```

[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2721 Introduced in House (IH)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Employee Fairness Act of 
1993''.

SEC. 2. AMENDMENTS RELATING TO ADMINISTRATIVE DETERMINATION OF FEDERAL 
              EMPLOYEE DISCRIMINATION CLAIMS.

    (a) Definitions.--Section 701 of the Civil Rights Act of 1964 (42 
U.S.C. 2000e) is amended--
            (1) in paragraph (f) by striking ``The term'' and inserting 
        ``Except when it appears as part of the term `Federal 
        employee', the term'', and
            (2) by adding at the end the following:
    ``(o) The term `Commission' means the Equal Employment Opportunity 
Commission.
    ``(p) The term `entity of the Federal Government' means an entity 
to which section 717(a) applies, except that such term does not include 
the Library of Congress.
    ``(q) The term `Federal employee' means an individual employed by, 
or who applies for employment with, an entity of the Federal 
Government.
    ``(r) The term `Federal employment' means employment by an entity 
of the Federal Government.
    ``(s) The terms `government', `government agency', and `political 
subdivision' do not include an entity of the Federal Government.''.
    (b) EEOC Determination of Federal Employment Discrimination 
Claims.--Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
16) is amended--
            (1) in subsection (b)--
                    (A) by inserting ``(1)'' after ``(b)'',
                    (B) in the second sentence--
                            (i) by redesignating paragraphs (1), (2), 
                        and (3), as subparagraphs (A), (B), and (C), 
                        respectively,
                            (ii) in the subparagraph (B), as so 
                        redesignated, by striking ``and'' at the end,
                            (iii) in subparagraph (C), as so 
                        redesignated, by striking the period at the end 
                        and inserting ``; and'', and
                            (iv) by inserting after subparagraph (C), 
                        as so redesignated, the following:
            ``(D) require each entity of the Federal Government--
                    ``(i) to make counseling available to Federal 
                employees who choose to notify such entity that they 
                believe such entity has discriminated against them in 
                violation of subsection (a), for the purpose of trying 
                to resolve the matters with respect to which such 
                discrimination is alleged (Such entity shall assist 
                such employee to identify the respondent required by 
                subsection (c)(1) to be named in a complaint alleging 
                such violation, shall inform such Federal employee 
                individually of the procedures and deadlines that apply 
                under this section to a claim alleging such 
                discrimination, and shall make such counseling 
                available throughout the administrative process.);
                    ``(ii) to establish a voluntary alternative dispute 
                process to resolve complaints, except that a Federal 
                employee's decision to forgo such process shall not 
                affect the rights of such employee under this title;
                    ``(iii) not to discourage Federal employees from 
                filing complaints on any matter relating to 
                discrimination in violation of this section; and
                    ``(iv) not to require Federal employees to 
                participate in counseling made available under clause 
                (i) or in a dispute resolution process made available 
                under clause (ii).'',
                    (C) in the third sentence by striking ``The'' and 
                inserting the following:
    ``(2) The'',
                    (D) in the fourth sentence by redesignating 
                paragraphs (1) and (2) as subparagraphs (A) and (B), 
                respectively,
                    (E) in the last sentence by striking ``With'' and 
                inserting the following:
    ``(3) With'', and
                    (F) by adding at the end the following:
    ``(4)(A) Subject to subparagraph (B), an unlawful employment 
practice of the kind described in section 704(a) is established under 
this section if an employee or applicant for employment demonstrates 
that his making a charge, testifying, assisting, or participating in 
any manner in an investigation, proceeding, or hearing under this title 
was a contributing factor in an adverse personnel action that was taken 
or is to be taken against such employee or applicant.
    ``(B) Relief under this section may not be granted if the 
respondent demonstrates by clear and convincing evidence that it would 
have taken the same personnel action in the absence of such 
disclosure.'',
            (2) by striking subsection (c),
            (3) in subsection (d)--
                    (A) by inserting ``(1)'' after ``(d)'',
                    (B) by striking ``(k)'' and inserting ``(j)'',
                    (C) by striking ``brought hereunder'' and inserting 
                ``commenced under this section'', and
                    (D) by adding at the end the following:
    ``(2) The head of the department, agency, or unit in which 
discrimination in violation of subsection (a) is alleged to have 
occurred shall be the defendant in a civil action alleging such 
violation. If a department, unit, or agency is named as the defendant, 
the court shall freely grant leave to amend the complaint to name the 
head of such department, agency, or unit.
    ``(3) In any action or proceeding under this section, the court, in 
its discretion, may allow the prevailing party (other than an entity of 
the Federal Government) a reasonable attorney's fee (including expert 
fees) and costs as a court has authority to award under section 706(k), 
as amended from time to time, and the same interest to compensate for 
delay in payment as in cases involving nonpublic parties.'',
            (4) by redesignating subsections (d) and (e) as subsections 
        (o) and (p), respectively, and
            (5) by inserting after subsection (b) the following:
    ``(c)(1)(A) Except as provided in subparagraph (B), a complaint 
filed by or on behalf of a Federal employee or a class of Federal 
employees and alleging a claim of discrimination arising under 
subsection (a) shall name as the respondent, and be filed with, the 
head of the department, agency, or unit in which such discrimination is 
alleged to have occurred, or with the Commission, not later than 180 
days after the alleged discrimination occurs.
