[Congressional Record Volume 159, Number 111 (Tuesday, July 30, 2013)]
[Senate]
[Pages S6073-S6078]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. REED (for himself and Mr. Johanns):
  S. 1387. A bill to establish a pilot program to authorize the 
Secretary of Housing and Urban Development to make grants to nonprofit 
organizations to rehabilitate and modify homes of disabled and low-
income veterans; to the Committee on Banking, Housing, and Urban 
Affairs.
  Mr. REED. Mr. President, I am proud to be once again reintroducing 
the Housing Assistance for Veterans Act, HAVEN Act, with my colleague, 
Senator Johanns.
  Last year, we joined forces to successfully pass this legislation as 
an amendment during the Senate's consideration of the National Defense 
Authorization Act, NDAA. Unfortunately, due to concerns by some on the 
Veterans' Affairs Committee, it was not included in the final version 
of the NDAA. Those concerns have been addressed in this version of the 
HAVEN Act, and I would like to thank the Veterans' Affairs Committee 
for working cooperatively with us to strengthen the legislation.
  Our veterans have made many personal sacrifices in service to our 
Nation, and we must honor our commitment to provide them with the care 
they have earned and deserve. One such way is to ensure that they have 
access to adequate housing.
  According to Rebuilding Together, 5.5 million of our veterans are 
disabled, and one and a half million are at risk of homelessness. In my 
home State of Rhode Island, according to the U.S. Census Bureau, there 
are more than 19,000 veterans with disabilities, each of whom face 
their own unique challenges in terms of their housing needs.
  The Department of Veterans Affairs, VA, has programs that assist 
veterans in adapting and improving their homes, but unfortunately, 
these programs do not extend assistance to all veterans with 
disabilities. It is clear we must do more, and with this legislation, 
we are seeking to serve all veterans with disabilities, regardless of 
the severity of the disability and whether the disability is service-
connected.

[[Page S6074]]

  The HAVEN Act will give veterans the opportunity to renovate and 
modify their existing homes by installing wheelchair ramps, widening 
doors, re-equipping rooms, and making necessary additions and 
adjustments to existing structures--all so that these homes are safer 
and more suitable for our veterans.
  Our legislation encourages key stakeholders, such as the Department 
of Housing and Urban Development, the VA, housing non-profits, and 
veterans service organizations, to work together to serve our veterans. 
In order to extend the reach of this Federal funding, grant recipients 
would be expected to either match Federal funding or make in-kind 
contributions, through encouraging volunteers to help make repairs or 
engaging businesses to donate needed supplies.
  This bill is supported by the American Legion, Veterans of Foreign 
Wars, Vietnam Veterans of America, Paralyzed Veterans of America, 
VetsFirst, a program of United Spinal Association, Iraq and Afghanistan 
Veterans of America, Habitat for Humanity, and Rebuilding Together. I 
thank Senator Johanns for working with me on this important bill, and I 
look forward to working with him and the rest of our colleagues to pass 
this legislation.
                                 ______
                                 
      By Mr. LEVIN (for himself, Mr. Durbin, Ms. Stabenow, and Mr. 
        Brown):
  S. 1388. A bill to require the Secretary of Health and Human 
Services, in consultation with the Administrator of the Environmental 
Protection Agency and the Secretary of Energy, to conduct a study on 
the public health and environmental impacts of the production, 
transportation, storage, and use of petroleum coke, and for other 
purposes; to the Committee on Health, Education, Labor, and Pensions.
  Mr. LEVIN. Mr. President, I am introducing today, with my colleagues 
Senators Durbin, Stabenow, and Brown, the Petroleum Coke Transparency 
and Public Health Study Act, which would require the Department of 
Health and Human Services to conduct a study on the health and 
environmental impacts of petroleum coke. This bill, which is a 
companion to a bill introduced by Representative Peters on June 6, 
2013, was motivated by a situation in Detroit.
  In March 2013, large piles of uncontained petroleum coke stored along 
the banks of the Detroit River became publicly visible, raising 
questions about the potential environmental and public health impacts. 
Sitting just feet from the Detroit River, the piles have grown to 
nearly three stories high over the past several months. I want to make 
sure that this low-grade fuel does not pose a threat to the people of 
Detroit or impair our waterways. The Detroit River is a valued resource 
that must be preserved and protected.
  Petroleum coke is a byproduct of refining crude oil into liquid fuels 
such as gasoline and diesel. It is a commodity that can be cofired with 
coal to produce low-cost energy. In recent years, a number of U.S. 
refineries have undergone expansions in order to accommodate increases 
in processing crude oil, including the Marathon refinery in Detroit, 
MI; the Cenovus refinery in Wood River, IL; and the BP refinery in 
Whiting, IN.
  With increases in crude oil processing in the United States and 
Canada, petroleum coke production is expected to rise. However, the 
impacts of petroleum coke on public health and the environment have not 
been fully assessed. Further, each State has different regulations for 
managing, storing, and transporting it. It is important that we 
understand the market projections for petroleum coke, how to properly 
manage it, and its potential impacts on public health and the 
environment.
  This bill would address these key knowledge gaps by requiring a 
comprehensive study on petroleum coke. The study would include an 
analysis of the public health and environmental impacts of the 
production, transportation, storage, and use of petroleum coke; an 
assessment of best practices for storing, transporting, and managing 
petroleum coke; and a quantitative analysis of current and projected 
domestic petroleum coke production and utilization locations.
  We should ensure that energy production occurs in a diligent and 
responsible manner and does not harm public health or our environment. 
With a changing energy market and limited dollars, we must have a 
comprehensive understanding of how to effectively and efficiently 
manage our future energy supply. This bill would give us the tools to 
properly manage petroleum coke production with good environmental and 
public stewardship.
                                 ______
                                 
