[Congressional Record (Bound Edition), Volume 150 (2004), Part 2]
[Senate]
[Pages 2012-2036]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mrs. MURRAY (for herself, Mr. Leahy, and Mr. Reid):
  S. 2068. A bill to enhance and improve benefits for members of the 
National Guard and Reserves who serve extended periods on active duty, 
and for other purposes; to the Committee on Finance.
  Mrs. MURRAY. Mr. President, I rise this evening to introduce a very 
important piece of legislation that will support hundreds of thousands 
of Americans who are making great sacrifices for our country. This bill 
will enhance the benefits that are offered to the brave men and women 
of the National Guard and Reserves and their families when they are 
called to service.
  The latest figures from the Pentagon show that more than 194,000 
Guard and Reserves are currently serving on active duty. We have come 
to rely greatly on our Guard and Reserve Forces for

[[Page 2013]]

extended durations. It is now time that we provide them with the 
support that is available to our regular services.
  Nationwide, we are experiencing the largest activation of Guard and 
Reserves since the Korean war. In my home State this is the largest 
activation of these brave men and women since World War II.
  Guard and Reserves make up almost 40 percent of the total U.S. force 
in Iraq. They play a critical role in our operations in Afghanistan, 
and they support a tremendous number of our homeland security missions.
  The Guard's 81st Armor Brigade is sending 3,600 brave Washington 
State citizens to Iraq in the next few weeks. I had the pleasure of 
meeting with many of these soldiers and their families in early 
January. During my visit with these soldiers, I heard many concerns 
about the well-being of their families who are going to be left to 
shoulder tremendous responsibilities while they are away. Many were 
concerned that they would leave before they could help their spouse 
find affordable child care. Others were concerned that their children 
would have to go to a new doctor who accepts TRICARE, and that type of 
change when one parent is overseas and far away can be very scary for a 
young child.
  My visit with the families offered a window into what they are facing 
as their loved ones serve on extended deployments. Their families were 
concerned about the loss of income between their spouse's civilian 
salary and their active-duty salary.
  Some of our activated soldiers were in school. Their families were 
concerned that they would have to begin repaying student loans while 
their loved ones served in Iraq.
  It is vital that Congress take steps to ensure all members of our 
Armed Forces and their families are taken care of, especially during 
extended active-duty deployments and upon their return home. 
Unfortunately, that has not always been the case. Veterans who 
volunteered or were drafted to serve our country were promised health 
care and other benefits. When they returned home they found those 
promises were not kept. In recent years, the administration has barred 
certain veterans from enrolling in the VA. The President's budget 
request for this year would require some veterans to pay additional 
fees for the services they are currently able to receive.
  This evening, I am introducing a comprehensive piece of legislation 
that will minimize the challenges at home when members of the Guard and 
Reserve leave their jobs, their schools, their homes, and their 
families to protect our homeland and fight terrorism. This legislation 
helps families by extending the Family and Medical Leave Act to allow 
spouses to take time away from their job to put together a single-
parent household and prepare for their transition.
  My bill will help Guard and Reserve families with children by 
providing access to child care, especially during times of extended 
active duty. This provision would allow nonworking spouses with 
children to work while their spouse is being deployed, making child 
care more affordable.
  Education is a key part of this proposal. I have heard from Guard 
members who are worried that they had to leave their university to go 
to Iraq for a year. We have to ensure that when they return to school 
it will be without penalty, and that their student loans are deferred 
during their extended deployment.
  Several soldiers who work in the high-tech field said to me:

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

  That is why my bill will extend and update the GI Bill benefits for 
Guard and Reserve to keep better pace with the rising costs of 
education. This will encourage education and provide a competitive edge 
for Guard and Reserves when they return home to the private sector.
  My proposal will improve health care coverage by providing access to 
TRICARE for all members of the Guard and Reserves and their families, 
regardless of employment or insurance status. TRICARE only works if you 
are in a community that has TRICARE available. Guard and Reserves who 
are mobilized for extended periods need the option to maintain their 
private health care plans. So my proposal provides that option and 
covers their premiums during periods of extended deployment.
  Many members of the Guard and Reserves who are mobilized are seeing a 
huge decrease in their pay while they serve our country on active duty. 
My proposal ensures pay equity for Federal employees called to duty and 
provides tax credits to employers to encourage their support of 
activated Guard and Reserves.
  My proposal also reduces the age for Guard and Reserves to receive 
retirement pay to age 55.
  I am very concerned that we are burning up our Guard and Reserve 
units by placing a serious strain on their families and their finances. 
These brave men and women need the same kind of support that our 
regular services have when they are called away from their families and 
their jobs for extended deployments. By addressing these shortfalls 
now, we give the Guard and Reserves a valuable tool for recruiting and 
retaining the best and the brightest soldiers in the world.
  This bill tells our Guard and Reserve members that they can serve our 
country overseas, even on long deployments, and know that their 
families will be financially secure and able to get child care and 
health care. Spouses can take time off from work to prepare for a long 
deployment. In addition, Guard members won't lose their place at a 
university, and they won't be charged interest or have to repay loans 
until they resume their studies.
  I hope we can pass this bill and do everything we can to lessen the 
burden on Americans who are already sacrificing so much for our 
security. We are asking so much of our Guard and Reserve members and 
their families. We have an obligation to make it easier for their 
spouses and children during these extended long deployments.
  I hope my colleagues will support this legislation and help us move 
it quickly through the Senate.
  I yield the floor.
                                 ______
                                 
      By Mr. HAGEL:
  S. 2070. A bill to amend the Animal Health Protection Act to direct 
the Secretary of Agriculture to implement the United States Animal 
Identification Plan, and for other purposes; to the Committee on 
Agriculture, Nutrition, and Forestry.
  Mr. HAGEL. Mr. President, I rise today to introduce legislation to 
provide the U.S. Department of Agriculture (USDA) the authority to 
implement the U.S. Animal Identification Plan (USAIP) for livestock, as 
well as strengthen existing laws that protect against the spread of 
disease in livestock.
  Consumers in the U.S. and around the world must have confidence in 
our food supply. The discovery of the first case of Bovine Spongiform 
Encephalopathy (BSE) in the United States has raised serious concerns 
regarding the effectiveness of current U.S. disease management measures 
as well as closed U.S. beef markets overseas.
  For years there have been efforts to develop a national animal 
identification plan. The National Identification Task Force was created 
in 2002. The task force brought together livestock industry 
representatives with USDA to participate in the development of a 
comprehensive plan known as the United States Animal Identification 
Plan (USAIP). The final development and implementation of this plan is 
needed now to bolster confidence in the U.S. livestock industry.
  In a recent briefing regarding the completion of the investigation 
into the U.S. BSE case, Dr. Ron DeHaven, Chief Veterinary Officer with 
USDA, referring to the unfound cattle from Canada, was quoted as 
saying, ``Many of those animals were moved into the United States a 
number of years ago, and so because of that timeframe some of the paper 
trail has gotten cold.'' A national animal identification plan would 
ensure the trail would not go cold in the future.
  My legislation will direct USDA to focus its resources on 
implementing

[[Page 2014]]

the USAIP for beef and dairy cattle to ensure a disease tracking system 
is in place in a timely manner. This bill also provides financial 
assistance to aid in the cost of producer compliance.
  In addition, this legislation directs the Food and Drug 
Administration (FDA) to strengthen the enforcement of current livestock 
feed ban laws. This measure will help control disease threats to U.S. 
livestock, provide privacy protection for the information collected and 
used in the plan, and implement an effective plan for tracking animals.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2070

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``United States Animal 
     Identification Plan Implementation Act''.

     SEC. 2. ANIMAL IDENTIFICATION PLAN.

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

     SEC. 3. RUMINANT FEED BAN.

