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APPENDIX
42 U.S.C. § 1981a provides:
Damages in cases of intentional discrimination in employment.
(a) Right of recovery
(1) Civil rights
In an action brought by a complaining party under section 706 or 717 of
the Civil Rights Act of 1964 [42 U.S.C. 2000e-5, 2000e-16] against a respondent
who engaged in unlawful intentional discrimination (not an employment practice
that is unlawful because of its disparate impact) prohibited under section
703, 704, or 717 of the Act [42 U.S.C. 2000e-2, 2000e-3, 2000e-16], and
provided that the complaining party cannot recover under section 1981 of
this title, the complaining party may recover compensatory and punitive
damages as allowed in subsection (b) of this section, in addition to any
relief authorized by section 706(g) of the Civil Rights Act of 1964, from
the respondent.
(2) Disability
In an action brought by a complaining party under the powers, remedies,
and procedures set forth in section 706 or 717 of the Civil Rights Act of
1964 [42 U.S.C. 2000e-5, 2000e-16] (as provided in section 107(a) of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and section
794a(a)(1) of title 29, respectively) against a respondent who engaged in
unlawful intentional discrimination (not an employment practice that is
unlawful because of its disparate impact) under section 791 of title 29
and the regulations implementing section 791 of title 29, or who violated
the requirements of section 791 of title 29 or the regulations implementing
section 791 of title 29 concerning the provision of a reasonable accommodation,
or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12112), or committed a violation of section 102(b)(5) of the Act, against
an individual, the complaining party may recover compensatory and punitive
damages as allowed in subsection (b) of this section, in addition to any
relief authorized by section 706(g) of the Civil Rights Act of 1964, from
the respondent.
(3) Reasonable accommodation and good faith effort
In cases where a discriminatory practice involves the provision of a reasonable
accommodation pursuant to section 102(b)(5) of the Americans with Disabilities
Act of 1990 [42 U.S.C. 12112(b)(5)] or regulations implementing section
791 of title 29, damages may not be awarded under this section where the
covered entity demonstrates good faith efforts, in consultation with the
person with the disability who has informed the covered entity that accommodation
is needed, to identify and make a reasonable accommodation that would provide
such individual with an equally effective opportunity and would not cause
an undue hardship on the operation of the business.
(b) Compensatory and punitive damages
(1) Determination of punitive damages
A complaining party may recover punitive damages under this section against
a respondent (other than a government, government agency or political subdivision)
if the complaining party demonstrates that the respondent engaged in a discriminatory
practice or discriminatory practices with malice or with reckless indifference
to the federally protected rights of an aggrieved individual.
(2) Exclusions from compensatory damages
Compensatory damages awarded under this section shall not include backpay,
interest on backpay, or any other type of relief authorized under section
706(g) of the Civil Rights Act of 1964 [42 U.S.C. 2000e-5(g)].
(3) Limitations
The sum of the amount of compensatory damages awarded under this section
for future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other nonpecuniary losses, and the
amount of punitive damages awarded under this section, shall not exceed,
for each complaining party-
(A) in the case of a respondent who has more than 14 and fewer than 101
employees in each of 20 or more calendar weeks in the current or preceding
calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201
employees in each of 20 or more calendar weeks in the current or preceding
calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501
employees in each of 20 or more calendar weeks in the current or preceding
calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each
of 20 or more calendar weeks in the current or preceding year, $300,000.
(4) Construction
Nothing in this section shall be construed to limit the scope, or the relief
available under, section 1981 of this title.
(c) Jury trial
If a complaining party seeks compensatory or punitive damages under this
section-
(1) any party may demand a trial by jury; and
(2) the court shall not inform the jury of the limitations described in
subsection (b)(3) of this section.
(d) Definitions
As used in this section:
(1) Complaining party
The term "complaining party" means-
(A) in the case of a person seeking to bring an action under subsection
(a)(1) of this section, the Equal Employment Opportunity Commission, the
Attorney General, or a person who may bring an action or proceeding under
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or
(B) in the case of a person seeking to bring an action under subsection
(a)(2) of this section, the Equal Employment Opportunity Commission, the
Attorney General, a person who may bring an action or proceeding under section
794a(a)(1) of title 29, or a person who may bring an action or proceeding
under title I of the Americans with Disabilities Act of 1990 [42 U.S.C.
