[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2918 Introduced in Senate (IS)]







110th CONGRESS
  2d Session
                                S. 2918

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 24, 2008

     Mr. Menendez (for himself, Mrs. Clinton, Mr. Durbin, and Mr. 
  Lautenberg) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 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 ``Environmental Justice Enforcement 
Act of 2008''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) This Act is made necessary by a decision of the Supreme 
        Court in Alexander v. Sandoval, 532 U.S. 275 (2001), which 
        established a new precedent for the interpretation of statutory 
        protections against discrimination that Congress has erected 
        over a period of almost 4 decades. The Sandoval decision limits 
        the 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 and by casting doubt on the 
        validity of the regulations themselves.
            (2) The Sandoval decision established a new precedent for 
        the interpretation of title VI of the Civil Rights Act of 1964. 
        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.
            (3) From the outset, Congress and the executive branch made 
        clear that the regulatory process would be used to ensure broad 
        protections for beneficiaries of the law. The first regulations 
        promulgated by the Department of Justice under title VI of the 
        Civil Rights Act of 1964 forbade the use of ``criteria or 
        methods of administration which have the effect of subjecting 
        individuals to discrimination . . .'' (section 80.3 of title 
        45, Code of Federal Regulations) and prohibited retaliation 
        against persons participating in litigation or administrative 
        resolution of charges of discrimination brought under the Act. 
        These regulations were drafted by the same executive branch 
        officials who played a central role in drafting title VI of the 
        Civil Rights Act of 1964.
            (4) These regulations have never been invalidated. In 1966, 
        Congress considered and rejected a proposal to invalidate the 
        disparate impact regulations promulgated pursuant to title VI 
        of the Civil Rights Act of 1964. The Supreme Court has 
        recognized that Congress's failure to disapprove regulations 
        implies that the regulations accurately reflect congressional 
        intent. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 533-34 
        (1982).
            (5) Title VI of the Civil Rights Act of 1964 was designed 
        to confer a benefit on persons who were discriminated against. 
        Title VI of such Act relied heavily on private attorneys 
        general for effective enforcement. Congress acknowledged that 
        it could not secure compliance solely through enforcement 
        actions initiated by the Attorney General. Newman v. Piggie 
        Park Enterprises, 390 U.S. 400 (1968) (per curiam).
            (6) The Supreme Court has made it clear that individuals 
        suffering discrimination in violation of title VI of the Civil 
        Rights Act of 1964 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. Cannon v. University 
        of Chicago, 441 U.S. 677 (1979).
            (7) Notwithstanding the decision of the Supreme Court in 
        Cort v. Ash, 422 U.S. 66 (1975) to abandon prior precedent and 
        require explicit statutory statements of a right of action, 
        Congress and the courts both before and after Cort have 
        recognized an implied right of action under title VI of the 
        Civil Rights Act of 1964. For example, Congress has 
        consistently provided the means for enforcing the statutes. In 
        1972, Congress established a right to attorney's fees in 
        private actions brought under title VI of the Civil Rights Act 
        of 1964.
            (8) The right of action regulations promulgated pursuant to 
        title VI of the Civil Rights Act of 1964 were congressionally 
        mandated and their promulgation was specifically directed by 
        Congress under section 602 of that Act (42 U.S.C. 2000d-1) ``to 
        effectuate'' the antidiscrimination provisions of the statute. 
        Title VI of the Civil Rights Act of 1964 stressed the 
        importance of the regulations by requiring them to be 
        ``approved by the President''.
            (9) Regulations that prohibit practices that have the 
        effect of discrimination are consistent with prohibitions of 
        disparate treatment that require a showing of intent, as the 
        Supreme Court has acknowledged in the following decisions:
                    (A) A disparate impact standard allows a court to 
                reach discrimination that could actually exist under 
                the guise of compliance with the law. Griggs v. Duke 
                Power Co., 401 U.S. 424 (1971).
                    (B) Evidence of a disproportionate burden will 
                often be the starting point in any analysis of unlawful 
                discrimination. Village of Arlington Heights v. 
                Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977).
                    (C) An invidious purpose may often be inferred from 
                the totality of the relevant facts, including, where 
                true, that the practice bears more heavily on one race 
                than another. Washington v. Davis, 426 U.S. 229 (1976).
                    (D) The disparate impact method of proof is 
                critical to ferreting out stereotypes underlying 
                intentional discrimination. Watson v. Fort Worth Bank & 
                Trust, 487 U.S. 977 (1988).
            (10) The interpretation of title VI of the Civil Rights Act 
        of 1964 (42 U.S.C. 2000d et seq.) as prohibiting practices that 
        have disparate impact and that are not justified as necessary 
        to achieve the goals of the programs or activities supported by 
        the Federal financial assistance is powerfully reinforced by 
        the use of such a standard in enforcing title VII of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000e et seq.). When the Supreme 
        Court ruled against the application of a disparate impact 
        standard under title VII, Congress specifically reinstated it 
        as law in the Civil Rights Act of 1991 (Public Law 102-166; 105 
        Stat. 1071).
            (11) By reinstating a private right of action under title 
        VI of the Civil Rights Act of 1964, Congress is not acting in a 
        manner that would expose entities subject to that title 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.
            (12) 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, which 
        may fail to take necessary and appropriate action because of 
        administrative overburden or other reasons. 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 entities subject to title VI of the Civil Rights 
        Act of 1964 that result in discrimination.
            (13) Following 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 that challenged actions with an unjustified 
        discriminatory effect.
            (14) The right to maintain a private right of action under 
        a provision added under this Act to title VI of the Civil 
        Rights Act of 1964 will be effectuated by a waiver of sovereign 
        immunity in the same manner as sovereign immunity is waived 
        under the remaining provisions of that title.

SEC. 3. PROHIBITED DISCRIMINATION.

    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.
    ``(c) No person in the United States shall be subjected to 
discrimination, including retaliation, because such person opposed any 
policy or practice prohibited by this title, or because such person 
made a charge, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under this title.''.

SEC. 4. RIGHTS OF ACTION.

    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.''.

SEC. 5. RIGHT OF RECOVERY.

    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.''.
                                 <all>