[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2554 Introduced in Senate (IS)]







110th CONGRESS
  2d Session
                                S. 2554

  To restore, reaffirm, and reconcile legal rights and remedies under 
                         civil rights statutes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 24, 2008

Mr. Kennedy (for himself, Mr. Leahy, Mr. Dodd, Mr. Bingaman, Mr. Kerry, 
  Mr. Harkin, Ms. Mikulski, Mr. Akaka, Mrs. Boxer, Mr. Feingold, Mrs. 
   Murray, Mr. Durbin, Mr. Schumer, Ms. Cantwell, Mrs. Clinton, Mr. 
    Lautenberg, Mr. Obama, Mr. Menendez, Mr. Cardin, and Mr. Brown) 
introduced the following bill; which was read twice and referred to the 
          Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
  To restore, reaffirm, and reconcile legal rights and remedies under 
                         civil rights statutes.

    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 ``Civil Rights Act of 2008''.

SEC. 2. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.
 TITLE I--NONDISCRIMINATION IN FEDERALLY FUNDED PROGRAMS AND ACTIVITIES

Subtitle A--Private Rights of Action and the Disparate Impact Standard 
                                of Proof

Sec. 101. Findings.
Sec. 102. Prohibited discrimination.
Sec. 103. Rights of action.
Sec. 104. Right of recovery.
Sec. 105. Construction.
Sec. 106. Effective date.
                         Subtitle B--Harassment

Sec. 111. Findings.
Sec. 112. Right of recovery.
Sec. 113. Construction.
Sec. 114. Effective date.
TITLE II--EMPLOYER ACCOUNTABILITY FOR DISCRIMINATION BASED ON MILITARY 
                                SERVICE

Sec. 201. Amendment to the Uniformed Services Employment and 
                            Reemployment Rights Act of 1994.
       TITLE III--EMPLOYER ACCOUNTABILITY FOR AGE DISCRIMINATION

Sec. 301. Short title.
Sec. 302. Findings.
Sec. 303. Purposes.
Sec. 304. Remedies for State employees.
Sec. 305. Disparate impact claims.
Sec. 306. Effective date.
TITLE IV--IMPROVED ACCOUNTABILITY FOR OTHER VIOLATIONS OF CIVIL RIGHTS 
                          AND WORKERS' RIGHTS

          Subtitle A--Air Carrier Access Act of 1986 Amendment

Sec. 401. Findings.
Sec. 402. Civil action.
                      Subtitle B--Prevailing Party

Sec. 411. Short title.
Sec. 412. Definition of prevailing party.
                        Subtitle C--Arbitration

Sec. 421. Short title.
Sec. 422. Amendment to Federal Arbitration Act.
Sec. 423. Unenforceability of arbitration clauses in employment 
                            contracts.
Sec. 424. Application of amendments.
                    Subtitle D--Expert Witness Fees

Sec. 431. Purpose.
Sec. 432. Findings.
Sec. 433. Effective provisions.
                 Subtitle E--Equal Remedies Act of 2008

Sec. 441. Short title.
Sec. 442. Equalization of remedies.
          Subtitle F--Prohibitions Against Sex Discrimination

Sec. 451. Findings.
Sec. 452. Enhanced enforcement of equal pay requirements.
                  Subtitle G--Protections for Workers

             Chapter 1--Protection for Undocumented Workers

Sec. 461. Findings.
Sec. 462. Continued application of backpay remedies.
             Chapter 2--Fair Labor Standards Act Amendments

Sec. 466. Short title.
Sec. 467. Findings.
Sec. 468. Purposes.
Sec. 469. Remedies for State employees.

 TITLE I--NONDISCRIMINATION IN FEDERALLY FUNDED PROGRAMS AND ACTIVITIES

Subtitle A--Private Rights of Action and the Disparate Impact Standard 
                                of Proof

SEC. 101. FINDINGS.

    Congress finds the following:
            (1) This subtitle is made necessary by a decision of the 
        Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001) 
        that significantly impairs statutory protections against 
        discrimination that Congress has erected over a period of 
        almost 4 decades. The Sandoval decision undermines these 
        statutory protections by stripping victims of discrimination 
        (defined under regulations that Congress required Federal 
        departments and agencies to promulgate to implement title VI of 
        the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)) of the 
        right to bring action in Federal court to redress the 
        discrimination.
            (2) The Sandoval decision contradicts settled expectations 
        created by title VI of the Civil Rights Act of 1964, title IX 
        of the Education Amendments of 1972 (also known as the ``Patsy 
        Takemoto Mink Equal Opportunity in Education Act'') (20 U.S.C. 
        1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 
        6101 et seq.), and section 504 of the Rehabilitation Act of 
        1973 (29 U.S.C. 794) (collectively referred to in this Act as 
        the ``covered civil rights provisions''). The covered civil 
        rights provisions were designed to establish and make effective 
        the rights of persons to be free from discrimination on the 
        part of entities that are subject to 1 or more of the covered 
        civil rights provisions, as appropriate (referred to in this 
        Act as ``covered entities''). In 1964 Congress adopted title VI 
        of the Civil Rights Act of 1964 to ensure that Federal dollars 
        would not be used to subsidize or support programs or 
        activities that discriminated on racial, color, or national 
        origin grounds. In the years that followed, Congress extended 
        these protections by enacting laws barring discrimination in 
        federally funded education activities on the basis of sex in 
        title IX of the Education Amendments of 1972, and 
        discrimination in federally funded activities on the basis of 
        age in the Age Discrimination Act of 1975 and disability in 
        section 504 of the Rehabilitation Act of 1973.
            (3) All of the statutes cited in this section were designed 
        to confer a benefit on persons subject to discrimination. As 
        Congress has consistently recognized, effective enforcement of 
        the statutes and protection of the rights guaranteed under the 
        statutes depend heavily on the efforts of private attorneys 
        general. Congress acknowledged that it could not secure 
        compliance solely through administrative efforts and 
        enforcement actions initiated by the Attorney General. Newman 
        v. Piggie Park Enterprises, 390 U.S. 400 (1968) (per curiam).
            (4) The Supreme Court has made it clear that individuals 
        suffering discrimination under these statutes have a private 
        right of action in the Federal courts, and that this is 
        necessary for effective protection of the law, although 
        Congress did not make such a right of action explicit in the 
        statute involved. Cannon v. University of Chicago, 441 U.S. 677 
        (1979).
            (5) Furthermore, for effective enforcement of the statutes 
        cited in this section, it is necessary that the private right 
        of action include a means to challenge all forms of 
        discrimination that are prohibited by the statutes, including 
        practices that have a disparate impact and are not justified as 
        necessary to achieve the legitimate goals of programs or 
        activities supported by Federal financial assistance.
            (6) By reinstating a private right of action to challenge 
        disparate impact discrimination under title VI of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000d et seq.) and confirming 
        that right for other civil rights statutes, Congress is not 
        acting in a manner that would expose covered entities to unfair 
        findings of discrimination. The legal standard for a disparate 
        impact claim has never been structured so that a finding of 
        discrimination could be based on numerical imbalance alone.
            (7) In contrast, a failure to reinstate or confirm a 
        private right of action would leave vindication of the rights 
        to equality of opportunity solely to Federal agencies. Action 
        by Congress to specify a private right of action is necessary 
        to ensure that persons will have a remedy if they are denied 
        equal access to education, housing, health, environmental 
        protection, transportation, and many other programs and 
        services by practices of covered entities that result in 
        discrimination.
            (8) As a result of the Supreme Court's decision in 
        Sandoval, courts have dismissed numerous claims brought under 
        the regulations promulgated pursuant to title VI of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000d et seq.) that challenged 
        actions with an unjustified discriminatory effect. Although the 
        Sandoval Court did not address title IX of the Education 
        Amendments of 1972 (20 U.S.C. 1681 et seq.), lower courts have 
        similarly dismissed claims under such title.
            (9) Section 504 of the Rehabilitation Act of 1973 (29 
        U.S.C. 794) has received different treatment by the Supreme 
        Court. In Alexander v. Choate, 469 U.S. 287 (1985), the Court 
        proceeded on the assumption that the statute itself prohibited 
        some actions that had a disparate impact on handicapped 
        individuals--an assumption borne out by congressional 
        statements made during passage of the Act. In Sandoval, the 
        Court appeared to accept this principle of Alexander. Moreover, 
        the Supreme Court explicitly recognized congressional approval 
        of the regulations promulgated to implement section 504 of the 
        Rehabilitation Act of 1973 in Consolidated Rail Corp. v. 
        Darrone, 465 U.S. 624, 634 (1984). Relying on the validity of 
        the regulations, Congress incorporated the regulations into the 
        statutory requirements of section 204 of the Americans with 
        Disabilities Act of 1990 (42 U.S.C. 12134). Thus it does not 
        appear at this time that there is a risk that the private right 
        of action to challenge disparate impact discrimination under 
        section 504 of the Rehabilitation Act of 1973 will become 
        unavailable.
            (10) The right to maintain a private right of action under 
        a provision added to a statute under this subtitle will be 
        effectuated by a waiver of sovereign immunity in the same 
        manner as sovereign immunity is waived under the remaining 
        provisions of that statute.

SEC. 102. PROHIBITED DISCRIMINATION.

