[Congressional Record Volume 146, Number 102 (Wednesday, September 6, 2000)]
[Senate]
[Pages S8109-S8111]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JEFFORDS (for himself, Mr. Kennedy, and Mr. Feingold):
  S. 3008. A bill to amend the Age Discrimination in Employment Act of 
1967 to require, as a condition of receipt of Federal funding, that 
States waive immunity to suit for certain violations of that Act, and 
to affirm the availability of certain suits for injunctive relief to 
ensure compliance with that Act; to the Committee on Health, Education, 
Labor, and Pensions.


            the older workers rights restoration act of 2000

  Mr. JEFFORDS. Mr. President, I am pleased to be here today to 
introduce legislation that will restore to state employees the ability 
to bring claims of age discrimination against their employers under the 
Age Discrimination and Employment Act of 1967. The Older Workers Rights 
Restoration Act of 2000 seeks to provide state employees who allege age 
discrimination the same procedures and remedies as those afforded to 
other employees with respect to ADEA.
  This legislation is needed to protect older workers like Professor 
Dan Kimel, who has taught physics at Florida State University for 
nearly 35 years. Despite his years of faithful service, in 1992, 
Professor Kimel found that he was earning less in real dollars than his 
starting salary. To add insult to injury, his employer was hiring 
younger faculty out of graduate schools at salaries that were higher 
than he and other long-service faculty members were earning. In 1995, 
Professor Kimel and 34 colleagues brought a claim of age discrimination 
against the Florida Board of Regents.
  Dan Kimel and his colleagues brought their cases under the Age 
Discrimination and Employment Act of 1967 (``ADEA''). In 1974, Congress 
amended the ADEA to ensure that state employees, such as Dan Kimel has 
full protection against age discrimination. I stand before you today 
because this past January the Supreme Court ruled that Dan Kimel and 
other affected faculty do not have the right to bring their ADEA claims 
against their employer. The Court in Kimel v. Florida Board of Regents, 
held that Congress did not have the power to abrogate state sovereign 
immunity to individuals under the ADEA. As a result of the decision, 
state employees, who are victims of age discrimination, no longer have 
the remedies that are available to individuals who work in the private 
sector, for local governments or for federal government. Indeed, unless 
a state chooses to waive its sovereign immunity or the Equal Employment 
Opportunity Commission decides to bring a suit, state workers now find 
themselves with no federal remedy for their claims of age 
discrimination. In effect, this decision has transformed older state 
employees into second class citizens.
  For a right without a remedy is no right at all. Employees should not 
have to lose their right to redress simply because they happen to work 
for a state government. And a considerable portion of our workforce has 
been impacted. In Vermont, for example, the State is one of our largest 
employers. We cannot and should not permit these state workers to lose 
the right to redress age discrimination.
  This legislation will resolve this problem. The Older Workers Rights 
Restoration Act of 2000 will restore the full protections of the ADEA 
to Dan Kimel and countless other state employees in federally assisted 
programs. The legislation will do this by requiring the states to waive 
their sovereign immunity as a condition of receiving federal funds for 
their programs or activities. The Older Workers Rights Restoration Act 
of 2000 follows the framework of many other civil rights laws, 
including the Civil Rights Restoration Act of 1987. Under this 
framework, immunity is only waived with regard to the program or 
activity actually receiving federal funds. States are not obligated to 
accept such funds; and if they do not they are immune from private ADEA 
suits. The legislation also confirms that these employees may bring 
actions for equitable relief under the ADEA.
  I urge all my colleagues to join me in supporting this bill.
  I ask unanimous consent that a copy of this bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 3008

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Older Workers Rights 
     Restoration Act of 2000''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Since 1974, the Age Discrimination in Employment Act of 
     1967 (29 U.S.C. 621 et seq.) has prohibited States from 
     discriminating in employment on the basis of age. In EEOC v. 
     Wyoming, 460 U.S. 226 (1983), the Supreme Court upheld 
     Congress' constitutional authority to prohibit States from 
     discriminating in employment on the basis of age. The 
     prohibitions of the Age Discrimination in Employment Act of 
     1967 remain in effect and continue to apply to the States, as 
     the prohibitions have for more than 25 years.
       (2) Age discrimination in employment remains a serious 
     problem both nationally and

[[Page S8110]]

