I

104TH CONGRESS

1ST SESSION H. R. 2133

To amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 to improve the effectiveness of administrative review of employment discriminations claims made by Federal

employees; and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 27, 1995

Mr. MARTINEZ (for himself, Ms. NORTON, Mr. CLAY, Mr. FRANK of Massachusetts, Mr. MINETA, Mr. WYNN, Mr. RUSH, and Mr. JACOBS) introduced the following bill; which was referred to the Committee on Government Reform and Oversight, and in addition to the Committee on Economic and Educational Opportunities, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions

as fall within the jurisdiction of the committee concerned

A BILL

To amend title VII of the Civil Rights Act of 1964 and

the Age Discrimination in Employment Act of 1967 to

improve the effectiveness of administrative review of employment discriminations claims made by Federal employees; and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Federal Employee

5 Fairness Act of 1995’’.
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1 SEC. 2. AMENDMENTS RELATING TO ADMINISTRATIVE DE2 TERMINATION OF FEDERAL EMPLOYEE DIS3 CRIMINATION CLAIMS.

4 (a) DEFINITIONS.—Section 701 of the Civil Rights

5 Act of 1964 (42 U.S.C. 2000e) is amended—

6 (1) in paragraph (f) by striking ‘‘The term’’

7 and inserting ‘‘Except when it appears as part of the

8 term ‘Federal employee’, the term’’, and

9 (2) by adding at the end the following:

10 ‘‘(o) The term ‘administrative judge’ includes an ad11 ministrative law judge appointed under section 3105 of

12 title 5 of the United States Code.

13 ‘‘(p) The term ‘Commission’ means the Equal Em14 ployment Opportunity Commission.

15 ‘‘(q) The term ‘entity of the Federal Government’

16 means an entity to which section 717(a) applies, except

17 that such term does not include the Library of Congress.

18 ‘‘(r) The term ‘Federal employee’ means an individ19 ual employed by, or who applies for employment with, an

20 entity of the Federal Government.

21 ‘‘(s) The term ‘Federal employment’ means employ22 ment by an entity of the Federal Government.

23 ‘‘(t) The terms ‘government’, ‘government agency’,

24 and ‘political subdivision’ do not include an entity of the

25 Federal Government.’’.
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1 (b) EEOC DETERMINATION OF FEDERAL EMPLOY2 MENT DISCRIMINATION CLAIMS.—Section 717 of the Civil

3 Rights Act of 1964 (42 U.S.C. 2000e–16) is amended—

4 (1) in subsection (b)—

5 (A) by inserting ‘‘(1)’’ after ‘‘(b)’’,

6 (B) in the second sentence—

7 (i) by redesignating paragraphs (1),

8 (2), and (3), as subparagraphs (A), (B),

9 and (C), respectively,

10 (ii) in the subparagraph (B), as so re11 designated, by striking ‘‘and’’ at the end,

12 (iii) in subparagraph (C), as so redes13 ignated, by striking the period at the end

14 and inserting ‘‘; and’’, and

15 (iv) by inserting after subparagraph

16 (C), as so redesignated, the following:

17 ‘‘(D) require each entity of the Federal Govern18 ment—

19 ‘‘(i) to make counseling available to Fed20 eral employees who believe such entity has dis21 criminated against them in violation of this sec22 tion, for the purpose of trying to resolve the

23 matters with respect to which such discrimina24 tion is alleged (Such entity shall assist such em25 ployee to identify the respondent required by
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1 subsection (c)(1) to be named in a complaint al2 leging such violation, shall inform such Federal

3 employee individually of the procedures and

4 deadlines that apply under this section to a

5 claim alleging such discrimination, and shall

6 make such counseling available throughout the

7 administrative process.);

8 ‘‘(ii) to establish a voluntary alternative

9 dispute resolution process to resolve complaints,

10 except that a Federal employee’s decision to

11 forgo such process shall not affect the rights of

12 such employee under this title;

13 ‘‘(iii) not to discourage Federal employees

14 from filing complaints on any matter relating to

15 discrimination in violation of this section;

16 ‘‘(iv) not to require Federal employees to

17 participate in conciliation made available under

18 subsection (c)(1)(A)(ii) unless such entity has

19 an alternative dispute resolution process ap20 proved by the Commission as described in such

21 subsection; and

22 ‘‘(v) not to require Federal employees to

23 participate in a dispute resolution process made

24 available under clause (ii).
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1 ‘‘(2)(A) A Federal employee who believes that an en2 tity of the Federal Government has discriminated against

3 such employee in violation of this section, to whom sub4 section (c)(1)(A)(ii) applies, who has requested such entity

5 to provide the conciliation described in subsection

6 (c)(1)(A)(ii), and who is the subject of, or about to be

7 the subject of, a personnel action to be taken against such

8 employee as a result of expressing that belief or requesting

9 such conciliation may file with the Commission a request

10 for a stay of such personnel action, together with an affi11 davit made by such employee in support of such request.

12 ‘‘(B) Immediately after receiving such request so sup13 ported, the Commission shall appoint an administrative

14 judge to review such request. Subsection (f)(3) shall apply

15 with respect to such review and to the issuance of a stay

16 requested under subparagraph (A).’’.

17 (C) in the third sentence by striking ‘‘The’’

18 and inserting the following:

19 ‘‘(3) The’’,

20 (D) in the fourth sentence by redesignating

21 paragraphs (1) and (2) as subparagraphs (A)

22 and (B), respectively,

23 (E) in the last sentence by striking ‘‘With’’

24 and inserting the following:

25 ‘‘(4) With’’, and
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1 (F) by adding at the end the following:

2 ‘‘(4)(A) Subject to subparagraph (B), an unlawful

3 employment practice of the kind described in section

4 704(a) is established under this section if an employee or

5 applicant for employment demonstrates that his opposing

6 any practice made an unlawful employment practice by

7 this title, his making a charge, testifying, assisting, or par8 ticipating in any manner in an investigation, proceeding,

9 or hearing under this title, or his communicating with the

10 Congress regarding discrimination in violation of this sec11 tion was a contributing factor in an adverse personnel ac12 tion that was taken or is to be taken against such em13 ployee or applicant.

14 ‘‘(B) On a claim in which a Federal employee proves

15 a violation under subparagraph (A) and a respondent

16 demonstrates, on the basis of the evidentiary standard

17 specified in section 1221(e)(2) of title 5 of the United

18 States Code, that the respondent would have take the

19 same personnel action in the absence of the impermissible

20 motivating factor, the court—

21 ‘‘(i) may grant declaratory relief, injunctive re22 lief (except as provided in clause (ii)), and attorney’s

23 fees and costs demonstrated to be directly attrib24 utable only to the pursuit of a claim under subpara25 graph (A); and
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1 ‘‘(ii) shall not award damages or issue an order

2 requiring any admission, reinstatement, hiring, pro3 motion, or payment not described in clause (i).’’,

4 (2) by striking subsection (c),

5 (3) in subsection (d)—

6 (A) by inserting ‘‘(1)’’ after ‘‘(d)’’,

7 (B) by striking ‘‘(k)’’ and inserting ‘‘(j)’’,

8 (C) by striking ‘‘brought hereunder’’ and

9 inserting ‘‘commenced under this section’’, and

10 (D) by adding at the end the following:

11 ‘‘(2) The head of the department, agency, or unit in

12 which discrimination in violation of this section is alleged

13 to have occurred shall be the defendant in a civil action

14 alleging such violation. If a department, unit, or agency

15 is named as the defendant, the court shall freely grant

16 leave to amend the complaint to name the head of such

17 department, agency, or unit.