    (a) Civil Rights Act of 1964.--Section 601 of the Civil Rights Act 
of 1964 (42 U.S.C. 2000d) is amended--
            (1) by striking ``No'' and inserting ``(a) No''; and
            (2) by adding at the end the following:
    ``(b)(1)(A) Discrimination (including exclusion from participation 
and denial of benefits) based on disparate impact is established under 
this title only if--
            ``(i) a person aggrieved by discrimination on the basis of 
        race, color, or national origin (referred to in this title as 
        an `aggrieved person') demonstrates that an entity subject to 
        this title (referred to in this title as a `covered entity') 
        has a policy or practice that causes a disparate impact on the 
        basis of race, color, or national origin and the covered entity 
        fails to demonstrate that the challenged policy or practice is 
        related to and necessary to achieve the nondiscriminatory goals 
        of the program or activity alleged to have been operated in a 
        discriminatory manner; or
            ``(ii) the aggrieved person demonstrates (consistent with 
        the demonstration required under title VII with respect to an 
        `alternative employment practice') that a less discriminatory 
        alternative policy or practice exists, and the covered entity 
        refuses to adopt such alternative policy or practice.
    ``(B)(i) With respect to demonstrating that a particular policy or 
practice causes a disparate impact as described in subparagraph (A)(i), 
the aggrieved person shall demonstrate that each particular challenged 
policy or practice causes a disparate impact, except that if the 
aggrieved person demonstrates to the court that the elements of a 
covered entity's decisionmaking process are not capable of separation 
for analysis, the decisionmaking process may be analyzed as 1 policy or 
practice.
    ``(ii) If the covered entity demonstrates that a specific policy or 
practice does not cause the disparate impact, the covered entity shall 
not be required to demonstrate that such policy or practice is 
necessary to achieve the goals of its program or activity.
    ``(2) A demonstration that a policy or practice is necessary to 
achieve the goals of a program or activity may not be used as a defense 
against a claim of intentional discrimination under this title.
    ``(3) In this subsection, the term `demonstrates' means meets the 
burdens of production and persuasion.''.
    (b) Education Amendments of 1972.--Section 901 of the Education 
Amendments of 1972 (20 U.S.C. 1681) is amended--
            (1) by redesignating subsection (c) as subsection (e); and
            (2) by inserting after subsection (b) the following:
    ``(c)(1)(A) Subject to the conditions described in paragraphs (1) 
through (9) of subsection (a), discrimination (including exclusion from 
participation and denial of benefits) based on disparate impact is 
established under this title only if--
            ``(i) a person aggrieved by discrimination on the basis of 
        sex (referred to in this title as an `aggrieved person') 
        demonstrates that an entity subject to this title (referred to 
        in this title as a `covered entity') has a policy or practice 
        that causes a disparate impact on the basis of sex and the 
        covered entity fails to demonstrate that the challenged policy 
        or practice is related to and necessary to achieve the 
        nondiscriminatory goals of the program or activity alleged to 
        have been operated in a discriminatory manner; or
            ``(ii) the aggrieved person demonstrates (consistent with 
        the demonstration required under title VII of the Civil Rights 
        Act of 1964 (42 U.S.C. 2000e et seq.) with respect to an 
        `alternative employment practice') that a less discriminatory 
        alternative policy or practice exists, and the covered entity 
        refuses to adopt such alternative policy or practice.
    ``(B)(i) With respect to demonstrating that a particular policy or 
practice causes a disparate impact as described in subparagraph (A)(i), 
the aggrieved person shall demonstrate that each particular challenged 
policy or practice causes a disparate impact, except that if the 
aggrieved person demonstrates to the court that the elements of a 
covered entity's decisionmaking process are not capable of separation 
for analysis, the decisionmaking process may be analyzed as 1 policy or 
practice.
    ``(ii) If the covered entity demonstrates that a specific policy or 
practice does not cause the disparate impact, the covered entity shall 
not be required to demonstrate that such policy or practice is 
necessary to achieve the goals of its program or activity.
    ``(2) A demonstration that a policy or practice is necessary to 
achieve the goals of a program or activity may not be used as a defense 
against a claim of intentional discrimination under this title.
    ``(3) In this subsection, the term `demonstrates' means meets the 
burdens of production and persuasion.''.
    (c) Age Discrimination Act of 1975.--Section 303 of the Age 
Discrimination Act of 1975 (42 U.S.C. 6102) is amended--
            (1) by striking ``Pursuant'' and inserting ``(a) 
        Pursuant''; and
            (2) by adding at the end the following:
    ``(b)(1)(A) Subject to the conditions described in subsections (b) 
and (c) of section 304, discrimination (including exclusion from 
participation and denial of benefits) based on disparate impact is 
established under this title only if--
            ``(i) a person aggrieved by discrimination on the basis of 
        age (referred to in this title as an `aggrieved person') 
        demonstrates that an entity subject to this title (referred to 
        in this title as a `covered entity') has a policy or practice 
        that causes a disparate impact on the basis of age and the 
        covered entity fails to demonstrate that the challenged policy 
        or practice is related to and necessary to achieve the 
        nondiscriminatory goals of the program or activity alleged to 
        have been operated in a discriminatory manner; or
            ``(ii) the aggrieved person demonstrates (consistent with 
        the demonstration required under title VII of the Civil Rights 
        Act of 1964 (42 U.S.C. 2000e et seq.) with respect to an 
        `alternative employment practice') that a less discriminatory 
        alternative policy or practice exists, and the covered entity 
        refuses to adopt such alternative policy or practice.
    ``(B)(i) With respect to demonstrating that a particular policy or 
practice causes a disparate impact as described in subparagraph (A)(i), 
the aggrieved person shall demonstrate that each particular challenged 
policy or practice causes a disparate impact, except that if the 
aggrieved person demonstrates to the court that the elements of a 
covered entity's decisionmaking process are not capable of separation 
for analysis, the decisionmaking process may be analyzed as 1 policy or 
practice.
    ``(ii) If the covered entity demonstrates that a specific policy or 
practice does not cause the disparate impact, the covered entity shall 
not be required to demonstrate that such policy or practice is 
necessary to achieve the goals of its program or activity.
    ``(2) A demonstration that a policy or practice is necessary to 
achieve the goals of a program or activity may not be used as a defense 
against a claim of intentional discrimination under this title.
    ``(3) In this subsection, the term `demonstrates' means meets the 
burdens of production and persuasion.''.

SEC. 103. RIGHTS OF ACTION.

    (a) Civil Rights Act of 1964.--Section 602 of the Civil Rights Act 
of 1964 (42 U.S.C. 2000d-1) is amended--
            (1) by inserting ``(a)'' before ``Each Federal department 
        and agency which is empowered''; and
            (2) by adding at the end the following:
    ``(b) Any person aggrieved by the failure of a covered entity to 
comply with this title, including any regulation promulgated pursuant 
to this title, may bring a civil action in any Federal or State court 
of competent jurisdiction to enforce such person's rights.''.
    (b) Education Amendments of 1972.--Section 902 of the Education 
Amendments of 1972 (20 U.S.C. 1682) is amended--
            (1) by inserting ``(a)'' before ``Each Federal department 
        and agency which is empowered''; and
            (2) by adding at the end the following:
    ``(b) Any person aggrieved by the failure of a covered entity to 
comply with this title, including any regulation promulgated pursuant 
to this title, may bring a civil action in any Federal or State court 
of competent jurisdiction to enforce such person's rights.''.
    (c) Age Discrimination Act of 1975.--Section 305(e) of the Age 
Discrimination Act of 1975 (42 U.S.C. 6104(e)) is amended in the first 
sentence of paragraph (1), by striking ``this Act'' and inserting 
``this title, including a regulation promulgated to carry out this 
title,''.

SEC. 104. RIGHT OF RECOVERY.

    (a) Civil Rights Act of 1964.--Title VI of the Civil Rights Act of 
1964 (42 U.S.C. 2000d et seq.) is amended by inserting after section 
602 the following:

``SEC. 602A. ACTIONS BROUGHT BY AGGRIEVED PERSONS.

    ``(a) Claims Based on Proof of Intentional Discrimination.--In an 
action brought by an aggrieved person under this title against a 
covered entity who has engaged in unlawful intentional discrimination 
(not a practice that is unlawful because of its disparate impact) 
prohibited under this title (including its implementing regulations), 
the aggrieved person may recover equitable and legal relief (including 
compensatory and punitive damages), attorney's fees (including expert 
fees), and costs, except that punitive damages are not available 
against a government, government agency, or political subdivision.
    ``(b) Claims Based on the Disparate Impact Standard of Proof.--In 
an action brought by an aggrieved person under this title against a 
covered entity who has engaged in unlawful discrimination based on 
disparate impact prohibited under this title (including its 
implementing regulations), the aggrieved person may recover equitable 
relief, attorney's fees (including expert fees), and costs.''.
    (b) Education Amendments of 1972.--Title IX of the Education 
Amendments of 1972 (20 U.S.C. 1681 et seq.) is amended by inserting 
after section 902 the following:

``SEC. 902A. ACTIONS BROUGHT BY AGGRIEVED PERSONS.

