II

103D CONGRESS

2D SESSION S. 2327

To amend the Civil Rights Act of 1964 to encourage mediation of charges

filed under title VII of such Act and the Americans with Disabilities

Act of 1990, to amend the Revised Statutes to encourage mediation

of complaints filed under section 1977 of the Revised Statutes, and

to decrease resort to the courts.

IN THE SENATE OF THE UNITED STATES

JULY 27 (legislative day, JULY 20), 1994

Mr. DANFORTH introduced the following bill; which was read twice and

referred to the Committee on Labor and Human Resources

A BILL

To amend the Civil Rights Act of 1964 to encourage mediation of charges filed under title VII of such Act and

the Americans with Disabilities Act of 1990, to amend

the Revised Statutes to encourage mediation of complaints filed under section 1977 of the Revised Statutes,

and to decrease resort to the courts.

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 ‘‘Employment Dispute

5 Resolution Act of 1994’’.
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1 SEC. 2. DEFINITION.

2 Section 701 of the Civil Rights Act of 1964 (42

3 U.S.C. 2000e) is amended by adding at the end the follow4 ing:

5 ‘‘(o) The term ‘Service’ means the Federal Mediation

6 and Conciliation Service.’’.

7 SEC. 3. MEDIATION OF ACTIONS UNDER THE CIVIL RIGHTS

8 ACT OF 1964 AND THE AMERICANS WITH DIS9 ABILITIES ACT OF 1990.

10 Section 706 of the Civil Rights Act of 1964 (42

11 U.S.C. 2000e–5) is amended by adding at the end the fol12 lowing:

13 ‘‘(l)(1) Congress finds that cooperative mediation of

14 charges is a more time-saving and cost-effective method

15 of resolving disputes than litigation of civil actions.

16 ‘‘(2)(A)(i) If the Commission, or a State or local au17 thority described in subsection (c), determines that there

18 is reasonable cause to believe that the respondent has vio19 lated this title and that the Commission or authority will

20 file a civil action under this section against the respond21 ent, the Commission or authority shall inform the re22 spondent that the respondent may, within 14 days, request

23 that the charge be referred to the Service for mediation.

24 The Commission or authority shall not file such an action

25 earlier than 14 days after the date on which the respond26 ent is so informed.
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1 ‘‘(ii) If the time for a governmental entity described

2 in clause (i) to file an action described in clause (i) would

3 otherwise lapse during the 14-day period described in

4 clause (i), the time for the governmental entity to file such

5 an action—

6 ‘‘(I) shall be tolled until 14 days after the end

7 of the period; or

8 ‘‘(II) in a case described in paragraph (9)(B),

9 shall be tolled as described in such paragraph.

10 ‘‘(B)(i) In lieu of receiving mediation services from

11 the Service, the Commission, or the State or local author12 ity, and the respondent may agree in writing to refer the

13 charge to a mediator (other than a mediator provided by

14 the Service) that has been mutually agreed to by the par15 ties, for mediation in accordance with regulations promul16 gated by the Director of the Service pursuant to this sub17 section. A copy of the agreement to mediate shall be

18 served upon the Director of the Service.

19 ‘‘(ii) Before the commencement of mediation services

20 under this subparagraph, the mediator shall notify the

21 parties and the Director of the Service in writing of the

22 per diem costs and any other fees and expenses the medi23 ator may reasonably be expected to incur in providing such

24 services. The cost of mediation services shall be shared

25 as mutually agreed by the parties.
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1 ‘‘(C) The Director of the Service, within 14 days of

2 receipt of the mediation request, shall inform the Commis3 sion or the State or local authority, as appropriate, that

4 mediation has been requested. If the respondent requests

5 mediation by the Service under subparagraph (A) or

6 agrees to mediation by a mediator under subparagraph

7 (B), neither the Commission, or the State or local author8 ity, may file a civil action under this section against the

9 respondent until the completion of the mediation.

10 ‘‘(3)(A)(i) If the Commission, or a State or local au11 thority described in subsection (c), issues a right-to-sue

12 letter to a charging party, the Commission or authority

13 shall inform the charging party and the respondent that

14 either the charging party or the respondent, may, within

15 14 days, request that the charge be referred to the Service

16 for mediation. The charging party shall not file a civil ac17 tion under this section earlier than 14 days after the date

18 on which the respondent is so informed.

