(3) Class actions often have been the most ef-
fective means to enforce employment discrimination 
laws, as explained in East Texas Motor Freight Sys-
tem Inc. v. Rodriguez, 431 U.S. 395 (1977) 
(‘‘[S]uits alleging . . . discrimination are often by 
their very nature class suits, involving classwide 
wrongs’’ where ‘‘[c]ommon questions of law or fact 
are typically present.’’) and in Eisen v. Carlisle & 
Jacquelin, 417 U.S. 156 (1974) (‘‘Economic reality 
dictates that [claims of relatively small value] pro-
ceed as a class action or not at all.’’). 
(4) Historically, a class action alleging employ-
ment discrimination could be maintained if the class 
was united by a common issue of law or fact. As a 
leading legal treatise, William B. Rubenstein, 1 
Newberg on Class Actions § 3:20 (5th ed. 2011), ex-
plained, ‘‘this requirement [was] easily met in most 
cases’’. As another leading treatise, Charles A. 
Wright et al., 7A Federal Practice and Procedure, 
Wright and Miller § 1763 (3rd ed. 2005), explained, 
this requirement had been given ‘‘permissive applica-
tion’’. 
(5) However, the Supreme Court recently made 
it more difficult for victims of discrimination to vin-
dicate claims for their rights. In Wal-Mart Stores, 
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Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Court re-
quired ‘‘convincing proof of a companywide discrimi-
natory pay and promotion policy’’ as a prerequisite 
to class certification. In a dissent in that case, Jus-
tice Ginsberg wrote that the Court’s decision ‘‘dis-
qualifies the class at the starting gate’’. 
(b) PURPOSE.—The purpose of this Act is to restore 
employees’ ability to challenge, as a group, discriminatory 
employment practices, including subjective employment 
practices. 
SEC. 3. GROUP ACTIONS. 
(a) IN GENERAL.—Part VI of title 28, United States 
Code, is amended by adding at the end the following: 
‘‘CHAPTER 182—GROUP ACTIONS 
‘‘Sec. 
‘‘4201. Group actions in certain employment discrimination cases. 
‘‘§ 4201. Group actions in certain employment dis-
crimination cases 
‘‘(a) GROUP ACTIONS.—In seeking relief under title 
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
seq.), title I of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12111 et seq.), title V of the Rehabilitation 
Act of 1973 (29 U.S.C. 791 et seq.), section 1977 of the 
Revised Statutes (42 U.S.C. 1981), or title II of the Ge-
netic Information Nondiscrimination Act of 2008 (42 
U.S.C. 2000ff et seq.) (individually referred to in this sec-
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tion as a ‘covered employment statute’), 1 or more mem-
bers (collectively referred to in this section as the ‘rep-
resentative party’) of a group may sue on behalf of all 
members of the group if the representative party shows, 
by a reasonable inference, that— 
‘‘(1) the members of the group are so numerous 
that their joinder is impracticable; 
‘‘(2) the claims of the representative party are 
typical of the claims of the group the representative 
party seeks to represent and the representative party 
and the representative party’s counsel will fairly and 
adequately protect the interests of the group; and 
‘‘(3) the members of the group are, or have 
been, subject to an employment practice that has ad-
versely affected or is adversely affecting a significant 
portion of the group’s members. 
‘‘(b) SUBJECTIVE EMPLOYMENT PRACTICES.— 
‘‘(1) DEFINITION.—In this subsection, the term 
‘subjective employment practice’ means— 
‘‘(A) an employer’s policy of leaving per-
sonnel decisions to the unguided discretion of 
supervisors, managers, and other employees 
with authority to make such personnel deci-
sions; or 
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‘‘(B) an employment practice that com-
bines a subjective employment practice, as de-
fined in subparagraph (A), with other types of 
personnel decisions. 
‘‘(2) CHALLENGES.—A representative party 
may challenge a subjective employment practice cov-
ered by a covered employment statute in a group ac-
tion filed under this section to the same extent as 
the party may challenge any other employment prac-
tice covered by the covered employment statute in 
such an action. 
‘‘(3) EXERCISE OF DISCRETION IN DIFFERENT 
WAYS.—The fact that individual supervisors, man-
agers, or other employees with authority to make 
personnel decisions may exercise discretion in dif-
ferent ways in applying a subjective employment 
practice under the covered employment statute shall 
not preclude a representative party from filing a cor-
responding group action under this section. 
‘‘(4) 
CONSIDERATION
OF
WRITTEN
NON-
DISCRIMINATION
POLICY.—In determining whether 
to certify a group action challenging an employment 
practice, the court may consider as evidence, in op-
position to certification, an employer’s written non-
discrimination policy only to the extent that the em-
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ployer demonstrates that the policy has been consist-
ently and effectively used to prevent and, where nec-
essary, promptly correct discrimination against the 
group. 
‘‘(c) RELATIONSHIP TO RULE 23 OF THE FEDERAL 
RULES OF CIVIL PROCEDURE.— 
‘‘(1) ELECTION
OF
PROCEDURE.—The rep-
resentative party may elect to proceed in a group ac-
tion under this section or in a class action under 
rule 23 of the Federal Rules of Civil Procedure. This 
election shall occur not later than the latest date on 
which the representative party may petition for class 
certification under rule 23 of the Federal Rules of 
Civil Procedure. 
‘‘(2) RULE 23 REQUIREMENTS.—To the extent 
consistent with this section, the court shall apply the 
provisions of rule 23(c) through rule 23(h) of the 
Federal Rules of Civil Procedure, including the re-
quirements under rule 23 regarding notice and re-
quests for exclusion, to claims brought pursuant to 
this section. 
‘‘(3) INTERLOCUTORY
APPELLATE
REVIEW.— 
Decisions granting or denying certification of claims 
as group actions under this section are subject to re-
view to the same extent as orders granting or deny-
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