I
103D CONGRESS
1ST SESSION
H. R. 2016
To amend the Civil Rights Act of 1964 to encourage mediation of charges
filed under title VII of such Act and the Americans with Disabilities
Act of 1990, to amend the Revised Statutes to encourage mediation
of complaints filed under section 1977 of the Revised Statutes, and
to decrease resort to the courts.
IN THE HOUSE OF REPRESENTATIVES
MAY 6, 1993
Mr. GUNDERSON (for himself, Mr. PENNY, Mrs. JOHNSON of Connecticut, Mr.
PETE GEREN of Texas, Mr. BOEHNER, Mr. EMERSON, Mr. MCCURDY,
Mr. LEWIS of Florida, Mr. CLYBURN, Mr. CANADY, Mr. FAWELL, Mr.
VALENTINE, Mr. KOLBE, Mr. GINGRICH, Mr. BAKER of Louisiana, Mr.
DORNAN, Mr. HASTINGS, Mr. FILNER, Mr. CLINGER, Mr. STENHOLM,
Mr. ROMERO-BARCELO, Mr. HANCOCK, and Ms. PRYCE of Ohio) intro-
duced the following bill; which was referred jointly to the Committees on
Education and Labor and the Judiciary
A BILL
To amend the Civil Rights Act of 1964 to encourage medi-
ation of charges filed under title VII of such Act and
the Americans with Disabilities Act of 1990, to amend
the Revised Statutes to encourage mediation of com-
plaints filed under section 1977 of the Revised Statutes,
and to decrease resort to the courts.
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 ‘‘Employment Dispute
Resolution Act of 1993’’.
SEC. 2. DEFINITION.
Section 701 of the Civil Rights Act of 1964 (42
U.S.C. 2000e) is amended by adding at the end the
following:
‘‘(o) The term ‘Service’ means the Federal Mediation
and Conciliation Service.’’.
SEC. 3. MEDIATION OF ACTIONS UNDER THE CIVIL RIGHTS
ACT OF 1964 AND THE AMERICANS WITH DIS-
ABILITIES ACT OF 1990.
Section 706 of the Civil Rights Act of 1964 (42
U.S.C. 2000e–5) is amended by adding at the end the fol-
lowing:
‘‘(l)(1) Congress finds that cooperative mediation of
charges is a more time-saving and cost-effective method
of resolving disputes than litigation of civil actions.
‘‘(2)(A)(i) If the Commission, or a State or local au-
thority described in subsection (c), determines that there
is reasonable cause to believe that the respondent has vio-
lated this title and that the Commission or authority will
file a civil action under this section against the respond-
ent, the Commission or authority shall inform the re-
spondent that the respondent may, within 14 days, request
that the charge be referred to the Service for mediation.
for the charging party, the Commission, or the State or
local authority, as appropriate, to file such an action—
‘‘(I) shall be tolled until 14 days after the end
of the period; or
‘‘(II) in a case described in paragraph (9)(B),
shall be tolled as described in such paragraph.
‘‘(B)(i) In lieu of receiving mediation services from
the Service, the charging party and the respondent may
agree in writing to refer the charge to a mediator (other
than a mediator provided by the Service) that has been
mutually agreed to by the parties, for mediation in accord-
ance with regulations promulgated by the Director of the
Service pursuant to this subsection. A copy of the agree-
ment to mediate shall be served upon the Director of the
Service and the Commission or authority that issued the
right-to-sue letter.
‘‘(ii) Before the commencement of mediation services
under this subparagraph, the mediator shall notify the
parties and the Director of the Service in writing of the
per diem costs and any other fees and expenses the medi-
ator may reasonably be expected to incur in providing such
services. The cost of mediation services shall be shared
as mutually agreed by the parties.
‘‘(C) The Director of the Service, within 14 days of
receipt of the mediation request, shall inform the Commis-
sion or the State or local authority issuing the right-to-
sue letter that mediation has been requested. If the charg-
ing party or the respondent requests mediation by the
Service under subparagraph (A), or agrees to mediation
by a mediator under subparagraph (B), neither the charg-
ing party, the Commission, or the State or local authority
may file a civil action under this section against the re-
spondent until the completion of the mediation.
‘‘(4)(A) After providing an opportunity for public
comment, the Director of the Service shall issue, and may
amend or rescind, regulations to carry out the provisions
of this subsection relating to mediation of charges. The
Director of the Service shall issue the regulations no later
than 6 months after the date of enactment of this sub-
section.
