I
119THCONGRESS
1
STSESSION H. R. 1354
To amend the Civil Rights Act of 1964 to clarify that disparate impacts
on certain populations constitute a sufficient basis for rights of action
under such Act, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY13, 2025
Ms. T
LAIB(for herself, Mr. CLEAVER, Ms. LEEof Pennsylvania, Mr. JOHN-
SONof Georgia, Mr. GARCI´Aof Illinois, Ms. NORTON, Ms. KAMLAGER-
D
OVE, Mrs. MCIVER, Mr. FROST, Ms. ADAMS, Ms. PRESSLEY, Mr. JACK-
SONof Illinois, Mrs. RAMIREZ, and Mr. MFUME) introduced the following
bill; which was referred to the Committee on the Judiciary, and in addi-
tion to the Committee on Education and Workforce, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee con-
cerned
A BILL
To amend the Civil Rights Act of 1964 to clarify that dis-
parate impacts on certain populations constitute a suffi-
cient basis for rights of action under such Act, and
for other purposes.
Be it enacted by the Senate and House of Representa-1
tives of the United States of America in Congress assembled, 2
SECTION 1. SHORT TITLE. 3
This Act may be cited as the ‘‘Justice for All Act 4
of 2025’’. 5
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SEC. 2. FINDINGS. 1
Congress finds the following: 2
(1) This Act is made necessary by a decision of 3
the Supreme Court in Alexander v. Sandoval, 532 4
U.S. 275 (2001) that significantly impairs statutory 5
protections against discrimination that Congress has 6
erected over a period of almost 4 decades. The 7
Sandoval decision undermines these statutory pro-8
tections by stripping victims of discrimination (de-9
fined under regulations that Congress required Fed-10
eral departments and agencies to promulgate to im-11
plement title VI of the Civil Rights Act of 1964 (42 12
U.S.C. 2000d et seq.)) of the right to bring action 13
in Federal court to redress the discrimination. 14
(2) The Sandoval decision contradicts settled 15
expectations created by title VI of the Civil Rights 16
Act of 1964, title IX of the Education Amendments 17
of 1972 (also known as the ‘‘Patsy Takemoto Mink 18
Equal Opportunity in Education Act’’) (20 U.S.C. 19
1681 et seq.), the Age Discrimination Act of 1975 20
(42 U.S.C. 6101 et seq.), and section 504 of the Re-21
habilitation Act of 1973 (29 U.S.C. 794) (collec-22
tively referred to in this Act as the ‘‘covered civil 23
rights provisions’’). The covered civil rights provi-24
sions were designed to establish and make effective 25
the rights of persons to be free from discrimination 26
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on the part of entities that are subject to 1 or more 1
of the covered civil rights provisions, as appropriate 2
(referred to in this Act as ‘‘covered entities’’). In 3
1964 Congress adopted title VI of the Civil Rights 4
Act of 1964 to ensure that Federal dollars would not 5
be used to subsidize or support programs or activi-6
ties that discriminated on racial, color, or national 7
origin grounds. In the years that followed, Congress 8
extended these protections by enacting laws barring 9
discrimination in federally funded education activi-10
ties on the basis of sex in title IX of the Education 11
Amendments of 1972, and discrimination in feder-12
ally funded activities on the basis of age in the Age 13
Discrimination Act of 1975 and disability in section 14
504 of the Rehabilitation Act of 1973. 15
(3) All of the statutes cited in this section were 16
designed to protect persons subject to discrimina-17
tion. As Congress has consistently recognized, effec-18
tive enforcement of the statutes and protection of 19
the rights guaranteed under the statutes depend 20
heavily on the efforts of private attorneys general. 21
Congress acknowledged that it could not secure com-22
pliance solely through administrative efforts and en-23
forcement actions initiated by the Attorney General. 24
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Newman v. Piggie Park Enterprises, 390 U.S. 400 1
(1968) (per curiam). 2
(4) The Supreme Court has made it clear that 3
individuals suffering discrimination under these stat-4
utes have a private right of action in the Federal 5
courts, and that this is necessary for effective pro-6
tection of the law, although Congress did not make 7
such a right of action explicit in the statute involved. 8
Cannon v. University of Chicago, 441 U.S. 677 9
(1979). 10
(5) Furthermore, for effective enforcement of 11
the statutes cited in this section, it is necessary that 12
the private right of action include a means to chal-13
lenge all forms of discrimination that are prohibited 14
by the statutes, including practices that have a dis-15
parate impact and are not justified as necessary to 16
achieve the legitimate goals of programs or activities 17
supported by Federal financial assistance. 18
(6) By reinstating a private right of action to 19
challenge disparate impact discrimination under title 20
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 21
et seq.) and confirming that right for other civil 22
rights statutes, Congress is not acting in a manner 23
that would expose covered entities to unfair findings 24
of discrimination. The legal standard for a disparate 25
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impact claim has never been structured so that a 1
finding of discrimination could be based on numer-2
ical imbalance alone. 3
(7) In contrast, a failure to reinstate or confirm 4
a private right of action would leave vindication of 5
the rights to equality of opportunity solely to Fed-6
eral agencies. Action by Congress to specify a pri-7
vate right of action is necessary to ensure that per-8
sons will have a remedy if they are denied equal ac-9
cess to education, housing, health, environmental 10
protection, transportation, and many other programs 11
and services by practices of covered entities that re-12
sult in discrimination. 13
(8) As a result of the Supreme Court’s decision 14
in Sandoval, courts have dismissed numerous claims 15
brought under the regulations promulgated pursuant 16
to title VI of the Civil Rights Act of 1964 (42 17
U.S.C. 2000d et seq.) that challenged actions with 18
an unjustified discriminatory effect. Although the 19
Sandoval Court did not address title IX of the Edu-20
cation Amendments of 1972 (20 U.S.C. 1681 et 21
seq.), lower courts have similarly dismissed claims 22
under such title. 23
(9) Section 504 of the Rehabilitation Act of 24
1973 (29 U.S.C. 794) has received different treat-25
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ment by the Supreme Court. In Alexander v. Choate, 1
469 U.S. 287 (1985), the Court proceeded on the 2
assumption that the statute itself prohibited some 3
actions that had a disparate impact on disabled indi-4
viduals—an assumption borne out by congressional 5
statements made during passage of the Act. In 6
Sandoval, the Court appeared to accept this prin-7
ciple of Alexander. Moreover, the Supreme Court ex-8
plicitly recognized congressional approval of the reg-9
ulations promulgated to implement section 504 of 10
the Rehabilitation Act of 1973 in Consolidated Rail 11
Corp. v. Darrone, 465 U.S. 624, 634 (1984). Rely-12
ing on the validity of the regulations, Congress in-13
corporated the regulations into the statutory require-14
ments of section 204 of the Americans with Disabil-15
ities Act of 1990 (42 U.S.C. 12134). Nonetheless, 16
Sandoval creates the potential for uncertainty in the 17
application of critical protections of Section 504, 18
particularly in the lower courts. 19
(10) The right to maintain a private right of 20
action under a provision added to a statute under 21
this Act will be effectuated by a waiver of sovereign 22
immunity in the same manner as sovereign immu-23
nity is waived under the remaining provisions of that 24
statute. 25
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(11) Numerous provisions of Federal law ex-1
pressly prohibit discrimination on the basis of sex, 2
and Federal agencies and courts have correctly in-3
terpreted these prohibitions on sex discrimination to 4
include discrimination based on sexual orientation, 5
gender identity, and sex stereotypes. In particular, 6
the Equal Employment Opportunity Commission 7
correctly interpreted title VII of the Civil Rights Act 8
of 1964 in Macy v. Holder, Baldwin v. Foxx, and 9
Lusardi v. McHugh. 10
(12) In forbidding discrimination based on sex, 11
Congress intended to strike at the entire spectrum 12
of disparate treatment resulting from sex-related 13
characteristics. The Supreme Court correctly recog-14
nized in Price Waterhouse v. Hopkins and Oncale v. 15
Sundowner Offshore Services that among these char-16
acteristics are sex-stereotypes, including masculinity 17
