Congressional Record, Volume 150 Issue 18 (Thursday, February 12, 2004)

[Congressional Record Volume 150, Number 18 (Thursday, February 12, 2004)]
[Senate]
[Pages S1288-S1311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mrs. MURRAY (for herself, Mr. Leahy, and Mr. Reid):
S. 2068. A bill to enhance and improve benefits for members of the
National Guard and Reserves who serve extended periods on active duty,
and for other purposes; to the Committee on Finance.
Mrs. MURRAY. Mr. President, I rise this evening to introduce a very
important piece of legislation that will support hundreds of thousands
of Americans who are making great sacrifices for our country. This bill
will enhance the benefits that are offered to the brave men and women
of the National Guard and Reserves and their families when they are
called to service.
The latest figures from the Pentagon show that more than 194,000
Guard and Reserves are currently serving on active duty. We have come
to rely greatly on our Guard and Reserve Forces for extended durations.
It is now time that we provide them with the support that is available
to our regular services.
Nationwide, we are experiencing the largest activation of Guard and
Reserves since the Korean war. In my home State this is the largest
activation of these brave men and women since World War II.
Guard and Reserves make up almost 40 percent of the total U.S. force
in Iraq. They play a critical role in our operations in Afghanistan,
and they support a tremendous number of our homeland security missions.
The Guard's 81st Armor Brigade is sending 3,600 brave Washington
State citizens to Iraq in the next few weeks. I had the pleasure of
meeting with many of these soldiers and their families in early
January. During my visit with these soldiers, I heard many concerns
about the well-being of their families who are going to be left to
shoulder tremendous responsibilities while they are away. Many were
concerned that they would leave before they could help their spouse
find affordable child care. Others were concerned that their children
would have to go to a new doctor who accepts TRICARE, and that type of
change when one parent is overseas and far away can be very scary for a
young child.
My visit with the families offered a window into what they are facing
as their loved ones serve on extended deployments. Their families were
concerned about the loss of income between their spouse's civilian
salary and their active-duty salary.
Some of our activated soldiers were in school. Their families were
concerned that they would have to begin repaying student loans while
their loved ones served in Iraq.
It is vital that Congress take steps to ensure all members of our
Armed Forces and their families are taken care of, especially during
extended active-duty deployments and upon their return home.
Unfortunately, that has not always been the case. Veterans who
volunteered or were drafted to serve our country were promised health
care and other benefits. When they returned home they found those
promises were not kept. In recent years, the administration has barred
certain veterans from enrolling in the VA. The President's budget
request for this year would require some veterans to pay additional
fees for the services they are currently able to receive.
This evening, I am introducing a comprehensive piece of legislation
that will minimize the challenges at home when members of the Guard and
Reserve leave their jobs, their schools, their homes, and their
families to protect our homeland and fight terrorism. This legislation
helps families by extending the Family and Medical Leave Act to allow
spouses to take time away from their job to put together a single-
parent household and prepare for their transition.

My bill will help Guard and Reserve families with children by
providing access to child care, especially during times of extended
active duty. This provision would allow nonworking spouses with
children to work while their spouse is being deployed, making child
care more affordable.
Education is a key part of this proposal. I have heard from Guard
members who are worried that they had to leave their university to go
to Iraq for a year. We have to ensure that when they return to school
it will be without penalty, and that their student loans are deferred
during their extended deployment.
Several soldiers who work in the high-tech field said to me:

Eighteen months away from my job in the high tech field
means that I will not be ready to go back into my position
when I return.

That is why my bill will extend and update the GI Bill benefits for
Guard and Reserve to keep better pace with the rising costs of
education. This will encourage education and provide a competitive edge
for Guard and Reserves when they return home to the private sector.
My proposal will improve health care coverage by providing access to
TRICARE for all members of the Guard and Reserves and their families,
regardless of employment or insurance status. TRICARE only works if you
are in a community that has TRICARE available. Guard and Reserves who
are mobilized for extended periods need the option to maintain their
private health care plans. So my proposal provides that option and
covers their premiums during periods of extended deployment.
Many members of the Guard and Reserves who are mobilized are seeing a
huge decrease in their pay while they serve our country on active duty.
My proposal ensures pay equity for Federal employees called to duty and
provides tax credits to employers to encourage their support of
activated Guard and Reserves.
My proposal also reduces the age for Guard and Reserves to receive
retirement pay to age 55.
I am very concerned that we are burning up our Guard and Reserve
units by placing a serious strain on their families and their finances.
These brave men and women need the same kind of support that our
regular services have when they are called away from their families and
their jobs for extended deployments. By addressing these shortfalls
now, we give the Guard and Reserves a valuable tool for recruiting and
retaining the best and the brightest soldiers in the world.
This bill tells our Guard and Reserve members that they can serve our
country overseas, even on long deployments, and know that their
families will be financially secure and able to get child care and
health care. Spouses can take time off from work to prepare for a long
deployment. In addition, Guard members won't lose their place at a
university, and they won't be charged interest or have to repay loans
until they resume their studies.
I hope we can pass this bill and do everything we can to lessen the
burden

[[Page S1289]]

on Americans who are already sacrificing so much for our security. We
are asking so much of our Guard and Reserve members and their families.
We have an obligation to make it easier for their spouses and children
during these extended long deployments.
I hope my colleagues will support this legislation and help us move
it quickly through the Senate.
I yield the floor.
______

By Mr. HAGEL:
S. 2070. A bill to amend the Animal Health Protection Act to direct
the Secretary of Agriculture to implement the United States Animal
Identification Plan, and for other purposes; to the Committee on
Agriculture, Nutrition, and Forestry.
Mr. HAGEL. Mr. President, I rise today to introduce legislation to
provide the U.S. Department of Agriculture (USDA) the authority to
implement the U.S. Animal Identification Plan (USAIP) for livestock, as
well as strengthen existing laws that protect against the spread of
disease in livestock.
Consumers in the U.S. and around the world must have confidence in
our food supply. The discovery of the first case of Bovine Spongiform
Encephalopathy (BSE) in the United States has raised serious concerns
regarding the effectiveness of current U.S. disease management measures
as well as closed U.S. beef markets overseas.
For years there have been efforts to develop a national animal
identification plan. The National Identification Task Force was created
in 2002. The task force brought together livestock industry
representatives with USDA to participate in the development of a
comprehensive plan known as the United States Animal Identification
Plan (USAIP). The final development and implementation of this plan is
needed now to bolster confidence in the U.S. livestock industry.
In a recent briefing regarding the completion of the investigation
into the U.S. BSE case, Dr. Ron DeHaven, Chief Veterinary Officer with
USDA, referring to the unfound cattle from Canada, was quoted as
saying, ``Many of those animals were moved into the United States a
number of years ago, and so because of that timeframe some of the paper
trail has gotten cold.'' A national animal identification plan would
ensure the trail would not go cold in the future.
My legislation will direct USDA to focus its resources on
implementing the USAIP for beef and dairy cattle to ensure a disease
tracking system is in place in a timely manner. This bill also provides
financial assistance to aid in the cost of producer compliance.
In addition, this legislation directs the Food and Drug
Administration (FDA) to strengthen the enforcement of current livestock
feed ban laws. This measure will help control disease threats to U.S.
livestock, provide privacy protection for the information collected and
used in the plan, and implement an effective plan for tracking animals.
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. 2070

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 ``United States Animal
Identification Plan Implementation Act''.

SEC. 2. ANIMAL IDENTIFICATION PLAN.

Section 10411 of the Animal Health Protection Act (7 U.S.C.
8310) is amended by adding at the end the following:
``(f) Animal Identification Plan.--
``(1) Definition of animal identification plan.--
``(A) In general.--The term `animal identification plan'
means the United States Animal Identification Plan developed
by the National Animal Identification Development Team.
``(B) Inclusions.--The term `animal identification plan'
includes--
``(i) the operational premises identification allocation
system;
``(ii) the operational certification system able to certify
State premises and animal number allocation systems;
``(iii) the operational premises repository; and
``(iv) the operational identification database.
``(2) Implementation priority.--Subject to the availability
of appropriations and cost-share agreements, the Secretary
shall implement the animal identification plan--
``(A) for beef and dairy cattle that are at least 30 months
old on the date of enactment of this subsection, not later
than 60 days after the date of enactment of this subsection;
``(B) for all other beef and dairy cattle, not later than
90 days after the date of the enactment of this subsection;
``(C) for all other ruminate livestock, not later than 180
days after the date of enactment of this subsection; and
``(D) for all other livestock, not later than 1 year after
the date of enactment of this subsection.
``(3) Participation by state and third-party vendors.--The
Secretary may enter into agreements to collect information
for the animal identification plan with States or third-party
vendors that meet the requirements of the animal
identification plan.
``(4) Confidentiality of information.--
``(A) In general.--In implementing the animal
identification plan, the Secretary shall ensure the privacy
of producers by--
``(i) collecting only data necessary to establish and
maintain the animal identification plan; and
``(ii) maintaining the confidentiality of information
collected from producers.
``(B) Nonapplication of foia.--Section 552 of title 5,
United States Code, shall not apply to the animal
identification plan.
``(C) Application of privacy act.--Section 552a of title 5,
United States Code, shall apply to any information collected
to implement this subsection.
``(5) Financial assistance.--The Secretary may provide
financial assistance to producers to assist the producers in
complying with the animal identification plan.
``(6) Authorization of appropriations.--
``(A) In general.--There is authorized to be appropriated
to carry out this subsection $50,000,000 for fiscal year
2004, of which at least $25,000,000 shall be available to
carry out paragraph (5).
``(B) Use of commodity credit corporation funds.--Subject
to subparagraph (C), if less than $50,000,000 is appropriated
for fiscal year 2004, the Secretary may use up to $50,000,000
of the funds of the Commodity Credit Corporation to carry out
this subsection.
``(C) Limitation on amount of funds.--No more than
$50,000,000 may be used to carry out this subsection.''.

SEC. 3. RUMINANT FEED BAN.

(a) In General.--The Secretary of Health and Human
Services, acting through the Commissioner of Food and Drugs,
shall--
(1) monitor the implementation of section 589.2000 of title
21, Code of Federal Regulations (relating to animal proteins
prohibited in ruminant feed);
(2) conduct an annual formal evaluation of the
effectiveness and implementation of that section; and
(3) submit to Congress an annual report that describes the
formal evaluation.
(b) Enforcement Plan.--
(1) In general.--The Secretary shall develop and implement
a plan for enforcing section 589.2000 of title 21, Code of
Federal Regulations.
(2) Inclusions.--The plan shall include--
(A) a hierarchy of enforcement actions to be taken;
(B) a timeframe to allow a person subject to section
589.2000 of title 21, Code of Federal Regulations, to correct
violations; and
(C) a timeframe for subsequent inspections to confirm that
violations have been corrected.
______

By Mr. KOHL (for himself and Mr. Kennedy):
S. 2071. A bill to expand the definition of immediate relative for
purposes of the Immigration and Nationality Act; to the Committee on
the Judiciary.
Mr. KOHL. Mr. President, I rise today with Senator Kennedy to
introduce the Family Reunification Act, a measure designed to remedy a
regrettable injustice in our immigration laws. A minor oversight in the
law has led to an unfortunate, and likely unintended, consequence.
Parents of U.S. citizens are currently able to enter the country as
legal permanent residents, but our laws do not permit their minor
children to join them. Simply put, the Family Reunification Act will
close this loophole by including the minor siblings of U.S. citizens in
the definition of ``immediate relative.'' This legislation will ensure
that our immigration laws can better accomplish one of the most
important policy goals behind them--the goal of strengthening the
family unit.
Congress took an important first step in promoting family
reunification when it enacted the Immigration and Nationality Act. By
qualifying as ``immediate relatives,'' this law currently offers
parents, spouses and children of U.S. citizens the ability to obtain
immigrant visas to enter this country legally.
This we can all agree is good immigration policy. Unfortunately, a

[[Page S1290]]

``glitch'' in this law has put numerous families in an uncomfortable
predicament. One of these unlucky families lives in my home Sate of
Wisconsin. Effiong and Ekom Okon, both U.S. citizens by birth and
graduates of the University of Wisconsin-Madison, requested that their
parents be admitted to the United States from Nigeria as ``immediate
relatives.'' The law clearly allows for this. Their father, Leo Okon,
has already joined them in Wisconsin, and their mother, Grace, is
currently in possession of an immigrant visa. However, Grace is unable
to join her husband and sons in the United States because her six-year-
old daughter, Daramfon, does not qualify as an ``immediate relative''
under current immigration law. Because it would be unthinkable for her
to abandon her small child, Grace has been forced to stay behind in
Nigeria, separated from the rest of her family.
This family is truly an American success story, one of first-
generation citizens graduating from a top University. They want to
continue to contribute to society and want to bring their family with
them. Unfortunately, current immigration law only permits some members
of their immediate family to join them, but not all. This is clearly
wrong.
It is difficult to determine the scope of this problem. Because minor
siblings do not qualify for visas, the Department of Homeland Security
does not keep track of how many families have been adversely affected.
However, DHS employees have assured us that the Okons are not unique.
In fact, this is an all too common occurrence. If only one family
suffers because of this loophole, changes must be made. The fact that
there have been numerous cases demands changes now.
Many parts of our immigration laws are outdated, unfair, and in need
of repair. The definition of ``immediate relative'' is no different.
Congress' intent when it grated ``immediate relatives'' the right to
obtain immigrant visas was to promote family reunification, but the
unfortunate oversight highlighted has interfered with many families'
opportunities to do just that. The legislation introduced today would
expand the definition of ``immediate relatives'' to include the minor
siblings of U.S. citizens. By doing so, we can truly provide these
families with the ability to reunite and the chance to take advantage
of the many great opportunities our country has to offer. This is a
simple and modest solution to an unthinkable problem that too many
families have already had to face.
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. 2071

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

SECTION 1. IMMEDIATE RELATIVE DEFINITION.

Section 201(b)(2)(A)(i) of the Immigration and Nationality
Act (8 U.S.C. 1151(b)(2)(A)(i)) is amended by inserting after
``at least 21 years of age.'' the following: ``In the case of
a parent of a citizen of the United States who has a child
(as defined in section 101(b)(1)), the child shall be
considered, for purposes of this subsection, an immediate
relative if accompanying or following to join the parent.''.
______

By Mr. CRAIG.
S. 2072. A bill to amend the Internal Revenue Code of 1986 to allow a
nonrefundable tax credit for elder care expenses; to the Committee on
Finance.
Mr. CRAIG. Mr. President, today I am introducing the Senior Elder
Care Relief and Empowerment Act--the SECURE Act. The SECURE Act
provides eligible taxpayers with a non-refundable tax credit equal to
50 percent of qualified expenses incurred on behalf of senior citizens
above a $1,000 spending floor.
The Senate Special Committee on Aging has held several hearings on
different facets of the growing long-term care crisis in this country.
A major concern of mine is that the Federal long-term care policy mix
may not have the right incentives--especially when it comes to the
tough choices faced by families who want to care for their frail and
aging relatives.
Earlier this week, we held a hearing in the Senate Special Committee
on Aging on a growing issue of national importance--the issue of family
caregiving for America's seniors.
Witnesses at the hearing highlighted the emotional stress and
financial challenges faced by family caregivers of aging and vulnerable
relatives; and testified favorably about the SECURE Act. Trudy Elliott,
a witness at the hearing from North Idaho, talked about the stress and
financial challenges she and her husband faced while caring for her
mother, sister, and father. Her testimony was very moving. Mrs.
Elliott, who also works for a company in the home health field,
testified that her experience was not unique. More and more families
are facing the stress and financial difficulties that come with caring
for their aging parents.
It is critical to note that families, not government, provide 80
percent of long-term care for older persons in the United States. This
is an enormous strength of our long-term care system. The U.S.
Administration on Aging reports that about 22 million people serve as
informal caregivers for seniors with at least one limitation on their
activities of daily living.
These caregivers often face extreme stress and financial burden--
especially those we call the sandwich generation. The sandwich
generation refers to those sandwiched between caring for their aging
parents and caring for their own children.
It is difficult for families to balance caring for children and
saving or paying for college, while at the same time struggling with
financing care for frail and aging parents.
The SECURE Act should not preclude seniors or those near retirement
from purchasing long-term care insurance. The Act provides tax relief
for high-risk seniors who cannot qualify for long-term care insurance
policies.
For many families, the nursing home is the only solution for
providing long-term care, and that can be a good choice. For other
families, keeping aging and vulnerable relatives in their own home or
in the caregiver's home makes sense.
An that is why I am introducing the SECURE Act. Families facing high
levels of stress and eldercare expenses deserve tax relief as they
freely care for their frail and aging parents.
We also heard from witnesses at the Aging Committee hearing that the
SECURE Act will increase the eldercare choices available to families
and has the potential to reduce the number of seniors forced to spend
down their nest-egg in order to qualify for Medicaid services.
Family caregiving for aging and vulnerable relatives requires a
flexible national response to ensure seniors and their families have
the most appropriate high quality choices.
I invite my colleagues to cosponsor this compassionate legislation. I
ask unanimous consent that the text of the bill and a brief description
be printed in the Record.
There being no objection, the materials were ordered to be printed in
the Record, as follows:

S. 2072

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 ``Senior Elder Care Relief and
Empowerment (SECURE) Act''.

SEC. 2. CREDIT FOR ELDER CARE.

(a) In General.--Subpart A of part IV of subchapter A of
chapter 1 of the Internal Revenue Code of 1986 is amended by
inserting after section 25B the following new section:

``SEC. 25C. ELDER CARE EXPENSES.

``(a) Allowance of Credit.--In the case of an individual,
there shall be allowed as a credit against the tax imposed by
this chapter 50 percent of so much of the qualified elder
care expenses paid or incurred by the taxpayer with respect
to each qualified senior citizen as exceeds $1,000.
``(b) Qualified Senior Citizen.--For purposes of this
section, the term `qualified senior citizen' means an
individual--
``(1) who has attained normal retirement age (as determined
under section 216 of the Social Security Act) before the
close of the taxable year,
``(2) who is a chronically ill individual (within the
meaning of section 7702B(c)(2)(B)), and
``(3) who is--
``(A) the taxpayer,
``(B) a family member (within the meaning of section
529(e)(2)) of the taxpayer, or
``(C) a dependent (within the meaning of section 152) of
the taxpayer.
``(c) Qualified Elder Care Expenses.--For purposes of this
section--

[[Page S1291]]

``(1) In general.--The term `qualified elder care expenses'
means expenses paid or incurred by the taxpayer with respect
to the qualified senior citizen for--
``(A) qualified long-term care services (as defined in
section 7702B(c)),
``(B) respite care, or
``(C) adult day care.
``(2) Exceptions.--The term `qualified elder care expenses'
does not include--
``(A) any expense to the extent such expense is compensated
for by insurance or otherwise, and
``(B) any expense paid to a nursing facility (as defined in
section 1919 of the Social Security Act).
``(d) Other Definitions and Special Rules.--
``(1) Adult day care.--The term `adult day care' means care
provided for a qualified senior citizen through a structured,
community-based group program which provides health, social,
and other related support services on a less than 16-hour per
day basis.
``(2) Respite care.--The term `respite care' means planned
or emergency care provided to a qualified senior citizen in
order to provide temporary relief to a caregiver of such
senior citizen.
``(3) Married individuals.--Rules similar to the rules of
paragraphs (2), (3), and (4) of section 21(e) shall apply for
purposes of this section.
``(4) No double benefit.--No deduction or other credit
under this chapter shall take into account any expense taken
into account for purposes of determining the credit under
this section.
``(5) Identifying information required with respect to
service provider.--No credit shall be allowed under
subsection (a) for any amount paid to any person unless--
``(A) the name, address, and taxpayer identification number
of such person are included on the return claiming the
credit, or
``(B) if such person is an organization described in
section 501(c)(3) and exempt from tax under section 501(a),
the name and address of such person are included on the
return claiming the credit.