‘‘(B) Mediation provided by the Service under sub-
paragraph (A), or by another mediator as described in
subparagraph (B), of paragraph (2) or (3), shall be pro-
vided in accordance with the regulations.
‘‘(C) The regulations shall specify the form and man-
ner of, and the procedures for providing, the mediation
services provided under this subsection.
‘‘(5) It shall be the duty of the mediator to commu-
nicate promptly with the parties and use best efforts, by
mediation, to reach an agreement resolving the charge.
‘‘(6) During mediation, the charging party and the
respondent may be represented by legal counsel or another
representative of their choice.
‘‘(7)(A) If the charge is resolved through mediation,
the charge shall be resolved in a manner that is mutually
agreeable to the parties, including a settlement agreement,
dismissal (by the Commission or the State or local author-
ity), or voluntary withdrawal (by the charging party). The
resolution of the charge shall be recorded in writing. In
no case shall the mediator have the power to dismiss a
charge.
‘‘(B) Once the charging party and respondent have
agreed on a resolution of the charge, the mediator shall
so advise the Service, and shall so advise the Commission
or the State or local authority, which shall dismiss the
charge with prejudice as to the charging party or charging
parties participating in the agreement. The Commission,
or the State or local authority, shall take no further action
on the charge as the charge affects the charging party or
charging parties.
‘‘(8)(A) The mediation shall be deemed to be com-
pleted on the date that the resolution of the charge is re-
corded, as provided for in paragraph (7)(A).
‘‘(B) If a charge that has been referred to mediation
has not been resolved by settlement, withdrawal of
charges, or otherwise within 90 days of receipt of the
charge by the Service or other mediator, and the parties
do not agree in writing, with the consent of the mediator,
to further extend the mediation process, the mediation
shall be deemed to be completed.
‘‘(9)(A) If mediation has been completed without res-
olution, as described in paragraph (8)(B), the Commis-
sion, the State or local authority, or the charging party,
as appropriate, may file a civil action under this section.
‘‘(B) If—
‘‘(i) mediation is initiated under paragraph (2)
or (3); and
‘‘(ii) the time for the Commission, authority, or
party to file an action described in subparagraph (A)
would otherwise lapse—
‘‘(I) not earlier than the first day of the
14-day period described in paragraph (2)(A) or
(3)(A), as appropriate; and
‘‘(II) not later than the completion of the
mediation,
the time for the Commission, authority, or party, as ap-
propriate, to file such an action shall be tolled until 14
days after the completion of the mediation (including any
referral under subparagraph (C)).
‘‘(C) The court in which the action is filed shall have
the discretion to refer the charge to the Service or the
other mediator used by the charging party and respondent
for an additional 90 days of mediation pursuant to this
subsection.
‘‘(D) Nothing in this subsection shall be construed
to limit the authority of the court to attempt to resolve
the case under the authority of the court or dispute resolu-
tion procedures established by the court.
‘‘(10)(A) The charging party and the Service shall
be provided a copy of any settlement agreement, or other
agreement resolving the charge, between the Commission,
or the State or local authority, and the respondent. Except
as provided in paragraph (15), any such agreement shall
be kept confidential by the mediator, the charging party,
other parties to the agreement, and the Service, unless all
parties to the mediation agree otherwise in writing.
‘‘(B) The Service shall be provided a copy of any set-
tlement agreement, or other agreement resolving the
charge, between the charging party and the respondent.
Except as provided in paragraph (15), any such agreement
shall be kept confidential by the mediator, the charging
party, the respondent, and the Service, and shall not be
provided to the Commission, the State or local authority,
or any other person, unless all parties to the mediation
agree otherwise in writing.
‘‘(11)(A) Whether or not a charge that has been re-
ferred to mediation is resolved, all communications, oral
or written, (including memoranda, work product, tran-
scripts, notes, or other materials) made by the Commis-
sion, the State or local authority, the charging party, the
respondent, or the mediator in or in connection with the
mediation that relate to the controversy being mediated
shall be kept confidential by the participants in the medi-
ation.
‘‘(B) Such communications shall not be made avail-
able by the mediator, or parties to the mediation, to any
person not participating in the mediation, including the
Commission or the State or local authority in any case
in which the Commission or the State or local authority
is not a participant.
‘‘(C) Communications referred to in subparagraph
(A) shall not be disclosed voluntarily, and, pursuant to this
subsection, shall not be subject to disclosure through dis-
covery or compulsory process, and shall not be used as
evidence, in any investigatory, arbitral, judicial, adminis-
trative or other proceedings, unless—
‘‘(i) all parties to the mediation agree, in writ-
ing, to waive the confidentiality of such communica-
tions; or
‘‘(ii) the communications involve statements,
materials, and other tangible evidence, that—
‘‘(I) are otherwise not privileged and sub-
ject to discovery; and
‘‘(II) were not prepared specifically for use
in mediation.
