On Capitol Hill: Civil Rights Act of 2008
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Over the last 40 years, civil rights laws have strengthened our nation and encouraged equal opportunity for all people. However, several Supreme Court decisions have turned back the clock on the progress made over these decades. People For the American Way (PFAW) believes that freedom from discrimination is a basic right that all Americans should enjoy. PFAW works to expand laws to protect people from discrimination based on race, national origin, age, gender, religion, sexual orientation, or disability.
The Civil Rights Act of 2008 seeks to remedy the rollback of civil rights protections that has taken place in the courts over the last several years by strengthening accountability when existing rights are violated.
Equal Access to Public Services
The Supreme Court’s decision in Alexander v. Sandoval, 532 U.S. 275 (2001), held that individuals do not have the right under Title VI of the Civil Rights Act of 1964 to challenge state action in implementing federally-funded programs that has the effect of discriminating on the basis of race, color, or — as in the example of Alexander v. Sandoval — national origin. Some courts have suggested similar limits covering a variety of other laws, including the Age Discrimination in Employment Act of 1975 (ADEA) and Title IX of the Education Amendments of 1972. The Civil Rights Act of 2008 would restore the individual right to challenge practices that have an unjustified discriminatory effect based on race, national origin, disability, age, or gender.
Protection from Harassment and Discrimination
The Supreme Court decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), created barriers for a student who has been sexually harassed to receive remedies from a complicit school. The decision held that core remedies are unavailable to these students unless the school acted with “deliberate indifference” after receiving “actual notice” of the harassment. The Civil Rights Act of 2008 would ensure that schools that shield themselves from knowledge of unlawful harassment must still be accountable to their students. The bill protects students from harassment in schools that receive federal funds and will give students the same protection from unlawful harassment in our schools that adults have on the job.
Protection for Individuals with Disabilities
The Civil Rights Act of 2008 would also respond to the court decision in Barnes v. Gorman, 536 U.S. 181 (2002), holding that persons with disabilities who are excluded from programs funded with federal money cannot receive punitive damages, even when their exclusion is an intentional violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The Civil Rights Act of 2008 states that punitive damages can be available in such cases.
Protection for Older Workers
Under the Supreme Court decision in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), state employees cannot sue the state for damages under ADEA because of state sovereign immunity. Therefore, state employees do not enjoy the same protections against age discrimination as other workers. The Civil Rights Act of 2008 would require state employers to give workers full relief for age discrimination, including monetary damages. The bill clarifies the standard for challenging employment practices that have a discriminatory effect based on age. It makes clear that the standard of proof in cases alleging an unjustified discriminatory effect based on age is the same as in cases alleging an unjustified discriminatory effect based on race, gender, national origin, or religion.
Access to the Courts and Effective Remedies
The Supreme Court decision in Circuit City Stores v. Adams, 532 U.S. 105 (2001), allows employers to force potential employees to sign mandatory arbitration clauses to obtain work. These clauses would force workers to surrender their right to bring discrimination and labor claims to court. The Civil Rights Act of 2008 would prohibit employers from forcing workers to sign those agreements.
The Supreme Court decision in Buckhannon Bd. & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), held that victims of discrimination or other unfair practices cannot recover attorney fees in civil rights cases unless there is a court decision on the merits of the case, even if the lawsuit has clearly caused other action addressing the plaintiff’s claims. The decision in West Virginia University Hospital v. Casey similarly held that the victims in civil rights cases cannot recover expert witness fees without a court decision. Therefore, any victims of discrimination who settle their case outside of a court decision cannot recover attorney and expert witness fees. Because many individuals who are discriminated against are not in a position to cover these fees on their own, these court decisions create a large disincentive to challenge discrimination. The Civil Rights Act of 2008 would remedy these decisions so that all victims of discrimination and unlawful treatment are allowed to effectively pursue their claims in court.
Equal Pay for Equal Work
Working women still earn significantly less than men for equal or similar work. The Civil Rights Act of 2008 would amend the Equal Pay Act to require that any differences in pay between men and women must be based on a bona fide factor other than gender. The bill also allows victims of wage discrimination to seek damages from employers, except federal government employers.
Fair Treatment for Workers
The Civil Rights Act of 2008 would ensure that all workers can obtain relief from unfair labor practices. This protection would apply to all state workers and undocumented workers. The bill protects these individuals in response to two court decisions. Alden v. Maine, 527 U.S. 706 (1999), held that workers may not seek relief in state court when a state violates the Fair Labor Standards Act, and Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), denied an undocumented worker the right to obtain lost wages even though the worker was illegally fired for joining a union.
Representative John Lewis (D-5th GA) introduced Civil Rights Act of 2008 in the House as H.R. 5129 on January 23, 2008. Senator Edward Kennedy introduced its Senate companion (S. 2554) the following day. H.R. 5129 has 30 cosponsors and awaits consideration in four House committees: Judiciary, Education and the Workforce, the Transportation and Infrastructure Subcommittee on Aviation, and the Transportation and Infrastructure Subcommittee on Highways and Transit. S. 2554 has 19 cosponsors and awaits consideration by the Senate Health, Education, Labor, and Pensions (HELP) Committee.
Updated February 28, 2008
Contact your Representative and Senators and tell them to support the Civil Rights Act of 2008 (H.R. 5129/S. 2554). Let them know that you support reaffirming protections to prevent discrimination on the basis of race, national origin, age, gender, religion, or disability. Sign up for People For action alerts, and we will keep you updated on new developments concerning this issue.
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