Sec. 2. Findings

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Congress finds the following: This Act is made necessary by a decision of the Supreme Court in Alexander v. Sandoval, 532 U.S. 275

(2001)that significantly impairs statutory protections against discrimination that Congress has erected over a period of almost 4 decades. The Sandoval decision undermines these statutory protections by stripping victims of discrimination (defined under regulations that Congress required Federal departments and agencies to promulgate to implement title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d et seq. )) of the right to bring action in Federal court to redress the discrimination. The Sandoval decision contradicts settled expectations created by title VI of the Civil Rights Act of 1964 , title IX of the Education Amendments of 1972 (also known as the Patsy Takemoto Mink Equal Opportunity in Education Act ) ( 20 U.S.C. 1681 et seq. ), the Age Discrimination Act of 1975 ( 42 U.S.C. 6101 et seq. ), and section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. 794 ) (collectively referred to in this Act as the covered civil rights provisions ). The covered civil rights provisions were designed to establish and make effective the rights of persons to be free from discrimination on the part of entities that are subject to 1 or more of the covered civil rights provisions, as appropriate (referred to in this Act as covered entities ). In 1964 Congress adopted title VI of the Civil Rights Act of 1964 to ensure that Federal dollars would not be used to subsidize or support programs or activities that discriminated on racial, color, or national origin grounds. In the years that followed, Congress extended these protections by enacting laws barring discrimination in federally funded education activities on the basis of sex in title IX of the Education Amendments of 1972, and discrimination in federally funded activities on the basis of age in the Age Discrimination Act of 1975 and disability in section 504 of the Rehabilitation Act of 1973 . All of the statutes cited in this section were designed to protect persons subject to discrimination. As Congress has consistently recognized, effective enforcement of the statutes and protection of the rights guaranteed under the statutes depend heavily on the efforts of private attorneys general. Congress acknowledged that it could not secure compliance solely through administrative efforts and enforcement actions initiated by the Attorney General. Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968)(per curiam). The Supreme Court has made it clear that individuals suffering discrimination under these statutes have a private right of action in the Federal courts, and that this is necessary for effective protection of the law, although Congress did not make such a right of action explicit in the statute involved. Cannon v. University of Chicago, 441 U.S. 677 (1979). Furthermore, for effective enforcement of the statutes cited in this section, it is necessary that the private right of action include a means to challenge all forms of discrimination that are prohibited by the statutes, including practices that have a disparate impact and are not justified as necessary to achieve the legitimate goals of programs or activities supported by Federal financial assistance. By reinstating a private right of action to challenge disparate impact discrimination under title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d et seq. ) and confirming that right for other civil rights statutes, Congress is not acting in a manner that would expose covered entities to unfair findings of discrimination. The legal standard for a disparate impact claim has never been structured so that a finding of discrimination could be based on numerical imbalance alone. In contrast, a failure to reinstate or confirm a private right of action would leave vindication of the rights to equality of opportunity solely to Federal agencies. Action by Congress to specify a private right of action is necessary to ensure that persons will have a remedy if they are denied equal access to education, housing, health, environmental protection, transportation, and many other programs and services by practices of covered entities that result in discrimination. As a result of the Supreme Court’s decision in Sandoval, courts have dismissed numerous claims brought under the regulations promulgated pursuant to title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d et seq. ) that challenged actions with an unjustified discriminatory effect. Although the Sandoval Court did not address title IX of the Education Amendments of 1972 ( 20 U.S.C. 1681 et seq. ), lower courts have similarly dismissed claims under such title. Section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. 794 ) has received different treatment by the Supreme Court. In Alexander v. Choate, 469 U.S. 287 (1985), the Court proceeded on the assumption that the statute itself prohibited some actions that had a disparate impact on disabled individuals—an assumption borne out by congressional statements made during passage of the Act. In Sandoval, the Court appeared to accept this principle of Alexander. Moreover, the Supreme Court explicitly recognized congressional approval of the regulations promulgated to implement section 504 of the Rehabilitation Act of 1973 in Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984). Relying on the validity of the regulations, Congress incorporated the regulations into the statutory requirements of section 204 of the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12134 ). Nonetheless, Sandoval creates the potential for uncertainty in the application of critical protections of Section 504, particularly in the lower courts. The right to maintain a private right of action under a provision added to a statute under this Act will be effectuated by a waiver of sovereign immunity in the same manner as sovereign immunity is waived under the remaining provisions of that statute. Numerous provisions of Federal law expressly prohibit discrimination on the basis of sex, and Federal agencies and courts have correctly interpreted these prohibitions on sex discrimination to include discrimination based on sexual orientation, gender identity, and sex stereotypes. In particular, the Equal Employment Opportunity Commission correctly interpreted title VII of the Civil Rights Act of 1964 in Macy v. Holder, Baldwin v. Foxx, and Lusardi v. McHugh. In forbidding discrimination based on sex, Congress intended to strike at the entire spectrum of disparate treatment resulting from sex-related characteristics. The Supreme Court correctly recognized in Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services that among these characteristics are sex-stereotypes, including masculinity and femininity. Congress reaffirmed in the Pregnancy Discrimination Act of 1978 that discrimination on the basis of sex includes but is not limited to discrimination on the basis of pregnancy, childbirth, or related medical conditions. . The absence of explicit prohibitions of discrimination on the basis of sexual orientation and gender identity under Federal statutory law has created uncertainty for employers and other entities covered by Federal nondiscrimination laws and caused unnecessary hardships for LGBTQ individuals. The Supreme Court correctly recognized in Hobby Lobby v. Burwell that the Religious Freedom Restoration Act of 1993

