[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3823 Introduced in Senate (IS)]
109th CONGRESS
2d Session
S. 3823
To amend the Americans with Disabilities Act of 1990 and the Age
Discrimination in Employment Act of 1967 to provide a means to combat
discrimination on the basis of age or disability, by conditioning a
State's receipt or use of Federal financial assistance on the State's
waiver of immunity from suit for violations under such Acts.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 3, 2006
Mr. DeWine introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Americans with Disabilities Act of 1990 and the Age
Discrimination in Employment Act of 1967 to provide a means to combat
discrimination on the basis of age or disability, by conditioning a
State's receipt or use of Federal financial assistance on the State's
waiver of immunity from suit for violations under such Acts.
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 ``Civil Rights Restoration Act of
2006''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) For over 30 years, Congress has outlawed employment
discrimination by State employers. In 1974, in the face of
pervasive age discrimination by State and other employers,
Congress amended the Age Discrimination in Employment Act of
1967 (29 U.S.C. 621 et seq.) (referred to in this Act as the
``ADEA'') to outlaw age discrimination by such employers. In
1990, Congress passed the Americans with Disabilities Act of
1990 (42 U.S.C. 12101 et seq.) (referred to in this Act as the
``ADA'') to provide a ``clear and comprehensive national
mandate'', as described in section 2(b)(1) of that Act (42
U.S.C. 12101(b)(1)), to eliminate discrimination against
individuals with disabilities, even when that discrimination
came at the hands of States, including State employers.
(2)(A) Many years have passed since the enactment of those
laws, but discrimination on the basis of age or disability
remains a serious problem in the United States.
(B) Discrimination has invidious effects on its victims,
the workforce, the economy as a whole, and government revenues.
Discrimination on the basis of age or disability--
(i) increases the risk of unemployment among older
workers or individuals with disabilities, who may, as a
result of the discrimination, be forced to depend on
government programs;
(ii) adversely affects the morale and productivity
of the workforce;
(iii) perpetuates unwarranted stereotypes about the
abilities of older workers or individuals with
disabilities, thus reducing the effectiveness of
government programs promoting nondiscrimination and
integration; and
(iv) prevents the best use of both public and
private resources.
(3) Since the passage of the ADA and the ADEA, private
civil suits by the victims of discrimination have been an
essential tool in combating illegal discrimination. As one
witness explained during hearings on the legislation that
became the ADA, ``civil rights laws depend heavily on private
enforcement''. ``[D]amages are essential to provide private
citizens a meaningful opportunity to vindicate their rights.
Attempts to weaken the remedies available under the ADA are
attacks on the ADA itself, and their success would make the ADA
an empty promise of equality.''. Field Hearing on Americans
with Disabilities Act, Before the Subcommittee on Select
Education of the House Committee on Education and Labor, 101st
Cong. 68 (1989) (statement of Mr. Howard Wolf).
(4) In recent years, however, the Supreme Court has created
a serious loophole in the ADA and the ADEA, weakening their
``promise of equality''. In Kimel v. Florida Board of Regents,
528 U.S. 62 (2000), for instance, the Supreme Court held that
Congress lacked the power to subject States to suit for money
damages under the ADEA. In Board of Trustees of the University
of Alabama v. Garrett, 531 U.S. 356 (2001), the Court again
held that Congress lacked the power to subject States to suit
for money damages, this time under title I of the ADA (42
U.S.C. 12111 et seq.).
(5) As a result of those decisions, State employees who are
victimized by discrimination on the basis of age or disability
cannot sue in Federal court for money damages to vindicate
their Federal rights. Those decisions have, in turn, had 2
unfortunate consequences.
(6) First, they have undermined the enforcement of the ADA
and the ADEA. Lawsuits for money damages are the primary means
for private individuals to obtain redress for discrimination.
In addition, lawsuits for money damages promote deterrence and
provide an important way for the Federal Government to enforce
antidiscrimination laws. By eliminating the ability for State
employees to sue their employers for such damages, the Supreme
Court's Kimel and Garrett decisions have made enforcement of
these civil rights laws more difficult.
(7) Second, they have created a legal regime that gives
State employees fewer rights than other employees covered by
the ADA and the ADEA. At present, employees of local
governments and employees in the private sector are entitled to
sue in Federal court for money damages for violations of the
ADA or the ADEA. For the more than 2,500,000 individuals who
work for the States, however, such relief is no longer
available.
(8) Although most States have laws in effect that bar
discrimination on the basis of age or disability, those laws
are insufficient to provide redress for those individuals who
are subjected to discrimination by State employers or agencies.
