[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 928 Reported in Senate (RS)]






                                                       Calendar No. 345
107th CONGRESS
  2d Session
                                 S. 928

                          [Report No. 107-142]

 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

                             April 15, 2002

               Reported by Mr. Kennedy, without amendment

_______________________________________________________________________

                                 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.




                                                       Calendar No. 345

107th CONGRESS

  2d Session

                                 S. 928

                          [Report No. 107-142]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             April 15, 2002

                       Reported without amendment