I

103D CONGRESS

1ST SESSION H. R. 2721

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 23, 1993

Mr. MARTINEZ (for himself, Ms. NORTON, Mr. FORD of Michigan, Mr. CLAY,

Mr. OWENS, Mr. MCCLOSKEY, Mrs. SCHROEDER, Mr. MILLER of California, Mr. KILDEE, Mrs. MORELLA, Mr. SAWYER, Mrs. MINK, Mr. DELLUMS, Mr. CONYERS, Mr. STOKES, Mr. FOGLIETTA, Mrs. COLLINS of Illinois, Mr. FRANK of Massachusetts, Mr. SERRANO, Mr. TOWNS, Mr.

OLVER, Mr. SANDERS, Mr. JEFFERSON, Mr. BLACKWELL, Mr. HASTINGS, Mr. FILNER, and Mr. RUSH) introduced the following bill; which

was referred jointly to the Committees on Education and Labor and Post

Office and Civil Service

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,
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1 SECTION 1. SHORT TITLE.

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

3 Fairness Act of 1993’’.

4 SEC. 2. AMENDMENTS RELATING TO ADMINISTRATIVE DE5 TERMINATION OF FEDERAL EMPLOYEE DIS6 CRIMINATION CLAIMS.

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

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

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

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

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

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

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

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

20 entity of the Federal Government.

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

23 ‘‘(s) 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 choose to notify such entity

21 that they believe such entity has discriminated

22 against them in violation of subsection (a), for

23 the purpose of trying to resolve the matters

24 with respect to which such discrimination is al25 leged (Such entity shall assist such employee to
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1 identify the respondent required by subsection

2 (c)(1) to be named in a complaint alleging such

3 violation, shall inform such Federal employee

4 individually of the procedures and deadlines

5 that apply under this section to a claim alleging

6 such discrimination, and shall make such coun7 seling available throughout the administrative

8 process.);

9 ‘‘(ii) to establish a voluntary alternative

10 dispute process to resolve complaints, except

11 that a Federal employee’s decision to forgo such

12 process shall not affect the rights of such em13 ployee under this title;

14 ‘‘(iii) not to discourage Federal employees

15 from filing complaints on any matter relating to

16 discrimination in violation of this section; and

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

18 participate in counseling made available under

19 clause (i) or in a dispute resolution process

20 made available under clause (ii).’’,

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

22 and inserting the following:

23 ‘‘(2) The’’,
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1 (D) in the fourth sentence by redesignating

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

3 and (B), respectively,

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

5 and inserting the following:

6 ‘‘(3) With’’, and

7 (F) by adding at the end the following:

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

9 employment practice of the kind described in section

10 704(a) is established under this section if an employee or

11 applicant for employment demonstrates that his making

12 a charge, testifying, assisting, or participating in any man13 ner in an investigation, proceeding, or hearing under this

14 title was a contributing factor in an adverse personnel ac15 tion that was taken or is to be taken against such em16 ployee or applicant.

17 ‘‘(B) Relief under this section may not be granted

18 if the respondent demonstrates by clear and convincing

19 evidence that it would have taken the same personnel ac20 tion in the absence of such disclosure.’’,

21 (2) by striking subsection (c),

22 (3) in subsection (d)—

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

24 (B) by striking ‘‘(k)’’ and inserting ‘‘(j)’’,
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1 (C) by striking ‘‘brought hereunder’’ and

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

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

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

5 which discrimination in violation of subsection (a) is al6 leged to have occurred shall be the defendant in a civil

7 action alleging such violation. If a department, unit, or

8 agency is named as the defendant, the court shall freely

9 grant leave to amend the complaint to name the head of

10 such department, agency, or unit.

11 ‘‘(3) In any action or proceeding under this section,

12 the court, in its discretion, may allow the prevailing party

13 (other than an entity of the Federal Government) a rea14 sonable attorney’s fee (including expert fees) and costs as

15 a court has authority to award under section 706(k), as

16 amended from time to time, and the same interest to com17 pensate for delay in payment as in cases involving

18 nonpublic parties.’’,

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

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

21 (5) by inserting after subsection (b) the follow22 ing:

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

24 a complaint filed by or on behalf of a Federal employee

25 or a class of Federal employees and alleging a claim of
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1 discrimination arising under subsection (a) shall name as

2 the respondent, and be filed with, the head of the depart3 ment, agency, or unit in which such discrimination is al4 leged to have occurred, or with the Commission, not later

5 than 180 days after the alleged discrimination occurs.

