Justice for All Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 8698 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 OCTOBER 27, 2020 Ms. TLAIB (for herself, Mr. KENNEDY, and Ms. HAALAND) introduced the fol- lowing bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consider- ation of such provisions as fall within the jurisdiction of the committee concerned 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 2020’’. 5 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 2 •HR 8698 IH 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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 3 •HR 8698 IH 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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 4 •HR 8698 IH 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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 5 •HR 8698 IH 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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 6 •HR 8698 IH 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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 7 •HR 8698 IH (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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 8 •HR 8698 IH 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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 9 •HR 8698 IH 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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 10 •HR 8698 IH 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 VerDate Sep 11 2014 21:55 Nov 23, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8698.IH H8698 jbell on DSKJLSW7X2PROD with BILLS 11 •HR 8698 IH 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 [Text truncated for display. Full text available on Congress.gov.]