the ACAA and 
discriminates against an individual with a disability, 
frequently the only way to compensate that indi-
vidual for the harm the individual has suffered is 
through an award of money damages. For example, 
violations of the ACAA may result in travelers who 
are individuals with disabilities missing flights for 
business appointments or important personal events, 
or in such travelers suffering humiliating treatment 
at the hands of air carriers. Those harms cannot be 
remedied solely through injunctive relief. 
(4) Unlike other civil rights statutes, the ACAA 
does not contain a fee-shifting provision under which 
a prevailing plaintiff can be awarded attorney’s fees. 
Action by Congress is necessary to correct this
anomaly. The availability of attorney’s fees is essen-
tial to ensuring that persons who have been ag-
grieved by violations of the ACAA can enforce their 
rights. The inclusion of a fee-shifting provision in 
the ACAA will permit individuals to serve as private 
attorneys general, a necessary role on which enforce-
ment of civil rights statutes depends. 
SEC. 302. CIVIL ACTION. 
Section 41705 of title 49, United States Code, is 
amended by adding at the end the following: 
‘‘(d) CIVIL ACTION.—(1) Any person aggrieved by an 
air carrier’s violation of subsection (a) (including any reg-
ulation implementing such subsection) may bring a civil 
action in the district court of the United States in the 
district in which the aggrieved person resides, in the dis-
trict containing the air carrier’s principal place of busi-
ness, or in the district in which the violation took place. 
Any such action must be commenced within 2 years after 
the date of the violation. 
‘‘(2) In any civil action brought by an aggrieved per-
son pursuant to paragraph (1), the plaintiff may obtain 
both equitable and legal relief, including compensatory 
and punitive damages. The court in such action shall, in 
addition to such relief awarded to a prevailing plaintiff,
award reasonable attorney’s fees, reasonable expert fees, 
and costs of the action to the plaintiff.’’. 
TITLE IV—AGE DISCRIMINATION 
IN EMPLOYMENT ACT AMEND-
MENTS 
SEC. 401. SHORT TITLE. 
This title may be cited as the ‘‘Older Workers’ Rights 
Restoration Act of 2004’’. 
SEC. 402. FINDINGS. 
Congress finds the following: 
(1) Since 1974, the Age Discrimination in Em-
ployment Act of 1967 (29 U.S.C. 621 et seq.) (re-
ferred to in this section as the ‘‘ADEA’’) has prohib-
ited States from discriminating in employment on 
the basis of age. In EEOC v. Wyoming, 460 U.S. 
226 (1983), the Supreme Court upheld Congress’ 
constitutional authority to prohibit States from dis-
criminating in employment on the basis of age. The 
prohibitions of the ADEA remain in effect and con-
tinue to apply to the States, as the prohibitions have 
for more than 25 years. 
(2) Age discrimination in employment remains 
a serious problem both nationally and among State 
agencies, and has invidious effects on its victims, the
labor force, and the economy as a whole. For exam-
ple, age discrimination in employment—
(A) increases the risk of unemployment 
among older workers, who will as a result be 
more likely to be dependent on government re-
sources; 
(B) prevents the best use of available labor 
resources; 
(C) adversely effects the morale and pro-
ductivity of older workers; and 
(D) perpetuates unwarranted stereotypes 
about the abilities of older workers. 
(3) Private civil suits by the victims of employ-
ment discrimination have been a crucial tool for en-
forcement of the ADEA since the enactment of that 
Act. In Kimel v. Florida Board of Regents, 528 U.S. 
62 (2000), however, the Supreme Court held that 
Congress had not abrogated State sovereign immu-
nity to suits by individuals under the ADEA. The 
Federal Government has an important interest in 
ensuring that Federal financial assistance is not 
used to subsidize or facilitate violations of the 
ADEA. Private civil suits are a critical tool for ad-
vancing that interest.
(4) As a result of the Kimel decision, although 
age-based discrimination by State employers remains 
unlawful, the victims of such discrimination lack im-
portant remedies for vindication of their rights that 
are available to all other employees covered under 
that Act, including employees in the private sector, 
local government, and the Federal Government. Un-
less a State chooses to waive sovereign immunity, or 
the Equal Employment Opportunity Commission 
brings an action on their behalf, State employees 
victimized by violations of the ADEA have no ade-
quate Federal remedy for violations of that Act. In 
the absence of the deterrent effect that such rem-
edies provide, there is a greater likelihood that enti-
ties carrying out programs and activities receiving 
Federal financial assistance will use that assistance 
to violate that Act, or that the assistance will other-
wise subsidize or facilitate violations of that Act. 