and femininity. Congress reaffirmed in the Preg-18
nancy Discrimination Act of 1978 that discrimina-19
tion on the basis of ‘‘sex’’ includes but is not limited 20
to discrimination on the basis of ‘‘pregnancy, child-21
birth, or related medical conditions.’’. 22
(13) The absence of explicit prohibitions of dis-23
crimination on the basis of sexual orientation and 24
gender identity under Federal statutory law has cre-25
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ated uncertainty for employers and other entities 1
covered by Federal nondiscrimination laws and 2
caused unnecessary hardships for LGBTQ individ-3
uals. 4
(14) The Supreme Court correctly recognized in 5
Hobby Lobby v. Burwell that the Religious Freedom 6
Restoration Act of 1993 (RFRA) ‘‘provides no . . . 7
shield’’ to those who ‘‘cloak’’ discrimination as ‘‘reli-8
gious practice to escape legal sanction.’’ This Act re-9
affirms that crucial limitation on RFRA, that Con-10
gress did not intend for it to be used—and indeed 11
it cannot be used—to provide a defense against alle-12
gations of discrimination on the basis of any pro-13
tected trait. 14
(15) Chapter 1 of title 9, United States Code 15
(commonly known as the ‘‘Federal Arbitration 16
Act’’), represented an exercise of legislative power 17
that required courts to recognize private voluntary 18
agreements to arbitrate commercial disputes at a 19
time when the courts were refusing to do so on 20
grounds that arbitration represented a usurpation of 21
the authority of the courts to resolve legal disputes. 22
(16) The Federal Arbitration Act did not, and 23
should not have been interpreted to, supplant or nul-24
lify the legislatively created rights and remedies that 25
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Congress, exercising its power under article I of the 1
Constitution of the United States, has granted to 2
the people of the United States for resolving dis-3
putes in State and Federal courts. 4
(17) Recent court decisions, including AT&T 5
Mobility LLC v. Concepcion, 563 U.S. 333 (2011) 6
and American Express Co. v. Italian Colors Res-7
taurant, 133 S. Ct. 2304 (2013), have interpreted 8
the Federal Arbitration Act to broadly preempt 9
rights and remedies established under substantive 10
State and Federal law. As a result, these decisions 11
have enabled business entities to avoid or nullify 12
legal duties created by congressional enactment, re-13
sulting in millions of people in the United States 14
being unable to vindicate their rights in State and 15
Federal courts. 16
(18) States have a compelling interest in enact-17
ing rights and remedies to protect the welfare of 18
their citizens, and the Federal Arbitration Act 19
should not be, and should not have been, interpreted 20
to preempt State legislation that enacted rights and 21
remedies to protect the welfare of their citizens. 22
(19) The Supreme Court misinterpreted title 23
VII of the Civil Rights Act in establishing the 24
Faragher-Ellerth affirmative defense in Faragher v. 25
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City of Boca Raton and Burlington Industries, Inc. 1
v. Ellerth. This affirmative defense often leaves vic-2
tims of sexual harassment with no remedy or re-3
course after incidence of sexual or other harassment. 4
Violations of the law, and injuries to a victim and 5
their rights, are not cured by the existence of an 6
anti-harassment policy or the lack of future harm, 7
and in a hostile work environment taking preventa-8
tive measures is not a requirement that falls on the 9
victim. 10
(20) Bringing a lawsuit to vindicate civil rights 11
is financially risky, and law firms, whether large or 12
small, are unlikely to take such cases on. Congress 13
enacted the Civil Rights Attorney’s Fees Award Act 14
of 1976 in order to make lawsuits to vindicate civil 15
rights more accessible to potential plaintiffs. The 16
Supreme Court correctly recognized in City of River-17
side v. Rivera that the effectuation of congressional 18
intent requires viable civil rights lawsuits, which are 19
dependent on the availability of private enforcement 20
mechanisms and the corresponding availability of at-21
torney’s fees. 22
(21) However, the Supreme Court incorrectly 23
held that the ‘‘catalyst theory’’ is not a permissible 24
basis for the award of attorney’s fees in Buckhannon 25
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v. West Virginia Department of Health & Human 1
Resources. In doing so, the Court deprived plaintiffs 2
who effectively win a lawsuit through a settlement, 3
from receiving pre-trial attorney’s fees. Congress en-4
acted fee-shifting provisions in civil rights laws to 5
encourage private enforcement of those laws, and 6
fees must be awarded when a lawsuit vindicates the 7
rights Congress sought to secure. In disapproving of 8
the ‘‘catalyst theory’’ the Court incentivized poten-9
tial defendants to draw out the pre-trial process and 10
settle at the last second, making the lawsuit too ex-11
pensive for the average victim to undertake and too 12
risky for the average attorney to accept a civil rights 13
case. 14
(22) The Civil Rights Act of 1964, and other 15
civil rights laws that followed it, were written, in 16
part, to banish rampant disparate treatment on the 17
basis of race from American society. Congress 18
sought to overcome the pervasive, racist ideology 19
that Black traits were inferior by prohibiting dis-20
crimination, and intended the Act to be interpreted 21
broadly—encompassing race and all its attributes, 22
especially those traits historically associated with 23
race. 24
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(23) ‘‘Blackness’’ and its associated physical 1
traits, such as dark skin and kinky and curly hair, 2
have too often been equated with inferiority and 3
‘‘unprofessionalism.’’ Professionalism was, and still 4
is, closely linked to European features and manner-5
isms, which entails that those who do not naturally 6
fall into Eurocentric norms must alter their appear-7
ances, sometimes drastically and permanently, in 8
order to be deemed professional. Such norms are, on 9
their face, proxies for race. 10
(24) Federal courts have correctly interpreted, 11
e.g. that title VII of the Civil Rights Act of 1964 12
prohibits discrimination on the basis of race, and 13
thus protect individuals from discrimination against 14
afros. However, the courts have yet to accept that 15
the Act outlaws dress codes and grooming policies 16
that prohibit any natural presentation of Black hair, 17
including afros, braids, twists, and locks. Although 18
purportedly ‘‘race-neutral’’, these policies have a dis-19
parate impact on Black individuals as they are more 20
likely to deter, burden, or punish Black individuals 21
than any other group. Therefore, hair discrimination 22
targeting hairstyles associated with race is racial dis-23
crimination. 24
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SEC. 3. PROHIBITED DISCRIMINATION. 1
(a) C
IVILRIGHTSACT OF1964.—Section 601 of the 2
Civil Rights Act of 1964 (42 U.S.C. 2000d) is amended— 3
(1) by striking ‘‘No’’ and inserting ‘‘(a) No’’; 4
(2) by inserting ‘‘religion, sex (as such term is 5
defined in section 208),’’ before ‘‘or national origin’’; 6
and 7
(3) by adding at the end the following: 8
‘‘(b)(1)(A) Discrimination (including exclusion from 9
participation and denial of benefits) based on disparate 10
impact is established under this title only if— 11
‘‘(i) a person aggrieved by discrimination on the 12
basis of race, color, sex (as defined in section 208), 13
or national origin (referred to in this title as an ‘per-14
son aggrieved’ demonstrates that an entity subject 15
to this title (referred to in this title as a ‘covered en-16
tity’) has a policy or practice that causes a disparate 17
impact on the basis of race, color, sex (as such term 18
is defined in section 208), or national origin and the 19
covered entity fails to demonstrate that the chal-20
lenged policy or practice is related to and necessary 21
to achieve the nondiscriminatory goals of the pro-22
gram or activity alleged to have been operated in a 23
discriminatory manner; or 24
‘‘(ii) the person aggrieved demonstrates (con-25
sistent with the demonstration required under title 26
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VII with respect to an ‘alternative employment prac-1
tice’) that a less discriminatory alternative policy or 2
practice exists, and the covered entity refuses to 3
adopt such alternative policy or practice. 4
‘‘(B)(i) With respect to demonstrating that a par-5
ticular policy or practice causes a disparate impact as de-6
scribed in subparagraph (A)(i), the person aggrieved shall 7
