Text of US HB 697 (2023)

I 118TH CONGRESS 1ST SESSION H. R. 697 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 FEBRUARY 1, 2023 Ms. TLAIB (for herself, Ms. BUSH, and Ms. LEE of Pennsylvania) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the com- mittee 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 2023’’. 5 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 697 IH SEC. 2. FINDINGS. 1 Congress finds the following: 2 (1) This Act is made necessary by a decision of 3 the Supreme Court in Alexander v. Sandoval, 532 4 U.S. 275 (2001) that significantly impairs statutory 5 protections against discrimination that Congress has 6 erected over a period of almost 4 decades. The 7 Sandoval decision undermines these statutory pro- 8 tections by stripping victims of discrimination (de- 9 fined under regulations that Congress required Fed- 10 eral departments and agencies to promulgate to im- 11 plement title VI of the Civil Rights Act of 1964 (42 12 U.S.C. 2000d et seq.)) of the right to bring action 13 in Federal court to redress the discrimination. 14 (2) The Sandoval decision contradicts settled 15 expectations created by title VI of the Civil Rights 16 Act of 1964, title IX of the Education Amendments 17 of 1972 (also known as the ‘‘Patsy Takemoto Mink 18 Equal Opportunity in Education Act’’) (20 U.S.C. 19 1681 et seq.), the Age Discrimination Act of 1975 20 (42 U.S.C. 6101 et seq.), and section 504 of the Re- 21 habilitation Act of 1973 (29 U.S.C. 794) (collec- 22 tively referred to in this Act as the ‘‘covered civil 23 rights provisions’’). The covered civil rights provi- 24 sions were designed to establish and make effective 25 the rights of persons to be free from discrimination 26 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 697 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 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 697 IH Newman v. Piggie Park Enterprises, 390 U.S. 400 1 (1968) (per curiam). 2 (4) The Supreme Court has made it clear that 3 individuals suffering discrimination under these stat- 4 utes have a private right of action in the Federal 5 courts, and that this is necessary for effective pro- 6 tection of the law, although Congress did not make 7 such a right of action explicit in the statute involved. 8 Cannon v. University of Chicago, 441 U.S. 677 9 (1979). 10 (5) Furthermore, for effective enforcement of 11 the statutes cited in this section, it is necessary that 12 the private right of action include a means to chal- 13 lenge all forms of discrimination that are prohibited 14 by the statutes, including practices that have a dis- 15 parate impact and are not justified as necessary to 16 achieve the legitimate goals of programs or activities 17 supported by Federal financial assistance. 18 (6) By reinstating a private right of action to 19 challenge disparate impact discrimination under title 20 VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 21 et seq.) and confirming that right for other civil 22 rights statutes, Congress is not acting in a manner 23 that would expose covered entities to unfair findings 24 of discrimination. The legal standard for a disparate 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 697 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 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 697 IH ment by the Supreme Court. In Alexander v. Choate, 1 469 U.S. 287 (1985), the Court proceeded on the 2 assumption that the statute itself prohibited some 3 actions that had a disparate impact on disabled indi- 4 viduals—an assumption borne out by congressional 5 statements made during passage of the Act. In 6 Sandoval, the Court appeared to accept this prin- 7 ciple of Alexander. Moreover, the Supreme Court ex- 8 plicitly recognized congressional approval of the reg- 9 ulations promulgated to implement section 504 of 10 the Rehabilitation Act of 1973 in Consolidated Rail 11 Corp. v. Darrone, 465 U.S. 624, 634 (1984). Rely- 12 ing on the validity of the regulations, Congress in- 13 corporated the regulations into the statutory require- 14 ments of section 204 of the Americans with Disabil- 15 ities Act of 1990 (42 U.S.C. 12134). Nonetheless, 16 Sandoval creates the potential for uncertainty in the 17 application of critical protections of Section 504, 18 particularly in the lower courts. 19 (10) The right to maintain a private right of 20 action under a provision added to a statute under 21 this Act will be effectuated by a waiver of sovereign 22 immunity in the same manner as sovereign immu- 23 nity is waived under the remaining provisions of that 24 statute. 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 697 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 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 697 IH ated uncertainty for employers and other entities 1 covered by Federal nondiscrimination laws and 2 caused unnecessary hardships for LGBTQ individ- 3 uals. 4 (14) The Supreme Court correctly recognized in 5 Hobby Lobby v. Burwell that the Religious Freedom 6 Restoration Act of 1993 (RFRA) ‘‘provides no . . . 7 shield’’ to those who ‘‘cloak’’ discrimination as ‘‘reli- 8 gious practice to escape legal sanction.’’ This Act re- 9 affirms that crucial limitation on RFRA, that Con- 10 gress did not intend for it to be used—and indeed 11 it cannot be used—to provide a defense against alle- 12 gations of discrimination on the basis of any pro- 13 tected trait. 14 (15) Chapter 1 of title 9, United States Code 15 (commonly known as the ‘‘Federal Arbitration 16 Act’’), represented an exercise of legislative power 17 that required courts to recognize private voluntary 18 agreements to arbitrate commercial disputes at a 19 time when the courts were refusing to do so on 20 grounds that arbitration represented a usurpation of 21 the authority of the courts to resolve legal disputes. 22 (16) The Federal Arbitration Act did not, and 23 should not have been interpreted to, supplant or nul- 24 lify the legislatively created rights and remedies that 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 697 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 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 697 IH City of Boca Raton and Burlington Industries, Inc. 1 v. Ellerth. This affirmative defense often leaves vic- 2 tims of sexual harassment with no remedy or re- 3 course after incidence of sexual or other harassment. 4 Violations of the law, and injuries to a victim and 5 their rights, are not cured by the existence of an 6 anti-harassment policy or the lack of future harm, 7 and in a hostile work environment taking preventa- 8 tive measures is not a requirement that falls on the 9 victim. 10 (20) Bringing a lawsuit to vindicate civil rights 11 is financially risky, and law firms, whether large or 12 small, are unlikely to take such cases on. Congress 13 enacted the Civil Rights Attorney’s Fees Award Act 14 of 1976 in order to make lawsuits to vindicate civil 15 rights more accessible to potential plaintiffs. The 16 Supreme Court correctly recognized in City of River- 17 side v. Rivera that the effectuation of congressional 18 intent requires viable civil rights lawsuits, which are 19 dependent on the availability of private enforcement 20 mechanisms and the corresponding availability of at- 21 torney’s fees. 22 (21) However, the Supreme Court incorrectly 23 held that the ‘‘catalyst theory’’ is not a permissible 24 basis for the award of attorney’s fees in Buckhannon 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 697 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 last second, making the lawsuit too ex- 11 pensive for the average victim to undertake and too 12 risky for the average attorney to accept a civil rights 13 case. 14 (22) The Civil Rights Act of 1964, and other 15 civil rights laws that followed it, were written, in 16 part, to banish rampant disparate treatment on the 17 basis of race from American society. Congress 18 sought to overcome the pervasive, racist ideology 19 that Black traits were inferior by prohibiting dis- 20 crimination, and intended the Act to be interpreted 21 broadly—encompassing race and all its attributes, 22 especially those traits historically associated with 23 race. 