In the case of a failure to provide the information required
under the preceding sentence, the preceding sentence shall
not apply if it is shown that the taxpayer exercised due
diligence in attempting to provide the information so
required.
``(6) Identifying information required with respect to
qualified senior citizens.--No credit shall be allowed under
this section with respect to any qualified senior citizen
unless the TIN of such senior citizen is included on the
return claiming the credit.''.
(b) Conforming Amendments.--
(1) Section 6213(g)(2)(H) (relating to mathematical or
clerical error) is amended by inserting ``, section 25C
(relating to elder care expenses),'' after ``employment)''.
(2) The table of sections for subpart A of part IV of
subchapter A of chapter 1 of the Internal Revenue Code of
1986 is amended by inserting after the item relating to
section 25B the following new item:

``Sec. 25C. Elder care expenses.''.

(c) Effective Date.--The amendments made by this section
shall apply to expenses incurred in taxable years beginning
after December 31, 2003.
____

Senior Elder Care Relief and Empowerment (SECURE) Act

How is the tax credit structured?
50% tax credit rate for qualified expenses for elder care
provided to a qualified senior citizen with long-term care
needs, for all qualified expenses above a ``floor'' of $1,000
already provided by the taxpayer (for example: $500 credit on
first $2,000 spent; $10,000 credit on first $21,000 spent)
What are the qualifications for beneficiaries of the tax
credit?
Must have reached at least normal retirement age under
Social Security (currently age 65), Certification by a
licensed physican that the cared-for senior is unable to
perform at least two basic activities of daily living
Who can claim the credit?
Senior for his/her own care, Taxpaying family member, Any
taxpaying family claiming the cared-for senior as a dependent
What are the qualified expenses?
Un-reimbursable costs (those not covered by Medicare or
other insurance), Physical assistance with essential daily
activities to prevent injury, Long-term care expenses
including normal household services, Architectural expenses
necessary to modify the senior's residence, Respite care,
Adult daycare, Assisted living services (non-housing related
expenses), Independent living, Home care, Home health care.
______

By Mr. REID (for himself, Mrs. Lincoln, and Mr. Breaux):
S. 2075. A bill to amend title III of the Public Health Service Act
to include each year of fellowship training in geriatric medicine or
geriatric psychiatry as a year of obligated service under the National
Health Corps Loan Repayment Program; to the Committee on Health,
Education, Labor, and Pensions.
Mr. REID. Mr. President, as our Nation's 76 million Baby Boomers near
retirement age, the number of Americans over age 65 will double to 70
million--one-fifth of the population. Americans older than 85 represent
the fastest growing segment of this population and membership in this
once exclusive demographic group is projected to grow from four million
Americans today to an estimated 19 million by 2050.
Unfortunately, our health care system is ill prepared to handle the
strain of this enormous senior population, largely because we have a
critical shortage of geriatricians. Fewer than 9,000 geriatricians
practice in the U.S., far below the 20,000 or more needed to
effectively care for the Nation's booming population of seniors.
Ironically, the number of geriatricians is expected to shrink as many
of these doctors retire at the same time baby boomers start qualifying
for Medicare in large numbers.
America must plan for the burdens the baby boomers demographic shift
will place on our health care system and health care providers. Our
first step is ensuring the country has an adequate number of well-
trained geriatricians.
I first introduced legislation to address the national shortage of
geriatricians during the 105th Congress. While I am encouraged that
greater attention has been focused on this issue, little has been
accomplished to improve the shortage of geriatricians.
Today, I am re-introducing legislation that will encourage more
doctors to become certified in geriatrics. The Geriatricians Loan
Forgiveness Act would forgive $20,000 of education debt incurred by
medical students for each year of advanced training required to obtain
a certificate of added qualifications in geriatric medicine or
psychiatry.
Geriatric medicine is the foundation of a comprehensive health plan
for our most vulnerable seniors. Geriatrics, by focusing on assessment
and care coordination, promotes preventive care and improves patients'
quality of life by allowing them greater independence and eliminating
unnecessary and costly trips to the hospital or institutions. But this
kind of specialized care is complicated and demanding. Many doctors
inclined to study and practice geriatric medicine are dissuaded from
doing so because treating the elderly takes more time and carries
financial disincentives for doctors.
Medical training takes time, so we need to lay the groundwork now to
have enough qualified geriatricians in place in ten years from now.
This legislation is a commonsense approach and cost-effective
investment. We must take these steps today to meet our needs for
tomorrow.
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. 2075

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 ``Geriatricians Loan
Forgiveness Act of 2004''.

SEC. 2. NATIONAL HEALTH SERVICE CORPS LOAN REPAYMENT PROGRAM.

(a) In General.--Section 338B(g) of the Public Health
Service Act (42 U.S.C. 254l-1(g)) is amended by adding at the
end the following:
``(5) Obligated service.--
``(A) In general.--For purposes of this section, each year
of training in geriatric medicine or geriatric psychiatry
that is required in order to obtain a certificate of added
qualification in geriatric medicine or geriatric psychiatry
shall be deemed to be a year of obligated service.
``(B) Limitations.--
``(i) Payments.--Notwithstanding
the first sentence of paragraph (2)(A), for the year of
obligated service described in subparagraph (A), the
Secretary may pay up to $20,000 on behalf of the individual
for loans described in paragraph (1).
``(ii) Individuals.--The number of fellowship years in
geriatric medicine or geriatric psychiatry that are deemed to
be a year of obligated service under this section shall not
exceed 400 in any calendar year.''.
(b) Effective Date.--
(1) In general.--The amendment made by subsection (a) shall
apply to applications submitted to the Secretary of Health
and Human Services under section 338B of the Public Health
Service Act (42 U.S.C. 254l-1) on or after 1 year after the
date of enactment of this Act.
(2) First year of program.--For the period beginning on the
date of enactment of this Act and ending on December 31 of
the

[[Page S1292]]

calendar year in which such enactment occurs, the Secretary
of Health and Human Services shall ratably reduce the maximum
number of fellowship years in geriatric medicine or geriatric
psychiatry that may be deemed to be a year of obligated
service under section 338B(g)(5)(B)(ii) of the Public Health
Service Act (42 U.S.C. 254l-1(g)(5)(B)(ii)) (as added by
subsection (a)) to reflect the portion of the year that the
amendment made by subsection (a) is in effect.
______

By Mr. BAUCUS:
S. 2076. A bill to amend title XI of the Social Security Act to
provide direct congressional access to the office of the Chief Actuary
in the Centers for Medicare & Medicated Services; to the Committee on
Finance.
Mr BAUCUS. Mr. President, I rise today to introduce the Congressional
Access to the CMS Chief Actuary Act of 2004.
This legislation provides Congress with greater access to cost
estimates and other data produced and collected by the Center for
Medicare and Medicaid Services (CMS) Office of the Actuary. The Office
of the Actuary is a group of about 50 actuaries, economists, and other
health professionals who provide non-partisan analyses of Medicare and
other federally financed health care programs.
Recently we learned that the administration's cost estimate of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003
is $534 billion over 10 years, nearly $140 billion higher than the
estimates produced by the Congressional Budget Office (CBO). Contrary
to statements by some members of the administration, Congress did not
have this estimate when it voted on this bill.
It would be disingenuous of me to state that the higher cost estimate
is my biggest concern. I have voted in the past for prescription drug
bills estimated to cost more than $534 billion. And in the conference
negotiations on this bill, I urged my colleagues to make changes until
the final hours of the negotiations that would have added additional
costs to the legislation.
My greatest concern with the higher estimate is one of transparency.
More specifically, I am concerned about the degree to which access to
the CMS career actuaries has been restricted by this administration.
Had Congress been able to freely communicate with the career actuaries
during last year's Medicare negotiations, it would not have been
surprised by the higher estimates. Moreover, I believe that input from
the CMS actuaries could have informed the conferees and perhaps
improved certain aspects of the bill in a positive way. And why
shouldn't Congress have access to all available information on
legislation under consideration?
The restrictions placed on congressional access to the CMS actuary is
in clear violation of the report language that was included in the
Balanced Budget Act of 1997 (BBA 97). The 1997 BBA established the
Office of the Actuary within CMS, which was then called the Health Care
Financing Administration. Report language accompanying the legislation
stated, ``The independence of the Office of the Actuary with respect to
providing assistance to the Congress is vital. The process of
monitoring, updating, and reforming the Medicare and Medicaid programs
is greatly enhanced by the free flow of actuarial information from the
Office of the Actuary to the committees of jurisdiction in the
Congress.''
While Congress intended that the Office of the Actuary would provide
it with cost and other data as requested, a free flow of information
has not occurred--particularly over the past year. I requested, as well
as several of my colleagues, information from the Office of Actuary
throughout last year's Medicare deliberations; however, our requests
were unfulfilled. I do not fault the professionals in the Office of the
Actuary. Rather, I believe the lack of response was the result of
inappropriate restrictions placed on the office by administration
political officials.
In order for Congress to craft good legislation, we need access to
the most up-to-date actuarial and cost information. CBO will always
remain Congress's official score-keeper. But a second independent
assessment is critical, particularly if the two estimates differ, as
was the case of the recent Medicare legislation. Congress needs to
understand the reasons for the differences, and only then can it make
fully-informed decisions. And again, I ask, why shouldn't Congress have
access to all available information on legislation under consideration?
The legislation that I introduce today is very simple. It codifies
the 1997 BBA report language to require that Congress have direct and
open access to information and estimates produced by the independent
CMS career actuaries. The bill's purpose is to improve Congress's
ability to write good legislation and to make well-informed decisions.
I want to be clear. The administration's higher cost-estimate does
not change my support of this Medicare legislation. I continue to be a
proud supporter of the bill.
But I have also pledged to work to improve its flaws and to address
its shortcomings. Any efforts to improve this bill will require
vigilant oversight of its implementation and will require having access
to the latest information about the program's participation, payment,
and costs. The CMS career actuaries will play a fundamental role in the
data collection. The administration's past practices of restricting and
censoring this information cannot continue.
This bill is about improving transparency in government and decision
making. I urge all of my colleagues to support this legislation.
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. 2076

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 ``Congressional Access to the
CMS Chief Actuary Act of 2004''.

SEC. 2. DIRECT CONGRESSIONAL ACCESS TO THE OFFICE OF THE
CHIEF ACTUARY IN THE CENTERS FOR MEDICARE &
MEDICAID SERVICES.

(a) Findings.--Congress finds the following:
(1) In creating the Office of the Actuary in the Health
Care Financing Administration (now known as the Centers for
Medicare & Medicaid Services) with the enactment of the
Balanced Budget Act of 1997, Congress intended that the
Office would provide independent advice and analysis to
assist in the development of health care legislation.
(2) While the Congressional Budget Office would continue to
serve as the official source for cost estimates for Congress,
Congress created the Office of the Actuary in order to have--
(A) an additional, independent source for estimates in the
development of health care legislation; and
(B) access to more detailed actuarial data and assumptions
related to program participation, payments, and costs.
(3) While the joint explanatory statement of the committee
of conference contained in the conference report for the
Balance Budget Act of 1997 provided a clear statement of the
Congressional intent described in paragraphs (1) and (2),
Congressional access to the Office of the Actuary has been
inappropriately restricted over the past year.
(b) Access.--Section 1117(b) of the Social Security Act (42
U.S.C. 1317(b)), as amended by section 900(c) of the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003
(Public Law 108-173), is amended by adding at the end the
following new paragraph:
``(4)(A) In exercising the duties of the office of the
Chief Actuary, the Chief Actuary shall provide the committees
of jurisdiction of Congress with independent counsel and
technical assistance with respect to the programs under
titles XVIII, XIX, and XXI.
``(B) The Chief Actuary may directly provide Congress with
reports, comments on, and estimates of, the financial effects
of potential legislation, and other actuarial information
related to the programs described in subparagraph (A). No
officer or agency of the United States may require the Chief
Actuary to submit to any officer or agency of the United
States for approval, comments, or review, prior to the
provision to Congress of such reports, comments, estimates,
or other information.''.
______

By Ms. MIKULSKI (for herself, Mr. Sarbanes, Mr. Hatch, and Mr.
Biden):
S. 2081. A bill to amend the Office of National Drug Control Policy
Act Reauthorization Act of 1998 to ensure that adequate funding is
provided for certain high intensity drug trafficking areas; to the
Committee on the Judiciary.
Ms. MIKULSKI. Mr. President, today I rise to introduce legislation
which will help America's families who are fighting to drive drugs and
violence out of their communities.

[[Page S1293]]

The Dawson Family Community Protection Act of 2004 asks the Federal
Government to do its fair share by devoting some of its drug fighting
resources to communities with high intensity drug trafficking and
severe safety concerns. That means dedicating much needed resources to
help communities fight the infiltration of drugs and the drug dealers
that plague their communities and threaten the safety of their
children.
This bill is named in memory of a heroic Baltimore family--the
Dawsons--whose active role in trying to rid their neighborhood of drugs
and violence cost them their lives. Carnell and Angela Dawson lived in
the community of Oliver in East Baltimore and raised five children
there.
Every day Angela, known as ``Angel,'' walked her children to school,
she made sure that they only rode their bikes on the sidewalk so they
would be safe. Her husband, Carnell, worked hard as a construction
worker to provide for his family. Both parents were devoted to their
children and wanted to make a better life for them.
The house they lived in on the corner of N. Eden Street made Angel
nervous. It had too many windows and she was scared that a stray bullet
would come in and harm one of her children. The street also worried
Angel. There were lots of young teens dealing drugs. She wanted the
drugs out of her neighborhood, away from her children and away from all
the neighbors' children. She fought every day to make that happen,
calling the police when she saw dealers, or violence on her block. She
was persistent and the neighbors knew it. They called her a great
mother--``someone who stood up for what she believed in.'' Sadly, that
persistence and those beliefs cost her and her family their lives.
Angel had repeatedly called the police in September of 2002 to report
drug activity. Then on October 3--someone threw two Molotov cocktails
through the kitchen window of their house--causing a fire but no
injuries. They were sending a message. Two weeks later that message was
unmistakable as someone broke through their front door and poured
gasoline throughout the first floor of their house and lit a match.
Within minutes the house was in flames and it was impossible to escape.
Although fire fighters arrived almost immediately--they could not save
the family. Angel and five of her children had perished and her husband
Carnell had jumped from the second story with burns all over his body--
he survived only a week in the hospital.
Many in the neighborhood thought it was the final message.
The Dawsons are the kind of neighbors we all would want. They cared
about the community and wanted to make it better and safer. They
represent brave families all over America who are trying to take back
their neighborhoods, who have worked with law enforcement and their
neighbors to make their communities safer.
Too many of these families have had to face threats and retaliation
and sadly even murder in their attempt to help their loved ones and
neighbors. They work hard, send their kids to school to get an
education and play by the rules--yet they live in communities that are
unsafe because they are infested with drugs and drug dealers.
We need to get assistance to these communities, as they are working
hard to make life better, they need the resources of law enforcement
and government to make that a reality. We have to help communities that
are trying to help themselves, communities that are trying get rid of
drugs, rehabilitate and educate drug dealers and most importantly end
violence and protect their neighborhood children.
That is why today, I join with my colleagues, Senator Sarbanes, Hatch
and Biden in introducing this legislation that provides $5 million to
high intensity drug traffic areas with severe safety and illegal drug
distribution problems--to support communities that are affected by drug
trafficking and to encourage their cooperation with local, State and
Federal law enforcement officials.
These funds also help to protect families that cooperate, families
that report crimes and drugs and families that seek to make a
difference in their communities. These resources help law enforcement
provide witness protection and address safety issues in these
communities. The funding only goes to neighborhoods--like the East
Baltimore neighborhood that the Dawson's lived in--with severe
neighborhood safety and illegal drug distribution problems.
For these communities it's time for the Federal Government to step up
and do more, especially when average citizens put their lives on the
line every day trying to stop the violence and crime that comes when
the illegal drug trade invades their neighborhoods.
This bill will give citizens and law enforcement the tools they need
to make sure the community is safe and those doing the reporting are
protected. In honor of the Dawson family, I ask my colleagues to
support this important legislation.
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. 2081

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 ``Dawson Family Community
Protection Act''.

SEC. 2. FINDINGS.

Congress finds the following:
(1) In the early morning hours of October 16, 2002, the
home of Carnell and Angela Dawson was firebombed in apparent
retaliation for Mrs. Dawson's notification of police about
persistent drug distribution activity in their East Baltimore
City neighborhood.
(2) The arson claimed the lives of Mr. and Mrs. Dawson and
their 5 young children, aged 9 to 14.
(3) The horrific murder of the Dawson family is a stark
example of domestic narco-terrorism.
(4) In all phases of counter-narcotics law enforcement--
from prevention to investigation to prosecution to reentry--
the voluntary cooperation of ordinary citizens is a critical
component.
(5) Voluntary cooperation is difficult for law enforcement
officials to obtain when citizens feel that cooperation
carries the risk of violent retaliation by illegal drug
trafficking organizations and their affiliates.
(6) Public confidence that law enforcement is doing all it
can to make communities safe is a prerequisite for voluntary
cooperation among people who may be subject to intimidation
or reprisal (or both).
(7) Witness protection programs are insufficient on their
own to provide security because many individuals and families
who strive every day to make distressed neighborhoods livable
for their children, other relatives, and neighbors will
resist or refuse offers of relocation by local, State, and
Federal prosecutorial agencies and because, moreover, the
continued presence of strong individuals and families is
critical to preserving and strengthening the social fabric in
such communities.
(8) Where (as in certain sections of Baltimore City)
interstate trafficking of illegal drugs has severe ancillary
local consequences within areas designated as High Intensity
Drug Trafficking Areas, it is important that supplementary
HIDTA Program funds be committed to support initiatives aimed
at making the affected communities safe for the residents of
those communities and encouraging their cooperation with
local, State, and Federal law enforcement efforts to combat
illegal drug trafficking.

SEC. 3. FUNDING FOR CERTAIN HIGH INTENSITY DRUG TRAFFICKING
AREAS.

(a) In General.--Section 707(d) of the Office of National
Drug Control Policy Act Reauthorization Act of 1998 (21
U.S.C. 1706(d); Public Law 105-277; 112 Stat. 2681-670) is
amended to read as follows:
``(d) Authorization and Use of Funds.--
``(1) Authorization.--There are authorized to be
appropriated $5,000,000 to be used in high intensity drug
trafficking areas with severe neighborhood safety and illegal
drug distribution problems to--
``(A) ensure the safety of neighborhoods and the protection
of communities, including the prevention of the intimidation
of potential witnesses of illegal drug distribution and
related activities; and
``(B) combat illegal drug trafficking through such methods
as the Director considers appropriate, such as establishing
or operating (or both) a toll-free telephone hotline for use
by the public to provide information about illegal drug-
related activities.
``(2) Use of funds.--The Director shall ensure that no
Federal funds appropriated for the High Intensity Drug
Trafficking Program are expended for the establishment or
expansion of drug treatment programs.''.
______

By Mrs. BOXER:
S. 2083. A bill to amend the Public Health Service Act and the
Employee Retirement Income Security Act of 1974 to protect consumers in
managed care plans and other health coverage; to the Committee on
Health, Education, Labor, and Pensions.

