[Congressional Record Volume 147, Number 71 (Tuesday, May 22, 2001)]
[Senate]
[Pages S5458-S5460]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JEFFORDS (for himself, Mr. Kennedy, and Mr. Feingold):
  S. 928. A bill to amend the Age Discrimination in Employment Act of 
1967 to require, as a condition of receipt or use of Federal financial 
assistance, 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.
  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 2001 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 Florida State University for nearly 
35 years. Professor Kimel testified at a recent hearing before the 
Senate Health, Education, Labor and Pensions Committee that, despite 
his years of faithful service, in 1992 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 had 
full protection against age discrimination. I stand before you today 
because this past year 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 the 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 no longer have a 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 2001 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 2001 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

[[Page S5459]]

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 the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 928

       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 2001''.

     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 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 the 
     Constitution 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 financial assistance is not used to 
     subsidize or facilitate violations 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 that Act, including employees in the 
     private sector, local government, and 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 that Act. In the absence of 
     the deterrent effect that such remedies provide, there is a 
     greater likelihood that entities carrying out programs and 
     activities receiving Federal financial assistance will use 
     that assistance to violate that Act, or that the assistance 
     will otherwise subsidize or facilitate violations of that 
     Act.
       (5) Federal law has long treated nondiscrimination 
     obligations as a core component of programs or activities 
     that, in whole or part, receive Federal financial assistance. 
     That assistance 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 programs or 
     activities receiving Federal financial assistance 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 1967 already forbade discrimination in employment by, 
     and authorized suits against, State agencies and other 
     entities that receive Federal financial assistance. In 
     section 1003 of the Rehabilitation Act Amendments of 1986 (42 
     U.S.C. 2000d-7), Congress required all State recipients of 
     Federal financial 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 Federal financial 
     assistance 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 financial assistance on 
     acceptance by the States or other recipients of conditions 
     regarding or related to the use of that assistance, as in 
     Cannon v. University of Chicago, 441 U.S. 677 (1979). The 
     Court has further recognized that Congress may require a 
     State, as a condition of  receipt of Federal financial 
     assistance, to waive the State's sovereign immunity to 
     suits for a violation of Federal law, as in College 
     Savings Bank v. Florida Prepaid Postsecondary Education 
     Expense Board, 527 U.S. 666 (1999). In the wake of the 
     Kimel decision, in order to assure compliance with, and to 
     provide effective remedies for violations of, the Age 
     Discrimination in Employment Act of 1967 in State programs 
     or activities receiving or using Federal financial 
     assistance, and in order to ensure that Federal financial 
     assistance does not subsidize or facilitate violations of 
     the Age Discrimination in Employment Act of 1967, it is 
     necessary to require such a waiver as a condition of 
     receipt or use of that assistance.
       (8) A State's receipt or use of Federal financial 
     assistance in any program or activity of a State will 
     constitute a limited waiver of sovereign immunity under 
     section 7(g) of the Age Discrimination in Employment Act of 
     1967 (as added by section 4 of this Act). The waiver will not 
     eliminate a State's immunity with respect to programs or 
     activities that do not receive or use Federal financial 
     assistance. The State will waive sovereign immunity only with 
     respect to suits under the Age Discrimination in Employment 
     Act of 1967 brought by employees within the programs or 
     activities that receive or use that assistance. With regard 
     to those programs and activities that are covered by the 
     waiver, the State employees will be accorded only the same 
     remedies that are accorded to other covered employees under 
     the Age Discrimination in Employment Act of 1967.
       (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 that Act authorizes such suits. The 
     injunctive relief available in such suits will continue to be 
     no broader than the injunctive relief that was available 
     under that Act before the Kimel decision, and that is 
     available to all other employees under that Act.

     SEC. 3. PURPOSES.

       The purposes of this Act are--
       (1) to provide to State employees in programs or activities 
     that receive or use Federal financial assistance the same 
     rights and remedies for practices violating the Age 
     Discrimination in Employment Act of 1967 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 or use of Federal financial 
     assistance for a program or activity constitutes a State 
     waiver of sovereign immunity from suits by employees within 
     that program or activity for violations of the Age 
     Discrimination in Employment Act of 1967; and
       (3) to affirm that suits for injunctive relief are 
     available against State officials in their official 
     capacities for violations of the Age Discrimination in 
     Employment Act of 1967.

