[Congressional Record Volume 152, Number 106 (Thursday, August 3, 2006)]
[Senate]
[Pages S8841-S8844]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DeWINE:
  S. 3823. A bill to amend the Americans with Disabilities Act of 1990 
and the Age Discrimination in Employment Act of 1967 to provide a means 
to combat discrimination on the basis of age or disability, by 
conditioning a State's receipt or use of Federal financial assistance 
on the State's waiver of immunity from suit for violations under such 
acts; to the Committee on Health, Education, Labor, and Pensions.
  Mr. DeWINE. Mr. President, I am pleased to introduce the Civil Rights 
Restoration Act of 2006. Today, there is a serious loophole in our 
Nation's civil rights laws. If you are the victim of age or disability 
discrimination and you work in the private sector, you can sue your 
employer in Federal court for money damages. If, however, you work for 
one of the States, you cannot sue in Federal court for money damages 
under either the Age Discrimination in Employment Act, ADEA, or the 
Americans with Disabilities Act, ADA.
  This loophole is not the result of anything that we have done in 
Congress. In fact, when we passed the ADEA and the ADA, we clearly 
provided that the States, just like private entities, cannot 
discriminate on the basis of age or disability. And, we said that if 
they do, they can be sued for

[[Page S8842]]

money damages in Federal court. In our view, the right of an individual 
to be free from discrimination on the basis of age or disability did 
not depend on where one works.
  Instead, this loophole was created by the Supreme Court. In several 
recent decisions, the Supreme Court has reinterpreted the 11th 
amendment to the Constitution and severely limited Congress's power to 
subject States to lawsuits under section 5 of the 14th amendment. In 
Kimel v. Florida Board of Regents, 528 U.S. 62, 2000, for instance, the 
Court held that Congress lacks the power to subject States to suit for 
money damages under the ADEA. In Board of Trustees of the University of 
Alabama v. Garrett, 531 U.S. 356, 2001, the Court again held that 
Congress lacked the power to subject States to suit for money damages, 
this time under title I of the ADA.
  Although individuals can still sue the States for injunctive relief, 
the Supreme Court's restriction on suits for money damages has taken 
away an essential tool for the victims of discrimination. As one 
witness explained during hearings on the ADA, ``civil rights laws 
depend heavily on private enforcement.'' ``[D]amages are essential to 
provide private citizens a meaningful opportunity to vindicate their 
rights. Attempts to weaken the remedies available under the ADA are 
attacks on the ADA itself, and their success would make the ADA an 
empty promise of equality.''
  Unfortunately, by restricting the ability of individuals to sue for 
money damages, the Garrett and Kimel decisions have severely limited 
the ``promise of equality'' guaranteed by the ADA and the ADEA. 
Lawsuits for money damages are the primary means for private 
individuals to obtain redress for discrimination. They promote 
deterrence and provide an important way for the Federal Government to 
enforce antidiscrimination laws. By eliminating the ability of State 
employees to sue their employers for such damages, the Supreme Court's 
decisions in Kimel and Garrett have made enforcement of these civil 
rights laws more difficult.
  In addition, the Garrett and Kimel decisions have created a legal 
regime that gives State employees fewer rights than other employees 
covered by the ADA and the ADEA. At present, employees of local 
governments and employees in the private sector are entitled to sue in 
Federal court for money damages for violations of the ADA or the ADEA. 
For the more than 2,500,000 individuals who work for the States, 
however, such relief is no longer available.
  Finally, the Garrett and Kimel decisions themselves are hardly a 
model of clarity. In fact, several scholars have said that they find 
them to be inconsistent with prior case law, at odds with the clear 
language of the Constitution, disrespectful of Congress's role in our 
system of government, and insensitive to the plight of those who are 
the victims of discrimination.
  In my opinion, Chairman Specter of the Judiciary Committee put it 
well when he referred to these cases as ``inexplicable decisions.'' 
During the confirmation hearing for Chief Justice Roberts, Chairman 
Specter said that the test that emerges from these Supreme Court 
decisions ``has no grounding in the Constitution, no grounding in the 
Federalist Papers, no grounding in the history of the country, [and] 
comes out of thin air[.]''
  I happen to agree with him. In my view, Garrett and Kimel were 
wrongly decided. And, they should be overturned.
  My bill will do just that. The Civil Rights Restoration Act of 2006 
would provide that any State that receives Federal financial assistance 
must allow plaintiffs the ability to sue the State for money damages in 
Federal court if that State violates the terms of the ADEA or the ADA. 
Of course, those plaintiffs must meet all the other requirements to 
bring such a suit. My bill does not otherwise change the substance of 
the ADA or ADEA, and it does not guarantee an outcome. It merely gives 
the victims of discrimination access to federal courts so that they may 
seek the relief to which they are otherwise entitled. In other words, 
it will give the victims of age and disability discrimination the same 
rights that we intended to give them when we first passed the ADEA and 
the ADA.
  This is a simple bill with a simple purpose: it closes a loophole 
created by the Supreme Court; it re-establishes the original intent of 
the ADA and the ADEA; and it restores to the victims of discrimination 
the rights to which they have long been entitled. I am proud to 
introduce the Civil Rights Restoration Act of 2006, and I ask my 
colleagues to support it.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3823