18 ‘‘(3)(A) In any action or proceeding under this sec19 tion, the court, in its discretion, may allow the prevailing

20 party (other than an entity of the Federal Government)

21 a reasonable attorney’s fee (including expert fees) and

22 costs as a court has authority to award under section

23 706(k), as amended from time to time, and the same inter24 est to compensate for delay in payment as in cases involv25 ing nonpublic parties.
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1 ‘‘(B) If an action brought under this section by or

2 on behalf a Federal employee is found by the court to be

3 unreasonable, groundless, or vexatious, the court, in its

4 discretion, may allow the respondent a reasonable attor5 ney’s fee (including expert fees), costs, and interest as a

6 court has authority to award in an action to a prevailing

7 party under subparagraph (A).’’,

8 (4) by redesignating subsections (d) and (e) as

9 subsections (o) and (p), respectively, and

10 (5) by inserting after subsection (b) the follow11 ing:

12 ‘‘(c)(1)(A) Except as provided in subparagraphs (B),

13 (C), (D), and (E), a complaint filed by or on behalf of

14 a Federal employee or a class of Federal employees and

15 alleging a claim of discrimination arising under this sec16 tion shall name as the respondent, and be filed with, the

17 head of the department, agency, or unit in which such dis18 crimination is alleged to have occurred, or with the Com19 mission—

20 ‘‘(i) not later than 180 days after the alleged

21 discrimination occurs, except as provided in clause

22 (ii); and

23 ‘‘(ii) in the case of a respondent that provides

24 to such employee a voluntary alternative dispute res25 olution process approved by the Commission in ac-
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1 cordance with rules issued by the Commission under

2 section 6(a)(4) of the Federal Employee Fairness

3 Act of 1995, after the expiration of the 20-day pe4 riod beginning on the date the Federal employee

5 specifically named in the complaint (or an individual

6 authorized to represent such Federal employee or

7 both) requests and offers to meet once with an indi8 vidual authorized to represent the respondent in ac9 cordance with subparagraph (B) to engage in the

10 precomplaint conciliation approved under such sec11 tion by the Commission to be provided by the re12 spondent, except that such 20-day period shall be

13 excluded for purposes calculating such 180 days.

14 ‘‘(B) For purposes of subparagraph (A)(ii)—

15 ‘‘(i) conciliation shall occur during the regular

16 working hours of such Federal employee; and

17 ‘‘(ii) an individual may not be authorized to

18 represent the respondent if such individual—

19 ‘‘(I) has or has had any involvement in the

20 circumstances relating to any of such claims; or

21 ‘‘(II) has or has had supervisory authority

22 over such Federal employee.

23 ‘‘(C) If, not later than 180 days (determined under

24 subparagraph (A)) after the alleged discrimination occurs,

25 the complaint is filed—
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1 ‘‘(i) with such department, agency, or unit and

2 fails to name the head of the department, agency, or

3 unit as the respondent; or

4 ‘‘(ii) except as provided in subparagraph (E),

5 with any other entity of the Federal Government, re6 gardless of the respondent named;

7 the complaint shall be considered to be filed in compliance

8 with subparagraph (A).

9 ‘‘(D) A complaint filed under this section with respect

10 to a claim of discrimination arising under this section shall

11 be dismissed if—

12 ‘‘(i) such claim is a grievance that is subject to

13 section 7121 of title 5, United States Code; and

14 ‘‘(ii) the aggrieved Federal employee has, in the

15 discretion of the Federal employee, exercised the op16 tion under section 7121(d) of such title to raise the

17 matter under the negotiated grievance procedure be18 fore filing the complaint.

19 ‘‘(E) A complaint filed by or on behalf of a Federal

20 employee, or a class of Federal employees, employed by

21 a department, agency, or unit in the intelligence commu22 nity (as defined by Executive Order 12333 or any succes23 sor to such order) and alleging a claim of discrimination

24 arising under this section shall be filed with the depart25 ment, agency, or unit in which such discrimination is al-
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1 leged to have occurred not later than 180 days (deter2 mined under subparagraph (A)) after the alleged discrimi3 nation occurs.

4 ‘‘(2) If the complaint is filed with an entity of the

5 Federal Government other than the department, agency,

6 or unit in which such discrimination is alleged to have oc7 curred, then—

8 ‘‘(A) such entity (other than the Commission)

9 shall transmit the complaint to the Commission, not

10 later than 10 days after receiving the complaint; and

11 ‘‘(B) the Commission shall transmit a copy of

12 the complaint, not later than 10 days after receiving

13 the complaint, to the head of the department, agen14 cy, or unit in which such discrimination is alleged to

15 have occurred (hereinafter in this section referred to

16 as the ‘respondent’).

17 ‘‘(3) Not later than 10 days after the respondent re18 ceives the complaint from a source other than the Com19 mission, the respondent shall transmit to the Commission

20 a copy of the complaint.

21 ‘‘(d) Throughout the period beginning on the date the

22 respondent receives the complaint and ending on the latest

23 date by which all administrative and judicial proceedings

24 available under this section have been concluded with re25 spect to such claim, the respondent shall collect and pre-
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1 serve documents and information (including the com2 plaint) that are relevant to such claim, including the docu3 ments and information that comply with rules issued by

4 the Commission.

5 ‘‘(e)(1) The respondent shall make reasonable efforts

6 to conciliate each claim alleged in the complaint beginning

7 on the date the complaint is filed under subsection (c).

8 After the complaint is filed, the respondent shall promptly

9 inform such Federal employee individually of the proce10 dures and deadlines that apply under this section to a

11 claim alleging such discrimination.

12 ‘‘(2)(A) With respect to such claim, the respondent

13 may enter into a settlement agreement with such Federal

14 employee.

15 ‘‘(B) The entity of the Federal Government with

16 which the complaint is filed under subsection (c) shall im17 mediately give formal written notice to such Federal em18 ployee that such Federal employee may either—

19 ‘‘(i) before the expiration of the 90-day period

20 beginning on the date such Federal employee re21 ceives such notice, file with the Commission—

22 ‘‘(I) a written request for a determination

23 of such claim under subsection (f) by an admin24 istrative judge of the Commission, together

25 with, at the option of such Federal employee, a
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1 request that the administrative judge request a

2 stay described in subsection (f)(3)(A);

3 ‘‘(II) if such claim alleges discrimination in

4 the Commission or alleges an action appealable

5 to the Merit Systems Protection Board, a writ6 ten request electing that a determination of

7 such claim be made under the procedures speci8 fied in either subparagraph (A) or (B) of sec9 tion 7702(a)(2) of title 5, United States Code,

10 or a request described in subclause (I); or

11 ‘‘(III) if such claim alleges a grievance

12 that is subject to section 7121 of title 5, United

13 States Code, but not appealable to the Merit

14 Systems Protection Board, a written request to

15 raise such claim under the administrative and

16 judicial procedures provided in such section

17 7121 or a request described in subclause (I); or

18 ‘‘(ii) in the 90-day period beginning on the date

19 the complaint is filed under subsection (c) or in the

20 90-day period beginning on the date such Federal

21 employee receives such notice (whichever 90-day pe22 riod begins later), commence a civil action in an ap23 propriate district court of the United States for de

24 novo review of such claim.

25 ‘‘(3)(A) Such Federal employee may either—
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1 ‘‘(i) file a written request described in clause (i)

2 of paragraph (2)(B) at any time before the expira3 tion of the 90-day period specified in clause (i) of

4 such paragraph; or

5 ‘‘(ii) commence a civil action described in clause

6 (ii) of such paragraph before the expiration of the

7 applicable 90-day period specified in paragraph

8 (2)(B)(ii).