       (a) In General.--The Secretary of Health and Human 
     Services, acting through the Commissioner of Food and Drugs, 
     shall--
       (1) monitor the implementation of section 589.2000 of title 
     21, Code of Federal Regulations (relating to animal proteins 
     prohibited in ruminant feed);
       (2) conduct an annual formal evaluation of the 
     effectiveness and implementation of that section; and
       (3) submit to Congress an annual report that describes the 
     formal evaluation.
       (b) Enforcement Plan.--
       (1) In general.--The Secretary shall develop and implement 
     a plan for enforcing section 589.2000 of title 21, Code of 
     Federal Regulations.
       (2) Inclusions.--The plan shall include--
       (A) a hierarchy of enforcement actions to be taken;
       (B) a timeframe to allow a person subject to section 
     589.2000 of title 21, Code of Federal Regulations, to correct 
     violations; and
       (C) a timeframe for subsequent inspections to confirm that 
     violations have been corrected.
                                 ______
                                 
      By Mr. KOHL (for himself and Mr. Kennedy):
  S. 2071. A bill to expand the definition of immediate relative for 
purposes of the Immigration and Nationality Act; to the Committee on 
the Judiciary.
  Mr. KOHL. Mr. President, I rise today with Senator Kennedy to 
introduce the Family Reunification Act, a measure designed to remedy a 
regrettable injustice in our immigration laws. A minor oversight in the 
law has led to an unfortunate, and likely unintended, consequence. 
Parents of U.S. citizens are currently able to enter the country as 
legal permanent residents, but our laws do not permit their minor 
children to join them. Simply put, the Family Reunification Act will 
close this loophole by including the minor siblings of U.S. citizens in 
the definition of ``immediate relative.'' This legislation will ensure 
that our immigration laws can better accomplish one of the most 
important policy goals behind them--the goal of strengthening the 
family unit.
  Congress took an important first step in promoting family 
reunification when it enacted the Immigration and Nationality Act. By 
qualifying as ``immediate relatives,'' this law currently offers 
parents, spouses and children of U.S. citizens the ability to obtain 
immigrant visas to enter this country legally.
  This we can all agree is good immigration policy. Unfortunately, a 
``glitch'' in this law has put numerous families in an uncomfortable 
predicament. One of these unlucky families lives in my home Sate of 
Wisconsin. Effiong and Ekom Okon, both U.S. citizens by birth and 
graduates of the University of Wisconsin-Madison, requested that their 
parents be admitted to the United States from Nigeria as ``immediate 
relatives.'' The law clearly allows for this. Their father, Leo Okon, 
has already joined them in Wisconsin, and their mother, Grace, is 
currently in possession of an immigrant visa. However, Grace is unable 
to join her husband and sons in the United States because her six-year-
old daughter, Daramfon, does not qualify as an ``immediate relative'' 
under current immigration law. Because it would be unthinkable for her 
to abandon her small child, Grace has been forced to stay behind in 
Nigeria, separated from the rest of her family.
  This family is truly an American success story, one of first-
generation citizens graduating from a top University. They want to 
continue to contribute to society and want to bring their family with 
them. Unfortunately, current immigration law only permits some members 
of their immediate family to join them, but not all. This is clearly 
wrong.
  It is difficult to determine the scope of this problem. Because minor 
siblings do not qualify for visas, the Department of Homeland Security 
does not keep track of how many families have been adversely affected. 
However, DHS employees have assured us that the Okons are not unique. 
In fact, this is an all too common occurrence. If only one family 
suffers because of this loophole, changes must be made. The fact that 
there have been numerous cases demands changes now.
  Many parts of our immigration laws are outdated, unfair, and in need 
of repair. The definition of ``immediate relative'' is no different. 
Congress' intent when it grated ``immediate relatives'' the right to 
obtain immigrant visas was to promote family reunification, but the 
unfortunate oversight highlighted has interfered with many families' 
opportunities to do just that. The

[[Page 2015]]

legislation introduced today would expand the definition of ``immediate 
relatives'' to include the minor siblings of U.S. citizens. By doing 
so, we can truly provide these families with the ability to reunite and 
the chance to take advantage of the many great opportunities our 
country has to offer. This is a simple and modest solution to an 
unthinkable problem that too many families have already had to face.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2071

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

     SECTION 1. IMMEDIATE RELATIVE DEFINITION.

       Section 201(b)(2)(A)(i) of the Immigration and Nationality 
     Act (8 U.S.C. 1151(b)(2)(A)(i)) is amended by inserting after 
     ``at least 21 years of age.'' the following: ``In the case of 
     a parent of a citizen of the United States who has a child 
     (as defined in section 101(b)(1)), the child shall be 
     considered, for purposes of this subsection, an immediate 
     relative if accompanying or following to join the parent.''.
                                 ______
                                 
      By Mr. CRAIG.
  S. 2072. A bill to amend the Internal Revenue Code of 1986 to allow a 
nonrefundable tax credit for elder care expenses; to the Committee on 
Finance.
  Mr. CRAIG. Mr. President, today I am introducing the Senior Elder 
Care Relief and Empowerment Act--the SECURE Act. The SECURE Act 
provides eligible taxpayers with a non-refundable tax credit equal to 
50 percent of qualified expenses incurred on behalf of senior citizens 
above a $1,000 spending floor.
   The Senate Special Committee on Aging has held several hearings on 
different facets of the growing long-term care crisis in this country. 
A major concern of mine is that the Federal long-term care policy mix 
may not have the right incentives--especially when it comes to the 
tough choices faced by families who want to care for their frail and 
aging relatives.
  Earlier this week, we held a hearing in the Senate Special Committee 
on Aging on a growing issue of national importance--the issue of family 
caregiving for America's seniors.
  Witnesses at the hearing highlighted the emotional stress and 
financial challenges faced by family caregivers of aging and vulnerable 
relatives; and testified favorably about the SECURE Act. Trudy Elliott, 
a witness at the hearing from North Idaho, talked about the stress and 
financial challenges she and her husband faced while caring for her 
mother, sister, and father. Her testimony was very moving. Mrs. 
Elliott, who also works for a company in the home health field, 
testified that her experience was not unique. More and more families 
are facing the stress and financial difficulties that come with caring 
for their aging parents.
  It is critical to note that families, not government, provide 80 
percent of long-term care for older persons in the United States. This 
is an enormous strength of our long-term care system. The U.S. 
Administration on Aging reports that about 22 million people serve as 
informal caregivers for seniors with at least one limitation on their 
activities of daily living.
  These caregivers often face extreme stress and financial burden--
especially those we call the sandwich generation. The sandwich 
generation refers to those sandwiched between caring for their aging 
parents and caring for their own children.
  It is difficult for families to balance caring for children and 
saving or paying for college, while at the same time struggling with 
financing care for frail and aging parents.
  The SECURE Act should not preclude seniors or those near retirement 
from purchasing long-term care insurance. The Act provides tax relief 
for high-risk seniors who cannot qualify for long-term care insurance 
policies.
  For many families, the nursing home is the only solution for 
providing long-term care, and that can be a good choice. For other 
families, keeping aging and vulnerable relatives in their own home or 
in the caregiver's home makes sense.
  An that is why I am introducing the SECURE Act. Families facing high 
levels of stress and eldercare expenses deserve tax relief as they 
freely care for their frail and aging parents.
  We also heard from witnesses at the Aging Committee hearing that the 
SECURE Act will increase the eldercare choices available to families 
and has the potential to reduce the number of seniors forced to spend 
down their nest-egg in order to qualify for Medicaid services.
  Family caregiving for aging and vulnerable relatives requires a 
flexible national response to ensure seniors and their families have 
the most appropriate high quality choices.
  I invite my colleagues to cosponsor this compassionate legislation. I 
ask unanimous consent that the text of the bill and a brief description 
be printed in the Record.
  There being no objection, the materials were ordered to be printed in 
the Record, as follows:

                                S. 2072

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Senior Elder Care Relief and 
     Empowerment (SECURE) Act''.

