Union Calendar No. 32
103D CONGRESS
1ST SESSION
H. R. 1032
[Report No. 103–64]
A BILL
To amend title 38, United States Code, to provide
for improved and expedited procedures for resolv-
ing complaints of unlawful employment discrimi-
nation arising within the Department of Veterans
Affairs.
APRIL 22, 1993
Reported with amendments, committed to the Committee
of the Whole House on the State of the Union, and or-
dered to be printed
I
Union Calendar No. 32
103D CONGRESS
1ST SESSION
H. R. 1032
[Report No. 103–64]
To amend title 38, United States Code, to provide for improved and expedited
procedures for resolving complaints of unlawful employment discrimina-
tion arising within the Department of Veterans Affairs.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 23, 1993
Mr. MONTGOMERY (for himself, Mr. STUMP, Mr. EDWARDS of California, Mr.
SMITH of New Jersey, Mr. APPLEGATE, Mr. BILIRAKIS, Mr. EVANS, Mr.
QUINN, Mr. PENNY, Mr. ROWLAND, Mr. SLATTERY, Mr. KENNEDY, Mr.
SANGMEISTER, Ms. LONG, Mr. EDWARDS of Texas, Mr. CLEMENT, Mr.
FILNER, Mr. GUTIERREZ, Mr. BAESLER, Mr. BISHOP, Mr. CLYBURN,
Mr. KREIDLER, Ms. BROWN of Florida, Mr. HEFNER, Mr. RICHARDSON,
Mr. STENHOLM, Mr. PAYNE of Virginia, Mr. PARKER, and Mr. OLVER)
introduced the following bill; which was referred to the Committee on
Veterans’ Affairs
APRIL 22, 1993
Additional sponsors: Mr. SPENCE, Mr. RIDGE, Mr. TEJEDA, Mr. EMERSON,
Ms. WATERS, and Mrs. THURMAN
APRIL 22, 1993
Reported with amendments, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
[Omit the part struck through and insert the part printed in italic]
A BILL
To amend title 38, United States Code, to provide for im-
proved and expedited procedures for resolving complaints
of unlawful employment discrimination arising within the
Department of Veterans Affairs.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Department of Veter-
ans Affairs Employment Discrimination Act’’.
SEC. 2. DEPARTMENT OF VETERANS AFFAIRS EMPLOY-
MENT DISCRIMINATION RESOLUTION PROCE-
DURES.
(a) IN GENERAL.—Title 38, United States Code, is
amended by inserting after chapter 7 the following new
chapter:
‘‘CHAPTER 8—EMPLOYMENT
DISCRIMINATION
‘‘Sec.
‘‘801. Scope of chapter.
‘‘802. Office of Employment Discrimination Complaints Resolution.
‘‘803. Informal complaint resolution.
‘‘804. Investigation of complaints.
‘‘805. Final agency decision; hearings.
‘‘806. Review of final agency decisions.
‘‘807. Unlawful employment discrimination defined.
‘‘§ 801. Scope of chapter
‘‘(a) The procedures established in this chapter shall
be implemented in a manner consistent with procedures
applicable under regulations prescribed by the Equal Em-
ployment Opportunity Commission.
‘‘(b) Nothing in this chapter supersedes any right or
obligation of an employee to elect (in lieu of procedures
under this chapter) to raise an allegation of unlawful em-
ployment discrimination under the appeal procedures of
the Merit Systems Protection Board or under grievance
procedures established under a collective bargaining agree-
ment.
(b) In the case of an employee of the Department who
alleges that the employee has been subjected to unlawful em-
ployment discrimination (as defined in section 807 of this
title), the allegation shall be considered under the proce-
dures applicable to the Merit Systems Protection Board
under title 5 (rather than under the procedures set forth
in this chapter) if the action (or failure to act) of which
the employee complains is an employment action or prac-
tice that is otherwise appealable to the Merit Systems Pro-
tection Board.
(c) Nothing in this chapter supersedes—
(1) the rights and remedies available to employ-
ees under title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.), including the rights and rem-
edies provided in section 1977A of the Revised Stat-
utes (42 U.S.C. 1981a); or
(2) any right or obligation of an employee to
elect (in lieu of procedures under this chapter) to
raise an allegation of unlawful employment discrimi-
nation under grievance procedures established under a
collective bargaining agreement.