(9) A few States apply the doctrine of sovereign immunity
to completely bar State employees from suing in State court for
age discrimination. In several States, it is still unclear
whether State law claims can proceed in State court for age
discrimination or whether those claims are barred by sovereign
immunity. Finally, there are many States that severely limit or
restrict the kinds of remedies or monetary relief available to
State employees who bring suits for discrimination on the basis
of age.
(10) The same problems exist with State laws regarding
disability discrimination. In fact, one recent analysis has
shown that there are significant gaps in the coverage and
remedies available under State laws outlawing discrimination.
(11) Thus, while State laws are important in trying to stem
discrimination on the basis of age or disability, they are
currently inadequate to close the loophole created by the Kimel
and Garrett decisions.
(12) In the years since the Kimel and Garrett decisions,
many States have also challenged the constitutionality of title
II of the ADA (42 U.S.C. 12131 et seq.). These challenges have
forced individuals with disabilities into extensive litigation
about sovereign immunity when they seek redress for disability
discrimination in such fundamental areas as access to the
courts, access to community-based services, access to State-
sponsored health insurance, access to public transportation,
access to handicapped parking, access to mental health
services, and access to public education. The Supreme Court has
issued several decisions that invite even more litigation. In
Tennessee v. Lane, for instance, the Court held that, under the
particular facts of that case, a plaintiff could sue the State
for money damages under title II of the ADA, even though the
Court, in the Garrett case, had barred a claim for such damages
under title I of that Act (42 U.S.C. 12111 et seq.) Tennessee
v. Lane, 541 U.S. 509 (2004).
(13) After the Lane decision, some claims against States
are permitted to proceed under the ADA, while others are not.
This has made it extremely difficult for the victims of
discrimination, States, and Congress to determine precisely
when States are subject to suit under the ADA and when they are
not. The confusion has spawned a significant amount of
litigation in the lower Federal courts. This jurisprudence has
even caused the Chairman of the Committee on the Judiciary of
the Senate, Senator Arlen Specter, to condemn the Court's
recent decisions as ``inexplicable''.
(14) The Constitution provides Congress with the power to
enact legislation--
(A) to clarify that, despite the Supreme Court's
decisions in the Kimel and Garrett cases, the States
are subject to suit just like other entities when the
States violate the ADA and the ADEA; and
(B) to end the confusion created by the Court's
decision in the Lane case.
(15) Under section 8 of article I of the Constitution,
``The Congress shall have power to lay and collect taxes,
duties, imposts and excises, to pay the debts and provide for
the common defense and general welfare of the United States''.
(16) Congress' power under this language, known as the
Spending Clause, is well-established. Under this Clause,
Congress has the power to require the States to abide by
certain conditions in exchange for receiving Federal financial
assistance. This authority has been recognized by the Supreme
Court repeatedly through the years and reaffirmed recently.
United States v. Butler, 297 U.S. 1 (1936) (declaring that
Congress may exert authority through its spending power); South
Dakota v. Dole, 483 U.S. 203 (1987) (upholding condition
requiring the establishment of a drinking age of 21 years in
exchange for the receipt of Federal highway dollars). In fact,
the Supreme Court has specifically held that Congress may
require a State, as a condition of receiving Federal financial
assistance, to waive its immunity from suit for violations of
Federal law. College Savings Bank v. Florida Prepaid
Postsecondary Education Expense Board, 527 U.S. 666 (1999).
(17) Congress has previously used its spending power to
require States to waive their immunity from suit in exchange
for receiving Federal financial assistance. For instance, the
provisions of section 1003 of the Rehabilitation Act Amendments
of 1986 (42 U.S.C. 2000d-7) provide that a State shall not be
immune from suit under the 11th amendment for violations of
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),
title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et
seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et
seq.), and title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d et seq.). At least one court, however, has suggested that
those provisions do not apply to the ADA or the ADEA. Brown v.
Washington Metro Area Transit Authority, No. DKC 2005-0052,
2005 U.S. Dist. LEXIS 16881 (D. Md. 2005).
(18) By requiring States to waive their immunity from suit
under the ADA and the ADEA in exchange for receiving Federal
assistance, the Federal government can ensure that Federal
dollars are not ``frittered away'' on unlawful discrimination.
Such a conditional waiver will help Congress ``protect the
integrity of the vast sums of money distributed through Federal
programs''. Sabri v. United States, 541 U.S. 600 (2004).
``Simple justice requires that public funds, to which all
taxpayers . . . contribute, not be spent in any fashion which
encourages, entrenches, subsidizes, or results in . . .
discrimination''. Lau v. Nichols, 414 U.S. 563 (1974). This
simple principle applies whether the discrimination is based on
race, as in the Lau case, or age, or disability, as in Barbour
v. Washington Metro Area Transit Authority, 374 F.3d 1161 (D.C.