    ``(B) If, not later than 180 days after the alleged discrimination 
occurs, the complaint is filed--
            ``(i) with such department, agency, or unit and fails to 
        name the head of the department, agency, or unit as the 
        respondent; or
            ``(ii) with any other entity of the Federal Government, 
        regardless of the respondent named;
the complaint shall be considered to be filed in compliance with 
subparagraph (A).
    ``(2)(A) If the complaint is filed with an entity of the Federal 
Government other than the department, agency, or unit in which such 
discrimination is alleged to have occurred, then--
            ``(i) such entity (other than the Commission) shall 
        transmit the complaint to the Commission, not later than 15 
        days after receiving the complaint; and
            ``(ii) the Commission shall transmit a copy of the 
        complaint, not later than 10 days after receiving the 
        complaint, to the head of the department, agency, or unit in 
        which such discrimination is alleged to have occurred 
        (hereinafter in this section referred to as the `respondent').
    ``(3)(A) Not later than 3 days after the respondent receives the 
complaint from a source other than the Commission, the respondent shall 
notify the Commission that the respondent has received the complaint 
and shall inform the Commission of the identity of the Federal employee 
aggrieved by the discrimination alleged in the complaint.
    ``(B) Not later than 10 days after the respondent or the Merit 
Systems Protection Board receives the complaint from a source other 
than the Commission, the respondent or the Board shall transmit to the 
Commission a copy of the complaint.
    ``(d) Throughout the period beginning on the date the respondent 
receives the complaint and ending on the latest date by which all 
administrative and judicial proceedings available under this section 
have been concluded with respect to such claim, the respondent shall 
collect and preserve documents and information (including the 
complaint) that are relevant to such claim, including the documents and 
information that comply with rules issued by the Commission.
    ``(e)(1) The respondent shall make reasonable efforts to conciliate 
each claim alleged in the complaint during--
            ``(A) the 30-day period; or
            ``(B) with the written consent of the aggrieved Federal 
        employee, the 60-day period;
 beginning on the date the respondent receives the complaint.
    ``(2) Before the expiration of the applicable period specified in 
paragraph (1) and with respect to such claim, the respondent shall--
            ``(A) enter into a settlement agreement with such Federal 
        employee; or
            ``(B) give formal written notice to such Federal employee 
        that such Federal employee may, before the expiration of the 
        90-day period beginning on the date such Federal employee 
        receives such notice, either--
                    ``(i) file with the Commission--
                            ``(I) a written request for a determination 
                        of such claim under subsection (f) by an 
                        administrative judge of the Commission;
                            ``(II) if such claim alleges discrimination 
                        in the Commission or alleges an action 
                        appealable to the Merit Systems Protection 
                        Board, a written request electing that a 
                        determination of such claim be made under the 
                        procedures specified in either subparagraph (A) 
                        or (B) of section 7702(a)(2) of title 5, United 
                        States Code, or a request described in 
                        subclause (I); or
                            ``(III) if such claim alleges a grievance 
                        that is subject to section 7121 of title 5, 
                        United States Code, but not appealable to the 
                        Merit Systems Protection Board, a written 
                        request to raise such claim under the 
                        administrative and judicial procedures provided 
                        in such section 7121 or a request described in 
                        subclause (I); or
                    ``(ii) commence a civil action in an appropriate 
                district court of the United States for de novo review 
                of such claim.
    ``(3)(A) Such Federal employee may file a written request described 
in paragraph (2)(B)(i), or commence a civil action described in 
paragraph (2)(B)(ii), at any time--
            ``(i) after the expiration of the applicable period 
        specified in paragraph (1); and
            ``(ii) before the expiration of the 90-day period specified 
        in paragraph (2).
    ``(B) If such Federal employee files a written request under 
subclause (II) or (III) of paragraph (2)(B)(i) and in accordance with 
subparagraph (A), the Commission shall transmit, not later than 10 days 
after receipt of such request, the complaint to the appropriate agency 
for determination.
    ``(f)(1) If such Federal employee files a written request under 
subsection (e)(2)(B)(i)(I) and in accordance with subsection (e)(3)(A) 
with the Commission for a determination under this subsection of a 
claim with respect to which notice is required by subsection (e)(2), 
then the Commission shall transmit a copy of such request to the 
respondent and shall appoint an administrative judge of the Commission 
to determine such claim.
    ``(2) Immediately after receiving a copy of a request under 
subsection (e)(2)(B)(i), the respondent shall transmit--
            ``(A) to the Commission if such request is for a 
        determination under this subsection; or
            ``(B) to the Merit Systems Protection Board if such request 
        is for a determination be made under the procedures specified 
        in section 7702(a)(2)(A) of title 5, United States Code;
a copy of all documents and information collected by the respondent 
under subsection (d) with respect to such claim.
    ``(3)(A)(i) If the administrative judge determines there are 
reasonable grounds to believe that to carry out the purposes of this 
section it is necessary to stay a personnel action by the respondent 
against the aggrieved Federal employee, the administrative judge may 
request any member of the Commission to issue a stay against such 
personnel action for 15 calendar days.
