[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3317 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 3317

To restore the effective use of group actions for claims arising under 
  title VII of the Civil Rights Act of 1964, title I of the Americans 
  with Disabilities Act of 1990, title V of the Rehabilitation Act of 
1973, section 1977 of the Revised Statutes, and the Genetic Information 
         Nondiscrimination Act of 2008, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 20, 2012

   Mr. Franken (for himself, Mr. Leahy, Mrs. Murray, Mr. Harkin, Mr. 
Whitehouse, Mr. Blumenthal, Ms. Mikulski, Mr. Sanders, Mrs. Boxer, Mr. 
 Akaka, Mr. Coons, Mr. Inouye, Mr. Kerry, Mrs. Shaheen, Mr. Bingaman, 
   Mr. Brown of Ohio, Mrs. Gillibrand, Mr. Udall of New Mexico, Mr. 
 Durbin, Mr. Wyden, Mr. Merkley, Ms. Cantwell, Mr. Udall of Colorado, 
and Mr. Lautenberg) introduced the following bill; which was read twice 
             and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To restore the effective use of group actions for claims arising under 
  title VII of the Civil Rights Act of 1964, title I of the Americans 
  with Disabilities Act of 1990, title V of the Rehabilitation Act of 
1973, section 1977 of the Revised Statutes, and the Genetic Information 
         Nondiscrimination Act of 2008, and for other purposes.

    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 ``Equal Employment Opportunity 
Restoration Act of 2012''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) Congress has enacted laws to eradicate workplace 
        discrimination and to secure equal employment opportunities for 
        all Americans, as noted in Teamsters v. United States, 431 U.S. 
        324 (1977) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 
        (1973) (stating that civil rights laws are meant ``to assure 
        equality of employment opportunities and to eliminate . . . 
        discriminatory practices and devices'' in the workplace).
            (2) Workplace discrimination laws prohibit subjective 
        employment practices that operate to deny equal employment 
        opportunities to employees, as explained in Watson v. Fort 
        Worth Bank & Trust, 487 U.S. 977 (1988), which stated that 
        personnel decisions ``based on the exercise of personal 
        judgment or the application of inherently subjective criteria'' 
        are unlawful when the personnel decisions have the effect of 
        discriminating on grounds prohibited by law.
            (3) Class actions often have been the most effective means 
        to enforce employment discrimination laws, as explained in East 
        Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395 
        (1977) (``[S]uits alleging . . . discrimination are often by 
        their very nature class suits, involving classwide wrongs'' 
        where ``[c]ommon questions of law or fact are typically 
        present.'') and in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 
        (1974) (``Economic reality dictates that [claims of relatively 
        small value] proceed as a class action or not at all.'').
            (4) Historically, a class action alleging employment 
        discrimination could be maintained if the class was united by a 
        common issue of law or fact. As a leading legal treatise, 
        William B. Rubenstein, 1 Newberg on Class Actions Sec. 3:20 
        (5th ed. 2011), explained, ``this requirement [was] easily met 
        in most cases''. As another leading treatise, Charles A. Wright 
        et al., 7A Federal Practice and Procedure, Wright and Miller 
        Sec. 1763 (3rd ed. 2005), explained, this requirement had been 
        given ``permissive application''.
            (5) However, the Supreme Court recently made it more 
        difficult for victims of discrimination to vindicate claims for 
        their rights. In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 
        2541 (2011), the Court required ``convincing proof of a 
        companywide discriminatory pay and promotion policy'' as a 
        prerequisite to class certification. In a dissent in that case, 
        Justice Ginsberg wrote that the Court's decision ``disqualifies 
        the class at the starting gate''.
    (b) Purpose.--The purpose of this Act is to restore employees' 
ability to challenge, as a group, discriminatory employment practices, 
including subjective employment practices.

SEC. 3. GROUP ACTIONS.

    (a) In General.--Part VI of title 28, United States Code, is 
amended by adding at the end the following:

