[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8698 Introduced in House (IH)]

<DOC>






116th CONGRESS
  2d Session
                                H. R. 8698

To amend the Civil Rights Act of 1964 to clarify that disparate impacts 
  on certain populations constitute a sufficient basis for rights of 
             action under such Act, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 27, 2020

 Ms. Tlaib (for herself, Mr. Kennedy, and Ms. Haaland) introduced the 
 following bill; which was referred to the Committee on the Judiciary, 
 and in addition to the Committee on Education and Labor, for a period 
    to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL


 
To amend the Civil Rights Act of 1964 to clarify that disparate impacts 
  on certain populations constitute a sufficient basis for rights of 
             action under such Act, 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 ``Justice for All Act of 2020''.

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) 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 protect 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 disabled 
        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). Nonetheless, 
        Sandoval creates the potential for uncertainty in the 
        application of critical protections of Section 504, 
        particularly in the lower courts.
            (10) The right to maintain a private right of action under 
        a provision added to a statute under this Act 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.
            (11) Numerous provisions of Federal law expressly prohibit 
        discrimination on the basis of sex, and Federal agencies and 
        courts have correctly interpreted these prohibitions on sex 
        discrimination to include discrimination based on sexual 
        orientation, gender identity, and sex stereotypes. In 
        particular, the Equal Employment Opportunity Commission 
        correctly interpreted title VII of the Civil Rights Act of 1964 
        in Macy v. Holder, Baldwin v. Foxx, and Lusardi v. McHugh.
            (12) In forbidding discrimination based on sex, Congress 
        intended to strike at the entire spectrum of disparate 
        treatment resulting from sex-related characteristics. The 
        Supreme Court correctly recognized in Price Waterhouse v. 
        Hopkins and Oncale v. Sundowner Offshore Services that among 
        these characteristics are sex-stereotypes, including 
        masculinity and femininity. Congress reaffirmed in the 
        Pregnancy Discrimination Act of 1978 that discrimination on the 
        basis of ``sex'' includes but is not limited to discrimination 
        on the basis of ``pregnancy, childbirth, or related medical 
        conditions.''
            (13) The absence of explicit prohibitions of discrimination 
        on the basis of sexual orientation and gender identity under 
        Federal statutory law has created uncertainty for employers and 
        other entities covered by Federal nondiscrimination laws and 
        caused unnecessary hardships for LGBTQ individuals.
            (14) The Supreme Court correctly recognized in Hobby Lobby 
        v. Burwell that the Religious Freedom Restoration Act of 1993 
        (RFRA) ``provides no . . . shield'' to those who ``cloak'' 
        discrimination as ``religious practice to escape legal 
        sanction.'' This Act reaffirms that crucial limitation on RFRA, 
        that Congress did not intend for it to be used--and indeed it 
        cannot be used--to provide a defense against allegations of 
        discrimination on the basis of any protected trait.
            (15) Chapter 1 of title 9, United States Code (commonly 
        known as the ``Federal Arbitration Act''), represented an 
        exercise of legislative power that required courts to recognize 
        private voluntary agreements to arbitrate commercial disputes 
        at a time when the courts were refusing to do so on grounds 
        that arbitration represented a usurpation of the authority of 
        the courts to resolve legal disputes.
            (16) The Federal Arbitration Act did not, and should not 
        have been interpreted to, supplant or nullify the legislatively 
        created rights and remedies that Congress, exercising its power 
        under article I of the Constitution of the United States, has 
        granted to the people of the United States for resolving 
        disputes in State and Federal courts.
            (17) Recent court decisions, including AT&T Mobility LLC v. 
        Concepcion, 563 U.S. 333 (2011) and American Express Co. v. 
        Italian Colors Restaurant, 133 S. Ct. 2304 (2013), have 
        interpreted the Federal Arbitration Act to broadly preempt 
        rights and remedies established under substantive State and 
        Federal law. As a result, these decisions have enabled business 
        entities to avoid or nullify legal duties created by 
        congressional enactment, resulting in millions of people in the 
        United States being unable to vindicate their rights in State 
        and Federal courts.
            (18) States have a compelling interest in enacting rights 
        and remedies to protect the welfare of their citizens, and the 
        Federal Arbitration Act should not be, and should not have 
        been, interpreted to preempt State legislation that enacted 
        rights and remedies to protect the welfare of their citizens.
            (19) The Supreme Court misinterpreted Title VII of the 
        Civil Rights Act in establishing the Faragher-Ellerth 
        affirmative defense in Faragher v. City of Boca Raton and 
        Burlington Industries, Inc. v. Ellerth. This affirmative 
        defense often leaves victims of sexual harassment with no 
        remedy or recourse after incidence of sexual or other 
        harassment. Violations of the law, and injuries to a victim and 
        their rights, are not cured by the existence of an anti-
        harassment policy or the lack of future harm, and in a hostile 
        work environment taking preventative measures is not a 
        requirement that falls on the victim.
            (20) Bringing a lawsuit to vindicate civil rights is 
        financially risky, and law firms, whether large or small, are 
        unlikely to take such cases on. Congress enacted the Civil 
        Rights Attorney's Fees Award Act of 1976 in order to make 
        lawsuits to vindicate civil rights more accessible to potential 
        plaintiffs. The Supreme Court correctly recognized in City of 
        Riverside v. Rivera that the effectuation of congressional 
        intent requires viable civil rights lawsuits, which are 
        dependent on the availability of private enforcement mechanisms 
        and the corresponding availability of attorney's fees.
            (21) However, the Supreme Court incorrectly held that the 
        ``catalyst theory'' is not a permissible basis for the award of 
        attorney's fees in Buckhannon v. West Virginia Department of 
        Health & Human Resources. In doing so, the Court deprived 
        plaintiffs who effectively win a lawsuit through a settlement, 
        from receiving pre-trial attorney's fees. Congress enacted fee-
        shifting provisions in civil rights laws to encourage private 
        enforcement of those laws, and fees must be awarded when a 
        lawsuit vindicates the rights Congress sought to secure. In 
        disapproving of the ``catalyst theory'' the Court incentivized 
        potential defendants to draw out the pre-trial process and 
        settle at the last second, making the lawsuit too expensive for 
        the average victim to undertake and too risky for the average 
        attorney to accept a civil rights case.
            (22) The Civil Rights Act of 1964, and other civil rights 
        laws that followed it, were written, in part, to banish rampant 
        disparate treatment on the basis of race from American society. 
        Congress sought to overcome the pervasive, racist ideology that 
        Black traits were inferior by prohibiting discrimination, and 
        intended the Act to be interpreted broadly--encompassing race 
        and all its attributes, especially those traits historically 
        associated with race.
            (23) ``Blackness'' and its associated physical traits, such 
        as dark skin and kinky and curly hair, have too often been 
        equated with inferiority and ``unprofessionalism''. 
        Professionalism was, and still is, closely linked to European 
        features and mannerisms, which entails that those who do not 
        naturally fall into Eurocentric norms must alter their 
        appearances, sometimes drastically and permanently, in order to 
        be deemed professional. Such norms are, on their face, proxies 
        for race.
            (24) Federal courts have correctly interpreted, e.g. that 
        Title VII of the Civil Rights Act of 1964 prohibits 
        discrimination on the basis of race, and thus protect 
        individuals from discrimination against afros. However, the 
        courts have yet to accept that the Act outlaws dress codes and 
        grooming policies that prohibit any natural presentation of 
        Black hair, including afros, braids, twists, and locks. 
        Although purportedly ``race-neutral'', these policies have a 
        disparate impact on Black individuals as they are more likely 
        to deter, burden, or punish Black individuals than any other 
        group. Therefore, hair discrimination targeting hairstyles 
        associated with race is racial discrimination.