demonstrate that each particular challenged policy or 8
practice causes a disparate impact, except that if the per-9
son aggrieved demonstrates to the court that the elements 10
of a covered entity’s decisionmaking process are not capa-11
ble of separation for analysis, the decisionmaking process 12
may be analyzed as 1 policy or practice. 13
‘‘(ii) If the covered entity demonstrates that a specific 14
policy or practice does not cause the disparate impact, the 15
covered entity shall not be required to demonstrate that 16
such policy or practice is necessary to achieve the goals 17
of its program or activity. 18
‘‘(2) A demonstration that a policy or practice is nec-19
essary to achieve the goals of a program or activity may 20
not be used as a defense against a claim of intentional 21
discrimination under this title. 22
‘‘(3) In this subsection, the term ‘demonstrates’ 23
means meets the burdens of production and persuasion.’’. 24
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(b) EDUCATIONAMENDMENTS OF 1972.—Section 1
901 of the Education Amendments of 1972 (20 U.S.C. 2
1681) is amended— 3
(1) by redesignating subsection (c) as sub-4
section (d); and 5
(2) by inserting after subsection (b) the fol-6
lowing: 7
‘‘(c)(1)(A) Subject to the conditions described in 8
paragraphs (1) through (9) of subsection (a), discrimina-9
tion (including exclusion from participation and denial of 10
benefits) based on disparate impact is established under 11
this title only if— 12
‘‘(i) a person aggrieved by discrimination on the 13
basis of sex (as such term is defined in section 208 14
of the Civil Rights Act of 1964) (referred to in this 15
title as an ‘person aggrieved’) demonstrates that an 16
entity subject to this title (referred to in this title as 17
a ‘covered entity’) has a policy or practice that 18
causes a disparate impact on the basis of sex and 19
the covered entity fails to demonstrate that the chal-20
lenged policy or practice is related to and necessary 21
to achieve the nondiscriminatory goals of the pro-22
gram or activity alleged to have been operated in a 23
discriminatory manner; or 24
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‘‘(ii) the person aggrieved demonstrates (con-1
sistent with the demonstration required under title 2
VII of the Civil Rights Act of 1964 (42 U.S.C. 3
2000e et seq.) with respect to an ‘alternative em-4
ployment practice’) that a less discriminatory alter-5
native policy or practice exists, and the covered enti-6
ty refuses to adopt such alternative policy or prac-7
tice. 8
‘‘(B)(i) With respect to demonstrating that a par-9
ticular policy or practice causes a disparate impact as de-10
scribed in subparagraph (A)(i), the person aggrieved shall 11
demonstrate that each particular challenged policy or 12
practice causes a disparate impact, except that if the per-13
son aggrieved demonstrates to the court that the elements 14
of a covered entity’s decisionmaking process are not capa-15
ble of separation for analysis, the decisionmaking process 16
may be analyzed as 1 policy or practice. 17
‘‘(ii) If the covered entity demonstrates that a specific 18
policy or practice does not cause the disparate impact, the 19
covered entity shall not be required to demonstrate that 20
such policy or practice is necessary to achieve the goals 21
of its program or activity. 22
‘‘(2) A demonstration that a policy or practice is nec-23
essary to achieve the goals of a program or activity may 24
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not be used as a defense against a claim of intentional 1
discrimination under this title. 2
‘‘(3) In this subsection, the term ‘demonstrates’ 3
means meets the burdens of production and persuasion.’’. 4
(c) A
GEDISCRIMINATIONACT OF1975.—Section 5
303 of the Age Discrimination Act of 1975 (42 U.S.C. 6
6102) is amended— 7
(1) by striking ‘‘Pursuant’’ and inserting ‘‘(a) 8
Pursuant’’; and 9
(2) by adding at the end the following: 10
‘‘(b)(1)(A) Subject to the conditions described in sub-11
sections (b) and (c) of section 304, discrimination (includ-12
ing exclusion from participation and denial of benefits) 13
based on disparate impact is established under this title 14
only if— 15
‘‘(i) a person aggrieved by discrimination on the 16
basis of age (referred to in this title as a ‘person ag-17
grieved’) demonstrates that an entity subject to this 18
title (referred to in this title as a ‘covered entity’) 19
has a policy or practice that causes a disparate im-20
pact on the basis of age and the covered entity fails 21
to demonstrate that the challenged policy or practice 22
is related to and necessary to achieve the non-23
discriminatory goals of the program or activity al-24
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leged to have been operated in a discriminatory 1
manner; or 2
‘‘(ii) the person aggrieved demonstrates (con-3
sistent with the demonstration required under title 4
VII of the Civil Rights Act of 1964 (42 U.S.C. 5
2000e et seq.) with respect to an ‘alternative em-6
ployment practice’) that a less discriminatory alter-7
native policy or practice exists, and the covered enti-8
ty refuses to adopt such alternative policy or prac-9
tice. 10
‘‘(B)(i) With respect to demonstrating that a par-11
ticular policy or practice causes a disparate impact as de-12
scribed in subparagraph (A)(i), the person aggrieved shall 13
demonstrate that each particular challenged policy or 14
practice causes a disparate impact, except that if the per-15
son aggrieved demonstrates to the court that the elements 16
of a covered entity’s decisionmaking process are not capa-17
ble of separation for analysis, the decisionmaking process 18
may be analyzed as 1 policy or practice. 19
‘‘(ii) If the covered entity demonstrates that a specific 20
policy or practice does not cause the disparate impact, the 21
covered entity shall not be required to demonstrate that 22
such policy or practice is necessary to achieve the goals 23
of its program or activity. 24
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‘‘(2) A demonstration that a policy or practice is nec-1
essary to achieve the goals of a program or activity may 2
not be used as a defense against a claim of intentional 3
discrimination under this title. 4
‘‘(3) In this subsection, the term ‘demonstrates’ 5
means meets the burdens of production and persuasion.’’. 6
(d) F
AIRHOUSINGACT.—The Fair Housing Act 7
(title VIII of the Civil Rights Act of 1968; 42 U.S.C. 3601 8
et seq.) is amended— 9
(1) in section 802, by adding at the end the fol-10
lowing: 11
‘‘(p) ‘Sex’ has the meaning given such term in section 12
208 of the Civil Rights Act of 1964. 13
‘‘(q) ‘Source of income’ includes— 14
‘‘(1) any income from a profession, occupation, 15
or job; 16
‘‘(2) any form of Federal, State, or local hous-17
ing assistance provided to a family or provided to a 18
housing owner on behalf of a family, or private as-19
sistance, grant, loan or rental assistance program, 20
including low-income housing assistance certificates, 21
rental subsidies from nongovernmental organiza-22
tions, and vouchers issued under the United States 23
Housing Act of 1937 (42 U.S.C. 1437 et seq.); 24
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‘‘(3) any income received during a taxable year 1
as Social Security benefits, as defined in section 2
86(d) of the Internal Revenue Code of 1986, or as 3
supplemental security income benefits under title 4
XVI of the Social Security Act (42 U.S.C. 1381 et 5
seq.); 6
‘‘(4) any gift, inheritance, pension, annuity, or 7
other consideration or benefit; 8
‘‘(5) any income received pursuant to court 9
order, including spousal support and child support; 10
‘‘(6) any payment from a trust, guardian, or 11
conservator; 12
‘‘(7) any income from the sale or pledge of 13
property or an interest in property; and 14
‘‘(8) any other lawful source of income. 15
‘‘(r) ‘Race’, ‘color’, ‘religion’, ‘sex’, ‘sexual orienta-16
tion’, ‘gender identity’, ‘handicap’, ‘familial status’, 17
‘source of income’, or ‘national origin’, used with respect 18
to an individual, includes— 19
‘‘(1) the race, color, religion, sex, sexual ori-20
entation, gender identity, handicap, familial status, 21
source of income, or national origin, respectively, of 22
another person with whom the individual is associ-23
ated or has been associated; and 24
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‘‘(2) a perception or belief, even if inaccurate, 1
concerning the race, color, religion, sex, sexual ori-2
entation, gender identity, handicap, familial status, 3
source of income, or national origin, respectively, of 4
the individual.’’; 5
(2) in section 804, by inserting ‘‘(as defined in 6