9 ‘‘(B) If such Federal employee files a written request

10 under subclause (II) or (III) of paragraph (2)(B)(i) and

11 in accordance with subparagraph (A)(i), the Commission

12 shall transmit the complaint, not later than 10 days after

13 the Commission receives the complaint, to the appropriate

14 agency for determination.

15 ‘‘(f)(1) If such Federal employee files a written re16 quest under subsection (e)(2)(B)(i)(I) and in accordance

17 with subsection (e)(3)(A) with the Commission for a deter18 mination under this subsection of a claim with respect to

19 which notice is required by subsection (e)(2), then the

20 Commission shall transmit a copy of such request to the

21 respondent and, not later than 10 days after receiving

22 such request, shall appoint an administrative judge of the

23 Commission to determine such claim. If such request in24 cludes a request for a stay described in paragraph (3)(A),
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1 then the Commission shall appoint an administrative

2 judge immediately after receiving such request.

3 ‘‘(2) Not later than 5 days after receiving a copy of

4 a request under subsection (e)(2)(B)(i), the respondent

5 shall transmit—

6 ‘‘(A) to the Commission if such request is for

7 a determination under this subsection; or

8 ‘‘(B) to the Merit Systems Protection Board if

9 such request is for a determination be made under

10 the procedures specified in section 7702(a)(2)(A) of

11 title 5, United States Code;

12 a copy of all documents and information collected by the

13 respondent under subsection (d) with respect to such

14 claim.

15 ‘‘(3)(A) The administrative judge, in accordance with

16 rules issued by the Commission, may request any member

17 of the Commission to order a stay of any personnel action

18 for 45 days if the administrative judge determines that

19 there are reasonable grounds to believe that the personnel

20 action was taken for discriminatory or retaliatory reasons

21 prohibited under this section.

22 ‘‘(B)(i) Any member of the Commission requested

23 under subparagraph (A) to order a stay shall order such

24 stay unless the member determines that, under the facts
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1 and circumstances involved, such a stay does not comply

2 with such rules or otherwise would not be appropriate.

3 ‘‘(ii) Unless denied under clause (i), any stay re4 quested under subparagraph (A) shall be deemed to be

5 ordered on the third calendar day (excluding Saturdays,

6 Sundays, and legal holidays) after the date of the request.

7 ‘‘(C) If a stay is ordered under subparagraph (B),

8 the member who received the request for such stay may

9 terminate such stay at any time after giving notice, and

10 an opportunity for oral or written comments, to the ag11 grieved Federal employee on whose behalf such stay was

12 ordered.

13 ‘‘(D)(i) The Commission may extend the period of

14 any stay granted under subparagraph (B) for any period

15 that the Commission considers appropriate.

16 ‘‘(ii) Members of the Commission shall allow any en17 tity of the Federal Government that would be subject to

18 a stay, or to the extension of a stay, to comment to such

19 members and the Commission on the request for such stay

20 and on a request for such extension.

21 ‘‘(iii) The respondent shall comply with a stay in ef22 fect under this section.

23 ‘‘(4) The administrative judge shall determine wheth24 er the documents and information received under para25 graph (2) comply with subsection (d) and are complete
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1 and accurate. If the administrative judge finds that the

2 respondent has failed to produce the documents and infor3 mation necessary to comply with such subsection, the ad4 ministrative judge shall, in the absence of good cause

5 shown by the respondent, impose any of the sanctions

6 specified in paragraph (6)(C) and shall require the re7 spondent—

8 ‘‘(A) to obtain any additional documents and

9 information necessary to comply with such sub10 section; and

11 ‘‘(B) to correct any inaccuracy in the docu12 ments and information so received.

13 ‘‘(5)(A) After examining the documents and informa14 tion received under paragraph (4), the administrative

15 judge shall issue an order dismissing—

16 ‘‘(i) any frivolous claim alleged in the com17 plaint;

18 ‘‘(ii) any claim of a Federal employee who fails

19 to comply with subsection (c)(1)(A)(ii) if applicable

20 to such employee; and

21 ‘‘(iii) the complaint if it fails to state a

22 nonfrivolous claim for which relief may be granted

23 under this section.

24 ‘‘(B)(i) If a claim or the complaint is dismissed under

25 subparagraph (A), the administrative judge shall give for-
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1 mal written notice to the aggrieved Federal employee that

2 such Federal employee may, before the expiration of the

3 90-day period beginning on the date such Federal em4 ployee receives such notice—

5 ‘‘(I) file with the Commission a written request

6 for appellate review of such order; or

7 ‘‘(II) commence a civil action in an appropriate

8 district court of the United States for de novo review

9 of such claim or the complaint.

10 ‘‘(ii) Such Federal employee may commence such civil

11 action after the dismissal of such claim or the complaint

12 and before the expiration of the 90-day period specified

13 in clause (i).

14 ‘‘(6)(A)(i) If the complaint is not dismissed under

15 paragraph (5)(A), the administrative judge shall make a

16 determination, after an opportunity for a hearing, on the

17 merits of each claim that is not dismissed under such

18 paragraph. The administrative judge shall make a deter19 mination on the merits of any other nonfrivolous claim

20 under this section, and on the merits of any action such

21 Federal employee may appeal to the Merit Systems Pro22 tection Board, reasonably expected to arise from the facts

23 on which the complaint is based.

24 ‘‘(ii) On the request of the aggrieved Federal em25 ployee, the administrative judge shall—
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1 ‘‘(I) determine whether the administrative pro2 ceeding with respect to such claim may be main3 tained as a class proceeding; and

4 ‘‘(II) if the administrative proceeding may be so

5 maintained, shall describe those whom the adminis6 trative judge finds to be members of such class.

7 ‘‘(B) With respect to such claim, a party may conduct

8 discovery by such means as may be available in a civil ac9 tion to the extent deemed appropriate by the administra10 tive judge.

11 ‘‘(C) If the aggrieved Federal employee or the re12 spondent fails without good cause to respond fully and in

13 a timely fashion to a request made or approved by the

14 administrative judge for information or the attendance of

15 a witness, and if such information or such witness is solely

16 in the control of the party who so fails to respond, then

17 the administrative judge shall—

18 ‘‘(i) draw an adverse inference that the re19 quested information, or the testimony of the re20 quested witness, would have reflected unfavorably on

21 the party who so fails to respond;

22 ‘‘(ii) consider the matters to which such infor23 mation or such testimony pertains to be established

24 in favor of the opposing party;
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1 ‘‘(iii) exclude other evidence offered by the

2 party who so fails to respond;

3 ‘‘(iv) grant full or partial relief, including—

4 ‘‘(I) relief of the kinds described in section

5 706(g); and

6 ‘‘(II) compensatory damages for unlawful

7 intentional discrimination (not an employment

8 practice that is unlawful because of its dispar9 ate impact) prohibited under this section, sub10 ject to the limitations specified in section

11 1977A(b)(3) of the Revised Statutes of the

12 United States;

13 to the aggrieved Federal employee; or

14 ‘‘(v) take such other action the administrative

15 judge considers to be appropriate.

16 ‘‘(D) In a hearing on a claim, the administrative

17 judge shall—

18 ‘‘(i) limit attendance to persons who have a di19 rect connection with such claim;

20 ‘‘(ii) bring out pertinent facts and relevant em21 ployment practices and policies, and ensure that the

22 record is developed for a full and fair determination

23 of such claim, but exclude irrelevant or unduly rep24 etitious information;
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1 ‘‘(iii) permit all parties to examine and cross

2 examine witnesses; and

3 ‘‘(iv) require that testimony be given under

4 oath or affirmation.

5 ‘‘(E) At the request of any party or the administra6 tive judge, a transcript of all or part of such hearing shall

7 be provided in a timely manner and simultaneously to the

8 parties and the Commission. The respondent shall bear

9 the cost of providing such transcript.