    ``(ii) A stay requested under clause (i) shall take effect on the 
earlier of--
            ``(I) the order of such member; and
            ``(II) the fourth calendar day (excluding Saturday, Sunday, 
        and any legal public holiday) following the date on which such 
        stay is requested unless the request is denied before the 
        expiration of the 15-day period beginning on such fourth day.
    ``(B) The administrative judge may request any member of the 
Commission to extend, for a period not to exceed 30 calendar days, a 
stay issued under subparagraph (A).
    ``(C) The administrative judge may request the Commission to extend 
such stay for any period the Commission considers to be appropriate 
beyond the period in effect under subparagraph (A) or (B).
    ``(D)(i) Members of the Commission shall have authority to issue 
and extend a stay for the periods referred to in subparagraphs (A) and 
(B). The Commission shall have authority to extend a stay in accordance 
with subparagraph (C) for any period.
    ``(ii) The respondent shall comply with a stay in effect under this 
paragraph.
    ``(4) The administrative judge shall determine whether the 
documents and information received under paragraph (2) comply with 
subsection (d) and are complete and accurate. If the administrative 
judge finds that the respondent has failed to produce the documents and 
information necessary to comply with such subsection, the 
administrative judge shall, in the absence of good cause shown by the 
respondent, impose any of the sanctions specified in paragraph (6)(C) 
and shall require the respondent--
            ``(A) to obtain any additional documents and information 
        necessary to comply with such subsection; and
            ``(B) to correct any inaccuracy in the documents and 
        information so received.
    ``(5)(A) After examining the documents and information received 
under paragraph (4), the administrative judge shall issue an order 
dismissing--
            ``(i) any frivolous claim alleged in the complaint; and
            ``(ii) the complaint if it fails to state a nonfrivolous 
        claim for which relief may be granted under this section.
    ``(B)(i) If a claim or the complaint is dismissed under 
subparagraph (A), the administrative judge shall give formal written 
notice to the aggrieved Federal employee that such Federal employee 
may, before the expiration of the 90-day period beginning on the date 
such Federal employee receives such notice--
            ``(I) file with the Commission a written request for 
        appellate review of such order; or
            ``(II) commence a civil action in an appropriate district 
        court of the United States for de novo review of such claim or 
        such complaint.
    ``(ii) Such Federal employee may commence such civil action in the 
90-day period specified in clause (i).
    ``(6)(A)(i) If the complaint is not dismissed under paragraph 
(5)(A), the administrative judge shall make a determination, after an 
opportunity for a hearing, on the merits of each claim that is not 
dismissed under such paragraph. The administrative judge shall make a 
determination on the merits of any other nonfrivolous claim under this 
title, and on any action such Federal employee may appeal to the Merit 
Systems Protection Board, reasonably expected to arise from the facts 
on which the complaint is based.
    ``(ii) On the request of the aggrieved Federal employee, the 
administrative judge shall--
            ``(I) determine whether the administrative proceeding with 
        respect to such claim may be maintained as a class proceeding; 
        and
            ``(II) if the administrative proceeding may be so 
        maintained, shall describe those whom the administrative judge 
        finds to be members of such class.
    ``(B) With respect to such claim, a party may conduct discovery by 
such means as may be available in a civil action to the extent deemed 
appropriate by the administrative judge.
    ``(C) If the aggrieved Federal employee or the respondent fails 
without good cause to respond fully and in a timely fashion to a 
request made or approved by the administrative judge for information or 
the attendance of a witness, and if such information or such witness is 
solely in the control of the party who so fails to respond, then the 
administrative judge shall--
            ``(i) draw an adverse inference that the requested 
        information, or the testimony of the requested witness, would 
        have reflected unfavorably on the party who so fails to 
        respond;
            ``(ii) consider the matters to which such information or 
        such testimony pertains to be established in favor of the 
        opposing party;
            ``(iii) exclude other evidence offered by the party who so 
        fails to respond;
            ``(iv) grant full or partial relief, including--
                    ``(I) relief of the kinds described in section 
                706(g); and
                    ``(II) compensatory damages for unlawful 
                intentional discrimination (not an employment practice 
                that is unlawful because of its disparate impact) 
                prohibited under this section, subject to the 
                limitations specified in section 1977A(b)(3) of the 
                Revised Statutes of the United States;
        to the aggrieved Federal employee; or
            ``(v) take such other action the administrative judge 
        considers to be appropriate.
    ``(D) In a hearing on a claim, the administrative judge shall--
            ``(i) limit attendance to persons who have a direct 
        connection with such claim;
            ``(ii) bring out pertinent facts and relevant employment 
        practices and policies, but--
                    ``(I) exclude irrelevant or unduly repetitious 
                information; and
                    ``(II) not apply the Federal Rules of Evidence 
                strictly;
            ``(iii) permit all parties to examine and cross examine 
        witnesses; and
            ``(iv) require that testimony be given under oath or 
        affirmation.
    ``(E) At the request of any party or the administrative judge, a 
transcript of all or part of such hearing shall be provided in a timely 
manner and simultaneously to the parties and the Commission. The 
respondent shall bear the cost of providing such transcript.