     among State agencies, and has invidious effects on its 
     victims, the labor force, and the economy as a whole. For 
     example, age discrimination in employment--
       (A) increases the risk of unemployment among older workers, 
     who will as a result be more likely to be dependent on 
     government resources;
       (B) prevents the best use of available labor resources;
       (C) adversely effects the morale and productivity of older 
     workers; and
       (D) perpetuates unwarranted stereotypes about the abilities 
     of older workers.
       (3) Private civil suits by the victims of employment 
     discrimination have been a crucial tool for enforcement of 
     the Age Discrimination in Employment Act of 1967 since the 
     enactment of that Act. In Kimel v. Florida Board of Regents, 
     120 S. Ct. 631 (2000), however, the Supreme Court held that 
     Congress lacks the power under the 14th amendment to abrogate 
     State sovereign immunity to suits by individuals under the 
     Age Discrimination in Employment Act of 1967. The Federal 
     Government has an important interest in ensuring that Federal 
     funds are not used to facilitate violation of, the Age 
     Discrimination in Employment Act of 1967. Private civil suits 
     are a critical tool for advancing that interest.
       (4) As a result of the Kimel decision, although age-based 
     discrimination by State employers remains unlawful, the 
     victims of such discrimination lack important remedies for 
     vindication of their rights that are available to all other 
     employees covered under the Act, including employees in the 
     private sector, of local government, and of the Federal 
     Government. Unless a State chooses to waive sovereign 
     immunity, or the Equal Employment Opportunity Commission 
     brings an action on their behalf, State employees victimized 
     by violations of the Age Discrimination in Employment Act of 
     1967 have no adequate Federal remedy for violations of the 
     Act. In the absence of the deterrent effect that such 
     remedies provide, there is a greater likelihood that entities 
     carrying out federally funded programs and activities will 
     use Federal funds to violate the Act, or that the Federal 
     funds will otherwise subsidize or facilitate violations of 
     the Act.
       (5) Federal law has long treated nondiscrimination 
     obligations as a core component of programs or activities 
     that are, in whole or part, assisted by Federal funds. 
     Federal funds should not be used, directly or indirectly, to 
     subsidize invidious discrimination. Assuring 
     nondiscrimination in employment is a crucial aspect of 
     assuring nondiscrimination in those programs and activities.
       (6) Discrimination on the basis of age in federally 
     assisted programs or activities is, in contexts other than 
     employment, forbidden by the Age Discrimination Act of 1975 
     (42 U.S.C. 6101 et seq.). Congress determined that it was not 
     necessary for the Age Discrimination Act of 1975 to apply to 
     employment discrimination because the Age Discrimination in 
     Employment Act of 1974 already forbade discrimination in 
     employment by, and authorized suits against, State agencies 
     and other entities that receive Federal funds. In section 
     1003 of the Rehabilitation Act Amendments of 1986 (42 U.S.C. 
     2000d-7), Congress required all State recipients of Federal 
     assistance to waive any immunity from suit for discrimination 
     claims arising under the Age Discrimination Act of 1975. The 
     earlier limitation in the Age Discrimination Act of 1975, 
     originally intended only to avoid duplicative coverage and 
     remedies, has in the wake of the Kimel decision become a 
     serious loophole leaving millions of State employees without 
     an important Federal remedy for age discrimination resulting 
     in the use of such funds to subsidize or facilitate 
     violations of the Age Discrimination in Employment Act of 
     1967.
       (7) The Supreme Court has upheld Congress' authority to 
     condition receipt of Federal funds on acceptance by the 
     States or other recipients of conditions regarding or related 
     to the use of those funds, as in Cannon v. University of 
     Chicago, 441 U.S. 677 (1979). The Court has further 
     recognized that Congress may require a State, as a condition 
     of receipt of Federal assistance, to waive the State's 
     sovereign immunity to suits for a violation of Federal law, 
     as in College Savings Bank v. Florida Prepaid Postsecondary 
     Education Expense Board, 527 U.S. 666 (1999). In the wake of 
     the Kimel decision, in order to assure compliance with, and 
     to provide effective remedies for violations of, the Age 
     Discrimination in Employment Act of 1967 in State programs or 
     activities receiving Federal assistance, and in order to 
     ensure that Federal funds do not subsidize or facilitate 
     violations of the Age Discrimination in Employment Act of 
     1967, it is necessary to require such a waiver as a condition 
     of receipt of that Federal financial assistance.
       (8) The waiver resulting from the acceptance of Federal 
     funds by 1 State program or activity under this Act will not 
     eliminate a State's immunity with respect to other programs 
     or activities that do not receive Federal funds; a State 
     waives sovereign immunity only with respect to Age 
     Discrimination in Employment Act of 1967 suits brought by 
     employees within the programs or activities that receive such 
     funds. With regard to those programs and activities that are 
     covered by the waiver, the State employees will be accorded 
     only the same remedies that were available to State employees 
     under the Age Discrimination in Employment Act of 1967 before 
     Kimel and that are accorded to all other covered employees 
     under the Act.
       (9) The Supreme Court has repeatedly held that State 
     sovereign immunity does not bar suits for prospective 
     injunctive relief brought against State officials, as in ex 
     parte Young, 209 U.S. 123 (1908). Clarification of the 
     language of the Age Discrimination in Employment Act of 1967 
     will confirm that the Act authorizes such suits. The 
     injunctive relief available in such suits will continue to be 
     no broader than the injunctive relief that was available 
     under the Act before the Kimel decision, and that is 
     available to all other employees under that Act.

     SEC. 3. PURPOSES.