10 ‘‘(F) The administrative judge shall have authority—

11 ‘‘(i) to administer oaths and affirmations;

12 ‘‘(ii) to regulate the course of hearings;

13 ‘‘(iii) to rule on offers of proof and receive evi14 dence;

15 ‘‘(iv) to issue subpoenas to compel—

16 ‘‘(I) the production of documents or infor17 mation by the entity of the Federal Government

18 in which discrimination is alleged to have oc19 curred; and

20 ‘‘(II) the attendance of witnesses who are

21 Federal officers or employees of such entity;

22 ‘‘(v) to request the Commission to issue subpoe23 nas to compel the production of documents or infor24 mation by any other entity of the Federal Govern25 ment or by the aggrieved Federal employee, and the
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1 attendance of other witnesses, except that any wit2 ness who is not an officer or employee of an entity

3 of the Federal Government may be compelled only to

4 attend any place—

5 ‘‘(I) less than 100 miles from the place

6 where such witness resides, is employed, trans7 acts business in person, or is served; or

8 ‘‘(II) at such other convenient place as is

9 fixed by the administrative judge;

10 and shall be paid fees and allowances, by the party

11 that requests the subpoena, to the same extent that

12 fees and allowances are paid to witnesses under

13 chapter 119 of title 28, United States Code, as

14 amended from time to time;

15 ‘‘(vi) to exclude witnesses whose testimony

16 would be unduly repetitious;

17 ‘‘(vii) to exclude any person from a hearing for

18 contumacious conduct, or for misbehavior, that ob19 structs such hearing; and

20 ‘‘(viii) to grant full or partial relief, including—

21 ‘‘(I) relief of the kinds described in section

22 706(g); and

23 ‘‘(II) compensatory damages for unlawful

24 intentional discrimination (not an employment

25 practice that is unlawful because of its dispar-
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1 ate impact) prohibited under this section, sub2 ject to the limitations specified in section

3 1977A(b)(3) of the Revised Statutes of the

4 United States.

5 ‘‘(G) The administrative judge and the Commission

6 shall have authority to award to a prevailing party (other

7 than an entity of the Federal Government)—

8 ‘‘(i) a reasonable attorney’s fee (including ex9 pert fees) and costs as a court has authority to

10 award under section 706(k), as amended from time

11 to time; and

12 ‘‘(ii) the same interest to compensate for delay

13 in payment as in cases involving nonpublic parties.

14 ‘‘(H) The Commission shall have authority to issue

15 subpoenas described in subparagraph (F)(v).

16 ‘‘(I) In the case of contumacy or failure to obey a

17 subpoena issued under subparagraph (F) or (H), the Unit18 ed States district court for the judicial district in which

19 the person to whom the subpoena is addressed resides or

20 is served may issue an order requiring such person to ap21 pear at any designated place to testify or to produce docu22 mentary or other evidence.

23 ‘‘(7)(A) Except as provided in subparagraph (B), the

24 administrative judge shall issue a written order making
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1 the determination required by paragraph (6)(A), and

2 granting or denying relief, not later than—

3 ‘‘(i)(I) 300 days after the complaint containing

4 such claim is filed by or on behalf of a Federal em5 ployee if such complaint is filed in the 1-year period

6 beginning on the effective date of this subsection.

7 ‘‘(II) except as provided in subclause (I), 210

8 days after the complaint containing such claim is

9 filed by or on behalf of a Federal employee; or

10 ‘‘(ii) 2 years and 30 days after the complaint

11 containing such claim is filed on behalf of a class of

12 Federal employees;

13 except that these time periods shall be extended for 30

14 days if the administrative judge certifies, in writing, that

15 such 30-day period is needed to secure additional docu16 ments or information from the respondent to have a com17 plete administrative record.

18 ‘‘(B) The administrative judge shall issue such order

19 not later than 30 days after the applicable period specified

20 in subparagraph (A) if the administrative judge certifies

21 in writing, before the expiration of such applicable pe22 riod—

23 ‘‘(i) that such 30-day period is necessary to

24 make such determination; and
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1 ‘‘(ii) the particular and unusual circumstances

2 that prevent the administrative judge from comply3 ing with the applicable period specified in subpara4 graph (A).

5 ‘‘(C) The administrative judge may apply to the Com6 mission to extend any period applicable under subpara7 graph (A) or (B) if manifest injustice would occur in the

8 absence of such an extension.

9 ‘‘(D) The Commission—

10 ‘‘(i) may not grant such extension; or

11 ‘‘(ii) shall terminate such extension;

12 if the aggrieved Federal employee shows that such exten13 sion would prejudice a claim of, or otherwise harm, such

14 Federal employee.

15 ‘‘(E) In addition to findings of fact and conclusions

16 of law, such order shall include formal written notice to

17 each party that before the expiration of the 90-day period

18 beginning on the date such party receives such order—

19 ‘‘(i) the aggrieved Federal employee may com20 mence a civil action in an appropriate district court

21 of the United States for de novo review of a claim

22 with respect to which such order is issued; and

23 ‘‘(ii) unless and until a civil action is com24 menced in such 90-day period under clause (i) with

25 respect to such claim, any party may file with the
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1 Commission a written request for appellate review of

2 the determination made, and relief granted or de3 nied, in such order with respect to such claim.

4 ‘‘(F) Such Federal employee may commence such

5 civil action at any time before the expiration of the 90-

6 day period beginning on the date such Federal employee

7 receives an order described in subparagraph (A).

8 ‘‘(G) If such order applies to more than one claim

9 and if—

10 ‘‘(i) such employee does not commence a civil

11 action in accordance with subparagraph (E)(i); and

12 ‘‘(ii) neither party requests appellate review in

13 accordance with subparagraph (E)(ii);

14 with respect to a particular claim, then the determination

15 made, and relief granted, in such order with respect to

16 such particular claim shall be enforceable immediately.

17 ‘‘(g)(1) If a party files timely a written request in

18 accordance with subsection (f)(5)(B)(i) or (f)(7)(E)(ii)

19 with the Commission for appellate review of the deter20 mination made, and relief granted or denied, with respect

21 to a claim in such order, then the Commission shall imme22 diately transmit a copy of such request to the other parties

23 involved and to the administrative judge who issued such

24 order.
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•HR 2133 IH

1 ‘‘(2) Not later than 7 days after receiving a copy of

2 such request, the administrative judge shall transmit to

3 the Commission the record of the proceeding on which

4 such order is based, including all documents and informa5 tion collected by the respondent under subsection (d).

6 ‘‘(3)(A) After allowing the parties to file briefs with

7 respect to such determination, the Commission shall issue

8 a written order with respect to such claim affirming, re9 versing, or modifying the applicable provisions of the order

10 of the administrative judge not later than—

11 ‘‘(i) 150 days after receiving such request; or

12 ‘‘(ii) 30 days after such 150-day period if the

13 Commission certifies in writing, before the expiration

14 of such 150-day period—

15 ‘‘(I) that such 30-day period is necessary

16 to review such claim; and

17 ‘‘(II) the particular and unusual cir18 cumstances that prevent the Commission from

19 complying with clause (i).

20 ‘‘(B) The Commission shall affirm the determination

21 made, and relief granted or denied, by the administrative

22 judge with respect to such claim if such determination and

23 such relief are supported by a preponderance of the evi24 dence in the record taken as a whole and are otherwise

25 in accordance with law. The Commission shall accord sub-
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1 stantial deference to the findings of fact of the administra2 tive judge.

3 ‘‘(C) In addition to findings of fact and conclusions

4 of law, the Commission shall include in its order formal

5 written notice to the aggrieved Federal employee that, be6 fore the expiration of the 90-day period beginning on the

7 date such Federal employee receives such order, such Fed8 eral employee may commence a civil action in an appro9 priate district court of the United States for de novo re10 view of a claim with respect to which such order is issued.