    ``(F) The administrative judge shall have authority--
            ``(i) to administer oaths and affirmations;
            ``(ii) to regulate the course of hearings;
            ``(iii) to rule on offers of proof and receive evidence;
            ``(iv) to issue subpoenas to compel--
                    ``(I) the production of documents or information by 
                the entity of the Federal Government in which 
                discrimination is alleged to have occurred; and
                    ``(II) the attendance of witnesses who are Federal 
                officers or employees of such entity;
            ``(v) to request the Commission to issue subpoenas to 
        compel the production of documents or information by any other 
        entity of the Federal Government and the attendance of other 
        witnesses, except that any witness who is not an officer or 
        employee of an entity of the Federal Government may be 
        compelled only to attend any place--
                    ``(I) less than 100 miles from the place where such 
                witness resides, is employed, transacts business in 
                person, or is served; or
                    ``(II) at such other convenient place as is fixed 
                by the administrative judge;
        and shall be paid fees and allowances, by the party that 
        requests the subpoena, to the same extent that fees and 
        allowances are paid to witnesses under chapter 119 of title 28, 
        United States Code, as amended from time to time;
            ``(vi) to exclude witnesses whose testimony would be unduly 
        repetitious;
            ``(vii) to exclude any person from a hearing for 
        contumacious conduct, or for misbehavior, that obstructs such 
        hearing; and
            ``(viii) to grant full or partial relief, including--
                    ``(I) relief of the kinds described in section 
                706(g); and
                    ``(II) compensatory damages for unlawful 
                intentional discrimination (not an employment practice 
                that is unlawful because of its disparate impact) 
                prohibited under this section, subject to the 
                limitations specified in section 1977A(b)(3) of the 
                Revised Statutes of the United States.
    ``(G) The administrative judge and the Commission shall have 
authority to award--
            ``(i) a reasonable attorney's fee (including expert fees) 
        and costs as a court has authority to award under section 
        706(k), as amended from time to time; and
            ``(ii) the same interest to compensate for delay in payment 
        as in cases involving nonpublic parties.
    ``(H) The Commission shall have authority to issue subpoenas 
described in subparagraph (F)(v).
    ``(I) In the case of contumacy or failure to obey a subpoena issued 
under subparagraph (F) or (H), the United States district court for the 
judicial district in which the person to whom the subpoena is addressed 
resides or is served may issue an order requiring such person to appear 
at any designated place to testify or to produce documentary or other 
evidence.
    ``(7)(A) Except as provided in subparagraph (B), the administrative 
judge shall issue a written order making the determination required by 
paragraph (6)(A), and granting or denying relief, not later than--
            ``(i) 210 days after the complaint containing such claim is 
        filed on behalf of a Federal employee; or
            ``(ii) 270 days after the complaint containing such claim 
        is filed on behalf of a class of Federal employees;
except that these time periods shall not begin running until 30 days 
after the administrative judge is assigned to the case if the 
administrative judge certifies, in writing, that such 30-day period is 
needed to secure additional documents or information from the 
respondent to have a complete administrative record.
    ``(B) The administrative judge shall issue such order not later 
than 30 days after the applicable period specified in subparagraph (A) 
if the administrative judge certifies in writing, before the expiration 
of such applicable period--
            ``(i) that such 30-day period is necessary to make such 
        determination; and
            ``(ii) the particular and unusual circumstances that 
        prevent the administrative judge from complying with the 
        applicable period specified in subparagraph (A).
    ``(C) The administrative judge may apply to the Commission to 
extend any period applicable under subparagraph (A) or (B) if manifest 
injustice would occur in the absence of such an extension.
    ``(D) The Commission--
            ``(i) may not grant such extension; or
            ``(ii) shall terminate such extension;
if the aggrieved Federal employee shows that such extension would 
prejudice a claim of, or otherwise harm, such Federal employee.
    ``(E) In addition to findings of fact and conclusions of law, such 
order shall include formal written notice to each party that before the 
expiration of the 90-day period beginning on the date such party 
receives such order--
            ``(i) the aggrieved Federal employee may commence a civil 
        action in an appropriate district court of the United States 
        for de novo review of a claim with respect to which such order 
        is issued; and
            ``(ii) unless and until a civil action is commenced in such 
        90-day period under clause (i) with respect to such claim, any 
        party may file with the Commission a written request for 
        appellate review of the determination made, and relief granted 
        or denied, in such order with respect to such claim.
    ``(F) Such Federal employee may commence such civil action at any 
time--
            ``(i) after the expiration of the applicable period 
        specified in subparagraph (A) or (B); and
            ``(ii) before the expiration of the 90-day period beginning 
        on the date such Federal employee receives an order described 
        in subparagraph (A).
    ``(G) If such order applies to more than one claim and if such 
employee neither--
            ``(i) commences a civil action in accordance with 
        subparagraph (E)(i); nor
            ``(ii) requests appellate review in accordance with 
        subparagraph (E)(ii);
with respect to a particular claim, then the determination made, and 
relief granted, in such order with respect to such particular claim 
shall be enforceable immediately.