‘‘(D) If any demand for disclosure, including a re-
quest pursuant to discovery or other legal process, is made
upon the mediator, the Service, the Commission, or the
State or local authority, regarding the mediation of a
charge, the mediator, Service, the Commission, or the
State or local authority, as appropriate, shall immediately
make reasonable efforts to notify all other parties to the
mediation of the demand.
‘‘(E) Any person, including any official of the Com-
mission, the State or local authority, or the Service, who
discloses information in violation of this subsection shall
be fined not more than $5,000.
‘‘(12) Except as provided in paragraph (15)—
‘‘(A) agreements referred to in paragraph (10)
and communications referred to in paragraph (11)
are exempted from disclosure under section 552 of
title 5, United States Code, in accordance with sub-
section (b)(3) of such section; and
‘‘(B) the Service and the Commission shall have
no discretion to disclose such agreements or commu-
nication under such section.
‘‘(13)(A) Any agreement between the Commission
and any such State or local authority relating to carrying
out their respective functions under this subchapter, in-
cluding worksharing agreements for the processing of
charges, shall include a provision requiring the State or
local authority to implement the provisions of this sub-
section for the mediation of charges by the Service or
other provider of mediation services.
‘‘(B) Any such State or local authority that does not
agree to implement the provisions of this subsection shall
not be eligible to enter into an agreement with the Com-
mission for the processing of charges under the subsection
and also shall be ineligible to receive any payment or reim-
bursement pursuant to section 709(b).
‘‘(C) Unless the Commission and the State and local
authorities amend any such agreement to comply with this
subsection within 6 months after the date of enactment
of this subsection, the agreement shall be considered re-
scinded.
‘‘(14) A party to an agreement made pursuant to me-
diation under this subsection may bring any action to en-
force the agreement in a Federal district court of com-
petent jurisdiction as described in subsection (f)(3).
‘‘(15)(A) The Director of the Service shall establish
a database containing, with respect to each mediation con-
ducted under this subsection, information indicating—
‘‘(i) whether the respondent involved employs—
‘‘(I) fewer than 50 employees;
‘‘(II) not fewer than 50 employees and
fewer than 250 employees;
‘‘(III) not fewer than 250 employees and
fewer than 1000 employees; or
‘‘(IV) not fewer than 1000 employees;
‘‘(ii) the type of industry in which the respond-
ent is employed;
‘‘(iii) whether the charge that is the subject of
the mediation is brought on the basis of—
‘‘(I) race or color;
‘‘(II) sex;
‘‘(III) religion;
‘‘(IV) national origin; or
‘‘(V) disability;
‘‘(iv) whether the charge was resolved by settle-
ment, withdrawal of charges, or otherwise; and
‘‘(v) whether the charging party—
‘‘(I) recovered any monetary compensation
(including damages, equitable monetary relief,
and interest) as a result of the mediation;
‘‘(II) was reinstated to employment as a
result of the mediation; or
‘‘(III) received any equitable relief, other
than relief described in subclause (I) or (II), as
a result of the mediation.
‘‘(B) The Director of the Service shall make informa-
tion about mediations described in subparagraph (A)
available to the public through the database.
‘‘(C) Not later than 1 year after the date of enact-
ment of this subsection, and every 6 months thereafter,
the Director of the Service shall prepare and submit to
the Commission a report containing—
‘‘(i) the information described in subparagraph
(A); and
‘‘(ii) crosstabulations of the information de-
scribed in each clause of subparagraph (A)
against—
‘‘(I) the information described in each
other such clause; and
‘‘(II) crosstabulations of such information.
‘‘(D) In making information available through the
database described in subparagraph (B), and in preparing
the reports described in subparagraph (C), the Director
of the Service shall not identify by name parties partici-
pating in mediations described in subparagraph (A). The
database and reports shall present information collected
under subparagraph (A) in the aggregate.
‘‘(16) As used in this subsection:
‘‘(A) The term ‘charging party’ means an indi-
vidual filing a charge under subsection (b).
‘‘(B) The term ‘party’ does not include the
Service, or a mediator provided by the Service, or
any other person, acting in the capacity of a medi-
ator.
‘‘(17) There are authorized to be appropriated such
sums as may be necessary to carry out the purposes of
this subsection for fiscal year 1994 and each subsequent
fiscal year.’’.
