Civil Rights Act of 2008

House and Senate Democrats have just introduced the Civil Rights Act of 2008, H.R. 2159 & S. 2554.  It's covers a lot of ground and basically looks like an employee discrimination law wishlist.  The Act would do the following:

• eliminate the 1991 Civil Rights Act damage caps under Title VII and the Americans with Disabilities Act (ADA),
• amend the Equal Pay Act (EPA) to allow the "bona fide factor other than sex" defense only if an employer shows that the factor was job-related was actually used and further legitimate business purposes,
• adds compensatory and punitive damages to the Fair Labor Standards Act's (FLSA) remedial framework (which includes the EPA),
• amends the Federal Arbitration Act (FAA) to prohibit clauses requiring arbitration of federal constitution or statutory claims, unless parties knowingly and voluntarily consented after the dispute arises, or as part of a collective bargaining agreement,
• allow winning plaintiffs to recover expert fees and expand the definition of prevailing party,
• give the NLRB authority to award backpay to undocumented workers,
• provide individuals the right to sue federally funded programs under Title VI, Title IX, the Rehabilitation Act, and the ADA,
• require that ADEA disparate impact claims be analyzed the same as Title VII claims,
• condition states' receipts of federal funds on  states' waiver of sovereign immunity against individual claims for monetary damages under the Age Discrimination in Employment Act (ADEA), the FLSA, and Uniformed Services Employment and Reemployment Rights Act (USERRA).

I guess if you're going to try to make changes, you might as well shoot for the moon.  I find the sovereign immunity amendments personally interesting, as it's a relatively easy way to get around the Supreme Court's jurisprudence in this area.  The inclusion of USERRA is particularly wise, as this issue may become especially relevant once most of our military personnel leave Iraq and Afghanistan.  As I've argued in an earlier article, I think USERRA's abrogration of state immunity--which was pursuant to congressional war powers--is on much firmer ground than other Article I abrogations, but conditional waivers such as the one in this bill are the best way to avoid the issue.

BNA's Daily Labor Report (subscription required) provides more background on the bill.  I don't imagine that it'll go anywhere unless there is a President Clinton or Obama, but no doubt it will be campaign fodder until then.

-JH