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 697 IH (23) ‘‘Blackness’’ and its associated physical 1 traits, such as dark skin and kinky and curly hair, 2 have too often been equated with inferiority and 3 ‘‘unprofessionalism.’’ Professionalism was, and still 4 is, closely linked to European features and manner- 5 isms, which entails that those who do not naturally 6 fall into Eurocentric norms must alter their appear- 7 ances, sometimes drastically and permanently, in 8 order to be deemed professional. Such norms are, on 9 their face, proxies for race. 10 (24) Federal courts have correctly interpreted, 11 e.g. that title VII of the Civil Rights Act of 1964 12 prohibits discrimination on the basis of race, and 13 thus protect individuals from discrimination against 14 afros. However, the courts have yet to accept that 15 the Act outlaws dress codes and grooming policies 16 that prohibit any natural presentation of Black hair, 17 including afros, braids, twists, and locks. Although 18 purportedly ‘‘race-neutral’’, these policies have a dis- 19 parate impact on Black individuals as they are more 20 likely to deter, burden, or punish Black individuals 21 than any other group. Therefore, hair discrimination 22 targeting hairstyles associated with race is racial dis- 23 crimination. 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •HR 697 IH SEC. 3. PROHIBITED DISCRIMINATION. 1 (a) CIVIL RIGHTS ACT OF 1964.—Section 601 of the 2 Civil Rights Act of 1964 (42 U.S.C. 2000d) is amended— 3 (1) by striking ‘‘No’’ and inserting ‘‘(a) No’’; 4 (2) by inserting ‘‘religion, sex (as such term is 5 defined in section 208),’’ before ‘‘or national origin’’; 6 and 7 (3) by adding at the end the following: 8 ‘‘(b)(1)(A) Discrimination (including exclusion from 9 participation and denial of benefits) based on disparate 10 impact is established under this title only if— 11 ‘‘(i) a person aggrieved by discrimination on the 12 basis of race, color, sex (as defined in section 208), 13 or national origin (referred to in this title as an ‘per- 14 son aggrieved’ demonstrates that an entity subject 15 to this title (referred to in this title as a ‘covered en- 16 tity’) has a policy or practice that causes a disparate 17 impact on the basis of race, color, sex (as such term 18 is defined in section 208), or national origin and the 19 covered entity fails to demonstrate that the chal- 20 lenged policy or practice is related to and necessary 21 to achieve the nondiscriminatory goals of the pro- 22 gram or activity alleged to have been operated in a 23 discriminatory manner; or 24 ‘‘(ii) the person aggrieved demonstrates (con- 25 sistent with the demonstration required under title 26 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 14 •HR 697 IH VII with respect to an ‘alternative employment prac- 1 tice’) that a less discriminatory alternative policy or 2 practice exists, and the covered entity refuses to 3 adopt such alternative policy or practice. 4 ‘‘(B)(i) With respect to demonstrating that a par- 5 ticular policy or practice causes a disparate impact as de- 6 scribed in subparagraph (A)(i), the person aggrieved shall 7 demonstrate that each particular challenged policy or 8 practice causes a disparate impact, except that if the per- 9 son aggrieved demonstrates to the court that the elements 10 of a covered entity’s decisionmaking process are not capa- 11 ble of separation for analysis, the decisionmaking process 12 may be analyzed as 1 policy or practice. 13 ‘‘(ii) If the covered entity demonstrates that a specific 14 policy or practice does not cause the disparate impact, the 15 covered entity shall not be required to demonstrate that 16 such policy or practice is necessary to achieve the goals 17 of its program or activity. 18 ‘‘(2) A demonstration that a policy or practice is nec- 19 essary to achieve the goals of a program or activity may 20 not be used as a defense against a claim of intentional 21 discrimination under this title. 22 ‘‘(3) In this subsection, the term ‘demonstrates’ 23 means meets the burdens of production and persuasion.’’. 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 15 •HR 697 IH (b) EDUCATION AMENDMENTS OF 1972.—Section 1 901 of the Education Amendments of 1972 (20 U.S.C. 2 1681) is amended— 3 (1) by redesignating subsection (c) as sub- 4 section (e); and 5 (2) by inserting after subsection (b) the fol- 6 lowing: 7 ‘‘(c)(1)(A) Subject to the conditions described in 8 paragraphs (1) through (9) of subsection (a), discrimina- 9 tion (including exclusion from participation and denial of 10 benefits) based on disparate impact is established under 11 this title only if— 12 ‘‘(i) a person aggrieved by discrimination on the 13 basis of sex (as such term is defined in section 208 14 of the Civil Rights Act of 1964) (referred to in this 15 title as an ‘person aggrieved’) demonstrates that an 16 entity subject to this title (referred to in this title as 17 a ‘covered entity’) has a policy or practice that 18 causes a disparate impact on the basis of sex and 19 the covered entity fails to demonstrate that the chal- 20 lenged policy or practice is related to and necessary 21 to achieve the nondiscriminatory goals of the pro- 22 gram or activity alleged to have been operated in a 23 discriminatory manner; or 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 16 •HR 697 IH ‘‘(ii) the person aggrieved demonstrates (con- 1 sistent with the demonstration required under title 2 VII of the Civil Rights Act of 1964 (42 U.S.C. 3 2000e et seq.) with respect to an ‘alternative em- 4 ployment practice’) that a less discriminatory alter- 5 native policy or practice exists, and the covered enti- 6 ty refuses to adopt such alternative policy or prac- 7 tice. 8 ‘‘(B)(i) With respect to demonstrating that a par- 9 ticular policy or practice causes a disparate impact as de- 10 scribed in subparagraph (A)(i), the person aggrieved shall 11 demonstrate that each particular challenged policy or 12 practice causes a disparate impact, except that if the per- 13 son aggrieved demonstrates to the court that the elements 14 of a covered entity’s decisionmaking process are not capa- 15 ble of separation for analysis, the decisionmaking process 16 may be analyzed as 1 policy or practice. 17 ‘‘(ii) If the covered entity demonstrates that a specific 18 policy or practice does not cause the disparate impact, the 19 covered entity shall not be required to demonstrate that 20 such policy or practice is necessary to achieve the goals 21 of its program or activity. 22 ‘‘(2) A demonstration that a policy or practice is nec- 23 essary to achieve the goals of a program or activity may 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 17 •HR 697 IH not be used as a defense against a claim of intentional 1 discrimination under this title. 2 ‘‘(3) In this subsection, the term ‘demonstrates’ 3 means meets the burdens of production and persuasion.’’. 4 (c) AGE DISCRIMINATION ACT OF 1975.