SEC. 4. MEDIATION OF ACTIONS UNDER SECTION 1977 OF
THE REVISED STATUTES.
The Revised Statutes are amended by inserting after
section 1977A (42 U.S.C. 1981a) the following new sec-
tion:
‘‘SEC. 1977B. ALTERNATIVE MEDIATION PRIOR TO FILING A
CIVIL ACTION.
‘‘(a) MEDIATION BY SERVICE.—
‘‘(1) IN GENERAL.—No plaintiff shall bring a
civil action to make or enforce any contract relating
to employment under section 1977 (42 U.S.C. 1981)
unless the plaintiff has given the defendant at least
60 days written notice that the plaintiff intends to
file such action and informed the defendant in the
action that either party may request that the com-
plaint be referred to the Service for mediation.
‘‘(2) NOTICE
PERIOD.—If the time for the
plaintiff to file an action described in paragraph (1)
would otherwise lapse during the 60-day period de-
scribed in paragraph (1), the time for the plaintiff
to file such an action—
‘‘(A) shall be tolled until 14 days after the
end of the period; or
‘‘(B) in a case described in subsection (e),
shall be tolled as described in such subsection.
‘‘(b) ALTERNATIVE MEDIATOR.—In lieu of receiving
mediation services from the Service, the plaintiff and the
defendant may agree in writing to refer the charge to a
mediator (other than a mediator provided by the Service)
as described in section 706(l)(3)(B) of the Civil Rights
Act of 1964.
‘‘(c) LIMITATIONS.—If the plaintiff or the defendant
requests mediation by the Service under subsection (a),
or if the parties agree to mediation by a mediator under
subsection (b), the plaintiff may not file a civil action de-
scribed in subsection (a) against the defendant until the
completion of the mediation.
‘‘(d) CONDUCT OF MEDIATION.—
‘‘(1) IN GENERAL.—If either party to the action
requests such mediation, the mediation, and any
subsequent civil action filed relating to the matter,
shall be conducted in accordance with paragraphs
(4) through (8), and (10) through (12), of section
706(l) of the Civil Rights Act of 1964. Information
related to the mediation shall be included in the
database described in section 706(l)(15) of such Act,
and made available in accordance with such section.
‘‘(2) APPLICATION.—For purposes of the appli-
cation of the provisions described in paragraph (1)
to this section—
‘‘(A) references to the charging party and
the respondent shall be deemed to be references
to the plaintiff and the defendant, respectively;
‘‘(B) references to the Commission, or to a
State or local authority, shall not apply; and
‘‘(C) references to a charge shall be
deemed to be references to the complaint re-
ferred to in subsection (a).
‘‘(e) CIVIL ACTION.—
‘‘(1) IN GENERAL.—If mediation has been com-
pleted without resolution, as described in section
706(l)(8)(B) of the Civil Rights Act of 1964, the
plaintiff may file a civil action under this section.
‘‘(2) LIMITATIONS.—If—
‘‘(A) the plaintiff or the defendant requests
mediation by the Service under subsection (a),
or the parties agree to mediation by a mediator
under subsection (b); and
‘‘(B) the time for the plaintiff to file an ac-
tion described in paragraph (1) would otherwise
lapse—
‘‘(i) not earlier than the first day of
the 60-day period described in subsection
(a)(1); and
‘‘(ii) not later than the completion of
the mediation,
the time for the plaintiff to file such an action shall
be tolled until 14 days after the completion of the
mediation (including any referral under paragraph
(3)).
‘‘(3) REFERRAL.—The court in which the ac-
tion is filed shall have the discretion to refer the
complaint to the Service or the other mediator used
by the plaintiff and defendant for an additional 90
days of mediation pursuant to section 706(l) of the
Civil Rights Act of 1964.
‘‘(4) Nothing in this section shall be construed
to limit the authority of the court to attempt to re-
solve the case under the authority of the court or
dispute resolution procedures established by the
court.
‘‘(f) ACTION TO ENFORCE AGREEMENT.—A party to
an agreement made pursuant to mediation under this sec-
tion may bring any action to enforce the agreement in any
Federal district court of competent jurisdiction in which
an action under section 1977 may be brought.
‘‘(g) DEFINITION.—For purposes of this section, and
the application of the provisions described in subsection
(d)(1) to this section, the term ‘Service’ means the Federal
Mediation and Conciliation Service.’’.
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act shall apply only
to charges and complaints filed more than 6 months after
the date of enactment of this Act.