SEC. 3. 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'';
            (2) by inserting ``religion, sex (as such term is defined 
        in section 208),'' before ``or national origin''; and
            (3) 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, sex (as defined in section 208), or national 
        origin (referred to in this title as a `person aggrieved') 
        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, sex 
        (as such term is defined in section 208), 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 person aggrieved 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 person aggrieved shall demonstrate that each particular challenged 
policy or practice causes a disparate impact, except that if the person 
aggrieved 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 (as such term is defined in section 208 of the Civil Rights 
        Act of 1964) (referred to in this title as a `person 
        aggrieved') 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 person aggrieved 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 person aggrieved shall demonstrate that each particular challenged 
policy or practice causes a disparate impact, except that if the person 
aggrieved 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 a `person aggrieved') 
        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 person aggrieved 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 person aggrieved shall demonstrate that each particular challenged 
policy or practice causes a disparate impact, except that if the person 
aggrieved 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.''.
    (d) Fair Housing Act.--The Fair Housing Act (title VIII of the 
Civil Rights Act of 1968; 42 U.S.C. 3601 et seq.) is amended--
            (1) in section 802, by adding at the end the following:
    ``(p) `Sex' has the meaning given such term in section 208 of the 
Civil Rights Act of 1964.
    ``(q) `Source of income' includes--
            ``(1) any income from a profession, occupation, or job;
            ``(2) any form of Federal, State, or local housing 
        assistance provided to a family or provided to a housing owner 
        on behalf of a family, or private assistance, grant, loan or 
        rental assistance program, including low-income housing 
        assistance certificates, rental subsidies from nongovernmental 
        organizations, and vouchers issued under the United States 
        Housing Act of 1937 (42 U.S.C. 1437 et seq.);
            ``(3) any income received during a taxable year as Social 
        Security benefits, as defined in section 86(d) of the Internal 
        Revenue Code of 1986, or as supplemental security income 
        benefits under title XVI of the Social Security Act (42 U.S.C. 
        1381 et seq.);
            ``(4) any gift, inheritance, pension, annuity, or other 
        consideration or benefit;
            ``(5) any income received pursuant to court order, 
        including spousal support and child support;
            ``(6) any payment from a trust, guardian, or conservator;
            ``(7) any income from the sale or pledge of property or an 
        interest in property; and
            ``(8) any other lawful source of income.
    ``(r) `Race', `color', `religion', `sex', `sexual orientation', 
`gender identity', `handicap', `familial status', `source of income', 
or `national origin', used with respect to an individual, includes--
            ``(1) the race, color, religion, sex, sexual orientation, 
        gender identity, handicap, familial status, source of income, 
        or national origin, respectively, of another person with whom 
        the individual is associated or has been associated; and
            ``(2) a perception or belief, even if inaccurate, 
        concerning the race, color, religion, sex, sexual orientation, 
        gender identity, handicap, familial status, source of income, 
        or national origin, respectively, of the individual.'';
            (2) in section 804, by inserting ``(as defined in section 
        208 of the Civil Rights Act of 1964), source of income,'' after 
        ``sex'' each place that term appears;
            (3) in section 805, by inserting ``(as defined in section 
        208 of the Civil Rights Act of 1964), source of income,'' after 
        ``sex'' each place that term appears;
            (4) in section 806, by inserting ``(as defined in section 
        208 of the Civil Rights Act of 1964), source of income,'' after 
        ``sex'';
            (5) in section 807 (42 U.S.C. 3607), by adding at the end 
        the following:
    ``(c) Nothing in this title shall be construed to--
            ``(1) prohibit an entity from providing housing assistance 
        under section 8(o)(19) of the United States Housing Act of 1937 
        (42 U.S.C. 1437f(o)(19)) in a nondiscriminatory manner; or
            ``(2) limit the ability of the owner of a dwelling to 
        determine, in a commercially reasonable and non-discriminatory 
        manner, the ability of a person to afford to purchase or rent 
        the dwelling.''; and
            (6) in section 808(e)(6) (42 U.S.C. 3608(e)(6)), by 
        inserting ``source of income,'' after ``handicap,''.
    (e) Prevention of Intimidation in Fair Housing Cases.--Section 901 
of the Civil Rights Act of 1968 (42 U.S.C. 3631) is amended by 
inserting ``(as such term is defined in section 208 of the Civil Rights 
Act of 1964), source of income (as defined in section 802),'' after 
``sex'' each place that term appears.