      By Mr. KING (for himself and Mr. Blunt):
  S. 1390. A bill to establish an independent advisory committee to 
review certain regulations, and for other purposes; to the Committee on 
Homeland Security and Governmental Affairs.
  Mr. KING. Mr. President, I would like to offer a few words on a bill 
that I am introducing today with my colleague and friend, Senator Roy 
Blunt of Missouri. Upon my arrival to the Senate, Senator Blunt and I 
shared a conversation in which we discovered our interest in proposing 
pragmatic legislation that would go about easing the ever-growing 
regulatory burden borne by businesses across the country. Since then, 
we have worked together to craft a bill that takes a reasonable 
approach toward thinning out older regulations that have outlived their 
utility, all while retaining essential congressional oversight. Today 
we introduce the Regulatory Improvement Act of 2013, which I believe 
will achieve this goal.
  The Regulatory Improvement Act will create an independent Regulatory 
Improvement Commission that will be tasked with reviewing outdated 
regulations with the goals of modifying, consolidating, or repealing 
regulations in order to reduce compliance costs, encourage growth and 
innovation, and improve competitiveness. The composition of the 
commission will be determined by congressional leadership and the 
President, and the commission will be tasked with identifying a single 
sector or area of regulations for consideration. After extensive review 
involving broad public and stakeholder input, the commission will 
submit to Congress a report containing regulations in need of 
streamlining, consolidation, or repeal. This report will enjoy 
expedited legislative procedures and will be subject to an up-or-down 
vote in both houses of Congress without amendment.
  Let me be clear: the intent of this bill is not to engage in a 
wholesale dismantling of the existing regulatory regime. In particular, 
I share some of my colleagues concerns that ``regulatory reform'' can 
be employed as a euphemism to disguise an undercurrent of efforts to 
completely undo significant legislation--from the Clean Air Act to the 
Affordable Care Act. I do not support such efforts. That said, I 
believe there is broad bipartisan consensus that regulations have a 
cumulative effect and that Congress has neither the expertise nor 
formal mechanisms through which it can effectively and expeditiously 
conduct retrospective analyses. A Regulatory Improvement Commission 
would provide a vehicle for the review of older regulations and 
provided much-needed relief to businesses struggling to comply with 
layers of competing or even duplicative regulations.
  In a larger sense, this bill seeks to reclaim some of the ground that 
Congress has ceded to executive agencies in recent years. From my 
vantage point, the current regulatory structure has become akin to a 
fourth, unchecked branch of government. As an institution, we must find 
ways to reverse this disturbing trend and reestablish an appropriate 
role of congressional oversight. Therefore, I am glad to introduce this 
bipartisan bill that offers a reasonable way to revisit older 
regulations, and I thank Senator Blunt for his interest and support of 
the proposal.
                                 ______
                                 
      By Mr. HARKIN (for himself, Mr. Grassley, and Mr. Leahy):
  S. 1391. A bill to amend the Age Discrimination in Employment Act of 
1967 and other laws to clarify appropriate standards for Federal 
employment discrimination and retaliation claims, and for other 
purposes; to the Committee on Health, Education, Labor, and Pensions.
  Mr. HARKIN. Mr. President, today I join with my senior colleague from 
Iowa, Senator Grassley, and with the distinguished chair of the 
Judiciary

[[Page S6075]]