6 ‘‘(B) If, not later than 180 days after the alleged dis7 crimination occurs, the complaint is filed—

8 ‘‘(i) with such department, agency, or unit and

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

10 unit as the respondent; or

11 ‘‘(ii) with any other entity of the Federal Gov12 ernment, regardless of the respondent named;

13 the complaint shall be considered to be filed in compliance

14 with subparagraph (A).

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

16 Federal Government other than the department, agency,

17 or unit in which such discrimination is alleged to have oc18 curred, then—

19 ‘‘(i) such entity (other than the Commission)

20 shall transmit the complaint to the Commission, not

21 later than 15 days after receiving the complaint; and

22 ‘‘(ii) the Commission shall transmit a copy of

23 the complaint, not later than 10 days after receiving

24 the complaint, to the head of the department, agen25 cy, or unit in which such discrimination is alleged to
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1 have occurred (hereinafter in this section referred to

2 as the ‘respondent’).

3 ‘‘(3)(A) Not later than 3 days after the respondent

4 receives the complaint from a source other than the Com5 mission, the respondent shall notify the Commission that

6 the respondent has received the complaint and shall in7 form the Commission of the identity of the Federal em8 ployee aggrieved by the discrimination alleged in the

9 complaint.

10 ‘‘(B) Not later than 10 days after the respondent or

11 the Merit Systems Protection Board receives the com12 plaint from a source other than the Commission, the re13 spondent or the Board shall transmit to the Commission

14 a copy of the complaint.

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

16 respondent receives the complaint and ending on the latest

17 date by which all administrative and judicial proceedings

18 available under this section have been concluded with re19 spect to such claim, the respondent shall collect and pre20 serve documents and information (including the com21 plaint) that are relevant to such claim, including the docu22 ments and information that comply with rules issued by

23 the Commission.

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

25 to conciliate each claim alleged in the complaint during—
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1 ‘‘(A) the 30-day period; or

2 ‘‘(B) with the written consent of the aggrieved

3 Federal employee, the 60-day period;

4 beginning on the date the respondent receives the

5 complaint.

6 ‘‘(2) Before the expiration of the applicable period

7 specified in paragraph (1) and with respect to such claim,

8 the respondent shall—

9 ‘‘(A) enter into a settlement agreement with

10 such Federal employee; or

11 ‘‘(B) give formal written notice to such Federal

12 employee that such Federal employee may, before

13 the expiration of the 90-day period beginning on the

14 date such Federal employee receives such notice, ei15 ther—

16 ‘‘(i) file with the Commission—

17 ‘‘(I) a written request for a deter18 mination of such claim under subsection

19 (f) by an administrative judge of the

20 Commission;

21 ‘‘(II) if such claim alleges discrimina22 tion in the Commission or alleges an action

23 appealable to the Merit Systems Protection

24 Board, a written request electing that a

25 determination of such claim be made under
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1 the procedures specified in either subpara2 graph (A) or (B) of section 7702(a)(2) of

3 title 5, United States Code, or a request

4 described in subclause (I); or

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

6 that is subject to section 7121 of title 5,

7 United States Code, but not appealable to

8 the Merit Systems Protection Board, a

9 written request to raise such claim under

10 the administrative and judicial procedures

11 provided in such section 7121 or a request

12 described in subclause (I); or

13 ‘‘(ii) commence a civil action in an appro14 priate district court of the United States for de

15 novo review of such claim.

16 ‘‘(3)(A) Such Federal employee may file a written re17 quest described in paragraph (2)(B)(i), or commence a

18 civil action described in paragraph (2)(B)(ii), at any

19 time—

20 ‘‘(i) after the expiration of the applicable period

21 specified in paragraph (1); and

22 ‘‘(ii) before the expiration of the 90-day period

23 specified in paragraph (2).

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

25 under subclause (II) or (III) of paragraph (2)(B)(i) and
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1 in accordance with subparagraph (A), the Commission

2 shall transmit, not later than 10 days after receipt of such

3 request, the complaint to the appropriate agency for

4 determination.

5 ‘‘(f)(1) If such Federal employee files a written re6 quest under subsection (e)(2)(B)(i)(I) and in accordance

7 with subsection (e)(3)(A) with the Commission for a deter8 mination under this subsection of a claim with respect to

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

10 Commission shall transmit a copy of such request to the

11 respondent and shall appoint an administrative judge of

12 the Commission to determine such claim.

