I
105TH CONGRESS
1ST SESSION
H. R. 2441
To amend title VII of the Civil Rights Act of 1964 and the Age Discrimina-
tion in Employment Act of 1967 to improve the effectiveness of adminis-
trative review of employment discriminations claims made by Federal
employees, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 9, 1997
Mr. MARTINEZ (for himself, Ms. NORTON, Mr. CUMMINGS, Mr. WYNN, and
Mr. FORD) introduced the following bill; which was referred to the Com-
mittee on Government Reform and Oversight, and in addition to the
Committee on Education and the Workforce, for a period to be subse-
quently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
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 em-
ployment discriminations claims made by Federal em-
ployees, and for other purposes.
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 ‘‘Federal Employee
Fairness Act of 1997’’.
SEC. 2. AMENDMENTS RELATING TO ADMINISTRATIVE DE-
TERMINATION OF FEDERAL EMPLOYEE DIS-
CRIMINATION 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 ‘administrative judge’ includes an ad-
ministrative law judge appointed under section 3105 of
title 5 of the United States Code.
‘‘(p) The term ‘Commission’ means the Equal Em-
ployment Opportunity Commission.
‘‘(q) 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.
‘‘(r) The term ‘Federal employee’ means an individ-
ual employed by, or who applies for employment with, an
entity of the Federal Government.
‘‘(s) The term ‘Federal employment’ means employ-
ment by an entity of the Federal Government.
‘‘(t) The terms ‘government’, ‘government agency’,
and ‘political subdivision’ do not include an entity of the
Federal Government.’’.
(b) EEOC DETERMINATION OF FEDERAL EMPLOY-
MENT 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 re-
designated, by striking ‘‘and’’ at the end,
(iii) in subparagraph (C), as so redes-
ignated, 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 Govern-
ment—
‘‘(i) to make counseling available to Fed-
eral employees who believe such entity has dis-
criminated against them in violation of this sec-
tion, for the purpose of trying to resolve the
matters with respect to which such discrimina-
tion is alleged (Such entity shall assist such em-
ployee to identify the respondent required by
subsection (c)(1) to be named in a complaint al-
leging 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 resolution 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;
‘‘(iv) not to require Federal employees to
participate in conciliation made available under
subsection (c)(1)(A)(ii) unless such entity has
an alternative dispute resolution process ap-
proved by the Commission as described in such
subsection; and
‘‘(v) not to require Federal employees to
participate in a dispute resolution process made
available under clause (ii).
(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 opposing
any practice made an unlawful employment practice by
this title, his making a charge, testifying, assisting, or par-
ticipating in any manner in an investigation, proceeding,
or hearing under this title, or his communicating with the
Congress regarding discrimination in violation of this sec-
tion was a contributing factor in an adverse personnel ac-
tion that was taken or is to be taken against such em-
ployee or applicant.
‘‘(B) On a claim in which a Federal employee proves
a violation under subparagraph (A) and a respondent
demonstrates, on the basis of the evidentiary standard
specified in section 1221(e)(2) of title 5 of the United
States Code, that the respondent would have taken the
same personnel action in the absence of the impermissible
motivating factor, the court—
‘‘(i) may grant declaratory relief, injunctive re-
lief (except as provided in clause (ii)), and attorney’s
fees and costs demonstrated to be directly attrib-
utable only to the pursuit of a claim under subpara-
graph (A); and
‘‘(ii) shall not award damages or issue an order
requiring any admission, reinstatement, hiring, pro-
motion, or payment not described in clause (i).’’,
(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 this section 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)(A) In any action or proceeding under this sec-
tion, 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 inter-
est to compensate for delay in payment as in cases involv-
ing nonpublic parties.