19 ‘‘(ii) If the time for the charging party, the Commis20 sion, or the State or local authority, as appropriate, to

21 file an action described in clause (i) would otherwise lapse

22 during the 14-day period described in clause (i), the time

23 for the charging party, the Commission, or the State or

24 local authority, as appropriate, to file such an action—
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1 ‘‘(I) shall be tolled until 14 days after the end

2 of the period; or

3 ‘‘(II) in a case described in paragraph (9)(B),

4 shall be tolled as described in such paragraph.

5 ‘‘(B)(i) In lieu of receiving mediation services from

6 the Service, the charging party and the respondent may

7 agree in writing to refer the charge to a mediator (other

8 than a mediator provided by the Service) that has been

9 mutually agreed to by the parties, for mediation in accord10 ance with regulations promulgated by the Director of the

11 Service pursuant to this subsection. A copy of the agree12 ment to mediate shall be served upon the Director of the

13 Service and the Commission or authority that issued the

14 right-to-sue letter.

15 ‘‘(ii) Before the commencement of mediation services

16 under this subparagraph, the mediator shall notify the

17 parties and the Director of the Service in writing of the

18 per diem costs and any other fees and expenses the medi19 ator may reasonably be expected to incur in providing such

20 services. The cost of mediation services shall be shared

21 as mutually agreed by the parties.

22 ‘‘(C) The Director of the Service, within 14 days of

23 receipt of the mediation request, shall inform the Commis24 sion or the State or local authority issuing the right-to25 sue letter that mediation has been requested. If the charg-
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1 ing party or the respondent requests mediation by the

2 Service under subparagraph (A), or agrees to mediation

3 by a mediator under subparagraph (B), neither the charg4 ing party, the Commission, or the State or local authority

5 may file a civil action under this section against the re6 spondent until the completion of the mediation.

7 ‘‘(4)(A) After providing an opportunity for public

8 comment, the Director of the Service shall issue, and may

9 amend or rescind, regulations to carry out the provisions

10 of this subsection relating to mediation of charges. The

11 Director of the Service shall issue the regulations no later

12 than 6 months after the date of enactment of this sub13 section.

14 ‘‘(B) Mediation provided by the Service under sub15 paragraph (A), or by another mediator as described in

16 subparagraph (B), of paragraph (2) or (3), shall be pro17 vided in accordance with the regulations.

18 ‘‘(C) The regulations shall specify the form and man19 ner of, and the procedures for providing, the mediation

20 services provided under this subsection.

21 ‘‘(5) It shall be the duty of the mediator to commu22 nicate promptly with the parties and use best efforts, by

23 mediation, to reach an agreement resolving the charge.
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1 ‘‘(6) During mediation, the charging party and the

2 respondent may be represented by legal counsel or another

3 representative of their choice.

4 ‘‘(7)(A) If the charge is resolved through mediation,

5 the charge shall be resolved in a manner that is mutually

6 agreeable to the parties, including a settlement agreement,

7 dismissal (by the Commission or the State or local author8 ity), or voluntary withdrawal (by the charging party). The

9 resolution of the charge shall be recorded in writing. In

10 no case shall the mediator have the power to dismiss a

11 charge.

12 ‘‘(B) Once the charging party and respondent have

13 agreed on a resolution of the charge, the mediator shall

14 so advise the Service, and shall so advise the Commission

15 or the State or local authority, which shall dismiss the

16 charge with prejudice as to the charging party or charging

17 parties participating in the agreement. The Commission,

18 or the State or local authority, shall take no further action

19 on the charge as the charge affects the charging party or

20 charging parties.

21 ‘‘(8)(A) The mediation shall be deemed to be com22 pleted on the date that the resolution of the charge is re23 corded, as provided for in paragraph (7)(A).

24 ‘‘(B) If a charge that has been referred to mediation

25 has not been resolved by settlement, withdrawal of
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1 charges, or otherwise within 90 days of receipt of the

2 charge by the Service or other mediator, and the parties

3 do not agree in writing, with the consent of the mediator,

4 to further extend the mediation process, the mediation

5 shall be deemed to be completed.

6 ‘‘(9)(A) If mediation has been completed without res7 olution, as described in paragraph (8)(B), the Commis8 sion, the State or local authority, or the charging party,

9 as appropriate, may file a civil action under this section.