       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 ``Civil Rights Restoration Act 
     of 2006''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) For over 30 years, Congress has outlawed employment 
     discrimination by State employers. In 1974, in the face of 
     pervasive age discrimination by State and other employers, 
     Congress amended the Age Discrimination in Employment Act of 
     1967 (29 U.S.C. 621 et seq.) (referred to in this Act as the 
     ``ADEA'') to outlaw age discrimination by such employers. In 
     1990, Congress passed the Americans with Disabilities Act of 
     1990 (42 U.S.C. 12101 et seq.) (referred to in this Act as 
     the ``ADA'') to provide a ``clear and comprehensive national 
     mandate'', as described in section 2(b)(1) of that Act (42 
     U.S.C. 12101(b)(1)), to eliminate discrimination against 
     individuals with disabilities, even when that discrimination 
     came at the hands of States, including State employers.
       (2)(A) Many years have passed since the enactment of those 
     laws, but discrimination on the basis of age or disability 
     remains a serious problem in the United States.
       (B) Discrimination has invidious effects on its victims, 
     the workforce, the economy as a whole, and government 
     revenues. Discrimination on the basis of age or disability--
       (i) increases the risk of unemployment among older workers 
     or individuals with disabilities, who may, as a result of the 
     discrimination, be forced to depend on government programs;
       (ii) adversely affects the morale and productivity of the 
     workforce;
       (iii) perpetuates unwarranted stereotypes about the 
     abilities of older workers or individuals with disabilities, 
     thus reducing the effectiveness of government programs 
     promoting nondiscrimination and integration; and
       (iv) prevents the best use of both public and private 
     resources.
       (3) Since the passage of the ADA and the ADEA, private 
     civil suits by the victims of discrimination have been an 
     essential tool in combating illegal discrimination. As one 
     witness explained during hearings on the legislation that 
     became the ADA, ``civil rights laws depend heavily on private 
     enforcement''. ``[D]amages are essential to provide private 
     citizens a meaningful opportunity to vindicate their rights. 
     Attempts to weaken the remedies available under the ADA are 
     attacks on the ADA itself, and their success would make the 
     ADA an empty promise of equality.''. Field Hearing on 
     Americans with Disabilities Act, Before the Subcommittee on 
     Select Education of the House Committee on Education and 
     Labor, 101st Cong. 68 (1989) (statement of Mr. Howard Wolf).
       (4) In recent years, however, the Supreme Court has created 
     a serious loophole in the ADA and the ADEA, weakening their 
     ``promise of equality''. In Kimel v. Florida Board of 
     Regents, 528 U.S. 62 (2000), for instance, the Supreme Court 
     held that Congress lacked the power to subject States to suit 
     for money damages under the ADEA. In Board of Trustees of the 
     University of Alabama v. Garrett, 531 U.S. 356 (2001), the 
     Court again held that Congress lacked the power to subject 
     States to suit for money damages, this time under title I of 
     the ADA (42 U.S.C. 12111 et seq.).
       (5) As a result of those decisions, State employees who are 
     victimized by discrimination on the basis of age or 
     disability cannot sue in Federal court for money damages to 
     vindicate their Federal rights. Those decisions have, in 
     turn, had 2 unfortunate consequences.
       (6) First, they have undermined the enforcement of the ADA 
     and the ADEA. Lawsuits for money damages are the primary 
     means for private individuals to obtain redress for 
     discrimination. In addition, lawsuits for money damages 
     promote deterrence and provide an important way for the 
     Federal Government to enforce antidiscrimination laws. By 
     eliminating the ability for State employees to sue their 
     employers for such damages, the Supreme Court's Kimel and 
     Garrett decisions have made enforcement of these civil rights 
     laws more difficult.
       (7) Second, they have created a legal regime that gives 
     State employees fewer rights than other employees covered by 
     the ADA and the ADEA. At present, employees of local 
     governments and employees in the private sector are entitled 
     to sue in Federal court for money damages for violations of 
     the ADA or the ADEA. For the more than 2,500,000 individuals 
     who work for the States, however, such relief is no longer 
     available.