     SEC. 2. CREDIT FOR ELDER CARE.

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

     ``SEC. 25C. ELDER CARE EXPENSES.

       ``(a) Allowance of Credit.--In the case of an individual, 
     there shall be allowed as a credit against the tax imposed by 
     this chapter 50 percent of so much of the qualified elder 
     care expenses paid or incurred by the taxpayer with respect 
     to each qualified senior citizen as exceeds $1,000.
       ``(b) Qualified Senior Citizen.--For purposes of this 
     section, the term `qualified senior citizen' means an 
     individual--
       ``(1) who has attained normal retirement age (as determined 
     under section 216 of the Social Security Act) before the 
     close of the taxable year,
       ``(2) who is a chronically ill individual (within the 
     meaning of section 7702B(c)(2)(B)), and
       ``(3) who is--
       ``(A) the taxpayer,
       ``(B) a family member (within the meaning of section 
     529(e)(2)) of the taxpayer, or
       ``(C) a dependent (within the meaning of section 152) of 
     the taxpayer.
       ``(c) Qualified Elder Care Expenses.--For purposes of this 
     section--
       ``(1) In general.--The term `qualified elder care expenses' 
     means expenses paid or incurred by the taxpayer with respect 
     to the qualified senior citizen for--
       ``(A) qualified long-term care services (as defined in 
     section 7702B(c)),
       ``(B) respite care, or
       ``(C) adult day care.
       ``(2) Exceptions.--The term `qualified elder care expenses' 
     does not include--
       ``(A) any expense to the extent such expense is compensated 
     for by insurance or otherwise, and
       ``(B) any expense paid to a nursing facility (as defined in 
     section 1919 of the Social Security Act).
       ``(d) Other Definitions and Special Rules.--
       ``(1) Adult day care.--The term `adult day care' means care 
     provided for a qualified senior citizen through a structured, 
     community-based group program which provides health, social, 
     and other related support services on a less than 16-hour per 
     day basis.
       ``(2) Respite care.--The term `respite care' means planned 
     or emergency care provided to a qualified senior citizen in 
     order to provide temporary relief to a caregiver of such 
     senior citizen.
       ``(3) Married individuals.--Rules similar to the rules of 
     paragraphs (2), (3), and (4) of section 21(e) shall apply for 
     purposes of this section.
       ``(4) No double benefit.--No deduction or other credit 
     under this chapter shall take into account any expense taken 
     into account for purposes of determining the credit under 
     this section.
       ``(5) Identifying information required with respect to 
     service provider.--No credit shall be allowed under 
     subsection (a) for any amount paid to any person unless--
       ``(A) the name, address, and taxpayer identification number 
     of such person are included on the return claiming the 
     credit, or
       ``(B) if such person is an organization described in 
     section 501(c)(3) and exempt from tax under section 501(a), 
     the name and address of such person are included on the 
     return claiming the credit.

     In the case of a failure to provide the information required 
     under the preceding sentence, the preceding sentence shall 
     not apply if it is shown that the taxpayer exercised due 
     diligence in attempting to provide the information so 
     required.

[[Page 2016]]

       ``(6) Identifying information required with respect to 
     qualified senior citizens.--No credit shall be allowed under 
     this section with respect to any qualified senior citizen 
     unless the TIN of such senior citizen is included on the 
     return claiming the credit.''.
       (b) Conforming Amendments.--
       (1) Section 6213(g)(2)(H) (relating to mathematical or 
     clerical error) is amended by inserting ``, section 25C 
     (relating to elder care expenses),'' after ``employment)''.
       (2) The table of sections for subpart A of part IV of 
     subchapter A of chapter 1 of the Internal Revenue Code of 
     1986 is amended by inserting after the item relating to 
     section 25B the following new item:

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

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


         Senior Elder Care Relief and Empowerment (SECURE) Act

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

      By Mr. REID (for himself, Mrs. Lincoln, and Mr. Breaux):
  S. 2075. A bill to amend title III of the Public Health Service Act 
to include each year of fellowship training in geriatric medicine or 
geriatric psychiatry as a year of obligated service under the National 
Health Corps Loan Repayment Program; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. REID. Mr. President, as our Nation's 76 million Baby Boomers near 
retirement age, the number of Americans over age 65 will double to 70 
million--one-fifth of the population. Americans older than 85 represent 
the fastest growing segment of this population and membership in this 
once exclusive demographic group is projected to grow from four million 
Americans today to an estimated 19 million by 2050.
  Unfortunately, our health care system is ill prepared to handle the 
strain of this enormous senior population, largely because we have a 
critical shortage of geriatricians. Fewer than 9,000 geriatricians 
practice in the U.S., far below the 20,000 or more needed to 
effectively care for the Nation's booming population of seniors. 
Ironically, the number of geriatricians is expected to shrink as many 
of these doctors retire at the same time baby boomers start qualifying 
for Medicare in large numbers.
  America must plan for the burdens the baby boomers demographic shift 
will place on our health care system and health care providers. Our 
first step is ensuring the country has an adequate number of well-
trained geriatricians.
  I first introduced legislation to address the national shortage of 
geriatricians during the 105th Congress. While I am encouraged that 
greater attention has been focused on this issue, little has been 
accomplished to improve the shortage of geriatricians.
  Today, I am re-introducing legislation that will encourage more 
doctors to become certified in geriatrics. The Geriatricians Loan 
Forgiveness Act would forgive $20,000 of education debt incurred by 
medical students for each year of advanced training required to obtain 
a certificate of added qualifications in geriatric medicine or 
psychiatry.
  Geriatric medicine is the foundation of a comprehensive health plan 
for our most vulnerable seniors. Geriatrics, by focusing on assessment 
and care coordination, promotes preventive care and improves patients' 
quality of life by allowing them greater independence and eliminating 
unnecessary and costly trips to the hospital or institutions. But this 
kind of specialized care is complicated and demanding. Many doctors 
inclined to study and practice geriatric medicine are dissuaded from 
doing so because treating the elderly takes more time and carries 
financial disincentives for doctors.
  Medical training takes time, so we need to lay the groundwork now to 
have enough qualified geriatricians in place in ten years from now. 
This legislation is a commonsense approach and cost-effective 
investment. We must take these steps today to meet our needs for 
tomorrow.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2075

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Geriatricians Loan 
     Forgiveness Act of 2004''.