10 ‘‘(B) If—

11 ‘‘(i) mediation is initiated under paragraph (2)

12 or (3); and

13 ‘‘(ii) the time for the Commission, authority, or

14 party to file an action described in subparagraph (A)

15 would otherwise lapse—

16 ‘‘(I) not earlier than the first day of the

17 14-day period described in paragraph (2)(A) or

18 (3)(A), as appropriate; and

19 ‘‘(II) not later than the completion of the

20 mediation,

21 the time for the Commission, authority, or party, as ap22 propriate, to file such an action shall be tolled until 14

23 days after the completion of the mediation (including any

24 referral under subparagraph (C)).
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1 ‘‘(C) The court in which the action is filed shall have

2 the discretion to refer the charge to the Service or the

3 other mediator used by the charging party and respondent

4 for an additional 90 days of mediation pursuant to this

5 subsection.

6 ‘‘(D) Nothing in this subsection shall be construed

7 to limit the authority of the court to attempt to resolve

8 the case under the authority of the court or dispute resolu9 tion procedures established by the court.

10 ‘‘(10)(A) The charging party and the Service shall

11 be provided a copy of any settlement agreement, or other

12 agreement resolving the charge, between the Commission,

13 or the State or local authority, and the respondent. Except

14 as provided in paragraph (15), any such agreement shall

15 be kept confidential by the mediator, the charging party,

16 other parties to the agreement, and the Service, unless all

17 parties to the mediation agree otherwise in writing.

18 ‘‘(B) The Service shall be provided a copy of any set19 tlement agreement, or other agreement resolving the

20 charge, between the charging party and the respondent.

21 Except as provided in paragraph (15), any such agreement

22 shall be kept confidential by the mediator, the charging

23 party, the respondent, and the Service, and shall not be

24 provided to the Commission, the State or local authority,
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1 or any other person, unless all parties to the mediation

2 agree otherwise in writing.

3 ‘‘(11)(A) Whether or not a charge that has been re4 ferred to mediation is resolved, all communications, oral

5 or written, (including memoranda, work product, tran6 scripts, notes, or other materials) made by the Commis7 sion, the State or local authority, the charging party, the

8 respondent, or the mediator in or in connection with the

9 mediation that relate to the controversy being mediated

10 shall be kept confidential by the participants in the medi11 ation.

12 ‘‘(B) Such communications shall not be made avail13 able by the mediator, or parties to the mediation, to any

14 person not participating in the mediation, including the

15 Commission or the State or local authority in any case

16 in which the Commission or the State or local authority

17 is not a participant.

18 ‘‘(C) Communications referred to in subparagraph

19 (A) shall not be disclosed voluntarily, and, pursuant to this

20 subsection, shall not be subject to disclosure through dis21 covery or compulsory process, and shall not be used as

22 evidence, in any investigatory, arbitral, judicial, adminis23 trative or other proceedings, unless—
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1 ‘‘(i) all parties to the mediation agree, in writ2 ing, to waive the confidentiality of such communica3 tions; or

4 ‘‘(ii) the communications involve statements,

5 materials, and other tangible evidence, that—

6 ‘‘(I) are otherwise not privileged and sub7 ject to discovery; and

8 ‘‘(II) were not prepared specifically for use

9 in mediation.

10 ‘‘(D) If any demand for disclosure, including a re11 quest pursuant to discovery or other legal process, is made

12 upon the mediator, the Service, the Commission, or the

13 State or local authority, regarding the mediation of a

14 charge, the mediator, Service, the Commission, or the

15 State or local authority, as appropriate, shall immediately

16 make reasonable efforts to notify all other parties to the

17 mediation of the demand.

18 ‘‘(E) Any person, including any official of the Com19 mission, the State or local authority, or the Service, who

20 discloses information in violation of this subsection shall

21 be fined not more than $5,000.

22 ‘‘(12) Except as provided in paragraph (15)—

23 ‘‘(A) agreements referred to in paragraph (10)

24 and communications referred to in paragraph (11)

25 are exempted from disclosure under section 552 of
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1 title 5, United States Code, in accordance with sub2 section (b)(3) of such section; and

3 ‘‘(B) the Service and the Commission shall have

4 no discretion to disclose such agreements or commu5 nication under such section.

6 ‘‘(13)(A) Any agreement between the Commission

7 and any such State or local authority relating to carrying

8 out their respective functions under this subchapter, in9 cluding worksharing agreements for the processing of

10 charges, shall include a provision requiring the State or

11 local authority to implement the provisions of this sub12 section for the mediation of charges by the Service or

13 other provider of mediation services.