‘‘(B) If an action brought under this section by or
on behalf a Federal employee is found by the court to be
unreasonable, groundless, or vexatious, the court, in its
discretion, may allow the respondent a reasonable attor-
ney’s fee (including expert fees), costs, and interest as a
court has authority to award in an action to a prevailing
party under subparagraph (A).’’,
(4) by redesignating subsections (d) and (e) as
subsections (o) and (p), respectively, and
(5) by inserting after subsection (b) the follow-
ing:
‘‘(c)(1)(A) Except as provided in subparagraphs (B),
(C), (D), and (E), 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 this sec-
tion shall name as the respondent, and be filed with, the
head of the department, agency, or unit in which such dis-
crimination is alleged to have occurred, or with the Com-
mission—
‘‘(i) not later than 180 days after the alleged
discrimination occurs, except as provided in clause
(ii); and
‘‘(ii) in the case of a respondent that provides
to such employee a voluntary alternative dispute res-
olution process approved by the Commission in ac-
cordance with rules issued by the Commission under
section 6(a)(4) of the Federal Employee Fairness
Act of 1997, after the expiration of the 20-day pe-
riod beginning on the date the Federal employee
specifically named in the complaint (or an individual
authorized to represent such Federal employee or
both) requests and offers to meet once with an indi-
vidual authorized to represent the respondent in ac-
cordance with subparagraph (B) to engage in the
precomplaint conciliation approved under such sec-
tion by the Commission to be provided by the re-
spondent, except that such 20-day period shall be
excluded for purposes calculating such 180 days.
‘‘(B) For purposes of subparagraph (A)(ii)—
‘‘(i) conciliation shall occur during the regular
working hours of such Federal employee; and
‘‘(ii) an individual may not be authorized to
represent the respondent if such individual—
‘‘(I) has or has had any involvement in the
circumstances relating to any of such claims; or
‘‘(II) has or has had supervisory authority
over such Federal employee.
‘‘(C) If, not later than 180 days (determined under
subparagraph (A)) 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) except as provided in subparagraph (E),
with any other entity of the Federal Government, re-
gardless of the respondent named;
the complaint shall be considered to be filed in compliance
with subparagraph (A).
‘‘(D) A complaint filed under this section with respect
to a claim of discrimination arising under this section shall
be dismissed if—
‘‘(i) such claim is a grievance that is subject to
section 7121 of title 5, United States Code; and
‘‘(ii) the aggrieved Federal employee has, in the
discretion of the Federal employee, exercised the op-
tion under section 7121(d) of such title to raise the
matter under the negotiated grievance procedure be-
fore filing the complaint.
‘‘(E) A complaint filed by or on behalf of a Federal
employee, or a class of Federal employees, employed by
a department, agency, or unit in the intelligence commu-
nity (as defined by Executive Order 12333 or any succes-
sor to such order) and alleging a claim of discrimination
arising under this section shall be filed with the depart-
ment, agency, or unit in which such discrimination is al-
leged to have occurred not later than 180 days (deter-
mined under subparagraph (A)) after the alleged discrimi-
nation occurs.
‘‘(2) 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 oc-
curred, then—
‘‘(A) such entity (other than the Commission)
shall transmit the complaint to the Commission, not
later than 10 days after receiving the complaint; and
‘‘(B) the Commission shall transmit a copy of
the complaint, not later than 10 days after receiving
the complaint, to the head of the department, agen-
cy, or unit in which such discrimination is alleged to
have occurred (hereinafter in this section referred to
as the ‘respondent’).
‘‘(3) Not later than 10 days after the respondent re-
ceives the complaint from a source other than the Com-
mission, the respondent 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 re-
spect to such claim, the respondent shall collect and pre-
‘‘(i) file a written request described in clause (i)
of paragraph (2)(B) at any time before the expira-
tion of the 90-day period specified in clause (i) of
such paragraph; or
‘‘(ii) commence a civil action described in clause
(ii) of such paragraph before the expiration of the
applicable 90-day period specified in paragraph
(2)(B)(ii).
‘‘(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)(i), the Commission
shall transmit the complaint, not later than 10 days after
the Commission receives the complaint, to the appropriate
agency for determination.
‘‘(f)(1) If such Federal employee files a written re-
quest under subsection (e)(2)(B)(i)(I) and in accordance
with subsection (e)(3)(A) with the Commission for a deter-
mination 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, not later than 10 days after receiving
such request, shall appoint an administrative judge of the
Commission to determine such claim. If such request in-
cludes a request for a stay described in paragraph (3)(A),
then the Commission shall appoint an administrative
judge immediately after receiving such request.