11 ‘‘(D) Such Federal employee may commence such

12 civil action at any time before the expiration of the 90-

13 day period beginning on the date such Federal employee

14 receives an order described in subparagraph (A).

15 ‘‘(h)(1) In addition to the periods authorized by sub16 sections (f)(7)(F) and (g)(3)(D)—

17 ‘‘(A) during the period beginning 20 days after

18 the expiration of the applicable period specified in

19 subparagraph (A) or (B) of subsection (f)(7) and

20 ending on the date the administrative judge issues

21 under such subsection an order with respect to such

22 claim; and

23 ‘‘(B) during the period beginning 20 days after

24 the expiration of the applicable period specified in

25 subsection (g)(3)(A) and ending on the date the
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1 Commission issues under such subsection an order

2 with respect to such claim;

3 such Federal employee may commence a civil action in an

4 appropriate district court of the United States for de novo

5 review of such claim.

6 ‘‘(2) Whenever a civil action is commenced timely and

7 otherwise in accordance with this section to determine the

8 merits of a claim arising under this section, the jurisdic9 tion of the administrative judge or the Commission (as

10 the case may be) to determine the merits of such claim

11 shall terminate.

12 ‘‘(i) A Federal employee who prevails on a claim aris13 ing under this section may bring a civil action in an appro14 priate district court of the United States to enforce—

15 ‘‘(1) the provisions of a settlement agreement

16 applicable to such claim;

17 ‘‘(2) the provisions of an order issued by an ad18 ministrative judge under subsection (f)(7)(A) appli19 cable to such claim if—

20 ‘‘(A) a request is not filed timely under

21 subsection (g)(1) for appellate review by the

22 Commission; and

23 ‘‘(B) a civil action is not commenced time24 ly under subsection (g)(3)(D) for de novo re25 view;
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•HR 2133 IH

1 of such claim; or

2 ‘‘(3) the provisions of an order issued by the

3 Commission under subsection (g)(3)(A) applicable to

4 such claim if a civil action is not commenced timely

5 under subsection (g)(3)(D) for de novo review of

6 such claim.

7 ‘‘(j) Any amount awarded under this section (includ8 ing fees, costs, and interest awarded under subsection

9 (f)(6)(G)), or under title 28 of the United States Code,

10 with respect to a violation of this section, shall be paid

11 by the entity of the Federal Government that violated such

12 subsection from any funds made available to such entity

13 by appropriation or otherwise.

14 ‘‘(k)(1) An entity of the Federal Government against

15 which a claim of discrimination is alleged in a complaint

16 filed in an administrative proceeding or a civil action

17 under this section shall grant the aggrieved Federal em18 ployee paid administrative leave if otherwise on duty, for

19 time expended in accordance with rules issued by the Com20 mission to carry out this section, except that such leave

21 shall include reasonable time for—

22 ‘‘(A) preparation of a complaint based on such

23 allegation;

24 ‘‘(B) conciliation required by subsection

25 (c)(1)(A)(ii);
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•HR 2133 IH

1 ‘‘(C) responding to requests made by the Com2 mission (including administrative judges) or the re3 spondent for information; and

4 ‘‘(D) attendance at such proceeding or action.

5 ‘‘(2) Except as provided in paragraph (1), an entity

6 of the Federal Government shall grant a Federal em7 ployee—

8 ‘‘(A) paid administrative leave to participate for

9 the benefit of a claimant in an administrative pro10 ceeding or civil action commenced under this section

11 to the same extent and under such circumstances as

12 such entity would grant an employee official duty or

13 paid administrative leave to participate for the bene14 fit of a Federal entity in an administrative proceed15 ing or civil action commenced under this section

16 against such entity; and

17 ‘‘(B) other leave to participate for the benefit of

18 a claimant in an administrative proceeding or civil

19 action commenced under this section to the same ex20 tent and under such circumstances as such entity

21 would grant an employee other leave to participate

22 for the benefit of a Federal entity in an administra23 tive proceeding or civil action commenced under this

24 section against such entity.
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•HR 2133 IH

1 ‘‘(l)(1) In enforcing compliance with an order issued

2 by an administrative judge or the Commission, the Com3 mission may make a written determination that—

4 ‘‘(A) any officer or employee of the agency, de5 partment, or unit charged with complying with such

6 order; or

7 ‘‘(B) any officer or employee of the United

8 States determined to be responsible for the failure of

9 the agency, department, or unit to comply with such

10 order;

11 who is not an officer or employee appointed by the Presi12 dent by and with the advice and consent of the Senate,

13 shall not be entitled to receive payment for service as an

14 officer or employee for the period during which such order

15 has not been complied with. The Commission shall certify

16 to the Comptroller General of the United States that a

17 determination under this paragraph has been made, and

18 no payment shall be made out of the Treasury of the Unit19 ed States for any service specified in such determination.

20 ‘‘(2) In enforcing compliance with such order with re21 spect to any officer or employee described in subparagraph

22 (A) or (B) of paragraph (1) who is an officer or employee

23 appointed by the President by and with the advice and

24 consent of the Senate, the Commission shall notify the
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1 President that such officer or employee has failed to obey

2 such order.

3 ‘‘(m) If with respect to the merits of a claim of inten4 tional discrimination (other than an employment practice

5 that is unlawful because of its disparate impact) prohib6 ited by this section, a Federal employee prevails in a pro7 ceeding under subsection (f) or a civil action commenced

8 under this section, then not later than 15 days after issu9 ing an order finding liability under this section, the admin10 istrative judge or the district court involved shall transmit

11 to the Office of Special Counsel a copy of such order.

12 ‘‘(n) This section, as in effect immediately before the

13 effective date of the Federal Employee Fairness Act of

14 1995, shall apply with respect to employment in the Li15 brary of Congress.’’.

16 SEC. 3. AMENDMENTS TO THE AGE DISCRIMINATION IN EM17 PLOYMENT ACT AND THE REHABILITATION

18 ACT OF 1973.

19 (a) ENFORCEMENT BY EEOC.—(1) Section 15 of the

20 Age Discrimination in Employment Act of 1967 (29

21 U.S.C. 633a) is amended—

22 (A) by striking subsections (c) and (d),

23 (B) by inserting after subsection (b) the follow24 ing:
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•HR 2133 IH

1 ‘‘(c)(1)(A) Except as provided in subparagraph (B),

2 any individual aggrieved by a violation of subsection (a)

3 of this section may file a complaint with the Commission

4 in accordance with section 717 of the Civil Rights Act of

5 1964.

6 ‘‘(B) Subsections (c) and (d) of this section, as in

7 effect immediately before the effective date of the Federal

8 Employee Fairness Act of 1995, shall apply with respect

9 to employment in the Library of Congress.

10 ‘‘(2) Except as provided in paragraph (1)(B) and

11 subsection (d), such section 717 shall apply to a violation

12 alleged in a complaint filed under paragraph (1) in the

13 same manner as such section applies to a claim arising

14 under section 717 of such Act.

15 ‘‘(d)(1) If an individual aggrieved by a violation of

16 this section does not file a complaint under subsection

17 (c)(1), such individual may commence a civil action—

18 ‘‘(A) not less than 30 days after filing with the

19 Commission a notice of intent to commence such ac20 tion; and

21 ‘‘(B) not more than 2 years after the alleged

22 violation of this section occurs;

23 in an appropriate district court of the United States for

24 de novo review of such violation.
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•HR 2133 IH

1 ‘‘(2) On receiving such notice, the Commission

2 shall—

3 ‘‘(A) promptly notify all persons named in such

4 notice as prospective defendants in such action; and

5 ‘‘(B) take any appropriate action to ensure the

6 elimination of any unlawful practice.