(5) Federal law has long treated nondiscrimina-
tion obligations as a core component of programs or 
activities that, in whole or part, receive Federal fi-
nancial assistance. That assistance should not be 
used, directly or indirectly, to subsidize invidious dis-
crimination. Assuring nondiscrimination in employ-
ment is a crucial aspect of assuring nondiscrimina-
tion in those programs and activities. 
(6) Discrimination on the basis of age in pro-
grams or activities receiving Federal financial assist-
ance is, in contexts other than employment, forbid-
den by the Age Discrimination Act of 1975 (42 
U.S.C. 6101 et seq.). Congress determined that it 
was not necessary for the Age Discrimination Act of 
1975 to apply to employment discrimination because 
the ADEA already forbade discrimination in employ-
ment by, and authorized suits against, State agen-
cies and other entities that receive Federal financial 
assistance. In section 1003 of the Rehabilitation Act 
Amendments of 1986 (42 U.S.C. 2000d–7), Con-
gress required all State entities subject to the Age 
Discrimination Act of 1975 to waive any immunity 
from suit for discrimination claims arising under the 
Age Discrimination Act of 1975. The earlier limita-
tion in the Age Discrimination Act of 1975, origi-
nally intended only to avoid duplicative coverage and 
remedies, has in the wake of the Kimel decision be-
come a serious loophole leaving millions of State em-
ployees without an important Federal remedy for 
age discrimination, resulting in the use of Federal fi-
nancial assistance to subsidize or facilitate violations 
of the ADEA. 
(7) The Supreme Court has upheld Congress’s 
authority to condition receipt of Federal financial 
assistance on acceptance by the States or other cov-
ered entities of conditions regarding or related to the 
use of that assistance, as in Cannon v. University of 
Chicago, 441 U.S. 677 (1979). The Court has fur-
ther recognized that Congress may require a State, 
as a condition of receipt of Federal financial assist-
ance, to waive the State’s sovereign immunity to 
suits for a violation of Federal law, as in College 
Savings Bank v. Florida Prepaid Postsecondary 
Education Expense Board, 527 U.S. 666 (1999). In 
the wake of the Kimel decision, in order to assure 
compliance with, and to provide effective remedies 
for violations of, the ADEA in State programs or ac-
tivities receiving or using Federal financial assist-
ance, and in order to ensure that Federal financial 
assistance does not subsidize or facilitate violations 
of the ADEA, it is necessary to require such a waiv-
er as a condition of receipt or use of that assistance. 
(8) A State’s receipt or use of Federal financial 
assistance in any program or activity of a State will 
constitute a limited waiver of sovereign immunity
under section 7(g) of the ADEA (as added by sec-
tion 404). The waiver will not eliminate a State’s 
immunity with respect to programs or activities that 
do not receive or use Federal financial assistance. 
The State will waive sovereign immunity only with 
respect to suits under the ADEA brought by employ-
ees within the programs or activities that receive or 
use that assistance. With regard to those programs 
and activities that are covered by the waiver, the 
State employees will be accorded only the same rem-
edies that are accorded to other covered employees 
under the ADEA. 
(9) The Supreme Court has repeatedly held 
that State sovereign immunity does not bar suits for 
prospective injunctive relief brought against State 
officials, as in Ex parte Young (209 U.S. 123 
(1908)). Clarification of the language of the ADEA 
will confirm that that Act authorizes such suits. The 
injunctive relief available in such suits will continue 
to be no broader than the injunctive relief that was 
available under that Act before the Kimel decision, 
and that is available to all other employees under 
that Act. 
(10) In Griggs v. Duke Power Co., 401 U.S. 
424, 431 (1971), the Supreme Court recognized that
title VII of the Civil Rights Act of 1964 (42 U.S.C. 
2000e et seq.) ‘‘proscribes not only overt discrimina-
tion [in employment] but also [employment] prac-
tices that are fair in form, but discriminatory in op-
eration. . . .’’ In doing so, the Court relied on sec-
tion 703(a)(2) of title VII of the Civil Rights Act 
of 1964 (42 U.S.C. 2000e–2(a)(2)), which contains 
language identical to section 4(a)(2) of the ADEA, 
except that the latter substitutes the word age for 
the grounds of prohibited discrimination specified by 
title VII of the Civil Rights Act of 1964: ‘‘race, 
color, religion, sex, or national origin.’’ The Court 
has confirmed that this and other related statutory 
language, identical to both title VII of the Civil 
Rights Act of 1964 and the ADEA, supports appli-
cation of the disparate impact doctrine. Connecticut 
v. Teal, 457 U.S. 440 (1982); General Electric Co. 
v. Gilbert, 429 U.S. 125 (1976). 