    ``(a) Claims Based on Proof of Intentional Discrimination.--In an 
action brought by an aggrieved person under this title against a 
covered entity who has engaged in unlawful intentional discrimination 
(not a practice that is unlawful because of its disparate impact) 
prohibited under this title (including its implementing regulations), 
the aggrieved person may recover equitable and legal relief (including 
compensatory and punitive damages), attorney's fees (including expert 
fees), and costs, except that punitive damages are not available 
against a government, government agency, or political subdivision.
    ``(b) Claims Based on the Disparate Impact Standard of Proof.--In 
an action brought by an aggrieved person under this title against a 
covered entity who has engaged in unlawful discrimination based on 
disparate impact prohibited under this title (including its 
implementing regulations), the aggrieved person may recover equitable 
relief, attorney's fees (including expert fees), and costs.''.
    (c) Age Discrimination Act of 1975.--
            (1) In general.--Section 305 of the Age Discrimination Act 
        of 1975 (42 U.S.C. 6104) is amended by adding at the end the 
        following:
    ``(g)(1) In an action brought by an aggrieved person under this 
title against a covered entity who has engaged in unlawful intentional 
discrimination (not a practice that is unlawful because of its 
disparate impact) prohibited under this title (including its 
implementing regulations), the aggrieved person may recover equitable 
and legal relief (including compensatory and punitive damages), 
attorney's fees (including expert fees), and costs, except that 
punitive damages are not available against a government, government 
agency, or political subdivision.
    ``(2) In an action brought by an aggrieved person under this title 
against a covered entity who has engaged in unlawful discrimination 
based on disparate impact prohibited under this title (including its 
implementing regulations), the aggrieved person may recover equitable 
relief, attorney's fees (including expert fees), and costs.''.
            (2) Conformity of ada with title vi and title ix.--
                    (A) Eliminating waiver of right to fees if not 
                requested in complaint.--Section 305(e)(1) of the Age 
                Discrimination Act of 1975 (42 U.S.C. 6104(e)) is 
                amended--
                            (i) by striking ``to enjoin a violation'' 
                        and inserting ``to redress a violation''; and
                            (ii) by striking the second sentence and 
                        inserting the following: ``The Court shall 
                        award the costs of suit, including a reasonable 
                        attorney's fee (including expert fees), to the 
                        prevailing plaintiff.''.
                    (B) Eliminating unnecessary mandates: to exhaust 
                administrative remedies; and to delay suit longer than 
                180 days to obtain agency review.--Section 305(f) of 
                the Age Discrimination Act of 1975 (42 U.S.C. 6104(f)) 
                is amended by striking ``With respect to actions 
                brought for relief based on an alleged violation of the 
                provisions of this title,'' and inserting ``Actions 
                brought for relief based on an alleged violation of the 
                provisions of this title may be initiated in a court of 
                competent jurisdiction, pursuant to section 305(e), or 
                before the relevant Federal department or agency. With 
                respect to such actions brought initially before the 
                relevant Federal department or agency,''.
                    (C) Eliminating duplicative ``reasonableness'' 
                requirement; clarifying that ``reasonable factors other 
                than age'' is defense to a disparate impact claim, not 
                an exception to ada coverage.--Section 304(b)(1) of the 
                Age Discrimination Act of 1975 (42 U.S.C. 6103(b)(1)) 
                is amended by striking ``involved--'' and all that 
                follows through the period and inserting ``involved 
                such action reasonably takes into account age as a 
                factor necessary to the normal operation or the 
                achievement of any statutory objective of such program 
                or activity.''.
    (d) Rehabilitation Act of 1973.--Section 504 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794) is amended by adding at the end the 
following:
    ``(e)(1) In an action brought by a person aggrieved by 
discrimination on the basis of disability (referred to in this section 
as an `aggrieved person') under this section against an entity subject 
to this section (referred to in this section as a `covered entity') who 
has engaged in unlawful intentional discrimination (not a practice that 
is unlawful because of its disparate impact) prohibited under this 
section (including its implementing regulations), the aggrieved person 
may recover equitable and legal relief (including compensatory and 
punitive damages), attorney's fees (including expert fees), and costs, 
except that punitive damages are not available against a government, 
government agency, or political subdivision.
    ``(2) In an action brought by an aggrieved person under this 
section against a covered entity who has engaged in unlawful 
discrimination based on disparate impact prohibited under this section 
(including its implementing regulations), the aggrieved person may 
recover equitable relief, attorney's fees (including expert fees), and 
costs.''.

SEC. 105. CONSTRUCTION.

    (a) Relief.--Nothing in this subtitle, including any amendment made 
by this subtitle, shall be construed to limit the scope of, or the 
relief available under, section 504 of the Rehabilitation Act of 1973 
(29 U.S.C. 794), the Americans with Disabilities Act of 1990 (42 U.S.C. 
12101 et seq.), or any other provision of law.
    (b) Defendants.--Nothing in this subtitle, including any amendment 
made by this subtitle, shall be construed to limit the scope of the 
class of persons who may be subjected to civil actions under the 
covered civil rights provisions.

SEC. 106. EFFECTIVE DATE.

    (a) In General.--This subtitle, and the amendments made by this 
subtitle, take effect on the date of enactment of this Act.
    (b) Application.--This subtitle, and the amendments made by this 
subtitle, apply to all actions or proceedings pending on or after the 
date of enactment of this Act.

                         Subtitle B--Harassment

SEC. 111. FINDINGS.

    Congress finds the following:
            (1) As the Supreme Court has held, covered entities are 
        liable for harassment on the basis of sex under their education 
        programs and activities under title IX of the Education 
        Amendments of 1972 (20 U.S.C. 1681 et seq.) (referred to in 
        this subtitle as ``title IX''). Franklin v. Gwinnett County 
        Public Schools, 503 U.S. 60, 75 (1992) (damages remedy 
        available for harassment of student by a teacher coach); Davis 
        v. Monroe County Board of Education, 526 U.S. 629, 633 (1999) 
        (authorizing damages action against school board for student-
        on-student sexual harassment).
            (2) Courts have confirmed that covered entities are liable 
        for harassment on the basis of race, color, or national origin 
        under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 
        et seq.) (referred to in this subtitle as ``title VI''), e.g., 
        Bryant v. Independent School District No. I-38, 334 F.3d 928 
        (10th Cir. 2003) (liability for student-on-student racial 
        harassment). Moreover, judicial interpretation of the similarly 
        worded Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) 
        and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 
        794) has tracked that of title VI and title IX.
            (3) As these courts have properly recognized, harassment on 
        a prohibited basis under a program or activity, whether 
        perpetrated by employees or agents of the program or activity, 
        by peers of the victim, or by others who conduct harassment 
        under the program or activity, is a form of unlawful and 
        intentional discrimination that inflicts substantial harm on 
        beneficiaries of the program or activity and violates the 
        obligation of a covered entity to maintain a nondiscriminatory 
        environment.
            (4) In a 5 to 4 ruling, the Supreme Court held that 
        students subjected to sexual harassment may receive a damages 
        remedy under title IX only when school officials have ``actual 
        notice'' of the harassment and are ``deliberately indifferent'' 
        to it. Gebser v. Lago Vista Independent School District, 524 
        U.S. 274 (1998). See also Davis v. Monroe County Board of 
        Education, 526 U.S. 629 (1999).
            (5) The standard delineated in Gebser and followed in Davis 
        has been applied by lower courts regarding the liability of 
        covered entities for damages for harassment based on race, 
        color, or national origin under title VI. E.g., Bryant v. 
        Independent School District No. I-38, 334 F.3d 928 (10th Cir. 
        2003). Because of the similarities in the wording and 
        interpretation of the underlying statutes, this standard may be 
        applied to claims for damages brought under the Age 
        Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) and section 
        504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) as well.
            (6) Although they do not affect the relevant standards for 
        individuals to obtain injunctive and equitable relief for 
        harassment on the basis of race, color, sex, national origin, 
        age, or disability under covered programs and activities, 
        Gebser and its progeny severely limit the availability of 
        remedies for such individuals by imposing new, more stringent 
        standards for recovery of damages under title VI and title IX, 
        and potentially under the Age Discrimination Act of 1975 and 
        section 504 of the Rehabilitation Act of 1973. Yet in many 
        cases, damages are the only remedy that would effectively 
        rectify past harassment.
            (7) As recognized by the dissenters in Gebser, these 
        limitations on effective relief thwart Congress's underlying 
        purpose to protect students from harassment.
            (8) The rulings in Gebser and its progeny create an 
        incentive for covered entities to insulate themselves from 
        knowledge of harassment on the basis of race, color, sex, 
        national origin, age, or disability rather than adopting and 
        enforcing practices that will minimize the danger of such 
        harassment. The rulings thus undermine the purpose of 
        prohibitions on discrimination in the civil rights laws: ``to 
        induce [covered programs or activities] to adopt and enforce 
        practices that will minimize the danger that vulnerable 
        students [or other beneficiaries] will be exposed to such 
        odious behavior''. Gebser, 524 U.S. at 300 (Stevens, J., 
        dissenting).
            (9)(A) Legislative action is necessary and appropriate to 
        reverse Gebser and its progeny and restore the availability of 
        a full range of remedies for harassment based on race, color, 
        sex, national origin, age, or disability.
            (B) Restoring the availability of a full range of remedies 
        for harassment will--
                    (i) ensure that students and other beneficiaries of 
                federally funded programs and activities have 
                protection from harassment on the basis of race, color, 
                sex, national origin, age, or disability that is 
                comparable in strength and effectiveness to that 
                available to employees under title VII of the Civil 
                Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age 
                Discrimination in Employment Act of 1967 (29 U.S.C. 621 
                et seq.), and title I of the Americans with 
                Disabilities Act of 1990 (42 U.S.C. 12111 et seq.);
                    (ii) encourage covered entities to adopt and 
                enforce meaningful policies and procedures to prevent 
                and remedy harassment;
                    (iii) deter incidents of harassment; and
                    (iv) provide appropriate remedies for 
                discrimination.
            (10) Congress has the same affirmative powers to enact 
        legislation restoring the availability of a full range of 
        remedies for harassment as it did to enact the underlying 
        statutory prohibitions on harassment, including powers under 
        section 5 of the 14th amendment and section 8 of article I of 
        the Constitution.
            (11) The right to maintain a private right of action under 
        a provision added to a statute under this subtitle will be 
        effectuated by a waiver of sovereign immunity in the same 
        manner as sovereign immunity is waived under the remaining 
        provisions of that statute.

SEC. 112. RIGHT OF RECOVERY.