‘‘(2) Not later than 5 days 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) The administrative judge, in accordance with
rules issued by the Commission, may request any member
of the Commission to order a stay of any personnel action
for 45 days if the administrative judge determines that
there are reasonable grounds to believe that the personnel
action was taken for discriminatory or retaliatory reasons
prohibited under this section.
‘‘(B)(i) Any member of the Commission requested
under subparagraph (A) to order a stay shall order such
stay unless the member determines that, under the facts
and circumstances involved, such a stay does not comply
with such rules or otherwise would not be appropriate.
‘‘(ii) Unless denied under clause (i), any stay re-
quested under subparagraph (A) shall be deemed to be
ordered on the third calendar day (excluding Saturdays,
Sundays, and legal holidays) after the date of the request.
‘‘(C) If a stay is ordered under subparagraph (B),
the member who received the request for such stay may
terminate such stay at any time after giving notice, and
an opportunity for oral or written comments, to the ag-
grieved Federal employee on whose behalf such stay was
ordered.
‘‘(D)(i) The Commission may extend the period of
any stay granted under subparagraph (B) for any period
that the Commission considers appropriate.
‘‘(ii) Members of the Commission shall allow any en-
tity of the Federal Government that would be subject to
a stay, or to the extension of a stay, to comment to such
members and the Commission on the request for such stay
and on a request for such extension.
‘‘(iii) The respondent shall comply with a stay in ef-
fect under this section.
‘‘(4) The administrative judge shall determine wheth-
er the documents and information received under para-
graph (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 infor-
mation necessary to comply with such subsection, the ad-
ministrative 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 re-
spondent—
‘‘(A) to obtain any additional documents and
information necessary to comply with such sub-
section; and
‘‘(B) to correct any inaccuracy in the docu-
ments and information so received.
‘‘(5)(A) After examining the documents and informa-
tion received under paragraph (4), the administrative
judge shall issue an order dismissing—
‘‘(i) any frivolous claim alleged in the com-
plaint;
‘‘(ii) any claim of a Federal employee who fails
to comply with subsection (c)(1)(A)(ii) if applicable
to such employee; and
‘‘(iii) the complaint if it fails to state a non-
frivolous 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 for-
mal 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 em-
ployee 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 the complaint.
‘‘(ii) Such Federal employee may commence such civil
action after the dismissal of such claim or the complaint
and before the expiration of 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 deter-
mination on the merits of any other nonfrivolous claim
under this section, and on the merits of any action such
Federal employee may appeal to the Merit Systems Pro-
tection Board, reasonably expected to arise from the facts
on which the complaint is based.
‘‘(ii) On the request of the aggrieved Federal em-
ployee, the administrative judge shall—
‘‘(I) determine whether the administrative pro-
ceeding with respect to such claim may be main-
tained as a class proceeding; and
‘‘(II) if the administrative proceeding may be so
maintained, shall describe those whom the adminis-
trative 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 ac-
tion to the extent deemed appropriate by the administra-
tive judge.
‘‘(C) If the aggrieved Federal employee or the re-
spondent 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 re-
quested information, or the testimony of the re-
quested witness, would have reflected unfavorably on
the party who so fails to respond;
‘‘(ii) consider the matters to which such infor-
mation 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 dispar-
ate impact) prohibited under this section, sub-
ject 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 di-
rect connection with such claim;
‘‘(ii) bring out pertinent facts and relevant em-
ployment practices and policies, and ensure that the
record is developed for a full and fair determination
of such claim, but exclude irrelevant or unduly rep-
etitious information;
attendance of other witnesses, except that any wit-
ness 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, trans-
acts 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 ob-
structs 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 dispar-
ate impact) prohibited under this section, sub-
ject 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 to a prevailing party (other
than an entity of the Federal Government)—
‘‘(i) a reasonable attorney’s fee (including ex-
pert 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 re-
sides 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)(I) 300 days after the complaint containing
such claim is filed by or on behalf of a Federal em-
ployee if such complaint is filed in the 1-year period
beginning on the effective date of this subsection.