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

       (a) In General.--Section 338B(g) of the Public Health 
     Service Act (42 U.S.C. 254l-1(g)) is amended by adding at the 
     end the following:
       ``(5) Obligated service.--
       ``(A) In general.--For purposes of this section, each year 
     of training in geriatric medicine or geriatric psychiatry 
     that is required in order to obtain a certificate of added 
     qualification in geriatric medicine or geriatric psychiatry 
     shall be deemed to be a year of obligated service.
       ``(B) Limitations.--
       ``(i) Payments.--Notwithstanding
     the first sentence of paragraph (2)(A), for the year of 
     obligated service described in subparagraph (A), the 
     Secretary may pay up to $20,000 on behalf of the individual 
     for loans described in paragraph (1).
       ``(ii) Individuals.--The number of fellowship years in 
     geriatric medicine or geriatric psychiatry that are deemed to 
     be a year of obligated service under this section shall not 
     exceed 400 in any calendar year.''.
       (b) Effective Date.--
       (1) In general.--The amendment made by subsection (a) shall 
     apply to applications submitted to the Secretary of Health 
     and Human Services under section 338B of the Public Health 
     Service Act (42 U.S.C. 254l-1) on or after 1 year after the 
     date of enactment of this Act.
       (2) First year of program.--For the period beginning on the 
     date of enactment of this Act and ending on December 31 of 
     the calendar year in which such enactment occurs, the 
     Secretary of Health and Human Services shall ratably reduce 
     the maximum number of fellowship years in geriatric medicine 
     or geriatric psychiatry that may be deemed to be a year of 
     obligated service under section 338B(g)(5)(B)(ii) of the 
     Public Health Service Act (42 U.S.C. 254l-1(g)(5)(B)(ii)) (as 
     added by subsection (a)) to reflect the portion of the year 
     that the amendment made by subsection (a) is in effect.
                                 ______
                                 
      By Mr. BAUCUS:
  S. 2076. A bill to amend title XI of the Social Security Act to 
provide direct congressional access to the office of the Chief Actuary 
in the Centers for Medicare & Medicated Services; to the Committee on 
Finance.
  Mr BAUCUS. Mr. President, I rise today to introduce the Congressional 
Access to the CMS Chief Actuary Act of 2004.
  This legislation provides Congress with greater access to cost 
estimates and other data produced and collected by the Center for 
Medicare and Medicaid Services (CMS) Office of the Actuary. The Office 
of the Actuary is a group of about 50 actuaries, economists, and other 
health professionals who provide non-partisan analyses of Medicare and 
other federally financed health care programs.
  Recently we learned that the administration's cost estimate of the 
Medicare Prescription Drug, Improvement, and Modernization Act of 2003 
is $534 billion over 10 years, nearly $140 billion higher than the 
estimates produced by the Congressional Budget Office (CBO). Contrary 
to statements by some members of the administration, Congress

[[Page 2017]]

did not have this estimate when it voted on this bill.
  It would be disingenuous of me to state that the higher cost estimate 
is my biggest concern. I have voted in the past for prescription drug 
bills estimated to cost more than $534 billion. And in the conference 
negotiations on this bill, I urged my colleagues to make changes until 
the final hours of the negotiations that would have added additional 
costs to the legislation.
  My greatest concern with the higher estimate is one of transparency. 
More specifically, I am concerned about the degree to which access to 
the CMS career actuaries has been restricted by this administration. 
Had Congress been able to freely communicate with the career actuaries 
during last year's Medicare negotiations, it would not have been 
surprised by the higher estimates. Moreover, I believe that input from 
the CMS actuaries could have informed the conferees and perhaps 
improved certain aspects of the bill in a positive way. And why 
shouldn't Congress have access to all available information on 
legislation under consideration?
  The restrictions placed on congressional access to the CMS actuary is 
in clear violation of the report language that was included in the 
Balanced Budget Act of 1997 (BBA 97). The 1997 BBA established the 
Office of the Actuary within CMS, which was then called the Health Care 
Financing Administration. Report language accompanying the legislation 
stated, ``The independence of the Office of the Actuary with respect to 
providing assistance to the Congress is vital. The process of 
monitoring, updating, and reforming the Medicare and Medicaid programs 
is greatly enhanced by the free flow of actuarial information from the 
Office of the Actuary to the committees of jurisdiction in the 
Congress.''
  While Congress intended that the Office of the Actuary would provide 
it with cost and other data as requested, a free flow of information 
has not occurred--particularly over the past year. I requested, as well 
as several of my colleagues, information from the Office of Actuary 
throughout last year's Medicare deliberations; however, our requests 
were unfulfilled. I do not fault the professionals in the Office of the 
Actuary. Rather, I believe the lack of response was the result of 
inappropriate restrictions placed on the office by administration 
political officials.
  In order for Congress to craft good legislation, we need access to 
the most up-to-date actuarial and cost information. CBO will always 
remain Congress's official score-keeper. But a second independent 
assessment is critical, particularly if the two estimates differ, as 
was the case of the recent Medicare legislation. Congress needs to 
understand the reasons for the differences, and only then can it make 
fully-informed decisions. And again, I ask, why shouldn't Congress have 
access to all available information on legislation under consideration?
  The legislation that I introduce today is very simple. It codifies 
the 1997 BBA report language to require that Congress have direct and 
open access to information and estimates produced by the independent 
CMS career actuaries. The bill's purpose is to improve Congress's 
ability to write good legislation and to make well-informed decisions.
  I want to be clear. The administration's higher cost-estimate does 
not change my support of this Medicare legislation. I continue to be a 
proud supporter of the bill.
  But I have also pledged to work to improve its flaws and to address 
its shortcomings. Any efforts to improve this bill will require 
vigilant oversight of its implementation and will require having access 
to the latest information about the program's participation, payment, 
and costs. The CMS career actuaries will play a fundamental role in the 
data collection. The administration's past practices of restricting and 
censoring this information cannot continue.
  This bill is about improving transparency in government and decision 
making. I urge all of my colleagues to support this legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2076

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Congressional Access to the 
     CMS Chief Actuary Act of 2004''.

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

       (a) Findings.--Congress finds the following:
       (1) In creating the Office of the Actuary in the Health 
     Care Financing Administration (now known as the Centers for 
     Medicare & Medicaid Services) with the enactment of the 
     Balanced Budget Act of 1997, Congress intended that the 
     Office would provide independent advice and analysis to 
     assist in the development of health care legislation.
       (2) While the Congressional Budget Office would continue to 
     serve as the official source for cost estimates for Congress, 
     Congress created the Office of the Actuary in order to have--
       (A) an additional, independent source for estimates in the 
     development of health care legislation; and
       (B) access to more detailed actuarial data and assumptions 
     related to program participation, payments, and costs.
       (3) While the joint explanatory statement of the committee 
     of conference contained in the conference report for the 
     Balance Budget Act of 1997 provided a clear statement of the 
     Congressional intent described in paragraphs (1) and (2), 
     Congressional access to the Office of the Actuary has been 
     inappropriately restricted over the past year.
       (b) Access.--Section 1117(b) of the Social Security Act (42 
     U.S.C. 1317(b)), as amended by section 900(c) of the Medicare 
     Prescription Drug, Improvement, and Modernization Act of 2003 
     (Public Law 108-173), is amended by adding at the end the 
     following new paragraph:
       ``(4)(A) In exercising the duties of the office of the 
     Chief Actuary, the Chief Actuary shall provide the committees 
     of jurisdiction of Congress with independent counsel and 
     technical assistance with respect to the programs under 
     titles XVIII, XIX, and XXI.
       ``(B) The Chief Actuary may directly provide Congress with 
     reports, comments on, and estimates of, the financial effects 
     of potential legislation, and other actuarial information 
     related to the programs described in subparagraph (A). No 
     officer or agency of the United States may require the Chief 
     Actuary to submit to any officer or agency of the United 
     States for approval, comments, or review, prior to the 
     provision to Congress of such reports, comments, estimates, 
     or other information.''.
                                 ______
                                 
      By Ms. MIKULSKI (for herself, Mr. Sarbanes, Mr. Hatch, and Mr. 
        Biden):
  S. 2081. A bill to amend the Office of National Drug Control Policy 
Act Reauthorization Act of 1998 to ensure that adequate funding is 
provided for certain high intensity drug trafficking areas; to the 
Committee on the Judiciary.
  Ms. MIKULSKI. Mr. President, today I rise to introduce legislation 
which will help America's families who are fighting to drive drugs and 
violence out of their communities.
  The Dawson Family Community Protection Act of 2004 asks the Federal 
Government to do its fair share by devoting some of its drug fighting 
resources to communities with high intensity drug trafficking and 
severe safety concerns. That means dedicating much needed resources to 
help communities fight the infiltration of drugs and the drug dealers 
that plague their communities and threaten the safety of their 
children.
  This bill is named in memory of a heroic Baltimore family--the 
Dawsons--whose active role in trying to rid their neighborhood of drugs 
and violence cost them their lives. Carnell and Angela Dawson lived in 
the community of Oliver in East Baltimore and raised five children 
there.
  Every day Angela, known as ``Angel,'' walked her children to school, 
she made sure that they only rode their bikes on the sidewalk so they 
would be safe. Her husband, Carnell, worked hard as a construction 
worker to provide for his family. Both parents were devoted to their 
children and wanted to make a better life for them.
  The house they lived in on the corner of N. Eden Street made Angel 
nervous. It had too many windows and she was scared that a stray bullet 
would come

[[Page 2018]]

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

                                S. 2081

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Dawson Family Community 
     Protection Act''.