    ``(g)(1) If a party files timely a written request in accordance 
with subsection (f)(5)(B)(i) or (f)(7)(E)(ii) with the Commission for 
appellate review of the determination made, and relief granted or 
denied, with respect to a claim in such order, then the Commission 
shall immediately transmit a copy of such request to the other parties 
involved and to the administrative judge who issued such order.
    ``(2) Not later than 7 days after receiving a copy of such request, 
the administrative judge shall transmit to the Commission the record of 
the proceeding on which such order is based, including all documents 
and information collected by the respondent under subsection (d).
    ``(3)(A) After allowing the parties to file briefs with respect to 
such determination, the Commission shall issue an order with respect to 
such claim affirming, reversing, or modifying the applicable provisions 
of the order of the administrative judge not later than--
            ``(i) 150 days after receiving such request; or
            ``(ii) 30 days after such 150-day period if the Commission 
        certifies in writing, before the expiration of such 150-day 
        period--
                    ``(I) that such 30-day period is necessary to 
                review such claim; and
                    ``(II) the particular and unusual circumstances 
                that prevent the Commission from complying with clause 
                (i).
    ``(B) The Commission shall affirm the determination made, and 
relief granted or denied, by the administrative judge with respect to 
such claim if such determination and such relief are supported by 
substantial evidence in the record taken as a whole and are otherwise 
in accordance with law. The findings of fact of the administrative 
judge shall be conclusive unless the Commission determines that they 
are clearly erroneous.
    ``(C) In addition to findings of fact and conclusions of law, the 
Commission shall include in its order formal written notice to the 
aggrieved Federal employee that, before the expiration of the 90-day 
period beginning on the date such Federal employee receives such order, 
such Federal employee may commence a civil action in an appropriate 
district court of the United States for de novo review of a claim with 
respect to which such order is issued.
    ``(D) Such Federal employee may commence such civil action at any 
time--
            ``(i) after the expiration of the applicable period 
        specified in subparagraph (A); and
            ``(ii) before the expiration of the 90-day period specified 
        in subparagraph (C).
    ``(h)(1) In addition to the periods authorized by subsections 
(f)(7)(E) and (g)(3)(D)--
            ``(A) during the period beginning 300 days after an 
        aggrieved Federal employee timely requests an administrative 
        determination under subsection (f) with respect to a claim and 
        ending on the date the administrative judge issues an order 
        under such subsection with respect to such claim; and
            ``(B) during the period beginning 180 days after such 
        Federal employee timely requests appellate review under 
        subsection (g) of such determination with respect to such claim 
        and ending on the date the Commission issues an order under 
        such subsection with respect to such claim;
such Federal employee may commence a civil action in an appropriate 
district court of the United States for de novo review of such claim.
    ``(2) Whenever a civil action is commenced timely and otherwise in 
accordance with this section to determine the merits of a claim arising 
under this section, the jurisdiction of the administrative judge or the 
Commission (as the case may be) to determine the merits of such claim 
shall terminate.
    ``(i) A Federal employee who prevails on a claim arising under this 
section, or the Commission, may bring a civil action in an appropriate 
district court of the United States to enforce--
            ``(1) the provisions of a settlement agreement applicable 
        to such claim;
            ``(2) the provisions of an order issued by an 
        administrative judge under subsection (f)(7)(A) applicable to 
        such claim if--
                    ``(A) a request is not filed timely under 
                subsection (g)(1) for appellate review by the 
                Commission; and
                    ``(B) a civil action is not commenced timely under 
                subsection (g)(3)(D) for de novo review;
        of such claim; or
            ``(3) the provisions of an order issued by the Commission 
        under subsection (g)(3)(A) applicable to such claim if a civil 
        action is not commenced timely under subsection (g)(3)(D) for 
        de novo review of such claim.
    ``(j) Any amount awarded under this section (including fees, costs, 
and interest awarded under subsection (f)(6)(G)), or under title 28 of 
the United States Code, with respect to a violation of subsection (a), 
shall be paid by the entity of the Federal Government that violated 
such subsection from any funds made available to such entity by 
appropriation or otherwise.
    ``(k) An entity of the Federal Government against which a claim of 
discrimination is alleged in a complaint filed in an administrative 
proceeding or a civil action under this section shall grant the 
aggrieved Federal employee paid administrative leave for time 
reasonably expended to prepare for, and participate in, such proceeding 
or action. Such leave shall be granted in accordance with regulations 
issued by the Commission, except that such leave shall include 
reasonable time for--
            ``(1) preparation of a complaint based on such allegation;
            ``(2) attendance at such proceeding or action;
            ``(3) attendance at depositions;
            ``(4) meetings with counsel; and
            ``(5) other ordinary and legitimate undertakings in such 
        proceeding or action, that require the presence of such Federal 
        employee.
    ``(l)(1) In enforcing compliance with an order issued by an 
administrative judge or the Commission, the Commission may make a 
written determination that--
            ``(A) any officer or employee of the agency, department, or 
        unit charged with complying with such order, or
            ``(B) any officer or employee of the United States 
        determined to be responsible for the failure of the agency, 
        department, or unit to comply with such order,
who is not an officer or employee appointed by the President by and 
with the advice and consent of the Senate, shall not be entitled to 
receive payment for service as an officer or employee for the period 
during which such order has not been complied with. The Commission 
shall certify to the Comptroller General of the United States that a 
determination under this paragraph has been made, and no payment shall 
be made out of the Treasury of the United States for any service 
specified in such determination.