[[Page S1294]]

Mrs. BOXER. Mr. President, according to a Kaiser Family Foundation
and Harvard School of Public Health survey of non-elderly Americans
with private health insurance, one-half reported that they had a
problem with their health insurance plans in the previous year. They
cited delays and denials of coverage or care as their two most common
problems. They also said they worried that if they became sick, their
health plans would be more concerned about saving money than providing
the best treatment. For those in managed care plans, such as HMOs, over
two-thirds had this concern.
And they have good reason to be concerned. Let me tell you about two
of the many people, who were hurt when HMO decided it needed to save
money. Ruby Calad had a hysterectomy and her doctor recommended that
she stay in the hospital longer than a day. Cigna, Ruby's insurance
company said one day was enough. So Ruby went home, but she was soon in
the emergency room because she had developed serious complications. Had
Ruby been able to stay in the hospital longer, as recommended by her
doctor, this would not have happened.
Juan Davila suffers from diabetes and arthritis. His doctor
prescribed VIOXX for his arthritis because it had a lower rate of
bleeding and ulcers than drugs on the formulary developed by Aetna. But
instead of approving the VIOXX, Juan was required to enter a step
program and try two other medications before VIOXX could be approved.
He was given naprosyn--a cheaper drug--and three weeks later was rushed
to the hospital. He had developed bleeding ulcers, which caused a heart
attack and internal bleeding. Juan survived but now cannot take any
pain medication that is absorbed by the stomach.
These examples show why medical decisions should be made by doctors,
not HMO bureaucrats, and in 2001, the Senate, in a bipartisan vote of
59-36, passed S. 1052, the Bipartisan Patient Protection Act to make
sure that happened. Yet, intransigence from the House leadership and
the White House prevented that bill from becoming law. Nearly 3 years
later, we still have not acted. So, today, I am introducing the exact
same bipartisan bill that passed in the Senate in 2001.
This bill provides comprehensive protections to all Americans in all
health plans. It says to all Americans who have health insurance, you
have rights and protections. It says to HMOs, you have responsibilities
and will be held accountable for your wrongful and harmful actions.
This bill ensures that patients have the right to have medical
decisions made by their doctors and not HMO bureaucrats. Patients will
have the right to see a specialist and go to the closest emergency room
for treatment. They will be able to keep the same doctor throughout
their medical treatment and appeal adverse claim decisions to an
independent reviewer. And if they are injured by a decision made by the
HMO, they will have the right to hold their HMO accountable in a court.
A meaningful patients bill of rights is long overdue. I urge my
colleagues to support this legislation.
______

By Mr. ALEXANDER (for himself, Mr. Carper, Mr. Dorgan, Mrs.
Feinstein, Mr. Graham of Florida, Mr. Hollings, Mrs. Hutchison,
Mr. Inouye, Mr. Lautenberg, Mr. Rockefeller, and Mr.
Voinovich):
S. 2084. A bill to revive and extend the Internet Tax Freedom Act for
2 years, and for other purposes; to the Committee on Commerce, Science,
and Transportation.
Mr. ALEXANDER. Mr. President, 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. 2084

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 ``Internet Tax Ban Extension
and Improvement Act''.

SEC. 2. 2-YEAR EXTENSION OF MORATORIUM.

Section 1101(a) of the Internet Tax Freedom Act (47 U.S.C.
151 nt) is amended--
(1) by striking ``2003--'' and inserting ``2005:'';
(2) by striking paragraph (1) and inserting the following:
``(1) Taxes on Internet access.''; and
(3) by striking ``multiple'' in paragraph (2) and inserting
``Multiple''.

SEC. 3. EXCEPTIONS FOR CERTAIN TAXES.

The Internet Tax Freedom Act (47 U.S.C. 151 note) is
amended--
(1) by redesignating section 1104 as section 1105; and
(2) by inserting after section 1103 the following:

``SEC. 1104. EXCEPTIONS FOR CERTAIN TAXES.

``(a) Pre-October, 1998, Taxes.--Section 1101(a) does not
apply to a tax on Internet access (as that term was defined
in section 1104(5) of this Act as that section was in effect
on the day before the date of enactment of the Internet Tag
Ban Extension and Improvement Act) that was generally imposed
and actually enforced prior to October 1, 1998, if, before
that date, the tax was authorized by statute and either--
``(1) a provider of Internet access services had a
reasonable opportunity to know by virtue of a rule or other
public proclamation made by the appropriate administrative
agency of the State or political subdivision thereof, that
such agency has interpreted and applied such tag to Internet
access services; or
``(2) a State or political subdivision thereof generally
collected such tag on charges for Internet access.
``(b) Taxes on Telecommunications Services.--Section 1101
(a) does not apply to a tag on Internet access that was
generally imposed and actually enforced as of November 1,
2003, if, as of that date, the tag was authorized by statute
and either--
``(1) a provider of Internet access services had a
reasonable opportunity to know by virtue of a rule or other
public proclamation made by the appropriate administrative
agency of the State or political subdivision thereof, that
such agency has interpreted and applied such tax to Internet
access services; or
``(2) a State or political subdivision thereof generally
collected such tax on charges for Internet access service.''.

SEC. 4. CHANGE IN DEFINITIONS OF INTERNET ACCESS SERVICE.

(a) In General.--Paragraph (3)(D) of section 1101(e) of the
Internet Tax Freedom Act (47 U.S.C. 151 note) is amended by
striking the second sentence and inserting ``The term
`Internet access service' does not include telecommunications
services, except to the extent such services are purchased,
used, or sold by an Internet access provider to connect a
purchaser of Internet access to the Internet access
provider.''.
(b) Conforming Amendments.--
(1) Paragraph (2)(B)(i) of section 1105 of that Act, as
redesignated by subsection (a), is amended by striking
``except with respect to a tax (on Internet access) that was
generally imposed and actually enforced prior to October 1,
1998,''.
(2) Internet access.--Paragraph (5) of section 1105 of that
Act, as redesignated by subsection (a), is amended by
striking the second sentence and inserting ``The term
`Internet access' does not include telecommunications
services, except to the extent such services are purchased,
used, or sold by an Internet access provider to connect a
purchaser of Internet access to the Internet access
provider.''.
(3) Paragraph (10) of section 1105 of that Act, as
redesignated by subsection (a), is amended to read as
follows:
``(10) Tax on internet access.--
``(A) In general.--The term `tax on Internet access' means
a tax on Internet access, regardless of whether such tax is
imposed on a provider of Internet access or a buyer of
Internet access and regardless of the terminology used to
describe the tax.
``(B) General exception.--The term `tax on Internet access'
does not include a tax levied upon or measured by net income,
capital stock, net worth, or property value.''.

SEC. 5. ACCOUNTING RULE.

The Internet Tax Freedom Act (47 U.S.C. 151 note) is
amended by adding at the end the following:

``SEC. 1106. ACCOUNTING RULE.

``(a) In General.--If charges for Internet access are
aggregated with and not separately stated from charges for
telecommunications services or other charges that are subject
to taxation, then the charges for Internet access may be
subject to taxation unless the Internet access provider can
reasonably identify the charges for Internet access from its
books and records kept in the regular course of business.
``(b) Definitions.--In this section:
``(1) Charges for internet access.--The term `charges for
Internet access' means all charges for Internet access as
defined in section 1105(5).
``(2) Charges for telecommunications services.--The term
`charges for telecommunications services' means all charges
for telecommunications services except to the extent such
services are purchased, used, or sold by an Internet access
provider to connect a purchaser of Internet access to the
Internet access provider.''.

SEC. 6. EFFECT ON OTHER LAWS.

The Internet Tax Freedom Act (47 U.S.C. 151 note), as
amended by section 4, is amended by adding at the end the
following:

``SEC. 1107. EFFECT ON OTHER LAWS.

``(a) Universal Service.--Nothing in this Act shall prevent
the imposition or collection of any fees or charges used to
preserve and advance Federal universal service or similar
State programs--

[[Page S1295]]

``(1) authorized by section 254 of the Communications Act
of 1934 (47 U.S.C. 254); or
``(2) in effect on February 8, 1996.
``(b) 911 and E-911 Services.--Nothing in this Act shall
prevent the imposition or collection, on a service used for
access to 911 or E-911 services, of any fee or charge
specifically designated or presented as dedicated by a State
or political subdivision thereof for the support of 911 or E-
911 services if no portion of the revenue derived from such
fee or charge is obligated or expended for any purpose other
than support of 911 or E-911 services.
``(c) Non-Tax Regulatory Proceedings.--Nothing in this Act
shall be construed to affect any Federal or State regulatory
proceeding that is not related to taxation.''.

SEC. 7. EFFECTIVE DATE.

The amendments made by this Act take effect November 1,
2003.

Mr. ROCKEFELLER. Mr. President, I am pleased to cosponsor legislation
introduced today that will reinstate a moratorium on State and local
taxation of access to the Internet. Senators Alexander and Carper have
worked very hard to craft legislation that will protect Americans from
being taxed for using the Internet, while still respecting the States'
need to raise revenue from traditional telecommunications taxes. As a
fellow former Governor, I have been pleased to join them in this effort
and hope that all of my colleagues who have supported a moratorium on
taxation of Internet access will support this bill.
Until last fall, there was a moratorium in place prohibiting taxation
of Internet access. Unfortunately, that lapsed before Congress was able
to craft an extension. One of the reasons that extending the moratorium
has been difficult is that we want to apply the lessons learned over
the last few years. For example, the previous moratorium was not
technology-neutral. That is, people who accessed the Internet using a
DSL connection were not always treated the same as those who used dial-
up service or a cable modem. This was clearly an unintended consequence
of the way that the previous legislation was drafted. In addition, over
the last few years, we have seen many States struggle with enormous
budget deficits. Recognizing that a downturn in the economy can
compromise a state's ability to provide vital services, including
schools, firefighters, and police officers, we do not want to undermine
any state's revenue base.
With these lessons in mind, Senators Alexander, Carper and others
have crafted an extension of the previous moratorium that would ensure
that no States impose new taxes on Internet access. The legislation
specifically requires that all technologies be treated equally. And
because the moratorium is limited to 2 years, it ensures that Congress
will revisit the issue periodically as technologies develop and
circumstances change.
As a former Governor, I do not take lightly any Federal action that
limits the options available to local and State elected officials I
recognize how hard it is to balance a State budget and am only willing
to support a moratorium on Internet access taxes because I believe that
we are dealing with a unique new service. The Internet has the power to
connect Americans as the radio, telephone, and television did for
previous generations. By sending e-mails, telecommuting, or banking
online, Americans are communicating in a new way that makes our economy
more productive and enhances our quality of life. If sparing Internet
access from taxation increasing the ability of low and moderate income
Americans to join the technology revolution, then it is certainly a
worthy public policy goal.
Now, Senators Allen and Wyden have offered an alternative approach.
They have proposed legislation that would permanently bar States ad
cities from taxing Internet access, and they have defined the service
broadly that many experts believe it will undermine some
telecommunications taxes on which States currently depend. I am not
interested in providing enormous tax breaks to the telecommunications
industry, and so I oppose their approach. Taxes that businesses
currently pay to access the Internet backbone are reasonable costs of
doing business. I hope that my colleagues will not be intimidated by
claims that those of us who oppose tax breaks for telecommuncations
companies actually want to tax people's e-mails. That is a false
argument, and anyone who resorts to it is surely trying to avoid the
difficult issues that are addressed by the bill introduced today by
Senators Alexander and Carper.
I would like to make one final point to my colleagues, and that is
about fallibility. Every day we get fresh evidence that things are not
always as they seemed and that we do not, in fact, know everything we
thought we knew. If fallibility is part of being human, then surely it
is part of any legislative body. If the moratorium that Congress had
imposed 5 years ago had been permanent, then we would have had a
difficult time reopening the issue to address the fact that certain
technologies were not protected under the act. We ought not make that
mistake now by thinking that we can accurately foresee the exciting
technological developments on the horizon. It is appropriate for
Congress to revisit this issue in two years, as the Alexander-Carper
proposal allows.
I hope that all of my colleagues will join me in support of a new
temporary moratorium on Internet access taxes. Enacting this
legislation quickly will ensure that Americans are not hit with any
taxes when they try to log on.
______

By Mr. REID (for himself and Mr. Ensign):
S. 2085. A bill to modify the requirements of the land conveyance to
the University of Nevada at Las Vegas Research Foundation; to the
Committee on Energy and Natural Resources.
Mr. REID. Mr. President, I rise today for myself and Senator Ensign
to introduce the University of Nevada at Las Vegas Research Foundation
Reinvestment Act, which enhances the long-term viability of the
University of Nevada at Las Vegas by allowing proceeds from leases of
the University of Nevada at Las Vegas Research Foundation property to
be reinvested.
Mr. President, through provisions of the Southern Nevada Public Land
Management Act of 1998, the Clark County Department of Aviation
acquired land that was formerly owned by the Federal Government. A
subsequent law, the Clark County Conservation of Public Land and
Natural Resources Act of 2002, transferred this land to the University
of Las Vegas Research Foundation for construction of a research park
and technology center.
Under current law, only 10 percent of the proceeds from the sale,
lease, or conveyance of this land may be reinvested. This restriction
hinders efforts to promote research and development at the research
park.
Mr. President, the bill that I am introducing today amends the Clark
County Conservation of Public Land and Natural Resources Act of 2002 to
allow the proceeds of the Foundation's research park leases to be used
to carry out the foundation's research mission.
The foundation's research park and technology center in the greater
Las Vegas area will enhance the research mission of the university,
increasing the potential for the high-tech industry and
entrepreneurship in the State. It provides the public with
opportunities for high-tech education and research, and at the same
time provides the State with opportunities for competition and economic
development in the high-tech field. It is imperative that sufficient
funds are always available to maintain and enhance the center.
Mr. President, I ask unanimous consent that the full 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. 2085

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 ``University of Nevada at Las
Vegas Research Foundation Reinvestment Act''.

SEC. 2. CONVEYANCE TO THE UNIVERSITY OF NEVADA AT LAS VEGAS
RESEARCH FOUNDATION.

Section 702(b)(2) of Public Law 107-282 (116 Stat. 2013) is
amended by striking ``that if the land'' and all that follows
through ``conveyed by the Foundation.'' and inserting the
following: ``that provides that (except in a case in which
the gross proceeds of a sale, lease, or conveyance are
provided to the Foundation to carry out the purposes for
which the Foundation was established), if the land described
in paragraph (3) is sold, leased, or otherwise conveyed by
the Foundation--''.
______

By Mr. GRAHAM of Florida:

[[Page S1296]]

S. 2087. A bill to amend the Internal Revenue Code of 1986 to expand
the Hope Scholarship and Lifetime Learning Credits; to the Committee on
Finance.
Mr. GRAHAM of Florida. Mr. President, today, I am introducing
legislation that increases the Federal commitment to help families meet
the increasing costs of higher education.
In today's economy--as well as with life in general--getting a higher
education is essential. A college educated male worker can expect to
earn $29,000 more each year than his counterpart without such
education. Over a working career, this edge results in more than $1
million. For women, the importance is even more pronounced. A college-
educated woman can expect to earn twice what her counterpart with only
a high school diploma will earn (Condition of Education 2000, U.S.
Department of Education). Perhaps Federal Reserve Chairman Greenspan
put it best when he said ``we must ensure that our whole population
receives an education that will allow full and continuing participation
in this dynamic period of American economic history.''
Having college-educated parents also forms the foundation for better
lives for their children. Census data reveals that children of college-
educated parents are twice as likely to go to college, as are those
with parents who did not go to college. Research also suggest that
children of college-educated parents are healthier and perform better
academically than children of those with only a high school diploma.
Recognizing the importance of an advanced degree is only part of the
battle. Attendance at a college or university is an expensive
proposition for most American families. Worse yet, it is getting even
more expensive. According to the Congressional Research Service,
increases in tuition over the last twenty years on a constant dollar
basis have outpaced growth in the average household's income. The
difficulty of paying for college is particularly acute for lower-income
families. In 1980, college costs consumed 32 percent of the average
household income for a family in the lowest income quintile. By 2000,
the percentage of that family's income needed to pay for college
increased to 56 percent.
In the 2001-2002 school year, about $90 billion was awarded in
student aid. The Federal Government provided seventy percent of this
aid through appropriations, guaranteed loans, and tax credits. Although
this $90 billion represents a substantial increase in the amount of aid
provided by the Federal Government from just ten years ago, the Federal
Government can and should do more.
A recent report by the Congressional Budget Office examined the cost
of attending colleges and universities and how those costs are borne.
CBO estimates that the average annual cost of attendance at public
four-year colleges in the 1999-2000 academic year was nearly $11,300
after taking into consideration that portion of the costs that are
covered by the institutions themselves or as a subsidy from State
legislatures. Parents and students on average are responsible for
nearly three-quarters of this amount, which is a significant financial
hurdle, particularly for low-income families.
Under current law the maximum credit available under the HOPE
Scholarship tax credit program is $1,500 assuming the student has at
least $2,000 of tuition costs. The bill I am introducing increases the
credit percentage to 100 percent of tuition costs and increases the
maximum credit available to $2,500.
Second, the bill extends the HOPE Scholarship credit to cover four
years of higher education. It recognizes that our economy increasingly
demands that tomorrow's worker has a college degree, and to get such a
degree requires at least four years. We shouldn't have a program
designed to assist students in obtaining those degrees that abandons
them mid-stream.
Third, the legislation makes the HOPE credit refundable.
Refundability is the only way to provide financial assistance through
the tax code to families with low incomes. And that assistance is
sorely needed. According to CBO the HOPE tax credit amounts to $147 of
assistance, on average, for families with income less than $30,000.
Finally, the bill creates a mechanism by which families can get the
benefits of the credit sooner than it is currently available. Today,
families must pay the tuition costs and then file for the credit in
April of the following year when they file their income tax returns.
The bill directs Treasury to create a program that would allow it to
transfer the value of the credit directly to an educational institution
on behalf of the taxpayer. A similar mechanism is currently available
to those eligible for the tax credit for health insurance costs.
The bill I am introducing today focuses on those students who follow
a more traditional path to higher education. I will be introducing
separate legislation in the near future that makes changes to the
Lifetime Learning credit designed to make it more useful for
``nontraditional'' students.
______

By Mr. KENNEDY (for himself, Mr. Daschle, Mr. Reid, Mr. Leahy,
Mr. Dodd, Mr. Harkin, Mr. Kerry, Mr. Feingold, Ms. Mikulski,
Mr. Schumer, Mrs. Murray, Mr. Durbin, Mr. Edwards, Mrs.
Clinton, Mr. Sarbanes, Mr. Lautenberg, Mr. Corzine, Ms.
Landrieu, and Ms. Cantwell):
S. 2088. A bill to restore, reaffirm, and reconcile legal rights and
remedies under civil rights statutes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues,
Senators Daschle, Reid, Leahy, Dodd, Harkin, Kerry, Feingold, Mikulski,
Schumer, Murray, Durbin, Edwards, Clinton, Sarbanes, Lautenberg,
Corzine, Landrieu, and Cantwell today in introducing the ``Fairness and
Individual Rights Necessary to Ensure a Stronger Society: the Civil
Rights Act of 2004''. This legislation, the ``Fairness Act,'' is vital
to realizing the full promise of, the numerous Federal laws that have
been enacted to guarantee civil rights and fair labor practices for all
our citizens.
2004 is an especially significant year in commemorating the historic
landmarks in America's struggle for civil rights. On January 15, we
celebrated the 75th anniversary of the birth of Dr. Martin Luther King.
On May 17, we will celebrate the 50th anniversary of the Supreme
Court's historic decision in Brown v. Board of Education. And on July
2, we will celebrate the 40th Anniversary of the Civil Rights Act of
1964.
These historic milestones make this year not only a time for
celebration, but also a time to reaffirm our commitment to the cause of
civil rights, which is still the unfinished business of America. We
must continue moving toward the goal for which so many have given so
much across the years. The bipartisan civil rights laws that have been
enacted over the past forty years have made our Nation stronger,
better, and fairer. Civil rights is at its heart the ongoing, daily
struggle to live up to what is best about America--our fundamental
belief in equal opportunity and equal justice for all.
The Fairness Act is part of that continuing effort. Its goal is to
guarantee that victims of discrimination and unfair labor practices
have access to the courts when necessary to enforce their rights and to
obtain effective remedies. As Congress has long realized, full
enforcement of civil rights and fair labor practices is possible only
if individuals are able to petition the courts. Our proposals will
strengthen existing protections, often in cases where the courts have
let us down by adopting unacceptably narrow interpretations of existing
law. We recognize as well that Congress has not always made its intent
clear in enacting specific and detailed provisions of these laws.
Unfortunately, recent court decisions have limited the private right
to seek relief and to obtain effective remedies under many of our civil
rights and labor laws. Cases like Alexander v. Sandoval and Kimel v.
Florida Board of Regents have effectively closed the courthouse door on
many persons seeking relief they deserve from discriminatory practices.
Key elements of our proposals will make it easier for working women
to enforce their right to equal pay for equal work. We enhance
protections against discrimination in federally funded services and
enact needed safeguards for students who are harassed because of their
national origin, gender, race, or disability. We also make

[[Page S1297]]

sure that victims of discrimination and unfair labor practices can
receive meaningful damages where appropriate. Our legislation will
allow enable members of our armed forces to enforce their federal right
to be free from discrimination by States because of their military
status.
In addition, our proposals will ensure that older workers who suffer
age discrimination are not denied the chance to seek relief merely
because they work for a state government. We also stop employers from
requiring workers to sign away their right to bring discrimination
claims and fair labor claims to court, in order to get a job or keep a
job.
These and other important proposals included in the Fairness Act are
an essential part of our commitment to make Dr. King's dream a reality
for everyone in every community in our country.
To those who say that now is not the time to seek this new progress,
we reply, as Dr. King himself replied, now is always the time for civil
rights. We know our cause is just. As Dr. King reminded us, ``the arc
of the moral universe is long, but it bends toward justice.'' I urge
all of my colleagues to support this important legislation.
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. 2088

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 ``Fairness and Individual
Rights Necessary to Ensure a Stronger Society: Civil Rights
Act of 2004''.