     SEC. 2. FINDINGS.

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

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

       (a) In General.--Section 707(d) of the Office of National 
     Drug Control Policy Act Reauthorization Act of 1998 (21 
     U.S.C. 1706(d); Public Law 105-277; 112 Stat. 2681-670) is 
     amended to read as follows:
       ``(d) Authorization and Use of Funds.--
       ``(1) Authorization.--There are authorized to be 
     appropriated $5,000,000 to be used in high intensity drug 
     trafficking areas with severe neighborhood safety and illegal 
     drug distribution problems to--
       ``(A) ensure the safety of neighborhoods and the protection 
     of communities, including the prevention of the intimidation 
     of potential witnesses of illegal drug distribution and 
     related activities; and
       ``(B) combat illegal drug trafficking through such methods 
     as the Director considers appropriate, such as establishing 
     or operating (or both) a toll-free telephone hotline for use 
     by the public to provide information about illegal drug-
     related activities.
       ``(2) Use of funds.--The Director shall ensure that no 
     Federal funds appropriated for the High Intensity Drug 
     Trafficking Program are expended for the establishment or 
     expansion of drug treatment programs.''.
                                 ______
                                 
      By Mrs. BOXER:
  S. 2083. A bill to amend the Public Health Service Act and the 
Employee Retirement Income Security Act of 1974 to protect consumers in 
managed care plans and other health coverage; to the Committee on 
Health, Education, Labor, and Pensions.
  Mrs. BOXER. Mr. President, according to a Kaiser Family Foundation 
and Harvard School of Public Health survey of non-elderly Americans 
with private health insurance, one-half reported that they had a 
problem with their health insurance plans in the previous year. They 
cited delays and denials of coverage or care as their two most common 
problems. They also said they worried that if they became sick, their 
health plans would be more concerned about saving money than providing 
the best treatment. For those in managed care plans, such as HMOs, over 
two-thirds had this concern.
  And they have good reason to be concerned. Let me tell you about two 
of the many people, who were hurt when HMO decided it needed to save 
money. Ruby Calad had a hysterectomy and her doctor recommended that 
she stay in the hospital longer than a day. Cigna, Ruby's insurance 
company said one day was enough. So Ruby went home, but she was soon in 
the emergency room because she had developed

[[Page 2019]]

serious complications. Had Ruby been able to stay in the hospital 
longer, as recommended by her doctor, this would not have happened.
  Juan Davila suffers from diabetes and arthritis. His doctor 
prescribed VIOXX for his arthritis because it had a lower rate of 
bleeding and ulcers than drugs on the formulary developed by Aetna. But 
instead of approving the VIOXX, Juan was required to enter a step 
program and try two other medications before VIOXX could be approved. 
He was given naprosyn--a cheaper drug--and three weeks later was rushed 
to the hospital. He had developed bleeding ulcers, which caused a heart 
attack and internal bleeding. Juan survived but now cannot take any 
pain medication that is absorbed by the stomach.
  These examples show why medical decisions should be made by doctors, 
not HMO bureaucrats, and in 2001, the Senate, in a bipartisan vote of 
59-36, passed S. 1052, the Bipartisan Patient Protection Act to make 
sure that happened. Yet, intransigence from the House leadership and 
the White House prevented that bill from becoming law. Nearly 3 years 
later, we still have not acted. So, today, I am introducing the exact 
same bipartisan bill that passed in the Senate in 2001.
  This bill provides comprehensive protections to all Americans in all 
health plans. It says to all Americans who have health insurance, you 
have rights and protections. It says to HMOs, you have responsibilities 
and will be held accountable for your wrongful and harmful actions.
  This bill ensures that patients have the right to have medical 
decisions made by their doctors and not HMO bureaucrats. Patients will 
have the right to see a specialist and go to the closest emergency room 
for treatment. They will be able to keep the same doctor throughout 
their medical treatment and appeal adverse claim decisions to an 
independent reviewer. And if they are injured by a decision made by the 
HMO, they will have the right to hold their HMO accountable in a court.
  A meaningful patients bill of rights is long overdue. I urge my 
colleagues to support this legislation.
                                 ______
                                 
      By Mr. ALEXANDER (for himself, Mr. Carper, Mr. Dorgan, Mrs. 
        Feinstein, Mr. Graham of Florida, Mr. Hollings, Mrs. Hutchison, 
        Mr. Inouye, Mr. Lautenberg, Mr. Rockefeller, and Mr. 
        Voinovich):
  S. 2084. A bill to revive and extend the Internet Tax Freedom Act for 
2 years, and for other purposes; to the Committee on Commerce, Science, 
and Transportation.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent that the text 
of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2084

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Internet Tax Ban Extension 
     and Improvement Act''.

     SEC. 2. 2-YEAR EXTENSION OF MORATORIUM.

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

     SEC. 3. EXCEPTIONS FOR CERTAIN TAXES.

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

     ``SEC. 1104. EXCEPTIONS FOR CERTAIN TAXES.

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

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

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

     SEC. 5. ACCOUNTING RULE.

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

     ``SEC. 1106. ACCOUNTING RULE.

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

     SEC. 6. EFFECT ON OTHER LAWS.

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

     ``SEC. 1107. EFFECT ON OTHER LAWS.

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

     SEC. 7. EFFECTIVE DATE.

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

  Mr. ROCKEFELLER. Mr. President, I am pleased to cosponsor legislation 
introduced today that will reinstate a

[[Page 2020]]