section 208 of the Civil Rights Act of 1964), source 7
of income,’’ after ‘‘sex’’ each place that term ap-8
pears; 9
(3) in section 805, by inserting ‘‘(as defined in 10
section 208 of the Civil Rights Act of 1964), source 11
of income,’’ after ‘‘sex’’ each place that term ap-12
pears; 13
(4) in section 806, by inserting ‘‘(as defined in 14
section 208 of the Civil Rights Act of 1964), source 15
of income,’’ after ‘‘sex’’; 16
(5) in section 807 (42 U.S.C. 3607), by adding 17
at the end the following: 18
‘‘(c) Nothing in this title shall be construed to— 19
‘‘(1) prohibit an entity from providing housing 20
assistance under section 8(o)(19) of the United 21
States Housing Act of 1937 (42 U.S.C. 22
1437f(o)(19)) in a nondiscriminatory manner; or 23
‘‘(2) limit the ability of the owner of a dwelling 24
to determine, in a commercially reasonable and non- 25
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discriminatory manner, the ability of a person to af-1
ford to purchase or rent the dwelling.’’; and 2
(6) in section 808(e)(6) (42 U.S.C. 3608(e)(6)), 3
by inserting ‘‘source of income,’’ after ‘‘handicap,’’. 4
(e) P
REVENTION OFINTIMIDATION INFAIRHOUS-5
INGCASES.—Section 901 of the Civil Rights Act of 1968 6
(42 U.S.C. 3631) is amended by inserting ‘‘(as such term 7
is defined in section 208 of the Civil Rights Act of 1964), 8
source of income (as defined in section 802),’’ after ‘‘sex’’ 9
each place that term appears. 10
SEC. 4. RIGHT OF RECOVERY. 11
(a) C
IVILRIGHTSACT OF1964.—Title VI of the 12
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) is 13
amended by inserting after section 602 the following: 14
‘‘SEC. 602A. ACTIONS BROUGHT BY PERSONS AGGRIEVED. 15
‘‘(a) C
LAIMSBASED ONPROOF OFINTENTIONAL 16
D
ISCRIMINATION.—In an action brought by a person ag-17
grieved under this title against a covered entity who has 18
engaged in unlawful intentional discrimination (not a 19
practice that is unlawful because of its disparate impact) 20
prohibited under this title (including its implementing reg-21
ulations), the person aggrieved may recover equitable and 22
legal relief (including compensatory and punitive dam-23
ages), attorney’s fees (including expert fees), and costs, 24
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except that punitive damages are not available against a 1
government, government agency, or political subdivision. 2
‘‘(b) C
LAIMSBASED ON THE DISPARATEIMPACT 3
S
TANDARD OFPROOF.—In an action brought by a person 4
aggrieved under this title against a covered entity who has 5
engaged in unlawful discrimination based on disparate im-6
pact prohibited under this title (including its implementing 7
regulations), the person aggrieved may recover equitable 8
and legal relief (including compensatory and punitive dam-9
ages), attorney’s fees (including expert fees), and costs, 10
except that punitive damages are not available against a 11
government, government agency, or political subdivision. 12
‘‘(c) S
ETTLEMENT.—In any settlement agreement or 13
consent decree to resolve an action brought or which may 14
be brought under this title, attorney’s fees of the plaintiff 15
shall be included.’’. 16
(b) E
DUCATIONAMENDMENTS OF 1972.—Title IX of 17
the Education Amendments of 1972 (20 U.S.C. 1681 et 18
seq.) is amended by inserting after section 902 the fol-19
lowing: 20
‘‘SEC. 902A. ACTIONS BROUGHT BY PERSONS AGGRIEVED. 21
‘‘(a) C
LAIMSBASED ONPROOF OFINTENTIONAL 22
D
ISCRIMINATION.—In an action brought by a person ag-23
grieved under this title against a covered entity who has 24
engaged in unlawful intentional discrimination (not a 25
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practice that is unlawful because of its disparate impact) 1
prohibited under this title (including its implementing reg-2
ulations), the person aggrieved may recover equitable and 3
legal relief (including compensatory and punitive dam-4
ages), attorney’s fees (including expert fees), and costs, 5
except that punitive damages are not available against a 6
government, government agency, or political subdivision. 7
‘‘(b) C
LAIMSBASED ON THE DISPARATEIMPACT 8
S
TANDARD OFPROOF.—In an action brought by a person 9
aggrieved under this title against a covered entity who has 10
engaged in unlawful discrimination based on disparate im-11
pact prohibited under this title (including its implementing 12
regulations), the person aggrieved may recover equitable 13
and legal relief (including compensatory and punitive dam-14
ages), attorney’s fees (including expert fees), and costs, 15
except that punitive damages are not available against a 16
government, government agency, or political subdivision. 17
‘‘(c) S
ETTLEMENT.—In any settlement agreement or 18
consent decree to resolve an action brought or which may 19
be brought under this title, attorney’s fees of the plaintiff 20
shall be included.’’. 21
(c) A
GEDISCRIMINATIONACT OF1975.— 22
(1) I
N GENERAL.—Section 305 of the Age Dis-23
crimination Act of 1975 (42 U.S.C. 6104) is amend-24
ed by adding at the end the following: 25
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‘‘(g)(1) In an action brought by a person aggrieved 1
under this title against a covered entity who has engaged 2
in unlawful intentional discrimination (not a practice that 3
is unlawful because of its disparate impact) prohibited 4
under this title (including its implementing regulations), 5
the person aggrieved may recover equitable and legal relief 6
(including compensatory and punitive damages), attor-7
ney’s fees (including expert fees), and costs, except that 8
punitive damages are not available against a government, 9
government agency, or political subdivision. 10
‘‘(2) In an action brought by a person aggrieved 11
under this title against a covered entity who has engaged 12
in unlawful discrimination based on disparate impact pro-13
hibited under this title (including its implementing regula-14
tions), the person aggrieved may recover equitable and 15
legal relief (including compensatory and punitive dam-16
ages), attorney’s fees (including expert fees), and costs, 17
except that punitive damages are not available against a 18
government, government agency, or political subdivision. 19
‘‘(3) In any settlement agreement or consent decree 20
to resolve an action brought or which may be brought 21
under this title, attorney’s fees of the plaintiff shall be 22
included.’’. 23
(2) C
ONFORMITY OF ADA WITH TITLE VI AND 24
TITLE IX.— 25
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(A) ELIMINATING WAIVER OF RIGHT TO 1
FEES IF NOT REQUESTED IN COMPLAINT .—Sec-2
tion 305(e)(1) of the Age Discrimination Act of 3
1975 (42 U.S.C. 6104(e)) is amended— 4
(i) by striking ‘‘to enjoin a violation’’ 5
and inserting ‘‘to redress a violation’’; and 6
(ii) by striking the second sentence 7
and inserting the following: ‘‘The Court 8
shall award the costs of suit, including a 9
reasonable attorney’s fee (including expert 10
fees), to the prevailing plaintiff.’’. 11
(B) E
LIMINATING UNNECESSARY MAN -12
DATES: TO EXHAUST ADMINISTRATIVE REM -13
EDIES; AND TO DELAY SUIT LONGER THAN 180 14
DAYS TO OBTAIN AGENCY REVIEW .—Section 15
305(f) of the Age Discrimination Act of 1975 16
(42 U.S.C. 6104(f)) is amended by striking 17
‘‘With respect to actions brought for relief 18
based on an alleged violation of the provisions 19
of this title,’’ and inserting ‘‘Actions brought 20
for relief based on an alleged violation of the 21
provisions of this title may be initiated in a 22
court of competent jurisdiction, pursuant to 23
section 305(e), or before the relevant Federal 24
department or agency. With respect to such ac-25
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tions brought initially before the relevant Fed-1
eral department or agency,’’. 2
(C) E
LIMINATING DUPLICATIVE ‘‘REASON-3
ABLENESS’’ REQUIREMENT; CLARIFYING THAT 4
‘‘
REASONABLE FACTORS OTHER THAN AGE ’’ IS 5
DEFENSE TO A DISPARATE IMPACT CLAIM , NOT 6
AN EXCEPTION TO ADA COVERAGE .—Section 7
304(b)(1) of the Age Discrimination Act of 8
1975 (42 U.S.C. 6103(b)(1)) is amended by 9
striking ‘‘involved—’’ and all that follows 10
through the period and inserting ‘‘involved such 11
action reasonably takes into account age as a 12
factor necessary to the normal operation or the 13
achievement of any statutory objective of such 14
program or activity.’’. 15
(d) R
EHABILITATIONACT OF1973.—Section 504 of 16
the Rehabilitation Act of 1973 (29 U.S.C. 794) is amend-17
ed by adding at the end the following: 18
‘‘(e)(1) In an action brought by a person aggrieved 19
by discrimination on the basis of disability (referred to in 20
this section as an ‘person aggrieved’) under this section 21
against an entity subject to this section (referred to in 22