13 ‘‘(2) Immediately after receiving a copy of a request

14 under subsection (e)(2)(B)(i), the respondent shall trans15 mit—

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

17 a determination under this subsection; or

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

19 such request is for a determination be made under

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

21 title 5, United States Code;

22 a copy of all documents and information collected by the

23 respondent under subsection (d) with respect to such

24 claim.
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1 ‘‘(3)(A)(i) If the administrative judge determines

2 there are reasonable grounds to believe that to carry out

3 the purposes of this section it is necessary to stay a per4 sonnel action by the respondent against the aggrieved

5 Federal employee, the administrative judge may request

6 any member of the Commission to issue a stay against

7 such personnel action for 15 calendar days.

8 ‘‘(ii) A stay requested under clause (i) shall take ef9 fect on the earlier of—

10 ‘‘(I) the order of such member; and

11 ‘‘(II) the fourth calendar day (excluding Satur12 day, Sunday, and any legal public holiday) following

13 the date on which such stay is requested unless the

14 request is denied before the expiration of the 15-day

15 period beginning on such fourth day.

16 ‘‘(B) The administrative judge may request any

17 member of the Commission to extend, for a period not to

18 exceed 30 calendar days, a stay issued under subpara19 graph (A).

20 ‘‘(C) The administrative judge may request the Com21 mission to extend such stay for any period the Commission

22 considers to be appropriate beyond the period in effect

23 under subparagraph (A) or (B).

24 ‘‘(D)(i) Members of the Commission shall have au25 thority to issue and extend a stay for the periods referred
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1 to in subparagraphs (A) and (B). The Commission shall

2 have authority to extend a stay in accordance with sub3 paragraph (C) for any period.

4 ‘‘(ii) The respondent shall comply with a stay in ef5 fect under this paragraph.

6 ‘‘(4) The administrative judge shall determine wheth7 er the documents and information received under para8 graph (2) comply with subsection (d) and are complete

9 and accurate. If the administrative judge finds that the

10 respondent has failed to produce the documents and infor11 mation necessary to comply with such subsection, the ad12 ministrative judge shall, in the absence of good cause

13 shown by the respondent, impose any of the sanctions

14 specified in paragraph (6)(C) and shall require the re15 spondent—

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

17 information necessary to comply with such sub18 section; and

19 ‘‘(B) to correct any inaccuracy in the docu20 ments and information so received.

21 ‘‘(5)(A) After examining the documents and informa22 tion received under paragraph (4), the administrative

23 judge shall issue an order dismissing—

24 ‘‘(i) any frivolous claim alleged in the com25 plaint; and
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1 ‘‘(ii) the complaint if it fails to state a

2 nonfrivolous claim for which relief may be granted

3 under this section.

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

5 subparagraph (A), the administrative judge shall give for6 mal written notice to the aggrieved Federal employee that

7 such Federal employee may, before the expiration of the

8 90-day period beginning on the date such Federal em9 ployee receives such notice—

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

11 for appellate review of such order; or

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

13 district court of the United States for de novo review

14 of such claim or such complaint.

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

16 action in the 90-day period specified in clause (i).

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

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

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

20 merits of each claim that is not dismissed under such

21 paragraph. The administrative judge shall make a deter22 mination on the merits of any other nonfrivolous claim

23 under this title, and on any action such Federal employee

24 may appeal to the Merit Systems Protection Board, rea-
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1 sonably expected to arise from the facts on which the com2 plaint is based.

3 ‘‘(ii) On the request of the aggrieved Federal em4 ployee, the administrative judge shall—

5 ‘‘(I) determine whether the administrative pro6 ceeding with respect to such claim may be main7 tained as a class proceeding; and

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

9 maintained, shall describe those whom the adminis10 trative judge finds to be members of such class.

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

12 discovery by such means as may be available in a civil ac13 tion to the extent deemed appropriate by the administra14 tive judge.

15 ‘‘(C) If the aggrieved Federal employee or the re16 spondent fails without good cause to respond fully and in

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

18 administrative judge for information or the attendance of

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

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

21 the administrative judge shall—

22 ‘‘(i) draw an adverse inference that the re23 quested information, or the testimony of the re24 quested witness, would have reflected unfavorably on

25 the party who so fails to respond;
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1 ‘‘(ii) consider the matters to which such infor2 mation or such testimony pertains to be established

3 in favor of the opposing party;

4 ‘‘(iii) exclude other evidence offered by the

5 party who so fails to respond;

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

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

8 706(g); and

9 ‘‘(II) compensatory damages for unlawful

10 intentional discrimination (not an employment

11 practice that is unlawful because of its dispar12 ate impact) prohibited under this section, sub13 ject to the limitations specified in section

14 1977A(b)(3) of the Revised Statutes of the

15 United States;

16 to the aggrieved Federal employee; or

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

18 judge considers to be appropriate.