moratorium on State and local taxation of access to the Internet. 
Senators Alexander and Carper have worked very hard to craft 
legislation that will protect Americans from being taxed for using the 
Internet, while still respecting the States' need to raise revenue from 
traditional telecommunications taxes. As a fellow former Governor, I 
have been pleased to join them in this effort and hope that all of my 
colleagues who have supported a moratorium on taxation of Internet 
access will support this bill.
  Until last fall, there was a moratorium in place prohibiting taxation 
of Internet access. Unfortunately, that lapsed before Congress was able 
to craft an extension. One of the reasons that extending the moratorium 
has been difficult is that we want to apply the lessons learned over 
the last few years. For example, the previous moratorium was not 
technology-neutral. That is, people who accessed the Internet using a 
DSL connection were not always treated the same as those who used dial-
up service or a cable modem. This was clearly an unintended consequence 
of the way that the previous legislation was drafted. In addition, over 
the last few years, we have seen many States struggle with enormous 
budget deficits. Recognizing that a downturn in the economy can 
compromise a state's ability to provide vital services, including 
schools, firefighters, and police officers, we do not want to undermine 
any state's revenue base.
  With these lessons in mind, Senators Alexander, Carper and others 
have crafted an extension of the previous moratorium that would ensure 
that no States impose new taxes on Internet access. The legislation 
specifically requires that all technologies be treated equally. And 
because the moratorium is limited to 2 years, it ensures that Congress 
will revisit the issue periodically as technologies develop and 
circumstances change.
  As a former Governor, I do not take lightly any Federal action that 
limits the options available to local and State elected officials I 
recognize how hard it is to balance a State budget and am only willing 
to support a moratorium on Internet access taxes because I believe that 
we are dealing with a unique new service. The Internet has the power to 
connect Americans as the radio, telephone, and television did for 
previous generations. By sending e-mails, telecommuting, or banking 
online, Americans are communicating in a new way that makes our economy 
more productive and enhances our quality of life. If sparing Internet 
access from taxation increasing the ability of low and moderate income 
Americans to join the technology revolution, then it is certainly a 
worthy public policy goal.
  Now, Senators Allen and Wyden have offered an alternative approach. 
They have proposed legislation that would permanently bar States ad 
cities from taxing Internet access, and they have defined the service 
broadly that many experts believe it will undermine some 
telecommunications taxes on which States currently depend. I am not 
interested in providing enormous tax breaks to the telecommunications 
industry, and so I oppose their approach. Taxes that businesses 
currently pay to access the Internet backbone are reasonable costs of 
doing business. I hope that my colleagues will not be intimidated by 
claims that those of us who oppose tax breaks for telecommuncations 
companies actually want to tax people's e-mails. That is a false 
argument, and anyone who resorts to it is surely trying to avoid the 
difficult issues that are addressed by the bill introduced today by 
Senators Alexander and Carper.
  I would like to make one final point to my colleagues, and that is 
about fallibility. Every day we get fresh evidence that things are not 
always as they seemed and that we do not, in fact, know everything we 
thought we knew. If fallibility is part of being human, then surely it 
is part of any legislative body. If the moratorium that Congress had 
imposed 5 years ago had been permanent, then we would have had a 
difficult time reopening the issue to address the fact that certain 
technologies were not protected under the act. We ought not make that 
mistake now by thinking that we can accurately foresee the exciting 
technological developments on the horizon. It is appropriate for 
Congress to revisit this issue in two years, as the Alexander-Carper 
proposal allows.
  I hope that all of my colleagues will join me in support of a new 
temporary moratorium on Internet access taxes. Enacting this 
legislation quickly will ensure that Americans are not hit with any 
taxes when they try to log on.
                                 ______
                                 
      By Mr. REID (for himself and Mr. Ensign):
  S. 2085. A bill to modify the requirements of the land conveyance to 
the University of Nevada at Las Vegas Research Foundation; to the 
Committee on Energy and Natural Resources.
  Mr. REID. Mr. President, I rise today for myself and Senator Ensign 
to introduce the University of Nevada at Las Vegas Research Foundation 
Reinvestment Act, which enhances the long-term viability of the 
University of Nevada at Las Vegas by allowing proceeds from leases of 
the University of Nevada at Las Vegas Research Foundation property to 
be reinvested.
  Mr. President, through provisions of the Southern Nevada Public Land 
Management Act of 1998, the Clark County Department of Aviation 
acquired land that was formerly owned by the Federal Government. A 
subsequent law, the Clark County Conservation of Public Land and 
Natural Resources Act of 2002, transferred this land to the University 
of Las Vegas Research Foundation for construction of a research park 
and technology center.
  Under current law, only 10 percent of the proceeds from the sale, 
lease, or conveyance of this land may be reinvested. This restriction 
hinders efforts to promote research and development at the research 
park.
  Mr. President, the bill that I am introducing today amends the Clark 
County Conservation of Public Land and Natural Resources Act of 2002 to 
allow the proceeds of the Foundation's research park leases to be used 
to carry out the foundation's research mission.
  The foundation's research park and technology center in the greater 
Las Vegas area will enhance the research mission of the university, 
increasing the potential for the high-tech industry and 
entrepreneurship in the State. It provides the public with 
opportunities for high-tech education and research, and at the same 
time provides the State with opportunities for competition and economic 
development in the high-tech field. It is imperative that sufficient 
funds are always available to maintain and enhance the center.
  Mr. President, I ask unanimous consent that the full text of the bill 
be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2085

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``University of Nevada at Las 
     Vegas Research Foundation Reinvestment Act''.

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

       Section 702(b)(2) of Public Law 107-282 (116 Stat. 2013) is 
     amended by striking ``that if the land'' and all that follows 
     through ``conveyed by the Foundation.'' and inserting the 
     following: ``that provides that (except in a case in which 
     the gross proceeds of a sale, lease, or conveyance are 
     provided to the Foundation to carry out the purposes for 
     which the Foundation was established), if the land described 
     in paragraph (3) is sold, leased, or otherwise conveyed by 
     the Foundation--''.
                                 ______
                                 
      By Mr. GRAHAM of Florida:
  S. 2087. A bill to amend the Internal Revenue Code of 1986 to expand 
the Hope Scholarship and Lifetime Learning Credits; to the Committee on 
Finance.
  Mr. GRAHAM of Florida. Mr. President, today, I am introducing 
legislation that increases the Federal commitment to help families meet 
the increasing costs of higher education.
  In today's economy--as well as with life in general--getting a higher 
education is essential. A college educated

[[Page 2021]]

male worker can expect to earn $29,000 more each year than his 
counterpart without such education. Over a working career, this edge 
results in more than $1 million. For women, the importance is even more 
pronounced. A college-educated woman can expect to earn twice what her 
counterpart with only a high school diploma will earn (Condition of 
Education 2000, U.S. Department of Education). Perhaps Federal Reserve 
Chairman Greenspan put it best when he said ``we must ensure that our 
whole population receives an education that will allow full and 
continuing participation in this dynamic period of American economic 
history.''
  Having college-educated parents also forms the foundation for better 
lives for their children. Census data reveals that children of college-
educated parents are twice as likely to go to college, as are those 
with parents who did not go to college. Research also suggest that 
children of college-educated parents are healthier and perform better 
academically than children of those with only a high school diploma.
  Recognizing the importance of an advanced degree is only part of the 
battle. Attendance at a college or university is an expensive 
proposition for most American families. Worse yet, it is getting even 
more expensive. According to the Congressional Research Service, 
increases in tuition over the last twenty years on a constant dollar 
basis have outpaced growth in the average household's income. The 
difficulty of paying for college is particularly acute for lower-income 
families. In 1980, college costs consumed 32 percent of the average 
household income for a family in the lowest income quintile. By 2000, 
the percentage of that family's income needed to pay for college 
increased to 56 percent.
  In the 2001-2002 school year, about $90 billion was awarded in 
student aid. The Federal Government provided seventy percent of this 
aid through appropriations, guaranteed loans, and tax credits. Although 
this $90 billion represents a substantial increase in the amount of aid 
provided by the Federal Government from just ten years ago, the Federal 
Government can and should do more.
  A recent report by the Congressional Budget Office examined the cost 
of attending colleges and universities and how those costs are borne. 
CBO estimates that the average annual cost of attendance at public 
four-year colleges in the 1999-2000 academic year was nearly $11,300 
after taking into consideration that portion of the costs that are 
covered by the institutions themselves or as a subsidy from State 
legislatures. Parents and students on average are responsible for 
nearly three-quarters of this amount, which is a significant financial 
hurdle, particularly for low-income families.
  Under current law the maximum credit available under the HOPE 
Scholarship tax credit program is $1,500 assuming the student has at 
least $2,000 of tuition costs. The bill I am introducing increases the 
credit percentage to 100 percent of tuition costs and increases the 
maximum credit available to $2,500.
  Second, the bill extends the HOPE Scholarship credit to cover four 
years of higher education. It recognizes that our economy increasingly 
demands that tomorrow's worker has a college degree, and to get such a 
degree requires at least four years. We shouldn't have a program 
designed to assist students in obtaining those degrees that abandons 
them mid-stream.
  Third, the legislation makes the HOPE credit refundable. 
Refundability is the only way to provide financial assistance through 
the tax code to families with low incomes. And that assistance is 
sorely needed. According to CBO the HOPE tax credit amounts to $147 of 
assistance, on average, for families with income less than $30,000.
  Finally, the bill creates a mechanism by which families can get the 
benefits of the credit sooner than it is currently available. Today, 
families must pay the tuition costs and then file for the credit in 
April of the following year when they file their income tax returns. 
The bill directs Treasury to create a program that would allow it to 
transfer the value of the credit directly to an educational institution 
on behalf of the taxpayer. A similar mechanism is currently available 
to those eligible for the tax credit for health insurance costs.
  The bill I am introducing today focuses on those students who follow 
a more traditional path to higher education. I will be introducing 
separate legislation in the near future that makes changes to the 
Lifetime Learning credit designed to make it more useful for 
``nontraditional'' students.
                                 ______
                                 