SEC. 2. TABLE OF CONTENTS.

The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.

TITLE I--NONDISCRIMINATION IN FEDERALLY FUNDED PROGRAMS AND ACTIVITIES

Subtitle A--Private Rights of Action and the Disparate Impact Standard
of Proof

Sec. 101. Findings.
Sec. 102. Prohibited discrimination.
Sec. 103. Rights of action.
Sec. 104. Right of recovery.
Sec. 105. Construction.
Sec. 106. Effective date.

Subtitle B--Harassment

Sec. 111. Findings.
Sec. 112. Right of recovery.
Sec. 113. Construction.
Sec. 114. Effective date.

TITLE II--UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF
1994 AMENDMENT

Sec. 201. Amendment to the Uniformed Services Employment and
Reemployment Rights Act of 1994.

TITLE III--AIR CARRIER ACCESS ACT OF 1986 AMENDMENT

Sec. 301. Findings.
Sec. 302. Civil action.

TITLE IV--AGE DISCRIMINATION IN EMPLOYMENT ACT AMENDMENTS

Sec. 401. Short title.
Sec. 402. Findings.
Sec. 403. Purposes.
Sec. 404. Remedies for State employees.
Sec. 405. Disparate impact claims.
Sec. 406. Effective date.

TITLE V--CIVIL RIGHTS REMEDIES AND RELIEF

Subtitle A--Prevailing Party

Sec. 501. Short title.
Sec. 502. Definition of prevailing party.

Subtitle B--Arbitration

Sec. 511. Short title.
Sec. 512. Amendment to Federal Arbitration Act.
Sec. 513. Unenforceability of arbitration clauses in employment
contracts.
Sec. 514. Application of amendments.

Subtitle C--Expert Witness Fees

Sec. 521. Purpose.
Sec. 522. Findings.
Sec. 523. Effective provisions.

Subtitle D--Equal Remedies Act of 2004

Sec. 531. Short title.
Sec. 532. Equalization of remedies.

TITLE VI--PROHIBITIONS AGAINST SEX DISCRIMINATION

Sec. 601. Short title.
Sec. 602. Findings.
Sec. 603. Enhanced enforcement of equal pay requirements.
Sec. 604. Training.
Sec. 605. Research, education, and outreach.
Sec. 606. Technical assistance and employer recognition program.
Sec. 607. Establishment of the National Award for Pay Equity in the
Workplace.
Sec. 608. Collection of pay information by the Equal Employment
Opportunity Commission.
Sec. 609. Authorization of appropriations.

TITLE VII--PROTECTIONS FOR WORKERS

Subtitle A--Protection for Undocumented Workers

Sec. 701. Findings.
Sec. 702. Continued application of backpay remedies.

Subtitle B--Fair Labor Standards Act Amendments

Sec. 711. Short title.
Sec. 712. Findings.
Sec. 713. Purposes.
Sec. 714. Remedies for State employees.

TITLE I--NONDISCRIMINATION IN FEDERALLY FUNDED PROGRAMS AND ACTIVITIES

Subtitle A--Private Rights of Action and the Disparate Impact Standard
of Proof

SEC. 101. FINDINGS.

Congress finds the following:
(1) This subtitle 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 and by casting doubt on the validity of the
regulations themselves.
(2) The Sandoval decision attacks 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 activities on the basis of sex in title IX
of the Education Amendments of 1972, age in the Age
Discrimination Act of 1975, and disability in section 504 of
the Rehabilitation Act of 1973.
(3) From the outset, Congress and the executive branch made
clear that the regulatory process would be used to ensure
broad protections for beneficiaries of the law. The first
regulations promulgated by the Department of Justice under
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.) forbade the use of ``criteria or methods of
administration which have the effect of subjecting
individuals to discrimination . . .'' (section 80.3 of title
45, Code of Federal Regulations) and prohibited retaliation
against persons participating in litigation or administrative
resolution of charges of discrimination brought under the
Act. These regulations were drafted by the same executive
branch officials who played a central role in drafting title
VI of the Civil Rights Act of 1964. The language used is, in
relevant respects, virtually indistinguishable from
regulations under the several Acts in effect today. For
example, section 304 of the Age Discrimination Act of 1975
(42 U.S.C. 6103) required the Secretary of the Department of
Health, Education, and Welfare (HEW) (now Health and Human
Services (HHS)) to promulgate ``general regulations'' to
effectuate the purposes of the Act. These ``government-wide
regulations,'' governing age discrimination in programs and
activities receiving Federal financial assistance condemn
``any actions which have [a discriminatory] effect, on the
basis of age . . .'' (section 90.12 of title 45, Code of
Federal Regulations).
(4) None of the regulations under the laws addressed in
this subtitle have ever been invalidated. In 1966, Congress
considered and rejected a proposal to invalidate the
disparate impact regulations promulgated pursuant to title VI
of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.). In
1975, Congress reviewed and maintained the implementing
regulations promulgated pursuant to title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seq.), pursuant to a
statutory procedure designed to afford Congress the
opportunity to invalidate provisions deemed to be
inconsistent with congressional intent. The Supreme Court has
recognized that Congress's failure to disapprove regulations
implies that the regulations accurately reflect congressional
intent. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 533-
34 (1982). Moreover, the Supreme Court explicitly recognized
congressional approval of the regulations promulgated to
implement section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794) in Consolidated Rail Corp. v. Darrone, 465 U.S.
624, 634 (1984), stating that ``[t]he regulations
particularly merit deference in

[[Page S1298]]

the present case: the responsible Congressional committees
participated in their formation and both these committees and
Congress itself endorsed the regulations in their final
form.''.
(5) All of the civil rights provisions cited in this
section were designed to confer a benefit on persons who were
discriminated against. They relied heavily on private
attorneys general for effective enforcement. Congress
acknowledged that it could not secure compliance solely
through enforcement actions initiated by the Attorney
General. Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968) (per curiam).
(6) The Supreme Court has made it clear that individuals
suffering discrimination 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. Cannon v. University of Chicago, 441 U.S. 677
(1979).
(7)(A) Notwithstanding the decision of the Supreme Court in
Cort v. Ash, 422 U.S. 66 (1975) to abandon prior precedent
and require explicit statutory statements of a right of
action, Congress and the Courts both before and after Cort
have recognized an implied right of action under the above
statutes. For example, Congress has consistently provided the
means for enforcing the statutes. In 1972, Congress
established a right to attorney's fees in private actions
brought under title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d et seq.) and title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seq.) that continued
with enactment of the Civil Rights Attorneys' Fees Awards Act
of 1976 (Public Law 94-559; 90 Stat. 2641). In 1973, Congress
provided a right to attorney's fees for prevailing parties
under section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794) without expressly stating that there was a right
of action. In 1978 Congress amended the Age Discrimination
Act of 1975 (42 U.S.C. 6101 et seq.) to include a right to
attorney's fees. Because the Age Discrimination Act of 1975
was enacted while the Cort decision was pending, Congress
also enacted in 1978 a limited private right of action to
enforce the Age Discrimination Act of 1975.
(B) The Senate Report that accompanied the Civil Rights
Attorneys' Fees Awards Act of 1976 (Public Law 94-559; 90
Stat. 2641) stated that ``All of these civil rights laws . .
. depend heavily upon private enforcement, and fee awards
have proved an essential remedy if private citizens are to
have a meaningful opportunity to vindicate the important
congressional policies which these laws contain.'' S. Rep.
No. 94-1011 (1976).
(8) The Supreme Court had no basis in law or in legislative
history in Sandoval for denying a right of action under
regulations promulgated pursuant to title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d et seq.) while permitting
it under the statute. The regulations were congressionally
mandated and their promulgation was specifically directed by
Congress under section 602 of that Act (42 U.S.C. 2000d-1)
``to effectuate'' the antidiscrimination provisions of the
statute. Title VI of the Civil Rights Act of 1964 stressed
the importance of the regulations by requiring them to be
``approved by the President''. Similarly, the regulations
promulgated pursuant to title IX of the Education Amendments
of 1972 (20 U.S.C. 1681 et seq.) were also congressionally
authorized and specifically directed by Congress to
effectuate the provisions of the statute. Title IX of the
Education Amendments of 1972 stressed the importance of the
regulations by requiring them to be ``approved by the
President''.
(9) Regulations that prohibit practices that have the
effect of discrimination are consistent with prohibitions of
disparate treatment that require a showing of intent, as the
Supreme Court has acknowledged in the following decisions:
(A) A disparate impact standard allows a court to reach
discrimination that could actually exist under the guise of
compliance with the law. Griggs v. Duke Power Co., 401 U.S.
424 (1971).
(B) Evidence of a disproportionate burden will often be the
starting point in any analysis of unlawful discrimination.
Village of Arlington Heights v. Metropolitan Hous. Dev.
Corp., 429 U.S. 252 (1977).
(C) An invidious purpose may often be inferred from the
totality of the relevant facts, including, where true, that
the practice bears more heavily on one race than another.
Washington v. Davis, 426 U.S. 229 (1976).
(D) The disparate impact method of proof is critical to
ferreting out stereotypes underlying intentional
discrimination. Watson v. Fort Worth Bank & Trust, 487 U.S.
977 (1988).
(10) The interpretation of title VI of the Civil Rights Act
of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seq.), and other
statutes barring discrimination by covered entities as
prohibiting practices that have disparate impact and that are
not justified as necessary to achieve the goals of the
programs or activities supported by the Federal financial
assistance is powerfully reinforced by the use of such a
standard in enforcing title VII of the Civil Rights Act of
1964 (42 U.S.C. 2000e et seq.). When the Supreme Court
wavered on the application of a disparate impact standard
under title VII, Congress specifically reinstated it as law
in the Civil Rights Act of 1991 (Public Law 102-166; 105
Stat. 1071).
(11) By reinstating a private right of action under title
VI of the Civil Rights Act of 1964 (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.
(12) In contrast, a failure to reinstate or confirm a
private right of action would leave vindication of the rights
to equality of opportunity solely to Federal agencies, which
may fail to take necessary and appropriate action because of
administrative overburden or other reasons. Action by
Congress to specify a private right of action is necessary to
ensure that persons will have a remedy if they are denied
equal access to education, housing, health, environmental
protection, transportation, and many other programs and
services by practices of covered entities that result in
discrimination.
(13) 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 Act. Courts
relying on the Sandoval decision have also dismissed claims
seeking redress for unlawful retaliation against persons who
opposed prohibited acts, brought actions, or participated in
actions, under title VI of the Civil Rights Act of 1964 and
title IX of the Education Amendments of 1972. Because
judicial interpretation of the Age Discrimination Act of 1975
(42 U.S.C. 6101 et seq.) has tracked that of title VI of the
Civil Rights Act of 1964 and title IX of the Education
Amendments of 1972, without clarification of Sandoval,
plaintiffs run the risk that courts may dismiss claims
brought under regulations promulgated pursuant to the Age
Discrimination Act of 1975 challenging actions with an
unjustified discriminatory effect and claims seeking redress
for unlawful retaliation against persons who have brought or
participated in actions under the Age Discrimination Act of
1975.
(14) 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
handicapped 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). Thus it does not appear at this time that
there is a risk that the private right of action to challenge
disparate impact discrimination under section 504 of the
Rehabilitation Act of 1973 will become unavailable.
(15) Since the enactment of title VI of the Civil Rights
Act of 1964, title IX of the Education Amendments of 1972,
the Age Discrimination Act of 1975, and section 504 of the
Rehabilitation Act of 1973, Congress has intended that the
prohibitions on discrimination in those provisions include a
prohibition on retaliation. The ability to prevent
retaliation against persons who oppose any policy or practice
prohibited by those provisions, or make a charge, testify,
assist, or participate in any manner in an investigation,
proceeding, or hearing under those provisions, is essential
to realizing the prohibitions on discrimination in those
provisions.
(16) The right to maintain a private right of action under
a provision added to a statute under this subtitle 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.

SEC. 102. 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''; and
(2) by adding at the end the following:
``(b)(1)(A) Discrimination (including exclusion from
participation and denial of benefits) based on disparate
impact is established under this title only if--
``(i) a person aggrieved by discrimination on the basis of
race, color, or national origin (referred to in this title as
an `aggrieved person') demonstrates that an entity subject to
this title (referred to in this title as a `covered entity')
has a policy or practice that causes a disparate impact on
the basis of race, color, or national origin and the covered
entity fails to demonstrate that the challenged policy or
practice is related to and necessary to achieve the
nondiscriminatory goals of the program or activity alleged to
have been operated in a discriminatory manner; or
``(ii) the aggrieved person demonstrates (consistent with
the demonstration required under title VII with respect to an
`alternative employment practice') that a less discriminatory
alternative policy or practice

[[Page S1299]]

exists, and the covered entity refuses to adopt such
alternative policy or practice.
``(B)(i) With respect to demonstrating that a particular
policy or practice causes a disparate impact as described in
subparagraph (A)(i), the aggrieved person shall demonstrate
that each particular challenged policy or practice causes a
disparate impact, except that if the aggrieved person
demonstrates to the court that the elements of a covered
entity's decisionmaking process are not capable of separation
for analysis, the decisionmaking process may be analyzed as
one policy or practice.
``(ii) If the covered entity demonstrates that a specific
policy or practice does not cause the disparate impact, the
covered entity shall not be required to demonstrate that such
policy or practice is necessary to achieve the goals of its
program or activity.
``(2) A demonstration that a policy or practice is
necessary to achieve the goals of a program or activity may
not be used as a defense against a claim of intentional
discrimination under this title.
``(3) In this subsection, the term `demonstrates' means
meets the burdens of production and persuasion.
``(c) No person in the United States shall be subjected to
discrimination, including retaliation, because such person
opposed any policy or practice prohibited by this title, or
because such person made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under this title.''.
(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 (referred to in this title as an `aggrieved person')
demonstrates that an entity subject to this title (referred
to in this title as a `covered entity') has a policy or
practice that causes a disparate impact on the basis of 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 aggrieved person 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 aggrieved person shall demonstrate
that each particular challenged policy or practice causes a
disparate impact, except that if the aggrieved person
demonstrates to the court that the elements of a covered
entity's decisionmaking process are not capable of separation
for analysis, the decisionmaking process may be analyzed as
one 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) No person in the United States shall be subjected to
discrimination, including retaliation, because such person
opposed any policy or practice prohibited by this title, or
because such person made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under this title.''.
(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 an `aggrieved person')
demonstrates that an entity subject to this title (referred
to in this title as a `covered entity') has a policy or
practice that causes a disparate impact on the basis of 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 aggrieved person 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 aggrieved person shall demonstrate
that each particular challenged policy or practice causes a
disparate impact, except that if the aggrieved person
demonstrates to the court that the elements of a covered
entity's decisionmaking process are not capable of separation
for analysis, the decisionmaking process may be analyzed as
one policy or practice.
``(ii) If the covered entity demonstrates that a specific
policy or practice does not cause the disparate impact, the
covered entity shall not be required to demonstrate that such
policy or practice is necessary to achieve the goals of its
program or activity.
``(2) A demonstration that a policy or practice is
necessary to achieve the goals of a program or activity may
not be used as a defense against a claim of intentional
discrimination under this title.
``(3) In this subsection, the term `demonstrates' means
meets the burdens of production and persuasion.
``(c) No person in the United States shall be subjected to
discrimination, including retaliation, because such person
opposed any policy or practice prohibited by this title, or
because such person made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under this title.''.

SEC. 103. RIGHTS OF ACTION.

(a) Civil Rights Act of 1964.--Section 602 of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-1) is amended--
(1) by inserting ``(a)'' before ``Each Federal department
and agency which is empowered''; and
(2) by adding at the end the following:
``(b) Any person aggrieved by the failure of a covered
entity to comply with this title, including any regulation
promulgated pursuant to this title, may bring a civil action
in any Federal or State court of competent jurisdiction to
enforce such person's rights.''.
(b) Education Amendments of 1972.--Section 902 of the
Education Amendments of 1972 (20 U.S.C. 1682) is amended--
(1) by inserting ``(a)'' before ``Each Federal department
and agency which is empowered''; and
(2) by adding at the end the following:
``(b) Any person aggrieved by the failure of a covered
entity to comply with this title, including any regulation
promulgated pursuant to this title, may bring a civil action
in any Federal or State court of competent jurisdiction to
enforce such person's rights.''.
(c) Age Discrimination Act of 1975.--Section 305(e) of the
Age Discrimination Act of 1975 (42 U.S.C. 6104(e)) is amended
in the first sentence of paragraph (1), by striking ``this
Act'' and inserting ``this title, including a regulation
promulgated to carry out this title,''.

SEC. 104. RIGHT OF RECOVERY.

(a) Civil Rights Act of 1964.--Title VI of the Civil Rights
Act of 1964 (42 U.S.C. 2000-d et seq.) is amended by
inserting after section 602 the following:

``SEC. 602A. ACTIONS BROUGHT BY AGGRIEVED PERSONS.

``(a) Claims Based on Proof of Intentional
Discrimination.--In an action brought by an aggrieved person
under this title against a covered entity who has engaged in
unlawful intentional discrimination (not a practice that is
unlawful because of its disparate impact) prohibited under
this title (including its implementing regulations), the
aggrieved person may recover equitable and legal relief
(including compensatory and punitive damages), attorney's
fees (including expert fees), and costs, except that punitive
damages are not available against a government, government
agency, or political subdivision.
``(b) Claims Based on the Disparate Impact Standard of
Proof.--In an action brought by an aggrieved person under
this title against a covered entity who has engaged in
unlawful discrimination based on disparate impact prohibited
under this title (including its implementing regulations),
the aggrieved person may recover equitable relief, attorney's
fees (including expert fees), and costs.''.
(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 AGGRIEVED PERSONS.

