Text: H.R.5905 — 101st Congress (1989-1990)All Information (Except Text)

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HR 5905 IH
101st CONGRESS
2d Session
 H. R. 5905
To amend the Civil Rights Act of 1964 to strengthen civil rights laws that
ban discrimination in employment, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
October 23, 1990
Mr. MICHEL (for himself, Mr. GINGRICH, Mr. LEWIS of California, Mr. EDWARDS of
Oklahoma, Mr. GOODLING, Mr. SENSENBRENNER, Mr. HYDE, Mr. GUNDERSON, Mr. WYLIE,
Mr. SUNDQUIST, Mr. INHOFE, Mr. COUGHLIN, Mr. CHANDLER, Mr. WELDON, Mr. GALLO,
Mr. BARTON of Texas, Mr. LIVINGSTON, Mr. GILLMOR, Mr. LOWERY of California,
Mr. PARRIS, Mr. DUNCAN, Mr. BUECHNER, Mr. GRADISON, Mr. RIDGE, Mr. LEWIS of
Florida, Mr. NIELSON of Utah, Mr. PASHAYAN, Mr. ROGERS, Mr. RITTER, Mr. HILER,
Mr. MILLER of Washington, Mrs. BENTLEY, Mr. MCMILLAN of North Carolina,
Mr. WALKER, Mr. IRELAND, Mr. DREIER of California, Mr. SHAW, Mr. THOMAS
of Wyoming, Mr. RHODES, Mr. DENNY SMITH, Mr. BROOMFIELD, Mr. SMITH of New
Jersey, Mr. STEARNS, and Mr. UPTON) introduced the following bill; which was
referred jointly to the Committees on Education and Labor, the Judiciary,
House Administration, and Rules
A BILL
To amend the Civil Rights Act of 1964 to strengthen civil rights laws that
ban discrimination in employment, 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 `Civil Rights Act of 1990'.
SEC. 2. FINDINGS AND PURPOSE.
  (a) FINDINGS- Congress finds that additional protections and remedies
  under Federal law are needed to deter unlawful discrimination.
  (b) PURPOSE- The purpose of this Act is to strengthen existing protections
  and remedies available under Federal civil rights laws to provide more
  effective deterrence.
SEC. 3. DEFINITIONS.
  Section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e) is amended
  by adding at the end thereof the following new subsections:
  `(l) The term `complaining party' means the Commission, the Attorney General,
  or a person who may bring an action or proceeding under this title.
  `(m) The term `demonstrates' means meets the burdens of production and
  persuasion.
  `(n)(1) The term `required by business necessity' means--
  `(A) in the case of employment practices that are defended as a measure
  of job performance, the practice must bear a significant relationship to
  successful performance of the job; or
  `(B) in the case of other employment practices that are not defended
  as a measure of job performance, the practice must bear a significant
  relationship to a significant business objective of the employer.
  `(2) In deciding whether the standards described in paragraph (1) for
  business necessity have been met, unsubstantiated opinion and hearsay are
  not sufficient; demonstrable evidence is required. The court may rely on as
  such evidence statistical reports, validation studies, expert testimony,
  performance evaluations, written records or notes related to the practice
  or decision, testimony of individuals with knowledge of the practice or
  decision involved, other evidence relevant to the employment decision,
  prior successful experience and other evidence as permitted by the Federal
  Rules of Evidence, and the court shall give such weight, if any, to such
  evidence as is appropriate.
  `(o) The term `respondent' means an employer, employment agency, labor
  organization, joint labor-management committee controlling apprenticeship
  or other training or retraining programs, including on-the-job training
  programs, or those Federal entities subject to the provisions of section
  717 (or the heads thereof).'.
SEC. 4. DISPARATE IMPACT CASES.
  Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) is amended
  by adding at the end thereof the following new subsection:
  `(k) Proof of Unlawful Employment Practices in Disparate Impact Cases-
  `(1) An unlawful employment practice based on disparate impact under this
  title is established only when a complaining party demonstrates that a
  particular employment practice causes a disparate impact on the basis
  of race, color, religion, sex, or national origin, and the respondent
  fails to demonstrate that such practice is required by business necessity:
  Provided, how-ever, That if the elements of a decisionmaking process are not
  capable of separation for analysis, they may be analyzed as one employment
  practice, just as where the criteria are distinct and separate each must
  be identified with particularity: And provided further, That an unlawful
  employment practice shall nonetheless be established if the complaining
  party demonstrates the availability of an alternative employment practice,
  comparable in cost and equally effective in measuring job performance or
  achieving the respondent's legitimate employment goals, that will reduce
  the disparate impact, and the respondent refuses to adopt such alternative.
  `(2) Notwithstanding any other provision of this title, a rule barring the
  employment of an individual who currently and knowingly uses or possesses
  an illegal drug as defined in schedules I and II of section 102(6) of
  the Controlled Substances Act (21 U.S.C. 802(6)), other than the use of
  possession of a drug taken under the supervision of a licensed health care
  professional, or any other use of possession authorized by the Controlled
  Substances Act or any other provision of Federal law, shall be considered
  an unlawful employment practice under this title only if such rule is
  adopted or applied with an intent to discriminate because of race, color,
  religion, sex, or national origin.'.
SEC. 5. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CONSIDERATION OF RACE,
COLOR, RELIGION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES.
  (a) IN GENERAL- Section 703 of the Civil Rights Act of 1964 (42
  U.S.C. 2000e-2) (as amended by section 4) is further amended by adding at
  the end thereof the following new subsection:
  `(l) DISCRIMINATORY PRACTICE NEED NOT BE SOLE MOTIVATING FACTOR- Except
  as otherwise provided in this title, an unlawful employment practice
  is established when the complaining party demonstrates that race, color,
  religion, sex, or national origin was a motivating factor for any employment
  practice, even though other factors also motivated such practice.'.
  (b) ENFORCEMENT PROVISIONS- Section 706(g) of such Act (42 U.S.C. 2000e-5(g))
  is amended by inserting before the period in the last sentence the following:
  `or, in a case where a violation is established under section 703(l), if
  the respondent demonstrates that it would have taken the same action in
  the absence of any discrimination. On a claim where a violation is proven
  under section 703(l) and the respondent demonstrates that it would have
  taken the same action in the absence of any discrimination, the court may
  grant declaratory relief, injunctive relief, attorney's fees and costs,
  and it shall not make an award under section 706(g)(3)'.
SEC. 6. FACILITATING PROMPT AND ORDERLY RESOLUTION OF CHALLENGES TO EMPLOYMENT
PRACTICES IMPLEMENTING LITIGATED OR CONSENT JUDGMENTS OR ORDERS.
  Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) (as amended
  by sections 4 and 5) is further amended by adding at the end thereof the
  following new subsection:
  `(m) Finality of Litigated or Consent Judgments or Orders-
  `(1) Notwithstanding any other provision of law, and except as provided in
  paragraph (2), an employment practice specifically required by a litigated
  or consent judgment or order resolving a claim of employment discrimination
  under this title may not be challenged by a person who during the period
  of notice was an employee, former employee, or applicant who, prior to the
  entry of such judgment or order had actual notice of the proposed judgment
  or order in sufficient detail to apprise such person--
  `(A) that such judgment or order would likely adversely affect the interests
  and legal rights of such person;
  `(B) of any relief in the proposed judgment;
  `(C) that a reasonable opportunity is available to challenge such judgment
  or order by a future date certain; and
  `(D) that such person will likely be barred from challenging the proposed
  judgment or order after such date.
  `(2) Nothing in this subsection shall be construed to--
  `(A) alter the standards for intervention under rule 24 of the Federal
  Rules of Civil Procedure;
  `(B) apply to the rights of parties to the action in which the litigated or
  consent judgment or order was entered, or of members of a class represented
  or sought to be represented in such action, or of members of a group on
  whose behalf relief was sought in such action by the Federal Government;
  `(C) prevent challenges to a litigated or consent judgment or order on
  the ground that such judgment or order was obtained through collusion
  or fraud, or is transparently invalid or was entered by a court lacking
  subject matter jurisdiction; or
  `(D) authorize or permit the denial to any person of the due process of
  law required by the United States Constitution.'.
