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Statements on Introduced Bills and Joint Resolutions

Location: Washington, DC



By Mr. DeWINE:

S. 3823. A bill to amend the Americans with Disabilities Act of 1990 and the Age Discrimination in Employment Act of 1967 to provide a means to combat discrimination on the basis of age or disability, by conditioning a State's receipt or use of Federal financial assistance on the State's waiver of immunity from suit for violations under such acts; to the Committee on Health, Education, Labor, and Pensions.

Mr. DeWINE. Mr. President, I am pleased to introduce the Civil Rights Restoration Act of 2006. Today, there is a serious loophole in our Nation's civil rights laws. If you are the victim of age or disability discrimination and you work in the private sector, you can sue your employer in Federal court for money damages. If, however, you work for one of the States, you cannot sue in Federal court for money damages under either the Age Discrimination in Employment Act, ADEA, or the Americans with Disabilities Act, ADA.

This loophole is not the result of anything that we have done in Congress. In fact, when we passed the ADEA and the ADA, we clearly provided that the States, just like private entities, cannot discriminate on the basis of age or disability. And, we said that if they do, they can be sued for money damages in Federal court. In our view, the right of an individual to be free from discrimination on the basis of age or disability did not depend on where one works.

Instead, this loophole was created by the Supreme Court. In several recent decisions, the Supreme Court has reinterpreted the 11th amendment to the Constitution and severely limited Congress's power to subject States to lawsuits under section 5 of the 14th amendment. In Kimel v. Florida Board of Regents, 528 U.S. 62, 2000, for instance, the Court held that Congress lacks the power to subject States to suit for money damages under the ADEA. In Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 2001, the Court again held that Congress lacked the power to subject States to suit for money damages, this time under title I of the ADA.

Although individuals can still sue the States for injunctive relief, the Supreme Court's restriction on suits for money damages has taken away an essential tool for the victims of discrimination. As one witness explained during hearings on the ADA, ``civil rights laws depend heavily on private enforcement.'' ``[D]amages are essential to provide private citizens a meaningful opportunity to vindicate their rights. Attempts to weaken the remedies available under the ADA are attacks on the ADA itself, and their success would make the ADA an empty promise of equality.''

Unfortunately, by restricting the ability of individuals to sue for money damages, the Garrett and Kimel decisions have severely limited the ``promise of equality'' guaranteed by the ADA and the ADEA. Lawsuits for money damages are the primary means for private individuals to obtain redress for discrimination. They promote deterrence and provide an important way for the Federal Government to enforce antidiscrimination laws. By eliminating the ability of State employees to sue their employers for such damages, the Supreme Court's decisions in Kimel and Garrett have made enforcement of these civil rights laws more difficult.

In addition, the Garrett and Kimel decisions have created a legal regime that gives State employees fewer rights than other employees covered by the ADA and the ADEA. At present, employees of local governments and employees in the private sector are entitled to sue in Federal court for money damages for violations of the ADA or the ADEA. For the more than 2,500,000 individuals who work for the States, however, such relief is no longer available.

Finally, the Garrett and Kimel decisions themselves are hardly a model of clarity. In fact, several scholars have said that they find them to be inconsistent with prior case law, at odds with the clear language of the Constitution, disrespectful of Congress's role in our system of government, and insensitive to the plight of those who are the victims of discrimination.

In my opinion, Chairman Specter of the Judiciary Committee put it well when he referred to these cases as ``inexplicable decisions.'' During the confirmation hearing for Chief Justice Roberts, Chairman Specter said that the test that emerges from these Supreme Court decisions ``has no grounding in the Constitution, no grounding in the Federalist Papers, no grounding in the history of the country, [and] comes out of thin air[.]''

I happen to agree with him. In my view, Garrett and Kimel were wrongly decided. And, they should be overturned.

My bill will do just that. The Civil Rights Restoration Act of 2006 would provide that any State that receives Federal financial assistance must allow plaintiffs the ability to sue the State for money damages in Federal court if that State violates the terms of the ADEA or the ADA. Of course, those plaintiffs must meet all the other requirements to bring such a suit. My bill does not otherwise change the substance of the ADA or ADEA, and it does not guarantee an outcome. It merely gives the victims of discrimination access to federal courts so that they may seek the relief to which they are otherwise entitled. In other words, it will give the victims of age and disability discrimination the same rights that we intended to give them when we first passed the ADEA and the ADA.

This is a simple bill with a simple purpose: it closes a loophole created by the Supreme Court; it re-establishes the original intent of the ADA and the ADEA; and it restores to the victims of discrimination the rights to which they have long been entitled. I am proud to introduce the Civil Rights Restoration Act of 2006, and I ask my colleagues to support it.


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