SEC. 4. 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 PERSONS AGGRIEVED.

    ``(a) Claims Based on Proof of Intentional Discrimination.--In an 
action brought by a person aggrieved 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 person 
aggrieved 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 a person aggrieved 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 person aggrieved 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.
    ``(c) Settlement.--In any settlement agreement or consent decree to 
resolve an action brought or which may be brought under this title, 
attorney's fees of the plaintiff shall be included.''.
    (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 PERSONS AGGRIEVED.

    ``(a) Claims Based on Proof of Intentional Discrimination.--In an 
action brought by a person aggrieved 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 person 
aggrieved 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 a person aggrieved 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 person aggrieved 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.
    ``(c) Settlement.--In any settlement agreement or consent decree to 
resolve an action brought or which may be brought under this title, 
attorney's fees of the plaintiff shall be included.''.
    (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 a person aggrieved 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 person aggrieved 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 a person aggrieved 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 person aggrieved 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.
    ``(3) In any settlement agreement or consent decree to resolve an 
action brought or which may be brought under this title, attorney's 
fees of the plaintiff shall be included.''.
            (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 a `person aggrieved') 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 person aggrieved 
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 a person aggrieved 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 person aggrieved 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.
    ``(3) Equitable and legal relief (including compensatory and 
punitive damages), attorney's fees (including expert fees), and costs 
shall be available in all cases brought for the failure to provide 
reasonable accommodations or reasonable modifications, or the failure 
to comply with requirements of effective communication, accessible 
design, maintenance of accessible features, or program accessibility.
    ``(4) In any settlement agreement or consent decree to resolve an 
action brought or which may be brought under this section, attorney's 
fees of the plaintiff shall be included.''.
    (e) Fair Housing Act.--The Fair Housing Act (title VIII of the 
Civil Rights Act of 1968; 42 U.S.C. 3601 et seq.), as amended by this 
Act, is further amended by adding at the end the following:

``SEC. 823. DISPARATE IMPACT.