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

20 judge shall—

21 ‘‘(i) limit attendance to persons who have a di22 rect connection with such claim;

23 ‘‘(ii) bring out pertinent facts and relevant em24 ployment practices and policies, but—
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1 ‘‘(I) exclude irrelevant or unduly repeti2 tious information; and

3 ‘‘(II) not apply the Federal Rules of Evi4 dence strictly;

5 ‘‘(iii) permit all parties to examine and cross

6 examine witnesses; and

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

8 oath or affirmation.

9 ‘‘(E) At the request of any party or the administra10 tive judge, a transcript of all or part of such hearing shall

11 be provided in a timely manner and simultaneously to the

12 parties and the Commission. The respondent shall bear

13 the cost of providing such transcript.

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

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

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

17 ‘‘(iii) to rule on offers of proof and receive

18 evidence;

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

20 ‘‘(I) the production of documents or infor21 mation by the entity of the Federal Government

22 in which discrimination is alleged to have oc23 curred; and

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

25 Federal officers or employees of such entity;
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1 ‘‘(v) to request the Commission to issue subpoe2 nas to compel the production of documents or infor3 mation by any other entity of the Federal Govern4 ment and the attendance of other witnesses, except

5 that any witness who is not an officer or employee

6 of an entity of the Federal Government may be com7 pelled only to attend any place—

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

9 where such witness resides, is employed, trans10 acts business in person, or is served; or

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

12 fixed by the administrative judge;

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

14 that requests the subpoena, to the same extent that

15 fees and allowances are paid to witnesses under

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

17 amended from time to time;

18 ‘‘(vi) to exclude witnesses whose testimony

19 would be unduly repetitious;

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

21 contumacious conduct, or for misbehavior, that ob22 structs such hearing; and

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

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

25 706(g); and
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1 ‘‘(II) compensatory damages for unlawful

2 intentional discrimination (not an employment

3 practice that is unlawful because of its dispar4 ate impact) prohibited under this section, sub5 ject to the limitations specified in section

6 1977A(b)(3) of the Revised Statutes of the

7 United States.

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

9 shall have authority to award—

10 ‘‘(i) a reasonable attorney’s fee (including ex11 pert fees) and costs as a court has authority to

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

13 to time; and

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

15 in payment as in cases involving nonpublic parties.

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

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

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

19 subpoena issued under subparagraph (F) or (H), the

20 United States district court for the judicial district in

21 which the person to whom the subpoena is addressed re22 sides or is served may issue an order requiring such person

23 to appear at any designated place to testify or to produce

24 documentary or other evidence.
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1 ‘‘(7)(A) Except as provided in subparagraph (B), the

2 administrative judge shall issue a written order making

3 the determination required by paragraph (6)(A), and

4 granting or denying relief, not later than—

5 ‘‘(i) 210 days after the complaint containing

6 such claim is filed on behalf of a Federal employee;

7 or

8 ‘‘(ii) 270 days after the complaint containing

9 such claim is filed on behalf of a class of Federal

10 employees;

11 except that these time periods shall not begin running

12 until 30 days after the administrative judge is assigned

13 to the case if the administrative judge certifies, in writing,

14 that such 30-day period is needed to secure additional doc15 uments or information from the respondent to have a com16 plete administrative record.

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

18 not later than 30 days after the applicable period specified

19 in subparagraph (A) if the administrative judge certifies

20 in writing, before the expiration of such applicable pe21 riod—

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

23 make such determination; and

24 ‘‘(ii) the particular and unusual circumstances

25 that prevent the administrative judge from comply-
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1 ing with the applicable period specified in subpara2 graph (A).

3 ‘‘(C) The administrative judge may apply to the Com4 mission to extend any period applicable under subpara5 graph (A) or (B) if manifest injustice would occur in the

6 absence of such an extension.

7 ‘‘(D) The Commission—

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

9 ‘‘(ii) shall terminate such extension;

10 if the aggrieved Federal employee shows that such exten11 sion would prejudice a claim of, or otherwise harm, such

12 Federal employee.

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

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

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

16 beginning on the date such party receives such order—

17 ‘‘(i) the aggrieved Federal employee may com18 mence a civil action in an appropriate district court

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

20 with respect to which such order is issued; and

21 ‘‘(ii) unless and until a civil action is com22 menced in such 90-day period under clause (i) with

23 respect to such claim, any party may file with the

24 Commission a written request for appellate review of
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1 the determination made, and relief granted or de2 nied, in such order with respect to such claim.

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

4 civil action at any time—

5 ‘‘(i) after the expiration of the applicable period

6 specified in subparagraph (A) or (B); and

7 ‘‘(ii) before the expiration of the 90-day period

8 beginning on the date such Federal employee re9 ceives an order described in subparagraph (A).