12111 et seq.].
(2) Discriminatory practice
The term "discriminatory practice" means the discrimination described
in paragraph (1), or the discrimination or the violation described in paragraph
(2), of subsection (a) of this section.
Excerpts from Title VII of the Civil Rights Act of 1964
42 U.S.C. § 2000e-2 provides in part:
Unlawful employment practices
(a) Employer practices
It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because
of such individual's race, color, religion, sex, or national origin.
* * * * *
(e) Businesses or enterprises with personnel qualified on basis of religion,
sex, or national origin; educational institutions with personnel of particular
religion
Notwithstanding any other provision of this subchapter, (1) it shall not
be an unlawful employment practice for an employer to hire and employ employees,
for an employment agency to classify, or refer for employment any individual,
for a labor organization to classify its membership or to classify or refer
for employment any individual, or for an employer, labor organization, or
joint labor-management committee controlling apprenticeship or other training
or retraining programs to admit or employ any individual in any such program,
on the basis of his religion, sex, or national origin in those certain instances
where religion, sex, or national origin is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business
or enterprise, and (2) it shall not be an unlawful employment practice for
a school, college, university, or other educational institution or institution
of learning to hire and employ employees of a particular religion if such
school, college, university, or other educational institution or institution
of learning is, in whole or in substantial part, owned, supported, controlled,
or managed by a particular religion or by a particular religious corporation,
association, or society, or if the curriculum of such school, college, university,
or other educational institution or institution of learning is directed
toward the propagation of a particular religion.
Excerpts from Title I of the Americans with
Disabilities Act
42 U.S.C. § 12111 provides in part:
Definitions
* * * * *
(2) Covered entity
The term "covered entity" means an employer, employment agency,
labor organization, or joint labor-management committee.
* * * * *
(4) Employee
The term "employee" means an individual employed by an employer.
With respect to employment in a foreign country, such term includes an individual
who is a citizen of the United States.
(5) Employer
(A) In general
The term "employer" means a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of 20
or more calendar weeks in the current or preceding calendar year, and any
agent of such person, except that, for two years following the effective
date of this subchapter, an employer means a person engaged in an industry
affecting commerce who has 25 or more employees for each working day in
each of 20 or more calendar weeks in the current or preceding year, and
any agent of such person.
(B) Exceptions
The term "employer" does not include-
(i) the United States, a corporation wholly owned by the government of the
United States, or an Indian tribe; or
(ii) a bona fide private membership club (other than a labor organization)
that is exempt from taxation under section 501(c) of title 26.
* * * * *
(8) Qualified individual with a disability
The term "qualified individual with a disability" means an individual
with a disability who, with or without reasonable accommodation, can perform
the essential functions of the employment position that such individual
holds or desires. For the purposes of this subchapter, consideration shall
be given to the employer's judgment as to what functions of a job are essential,
and if an employer has prepared a written description before advertising
or interviewing applicants for the job, this description shall be considered
evidence of the essential functions of the job.
(9) Reasonable accommodation
The term "reasonable accommodation" may include-
(A) making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment
to a vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training materials
or policies, the provision of qualified readers or interpreters, and other
similar accommodations for individuals with disabilities.
(10) Undue hardship
(A) In general
The term "undue hardship" means an action requiring significant
difficulty or expense, when considered in light of the factors set forth
in subparagraph (B).
(B) Factors to be considered
In determining whether an accommodation would impose an undue hardship on
a covered entity, factors to be considered include-
(i) the nature and cost of the accommodation needed under this chapter;
(ii) the overall financial resources of the facility or facilities involved
in the provision of the reasonable accommodation; the number of persons
employed at such facility; the effect on expenses and resources, or the
impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall
size of the business of a covered entity with respect to the number of its
employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including
the composition, structure, and functions of the workforce of such entity;
the geographic separateness, administrative, or fiscal relationship of the
facility or facilities in question to the covered entity.
42 U.S.C. § 12112 provides in part:
Discrimination
(a) General rule
No covered entity shall discriminate against a qualified individual with
a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges
of employment.