    ``(a) In General.--
            ``(1) Establishment.--Discrimination (including exclusion 
        from participation and denial of benefits) based on disparate 
        impact is established under this title only if--
                    ``(A) a person aggrieved by discrimination on the 
                basis of race, color, sex, or national origin 
                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, sex, 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
                    ``(B) the person aggrieved demonstrates that a less 
                discriminatory alternative policy or practice exists, 
                and the covered entity refuses to adopt such 
                alternative policy or practice.
            ``(2) Demonstration.--
                    ``(A) Causation.--With respect to demonstrating 
                that a particular policy or practice causes a disparate 
                impact as described in subsection (a)(1), the person 
                aggrieved shall demonstrate that each particular 
                challenged policy or practice causes a disparate 
                impact, except that if the person aggrieved 
                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.
                    ``(B) No requirement to demonstrate.--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.
    ``(b) Necessity of Intentional Discrimination To Achieve Policy 
Goals Not a Defense.--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.
    ``(c) Definition.--In this section, the term `demonstrates' means 
meets the burdens of production and persuasion.

``SEC. 824. RELIEF FOR CLAIMS BASED ON DIFFERING STANDARDS OF PROOF.

    ``(a) Claims Based on Proof of Intentional Discrimination.--In an 
action brought by a person aggrieved 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 person 
aggrieved 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 a person aggrieved 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 person aggrieved 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.
    ``(c) Relief Available.--Equitable and legal relief (including 
compensatory and punitive damages), attorney's fees (including expert 
fees), and costs shall be available in all cases brought for the 
failure to permit reasonable accommodations, make reasonable 
modifications, or design and construct accessible dwellings as required 
by section 804(f)(3)(C).
    ``(d) Settlement.--In any settlement agreement or consent decree to 
resolve an action brought or which may be brought under this title, 
attorney's fees of the plaintiff shall be included.''.

SEC. 5. PROHIBITION ON DISCRIMINATION BY LAW ENFORCEMENT.

    (a) Definitions.--In this section--
            (1) The term ``governmental body'' means any department, 
        agency, special purpose district, or other instrumentality of 
        Federal, State, local, or Indian tribal government.
            (2) The term ``Indian tribe'' has the meaning given the 
        term in section 102 of the Federally Recognized Indian Tribe 
        List Act of 1994 (25 U.S.C. 479a).
            (3) The term ``law enforcement agency'' means any Federal, 
        State, local, or Indian tribal governmental body engaged in the 
        prevention, detection, or investigation of violations of 
        criminal, immigration, or customs laws.
            (4) The term ``law enforcement agent'' means any Federal, 
        State, local, or Indian tribal official responsible for 
        enforcing criminal, immigration, or customs laws, including 
        police officers and other agents of a law enforcement agency.
            (5) The term ``profiling'' means the practice of a law 
        enforcement agent or agency relying, to any degree, on actual 
        or perceived race, ethnicity, national origin, religion, sex 
        (as defined in section 208 of the Civil Rights Act of 1964), 
        gender identity, or sexual orientation in selecting which 
        individual to subject to routine or spontaneous investigatory 
        activities or in deciding upon the scope and substance of law 
        enforcement activity following any initial investigatory 
        procedure, except when there is trustworthy information, 
        relevant to the locality and timeframe, that links a person 
        with a particular characteristic described in this paragraph to 
        an identified criminal incident or scheme.
            (6) The term ``routine or spontaneous investigatory 
        activities'' means the following activities by a law 
        enforcement agent:
                    (A) Interviews.
                    (B) Traffic stops.
                    (C) Pedestrian stops.
                    (D) Frisks and other types of body searches.
                    (E) Consensual or nonconsensual searches of the 
                persons, property, or possessions (including vehicles) 
                of individuals using any form of public or private 
                transportation, including motorists and pedestrians.
                    (F) Data collection, analysis, assessments, and 
                predicated investigations.
                    (G) Inspections and interviews of entrants into the 
                United States that are more extensive than those 
                customarily carried out.
                    (H) Immigration-related workplace investigations.
                    (I) Such other types of law enforcement encounters 
                compiled for or by the Federal Bureau of Investigation 
                or the Department of Justice Bureau of Justice 
                Statistics.
            (7) The term ``State'' means each of the 50 States, the 
        District of Columbia, the Commonwealth of Puerto Rico, and any 
        other territory or possession of the United States.
            (8) The term ``unit of local government'' means--
                    (A) any city, county, township, town, borough, 
                parish, village, or other general purpose political 
                subdivision of a State;
                    (B) any law enforcement district or judicial 
                enforcement district that--
                            (i) is established under applicable State 
                        law; and
                            (ii) has the authority to, in a manner 
                        independent of other State entities, establish 
                        a budget and impose taxes; or
                    (C) any Indian tribe that performs law enforcement 
                functions, as determined by the Secretary of the 
                Interior.
    (b) Prohibition of Profiling.--
            (1) In general.--No law enforcement agent or law 
        enforcement agency shall engage in profiling.
            (2) Enforcement.--
                    (A) Remedy.--The United States, or an individual 
                injured by profiling, may enforce this title in a civil 
                action for equitable or legal relief, filed in a State 
                court of general jurisdiction or in a district court of 
                the United States.
                    (B) Parties.--In any action brought under this 
                title, relief may be obtained against--
                            (i) any governmental body that employed any 
                        law enforcement agent who engaged in profiling;
                            (ii) any agent of such body who engaged in 
                        profiling; and
                            (iii) any person with supervisory authority 
                        over such agent.
                    (C) Nature of proof.--Proof that the routine or 
                spontaneous investigatory activities of law enforcement 
                agents in a jurisdiction have had a disparate impact on 
                individuals with a particular characteristic described 
                in subsection (a)(5) shall constitute prima facie 
                evidence of a violation of this section.
                    (D) Attorney's fees.--In any action or proceeding 
                to enforce this section against any governmental body, 
                the court may allow a prevailing plaintiff, other than 
                the United States, reasonable attorney's fees as part 
                of the costs, and may include expert fees as part of 
                the attorney's fees.

