‘‘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 
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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, take effect on the date of 
enactment of this Act. 
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(b) APPLICATION.—This subtitle, and the amend-
ments made by this subtitle, apply to all actions or pro-
ceedings pending on or after 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 
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(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). 
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(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. 
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(7) As recognized by the dissenters in Gebser, 
these limitations on effective relief thwart Congress’s 
underlying purpose to protect students from harass-
ment. 
(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)(A) Legislative action is necessary and ap-
propriate to reverse Gebser and its progeny and re-
store the availability of a full range of remedies for 
harassment based on race, color, sex, national origin, 
age, or disability. 
(B) Restoring the availability of a full range of 
remedies for harassment will— 
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(i) 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.); 
(ii) encourage covered entities to adopt and 
enforce meaningful policies and procedures to 
prevent and remedy harassment; 
(iii) deter incidents of harassment; and 
(iv) provide appropriate remedies for dis-
crimination. 
(10) 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. 
(11) The right to maintain a private right of 
action under a provision added to a statute under 
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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. 
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‘‘(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-
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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 
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‘‘(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 
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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) 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. 
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‘‘(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 
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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 
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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. 
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‘‘(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 
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‘‘(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 
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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-
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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— 
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‘‘(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— 
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‘‘(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-
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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, take effect on the date of 
enactment of this Act. 
(b) APPLICATION.—This subtitle, and the amend-
ments made by this subtitle, apply to all actions or pro-
ceedings pending on or after the date of enactment of this 
Act. 
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TITLE II—EMPLOYER ACCOUNT-
ABILITY 
FOR 
DISCRIMINA-
TION BASED ON MILITARY 
SERVICE 
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 
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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 
portion of section 8 of article I of the Constitution 
relating to regulation of Commerce among the sev-
eral States, 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-
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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 
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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).’’. 
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TITLE III—EMPLOYER ACCOUNT-
ABILITY FOR AGE DISCRIMI-
NATION 
SEC. 301. SHORT TITLE. 
This title may be cited as the ‘‘Older Workers’ Rights 
Restoration Act of 2008’’. 
SEC. 302. FINDINGS. 
Congress finds the following: 
(1)(A) Age discrimination in employment re-
mains a serious problem both nationally and among 
State agencies, and has invidious effects on its vic-
tims, the labor force, and the economy as a whole. 
(B) For example, age discrimination in employ-
ment— 
(i) increases the risk of unemployment 
among older workers, who will as a result be 
more likely to be dependent on government re-
sources; 
(ii) prevents the best use of available labor 
resources; 
(iii) adversely affects the morale and pro-
ductivity of older workers; and 
(iv) perpetuates unwarranted stereotypes 
about the abilities of older workers. 
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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-
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