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

11 and if such employee neither—

12 ‘‘(i) commences a civil action in accordance with

13 subparagraph (E)(i); nor

14 ‘‘(ii) requests appellate review in accordance

15 with subparagraph (E)(ii);

16 with respect to a particular claim, then the determination

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

18 such particular claim shall be enforceable immediately.

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

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

21 with the Commission for appellate review of the deter22 mination made, and relief granted or denied, with respect

23 to a claim in such order, then the Commission shall imme24 diately transmit a copy of such request to the other parties
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1 involved and to the administrative judge who issued such

2 order.

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

4 such request, the administrative judge shall transmit to

5 the Commission the record of the proceeding on which

6 such order is based, including all documents and informa7 tion collected by the respondent under subsection (d).

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

9 respect to such determination, the Commission shall issue

10 an order with respect to such claim affirming, reversing,

11 or modifying the applicable provisions of the order of the

12 administrative judge not later than—

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

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

15 Commission certifies in writing, before the expiration

16 of such 150-day period—

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

18 to review such claim; and

19 ‘‘(II) the particular and unusual cir20 cumstances that prevent the Commission from

21 complying with clause (i).

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

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

24 judge with respect to such claim if such determination and

25 such relief are supported by substantial evidence in the
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1 record taken as a whole and are otherwise in accordance

2 with law. The findings of fact of the administrative judge

3 shall be conclusive unless the Commission determines that

4 they are clearly erroneous.

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

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

7 written notice to the aggrieved Federal employee that, be8 fore the expiration of the 90-day period beginning on the

9 date such Federal employee receives such order, such Fed10 eral employee may commence a civil action in an appro11 priate district court of the United States for de novo re12 view of a claim with respect to which such order is issued.

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

14 civil action at any time—

15 ‘‘(i) after the expiration of the applicable period

16 specified in subparagraph (A); and

17 ‘‘(ii) before the expiration of the 90-day period

18 specified in subparagraph (C).

19 ‘‘(h)(1) In addition to the periods authorized by sub20 sections (f)(7)(E) and (g)(3)(D)—

21 ‘‘(A) during the period beginning 300 days

22 after an aggrieved Federal employee timely requests

23 an administrative determination under subsection (f)

24 with respect to a claim and ending on the date the
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1 administrative judge issues an order under such sub2 section with respect to such claim; and

3 ‘‘(B) during the period beginning 180 days

4 after such Federal employee timely requests appel5 late review under subsection (g) of such determina6 tion with respect to such claim and ending on the

7 date the Commission issues an order under such

8 subsection with respect to such claim;

9 such Federal employee may commence a civil action in an

10 appropriate district court of the United States for de novo

11 review of such claim.

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

13 otherwise in accordance with this section to determine the

14 merits of a claim arising under this section, the jurisdic15 tion of the administrative judge or the Commission (as

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

17 shall terminate.

18 ‘‘(i) A Federal employee who prevails on a claim aris19 ing under this section, or the Commission, may bring a

20 civil action in an appropriate district court of the United

21 States to enforce—

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

23 applicable to such claim;
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1 ‘‘(2) the provisions of an order issued by an ad2 ministrative judge under subsection (f)(7)(A) appli3 cable to such claim if—

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

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

6 Commission; and

7 ‘‘(B) a civil action is not commenced time8 ly under subsection (g)(3)(D) for de novo

9 review;

10 of such claim; or

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

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

13 such claim if a civil action is not commenced timely

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

15 such claim.

16 ‘‘(j) Any amount awarded under this section (includ17 ing fees, costs, and interest awarded under subsection

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

19 with respect to a violation of subsection (a), shall be paid

20 by the entity of the Federal Government that violated such

21 subsection from any funds made available to such entity

22 by appropriation or otherwise.

23 ‘‘(k) An entity of the Federal Government against

24 which a claim of discrimination is alleged in a complaint

25 filed in an administrative proceeding or a civil action
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1 under this section shall grant the aggrieved Federal em2 ployee paid administrative leave for time reasonably ex3 pended to prepare for, and participate in, such proceeding

4 or action. Such leave shall be granted in accordance with

5 regulations issued by the Commission, except that such

6 leave shall include reasonable time for—

7 ‘‘(1) preparation of a complaint based on such

8 allegation;

9 ‘‘(2) attendance at such proceeding or action;

10 ‘‘(3) attendance at depositions;

11 ‘‘(4) meetings with counsel; and

12 ‘‘(5) other ordinary and legitimate undertakings

13 in such proceeding or action, that require the pres14 ence of such Federal employee.