—Section 5 303 of the Age Discrimination Act of 1975 (42 U.S.C. 6 6102) is amended— 7 (1) by striking ‘‘Pursuant’’ and inserting ‘‘(a) 8 Pursuant’’; and 9 (2) by adding at the end the following: 10 ‘‘(b)(1)(A) Subject to the conditions described in sub- 11 sections (b) and (c) of section 304, discrimination (includ- 12 ing exclusion from participation and denial of benefits) 13 based on disparate impact is established under this title 14 only if— 15 ‘‘(i) a person aggrieved by discrimination on the 16 basis of age (referred to in this title as a ‘person ag- 17 grieved’) demonstrates that an entity subject to this 18 title (referred to in this title as a ‘covered entity’) 19 has a policy or practice that causes a disparate im- 20 pact on the basis of age and the covered entity fails 21 to demonstrate that the challenged policy or practice 22 is related to and necessary to achieve the non- 23 discriminatory goals of the program or activity al- 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 18 •HR 697 IH leged to have been operated in a discriminatory 1 manner; or 2 ‘‘(ii) the person aggrieved demonstrates (con- 3 sistent with the demonstration required under title 4 VII of the Civil Rights Act of 1964 (42 U.S.C. 5 2000e et seq.) with respect to an ‘alternative em- 6 ployment practice’) that a less discriminatory alter- 7 native policy or practice exists, and the covered enti- 8 ty refuses to adopt such alternative policy or prac- 9 tice. 10 ‘‘(B)(i) With respect to demonstrating that a par- 11 ticular policy or practice causes a disparate impact as de- 12 scribed in subparagraph (A)(i), the person aggrieved shall 13 demonstrate that each particular challenged policy or 14 practice causes a disparate impact, except that if the per- 15 son aggrieved demonstrates to the court that the elements 16 of a covered entity’s decisionmaking process are not capa- 17 ble of separation for analysis, the decisionmaking process 18 may be analyzed as 1 policy or practice. 19 ‘‘(ii) If the covered entity demonstrates that a specific 20 policy or practice does not cause the disparate impact, the 21 covered entity shall not be required to demonstrate that 22 such policy or practice is necessary to achieve the goals 23 of its program or activity. 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 19 •HR 697 IH ‘‘(2) A demonstration that a policy or practice is nec- 1 essary to achieve the goals of a program or activity may 2 not be used as a defense against a claim of intentional 3 discrimination under this title. 4 ‘‘(3) In this subsection, the term ‘demonstrates’ 5 means meets the burdens of production and persuasion.’’. 6 (d) FAIR HOUSING ACT.—The Fair Housing Act 7 (title VIII of the Civil Rights Act of 1968; 42 U.S.C. 3601 8 et seq.) is amended— 9 (1) in section 802, by adding at the end the fol- 10 lowing: 11 ‘‘(p) ‘Sex’ has the meaning given such term in section 12 208 of the Civil Rights Act of 1964. 13 ‘‘(q) ‘Source of income’ includes— 14 ‘‘(1) any income from a profession, occupation, 15 or job; 16 ‘‘(2) any form of Federal, State, or local hous- 17 ing assistance provided to a family or provided to a 18 housing owner on behalf of a family, or private as- 19 sistance, grant, loan or rental assistance program, 20 including low-income housing assistance certificates, 21 rental subsidies from nongovernmental organiza- 22 tions, and vouchers issued under the United States 23 Housing Act of 1937 (42 U.S.C. 1437 et seq.); 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 20 •HR 697 IH ‘‘(3) any income received during a taxable year 1 as Social Security benefits, as defined in section 2 86(d) of the Internal Revenue Code of 1986, or as 3 supplemental security income benefits under title 4 XVI of the Social Security Act (42 U.S.C. 1381 et 5 seq.); 6 ‘‘(4) any gift, inheritance, pension, annuity, or 7 other consideration or benefit; 8 ‘‘(5) any income received pursuant to court 9 order, including spousal support and child support; 10 ‘‘(6) any payment from a trust, guardian, or 11 conservator; 12 ‘‘(7) any income from the sale or pledge of 13 property or an interest in property; and 14 ‘‘(8) any other lawful source of income. 15 ‘‘(r) ‘Race’, ‘color’, ‘religion’, ‘sex’, ‘sexual orienta- 16 tion’, ‘gender identity’, ‘handicap’, ‘familial status’, 17 ‘source of income’, or ‘national origin’, used with respect 18 to an individual, includes— 19 ‘‘(1) the race, color, religion, sex, sexual ori- 20 entation, gender identity, handicap, familial status, 21 source of income, or national origin, respectively, of 22 another person with whom the individual is associ- 23 ated or has been associated; and 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 21 •HR 697 IH ‘‘(2) a perception or belief, even if inaccurate, 1 concerning the race, color, religion, sex, sexual ori- 2 entation, gender identity, handicap, familial status, 3 source of income, or national origin, respectively, of 4 the individual.’’; 5 (2) in section 804, by inserting ‘‘(as defined in 6 section 208 of the Civil Rights Act of 1964), source 7 of income,’’ after ‘‘sex’’ each place that term ap- 8 pears; 9 (3) in section 805, by inserting ‘‘(as defined in 10 section 208 of the Civil Rights Act of 1964), source 11 of income,’’ after ‘‘sex’’ each place that term ap- 12 pears; 13 (4) in section 806, by inserting ‘‘(as defined in 14 section 208 of the Civil Rights Act of 1964), source 15 of income,’’ after ‘‘sex’’; 16 (5) in section 807 (42 U.S.C. 3607), by adding 17 at the end the following: 18 ‘‘(c) Nothing in this title shall be construed to— 19 ‘‘(1) prohibit an entity from providing housing 20 assistance under section 8(o)(19) of the United 21 States Housing Act of 1937 (42 U.S.C. 22 1437f(o)(19)) in a nondiscriminatory manner; or 23 ‘‘(2) limit the ability of the owner of a dwelling 24 to determine, in a commercially reasonable and non- 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 22 •HR 697 IH discriminatory manner, the ability of a person to af- 1 ford to purchase or rent the dwelling.’’; and 2 (6) in section 808(e)(6) (42 U.S.C. 3608(e)(6)), 3 by inserting ‘‘source of income,’’ after ‘‘handicap,’’. 4 (e) PREVENTION OF INTIMIDATION IN FAIR HOUS- 5 ING CASES.—Section 901 of the Civil Rights Act of 1968 6 (42 U.S.C. 3631) is amended by inserting ‘‘(as such term 7 is defined in section 208 of the Civil Rights Act of 1964), 8 source of income (as defined in section 802),’’ after ‘‘sex’’ 9 each place that term appears. 10 SEC. 4. RIGHT OF RECOVERY. 11 (a) CIVIL RIGHTS ACT OF 1964.—Title VI of the 12 Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) is 13 amended by inserting after section 602 the following: 14 ‘‘SEC. 602A. ACTIONS BROUGHT BY PERSONS AGGRIEVED. 15 ‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL 16 DISCRIMINATION.—In an action brought by a person ag- 17 grieved under this title against a covered entity who has 18 engaged in unlawful intentional discrimination (not a 19 practice that is unlawful because of its disparate impact) 20 prohibited under this title (including its implementing reg- 21 ulations), the person aggrieved may recover equitable and 22 legal relief (including compensatory and punitive dam- 23 ages), attorney’s fees (including expert fees), and costs, 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 23 •HR 697 IH except that punitive damages are not available against a 1 government, government agency, or political subdivision. 2 ‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT 3 STANDARD OF PROOF.—In an action brought by a person 4 aggrieved under this title against a covered entity who has 5 engaged in unlawful discrimination based on disparate im- 6 pact prohibited under this title (including its implementing 7 regulations), the person aggrieved may recover equitable 8 and legal relief (including compensatory and punitive dam- 9 ages), attorney’s fees (including expert fees), and costs, 10 except that punitive damages are not available against a 11 government, government agency, or political subdivision. 12 ‘‘(c) SETTLEMENT.