Civil Rights Act of 2008
Anthony T. Bowser
Earlier this year, House and Senate Democrats introduced what could be a landmark piece of employment legislation, named the Civil Rights Act of 2008. The Act could serve as overarching legislation to affect almost all labor and employment laws and regulations.
The Act is currently in congressional subcommittee and there is no clear indication which parts will survive; however, given the recently emboldened Democratic majority, many commentators foresee a large portion passing through subcommittee and being presented for approval by Congress. Some highlights of the Civil Rights Act of 2008 include:
- Elimination of the damage caps currently in place under Title VII and the Americans with Disabilities Act (ADA);
- Adding compensatory and punitive damage availability under the Fair Labor Standards Act (FLSA), including claims brought pursuant to the Equal Pay Act (EPA);
- Limiting the ability of employers, under the Federal Arbitration Act (FAA), to use mandatory arbitration clauses to those instances where the parties agree to arbitration after the dispute arises or as part of a collective bargaining agreement;
- Providing the National Labor Relations Board (NLRB) the opportunity to award backpay to undocumented workers;
- Amending the EPA to severely limit employers’ use of the “bona fide factor other than sex” defense to equal pay claims;
- Conditioning states’ receipts of federal funds on states’ waiver of sovereign immunity against individual claims for monetary damages under the Age Discrimination in Employment Act (ADEA), FLSA, and Uniformed Services Employment and Reemployment Rights Act (USERRA);
- Providing individuals the right to sue federally funded programs under Title VI, Title IX, the Rehabilitation Act, and the ADA; and
- Allowing winning plaintiffs to recover expert fees and expand the definition of prevailing party.
The Civil Rights Act of 2008 could tip the scales heavily in favor of employees bringing claims against their employers. If enacted in its current form, the Act could open a floodgate of litigation by employees seeking large damage claims against their employers and former employers. In the event that the Civil Rights Act of 2008 passes through Congress, all Employers will need to make broad-sweeping changes to their policies in order to ensure compliance and reduce the risk of costly litigation.