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

16 by an administrative judge or the Commission, the Com17 mission may make a written determination that—

18 ‘‘(A) any officer or employee of the agency, de19 partment, or unit charged with complying with such

20 order, or

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

22 States determined to be responsible for the failure of

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

24 order,
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1 who is not an officer or employee appointed by the Presi2 dent by and with the advice and consent of the Senate,

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

4 officer or employee for the period during which such order

5 has not been complied with. The Commission shall certify

6 to the Comptroller General of the United States that a

7 determination under this paragraph has been made, and

8 no payment shall be made out of the Treasury of the

9 United States for any service specified in such determina10 tion.

11 ‘‘(2) In enforcing compliance with such order with re12 spect to any officer or employee described in subparagraph

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

14 appointed by the President by and with the advice and

15 consent of the Senate, the Commission may notify the

16 President that such officer or employee has failed to obey

17 such order.

18 ‘‘(m) If with respect to the merits of a claim of inten19 tional discrimination (other than an employment practice

20 that is unlawful because of its disparate impact) prohib21 ited by this section, a Federal employee prevails in a pro22 ceeding under subsection (f) or a civil action commenced

23 under this section, the finder of fact in such proceeding

24 shall identify each individual believed to have engaged in

25 conduct that is the basis of such discrimination. Not later
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1 than 15 days after issuing an order finding liability under

2 this section, the administrative judge or the district court

3 involved shall notify the Office of Special Counsel of the

4 identity of such individual and the fact that such individ5 ual is believed to have engaged in conduct that is the basis

6 of liability found on such claim in such proceeding or

7 action.

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

9 effective date of the Federal Employee Fairness Act of

10 1993, shall apply with respect to employment in the

11 Library of Congress.’’.

12 SEC. 3. AMENDMENTS TO THE AGE DISCRIMINATION IN EM13 PLOYMENT ACT AND THE REHABILITATION

14 ACT OF 1973.

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

16 Age Discrimination in Employment Act of 1967 (29

17 U.S.C. 633a) is amended—

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

19 (B) by inserting after subsection (b) the follow20 ing:

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

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

23 of this section may file a complaint with the Commission

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

25 1964.
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1 ‘‘(B) Subsections (c) and (d) of this section, as in

2 effect immediately before the effective date of the Federal

3 Employee Fairness Act of 1993, shall apply with respect

4 to employment in the Library of Congress.

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

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

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

8 same manner as such section applies to a claim arising

9 under section 717 of such Act.

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

11 this section does not file a complaint under subsection

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

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

14 Commission a notice of intent to commence such ac15 tion; and

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

17 violation of this section occurs;

18 in an appropriate district court of the United States for

19 de novo review of such violation.

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

21 shall—

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

23 notice as prospective defendants in such action; and

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

25 elimination of any unlawful practice.
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1 ‘‘(3) Section 717(o) of the Civil Rights Act of 1964

2 (42 U.S.C. 2000e–16(o)) shall apply to civil actions com3 menced under this subsection in the same manner as such

4 section applies to civil actions commenced under section

5 717 of the Civil Rights Act of 1964.’’.

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

7 U.S.C. 794a) is amended—

8 (A) in subsection (a)(1)—

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

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

11 ‘‘706(j)’’,

12 (iii) by striking ‘‘through (k)’’ and insert13 ing ‘‘through (j)’’, and

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

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

16 immediately before the effective date of the Federal Em17 ployee Fairness Act of 1993, shall apply with respect to

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

19 (B) in subsection (b) by striking ‘‘In’’ and in20 serting ‘‘Except as provided in subsection (a)(1),

21 in’’.

22 (b) OPPORTUNITY TO COMMENCE CIVIL ACTION.—

23 If a complaint filed under section 15 of the Age Discrimi24 nation in Employment Act of 1967 (29 U.S.C. 633a), or

25 section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
32

•HR 2721 IH

1 791)), with the Equal Employment Opportunity Commis2 sion is pending in the period beginning on the date of the

3 enactment of this Act and ending on December 31, 1994,

4 the individual who filed such complaint may commence a

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

6 1995.

