Economic Inclusion Civil Rights Act of 2021
Bill: S.2298 | Sponsor: Sen. Blumenthal, Richard (D-CT)
Policy area: Civil Rights and Liberties, Minority Issues

Summary:
Economic Inclusion Civil Rights Act of 2021
This bill modifies the prohibition against intentional racial discrimination in the context of economic activity such as employment, contracts, or other commercial transactions.
Specifically, the bill makes an action that has a discriminatory effect a violation of section 1977 of the Revised Statutes. It also states that all non-White persons within U.S. jurisdiction shall have the same right in every state and territory as is enjoyed by White citizens in certain respects.
No person shall use a criterion, method of administration, practice, or policy that has a disparate impact in violation of that provision.
Further, a plaintiff may prove intentional discrimination by showing only that the discriminatory intent was a motivating factor in the alleged violation. Under current law, a plaintiff must prove that the harm would not have occurred but for the defendant's unlawful conduct.
Additionally, standing shall not be limited to victims who were parties to, or third-party beneficiaries of, a contract with the defendant.
The bill provides for a right to jury trial and no joint-action waiver or pre-dispute arbitration agreement shall be enforceable with respect to any alleged violation.
The bill provides for a four-year statute of limitations.

To amend section 1977 of the Revised Statutes to protect equal rights 
                               under law.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Economic Inclusion Civil Rights Act 
of 2021''.

SEC. 2. EQUAL RIGHTS.

    Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended to 
read as follows:

``SEC. 1977. EQUAL RIGHTS UNDER LAW.