‘‘(II) except as provided in subclause (I), 210
days after the complaint containing such claim is
filed by or on behalf of a Federal employee; or
‘‘(ii) 2 years and 30 days after the complaint
containing such claim is filed on behalf of a class of
Federal employees;
except that these time periods shall be extended for 30
days if the administrative judge certifies, in writing, that
such 30-day period is needed to secure additional docu-
ments or information from the respondent to have a com-
plete 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 pe-
riod—
‘‘(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 comply-
ing with the applicable period specified in subpara-
graph (A).
‘‘(C) The administrative judge may apply to the Com-
mission to extend any period applicable under subpara-
graph (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 exten-
sion 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 com-
mence 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 com-
menced 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 de-
nied, in such order with respect to such claim.
‘‘(F) Such Federal employee may commence such
civil action at any time 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—
‘‘(i) such employee does not commence a civil
action in accordance with subparagraph (E)(i); and
‘‘(ii) neither party 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 deter-
mination made, and relief granted or denied, with respect
to a claim in such order, then the Commission shall imme-
diately 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 informa-
tion 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
a written order with respect to such claim affirming, re-
versing, 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 cir-
cumstances 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 a preponderance of the evi-
dence in the record taken as a whole and are otherwise
in accordance with law. The Commission shall accord sub-
stantial deference to the findings of fact of the administra-
tive judge.
‘‘(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, be-
fore the expiration of the 90-day period beginning on the
date such Federal employee receives such order, such Fed-
eral employee may commence a civil action in an appro-
priate district court of the United States for de novo re-
view of a claim with respect to which such order is issued.
‘‘(D) Such Federal employee may commence such
civil action at any time before the expiration of the 90-
day period beginning on the date such Federal employee
receives an order described in subparagraph (A).
‘‘(h)(1) In addition to the periods authorized by sub-
sections (f)(7)(F) and (g)(3)(D)—
‘‘(A) during the period beginning 20 days after
the expiration of the applicable period specified in
subparagraph (A) or (B) of subsection (f)(7) and
ending on the date the administrative judge issues
under such subsection an order with respect to such
claim; and
‘‘(B) during the period beginning 20 days after
the expiration of the applicable period specified in
subsection (g)(3)(A) and ending on the date the
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 (includ-
ing 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 this section, 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)(1) 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 em-
ployee paid administrative leave if otherwise on duty, for
time expended in accordance with rules issued by the Com-
mission to carry out this section, except that such leave
shall include reasonable time for—
‘‘(A) preparation of a complaint based on such
allegation;
‘‘(B) 
conciliation 
required 
by 
subsection
(c)(1)(A)(ii);
‘‘(C) responding to requests made by the Com-
mission (including administrative judges) or the re-
spondent for information; and
‘‘(D) attendance at such proceeding or action.
‘‘(2) Except as provided in paragraph (1), an entity
of the Federal Government shall grant a Federal em-
ployee—
‘‘(A) paid administrative leave to participate for
the benefit of a claimant in an administrative pro-
ceeding or civil action commenced under this section
to the same extent and under such circumstances as
such entity would grant an employee official duty or
paid administrative leave to participate for the bene-
fit of a Federal entity in an administrative proceed-
ing or civil action commenced under this section
against such entity; and
‘‘(B) other leave to participate for the benefit of
a claimant in an administrative proceeding or civil
action commenced under this section to the same ex-
tent and under such circumstances as such entity
would grant an employee other leave to participate
for the benefit of a Federal entity in an administra-
tive proceeding or civil action commenced under this
section against such entity.
‘‘(l)(1) In enforcing compliance with an order issued
by an administrative judge or the Commission, the Com-
mission may make a written determination that—
‘‘(A) any officer or employee of the agency, de-
partment, 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 Presi-
dent 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 Unit-
ed States for any service specified in such determination.