[[Page S8843]]

       (8) Although most States have laws in effect that bar 
     discrimination on the basis of age or disability, those laws 
     are insufficient to provide redress for those individuals who 
     are subjected to discrimination by State employers or 
     agencies.
       (9) A few States apply the doctrine of sovereign immunity 
     to completely bar State employees from suing in State court 
     for age discrimination. In several States, it is still 
     unclear whether State law claims can proceed in State court 
     for age discrimination or whether those claims are barred by 
     sovereign immunity. Finally, there are many States that 
     severely limit or restrict the kinds of remedies or monetary 
     relief available to State employees who bring suits for 
     discrimination on the basis of age.
       (10) The same problems exist with State laws regarding 
     disability discrimination. In fact, one recent analysis has 
     shown that there are significant gaps in the coverage and 
     remedies available under State laws outlawing discrimination.
       (11) Thus, while State laws are important in trying to stem 
     discrimination on the basis of age or disability, they are 
     currently inadequate to close the loophole created by the 
     Kimel and Garrett decisions.
       (12) In the years since the Kimel and Garrett decisions, 
     many States have also challenged the constitutionality of 
     title II of the ADA (42 U.S.C. 12131 et seq.). These 
     challenges have forced individuals with disabilities into 
     extensive litigation about sovereign immunity when they seek 
     redress for disability discrimination in such fundamental 
     areas as access to the courts, access to community-based 
     services, access to State-sponsored health insurance, access 
     to public transportation, access to handicapped parking, 
     access to mental health services, and access to public 
     education. The Supreme Court has issued several decisions 
     that invite even more litigation. In Tennessee v. Lane, for 
     instance, the Court held that, under the particular facts of 
     that case, a plaintiff could sue the State for money damages 
     under title II of the ADA, even though the Court, in the 
     Garrett case, had barred a claim for such damages under title 
     I of that Act (42 U.S.C. 12111 et seq.) Tennessee v. Lane, 
     541 U.S. 509 (2004).
       (13) After the Lane decision, some claims against States 
     are permitted to proceed under the ADA, while others are not. 
     This has made it extremely difficult for the victims of 
     discrimination, States, and Congress to determine precisely 
     when States are subject to suit under the ADA and when they 
     are not. The confusion has spawned a significant amount of 
     litigation in the lower Federal courts. This jurisprudence 
     has even caused the Chairman of the Committee on the 
     Judiciary of the Senate, Senator Arlen Specter, to condemn 
     the Court's recent decisions as ``inexplicable''.
       (14) The Constitution provides Congress with the power to 
     enact legislation--
       (A) to clarify that, despite the Supreme Court's decisions 
     in the Kimel and Garrett cases, the States are subject to 
     suit just like other entities when the States violate the ADA 
     and the ADEA; and
       (B) to end the confusion created by the Court's decision in 
     the Lane case.
       (15) Under section 8 of article I of the Constitution, 
     ``The Congress shall have power to lay and collect taxes, 
     duties, imposts and excises, to pay the debts and provide for 
     the common defense and general welfare of the United 
     States''.
       (16) Congress' power under this language, known as the 
     Spending Clause, is well-established. Under this Clause, 
     Congress has the power to require the States to abide by 
     certain conditions in exchange for receiving Federal 
     financial assistance. This authority has been recognized by 
     the Supreme Court repeatedly through the years and reaffirmed 
     recently. United States v. Butler, 297 U.S. 1 (1936) 
     (declaring that Congress may exert authority through its 