SEC. 6. PUBLIC ACCOMMODATIONS.

    (a) Prohibition on Discrimination or Segregation in Public 
Accommodations.--Section 201 of the Civil Rights Act of 1964 (42 U.S.C. 
2000a) is amended--
            (1) in subsection (a), by inserting ``sex,'' before ``or 
        national origin''; and
            (2) in subsection (b)--
                    (A) in paragraph (3), by striking ``stadium'' and 
                all that follows and inserting ``stadium or other place 
                or establishment that provides exhibition, 
                entertainment, recreation, exercise, amusement, 
                gathering, or display;'';
                    (B) by redesignating paragraph (4) as paragraph 
                (6); and
                    (C) by inserting after paragraph (3) the following:
            ``(4) any establishment that provides a good, service, or 
        program, including a store, shopping center, online retailer or 
        service provider, salon, bank, gas station, food bank, service 
        or care center, shelter, travel agency, funeral parlor, or any 
        establishment that provides health care, accounting, or legal 
        services;
            ``(5) any train service, bus service, car service, taxi 
        service, airline service, station, depot, or other place of or 
        establishment that provides transportation service; and''.
    (b) Prohibition on Discrimination or Segregation Under Law.--
Section 202 of such Act (42 U.S.C. 2000a-1) is amended by inserting 
``sex,'' before ``or national origin''.
    (c) Definitions and Rules of Construction.--Title II of such Act 
(42 U.S.C. 2000a et seq.) is amended by adding at the end the 
following:

``SEC. 208. DEFINITIONS AND RULES.

    ``(a) Definitions.--
            ``(1) Race; color; religion; sex; sexual orientation; 
        gender identity; national origin.--The term `race', `color', 
        `religion', `sex (including sexual orientation and gender 
        identity)', or `national origin', used with respect to an 
        individual, includes--
                    ``(A) the race, color, religion, sex (including 
                sexual orientation and gender identity), or national 
                origin, respectively, of another person with whom the 
                individual is associated or has been associated;
                    ``(B) a perception or belief, even if inaccurate, 
                concerning the race, color, religion, sex (including 
                sexual orientation and gender identity), or national 
                origin, respectively, of the individual; and
                    ``(C) in the case of race, traits historically 
                associated with race, including natural hair texture 
                and protective hairstyles.
            ``(2) Gender identity.--The term `gender identity' means 
        the gender-related identity, appearance, mannerisms, or other 
        gender-related characteristics of an individual, regardless of 
        the individual's designated sex at birth.
            ``(3) Including.--The term `including' means including, but 
        not limited to, consistent with the term's standard meaning in 
        Federal law.
            ``(4) Natural hairstyles.--The term `natural hair' 
        includes--
                    ``(A) protective and natural hairstyles, which 
                includes braids, locs, weaves, twists, afros; and
                    ``(B) natural hair texture, which includes wavy, 
                kinky, curl, and coily, and also the variation of 
                texture in between.
            ``(5) Sex.--The term `sex' includes--
                    ``(A) a sex stereotype;
                    ``(B) pregnancy, childbirth, or a related medical 
                condition;
                    ``(C) sexual orientation or gender identity; and
                    ``(D) sex characteristics, including intersex 
                traits.
            ``(6) Sexual orientation.--The term `sexual orientation' 
        means an individual's actual or perceived romantic, physical, 
        or sexual attraction to other persons, or lack thereof, that 
        includes heterosexuality, homosexuality, and bisexuality.
    ``(b) Rules.--In providing a remedy under this Act:
            ``(1) In the case of any conduct alleged to be 
        discriminatory on the basis of sex, the remedy under this Act 
        for such conduct, to the extent it pertains to pregnancy, 
        childbirth, or a related medical condition may not result in a 
        less substantial remedy than any other remedy for 
        discrimination on the basis of sex.
            ``(2) In the case of any conduct alleged to be 
        discriminatory on the basis of sex (with respect to gender 
        identity), an individual shall not be denied access to a shared 
        facility, including a restroom, a locker room, and a dressing 
        room, that is in accordance with the individual's gender 
        identity.