    (a) Civil Rights Act of 1964.--Section 602A of the Civil Rights Act 
of 1964, as added by section 104, is amended by adding at the end the 
following:
    ``(c) Claims Based on Harassment.--
            ``(1) Right of recovery.--In an action brought against a 
        covered entity by (including on behalf of) an aggrieved person 
        who has been subjected to unlawful harassment under a program 
        or activity, the aggrieved person may recover equitable and 
        legal relief (including compensatory and punitive damages 
        subject to the provisions of paragraph (2)), attorney's fees 
        (including expert fees), and costs.
            ``(2) Availability of damages.--
                    ``(A) Tangible action by agent or employee.--If an 
                agent or employee of a covered entity engages in 
                unlawful harassment under a program or activity that 
                results in a tangible action to the aggrieved person, 
                damages shall be available against the covered entity.
                    ``(B) No tangible action by agent or employee.--If 
                an agent or employee of a covered entity engages in 
                unlawful harassment under a program or activity that 
                results in no tangible action to the aggrieved person, 
                no damages shall be available against the covered 
                entity if it can demonstrate that--
                            ``(i) it exercised reasonable care to 
                        prevent and correct promptly any harassment 
                        based on race, color, or national origin; and
                            ``(ii) the aggrieved person unreasonably 
                        failed to take advantage of preventive or 
                        corrective opportunities offered by the covered 
                        entity that--
                                    ``(I) would likely have provided 
                                redress and avoided the harm described 
                                by the aggrieved person; and
                                    ``(II) would not have exposed the 
                                aggrieved person to undue risk, effort, 
                                or expense.
                    ``(C) Harassment by third party.--If a person who 
                is not an agent or employee of a covered entity 
                subjects an aggrieved person to unlawful harassment 
                under a program or activity, and the covered entity 
                involved knew or should have known of the harassment, 
                no damages shall be available against the covered 
                entity if it can demonstrate that it exercised 
                reasonable care to prevent and correct promptly any 
                harassment based on race, color, or national origin.
                    ``(D) Demonstration.--For purposes of subparagraphs 
                (B) and (C), a showing that the covered entity has 
                exercised reasonable care to prevent and correct 
                promptly any harassment based on race, color, or 
                national origin includes a demonstration by the covered 
                entity that it has--
                            ``(i) established, adequately publicized, 
                        and enforced an effective, comprehensive, 
                        harassment prevention policy and complaint 
                        procedure that is likely to provide redress and 
                        avoid harm without exposing the person 
                        subjected to the harassment to undue risk, 
                        effort, or expense;
                            ``(ii) undertaken prompt, thorough, and 
                        impartial investigations pursuant to its 
                        complaint procedure; and
                            ``(iii) taken immediate and appropriate 
                        corrective action designed to stop harassment 
                        that has occurred, correct its effects on the 
                        aggrieved person, and ensure that the 
                        harassment does not recur.
                    ``(E) Punitive damages.--Punitive damages shall not 
                be available under this subsection against a 
                government, government agency, or political 
                subdivision.
            ``(3) Definitions.--As used in this subsection:
                    ``(A) Demonstrates.--The term `demonstrates' means 
                meets the burdens of production and persuasion.
                    ``(B) Tangible action.--The term `tangible action' 
                means--
                            ``(i) a significant adverse change in an 
                        individual's status caused by an agent or 
                        employee of a covered entity with regard to the 
                        individual's participation in, access to, or 
                        enjoyment of, the benefits of a program or 
                        activity; or
                            ``(ii) an explicit or implicit condition by 
                        an agent or employee of a covered entity on an 
                        individual's participation in, access to, or 
                        enjoyment of, the benefits of a program or 
                        activity based on the individual's submission 
                        to the harassment.
                    ``(C) Unlawful harassment.--The term `unlawful 
                harassment' means harassment that is unlawful under 
                this title.''.
    (b) Education Amendments of 1972.--Section 902A of the Civil Rights 
Act of 1964, as added by section 104, is amended by adding at the end 
the following:
    ``(c) Claims Based on Harassment.--
            ``(1) Right of recovery.--In an action brought against a 
        covered entity by (including on behalf of) an aggrieved person 
        who has been subjected to unlawful harassment under a program 
        or activity, the aggrieved person may recover equitable and 
        legal relief (including compensatory and punitive damages 
        subject to the provisions of paragraph (2)), attorney's fees 
        (including expert fees), and costs.
            ``(2) Availability of damages.--
                    ``(A) Tangible action by agent or employee.--If an 
                agent or employee of a covered entity engages in 
                unlawful harassment under a program or activity that 
                results in a tangible action to the aggrieved person, 
                damages shall be available against the covered entity.
                    ``(B) No tangible action by agent or employee.--If 
                an agent or employee of a covered entity engages in 
                unlawful harassment under a program or activity that 
                results in no tangible action to the aggrieved person, 
                no damages shall be available against the covered 
                entity if it can demonstrate that--
                            ``(i) it exercised reasonable care to 
                        prevent and correct promptly any harassment 
                        based on sex; and
                            ``(ii) the aggrieved person unreasonably 
                        failed to take advantage of preventive or 
                        corrective opportunities offered by the covered 
                        entity that--
                                    ``(I) would likely have provided 
                                redress and avoided the harm described 
                                by the aggrieved person; and
                                    ``(II) would not have exposed the 
                                aggrieved person to undue risk, effort, 
                                or expense.
                    ``(C) Harassment by third party.--If a person who 
                is not an agent or employee of a covered entity 
                subjects an aggrieved person to unlawful harassment 
                under a program or activity, and the covered entity 
                knew or should have known of the harassment, no damages 
                shall be available against the covered entity if it can 
                demonstrate that it exercised reasonable care to 
                prevent and correct promptly any harassment based on 
                sex.
                    ``(D) Demonstration.--For purposes of subparagraphs 
                (B) and (C), a showing that the covered entity has 
                exercised reasonable care to prevent and correct 
                promptly any harassment based on sex includes a 
                demonstration by the covered entity that it has--
                            ``(i) established, adequately publicized, 
                        and enforced an effective, comprehensive, 
                        harassment prevention policy and complaint 
                        procedure that is likely to provide redress and 
                        avoid harm without exposing the person 
                        subjected to the harassment to undue risk, 
                        effort, or expense;
                            ``(ii) undertaken prompt, thorough, and 
                        impartial investigations pursuant to its 
                        complaint procedure; and
                            ``(iii) taken immediate and appropriate 
                        corrective action designed to stop harassment 
                        that has occurred, correct its effects on the 
                        aggrieved person, and ensure that the 
                        harassment does not recur.
                    ``(E) Punitive damages.--Punitive damages shall not 
                be available under this subsection against a 
                government, government agency, or political 
                subdivision.
            ``(3) Definitions.--As used in this subsection:
                    ``(A) Demonstrates.--The term `demonstrates' means 
                meets the burdens of production and persuasion.
                    ``(B) Tangible action.--The term `tangible action' 
                means--
                            ``(i) a significant adverse change in an 
                        individual's status caused by an agent or 
                        employee of a covered entity with regard to the 
                        individual's participation in, access to, or 
                        enjoyment of, the benefits of a program or 
                        activity; or
                            ``(ii) an explicit or implicit condition by 
                        an agent or employee of a covered entity on an 
                        individual's participation in, access to, or 
                        enjoyment of, the benefits of a program or 
                        activity based on the individual's submission 
                        to the harassment.
                    ``(C) Unlawful harassment.--The term `unlawful 
                harassment' means harassment that is unlawful under 
                this title.''.
    (c) Age Discrimination Act of 1975.--Section 305(g) of the Age 
Discrimination Act of 1975, as added by section 104, is amended by 
adding at the end the following:
    ``(3)(A) If an action brought against a covered entity by 
(including on behalf of) an aggrieved person who has been subjected to 
unlawful harassment under a program or activity, the aggrieved person 
may recover equitable and legal relief (including compensatory and 
punitive damages subject to the provisions of subparagraph (B)), 
attorney's fees (including expert fees), and costs.
    ``(B)(i) If an agent or employee of a covered entity engages in 
unlawful harassment under a program or activity that results in a 
tangible action to the aggrieved person, damages shall be available 
against the covered entity.
    ``(ii) If an agent or employee of a covered entity engages in 
unlawful harassment under a program or activity that results in no 
tangible action to the aggrieved person, no damages shall be available 
against the covered entity if it can demonstrate that--
            ``(I) it exercised reasonable care to prevent and correct 
        promptly any harassment based on age; and
            ``(II) the aggrieved person unreasonably failed to take 
        advantage of preventive or corrective opportunities offered by 
        the covered entity that--
                    ``(aa) would likely have provided redress and 
                avoided the harm described by the aggrieved person; and
                    ``(bb) would not have exposed the aggrieved person 
                to undue risk, effort, or expense.
    ``(iii) If a person who is not an agent or employee of a covered 
entity subjects an aggrieved person to unlawful harassment under a 
program or activity, and the covered entity knew or should have known 
of the harassment, no damages shall be available against the covered 
entity if it can demonstrate that it exercised reasonable care to 
prevent and correct promptly any harassment based on age.
    ``(iv) For purposes of clauses (ii) and (iii), a showing that the 
covered entity has exercised reasonable care to prevent and correct 
promptly any harassment based on age includes a demonstration by the 
covered entity that it has--
            ``(I) established, adequately publicized, and enforced an 
        effective, comprehensive, harassment prevention policy and 
        complaint procedure that is likely to provide redress and avoid 
        harm without exposing the person subjected to the harassment to 
        undue risk, effort, or expense;
            ``(II) undertaken prompt, thorough, and impartial 
        investigations pursuant to its complaint procedure; and
            ``(III) taken immediate and appropriate corrective action 
        designed to stop harassment that has occurred, correct its 
        effects on the aggrieved person, and ensure that the harassment 
        does not recur.
    ``(v) Punitive damages shall not be available under this paragraph 
against a government, government agency, or political subdivision.
    ``(C) As used in this paragraph:
            ``(i) The term `demonstrates' means meets the burdens of 
        production and persuasion.
            ``(ii) The term `tangible action' means--
                    ``(I) a significant adverse change in an 
                individual's status caused by an agent or employee of a 
                covered entity with regard to the individual's 
                participation in, access to, or enjoyment of, the 
                benefits of a program or activity; or
                    ``(II) an explicit or implicit condition by an 
                agent or employee of a covered entity on an 
                individual's participation in, access to, or enjoyment 
                of, the benefits of a program or activity based on the 
                individual's submission to the harassment.
            ``(iii) The term `unlawful harassment' means harassment 
        that is unlawful under this title.''.
    (d) Rehabilitation Act of 1973.--Section 504(e) of the 
Rehabilitation Act of 1973, as added by section 104, is amended by 
adding at the end the following:
    ``(3)(A) In an action brought against a covered entity by 
(including on behalf of) an aggrieved person who has been subjected to 
unlawful harassment under a program or activity, the aggrieved person 
may recover equitable and legal relief (including compensatory and 
punitive damages subject to the provisions of subparagraph (B)), 
attorney's fees (including expert fees), and costs.
    ``(B)(i) If an agent or employee of a covered entity engages in 
unlawful harassment under a program or activity that results in a 
tangible action to the aggrieved person, damages shall be available 
against the covered entity.
    ``(ii) If an agent or employee of a covered entity engages in 
unlawful harassment under a program or activity that results in no 
tangible action to the aggrieved person, no damages shall be available 
against the covered entity if it can demonstrate that--
            ``(I) it exercised reasonable care to prevent and correct 
        promptly any harassment based on disability; and
            ``(II) the aggrieved person unreasonably failed to take 
        advantage of preventive or corrective opportunities offered by 
        the covered entity that--
                    ``(aa) would likely have provided redress and 
                avoided the harm described by the aggrieved person; and
                    ``(bb) would not have exposed the aggrieved person 
                to undue risk, effort, or expense.
    ``(iii) If a person who is not an agent or employee of a covered 
entity subjects an aggrieved person to unlawful harassment under a 
program or activity, and the covered entity knew or should have known 
of the harassment, no damages shall be available against the covered 
entity if it can demonstrate that it exercised reasonable care to 
prevent and correct promptly any harassment based on disability.
    ``(iv) For purposes of clauses (ii) and (iii), a showing that the 
covered entity has exercised reasonable care to prevent and correct 
promptly any harassment based on disability includes a demonstration by 
the covered entity that it has--
            ``(I) established, adequately publicized, and enforced an 
        effective, comprehensive, harassment prevention policy and 
        complaint procedure that is likely to provide redress and avoid 
        harm without exposing the person subjected to the harassment to 
        undue risk, effort, or expense;
            ``(II) undertaken prompt, thorough, and impartial 
        investigations pursuant to its complaint procedure; and
            ``(III) taken immediate and appropriate corrective action 
        designed to stop harassment that has occurred, correct its 
        effects on the aggrieved person, and ensure that the harassment 
        does not recur.
    ``(v) Punitive damages shall not be available under this paragraph 
against a government, government agency, or political subdivision.
    ``(C) As used in this paragraph:
            ``(i) The term `demonstrates' means meets the burdens of 
        production and persuasion.
            ``(ii) The term `tangible action' means--
                    ``(I) a significant adverse change in an 
                individual's status caused by an agent or employee of a 
                covered entity with regard to the individual's 
                participation in, access to, or enjoyment of, the 
                benefits of a program or activity; or
                    ``(II) an explicit or implicit condition by an 
                agent or employee of a covered entity on an 
                individual's participation in, access to, or enjoyment 
                of, the benefits of a program or activity based on the 
                individual's submission to the harassment.
            ``(iii) The term `unlawful harassment' means harassment 
        that is unlawful under this section.''.

