(C) As a result, the Federal Government has an 
important interest in ensuring that Federal financial 
assistance is not used to subsidize or facilitate viola-
tions of the Age Discrimination in Employment Act 
of 1967 (29 U.S.C. 621 et seq.) (referred to in this 
section as the ‘‘ADEA’’). 
(2) 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. 
(3) 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. 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 
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to violate that Act, or that the assistance will other-
wise subsidize or facilitate violations of that Act. 
(4) 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. 
(5) 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 
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under section 7(g) of the ADEA (as added by sec-
tion 304). 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. 
(6) 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 Act authorizes such suits. The in-
junctive 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. 
(7) In 1991, Congress reaffirmed that title VII 
of the Civil Rights Act of 1964 permits victims of 
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employment bias to state a cause of action for dis-
parate impact discrimination when it added a provi-
sion 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)). 
(8) In Smith v. City of Jackson, 544 U.S. 228 
(2005), the Supreme Court held that the ADEA per-
mits older workers to state a cause of action for dis-
parate impact discrimination. The Smith Court in-
correctly held, however, that the scope of disparate 
impact claims is narrower under the ADEA than 
under title VII. Congress did not intend the ADEA 
to be interpreted to provide older workers less pro-
tections 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 disparate impact case under the ADEA. 
SEC. 303. 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 
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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 clarify the disparate impact standard of 
proof in claims under the Age Discrimination in 
Employment Act of 1967. 
SEC. 304. 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 
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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. 305. 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 Act 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 
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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 Act. 
‘‘(4) In this subsection, the term ‘demonstrates’ 
means meets the burdens of production and persuasion.’’. 
SEC. 306. 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. 
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TITLE IV—IMPROVED ACCOUNT-
ABILITY FOR OTHER VIOLA-
TIONS OF CIVIL RIGHTS AND 
WORKERS’ RIGHTS 
Subtitle A—Air Carrier Access Act 
of 1986 Amendment 
SEC. 401. FINDINGS. 
Congress finds the following: 
(1) Relying on the Supreme Courts’s decision in 
Alexander v. Sandoval, 532 U.S. 275 (2001), some 
courts have erroneously held that when Congress 
passed the Air Carrier Access Act of 1986 (Public 
Law 99-435; 100 Stat. 1080), adding a provision 
now codified at section 41705 of title 49, United 
States Code (referred to in this subtitle as the 
‘‘ACAA’’), Congress did not intend to create a pri-
vate right of action with which individuals with dis-
abilities could sue air carriers in Federal court for 
discrimination on the basis of disability. Love v. 
Delta Air Lines, 310 F. 3d 1347 (11th Cir. 2002) 
(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-
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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. 
(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-
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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. 402. 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.’’. 
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Subtitle B—Prevailing Party 
SEC. 411. SHORT TITLE. 
This subtitle may be cited as the ‘‘Settlement En-
couragement and Fairness Act’’. 
SEC. 412. 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-
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