Within the next two years, employers can expect to see the reintroduction of employment discrimination legislation that seeks to significantly broaden remedies available to aggrieved employees, weaken employers’ affirmative defenses in harassment claims, and eliminate an employer’s ability to use binding arbitration in employment disputes. Much of this legislation, which was first introduced in the last Congress, is intended to respond to limitations imposed by courts and Congress over the last 10 years.

The Civil Rights Act of 2008, introduced in January of this year (S. 2554, H.R. 5129), never made it past the legislative starting block. However, all or part of the Act will likely re-emerge in the next two years to a more receptive Congress. The provisions of this new law would:

• Eliminate the current $300,000 cap on compensatory damages.
• Add the availability of punitive damages for violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
• Make employers who are in violation of the Fair Labor Standards Act subject to compensatory and punitive damages, in addition to remedies already available to aggrieved employees.
• Render ineffective an employer’s affirmative defense in an Equal Pay Act claim that there exists a “bona fide factor other than sex” for the pay disparity.
• Require employers defending harassment claims to demonstrate that they have established and adequately publicized effective and “comprehensive” harassment prevention policies and complaint procedures and prove that they have undertaken “prompt, thorough and impartial investigations” of such claims. Currently, an employer can defeat a claim of harassment by proving it has exercised reasonable care to prevent and correct any harassing behavior, and that the aggrieved employees have not availed themselves of such procedures.
• Render pre-dispute arbitration agreements often found in employment applications, contracts and handbooks unenforceable with respect to civil rights disputes.

While many of these provisions were met with vociferous opposition from business interests, employers can expect to see serious consideration of these measures in the coming years.