(RFRA)provides no … shield to those who cloak discrimination as religious practice to escape legal sanction. This Act reaffirms that crucial limitation on RFRA, that Congress did not intend for it to be used—and indeed it cannot be used—to provide a defense against allegations of discrimination on the basis of any protected trait. Chapter 1 of title 9, United States Code (commonly known as the Federal Arbitration Act ), represented an exercise of legislative power that required courts to recognize private voluntary agreements to arbitrate commercial disputes at a time when the courts were refusing to do so on grounds that arbitration represented a usurpation of the authority of the courts to resolve legal disputes. The Federal Arbitration Act did not, and should not have been interpreted to, supplant or nullify the legislatively created rights and remedies that Congress, exercising its power under article I of the Constitution of the United States, has granted to the people of the United States for resolving disputes in State and Federal courts. Recent court decisions, including AT&T Mobility LLC v. Concepcion, 563 U.S. 333

(2011)and American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), have interpreted the Federal Arbitration Act to broadly preempt rights and remedies established under substantive State and Federal law. As a result, these decisions have enabled business entities to avoid or nullify legal duties created by congressional enactment, resulting in millions of people in the United States being unable to vindicate their rights in State and Federal courts. States have a compelling interest in enacting rights and remedies to protect the welfare of their citizens, and the Federal Arbitration Act should not be, and should not have been, interpreted to preempt State legislation that enacted rights and remedies to protect the welfare of their citizens. The Supreme Court misinterpreted title VII of the Civil Rights Act in establishing the Faragher-Ellerth affirmative defense in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. This affirmative defense often leaves victims of sexual harassment with no remedy or recourse after incidence of sexual or other harassment. Violations of the law, and injuries to a victim and their rights, are not cured by the existence of an anti-harassment policy or the lack of future harm, and in a hostile work environment taking preventative measures is not a requirement that falls on the victim. Bringing a lawsuit to vindicate civil rights is financially risky, and law firms, whether large or small, are unlikely to take such cases on. Congress enacted the Civil Rights Attorney's Fees Award Act of 1976 in order to make lawsuits to vindicate civil rights more accessible to potential plaintiffs. The Supreme Court correctly recognized in City of Riverside v. Rivera that the effectuation of congressional intent requires viable civil rights lawsuits, which are dependent on the availability of private enforcement mechanisms and the corresponding availability of attorney’s fees. However, the Supreme Court incorrectly held that the catalyst theory is not a permissible basis for the award of attorney's fees in Buckhannon v. West Virginia Department of Health & Human Resources. In doing so, the Court deprived plaintiffs who effectively win a lawsuit through a settlement, from receiving pre-trial attorney’s fees. Congress enacted fee-shifting provisions in civil rights laws to encourage private enforcement of those laws, and fees must be awarded when a lawsuit vindicates the rights Congress sought to secure. In disapproving of the “catalyst theory” the Court incentivized potential defendants to draw out the pre-trial process and settle at the last second, making the lawsuit too expensive for the average victim to undertake and too risky for the average attorney to accept a civil rights case. The Civil Rights Act of 1964, and other civil rights laws that followed it, were written, in part, to banish rampant disparate treatment on the basis of race from American society. Congress sought to overcome the pervasive, racist ideology that Black traits were inferior by prohibiting discrimination, and intended the Act to be interpreted broadly—encompassing race and all its attributes, especially those traits historically associated with race. “Blackness” and its associated physical traits, such as dark skin and kinky and curly hair, have too often been equated with inferiority and “unprofessionalism.” Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional. Such norms are, on their face, proxies for race. Federal courts have correctly interpreted, e.g. that title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, and thus protect individuals from discrimination against afros. However, the courts have yet to accept that the Act outlaws dress codes and grooming policies that prohibit any natural presentation of Black hair, including afros, braids, twists, and locks. Although purportedly “race-neutral”, these policies have a disparate impact on Black individuals as they are more likely to deter, burden, or punish Black individuals than any other group. Therefore, hair discrimination targeting hairstyles associated with race is racial discrimination.

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