7 ‘‘(3) Section 717(o) of the Civil Rights Act of 1964

8 (42 U.S.C. 2000e–16(o)) shall apply to civil actions com9 menced under this subsection in the same manner as such

10 section applies to civil actions commenced under section

11 717 of the Civil Rights Act of 1964.’’,

12 (C) in subsection (f)—

13 (i) by inserting ‘‘(1)’’ after ‘‘(f)’’,

14 (ii) by striking ‘‘section 12(b)’’ and insert15 ing ‘‘sections 12(b) and 4(d)’’, and

16 (iii) by adding at the end the following:

17 ‘‘(2)(A) Subject to subparagraph (B), an unlawful

18 personnel action of the kind described in section 4(d) is

19 established under subsection (a) if an employee or appli20 cant for employment demonstrates that his opposing any

21 practice made an unlawful employment practice by sub22 section (a), his making a charge, testifying, assisting, or

23 participating in any manner in an investigation, proceed24 ing, or hearing under this section, or his communicating

25 with the Congress regarding discrimination in violation of
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•HR 2133 IH

1 subsection (a) was a contributing factor in an adverse per2 sonnel action that was taken or is to be taken against such

3 employee or applicant.

4 ‘‘(B) On a claim in which a Federal employee proves

5 a violation under subparagraph (A) and a respondent

6 demonstrates, on the basis of the evidentiary standard

7 specified in section 1221(e)(2) of title 5 of the United

8 States Code, that the respondent would have taken the

9 same personnel action in the absence of the impermissible

10 motivating factor, the court—

11 ‘‘(i) may grant declaratory relief, injunctive re12 lief (except as provided in clause (ii)), and attorney’s

13 fees and costs demonstrated to be directly attrib14 utable only to the pursuit of a claim under subpara15 graph (A); and

16 ‘‘(ii) shall not award damages or issue an order

17 requiring any admission, reinstatement, hiring, pro18 motion, or payment not described in clause (i).’’,

19 (2) Section 505 of the Rehabilitation Act of 1973 (29

20 U.S.C. 794a) is amended—

21 (A) in subsection (a)(1)—

22 (i) by inserting ‘‘(A)’’ after ‘‘(a)(1)’’,

23 (ii) by striking ‘‘706(k)’’ and inserting

24 ‘‘706(j)’’,
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•HR 2133 IH

1 (iii) by striking ‘‘through (k)’’ and insert2 ing ‘‘through (j)’’, and

3 (iv) by adding at the end the following:

4 ‘‘(B) The first sentence of this paragraph, as in effect

5 immediately before the effective date of the Federal Em6 ployee Fairness Act of 1995, shall apply with respect to

7 employment in the Library of Congress.’’, and

8 (B) in subsection (b) by striking ‘‘In’’ and in9 serting ‘‘Except as provided in subsection (a)(1),

10 in’’.

11 (b) OPPORTUNITY TO COMMENCE CIVIL ACTION.—

12 If a complaint filed under section 15 of the Age Discrimi13 nation in Employment Act of 1967 (29 U.S.C. 633a), or

14 section 501 of the Rehabilitation Act of 1973 (29 U.S.C.

15 791)), with the Equal Employment Opportunity Commis16 sion is pending in the period beginning on the date of the

17 enactment of this Act and ending on December 31, 1996,

18 the individual who filed such complaint may commence a

19 civil action under such section not later than June 30,

20 1997.

21 SEC. 4. AMENDMENTS TO TITLE 5 OF THE UNITED STATES

22 CODE.

23 (a) GRIEVANCE PROCEDURES.—Section 7121 of title

24 5, United States Code, is amended—
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•HR 2133 IH

1 (1) in subsection (a)(1) by inserting ‘‘adminis2 trative’’ after ‘‘exclusive’’, and

3 (2) in subsection (d)—

4 (A) by inserting ‘‘(1)’’ after ‘‘(d)’’,

5 (B) in the first sentence by inserting ‘‘, in

6 the discretion of the aggrieved employee,’’ after

7 ‘‘may’’, and

8 (C) in the last sentence by striking ‘‘Selec9 tion’’ and all that follows through ‘‘any other’’,

10 and inserting the following:

11 ‘‘(2) An employee may commence, not later than 120

12 days after a final decision, a civil action in an appropriate

13 district court of the United States for de novo review of

14 a’’.

15 (b) ACTIONS INVOLVING DISCRIMINATION.—Section

16 7702 of title 5, United States Code, is amended to read

17 as follows:

18 ‘‘§ 7702. Actions involving discrimination

19 ‘‘(a)(1) Notwithstanding any other provision of law,

20 in the case of any employee or applicant for employment

21 who—

22 ‘‘(A) is affected by—

23 ‘‘(i) an action which the employee or appli24 cant may appeal to the Merit Systems Protec25 tion Board, or
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•HR 2133 IH

1 ‘‘(ii) an action, not described in clause

2 (i)—

3 ‘‘(I) on the part the Equal Employ4 ment Opportunity Commission, and

5 ‘‘(II) with respect to which the em6 ployee or applicant makes an election

7 under section 717(e)(2)(B)(i)(II) of the

8 Civil Rights Act of 1964, and

9 ‘‘(B) alleges that a basis for the action was dis10 crimination prohibited by—

11 ‘‘(i) section 717 of the Civil Rights Act of

12 1964 (42 U.S.C. 2000a–16),

13 ‘‘(ii) section 6(d) of the Fair Labor Stand14 ards Act of 1938 (29 U.S.C. 206(d)),

15 ‘‘(iii) section 501 of the Rehabilitation Act

16 of 1973 (29 U.S.C. 791),

17 ‘‘(iv) sections 12 and 15 of the Age Dis18 crimination in Employment Act of 1967 (29

19 U.S.C. 631, 633a), or

20 ‘‘(v) any rule, regulation, or policy directive

21 prescribed under any provision of law described

22 in clauses (i) through (iv) of this subparagraph,

23 the employee or applicant may raise the action as provided

24 in paragraph (2).
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1 ‘‘(2) For purposes of paragraph (1), the employee

2 shall raise the action by filing a complaint in accordance

3 with section 717 of the Civil Rights Act of 1964 and shall

4 make a request described in section 717(e)(2)(B)(i) select5 ing the procedures specified in one of the following sub6 paragraphs:

7 ‘‘(A) The administrative and judicial procedures

8 provided under sections 7701 and 7703.

9 ‘‘(B) The administrative and judicial procedures

10 provided under section 7121.

11 ‘‘(C) The administrative and judicial procedures

12 provided under section 717 of the Civil Rights Act

13 of 1964.

14 ‘‘(3) The agency (including the Board and the Equal

15 Employment Opportunity Commission) that carries out

16 such procedures shall apply the substantive law that is ap17 plied by the agency that administers the particular law

18 referred to in subsection (a)(1) that prohibits the conduct

19 alleged to be the basis of the action referred to in sub20 section (a)(1)(A).

21 ‘‘(b) If—

22 ‘‘(1) an employee elects the procedures specified

23 in subsection (a)(2)(C), and

24 ‘‘(2) the Equal Employment Opportunity Com25 mission dismisses under section 717(f)(5)(A) of the
41

•HR 2133 IH

1 Civil Rights Act of 1964 a claim that is based on

2 the action raised by the employee,

3 then the employee shall have 20 days in which to raise

4 the action under the procedures specified in subparagraph

5 (A) or (B) of subsection (a)(2), except that no allegation

6 of a kind described in subsection (a)(1)(B) may be raised

7 under this subsection.

