text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``Equal Employment Opportunity 
  Restoration Act of 2012''.
  
  SEC. 2. FINDINGS AND PURPOSE.
  
      (a) Findings.--Congress finds the following:
              (1) Congress has enacted laws to eradicate workplace 
          discrimination and to secure equal employment opportunities for 
          all Americans, as noted in Teamsters v. United States, 431 U.S. 
          324 (1977) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 
          (1973) (stating that civil rights laws are meant ``to assure 
          equality of employment opportunities and to eliminate . . . 
          discriminatory practices and devices'' in the workplace).
              (2) Workplace discrimination laws prohibit subjective 
          employment practices that operate to deny equal employment 
          opportunities to employees, as explained in Watson v. Fort 
          Worth Bank & Trust, 487 U.S. 977 (1988), which stated that 
          personnel decisions ``based on the exercise of personal 
          judgment or the application of inherently subjective criteria'' 
          are unlawful when the personnel decisions have the effect of 
          discriminating on grounds prohibited by law.
              (3) Class actions often have been the most effective means 
          to enforce employment discrimination laws, as explained in East 
          Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395 
          (1977) (``[S]uits alleging . . . discrimination are often by 
          their very nature class suits, involving classwide wrongs'' 
          where ``[c]ommon questions of law or fact are typically 
          present.'') and in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 
          (1974) (``Economic reality dictates that [claims of relatively 
          small value] proceed as a class action or not at all.'').
              (4) Historically, a class action alleging employment 
          discrimination could be maintained if the class was united by a 
          common issue of law or fact. As a leading legal treatise, 
          William B. Rubenstein, 1 Newberg on Class Actions Sec. 3:20 
          (5th ed. 2011), explained, ``this requirement [was] easily met 
          in most cases''. As another leading treatise, Charles A. Wright 
          et al., 7A Federal Practice and Procedure, Wright and Miller 
          Sec. 1763 (3rd ed. 2005), explained, this requirement had been 
          given ``permissive application''.
              (5) However, the Supreme Court recently made it more 
          difficult for victims of discrimination to vindicate claims for 
          their rights. In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 
          2541 (2011), the Court required ``convincing proof of a 
          companywide discriminatory pay and promotion policy'' as a 
          prerequisite to class certification. In a dissent in that case, 
          Justice Ginsberg wrote that the Court's decision ``disqualifies 
          the class at the starting gate''.
      (b) Purpose.--The purpose of this Act is to restore employees' 
  ability to challenge, as a group, discriminatory employment practices, 
  including subjective employment practices.
  
  SEC. 3. GROUP ACTIONS.
  
      (a) In General.--Part VI of title 28, United States Code, is 
  amended by adding at the end the following:
  