SEC. 113. CONSTRUCTION.

    Nothing in this subtitle, including any amendment made by this 
subtitle, shall be construed to limit the scope of the class of persons 
who may be subjected to civil actions under the covered civil rights 
provisions.

SEC. 114. EFFECTIVE DATE.

    (a) In General.--This subtitle, and the amendments made by this 
subtitle, take effect on the date of enactment of this Act.
    (b) Application.--This subtitle, and the amendments made by this 
subtitle, apply to all actions or proceedings pending on or after the 
date of enactment of this Act.

TITLE II--EMPLOYER ACCOUNTABILITY FOR DISCRIMINATION BASED ON MILITARY 
                                SERVICE

SEC. 201. AMENDMENT TO THE UNIFORMED SERVICES EMPLOYMENT AND 
              REEMPLOYMENT RIGHTS ACT OF 1994.

    (a) Findings.--Congress makes the following findings:
            (1) The Federal Government has an important interest in 
        attracting and training a military to provide for the National 
        defense. The Constitution grants Congress the power to raise 
        and support an army for purposes of the common defense. The 
        Nation's military readiness requires that all members of the 
        Armed Forces, including those employed in State programs and 
        activities, be able to serve without jeopardizing their 
        civilian employment opportunities.
            (2) The Uniformed Services Employment and Reemployment 
        Rights Act of 1994, commonly referred to as ``USERRA'' and 
        codified as chapter 43 of title 38, United States Code, is 
        intended to safeguard the reemployment rights of members of the 
        uniformed services (as that term is defined in section 4303(16) 
        of title 38, United States Code) and to prevent discrimination 
        against any person who is a member of, applies to be a member 
        of, performs, has performed, applies to perform, or has an 
        obligation to perform service in a uniformed service. Effective 
        enforcement of the Act depends on the ability of private 
        individuals to enforce its provisions in court.
            (3) In Seminole Tribe of Florida v. Florida, 517 U.S. 44 
        (1996), the Supreme Court held that congressional legislation, 
        enacted pursuant to the portion of section 8 of article I of 
        the Constitution relating to regulation of Commerce among the 
        several States, cannot abrogate the immunity of States under 
        the 11th amendment to the Constitution. Some courts have 
        interpreted Seminole Tribe of Florida v. Florida as a basis for 
        denying relief to persons affected by a State violation of 
        USERRA. In addition, in Alden v. Maine 527 U.S. 706, 712 
        (1999), the Supreme Court held that this immunity also 
        prohibits the Federal Government from subjecting ``non-
        consenting states to private suits for damages in state 
        courts.'' As a result, although USERRA specifically provides 
        that a person may commence an action for relief against a State 
        for its violation of that Act, persons harmed by State 
        violations of that Act lack important remedies to vindicate the 
        rights and benefits that are available to all other persons 
        covered by that Act. Unless a State chooses to waive sovereign 
        immunity, or the Attorney General brings an action on their 
        behalf, persons affected by State violations of USERRA may have 
        no adequate Federal remedy for such violations.
            (4) A failure to provide a private right of action by 
        persons affected by State violations of USERRA would leave 
        vindication of their rights and benefits under that Act solely 
        to Federal agencies, which may fail to take necessary and 
        appropriate action because of administrative overburden or 
        other reasons. Action by Congress to specify such a private 
        right of action ensures that persons affected by State 
        violations of USERRA have a remedy if they are denied their 
        rights and benefits under that Act.
    (b) Clarification of Right of Action Under USERRA.--Section 4323 of 
title 38, United States Code, is amended--
            (1) in subsection (b), by striking paragraph (2) and 
        inserting the following new paragraph (2):
    ``(2) In the case of an action against a State (as an employer) by 
a person, the action may be brought in a district court of the United 
States or State court of competent jurisdiction.'';
            (2) by redesignating subsection (j) as subsection (k); and
            (3) by inserting after subsection (i) the following new 
        subsection (j):
    ``(j)(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 chapter for the rights or benefits 
authorized the employee by this chapter.
    ``(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 person covered by paragraph (1) who seeks 
injunctive relief against a State (as an employer) under subsection 
(e). 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).''.

       TITLE III--EMPLOYER ACCOUNTABILITY FOR AGE DISCRIMINATION

SEC. 301. SHORT TITLE.

    This title may be cited as the ``Older Workers' Rights Restoration 
Act of 2008''.

SEC. 302. FINDINGS.

    Congress finds the following:
            (1)(A) 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.
            (B) For example, age discrimination in employment--
                    (i) increases the risk of unemployment among older 
                workers, who will as a result be more likely to be 
                dependent on government resources;
                    (ii) prevents the best use of available labor 
                resources;
                    (iii) adversely affects the morale and productivity 
                of older workers; and
                    (iv) perpetuates unwarranted stereotypes about the 
                abilities of older workers.
            (C) As a result, 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 (29 U.S.C. 621 et 
        seq.) (referred to in this section as the ``ADEA'').
            (2) Private civil suits by the victims of employment 
        discrimination have been a crucial tool for enforcement of the 
        ADEA since the enactment of that Act. In Kimel v. Florida Board 
        of Regents, 528 U.S. 62 (2000), however, the Supreme Court held 
        that Congress had not abrogated State sovereign immunity to 
        suits by individuals under the ADEA.
            (3) 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. 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.
            (4) The Supreme Court has upheld Congress's authority to 
        condition receipt of Federal financial assistance on acceptance 
        by the States or other covered entities 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 
        ADEA 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 ADEA, it is necessary to require such a 
        waiver as a condition of receipt or use of that assistance.
            (5) 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 ADEA (as added by section 304). 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 ADEA 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 ADEA.
            (6) 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 ADEA will confirm 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.
            (7) In 1991, Congress reaffirmed that title VII of the 
        Civil Rights Act of 1964 permits victims of employment bias to 
        state a cause of action for disparate impact discrimination 
        when it added a provision to title VII of the Civil Rights Act 
        of 1964 to clarify the burden of proof in disparate impact 
        cases in section 703(k) of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e-2(k)).
            (8) In Smith v. City of Jackson, 544 U.S. 228 (2005), the 
        Supreme Court held that the ADEA permits older workers to state 
        a cause of action for disparate impact discrimination. The 
        Smith Court incorrectly held, however, that the scope of 
        disparate impact claims is narrower under the ADEA than under 
        title VII. Congress did not intend the ADEA to be interpreted 
        to provide older workers less protections against 
        discrimination than those protected under title VII of the 
        Civil Rights Act of 1964. As a result, it is necessary to 
        clarify the burden of proof in a disparate impact case under 
        the ADEA.