(11) Other indicia of Congress’s intent to per-
mit the disparate impact method of proving viola-
tions of the ADEA are legion, and include numerous 
other textual parallels between the ADEA and title 
VII of the Civil Rights Act of 1964, such as in the 
two laws’ substantive prohibitions. Lorillard v. Pons, 
434 U.S. 575, 584 (1978) (the ADEA’s substantive
prohibitions ‘‘were derived in haec verba from Title 
VII’’). Moreover, the ADEA and title VII of the 
Civil Rights Act of 1964 share ‘‘a common purpose: 
‘the elimination of discrimination in the work-
place,’ ’’. McKennon v. Nashville Banner Pub. Co., 
513 U.S. 352, 358 (1995) (quoting Oscar Mayer & 
Co. v. Evans, 441 U.S. 750, 756 (1979)). Inter-
preting title VII of the Civil Rights Act of 1964 in 
a consistent manner is particularly appropriate when 
‘‘the two provisions share a common raison d’etre.’’. 
Northcross v. Board of Educ. of Memphis City 
Schools, 412 U.S. 427, 428 (1973). 
(12) The ADEA’s legislative history confirms 
Congress’s intent to redress all ‘‘arbitrary’’ age dis-
crimination in the workplace, including arbitrary 
facially neutral policies and practices falling more 
harshly on older workers. Such policies continue to 
be based on the kind of ‘‘subconscious stereotypes 
and prejudices’’ which cannot be ‘‘adequately policed 
through disparate treatment analysis,’’ and thus, re-
quire application of the disparate impact theory of 
proof. Watson v. Fort Worth Bank & Trust, 487 
U.S. 977, 990 (1988). As the Supreme Court has 
noted, these prejudices are ‘‘the essence of age dis-
crimination.’’. Hazen Paper Co. v. Biggins, 507 U.S. 
604, 610, n.15 (1993). 
(13) In 1991, Congress reaffirmed that title 
VII of the Civil Rights Act of 1964 permits victims 
of employment bias to state a cause of action for 
disparate impact discrimination when it added a pro-
vision to title VII of the Civil Rights Act of 1964 to 
clarify the burden of proof in disparate impact cases 
in section 703(k) of the Civil Rights Act of 1964 (42 
U.S.C. 2000e–2(k)). 
(14) Subsequently, several lower courts and 
Federal Courts of Appeal have mistakenly relied on 
language in the Supreme Court’s opinion in Hazen 
Paper Co. v. Biggins, 507 U.S. 604 (1993), to sug-
gest that the disparate impact method of proof does 
not apply to claims under the ADEA. Mullin v. 
Raytheon Co., 164 F.3d 696, 700–01 (1st Cir. 
1999); EEOC v. Francis W. Parker School, 41 F.3d 
1073, 1076–77 (7th Cir. 1994); Ellis v. United Air-
lines, Inc., 73 F.3d 999, 1006–07 (10th Cir. 1996); 
DiBiase v. Smithkline Beecham Corp., 48 F.3d 719, 
732 (3d Cir. 1995); Lyon v. Ohio Educ. Ass’n and 
Prof’l Staff Union, 53 F.3d 135, 139 n.5 (6th Cir. 
1995). Congress did not intend the ADEA to be in-
terpreted to provide older workers less protections
against discrimination than those protected under 
title VII of the Civil Rights Act of 1964. As a result, 
it is necessary to clarify the burden of proof in a dis-
parate impact case under the ADEA, and thereby 
reaffirm that victims of age discrimination in em-
ployment discrimination may state a cause of action 
based on the disparate impact method of proving 
discrimination in appropriate circumstances. 
SEC. 403. PURPOSES. 
The purposes of this title are—
(1) to provide to State employees in programs 
or activities that receive or use Federal financial as-
sistance the same rights and remedies for practices 
violating the Age Discrimination in Employment Act 
of 1967 (29 U.S.C. 621 et seq.) as are available to 
other employees under that Act, and that were avail-
able to State employees prior to the Supreme 
Court’s decision in Kimel v. Florida Board of Re-
gents, 528 U.S. 62 (2000); 
(2) to provide that the receipt or use of Federal 
financial assistance for a program or activity con-
stitutes a State waiver of sovereign immunity from 
suits by employees within that program or activity 
for violations of the Age Discrimination in Employ-
ment Act of 1967;
(3) to affirm that suits for injunctive relief are 
available against State officials in their official ca-
pacities for violations of the Age Discrimination in 
Employment Act of 1967; and 
(4) to reaffirm the applicability of the disparate 
impact standard of proof to claims under the Age 
Discrimination in Employment Act of 1967. 