SEC. 7. EXPANSION OF RIGHT TO CHALLENGE DISCRIMINATORY SENIORITY SYSTEMS.
  Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e))
  is amended by adding at the end thereof the following sentence: `For
  purposes of this section, an alleged unlawful employment practice occurs
  when a seniority system if adopted, when an individual becomes subject to a
  seniority system, or when a person aggrieved is injured by the application
  of a seniority system, or provision thereof, that is alleged to have been
  adopted for an intentionally discriminatory purpose, in violation of this
  title, whether or not that discriminatory purpose is apparent on the face
  of the seniority provision.'.
SEC. 8. PROVIDING FOR ADDITIONAL EQUITABLE RELIEF IN CERTAIN CASES OF
INTENTIONAL DISCRIMINATION.
  Section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g))
  (as amended by section 5) is further amended--
  (1) by designating the first sentence as paragraph (1);
  (2) by designating the second and third sentences as paragraph (2);
  (3) by designating the last sentence as paragraph (4); and
  (4) by inserting after paragraph (2) (as so designated) the following
  new paragraph:
  `(3) In fashioning remedies for unlawful intentional discrimination under
  this title, the court may, in the exercise of its equitable discretion,
  require the respondent to pay the complaining party an amount not to exceed
  a total of $150,000, if the court finds--
  `(A) that an additional equitable remedy beyond those otherwise available
  is needed to deter the respondent from engaging in such unlawful employment
  practices; and
  `(B) that such an award is otherwise justified by the equities, is consistent
  with the purposes of this title, and is in the public interest.'.
  Section 706 (42 U.S.C. 2000e-5) is further amended by adding at the end
  the following new subsection:
  `(l) JUDICIAL DETERMINATION- All issues in cases arising under this title
  shall be heard and determined by a judge, as specified in section 706(f):
  Provided, however, That if the court determines that one or more of the
  claims presented may require relief under section 706(g)(3), and if the
  court holds that a jury trial with respect to issues of liability is
  constitutionally required on claims for such relief, then a jury may be
  empaneled to hear and determine such liability issues and no others.'.
SEC. 9. ALLOWING THE AWARD OF EXPERT FEES.
  Section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k))
  is amended by inserting `(including expert fees)' after `attorney's fees,'.
SEC. 10. PROVIDING FOR INTEREST, AND EXTENDING THE STATUTE OF LIMITATION,
IN ACTIONS AGAINST THE FEDERAL GOVERNMENT.
  Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k))
  is amended--
  (1) in subsection (c), by striking out `thirty days' and inserting in lieu
  thereof `ninety days'; and
  (2) in subsection (d), by inserting before the period `, and the same
  interest to compensate for delay in payment shall be available as in cases
  involving non-public parties'.
SEC. 11. PROHIBITION AGAINST RACIAL DISCRIMINATION IN THE MAKING AND
PERFORMANCE OF CONTRACTS.
  Section 1977 of the Revised Statutes of the United States (42 U.S.C. 1981)
  is amended--
  (1) by inserting `(a)' before `All persons within'; and
  (2) by adding at the end thereof the following new subsections:
  `(b) For purposes of this section, the right to `make and enforce contracts'
  shall include the making, performance, modification and termination
  of contracts, and the enjoyment of all benefits, privileges, terms and
  conditions of the contract.
  `(c) The rights protected by this section are protected against impairment
  by non-governmental discrimination as well as against impairment under
  color of State law.'.
SEC. 12. NOTICE OF LIMITATIONS PERIOD.
