H.R.5905 - Civil Rights Act of 1990101st Congress (1989-1990)
|Sponsor:||Rep. Michel, Robert H. [R-IL-18] (Introduced 10/23/1990)|
|Committees:||House - Education and Labor; Judiciary; House Administration; Rules|
|Latest Action:||House - 11/16/1990 Referred to the Subcommittee on Civil and Constitutional Rights. (All Actions)|
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Text: H.R.5905 — 101st Congress (1989-1990)All Information (Except Text)
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Introduced in House
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.