this section as a ‘covered entity’) who has engaged in un-23
lawful intentional discrimination (not a practice that is 24
unlawful because of its disparate impact) prohibited under 25
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•HR 1354 IH
this section (including its implementing regulations), the 1
person aggrieved may recover equitable and legal relief 2
(including compensatory and punitive damages), attor-3
ney’s fees (including expert fees), and costs, except that 4
punitive damages are not available against a government, 5
government agency, or political subdivision. 6
‘‘(2) In an action brought by a person aggrieved 7
under this section against a covered entity who has en-8
gaged in unlawful discrimination based on disparate im-9
pact prohibited under this section (including its imple-10
menting regulations), the person aggrieved may recover 11
equitable and legal relief (including compensatory and pu-12
nitive damages), attorney’s fees (including expert fees), 13
and costs, except that punitive damages are not available 14
against a government, government agency, or political 15
subdivision. 16
‘‘(3) Equitable and legal relief (including compen-17
satory and punitive damages), attorney’s fees (including 18
expert fees), and costs shall be available in all cases 19
brought for the failure to provide reasonable accommoda-20
tions or reasonable modifications, or the failure to comply 21
with requirements of effective communication, accessible 22
design, maintenance of accessible features, or program ac-23
cessibility. 24
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‘‘(4) In any settlement agreement or consent decree 1
to resolve an action brought or which may be brought 2
under this section, attorney’s fees of the plaintiff shall be 3
included.’’. 4
(e) F
AIRHOUSINGACT.—The Fair Housing Act 5
(title VIII of the Civil Rights Act of 1968; 42 U.S.C. 3601 6
et seq.), as amended by this Act, is further amended by 7
adding at the end the following: 8
‘‘SEC. 823. DISPARATE IMPACT. 9
‘‘(a) I
NGENERAL.— 10
‘‘(1) E
STABLISHMENT.—Discrimination (includ-11
ing exclusion from participation and denial of bene-12
fits) based on disparate impact is established under 13
this title only if— 14
‘‘(A) a person aggrieved by discrimination 15
on the basis of race, color, sex, or national ori-16
gin demonstrates that an entity subject to this 17
title (referred to in this title as a ‘covered enti-18
ty’) has a policy or practice that causes a dis-19
parate impact on the basis of race, color, sex, 20
or national origin and the covered entity fails to 21
demonstrate that the challenged policy or prac-22
tice is related to and necessary to achieve the 23
nondiscriminatory goals of the program or ac-24
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•HR 1354 IH
tivity alleged to have been operated in a dis-1
criminatory manner; or 2
‘‘(B) the person aggrieved demonstrates 3
that a less discriminatory alternative policy or 4
practice exists, and the covered entity refuses to 5
adopt such alternative policy or practice. 6
‘‘(2) D
EMONSTRATION.— 7
‘‘(A) C
AUSATION.—With respect to demonstrating 8
that a particular policy or practice causes a disparate im-9
pact as described in subsection (a)(1), the person ag-10
grieved shall demonstrate that each particular challenged 11
policy or practice causes a disparate impact, except that 12
if the person aggrieved demonstrates to the court that the 13
elements of a covered entity’s decisionmaking process are 14
not capable of separation for analysis, the decisionmaking 15
process may be analyzed as 1 policy or practice. 16
‘‘(B) N
OREQUIREMENTTODEMONSTRATE.—If the 17
covered entity demonstrates that a specific policy or prac-18
tice does not cause the disparate impact, the covered enti-19
ty shall not be required to demonstrate that such policy 20
or practice is necessary to achieve the goals of its program 21
or activity. 22
‘‘(b) N
ECESSITY OFINTENTIONALDISCRIMINATION 23
T
OACHIEVEPOLICYGOALSNOT ADEFENSE.—A dem-24
onstration that a policy or practice is necessary to achieve 25
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•HR 1354 IH
the goals of a program or activity may not be used as 1
a defense against a claim of intentional discrimination 2
under this title. 3
‘‘(c) D
EFINITION.—In this section, the term ‘dem-4
onstrates’ means meets the burdens of production and per-5
suasion. 6
‘‘SEC. 824. RELIEF FOR CLAIMS BASED ON DIFFERING 7
STANDARDS OF PROOF. 8
‘‘(a) C
LAIMSBASED ONPROOF OFINTENTIONAL 9
D
ISCRIMINATION.—In an action brought by a person ag-10
grieved under this title against a covered entity who has 11
engaged in unlawful intentional discrimination (not a 12
practice that is unlawful because of its disparate impact) 13
prohibited under this title (including its implementing reg-14
ulations), the person aggrieved may recover equitable and 15
legal relief (including compensatory and punitive dam-16
ages), attorney’s fees (including expert fees), and costs, 17
except that punitive damages are not available against a 18
government, government agency, or political subdivision. 19
‘‘(b) C
LAIMSBASED ON THE DISPARATEIMPACT 20
S
TANDARD OFPROOF.—In an action brought by a person 21
aggrieved under this title against a covered entity who has 22
engaged in unlawful discrimination based on disparate im-23
pact prohibited under this title (including its implementing 24
regulations), the person aggrieved may recover equitable 25
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•HR 1354 IH
and legal relief (including compensatory and punitive dam-1
ages), attorney’s fees (including expert fees), and costs, 2
except that punitive damages are not available against a 3
government, government agency, or political subdivision. 4
‘‘(c) R
ELIEFAVAILABLE.—Equitable and legal relief 5
(including compensatory and punitive damages), attor-6
ney’s fees (including expert fees), and costs shall be avail-7
able in all cases brought for the failure to permit reason-8
able accommodations, make reasonable modifications, or 9
design and construct accessible dwellings as required by 10
section 804(f)(3)(C). 11
‘‘(d) S
ETTLEMENT.—In any settlement agreement or 12
consent decree to resolve an action brought or which may 13
be brought under this title, attorney’s fees of the plaintiff 14
shall be included.’’. 15
SEC. 5. PROHIBITION ON DISCRIMINATION BY LAW EN-16
FORCEMENT. 17
(a) D
EFINITIONS.—In this section— 18
(1) The term ‘‘governmental body’’ means any 19
department, agency, special purpose district, or 20
other instrumentality of Federal, State, local, or In-21
dian tribal government. 22
(2) The term ‘‘Indian tribe’’ has the meaning 23
given the term in section 102 of the Federally Rec-24
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•HR 1354 IH
ognized Indian Tribe List Act of 1994 (25 U.S.C. 1
479a). 2
(3) The term ‘‘law enforcement agency’’ means 3
any Federal, State, local, or Indian tribal govern-4
mental body engaged in the prevention, detection, or 5
investigation of violations of criminal, immigration, 6
or customs laws. 7
(4) The term ‘‘law enforcement agent’’ means 8
any Federal, State, local, or Indian tribal official re-9
sponsible for enforcing criminal, immigration, or 10
customs laws, including police officers and other 11
agents of a law enforcement agency. 12
(5) The term ‘‘profiling’’ means the practice of 13
a law enforcement agent or agency relying, to any 14
degree, on actual or perceived race, ethnicity, na-15
tional origin, religion, sex (as defined in section 208 16
of the Civil Rights Act of 1964), gender identity, or 17
sexual orientation in selecting which individual to 18
subject to routine or spontaneous investigatory ac-19
tivities or in deciding upon the scope and substance 20
of law enforcement activity following any initial in-21
vestigatory procedure, except when there is trust-22
worthy information, relevant to the locality and 23
timeframe, that links a person with a particular 24
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•HR 1354 IH
characteristic described in this paragraph to an 1
identified criminal incident or scheme. 2
(6) The term ‘‘routine or spontaneous investiga-3
tory activities’’ means the following activities by a 4
law enforcement agent: 5
(A) Interviews. 6
(B) Traffic stops. 7
(C) Pedestrian stops. 8
(D) Frisks and other types of body 9
searches. 10
(E) Consensual or nonconsensual searches 11
of the persons, property, or possessions (includ-12
ing vehicles) of individuals using any form of 13
public or private transportation, including mo-14
torists and pedestrians. 15
(F) Data collection, analysis, assessments, 16
and predicated investigations. 17
(G) Inspections and interviews of entrants 18