Cir. 2004).
(19) Such a conditional waiver does not coerce a State in
any way. The Supreme Court has recognized that a State's
voluntary waiver of its 11th amendment right is constitutional.
College Savings Bank v. Florida Prepaid Postsecondary Education
Expense Board, 527 U.S. 666 (1999) (citing Clark v. Barnard,
108 U.S. 436 (1883)). The Court has explicitly recognized that
a State's acceptance of Federal funds constitutes a knowing
agreement to a congressionally-imposed condition on the funds.
Thus, while Congress may not compel States to waive their
immunity granted under the 11th amendment, a voluntary State
waiver condition is wholly permissible. Alden v. Maine, 527
U.S. 706 (1999).
(20) The Kimel and Garrett decisions frustrate the ability
of the ADA and the ADEA to protect individual rights and remedy
violations of Federal law. In the wake of those decisions, and
in recognition that State laws may be insufficient to protect
against discrimination on the basis of age or disability, it is
essential to require that States waive their immunity from suit
under the ADA and the ADEA for those programs or activities
receiving Federal financial assistance.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to provide to any State employee or person aggrieved by
any program or activity that receives Federal financial
assistance the right to sue the State for money damages for any
violation of the ADA or the ADEA; and
(2) to provide that 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 any employee or person aggrieved by that program or activity
for any violation of the ADA or the ADEA.
SEC. 4. ABROGATION OF STATE SOVEREIGN IMMUNITY.
(a) Age Discrimination in Employment Act of 1967.--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) Waiver of Sovereign Immunity.--
``(1) Waiver.--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 any employee or person aggrieved by that program or activity
for equitable, legal, or other relief authorized by or through
this Act.
``(2) Abrogation for constitutional violation.--In addition
to the abrogation of sovereign immunity already accomplished by
this Act, a State's sovereign immunity, under the 11th
amendment to the Constitution or otherwise, is abrogated for
any suit brought by any employee or person for equitable,
legal, or other relief authorized by or through this Act, for
conduct that violates the 14th amendment (including the
constitutional rights incorporated in the 14th amendment) and
that also violates this Act.
``(3) Definitions.--In this subsection:
``(A) Program or activity.--
``(i) In general.--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).
``(ii) Operations included.--The term
includes any operation carried out, funded, or
arranged by an entity described in clause (i)
or (ii) of section 309(4)(A) of such Act (42
U.S.C. 6107(4)(A)) that receives Federal
financial assistance, even if the entity does
not use the Federal financial assistance for
the operation.
``(B) Recipient.--A State shall be considered to
receive Federal financial assistance for a program or
activity if the program or activity--
``(i) receives the assistance from an
intermediary; and
``(ii) is the intended recipient under the
statutory provision through which the
intermediary receives the assistance.
``(C) Construction.--Nothing in this paragraph
shall be construed to suggest that, for purposes of
this subsection or title III of such Act--
``(i) the term `program or activity' would
not include the operation described in
subparagraph (A)(ii), in the absence of this
paragraph; or
``(ii) a State described in subparagraph
(B) would not be considered to receive Federal
financial assistance for a program or activity,
in the absence of this paragraph.''.
(b) Title I of the Americans With Disabilities Act of 1990.--
Section 107 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12117) is amended by adding at the end the following:
``(c) Waiver of Sovereign Immunity.--
``(1) Waiver.--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 any employee or person alleging a violation of this title
(including regulations promulgated under section 106) or
section 503, or otherwise aggrieved, by that program or
activity for equitable, legal, or other relief authorized by or
through this Act or section 1977A of the Revised Statutes (42
U.S.C. 1981a).
``(2) Abrogation for constitutional violation.--In addition
to the abrogation of sovereign immunity already accomplished by
section 502, a State's sovereign immunity, under the 11th
amendment to the Constitution or otherwise, is abrogated for
any suit brought by any employee or person for equitable,
legal, or other relief authorized by or through this Act or
section 1977A of the Revised Statutes (42 U.S.C. 1981a), for
conduct that violates the 14th amendment (including the
constitutional rights incorporated in the 14th amendment) and
that also violates this title (including regulations
promulgated under section 106) or section 503.
``(3) Definitions.--In this subsection:
``(A) Program or activity.--
``(i) In general.--The term `program or
activity' has the meaning given the term in
section 504(b) of the Rehabilitation Act of
1973 (29 U.S.C. 794(b)).