—In any settlement agreement or 13 consent decree to resolve an action brought or which may 14 be brought under this title, attorney’s fees of the plaintiff 15 shall be included.’’. 16 (b) EDUCATION AMENDMENTS OF 1972.—Title IX of 17 the Education Amendments of 1972 (20 U.S.C. 1681 et 18 seq.) is amended by inserting after section 902 the fol- 19 lowing: 20 ‘‘SEC. 902A. ACTIONS BROUGHT BY PERSONS AGGRIEVED. 21 ‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL 22 DISCRIMINATION.—In an action brought by a person ag- 23 grieved under this title against a covered entity who has 24 engaged in unlawful intentional discrimination (not a 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 24 •HR 697 IH practice that is unlawful because of its disparate impact) 1 prohibited under this title (including its implementing reg- 2 ulations), the person aggrieved may recover equitable and 3 legal relief (including compensatory and punitive dam- 4 ages), attorney’s fees (including expert fees), and costs, 5 except that punitive damages are not available against a 6 government, government agency, or political subdivision. 7 ‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT 8 STANDARD OF PROOF.—In an action brought by a person 9 aggrieved under this title against a covered entity who has 10 engaged in unlawful discrimination based on disparate im- 11 pact prohibited under this title (including its implementing 12 regulations), the person aggrieved may recover equitable 13 and legal relief (including compensatory and punitive dam- 14 ages), attorney’s fees (including expert fees), and costs, 15 except that punitive damages are not available against a 16 government, government agency, or political subdivision. 17 ‘‘(c) SETTLEMENT.—In any settlement agreement or 18 consent decree to resolve an action brought or which may 19 be brought under this title, attorney’s fees of the plaintiff 20 shall be included.’’. 21 (c) AGE DISCRIMINATION ACT OF 1975.— 22 (1) IN GENERAL.—Section 305 of the Age Dis- 23 crimination Act of 1975 (42 U.S.C. 6104) is amend- 24 ed by adding at the end the following: 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 25 •HR 697 IH ‘‘(g)(1) In an action brought by a person aggrieved 1 under this title against a covered entity who has engaged 2 in unlawful intentional discrimination (not a practice that 3 is unlawful because of its disparate impact) prohibited 4 under this title (including its implementing regulations), 5 the person aggrieved may recover equitable and legal relief 6 (including compensatory and punitive damages), attor- 7 ney’s fees (including expert fees), and costs, except that 8 punitive damages are not available against a government, 9 government agency, or political subdivision. 10 ‘‘(2) In an action brought by a person aggrieved 11 under this title against a covered entity who has engaged 12 in unlawful discrimination based on disparate impact pro- 13 hibited under this title (including its implementing regula- 14 tions), the person aggrieved may recover equitable and 15 legal relief (including compensatory and punitive dam- 16 ages), attorney’s fees (including expert fees), and costs, 17 except that punitive damages are not available against a 18 government, government agency, or political subdivision. 19 ‘‘(3) In any settlement agreement or consent decree 20 to resolve an action brought or which may be brought 21 under this title, attorney’s fees of the plaintiff shall be 22 included.’’. 23 (2) CONFORMITY OF ADA WITH TITLE VI AND 24 TITLE IX.— 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 26 •HR 697 IH (A) ELIMINATING WAIVER OF RIGHT TO 1 FEES IF NOT REQUESTED IN COMPLAINT.—Sec- 2 tion 305(e)(1) of the Age Discrimination Act of 3 1975 (42 U.S.C. 6104(e)) is amended— 4 (i) by striking ‘‘to enjoin a violation’’ 5 and inserting ‘‘to redress a violation’’; and 6 (ii) by striking the second sentence 7 and inserting the following: ‘‘The Court 8 shall award the costs of suit, including a 9 reasonable attorney’s fee (including expert 10 fees), to the prevailing plaintiff.’’. 11 (B) ELIMINATING UNNECESSARY MAN- 12 DATES: TO EXHAUST ADMINISTRATIVE REM- 13 EDIES; AND TO DELAY SUIT LONGER THAN 180 14 DAYS TO OBTAIN AGENCY REVIEW.—Section 15 305(f) of the Age Discrimination Act of 1975 16 (42 U.S.C. 6104(f)) is amended by striking 17 ‘‘With respect to actions brought for relief 18 based on an alleged violation of the provisions 19 of this title,’’ and inserting ‘‘Actions brought 20 for relief based on an alleged violation of the 21 provisions of this title may be initiated in a 22 court of competent jurisdiction, pursuant to 23 section 305(e), or before the relevant Federal 24 department or agency. With respect to such ac- 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 27 •HR 697 IH tions brought initially before the relevant Fed- 1 eral department or agency,’’. 2 (C) ELIMINATING DUPLICATIVE ‘‘REASON- 3 ABLENESS’’ REQUIREMENT; CLARIFYING THAT 4 ‘‘REASONABLE FACTORS OTHER THAN AGE’’ IS 5 DEFENSE TO A DISPARATE IMPACT CLAIM, NOT 6 AN EXCEPTION TO ADA COVERAGE.—Section 7 304(b)(1) of the Age Discrimination Act of 8 1975 (42 U.S.C. 6103(b)(1)) is amended by 9 striking ‘‘involved—’’ and all that follows 10 through the period and inserting ‘‘involved such 11 action reasonably takes into account age as a 12 factor necessary to the normal operation or the 13 achievement of any statutory objective of such 14 program or activity.’’. 15 (d) REHABILITATION ACT OF 1973.—Section 504 of 16 the Rehabilitation Act of 1973 (29 U.S.C. 794) is amend- 17 ed by adding at the end the following: 18 ‘‘(e)(1) In an action brought by a person aggrieved 19 by discrimination on the basis of disability (referred to in 20 this section as an ‘person aggrieved’) under this section 21 against an entity subject to this section (referred to in 22 this section as a ‘covered entity’) who has engaged in un- 23 lawful intentional discrimination (not a practice that is 24 unlawful because of its disparate impact) prohibited under 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 28 •HR 697 IH this section (including its implementing regulations), the 1 person aggrieved may recover equitable and legal relief 2 (including compensatory and punitive damages), attor- 3 ney’s fees (including expert fees), and costs, except that 4 punitive damages are not available against a government, 5 government agency, or political subdivision. 6 ‘‘(2) In an action brought by a person aggrieved 7 under this section against a covered entity who has en- 8 gaged in unlawful discrimination based on disparate im- 9 pact prohibited under this section (including its imple- 10 menting regulations), the person aggrieved may recover 11 equitable and legal relief (including compensatory and pu- 12 nitive damages), attorney’s fees (including expert fees), 13 and costs, except that punitive damages are not available 14 against a government, government agency, or political 15 subdivision. 16 ‘‘(3) Equitable and legal relief (including compen- 17 satory and punitive damages), attorney’s fees (including 18 expert fees), and costs shall be available in all cases 19 brought for the failure to provide reasonable accommoda- 20 tions or reasonable modifications, or the failure to comply 21 with requirements of effective communication, accessible 22 design, maintenance of accessible features, or program ac- 23 cessibility. 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 29 •HR 697 IH ‘‘(4) In any settlement agreement or consent decree 1 to resolve an action brought or which may be brought 2 under this section, attorney’s fees of the plaintiff shall be 3 included.’’. 4 (e) FAIR HOUSING ACT.—The Fair Housing Act 5 (title VIII of the Civil Rights Act of 1968; 42 U.S.C. 3601 6 et seq.), as amended by this Act, is further amended by 7 adding at the end the following: 8 ‘‘SEC. 823. DISPARATE IMPACT. 