    ``(2) In enforcing compliance with such order with respect to any 
officer or employee described in subparagraph (A) or (B) of paragraph 
(1) who is an officer or employee appointed by the President by and 
with the advice and consent of the Senate, the Commission may notify 
the President that such officer or employee has failed to obey such 
order.
    ``(m) If with respect to the merits of a claim of intentional 
discrimination (other than an employment practice that is unlawful 
because of its disparate impact) prohibited by this section, a Federal 
employee prevails in a proceeding under subsection (f) or a civil 
action commenced under this section, the finder of fact in such 
proceeding shall identify each individual believed to have engaged in 
conduct that is the basis of such discrimination. Not later than 15 
days after issuing an order finding liability under this section, the 
administrative judge or the district court involved shall notify the 
Office of Special Counsel of the identity of such individual and the 
fact that such individual is believed to have engaged in conduct that 
is the basis of liability found on such claim in such proceeding or 
action.
    ``(n) This section, as in effect immediately before the effective 
date of the Federal Employee Fairness Act of 1993, shall apply with 
respect to employment in the Library of Congress.''.

SEC. 3. AMENDMENTS TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT AND THE 
              REHABILITATION ACT OF 1973.

    (a) Enforcement by EEOC.--(1) Section 15 of the Age Discrimination 
in Employment Act of 1967 (29 U.S.C. 633a) is amended--
            (A) by striking subsections (c) and (d), and
            (B) by inserting after subsection (b) the following:
    ``(c)(1)(A) Except as provided in subparagraph (B), any individual 
aggrieved by a violation of subsection (a) of this section may file a 
complaint with the Commission in accordance with section 717 of the 
Civil Rights Act of 1964.
    ``(B) Subsections (c) and (d) of this section, as in effect 
immediately before the effective date of the Federal Employee Fairness 
Act of 1993, shall apply with respect to employment in the Library of 
Congress.
    ``(2) Except as provided in paragraph (1)(B) and subsection (d), 
such section 717 shall apply to a violation alleged in a complaint 
filed under paragraph (1) in the same manner as such section applies to 
a claim arising under section 717 of such Act.
    ``(d)(1) If an individual aggrieved by a violation of this section 
does not file a complaint under subsection (c)(1), such individual may 
commence a civil action--
            ``(A) not less than 30 days after filing with the 
        Commission a notice of intent to commence such action; and
            ``(B) not more than 2 years after the alleged violation of 
        this section occurs;
in an appropriate district court of the United States for de novo 
review of such violation.
    ``(2) On receiving such notice, the Commission shall--
            ``(A) promptly notify all persons named in such notice as 
        prospective defendants in such action; and
            ``(B) take any appropriate action to ensure the elimination 
        of any unlawful practice.
    ``(3) Section 717(o) of the Civil Rights Act of 1964 (42 U.S.C. 
2000e-16(o)) shall apply to civil actions commenced under this 
subsection in the same manner as such section applies to civil actions 
commenced under section 717 of the Civil Rights Act of 1964.''.
    (2) Section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) 
is amended--
            (A) in subsection (a)(1)--
                    (i) by inserting ``(A)'' after ``(a)(1)'',
                    (ii) by striking ``706(k)'' and inserting 
                ``706(j)'',
                    (iii) by striking ``through (k)'' and inserting 
                ``through (j)'', and
                    (iv) by adding at the end the following:
    ``(B) The first sentence of this paragraph, as in effect 
immediately before the effective date of the Federal Employee Fairness 
Act of 1993, shall apply with respect to employment in the Library of 
Congress.'', and
            (B) in subsection (b) by striking ``In'' and inserting 
        ``Except as provided in subsection (a)(1), in''.
    (b) Opportunity To Commence Civil Action.--If a complaint filed 
under section 15 of the Age Discrimination in Employment Act of 1967 
(29 U.S.C. 633a), or section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791)), with the Equal Employment Opportunity Commission is 
pending in the period beginning on the date of the enactment of this 
Act and ending on December 31, 1994, the individual who filed such 
complaint may commence a civil action under such section not later than 
June 30, 1995.

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

    (a) Grievance Procedures.--Section 7121 of title 5, United States 
Code, is amended--
            (1) in subsection (a)(1) by inserting ``administrative'' 
        after ``exclusive'', and
            (2) in subsection (d)--
                    (A) by inserting ``(1)'' after ``(d)'',
                    (B) in the first and second sentences by striking 
                ``An'' and inserting ``Except as provided in paragraph 
                (2), an'',
                    (C) in the last sentence by striking ``Selection'' 
                and all that follows through ``any other'', and 
                inserting the following:
    ``(3) An employee may commence, not later than 120 days after a 
final decision, a civil action in an appropriate district court of the 
United States for de novo review of a'', and
                    (D) by inserting after the second sentence the 
                following:
    ``(2) Matters covered under section 7702, or under a law 
administered by the Equal Employment Opportunity Commission, may be 
raised under the negotiated grievance procedure in accordance with this 
section only if an employee elects under section 717(e)(2)(B)(i)(III) 
of the Civil Rights Act of 1964 to proceed under this section.''.