     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 for any program or activity of a State shall 
     constitute a waiver of sovereign immunity, under the 11th 
     amendment to the Constitution or otherwise, to a suit brought 
     by an employee of that program or activity under this Act for 
     equitable, legal, or other relief authorized under this Act.
       ``(B) In this paragraph, the term `program or activity' has 
     the meaning given the term in section 309 of the Age 
     Discrimination Act of 1975 (42 U.S.C. 6107).
       ``(2) An official of a State may be sued in the official 
     capacity of the official by any employee who has complied 
     with the procedures of subsections (d) and (e), for 
     injunctive relief that is authorized under this Act. In such 
     a suit the court may award to the prevailing party those 
     costs authorized by section 722 of the Revised Statutes (42 
     U.S.C. 1988).''.

     SEC. 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 invalid, 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 or uses Federal financial assistance for that 
     program or activity.
       (b) Suits Against Officials.--Section 7(g)(2) of the Age 
     Discrimination in Employment Act of 1967 (29 U.S.C. 
     626(g)(2)) applies to any suit pending on or after the date 
     of enactment of this Act.


[[Page S5460]]


  Mr. KENNEDY. Mr. President, I am honored today to join Chairman 
Jeffords and Senator Feingold to introduce the Older Workers' Rights 
Restoration Act of 2001. Our goal is to restore to older state 
government workers the right to seek remedies for age discrimination. A 
recent decision by the Supreme Court took that right away. State 
workers now have fewer federal protections against age discrimination 
than other employees in the country. This bill will remedy that 
injustice.
  In 1967, Congress outlawed age discrimination in employment in the 
private sector by passing the Age Discrimination in Employment Act. In 
1974, recognizing that employees of state government agencies were also 
often subject to pervasive and arbitrary age discrimination, Congress 
extended the Act to cover state governments. For more than 25 years, 
state employees were protected from age discrimination, and had the 
same remedies as all other employees covered by this law.
  But in Kimel v. Florida Board of Regents, decided last year, the 
Supreme Court held that Congress lacked the power to subject states to 
suits under the federal age discrimination laws. As a result, unless a 
state agrees to allow suits against its agencies in such cases, state 
employees cannot seek relief on their own behalf to remedy age 
discrimination.
  In a recent hearing before the Labor Committee, I was privileged to 
hear the eloquent testimony of Dr. J. Daniel Kimel, the plaintiff in 
the Supreme Court case. Dr. Kimel has been a professor of physics at 
Florida State University for 35 years and is paid less than younger 
faculty. Because of the Supreme Court's ruling, Dr. Kimel has been 
unable to seek any remedy at all for this age-based salary 
discrimination.
  Large numbers of State employees, those who work for State colleges 
and universities, State police forces, State departments of 
transportation, State environmental protection agencies and many other 
State agencies, lack effective Federal remedies for age discrimination. 
That result is unfair. These State workers are vulnerable to age 
discrimination, which wastes valuable talent and adversely affects 
morale.
  No worker should be subject to discriminatory hiring, firing, or 
other job action based on age or any other characteristic that has 
nothing to do with job performance. We must act to see that workers are 
adequately protected against this threat.
  The bill that Chairman Jeffords, Senator Feingold and I are 
introducing today is in the best tradition of the nation's civil rights 
laws. It provides that when a State program receives Federal tax 
dollars, the program must permit its employees to seek remedies under 
the Federal age discrimination law. The courts have long recognized 
that Congress can act to see that Federal funds are not used to 
subsidize discrimination, and this is what our bill will do. In fact, 
all of the scholars who testified in our Committee hearing agree that 
this is an appropriate and constitutional use of Congress' power.
  This important bill will help to ensure that all Americans are 
protected from age discrimination in employment. I urge my colleagues 
to join me in supporting this needed legislation.
                                 ______