‘‘(2) In enforcing compliance with such order with re-
spect 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 shall 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 inten-
tional discrimination (other than an employment practice
that is unlawful because of its disparate impact) prohib-
ited by this section, a Federal employee prevails in a pro-
ceeding under subsection (f) or a civil action commenced
under this section, then not later than 15 days after issu-
ing an order finding liability under this section, the admin-
istrative judge or the district court involved shall transmit
to the Office of Special Counsel a copy of such order.
‘‘(n) This section, as in effect immediately before the
effective date of the Federal Employee Fairness Act of
1997, shall apply with respect to employment in the Li-
brary of Congress.’’.
SEC. 3. AMENDMENTS TO THE AGE DISCRIMINATION IN EM-
PLOYMENT 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),
(B) by inserting after subsection (b) the follow-
ing:
‘‘(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 1997, 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 ac-
tion; 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 com-
menced 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.’’,
(C) in subsection (f)—
(i) by inserting ‘‘(1)’’ after ‘‘(f)’’,
(ii) by striking ‘‘section 12(b)’’ and insert-
ing ‘‘sections 12(b) and 4(d)’’, and
(iii) by adding at the end the following:
‘‘(2)(A) Subject to subparagraph (B), an unlawful
personnel action of the kind described in section 4(d) is
established under subsection (a) if an employee or appli-
cant for employment demonstrates that his opposing any
practice made an unlawful employment practice by sub-
section (a), his making a charge, testifying, assisting, or
participating in any manner in an investigation, proceed-
ing, or hearing under this section, or his communicating
with the Congress regarding discrimination in violation of
subsection (a) was a contributing factor in an adverse per-
sonnel action that was taken or is to be taken against such
employee or applicant.
‘‘(B) On a claim in which a Federal employee proves
a violation under subparagraph (A) and a respondent
demonstrates, on the basis of the evidentiary standard
specified in section 1221(e)(2) of title 5 of the United
States Code, that the respondent would have taken the
same personnel action in the absence of the impermissible
motivating factor, the court—
‘‘(i) may grant declaratory relief, injunctive re-
lief (except as provided in clause (ii)), and attorney’s
fees and costs demonstrated to be directly attrib-
utable only to the pursuit of a claim under subpara-
graph (A); and
‘‘(ii) shall not award damages or issue an order
requiring any admission, reinstatement, hiring, pro-
motion, or payment not described in clause (i).’’,
(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 insert-
ing ‘‘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 Em-
ployee Fairness Act of 1997, shall apply with respect to
employment in the Library of Congress.’’, and
(B) in subsection (b) by striking ‘‘In’’ and in-
serting ‘‘Except as provided in subsection (a)(1),
in’’.
(b) OPPORTUNITY TO COMMENCE CIVIL ACTION.—
If a complaint filed under section 15 of the Age Discrimi-
nation 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 Commis-
sion is pending in the period beginning on the date of the
enactment of this Act and ending on December 31, 1998,
the individual who filed such complaint may commence a
civil action under such section not later than June 30,
1999.
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 ‘‘adminis-
trative’’ after ‘‘exclusive’’, and
(2) in subsection (d)—
(A) by inserting ‘‘(1)’’ after ‘‘(d)’’,
(B) in the first sentence by inserting ‘‘, in
the discretion of the aggrieved employee,’’ after
‘‘may’’, and
(C) in the last sentence by striking ‘‘Selec-
tion’’ and all that follows through ‘‘any other’’,
and inserting the following:
‘‘(2) 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’’.
(b) ACTIONS INVOLVING DISCRIMINATION.—Section
7702 of title 5, United States Code, is amended to read
as follows:
‘‘§ 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 appli-
cant may appeal to the Merit Systems Protec-
tion Board, or
‘‘(ii) an action, not described in clause
(i)—
‘‘(I) on the part the Equal Employ-
ment Opportunity Commission, and
‘‘(II) with respect to which the em-
ployee 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 dis-
crimination 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 Stand-
ards 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 15 of the Age Dis-
crimination 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 in accordance
with section 717 of the Civil Rights Act of 1964 and shall
make a request described in section 717(e)(2)(B)(i) select-
ing the procedures specified in one of the following sub-
paragraphs:
‘‘(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 ap-
plied 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 sub-
section (a)(1)(A).
