by Race in the Workplace special correspondent Erica Mauter

Aka, the Civil Rights Act of 2008.

According to Jeffery Hirsch at Workplace Prof Blog, H.R.5129/S.2554 looks like an employee discrimination law wishlist.

He gives the Cliffs Notes version of the bill:

The Act would do the following:

• eliminate the 1991 Civil Rights Act damage caps under Title VII and the Americans with Disabilities Act (ADA),
• amend the Equal Pay Act (EPA) to allow the “bona fide factor other than sex” defense only if an employer shows that the factor was job-related was actually used and further legitimate business purposes,
• adds compensatory and punitive damages to the Fair Labor Standards Act’s (FLSA) remedial framework (which includes the EPA),
• amends the Federal Arbitration Act (FAA) to prohibit clauses requiring arbitration of federal constitution or statutory claims, unless parties knowingly and voluntarily consented after the dispute arises, or as part of a collective bargaining agreement,
• allow winning plaintiffs to recover expert fees and expand the definition of prevailing party,
• give the NLRB authority to award backpay to undocumented workers,
• provide individuals the right to sue federally funded programs under Title VI, Title IX, the Rehabilitation Act, and the ADA,
• require that ADEA disparate impact claims be analyzed the same as Title VII claims,
• condition 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), the FLSA, and Uniformed Services Employment and Reemployment Rights Act (USERRA).

So it basically addresses who else can sue who for what and for how much. Professor Hirsch then says:

I don’t imagine that it’ll go anywhere unless there is a President Clinton or Obama, but no doubt it will be campaign fodder until then.

Now isn’t that cynical? Except that he’s absolutely right.

Many of these measures just make sense. Especially in cases where the proposed legislation is calling a more fair, uniform application of an existing policy. But if it were all that easy to do and everyone were that on board with the concept, it would have been done already.

One would think with the copious amounts of discrimination and employment case law to draw from that crafting and enacting such an Act would be pretty straightforward. We’re all pretty clear on the idea that race-based discrimination is wrong. It’s not as if it’s a “moral” issue that we all have different opinions on and thus we keep on discriminating in the name of religious freedom, right? (Gay Marriage, I’m looking at you.)

It’s a shame that anyone would doubt we could pass a Civil Rights Act. Hopefully the tide is turning (pdf).