[[Page S1300]]

disparate impact prohibited under this title (including its
implementing regulations), the aggrieved person may recover
equitable relief, attorney's fees (including expert fees),
and costs.''.
(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 an aggrieved person under
this title against a covered entity who has engaged in
unlawful intentional discrimination (not a practice that is
unlawful because of its disparate impact) prohibited under
this title (including its implementing regulations), the
aggrieved person may recover equitable and legal relief
(including compensatory and punitive damages), attorney's
fees (including expert fees), and costs, except that punitive
damages are not available against a government, government
agency, or political subdivision.
``(2) In an action brought by an aggrieved person under
this title against a covered entity who has engaged in
unlawful discrimination based on disparate impact prohibited
under this title (including its implementing regulations),
the aggrieved person may recover equitable relief, attorney's
fees (including expert fees), and costs.''.
(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 an `aggrieved person') 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
aggrieved person may recover equitable and legal relief
(including compensatory and punitive damages), attorney's
fees (including expert fees), and costs, except that punitive
damages are not available against a government, government
agency, or political subdivision.
``(2) In an action brought by an aggrieved person 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 aggrieved person may recover equitable relief, attorney's
fees (including expert fees), and costs.''.

SEC. 105. CONSTRUCTION.

(a) Relief.--Nothing in this subtitle, including any
amendment made by this subtitle, 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 subtitle, including any
amendment made by this subtitle, 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.

SEC. 106. EFFECTIVE DATE.

(a) In General.--This subtitle, and the amendments made by
this subtitle, are retroactive to April 24, 2001, and
effective as of that date.
(b) Application.--This subtitle, and the amendments made by
this subtitle, apply to all actions or proceedings pending on
or after April 24, 2001, except as to an action against a
State on a claim brought under the disparate impact standard,
as to which the effective date is the date of enactment of
this Act.

Subtitle B--Harassment

SEC. 111. FINDINGS.

Congress finds the following:
(1) As the Supreme Court has held, covered entities are
liable for harassment on the basis of sex under their
education programs and activities under title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.)
(referred to in this subtitle as ``title IX''). Franklin v.
Gwinnett County Public Schools, 503 U.S. 60, 75 (1992)
(damages remedy available for harassment of student by a
teacher coach); Davis v. Monroe County Board of Education,
526 U.S. 629, 633 (1999) (authorizing damages action against
school board for student-on-student sexual harassment).
(2) Courts have confirmed that covered entities are liable
for harassment on the basis of race, color, or national
origin under title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d et seq.) (referred to in this subtitle as
``title VI''), e.g., Bryant v. Independent School District
No. I-38, 334 F.3d 928 (10th Cir. 2003) (liability for
student-on-student racial harassment). Moreover, judicial
interpretation of the similarly worded 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) has tracked that
of title VI and title IX.
(3) As these courts have properly recognized, harassment on
a prohibited basis under a program or activity, whether
perpetrated by employees or agents of the program or
activity, by peers of the victim, or by others who conduct
harassment under the program or activity, is a form of
unlawful and intentional discrimination that inflicts
substantial harm on beneficiaries of the program or activity
and violates the obligation of a covered entity to maintain a
nondiscriminatory environment.
(4) In a 5 to 4 ruling, the Supreme Court held that
students subjected to sexual harassment may receive a damages
remedy under title IX only when school officials have
``actual notice'' of the harassment and are ``deliberately
indifferent'' to it. Gebser v. Lago Vista Independent School
District, 524 U.S. 274 (1998). See also Davis v. Monroe
County Board of Education, 526 U.S. 629 (1999).
(5) The standard delineated in Gebser and followed in Davis
has been applied by lower courts regarding the liability of
covered entities for damages for harassment based on race,
color, or national origin under title VI. E.g., Bryant v.
Independent School District No. I-38, 334 F.3d 928 (10th Cir.
2003). Because of the similarities in the wording and
interpretation of the underlying statutes, this standard may
be applied to claims for damages brought under 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)
as well.
(6) Although they do not affect the relevant standards for
individuals to obtain injunctive and equitable relief for
harassment on the basis of race, color, sex, national origin,
age, or disability under covered programs and activities,
Gebser and its progeny severely limit the availability of
remedies for such individuals by imposing new, more stringent
standards for recovery of damages under title VI and title
IX, and potentially under the Age Discrimination Act of 1975
and section 504 of the Rehabilitation Act of 1973. Yet in
many cases, damages are the only remedy that would
effectively rectify past harassment.
(7) As recognized by the dissenters in Gebser, these
limitations on effective relief thwart Congress's underlying
purpose to protect students from harassment. By making the
``policy choice'' to ``rank[] protection of the school
district's purse above the protection of immature high school
students'', the Gebser case ``is not faithful to the intent
of the policymaking branch of our Government''. Gebser, 524
U.S. at 306 (Stevens, J., dissenting).
(8) The rulings in Gebser and its progeny create an
incentive for covered entities to insulate themselves from
knowledge of harassment on the basis of race, color, sex,
national origin, age, or disability rather than adopting and
enforcing practices that will minimize the danger of such
harassment. The rulings thus undermine the purpose of
prohibitions on discrimination in the civil rights laws: ``to
induce [covered programs or activities] to adopt and enforce
practices that will minimize the danger that vulnerable
students [or other beneficiaries] will be exposed to such
odious behavior''. Gebser, 524 U.S. at 300 (Stevens, J.,
dissenting).
(9) The Gebser ruling contravened the interpretations of
title VI and title IX by the Department of Education, which
interpretations recognized liability for damages for
harassment based on race, color, sex, or national origin
based on agency principles. Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students,
or Third Parties, 62 Fed. Reg. 12034 (March 13, 1997); Racial
Incidents and Harassment Against Students at Educational
Institutions: Investigative Guidance, 59 Fed. Reg. 11448
(March 10, 1994).
(10) Legislative action is necessary and appropriate to
reverse Gebser and its progeny and restore the availability
of a full range of remedies for harassment based on race,
color, sex, national origin, age, or disability. The Gebser
majority itself invited Congress to ``speak directly on the
subject'' of damages liability to provide additional guidance
to the courts. 524 U.S. at 292.
(11) Restoring the availability of a full range of remedies
for harassment will--

[[Page S1301]]

(A) ensure that students and other beneficiaries of
federally funded programs and activities have protection from
harassment on the basis of race, color, sex, national origin,
age, or disability that is comparable in strength and
effectiveness to that available to employees under title VII
of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.),
the Age Discrimination in Employment Act of 1967 (29 U.S.C.
621 et seq.), and title I of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12111 et seq.);
(B) encourage covered entities to adopt and enforce
meaningful policies and procedures to prevent and remedy
harassment;
(C) deter incidents of harassment; and
(D) provide appropriate remedies for discrimination.
(12) Congress has the same affirmative powers to enact
legislation restoring the availability of a full range of
remedies for harassment as it did to enact the underlying
statutory prohibitions on harassment, including powers under
section 5 of the 14th amendment and section 8 of article I of
the Constitution.
(13) The right to maintain a private right of action under
a provision added to a statute under this subtitle 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.

SEC. 112. RIGHT OF RECOVERY.

(a) Civil Rights Act of 1964.--Section 602A of the Civil
Rights Act of 1964, as added by section 104, is amended by
adding at the end the following:
``(c) Claims Based on Harassment.--
``(1) Right of recovery.--In an action brought against a
covered entity by (including on behalf of) an aggrieved
person who has been subjected to unlawful harassment under a
program or activity, the aggrieved person may recover
equitable and legal relief (including compensatory and
punitive damages subject to the provisions of paragraph (2)),
attorney's fees (including expert fees), and costs.
``(2) Availability of damages.--
``(A) Tangible action by agent or employee.--If an agent or
employee of a covered entity engages in unlawful harassment
under a program or activity that results in a tangible action
to the aggrieved person, damages shall be available against
the covered entity.
``(B) No tangible action by agent or employee.--If an agent
or employee of a covered entity engages in unlawful
harassment under a program or activity that results in no
tangible action to the aggrieved person, no damages shall be
available against the covered entity if it can demonstrate
that--
``(i) it exercised reasonable care to prevent and correct
promptly any harassment based on race, color, or national
origin; and
``(ii) the aggrieved person unreasonably failed to take
advantage of preventive or corrective opportunities offered
by the covered entity that--

``(I) would likely have provided redress and avoided the
harm described by the aggrieved person; and
``(II) would not have exposed the aggrieved person to undue
risk, effort, or expense.

``(C) Harassment by third party.--If a person who is not an
agent or employee of a covered entity subjects an aggrieved
person to unlawful harassment under a program or activity,
and the covered entity involved knew or should have known of
the harassment, no damages shall be available against the
covered entity if it can demonstrate that it exercised
reasonable care to prevent and correct promptly any
harassment based on race, color, or national origin.
``(D) Demonstration.--For purposes of subparagraphs (B) and
(C), a showing that the covered entity has exercised
reasonable care to prevent and correct promptly any
harassment based on race, color, or national origin includes
a demonstration by the covered entity that it has--
``(i) established, adequately publicized, and enforced an
effective, comprehensive, harassment prevention policy and
complaint procedure that is likely to provide redress and
avoid harm without exposing the person subjected to the
harassment to undue risk, effort, or expense;
``(ii) undertaken prompt, thorough, and impartial
investigations pursuant to its complaint procedure; and
``(iii) taken immediate and appropriate corrective action
designed to stop harassment that has occurred, correct its
effects on the aggrieved person and ensure that the
harassment does not recur.
``(E) Punitive damages.--Punitive damages shall not be
available under this subsection against a government,
government agency, or political subdivision.
``(3) Definitions.--As used in this subsection:
``(A) Demonstrates.--The term `demonstrates' means meets
the burdens of production and persuasion.
``(B) Tangible action.--The term `tangible action' means--
``(i) a significant adverse change in an individual's
status caused by an agent or employee of a covered entity
with regard to the individual's participation in, access to,
or enjoyment of, the benefits of a program or activity; or
``(ii) an explicit or implicit condition by an agent or
employee of a covered entity on an individual's participation
in, access to, or enjoyment of, the benefits of a program or
activity based on the individual's submission to the
harassment.
``(C) Unlawful harassment.--The term `unlawful harassment'
means harassment that is unlawful under this title.''.
(b) Education Amendments of 1972.--Section 902A of the
Civil Rights Act of 1964, as added by section 104, is amended
by adding at the end the following:
``(c) Claims Based on Harassment.--
``(1) Right of recovery.--In an action brought against a
covered entity by (including on behalf of) aggrieved person
who has been subjected to unlawful harassment under a program
or activity, the aggrieved person may recover equitable and
legal relief (including compensatory and punitive damages
subject to the provisions of paragraph (2)), attorney's fees
(including expert fees), and costs.
``(2) Availability of damages.--
``(A) Tangible action by agent or employee.--If an agent or
employee of a covered entity engages in unlawful harassment
under a program or activity that results in a tangible action
to the aggrieved person, damages shall be available against
the covered entity.
``(B) No tangible action by agent or employee.--If an agent
or employee of a covered entity engages in unlawful
harassment under a program or activity that results in no
tangible action to the aggrieved person, no damages shall be
available against the covered entity if it can demonstrate
that--
``(i) it exercised reasonable care to prevent and correct
promptly any harassment based on sex; and
``(ii) the aggrieved person unreasonably failed to take
advantage of preventive or corrective opportunities offered
by the covered entity that--

``(I) would likely have provided redress and avoided the
harm described by the aggrieved person; and
``(II) would not have exposed the aggrieved person to undue
risk, effort, or expense.

``(C) Harassment by third party.--If a person who is not an
agent or employee of a covered entity subjects an aggrieved
person to unlawful harassment under a program or activity,
and the covered entity knew or should have known of the
harassment, no damages shall be available against the covered
entity if it can demonstrate that it exercised reasonable
care to prevent and correct promptly any harassment based on
sex.
``(D) Demonstration.--For purposes of subparagraphs (B) and
(C), a showing that the covered entity has exercised
reasonable care to prevent and correct promptly any
harassment based on sex includes a demonstration by the
covered entity that it has--
``(i) established, adequately publicized, and enforced an
effective, comprehensive, harassment prevention policy and
complaint procedure that is likely to provide redress and
avoid harm without exposing the person subjected to the
harassment to undue risk, effort, or expense;
``(ii) undertaken prompt, thorough, and impartial
investigations pursuant to its complaint procedure; and
``(iii) taken immediate and appropriate corrective action
designed to stop harassment that has occurred, correct its
effects on the aggrieved person, and ensure that the
harassment does not recur.
``(E) Punitive damages.--Punitive damages shall not be
available under this subsection against a government,
government agency, or political subdivision.
``(3) Definitions.--As used in this subsection:
``(A) Demonstrates.--The term `demonstrates' means meets
the burdens of production and persuasion.
``(B) Tangible action.--The term `tangible action' means--
``(i) a significant adverse change in an individual's
status caused by an agent or employee of a covered entity
with regard to the individual's participation in, access to,
or enjoyment of, the benefits of a program or activity; or
``(ii) an explicit or implicit condition by an agent or
employee of a covered entity on an individual's participation
in, access to, or enjoyment of, the benefits of a program or
activity based on the individual's submission to the
harassment.
``(C) Unlawful harassment.--The term `unlawful harassment'
means harassment that is unlawful under this title.''.
(c) Age Discrimination Act of 1975.--Section 305(g) of the
Age Discrimination Act of 1975, as added by section 104, is
amended by adding at the end the following:
``(3)(A) If an action brought against a covered entity by
(including on behalf of) an aggrieved person who has been
subjected to unlawful harassment under a program or activity,
the aggrieved person may recover equitable and legal relief
(including compensatory and punitive damages subject to the
provisions of subparagraph (B)), attorney's fees (including
expert fees), and costs.
``(B)(i) If an agent or employee of a covered entity
engages in unlawful harassment under a program or activity
that results in a tangible action to the aggrieved person,
damages shall be available against the covered entity.
``(ii) If an agent or employee of a covered entity engages
in unlawful harassment under a program or activity that
results in no tangible action to the aggrieved person, no
damages shall be available against the covered entity if it
can demonstrate that--
``(I) it exercised reasonable care to prevent and correct
promptly any harassment based on age; and

[[Page S1302]]

``(II) the aggrieved person unreasonably failed to take
advantage of preventive or corrective opportunities offered
by the covered entity that--
``(aa) would likely have provided redress and avoided the
harm described by the aggrieved person; and
``(bb) would not have exposed the aggrieved person to undue
risk, effort, or expense.
``(iii) If a person who is not an agent or employee of a
covered entity subjects an aggrieved person to unlawful
harassment under a program or activity, and the covered
entity knew or should have known of the harassment, no
damages shall be available against the covered entity if it
can demonstrate that it exercised reasonable care to prevent
and correct promptly any harassment based on age.
``(iv) For purposes of clauses (ii) and (iii), a showing
that the covered entity has exercised reasonable care to
prevent and correct promptly any harassment based on age
includes a demonstration by the covered entity that it has--
``(I) established, adequately publicized, and enforced an
effective, comprehensive, harassment prevention policy and
complaint procedure that is likely to provide redress and
avoid harm without exposing the person subjected to the
harassment to undue risk, effort, or expense;
``(II) undertaken prompt, thorough, and impartial
investigations pursuant to its complaint procedure; and
``(III) taken immediate and appropriate corrective action
designed to stop harassment that has occurred, correct its
effects on the aggrieved person, and ensure that the
harassment does not recur.
``(v) Punitive damages shall not be available under this
paragraph against a government, government agency, or
political subdivision.
``(C) As used in this paragraph:
``(i) The term `demonstrates' means meets the burdens of
production and persuasion.
``(ii) The term `tangible action' means--
``(I) a significant adverse change in an individual's
status caused by an agent or employee of a covered entity
with regard to the individual's participation in, access to,
or enjoyment of, the benefits of a program or activity; or
``(II) an explicit or implicit condition by an agent or
employee of a covered entity on an individual's participation
in, access to, or enjoyment of, the benefits of a program or
activity based on the individual's submission to the
harassment.
``(iii) The term `unlawful harassment' means harassment
that is unlawful under this title.''.
(d) Rehabilitation Act of 1973.--Section 504(e) of the
Rehabilitation Act of 1973, as added by section 104, is
amended by adding at the end the following:
``(3)(A) In an action brought against a covered entity by
(including on behalf of) an aggrieved person who has been
subjected to unlawful harassment under a program or activity,
the aggrieved person may recover equitable and legal relief
(including compensatory and punitive damages subject to the
provisions of subparagraph (B)), attorney's fees (including
expert fees), and costs.
``(B)(i) If an agent or employee of a covered entity
engages in unlawful harassment under a program or activity
that results in a tangible action to the aggrieved person,
damages shall be available against the covered entity.
``(ii) If an agent or employee of a covered entity engages
in unlawful harassment under a program or activity that
results in no tangible action to the aggrieved person, no
damages shall be available against the covered entity if it
can demonstrate that--
``(I) it exercised reasonable care to prevent and correct
promptly any harassment based on disability; and
``(II) the aggrieved person unreasonably failed to take
advantage of preventive or corrective opportunities offered
by the covered entity that--
``(aa) would likely have provided redress and avoided the
harm described by the aggrieved person; and
``(bb) would not have exposed the aggrieved person to undue
risk, effort, or expense.
``(iii) If a person who is not an agent or employee of a
covered entity subjects an aggrieved person to unlawful
harassment under a program or activity, and the covered
entity knew or should have known of the harassment, no
damages shall be available against the covered entity if it
can demonstrate that it exercised reasonable care to prevent
and correct promptly any harassment based on disability.
``(iv) For purposes of clauses (ii) and (iii), a showing
that the covered entity has exercised reasonable care to
prevent and correct promptly any harassment based on
disability includes a demonstration by the covered entity
that it has--
``(I) established, adequately publicized, and enforced an
effective, comprehensive, harassment prevention policy and
complaint procedure that is likely to provide redress and
avoid harm without exposing the person subjected to the
harassment to undue risk, effort, or expense;
``(II) undertaken prompt, thorough, and impartial
investigations pursuant to its complaint procedure; and
``(III) taken immediate and appropriate corrective action
designed to stop harassment that has occurred, correct its
effects on the aggrieved person, and ensure that the
harassment does not recur.
``(v) Punitive damages shall not be available under this
paragraph against a government, government agency, or
political subdivision.
``(C) As used in this paragraph:
``(i) The term `demonstrates' means meets the burdens of
production and persuasion.
``(ii) The term `tangible action' means--
``(I) a significant adverse change in an individual's
status caused by an agent or employee of a covered entity
with regard to the individual's participation in, access to,
or enjoyment of, the benefits of a program or activity; or
``(II) an explicit or implicit condition by an agent or
employee of a covered entity on an individual's participation
in, access to, or enjoyment of, the benefits of a program or
activity based on the individual's submission to the
harassment.
``(iii) The term `unlawful harassment' means harassment
that is unlawful under this section.''.

SEC. 113. CONSTRUCTION.

Nothing in this subtitle, including any amendment made by
this subtitle, 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.

SEC. 114. EFFECTIVE DATE.

(a) In General.--This subtitle, and the amendments made by
this subtitle, are retroactive to June 22, 1998, and
effective as of that date.
(b) Application.--This subtitle, and the amendments made by
this subtitle, apply to all actions or proceedings pending on
or after June 22, 1998, except as to an action against a
State, as to which the effective date is the date of
enactment of this Act.

TITLE II--UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF
1994 AMENDMENT

SEC. 201. AMENDMENT TO THE UNIFORMED SERVICES EMPLOYMENT AND
REEMPLOYMENT RIGHTS ACT OF 1994.