      By Mr. KENNEDY (for himself, Mr. Daschle, Mr. Reid, Mr. Leahy, 
        Mr. Dodd, Mr. Harkin, Mr. Kerry, Mr. Feingold, Ms. Mikulski, 
        Mr. Schumer, Mrs. Murray, Mr. Durbin, Mr. Edwards, Mrs. 
        Clinton, Mr. Sarbanes, Mr. Lautenberg, Mr. Corzine, Ms. 
        Landrieu, and Ms. Cantwell):
  S. 2088. A bill to restore, reaffirm, and reconcile legal rights and 
remedies under civil rights statutes; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues, 
Senators Daschle, Reid, Leahy, Dodd, Harkin, Kerry, Feingold, Mikulski, 
Schumer, Murray, Durbin, Edwards, Clinton, Sarbanes, Lautenberg, 
Corzine, Landrieu, and Cantwell today in introducing the ``Fairness and 
Individual Rights Necessary to Ensure a Stronger Society: the Civil 
Rights Act of 2004''. This legislation, the ``Fairness Act,'' is vital 
to realizing the full promise of, the numerous Federal laws that have 
been enacted to guarantee civil rights and fair labor practices for all 
our citizens.
  2004 is an especially significant year in commemorating the historic 
landmarks in America's struggle for civil rights. On January 15, we 
celebrated the 75th anniversary of the birth of Dr. Martin Luther King. 
On May 17, we will celebrate the 50th anniversary of the Supreme 
Court's historic decision in Brown v. Board of Education. And on July 
2, we will celebrate the 40th Anniversary of the Civil Rights Act of 
1964.
  These historic milestones make this year not only a time for 
celebration, but also a time to reaffirm our commitment to the cause of 
civil rights, which is still the unfinished business of America. We 
must continue moving toward the goal for which so many have given so 
much across the years. The bipartisan civil rights laws that have been 
enacted over the past forty years have made our Nation stronger, 
better, and fairer. Civil rights is at its heart the ongoing, daily 
struggle to live up to what is best about America--our fundamental 
belief in equal opportunity and equal justice for all.
  The Fairness Act is part of that continuing effort. Its goal is to 
guarantee that victims of discrimination and unfair labor practices 
have access to the courts when necessary to enforce their rights and to 
obtain effective remedies. As Congress has long realized, full 
enforcement of civil rights and fair labor practices is possible only 
if individuals are able to petition the courts. Our proposals will 
strengthen existing protections, often in cases where the courts have 
let us down by adopting unacceptably narrow interpretations of existing 
law. We recognize as well that Congress has not always made its intent 
clear in enacting specific and detailed provisions of these laws.
  Unfortunately, recent court decisions have limited the private right 
to seek relief and to obtain effective remedies under many of our civil 
rights and labor laws. Cases like Alexander v. Sandoval and Kimel v. 
Florida Board of Regents have effectively closed the courthouse door on 
many persons seeking relief they deserve from discriminatory practices.
  Key elements of our proposals will make it easier for working women 
to enforce their right to equal pay for equal work. We enhance 
protections against discrimination in federally funded services and 
enact needed safeguards for students who are harassed because of their 
national origin, gender, race, or disability. We also make 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

[[Page 2022]]

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.

[[Page 2023]]

     794) in Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 
     (1984), stating that ``[t]he regulations particularly merit 
     deference in 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

[[Page 2024]]

     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 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

[[Page 2025]]

     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 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

[[Page 2026]]

     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--
       (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

[[Page 2027]]

     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
       ``(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

[[Page 2028]]

     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
       (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

[[Page 2029]]

     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 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

[[Page 2030]]

     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 
     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--

[[Page 2031]]

       (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;
       (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

[[Page 2032]]

     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.
       (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

[[Page 2033]]

     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 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

[[Page 2034]]

officers, the individual was strapped in with improper belts that came 
loose, throwing him to the floor. The Supreme Court held that this 
individual could not seek punitive damages under the Americans with 
Disabilities Act and Section 504 of the Rehabilitation Act for this 
mistreatment. The Fairness Act will restore his rights and those of 
others who have suffered discrimination.
  It will also reverse Buchannon Bd. & Care Home, Inc. v. West Virginia 
Dep't of Health & Human Resources, 532 U.S. 598, 2001. In that case, 
the defendant had been sued under the ADA and the Fair Housing Act. The 
Court held that even if the lawsuit causes the defendants to 
voluntarily make changes, the plaintiff cannot recover attorneys' fees 
unless he or she has been awarded relief by a court. This case has made 
it extremely difficult to find attorneys to take disability cases.
  The Fairness Act will also clarify that passengers with disabilities 
may sue for violations of the Air Carriers Access Act, ACCA, and its 
regulations. A circuit court recently applied the Supreme Court's 
decision in Alexander v. Sandoval, 532 U.S. to prohibit suits under the 
ACAA. Congress intended that individuals have the ability to seek 
redress for violations of this statute.
  The bill, however, does not address individuals with disabilities in 
some areas because Congress already has provided clear protection for 
them. So, for example, Congress has clearly indicated that a private 
right of action exists to enforce disparate impact disability-based 
discrimination under Section 504 of the Rehabilitation Act. Congress 
approved of the regulations promulgated to implement section 504 and 
incorporated these regulations into the statutory requirements of the 
Americans with Disabilities Act of 1990.
  The bill also does not address the disability-specific negative 
decisions of the Supreme Court. These decisions have undermined the ADA 
by dramatically narrowing those who are covered under the Act and 
imposing other restrictions. As the lead sponsor of the ADA in the 
Senate, I believe that these cases directly conflict with congressional 
intent. I am working with the disability community and others to 
address these cases.
  The Fairness Act is aptly named. It is designed to ensure that 
everyone is treated equally under the law and that America will be a 
Nation that protects and enforces the civil rights of all its citizens.
                                 ______
                                 