Committee, Senator Leahy, in reintroducing the Protecting Older Workers 
Against Discrimination Act.
  The need for this legislation was vividly demonstrated by the 
experience of an Iowan--Jack Gross. Mr. Gross gave the prime of his 
life, a quarter century of loyal service, to one company. Despite Mr. 
Gross's stellar work record, FBL Financial demoted him and other 
employees over the age of 50 and gave his job to a younger employee.
  Expressly to prevent this kind of discrimination, in 1967 Congress 
passed the Age Discrimination in Employment Act, ADEA. Modeled from and 
using the same language as Title VII of the Civil Rights Act of 1964--
which prohibits employment discrimination on the basis of race, sex, 
national origin and religion--the ADEA makes it unlawful to 
discriminate on the basis of age.
  When Mr. Gross sought to enforce his rights under this law, a jury of 
Iowans heard the facts and found that his employer discriminated 
against him because of his age. That jury awarded him almost $47,000 in 
lost compensation.
  The case was ultimately appealed to the Supreme Court. In June 2009, 
in Gross v. FBL Financial, Inc., the Court ruled against Mr. Gross, and 
in doing so made it harder for those with legitimate age discrimination 
claims to prevail under the ADEA. In fact, on remand, despite the fact 
Mr. Gross had established that age discrimination was a factor in his 
demotion, he lost his retrial.
  For decades, the law was clear. In 1989, in Price Waterhouse v. 
Hopkins, the Court ruled that if a plaintiff seeking relief under Title 
VII of the Civil Rights Act demonstrated that discrimination was a 
``motivating'' or ``substantial'' factor behind the employer's action, 
the burden shifted to the employer to show it would have taken the same 
action regardless of the plaintiff's membership in a protected class. 
As part of the Civil Rights Act of 1991, Congress codified the 
``motivating factor'' standard with respect to Title VII discrimination 
claims.
  Since the ADEA uses the same language as Title VII, was modeled from 
it, and had been interpreted consistent with the Civil Rights Act, 
courts rightly and consistently held that, like a plaintiff claiming 
discrimination on the basis of race, sex, religion and national origin, 
a victim bringing suit under the ADEA need only show that membership in 
a protected class was a ``motivating factor'' in an employer's action. 
If an employee showed that age was one factor in an employment 
decision, the burden was on the employer to show it had acted for a 
legitimate reason other than age.
  In Gross, the Court, addressing a question on which it did not grant 
certiorari, tore up this decades' old standard. In its place, the Court 
imposed a standard that makes it prohibitively difficult for a victim 
to prove age discrimination. According to the Court, a plaintiff bears 
the full burden of proving that age was not only a ``motivating'' 
factor but the ``but for'' factor, or decisive factor. And, 
unfortunately, just last month the Supreme Court, in University of 
Texas Southwestern Medical Center v. Nassar, extended Gross to 
retaliation cases under Title VII of the Civil Rights Act. Moreover, 
lower courts have extended Gross to other civil rights claims, 
including cases arising under the Americans with Disabilities Act and 
the Rehabilitation Act.
  The extremely high burden Gross imposes radically undermines workers' 
ability to hold employers accountable. As Professor Helen Norton 
testified to the HELP Committee, ``Gross entirely insulates from 
liability even an employer who confesses discrimination so long as that 
employer had another reason for its decision. By permitting employers 
to escape liability altogether even for a workplace admittedly infected 
by discrimination, with no incentive to refrain from similar 
discrimination in the future, the Gross rule thus undermines Congress's 
efforts to stop and deter workplace discrimination.''
  Bear in mind, unlawful discrimination is often difficult to detect. 
Obviously, those who discriminate do not often admit they are acting 
for discriminatory reasons. Employers rarely post signs saying, for 
example, ``older workers need not apply.'' To the contrary, they go out 
of their way to conceal their true intent. The employer is in the best 
position to offer an explanation of why a decision that involves 
discrimination or retaliation was actually motivated by legitimate 
reasons. As Professor Norton testified, ``[s]uch burden shifting 
appropriately recognizes and responds to employers' greater access to 
information that is key to proving or disproving an element of a 
particular claim . . .'' By putting the entire burden on the worker to 
demonstrate the absence or insignificance of other factors, the court 
in effect has freed employers to discriminate or retaliate.
  Unfortunately, as Mr. Gross and his colleagues know all too well, age 
discrimination does indeed occur. Countless thousands of American 
workers who are not yet ready to voluntarily retire find themselves 
jobless or passed over for promotions because of age discrimination. 
Older workers often face stereotypes: That they are not as productive 
as younger workers; that they cannot learn new skills; that they 
somehow have a lesser need for income to provide for their families.
  Indeed, according to an AARP study, 60% of older workers have 
reported that they or someone they know has faced age discrimination in 
the workplace. According to the Equal Employment Opportunity 
Commission, in Fiscal Year 2012, over 2,800 age discrimination 
complaints were filed, a more than 20 percent increase from just five 
years ago. Given the stereotypes that older workers face, it is no 
surprise that on average they remain unemployed for more than twice as 
long as all unemployed workers.
  The Protecting Older Workers Against Discrimination Act reiterates 
the principle that Congress established when it passed the Civil Rights 
Act of 1964, the Age Discrimination in Employment Act, the 
Rehabilitation Act and the Americans with Disabilities Act--when making 
employment decisions it is illegal for race, sex, national origin, 
religion, age or disability to be a factor.
  The bill repudiates the Supreme Court's Gross v. FBL Financial 
decision and will restore the law to what it was for decades. It makes 
clear that when an employee shows discrimination was a ``motivating 
factor'' behind a decision, the burden is properly on the employer to 
show the same decision would have been made regardless of 
discrimination or retaliation. And, like the Civil Rights Act of 1991 
with respect to discrimination cases under Title VII, if the employer 
meets that burden, the employer remains liable, but remedies are 
limited.
  This is a common sense, bipartisan bill. In fact, the Civil Rights 
Act of 1991, key provisions of which served as a model for this 
legislation, passed the Senate on a bipartisan basis 93-5. Further, we 
are introducing this bill only after countless hours of consultation 
with civil rights stakeholders and representatives of the business 
community. Moreover, this bill addresses the concerns that were raised 
about an earlier version of the bill at a hearing held before the 
Health, Education, Labor, and Pensions Committee in March 2010.
  In fact, I want to comment on two changes from that earlier version 
of this bill introduced in the last Congress. Since October 2009, when 
Senator Leahy and I first introduced the Protecting Older Workers 
Against Discrimination Act, we have had the benefit of nearly three and 
a half years of lower court application of the Gross decision.
  The 2009 bill would have expressly amended the ADEA to make clear 
that the analytical framework set out in McDonnell Douglas v. Green 
applied to that statute. Even though, before Gross, every Court of 
Appeals had held that McDonnell Douglas had applied to age claims, this 
clarification was meant to address a footnote in Gross in which the 
Court arguably questioned the applicability of McDonnell Douglas to the 
ADEA. Since the bill was first introduced, however, every lower court 
that has examined the issue has continued to apply McDonnell Douglas to 
the ADEA. As a result, because McDonnell Douglas applies to the ADEA 
already, we deem it unnecessary to amend the statute.
  Second, the initial bill expressly amended only the ADEA. Since 
Gross, however, lower courts have applied the Court's reasoning in that 
decision to