9 ‘‘(a) IN GENERAL.— 10 ‘‘(1) ESTABLISHMENT.—Discrimination (includ- 11 ing exclusion from participation and denial of bene- 12 fits) based on disparate impact is established under 13 this title only if— 14 ‘‘(A) a person aggrieved by discrimination 15 on the basis of race, color, sex, or national ori- 16 gin demonstrates that an entity subject to this 17 title (referred to in this title as a ‘covered enti- 18 ty’) has a policy or practice that causes a dis- 19 parate impact on the basis of race, color, sex, 20 or national origin and the covered entity fails to 21 demonstrate that the challenged policy or prac- 22 tice is related to and necessary to achieve the 23 nondiscriminatory goals of the program or ac- 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 30 •HR 697 IH tivity alleged to have been operated in a dis- 1 criminatory manner; or 2 ‘‘(B) the person aggrieved demonstrates 3 that a less discriminatory alternative policy or 4 practice exists, and the covered entity refuses to 5 adopt such alternative policy or practice. 6 ‘‘(2) DEMONSTRATION.— 7 ‘‘(A) CAUSATION.—With respect to demonstrating 8 that a particular policy or practice causes a disparate im- 9 pact as described in subsection (a)(1), the person ag- 10 grieved shall demonstrate that each particular challenged 11 policy or practice causes a disparate impact, except that 12 if the person aggrieved demonstrates to the court that the 13 elements of a covered entity’s decisionmaking process are 14 not capable of separation for analysis, the decisionmaking 15 process may be analyzed as 1 policy or practice. 16 ‘‘(B) NO REQUIREMENT TO DEMONSTRATE.—If the 17 covered entity demonstrates that a specific policy or prac- 18 tice does not cause the disparate impact, the covered enti- 19 ty shall not be required to demonstrate that such policy 20 or practice is necessary to achieve the goals of its program 21 or activity. 22 ‘‘(b) NECESSITY OF INTENTIONAL DISCRIMINATION 23 TO ACHIEVE POLICY GOALS NOT A DEFENSE.—A dem- 24 onstration that a policy or practice is necessary to achieve 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 31 •HR 697 IH the goals of a program or activity may not be used as 1 a defense against a claim of intentional discrimination 2 under this title. 3 ‘‘(c) DEFINITION.—In this section, the term ‘dem- 4 onstrates’ means meets the burdens of production and per- 5 suasion. 6 ‘‘SEC. 824. RELIEF FOR CLAIMS BASED ON DIFFERING 7 STANDARDS OF PROOF. 8 ‘‘(a) CLAIMS BASED ON PROOF OF INTENTIONAL 9 DISCRIMINATION.—In an action brought by a person ag- 10 grieved under this title against a covered entity who has 11 engaged in unlawful intentional discrimination (not a 12 practice that is unlawful because of its disparate impact) 13 prohibited under this title (including its implementing reg- 14 ulations), the person aggrieved may recover equitable and 15 legal relief (including compensatory and punitive dam- 16 ages), attorney’s fees (including expert fees), and costs, 17 except that punitive damages are not available against a 18 government, government agency, or political subdivision. 19 ‘‘(b) CLAIMS BASED ON THE DISPARATE IMPACT 20 STANDARD OF PROOF.—In an action brought by a person 21 aggrieved under this title against a covered entity who has 22 engaged in unlawful discrimination based on disparate im- 23 pact prohibited under this title (including its implementing 24 regulations), the person aggrieved may recover equitable 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 32 •HR 697 IH and legal relief (including compensatory and punitive dam- 1 ages), attorney’s fees (including expert fees), and costs, 2 except that punitive damages are not available against a 3 government, government agency, or political subdivision. 4 ‘‘(c) RELIEF AVAILABLE.—Equitable and legal relief 5 (including compensatory and punitive damages), attor- 6 ney’s fees (including expert fees), and costs shall be avail- 7 able in all cases brought for the failure to permit reason- 8 able accommodations, make reasonable modifications, or 9 design and construct accessible dwellings as required by 10 section 804(f)(3)(C). 11 ‘‘(d) SETTLEMENT.—In any settlement agreement or 12 consent decree to resolve an action brought or which may 13 be brought under this title, attorney’s fees of the plaintiff 14 shall be included.’’. 15 SEC. 5. PROHIBITION ON DISCRIMINATION BY LAW EN- 16 FORCEMENT. 17 (a) DEFINITIONS.—In this section— 18 (1) The term ‘‘governmental body’’ means any 19 department, agency, special purpose district, or 20 other instrumentality of Federal, State, local, or In- 21 dian tribal government. 22 (2) The term ‘‘Indian tribe’’ has the meaning 23 given the term in section 102 of the Federally Rec- 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 33 •HR 697 IH ognized Indian Tribe List Act of 1994 (25 U.S.C. 1 479a). 2 (3) The term ‘‘law enforcement agency’’ means 3 any Federal, State, local, or Indian tribal govern- 4 mental body engaged in the prevention, detection, or 5 investigation of violations of criminal, immigration, 6 or customs laws. 7 (4) The term ‘‘law enforcement agent’’ means 8 any Federal, State, local, or Indian tribal official re- 9 sponsible for enforcing criminal, immigration, or 10 customs laws, including police officers and other 11 agents of a law enforcement agency. 12 (5) The term ‘‘profiling’’ means the practice of 13 a law enforcement agent or agency relying, to any 14 degree, on actual or perceived race, ethnicity, na- 15 tional origin, religion, sex (as defined in section 208 16 of the Civil Rights Act of 1964), gender identity, or 17 sexual orientation in selecting which individual to 18 subject to routine or spontaneous investigatory ac- 19 tivities or in deciding upon the scope and substance 20 of law enforcement activity following any initial in- 21 vestigatory procedure, except when there is trust- 22 worthy information, relevant to the locality and 23 timeframe, that links a person with a particular 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 34 •HR 697 IH characteristic described in this paragraph to an 1 identified criminal incident or scheme. 2 (6) The term ‘‘routine or spontaneous investiga- 3 tory activities’’ means the following activities by a 4 law enforcement agent: 5 (A) Interviews. 6 (B) Traffic stops. 7 (C) Pedestrian stops. 8 (D) Frisks and other types of body 9 searches. 10 (E) Consensual or nonconsensual searches 11 of the persons, property, or possessions (includ- 12 ing vehicles) of individuals using any form of 13 public or private transportation, including mo- 14 torists and pedestrians. 15 (F) Data collection, analysis, assessments, 16 and predicated investigations. 17 (G) Inspections and interviews of entrants 18 into the United States that are more extensive 19 than those customarily carried out. 20 (H) Immigration-related workplace inves- 21 tigations. 22 (I) Such other types of law enforcement 23 encounters compiled for or by the Federal Bu- 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 35 •HR 697 IH reau of Investigation or the Department of Jus- 1 tice Bureau of Justice Statistics. 2 (7) The term ‘‘State’’ means each of the 50 3 States, the District of Columbia, the Commonwealth 4 of Puerto Rico, and any other territory or possession 5 of the United States. 6 (8) The term ‘‘unit of local government’’ 7 means— 8 (A) any city, county, township, town, bor- 9 ough, parish, village, or other general purpose 10 political subdivision of a State; 11 (B) any law enforcement district or judicial 12 enforcement district that— 13 (i) is established under applicable 14 State law; and 15 (ii) has the authority to, in a manner 16 independent of other State entities, estab- 17 lish a budget and impose taxes; or 18 (C) any Indian tribe that performs law en- 19 forcement functions, as determined by the Sec- 20 retary of the Interior. 