SEC. 303. PURPOSES.

    The purposes of this title 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 (29 U.S.C. 621 et 
        seq.) 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, 528 U.S. 
        62 (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;
            (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; and
            (4) to clarify the disparate impact standard of proof in 
        claims under the Age Discrimination in Employment Act of 1967.

SEC. 304. 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. 305. DISPARATE IMPACT CLAIMS.

    Section 4 of the Age Discrimination in Employment Act of 1967 (29 
U.S.C. 623) is amended by adding at the end the following:
    ``(n)(1) Discrimination based on disparate impact is established 
under this Act only if--
            ``(A) an aggrieved party demonstrates that an employer, 
        employment agency, or labor organization has a policy or 
        practice that causes a disparate impact on the basis of age and 
        the employer, employment agency, or labor organization fails to 
        demonstrate that the challenged policy or practice is based on 
        reasonable factors that are job-related and consistent with 
        business necessity other than age; or
            ``(B) the aggrieved party demonstrates (consistent with the 
        demonstration standard under title VII of the Civil Rights Act 
        of 1964 (42 U.S.C. 2000e et seq.) with respect to an 
        `alternative employment practice') that a less discriminatory 
        alternative policy or practice exists, and the employer, 
        employment agency, or labor organization refuses to adopt such 
        alternative policy or practice.
    ``(2)(A) With respect to demonstrating that a particular policy or 
practice causes a disparate impact as described in paragraph (1)(A), 
the aggrieved party shall demonstrate that each particular challenged 
policy or practice causes a disparate impact, except that if the 
aggrieved party demonstrates to the court that the elements of an 
employer, employment agency, or labor organization's decisionmaking 
process are not capable of separation for analysis, the decisionmaking 
process may be analyzed as one policy or practice.
    ``(B) If the employer, employment agency, or labor organization 
demonstrates that a specific policy or practice does not cause the 
disparate impact, the employer, employment agency, or labor 
organization shall not be required to demonstrate that such policy or 
practice is necessary to the operation of its business.
    ``(3) A demonstration that a policy or practice is necessary to the 
operation of the employer, employment agency, or labor organization's 
business may not be used as a defense against a claim of intentional 
discrimination under this Act.
    ``(4) In this subsection, the term `demonstrates' means meets the 
burdens of production and persuasion.''.

SEC. 306. 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 
title, 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 title.

TITLE IV--IMPROVED ACCOUNTABILITY FOR OTHER VIOLATIONS OF CIVIL RIGHTS 
                          AND WORKERS' RIGHTS

          Subtitle A--Air Carrier Access Act of 1986 Amendment

SEC. 401. FINDINGS.

    Congress finds the following:
            (1) Relying on the Supreme Courts's decision in Alexander 
        v. Sandoval, 532 U.S. 275 (2001), some courts have erroneously 
        held that when Congress passed the Air Carrier Access Act of 
        1986 (Public Law 99-435; 100 Stat. 1080), adding a provision 
        now codified at section 41705 of title 49, United States Code 
        (referred to in this subtitle as the ``ACAA''), Congress did 
        not intend to create a private right of action with which 
        individuals with disabilities could sue air carriers in Federal 
        court for discrimination on the basis of disability. Love v. 
        Delta Air Lines, 310 F. 3d 1347 (11th Cir. 2002)
            (2) The absence of a private right of action leaves 
        enforcement of the ACAA solely in the hands of the Department 
        of Transportation, which is overburdened and lacks the 
        resources to investigate, prosecute violators for, and 
        remediate all of the violations of the rights of travelers who 
        are individuals with disabilities. Nor can the Department of 
        Transportation bring an action that will redress the injury of 
        an individual resulting from such a violation. The Department 
        of Transportation can take action that fines an air carrier or 
        requires the air carrier to obey the law in the future, but the 
        Department is not authorized to issue orders that redress the 
        injuries sustained by individual air passengers. Action by 
        Congress is necessary to ensure that individuals with 
        disabilities will have adequate remedies available when air 
        carriers violate the ACAA (including its regulations), and only 
        courts may provide this redress to individuals.
            (3) When an air carrier violates the ACAA and discriminates 
        against an individual with a disability, frequently the only 
        way to compensate that individual for the harm the individual 
        has suffered is through an award of money damages.
            (4) Unlike other civil rights statutes, the ACAA does not 
        contain a fee-shifting provision under which a prevailing 
        plaintiff can be awarded attorney's fees. Action by Congress is 
        necessary to correct this anomaly. The availability of 
        attorney's fees is essential to ensuring that persons who have 
        been aggrieved by violations of the ACAA can enforce their 
        rights. The inclusion of a fee-shifting provision in the ACAA 
        will permit individuals to serve as private attorneys general, 
        a necessary role on which enforcement of civil rights statutes 
        depends.

SEC. 402. CIVIL ACTION.

    Section 41705 of title 49, United States Code, is amended by adding 
at the end the following:
    ``(d) Civil Action.--(1) Any person aggrieved by an air carrier's 
violation of subsection (a) (including any regulation implementing such 
subsection) may bring a civil action in the district court of the 
United States in the district in which the aggrieved person resides, in 
the district containing the air carrier's principal place of business, 
or in the district in which the violation took place. Any such action 
must be commenced within 2 years after the date of the violation.
    ``(2) In any civil action brought by an aggrieved person pursuant 
to paragraph (1), the plaintiff may obtain both equitable and legal 
relief, including compensatory and punitive damages. The court in such 
action shall, in addition to such relief awarded to a prevailing 
plaintiff, award reasonable attorney's fees, reasonable expert fees, 
and costs of the action to the plaintiff.''.

                      Subtitle B--Prevailing Party

SEC. 411. SHORT TITLE.

    This subtitle may be cited as the ``Settlement Encouragement and 
Fairness Act''.

SEC. 412. DEFINITION OF PREVAILING PARTY.

    (a) In General.--Chapter 1 of title 1, United States Code, is 
amended by adding at the end the following:
``Sec. 9. Definition of `prevailing party'
    ``(a) In determining the meaning of any Act of Congress, or of any 
ruling, regulation, or interpretation of the various administrative 
bureaus and agencies of the United States, or of any judicial or 
administrative rule, which provides for the recovery of attorney's 
fees, the term `prevailing party' shall include, in addition to a party 
who substantially prevails through a judicial or administrative 
judgment or order, or an enforceable written agreement, a party whose 
pursuit of a nonfrivolous claim or defense was a catalyst for a 
voluntary or unilateral change in position by the opposing party that 
provides any significant part of the relief sought.
    ``(b)(1) If an Act, ruling, regulation, interpretation, or rule 
described in subsection (a) requires a defendant, but not a plaintiff, 
to satisfy certain different or additional criteria to qualify for the 
recovery of attorney's fees, subsection (a) shall not affect the 
requirement that such defendant satisfy such criteria.
    ``(2) If an Act, ruling, regulation, interpretation, or rule 
described in subsection (a) requires a party to satisfy certain 
criteria, unrelated to whether or not such party has prevailed, to 
qualify for the recovery of attorney's fees, subsection (a) shall not 
affect the requirement that such party satisfy such criteria.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 1 of title 1, United States Code, is amended by adding at the 
end the following new item:

``9. Definition of `prevailing party'.''.
    (c) Application.--Section 9 of title 1, United States Code, as 
added by this Act, shall apply to any case pending or filed on or after 
the date of enactment of this subtitle.

                        Subtitle C--Arbitration

SEC. 421. SHORT TITLE.

    This subtitle may be cited as the ``Preservation of Civil Rights 
Protections Act of 2008''.

SEC. 422. AMENDMENT TO FEDERAL ARBITRATION ACT.

    Section 1 of title 9, United States Code, is amended by striking 
``of seamen'' and all that follows through ``commerce''.

SEC. 423. UNENFORCEABILITY OF ARBITRATION CLAUSES IN EMPLOYMENT 
              CONTRACTS.

    (a) Protection of Employee Rights.--Notwithstanding any other 
provision of law, any clause of any agreement between an employer and 
an employee that requires arbitration of a dispute arising under the 
Constitution or laws of the United States shall not be enforceable.
    (b) Exceptions.--
            (1) Waiver or consent after dispute arises.--Subsection (a) 
        shall not apply with respect to any dispute if, after such 
        dispute arises, the parties involved knowingly and voluntarily 
        consent to submit such dispute to arbitration.
            (2) Collective bargaining agreements.--Subsection (a) shall 
        not preclude the enforcement of any of the rights or terms of a 
        valid collective bargaining agreement.

SEC. 424. APPLICATION OF AMENDMENTS.

    This subtitle and the amendment made by section 422 shall apply 
with respect to all employment contracts in force before, on, or after 
the date of enactment of this subtitle.

                    Subtitle D--Expert Witness Fees

SEC. 431. PURPOSE.

    The purpose of this subtitle is to allow recovery of expert fees by 
prevailing parties under civil rights fee-shifting statutes.

SEC. 432. FINDINGS.