14 ‘‘(B) Any such State or local authority that does not

15 agree to implement the provisions of this subsection shall

16 not be eligible to enter into an agreement with the Com17 mission for the processing of charges under the subsection

18 and also shall be ineligible to receive any payment or reim19 bursement pursuant to section 709(b).

20 ‘‘(C) Unless the Commission and the State and local

21 authorities amend any such agreement to comply with this

22 subsection within 6 months after the date of enactment

23 of this subsection, the agreement shall be considered re24 scinded.
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1 ‘‘(14) A party to an agreement made pursuant to me2 diation under this subsection may bring any action to en3 force the agreement in a Federal district court of com4 petent jurisdiction as described in subsection (f)(3).

5 ‘‘(15)(A) The Director of the Service shall establish

6 a database containing, with respect to each mediation con7 ducted under this subsection, information indicating—

8 ‘‘(i) whether the respondent involved employs—

9 ‘‘(I) fewer than 50 employees;

10 ‘‘(II) not fewer than 50 employees and

11 fewer than 250 employees;

12 ‘‘(III) not fewer than 250 employees and

13 fewer than 1000 employees; or

14 ‘‘(IV) not fewer than 1000 employees;

15 ‘‘(ii) the type of industry in which the respond16 ent is employed;

17 ‘‘(iii) whether the charge that is the subject of

18 the mediation is brought on the basis of—

19 ‘‘(I) race or color;

20 ‘‘(II) sex;

21 ‘‘(III) religion;

22 ‘‘(IV) national origin; or

23 ‘‘(V) disability;

24 ‘‘(iv) whether the charge was resolved by settle25 ment, withdrawal of charges, or otherwise; and
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1 ‘‘(v) whether the charging party—

2 ‘‘(I) recovered any monetary compensation

3 (including damages, equitable monetary relief,

4 and interest) as a result of the mediation;

5 ‘‘(II) was reinstated to employment as a

6 result of the mediation; or

7 ‘‘(III) received any equitable relief, other

8 than relief described in subclause (I) or (II), as

9 a result of the mediation.

10 ‘‘(B) The Director of the Service shall make informa11 tion about mediations described in subparagraph (A)

12 available to the public through the database.

13 ‘‘(C) Not later than 1 year after the date of enact14 ment of this subsection, and every 6 months thereafter,

15 the Director of the Service shall prepare and submit to

16 the Commission a report containing—

17 ‘‘(i) the information described in subparagraph

18 (A); and

19 ‘‘(ii) crosstabulations of the information de20 scribed in each clause of subparagraph (A)

21 against—

22 ‘‘(I) the information described in each

23 other such clause; and

24 ‘‘(II) crosstabulations of such information.
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1 ‘‘(D) In making information available through the

2 database described in subparagraph (B), and in preparing

3 the reports described in subparagraph (C), the Director

4 of the Service shall not identify by name parties partici5 pating in mediations described in subparagraph (A). The

6 database and reports shall present information collected

7 under subparagraph (A) in the aggregate.

8 ‘‘(16) As used in this subsection:

9 ‘‘(A) The term ‘charging party’ means an indi10 vidual filing a charge under subsection (b).

11 ‘‘(B) The term ‘party’ does not include the

12 Service, or a mediator provided by the Service, or

13 any other person, acting in the capacity of a medi14 ator.

15 ‘‘(17) There are authorized to be appropriated such

16 sums as may be necessary to carry out the purposes of

17 this subsection for fiscal year 1995 and each subsequent

18 fiscal year.’’.

19 SEC. 4. MEDIATION OF ACTIONS UNDER SECTION 1977 OF

20 THE REVISED STATUTES.

21 The Revised Statutes are amended by inserting after

22 section 1977A (42 U.S.C. 1981a) the following new sec23 tion:
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1 ‘‘SEC. 1977B. ALTERNATIVE MEDIATION PRIOR TO FILING A

2 CIVIL ACTION.

3 ‘‘(a) MEDIATION BY SERVICE.—

4 ‘‘(1) IN GENERAL.—No plaintiff shall bring a

5 civil action to make or enforce any contract relating

6 to employment under section 1977 (42 U.S.C. 1981)

7 unless the plaintiff has given the defendant at least

8 60 days written notice that the plaintiff intends to

9 file such action and informed the defendant in the

10 action that either party may request that the com11 plaint be referred to the Service for mediation.