into the United States that are more extensive 19
than those customarily carried out. 20
(H) Immigration-related workplace inves-21
tigations. 22
(I) Such other types of law enforcement 23
encounters compiled for or by the Federal Bu-24
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reau of Investigation or the Department of Jus-1
tice Bureau of Justice Statistics. 2
(7) The term ‘‘State’’ means each of the 50 3
States, the District of Columbia, the Commonwealth 4
of Puerto Rico, and any other territory or possession 5
of the United States. 6
(8) The term ‘‘unit of local government’’ 7
means— 8
(A) any city, county, township, town, bor-9
ough, parish, village, or other general purpose 10
political subdivision of a State; 11
(B) any law enforcement district or judicial 12
enforcement district that— 13
(i) is established under applicable 14
State law; and 15
(ii) has the authority to, in a manner 16
independent of other State entities, estab-17
lish a budget and impose taxes; or 18
(C) any Indian tribe that performs law en-19
forcement functions, as determined by the Sec-20
retary of the Interior. 21
(b) P
ROHIBITION OFPROFILING.— 22
(1) I
N GENERAL.—No law enforcement agent 23
or law enforcement agency shall engage in profiling. 24
(2) E
NFORCEMENT.— 25
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(A) REMEDY.—The United States, or an 1
individual injured by profiling, may enforce this 2
title in a civil action for equitable or legal relief, 3
filed in a State court of general jurisdiction or 4
in a district court of the United States. 5
(B) P
ARTIES.—In any action brought 6
under this title, relief may be obtained 7
against— 8
(i) any governmental body that em-9
ployed any law enforcement agent who en-10
gaged in profiling; 11
(ii) any agent of such body who en-12
gaged in profiling; and 13
(iii) any person with supervisory au-14
thority over such agent. 15
(C) N
ATURE OF PROOF .—Proof that the 16
routine or spontaneous investigatory activities 17
of law enforcement agents in a jurisdiction have 18
had a disparate impact on individuals with a 19
particular characteristic described in subsection 20
(a)(5) shall constitute prima facie evidence of a 21
violation of this section. 22
(D) A
TTORNEY’S FEES.—In any action or 23
proceeding to enforce this section against any 24
governmental body, the court may allow a pre-25
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vailing plaintiff, other than the United States, 1
reasonable attorney’s fees as part of the costs, 2
and may include expert fees as part of the at-3
torney’s fees. 4
SEC. 6. PUBLIC ACCOMMODATIONS. 5
(a) P
ROHIBITION ONDISCRIMINATION ORSEGREGA-6
TION INPUBLICACCOMMODATIONS.—Section 201 of the 7
Civil Rights Act of 1964 (42 U.S.C. 2000a) is amended— 8
(1) in subsection (a), by inserting ‘‘sex,’’ before 9
‘‘or national origin’’; and 10
(2) in subsection (b)— 11
(A) in paragraph (3), by striking ‘‘sta-12
dium’’ and all that follows and inserting ‘‘sta-13
dium or other place or establishment that pro-14
vides exhibition, entertainment, recreation, exer-15
cise, amusement, gathering, or display;’’; 16
(B) by redesignating paragraph (4) as 17
paragraph (6); and 18
(C) by inserting after paragraph (3) the 19
following: 20
‘‘(4) any establishment that provides a good, 21
service, or program, including a store, shopping cen-22
ter, online retailer or service provider, salon, bank, 23
gas station, food bank, service or care center, shel-24
ter, travel agency, funeral parlor, or any establish-25
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ment that provides health care, accounting, or legal 1
services; 2
‘‘(5) any train service, bus service, car service, 3
taxi service, airline service, station, depot, or other 4
place of or establishment that provides transpor-5
tation service; and’’. 6
(b) P
ROHIBITION ONDISCRIMINATION ORSEGREGA-7
TIONUNDERLAW.—Section 202 of such Act (42 U.S.C. 8
2000a–1) is amended by inserting ‘‘sex,’’ before ‘‘or na-9
tional origin’’. 10
(c) D
EFINITIONS ANDRULES OFCONSTRUCTION.— 11
Title II of such Act (42 U.S.C. 2000a et seq.) is amended 12
by adding at the end the following: 13
‘‘SEC. 208. DEFINITIONS AND RULES. 14
‘‘(a) D
EFINITIONS.— 15
‘‘(1) R
ACE; COLOR; RELIGION; SEX; SEXUAL 16
ORIENTATION; GENDER IDENTITY ; NATIONAL ORI-17
GIN.—The term ‘race’, ‘color’, ‘religion’, ‘sex (includ-18
ing sexual orientation and gender identity)’, or ‘na-19
tional origin’, used with respect to an individual, in-20
cludes— 21
‘‘(A) the race, color, religion, sex (includ-22
ing sexual orientation and gender identity), or 23
national origin, respectively, of another person 24
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with whom the individual is associated or has 1
been associated; 2
‘‘(B) a perception or belief, even if inac-3
curate, concerning the race, color, religion, sex 4
(including sexual orientation and gender iden-5
tity), or national origin, respectively, of the in-6
dividual; and 7
‘‘(C) in the case of race, traits historically 8
associated with race, including natural hair tex-9
ture and protective hairstyles. 10
‘‘(2) G
ENDER IDENTITY.—The term ‘gender 11
identity’ means the gender-related identity, appear-12
ance, mannerisms, or other gender-related character-13
istics of an individual, regardless of the individual’s 14
designated sex at birth. 15
‘‘(3) I
NCLUDING.—The term ‘including’ means 16
including, but not limited to, consistent with the 17
term’s standard meaning in Federal law. 18
‘‘(4) N
ATURAL HAIRSTYLES .—The term ‘nat-19
ural hair’ includes— 20
‘‘(A) protective and natural hairstyles, 21
which includes braids, locs, weaves, twists, 22
afros; and 23
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‘‘(B) natural hair texture, which includes 1
wavy, kinky, curl, and coily, and also the vari-2
ation of texture in between. 3
‘‘(5) S
EX.—The term ‘sex’ includes— 4
‘‘(A) a sex stereotype; 5
‘‘(B) pregnancy, childbirth, or a related 6
medical condition; 7
‘‘(C) sexual orientation or gender identity; 8
and 9
‘‘(D) sex characteristics, including intersex 10
traits. 11
‘‘(6) S
EXUAL ORIENTATION .—The term ‘sexual 12
orientation’ means an individual’s actual or per-13
ceived romantic, physical, or sexual attraction to 14
other persons, or lack thereof, that includes hetero-15
sexuality, homosexuality, and bisexuality. 16
‘‘(b) R
ULES.—In providing a remedy under this Act: 17
‘‘(1) In the case of any conduct alleged to be 18
discriminatory on the basis of sex, the remedy under 19
this Act for such conduct, to the extent it pertains 20
to pregnancy, childbirth, or a related medical condi-21
tion may not result in a less substantial remedy than 22
any other remedy for discrimination on the basis of 23
sex. 24
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‘‘(2) In the case of any conduct alleged to be 1
discriminatory on the basis of sex (with respect to 2
gender identity), an individual shall not be denied 3
access to a shared facility, including a restroom, a 4
locker room, and a dressing room, that is in accord-5
ance with the individual’s gender identity. 6
‘‘SEC. 209. RULES OF CONSTRUCTION. 7
‘‘(a) C
LAIMS ANDREMEDIESNOTPRECLUDED.— 8
Nothing in this title shall be construed to limit the claims 9
or remedies available to any individual for an unlawful 10
practice on the basis of race, color, religion, sex, or na-11
tional origin including claims brought pursuant to section 12
1979 or 1980 of the Revised Statutes (42 U.S.C. 1983, 13
1985) or any other law, including the Federal law amend-14
ed by the Customer Non-Discrimination Act, regulation, 15
or policy. 16
‘‘(b) N
ONEGATIVEINFERENCE.—Nothing in this 17
title shall be construed to support any inference that any 18
Federal law prohibiting a practice on the basis of sex does 19
not prohibit discrimination on the basis of pregnancy, 20
childbirth, or a related medical condition, sexual orienta-21
tion, gender identity, or a sex stereotype. 22
‘‘(c) S
COPE OF ANESTABLISHMENT.—A reference in 23
this title to an establishment— 24
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‘‘(1) shall be construed to include an individual 1
whose operations affect commerce and who is a pro-2
vider of a good, service, or program; and 3
‘‘(2) shall not be construed to be limited to a 4
physical facility or place. 5
‘‘SEC. 210. CLAIMS. 6
‘‘The Religious Freedom Restoration Act of 1993 (42 7
U.S.C. 2000bb et seq.) shall not provide a claim con-8
cerning, or a defense to a claim under this title or provide 9
a basis for challenging the application or enforcement of 10
this title.’’. 11
SEC. 7. STRICT VICARIOUS EMPLOYER LIABILITY AND 12
FARAGHER-ELLERTH AFFIRMATIVE DEFENSE 13
REMOVED. 14