21 (b) PROHIBITION OF PROFILING.— 22 (1) IN GENERAL.—No law enforcement agent 23 or law enforcement agency shall engage in profiling. 24 (2) ENFORCEMENT.— 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 36 •HR 697 IH (A) REMEDY.—The United States, or an 1 individual injured by profiling, may enforce this 2 title in a civil action for equitable or legal relief, 3 filed in a State court of general jurisdiction or 4 in a district court of the United States. 5 (B) PARTIES.—In any action brought 6 under this title, relief may be obtained 7 against— 8 (i) any governmental body that em- 9 ployed any law enforcement agent who en- 10 gaged in profiling; 11 (ii) any agent of such body who en- 12 gaged in profiling; and 13 (iii) any person with supervisory au- 14 thority over such agent. 15 (C) NATURE OF PROOF.—Proof that the 16 routine or spontaneous investigatory activities 17 of law enforcement agents in a jurisdiction have 18 had a disparate impact on individuals with a 19 particular characteristic described in subsection 20 (a)(5) shall constitute prima facie evidence of a 21 violation of this section. 22 (D) ATTORNEY’S FEES.—In any action or 23 proceeding to enforce this section against any 24 governmental body, the court may allow a pre- 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 37 •HR 697 IH vailing plaintiff, other than the United States, 1 reasonable attorney’s fees as part of the costs, 2 and may include expert fees as part of the at- 3 torney’s fees. 4 SEC. 6. PUBLIC ACCOMMODATIONS. 5 (a) PROHIBITION ON DISCRIMINATION OR SEGREGA- 6 TION IN PUBLIC ACCOMMODATIONS.—Section 201 of the 7 Civil Rights Act of 1964 (42 U.S.C. 2000a) is amended— 8 (1) in subsection (a), by inserting ‘‘sex,’’ before 9 ‘‘or national origin’’; and 10 (2) in subsection (b)— 11 (A) in paragraph (3), by striking ‘‘sta- 12 dium’’ and all that follows and inserting ‘‘sta- 13 dium or other place or establishment that pro- 14 vides exhibition, entertainment, recreation, exer- 15 cise, amusement, gathering, or display;’’; 16 (B) by redesignating paragraph (4) as 17 paragraph (6); and 18 (C) by inserting after paragraph (3) the 19 following: 20 ‘‘(4) any establishment that provides a good, 21 service, or program, including a store, shopping cen- 22 ter, online retailer or service provider, salon, bank, 23 gas station, food bank, service or care center, shel- 24 ter, travel agency, funeral parlor, or any establish- 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 38 •HR 697 IH ment that provides health care, accounting, or legal 1 services; 2 ‘‘(5) any train service, bus service, car service, 3 taxi service, airline service, station, depot, or other 4 place of or establishment that provides transpor- 5 tation service; and’’. 6 (b) PROHIBITION ON DISCRIMINATION OR SEGREGA- 7 TION UNDER LAW.—Section 202 of such Act (42 U.S.C. 8 2000a–1) is amended by inserting ‘‘sex,’’ before ‘‘or na- 9 tional origin’’. 10 (c) DEFINITIONS AND RULES OF CONSTRUCTION.— 11 Title II of such Act (42 U.S.C. 2000a et seq.) is amended 12 by adding at the end the following: 13 ‘‘SEC. 208. DEFINITIONS AND RULES. 14 ‘‘(a) DEFINITIONS.— 15 ‘‘(1) RACE; COLOR; RELIGION; SEX; SEXUAL 16 ORIENTATION; GENDER IDENTITY; NATIONAL ORI- 17 GIN.—The term ‘race’, ‘color’, ‘religion’, ‘sex (includ- 18 ing sexual orientation and gender identity)’, or ‘na- 19 tional origin’, used with respect to an individual, in- 20 cludes— 21 ‘‘(A) the race, color, religion, sex (includ- 22 ing sexual orientation and gender identity), or 23 national origin, respectively, of another person 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 39 •HR 697 IH with whom the individual is associated or has 1 been associated; 2 ‘‘(B) a perception or belief, even if inac- 3 curate, concerning the race, color, religion, sex 4 (including sexual orientation and gender iden- 5 tity), or national origin, respectively, of the in- 6 dividual; and 7 ‘‘(C) in the case of race, traits historically 8 associated with race, including natural hair tex- 9 ture and protective hairstyles. 10 ‘‘(2) GENDER IDENTITY.—The term ‘gender 11 identity’ means the gender-related identity, appear- 12 ance, mannerisms, or other gender-related character- 13 istics of an individual, regardless of the individual’s 14 designated sex at birth. 15 ‘‘(3) INCLUDING.—The term ‘including’ means 16 including, but not limited to, consistent with the 17 term’s standard meaning in Federal law. 18 ‘‘(4) NATURAL HAIRSTYLES.—The term ‘nat- 19 ural hair’ includes— 20 ‘‘(A) protective and natural hairstyles, 21 which includes braids, locs, weaves, twists, 22 afros; and 23 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 40 •HR 697 IH ‘‘(B) natural hair texture, which includes 1 wavy, kinky, curl, and coily, and also the vari- 2 ation of texture in between. 3 ‘‘(5) SEX.—The term ‘sex’ includes— 4 ‘‘(A) a sex stereotype; 5 ‘‘(B) pregnancy, childbirth, or a related 6 medical condition; 7 ‘‘(C) sexual orientation or gender identity; 8 and 9 ‘‘(D) sex characteristics, including intersex 10 traits. 11 ‘‘(6) SEXUAL ORIENTATION.—The term ‘sexual 12 orientation’ means an individual’s actual or per- 13 ceived romantic, physical, or sexual attraction to 14 other persons, or lack thereof, that includes hetero- 15 sexuality, homosexuality, and bisexuality. 16 ‘‘(b) RULES.—In providing a remedy under this Act: 17 ‘‘(1) In the case of any conduct alleged to be 18 discriminatory on the basis of sex, the remedy under 19 this Act for such conduct, to the extent it pertains 20 to pregnancy, childbirth, or a related medical condi- 21 tion may not result in a less substantial remedy than 22 any other remedy for discrimination on the basis of 23 sex. 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 41 •HR 697 IH ‘‘(2) In the case of any conduct alleged to be 1 discriminatory on the basis of sex (with respect to 2 gender identity), an individual shall not be denied 3 access to a shared facility, including a restroom, a 4 locker room, and a dressing room, that is in accord- 5 ance with the individual’s gender identity. 6 ‘‘SEC. 209. RULES OF CONSTRUCTION. 7 ‘‘(a) CLAIMS AND REMEDIES NOT PRECLUDED.— 8 Nothing in this title shall be construed to limit the claims 9 or remedies available to any individual for an unlawful 10 practice on the basis of race, color, religion, sex, or na- 11 tional origin including claims brought pursuant to section 12 1979 or 1980 of the Revised Statutes (42 U.S.C. 1983, 13 1985) or any other law, including the Federal law amend- 14 ed by the Customer Non-Discrimination Act, regulation, 15 or policy. 16 ‘‘(b) NO NEGATIVE INFERENCE.—Nothing in this 17 title shall be construed to support any inference that any 18 Federal law prohibiting a practice on the basis of sex does 19 not prohibit discrimination on the basis of pregnancy, 20 childbirth, or a related medical condition, sexual orienta- 21 tion, gender identity, or a sex stereotype. 22 ‘‘(c) SCOPE OF AN ESTABLISHMENT.—A reference in 23 this title to an establishment— 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 42 •HR 697 IH ‘‘(1) shall be construed to include an individual 1 whose operations affect commerce and who is a pro- 2 vider of a good, service, or program; and 3 ‘‘(2) shall not be construed to be limited to a 4 physical facility or place. 5 ‘‘SEC. 210. CLAIMS. 6 ‘‘The Religious Freedom Restoration Act of 1993 (42 7 U.S.C. 2000bb et seq.) shall not provide a claim con- 8 cerning, or a defense to a claim under this title or provide 9 a basis for challenging the application or enforcement of 10 this title.’’. 11 SEC. 7. STRICT VICARIOUS EMPLOYER LIABILITY AND 12 FARAGHER-ELLERTH AFFIRMATIVE DEFENSE 13 REMOVED. 