I 
114TH CONGRESS 
2D SESSION 
H. R. 5692 
To restore the effective use of group actions for claims arising under title 
VII of the Civil Rights Act of 1964, title I of the Americans with 
Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, 
section 1977 of the Revised Statutes, and the Genetic Information Non-
discrimination Act of 2008, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JULY 8, 2016 
Ms. DELAURO (for herself, Mr. NADLER, Ms. NORTON, Ms. SLAUGHTER, Mr. 
CICILLINE, Ms. LEE, Mr. MCDERMOTT, Mr. SCHIFF, and Ms. JUDY CHU 
of California) introduced the following bill; which was referred to the 
Committee on the Judiciary 
A BILL 
To restore the effective use of group actions for claims aris-
ing under title VII of the Civil Rights Act of 1964, 
title I of the Americans with Disabilities Act of 1990, 
title V of the Rehabilitation Act of 1973, section 1977 
of the Revised Statutes, and the Genetic Information 
Nondiscrimination Act of 2008, and for other purposes. 
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 ‘‘Equal Employment 
Opportunity Restoration Act of 2016’’. 
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS
SEC. 2. FINDINGS AND PURPOSE. 
(a) FINDINGS.—Congress finds the following: 
(1) Congress has enacted laws to eradicate 
workplace discrimination and to secure equal em-
ployment opportunities for all Americans, as noted 
in Teamsters v. United States, 431 U.S. 324 (1977) 
and McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1973) (stating that civil rights laws are meant 
‘‘to assure equality of employment opportunities and 
to eliminate . . . discriminatory practices and de-
vices’’ in the workplace). 
(2) Workplace discrimination laws prohibit sub-
jective employment practices that operate to deny 
equal employment opportunities to employees, as ex-
plained in Watson v. Fort Worth Bank & Trust, 487 
U.S. 977 (1988), which stated that personnel deci-
sions ‘‘based on the exercise of personal judgment or 
the application of inherently subjective criteria’’ are 
unlawful when the personnel decisions have the ef-
fect of discriminating on grounds prohibited by law. 
(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 
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS
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, 
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’’. 
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS
(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-
tion as a ‘covered employment statute’), one 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— 
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS
‘‘(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 
‘‘(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-
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS
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-
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.— 
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS
‘‘(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-
ing class certification pursuant to rule 23 of the 
Federal Rules of Civil Procedure. 
‘‘(4) CLASS ACTION FAIRNESS ACT.—Group ac-
tions certified under this section shall be subject to 
section 1332(d), section 1453, and chapter 114 to 
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS
the same extent as class actions certified pursuant 
to rule 23 of the Federal Rules of Civil Procedure. 
‘‘(5) RULE
OF
CONSTRUCTION.—Nothing in 
this section shall be construed to create any infer-
ence regarding the standards for determining wheth-
er claims may be adjudicated together under any law 
other than the covered employment statutes. 
‘‘(d) REMEDIES.— 
‘‘(1) AVAILABILITY OF REMEDIES.—If an em-
ployer has been found liable under a covered employ-
ment statute against a group certified under this 
section, the court may deny a remedy available 
under the covered employment statute to a member 
of the group only if the employer demonstrates, by 
a preponderance of the evidence, that the member of 
the group would not have received the corresponding 
employment opportunity or benefit even in the ab-
sence of a violation of the covered employment stat-
ute. 
‘‘(2) RELIEF.— 
‘‘(A) IN GENERAL.—The court shall fash-
ion the most complete relief possible for mem-
bers of a prevailing group described in this sec-
tion and shall have broad discretion in deter-
mining how to fashion that relief. 
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00008
Fmt 6652
Sfmt 6201
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS
‘‘(B) EXERCISE OF DISCRETION.—In exer-
cising its discretion under this paragraph, the 
court shall— 
‘‘(i) use such procedures as the inter-
ests of justice warrant, which procedures 
may include economic or statistical mod-
eling, mathematical calculation, sampling, 
individual adjudication, and other means 
the court may adopt; 
‘‘(ii) consider which procedure will 
best ensure that members of the group will 
be made whole; 
‘‘(iii) consider which procedure will 
best minimize the cost to and burden on 
the parties; and 
‘‘(iv) consider which procedure most 
reliably and efficiently accounts for limita-
tions on the court’s ability to identify indi-
vidual members of the group and to meas-
ure the harm incurred by individual mem-
bers of the group.’’. 
(b) TECHNICAL AND CONFORMING AMENDMENT.— 
The table of chapters for part VI of title 28, United States 
Code, is amended by adding at the end the following: 
‘‘182. Group actions ................................................................................. 4201’’. 
Æ 
VerDate Sep 11 2014 
22:16 Jul 12, 2016
Jkt 059200
PO 00000
Frm 00009
Fmt 6652
Sfmt 6301
E:\BILLS\H5692.IH
H5692
mstockstill on DSK3G9T082PROD with BILLS