Page:United States Statutes at Large Volume 105 Part 2.djvu/123

 PUBLIC LAW 102-166—NOV. 21, 1991 105 STAT. 1075 "(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of, intentional discrimination under this title. "(3) Notwithstanding any other provision of this title, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act or any other provision of Federal law, shall be considered an unlawful employment practice under this title only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.". (b) No statements other than the interpretive memorandum 42 USC 1981 appearing at Vol. 137 Congressional Record S 15276 (dsiily ed. Oct. ' ^* ' 25, 1991) shall be considered legislative history of, or relied upon in any way as legislative history in construing or applying, any provision of this Act that relates to Wards Cove—Business necessity/ cumulation/alternative business practice. SEC. 106. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST SCORES. Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as amended by section 105) is ftirther amended by adding at the end the following new subsection: "(1) It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employ- ment related tests on the basis of race, color, religion, sex, or national origin.". SEC. 107. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CONSID- ERATION OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES. (a) IN GENERAL.— Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as amended by sections 105 and 106) is further amended by adding at the end the following new subsection: "(m) Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.". Oa) ENFORCEMENT PROVISIONS.— Section 706(g) of such Act (42 U.S.C. 2000e-5(g)) is amended— (1) by designating the first through third sentences as paragraph (1); (2) by designating the fourth sentence as paragraph (2)(A) and indenting accordingly; and (3) by adding at the end the following new subparagraph: "(B) On a claim in which an individual proves a violation under section 703(m) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court— "(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs dem-

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