Section 706 of the Civil Rights Act of 1964 (42 15
U.S.C. 2000e–5 et seq.) is amended by adding at the end 16
the following: 17
‘‘(l) An employer shall be liable for any act of dis-18
crimination prohibited under this title (including harass-19
ment, intimidation, or retaliation) committed by any of its 20
employees. 21
‘‘(m) It shall not be a defense to a claim under this 22
title or provide a basis for challenging the application or 23
enforcement of this title— 24
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‘‘(1) that an employer exercised reasonable care 1
in attempting to prevent or took corrective action re-2
garding any act of discrimination on the basis of sex 3
(including intimidation, harassment, or retaliation); 4
‘‘(2) that adverse employment action was not 5
taken by such an employer; or 6
‘‘(3) that an employee affected by that act did 7
not take advantage of preventive opportunities to 8
avoid harm.’’. 9
SEC. 8. ARBITRATION OF EMPLOYMENT, CONSUMER, AND 10
CIVIL RIGHTS DISPUTES. 11
(a) P
URPOSES.—The purposes of this section are 12
to— 13
(1) prohibit predispute arbitration agreements 14
that force arbitration of future employment, con-15
sumer, or civil rights disputes; and 16
(2) prohibit agreements and practices that 17
interfere with the right of individuals, workers, and 18
small businesses to participate in a joint, class, or 19
collective action related to an employment, con-20
sumer, or civil rights dispute. 21
(b) I
NGENERAL.—Title 9 of the United States Code 22
is amended by adding at the end the following: 23
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‘‘CHAPTER 4—ARBITRATION OF EMPLOY-1
MENT, CONSUMER, AND CIVIL RIGHTS 2
DISPUTES 3
‘‘SEC. 401. DEFINITIONS. 4
‘‘In this chapter— 5
‘‘(1) the term ‘civil rights dispute’ means a dis-6
pute— 7
‘‘(A) arising from an alleged violation of— 8
‘‘(i) the Constitution of the United 9
States or the constitution of a State; and 10
‘‘(ii) any Federal, State, or local law 11
that prohibits discrimination on the basis 12
of race, sex, age, gender identity, sexual 13
orientation, disability, religion, national or-14
igin, or any legally protected status in edu-15
cation, employment, credit, housing, public 16
accommodations and facilities, voting, vet-17
erans or servicemembers, health care, or a 18
program funded or conducted by the Fed-19
eral Government or State government, in-20
cluding any law referred to or described in 21
section 62(e) of the Internal Revenue Code 22
of 1986, including parts of such law not 23
explicitly referenced in such section but 24
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that relate to protecting individuals on any 1
such basis; and 2
‘‘(B) in which at least one party alleging a 3
violation described in subparagraph (A) is one 4
or more individuals (or their authorized rep-5
resentative), including one or more individuals 6
seeking certification as a class under rule 23 of 7
the Federal Rules of Civil Procedure or a com-8
parable rule or provision of State law; 9
‘‘(2) the term ‘consumer dispute’ means a dis-10
pute between— 11
‘‘(A) one or more individuals who seek or 12
acquire real or personal property, services (in-13
cluding services related to digital technology), 14
securities or other investments, money, or credit 15
for personal, family, or household purposes in-16
cluding an individual or individuals who seek 17
certification as a class under rule 23 of the 18
Federal Rules of Civil Procedure or a com-19
parable rule or provision of State law; and 20
‘‘(B)(i) the seller or provider of such prop-21
erty, services, securities or other investments, 22
money, or credit; or 23
‘‘(ii) a third party involved in the selling, 24
providing of, payment for, receipt or use of in-25
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•HR 1354 IH
formation about, or other relationship to any 1
such property, services, securities or other in-2
vestments, money, or credit; 3
‘‘(3) the term ‘employment dispute’ means a 4
dispute between one or more individuals (or their 5
authorized representative) and a person arising out 6
of or related to the work relationship or prospective 7
work relationship between them, including a dispute 8
regarding the terms of or payment for, advertising 9
of, recruiting for, referring of, arranging for, or dis-10
cipline or discharge in connection with, such work, 11
regardless of whether the individual is or would be 12
classified as an employee or an independent con-13
tractor with respect to such work, and including a 14
dispute arising under any law referred to or de-15
scribed in section 62(e) of the Internal Revenue 16
Code of 1986, including parts of such law not explic-17
itly referenced in such section but that relate to pro-18
tecting individuals on any such basis, and including 19
a dispute in which an individual or individuals seek 20
certification as a class under rule 23 of the Federal 21
Rules of Civil Procedure or as a collective action 22
under section 16(b) of the Fair Labor Standards 23
Act, or a comparable rule or provision of State law; 24
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‘‘(4) the term ‘predispute arbitration agree-1
ment’ means an agreement to arbitrate a dispute 2
that has not yet arisen at the time of the making 3
of the agreement; and 4
‘‘(5) the term ‘predispute joint-action waiver’ 5
means an agreement, whether or not part of a 6
predispute arbitration agreement, that would pro-7
hibit, or waive the right of, one of the parties to the 8
agreement to participate in a joint, class, or collec-9
tive action in a judicial, arbitral, administrative, or 10
other forum, concerning a dispute that has not yet 11
arisen at the time of the making of the agreement. 12
‘‘SEC. 402. NO VALIDITY OR ENFORCEABILITY. 13
‘‘(a) I
NGENERAL.—Notwithstanding any other pro-14
vision of this title, no predispute arbitration agreement or 15
predispute joint-action waiver shall be valid or enforceable 16
with respect to an employment dispute, consumer dispute, 17
or civil rights dispute. 18
‘‘(b) A
PPLICABILITY.— 19
‘‘(1) I
N GENERAL.—An issue as to whether this 20
chapter applies with respect to a dispute shall be de-21
termined under Federal law. The applicability of this 22
chapter to an agreement to arbitrate and the validity 23
and enforceability of an agreement to which this 24
chapter applies shall be determined by a court, rath-25
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•HR 1354 IH
er than an arbitrator, irrespective of whether the 1
party resisting arbitration challenges the arbitration 2
agreement specifically or in conjunction with other 3
terms of the contract containing such agreement, 4
and irrespective of whether the agreement purports 5
to delegate such determinations to an arbitrator. 6
‘‘(2) C
OLLECTIVE BARGAINING AGREEMENTS .— 7
Nothing in this chapter shall apply to any arbitra-8
tion provision in a contract between an employer and 9
a labor organization or between labor organizations, 10
except that no such arbitration provision shall have 11
the effect of waiving the right of a worker to seek 12
judicial enforcement of a right arising under a provi-13
sion of the Constitution of the United States, a 14
State constitution, or a Federal or State statute, or 15
public policy arising therefrom.’’. 16
(c) T
ECHNICAL ANDCONFORMINGAMENDMENTS.— 17
(1) I
N GENERAL.—Title 9 of the United States 18
Code is amended— 19
(A) in section 1 by striking ‘‘of seamen,’’ 20
and all that follows through ‘‘interstate com-21
merce,’’ and inserting in its place ‘‘of individ-22
uals, regardless of whether such individuals are 23
designated as employees or independent con-24
tractors for other purposes’’; 25
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(B) in section 2 by inserting ‘‘or as other-1
wise provided in chapter 4’’ before the period at 2
the end; 3
(C) in section 208— 4
(i) in the section heading by striking 5
‘‘
CHAPTER 1 ; RESIDUAL APPLICA -6
TION’’ and inserting ‘‘APPLICATION’’; 7
and 8
(ii) by adding at the end the fol-9
lowing: ‘‘This chapter applies to the extent 10
that this chapter is not in conflict with 11
chapter 4.’’; and 12
(D) in section 307— 13
(i) in the section heading by striking 14
‘‘
CHAPTER 1 ; RESIDUAL APPLICA -15
TION’’ and inserting ‘‘APPLICATION’’; 16
and 17
(ii) by adding at the end the fol-18
lowing: ‘‘This chapter applies to the extent 19
that this chapter is not in conflict with 20
chapter 4.’’. 21
(2) T
ABLE OF SECTIONS.— 22
(A) C
HAPTER 2.—The table of sections of 23
chapter 2 of title 9, United States Code, is 24
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•HR 1354 IH
amended by striking the item relating to section 1
208 and inserting the following: 2
‘‘208. Application.’’.