[[Page S6076]]

other statutes. Because the most notable application has been to the 
ADA, Rehabilitation Act and Title VII retaliation claims, those 
statutes are expressly amended here too.
  Finally, in Gross, the Court defended the Court's departure from 
well-established law by noting that it ``cannot ignore Congress' 
decision to amend Title VII's relevant provisions but not make similar 
changes to the ADEA.'' In other words, the Court found that because 
Congress, in the Civil Rights Act of 1991, codified the ``motivating 
factor'' framework for discrimination claims under Title VII, but not 
for the ADEA, Congress somehow must have intended Price Waterhouse not 
to apply to any statute but Title VII.
  Because of the Court's reasoning, I want to emphasize that this bill 
in no way questions the motivating factor framework for other anti-
discrimination and anti-retaliation statutes that are not expressly 
covered by the legislation. As the bill's findings make clear, not only 
does this bill repudiate the Gross decision itself, but it expressly 
repudiates the reasoning underlying the decision, including the 
argument that Congress's failure to amend any statute other than Title 
VII means that Congress intended to disallow mixed motive claims under 
other statutes. It would be an error for a court to apply similar 
reasoning following passage of this bill to other statutes. The fact 
that other statutes are not expressly amended in this bill does not 
mean that Congress endorses Gross's application to any other statute.
  In conclusion, this bill is very straightforward. It reiterates what 
Congress said in 1967 when it passed the ADEA--when making employment 
decisions it is illegal for age to be a factor. A person should not be 
judged arbitrarily because he or she was born in a certain year or 
earlier when he or she still has the ability to contribute as much, or 
more, as the next person. This bill will help ensure that all our 
citizens will have an equal opportunity, commensurate with their 
abilities, for productive employment.
  Mr. President, 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. 1391