    Congress finds the following:
            (1) This subtitle is made necessary by the decision of the 
        Supreme Court in West Virginia University Hospitals Inc. v. 
        Casey, 499 U.S. 83 (1991). In Casey, the Court, per Justice 
        Scalia, ruled that expert fees were not recoverable under 
        section 722 of the Revised Statutes (42 U.S.C. 1988), as 
        amended by the Civil Rights Attorney's Fees Awards Act of 1976 
        (Public Law 94-559; 90 Stat. 2641), because the amendment made 
        by the Civil Rights Attorney's Fees Awards Act of 1976 
        expressly authorized an award of an ``attorney's fee'' to a 
        prevailing party but said nothing expressly about expert fees.
            (2) This subtitle is especially necessary both because of 
        the important roles played by experts in civil rights 
        litigation and because expert fees often represent a major cost 
        of the litigation.
            (3) In the Civil Rights Act of 1991 (Public Law 102-166; 
        105 Stat. 1071), Congress amended title VII of the Civil Rights 
        Act of 1964 (42 U.S.C. 2000e et seq.) and section 722 of the 
        Revised Statutes (42 U.S.C. 1988) to include express 
        authorizations of the recovery of expert fees in successful 
        employment discrimination litigation. It is long past time to 
        ensure that expert fees are available in Federal litigation 
        under other civil rights statutes.

SEC. 433. EFFECTIVE PROVISIONS.

    (a) Section 722 of the Revised Statutes.--Section 722 of the 
Revised Statutes (42 U.S.C. 1988) is amended--
            (1) in subsection (b), by inserting ``(including expert 
        fees)'' after ``attorney's fee''; and
            (2) by striking subsection (c).
    (b) Fair Labor Standards Act of 1938.--Section 16(b) of the Fair 
Labor Standards Act of 1938 (29 U.S.C. 216(b)) is amended by inserting 
``(including expert fees)'' after ``attorney's fee''.
    (c) Fair Housing Act.--Title VIII of the Civil Rights Act of 1968 
(42 U.S.C. 3601 et seq.) is amended--
            (1) in section 812(p), by inserting ``(including expert 
        fees)'' after ``attorney's fee'';
            (2) in section 813(c)(2), by inserting ``(including expert 
        fees)'' after ``attorney's fee''; and
            (3) in section 814(d)(2), by inserting ``(including expert 
        fees)'' after ``attorney's fee''.
    (d) IDEA.--Section 615(i)(3)(B) of the Individuals with 
Disabilities Education Act (20 U.S.C. 1415(i)(3)(B)) is amended by 
inserting ``(including expert fees)'' after ``reasonable attorney's 
fees''.
    (e) Civil Rights Act of 1964.--Section 204(b) of the Civil Rights 
Act of 1964 (42 U.S.C. 2000a-3(b)) is amended by inserting ``(including 
expert fees)'' after ``attorney's fee''.
    (f) Rehabilitation Act of 1973.--Section 505(b) of the 
Rehabilitation Act of 1973 (29 U.S.C. 794a(b)) is amended by inserting 
``(including expert fees)'' after ``attorney's fee''.
    (g) Equal Credit Opportunity Act.--Section 706(d) of the Equal 
Credit Opportunity Act (15 U.S.C. 1691e(d)) is amended by inserting 
``(including expert fees)'' after ``attorney's fee''.
    (h) Fair Credit Reporting Act.--The Fair Credit Reporting Act (15 
U.S.C. 1681 et seq.) is amended--
            (1) in section 616(a)(3), by inserting ``(including expert 
        fees)'' after ``attorney's fees''; and
            (2) in section 617(a)(2), by inserting ``(including expert 
        fees)'' after ``attorney's fees''.
    (i) Freedom of Information Act.--Section 552(a)(4)(E) of title 5, 
United States Code, is amended by inserting ``(including expert fees)'' 
after ``attorney fees''.
    (j) Privacy Act.--Section 552a(g) of title 5, United States Code, 
is amended--
            (1) in paragraph (2)(B), by inserting ``(including expert 
        fees)'' after ``attorney fees'';
            (2) in paragraph (3)(B), by inserting ``(including expert 
        fees)'' after ``attorney fees''; and
            (3) in paragraph (4)(B), by inserting ``(including expert 
        fees)'' after ``attorney fees''.
    (k) Truth in Lending Act.--Section 130(a)(3) of the Truth in 
Lending Act (15 U.S.C. 1640(a)(3)) is amended by inserting ``(including 
expert fees)'' after ``attorney's fee''.

                 Subtitle E--Equal Remedies Act of 2008

SEC. 441. SHORT TITLE.

    This subtitle may be cited as the ``Equal Remedies Act of 2008''.

SEC. 442. EQUALIZATION OF REMEDIES.

    Section 1977A of the Revised Statutes (42 U.S.C. 1981a) is 
amended--
            (1) in subsection (b)--
                    (A) by striking paragraph (3); and
                    (B) by redesignating paragraph (4) as paragraph 
                (3); and
            (2) in subsection (c), by striking ``section--'' and all 
        that follows through the period, and inserting ``section, any 
        party may demand a jury trial.''.

          Subtitle F--Prohibitions Against Sex Discrimination

SEC. 451. FINDINGS.

    Congress makes the following findings:
            (1) Women have entered the workforce in record numbers.
            (2) Even today, women earn significantly lower pay than men 
        for work on jobs that require equal skill, effort, and 
        responsibility and that are performed under similar working 
        conditions. These pay disparities exist in both the private and 
        governmental sectors. In many instances, the pay disparities 
        can only be due to continued intentional discrimination or the 
        lingering effects of past discrimination.
            (3) The existence of such pay disparities--
                    (A) depresses the wages of working families who 
                rely on the wages of all members of the family to make 
                ends meet;
                    (B) prevents the optimum utilization of available 
                labor resources;
                    (C) burdens commerce and the free flow of goods in 
                commerce; and
                    (D) in many instances, may deprive workers of equal 
                protection on the basis of sex in violation of the 5th 
                and 14th amendments.
            (4) Artificial barriers to the elimination of 
        discrimination in the payment of wages on the basis of sex 
        continue to exist decades after the enactment of the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 201 et seq.) and the Civil 
        Rights Act of 1964 (42 U.S.C. 2000a et seq.).

SEC. 452. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

    (a) Required Demonstration for Affirmative Defense.--Section 
6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)(1)) 
is amended by striking ``(iv) a differential'' and all that follows 
through the period and inserting the following: ``(iv) a differential 
based on a bona fide factor other than sex, such as education, training 
or experience, except that this clause shall apply only if--
            ``(I) the employer demonstrates that--
                    ``(aa) such factor--
                            ``(AA) is job-related with respect to the 
                        position in question; or
                            ``(BB) furthers a legitimate business 
                        purpose, except that this item shall not apply 
                        where the employee demonstrates that an 
                        alternative employment practice exists that 
                        would serve the same business purpose without 
                        producing such differential and that the 
                        employer has refused to adopt such alternative 
                        practice; and
                    ``(bb) such factor was actually applied and used 
                reasonably in light of the asserted justification; and
            ``(II) upon the employer succeeding under subclause (I), 
        the employee fails to demonstrate that the differential 
        produced by the reliance of the employer on such factor is 
        itself the result of discrimination on the basis of sex by the 
        employer.
An employer that is not otherwise in compliance with this paragraph may 
not reduce the wages of any employee in order to achieve such 
compliance.''.
    (b) Application of Provisions.--Section 6(d)(1) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended by adding at the 
end the following: ``The provisions of this subsection shall apply to 
applicants for employment if such applicants, upon employment by the 
employer, would be subject to any provisions of this section.''.
    (c) Elimination of Establishment Requirement.--Section 6(d) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)) is amended--
            (1) by striking ``, within any establishment in which such 
        employees are employed,''; and
            (2) by striking ``in such establishment'' each place it 
        appears.
    (d) Nonretaliation Provision.--Section 15(a)(3) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
            (1) by striking ``or has'' each place it appears and 
        inserting ``has''; and
            (2) by inserting before the semicolon the following: ``, or 
        has inquired about, discussed, or otherwise disclosed the wages 
        of the employee or another employee, or because the employee 
        (or applicant) has made a charge, testified, assisted, or 
        participated in any manner in an investigation, proceeding, 
        hearing, or action under section 6(d)''.
    (e) Enhanced Penalties.--Section 16(b) of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 216(b)) is amended--
            (1) by inserting after the first sentence the following: 
        ``Any employer who violates section 6(d) shall additionally be 
        liable for such compensatory or punitive damages as may be 
        appropriate, except that the United States shall not be liable 
        for punitive damages.'';
            (2) in the sentence beginning ``An action to'', by striking 
        ``either of the preceding sentences'' and inserting ``any of 
        the preceding sentences of this subsection'';
            (3) in the sentence beginning ``No employees shall'', by 
        striking ``No employees'' and inserting ``Except with respect 
        to class actions brought to enforce section 6(d), no 
        employee'';
            (4) by inserting after the sentence referred to in 
        paragraph (3), the following: ``Notwithstanding any other 
        provision of Federal law, any action brought to enforce section 
        6(d) may be maintained as a class action as provided by the 
        Federal Rules of Civil Procedure.''; and
            (5) in the sentence beginning ``The court in''--
                    (A) by striking ``in such action'' and inserting 
                ``in any action brought to recover the liability 
                prescribed in any of the preceding sentences of this 
                subsection''; and
                    (B) by inserting before the period the following: 
                ``, including expert fees''.
    (f) Action by Secretary.--Section 16(c) of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 216(c)) is amended--
            (1) in the first sentence--
                    (A) by inserting ``or, in the case of a violation 
                of section 6(d), additional compensatory or punitive 
                damages,'' before ``and the agreement''; and
                    (B) by inserting before the period the following: 
                ``, or such compensatory or punitive damages, as 
                appropriate'';
            (2) in the second sentence, by inserting before the period 
        the following: ``and, in the case of a violation of section 
        6(d), additional compensatory or punitive damages'';
            (3) in the third sentence, by striking ``the first 
        sentence'' and inserting ``the first or second sentence''; and
            (4) in the last sentence--
                    (A) by striking ``commenced in the case'' and 
                inserting ``commenced--
            ``(1) in the case'';
                    (B) by striking the period and inserting ``; or''; 
                and
                    (C) by adding at the end the following:
            ``(2) in the case of a class action brought to enforce 
        section 6(d), on the date on which the individual becomes a 
        party plaintiff to the class action.''.