(B) CHAPTER 3.—The table of sections of 3
chapter 3 of title 9, United States Code, is 4
amended by striking the item relating to section 5
307 and inserting the following: 6
‘‘307. Application.’’.
(3) TABLE OF CHAPTERS .—The table of chap-7
ters of title 9, United States Code, is amended by 8
adding at the end the following: 9
‘‘4. Arbitration of employment, consumer, antitrust, and civil rights disputes’’.
SEC. 9. LIABILITY OF CERTAIN GOVERNMENT OFFICIALS.
10
(a) A
MENDMENT.—Revised Statute 1979 (42 U.S.C. 11
1983) is amended by inserting ‘‘of the United States or’’ 12
before ‘‘of any State’’. 13
(b) R
ULES FORAPPLICATION.—In any action under 14
Revised Statute 1979, the following shall apply: 15
(1) D
EFINITION OF STATE.—The term ‘‘State’’ 16
includes any person or entity that undertakes action 17
under color of any statute, ordinance, regulation, 18
custom, or usage, of any State or Territory or the 19
District of Columbia. 20
(2) A
CTION UNDER COLOR OF LAW .—A private 21
person or entity undertakes action under color of 22
any statute, ordinance, regulation, custom, or usage, 23
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of the United States or of any State or Territory or 1
the District of Columbia, when— 2
(A) undertaking a public function dele-3
gated by the United States or by a State or 4
local government; 5
(B) voluntarily undertaking a public func-6
tion; 7
(C) acting in concert with the United 8
States or a State or local government or acting 9
in concert with an individual officer, agent, or 10
entity of the United States or a State or local 11
government; 12
(D) engaging in joint action towards a 13
common goal or plan with the United States or 14
a State or local government or engaging in joint 15
action towards a common goal or plan with an 16
individual officer, agent, or entity of the United 17
States or of a State or local government; 18
(E) engaged in a conspiracy with the 19
United States or a State or local government or 20
engaged in a conspiracy with an individual offi-21
cer, agent, or entity of the United States or of 22
a State or local government; 23
(F) a close nexus exists between the pri-24
vate person or entity and the United States or 25
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•HR 1354 IH
a State or local government or a close nexus ex-1
ists between an individual officer, agent, or en-2
tity of the United States or a State or local 3
government; 4
(G) the activities of the private person or 5
entity is so entwined with the United States or 6
a State or local government or an individual of-7
ficer, agent, or entity of the United States or 8
of a State or local government such that the 9
private person or entity is fairly considered to 10
be acting under color of law; or 11
(H) otherwise exercises powers tradition-12
ally reserved to the United States or to State 13
or local government. 14
(3) P
RESUMPTION.—A private person or entity 15
is presumed to be acting under color of law when, 16
pursuant to a contract or other legally binding 17
agreement with the United States or with a State or 18
local government, the private person or entity exer-19
cises any power of the United States or of that State 20
or local government or the private person or entity 21
otherwise undertakes the administration, operations, 22
or other activities of: the judiciary, law enforcement, 23
public education, jails or prisons, elections, munic-24
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ipal water services, municipal waste removal, evic-1
tions, public parks, or public benefits programs. 2
(4) N
O DEFENSE OF QUALIFIED IMMUNITY .— 3
Qualified immunity is not a defense in an action 4
brought against any person who under color of any 5
statute, ordinance, regulation, custom, or usage, of 6
the United States or of any State or Territory or the 7
District of Columbia, subjects, or causes to be sub-8
jected, any citizen of the United States or other per-9
son within the jurisdiction thereof to the deprivation 10
of any rights, privileges, or immunities secured by 11
the Constitution and laws. 12
(5) R
ESPONDEAT SUPERIOR .—In the case of 13
any official of any political subdivision of the United 14
States or of a State, if that official, acting under 15
color of law, violates any provision of this Act, that 16
official shall be amenable to any suit under this Act, 17
and the political subdivision may be held liable for 18
the acts of that official, whether acting in his or her 19
official or individual capacity. 20
SEC. 10. EXPLICIT INCLUSION OF RULEMAKINGS. 21
Section 1003(a)(1) of the Rehabilitation Act Amend-22
ments of 1986 (42 U.S.C. 2000d–7(a)(1)) is amended by 23
inserting before the period at the end the following: ‘‘(in-24
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cluding the provisions of any rule made to implement any 1
of the foregoing statutes)’’. 2
SEC. 11. CONSTRUCTION. 3
(a) R
ELIEF.—Nothing in this Act, including any 4
amendment made by this Act, shall be construed to limit 5
the scope of, or the relief available under, section 504 of 6
the Rehabilitation Act of 1973 (29 U.S.C. 794), the Amer-7
icans with Disabilities Act of 1990 (42 U.S.C. 12101 et 8
seq.), or any other provision of law. 9
(b) D
EFENDANTS.—Nothing in this Act, including 10
any amendment made by this Act, shall be construed to 11
limit the scope of the class of persons who may be sub-12
jected to civil actions under the covered civil rights provi-13
sions. 14
(c) S
EVERABILITY.—If any provision of this Act, or 15
the application of such a provision to any person or cir-16
cumstance, is held to be unconstitutional, the remainder 17
of this Act and the application of the remaining provisions 18
of this Act to any person or circumstance shall not be af-19
fected thereby. 20
(d) A
RBITRATION.—Nothing in this Act, or the 21
amendments made by this Act, shall be construed to pro-22
hibit the use of arbitration on a voluntary basis after a 23
dispute arises. 24
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SEC. 12. EFFECTIVE DATE. 1
(a) I
NGENERAL.—This Act, and the amendments 2
made by this Act, take effect on the date of enactment 3
of this Act. 4
(b) A
PPLICATION.—This Act, and the amendments 5
made by this Act, apply to all actions or proceedings pend-6
ing on or after the date of enactment of this Act, and, 7
in the case of section 8 and the amendments made there-8
by, shall apply with respect to any dispute or claim that 9
arises or accrues on or after such date. 10
Æ
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