(a) Findings.--Congress makes the following findings:
(1) The Federal Government has an important interest in
attracting and training a military to provide for the
National defense. The Constitution grants Congress the power
to raise and support an army for purposes of the common
defense. The Nation's military readiness requires that all
members of the Armed Forces, including those employed in
State programs and activities, be able to serve without
jeopardizing their civilian employment opportunities.
(2) The Uniformed Services Employment and Reemployment
Rights Act of 1994, commonly referred to as ``USERRA'' and
codified as chapter 43 of title 38, United States Code, is
intended to safeguard the reemployment rights of members of
the uniformed services (as that term is defined in section
4303(16) of title 38, United States Code) and to prevent
discrimination against any person who is a member of, applies
to be a member of, performs, has performed, applies to
perform, or has an obligation to perform service in a
uniformed service. Effective enforcement of the Act depends
on the ability of private individuals to enforce its
provisions in court.
(3) In Seminole Tribe of Florida v. Florida, 517 U.S. 44
(1996), the Supreme Court held that congressional legislation
enacted pursuant to the commerce clause of Article I, section
8, of the Constitution cannot abrogate the immunity of States
under the 11th amendment to the Constitution. Some courts
have interpreted Seminole Tribe of Florida v. Florida as a
basis for denying relief to persons affected by a State
violation of USERRA. In addition, in Alden v. Maine 527 U.S.
706, 712 (1999), the Supreme Court held that this immunity
also prohibits the Federal Government from subjecting ``non-
consenting states to private suits for damages in state
courts.'' As a result, although USERRA specifically provides
that a person may commence an action for relief against a
State for its violation of that Act, persons harmed by State
violations of that Act lack important remedies to vindicate
the rights and benefits that are available to all other
persons covered by that Act. Unless a State chooses to waive
sovereign immunity, or the Attorney General brings an action
on their behalf, persons affected by State violations of
USERRA may have no adequate Federal remedy for such
violations.
(4) A failure to provide a private right of action by
persons affected by State violations of USERRA would leave
vindication of their rights and benefits under that Act
solely to Federal agencies, which may fail to take necessary
and appropriate action because of administrative overburden
or other reasons. Action by Congress to specify such a
private right of action ensures that persons affected by
State violations of USERRA have a remedy if they are denied
their rights and benefits under that Act.
(b) Clarification of Right of Action Under USERRA.--Section
4323 of title 38, United States Code, is amended--
(1) in subsection (b), by striking paragraph (2) and
inserting the following new paragraph (2):
``(2) In the case of an action against a State (as an
employer) by a person, the action may be brought in a
district court of the United States or State court of
competent jurisdiction.'';
(2) by redesignating subsection (j) as subsection (k); and

[[Page S1303]]

(3) by inserting after subsection (i) the following new
subsection (j):
``(j)(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 chapter
for the rights or benefits authorized the employee by this
chapter.
``(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 person covered by paragraph
(1) who seeks injunctive relief against a State (as an
employer) under subsection (e). 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).''.

TITLE III--AIR CARRIER ACCESS ACT OF 1986 AMENDMENT

SEC. 301. FINDINGS.

Congress finds the following:
(1) In Love v. Delta Air Lines, 310 F. 3d 1347 (11th Cir.
2002), the United States Court of Appeals for the Eleventh
Circuit held that when Congress passed the Air Carrier Access
Act of 1986, adding a provision now codified at section 41705
of title 49, United States Code (referred to in this title as
the ``ACAA''), Congress did not intend to create a private
right of action with which individuals with disabilities
could sue air carriers in Federal court for discrimination on
the basis of disability. The court recognized that other
courts of appeals have held that the ACAA created a private
right of action. Nevertheless, the court, relying on the
Supreme Court's decision in Alexander v. Sandoval, 532 U.S.
275 (2001), concluded that the ACAA did not create a private
right of action.
(2) The absence of a private right of action leaves
enforcement of the ACAA solely in the hands of the Department
of Transportation, which is overburdened and lacks the
resources to investigate, prosecute violators for, and
remediate all of the violations of the rights of travelers
who are individuals with disabilities. Nor can the Department
of Transportation bring an action that will redress the
injury of an individual resulting from such a violation. The
Department of Transportation can take action that fines an
air carrier or requires the air carrier to obey the law in
the future, but the Department is not authorized to issue
orders that redress the injuries sustained by individual air
passengers. Action by Congress is necessary to ensure that
individuals with disabilities will have adequate remedies
available when air carriers violate the ACAA (including its
regulations), and only courts may provide this redress to
individuals.
(3) When an air carrier violates the ACAA and discriminates
against an individual with a disability, frequently the only
way to compensate that individual for the harm the individual
has suffered is through an award of money damages. For
example, violations of the ACAA may result in travelers who
are individuals with disabilities missing flights for
business appointments or important personal events, or in
such travelers suffering humiliating treatment at the hands
of air carriers. Those harms cannot be remedied solely
through injunctive relief.
(4) Unlike other civil rights statutes, the ACAA does not
contain a fee-shifting provision under which a prevailing
plaintiff can be awarded attorney's fees. Action by Congress
is necessary to correct this anomaly. The availability of
attorney's fees is essential to ensuring that persons who
have been aggrieved by violations of the ACAA can enforce
their rights. The inclusion of a fee-shifting provision in
the ACAA will permit individuals to serve as private
attorneys general, a necessary role on which enforcement of
civil rights statutes depends.

SEC. 302. CIVIL ACTION.

Section 41705 of title 49, United States Code, is amended
by adding at the end the following:
``(d) Civil Action.--(1) Any person aggrieved by an air
carrier's violation of subsection (a) (including any
regulation implementing such subsection) may bring a civil
action in the district court of the United States in the
district in which the aggrieved person resides, in the
district containing the air carrier's principal place of
business, or in the district in which the violation took
place. Any such action must be commenced within 2 years after
the date of the violation.
``(2) In any civil action brought by an aggrieved person
pursuant to paragraph (1), the plaintiff may obtain both
equitable and legal relief, including compensatory and
punitive damages. The court in such action shall, in addition
to such relief awarded to a prevailing plaintiff, award
reasonable attorney's fees, reasonable expert fees, and costs
of the action to the plaintiff.''.

TITLE IV--AGE DISCRIMINATION IN EMPLOYMENT ACT AMENDMENTS

SEC. 401. SHORT TITLE.

This title may be cited as the ``Older Workers' Rights
Restoration Act of 2004''.

SEC. 402. FINDINGS.

Congress finds the following:
(1) Since 1974, the Age Discrimination in Employment Act of
1967 (29 U.S.C. 621 et seq.) (referred to in this section as
the `ADEA') 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's
constitutional authority to prohibit States from
discriminating in employment on the basis of age. The
prohibitions of the ADEA 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 ADEA since the enactment of that Act. In Kimel v. Florida
Board of Regents, 528 U.S. 62 (2000), however, the Supreme
Court held that Congress had not abrogated State sovereign
immunity to suits by individuals under the ADEA. The Federal
Government has an important interest in ensuring that Federal
financial assistance is not used to subsidize or facilitate
violations of the ADEA. 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
ADEA 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 ADEA 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 entities subject to the Age
Discrimination Act of 1975 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 ADEA.
(7) The Supreme Court has upheld Congress's authority to
condition receipt of Federal financial assistance on
acceptance by the States or other covered entities 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 ADEA 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
ADEA, 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 ADEA (as added by section 404). 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 ADEA brought by
employees within the programs or activities that receive or
use

[[Page S1304]]

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 ADEA.
(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 ADEA 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.
(10) In Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971),
the Supreme Court recognized that title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.) ``proscribes not
only overt discrimination [in employment] but also
[employment] practices that are fair in form, but
discriminatory in operation. . . .'' In doing so, the Court
relied on section 703(a)(2) of title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-2(a)(2)), which contains
language identical to section 4(a)(2) of the ADEA, except
that the latter substitutes the word age for the grounds of
prohibited discrimination specified by title VII of the Civil
Rights Act of 1964: ``race, color, religion, sex, or national
origin.'' The Court has confirmed that this and other related
statutory language, identical to both title VII of the Civil
Rights Act of 1964 and the ADEA, supports application of the
disparate impact doctrine. Connecticut v. Teal, 457 U.S. 440
(1982); General Electric Co. v. Gilbert, 429 U.S. 125 (1976).
(11) Other indicia of Congress's intent to permit the
disparate impact method of proving violations of the ADEA are
legion, and include numerous other textual parallels between
the ADEA and title VII of the Civil Rights Act of 1964, such
as in the two laws' substantive prohibitions. Lorillard v.
Pons, 434 U.S. 575, 584 (1978) (the ADEA's substantive
prohibitions ``were derived in haec verba from Title VII'').
Moreover, the ADEA and title VII of the Civil Rights Act of
1964 share ``a common purpose: `the elimination of
discrimination in the workplace,' ''. McKennon v. Nashville
Banner Pub. Co., 513 U.S. 352, 358 (1995) (quoting Oscar
Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979)). Interpreting
title VII of the Civil Rights Act of 1964 in a consistent
manner is particularly appropriate when ``the two provisions
share a common raison d'etre.''. Northcross v. Board of Educ.
of Memphis City Schools, 412 U.S. 427, 428 (1973).
(12) The ADEA's legislative history confirms Congress's
intent to redress all ``arbitrary'' age discrimination in the
workplace, including arbitrary facially neutral policies and
practices falling more harshly on older workers. Such
policies continue to be based on the kind of ``subconscious
stereotypes and prejudices'' which cannot be ``adequately
policed through disparate treatment analysis,'' and thus,
require application of the disparate impact theory of proof.
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988).
As the Supreme Court has noted, these prejudices are ``the
essence of age discrimination.''. Hazen Paper Co. v. Biggins,
507 U.S. 604, 610, n.15 (1993).
(13) In 1991, Congress reaffirmed that title VII of the
Civil Rights Act of 1964 permits victims of employment bias
to state a cause of action for disparate impact
discrimination when it added a provision to title VII of the
Civil Rights Act of 1964 to clarify the burden of proof in
disparate impact cases in section 703(k) of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-2(k)).
(14) Subsequently, several lower courts and Federal Courts
of Appeal have mistakenly relied on language in the Supreme
Court's opinion in Hazen Paper Co. v. Biggins, 507 U.S. 604
(1993), to suggest that the disparate impact method of proof
does not apply to claims under the ADEA. Mullin v. Raytheon
Co., 164 F.3d 696, 700-01 (1st Cir. 1999); EEOC v. Francis W.
Parker School, 41 F.3d 1073, 1076-77 (7th Cir. 1994); Ellis
v. United Airlines, Inc., 73 F.3d 999, 1006-07 (10th Cir.
1996); DiBiase v. Smithkline Beecham Corp., 48 F.3d 719, 732
(3d Cir. 1995); Lyon v. Ohio Educ. Ass'n and Prof'l Staff
Union, 53 F.3d 135, 139 n.5 (6th Cir. 1995). Congress did not
intend the ADEA to be interpreted to provide older workers
less protections against discrimination than those protected
under title VII of the Civil Rights Act of 1964. As a result,
it is necessary to clarify the burden of proof in a disparate
impact case under the ADEA, and thereby reaffirm that victims
of age discrimination in employment discrimination may state
a cause of action based on the disparate impact method of
proving discrimination in appropriate circumstances.

SEC. 403. PURPOSES.

The purposes of this title 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 (29 U.S.C. 621 et
seq.) 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, 528
U.S. 62 (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;
(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; and
(4) to reaffirm the applicability of the disparate impact
standard of proof to claims under the Age Discrimination in
Employment Act of 1967.

SEC. 404. 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. 405. DISPARATE IMPACT CLAIMS.

Section 4 of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 623) is amended by adding at the end the
following:
``(n)(1) Discrimination based on disparate impact is
established under this title only if--
``(A) an aggrieved party demonstrates that an employer,
employment agency, or labor organization has a policy or
practice that causes a disparate impact on the basis of age
and the employer, employment agency, or labor organization
fails to demonstrate that the challenged policy or practice
is based on reasonable factors that are job-related and
consistent with business necessity other than age; or
``(B) the aggrieved party demonstrates (consistent with the
demonstration standard 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 employer,
employment agency, or labor organization refuses to adopt
such alternative policy or practice.
``(2)(A) With respect to demonstrating that a particular
policy or practice causes a disparate impact as described in
paragraph (1)(A), the aggrieved party shall demonstrate that
each particular challenged policy or practice causes a
disparate impact, except that if the aggrieved party
demonstrates to the court that the elements of an employer,
employment agency, or labor organization's decisionmaking
process are not capable of separation for analysis, the
decisionmaking process may be analyzed as one policy or
practice.
``(B) If the employer, employment agency, or labor
organization demonstrates that a specific policy or practice
does not cause the disparate impact, the employer, employment
agency, or labor organization shall not be required to
demonstrate that such policy or practice is necessary to the
operation of its business.
``(3) A demonstration that a policy or practice is
necessary to the operation of the employer, employment
agency, or labor organization's business may not be used as a
defense against a claim of intentional discrimination under
this title.
``(4) In this subsection, the term `demonstrates' means
meets the burdens of production and persuasion.''.

SEC. 406. 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 title, 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 title.

TITLE V--CIVIL RIGHTS REMEDIES AND RELIEF

Subtitle A--Prevailing Party

SEC. 501. SHORT TITLE.

This subtitle may be cited as the ``Settlement
Encouragement and Fairness Act''.

SEC. 502. DEFINITION OF PREVAILING PARTY.

(a) In General.--Chapter 1 of title 1, United States Code,
is amended by adding at the end the following:

``Sec. 9. Definition of `prevailing party'

``(a) In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, or
of any judicial or administrative rule, which provides for
the recovery of attorney's fees, the term `prevailing party'
shall include, in addition to a party who substantially
prevails through a judicial or administrative judgment or
order, or an enforceable written agreement, a party whose

[[Page S1305]]

pursuit of a nonfrivolous claim or defense was a catalyst for
a voluntary or unilateral change in position by the opposing
party that provides any significant part of the relief
sought.
``(b)(1) If an Act, ruling, regulation, interpretation, or
rule described in subsection (a) requires a defendant, but
not a plaintiff, to satisfy certain different or additional
criteria to qualify for the recovery of attorney's fees,
subsection (a) shall not affect the requirement that such
defendant satisfy such criteria.
``(2) If an Act, ruling, regulation, interpretation, or
rule described in subsection (a) requires a party to satisfy
certain criteria, unrelated to whether or not such party has
prevailed, to qualify for the recovery of attorney's fees,
subsection (a) shall not affect the requirement that such
party satisfy such criteria.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 1 of title 1, United States Code, is
amended by adding at the end the following new item:

``9. Definition of `prevailing party'.''.
(c) Application.--Section 9 of title 1, United States Code,
as added by this Act, shall apply to any case pending or
filed on or after the date of enactment of this subtitle.

Subtitle B--Arbitration

SEC. 511. SHORT TITLE.

This subtitle may be cited as the ``Preservation of Civil
Rights Protections Act of 2004''.

SEC. 512. AMENDMENT TO FEDERAL ARBITRATION ACT.

Section 1 of title 9, United States Code, is amended by
striking ``of seamen'' and all that follows through
``commerce''.

SEC. 513. UNENFORCEABILITY OF ARBITRATION CLAUSES IN
EMPLOYMENT CONTRACTS.

(a) Protection of Employee Rights.--Notwithstanding any
other provision of law, any clause of any agreement between
an employer and an employee that requires arbitration of a
dispute arising under the Constitution or laws of the United
States shall not be enforceable.
(b) Exceptions.--
(1) Waiver or consent after dispute arises.--Subsection (a)
shall not apply with respect to any dispute if, after such
dispute arises, the parties involved knowingly and
voluntarily consent to submit such dispute to arbitration.
(2) Collective bargaining agreements.--Subsection (a) shall
not preclude an employee or union from enforcing any of the
rights or terms of a valid collective bargaining agreement.

SEC. 514. APPLICATION OF AMENDMENTS.

This subtitle and the amendment made by section 512 shall
apply with respect to all employment contracts in force
before, on, or after the date of enactment of this subtitle.

Subtitle C--Expert Witness Fees

SEC. 521. PURPOSE.

The purpose of this subtitle is to allow recovery of expert
fees by prevailing parties under civil rights fee-shifting
statutes.

SEC. 522. FINDINGS.

Congress finds the following:
(1) This subtitle is made necessary by the decision of the
Supreme Court in West Virginia University Hospitals Inc. v.
Casey, 499 U.S. 83 (1991). In Casey, the Court, per Justice
Scalia, ruled that expert fees were not recoverable under
section 722 of the Revised Statutes (42 U.S.C. 1988), as
amended by the Civil Rights Attorneys' Fees Awards Act of
1976 (Public Law 94-559; 90 Stat. 2641), because the Civil
Rights Attorneys' Fees Awards Act of 1976 expressly
authorized an award of an ``attorney's fee'' to a prevailing
party but said nothing expressly about expert fees.
(2) This subtitle is especially necessary both because of
the important roles played by experts in civil rights
litigation and because expert fees often represent a major
cost of the litigation. In fact, in Casey itself, as pointed
out by Justice Stevens in dissent, the district court had
found that the expert witnesses were ``essential'' and
``necessary'' to the successful prosecution of the plaintiffs
case, and the expert fees were not paltry but amounted to
$104,133. Justice Stevens also pointed out that the majority
opinion requiring the plaintiff to ``assume the cost of
$104,133 in expert witness fees is at war with the
congressional purpose of making the prevailing party
whole.''. Casey (499 U.S. at 111).
(3) Much of the rationale for denying expert fees as part
of the shifting of attorney's fees under provisions of law
such as section 722 of the Revised Statutes (42 U.S.C. 1988),
whose language does not expressly include expert fees, was
based on the fact that many fee-shifting statutes enacted by
Congress ``explicitly shift expert witness fees as well as
attorney's fees.''. Casey (499 U.S. at 88). In fact, Justice
Scalia pointed out that in 1976--the same year that Congress
amended section 722 of the Revised Statutes (42 U.S.C. 1988)
by providing for the shifting of attorney's fees--Congress
expressly authorized the shifting of attorney's fees and of
expert fees in the Toxic Substances Control Act (15 U.S.C.
2601 et seq.), the Consumer Product Safety Act (15 U.S.C.
2051 et seq.), the Resource Conservation and Recovery Act of
1976 (Public Law 94-580; 90 Stat. 2795), and the Natural Gas
Pipeline Safety Act Amendments of 1976 (Public Law 94-477; 90
Stat. 2073). Casey (499 U.S. at 88). Congress had done the
same in other years on dozens of occasions. Casey (499 U.S.
at 88-90 & n. 4).
(4) In the same year that the Supreme Court decided Casey,
Congress responded quickly but only through the Civil Rights
Act of 1991 (Public Law 102-166; 105 Stat. 1071) by amending
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et
seq.) and section 722 of the Revised Statutes (42 U.S.C.
1988) with express authorizations of the recovery of expert
fees in successful employment discrimination litigation. It
is long past time to correct, in Federal civil rights
litigation, Casey's denial of expert fees.

SEC. 523. EFFECTIVE PROVISIONS.

