[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2008 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 2008
To amend section 1977 of the Revised Statutes to protect equal rights
under law.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 15, 2023
Mr. Blumenthal (for himself, Mr. Booker, Mr. Wyden, Ms. Warren, Ms.
Hirono, Mr. Whitehouse, Mr. Sanders, and Mr. Markey) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To amend section 1977 of the Revised Statutes to protect equal rights
under law.
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 ``Economic Inclusion Civil Rights Act
of 2023''.
SEC. 2. EQUAL RIGHTS.
Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended to
read as follows:
``SEC. 1977. EQUAL RIGHTS UNDER LAW.
``(a) Finding.--Congress finds that the decisions of the Supreme
Court of the United States in Comcast Corp. v. National Ass'n of
African American-Owned Media, 140 S. Ct. 1009 (2020), and General
Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982), have
weakened the scope and effectiveness of Federal civil rights
protections.
``(b) Purpose and Authority.--
``(1) Authority.--This section is an exercise of
congressional authority under section 5 of the 14th Amendment,
section 2 of the 13th Amendment, and the Commerce Clause of
section 8 of article I, of the Constitution of the United
States.
``(2) Purpose.--The purpose of this section is to protect
civil rights, including to enact into law key portions of the
concurring opinion of Justice Ginsburg in Comcast Corp. v.
National Ass'n of African American-Owned Media, 140 S. Ct. 1009
(2020), and the dissenting opinion of Justice Marshall in
General Building Contractors Ass'n v. Pennsylvania, 458 U.S.
375 (1982).
``(c) Definitions.--In this section:
``(1) Demonstrates.--The term `demonstrates' means meets
the burdens of production and persuasion.
``(2) Economic activity.--The term `economic activity'
shall have the broadest meaning permissible under the
Constitution, including--
``(A) making, performing, and enforcing contracts;
``(B) producing, consuming, browsing for, shopping
for, or waiting for goods or services;
``(C) soliciting, selecting, hiring, or dealing
with a vendor, supplier, contractor, or subcontractor;
``(D) dealing with or serving (including refusing
to serve) a shopper, patron, or customer;
``(E) accessing, processing, or granting (including
denying) access to loans, credit, bonding, or
insurance; and
``(F) purchasing, leasing, selling, holding, or
conveying real or personal property,
whether the activities described in this paragraph occur on the
internet, at a physical location, or through any other medium.
``(3) Full and equal benefit and enjoyment of economic
activity.--The term `full and equal benefit and enjoyment of
economic activity' means the benefit or enjoyment,
respectively, of the same benefits, privileges, advantages,
preferences, opportunities, terms, conditions, goods, services,
facilities, accommodations, service and treatment, employment,
and rights to make, enforce, perform, modify, and terminate
contracts, and freedom from intimidation, harassment, and
profiling as white citizens benefit from or enjoy,
respectively.
``(4) Including.--The term `including' means including, but
not limited to, consistent with the term's standard meaning in
Federal law.
``(5) Security of person and property.--The term
`security', used with respect to person and property, includes
protection from physical harm and a threat of harm to one's
body or property, and protection against exposure to or a
disproportionate burden from the negative human health and
environmental impacts of pollution or an environmental hazard.
``(d) Statement of Equal Rights.--All non-White persons within the
jurisdiction of the United States shall have the same right in every
State and territory as is enjoyed by White citizens to the full and
equal benefit and enjoyment of economic activity, to security of their
persons and property, to make and enforce contracts, including carrying
out the contract formation process, and to sue, be parties, and give
evidence, and to the full and equal benefit of all laws and
proceedings, and shall be subject, in comparison to White citizens, to
like punishment, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.
``(e) Discriminatory Effects Also Prohibited.--
``(1) In general.--No person shall use a criterion, method
of administration, practice, or policy that has a disparate
impact in violation of subsection (d).
``(2) Demonstration.--A challenged criterion, method of
administration, practice, or policy that has an impact
described in paragraph (1) shall be unjustifiable unless its
user demonstrates that--
``(A) the use serves a legitimate purpose, which is
both required by a substantial business necessity and
not a pretext for discrimination; and
``(B) if the complaining party proffers an
alternative, that that alternative is either
inconsistent with substantial business necessity or
would produce an equal or greater disparate impact on
the basis of a classification protected by subsection
(d).
``(3) Limitation on substantial business necessity
defense.--A demonstration that a criterion, method of
administration, practice, or policy is required by a
substantial business necessity may not be used as a defense
against a claim of intentional discrimination under this
section.
``(f) Protection Against Impairment.--All rights protected by this
section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.
``(g) Burden of Proof for Discriminatory Treatment Actions.--
``(1) Protected classification.--In this subsection, the
term `protected classification' means a classification
protected by subsection (d).
``(2) Demonstration.--The equal rights guaranteed under
subsection (d) shall be considered to be denied when the
complaining party demonstrates that race or a protected
classification was a motivating factor for the denial of such
rights even though other factors also motivated the denial. A
denial of equal rights guaranteed under subsection (d) may be
established with comparator evidence or any other evidence that
sufficiently demonstrates a denial of such rights, including
evidence of conduct that a reasonable person would find
racially hostile.
``(h) Standing.--Any person suffering injury in fact as a result of
the alleged violation of this section may bring a claim or cause of
action for damages, or for equitable or for declaratory relief, under
this section. Standing shall not be limited to victims who were parties
to, or third-party beneficiaries of, a contract with the defendant.
``(i) Respondeat Superior Liability.--Principals shall be liable
for violations of this section by their agents, and local governments
shall be liable for violations of this section by their employees,
acting within the scope of their duties.
``(j) Jury Trial Right.--All persons within the jurisdiction of the
United States shall have the right to enforce a right provided under
this section in a court of law and before a jury of their peers, and no
joint-action waiver or pre-dispute arbitration agreement shall be valid
or enforceable with respect to any alleged violation of this section.
``(k) Statute of Limitations.--All causes of action under this
section shall be governed by the 4-year statute of limitations provided
by section 1658(a) of title 28, United States Code.
``(l) Remediating Past Discrimination.--Nothing in this section
shall be construed to prohibit or limit a lawful effort, under a
provision other than this section, to remedy the effects of
discrimination that has occurred or is occurring.''.
SEC. 3. APPLICATION TO CLAIMS.
This Act, and the amendment made by this Act, shall apply to all
claims of violations of section 1977 of the Revised Statutes that are
pending on or after the date of enactment of this Act.
SEC. 4. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act,
the amendments made by this Act, and the application of such provision
or amendment to any person or circumstance shall not be affected
thereby.
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