    (b) Actions Involving Discrimination.--Section 7702 of title 5, 
United States Code, is amended to read as follows:
``Sec. 7702. Actions involving discrimination
    ``(a)(1) Notwithstanding any other provision of law, in the case of 
any employee or applicant for employment who--
            ``(A) is affected by--
                    ``(i) an action which the employee or applicant may 
                appeal to the Merit Systems Protection Board, or
                    ``(ii) an action, not described in clause (i)--
                            ``(I) on the part the Equal Employment 
                        Opportunity Commission, and
                            ``(II) with respect to which the employee 
                        or applicant makes an election under section 
                        717(e)(2)(B)(i)(II) of the Civil Rights Act of 
                        1964, and
            ``(B) alleges that a basis for the action was 
        discrimination prohibited by--
                    ``(i) section 717 of the Civil Rights Act of 1964 
                (42 U.S.C. 2000a-16),
                    ``(ii) section 6(d) of the Fair Labor Standards Act 
                of 1938 (29 U.S.C. 206(d)),
                    ``(iii) section 501 of the Rehabilitation Act of 
                1973 (29 U.S.C. 791),
                    ``(iv) sections 12 and 13 of the Age Discrimination 
                in Employment Act of 1967 (29 U.S.C. 631, 633a), or
                    ``(v) any rule, regulation, or policy directive 
                prescribed under any provision of law described in 
                clauses (i) through (iv) of this subparagraph,
the employee or applicant may raise the action as provided in paragraph 
(2).
    ``(2) For purposes of paragraph (1), the employee shall raise the 
action by filing a complaint with the Equal Employment Opportunity 
Commission in accordance with section 717 of the Civil Rights Act of 
1964 and shall make a request under section 717(e)(2)(B)(i) selecting 
the procedures specified in one of the following subparagraphs:
            ``(A) The administrative and judicial procedures provided 
        under sections 7701 and 7703.
            ``(B) The administrative and judicial procedures provided 
        under section 7121.
            ``(C) The administrative and judicial procedures provided 
        under section 717 of the Civil Rights Act of 1964.
    ``(3) The agency (including the Board and the Equal Employment 
Opportunity Commission) that carries out such procedures shall apply 
the substantive law that is applied by the agency that administers the 
particular law referred to in subsection (a)(1) that prohibits the 
conduct alleged to be the basis of the action referred to in subsection 
(a)(1)(A).
    ``(b) If--
            ``(1) an employee elects the procedures specified in 
        subsection (a)(2)(C), and
            ``(2) the Equal Employment Opportunity Commission dismisses 
        under section 717(f)(5)(A) of the Civil Rights Act of 1964 a 
        claim that is based on the action raised by the employee,
then the employee shall have 20 days in which to raise the action under 
the procedures specified in subparagraph (A) or (B) of subsection 
(a)(2), except that no allegation of a kind described in subsection 
(a)(1)(B) may be raised under this subsection.
    ``(c) If at any time after the 120th day following an election made 
under section 717(e)(2)(B)(i) of the Civil Rights Act of 1964 to raise 
an action under the procedures specified in subsection (a)(2)(A) there 
is no judicially reviewable action, an employee shall be entitled to 
file, not later than 240 days after making such election, a civil 
action in an appropriate district court of the United States for de 
novo review of the action raised under subsection (a).
    ``(d) Nothing in this section shall be construed to affect the 
right to trial de novo under any provision of law described in 
subsection (a)(1) after a judicially reviewable action.''.
    (c) Disciplinary Action.--(1) Section 1214 of title 5, United 
States Code, is amended by adding at the end the following:
    ``(g)(1) Whenever the Office of Special Counsel receives any 
notification, in accordance with section 717(m) of the Civil Rights Act 
of 1964, with respect to a claim arising under section 717(a) of the 
Civil Rights Act of 1964, section 15(a) of the Age Discrimination in 
Employment Act of 1967, or section 501 of the Rehabilitation Act of 
1973, the Special Counsel shall investigate the matter to the extent 
necessary to determine whether there are reasonable grounds to believe 
that a prohibited personnel practice described in section 2302(b)(1) 
has occurred and, if so, shall seek the appropriate disciplinary action 
under section 1215.
    ``(2) A determination under this subsection shall be made not later 
than 180 days after the appropriate date under paragraph (3) for the 
last applicable event described in such paragraph.
    ``(3)(A) With respect to a claim--
            ``(i) to which an order issued by an administrative judge 
        of the Equal Employment Opportunity Commission applies, and
            ``(ii) with respect to which the aggrieved employee 
        neither--
                    ``(I) commences a civil action in accordance with 
                section 717(f)(7)(E)(i) of the Civil Rights Act of 
                1964, nor
                    ``(II) requests appellate review in accordance with 
                section 717(f)(7)(E)(ii) of the Civil Rights Act of 
                1964,
the appropriate date is the date on which the Office of Special Counsel 
receives notification (referred to in paragraph (1)) from the 
administrative judge.