     spending power); South Dakota v. Dole, 483 U.S. 203 (1987) 
     (upholding condition requiring the establishment of a 
     drinking age of 21 years in exchange for the receipt of 
     Federal highway dollars). In fact, the Supreme Court has 
     specifically held that Congress may require a State, as a 
     condition of receiving Federal financial assistance, to waive 
     its immunity from suit for violations of Federal law. College 
     Savings Bank v. Florida Prepaid Postsecondary Education 
     Expense Board, 527 U.S. 666 (1999).
       (17) Congress has previously used its spending power to 
     require States to waive their immunity from suit in exchange 
     for receiving Federal financial assistance. For instance, the 
     provisions of section 1003 of the Rehabilitation Act 
     Amendments of 1986 (42 U.S.C. 2000d-7) provide that a State 
     shall not be immune from suit under the 11th amendment for 
     violations of section 504 of the Rehabilitation Act of 1973 
     (29 U.S.C. 794), title IX of the Education Amendments of 1972 
     (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 
     (42 U.S.C. 6101 et seq.), and title VI of the Civil Rights 
     Act of 1964 (42 U.S.C. 2000d et seq.). At least one court, 
     however, has suggested that those provisions do not apply to 
     the ADA or the ADEA. Brown v. Washington Metro Area Transit 
     Authority, No. DKC 2005-0052, 2005 U.S. Dist. LEXIS 16881 (D. 
     Md. 2005).
       (18) By requiring States to waive their immunity from suit 
     under the ADA and the ADEA in exchange for receiving Federal 
     assistance, the Federal government can ensure that Federal 
     dollars are not ``frittered away'' on unlawful 
     discrimination. Such a conditional waiver will help Congress 
     ``protect the integrity of the vast sums of money distributed 
     through Federal programs''. Sabri v. United States, 541 U.S. 
     600 (2004). ``Simple justice requires that public funds, to 
     which all taxpayers . . . contribute, not be spent in any 
     fashion which encourages, entrenches, subsidizes, or results 
     in . . . discrimination''. Lau v. Nichols, 414 U.S. 563 
     (1974). This simple principle applies whether the 
     discrimination is based on race, as in the Lau case, or age, 
     or disability, as in Barbour v. Washington Metro Area Transit 
     Authority, 374 F.3d 1161 (D.C. Cir. 2004).
       (19) Such a conditional waiver does not coerce a State in 
     any way. The Supreme Court has recognized that a State's 
     voluntary waiver of its 11th amendment right is 
     constitutional. College Savings Bank v. Florida Prepaid 
     Postsecondary Education Expense Board, 527 U.S. 666 (1999) 
     (citing Clark v. Barnard, 108 U.S. 436 (1883)). The Court has 
     explicitly recognized that a State's acceptance of Federal 
     funds constitutes a knowing agreement to a congressionally-
     imposed condition on the funds. Thus, while Congress may not 
     compel States to waive their immunity granted under the 11th 
     amendment, a voluntary State waiver condition is wholly 
     permissible. Alden v. Maine, 527 U.S. 706 (1999).
       (20) The Kimel and Garrett decisions frustrate the ability 
     of the ADA and the ADEA to protect individual rights and 
     remedy violations of Federal law. In the wake of those 
     decisions, and in recognition that State laws may be 
     insufficient to protect against discrimination on the basis 
     of age or disability, it is essential to require that States 
     waive their immunity from suit under the ADA and the ADEA for 
     those programs or activities receiving Federal financial 
     assistance.

     SEC. 3. PURPOSES.

       The purposes of this Act are--
       (1) to provide to any State employee or person aggrieved by 
     any program or activity that receives Federal financial 
     assistance the right to sue the State for money damages for 
     any violation of the ADA or the ADEA; and
       (2) to provide that 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 any employee or person aggrieved by that program 
     or activity for any violation of the ADA or the ADEA.

     SEC. 4. ABROGATION OF STATE SOVEREIGN IMMUNITY.