  Section 7(e) of the Age Discrimination in Employment Act of 1967 (29
  U.S.C. 626(e)) is amended--
  (1) by striking out paragraph (2);
  (2) by striking out the paragraph designation in paragraph (1);
  (3) by striking out `Sections 6 and' and inserting `Section'; and
  (4) by adding at the end thereof the following: `If a charge filed with
  the Commission is dismissed or the Commission's proceedings are otherwise
  terminated by the Commission, the Commission shall so notify the individual
  referred to in subsection (d) and such individual may bring an action
  against the respondent named in the charge at any time after sixty days
  from the time the charge was timely filed until the expiration of ninety
  days after the receipt of the notice provided under this subsection.'.
SEC. 13. COVERAGE OF CONGRESS AND THE AGENCIES OF THE LEGISLATIVE BRANCH.
  (a) Coverage of the Senate-
  (1) COMMITMENT TO RULE XLII- The Senate reaffirms its commitment to rule
  XLII of the Standing Rules of the Senate which provides as follows:
  `No Member, officer, or employee of the Senate shall, with respect to
  employment by the Senate or any office thereof--
  `(a) fail or refuse to hire an individual;
  `(b) discharge an individual; or
  `(c) otherwise discriminate against an individual with respect to promotion,
  compensation, or terms, conditions, or privileges of employment;
on the basis of such individual's race, color, religion, sex, national origin,
age, or state of physical handicap.'.
  (2) APPLICATION TO SENATE EMPLOYMENT- The rights and protections provided
  pursuant to this Act, the Civil Rights Act of 1964, the Americans with
  Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967,
  and the Rehabilitation Act of 1973 shall apply with respect to employment
  by the United States Senate.
  (3) INVESTIGATION AND ADJUDICATION OF CLAIMS- All claims raised by any
  individual with respect to Senate employment, pursuant to the Acts referred
  to in paragraph (2), shall be investigated and adjudicated by the Select
  Committee on Ethics, pursuant to S. Res. 338, 88th Congress, as amended,
  or such other entity as the Senate may designate.
  (4) RIGHTS OF EMPLOYEES- The Committee on Rules and Administration shall
  ensure that Senate employees are informed of their rights under the Act
  referred to in paragraph (2).
  (5) APPLICABLE REMEDIES- When assigning remedies to individuals found to
  have a valid claim under the Acts referred to in paragraph (2), the Select
  Committee on Ethics, or such other entity as the Senate may designate,
  should to the extent practicable apply the same remedies applicable to
  all other employees covered by the Acts referred to in paragraph (2). Such
  remedies shall apply exclusively.
  (6) MATTERS OTHER THAN EMPLOYMENT-
  (A) IN GENERAL- The rights and protections under the Americans with
  Disabilities Act of 1990 shall, subject to subparagraph (B), apply with
  respect to the conduct of the Senate regarding matters other than employment.
  (B) REMEDIES- The Architect of the Capitol shall establish remedies
  and procedures to be utilized with respect to the rights and protections
  provided pursuant to subparagraph (A). Such remedies and procedurers shall
  apply exclusively, after approval in accordance with subparagraph (C).
  (C) PROPOSED REMEDIES AND PROCEDURES- For purposes of subparagraph (B),
  the Architect of the Capitol shall submit proposed remedies and procedures
  to the Senate Committee on Rules and Administration. The remedies and
  procedures shall be effective upon the approval of the Committee on Rules
  and Administration.
  (7) EXERCISE OF RULEMAKING POWER- Notwithstanding any other provision of
  law, enforcement and adjudication of the rights and protections referred to
  in paragraphs (2) and (6)(A) shall be within the exclusive jurisdictions
  of the United States Senate. The provisions of paragraphs (1), (3), (4),
  (5), (6), (B), and (C) are enacted by the Senate as an exercise of the
  rulemaking power of the Senate, with full recognition of the right of the
  Senate to change its rules, in the same manner, and to the same extent,
  as in the case of any other rule of the Senate.