       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 ``Protecting Older Workers 
     Against Discrimination Act''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds the following:
       (1) In enacting section 107 of the Civil Rights Act of 1991 
     (adding section 703(m) of the Civil Rights Act of 1964), 
     Congress reaffirmed its understanding that unlawful 
     discrimination is often difficult to detect and prove because 
     discriminators do not usually admit their discrimination and 
     often try to conceal their true motives. Section 703(m) of 
     the Civil Rights Act of 1964 expressly approved so-called 
     ``mixed motive'' claims, providing that an unlawful 
     employment practice is established when a protected 
     characteristic was a motivating factor for any employment 
     practice, even though other factors also motived the 
     practice.
       (2) Congress enacted amendments to other civil rights 
     statutes, including the Age Discrimination in Employment Act 
     of 1967 (referred to in this section as the ``ADEA''), the 
     Americans with Disabilities Act of 1990, and the 
     Rehabilitation Act of 1973, but Congress did not expressly 
     amend those statutes to address mixed motive discrimination.
       (3) In the case of Gross v. FBL Financial Services, Inc., 
     557 U.S. 167 (2009), the Supreme Court held that, because 
     Congress did not expressly amend the ADEA to address mixed 
     motive claims, such claims were unavailable under the ADEA, 
     and instead the complainant bears the burden of proving that 
     a protected characteristic or protected activity was the 
     ``but for'' cause of an unlawful employment practice. This 
     decision has significantly narrowed the scope of protections 
     afforded by the statutes that were not expressly amended in 
     1991 to address mixed motive claims.
       (b) Purposes.--The purposes of this Act are--
       (1) to clarify congressional intent that mixed motive 
     claims shall be available, and that a complaining party need 
     not prove that a protected characteristic or protected 
     activity was the ``but for'' cause of an unlawful employment 
     practice, under the ADEA and similar civil rights provisions;
       (2) to reject the Supreme Court's reasoning in the Gross 
     decision that Congress' failure to amend any statute other 
     than title VII of the Civil Rights Act of 1964 (with respect 
     to discrimination claims), in enacting section 107 of the 
     Civil Rights Act of 1991, suggests that Congress intended to 
     disallow mixed motive claims under other statutes; and
       (3) to clarify that complaining parties--
       (A) may rely on any type or form of admissible evidence to 
     establish their claims of an unlawful employment practice;
       (B) are not required to demonstrate that the protected 
     characteristic or activity was the sole cause of the 
     employment practice; and
       (C) may demonstrate an unlawful employment practice through 
     any available method of proof or analytical framework.

     SEC. 3. STANDARDS OF PROOF.

       (a) Age Discrimination in Employment Act of 1967.--
       (1) Clarifying prohibition against impermissible 
     consideration of age in employment practices.--Section 4 of 
     the Age Discrimination in Employment Act of 1967 (29 U.S.C. 
     623) is amended by inserting after subsection (f) the 
     following:
       ``(g)(1) Except as otherwise provided in this Act, an 
     unlawful practice is established under this Act when the 
     complaining party demonstrates that age or an activity 
     protected by subsection (d) was a motivating factor for any 
     practice, even though other factors also motivated the 
     practice.
       ``(2) In establishing an unlawful practice under this Act, 
     including under paragraph (1) or by any other method of 
     proof, a complaining party--
       ``(A) may rely on any type or form of admissible evidence 
     and need only produce evidence sufficient for a reasonable 
     trier of fact to find that an unlawful practice occurred 
     under this Act; and
       ``(B) shall not be required to demonstrate that age or an 
     activity protected by subsection (d) was the sole cause of a 
     practice.''.
       (2) Remedies.--Section 7 of such Act (29 U.S.C. 626) is 
     amended--
       (A) in subsection (b)--
       (i) in the first sentence, by striking ``The'' and 
     inserting ``(1) The'';
       (ii) in the third sentence, by striking ``Amounts'' and 
     inserting the following:
       ``(2) Amounts'';
       (iii) in the fifth sentence, by striking ``Before'' and 
     inserting the following:
       ``(4) Before''; and
       (iv) by inserting before paragraph (4), as designated by 
     clause (iii) of this subparagraph, the following:
       ``(3) On a claim in which an individual demonstrates that 
     age was a motivating factor for any employment practice, 
     under section 4(g)(1), and a respondent demonstrates that the 
     respondent would have taken the same action in the absence of 
     the impermissible motivating factor, the court--
       ``(A) may grant declaratory relief, injunctive relief 
     (except as provided in subparagraph (B)), and attorney's fees 
     and costs demonstrated to be directly attributable only to 
     the pursuit of a claim under section 4(g)(1); and
       ``(B) shall not award damages or issue an order requiring 
     any admission, reinstatement, hiring, promotion, or 
     payment.''; and
       (B) in subsection (c)(1), by striking ``Any'' and inserting 
     ``Subject to subsection (b)(3), any''.
       (3) Definitions.--Section 11 of such Act (29 U.S.C. 630) is 
     amended by adding at the end the following:
       ``(m) The term `demonstrates' means meets the burdens of 
     production and persuasion.''.
       (4) Federal employees.--Section 15 of such Act (29 U.S.C. 
     633a) is amended by adding at the end the following:
       ``(h) Sections 4(g) and 7(b)(3) shall apply to mixed motive 
     claims (involving practices described in section 4(g)(1)) 
     under this section.''.
       (b) Title VII of the Civil Rights Act of 1964.--
       (1) Clarifying prohibition against impermissible 
     consideration of race, color, religion, sex, or national 
     origin in employment practices.--Section 703 of the Civil 
     Rights Act of 1964 (42 U.S.C. 2000e-2) is amended by striking 
     subsection (m) and inserting the following:
       ``(m) Except as otherwise provided in this title, an 
     unlawful employment practice is established under this title 
     when the complaining party demonstrates that race, color, 
     religion, sex, or national origin or an activity protected by 
     section 704(a) was a motivating factor for any employment 
     practice, even though other factors also motivated the 
     practice.''.
       (2) Federal employees.--Section 717 of such Act (42 U.S.C. 
     2000e-16) is amended by adding at the end the following:
       ``(g) Sections 703(m) and 706(g)(2)(B) shall apply to mixed 
     motive cases (involving practices described in section 
     703(m)) under this section.''.
       (c) Americans With Disabilities Act of 1990.--
       (1) Definitions.--Section 101 of the Americans with 
     Disabilities Act of 1990 (42 U.S.C. 12111) is amended by 
     adding at the end the following:
       ``(11) Demonstrates.--The term `demonstrates' means meets 
     the burdens of production and persuasion.''.
       (2) Clarifying prohibition against impermissible 
     consideration of disability in employment practices.--Section 
     102 of such Act (42 U.S.C. 12112) is amended by adding at the 
     end the following:
       ``(e) Proof.--
       ``(1) Establishment.--Except as otherwise provided in this 
     Act, a discriminatory practice is established under this Act 
     when the