       (a) Age Discrimination in Employment Act of 1967.--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) Waiver of Sovereign Immunity.--
       ``(1) Waiver.--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 any employee or person aggrieved by that program 
     or activity for equitable, legal, or other relief authorized 
     by or through this Act.
       ``(2) Abrogation for constitutional violation.--In addition 
     to the abrogation of sovereign immunity already accomplished 
     by this Act, a State's sovereign immunity, under the 11th 
     amendment to the Constitution or otherwise, is abrogated for 
     any suit brought by any employee or person for equitable, 
     legal, or other relief authorized by or through this Act, for 
     conduct that violates the 14th amendment (including the 
     constitutional rights incorporated in the 14th amendment) and 
     that also violates this Act.
       ``(3) Definitions.--In this subsection:
       ``(A) Program or activity.--
       ``(i) In general.--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).
       ``(ii) Operations included.--The term includes any 
     operation carried out, funded, or arranged by an entity 
     described in clause (i) or (ii) of section 309(4)(A) of such 
     Act (42 U.S.C. 6107(4)(A)) that receives Federal financial 
     assistance, even if the entity does not use the Federal 
     financial assistance for the operation.
       ``(B) Recipient.--A State shall be considered to receive 
     Federal financial assistance for a program or activity if the 
     program or activity--
       ``(i) receives the assistance from an intermediary; and
       ``(ii) is the intended recipient under the statutory 
     provision through which the intermediary receives the 
     assistance.
       ``(C) Construction.--Nothing in this paragraph shall be 
     construed to suggest that, for purposes of this subsection or 
     title III of such Act--
       ``(i) the term `program or activity' would not include the 
     operation described in subparagraph (A)(ii), in the absence 
     of this paragraph; or
       ``(ii) a State described in subparagraph (B) would not be 
     considered to receive Federal financial assistance for a 
     program or activity, in the absence of this paragraph.''.
       (b) Title I of the Americans With Disabilities Act of 
     1990.--Section 107 of the Americans with Disabilities Act of 
     1990 (42 U.S.C. 12117) is amended by adding at the end the 
     following:
       ``(c) Waiver of Sovereign Immunity.--
       ``(1) Waiver.--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 any employee or

[[Page S8844]]

     person alleging a violation of this title (including 
     regulations promulgated under section 106) or section 503, or 
     otherwise aggrieved, by that program or activity for 
     equitable, legal, or other relief authorized by or through 
     this Act or section 1977A of the Revised Statutes (42 U.S.C. 
     1981a).
       ``(2) Abrogation for constitutional violation.--In addition 
     to the abrogation of sovereign immunity already accomplished 
     by section 502, a State's sovereign immunity, under the 11th 
     amendment to the Constitution or otherwise, is abrogated for 
     any suit brought by any employee or person for equitable, 
     legal, or other relief authorized by or through this Act or 
     section 1977A of the Revised Statutes (42 U.S.C. 1981a), for 
     conduct that violates the 14th amendment (including the 
     constitutional rights incorporated in the 14th amendment) and 
     that also violates this title (including regulations 
     promulgated under section 106) or section 503.
       ``(3) Definitions.--In this subsection:
       ``(A) Program or activity.--
       ``(i) In general.--The term `program or activity' has the 
     meaning given the term in section 504(b) of the 
     Rehabilitation Act of 1973 (29 U.S.C. 794(b)).
       ``(ii) Operations included.--The term includes any 
     operation carried out, funded, or arranged by an entity 
     described in subparagraph (A) or (B) of section 504(b)(1) of 
     such Act (29 U.S.C. 794(b)(1)) that receives Federal 
     financial assistance, even if the entity does not use the 
     Federal financial assistance for the operation.
       ``(B) Recipient.--A State shall be considered to receive 
     Federal financial assistance for a program or activity if the 
     program or activity--
       ``(i) receives the assistance from an intermediary; and
       ``(ii) is the intended recipient under the statutory 
     provision through which the intermediary receives the 
     assistance.
       ``(C) Construction.--Nothing in this paragraph shall be 
     construed to suggest that, for purposes of this subsection or 
     such section 504--
       ``(i) the term `program or activity' would not include the 
     operation described in subparagraph (A)(ii), in the absence 
     of this paragraph; or
       ``(ii) a State described in subparagraph (B) would not be 
     considered to receive Federal financial assistance for a 
     program or activity, in the absence of this paragraph.''.
       (c) Title II of the Americans With Disabilities Act of 
     1990.--Section 203 of the Americans with Disabilities Act of 
     1990 (42 U.S.C. 12133) is amended--
       (1) by inserting ``(a) In General.--'' before ``The''; and
       (2) by adding at the end the following:
       ``(b) Waiver of Sovereign Immunity.--
       ``(1) Waiver.--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 any employee or person alleging a violation of 
     this title (including regulations promulgated under section 
     204, 229, or 244) or section 503, or otherwise aggrieved, by 
     that program or activity for equitable, legal, or other 
     relief authorized by or through this Act.
       ``(2) Abrogation for constitutional violation.--In addition 
     to the abrogation of sovereign immunity already accomplished 
     by section 502, a State's sovereign immunity, under the 11th 
     amendment to the Constitution or otherwise, is abrogated for 
     any suit brought by any employee or person for equitable, 
     legal, or other relief authorized by or through this Act, for 
     conduct that violates the 14th amendment (including the 
     constitutional rights incorporated in the 14th amendment) and 
     that also violates this title (including regulations 
     promulgated under section 204, 229, or 244) or section 503.
       ``(3) Definitions.--In this subsection:
       ``(A) Program or activity.--
       ``(i) In general.--The term `program or activity' has the 
     meaning given the term in section 504(b) of the 
     Rehabilitation Act of 1973 (29 U.S.C. 794(b)).
       ``(ii) Operations included.--The term includes any 
     operation carried out, funded, or arranged by an entity 
     described in subparagraph (A) or (B) of section 504(b)(1) of 
     such Act (29 U.S.C. 794(b)(1)) that receives Federal 
     financial assistance, even if the entity does not use the 
     Federal financial assistance for the operation.
       ``(B) Recipient.--A State shall be considered to receive 
     Federal financial assistance for a program or activity if the 
     program or activity--
       ``(i) receives the assistance from an intermediary; and
       ``(ii) is the intended recipient under the statutory 
     provision through which the intermediary receives the 
     assistance.
       ``(C) Construction.--Nothing in this paragraph shall be 
     construed to suggest that, for purposes of this subsection or 
     such section 504--
       ``(i) the term `program or activity' would not include the 
     operation described in subparagraph (A)(ii), in the absence 
     of this paragraph; or
       ``(ii) a State described in subparagraph (B) would not be 
     considered to receive Federal financial assistance for a 
     program or activity, in the absence of this paragraph.''.

