New Bill Calls for Increased 'Accountability' by Employers under Civil Rights Statutes

February 1, 2008

A new bill introduced by Senator Ted Kennedy and Representative John Lewis aims to reverse or modify seven workplace-related decisions handed down by the United States Supreme Court over the past two decades. Entitled the Civil Rights Act of 2008 (S. 2554/H.R. 2159), the bill aims to "restore, reaffirm, and reconcile legal rights and remedies under civil rights statutes."

The Civil Rights Act of 2008 addresses a broad array of employment issues, including what its sponsors view as inequities in age and gender discrimination laws and improper use of federal funding. Touted as a measure to ensure employers are held accountable for civil rights and workers' rights violations, the bill's provisions restrict mandatory arbitration clauses, eliminate damage caps in gender and religious discrimination cases, reward successful plaintiffs with expert witness fees, and allow state employees to seek damages from their employers for age discrimination and Fair Labor Standards Act ("FLSA") violations. The bill also contains a provision allowing undocumented workers to recover backpay for labor and employment law violations.

Following is a summary of the provisions of the bill that are of particular interest to employers, public and private:

Age Discrimination Provisions

• Require states to waive immunity from Age Discrimination in Employment Act ("ADEA") suits brought by employees within state programs receiving federal funding. Thus, if a state program receives federal funds, employees who work within that program would be entitled to the same damages as employees who bring an ADEA claim against a private employer. This would effectively overturn Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (holding that states are immune from ADEA suits seeking damages).
• Harmonize the burden of proof in disparate impact claims under the ADEA with Title VII claims. This would modify Smith v. City of Jackson, 544 U.S. 228 (2005) (recognizing disparate impact claims in age discrimination cases but construing ADEA disparate impact claims more narrowly than Title VII claims).

Federal Funding Provisions

• Allow employees within state programs receiving federal funding to sue their employers for damages under the FLSA. This would overturn Alden v. Maine, 527 U.S. 706 (1999) (holding that states are immune from FLSA suits seeking damages).
• Reinstate a private right of action for disparate impact claims brought by employees within programs receiving federal funding under Title VI of the Civil Rights Act of 1964 and other civil rights statutes. This would overturn Alexander v. Sandoval, 532 U.S. 275 (2001) (limiting the availability of a private right of action for discriminatory impact claims).
• Overturn Gebser v. Lago Vista Indep. Sch. Dist.,524 U.S. 274 (1998) (holding that students can only receive damages under Title IX when school officials have "actual notice" of harassment and are "deliberately indifferent to it"), and "restore the availability of the full range of remedies for harassment based on race, color, sex, national origin, age, or disability."
• Create a private right of action for employees within state programs receiving federal funding under the Uniformed Services Employment and Reemployment Act of 1994 ("USERRA").

Gender Discrimination Provisions

• Eliminate the damages cap under Title VII and the Americans with Disabilities Act ("ADA"). According to Senator Kennedy, the Title VII damages cap is unfair to women because there is no damages cap for race discrimination and other claims brought under the Civil Rights Act of 1866. The proposed bill also provides for compensatory and punitive damages under the Equal Pay Act, part of the FLSA.
• Make it more difficult for employers sued under the Equal Pay Act to show that a pay disparity was due to a "bona fide factor other than sex."

Workers' Rights

• Allow mandatory arbitration agreements only when the parties voluntarily consent after a dispute arises or as part of a valid collective bargaining agreement.
• Allow prevailing plaintiffs to recover expert witness fees in non-Title VII cases. (Expert witness fees may be recovered already under Title VII.) This would modify West Virginia Univ. Hosp. Inc. v. Casey, 499 U.S. 83 (1991).
• Overturn Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 83 (2002) (holding that the National Labor Relations Board could not award backpay to an undocumented employee illegally fired for supporting union representation), and permit backpay awards to undocumented immigrants when an employer violates labor or employment laws.

The Civil Rights Act of 2008 is not the first of its kind. A similar bill was introduced in 2004 but never passed. Given the current bill's scope, a number of commentators have said it is unlikely it will pass this year. However, together with other bills that have been introduced unsuccessfully, it may suggest the agenda of a future Congress.

Employers should note that legislators are not the only ones with their sights set on workplace issues this year. While the Civil Rights Act of 2008 takes issue with seven different Supreme Court decisions, the country's highest court is reviewing more than ten employment law cases this term.

Jackson Lewis will continue to keep you apprised of legislation and cases affecting the workplace.

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