‘‘§ 802. Office of Employment Discrimination Com-
plaints Resolution
‘‘(a)(1) There is in the Department an Office of Em-
ployment Discrimination Complaints Resolution (herein-
after in this chapter referred to as the ‘Office’), which
shall be headed by a Director. The Director shall report
only to the Secretary and Deputy Secretary.
‘‘(2) Subject to the direction of the Secretary, the Di-
rector shall have sole responsibility within the Department
for administering the procedures under this chapter for
resolving complaints of unlawful employment discrimina-
tion arising within the Department.
‘‘(3) In addition to the functions of the Director
under paragraph (2), the Director shall perform such
other functions as the Secretary may prescribe consistent
with the functions of the Director under paragraph (2).
‘‘(b) The Secretary shall employ within the Office ad-
ministrative law judges appointed in accordance with sec-
tion 3105 of title 5 for the purposes of this chapter and
such other personnel as the Office may require. In ap-
pointing administrative law judges, the Secretary should
consider the composition of the persons appointed, taken as
a group, in terms of race, sex, and veterans status, com-
pared with the composition of the total Department
workforce in terms of race, sex, and veterans status.
‘‘(c) The Secretary shall ensure that the Director is
furnished sufficient resources to enable the Director to
carry out the functions of the Office under this chapter
in a timely manner.
‘‘(d) The Secretary shall include in the documents
submitted to Congress by the Secretary in support of the
President’s budget for each fiscal year—
‘‘(1) detailed information on the budget for the
Office;
‘‘(2) the Secretary’s opinion as to whether the
resources (including the number of employees) pro-
posed in the budget for that fiscal year are adequate
to enable the Secretary to comply with statutory and
regulatory deadlines for the administration of the
procedures under this chapter and other provisions
of law relating to the resolution of complaints of un-
lawful employment discrimination involving the De-
partment; and
‘‘(3) a report on the activities of the Office dur-
ing the preceding fiscal year, including (A) a state-
ment of the number and nature of complaints of un-
lawful employment discrimination received and the
number and nature of complaints resolved, and the
results of any appellate review, during the year, (B)
a description of the timeliness of the resolution of
complaints during the year, and (C) a statement of
significant decisions and trends affecting the work of
the Office.
‘‘(e)(1) The Director shall prescribe—
‘‘(A) standards of timeliness for the expeditious
resolution of complaints of unlawful employment dis-
crimination under this chapter;
‘‘(B) the qualifications and training require-
ments for employees of the Office; and
‘‘(C) requirements for record-keeping pertaining
to counseling and investigations by employees of the
Office.; and
‘‘(D) standards for the conduct of investigations
under section 804 of this title.
‘‘(2) Regulations under paragraph (1) shall be con-
sistent with regulations prescribed by the Equal Employ-
ment Opportunity Commission, except that, in the interest
of the expeditious resolution of complaints, the Director
may prescribe shorter time periods with respect to any
deadline or administrative period that is applicable only
to the time within which the Government may (or is re-
quired to) act.
‘‘§ 803. Informal complaint resolution
‘‘Employees of the Office shall counsel employees of
the Department, and applicants for employment with the
Department, who allege that they have been subject to un-
lawful employment discrimination by an officer or em-
ployee of the Department. The Office shall seek to resolve
such complaints in an expeditious and impartial manner
through informal investigation and conciliation using pro-
cedures prescribed by the Director.
‘‘§ 804. Investigation of complaints
‘‘(a) If a complaint of unlawful employment discrimi-
nation is filed with the Department and the complaint is
not resolved through the informal resolution process under
section 803 of this title, the Director shall assign the com-
plaint to an administrative law judge, who shall determine
whether the complaint shall be accepted for investigation.
‘‘(b)(1) The administrative law judge assigned to a
complaint shall make such determination in accordance
with regulations of the Equal Employment Opportunity
Commission, except that if the administrative law judge
determines that the complaint is without merit, the admin-
istrative law judge may determine that the complaint is
not to be accepted for investigation.
‘‘(2) A decision that a complaint is not to be accepted
for investigation is a final agency decision of the matter.