(a) Section 722 of the Revised Statutes.--Section 722 of
the Revised Statutes (42 U.S.C. 1988) is amended--
(1) in subsection (b), by inserting ``(including expert
fees)'' after ``attorney's fee''; and
(2) by striking subsection (c).
(b) Fair Labor Standards Act of 1938.--Section 16(b) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is
amended by inserting ``(including expert fees)'' after
``attorney's fee''.
(c) Voting Rights Act of 1965.--Section 14(e) of the Voting
Rights Act of 1965 (42 U.S.C. 1973l(e)) is amended by
inserting ``(including expert fees)'' after ``attorney's
fee''.
(d) Fair Housing Act.--Title VIII of the Civil Rights Act
of 1968 (42 U.S.C. 3601 et seq.) is amended--
(1) in section 812(p), by inserting ``(including expert
fees)'' after ``attorney's fee'';
(2) in section 813(c)(2), by inserting ``(including expert
fees)'' after ``attorney's fee''; and
(3) in section 814(d)(2), by inserting ``(including expert
fees)'' after ``attorney's fee''.
(e) IDEA.--Section 615(i)(3)(B) of the Individuals with
Disabilities Education Act (20 U.S.C. 1415(i)(3)(B)) is
amended by inserting ``(including expert fees)'' after
``attorney's fees''.
(f) Civil Rights Act of 1964.--Section 204(b) of the Civil
Rights Act of 1964 (42 U.S.C. 2000a-3(b)) is amended by
inserting ``(including expert fees)'' after ``attorney's
fee''.
(g) Rehabilitation Act of 1973.--Section 505(b) of the
Rehabilitation Act of 1973 (29 U.S.C. 794a(b)) is amended by
inserting ``(including expert fees)'' after ``attorney's
fee''.
(h) Equal Credit Opportunity Act.--Section 706(d) of the
Equal Credit Opportunity Act (15 U.S.C. 1691e(d)) is amended
by inserting ``(including expert fees)'' after ``attorney's
fee''.
(i) Fair Credit Reporting Act.--The Fair Credit Reporting
Act (15 U.S.C. 1681 et seq.) is amended--
(1) in section 616(a)(3), by inserting ``(including expert
fees)'' after ``attorney's fees''; and
(2) in section 617(a)(2), by inserting ``(including expert
fees)'' after ``attorney's fees''.
(j) Freedom of Information Act.--Section 552(a)(4)(E) of
title 5, United States Code, is amended by inserting
``(including expert fees)'' after ``attorney fees''.
(k) Privacy Act.--Section 552a(g) of title 5, United States
Code, is amended--
(1) in paragraph (2)(B), by inserting ``(including expert
fees)'' after ``attorney fees'';
(2) in paragraph (3)(B), by inserting ``(including expert
fees)'' after ``attorney fees''; and
(3) in paragraph (4)(B), by inserting ``(including expert
fees)'' after ``attorney fees''.
(l) Truth in Lending Act.--Section 130(a)(3) of the Truth
in Lending Act (15 U.S.C. 1640(a)(3)) is amended by inserting
``(including expert fees)'' after ``attorney's fee''.

Subtitle D--Equal Remedies Act of 2004

SEC. 531. SHORT TITLE.

This subtitle may be cited as the ``Equal Remedies Act of
2004''.

SEC. 532. EQUALIZATION OF REMEDIES.

Section 1977A of the Revised Statutes (42 U.S.C. 1981a), as
added by section 102 of the Civil Rights Act of 1991, is
amended--
(1) in subsection (b)--
(A) by striking paragraph (3); and
(B) by redesignating paragraph (4) as paragraph (3); and
(2) in subsection (c), by striking ``section--'' and all
that follows through the period, and inserting ``section, any
party may demand a jury trial.''.

TITLE VI--PROHIBITIONS AGAINST SEX DISCRIMINATION

SEC. 601. SHORT TITLE.

This title may be cited as the ``Paycheck Fairness Act''.

SEC. 602. FINDINGS.

Congress makes the following findings:
(1) Women have entered the workforce in record numbers.
(2) Even today, women earn significantly lower pay than men
for work on jobs that require equal skill, effort, and
responsibility and that are performed under similar working
conditions. These pay disparities exist in both the private
and governmental sectors. In many instances, the pay
disparities can only be due to continued intentional
discrimination or the lingering effects of past
discrimination.
(3) The existence of such pay disparities--
(A) depresses the wages of working families who rely on the
wages of all members of the family to make ends meet;
(B) prevents the optimum utilization of available labor
resources;
(C) has been spread and perpetuated, through commerce and
the channels and instrumentalities of commerce, among the
workers of the several States;
(D) burdens commerce and the free flow of goods in
commerce;
(E) constitutes an unfair method of competition in
commerce;

[[Page S1306]]

(F) leads to labor disputes burdening and obstructing
commerce and the free flow of goods in commerce;
(G) interferes with the orderly and fair marketing of goods
in commerce; and
(H) in many instances, may deprive workers of equal
protection on the basis of sex in violation of the 5th and
14th amendments.
(4)(A) Artificial barriers to the elimination of
discrimination in the payment of wages on the basis of sex
continue to exist decades after the enactment of the Fair
Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) and the
Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.).
(B) Elimination of such barriers would have positive
effects, including--
(i) providing a solution to problems in the economy created
by unfair pay disparities;
(ii) substantially reducing the number of working women
earning unfairly low wages, thereby reducing the dependence
on public assistance;
(iii) promoting stable families by enabling all family
members to earn a fair rate of pay;
(iv) remedying the effects of past discrimination on the
basis of sex and ensuring that in the future workers are
afforded equal protection on the basis of sex; and
(v) ensuring equal protection pursuant to Congress's power
to enforce the 5th and 14th amendments.
(5) With increased information about the provisions added
by the Equal Pay Act of 1963 and wage data, along with more
effective remedies, women will be better able to recognize
and enforce their rights to equal pay for work on jobs that
require equal skill, effort, and responsibility and that are
performed under similar working conditions.
(6) Certain employers have already made great strides in
eradicating unfair pay disparities in the workplace and their
achievements should be recognized.

SEC. 603. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

(a) Required Demonstration for Affirmative Defense.--
Section 6(d)(1) of the Fair Labor Standards Act of 1938 (29
U.S.C. 206(d)(1)) is amended by striking ``(iv) a
differential'' and all that follows through the period and
inserting the following: ``(iv) a differential based on a
bona fide factor other than sex, such as education, training
or experience, except that this clause shall apply only if--
``(I) the employer demonstrates that--
``(aa) such factor--
``(AA) is job-related with respect to the position in
question; or
``(BB) furthers a legitimate business purpose, except that
this item shall not apply where the employee demonstrates
that an alternative employment practice exists that would
serve the same business purpose without producing such
differential and that the employer has refused to adopt such
alternative practice; and
``(bb) such factor was actually applied and used reasonably
in light of the asserted justification; and
``(II) upon the employer succeeding under subclause (I),
the employee fails to demonstrate that the differential
produced by the reliance of the employer on such factor is
itself the result of discrimination on the basis of sex by
the employer.
An employer that is not otherwise in compliance with this
paragraph may not reduce the wages of any employee in order
to achieve such compliance.''.
(b) Application of Provisions.--Section 6(d)(1) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended
by adding at the end the following: ``The provisions of this
subsection shall apply to applicants for employment if such
applicants, upon employment by the employer, would be subject
to any provisions of this section.''.
(c) Elimination of Establishment Requirement.--Section 6(d)
of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)) is
amended--
(1) by striking ``, within any establishment in which such
employees are employed,''; and
(2) by striking ``in such establishment'' each place it
appears.
(d) Nonretaliation Provision.--Section 15(a)(3) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) is
amended--
(1) by striking ``or has'' each place it appears and
inserting ``has''; and
(2) by inserting before the semicolon the following: ``, or
has inquired about, discussed, or otherwise disclosed the
wages of the employee or another employee, or because the
employee (or applicant) has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, hearing, or action under section 6(d)''.
(e) Enhanced Penalties.--Section 16(b) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following:
``Any employer who violates section 6(d) shall additionally
be liable for such compensatory or punitive damages as may be
appropriate, except that the United States shall not be
liable for punitive damages.'';
(2) in the sentence beginning ``An action to'', by striking
``either of the preceding sentences'' and inserting ``any of
the preceding sentences of this subsection'';
(3) in the sentence beginning ``No employees shall'', by
striking ``No employees'' and inserting ``Except with respect
to class actions brought to enforce section 6(d), no
employee'';
(4) by inserting after the sentence referred to in
paragraph (3), the following: ``Notwithstanding any other
provision of Federal law, any action brought to enforce
section 6(d) may be maintained as a class action as provided
by the Federal Rules of Civil Procedure.''; and
(5) in the sentence beginning ``The court in''--
(A) by striking ``in such action'' and inserting ``in any
action brought to recover the liability prescribed in any of
the preceding sentences of this subsection''; and
(B) by inserting before the period the following: ``,
including expert fees''.
(f) Action by Secretary.--Section 16(c) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting ``or, in the case of a violation of
section 6(d), additional compensatory or punitive damages,''
before ``and the agreement''; and
(B) by inserting before the period the following: ``, or
such compensatory or punitive damages, as appropriate'';
(2) in the second sentence, by inserting before the period
the following: ``and, in the case of a violation of section
6(d), additional compensatory or punitive damages'';
(3) in the third sentence, by striking ``the first
sentence'' and inserting ``the first or second sentence'';
and
(4) in the last sentence--
(A) by striking ``commenced in the case'' and inserting
``commenced--
``(1) in the case'';
(B) by striking the period and inserting ``; or''; and
(C) by adding at the end the following:
``(2) in the case of a class action brought to enforce
section 6(d), on the date on which the individual becomes a
party plaintiff to the class action.''.

SEC. 604. TRAINING.

The Equal Employment Opportunity Commission and the Office
of Federal Contract Compliance Programs, subject to the
availability of funds appropriated under section 609, shall
provide training to Commission employees and affected
individuals and entities on matters involving discrimination
in the payment of wages.

SEC. 605. RESEARCH, EDUCATION, AND OUTREACH.

The Secretary of Labor shall conduct studies and provide
information to employers, labor organizations, and the
general public concerning the means available to eliminate
pay disparities between men and women, including--
(1) conducting and promoting research to develop the means
to correct expeditiously the conditions leading to the pay
disparities;
(2) publishing and otherwise making available to employers,
labor organizations, professional associations, educational
institutions, the media, and the general public the findings
resulting from studies and other materials, relating to
eliminating the pay disparities;
(3) sponsoring and assisting State and community
informational and educational programs;
(4) providing information to employers, labor
organizations, professional associations, and other
interested persons on the means of eliminating the pay
disparities;
(5) recognizing and promoting the achievements of
employers, labor organizations, and professional associations
that have worked to eliminate the pay disparities; and
(6) convening a national summit to discuss, and consider
approaches for rectifying, the pay disparities.

SEC. 606. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNITION
PROGRAM.

(a) Guidelines.--
(1) In general.--The Secretary of Labor shall develop
guidelines to enable employers to evaluate job categories
based on objective criteria such as educational requirements,
skill requirements, independence, working conditions, and
responsibility, including decisionmaking responsibility and
de facto supervisory responsibility.
(2) Use.--The guidelines developed under paragraph (1)
shall be designed to enable employers voluntarily to compare
wages paid for different jobs to determine if the pay scales
involved adequately and fairly reflect the educational
requirements, skill requirements, independence, working
conditions, and responsibility for each such job with the
goal of eliminating unfair pay disparities between
occupations traditionally dominated by men or women.
(3) Publication.--The guidelines shall be developed under
paragraph (1) and published in the Federal Register not later
than 180 days after the date of enactment of this title.
(b) Employer Recognition.--
(1) Purpose.--It is the purpose of this subsection to
emphasize the importance of, encourage the improvement of,
and recognize the excellence of employer efforts to pay wages
to women that reflect the real value of the contributions of
such women to the workplace.
(2) In general.--To carry out the purpose of this
subsection, the Secretary of Labor shall establish a program
under which the Secretary shall provide for the recognition
of employers who, pursuant to a voluntary job evaluation
conducted by the employer, adjust their wage scales (such
adjustments shall not include the lowering of wages paid to
men) using the guidelines developed under subsection (a) to
ensure that women are paid fairly in comparison to men.

[[Page S1307]]

(3) Technical assistance.--The Secretary of Labor may
provide technical assistance to assist an employer in
carrying out an evaluation under paragraph (2).
(c) Regulations.--The Secretary of Labor shall promulgate
such rules and regulations as may be necessary to carry out
this section.

SEC. 607. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY
IN THE WORKPLACE.

(a) In General.--There is established the Secretary of
Labor's National Award for Pay Equity in the Workplace, which
shall be evidenced by a medal bearing the inscription
``Secretary of Labor's National Award for Pay Equity in the
Workplace''. The medal shall be of such design and materials,
and bear such additional inscriptions, as the Secretary of
Labor may prescribe.
(b) Criteria for Qualification.--To qualify to receive an
award under this section a business shall--
(1) submit a written application to the Secretary of Labor,
at such time, in such manner, and containing such information
as the Secretary may require, including at a minimum
information that demonstrates that the business has made
substantial effort to eliminate pay disparities between men
and women, and deserves special recognition as a consequence;
and
(2) meet such additional requirements and specifications as
the Secretary of Labor determines to be appropriate.
(c) Making and Presentation of Award.--
(1) Award.--After receiving recommendations from the
Secretary of Labor, the President or the designated
representative of the President shall annually present the
award described in subsection (a) to businesses that meet the
qualifications described in subsection (b).
(2) Presentation.--The President or the designated
representative of the President shall present the award under
this section with such ceremonies as the President or the
designated representative of the President may determine to
be appropriate.
(d) Business.--In this section, the term ``business''
includes--
(1)(A) a corporation, including a nonprofit corporation;
(B) a partnership;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to an entity described in any
of subparagraphs (A) through (D);
(2) an entity carrying out an education referral program, a
training program, such as an apprenticeship or management
training program, or a similar program; and
(3) an entity carrying out a joint program, formed by a
combination of any entities described in paragraph (1) or
(2).

SEC. 608. COLLECTION OF PAY INFORMATION BY THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION.

Section 709 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-8) is amended by adding at the end the following:
``(f)(1) Not later than 18 months after the date of
enactment of this subsection, the Commission shall--
``(A) complete a survey of the data that is currently
available to the Federal Government relating to employee pay
information for use in the enforcement of Federal laws
prohibiting pay discrimination and, in consultation with
other relevant Federal agencies, identify additional data
collections that will enhance the enforcement of such laws;
and
``(B) based on the results of the survey and consultations
under subparagraph (A), issue regulations to provide for the
collection of pay information data from employers as
described by the sex, race, and national origin of employees.
``(2) In implementing paragraph (1), the Commission shall
have as its primary consideration the most effective and
efficient means for enhancing the enforcement of Federal laws
prohibiting pay discrimination. For this purpose, the
Commission shall consider factors including the imposition of
burdens on employers, the frequency of required reports
(including which employers should be required to prepare
reports), appropriate protections for maintaining data
confidentiality, and the most effective format for the data
collection reports.''.

SEC. 609. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may be
necessary to carry out this title.

TITLE VII--PROTECTIONS FOR WORKERS

Subtitle A--Protection for Undocumented Workers

SEC. 701. FINDINGS.

Congress finds the following:
(1) The National Labor Relations Act (29 U.S.C. 151 et
seq.) (in this subtitle referred to as the ``NLRA''), enacted
in 1935, guarantees the right of employees to organize and to
bargain collectively with their employers. The NLRA
implements the national labor policy of assuring free choice
and encouraging collective bargaining as a means of
maintaining industrial peace. The National Labor Relations
Board (in this subtitle referred to as the ``NLRB'') was
created by Congress to enforce the provisions of the NLRA.
(2) Under section 8 of the NLRA, employers are prohibited
from discriminating against employees ``in regard to hire or
tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor
organization''. (29 U.S.C. 158(a)(3)). Employers who violate
these provisions are subject to a variety of sanctions,
including reinstatement of workers found to be illegally
discharged because of their union support or activity and
provision of backpay to those employees. Such sanctions serve
to remedy and deter illegal actions by employers.
(3) In Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137
(2002), the Supreme Court held by a 5 to 4 vote that Federal
immigration policy, as articulated in the Immigration Reform
and Control Act of 1986, prevented the NLRB from awarding
backpay to an undocumented immigrant who was discharged in
violation of the NLRA because of his support for union
representation at his workplace.
(4) The decision in Hoffman has an impact on all employees,
regardless of immigration or citizenship status, who try to
improve their working conditions. In the wake of Hoffman
Plastics, employers may be more likely to report to the
Department of Homeland Security minority workers, regardless
of their immigration or citizenship status, who pursue claims
under the NLRA against their employers. Fear that employers
may retaliate against employees that exercise their rights
under the NLRA has a chilling effect on all employees who
exercise their labor rights.
(5) The NLRA is not the only Federal employment statute
that provides for a backpay award as a remedy for an unlawful
discharge. For example, courts routinely award backpay to
employees who are found to have been discharged in violation
of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e
et seq.) or the Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.) (in retaliation for complaining about a failure
to comply with the minimum wage). In the wake of the Hoffman
decision, defendant employers will now argue that backpay
awards to unlawfully discharged undocumented workers are
barred under Federal employment statutes and even under State
employment statutes.
(6) Because the Hoffman decision prevents the imposition of
sanctions on employers who discriminate against undocumented
immigrant workers, employers are encouraged to employ such
workers for low-paying and dangerous jobs because they have
no legal redress for violations of the law. This creates an
economic incentive for employers to hire and exploit
undocumented workers, which in turn tends to undermine the
living standards and working conditions of all Americans,
citizens and noncitizens alike.
(7) The Hoffman decision disadvantages many employers as
well. Employers who are forced to compete with firms that
hire and exploit undocumented immigrant workers are saddled
with an economic disadvantage in the labor marketplace. The
unintended creation of an economic inducement for employers
to exploit undocumented immigrant workers gives those
employers an unfair competitive advantage over employers that
treat workers lawfully and fairly.
(8) The Court's decision in Hoffman makes clear that ``any
`perceived deficiency in the NLRA's existing remedial
arsenal' must be `addressed by congressional action[.]' ''
Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137, 152
(2002) (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 904
(1984)). In emphasizing the importance of back pay awards,
Justice Breyer noted that such awards against employers
``help[] to deter unlawful activity that both labor laws and
immigration laws seek to prevent''. Hoffman Plastic Compounds
Inc. v. NLRB, 535 U.S. 137, 152 (2002). Because back pay
awards are designed both to remedy the individual's private
right to be free from discrimination as well as to enforce
the important public policy against discriminatory employment
practices, Congress must take the following corrective
action.

SEC. 702. CONTINUED APPLICATION OF BACKPAY REMEDIES.

(a) In General.--Section 274A(h) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)) is amended by adding at
the end the following:
``(4) Backpay remedies.--Backpay or other monetary relief
for unlawful employment practices shall not be denied to a
present or former employee as a result of the employer's or
the employee's--
``(A) failure to comply with the requirements of this
section; or
``(B) violation of a provision of Federal law related to
the employment verification system described in subsection
(b) in establishing or maintaining the employment
relationship.''.
(b) Effective Date.--The amendment made by subsection (a)
shall apply to any failure to comply or any violation that
occurs prior to, on, or after the date of enactment of this
title.

Subtitle B--Fair Labor Standards Act Amendments

SEC. 711. SHORT TITLE.

This subtitle may be cited as the ``Workers' Minimum Wage
and Overtime Rights Restoration Act of 2004''.

SEC. 712. FINDINGS.

Congress finds the following with respect to the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.) (in this
subtitle referred to as the ``FLSA''):
(1) Since 1974, the FLSA has regulated States with respect
to the payment of minimum wage and overtime rates. In Garcia
v. San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985), the Supreme Court upheld Congress's constitutional
authority

[[Page S1308]]

to regulate States in the payment of minimum wages and
overtime. The prohibitions of the FLSA remain in effect and
continue to apply to the States.
(2) Wage and overtime violations in employment remain a
serious problem both nationally and among State and other
public and private entities receiving Federal financial
assistance, and has invidious effects on its victims, the
labor force, and the general welfare and economy as a whole.
For example, seven State governments have no overtime laws at
all. Fourteen State governments have minimum wage and
overtime laws; however, they exclude employees covered under
the FLSA. As such, public employees, since they are covered
under the FLSA are not protected under these State laws.
Additionally, four States have minimum wage and overtime laws
which are inferior to the FLSA. Further, the Department of
Labor continues to receive a substantial number of wage and
overtime charges against State government employers.
(3) Private civil suits by the victims of employment law
violations have been a crucial tool for enforcement of the
FLSA. In Alden v. Maine, 527 U.S. 706 (1999), however, the
Supreme Court held that Congress lacks the power under the
14th amendment to the Constitution to abrogate State
sovereign immunity to suits for legal relief by individuals
under the FLSA. The Federal Government has an important
interest in ensuring that Federal financial assistance is not
used to facilitate violations of the FLSA, and private civil
suits for monetary relief are a critical tool for advancing
that interest.
(4) After the Alden decision, wage and overtime violations
by State employers remain unlawful, but victims of such
violations lack important remedies for vindication of their
rights available to all other employees covered by the FLSA.
In the absence of the deterrent effect that such remedies
provide, there is a great likelihood that State entities
carrying out federally funded programs and activities will
use Federal financial assistance to violate the FLSA, or that
the Federal financial assistance will otherwise subsidize or
facilitate FLSA violations.
(5) The Supreme Court has upheld Congress's authority to
condition receipt of Federal financial assistance on
acceptance by State or other covered entities of conditions
regarding or related to the use of those funds, as in Cannon
v. University of Chicago, 441 U.S. 677 (1979).
(6) The Court has further recognized that Congress may
require State entities, as a condition of receipt of Federal
financial assistance, to waive their State 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).
(7) In the wake of the Alden decision, it is necessary, in
order to foster greater compliance with, and adequate
remedies for violations of, the FLSA, particularly in
federally funded programs or activities operated by State
entities, to require State entities to consent to a waiver of
State sovereign immunity as a condition of receipt of such
Federal financial assistance.
(8) The Supreme Court has repeatedly held that State
sovereign immunity does not bar suits for prospective
injunctive relief brought against State officials acting in
their official capacity, as in Ex parte Young (209 U.S. 123
(1908)). The injunctive relief available in such suits under
the FLSA will continue to be the same as that which was
available under those laws prior to enactment of this
subtitle.

