I

104TH CONGRESS

2D SESSION H. R. 3784

To prohibit employment discrimination on any basis other than factors

pertaining to job performance.

IN THE HOUSE OF REPRESENTATIVES

JULY 11, 1996

Mr. BILBRAY (for himself, Mr. GUNDERSON, Mr. HORN, Mr. BOEHLERT, Mrs.

KELLY, Mr. KOLBE, and Mr. GREENWOOD) introduced the following bill;

which was referred to the Committee on Economic and Educational Opportunities, and in addition to the Committees on the Judiciary, Government Reform and Oversight, and House Oversight, 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 prohibit employment discrimination on any basis other

than factors pertaining to job performance.

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 ‘‘Workplace Fairness

5 Act of 1996’’.

6 SEC. 2. DISCRIMINATION PROHIBITED.

7 A covered entity shall not subject an individual to dif8 ferent standards or treatment on any basis other than fac-
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1 tors pertaining to job performance in connection with em2 ployment or employment opportunities, or beginning on

3 the 91st day of employment following hire or rehire, the

4 compensation, terms conditions, or privileges of employ5 ment.

6 SEC. 3. QUOTAS PROHIBITED.

7 A covered entity shall not adopt or implement a quota

8 pursuant to this Act on any basis other than factors per9 taining to job performance.

10 SEC. 4. RELIGIOUS EXEMPTION.

11 (a) IN GENERAL.—Except as provided in subsection

12 (b), this Act shall not apply to religious organizations.

13 (b) FOR-PROFIT ACTIVITIES.—This Act shall apply

14 with respect to employment and employment opportunities

15 that relate to any employment position that pertains solely

16 to a religious organization’s for-profit activities subject to

17 taxation under section 511(a) of the Internal Revenue

18 Code of 1986.

19 SEC. 5. ENFORCEMENT.

20 (a) ENFORCEMENT POWERS.—With respect to the

21 administration and enforcement of this Act in the case of

22 a claim alleged by an individual for a violation of this

23 Act—

24 (1) the Commission shall have the same powers

25 as the Commission has to administer and enforce—
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1 (A) title VII of the Civil Rights Act of

2 1964 (42 U.S.C. 2000e et seq.), or

3 (B) sections 302, 303, and 304 of the Gov4 ernment Employee Rights Act of 1991 (2

5 U.S.C. 1202, 1203, and 1204),

6 in the case of a claim alleged by such individual for

7 a violation of such title or of section 302(a)(1) of

8 such Act, respectively,

9 (2) the Librarian of Congress shall have the

10 same powers as the Librarian of Congress has to ad11 minister and enforce title VII of the Civil Rights Act

12 of 1964 (42 U.S.C. 2000e et seq.) in the case of a

13 claim alleged by such individual for a violation of

14 such title,

15 (3) the Board (as defined in section 101 of the

16 Congressional Accountability Act of 1995 (Public

17 Law 104–1; 109 Stat. 3) shall have the same powers

18 as the Board has to administer and enforce the Con19 gressional Accountability Act of 1995 in the case of

20 a claim alleged by such individual for a violation of

21 section 201(a)(1) of such Act.

22 (4) the Attorney General of the United States

23 shall have the same powers as the Attorney General

24 has to administer and enforce—
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1 (A) title VII of the Civil Rights Act of

2 1964 (42 U.S.C. 2000e et seq.), or

3 (B) sections 302, 303, and 304 of the Gov4 ernment Employee Rights Act of 1991 (2

5 U.S.C. 1202, 1203, 1204),

6 in the case of a claim alleged by such individual for

7 a violation of such title or of section 302(a)(1) of

8 such Act, respectively, and

9 (5) the courts of the United States shall have

10 the same jurisdiction and powers as such courts

11 have to enforce—

12 (A) title VII of the Civil Rights Act of

13 1964 (42 U.S.C. 2000e et seq.) in the case of

14 a claim alleged by such individual for a viola15 tion of such title,

16 (B) sections 302, 303, and 304 of the Gov17 ernment Employee Rights Act of 1991 (2

18 U.S.C. 1202, 1203, 1204) in the case of a

19 claim alleged by such individual for a violation

20 of section 302(a)(1) of such Act, and

21 (C) the Congressional Accountability Act

22 of 1995 (Public Law 104–1; 109 Stat. 3) in the

23 case of a claim alleged by such individual for a

24 violation of section 201(a)(1) of such Act.
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1 (b) PROCEDURES AND REMEDIES.—The procedures

2 and remedies applicable to a claim alleged by an individual

3 for a violation of this Act are—

4 (1) the procedures and remedies applicable for

5 a violation of title VII of the Civil Rights Act of

6 1964 (42 U.S.C. 2000e et seq.) in the case of a

7 claim alleged by such individual for a violation of

8 such title,

9 (2) the procedures and remedies applicable for

10 a violation of section 302(a)(1) of the Government

11 Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1))

12 in the case of a claim alleged by such individual for

13 a violation of such section, and

14 (3) the procedures and remedies applicable for

15 a violation of section 201(a)(1) of Congressional Ac16 countability Act of 1995 (Public Law 104–1; 109

17 Stat. 3) in the case of a claim alleged by such indi18 vidual for a violation of such section.

19 (c) OTHER APPLICABLE PROVISIONS.—With respect

20 to claims alleged by covered employees (as defined in sec21 tion 101 of the Congressional Accountability Act of 1995

22 (Public Law 104–1; 109 Stat. 3)) for violations of this

23 Act, title III of the Congressional Accountability Act of

24 1995 shall apply in the same manner as such title applies
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1 with respect to a claims alleged by such covered employees

2 for violations of section 201(a)(1) of such Act.