8 ‘‘(c) If at any time after the 120th day following the

9 receipt under section 717(e)(3)(B) of the Civil Rights Act

10 of 1964 of a complaint as a result of an election made

11 under section 717(e)(2)(B)(i) of the Civil Rights Act of

12 1964 to raise an action under the procedures specified in

13 subsection (a)(2)(A) there is no judicially reviewable ac14 tion, an employee shall be entitled to file, not later than

15 240 days after making such election, a civil action in an

16 appropriate district court of the United States for de novo

17 review of the action raised under subsection (a).

18 ‘‘(d) Nothing in this section shall be construed to af19 fect the right to trial de novo under any provision of law

20 described in subsection (a)(1) after a judicially reviewable

21 action.’’.

22 (c) DISCIPLINARY ACTION.—(1) Section 1214 of title

23 5, United States Code, is amended by adding at the end

24 the following:
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•HR 2133 IH

1 ‘‘(g)(1) Whenever the Office of Special Counsel re2 ceives any copy of an order, in accordance with section

3 717(m) of the Civil Rights Act of 1964, with respect to

4 a claim arising under section 717 of the Civil Rights Act

5 of 1964, section 15(a) of the Age Discrimination in Em6 ployment Act of 1967, or section 501 of the Rehabilitation

7 Act of 1973, the Special Counsel shall investigate the mat8 ter to the extent necessary to determine whether there are

9 reasonable grounds to believe that a prohibited personnel

10 practice described in section 2302(b)(1) has occurred and,

11 if so, shall seek the appropriate disciplinary action under

12 section 1215.

13 ‘‘(2) A determination under this subsection shall be

14 made not later than 180 days after the appropriate date

15 under paragraph (3) for the last applicable event described

16 in such paragraph.

17 ‘‘(3)(A) With respect to a claim—

18 ‘‘(i) to which an order issued by an administra19 tive judge of the Equal Employment Opportunity

20 Commission applies, and

21 ‘‘(ii) with respect to which the aggrieved em22 ployee neither—

23 ‘‘(I) commences a civil action in accord24 ance with section 717(f)(7)(E)(i) of the Civil

25 Rights Act of 1964, nor
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•HR 2133 IH

1 ‘‘(II) requests appellate review in accord2 ance with section 717(f)(7)(E)(ii) of the Civil

3 Rights Act of 1964,

4 the appropriate date is the date on which the Office of

5 Special Counsel receives a copy of an order (referred to

6 in paragraph (1)) from the administrative judge.

7 ‘‘(B) With respect to a claim—

8 ‘‘(i) to which an order issued by the Equal Em9 ployment Opportunity Commission applies, and

10 ‘‘(ii) with respect to which the aggrieved em11 ployee does not commence a civil action in accord12 ance with section 717(g)(3)(D),

13 the appropriate date is the date on which the Office of

14 Special Counsel receives a copy of an order (referred to

15 in paragraph (1)) from the Commission.

16 ‘‘(C) With respect to a claim to which a final judg17 ment issued by a court of the United States applies, the

18 appropriate date is the date on which the Office of Special

19 Counsel receives a copy of an order (referred to in para20 graph (1)) from such court.

21 ‘‘(4) For the purpose of this subsection—

22 ‘‘(A) the term ‘order’ means an order issued on

23 the merits;

24 ‘‘(B) the term ‘judgment’ means a judgment is25 sued on the merits; and
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1 ‘‘(C) the term ‘final judgment’ means a judg2 ment that is either—

3 ‘‘(i) not reviewed by any other court that

4 has authority to review such judgment; or

5 ‘‘(ii) not reviewable by any other court.’’.

6 (2) Section 1218 of title 5, United States Code, is

7 amended—

8 (A) by inserting ‘‘(a)’’ before the first sentence;

9 and

10 (B) by adding at the end the following:

11 ‘‘(b) Any statistical or other information provided

12 under the first sentence of subsection (a) shall specify with

13 respect to each particular prohibited personnel practice,

14 the extent to which such information relates to any matter

15 referred to in section 1214(g), the disposition of such

16 practice, and the basis for such disposition.’’.

17 (d) RECORDKEEPING.—(1) Chapter 23 of title 5,

18 United States Code, is amended by adding at the end the

19 following:

20 ‘‘§ 2306. Federal personnel records

21 ‘‘(a) For the purpose of this section—

22 ‘‘(1) the term ‘personnel action’ has the mean23 ing given such term in section 2302(a)(2)(A);

24 ‘‘(2) the term ‘record’ has the meaning given

25 such term in section 552a(a)(4); and
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•HR 2133 IH

1 ‘‘(3) the term ‘employee’ means an employee or

2 applicant for employment in any entity of the Fed3 eral Government to which—

4 ‘‘(A) section 717(a) of the Civil Rights Act

5 of 1964 applies;

6 ‘‘(B) section 501 of the Rehabilitation Act

7 of 1973 applies; or,

8 ‘‘(C) sections 12 and 15 of the Age Dis9 crimination in Employment Act of 1967 apply;

10 but does not include any employee or applicant for

11 employment with respect to whom section 117, or

12 title III (excluding section 320), of the Civil Rights

13 Act of 1991 applies.

14 ‘‘(b) Records relating to any personnel action taken

15 with respect to an employee shall be maintained by the

16 employing authority for at least the greater of—

17 ‘‘(1) 270 days after the effective date of the

18 personnel action to which such records relate; or

19 ‘‘(2) the period of time otherwise required

20 under applicable provisions of law, rule, or regula21 tion, if any.

22 ‘‘(c) The Office of Personnel Management, in con23 sultation with the Equal Employment Opportunity Com24 mission, shall issue guidelines for the implementation of
46

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1 this section by an entity of the Federal Government (as

2 defined in section 701 of the Civil Rights Act of 1964).’’.

3 (2) The table of sections for chapter 23 of title 5,

4 United States Code, is amended by adding at the end the

5 following:

‘‘2306. Federal personnel records.’’.

6 (e) CONFORMING AMENDMENTS.—Section 7703(b)

7 of title 5, United States Code, is amended—

8 (1) in paragraph (1) by striking ‘‘(1) Except as

9 provided in paragraph (2) of this subsection, a’’ and

10 inserting ‘‘A’’, and

11 (2) by striking paragraph (2).

12 (f) RIGHT TO INTERVENE.—Section 1212(c)(2) of

13 title 5, United States Code, is amended—

14 (1) by striking ‘‘(2)’’ and inserting ‘‘(2)(A)’’;

15 and

16 (2) by adding at the end the following:

17 ‘‘(B) Consent under subparagraph (A) shall not be

18 required, in the case of an appeal from an action, if—

19 ‘‘(i) section 7513(d) is the provision making the

20 action appealable to the Board;

21 ‘‘(ii) the appeal is brought in a matter with re22 spect to which a copy of an order has been received

23 by the Office of Special Counsel under section

24 717(m) of the Civil Rights Act of 1964; and
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1 ‘‘(iii) 1 of the grounds for the action being ap2 pealed is discrimination of a type described in sec3 tion 2302(b)(1).’’.