SEC. 713. PURPOSES.

The purposes of this subtitle 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 FLSA as are
available to other employees under the FLSA, and that were
available to State employees prior to the Supreme Court's
decision in Alden v. Maine, 527 U.S. 706 (1999);
(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 FLSA; and
(3) to affirm that suits for injunctive relief are
available against State officials in their official
capacities for violations of the FLSA.

SEC. 714. REMEDIES FOR STATE EMPLOYEES.

Section 16 of the Fair Labor Standards Act of 1938 (29
U.S.C. 216) is amended by adding at the end the following:
``(f)(1) 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.
``(2) In this subsection, 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).''.

Mr. HARKIN. Mr. President, I am proud to cosponsor the Fairness and
Individual Rights Necessary to Ensure a Stronger Society: The Civil
Rights Act of 2004, known as the Fairness Act. In recent years. the
Supreme Court has worked to chip away at civil rights laws. This
legislation is designed to address many of these decisions,
particularly with respect to statutes governing recipients of federal
assistance.
This bill is important to all Americans because it ensures that
everyone will be treated with fairness and equity under the laws of
this country. As a longstanding advocate for disability rights, I am
particularly pleased that this bill will reverse some decisions that
have limited civil rights protections for people with disabilities.
For example, this legislation will reverse some Supreme Court cases
which limit the damage awards for intentional discrimination. A recent
egregious example is Barnes v. Gorman, 536 U.S. 181, 2002. This case
was brought by an individual who used a wheelchair and was forced into
a police van that was not equipped with the proper restraints. Despite
his objections to the officers, the individual was strapped in with
improper belts that came loose, throwing him to the floor. The Supreme
Court held that this individual could not seek punitive damages under
the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act for this mistreatment. The Fairness Act will restore
his rights and those of others who have suffered discrimination.
It will also reverse Buchannon Bd. & Care Home, Inc. v. West Virginia
Dep't of Health & Human Resources, 532 U.S. 598, 2001. In that case,
the defendant had been sued under the ADA and the Fair Housing Act. The
Court held that even if the lawsuit causes the defendants to
voluntarily make changes, the plaintiff cannot recover attorneys' fees
unless he or she has been awarded relief by a court. This case has made
it extremely difficult to find attorneys to take disability cases.
The Fairness Act will also clarify that passengers with disabilities
may sue for violations of the Air Carriers Access Act, ACCA, and its
regulations. A circuit court recently applied the Supreme Court's
decision in Alexander v. Sandoval, 532 U.S. to prohibit suits under the
ACAA. Congress intended that individuals have the ability to seek
redress for violations of this statute.
The bill, however, does not address individuals with disabilities in
some areas because Congress already has provided clear protection for
them. So, for example, Congress has clearly indicated that a private
right of action exists to enforce disparate impact disability-based
discrimination under Section 504 of the Rehabilitation Act. Congress
approved of the regulations promulgated to implement section 504 and
incorporated these regulations into the statutory requirements of the
Americans with Disabilities Act of 1990.
The bill also does not address the disability-specific negative
decisions of the Supreme Court. These decisions have undermined the ADA
by dramatically narrowing those who are covered under the Act and
imposing other restrictions. As the lead sponsor of the ADA in the
Senate, I believe that these cases directly conflict with congressional
intent. I am working with the disability community and others to
address these cases.
The Fairness Act is aptly named. It is designed to ensure that
everyone is treated equally under the law and that America will be a
Nation that protects and enforces the civil rights of all its citizens.
______

By Mr. FRIST (for himself, Ms. Landrieu, Mr. Cochran, Mr. DeWine,
Mr. Bond, Mr. Warner, Mr. Talent, and Mrs. Hutchison):
S. 2091. A bill to improve the health of health disparity population;
to the Committee on Health, Education, Labor, and Pensions.
Mr. FRIST. Mr. President, I am proud to join today with Senator Mary
Landrieu, Senator Thad Cochran, Senator Mike DeWine, Senator
Christopher Bond, Senator James Talent, Senator John Warner, and
Senator Kay Bailey Hutchison to introduce the ``Closing the Health Care
Gap Act of 2004.''
Earlier today, I was pleased to be joined at a press conference by an
impressive array of leaders in this fight--Dr. Louis Sullivan, Dr. Rene
Rodriguez, Dr. Randall Maxey, Dr. John Maupin, and Dr. James Gavin. I
appreciate their support for this legislation, and also appreciate the
support

[[Page S1309]]

of other national leaders committed to closing the health care
disparity gap in America.
Last May, in a speech to graduating students and families at
Morehouse University's School of Medicine, I outlined a framework for
action to combat disparities. Since then, I have reached out broadly
and worked with a wide range of stakeholders and leaders to gather
their input and ideas to ensure the legislation we are introducing
today includes the best possible strategies to eliminate health
disparities. I am also proud to be joined today by a number of
colleagues who are committed to this cause. I particularly want to
thank Senator Landrieu for working across party lines on this
bipartisan legislation.
As former Surgeon General Louis W. Sullivan, MD, said at a press
briefing earlier today on this legislation, ``[e]thnic minorities
represent the fastest growing segment of the U.S. population, and
therefore, it is critical that we have a sustained and coordinated
commitment to addressing this national problem. The ``Closing the
Health Care Gap Act'' seeks to do that. . .''
This legislation builds on past bipartisan efforts to address
disparities in our health care system--most importantly, the ``Minority
Health and Health Disparities Research and Education Act of 2000,''
which I authored with Senator Edward Kennedy.
The legislation we are introducing today goes much farther.
Over recent years, we have made tremendous advances in our knowledge
of and fight against disease. But we know that millions of Americans
still experience disparities in health outcomes as a result of
ethnicity, race, gender, or limited access to quality health care. For
example, disparity populations exhibit poorer health outcomes and have
higher rates of HIV/AIDS, diabetes, infant mortality, cancer, heart
disease, and other illnesses.
African Americans and Native Americans die younger than any other
racial or ethnic group.
African Americans and Native American babies die at significantly
higher rates than the rest of the population.
African Americans, Native Americans, and Hispanic Americans are at
least twice as likely to suffer from diabetes and experience serious
complications from diabetes.
These gaps are simply unacceptable in America today. Let me repeat,
they are unacceptable. And, today, we begin a new and aggressive effort
to address these inequities.
The root causes of the health care disparities are multiple and
certainly complex. That is why we need a broad and comprehensive
approach to reduce and eliminate these disparities. This legislation
takes a bold step in that direction.
Many of our Nation's smartest minds have examined this problem in
detail. The Institute of Medicine (IOM) in its landmark report
``Unequal Treatment,'' concluded that health care disparities are
caused by socioeconomic factors, language barriers, access to services
problems, behavioral risk factors, and cultural issues including,
unfortunately, mistrust and misunderstanding of some patients toward
the health care system.
The ``Closing the Health Care Gap Act'' directly addresses the root
causes of health care disparities by focusing on five key areas:
expanding access to quality health care; strengthening national
leadership efforts and coordination; helping increase the diversity of
health professionals; promoting more aggressive health professional
education intended to reduce barriers to care; and enhancing research
to identify sources of racial, ethnic, and geographic disparities and
assess promising intervention strategies.
More specifically, this bill: promotes improved understanding of the
quality of health care delivered to racial and ethnic minorities and
health disparity populations; improves collection and reporting of data
on the health care of racial and ethnic minorities and health disparity
populations; reduces some of the fragmentation of health care delivery
experienced by disparity populations; strengthens the doctor-patient
relationship by providing a series of tools to improve communication
and continuity of care; supports the use of community health workers;
supports the implementation of multidisciplinary treatment and
preventive care teams; improves education and information to allow
patients to better manage and control their own care; and increases the
proportion of racial and ethnic minorities among health professionals.

It is important that we act, as well, because health care disparities
magnify many of the quality deficiencies in our overall health care
system. This point was well documented by the IOM in a series of
reports issued during the past several years. Therefore, the bill takes
aggressive steps to improve the quality of health care for all
Americans.
A key part of this effort necessarily involves the need to strive for
greater standardization of health data collection. At the same time, we
must ensure that this information allows us to better identify and
address gaps in our health care system by including important
information about patients' race and ethnicity.
While the Federal Government has a critical role to play, it is
important to remember that government alone is incapable of closing the
care and treatment gaps which exist in our health care system.
Therefore, the legislation promotes partnerships between the Government
and the private sector, and fosters collaboration at the community
level to improve care, as well as access to care.
The bill expands access to quality health care for minority and
underserved patients through a community-based model that seeks to help
patients utilize health coverage that may be available, to provide
health system patient navigator services so that they may best utilize
available coverage, to emphasize health awareness, prevention and
health literacy efforts so that patients can effectively take part in
their or their children's treatment decisions, and to improve chronic
disease management.
Turning our back on these health disparity problems would be a
national failure. Every American deserves the best quality of health
care possible, regardless of their race, ethnicity, gender, or where
they live.
Again, I appreciate the commitment of many of my colleagues.
Together, I know we can make great progress against this critical
problem.
There is a growing awareness on the national level of the existence
and importance of the serious disparities in the quality of health care
that many minority and underserved Americans receive. This presents us
with an important opportunity to move forward.
My intention is to continue to build this national awareness, which
can provide the basis for bipartisan efforts to fight and reduce these
disparities. Today's bipartisan bill introduction represents a key step
in this process.
I would like to very quickly thank some of the organizations that are
supporting this bill: Interamerican College of Physicians and Surgeons,
National Hispanic Medical Association, National Medical Association,
The National Conference for Community and Justice, The Association of
Minority Health Professions Schools, National Urban League, American
Association of Family Physicians, National Patient Advocate Foundation,
National Association of Community Health Centers, Health Choice
Network, National Association of Public Hospitals, American Hospital
Association, The Endocrine Society, St. Thomas Health Services,
Ascension Health, The American Society of Transplantation.
With this strong base of initial support, the broad consensus that is
beginning to emerge on this issue, and the bipartisan commitment of so
many, it is my hope that we can make real progress toward eliminating
health care disparities and end--once and for all--this intolerable
blight on our Nation.
______

By Mrs. HUTCHISON (for herself, Mr. Brownback, Mr. Bunning, Mr.
Chambliss, and Mr. Cochran):

S. 2093. A bill to maintain full marriage tax penalty relief for
2005; to the Committee on Finance.
Mrs. HUTCHISON. Mr. President, I am pleased to introduce a bill to
continue relief from the marriage penalty--the most egregious,
antifamily provision of the Tax Code. One of my highest priorities in
the U.S. Senate has been to relieve American taxpayers of this punitive
burden.

[[Page S1310]]

Last year, I worked with my colleagues and President Bush to pass a
$350 billion jobs and economic growth package to put Americans back to
work and stimulate the economy. We are now seeing the fruits of our
efforts. The tax relief has left more money in the pockets of
individuals and small businesses, freeing the engines of the economy.
Private sector growth is strong, the stock market is up, and jobs are
being created.
One of the most important provisions of the legislation provided
immediate marriage penalty relief by raising the standard deduction and
enlarging the 15-percent tax bracket for married joint filers to twice
that of single filers. This provision will save 34 million married
couples an average of almost $600 on their 2003 tax bills.
Enacting marriage penalty relief was a giant step for tax fairness,
but it may be fleeting. Even as people begin to feel the benefits from
the relief, a tax increase looms in the near future. Since the bill was
restricted by limitations imposed by Congress, the marriage penalty
provisions will only be in effect for 2 years. In 2005, marriage will
again be a taxable event for millions of Americans.
Without relief, 48 percent of married couples will again pay more in
taxes.
Even as the economy strengthens, many families face difficult choices
in making ends meet. We must make sure we do not backtrack on this
important reform.
The benefits of marriage are well established, but without marriage
penalty relief, the Tax Code provides a significant disincentive for
people to walk down the aisle. Marriage is a fundamental institution in
our society and should not be discouraged by the IRS. Children living
in a married household are far less likely to live in poverty or to
suffer from child abuse. Research indicates they are less likely to be
depressed or have developmental problems. Scourges such as adolescent
drug use are less common in married families, and married mothers are
less likely to be victims of domestic violence.
I have sought to make full marriage penalty relief permanent.
However, given the current budget constraints and the politics of an
election year, this will be difficult. I therefore am offering this
bill to extend last year's victory for married couples for 1 year,
through 2005.
As Valentine's Day approaches, we should celebrate marriage, not
penalize it. We cannot be satisfied until couples never again must
decide between love and money. Marriage should not be a taxable event.
I call on the Senate to build on the 2003 tax cuts and say ``I do''
to extending marriage penalty relief today.
Mr. President, I ask unanimous consent that a copy 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. 2093

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 ``Marriage Penalty Relief
Extension Act of 2004''.

SEC. 2. FULL ELIMINATION OF THE MARRIAGE PENALTY FOR 2005.

(a) Standard Deduction.--Paragraph (7) of section 63(c) of
the Internal Revenue Code of 1986 (relating to applicable
percentage) is amended by striking ``174'' and inserting
``200''.
(b) 15-Percent Bracket.--Subparagraph (B) of section
1(f)(8) of the Internal Revenue Code of 1986 (relating to
applicable percentage) is amended by striking ``180'' and
inserting ``200''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2003.
(d) Application of EGTRRA Sunset to This Section.--Each
amendment made by this section shall be subject to title IX
of the Economic Growth and Tax Relief Reconciliation Act of
2001 to the same extent and in the same manner as the
provision of such Act to which such amendment relates.
______

By Mr. CAMPBELL:
S.J. Res. 27. A joint resolution recognizing the 60th anniversary of
the Allied landing at Normandy during World War II; to the Committee on
the Judiciary.
Mr. CAMPBELL. Mr. President, it is a privilege to introduce a joint
resolution commemorating the 60th anniversary of the June 6, 1944
landings in Normandy that paved the way for the liberation of Europe.
Operation Overlord, code named D-Day, was the culmination of months of
planning and strategic air attacks. Under cover of darkness 18,000
British and American airborne forces were deployed in the initial phase
of the operation commanded by Supreme Allied Commander General Dwight
D. Eisenhower. Combined Allied forces landed at Utah, Omaha, Gold, Juno
and Sword as part of the largest air, land, and sea invasion ever
undertaken. In all, over 5,000 ships and landing craft, 10,000
airplanes and 150,000 Allied forces took part in the operation.
An estimated 70,000 Americans took part in D-Day operations,
including 225 U.S. Rangers who scaled the cliffs at Pointe du Hoc to
capture German heavy artillery emplacements. American troops also
landed at Utah beach, and at Omaha beach where they faced a myriad of
challenges, including high seas, mines and elite German infantry
forces.
In a radio address and prayer to the American people on the evening
of June 6, President Franklin D. Roosevelt laid out the mission
undertaken by G.I.s and Allied forces: ``They fight not for the lust of
conquest, They fight to liberate. They fight to let justice arise, and
tolerance and goodwill among all Thy people. They yearn but for the end
of battle, for their return to the haven of home.'' During the evening
of June 6, 1944 church bells tolled throughout America and in
Philadelphia the Liberty Bell was rung as Americans awaited word from
the rocky battlefield of northern France.
On that fateful day, 1,465 Americans laid down their lives on the
field of battle. Another 3,184 were wounded, 1,928 missing, and 26
captured. In the days and weeks to follow, thousands more would spill
their blood on French soil to liberate Europe. D-Day ushered in a
series of battles over the next three months until the liberation of
Paris in late August 1944.
In a very real sense, the fate of Europe hung in the balance of the
success or failure of the D-Day operations. As a senior member of the
Committee on Veterans Affairs, I am especially mindful of the
tremendous sacrifice made by those men and women of the uniformed
services who served with distinction at D-Day and throughout the course
of World War II. Almost forty percent of U.S. service men and women
were volunteers, with the duration of service for all troops averaging
33 months. Nearly 300,000 Americans made the supreme sacrifice during
World War II, including the valiant troops that took part in D-Day.
I would take this opportunity to recognize the World War II military
service of current members of the United States Senate: the Senator
from Hawaii, Mr. Inouye; the Senator from South Carolina, Mr. Hollings;
the Senator from Alaska, Mr. Stevens; the Senator from Virginia, Mr.
Warner; the Senator from New Jersey, Mr. Lautenberg; and the Senator
from Hawaii, Mr. Akaka.
As Chairman of the Commission on Security and Cooperation in Europe,
I had the privilege to lead a delegation of colleagues to the Normandy
American Cemetery in July 2001, where we participated in ceremonies
honoring Americans killed in D-Day operations. Maintained by the
American Battle Monuments Commission, the cemetery is the final resting
place for 9,386 American service men and women and honors the memory of
the 1,557 missing. The superintendent of the cemetery noted that each
year the sea surrenders the remains of Americans who fought and died in
the service of freedom at home and abroad.
The Normandy American Cemetery, Mr. President, is the resting place
for 100 Coloradans who gave their lives on the field of battle. From
Toffoli and Sweeney to Martinez the roster is a testament to diversity
of those from my home state of Colorado who answered the call to defend
freedom along the rocky coast of a distant land.
I urge my colleagues to act quickly on this resolution which will
commemorate the 60th anniversary of D-Day and honor those who so
bravely served in that effort.
I ask unanimous consent that the text of the resolution be printed in
the Record.
There being no objection, the joint resolution was ordered to be
printed in the Record, as follows:

[[Page S1311]]

S.J. Res. 27

Whereas June 6, 2004, marks the 60th anniversary of D-Day,
the first day of the Allied landing at Normandy during World
War II by American, British, and Canadian troops;
Whereas the D-Day landing, known as Operation Overlord, was
the most extensive amphibious operation ever to occur,
involving on the first day of the operation 5,000 naval
vessels, more than 11,000 sorties by Allied aircraft, and
153,000 soldiers, sailors, and airmen of the Allied
Expeditionary Force;
Whereas the bravery and sacrifices of the Allied troops at
5 separate Normandy beaches and numerous paratrooper and
glider landing zones began what Allied Supreme Commander
Dwight D. Eisenhower called a ``Crusade in Europe'' to end
Nazi tyranny and restore freedom and human dignity to
millions of people;
Whereas that great assault by sea and air marked the
beginning of the end of Hitler's ambition for world
domination;
Whereas American troops suffered over 6,500 casualties on
D-Day; and
Whereas the people of the United States should honor the
valor and sacrifices of their fellow countrymen, both living
and dead, who fought that day for liberty and the cause of
freedom in Europe: Now, therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That
Congress--
(1) recognizes the 60th anniversary of the Allied landing
at Normandy during World War II; and
(2) requests the President to issue a proclamation calling
on the people of the United States to observe the anniversary
with appropriate ceremonies and programs to honor the
sacrifices of their fellow countrymen to liberate Europe.

____________________