3 SEC. 7. STATE AND FEDERAL IMMUNITY.

4 (a) STATE IMMUNITY.—A State shall not be immune

5 under the eleventh article of amendment to the Constitu6 tion of the United States from an action in a Federal court

7 of competent jurisdiction for a violation of this Act. In

8 an action against a State for a violation of this Act, rem9 edies (including remedies at law and in equity) are avail10 able for the violation to the same extent as such remedies

11 are available in an action against any public or private

12 entity other than a State.

13 (b) LIABILITY OF THE UNITED STATES.—The Unit14 ed States shall be liable for all remedies (excluding puni15 tive damages) under this Act to the same extent as a pri16 vate person and shall be liable to the same extent as a

17 nonpublic party for interest to compensate for delay in

18 payment.

19 SEC. 8. ATTORNEYS’ FEES.

20 In any action or administrative proceeding com21 menced pursuant to this Act, the court or the Commission,

22 in its discretion, may allow the prevailing party, other

23 than the United States, a reasonable attorney’s fee, in24 cluding expert fees and other litigation expenses, and
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1 costs. The United States shall be liable for the foregoing

2 the same as a private person.

3 SEC. 9. POSTING NOTICES.

4 A covered entity shall post notices for employees, and

5 for applicants for employment, describing the applicable

6 provisions of this Act in the manner prescribed by, and

7 subject to the penalty provided under, section 711 of the

8 Civil Rights Act of 1964 (42 U.S.C. 2000e–10).

9 SEC. 10. REGULATIONS.

10 The Commission shall have authority to issue regula11 tions to carry out this Act.

12 SEC. 11. RELATIONSHIP TO OTHER LAWS.

13 This Act shall not invalidate or limit the rights, rem14 edies, or procedures available to an individual under title

15 VII of the Civil Rights Act of 1964, or any other Federal

16 law or any law of a State or political subdivision of a

17 State.

18 SEC. 12. SEVERABILITY.

19 If any provision of this Act, or the application of such

20 provision to any person or circumstance, is held to be in21 valid, the remainder of this Act and the application of such

22 provision to other persons or circumstances shall not be

23 affected thereby.
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1 SEC. 13. EFFECTIVE DATE.

2 This Act shall take effect 60 days after the date of

3 the enactment of this Act and shall not apply to conduct

4 occurring before such effective date.

5 SEC. 14. DEFINITIONS.

6 As used in this Act:

7 (1) The term ‘‘Commission’’ means the Equal

8 Employment Opportunity Commission.

9 (2) The term ‘‘covered entity’’ means an em10 ployer, employment agency, labor organization, joint

11 labor management committee, an entity to which

12 section 717(a) of the Civil Rights Act of 1964 (42

13 U.S.C. 2000e(a)) applies, an employing authority to

14 which section 302(a)(1) of the Government Em15 ployee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) ap16 plies, or an employing authority to which section

17 201(a) of the Congressional Accountability Act of

18 1995 (Public Law 104–1; 109 Stat. 3) applies.

19 (3) The term ‘‘employer’’ has the meaning

20 given such term in section 701(b) of the Civil Rights

21 Act of 1964 (42 U.S.C. 2000e(b)), except that a ref22 erence in such section to employees shall be deemed

23 for purposes of this Act to be a reference to full-time

24 employees.
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1 (4) The term ‘‘employment agency’’ has the

2 meaning given such term in section 701(c) of the

3 Civil Rights Act of 1964 (42 U.S.C. 2000e(c)).

4 (5) The term ‘‘employment or employment op5 portunities’’ includes job application procedures, hir6 ing, advancement, discharge, compensation, job

7 training, or any other term, condition, or privilege of

8 employment.

9 (6) The term ‘‘labor organization’’ has the

10 meaning given such term in section 701(d) of the

11 Civil Rights Act of 1964 (42 U.S.C. 2000e(d)).

12 (7) The term ‘‘person’’ has the meaning given

13 such term in section 701(a) of the Civil Rights Act

14 of 1964 (42 U.S.C. 2000e(a)).

15 (8) The term ‘‘factors pertaining to job per16 formance’’ means—

17 (A) employment history, including referrals

18 from previous employers,

19 (B) ability and willingness to comply with

20 the performance requirements (including at21 tendance and procedures) of the particular em22 ployment involved,

23 (C) educational background,

24 (D) any use of a drug or of alcohol, that

25 may adversely affect job performance,
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1 (E) any conviction of an offense for which

2 a term of imprisonment exceeding 1 year could

3 have been imposed,

4 (F) any conflict of interest relating to the

5 particular employment involved,

6 (G) seniority recognized under an applica7 ble bona fide seniority system,

8 (H) ability to work well with others (co9 operation and teamwork), and

10 (I) insubordination.

11 (9) The term ‘‘religious organization’’ means—

12 (A) a religious corporation, association, or

13 society, or

14 (B) a college, school, university, or other

15 educational institution, not otherwise a religious

16 organization, if—

17 (i) it is in whole or substantial part

18 controlled, managed, owned, or supported

19 by a religious corporation, association, or

20 society, or

21 (ii) its curriculum is directed toward

22 the propagation of a particular religion.
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1 (10) The term ‘‘State’’ has the meaning given

2 such term in section 701(i) of the Civil Rights Act

3 of 1964 (42 U.S.C. 2000e(i)).

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