      By Mr. FRIST (for himself, Ms. Landrieu, Mr. Cochran, Mr. DeWine, 
        Mr. Bond, Mr. Warner, Mr. Talent, and Mrs. Hutchison):
  S. 2091. A bill to improve the health of health disparity population; 
to the Committee on Health, Education, Labor, and Pensions.
  Mr. FRIST. Mr. President, I am proud to join today with Senator Mary 
Landrieu, Senator Thad Cochran, Senator Mike DeWine, Senator 
Christopher Bond, Senator James Talent, Senator John Warner, and 
Senator Kay Bailey Hutchison to introduce the ``Closing the Health Care 
Gap Act of 2004.''
  Earlier today, I was pleased to be joined at a press conference by an 
impressive array of leaders in this fight--Dr. Louis Sullivan, Dr. Rene 
Rodriguez, Dr. Randall Maxey, Dr. John Maupin, and Dr. James Gavin. I 
appreciate their support for this legislation, and also appreciate the 
support of other national leaders committed to closing the health care 
disparity gap in America.
  Last May, in a speech to graduating students and families at 
Morehouse University's School of Medicine, I outlined a framework for 
action to combat disparities. Since then, I have reached out broadly 
and worked with a wide range of stakeholders and leaders to gather 
their input and ideas to ensure the legislation we are introducing 
today includes the best possible strategies to eliminate health 
disparities. I am also proud to be joined today by a number of 
colleagues who are committed to this cause. I particularly want to 
thank Senator Landrieu for working across party lines on this 
bipartisan legislation.
  As former Surgeon General Louis W. Sullivan, MD, said at a press 
briefing earlier today on this legislation, ``[e]thnic minorities 
represent the fastest growing segment of the U.S. population, and 
therefore, it is critical that we have a sustained and coordinated 
commitment to addressing this national problem. The ``Closing the 
Health Care Gap Act'' seeks to do that. . .''
  This legislation builds on past bipartisan efforts to address 
disparities in our health care system--most importantly, the ``Minority 
Health and Health Disparities Research and Education Act of 2000,'' 
which I authored with Senator Edward Kennedy.
  The legislation we are introducing today goes much farther.
  Over recent years, we have made tremendous advances in our knowledge 
of and fight against disease. But we know that millions of Americans 
still experience disparities in health outcomes as a result of 
ethnicity, race, gender, or limited access to quality health care. For 
example, disparity populations exhibit poorer health outcomes and have 
higher rates of HIV/AIDS, diabetes, infant mortality, cancer, heart 
disease, and other illnesses.
  African Americans and Native Americans die younger than any other 
racial or ethnic group.
  African Americans and Native American babies die at significantly 
higher rates than the rest of the population.
  African Americans, Native Americans, and Hispanic Americans are at 
least twice as likely to suffer from diabetes and experience serious 
complications from diabetes.
  These gaps are simply unacceptable in America today. Let me repeat, 
they are unacceptable. And, today, we begin a new and aggressive effort 
to address these inequities.
  The root causes of the health care disparities are multiple and 
certainly complex. That is why we need a broad and comprehensive 
approach to reduce and eliminate these disparities. This legislation 
takes a bold step in that direction.
  Many of our Nation's smartest minds have examined this problem in 
detail. The Institute of Medicine (IOM) in its landmark report 
``Unequal Treatment,'' concluded that health care disparities are 
caused by socioeconomic factors, language barriers, access to services 
problems, behavioral risk factors, and cultural issues including, 
unfortunately, mistrust and misunderstanding of some patients toward 
the health care system.
  The ``Closing the Health Care Gap Act'' directly addresses the root 
causes of health care disparities by focusing on five key areas: 
expanding access to quality health care; strengthening national 
leadership efforts and coordination; helping increase the diversity of 
health professionals; promoting more aggressive health professional 
education intended to reduce barriers to care; and enhancing research 
to identify sources of racial, ethnic, and geographic disparities and 
assess promising intervention strategies.
  More specifically, this bill: promotes improved understanding of the 
quality of health care delivered to racial and ethnic minorities and 
health disparity populations; improves collection and reporting of data 
on the health care of racial and ethnic minorities and health disparity 
populations; reduces some of the fragmentation of health care delivery 
experienced by disparity populations; strengthens the doctor-patient 
relationship by providing a series of tools to improve communication 
and continuity of care; supports the use of community health workers; 
supports the implementation of multidisciplinary treatment and 
preventive care teams; improves education and information to allow 
patients to better manage and control their own care; and increases the 
proportion of racial and ethnic minorities among health professionals.
  It is important that we act, as well, because health care disparities 
magnify many of the quality deficiencies in our overall health care 
system. This point was well documented by the IOM in a series of 
reports issued during the

[[Page 2035]]

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

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

  S. 2093. A bill to maintain full marriage tax penalty relief for 
2005; to the Committee on Finance.
  Mrs. HUTCHISON. Mr. President, I am pleased to introduce a bill to 
continue relief from the marriage penalty--the most egregious, 
antifamily provision of the Tax Code. One of my highest priorities in 
the U.S. Senate has been to relieve American taxpayers of this punitive 
burden.
  Last year, I worked with my colleagues and President Bush to pass a 
$350 billion jobs and economic growth package to put Americans back to 
work and stimulate the economy. We are now seeing the fruits of our 
efforts. The tax relief has left more money in the pockets of 
individuals and small businesses, freeing the engines of the economy. 
Private sector growth is strong, the stock market is up, and jobs are 
being created.
  One of the most important provisions of the legislation provided 
immediate marriage penalty relief by raising the standard deduction and 
enlarging the 15-percent tax bracket for married joint filers to twice 
that of single filers. This provision will save 34 million married 
couples an average of almost $600 on their 2003 tax bills.
  Enacting marriage penalty relief was a giant step for tax fairness, 
but it may be fleeting. Even as people begin to feel the benefits from 
the relief, a tax increase looms in the near future. Since the bill was 
restricted by limitations imposed by Congress, the marriage penalty 
provisions will only be in effect for 2 years. In 2005, marriage will 
again be a taxable event for millions of Americans.
  Without relief, 48 percent of married couples will again pay more in 
taxes.
  Even as the economy strengthens, many families face difficult choices 
in making ends meet. We must make sure we do not backtrack on this 
important reform.
  The benefits of marriage are well established, but without marriage 
penalty relief, the Tax Code provides a significant disincentive for 
people to walk down the aisle. Marriage is a fundamental institution in 
our society and should not be discouraged by the IRS. Children living 
in a married household are far less likely to live in poverty or to 
suffer from child abuse. Research indicates they are less likely to be 
depressed or have developmental problems. Scourges such as adolescent 
drug use are less common in married families, and married mothers are 
less likely to be victims of domestic violence.
  I have sought to make full marriage penalty relief permanent. 
However, given the current budget constraints and the politics of an 
election year, this will be difficult. I therefore am offering this 
bill to extend last year's victory for married couples for 1 year, 
through 2005.
  As Valentine's Day approaches, we should celebrate marriage, not 
penalize it. We cannot be satisfied until couples never again must 
decide between love and money. Marriage should not be a taxable event.
  I call on the Senate to build on the 2003 tax cuts and say ``I do'' 
to extending marriage penalty relief today.
  Mr. President, I ask unanimous consent that a copy of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2093

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Marriage Penalty Relief 
     Extension Act of 2004''.

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

       (a) Standard Deduction.--Paragraph (7) of section 63(c) of 
     the Internal Revenue Code of 1986 (relating to applicable 
     percentage) is amended by striking ``174'' and inserting 
     ``200''.
       (b) 15-Percent Bracket.--Subparagraph (B) of section 
     1(f)(8) of the Internal Revenue Code of 1986 (relating to 
     applicable percentage) is amended by striking ``180'' and 
     inserting ``200''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2003.
       (d) Application of EGTRRA Sunset to This Section.--Each 
     amendment made by this section shall be subject to title IX 
     of the Economic Growth and Tax Relief Reconciliation Act of 
     2001 to the same extent and in the same manner as the 
     provision of such Act to which such amendment relates.
                                 ______
                                 
      By Mr. CAMPBELL:
  S.J. Res. 27. A joint resolution recognizing the 60th anniversary of 
the Allied landing at Normandy during World War II; to the Committee on 
the Judiciary.
  Mr. CAMPBELL. Mr. President, it is a privilege to introduce a joint 
resolution commemorating the 60th anniversary of the June 6, 1944 
landings in Normandy that paved the way for the liberation of Europe. 
Operation Overlord, code named D-Day, was the culmination of months of 
planning and strategic air attacks. Under cover of darkness 18,000 
British and American airborne forces were deployed in the initial phase 
of the operation commanded

[[Page 2036]]

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

                              S.J. Res. 27

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

                          ____________________