  (b) COVERAGE OF THE HOUSE OF REPRESENTATIVES-
  (1) IN GENERAL- Notwithstanding any provision of title VII of the Civil
  Rights Act of 1964 (42 U.S.C. 2000e et seq.) or of other law, the purposes
  of such title shall, subject to paragraph (2), apply in their entirety to
  the House of Representatives.
  (2) EMPLOYMENT IN THE HOUSE-
  (A) APPLICATION- The rights and protections under title VII of the Civil
  Rights Act of 1964 (42 U.S.C. 2000e et seq.) shall, subject to subparagraph
  (B), apply with respect to any employee in an employment position in
  the House of Representatives and any employing authority of the House
  of Representatives.
  (B) ADMINISTRATION-
  (i) IN GENERAL- In the administration of this paragraph,  the remedies and
  procedures made applicable pursuant to the resolution described in clause
  (ii) shall apply exclusively.
  (ii) RESOLUTION- The resolution referred to in clause (i) is House
  Resolution 15 of the One Hundred First Congress, as agreed to January 3,
  1989, or any other provision that continues in effect the provisions of,
  or is a successor to, the Fair Employment Practices Resolution (House
  Resolution 558 of the One Hundredth Congress, as agreed to October 4, 1988).
  (C) EXERCISE OF RULEMAKING POWER- The provisions of subparagraph (B) are
  enacted by the House of Representatives as an exercise of the rulemaking
  power of the House of Representatives, with full recognition of the right
  of the House to change its rules, in the same manner, and to the same
  extent as the case of any other rule of the House.
  (c) Instrumentalities of Congress-
  (1) IN GENERAL- The rights and protections under this Act and title VII of
  the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) shall, subject to
  paragraph (2), apply with respect to the conduct of each instrumentality
  of the Congress.
  (2) ESTABLISHMENT OF REMEDIES AND PROCEDURES BY INSTRUMENTALITIES- The chief
  official of each instrumentality of the Congress shall establish remedies
  and procedures to be utilized with respect to the rights and protections
  provided pursuant to paragraph (1). Such remedies and procedures shall
  apply exclusively.
  (3) REPORT TO CONGRESS- The chief official of each instrumentality of the
  Congress shall, after establishing remedies and procedures for purposes
  of paragraph (2), submit to the Congress a report describing the remedies
  and procedures.
  (4) DEFINITION OF INSTRUMENTALITIES- For purposes of this section,
  instrumentalities of the Congress include the following: The Architect
  of the Capitol, the Congressional Budget Office, the General Accounting
  Office, the Government Printing Office, the Office of Technology Assessment,
  and the United States Botanic Garden.
  (5) CONSTRUCTION- Nothing in this section shall alter the enforcement
  procedures for individuals protected under section 717 of title VII of
  the Civil Rights Act of 1964 (42 U.S.C. 2000e-16).
SEC. 14. CONSTRUCTION.
  Nothing in the amendments made by this Act, or in any statute amended
  by this Act shall be construed so as to require, permit, or result in
  the adoption or implementation of hiring, promotion, compensation, or
  termination quotas by an employer, employment agency, labor organization,
  joint labor-management committee controlling apprenticeship or other training
  or retraining programs, including on-the-job training programs, or those
  Federal entities subject to the provisions of section 717 (or the heads
  thereof), on the basis of race, color, religion, sex, or national origin.
SEC. 15. SEVERABILITY.
  If any provision of this Act, or an amendment made by this Act, or the
  application of such provision to any person or circumstances is held to
  be invalid, the remainder of this Act and the amendments made by this Act,
  and the application of such provision to other persons and circumstances,
  shall not be affected thereby.
SEC. 16. ALTERNATIVE MEANS OF DISPUTE RESOLUTION.
  Where appropriate and to the extent authorized by law, the use of alternative
  means of dispute resolution, including settlement negotiations, conciliation,
  facilitation, mediation, factfinding, minitrials, and arbitration, is
  encouraged to resolve disputes arising under the Acts amended by this Act.
SEC. 17. EFFECTIVE DATE.
  This Act and the amendments made by this Act shall take effect upon
  enactment.