SEC. 404. REMEDIES FOR STATE EMPLOYEES. 
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)(1)(A) A State’s receipt or use of Federal finan-
cial 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 an employee of that program or activity under 
this Act for equitable, legal, or other relief authorized 
under this Act. 
‘‘(B) In this paragraph, the term ‘program or activ-
ity’ has the meaning given the term in section 309 of the 
Age Discrimination Act of 1975 (42 U.S.C. 6107). 
‘‘(2) An official of a State may be sued in the official 
capacity of the official by any employee who has complied 
with the procedures of subsections (d) and (e), for injunc-
tive relief that is authorized under this Act. In such a suit
the court may award to the prevailing party those costs 
authorized by section 722 of the Revised Statutes (42 
U.S.C. 1988).’’. 
SEC. 405. DISPARATE IMPACT CLAIMS. 
Section 4 of the Age Discrimination in Employment 
Act of 1967 (29 U.S.C. 623) is amended by adding at 
the end the following: 
‘‘(n)(1) Discrimination based on disparate impact is 
established under this title only if—
‘‘(A) an aggrieved party demonstrates that an 
employer, employment agency, or labor organization 
has a policy or practice that causes a disparate im-
pact on the basis of age and the employer, employ-
ment agency, or labor organization fails to dem-
onstrate that the challenged policy or practice is 
based on reasonable factors that are job-related and 
consistent with business necessity other than age; or 
‘‘(B) the aggrieved party demonstrates (con-
sistent with the demonstration standard 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 employer, 
employment agency, or labor organization refuses to 
adopt such alternative policy or practice.
‘‘(2)(A) With respect to demonstrating that a par-
ticular policy or practice causes a disparate impact as de-
scribed in paragraph (1)(A), the aggrieved party shall 
demonstrate that each particular challenged policy or 
practice causes a disparate impact, except that if the ag-
grieved party demonstrates to the court that the elements 
of an employer, employment agency, or labor organiza-
tion’s decisionmaking process are not capable of separa-
tion for analysis, the decisionmaking process may be ana-
lyzed as one policy or practice. 
‘‘(B) If the employer, employment agency, or labor 
organization demonstrates that a specific policy or prac-
tice does not cause the disparate impact, the employer, 
employment agency, or labor organization shall not be re-
quired to demonstrate that such policy or practice is nec-
essary to the operation of its business. 
‘‘(3) A demonstration that a policy or practice is nec-
essary to the operation of the employer, employment agen-
cy, or labor organization’s business may not be used as 
a defense against a claim of intentional discrimination 
under this title. 
‘‘(4) In this subsection, the term ‘demonstrates’ 
means meets the burdens of production and persuasion.’’.
SEC. 406. EFFECTIVE DATE. 
(a) WAIVER OF SOVEREIGN IMMUNITY.—With re-
spect to a particular program or activity, section 7(g)(1) 
of the Age Discrimination in Employment Act of 1967 (29 
U.S.C. 626(g)(1)) applies to conduct occurring on or after 
the day, after the date of enactment of this title, on which 
a State first receives or uses Federal financial assistance 
for that program or activity. 
(b) SUITS AGAINST OFFICIALS.—Section 7(g)(2) of 
the Age Discrimination in Employment Act of 1967 (29 
U.S.C. 626(g)(2)) applies to any suit pending on or after 
the date of enactment of this title. 
TITLE V—CIVIL RIGHTS 
REMEDIES AND RELIEF 
Subtitle A—Prevailing Party 
SEC. 501. SHORT TITLE. 
This subtitle may be cited as the ‘‘Settlement En-
couragement and Fairness Act’’. 
SEC. 502. DEFINITION OF PREVAILING PARTY. 
(a) IN GENERAL.—Chapter 1 of title 1, United 
States Code, is amended by adding at the end the fol-
lowing: 
‘‘§ 9. Definition of ‘prevailing party’
‘‘(a) In determining the meaning of any Act of Con-
gress, or of any ruling, regulation, or interpretation of the 
various administrative bureaus and agencies of the United
States, or of any judicial or administrative rule, which pro-
vides for the recovery of attorney’s fees, the term ‘pre-
vailing party’ shall include, in addition to a party who sub-
stantially prevails through a judicial or administrative 
judgment or order, or an enforceable written agreement, 
a party whose pursuit of a nonfrivolous claim or defense 
was a catalyst for a voluntary or unilateral change in posi-
tion by the opposing party that provides any significant 
part of the relief sought. 