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

8 CODE.

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

10 5, United States Code, is amended—

11 (1) in subsection (a)(1) by inserting ‘‘adminis12 trative’’ after ‘‘exclusive’’, and

13 (2) in subsection (d)—

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

15 (B) in the first and second sentences by

16 striking ‘‘An’’ and inserting ‘‘Except as pro17 vided in paragraph (2), an’’,

18 (C) in the last sentence by striking ‘‘Selec19 tion’’ and all that follows through ‘‘any other’’,

20 and inserting the following:

21 ‘‘(3) An employee may commence, not later than 120

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

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

24 a’’, and
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1 (D) by inserting after the second sentence

2 the following:

3 ‘‘(2) Matters covered under section 7702, or under

4 a law administered by the Equal Employment Opportunity

5 Commission, may be raised under the negotiated grievance

6 procedure in accordance with this section only if an em7 ployee elects under section 717(e)(2)(B)(i)(III) of the Civil

8 Rights Act of 1964 to proceed under this section.’’.

9 (b) ACTIONS INVOLVING DISCRIMINATION.—Section

10 7702 of title 5, United States Code, is amended to read

11 as follows:

12 ‘‘§ 7702. Actions involving discrimination

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

14 in the case of any employee or applicant for employment

15 who—

16 ‘‘(A) is affected by—

17 ‘‘(i) an action which the employee or appli18 cant may appeal to the Merit Systems Protec19 tion Board, or

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

21 (i)—

22 ‘‘(I) on the part the Equal Employ23 ment Opportunity Commission, and

24 ‘‘(II) with respect to which the em25 ployee or applicant makes an election
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1 under section 717(e)(2)(B)(i)(II) of the

2 Civil Rights Act of 1964, and

3 ‘‘(B) alleges that a basis for the action was dis4 crimination prohibited by—

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

6 1964 (42 U.S.C. 2000a–16),

7 ‘‘(ii) section 6(d) of the Fair Labor Stand8 ards Act of 1938 (29 U.S.C. 206(d)),

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

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

11 ‘‘(iv) sections 12 and 13 of the Age Dis12 crimination in Employment Act of 1967 (29

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

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

15 prescribed under any provision of law described

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

17 the employee or applicant may raise the action as provided

18 in paragraph (2).

19 ‘‘(2) For purposes of paragraph (1), the employee

20 shall raise the action by filing a complaint with the Equal

21 Employment Opportunity Commission in accordance with

22 section 717 of the Civil Rights Act of 1964 and shall make

23 a request under section 717(e)(2)(B)(i) selecting the pro24 cedures specified in one of the following subparagraphs:
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•HR 2721 IH

1 ‘‘(A) The administrative and judicial procedures

2 provided under sections 7701 and 7703.

3 ‘‘(B) The administrative and judicial procedures

4 provided under section 7121.

5 ‘‘(C) The administrative and judicial procedures

6 provided under section 717 of the Civil Rights Act

7 of 1964.

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

9 Employment Opportunity Commission) that carries out

10 such procedures shall apply the substantive law that is ap11 plied by the agency that administers the particular law

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

13 alleged to be the basis of the action referred to in sub14 section (a)(1)(A).

15 ‘‘(b) If—

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

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

18 ‘‘(2) the Equal Employment Opportunity Com19 mission dismisses under section 717(f)(5)(A) of the

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

21 the action raised by the employee,

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

23 the action under the procedures specified in subparagraph

24 (A) or (B) of subsection (a)(2), except that no allegation
36

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

2 under this subsection.

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

4 election made under section 717(e)(2)(B)(i) of the Civil

5 Rights Act of 1964 to raise an action under the proce6 dures specified in subsection (a)(2)(A) there is no judi7 cially reviewable action, an employee shall be entitled to

8 file, not later than 240 days after making such election,

9 a civil action in an appropriate district court of the United

10 States for de novo review of the action raised under sub11 section (a).

12 ‘‘(d) Nothing in this section shall be construed to af13 fect the right to trial de novo under any provision of law

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

15 action.’’.

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

17 5, United States Code, is amended by adding at the end

18 the following:

19 ‘‘(g)(1) Whenever the Office of Special Counsel re20 ceives any notification, in accordance with section 717(m)

21 of the Civil Rights Act of 1964, with respect to a claim

22 arising under section 717(a) of the Civil Rights Act of

23 1964, section 15(a) of the Age Discrimination in Employ24 ment Act of 1967, or section 501 of the Rehabilitation

25 Act of 1973, the Special Counsel shall investigate the mat-
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1 ter to the extent necessary to determine whether there are

2 reasonable grounds to believe that a prohibited personnel

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

4 if so, shall seek the appropriate disciplinary action under

5 section 1215.

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

7 made not later than 180 days after the appropriate date

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

9 in such paragraph.

