Economic Inclusion Civil Rights Act of 2023

II 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 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 ‘‘Economic Inclusion 4 Civil Rights Act of 2023’’. 5 SEC. 2. EQUAL RIGHTS. 6 Section 1977 of the Revised Statutes (42 U.S.C. 7 1981) is amended to read as follows: 8 VerDate Sep 11 2014 18:46 Jul 09, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2008.IS S2008 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 2008 IS ‘‘SEC. 1977. EQUAL RIGHTS UNDER LAW. 1 ‘‘(a) FINDING.—Congress finds that the decisions of 2 the Supreme Court of the United States in Comcast Corp. 3 v. National Ass’n of African American-Owned Media, 140 4 S. Ct. 1009 (2020), and General Building Contractors 5 Ass’n v. Pennsylvania, 458 U.S. 375 (1982), have weak- 6 ened the scope and effectiveness of Federal civil rights 7 protections. 8 ‘‘(b) PURPOSE AND AUTHORITY.— 9 ‘‘(1) AUTHORITY.—This section is an exercise 10 of congressional authority under section 5 of the 11 14th Amendment, section 2 of the 13th Amendment, 12 and the Commerce Clause of section 8 of article I, 13 of the Constitution of the United States. 14 ‘‘(2) PURPOSE.—The purpose of this section is 15 to protect civil rights, including to enact into law key 16 portions of the concurring opinion of Justice Gins- 17 burg in Comcast Corp. v. National Ass’n of African 18 American-Owned Media, 140 S. Ct. 1009 (2020), 19 and the dissenting opinion of Justice Marshall in 20 General Building Contractors Ass’n v. Pennsylvania, 21 458 U.S. 375 (1982). 22 ‘‘(c) DEFINITIONS.—In this section: 23 ‘‘(1) DEMONSTRATES.—The term ‘dem- 24 onstrates’ means meets the burdens of production 25 and persuasion. 26 VerDate Sep 11 2014 18:46 Jul 09, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2008.IS S2008 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 2008 IS ‘‘(2) ECONOMIC ACTIVITY.—The term ‘economic 1 activity’ shall have the broadest meaning permissible 2 under the Constitution, including— 3 ‘‘(A) making, performing, and enforcing 4 contracts; 5 ‘‘(B) producing, consuming, browsing for, 6 shopping for, or waiting for goods or services; 7 ‘‘(C) soliciting, selecting, hiring, or dealing 8 with a vendor, supplier, contractor, or subcon- 9 tractor; 10 ‘‘(D) dealing with or serving (including re- 11 fusing to serve) a shopper, patron, or customer; 12 ‘‘(E) accessing, processing, or granting (in- 13 cluding denying) access to loans, credit, bond- 14 ing, or insurance; and 15 ‘‘(F) purchasing, leasing, selling, holding, 16 or conveying real or personal property, 17 whether the activities described in this paragraph 18 occur on the internet, at a physical location, or 19 through any other medium. 20 ‘‘(3) FULL AND EQUAL BENEFIT AND ENJOY- 21 MENT OF ECONOMIC ACTIVITY.—The term ‘full and 22 equal benefit and enjoyment of economic activity’ 23 means the benefit or enjoyment, respectively, of the 24 same benefits, privileges, advantages, preferences, 25 VerDate Sep 11 2014 18:46 Jul 09, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2008.IS S2008 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 2008 IS opportunities, terms, conditions, goods, services, fa- 1 cilities, accommodations, service and treatment, em- 2 ployment, and rights to make, enforce, perform, 3 modify, and terminate contracts, and freedom from 4 intimidation, harassment, and profiling as white citi- 5 zens benefit from or enjoy, respectively. 6 ‘‘(4) INCLUDING.—The term ‘including’ means 7 including, but not limited to, consistent with the 8 term’s standard meaning in Federal law. 9 ‘‘(5) SECURITY OF PERSON AND PROPERTY.— 10 The term ‘security’, used with respect to person and 11 property, includes protection from physical harm 12 and a threat of harm to one’s body or property, and 13 protection against exposure to or a disproportionate 14 burden from the negative human health and environ- 15 mental impacts of pollution or an environmental 16 hazard. 17 ‘‘(d) STATEMENT OF EQUAL RIGHTS.—All non- 18 White persons within the jurisdiction of the United States 19 shall have the same right in every State and territory as 20 is enjoyed by White citizens to the full and equal benefit 21 and enjoyment of economic activity, to security of their 22 persons and property, to make and enforce contracts, in- 23 cluding carrying out the contract formation process, and 24 to sue, be parties, and give evidence, and to the full and 25 VerDate Sep 11 2014 18:46 Jul 09, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2008.IS S2008 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 2008 IS equal benefit of all laws and proceedings, and shall be sub- 1 ject, in comparison to White citizens, to like punishment, 2 pains, penalties, taxes, licenses, and exactions of every 3 kind, and to no other. 