    ``(B) With respect to a claim--
            ``(i) to which an order issued by the Equal Employment 
        Opportunity Commission applies, and
            ``(ii) with respect to which the aggrieved employee does 
        not commence a civil action in accordance with section 
        717(g)(3)(D),
the appropriate date is the date on which the Office of Special Counsel 
receives notification (referred to in paragraph (1)) from the 
Commission.
    ``(C) With respect to a claim to which a final judgment issued by a 
court of the United States applies, the appropriate date is the date on 
which the Office of Special Counsel receives notification (referred to 
in paragraph (1)) from such court.
    ``(4) For the purpose of this subsection--
            ``(A) the term `order' means an order issued on the merits;
            ``(B) the term `judgment' means a judgment issued on the 
        merits; and
            ``(C) the term `final judgment' means a judgment that is 
        either--
                    ``(i) not reviewed by any other court that has 
                authority to review such judgment; or
                    ``(ii) not reviewable by any other court.''.
    (2) Section 1218 of title 5, United States Code, is amended--
            (A) by inserting ``(a)'' before the first sentence; and
            (B) by adding at the end the following:
    ``(b) Any statistical or other information provided under the first 
sentence of subsection (a) shall specify the extent to which such 
information relates to any matter referred to in section 1214(g).''.
    (d) Recordkeeping.--(1) Chapter 23 of title 5, United States Code, 
is amended by adding at the end the following:
``Sec. 2306. Federal personnel records
    ``(a) For the purpose of this section--
            ``(1) the term `personnel action' has the meaning given 
        such term in section 2302(a)(2)(A);
            ``(2) the term `record' has the meaning given such term in 
        section 552a(a)(4); and
            ``(3) the term `employee' means--
                    ``(A) an employee as defined by section 2105; and
                    ``(B) an employee of the United States Postal 
                Service or the Postal Rate Commission;
        but does not include any employee with respect to whom section 
        117, or title III (excluding section 320), of the Civil Rights 
        Act of 1991 applies.
    ``(b) Records relating to any personnel action taken with respect 
to an employee shall be maintained by the employing authority for at 
least the greater of--
            ``(1) 270 days after the effective date of the personnel 
        action to which they relate; or
            ``(2) the period of time otherwise required under 
        applicable provisions of law, rule, or regulation, if any.
    ``(c) The Office of Personnel Management shall prescribe 
regulations for the implementation of this section by an Executive 
agency.''.
    (2) The table of sections for chapter 23 of title 5, United States 
Code, is amended by adding at the end the following:

``2306. Federal personnel records.''.
    (e) Filing Deadline.--Section 7703(b)(2) of title 5, United States 
Code, is amended by striking ``30 days'' and inserting ``90 days''.
    (f) Right to Intervene.--Section 1212(c)(2) of title 5, United 
States Code, is amended--
            (1) by striking ``(2)'' and inserting ``(2)(A)''; and
            (2) by adding at the end the following:
    ``(B) Consent under subparagraph (A) shall not be required, in the 
case of an appeal from an action, if--
            ``(i) section 7513(d) is the provision making the action 
        appealable to the Board;
            ``(ii) the appeal is brought by an individual with respect 
        to whom notification has been received by the Office of Special 
        Counsel under section 717(m) of the Civil Rights Act of 1964; 
        and
            ``(iii) 1 of the grounds for the action being appealed is 
        discrimination of a type described in section 2302(b)(1).''.

SEC. 5. TECHNICAL AMENDMENTS.

    Section 717(b) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
16(b)) is amended by striking ``Civil Service Commission'' each place 
it appears and inserting ``Commission''.

SEC. 6. ISSUANCE OF PROCEDURAL GUIDELINES AND NOTICE RULES.

    After providing notice in accordance with section 553(b) of title 
5, United States Code, and not later than 1 year after the date of the 
enactment of this Act, the Equal Employment Opportunity Commission 
shall issue--
            (1) rules to assist entities of the Federal Government to 
        comply with section 717(d) of the Civil Rights Act of 1964, as 
        added by section 2 of this Act, and
            (2) rules establishing--
                    (A) a uniform written official notice to be used to 
                comply with section 717 of such Act, as added by 
                section 2 of this Act, and
                    (B) detailed requirements applicable to collecting 
                and preserving documents and information under section 
                717(d), as added by section 2 of this Act.

SEC. 7. RULES OF CONSTRUCTION.

    Any reference in any law (other than title VII of the Civil Rights 
Act of 1964) to any provision of title VII of the Civil Rights Act of 
1964 amended by this Act shall be deemed to be a reference to such 
provision as amended by this Act.

SEC. 8. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

    (a) Effective Date.--Except as provided in subsection (b), this Act 
and the amendments made by this Act shall take effect on January 1, 
1995.
    (b) Application of Amendments.--Except as provided in section 7, 
the amendments made by this Act (other than sections 3 and 4) shall 
apply only with respect to complaints filed under section 717 of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e-16) on or after the effective 
date of this Act.

                                 <all>

HR 2721 IH----2
HR 2721 IH----3
HR 2721 IH----4
HR 2721 IH----5
```