(b) Construction
As used in subsection (a) of this section, the term "discriminate"
includes-
(1) limiting, segregating, or classifying a job applicant or employee in
a way that adversely affects the opportunities or status of such applicant
or employee because of the disability of such applicant or employee;
(2) participating in a contractual or other arrangement or relationship
that has the effect of subjecting a covered entity's qualified applicant
or employee with a disability to the discrimination prohibited by this subchapter
(such relationship includes a relationship with an employment or referral
agency, labor union, an organization providing fringe benefits to an employee
of the covered entity, or an organization providing training and apprenticeship
programs);
(3) utilizing standards, criteria, or methods of administration-
(A) that have the effect of discrimination on the basis of disability; or
(B) that perpetuate the discrimination of others who are subject to common
administrative control;
(4) excluding or otherwise denying equal jobs or benefits to a qualified
individual because of the known disability of an individual with whom the
qualified individual is known to have a relationship or association;
(5)(A) not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity can demonstrate that
the accommodation would impose an undue hardship on the operation of the
business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who
is an otherwise qualified individual with a disability, if such denial is
based on the need of such covered entity to make reasonable accommodation
to the physical or mental impairments of the employee or applicant;
(6) using qualification standards, employment tests or other selection criteria
that screen out or tend to screen out an individual with a disability or
a class of individuals with disabilities unless the standard, test or other
selection criteria, as used by the covered entity, is shown to be job-related
for the position in question and is consistent with business necessity;
and
(7) failing to select and administer tests concerning employment in the
most effective manner to ensure that, when such test is administered to
a job applicant or employee who has a disability that impairs sensory, manual,
or speaking skills, such test results accurately reflect the skills, aptitude,
or whatever other factor of such applicant or employee that such test purports
to measure, rather than reflecting the impaired sensory, manual, or speaking
skills of such employee or applicant (except where such skills are the factors
that the test purports to measure).
* * * * *
42 U.S.C. § 12113 provides:
Defenses
(a) In general
It may be a defense to a charge of discrimination under this chapter that
an alleged application of qualification standards, tests, or selection criteria
that screen out or tend to screen out or otherwise deny a job or benefit
to an individual with a disability has been shown to be job-related and
consistent with business necessity, and such performance cannot be accomplished
by reasonable accommodation, as required under this subchapter.
(b) Qualification standards
The term "qualification standards" may include a requirement that
an individual shall not pose a direct threat to the health or safety of
other individuals in the workplace.
(c) Religious entities
(1) In general
This subchapter shall not prohibit a religious corporation, association,
educational institution, or society from giving preference in employment
to individuals of a particular religion to perform work connected with the
carrying on by such corporation, association, educational institution, or
society of its activities.
(2) Religious tenets requirement
Under this subchapter, a religious organization may require that all applicants
and employees conform to the religious tenets of such organization.
(d) List of infectious and communicable diseases
(1) In general
The Secretary of Health and Human Services, not later than 6 months after
July 26, 1990, shall-
(A) review all infectious and communicable diseases which may be transmitted
through handling the food supply;
(B) publish a list of infectious and communicable diseases which are transmitted
through handling the food supply;
(C) publish the methods by which such diseases are transmitted; and
(D) widely disseminate such information regarding the list of diseases and
their modes of transmissability to the general public.
Such list shall be updated annually.
(2) Applications
In any case in which an individual has an infectious or communicable disease
that is transmitted to others through the handling of food, that is included
on the list developed by the Secretary of Health and Human Services under
paragraph (1), and which cannot be eliminated by reasonable accommodation,
a covered entity may refuse to assign or continue to assign such individual
to a job involving food handling.
(3) Construction
Nothing in this chapter shall be construed to preempt, modify, or amend
any State, county, or local law, ordinance, or regulation applicable to
food handling which is designed to protect the public health from individuals
who pose a significant risk to the health or safety of others, which cannot
be eliminated by reasonable accommodation, pursuant to the list of infectious
or communicable diseases and the modes of transmissability1 published by
the Secretary of Health and Human Services.
1 So in original. Probably should be "transmissibility."
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