Sec. 202. Parity with Civil Rights Act of 1964
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Section 274B(a) ( 8 U.S.C. 1324b(a) ) is amended— by amending paragraph
(1)to read as follows: It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien defined in section 274A(h)(3)) with respect to— the hiring, or recruitment or referral for a fee, of the individual for employment, the verification of the individual’s eligibility for employment, or the discharging of the individual from employment— because of such individual’s national origin; or because of such individual’s citizenship status; and the compensation, terms, or conditions of the employment of the individual. ; by amending paragraph (2)(A) to read as follows: a person or other entity that employs three or fewer employees, except for an employment agency, meaning any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person. ; by repealing section 274(a)(3) ( 8 U.S.C. 1324(a)(3) ); in paragraph (6), by striking if made for the purpose or with the intent of discriminating against an individual in violation of paragraph
(1)and inserting in violation of paragraph (1). Additional information and compliance assistance will be provided to employers to assist them in complying with the law ; by inserting a new paragraph
(7)as follows: It is an unfair immigration-related employment practice for a person or other entity, in the course of the Electronic Employment Verification System described in section 274A(c)— to terminate the employment of an individual or take any adverse employment action due to a tentative nonconfirmation issued by such System, with respect to that individual; to use the System for screening of an applicant for employment prior to making the individual an offer of employment; to use the System for the reverification of an employee after the employee has satisfied the process described in (b)(1), unless otherwise required by Federal law; to use the System selectively to exclude certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants; or to use the System to deny workers’ employment benefits or otherwise interfere with their labor rights, or to engage in any other unlawful employment practice. ; by inserting a new paragraph
(8)as follows: An unlawful immigration-related employment practice or unfair labor practice case based on disparate impact is established under this general rule only if— a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of national origin or citizenship status and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or the complaining party makes the demonstration with respect to an alternative employment practice and the respondent refuses to adopt such an alternative employment practice. An alternative employment practice is defined as a policy that would satisfy the employer’s legitimate interests without having a disparate impact on a protected class. With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (8)(A), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice. If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity. A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this statute. ; and by inserting a new paragraph
(9)as follows: Except as otherwise provided in this subchapter, an unlawful immigration-related unfair employment practice is established when the charging party demonstrates that citizenship status or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. . Section 274B(d) ( 8 U.S.C. 1324b(d) ) is amended— in paragraph (1), by striking within 120 days of the date of the receipt of the charge and subject to paragraph
(3); by striking The Special Counsel’s failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period. and inserting at the end of paragraph
(2)Nothing contained in this Act shall relieve any Government agency or official of his or her responsibility for unlawful electronic employment verification practices. ; and by striking paragraph (3). Section 274B(g)(2)(B)(iv) ( 8 U.S.C. 1324b(g)(2)(B)(iv) ) is amended— in subclause (I), by striking $250 and not more than $1,000 and inserting $2,000 and not more than $4,000 ; in subclause (II), by striking $2,000 and not more than $5,000 and inserting $4,000 and not more than $10,000 ; in subclause (III), by striking $3,000 and not more than $10,000 and inserting $6,000 and not more than $20,000 ; and in subclause (IV), by striking $100 and not more than $1,000 and inserting $500 and not more than $5,000 . Section 274B(g) ( 8 U.S.C. 1324b(g) ) is amended— in paragraph (2)(B)(iii), by inserting , and to provide such other relief as the administrative law judge determines appropriate to make the individual whole before the semicolon at the end; by inserting the following at the end of paragraph (2)(B)(viii): No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of citizenship status or national origin or in violation of this section. On a claim in which an individual proves a violation under subsection (a)(7) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief (except as provided in clause (b)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under subsection (a)(7); and shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (I). ; and by inserting at the end of paragraph
(2)a new subparagraph
(E)as follows: A complaining party may acquire punitive damages against a respondent (other than the Federal Government or a Federal Government agency) if the complaining party demonstrates that the respondent engaged in discriminatory practice or practices with malice or reckless indifference to the federally protected rights of an aggrieved individual under subsection (a)(1). Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under subparagraphs
(B)and
(C)of subsection (g)(2). The sum of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses on account of national origin discrimination shall not exceed $50,000 for each complaining party. In the case of citizenship status discrimination, the limitations should be as follows: In the case of a respondent who has more than 3 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000. In the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000. In the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000. In the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. . Section 274B is amended— in subparagraph (l)(3), by striking $10,000,000 and inserting $50,000,000 ; and by adding at the end the following: The Secretary of Homeland Security shall make transactional data and citizenship status data available upon request by the Special Counsel (appointed under subsection
(c)of this section). . The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to violations occurring on or after such date.
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