                  Subtitle G--Protections for Workers

             CHAPTER 1--PROTECTION FOR UNDOCUMENTED WORKERS

SEC. 461. FINDINGS.

    Congress finds the following:
            (1) The National Labor Relations Act (29 U.S.C. 151 et 
        seq.) (in this chapter referred to as the ``NLRA''), enacted in 
        1935, guarantees the right of employees to organize and to 
        bargain collectively with their employers. The NLRA implements 
        the national labor policy of assuring free choice and 
        encouraging collective bargaining as a means of maintaining 
        industrial peace. The National Labor Relations Board (in this 
        chapter referred to as the ``NLRB'') was created by Congress to 
        enforce the provisions of the NLRA.
            (2) Under section 8 of the NLRA, employers are prohibited 
        from discriminating against employees ``in regard to hire or 
        tenure of employment or any term or condition of employment to 
        encourage or discourage membership in any labor organization''. 
        (29 U.S.C. 158(a)(3)). Employers who violate these provisions 
        are subject to a variety of sanctions, including reinstatement 
        of workers found to be illegally discharged because of their 
        union support or activity and provision of backpay to those 
        employees. Such sanctions serve to remedy and deter illegal 
        actions by employers.
            (3) In Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 
        (2002), the Supreme Court held by a 5 to 4 vote that Federal 
        immigration policy, as articulated in amendments made by the 
        Immigration Reform and Control Act of 1986 (Public Law 99-603; 
        100 Stat. 3359), prevented the NLRB from awarding backpay to an 
        undocumented immigrant who was discharged in violation of the 
        NLRA because of his support for union representation at his 
        workplace.
            (4) The decision in Hoffman has an impact on all employees, 
        regardless of immigration or citizenship status, who try to 
        improve their working conditions. In the wake of Hoffman 
        Plastics, employers may be more likely to report to the 
        Department of Homeland Security minority workers, regardless of 
        their immigration or citizenship status, who pursue claims 
        under the NLRA against their employers. Fear that employers may 
        retaliate against employees that exercise their rights under 
        the NLRA has a chilling effect on all employees who exercise 
        their labor rights.
            (5) The NLRA is not the only Federal employment statute 
        that provides for a backpay award as a remedy for an unlawful 
        discharge. For example, courts routinely award backpay to 
        employees who are found to have been discharged in violation of 
        title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
        seq.) or the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et 
        seq.) (in retaliation for complaining about a failure to comply 
        with the minimum wage). In the wake of the Hoffman decision, 
        defendant employers will now argue that backpay awards to 
        unlawfully discharged undocumented workers are barred under 
        Federal employment statutes and even under State employment 
        statutes.
            (6) Because the Hoffman decision prevents the imposition of 
        sanctions on employers who discriminate against undocumented 
        immigrant workers, employers are encouraged to employ such 
        workers for low-paying and dangerous jobs because they have no 
        legal redress for violations of the law. This creates an 
        economic incentive for employers to hire and exploit 
        undocumented workers, which in turn tends to undermine the 
        living standards and working conditions of all Americans, 
        citizens and noncitizens alike.
            (7) The Hoffman decision disadvantages many employers as 
        well. Employers who are forced to compete with firms that hire 
        and exploit undocumented immigrant workers are saddled with an 
        economic disadvantage in the labor marketplace. The unintended 
        creation of an economic inducement for employers to exploit 
        undocumented immigrant workers gives those employers an unfair 
        competitive advantage over employers that treat workers 
        lawfully and fairly.
            (8) The Court's decision in Hoffman makes clear that ``any 
        `perceived deficiency in the NLRA's existing remedial arsenal' 
        must be `addressed by congressional action[.]''' Hoffman 
        Plastic Compounds Inc. v. NLRB, 535 U.S. 137, 152 (2002) 
        (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 904 (1984)). In 
        emphasizing the importance of back pay awards, Justice Breyer 
        noted that such awards against employers ``help[] to deter 
        unlawful activity that both labor laws and immigration laws 
        seek to prevent''. Hoffman Plastic Compounds Inc. v. NLRB, 535 
        U.S. 137, 152 (2002). Because back pay awards are designed both 
        to remedy the individual's private right to be free from 
        discrimination as well as to enforce the important public 
        policy against discriminatory employment practices, Congress 
        must take the following corrective action.

SEC. 462. CONTINUED APPLICATION OF BACKPAY REMEDIES.

    (a) In General.--Section 274A(h) of the Immigration and Nationality 
Act (8 U.S.C. 1324a(h)) is amended by adding at the end the following:
            ``(4) Backpay remedies.--Backpay or other monetary relief 
        for unlawful employment practices shall not be denied to a 
        present or former employee as a result of the employer's or the 
        employee's--
                    ``(A) failure to comply with the requirements of 
                this section; or
                    ``(B) violation of a provision of Federal law 
                related to the employment verification system described 
                in subsection (b) in establishing or maintaining the 
                employment relationship.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply to any failure to comply or any violation that occurs prior to, 
on, or after the date of enactment of this subtitle.

             CHAPTER 2--FAIR LABOR STANDARDS ACT AMENDMENTS

SEC. 466. SHORT TITLE.

    This chapter may be cited as the ``Workers' Minimum Wage and 
Overtime Rights Restoration Act of 2008''.

SEC. 467. FINDINGS.

    Congress finds the following with respect to the Fair Labor 
Standards Act of 1938 (29 U.S.C. 201 et seq.) (in this chapter referred 
to as the ``FLSA''):
            (1) Since 1974, the FLSA has regulated States with respect 
        to the payment of minimum wage and overtime rates. In Garcia v. 
        San Antonio Metropolitan Transit Authority, 469 U.S. 528 
        (1985), the Supreme Court upheld Congress's constitutional 
        authority to regulate States in the payment of minimum wages 
        and overtime. The prohibitions of the FLSA remain in effect and 
        continue to apply to the States.
            (2) Wage and overtime violations in employment remain a 
        serious problem both nationally and among State and other 
        public and private entities receiving Federal financial 
        assistance, and has invidious effects on its victims, the labor 
        force, and the general welfare and economy as a whole. For 
        example, 7 State governments have no overtime laws at all. 
        Fourteen State governments have minimum wage and overtime laws; 
        however, they exclude employees covered under the FLSA. As 
        such, public employees, since they are covered under the FLSA 
        are not protected under these State laws. Additionally, 4 
        States have minimum wage and overtime laws which are inferior 
        to the FLSA. Further, the Department of Labor continues to 
        receive a substantial number of wage and overtime charges 
        against State government employers.
            (3) Private civil suits by the victims of employment law 
        violations have been a crucial tool for enforcement of the 
        FLSA. In Alden v. Maine, 527 U.S. 706 (1999), however, the 
        Supreme Court held that Congress lacks the power under the 14th 
        amendment to the Constitution to abrogate State sovereign 
        immunity to suits for legal relief by individuals under the 
        FLSA. The Federal Government has an important interest in 
        ensuring that Federal financial assistance is not used to 
        facilitate violations of the FLSA, and private civil suits for 
        monetary relief are a critical tool for advancing that 
        interest.
            (4) After the Alden decision, wage and overtime violations 
        by State employers remain unlawful, but victims of such 
        violations lack important remedies for vindication of their 
        rights available to all other employees covered by the FLSA. In 
        the absence of the deterrent effect that such remedies provide, 
        there is a great likelihood that State entities carrying out 
        federally funded programs and activities will use Federal 
        financial assistance to violate the FLSA, or that the Federal 
        financial assistance will otherwise subsidize or facilitate 
        FLSA violations.
            (5) The Supreme Court has upheld Congress's authority to 
        condition receipt of Federal financial assistance on acceptance 
        by State or other covered entities of conditions regarding or 
        related to the use of those funds, as in Cannon v. University 
        of Chicago, 441 U.S. 677 (1979).
            (6) The Court has further recognized that Congress may 
        require State entities, as a condition of receipt of Federal 
        financial assistance, to waive their State 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).
            (7) In the wake of the Alden decision, it is necessary, in 
        order to foster greater compliance with, and adequate remedies 
        for violations of, the FLSA, particularly in federally funded 
        programs or activities operated by State entities, to require 
        State entities to consent to a waiver of State sovereign 
        immunity as a condition of receipt of such Federal financial 
        assistance.
            (8) The Supreme Court has repeatedly held that State 
        sovereign immunity does not bar suits for prospective 
        injunctive relief brought against State officials acting in 
        their official capacity, as in Ex parte Young (209 U.S. 123 
        (1908)). The injunctive relief available in such suits under 
        the FLSA will continue to be the same as that which was 
        available under those laws prior to enactment of this chapter.

SEC. 468. PURPOSES.

    The purposes of this chapter 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 FLSA as are 
        available to other employees under the FLSA, and that were 
        available to State employees prior to the Supreme Court's 
        decision in Alden v. Maine, 527 U.S. 706 (1999);
            (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 FLSA; and
            (3) to affirm that suits for injunctive relief are 
        available against State officials in their official capacities 
        for violations of the FLSA.

SEC. 469. REMEDIES FOR STATE EMPLOYEES.

    Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216) 
is amended by adding at the end the following:
    ``(f)(1) 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.
    ``(2) In this subsection, 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).''.
                                 <all>