       The purposes of this Act are--
       (1) to provide to State employees in federally assisted 
     programs or activities the same rights and remedies for 
     practices violating the Age Discrimination in Employment Act 
     of 1967 as are available to other employees under that Act, 
     and that were available to State employees prior to the 
     Supreme Court's decision in Kimel v. Florida Board of 
     Regents, 120 S. Ct. 631 (2000);
       (2) to provide that the receipt of Federal funding for use 
     in a program or activity constitutes a State waiver of 
     sovereign immunity from suits by employees within that 
     program or activity for violations of the Age Discrimination 
     in Employment Act of 1967; and
       (3) to affirm that suits for equitable relief are available 
     against State officials in their official capacities for 
     violations of the Age Discrimination in Employment Act of 
     1967.

     SEC. 4. REMEDIES FOR STATE EMPLOYEES.

       Section 7 of the Age Discrimination in Employment Act of 
     1967 (29 U.S.C. 626) is amended by adding at the end the 
     following:
       ``(g)(1)(A) A State's receipt or use of Federal financial 
     assistance in any program or activity of a State shall 
     constitute a waiver of sovereign immunity, under the 11th 
     amendment to the Constitution or otherwise, to a suit brought 
     by an employee of that program or activity under this Act for 
     equitable, legal, or other relief authorized under this Act.
       ``(B) In this paragraph, the term `program or activity' has 
     the meaning given the term in section 309 of the Age 
     Discrimination Act of 1975 (42 U.S.C. 6107).
       ``(2) An official of a State may be sued in the official 
     capacity of the official by any employee who has complied 
     with the procedures of subsections (d) and (e), for equitable 
     relief that is authorized under this Act. In such a suit the 
     court may award to the prevailing party those costs 
     authorized by section 722 of the Revised Statutes (42 U.S.C. 
     1988).''.

     SEC. 5. SEVERABILITY.

       If any provision of this Act, an amendment made by this 
     Act, or the application of such provision or amendment to any 
     person or circumstance is held to be unconstitutional, the 
     remainder of this Act, the amendments made by this Act, and 
     the application of such provision or amendment to another 
     person or circumstance shall not be affected.

     SEC. 6. EFFECTIVE DATE.

       (a) Waiver of Sovereign Immunity.--With respect to a 
     particular program or activity, section 7(g)(1) of the Age 
     Discrimination in Employment Act of 1967 (29 U.S.C. 
     626(g)(1)) applies to conduct occurring on or after the day, 
     after the date of enactment of this Act, on which a State 
     first receives Federal financial assistance for use in that 
     program or activity.
       (b) Suits Against Officials.--Section 7(g)(2) of the Age 
     Discrimination in Employment Act of 1967 (29 U.S.C. 
     626(g)(2)) applies to any suit pending on or after the date 
     of enactment of this Act.

  Mr. FEINGOLD. Mr. President, I am pleased to join my distinguished 
colleagues, Senator Jeffords and Senator Kennedy, as an original 
cosponsor of the Older Workers Rights Restoration Act of 2000.
  With advances in medicine and science, Americans are living longer 
than ever before. This means that older Americans are also working 
longer than ever before. We should ensure that those Americans who work 
well into the golden years of their lives--including state employees--
can do so without fear of being denied a job, fired or overlooked for a 
promotion based on their age.
  Since enactment of the Age Discrimination in Employment Act in 1967, 
our Nation has come a long way in eliminating age discrimination in the 
workplace. But the Supreme Court's decision earlier this year in Kimel 
v. Florida Board of Regents threatens to turn back the clock on the 
progress we've made. Under that decision, a state employee who has a 
claim of employment discrimination based on age cannot bring a private 
lawsuit against a state government under the Age Discrimination in 
Employment Act. The state government is immune from such suits. The 
individual's only legal recourse is to file a complaint with the Equal 
Employment Opportunity Commission and hope that the EEOC takes the 
case. But the EEOC has limited resources and only pursues a fraction of 
the cases filed.
  Mr. President, this result is unacceptable. Older American workers

[[Page S8111]]

make important contributions to their employers--both businesses and 
governments, at the state and federal levels. Older Americans should be 
able to work free of even a hint of discrimination. And older Americans 
employed by state governments deserve the same protections against 
discrimination on the job that other older Americans employed by 
private businesses or the federal government enjoy.
  This bill that we introduce today would do just that. It ensures that 
state employees in federally assisted programs or activities have the 
same rights and remedies for practices violating the Age Discrimination 
in Employment Act as are available to other employees under that act 
and that were available to state employees prior to the Supreme Court's 
Kimel decision.
  Mr. President, I have had a longstanding commitment to aging issues, 
both as a U.S. Senator and, previously, as a Wisconsin State Senator. 
In the U.S. Senate, I have served on the Special Committee on Aging. In 
the Wisconsin state senate, I served for ten years as the chairman of 
the Senate Committee on Aging. In fact, the first legislation I 
introduced as a state senator was a bill to eliminate mandatory 
retirement. That bill passed and was signed into law. As a result, 
older Wisconsin residents have the right to work without being forced 
to retire at a certain age.
  I look forward to working with Senator Jeffords to move this 
important legislation through the Senate. I urge my colleagues to join 
us in taking this step toward restoring protections for state employees 
against age discrimination.
  Thank you, Mr. President. I yield the floor.
                                 ______