‘‘(b) If—
‘‘(1) an employee elects the procedures specified
in subsection (a)(2)(C), and
‘‘(2) the Equal Employment Opportunity Com-
mission 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 the
receipt under section 717(e)(3)(B) of the Civil Rights Act
of 1964 of a complaint as a result of 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 ac-
tion, 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 af-
fect 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 re-
ceives any copy of an order, in accordance with section
717(m) of the Civil Rights Act of 1964, with respect to
a claim arising under section 717 of the Civil Rights Act
of 1964, section 15(a) of the Age Discrimination in Em-
ployment Act of 1967, or section 501 of the Rehabilitation
Act of 1973, the Special Counsel shall investigate the mat-
ter 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 administra-
tive judge of the Equal Employment Opportunity
Commission applies, and
‘‘(ii) with respect to which the aggrieved em-
ployee neither—
‘‘(I) commences a civil action in accord-
ance with section 717(f)(7)(E)(i) of the Civil
Rights Act of 1964, nor
‘‘(II) requests appellate review in accord-
ance 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 a copy of an order (referred to
in paragraph (1)) from the administrative judge.
‘‘(B) With respect to a claim—
‘‘(i) to which an order issued by the Equal Em-
ployment Opportunity Commission applies, and
‘‘(ii) with respect to which the aggrieved em-
ployee does not commence a civil action in accord-
ance with section 717(g)(3)(D),
the appropriate date is the date on which the Office of
Special Counsel receives a copy of an order (referred to
in paragraph (1)) from the Commission.
‘‘(C) With respect to a claim to which a final judg-
ment issued by a court of the United States applies, the
appropriate date is the date on which the Office of Special
Counsel receives a copy of an order (referred to in para-
graph (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 is-
sued on the merits; and
‘‘(C) the term ‘final judgment’ means a judg-
ment 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 with
respect to each particular prohibited personnel practice,
the extent to which such information relates to any matter
referred to in section 1214(g), the disposition of such
practice, and the basis for such disposition.’’.
(d) RECORDKEEPING.—(1) Chapter 23 of title 5,
United States Code, is amended by adding at the end the
following:
‘‘§ 2306. Federal personnel records
‘‘(a) For the purpose of this section—
‘‘(1) the term ‘personnel action’ has the mean-
ing 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 an employee or
applicant for employment in any entity of the Fed-
eral Government to which—
‘‘(A) section 717(a) of the Civil Rights Act
of 1964 applies;
‘‘(B) section 501 of the Rehabilitation Act
of 1973 applies; or,
‘‘(C) sections 12 and 15 of the Age Dis-
crimination in Employment Act of 1967 apply;
but does not include any employee or applicant for
employment 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 such records relate; or
‘‘(2) the period of time otherwise required
under applicable provisions of law, rule, or regula-
tion, if any.
‘‘(c) The Office of Personnel Management, in con-
sultation with the Equal Employment Opportunity Com-
mission, shall issue guidelines for the implementation of
this section by an entity of the Federal Government (as
defined in section 701 of the Civil Rights Act of 1964).’’.
(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) CONFORMING AMENDMENTS.—Section 7703(b)
of title 5, United States Code, is amended—
(1) in paragraph (1) by striking ‘‘(1) Except as
provided in paragraph (2) of this subsection, a’’ and
inserting ‘‘A’’, and
(2) by striking paragraph (2).
(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 in a matter with re-
spect to which a copy of an order 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 ap-
pealed is discrimination of a type described in sec-
tion 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 ‘‘Com-
mission’’.
SEC. 6. ISSUANCE OF PROCEDURAL GUIDELINES AND NO-
TICE RULES.
(a) ISSUANCE
OF CERTAIN RULES
AND GUIDE-
LINES.—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 Gov-
ernment to comply with section 717(d) of the Civil
Rights Act of 1964, as added by section 2 of this
Act,
(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 col-
lecting and preserving documents and informa-