``SEC. 209. RULES OF CONSTRUCTION.

    ``(a) Claims and Remedies Not Precluded.--Nothing in this title 
shall be construed to limit the claims or remedies available to any 
individual for an unlawful practice on the basis of race, color, 
religion, sex, or national origin including claims brought pursuant to 
section 1979 or 1980 of the Revised Statutes (42 U.S.C. 1983, 1985) or 
any other law, including the Federal law amended by the Customer Non-
Discrimination Act, regulation, or policy.
    ``(b) No Negative Inference.--Nothing in this title shall be 
construed to support any inference that any Federal law prohibiting a 
practice on the basis of sex does not prohibit discrimination on the 
basis of pregnancy, childbirth, or a related medical condition, sexual 
orientation, gender identity, or a sex stereotype.
    ``(c) Scope of an Establishment.--A reference in this title to an 
establishment--
            ``(1) shall be construed to include an individual whose 
        operations affect commerce and who is a provider of a good, 
        service, or program; and
            ``(2) shall not be construed to be limited to a physical 
        facility or place.

``SEC. 210. CLAIMS.

    ``The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb 
et seq.) shall not provide a claim concerning, or a defense to a claim 
under this title or provide a basis for challenging the application or 
enforcement of this title.''.

SEC. 7. STRICT VICARIOUS EMPLOYER LIABILITY AND FARAGHER-ELLERTH 
              AFFIRMATIVE DEFENSE REMOVED.

    Section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5 et 
seq.) is amended by adding at the end the following:
    ``(l) An employer shall be liable for any act of discrimination 
prohibited under this title (including harassment, intimidation, or 
retaliation) committed by any of its employees.
    ``(m) It shall not be a defense to a claim under this title or 
provide a basis for challenging the application or enforcement of this 
title--
            ``(1) that an employer exercised reasonable care in 
        attempting to prevent or took corrective action regarding any 
        act of discrimination on the basis of sex (including 
        intimidation, harassment, or retaliation);
            ``(2) that adverse employment action was not taken by such 
        an employer; or
            ``(3) that an employee affected by that act did not take 
        advantage of preventive opportunities to avoid harm.''.

SEC. 8. ARBITRATION OF EMPLOYMENT, CONSUMER, AND CIVIL RIGHTS DISPUTES.

    (a) Purposes.--The purposes of this section are to--
            (1) prohibit predispute arbitration agreements that force 
        arbitration of future employment, consumer, or civil rights 
        disputes; and
            (2) prohibit agreements and practices that interfere with 
        the right of individuals, workers, and small businesses to 
        participate in a joint, class, or collective action related to 
        an employment, consumer, or civil rights dispute.
    (b) In General.--Title 9 of the United States Code is amended by 
adding at the end the following:

  ``CHAPTER 4--ARBITRATION OF EMPLOYMENT, CONSUMER, AND CIVIL RIGHTS 
                                DISPUTES

``SEC. 401. DEFINITIONS.