14 Section 706 of the Civil Rights Act of 1964 (42 15 U.S.C. 2000e–5 et seq.) is amended by adding at the end 16 the following: 17 ‘‘(l) An employer shall be liable for any act of dis- 18 crimination prohibited under this title (including harass- 19 ment, intimidation, or retaliation) committed by any of its 20 employees. 21 ‘‘(m) It shall not be a defense to a claim under this 22 title or provide a basis for challenging the application or 23 enforcement of this title— 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 43 •HR 697 IH ‘‘(1) that an employer exercised reasonable care 1 in attempting to prevent or took corrective action re- 2 garding any act of discrimination on the basis of sex 3 (including intimidation, harassment, or retaliation); 4 ‘‘(2) that adverse employment action was not 5 taken by such an employer; or 6 ‘‘(3) that an employee affected by that act did 7 not take advantage of preventive opportunities to 8 avoid harm.’’. 9 SEC. 8. ARBITRATION OF EMPLOYMENT, CONSUMER, AND 10 CIVIL RIGHTS DISPUTES. 11 (a) PURPOSES.—The purposes of this section are 12 to— 13 (1) prohibit predispute arbitration agreements 14 that force arbitration of future employment, con- 15 sumer, or civil rights disputes; and 16 (2) prohibit agreements and practices that 17 interfere with the right of individuals, workers, and 18 small businesses to participate in a joint, class, or 19 collective action related to an employment, con- 20 sumer, or civil rights dispute. 21 (b) IN GENERAL.—Title 9 of the United States Code 22 is amended by adding at the end the following: 23 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 44 •HR 697 IH ‘‘CHAPTER 4—ARBITRATION OF EMPLOY- 1 MENT, CONSUMER, AND CIVIL RIGHTS 2 DISPUTES 3 ‘‘SEC. 401. DEFINITIONS. 4 ‘‘In this chapter— 5 ‘‘(1) the term ‘civil rights dispute’ means a dis- 6 pute— 7 ‘‘(A) arising from an alleged violation of— 8 ‘‘(i) the Constitution of the United 9 States or the constitution of a State; and 10 ‘‘(ii) any Federal, State, or local law 11 that prohibits discrimination on the basis 12 of race, sex, age, gender identity, sexual 13 orientation, disability, religion, national or- 14 igin, or any legally protected status in edu- 15 cation, employment, credit, housing, public 16 accommodations and facilities, voting, vet- 17 erans or servicemembers, health care, or a 18 program funded or conducted by the Fed- 19 eral Government or State government, in- 20 cluding any law referred to or described in 21 section 62(e) of the Internal Revenue Code 22 of 1986, including parts of such law not 23 explicitly referenced in such section but 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 45 •HR 697 IH that relate to protecting individuals on any 1 such basis; and 2 ‘‘(B) in which at least one party alleging a 3 violation described in subparagraph (A) is one 4 or more individuals (or their authorized rep- 5 resentative), including one or more individuals 6 seeking certification as a class under rule 23 of 7 the Federal Rules of Civil Procedure or a com- 8 parable rule or provision of State law; 9 ‘‘(2) the term ‘consumer dispute’ means a dis- 10 pute between— 11 ‘‘(A) one or more individuals who seek or 12 acquire real or personal property, services (in- 13 cluding services related to digital technology), 14 securities or other investments, money, or credit 15 for personal, family, or household purposes in- 16 cluding an individual or individuals who seek 17 certification as a class under rule 23 of the 18 Federal Rules of Civil Procedure or a com- 19 parable rule or provision of State law; and 20 ‘‘(B)(i) the seller or provider of such prop- 21 erty, services, securities or other investments, 22 money, or credit; or 23 ‘‘(ii) a third party involved in the selling, 24 providing of, payment for, receipt or use of in- 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 46 •HR 697 IH formation about, or other relationship to any 1 such property, services, securities or other in- 2 vestments, money, or credit; 3 ‘‘(3) the term ‘employment dispute’ means a 4 dispute between one or more individuals (or their 5 authorized representative) and a person arising out 6 of or related to the work relationship or prospective 7 work relationship between them, including a dispute 8 regarding the terms of or payment for, advertising 9 of, recruiting for, referring of, arranging for, or dis- 10 cipline or discharge in connection with, such work, 11 regardless of whether the individual is or would be 12 classified as an employee or an independent con- 13 tractor with respect to such work, and including a 14 dispute arising under any law referred to or de- 15 scribed in section 62(e) of the Internal Revenue 16 Code of 1986, including parts of such law not explic- 17 itly referenced in such section but that relate to pro- 18 tecting individuals on any such basis, and including 19 a dispute in which an individual or individuals seek 20 certification as a class under rule 23 of the Federal 21 Rules of Civil Procedure or as a collective action 22 under section 16(b) of the Fair Labor Standards 23 Act, or a comparable rule or provision of State law; 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 47 •HR 697 IH ‘‘(4) the term ‘predispute arbitration agree- 1 ment’ means an agreement to arbitrate a dispute 2 that has not yet arisen at the time of the making 3 of the agreement; and 4 ‘‘(5) the term ‘predispute joint-action waiver’ 5 means an agreement, whether or not part of a 6 predispute arbitration agreement, that would pro- 7 hibit, or waive the right of, one of the parties to the 8 agreement to participate in a joint, class, or collec- 9 tive action in a judicial, arbitral, administrative, or 10 other forum, concerning a dispute that has not yet 11 arisen at the time of the making of the agreement. 12 ‘‘SEC. 402. NO VALIDITY OR ENFORCEABILITY. 13 ‘‘(a) IN GENERAL.—Notwithstanding any other pro- 14 vision of this title, no predispute arbitration agreement or 15 predispute joint-action waiver shall be valid or enforceable 16 with respect to an employment dispute, consumer dispute, 17 or civil rights dispute. 18 ‘‘(b) APPLICABILITY.— 19 ‘‘(1) IN GENERAL.—An issue as to whether this 20 chapter applies with respect to a dispute shall be de- 21 termined under Federal law. The applicability of this 22 chapter to an agreement to arbitrate and the validity 23 and enforceability of an agreement to which this 24 chapter applies shall be determined by a court, rath- 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 48 •HR 697 IH er than an arbitrator, irrespective of whether the 1 party resisting arbitration challenges the arbitration 2 agreement specifically or in conjunction with other 3 terms of the contract containing such agreement, 4 and irrespective of whether the agreement purports 5 to delegate such determinations to an arbitrator. 6 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 7 Nothing in this chapter shall apply to any arbitra- 8 tion provision in a contract between an employer and 9 a labor organization or between labor organizations, 10 except that no such arbitration provision shall have 11 the effect of waiving the right of a worker to seek 12 judicial enforcement of a right arising under a provi- 13 sion of the Constitution of the United States, a 14 State constitution, or a Federal or State statute, or 15 public policy arising therefrom.’’. 16 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 17 (1) IN GENERAL.