‘‘(c)(1) If the administrative law judge determines
that the complaint is to be accepted, the Director shall
promptly provide for an investigation of the complaint,
which shall be carried out by employees of the Office (or
by contract personnel acquired by the Director). The em-
ployee (or contractor) conducting the investigation shall
submit to the Director a complete written report of the
results of the investigation.
‘‘(2) If a portion of a complaint is accepted for inves-
tigation and a portion is not accepted, the individual filing
the complaint or the Department may request the admin-
istrative law judge to direct the suspension of the inves-
tigation of the portion of the complaint accepted for inves-
tigation pending the results of any review of the decision
not to accept the other portion.
‘‘(3) The Director shall furnish a copy of the inves-
tigative report (including a copy of the investigative file)
to the administrative law judge, the individual who filed
the complaint, and the individual whose actions, or failure
to act, gave rise to the complaint of unlawful employment
discrimination the Secretary. The administrative law judge
may direct that an additional investigation be made if the
administrative law judge determines that an additional in-
vestigation is warranted.
‘‘(d) The Director shall prescribe standards for the
conduct of investigations under this section.
‘‘§ 805. Final agency decision; hearings
‘‘(a) The final agency decision on a complaint of un-
lawful unemployment employment discrimination, in a
case not resolved through informal procedures under sec-
tion 803 of this title, shall be made by an administrative
law judge.
‘‘(b) The individual filing the complaint may request
a hearing on the matter. Any such request shall be made
in such time and manner as may be prescribed by the Di-
rector. The administrative law judge shall grant a request
for a hearing unless, after giving appropriate notice and
allowing an opportunity to respond to such notice, the ad-
ministrative law judge determines that there is no genuine
dispute as to a material fact.
‘‘(c) In acting upon a complaint, an administrative
law judge—
‘‘(1) may conduct a hearing on the matter;
‘‘(2) may refer the matter for a hearing by a
hearing examiner; or
‘‘(3) may decide the matter without a hearing.
‘‘(d) If a hearing is held, the hearing shall be subject
to section 556 of title 5.
‘‘(c) If the administrative law judge grants a request
of the individual filing the complaint for a hearing, the ad-
ministrative law judge—
‘‘(1) may conduct the hearing on the matter; or
‘‘(2) may refer the matter for a hearing by a
hearing examiner.
‘‘(d) In any hearing under this section, the adminis-
trative law judge or hearing examiner presiding at the
hearing shall have the authorities set forth in section 556(c)
of title 5.
‘‘§ 806. Review of final agency decisions
‘‘(a) If the final agency decision in a case complaining
of unlawful employment discrimination by an officer or
employee of the Department is adverse to the individual
filing the complaint, the individual may appeal the deci-
sion to the Equal Employment Opportunity Commission
or to may institute an action on the case in the appropriate
United States district court, as provided by law.
‘‘(b) If the final agency decision in such a case is
adverse to the Department, the Secretary may appeal the
decision to the Equal Employment Opportunity Commis-
sion. Any such appeal shall be made within 30 days after
the date of the receipt by the Secretary of the decision.
The Equal Employment Opportunity Commission may act
on such an appeal in the same manner as in the case of
an appeal by an individual against a final agency decision.
‘‘§ 807. Unlawful employment discrimination defined
‘‘For purposes of this chapter, the term ‘unlawful em-
ployment discrimination’ means any action, or failure to
act, that is a violation of any of the following:
‘‘(1) Title VII of the Civil Rights Act of 1964
(42 U.S.C. 2000e et seq.).
‘‘(2) The Age Discrimination in Employment
Act of 1967 (29 U.S.C. 621 et seq.).
‘‘(3) Section 6 of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206).
‘‘(4) Section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791).’’.
(b) CLERICAL AMENDMENT.—The tables of chapters
at the beginning of title 38, United States Code, and at
the beginning of part I of such title, are amended by in-
serting after the item relating to chapter 7 the following
new item:
‘‘8. Employment Discrimination ..................................................
801’’.
SEC. 3. TRANSITION.
Chapter 8 of title 38, United States Code, as added
by section 2, shall apply with respect to complaints of un-
lawful employment discrimination that are filed after the
end of the six-month period beginning on the date of the
enactment of this Act. Any complaint filed before the end