4 ‘‘(e) DISCRIMINATORY EFFECTS ALSO PROHIB- 5 ITED.— 6 ‘‘(1) IN GENERAL.—No person shall use a cri- 7 terion, method of administration, practice, or policy 8 that has a disparate impact in violation of sub- 9 section (d). 10 ‘‘(2) DEMONSTRATION.—A challenged criterion, 11 method of administration, practice, or policy that 12 has an impact described in paragraph (1) shall be 13 unjustifiable unless its user demonstrates that— 14 ‘‘(A) the use serves a legitimate purpose, 15 which is both required by a substantial business 16 necessity and not a pretext for discrimination; 17 and 18 ‘‘(B) if the complaining party proffers an 19 alternative, that that alternative is either incon- 20 sistent with substantial business necessity or 21 would produce an equal or greater disparate im- 22 pact on the basis of a classification protected by 23 subsection (d). 24 VerDate Sep 11 2014 18:46 Jul 09, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2008.IS S2008 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 2008 IS ‘‘(3) LIMITATION ON SUBSTANTIAL BUSINESS 1 NECESSITY DEFENSE.—A demonstration that a cri- 2 terion, method of administration, practice, or policy 3 is required by a substantial business necessity may 4 not be used as a defense against a claim of inten- 5 tional discrimination under this section. 6 ‘‘(f) PROTECTION AGAINST IMPAIRMENT.—All rights 7 protected by this section are protected against impairment 8 by nongovernmental discrimination and impairment under 9 color of State law. 10 ‘‘(g) BURDEN OF PROOF FOR DISCRIMINATORY 11 TREATMENT ACTIONS.— 12 ‘‘(1) PROTECTED CLASSIFICATION.—In this 13 subsection, the term ‘protected classification’ means 14 a classification protected by subsection (d). 15 ‘‘(2) DEMONSTRATION.—The equal rights guar- 16 anteed under subsection (d) shall be considered to be 17 denied when the complaining party demonstrates 18 that race or a protected classification was a moti- 19 vating factor for the denial of such rights even 20 though other factors also motivated the denial. A de- 21 nial of equal rights guaranteed under subsection (d) 22 may be established with comparator evidence or any 23 other evidence that sufficiently demonstrates a de- 24 VerDate Sep 11 2014 18:46 Jul 09, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2008.IS S2008 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 2008 IS nial of such rights, including evidence of conduct 1 that a reasonable person would find racially hostile. 2 ‘‘(h) STANDING.—Any person suffering injury in fact 3 as a result of the alleged violation of this section may 4 bring a claim or cause of action for damages, or for equi- 5 table or for declaratory relief, under this section. Standing 6 shall not be limited to victims who were parties to, or 7 third-party beneficiaries of, a contract with the defendant. 8 ‘‘(i) RESPONDEAT SUPERIOR LIABILITY.—Principals 9 shall be liable for violations of this section by their agents, 10 and local governments shall be liable for violations of this 11 section by their employees, acting within the scope of their 12 duties. 13 ‘‘(j) JURY TRIAL RIGHT.—All persons within the ju- 14 risdiction of the United States shall have the right to en- 15 force a right provided under this section in a court of law 16 and before a jury of their peers, and no joint-action waiver 17 or pre-dispute arbitration agreement shall be valid or en- 18 forceable with respect to any alleged violation of this sec- 19 tion. 20 ‘‘(k) STATUTE OF LIMITATIONS.—All causes of ac- 21 tion under this section shall be governed by the 4-year 22 statute of limitations provided by section 1658(a) of title 23 28, United States Code. 24 VerDate Sep 11 2014 18:46 Jul 09, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2008.IS S2008 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 2008 IS ‘‘(l) REMEDIATING PAST DISCRIMINATION.—Nothing 1 in this section shall be construed to prohibit or limit a 2 lawful effort, under a provision other than this section, 3 to remedy the effects of discrimination that has occurred 4 or is occurring.’’. 5 SEC. 3. APPLICATION TO CLAIMS. 6 This Act, and the amendment made by this Act, shall 7 apply to all claims of violations of section 1977 of the Re- 8 vised Statutes that are pending on or after the date of 9 enactment of this Act. 10 SEC. 4. SEVERABILITY. 11 If any provision of this Act, an amendment made by 12 this Act, or the application of such provision or amend- 13 ment to any person or circumstance is held to be unconsti- 14 tutional, the remainder of this Act, the amendments made 15 by this Act, and the application of such provision or 16 amendment to any person or circumstance shall not be af- 17 fected thereby. 18 Æ VerDate Sep 11 2014 18:46 Jul 09, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S2008.IS S2008 pbinns on DSKJLVW7X2PROD with $$_JOB