                      ``CHAPTER 182--GROUP ACTIONS

``Sec.
``4201. Group actions in certain employment discrimination cases.
``Sec. 4201. Group actions in certain employment discrimination cases
    ``(a) Group Actions.--In seeking relief under title VII of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), title I of the 
Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.), 
title V of the Rehabilitation Act of 1973 (29 U.S.C. 791 et seq.), 
section 1977 of the Revised Statutes (42 U.S.C. 1981), or title II of 
the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff 
et seq.) (individually referred to in this section as a `covered 
employment statute'), 1 or more members (collectively referred to in 
this section as the `representative party') of a group may sue on 
behalf of all members of the group if the representative party shows, 
by a reasonable inference, that--
            ``(1) the members of the group are so numerous that their 
        joinder is impracticable;
            ``(2) the claims of the representative party are typical of 
        the claims of the group the representative party seeks to 
        represent and the representative party and the representative 
        party's counsel will fairly and adequately protect the 
        interests of the group; and
            ``(3) the members of the group are, or have been, subject 
        to an employment practice that has adversely affected or is 
        adversely affecting a significant portion of the group's 
        members.
    ``(b) Subjective Employment Practices.--
            ``(1) Definition.--In this subsection, the term `subjective 
        employment practice' means--
                    ``(A) an employer's policy of leaving personnel 
                decisions to the unguided discretion of supervisors, 
                managers, and other employees with authority to make 
                such personnel decisions; or
                    ``(B) an employment practice that combines a 
                subjective employment practice, as defined in 
                subparagraph (A), with other types of personnel 
                decisions.
            ``(2) Challenges.--A representative party may challenge a 
        subjective employment practice covered by a covered employment 
        statute in a group action filed under this section to the same 
        extent as the party may challenge any other employment practice 
        covered by the covered employment statute in such an action.
            ``(3) Exercise of discretion in different ways.--The fact 
        that individual supervisors, managers, or other employees with 
        authority to make personnel decisions may exercise discretion 
        in different ways in applying a subjective employment practice 
        under the covered employment statute shall not preclude a 
        representative party from filing a corresponding group action 
        under this section.
            ``(4) Consideration of written nondiscrimination policy.--
        In determining whether to certify a group action challenging an 
        employment practice, the court may consider as evidence, in 
        opposition to certification, an employer's written 
        nondiscrimination policy only to the extent that the employer 
        demonstrates that the policy has been consistently and 
        effectively used to prevent and, where necessary, promptly 
        correct discrimination against the group.
    ``(c) Relationship to Rule 23 of the Federal Rules of Civil 
Procedure.--
            ``(1) Election of procedure.--The representative party may 
        elect to proceed in a group action under this section or in a 
        class action under rule 23 of the Federal Rules of Civil 
        Procedure. This election shall occur not later than the latest 
        date on which the representative party may petition for class 
        certification under rule 23 of the Federal Rules of Civil 
        Procedure.
            ``(2) Rule 23 requirements.--To the extent consistent with 
        this section, the court shall apply the provisions of rule 
        23(c) through rule 23(h) of the Federal Rules of Civil 
        Procedure, including the requirements under rule 23 regarding 
        notice and requests for exclusion, to claims brought pursuant 
        to this section.
            ``(3) Interlocutory appellate review.--Decisions granting 
        or denying certification of claims as group actions under this 
        section are subject to review to the same extent as orders 
        granting or denying class certification pursuant to rule 23 of 
        the Federal Rules of Civil Procedure.
            ``(4) Class action fairness act.--Group actions certified 
        under this section shall be subject to section 1332(d), section 
        1453, and chapter 114 to the same extent as class actions 
        certified pursuant to rule 23 of the Federal Rules of Civil 
        Procedure.
            ``(5) Rule of construction.--Nothing in this section shall 
        be construed to create any inference regarding the standards 
        for determining whether claims may be adjudicated together 
        under any law other than the covered employment statutes.
    ``(d) Remedies.--
            ``(1) Availability of remedies.--If an employer has been 
        found liable under a covered employment statute against a group 
        certified under this section, the court may deny a remedy 
        available under the covered employment statute to a member of 
        the group only if the employer demonstrates, by a preponderance 
        of the evidence, that the member of the group would not have 
        received the corresponding employment opportunity or benefit 
        even in the absence of a violation of the covered employment 
        statute.
            ``(2) Relief.--
                    ``(A) In general.--The court shall fashion the most 
                complete relief possible for members of a prevailing 
                group described in this section and shall have broad 
                discretion in determining how to fashion that relief.
                    ``(B) Exercise of discretion.--In exercising its 
                discretion under this paragraph, the court shall--
                            ``(i) use such procedures as the interests 
                        of justice warrant, which procedures may 
                        include economic or statistical modeling, 
                        mathematical calculation, sampling, individual 
                        adjudication, and other means the court may 
                        adopt;
                            ``(ii) consider which procedure will best 
                        ensure that members of the group will be made 
                        whole;
                            ``(iii) consider which procedure will best 
                        minimize the cost to and burden on the parties; 
                        and
                            ``(iv) consider which procedure most 
                        reliably and efficiently accounts for 
                        limitations on the court's ability to identify 
                        individual members of the group and to measure 
                        the harm incurred by individual members of the 
                        group.''.
    (b) Technical and Conforming Amendment.--The table of chapters for 
part VI of title 28, United States Code, is amended by adding at the 
end the following:

``182. Group actions........................................    4201''.
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