[[Page S6077]]

     complaining party demonstrates that disability or an activity 
     protected by subsection (a) or (b) of section 503 was a 
     motivating factor for any employment practice, even though 
     other factors also motivated the practice.
       ``(2) Demonstration.--In establishing a discriminatory 
     practice under paragraph (1) or by any other method of proof, 
     a complaining party--
       ``(A) may rely on any type or form of admissible evidence 
     and need only produce evidence sufficient for a reasonable 
     trier of fact to find that a discriminatory practice occurred 
     under this Act; and
       ``(B) shall not be required to demonstrate that disability 
     or an activity protected by subsection (a) or (b) of section 
     503 was the sole cause of an employment practice.''.
       (3) Certain antiretaliation claims.--Section 503(c) of such 
     Act (42 U.S.C. 12203(c)) is amended--
       (A) by striking ``The remedies'' and inserting the 
     following:
       ``(1) In general.--Except as provided in paragraph (2), the 
     remedies''; and
       (B) by adding at the end the following:
       ``(2) Certain antiretaliation claims.--Section 107(c) shall 
     apply to claims under section 102(e)(1) with respect to title 
     I.''.
       (4) Remedies.--Section 107 of such Act (42 U.S.C. 12117) is 
     amended by adding at the end the following:
       ``(c) Discriminatory Motivating Factor.--On a claim in 
     which an individual demonstrates that disability was a 
     motivating factor for any employment practice, under section 
     102(e)(1), and a respondent demonstrates that the respondent 
     would have taken the same action in the absence of the 
     impermissible motivating factor, the court--
       ``(1) may grant declaratory relief, injunctive relief 
     (except as provided in paragraph (2)), and attorney's fees 
     and costs demonstrated to be directly attributable only to 
     the pursuit of a claim under section 102(e)(1); and
       ``(2) shall not award damages or issue an order requiring 
     any admission, reinstatement, hiring, promotion, or 
     payment.''.
       (d) Rehabilitation Act of 1973.--
       (1) In general.--Sections 501(g), 503(d), and 504(d) of the 
     Rehabilitation Act of 1973 (29 U.S.C. 791(g), 793(d), and 
     794(d)), are each amended by adding after the words ``title I 
     of the Americans with Disabilities Act of 1990 (42 U.S.C. 
     12111 et seq.)'' the following: ``, including the standards 
     of causation or methods of proof applied under section 102(e) 
     of that Act (42 U.S.C. 12112(e)),''.
       (2) Federal employees.--The amendment made by paragraph (1) 
     to section 501(g) shall be construed to apply to all 
     employees covered by section 501.

