[Congressional Record Volume 150, Number 18 (Thursday, February 12, 2004)]
[Senate]
[Pages S1295-S1308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      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

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     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.

       ``(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

[[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.
                                 ______