4 SEC. 5. TECHNICAL AMENDMENTS.

5 Section 717(b) of the Civil Rights Act of 1964 (42

6 U.S.C. 2000e–16(b)) is amended by striking ‘‘Civil Service

7 Commission’’ each place it appears and inserting ‘‘Com8 mission’’.

9 SEC. 6. ISSUANCE OF PROCEDURAL GUIDELINES AND NO10 TICE RULES.

11 (a) ISSUANCE OF CERTAIN RULES AND GUIDE12 LINES.—After providing notice in accordance with section

13 553(b) of title 5, United States Code, and not later than

14 1 year after the date of the enactment of this Act, the

15 Equal Employment Opportunity Commission shall issue—

16 (1) rules to assist entities of the Federal Gov17 ernment to comply with section 717(d) of the Civil

18 Rights Act of 1964, as added by section 2 of this

19 Act,

20 (2) rules establishing—

21 (A) a uniform written official notice to be

22 used to comply with section 717 of such Act, as

23 added by section 2 of this Act, and

24 (B) detailed requirements applicable to col25 lecting and preserving documents and informa-
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1 tion under section 717(d), as added by section

2 2 of this Act,

3 (3) guidelines describing an alternative dispute

4 resolution process that may be used by entities of

5 the Federal Government (as defined in section

6 701(p) of the Civil Rights Act of 1964 (7 U.S.C.

7 2000e(p)), in their discretion, consistent with the

8 administrative process applicable to claims under

9 section 717 of such Act, and

10 (4) rules establishing the criteria, standards,

11 and process for obtaining Commission simultaneous

12 approval of—

13 (A) a process for precomplaint conciliation

14 of the kind required by section 717(c)(1)(A)(i)

15 of the Civil Rights Act of 1964, and

16 (B) an alternative dispute resolution proc17 ess for purposes of such section.

18 (b) PUBLICATION OF PROPOSED GUIDELINES.—Not

19 later than 180 days after the date of the enactment of

20 this Act, the Equal Employment Opportunity Commission

21 shall publish in the Federal Register proposed guidelines

22 of the kind described in subsection (a)(3) and proposed

23 rules of the kind described in subsection (a)(4), and allow

24 not less than 30 days for public comment before issuing
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•HR 2133 IH

1 guidelines and rules under paragraphs (3) and (4) of sub2 section (a).

3 (c) STANDARDS FOR ALTERNATIVE DISPUTE RESO4 LUTION PROCESSES.—The guidelines required by sub5 sections (a) and (b) shall provide for alternative dispute

6 resolution processes that include—

7 (1) procedural rules applicable to the operation

8 of such processes, including a description of the

9 roles of Federal employees and the authorized rep10 resentatives of such employees in such processes,

11 (2) an opportunity for meaningful participation

12 by Federal employees, and their authorized rep13 resentatives if appropriate, in the design and devel14 opment of such processes and such rules,

15 (3) methods for selecting and training qualified

16 facilitators, including the use of nonparty neutrals

17 not from the employing activities,

18 (4) providing to the parties access to relevant

19 documents and witnesses,

20 (5) application of decisional law and legal prin21 ciples,

22 (6) periodic evaluation of the efficacy of

23 facilitators,

24 (7) periodic evaluation of the efficacy of the al25 ternative dispute resolution process and conciliation
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1 (including precomplaint conciliation), and reporting

2 on the resolution and settlement of disputes under

3 such process, and

4 (8) confidentiality of communications (including

5 offers of settlement) among participants in such

6 process.

7 (d) IDENTIFICATION OF APPROVED ALTERNATIVE

8 DISPUTE RESOLUTION PROCESSES.—Not later than 21

9 months after the date of the enactment of this Act, and

10 annually thereafter, the Equal Employment Opportunity

11 Commission shall publish in the Federal Register the

12 names of the entities of the Federal Government (as de13 fined in section 701 of the Civil Rights Act of 1964) that

14 provide a voluntary alternative dispute resolution process

15 approved by the Commission in accordance with the rules

16 in effect under subsection (a)(4).

17 (e) VOLUNTARY SETTLEMENT PROGRAM.—The

18 Equal Employment Opportunity Commission shall issue

19 rules establishing a program and procedures, consistent

20 with the administrative adjudication of claims under sec21 tion 717 of the Civil Rights Act of 1964 as amended by

22 this Act, to foster the voluntary settlement of such claims.

23 (f) REPORTING REQUIREMENT.—Section 705 of the

24 Civil Rights Act of 1964 (42 U.S.C. 2000–e4) is amended

25 by adding at the end the following:
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1 ‘‘(l) The Commission shall include in each report

2 made under subsection (e) the following information sepa3 rately identified with respect to each entity of the Federal

4 Government for the period for which such report is made:

5 ‘‘(1) The number of Federal employees who

6 participated in conciliation provided under section

7 717(c)(1)(A)(ii) as added by the Federal Employee

8 Fairness Act of 1995.

9 ‘‘(2) The number of such employees who en10 tered into a settlement under section 717, as amend11 ed by such Act, for relief of any kind.

12 ‘‘(3) The number of such employees who filed

13 complaints under such section 717.

14 ‘‘(4) The number of other Federal employees

15 who filed complaints under such section.

16 The head of each such entity shall provide such informa17 tion timely to the Commission to enable the Commission

18 to comply with this subsection.’’.

19 SEC. 7. ISSUANCE OF RULES REGARDING CLASSIFIED IN20 FORMATION.

21 (a) RULES REQUIRED.—The Equal Employment Op22 portunity Commission, in consultation with the Director

23 of Central Intelligence, the Secretary of Defense, and the

24 Director of the Information Security Oversight Office of

25 the General Services Administration, shall issue rules to
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1 ensure the protection of classified information and na2 tional security information in administrative proceedings

3 under section 717 of the Civil Rights Act of 1964 (42

4 U.S.C. 2000e–16). Such rules shall include a requirement

5 that complaints filed under section 717(c) of such Act that

6 bear on classified information shall be handled only by ad7 ministrative judges, and other personnel, who have appro8 priate security clearances.

9 (b) DEFINITION.—For purposes of subsection (a),

10 the term ‘‘classified information’’ has the meaning given

11 such term in section 606(1) of the National Security Act

12 of 1947 (50 U.S.C. 426(1)).

13 SEC. 8. RULES OF CONSTRUCTION.

14 Any reference in any law (other than title VII of the

15 Civil Rights Act of 1964) to any provision of title VII of

16 the Civil Rights Act of 1964 amended by this Act shall

17 be deemed to be a reference to such provision as amended

18 by this Act.

19 SEC. 9. SENSE OF THE CONGRESS.

20 (a) APPROPRIATION OF FUNDS.—It is the sense of

21 the Congress that because the amendments made by this

22 Act—

23 (1) impose on the Equal Employment Oppor24 tunity Commission additional administrative respon-
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1 sibility in the processing of claims of Federal em2 ployees based on discrimination in employment, and

3 (2) increase the financial burden on the Com4 mission to carry out such responsibility,

5 the amount appropriated to the Commission to carry out

6 laws prohibiting discrimination in Federal employment

7 should be increased accordingly to enable the Commission

8 to carry out its additional responsibility.

9 (b) PAYMENT OF RELIEF AWARDED.—It is the sense

10 of the Congress that the payment of any relief awarded

11 under section 717 of the Civil Rights Act of 1964 (42

12 U.S.C. 20003–16) should not be made by any Federal

13 agency out of any funds appropriated to such agency for

14 the salaries and expenses.

15 SEC. 10. EFFECTIVE DATES; APPLICATION OF AMEND16 MENTS.

17 (a) GENERAL EFFECTIVE DATE.—Except as pro18 vided in subsections (b) and (c), this Act and the amend19 ments made by this Act shall take effect on January 1,

20 1998.

21 (b) EFFECTIVE DATE OF SECTIONS 6 and 7.—Sec22 tions 6 and 7 shall take effect on the date of the enact23 ment of this Act.

24 (c) APPLICATION OF AMENDMENTS.—The amend25 ments made by this Act shall not apply with respect to—
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1 (1) complaints filed under section 717 of the

2 Civil Rights Act of 1964 (42 U.S.C. 2000e–16) be3 fore the effective date of this Act; and

4 (2) proceedings pending under title 5 of the

5 United States Code before the effective date of this

6 Act.

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