``(ii) Operations included.--The term
includes any operation carried out, funded, or
arranged by an entity described in subparagraph
(A) or (B) of section 504(b)(1) of such Act (29
U.S.C. 794(b)(1)) that receives Federal
financial assistance, even if the entity does
not use the Federal financial assistance for
the operation.
``(B) Recipient.--A State shall be considered to
receive Federal financial assistance for a program or
activity if the program or activity--
``(i) receives the assistance from an
intermediary; and
``(ii) is the intended recipient under the
statutory provision through which the
intermediary receives the assistance.
``(C) Construction.--Nothing in this paragraph
shall be construed to suggest that, for purposes of
this subsection or such section 504--
``(i) the term `program or activity' would
not include the operation described in
subparagraph (A)(ii), in the absence of this
paragraph; or
``(ii) a State described in subparagraph
(B) would not be considered to receive Federal
financial assistance for a program or activity,
in the absence of this paragraph.''.
(c) Title II of the Americans With Disabilities Act of 1990.--
Section 203 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12133) is amended--
(1) by inserting ``(a) In General.--'' before ``The''; and
(2) by adding at the end the following:
``(b) Waiver of Sovereign Immunity.--
``(1) Waiver.--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 any employee or person alleging a violation of this title
(including regulations promulgated under section 204, 229, or
244) or section 503, or otherwise aggrieved, by that program or
activity for equitable, legal, or other relief authorized by or
through this Act.
``(2) Abrogation for constitutional violation.--In addition
to the abrogation of sovereign immunity already accomplished by
section 502, a State's sovereign immunity, under the 11th
amendment to the Constitution or otherwise, is abrogated for
any suit brought by any employee or person for equitable,
legal, or other relief authorized by or through this Act, for
conduct that violates the 14th amendment (including the
constitutional rights incorporated in the 14th amendment) and
that also violates this title (including regulations
promulgated under section 204, 229, or 244) or section 503.
``(3) Definitions.--In this subsection:
``(A) Program or activity.--
``(i) In general.--The term `program or
activity' has the meaning given the term in
section 504(b) of the Rehabilitation Act of
1973 (29 U.S.C. 794(b)).
``(ii) Operations included.--The term
includes any operation carried out, funded, or
arranged by an entity described in subparagraph
(A) or (B) of section 504(b)(1) of such Act (29
U.S.C. 794(b)(1)) that receives Federal
financial assistance, even if the entity does
not use the Federal financial assistance for
the operation.
``(B) Recipient.--A State shall be considered to
receive Federal financial assistance for a program or
activity if the program or activity--
``(i) receives the assistance from an
intermediary; and
``(ii) is the intended recipient under the
statutory provision through which the
intermediary receives the assistance.
``(C) Construction.--Nothing in this paragraph
shall be construed to suggest that, for purposes of
this subsection or such section 504--
``(i) the term `program or activity' would
not include the operation described in
subparagraph (A)(ii), in the absence of this
paragraph; or
``(ii) a State described in subparagraph
(B) would not be considered to receive Federal
financial assistance for a program or activity,
in the absence of this paragraph.''.
SEC. 5. EFFECTIVE DATE.
(a) Age Discrimination in Employment Act of 1967.--
(1) In general.--With respect to a particular program or
activity, paragraphs (1) and (3) of section 7(g) of the Age
Discrimination in Employment Act of 1967 (29 U.S.C. 626(g))
apply to conduct occurring on or after the day, after the date
of enactment of this Act, on which a State first receives or
uses Federal financial assistance for that program or activity.
Section 7(g)(2) of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 626(g)(2)) applies to all civil actions pending
on that date of enactment or filed thereafter.
(2) Program or activity; receives federal financial
assistance.--The definition and rule specified in subparagraphs
(A) and (B) of section 7(g)(3) of such Act (29 U.S.C.
626(g)(2)) shall apply for purposes of this subsection.
(b) Americans With Disabilities Act of 1990.--
(1) In general.--With respect to a particular program or
activity, paragraphs (1) and (3) of section 107(c) and
paragraphs (1) and (3) of section 203(b) of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12117(c), 12133(b)) apply
to conduct occurring on or after the day, after the date of
enactment of this Act, on which a State first receives or uses
Federal financial assistance for that program or activity.
Sections 107(c)(2) and 203(b)(2) of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12117(c)(2), 12133(b)(2))
apply to all civil actions pending on that date of enactment or
filed thereafter.
(2) Program or activity; receives federal financial
assistance.--The definition and rule specified in subparagraphs
(A) and (B) of section 107(c)(3) of such Act (42 U.S.C.
12117(c)(3)) shall apply for purposes of this subsection.
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