IN THE SENATE OF THE UNITED STATES
June 24, 2021
Mr. Blumenthal (for himself, Mr. Booker, and Mr. Wyden) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To amend section 1977 of the Revised Statutes to protect equal rights under law.
This Act may be cited as the
Economic Inclusion Civil Rights Act of 2021.
Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended to read as follows:
Equal rights under law
Congress finds that the decisions of the Supreme Court of the United States in Comcast Corp. v. National Ass’n of African American-Owned Media, 140 S. Ct. 1009 (2020), and General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982), have weakened the scope and effectiveness of Federal civil rights protections.
Purpose and authority
This section is an exercise of congressional authority under section 5 of the 14th Amendment, section 2 of the 13th Amendment, and the Commerce Clause of section 8 of article I, of the Constitution of the United States.
The purpose of this section is to protect civil rights, including to enact into law key portions of the concurring opinion of Justice Ginsburg in Comcast Corp. v. National Ass’n of African American-Owned Media, 140 S. Ct. 1009 (2020), and the dissenting opinion of Justice Marshall in General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982).
In this section:
The term demonstrates means meets the burdens of production and persuasion.
The term economic activity shall have the broadest meaning permissible under the Constitution, including—
making, performing, and enforcing contracts;
producing, consuming, browsing for, shopping for, or waiting for goods or services;
soliciting, selecting, hiring, or dealing with a vendor, supplier, contractor, or subcontractor;
dealing with or serving (including refusing to serve) a shopper, patron, or customer;
accessing, processing, or granting (including denying) access to loans, credit, bonding, or insurance; and
purchasing, leasing, selling, holding, or conveying real or personal property,
Full and equal benefit and enjoyment of economic activity
The term full and equal benefit and enjoyment of economic activity means the benefit or enjoyment, respectively, of the same benefits, privileges, advantages, preferences, opportunities, terms, conditions, goods, services, facilities, accommodations, service and treatment, employment, and rights to make, enforce, perform, modify, and terminate contracts, and freedom from intimidation, harassment, and profiling as white citizens benefit from or enjoy, respectively.
The term including means including, but not limited to, consistent with the term's standard meaning in Federal law.
Security of person and property
The term security, used with respect to person and property, includes protection from physical harm and a threat of harm to one’s body or property, and protection against exposure to or a disproportionate burden from the negative human health and environmental impacts of pollution or an environmental hazard.
Statement of equal rights
All nonWhite persons within the jurisdiction of the United States shall have the same right in every State and territory as is enjoyed by White citizens to the full and equal benefit and enjoyment of economic activity, to security of their persons and property, to make and enforce contracts, including carrying out the contract formation process, and to sue, be parties, and give evidence, and to the full and equal benefit of all laws and proceedings, and shall be subject, in comparison to White citizens, to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Discriminatory effects also prohibited
No person shall use a criterion, method of administration, practice, or policy that has a disparate impact in violation of subsection (d).
A challenged criterion, method of administration, practice, or policy that has an impact described in paragraph (1) shall be unjustifiable unless its user demonstrates that—
the use serves a legitimate purpose, which is both required by a substantial business necessity and not a pretext for discrimination; and
if the complaining party proffers an alternative, that that alternative is either inconsistent with substantial business necessity or would produce an equal or greater disparate impact on the basis of a classification protected by subsection (d).
Limitation on substantial business necessity defense
A demonstration that a criterion, method of administration, practice, or policy is required by a substantial business necessity may not be used as a defense against a claim of intentional discrimination under this section.
Protection against impairment
All rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Burden of proof for discriminatory treatment actions
In this subsection, the term protected classification means a classification protected by subsection (d).
The equal rights guaranteed under subsection (d) shall be considered to be denied when the complaining party demonstrates that race or a protected classification was a motivating factor for the denial of such rights even though other factors also motivated the denial. A denial of equal rights guaranteed under subsection (d) may be established with comparator evidence or any other evidence that sufficiently demonstrates a denial of such rights, including evidence of conduct that a reasonable person would find racially hostile.
Any person suffering injury in fact as a result of the alleged violation of this section may bring a claim or cause of action for damages, or for equitable or for declaratory relief, under this section. Standing shall not be limited to victims who were parties to, or third-party beneficiaries of, a contract with the defendant.
Respondeat superior liability
Principals shall be liable for violations of this section by their agents, and local governments shall be liable for violations of this section by their employees, acting within the scope of their duties.
Jury trial right
All persons within the jurisdiction of the United States shall have the right to enforce a right provided under this section in a court of law and before a jury of their peers, and no joint-action waiver or pre-dispute arbitration agreement shall be valid or enforceable with respect to any alleged violation of this section.
Statute of limitations
All causes of action under this section shall be governed by the 4-year statute of limitations provided by section 1658(a) of title 28, United States Code.
Remediating past discrimination
Nothing in this section shall be construed to prohibit or limit a lawful effort, under a provision other than this section, to remedy the effects of discrimination that has occurred or is occurring.
Application to claims
This Act, and the amendment made by this Act, shall apply to all claims of violations of section 1977 of the Revised Statutes that are pending on or after the date of enactment of this Act.
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of such provision or amendment to any person or circumstance shall not be affected thereby.