[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 928 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 928
To amend the Age Discrimination in Employment Act of 1967 to require,
as a condition of receipt or use of Federal financial assistance, 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
May 22, 2001
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 or use of Federal financial assistance, 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 2001''.
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 the
Constitution 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 financial assistance is not used to
subsidize or facilitate violations 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 that Act, including employees in the private
sector, local government, and 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 that Act. In the absence of
the deterrent effect that such remedies provide, there is a
greater likelihood that entities carrying out programs and
activities receiving Federal financial assistance will use that
assistance to violate that Act, or that the assistance will
otherwise subsidize or facilitate violations of that Act.
(5) Federal law has long treated nondiscrimination
obligations as a core component of programs or activities that,
in whole or part, receive Federal financial assistance. That
assistance 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 programs or
activities receiving Federal financial assistance 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 1967 already forbade
discrimination in employment by, and authorized suits against, State
agencies and other entities that receive Federal financial assistance.
In section 1003 of the Rehabilitation Act Amendments of 1986 (42 U.S.C.
2000d-7), Congress required all State recipients of Federal financial
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 Federal financial assistance 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 financial assistance on acceptance
by the States or other recipients of conditions regarding or
related to the use of that assistance, 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 financial 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 or using Federal financial assistance,
and in order to ensure that Federal financial assistance does
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 or use of that
assistance.
(8) A State's receipt or use of Federal financial
assistance in any program or activity of a State will
constitute a limited waiver of sovereign immunity under section
7(g) of the Age Discrimination in Employment Act of 1967 (as
added by section 4 of this Act). The waiver will not eliminate
a State's immunity with respect to programs or activities that
do not receive or use Federal financial assistance. The State
will waive sovereign immunity only with respect to suits under
the Age Discrimination in Employment Act of 1967 brought by
employees within the programs or activities that receive or use
that assistance. With regard to those programs and activities
that are covered by the waiver, the State employees will be
accorded only the same remedies that are accorded to other
covered employees under the Age Discrimination in Employment
Act of 1967.
(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 that 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 that 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 programs or activities
that receive or use Federal financial assistance 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 or use of Federal financial
assistance for 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 injunctive 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 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 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 injunctive 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 invalid, 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 or uses Federal financial assistance
for 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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