    ``In this chapter--
            ``(1) the term `civil rights dispute' means a dispute--
                    ``(A) arising from an alleged violation of--
                            ``(i) the Constitution of the United States 
                        or the constitution of a State; and
                            ``(ii) any Federal, State, or local law 
                        that prohibits discrimination on the basis of 
                        race, sex, age, gender identity, sexual 
                        orientation, disability, religion, national 
                        origin, or any legally protected status in 
                        education, employment, credit, housing, public 
                        accommodations and facilities, voting, veterans 
                        or servicemembers, health care, or a program 
                        funded or conducted by the Federal Government 
                        or State government, including any law referred 
                        to or described in section 62(e) of the 
                        Internal Revenue Code of 1986, including parts 
                        of such law not explicitly referenced in such 
                        section but that relate to protecting 
                        individuals on any such basis; and
                    ``(B) in which at least one party alleging a 
                violation described in subparagraph (A) is one or more 
                individuals (or their authorized representative), 
                including one or more individuals seeking certification 
                as a class under rule 23 of the Federal Rules of Civil 
                Procedure or a comparable rule or provision of State 
                law;
            ``(2) the term `consumer dispute' means a dispute between--
                    ``(A) one or more individuals who seek or acquire 
                real or personal property, services (including services 
                related to digital technology), securities or other 
                investments, money, or credit for personal, family, or 
                household purposes including an individual or 
                individuals who seek certification as a class under 
                rule 23 of the Federal Rules of Civil Procedure or a 
                comparable rule or provision of State law; and
                    ``(B)(i) the seller or provider of such property, 
                services, securities or other investments, money, or 
                credit; or
                    ``(ii) a third party involved in the selling, 
                providing of, payment for, receipt or use of 
                information about, or other relationship to any such 
                property, services, securities or other investments, 
                money, or credit;
            ``(3) the term `employment dispute' means a dispute between 
        one or more individuals (or their authorized representative) 
        and a person arising out of or related to the work relationship 
        or prospective work relationship between them, including a 
        dispute regarding the terms of or payment for, advertising of, 
        recruiting for, referring of, arranging for, or discipline or 
        discharge in connection with, such work, regardless of whether 
        the individual is or would be classified as an employee or an 
        independent contractor with respect to such work, and including 
        a dispute arising under any law referred to or described in 
        section 62(e) of the Internal Revenue Code of 1986, including 
        parts of such law not explicitly referenced in such section but 
        that relate to protecting individuals on any such basis, and 
        including a dispute in which an individual or individuals seek 
        certification as a class under rule 23 of the Federal Rules of 
        Civil Procedure or as a collective action under section 16(b) 
        of the Fair Labor Standards Act, or a comparable rule or 
        provision of State law;
            ``(4) the term `predispute arbitration agreement' means an 
        agreement to arbitrate a dispute that has not yet arisen at the 
        time of the making of the agreement; and
            ``(5) the term `predispute joint-action waiver' means an 
        agreement, whether or not part of a predispute arbitration 
        agreement, that would prohibit, or waive the right of, one of 
        the parties to the agreement to participate in a joint, class, 
        or collective action in a judicial, arbitral, administrative, 
        or other forum, concerning a dispute that has not yet arisen at 
        the time of the making of the agreement.

``SEC. 402. NO VALIDITY OR ENFORCEABILITY.

    ``(a) In General.--Notwithstanding any other provision of this 
title, no predispute arbitration agreement or predispute joint-action 
waiver shall be valid or enforceable with respect to an employment 
dispute, consumer dispute, or civil rights dispute.
    ``(b) Applicability.--
            ``(1) In general.--An issue as to whether this chapter 
        applies with respect to a dispute shall be determined under 
        Federal law. The applicability of this chapter to an agreement 
        to arbitrate and the validity and enforceability of an 
        agreement to which this chapter applies shall be determined by 
        a court, rather than an arbitrator, irrespective of whether the 
        party resisting arbitration challenges the arbitration 
        agreement specifically or in conjunction with other terms of 
        the contract containing such agreement, and irrespective of 
        whether the agreement purports to delegate such determinations 
        to an arbitrator.
            ``(2) Collective bargaining agreements.--Nothing in this 
        chapter shall apply to any arbitration provision in a contract 
        between an employer and a labor organization or between labor 
        organizations, except that no such arbitration provision shall 
        have the effect of waiving the right of a worker to seek 
        judicial enforcement of a right arising under a provision of 
        the Constitution of the United States, a State constitution, or 
        a Federal or State statute, or public policy arising 
        therefrom.''.
    (c) Technical and Conforming Amendments.--
            (1) In general.--Title 9 of the United States Code is 
        amended--
                    (A) in section 1 by striking ``of seamen,'' and all 
                that follows through ``interstate commerce,'' and 
                inserting in its place ``of individuals, regardless of 
                whether such individuals are designated as employees or 
                independent contractors for other purposes'',
                    (B) in section 2 by inserting ``or as otherwise 
                provided in chapter 4'' before the period at the end,
                    (C) in section 208--
                            (i) in the section heading by striking 
                        ``chapter 1; residual application'' and 
                        inserting ``application'', and
                            (ii) by adding at the end the following: 
                        ``This chapter applies to the extent that this 
                        chapter is not in conflict with chapter 4.'', 
                        and
                    (D) in section 307--
                            (i) in the section heading by striking 
                        ``chapter 1; residual application'' and 
                        inserting ``application'', and
                            (ii) by adding at the end the following: 
                        ``This chapter applies to the extent that this 
                        chapter is not in conflict with chapter 4.''.
            (2) Table of sections.--
                    (A) Chapter 2.--The table of sections of chapter 2 
                of title 9, United States Code, is amended by striking 
                the item relating to section 208 and inserting the 
                following:

``208. Application.''.
                    (B) Chapter 3.--The table of sections of chapter 3 
                of title 9, United States Code, is amended by striking 
                the item relating to section 307 and inserting the 
                following:

``307. Application.''.
            (3) Table of chapters.--The table of chapters of title 9, 
        United States Code, is amended by adding at the end the 
        following:

``4. Arbitration of employment, consumer, antitrust, and civil rights 
                            disputes.''.