—Title 9 of the United States 18 Code is amended— 19 (A) in section 1 by striking ‘‘of seamen,’’ 20 and all that follows through ‘‘interstate com- 21 merce,’’ and inserting in its place ‘‘of individ- 22 uals, regardless of whether such individuals are 23 designated as employees or independent con- 24 tractors for other purposes’’; 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 49 •HR 697 IH (B) in section 2 by inserting ‘‘or as other- 1 wise provided in chapter 4’’ before the period at 2 the end; 3 (C) in section 208— 4 (i) in the section heading by striking 5 ‘‘CHAPTER 1; RESIDUAL APPLICA- 6 TION’’ and inserting ‘‘APPLICATION’’; 7 and 8 (ii) by adding at the end the fol- 9 lowing: ‘‘This chapter applies to the extent 10 that this chapter is not in conflict with 11 chapter 4.’’; and 12 (D) in section 307— 13 (i) in the section heading by striking 14 ‘‘CHAPTER 1; RESIDUAL APPLICA- 15 TION’’ and inserting ‘‘APPLICATION’’; 16 and 17 (ii) by adding at the end the fol- 18 lowing: ‘‘This chapter applies to the extent 19 that this chapter is not in conflict with 20 chapter 4.’’. 21 (2) TABLE OF SECTIONS.— 22 (A) CHAPTER 2.—The table of sections of 23 chapter 2 of title 9, United States Code, is 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 50 •HR 697 IH amended by striking the item relating to section 1 208 and inserting the following: 2 ‘‘208. Application.’’. (B) CHAPTER 3.—The table of sections of 3 chapter 3 of title 9, United States Code, is 4 amended by striking the item relating to section 5 307 and inserting the following: 6 ‘‘307. Application.’’. (3) TABLE OF CHAPTERS.—The table of chap- 7 ters of title 9, United States Code, is amended by 8 adding at the end the following: 9 ‘‘4. Arbitration of employment, consumer, antitrust, and civil rights disputes’’. SEC. 9. LIABILITY OF CERTAIN GOVERNMENT OFFICIALS. 10 (a) AMENDMENT.—Revised Statute 1979 (42 U.S.C. 11 1983) is amended by inserting ‘‘of the United States or’’ 12 before ‘‘of any State’’. 13 (b) RULES FOR APPLICATION.—In any action under 14 Revised Statute 1979, the following shall apply: 15 (1) DEFINITION OF STATE.—The term ‘‘State’’ 16 includes any person or entity that undertakes action 17 under color of any statute, ordinance, regulation, 18 custom, or usage, of any State or Territory or the 19 District of Columbia. 20 (2) ACTION UNDER COLOR OF LAW.—A private 21 person or entity undertakes action under color of 22 any statute, ordinance, regulation, custom, or usage, 23 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 51 •HR 697 IH of the United States or of any State or Territory or 1 the District of Columbia, when— 2 (A) undertaking a public function dele- 3 gated by the United States or by a State or 4 local government; 5 (B) voluntarily undertaking a public func- 6 tion; 7 (C) acting in concert with the United 8 States or a State or local government or acting 9 in concert with an individual officer, agent, or 10 entity of the United States or a State or local 11 government; 12 (D) engaging in joint action towards a 13 common goal or plan with the United States or 14 a State or local government or engaging in joint 15 action towards a common goal or plan with an 16 individual officer, agent, or entity of the United 17 States or of a State or local government; 18 (E) engaged in a conspiracy with the 19 United States or a State or local government or 20 engaged in a conspiracy with an individual offi- 21 cer, agent, or entity of the United States or of 22 a State or local government; 23 (F) a close nexus exists between the pri- 24 vate person or entity and the United States or 25 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 52 •HR 697 IH a State or local government or a close nexus ex- 1 ists between an individual officer, agent, or en- 2 tity of the United States or a State or local 3 government; 4 (G) the activities of the private person or 5 entity is so entwined with the United States or 6 a State or local government or an individual of- 7 ficer, agent, or entity of the United States or 8 of a State or local government such that the 9 private person or entity is fairly considered to 10 be acting under color of law; or 11 (H) otherwise exercises powers tradition- 12 ally reserved to the United States or to State 13 or local government. 14 (3) PRESUMPTION.—A private person or entity 15 is presumed to be acting under color of law when, 16 pursuant to a contract or other legally binding 17 agreement with the United States or with a State or 18 local government, the private person or entity exer- 19 cises any power of the United States or of that State 20 or local government or the private person or entity 21 otherwise undertakes the administration, operations, 22 or other activities of: the judiciary, law enforcement, 23 public education, jails or prisons, elections, munic- 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 53 •HR 697 IH ipal water services, municipal waste removal, evic- 1 tions, public parks, or public benefits programs. 2 (4) NO DEFENSE OF QUALIFIED IMMUNITY.— 3 Qualified immunity is not a defense in an action 4 brought against any person who under color of any 5 statute, ordinance, regulation, custom, or usage, of 6 the United States or of any State or Territory or the 7 District of Columbia, subjects, or causes to be sub- 8 jected, any citizen of the United States or other per- 9 son within the jurisdiction thereof to the deprivation 10 of any rights, privileges, or immunities secured by 11 the Constitution and laws. 12 (5) RESPONDEAT SUPERIOR.—In the case of 13 any official of any political subdivision of the United 14 States or of a State, if that official, acting under 15 color of law, violates any provision of this Act, that 16 official shall be amenable to any suit under this Act, 17 and the political subdivision may be held liable for 18 the acts of that official, whether acting in his or her 19 official or individual capacity. 20 SEC. 10. EXPLICIT INCLUSION OF RULEMAKINGS. 21 Section 1003(a)(1) of the Rehabilitation Act Amend- 22 ments of 1986 (42 U.S.C. 2000d–7(a)(1)) is amended by 23 inserting before the period at the end the following: ‘‘(in- 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 54 •HR 697 IH cluding the provisions of any rule made to implement any 1 of the foregoing statutes)’’. 2 SEC. 11. CONSTRUCTION. 3 (a) RELIEF.—Nothing in this Act, including any 4 amendment made by this Act, shall be construed to limit 5 the scope of, or the relief available under, section 504 of 6 the Rehabilitation Act of 1973 (29 U.S.C. 794), the Amer- 7 icans with Disabilities Act of 1990 (42 U.S.C. 12101 et 8 seq.), or any other provision of law. 9 (b) DEFENDANTS.—Nothing in this Act, including 10 any amendment made by this Act, shall be construed to 11 limit the scope of the class of persons who may be sub- 12 jected to civil actions under the covered civil rights provi- 13 sions. 14 (c) SEVERABILITY.—If any provision of this Act, or 15 the application of such a provision to any person or cir- 16 cumstance, is held to be unconstitutional, the remainder 17 of this Act and the application of the remaining provisions 18 of this Act to any person or circumstance shall not be af- 19 fected thereby. 20 (d) ARBITRATION.—Nothing in this Act, or the 21 amendments made by this Act, shall be construed to pro- 22 hibit the use of arbitration on a voluntary basis after a 23 dispute arises. 24 VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB 55 •HR 697 IH SEC. 12. EFFECTIVE DATE. 1 (a) IN GENERAL.—This Act, and the amendments 2 made by this Act, take effect on the date of enactment 3 of this Act. 4 (b) APPLICATION.—This Act, and the amendments 5 made by this Act, apply to all actions or proceedings pend- 6 ing on or after the date of enactment of this Act, and, 7 in the case of section 8 and the amendments made there- 8 by, shall apply with respect to any dispute or claim that 9 arises or accrues on or after such date. 10 Æ VerDate Sep 11 2014 00:06 Feb 18, 2023 Jkt 039200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6301 E:\BILLS\H697.IH H697 pbinns on DSKJLVW7X2PROD with $$_JOB