If you haven’t heard about the Civil Rights Act of 2008, don’t panic. It’s not law–yet. However, in January of this year, Senator Clinton introduced this legislation, together with Senator Edward Kennedy and Congressman John Lewis. This proposed legislation contains sweeping employment law reform. Regardless of the composition of Congress after the November election, it’s hard to believe that this legislation would pass in its entirety. However, Senator Clinton supports the legislation in its entirety, and a look at it gives you some idea of where she stands on important employment issues.

In its present form, the Civil Rights Act of 2008 would:

–Eliminate the 1991 Civil Rights Act damage caps under Title VII (which prohibits discrimination of the basis of race, color, sex, religion, and national origin) and the Americans with Disabilities Act. Currently, the damage caps are $50,000 for an employer with 15 to 100 employees; $100,000 for an employer with 101 to 200 employees; $200,000 for an employer with 201 to 500 employees; and $500,000 for an employer with 500 employees or more. So, if the proposed law were passed, the sky would be the limit.

–Amend the Equal Pay Act (a law that prohibits gender discrimination regarding pay) to make it more difficult for employers to use the “bona fide factor other than sex” defense (for more on this defense, click here).

–Add compensatory and punitive damages to the Fair Labor Standards Act (wage and hour) so that an employee can recover those damages in addition to back pay (which can be doubled if a willful violation is found). Wage and hour lawsuits have become some of the most expensive and problematic cases going for employers. Employer exposure would obviously be ramped up with this proposed law, making it possible for employees to recover back pay, have that amount doubled, and then recover compensatory and punitive damages as icing on the cake.

–Amend the Federal Arbitration Act to prohibit clauses requiring arbitration of federal constitutional or statutory claims, unless an employee knowingly and voluntarily consents to this clause after a dispute has arisen or as part of a collective bargaining agreement. This means that alternative dispute resolution programs would bite the dust. You could no longer have a provision in your employment application saying the applicant agrees that if employed, all disputes would be subject to an ADR program an employer has instituted to avoid litigation. It’s highly unlikely that an employee is going to sign this kind of agreement after a dispute has arisen, so it’s off to court we go. The part of this section on collective bargaining agreements is of no significance, since this is what is already in collective bargaining agreements.

–Make it easier for employees to recover expenses (like expert witness fees) even if they aren’t the prevailing party in a lawsuit in all respects.

–Give the National Labor Relations Board authority to award backpay to undocumented employees. This also has, of course, implications for where Senator Clinton stands on immigration issues.

–Provide individuals the right to sue federally-funded programs under Title VI, Title IX, the Rehabilitation Act of 1973, and the Americans with Disabilities Act.

–Require disparate impact claims (in other words, not intentional discrimination but discrimination that’s the effect of policies or practices–or what I call the difference between intentional and unintentional discrimination) to be analyzed the same way Title VII claims are analyzed. Cutting to the chase, this means that class actions under the ADEA would be permissible. As discussed previously on this blog, age discrimination cases are likely to be overwhelming during the next decade because of all the boomers getting into their 60’s. This proposed legislation could very well cause a tsunami.

–Condition states’ receipts of federal funds on states’ waiver of sovereign immunity against individual claims for monetary damages under the ADEA, the FLSA, and the Uniformed Services Employment and Reemployment Rights Act. This would reverse U.S. Supreme Court decisions that have barred these lawsuits against state governments.

To be bluntly selfish, this would amount to the Labor & Employment Lawyers Permanent Employment Act. If even half of this proposal passes, I’ll have plenty to do for the remainder of my life. Human resources professionals will also have plenty to do, and employers will have a whole new set of headaches.