     SEC. 4. APPLICATION.

       This Act, and the amendments made by this Act, shall apply 
     to all claims pending on or after the date of enactment of 
     this Act.
                                 ______
                                 
      By Mr. LEAHY (for himself, Mr. Cochran, Mr. Casey, and Mr. 
        Moran):
  S. 1395. A bill to amend the Internal Revenue Code of 1986 to 
permanently extend and expand the charitable deduction for 
contributions of food inventory; to the Committee on Finance.
  Mr. LEAHY. Mr. President, I am pleased today to introduce the Good 
Samaritan Hunger Relief Tax Incentive Act along with Senators Cochran, 
Casey, and Moran. This bill is an effort I have worked on with former 
Senator Richard Lugar for many years and I am happy to continue the 
effort on behalf of hungry families nationwide this Congress.
  In the wake of our Nation's economic recession, the demand on food 
banks, church food pantries, and soup kitchens has increased 
significantly. According to a study by the United States Department of 
Agriculture, over 50 million Americans lived in food insecure 
households in 2011. The same study found that households with children 
reported food insecurity at a much higher rate than households without 
children. In fact, in Vermont alone, over 12,000 children rely on food 
from food shelves each month.
  Despite the increased demand for donated food, it is estimated that 
between 25 and 40 percent of the food that is produced, grown, and 
transported in the United States will never be consumed. This 
contributes to the 70 billion pounds of fit and wholesome food that are 
sent to landfills in the United States each year.
  This bill would address this troubling trend by giving greater 
incentives to all businesses to donate food to non-profit organizations 
that feed the hungry. The current tax code allows corporations to 
receive a special deduction for donations to food banks, but it 
excludes many other small businesses such as farmers, ranchers, and 
restaurant owners from the same tax incentive. Unfortunately, these 
businesses often find it more cost effective to throw away food than to 
donate it to those in need.
  I am pleased beginning in 2006, Congress temporarily extended this 
tax incentive to most businesses, and most recently extended the 
provision through the end of 2013. After the provision was enacted, in 
the restaurant industry alone we saw a 137 percent increase in the 
pounds of food donated. The Good Samaritan Hunger Relief Tax Incentive 
Act would make this provision permanent, and would extend the deduction 
to farmers who often have large amounts of fresh food to donate.
  This bipartisan legislation is supported by numerous organizations 
including Feeding America, the American Farm Bureau Federation, the 
Food Marketing Institute, Grocery Manufactures Association, the 
National Restaurant Association, the Vermont Food Bank, and Hunger Free 
Vermont. I hope as this Congress considers comprehensive tax 
legislation in the future this measure is included. We must do more to 
ensure that no one in America goes hungry, and increasing the amount of 
food available to food banks is a critical step toward meeting that 
goal.
      By Mr. DURBIN:
  S. 1399. A bill to amend the Servicemembers Civil Relief Act to 
extend the interest rate limitation on debt entered into during 
military service to debt incurred during military service to 
consolidate or refinance student loans incurred before military 
service; to the Committee on Veterans' Affairs.
  Mr. DURBIN. Mr. President, 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. 1399

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

     SECTION 1. INTEREST RATE LIMITATION ON DEBT ENTERED INTO 
                   DURING MILITARY SERVICE TO CONSOLIDATE OR 
                   REFINANCE STUDENT LOANS INCURRED BEFORE 
                   MILITARY SERVICE.