10 ‘‘(3)(A) With respect to a claim—

11 ‘‘(i) to which an order issued by an administra12 tive judge of the Equal Employment Opportunity

13 Commission applies, and

14 ‘‘(ii) with respect to which the aggrieved em15 ployee neither—

16 ‘‘(I) commences a civil action in accord17 ance with section 717(f)(7)(E)(i) of the Civil

18 Rights Act of 1964, nor

19 ‘‘(II) requests appellate review in accord20 ance with section 717(f)(7)(E)(ii) of the Civil

21 Rights Act of 1964,

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

23 Special Counsel receives notification (referred to in para24 graph (1)) from the administrative judge.

25 ‘‘(B) With respect to a claim—
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1 ‘‘(i) to which an order issued by the Equal Em2 ployment Opportunity Commission applies, and

3 ‘‘(ii) with respect to which the aggrieved em4 ployee does not commence a civil action in accord5 ance with section 717(g)(3)(D),

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

7 Special Counsel receives notification (referred to in para8 graph (1)) from the Commission.

9 ‘‘(C) With respect to a claim to which a final judg10 ment issued by a court of the United States applies, the

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

12 Counsel receives notification (referred to in paragraph (1))

13 from such court.

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

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

16 the merits;

17 ‘‘(B) the term ‘judgment’ means a judgment is18 sued on the merits; and

19 ‘‘(C) the term ‘final judgment’ means a judg20 ment that is either—

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

22 has authority to review such judgment; or

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

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

25 amended—
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•HR 2721 IH

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

2 and

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

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

5 under the first sentence of subsection (a) shall specify the

6 extent to which such information relates to any matter re7 ferred to in section 1214(g).’’.

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

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

10 following:

11 ‘‘§ 2306. Federal personnel records

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

13 ‘‘(1) the term ‘personnel action’ has the mean14 ing given such term in section 2302(a)(2)(A);

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

16 such term in section 552a(a)(4); and

17 ‘‘(3) the term ‘employee’ means—

18 ‘‘(A) an employee as defined by section

19 2105; and

20 ‘‘(B) an employee of the United States

21 Postal Service or the Postal Rate Commission;

22 but does not include any employee with respect to

23 whom section 117, or title III (excluding section

24 320), of the Civil Rights Act of 1991 applies.
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1 ‘‘(b) Records relating to any personnel action taken

2 with respect to an employee shall be maintained by the

3 employing authority for at least the greater of—

4 ‘‘(1) 270 days after the effective date of the

5 personnel action to which they relate; or

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

7 under applicable provisions of law, rule, or regula8 tion, if any.

9 ‘‘(c) The Office of Personnel Management shall pre10 scribe regulations for the implementation of this section

11 by an Executive agency.’’.

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

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

14 following:

‘‘2306. Federal personnel records.’’.

15 (e) FILING DEADLINE.—Section 7703(b)(2) of title

16 5, United States Code, is amended by striking ‘‘30 days’’

17 and inserting ‘‘90 days’’.

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

19 title 5, United States Code, is amended—

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

21 and

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

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

24 required, in the case of an appeal from an action, if—
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•HR 2721 IH

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

2 action appealable to the Board;

3 ‘‘(ii) the appeal is brought by an individual with

4 respect to whom notification has been received by

5 the Office of Special Counsel under section 717(m)

6 of the Civil Rights Act of 1964; and

7 ‘‘(iii) 1 of the grounds for the action being ap8 pealed is discrimination of a type described in sec9 tion 2302(b)(1).’’.

10 SEC. 5. TECHNICAL AMENDMENTS.

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

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

13 Commission’’ each place it appears and inserting ‘‘Com14 mission’’.

15 SEC. 6. ISSUANCE OF PROCEDURAL GUIDELINES AND NO16 TICE RULES.

17 After providing notice in accordance with section

18 553(b) of title 5, United States Code, and not later than

19 1 year after the date of the enactment of this Act, the

20 Equal Employment Opportunity Commission shall issue—

21 (1) rules to assist entities of the Federal Gov22 ernment to comply with section 717(d) of the Civil

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

24 Act, and

25 (2) rules establishing—
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•HR 2721 IH

1 (A) a uniform written official notice to be

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

3 added by section 2 of this Act, and

4 (B) detailed requirements applicable to col5 lecting and preserving documents and informa6 tion under section 717(d), as added by section

7 2 of this Act.

8 SEC. 7. RULES OF CONSTRUCTION.

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

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

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

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

13 by this Act.

14 SEC. 8. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

15 (a) EFFECTIVE DATE.—Except as provided in sub16 section (b), this Act and the amendments made by this

17 Act shall take effect on January 1, 1995.

18 (b) APPLICATION OF AMENDMENTS.—Except as pro19 vided in section 7, the amendments made by this Act

20 (other than sections 3 and 4) shall apply only with respect

21 to complaints filed under section 717 of the Civil Rights

22 Act of 1964 (42 U.S.C. 2000e–16) on or after the effective

23 date of this Act.

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