12 ‘‘(2) NOTICE PERIOD.—If the time for the

13 plaintiff to file an action described in paragraph (1)

14 would otherwise lapse during the 60-day period de15 scribed in paragraph (1), the time for the plaintiff

16 to file such an action—

17 ‘‘(A) shall be tolled until 14 days after the

18 end of the period; or

19 ‘‘(B) in a case described in subsection (e),

20 shall be tolled as described in such subsection.

21 ‘‘(b) ALTERNATIVE MEDIATOR.—In lieu of receiving

22 mediation services from the Service, the plaintiff and the

23 defendant may agree in writing to refer the charge to a

24 mediator (other than a mediator provided by the Service)

25 as described in section 706(l)(3)(B) of the Civil Rights

26 Act of 1964.
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1 ‘‘(c) LIMITATIONS.—If the plaintiff or the defendant

2 requests mediation by the Service under subsection (a),

3 or if the parties agree to mediation by a mediator under

4 subsection (b), the plaintiff may not file a civil action de5 scribed in subsection (a) against the defendant until the

6 completion of the mediation.

7 ‘‘(d) CONDUCT OF MEDIATION.—

8 ‘‘(1) IN GENERAL.—If either party to the action

9 requests such mediation, the mediation, and any

10 subsequent civil action filed relating to the matter,

11 shall be conducted in accordance with paragraphs

12 (4) through (8), and (10) through (12), of section

13 706(l) of the Civil Rights Act of 1964. Information

14 related to the mediation shall be included in the

15 database described in section 706(l)(15) of such Act,

16 and made available in accordance with such section.

17 ‘‘(2) APPLICATION.—For purposes of the appli18 cation of the provisions described in paragraph (1)

19 to this section—

20 ‘‘(A) references to the charging party and

21 the respondent shall be deemed to be references

22 to the plaintiff and the defendant, respectively;

23 ‘‘(B) references to the Commission, or to a

24 State or local authority, shall not apply; and
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1 ‘‘(C) references to a charge shall be

2 deemed to be references to the complaint re3 ferred to in subsection (a).

4 ‘‘(e) CIVIL ACTION.—

5 ‘‘(1) IN GENERAL.—If mediation has been com6 pleted without resolution, as described in section

7 706(l)(8)(B) of the Civil Rights Act of 1964, the

8 plaintiff may file a civil action under this section.

9 ‘‘(2) LIMITATIONS.—If—

10 ‘‘(A) the plaintiff or the defendant requests

11 mediation by the Service under subsection (a),

12 or the parties agree to mediation by a mediator

13 under subsection (b); and

14 ‘‘(B) the time for the plaintiff to file an ac15 tion described in paragraph (1) would otherwise

16 lapse—

17 ‘‘(i) not earlier than the first day of

18 the 60-day period described in subsection

19 (a)(1); and

20 ‘‘(ii) not later than the completion of

21 the mediation,

22 the time for the plaintiff to file such an action shall

23 be tolled until 14 days after the completion of the

24 mediation (including any referral under paragraph

25 (3)).
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1 ‘‘(3) REFERRAL.—The court in which the ac2 tion is filed shall have the discretion to refer the

3 complaint to the Service or the other mediator used

4 by the plaintiff and defendant for an additional 90

5 days of mediation pursuant to section 706(l) of the

6 Civil Rights Act of 1964.

7 ‘‘(4) Nothing in this section shall be construed

8 to limit the authority of the court to attempt to re9 solve the case under the authority of the court or

10 dispute resolution procedures established by the

11 court.

12 ‘‘(f) ACTION TO ENFORCE AGREEMENT.—A party to

13 an agreement made pursuant to mediation under this sec14 tion may bring any action to enforce the agreement in any

15 Federal district court of competent jurisdiction in which

16 an action under section 1977 may be brought.

17 ‘‘(g) DEFINITION.—For purposes of this section, and

18 the application of the provisions described in subsection

19 (d)(1) to this section, the term ‘Service’ means the Federal

20 Mediation and Conciliation Service.’’.

21 SEC. 5. EFFECTIVE DATE.

22 The amendments made by this Act shall apply only

23 to charges and complaints filed more than 6 months after

24 the date of enactment of this Act.

Æ
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