       (a) In General.--Subsection (a) of section 207 of the 
     Servicemembers Civil Relief Act (50 U.S.C. App. 527) is 
     amended--
       (1) in paragraph (1), by inserting ``on debt incurred 
     before service'' after ``Limitation to 6 percent'';
       (2) by redesignating paragraphs (2) and (3) as paragraphs 
     (3) and (4), respectively;
       (3) by inserting after paragraph (1) the following new 
     paragraph (2):
       ``(2) Limitation to 6 percent on debt incurred during 
     service to consolidate or refinance student loans incurred 
     before service.--An obligation or liability bearing interest 
     at a rate in excess of 6 percent per year that is incurred by 
     a servicemember, or the servicemember and the servicemember's 
     spouse jointly, during military service to consolidate or 
     refinance one or more student loans incurred by the 
     servicemember before such military service shall not bear an 
     interest at a rate in excess of 6 percent during the period 
     of military service.'';
       (4) in paragraph (3), as redesignated by paragraph (2) of 
     this subsection, by inserting ``or (2)'' after ``paragraph 
     (1)''; and
       (5) in paragraph (4), as so redesignated, by striking 
     ``paragraph (2)'' and inserting ``paragraph (3)''.
       (b) Implementation of Limitation.--Subsection (b) of such 
     section is amended--
       (1) in paragraph (1), by striking ``the interest rate 
     limitation in subsection (a)'' and inserting ``an interest 
     rate limitation in paragraph (1) or (2) of subsection (a)''; 
     and
       (2) in paragraph (2)--
       (A) in the paragraph heading, by striking ``as of date of 
     order to active duty''; and
       (B) by inserting before the period at the end the 
     following: ``in the case of an obligation or liability 
     covered by subsection (a)(1), or as of the date the 
     servicemember (or servicemember and spouse jointly) incurs 
     the obligation or liability concerned under subsection 
     (a)(2)''.
       (c) Student Loan Defined.--Subsection (d) of such section 
     is amended by adding at the end the following new paragraph:
       ``(3) Student loan.--The term `student loan' means the 
     following:
       ``(A) A Federal student loan made, insured, or guaranteed 
     under title IV of the Higher Education Act of 1965 (20 U.S.C. 
     1070 et seq.).
       ``(B) A private student loan as that term is defined 
     section 140(a) of the Truth in Lending Act (15 U.S.C. 
     1650(a)).''.
                                 ______
                                 
      By Mr. REED (for himself and Mr. Brown):
  S. 1400. A bill to increase access to adult education to provide for 
economic growth; to the Committee on Finance.
  Mr. REED. Mr. President, our economy will not work for individuals or 
for our nation unless we create and support avenues for adults to 
continue their education and build their skills. These are longstanding 
issues that I

[[Page S6078]]

have worked on for many years, including the last attempt to 
reauthorize the Workforce Investment Act. I was pleased to work with 
Senator Webb in the 112th Congress on the Adult Education and Economic 
Growth Act, and I am proud to reintroduce it today with Senator Brown. 
I thank Congressman Ruben Hinojosa for introducing the companion 
legislation in the House of Representatives.
  The Adult Education and Economic Growth Act increases the investment 
in adult education programs; ensures better coordination among adult 
education programs, workforce development programs, and higher 
education; strengthens professional development for adult education 
providers; expands the use of technology in adult education programs; 
and provides incentives for employers to support their workers who need 
adult education services.
  In Rhode Island, roughly 41 percent of working age adults have a 
college degree. By 2018, it is estimated that 61 percent of Rhode 
Island jobs will require some postsecondary education. We have an 
estimated 91,000 individuals without a high school diploma--the basic 
ticket to accessing postsecondary education and training.
  Nationally, the numbers make a similar case for the need to invest in 
adult education. According to the National Commission on Adult 
Literacy, 80 to 90 million U.S. adults today, about half of the adult 
workforce, do not have the basic education and communication skills 
required to obtain jobs that pay a family-sustaining wage. These 
individuals continue to struggle in the recovering economy, with 
unemployment rates above 10 percent for individuals who do not have a 
high school diploma, compared to 7.6 percent for high school graduates 
and less than 4 percent for workers with bachelor's degrees.
  Simply put, we will not be able to close the skills gap without a 
robust investment in adult education. Unfortunately, we have not been 
making this kind of investment. Funding has been anemic, and as a 
result, services reach fewer than 3 million adults annually--a fraction 
of the need.
  The Adult Education and Economic Growth will help turn around this 
dire situation by increasing the authorization for adult education 
programs authorized under Title II of the Workforce Investment Act to 
$850 million and establishing a new state technology grant for adult 
education to upgrade the delivery system and assist adults in attaining 
critical digital literacy skills. This legislation requires state and 
local workforce investment boards to address adult education in their 
plans for using funds authorized under Title I of the Workforce 
Investment Act, including incorporating adult education into career 
pathways programs and offering integrated education and training 
programs. It also strengthens programs and services for English 
learners, including authorizing the Integrated English Literacy and 
Civics Program, and for adults with disabilities. The legislation will 
also build the knowledge base on what works for adult learners through 
a National Center for Adult Education, Literacy, and Workplace Skills. 
Finally, the Adult Education and Economic Growth Act will provide 
employers with tax incentives to invest in developing the basic skills 
of their employees.
  In sum, the Adult Education and Economic Growth Act offers a 
comprehensive approach to reaching the millions of adults who need 
basic skills, English literacy instruction, or a secondary school 
diploma so that they can embark on a career pathway that leads to 
economic stability and success. I am pleased to have worked with the 
National Commission on Adult Literacy in developing this legislation. I 
urge my colleagues to cosponsor this bill and work with me to include 
its provisions in the pending reauthorization of the Workforce 
Investment Act.

                          ____________________