    ``(a) Finding.--Congress finds that the decisions of the Supreme 
Court of the United States in Comcast Corp. v. National Ass'n of 
African American-Owned Media, 140 S. Ct. 1009 (2020), and General 
Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982), have 
weakened the scope and effectiveness of Federal civil rights 
protections.
    ``(b) Purpose and Authority.--
            ``(1) Authority.--This section is an exercise of 
        congressional authority under section 5 of the 14th Amendment, 
        section 2 of the 13th Amendment, and the Commerce Clause of 
        section 8 of article I, of the Constitution of the United 
        States.
            ``(2) Purpose.--The purpose of this section is to protect 
        civil rights, including to enact into law key portions of the 
        concurring opinion of Justice Ginsburg in Comcast Corp. v. 
        National Ass'n of African American-Owned Media, 140 S. Ct. 1009 
        (2020), and the dissenting opinion of Justice Marshall in 
        General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 
        375 (1982).
    ``(c) Definitions.--In this section:
            ``(1) Demonstrates.--The term `demonstrates' means meets 
        the burdens of production and persuasion.
            ``(2) Economic activity.--The term `economic activity' 
        shall have the broadest meaning permissible under the 
        Constitution, including--
                    ``(A) making, performing, and enforcing contracts;
                    ``(B) producing, consuming, browsing for, shopping 
                for, or waiting for goods or services;
                    ``(C) soliciting, selecting, hiring, or dealing 
                with a vendor, supplier, contractor, or subcontractor;
                    ``(D) dealing with or serving (including refusing 
                to serve) a shopper, patron, or customer;
                    ``(E) accessing, processing, or granting (including 
                denying) access to loans, credit, bonding, or 
                insurance; and
                    ``(F) purchasing, leasing, selling, holding, or 
                conveying real or personal property,
        whether the activities described in this paragraph occur on the 
        internet, at a physical location, or through any other medium.
            ``(3) Full and equal benefit and enjoyment of economic 
        activity.--The term `full and equal benefit and enjoyment of 
        economic activity' means the benefit or enjoyment, 
        respectively, of the same benefits, privileges, advantages, 
        preferences, opportunities, terms, conditions, goods, services, 
        facilities, accommodations, service and treatment, employment, 
        and rights to make, enforce, perform, modify, and terminate 
        contracts, and freedom from intimidation, harassment, and 
        profiling as white citizens benefit from or enjoy, 
        respectively.
            ``(4) Including.--The term `including' means including, but 
        not limited to, consistent with the term's standard meaning in 
        Federal law.
            ``(5) Security of person and property.--The term 
        `security', used with respect to person and property, includes 
        protection from physical harm and a threat of harm to one's 
        body or property, and protection against exposure to or a 
        disproportionate burden from the negative human health and 
        environmental impacts of pollution or an environmental hazard.
    ``(d) Statement of Equal Rights.--All nonWhite persons within the 
jurisdiction of the United States shall have the same right in every 
State and territory as is enjoyed by White citizens to the full and 
equal benefit and enjoyment of economic activity, to security of their 
persons and property, to make and enforce contracts, including carrying 
out the contract formation process, and to sue, be parties, and give 
evidence, and to the full and equal benefit of all laws and 
proceedings, and shall be subject, in comparison to White citizens, to 
like punishment, pains, penalties, taxes, licenses, and exactions of 
every kind, and to no other.
    ``(e) Discriminatory Effects Also Prohibited.--
            ``(1) In general.--No person shall use a criterion, method 
        of administration, practice, or policy that has a disparate 
        impact in violation of subsection (d).
            ``(2) Demonstration.--A challenged criterion, method of 
        administration, practice, or policy that has an impact 
        described in paragraph (1) shall be unjustifiable unless its 
        user demonstrates that--
                    ``(A) the use serves a legitimate purpose, which is 
                both required by a substantial business necessity and 
                not a pretext for discrimination; and
                    ``(B) if the complaining party proffers an 
                alternative, that that alternative is either 
                inconsistent with substantial business necessity or 
                would produce an equal or greater disparate impact on 
                the basis of a classification protected by subsection 
                (d).
            ``(3) Limitation on substantial business necessity 
        defense.--A demonstration that a criterion, method of 
        administration, practice, or policy is required by a 
        substantial business necessity may not be used as a defense 
        against a claim of intentional discrimination under this 
        section.
    ``(f) Protection Against Impairment.--All rights protected by this 
section are protected against impairment by nongovernmental 
discrimination and impairment under color of State law.
    ``(g) Burden of Proof for Discriminatory Treatment Actions.--
            ``(1) Protected classification.--In this subsection, the 
        term `protected classification' means a classification 
        protected by subsection (d).
            ``(2) Demonstration.--The equal rights guaranteed under 
        subsection (d) shall be considered to be denied when the 
        complaining party demonstrates that race or a protected 
        classification was a motivating factor for the denial of such 
        rights even though other factors also motivated the denial. A 
        denial of equal rights guaranteed under subsection (d) may be 
        established with comparator evidence or any other evidence that 
        sufficiently demonstrates a denial of such rights, including 
        evidence of conduct that a reasonable person would find 
        racially hostile.
    ``(h) Standing.--Any person suffering injury in fact as a result of 
the alleged violation of this section may bring a claim or cause of 
action for damages, or for equitable or for declaratory relief, under 
this section. Standing shall not be limited to victims who were parties 
to, or third-party beneficiaries of, a contract with the defendant.
    ``(i) Respondeat Superior Liability.--Principals shall be liable 
for violations of this section by their agents, and local governments 
shall be liable for violations of this section by their employees, 
acting within the scope of their duties.
    ``(j) Jury Trial Right.--All persons within the jurisdiction of the 
United States shall have the right to enforce a right provided under 
this section in a court of law and before a jury of their peers, and no 
joint-action waiver or pre-dispute arbitration agreement shall be valid 
or enforceable with respect to any alleged violation of this section.
    ``(k) Statute of Limitations.--All causes of action under this 
section shall be governed by the 4-year statute of limitations provided 
by section 1658(a) of title 28, United States Code.
    ``(l) Remediating Past Discrimination.--Nothing in this section 
shall be construed to prohibit or limit a lawful effort, under a 
provision other than this section, to remedy the effects of 
discrimination that has occurred or is occurring.''.

SEC. 3. APPLICATION TO CLAIMS.

    This Act, and the amendment made by this Act, shall apply to all 
claims of violations of section 1977 of the Revised Statutes that are 
pending on or after the date of enactment of this Act.

SEC. 4. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act, 
the amendments made by this Act, and the application of such provision 
or amendment to any person or circumstance shall not be affected 
thereby.
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