SEC. 9. LIABILITY OF CERTAIN GOVERNMENT OFFICIALS.

    In any action under Revised Statute 1979, the following shall 
apply:
            (1) Definition of state.--The term ``State'' includes any 
        person or entity that undertakes action under color of any 
        statute, ordinance, regulation, custom, or usage, of any State 
        or Territory or the District of Columbia.
            (2) Action under color of law.--A private person or entity 
        undertakes action under color of any statute, ordinance, 
        regulation, custom, or usage, of any State or Territory or the 
        District of Columbia, when--
                    (A) undertaking a public function delegated by a 
                State or local government;
                    (B) voluntarily undertaking a public function;
                    (C) acting in concert with a State or local 
                government or acting in concert with an individual 
                officer, agent, or entity of a State or local 
                government;
                    (D) engaging in joint action towards a common goal 
                or plan with a State or local government or engaging in 
                joint action towards a common goal or plan with an 
                individual officer, agent, or entity of a State or 
                local government;
                    (E) engaged in a conspiracy with a State or local 
                government or engaged in a conspiracy with an 
                individual officer, agent, or entity of a State or 
                local government;
                    (F) a close nexus exists between the private person 
                or entity and a State or local government or a close 
                nexus exists between an individual officer, agent, or 
                entity of a State or local government;
                    (G) the activities of the private person or entity 
                is so entwined with a State or local government or an 
                individual officer, agent, or entity of a State or 
                local government such that the private person or entity 
                is fairly considered to be acting under color of law; 
                or
                    (H) otherwise exercises powers traditionally 
                reserved to State or local government.
            (3) Presumption.--A private person or entity is presumed to 
        be acting under color of law when, pursuant to a contract or 
        other legally binding agreement with a State or local 
        government, the private person or entity exercises any power of 
        that State or local government or the private person or entity 
        otherwise undertakes the administration, operations, or other 
        activities of: the judiciary, law enforcement, public 
        education, jails or prisons, elections, municipal water 
        services, municipal waste removal, evictions, public parks, or 
        public benefits programs.
            (4) No defense of qualified immunity.--Qualified immunity 
        is not a defense in an action brought against any person who 
        under color of any statute, ordinance, regulation, custom, or 
        usage, of any State or Territory or the District of Columbia, 
        subjects, or causes to be subjected, any citizen of the United 
        States or other person within the jurisdiction thereof to the 
        deprivation of any rights, privileges, or immunities secured by 
        the Constitution and laws.
            (5) Respondeat superior.--In the case of any official of 
        any political subdivision of a State, if that official, acting 
        under color of law, violates any provision of this Act, that 
        official shall be amenable to any suit under this Act, and the 
        political subdivision may be held liable for the acts of that 
        official, whether acting in his or her official or individual 
        capacity.

SEC. 10. EXPLICIT INCLUSION OF RULEMAKINGS.

    Section 1003(a)(1) of the Rehabilitation Act Amendments of 1986 (42 
U.S.C. 2000d-7(a)(1)) is amended by inserting before the period at the 
end the following: ``(including the provisions of any rule made to 
implement any of the foregoing statutes)''.

SEC. 11. CONSTRUCTION.

    (a) Relief.--Nothing in this Act, including any amendment made by 
this Act, 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 Act, including any amendment made 
by this Act, 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.
    (c) Severability.--If any provision of this Act, or the application 
of such a provision to any person or circumstance, is held to be 
unconstitutional, the remainder of this Act and the application of the 
remaining provisions of this Act to any person or circumstance shall 
not be affected thereby.
    (d) Arbitration.--Nothing in this Act, or the amendments made by 
this Act, shall be construed to prohibit the use of arbitration on a 
voluntary basis after a dispute arises.

SEC. 12. EFFECTIVE DATE.

    (a) In General.--This Act, and the amendments made by this Act, 
take effect on the date of enactment of this Act.
    (b) Application.--This Act, and the amendments made by this Act, 
apply to all actions or proceedings pending on or after the date of 
enactment of this Act, and, in the case of section 8 and the amendments 
made thereby, shall apply with respect to any dispute or claim that 
arises or accrues on or after such date.
                                 <all>