‘‘(b)(1) If an Act, ruling, regulation, interpretation, 
or rule described in subsection (a) requires a defendant, 
but not a plaintiff, to satisfy certain different or additional 
criteria to qualify for the recovery of attorney’s fees, sub-
section (a) shall not affect the requirement that such de-
fendant satisfy such criteria. 
‘‘(2) If an Act, ruling, regulation, interpretation, or 
rule described in subsection (a) requires a party to satisfy 
certain criteria, unrelated to whether or not such party 
has prevailed, to qualify for the recovery of attorney’s fees, 
subsection (a) shall not affect the requirement that such 
party satisfy such criteria.’’. 
(b) CLERICAL AMENDMENT.—The table of sections 
at the beginning of chapter 1 of title 1, United States 
Code, is amended by adding at the end the following new 
item:
‘‘9. Definition of ‘prevailing party’.’’.
tial and that the employer has refused to 
adopt such alternative practice; and 
‘‘(bb) such factor was actually applied and 
used reasonably in light of the asserted jus-
tification; and 
‘‘(II) upon the employer succeeding under sub-
clause (I), the employee fails to demonstrate that 
the differential produced by the reliance of the em-
ployer on such factor is itself the result of discrimi-
nation on the basis of sex by the employer. 
An employer that is not otherwise in compliance with this 
paragraph may not reduce the wages of any employee in 
order to achieve such compliance.’’. 
(b) APPLICATION OF PROVISIONS.—Section 6(d)(1) 
of the Fair Labor Standards Act of 1938 (29 U.S.C. 
206(d)(1)) is amended by adding at the end the following: 
‘‘The provisions of this subsection shall apply to applicants 
for employment if such applicants, upon employment by 
the employer, would be subject to any provisions of this 
section.’’. 
(c) ELIMINATION
OF ESTABLISHMENT REQUIRE-
MENT.—Section 6(d) of the Fair Labor Standards Act of 
1938 (29 U.S.C. 206(d)) is amended—
(1) by striking ‘‘, within any establishment in 
which such employees are employed,’’; and
(2) by striking ‘‘in such establishment’’ each 
place it appears. 
(d) NONRETALIATION PROVISION.—Section 15(a)(3) 
of the Fair Labor Standards Act of 1938 (29 U.S.C. 
215(a)(3)) is amended—
(1) by striking ‘‘or has’’ each place it appears 
and inserting ‘‘has’’; and 
(2) by inserting before the semicolon the fol-
lowing: ‘‘, or has inquired about, discussed, or other-
wise disclosed the wages of the employee or another 
employee, or because the employee (or applicant) has 
made a charge, testified, assisted, or participated in 
any manner in an investigation, proceeding, hearing, 
or action under section 6(d)’’. 
(e) ENHANCED PENALTIES.—Section 16(b) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 
amended—
(1) by inserting after the first sentence the fol-
lowing: ‘‘Any employer who violates section 6(d) 
shall additionally be liable for such compensatory or 
punitive damages as may be appropriate, except that 
the United States shall not be liable for punitive 
damages.’’; 
(2) in the sentence beginning ‘‘An action to’’, 
by striking ‘‘either of the preceding sentences’’ and
inserting ‘‘any of the preceding sentences of this 
subsection’’; 
(3) in the sentence beginning ‘‘No employees 
shall’’, by striking ‘‘No employees’’ and inserting 
‘‘Except with respect to class actions brought to en-
force section 6(d), no employee’’; 
(4) by inserting after the sentence referred to 
in paragraph (3), the following: ‘‘Notwithstanding 
any other provision of Federal law, any action 
brought to enforce section 6(d) may be maintained 
as a class action as provided by the Federal Rules 
of Civil Procedure.’’; and 
(5) in the sentence beginning ‘‘The court in’’—
(A) by striking ‘‘in such action’’ and in-
serting ‘‘in any action brought to recover the li-
ability prescribed in any of the preceding sen-
tences of this subsection’’; and 
(B) by inserting before the period the fol-
lowing: ‘‘, including expert fees’’. 
(f) ACTION BY SECRETARY.—Section 16(c) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is 
amended—
(1) in the first sentence—
(A) by inserting ‘‘or, in the case of a viola-
tion of section 6(d), additional compensatory or