     SEC. 5. EFFECTIVE DATE.

       (a) Age Discrimination in Employment Act of 1967.--
       (1) In general.--With respect to a particular program or 
     activity, paragraphs (1) and (3) of section 7(g) of the Age 
     Discrimination in Employment Act of 1967 (29 U.S.C. 626(g)) 
     apply to conduct occurring on or after the day, after the 
     date of enactment of this Act, on which a State first 
     receives or uses Federal financial assistance for that 
     program or activity. Section 7(g)(2) of the Age 
     Discrimination in Employment Act of 1967 (29 U.S.C. 
     626(g)(2)) applies to all civil actions pending on that date 
     of enactment or filed thereafter.
       (2) Program or activity; receives federal financial 
     assistance.--The definition and rule specified in 
     subparagraphs (A) and (B) of section 7(g)(3) of such Act (29 
     U.S.C. 626(g)(2)) shall apply for purposes of this 
     subsection.
       (b) Americans With Disabilities Act of 1990.--
       (1) In general.--With respect to a particular program or 
     activity, paragraphs (1) and (3) of section 107(c) and 
     paragraphs (1) and (3) of section 203(b) of the Americans 
     with Disabilities Act of 1990 (42 U.S.C. 12117(c), 12133(b)) 
     apply to conduct occurring on or after the day, after the 
     date of enactment of this Act, on which a State first 
     receives or uses Federal financial assistance for that 
     program or activity. Sections 107(c)(2) and 203(b)(2) of the 
     Americans with Disabilities Act of 1990 (42 U.S.C. 
     12117(c)(2), 12133(b)(2)) apply to all civil actions pending 
     on that date of enactment or filed thereafter.
       (2) Program or activity; receives federal financial 
     assistance.--The definition and rule specified in 
     subparagraphs (A) and (B) of section 107(c)(3) of such Act 
     (42 U.S.C. 12117(c)(3)) shall apply for purposes of this 
     subsection.
                                 ______