[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 3008 Introduced in Senate (IS)]







106th CONGRESS
  2d Session
                                S. 3008

 To amend the Age Discrimination in Employment Act of 1967 to require, 
    as a condition of receipt of Federal funding, that States waive 
immunity to suit for certain violations of that Act, and to affirm the 
     availability of certain suits for injunctive relief to ensure 
                       compliance with that Act.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 6, 2000

 Mr. Jeffords (for himself, Mr. Kennedy, and Mr. Feingold) introduced 
the following bill; which was read twice and referred to the Committee 
               on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To amend the Age Discrimination in Employment Act of 1967 to require, 
    as a condition of receipt of Federal funding, that States waive 
immunity to suit for certain violations of that Act, and to affirm the 
     availability of certain suits for injunctive relief to ensure 
                       compliance with that Act.

    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 ``Older Workers Rights Restoration Act 
of 2000''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Since 1974, the Age Discrimination in Employment Act of 
        1967 (29 U.S.C. 621 et seq.) has prohibited States from 
        discriminating in employment on the basis of age. In EEOC v. 
        Wyoming, 460 U.S. 226 (1983), the Supreme Court upheld 
        Congress' constitutional authority to prohibit States from 
        discriminating in employment on the basis of age. The 
        prohibitions of the Age Discrimination in Employment Act of 
        1967 remain in effect and continue to apply to the States, as 
        the prohibitions have for more than 25 years.
            (2) Age discrimination in employment remains a serious 
        problem both nationally and among State agencies, and has 
        invidious effects on its victims, the labor force, and the 
        economy as a whole. For example, age discrimination in 
        employment--
                    (A) increases the risk of unemployment among older 
                workers, who will as a result be more likely to be 
                dependent on government resources;
                    (B) prevents the best use of available labor 
                resources;
                    (C) adversely effects the morale and productivity 
                of older workers; and
                    (D) perpetuates unwarranted stereotypes about the 
                abilities of older workers.
            (3) Private civil suits by the victims of employment 
        discrimination have been a crucial tool for enforcement of the 
        Age Discrimination in Employment Act of 1967 since the 
        enactment of that Act. In Kimel v. Florida Board of Regents, 
        120 S. Ct. 631 (2000), however, the Supreme Court held that 
        Congress lacks the power under the 14th amendment to abrogate 
        State sovereign immunity to suits by individuals under the Age 
        Discrimination in Employment Act of 1967. The Federal 
        Government has an important interest in ensuring that Federal 
        funds are not used to facilitate violation of, the Age 
        Discrimination in Employment Act of 1967. Private civil suits 
        are a critical tool for advancing that interest.
            (4) As a result of the Kimel decision, although age-based 
        discrimination by State employers remains unlawful, the victims 
        of such discrimination lack important remedies for vindication 
        of their rights that are available to all other employees 
        covered under the Act, including employees in the private 
        sector, of local government, and of the Federal Government. 
        Unless a State chooses to waive sovereign immunity, or the 
        Equal Employment Opportunity Commission brings an action on 
        their behalf, State employees victimized by violations of the 
        Age Discrimination in Employment Act of 1967 have no adequate 
        Federal remedy for violations of the Act. In the absence of the 
        deterrent effect that such remedies provide, there is a greater 
        likelihood that entities carrying out federally funded programs 
        and activities will use Federal funds to violate the Act, or 
        that the Federal funds will otherwise subsidize or facilitate 
        violations of the Act.
            (5) Federal law has long treated nondiscrimination 
        obligations as a core component of programs or activities that 
        are, in whole or part, assisted by Federal funds. Federal funds 
        should not be used, directly or indirectly, to subsidize 
        invidious discrimination. Assuring nondiscrimination in 
        employment is a crucial aspect of assuring nondiscrimination in 
        those programs and activities.
            (6) Discrimination on the basis of age in federally 
        assisted programs or activities is, in contexts other than 
        employment, forbidden by the Age Discrimination Act of 1975 (42 
        U.S.C. 6101 et seq.). Congress determined that it was not 
        necessary for the Age Discrimination Act of 1975 to apply to 
        employment discrimination because the Age Discrimination in 
        Employment Act of 1974 already forbade discrimination in 
        employment by, and authorized suits against, State agencies and 
        other entities that receive Federal funds. In section 1003 of 
        the Rehabilitation Act Amendments of 1986 (42 U.S.C. 2000d-7), 
        Congress required all State recipients of Federal assistance to 
        waive any immunity from suit for discrimination claims arising 
        under the Age Discrimination Act of 1975. The earlier 
        limitation in the Age Discrimination Act of 1975, originally 
        intended only to avoid duplicative coverage and remedies, has 
        in the wake of the Kimel decision become a serious loophole 
        leaving millions of State employees without an important 
        Federal remedy for age discrimination resulting in the use of 
        such funds to subsidize or facilitate violations of the Age 
        Discrimination in Employment Act of 1967.
            (7) The Supreme Court has upheld Congress' authority to 
        condition receipt of Federal funds on acceptance by the States 
        or other recipients of conditions regarding or related to the 
        use of those funds, as in Cannon v. University of Chicago, 441 
        U.S. 677 (1979). The Court has further recognized that Congress 
        may require a State, as a condition of  receipt of Federal 
assistance, 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 Age Discrimination in 
Employment Act of 1967 in State programs or activities receiving 
Federal assistance, and in order to ensure that Federal funds do not 
subsidize or facilitate violations of the Age Discrimination in 
Employment Act of 1967, it is necessary to require such a waiver as a 
condition of receipt of that Federal financial assistance.
            (8) The waiver resulting from the acceptance of Federal 
        funds by 1 State program or activity under this Act will not 
        eliminate a State's immunity with respect to other programs or 
        activities that do not receive Federal funds; a State waives 
        sovereign immunity only with respect to Age Discrimination in 
        Employment Act of 1967 suits brought by employees within the 
        programs or activities that receive such funds. With regard to 
        those programs and activities that are covered by the waiver, 
        the State employees will be accorded only the same remedies 
        that were available to State employees under the Age 
        Discrimination in Employment Act of 1967 before Kimel and that 
        are accorded to all other covered employees under the Act.
            (9) 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 Age Discrimination in Employment Act of 1967 will 
        confirm that the Act authorizes such suits. The injunctive 
        relief available in such suits will continue to be no broader 
        than the injunctive relief that was available under the Act 
        before the Kimel decision, and that is available to all other 
        employees under that Act.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to provide to State employees in federally assisted 
        programs or activities the same rights and remedies for 
        practices violating the Age Discrimination in Employment Act of 
        1967 as are available to other employees under that Act, and 
        that were available to State employees prior to the Supreme 
        Court's decision in Kimel v. Florida Board of Regents, 120 S. 
        Ct. 631 (2000);
            (2) to provide that the receipt of Federal funding for use 
        in a program or activity constitutes a State waiver of 
        sovereign immunity from suits by employees within that program 
        or activity for violations of the Age Discrimination in 
        Employment Act of 1967; and
            (3) to affirm that suits for equitable relief are available 
        against State officials in their official capacities for 
        violations of the Age Discrimination in Employment Act of 1967.

SEC. 4. 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 financial 
assistance in 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 Act for equitable, legal, or other 
relief authorized under this Act.
    ``(B) In this paragraph, the term `program or activity' 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 equitable 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. 5. 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 another person or circumstance shall not be affected.

SEC. 6. EFFECTIVE DATE.

    (a) Waiver of Sovereign Immunity.--With respect 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 Act, 
on which a State first receives Federal financial assistance for use in 
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 Act.
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