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July 01, 2004

In Support of a New Civil Rights Act - Human Rights Magazine, Summer 2004

In Support of a New Civil Rights Act

By Dina Lassow

Forty years ago, the U.S. Congress enacted the Civil Rights Act of 1964 (Act) to promote equal treatment for all people in our society. However, recent U.S. Supreme Court decisions have undermined Congress’s intent that the 1964 Act and other federal laws provide full and effective protection against all forms of discrimination throughout our nation. Therefore, on February 11, 2004, a coalition of Democratic legislators introduced a bill in both Houses of Congress to reverse these damaging decisions and strengthen key civil rights laws.

Introduced by Senator Edward Kennedy of Massachusetts and Representatives John Conyers of Michigan, John Lewis of Georgia, and George Miller of California, the new act is entitled the Fairness and Individual Rights Necessary to Ensure a Stronger Society: The Civil Rights Act of 2004 (FAIRNESS Act). The FAIRNESS Act would overrule several Supreme Court decisions and provide new protections that fill gaps in essential civil rights laws. The relevant provisions of the FAIRNESS Act, generally set forth in the same order as in the bill, are as follows:

Alexander v. Sandoval, 532 U.S. 275 (2001), holds that individuals cannot sue to challenge “disparate impact” discrimination under Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin in federally funded programs and activities. Some courts have interpreted Sandoval to extend to other civil rights laws, including Title IX of the Education Amendments of 1972 (the Patsy Takemoto Mink Equal Opportunity in Education Act), which bars discrimination on the basis of sex in education programs and activities that receive federal funds. Courts have also viewed Sandoval as barring other causes of action, such as suits challenging retaliation against individuals who have protested against discrimination.

• The FAIRNESS Act overturns Sandoval, Title VI, Title IX, and the Age Discrimination Act of 1975, which prohibits discrimination based on age in federally funded programs and activities, to make it clear that these laws bar disparate impact discrimination and that individuals may sue in court when their rights under these statutes or their implementing regulations have been violated. The FAIRNESS Act also ensures a private right of action for individuals with disabilities under the Air Carrier Access Act of 1986.

Barnes v. Gorman, 536 U.S. 181 (2002), bars the award of punitive damages in suits for discrimination under section 504 of the Rehabilitation Act. Some lower courts have extended its holding to suits under the related civil rights laws.

• The FAIRNESS Act ensures that punitive damages will be available in suits for “disparate treatment” discrimination under section 504, Title VI, Title IX, and the Age Discrimination Act of 1975.

• The Supreme Court has held that Title IX bars sexual harassment of students by school employees and by their peers. However, in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court imposed a high burden on students who seek damages: they must show that school officials had “actual knowledge” of the harassment and responded to it with “deliberate indifference.”

• The FAIRNESS Act eliminates those requirements, which create an incentive for officials to remain ignorant of problems, and makes the standard of proof for damages in harassment cases under Title IX, and under related statutes that bar discrimination in federally funded programs and activities, comparable to the agency law standards that apply to employers under Title VII of the Civil Rights Act of 1964.

• The Uniformed Services Employment and Reemployment Rights Act of 1994 safeguards the reemployment rights of members of the uniformed services and bars discrimination on the basis of military service. However, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), which limits Congress’s authority to abrogate the immunity of states under the Eleventh Amendment to the Constitution, has been interpreted to bar suits against state employers for damages under this law.

• The FAIRNESS Act restores the protection that Congress intended to give those who serve in the military by providing that a state’s receipt or use of federal funds for any program or activity constitutes a waiver of sovereign immunity.

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), another Eleventh Amendment case, denies state employees the right to sue their employers for damages for age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA).

• The FAIRNESS Act restores this right. In addition, it confirms that the ADEA provides a cause of action for disparate impact discrimination. The FAIRNESS Act also restores the right of state employees to sue for damages for violations of the Fair Labor Standards Act of 1938 (FLSA), which regulates the payment of minimum wage and overtime rates, a right that was taken away by Alden v. Maine, 527 U.S. 706 (1999).

• The Civil Rights Attorney’s Fees Awards Act of 1976, as amended, gives the courts discretion to award reasonable attorneys’ fees to a “prevailing party” in most civil rights cases. However, in Buchhannon Board and Care Home v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), the Supreme Court limited that discretion by holding that a party can be considered to be “prevailing” only if it has obtained a court decision in its favor or achieved a court-approved settlement.

• The FAIRNESS Act establishes that a “prevailing party” includes someone whose lawsuit acts as a “catalyst” for action by the opposing party that provides “any significant part of the relief sought,” even if no court order is entered. It also provides for the award of expert witness fees to prevailing parties, removing the bar on such awards imposed by West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991).
The Civil Rights Act of 1991 provides for the award of compensatory and punitive damages for victims of discrimination in the workplace that are awarded under Title VII and disability-rights laws, but limits the damages based on the size of the employer.

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), holds that employers may require their employees to sign “arbitration clauses,” thereby denying employees who face discrimination the procedural protections, substantive rights, and remedies that federal and state civil rights laws, including Title VII, provide.

• The FAIRNESS Act amends the Federal Arbitration Act (the basis for the Circuit City decision) to exclude employment contracts, and provides that arbitration clauses in such contracts cannot be enforced unless they are part of valid collective bargaining agreements.

• The Equal Pay Act (EPA), signed over forty years ago by President Kennedy, makes it illegal for employers to pay unequal wages to women and men who hold the same job and do the same work. However, unequal pay remains a serious problem. Women working full time, year-round earn about 76 cents for every dollar earned by men. Women of color fare significantly worse. This wage gap reflects sex discrimination and cannot be explained by arguments that the salary differences simply reflect women’s work choices.

• The FAIRNESS Act updates and strengthens the Equal Pay Act by, among other reforms, improving the remedies available for pay discrimination to include compensatory and punitive damages, and eliminating restrictive provisions on the filing of class actions.

Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 (2002), holds that backpay cannot be awarded to an undocumented worker who was unlawfully discharged for union organizing activities.

• The FAIRNESS Act restores protection to undocumented workers by providing that backpay or other monetary relief for unlawful employment practices cannot be denied based on immigration status.

The FAIRNESS Act clarifies and restores all of these protections against discrimination that Congress intended to provide when it passed the Civil Rights Act of 1964 and other antidiscrimination laws. Its enactment will help realize the unmet goals of those laws. For additional information, see

Dina Lassow is senior counsel at the National Women’s Law Center in Washington, D.C.