Home > 106th Congressional Bills > S. 2089 (is) To amend the Foreign Intelligence Surveillance Act of 1978 to modify procedures relating to orders for surveillance and searches for foreign intelligence purposes, and for other purposes. [Introduced in Senate] ...S. 2089 (is) To amend the Foreign Intelligence Surveillance Act of 1978 to modify procedures relating to orders for surveillance and searches for foreign intelligence purposes, and for other purposes. [Introduced in Senate] ...
108th CONGRESS
2d Session
S. 2088
To restore, reaffirm, and reconcile legal rights and remedies under
civil rights statutes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 12, 2004
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) introduced the
following bill; which was read twice and referred to the Committee on
Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To restore, reaffirm, and reconcile legal rights and remedies under
civil rights statutes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fairness and Individual Rights
Necessary to Ensure a Stronger Society: Civil Rights Act of 2004''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--NONDISCRIMINATION IN FEDERALLY FUNDED PROGRAMS AND ACTIVITIES
Subtitle A--Private Rights of Action and the Disparate Impact Standard
of Proof
Sec. 101. Findings.
Sec. 102. Prohibited discrimination.
Sec. 103. Rights of action.
Sec. 104. Right of recovery.
Sec. 105. Construction.
Sec. 106. Effective date.
Subtitle B--Harassment
Sec. 111. Findings.
Sec. 112. Right of recovery.
Sec. 113. Construction.
Sec. 114. Effective date.
TITLE II--UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF
1994 AMENDMENT
Sec. 201. Amendment to the Uniformed Services Employment and
Reemployment Rights Act of 1994.
TITLE III--AIR CARRIER ACCESS ACT OF 1986 AMENDMENT
Sec. 301. Findings.
Sec. 302. Civil action.
TITLE IV--AGE DISCRIMINATION IN EMPLOYMENT ACT AMENDMENTS
Sec. 401. Short title.
Sec. 402. Findings.
Sec. 403. Purposes.
Sec. 404. Remedies for State employees.
Sec. 405. Disparate impact claims.
Sec. 406. Effective date.
TITLE V--CIVIL RIGHTS REMEDIES AND RELIEF
Subtitle A--Prevailing Party
Sec. 501. Short title.
Sec. 502. Definition of prevailing party.
Subtitle B--Arbitration
Sec. 511. Short title.
Sec. 512. Amendment to Federal Arbitration Act.
Sec. 513. Unenforceability of arbitration clauses in employment
contracts.
Sec. 514. Application of amendments.
Subtitle C--Expert Witness Fees
Sec. 521. Purpose.
Sec. 522. Findings.
Sec. 523. Effective provisions.
Subtitle D--Equal Remedies Act of 2004
Sec. 531. Short title.
Sec. 532. Equalization of remedies.
TITLE VI--PROHIBITIONS AGAINST SEX DISCRIMINATION
Sec. 601. Short title.
Sec. 602. Findings.
Sec. 603. Enhanced enforcement of equal pay requirements.
Sec. 604. Training.
Sec. 605. Research, education, and outreach.
Sec. 606. Technical assistance and employer recognition program.
Sec. 607. Establishment of the National Award for Pay Equity in the
Workplace.
Sec. 608. Collection of pay information by the Equal Employment
Opportunity Commission.
Sec. 609. Authorization of appropriations.
TITLE VII--PROTECTIONS FOR WORKERS
Subtitle A--Protection for Undocumented Workers
Sec. 701. Findings.
Sec. 702. Continued application of backpay remedies.
Subtitle B--Fair Labor Standards Act Amendments
Sec. 711. Short title.
Sec. 712. Findings.
Sec. 713. Purposes.
Sec. 714. Remedies for State employees.
TITLE I--NONDISCRIMINATION IN FEDERALLY FUNDED PROGRAMS AND ACTIVITIES
Subtitle A--Private Rights of Action and the Disparate Impact Standard
of Proof
SEC. 101. FINDINGS.
Congress finds the following:
(1) This subtitle is made necessary by a decision of the
Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001)
that significantly impairs statutory protections against
discrimination that Congress has erected over a period of
almost 4 decades. The Sandoval decision undermines these
statutory protections by stripping victims of discrimination
(defined under regulations that Congress required Federal
departments and agencies to promulgate to implement title VI of
the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)) of the
right to bring action in Federal court to redress the
discrimination and by casting doubt on the validity of the
regulations themselves.
(2) The Sandoval decision attacks settled expectations
created by title VI of the Civil Rights Act of 1964, title IX
of the Education Amendments of 1972 (also known as the ``Patsy
Takemoto Mink Equal Opportunity in Education Act'') (20 U.S.C.
1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C.
6101 et seq.), and section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) (collectively referred to in this Act as
the ``covered civil rights provisions''). The covered civil
rights provisions were designed to establish and make effective
the rights of persons to be free from discrimination on the
part of entities that are subject to 1 or more of the covered
civil rights provisions, as appropriate (referred to in this
Act as ``covered entities''). In 1964 Congress adopted title VI
of the Civil Rights Act of 1964 to ensure that Federal dollars
would not be used to subsidize or support programs or
activities that discriminated on racial, color, or national
origin grounds. In the years that followed, Congress extended
these protections by enacting laws barring discrimination in
federally funded activities on the basis of sex in title IX of
the Education Amendments of 1972, age in the Age Discrimination
Act of 1975, and disability in section 504 of the
Rehabilitation Act of 1973.
(3) From the outset, Congress and the executive branch made
clear that the regulatory process would be used to ensure broad
protections for beneficiaries of the law. The first regulations
promulgated by the Department of Justice under title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) forbade the
use of ``criteria or methods of administration which have the
effect of subjecting individuals to discrimination . . .''
(section 80.3 of title 45, Code of Federal Regulations) and
prohibited retaliation against persons participating in
litigation or administrative resolution of charges of
discrimination brought under the Act. These regulations were
drafted by the same executive branch officials who played a
central role in drafting title VI of the Civil Rights Act of
1964. The language used is, in relevant respects, virtually
indistinguishable from regulations under the several Acts in
effect today. For example, section 304 of the Age
Discrimination Act of 1975 (42 U.S.C. 6103) required the
Secretary of the Department of Health, Education, and Welfare
(HEW) (now Health and Human Services (HHS)) to promulgate
``general regulations'' to effectuate the purposes of the Act.
These ``government-wide regulations,'' governing age
discrimination in programs and activities receiving Federal
financial assistance condemn ``any actions which have [a
discriminatory] effect, on the basis of age . . .'' (section
90.12 of title 45, Code of Federal Regulations).
(4) None of the regulations under the laws addressed in
this subtitle have ever been invalidated. In 1966, Congress
considered and rejected a proposal to invalidate the disparate
impact regulations promulgated pursuant to title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.). In 1975,
Congress reviewed and maintained the implementing regulations
promulgated pursuant to title IX of the Education Amendments of 1972
(20 U.S.C. 1681 et seq.), pursuant to a statutory procedure designed to
afford Congress the opportunity to invalidate provisions deemed to be
inconsistent with congressional intent. The Supreme Court has
recognized that Congress's failure to disapprove regulations implies
that the regulations accurately reflect congressional intent. North
Haven Bd. of Educ. v. Bell, 456 U.S. 512, 533-34 (1982). Moreover, the
Supreme Court explicitly recognized congressional approval of the
regulations promulgated to implement section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794) in Consolidated Rail Corp. v. Darrone, 465
U.S. 624, 634 (1984), stating that ``[t]he regulations particularly
merit deference in 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
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