                        ``CHAPTER 182--GROUP ACTIONS
  
  ``Sec.
  ``4201. Group actions in certain employment discrimination cases.
  ``Sec. 4201. Group actions in certain employment discrimination cases
      ``(a) Group Actions.--In seeking relief under title VII of the 
  Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), title I of the 
  Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.), 
  title V of the Rehabilitation Act of 1973 (29 U.S.C. 791 et seq.), 
  section 1977 of the Revised Statutes (42 U.S.C. 1981), or title II of 
  the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff 
  et seq.) (individually referred to in this section as a `covered 
  employment statute'), 1 or more members (collectively referred to in 
  this section as the `representative party') of a group may sue on 
  behalf of all members of the group if the representative party shows, 
  by a reasonable inference, that--
              ``(1) the members of the group are so numerous that their 
          joinder is impracticable;
              ``(2) the claims of the representative party are typical of 
          the claims of the group the representative party seeks to 
          represent and the representative party and the representative 
          party's counsel will fairly and adequately protect the 
          interests of the group; and
              ``(3) the members of the group are, or have been, subject 
          to an employment practice that has adversely affected or is 
          adversely affecting a significant portion of the group's 
          members.
      ``(b) Subjective Employment Practices.--
              ``(1) Definition.--In this subsection, the term `subjective 
          employment practice' means--
                      ``(A) an employer's policy of leaving personnel 
                  decisions to the unguided discretion of supervisors, 
                  managers, and other employees with authority to make 
                  such personnel decisions; or
                      ``(B) an employment practice that combines a 
                  subjective employment practice, as defined in 
                  subparagraph (A), with other types of personnel 
                  decisions.
              ``(2) Challenges.--A representative party may challenge a 
          subjective employment practice covered by a covered employment 
          statute in a group action filed under this section to the same 
          extent as the party may challenge any other employment practice 
          covered by the covered employment statute in such an action.
              ``(3) Exercise of discretion in different ways.--The fact 
          that individual supervisors, managers, or other employees with 
          authority to make personnel decisions may exercise discretion 
          in different ways in applying a subjective employment practice 
          under the covered employment statute shall not preclude a 
          representative party from filing a corresponding group action 
          under this section.
              ``(4) Consideration of written nondiscrimination policy.--
          In determining whether to certify a group action challenging an 
          employment practice, the court may consider as evidence, in 
          opposition to certification, an employer's written 
          nondiscrimination policy only to the extent that the employer 
          demonstrates that the policy has been consistently and 
          effectively used to prevent and, where necessary, promptly 
          correct discrimination against the group.
      ``(c) Relationship to Rule 23 of the Federal Rules of Civil 
  Procedure.--
              ``(1) Election of procedure.--The representative party may 
          elect to proceed in a group action under this section or in a 
          class action under rule 23 of the Federal Rules of Civil 
          Procedure. This election shall occur not later than the latest 
          date on which the representative party may petition for class 
          certification under rule 23 of the Federal Rules of Civil 
          Procedure.
              ``(2) Rule 23 requirements.--To the extent consistent with 
          this section, the court shall apply the provisions of rule 
          23(c) through rule 23(h) of the Federal Rules of Civil 
          Procedure, including the requirements under rule 23 regarding 
          notice and requests for exclusion, to claims brought pursuant 
          to this section.
              ``(3) Interlocutory appellate review.--Decisions granting 
          or denying certification of claims as group actions under this 
          section are subject to review to the same extent as orders 
          granting or denying class certification pursuant to rule 23 of 
          the Federal Rules of Civil Procedure.
              ``(4) Class action fairness act.--Group actions certified 
          under this section shall be subject to section 1332(d), section 
          1453, and chapter 114 to the same extent as class actions 
          certified pursuant to rule 23 of the Federal Rules of Civil 
          Procedure.
              ``(5) Rule of construction.--Nothing in this section shall 
          be construed to create any inference regarding the standards 
          for determining whether claims may be adjudicated together 
          under any law other than the covered employment statutes.
      ``(d) Remedies.--
              ``(1) Availability of remedies.--If an employer has been 
          found liable under a covered employment statute against a group 
          certified under this section, the court may deny a remedy 
          available under the covered employment statute to a member of 
          the group only if the employer demonstrates, by a preponderance 
          of the evidence, that the member of the group would not have 
          received the corresponding employment opportunity or benefit 
          even in the absence of a violation of the covered employment 
          statute.
              ``(2) Relief.--
                      ``(A) In general.--The court shall fashion the most 
                  complete relief possible for members of a prevailing 
                  group described in this section and shall have broad 
                  discretion in determining how to fashion that relief.
                      ``(B) Exercise of discretion.--In exercising its 
                  discretion under this paragraph, the court shall--
                              ``(i) use such procedures as the interests 
                          of justice warrant, which procedures may 
                          include economic or statistical modeling, 
                          mathematical calculation, sampling, individual 
                          adjudication, and other means the court may 
                          adopt;
                              ``(ii) consider which procedure will best 
                          ensure that members of the group will be made 
                          whole;
                              ``(iii) consider which procedure will best 
                          minimize the cost to and burden on the parties; 
                          and
                              ``(iv) consider which procedure most 
                          reliably and efficiently accounts for 
                          limitations on the court's ability to identify 
                          individual members of the group and to measure 
                          the harm incurred by individual members of the 
                          group.''.
      (b) Technical and Conforming Amendment.--The table of chapters for 
  part VI of title 28, United States Code, is amended by adding at the 
  end the following:
  
  ``182. Group actions........................................    4201''.
target: Equal Employment Opportunity Restoration Act of 2012 - Amends the federal judicial code to permit one or more members of a group seeking relief for discriminatory employment practices under specified provisions of the Civil Rights Act of 1964, Americans with Disabilities Act of 1990, Rehabilitation Act of 1973, equal rights laws under the Revised Statutes, or the Genetic Information Nondiscrimination Act of 2008 to sue on behalf of all members of the group if the representative party shows, by a reasonable inference, that: (1) members of the group are so numerous that their joinder is impracticable; (2) claims of the representative party are typical of the claims of the group the representative party seeks to represent and the representative party and the representative party's counsel will fairly and adequately protect the interests of the group; and (3) members of the group are, or have been, subject to an employment practice that has adversely affected or is adversely affecting a significant portion of the group's members. (Thus establishing a new standard for employees bringing group actions for certain employment discrimination, notwithstanding the Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes, which required "convincing proof of a companywide discriminatory pay and promotion policy" as a prerequisite to class certification.)
  
  Permits a representative party to challenge a subjective employment practice covered by any of the above-referenced employment statutes in a group action filed under this Act to the same extent as the party may challenge any other employment practice covered by such a statute in such an action.
  
  Defines a "subjective employment practice" as: (1) an employer's policy of leaving personnel decisions to the unguided discretion of supervisors, managers, and other employees with authority to make such personnel decisions; or (2) an employment practice combining such a subjective employment practice with other types of personnel decisions.
  
  Prohibits the fact that individual supervisors, managers, or other employees with authority to make personnel decisions may exercise discretion in different ways in applying a subjective employment practice under such a statute from precluding a representative party from filing a corresponding group action.
  
  Allows a representative party to elect to proceed in a group action under this Act or in a class action under the Federal Rules of Civil Procedure.
feat_title: To restore the effective use of group actions for claims arising under title VII of the Civil Rights Act of 1964, title I of the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, section 1977 of the Revised Statutes, and the Genetic Information Nondiscrimination Act of 2008, and for other purposes.