Union Calendar No. 42

To amend the Civil Rights Act of 1964 to restore and strengthen civil rights laws that ban discrimination in employment, and for other purposes.

May 17, 1991

HR 1 RH

To amend the Civil Rights Act of 1964 to restore and strengthen civil rights laws that ban discrimination in employment, and for other purposes.

January 3, 1991

Mr. BROOKS (for himself and Mr. EDWARDS of California, Mr. FISH, Mr. GEPHARDT, Mr. GRAY, Mr. HOYER, Mr. FAZIO, Ms. SCHROEDER, Ms. SNOWE, Mr. TOWNS, Mr. ORTIZ, Mr. MINETA, and Mr. MATSUI) introduced the following bill; which was referred jointly to the Committees on Education and Labor and the Judiciary

March 8, 1991

Additional sponsors: Mr. FORD of Michigan, Mr. CLAY, Mrs. COLLINS of Michigan, Mrs. COLLINS of Illinois, Mr. CONYERS, Mr. DELLUMS, Mr. DIXON, Mr. DYMALLY, Mr. ESPY, Mr. FLAKE, Mr. FORD of Tennessee, Mr. HAYES of Illinois, Mr. JEFFERSON, Mr. LEWIS of Georgia, Mr. MFUME, Ms. NORTON, Mr. OWENS of New York, Mr. PAYNE of New Jersey, Mr. RANGEL, Mr. SAVAGE, Mr. STOKES, Mr. WASHINGTON, Ms. WATERS, Mr. WHEAT, Mr. ABERCROMBIE, Mr. ANDREWS of Texas, Mr. ANDREWS of New Jersey, Mr. ANDREWS of Maine, Mr. ATKINS, Mr. AUCOIN, Mr. BACCHUS, Mr. BERMAN, Mr. BILBRAY, Mrs. BOXER, Mr. BROWN, Mr. BRYANT, Mr. BUSTAMANTE, Mr. CARDIN, Mr. CARPER, Mr. COLEMAN of Texas, Mr. CONDIT, Mr. COYNE, Mr. DE LUGO, Mr. DEFAZIO, Ms. DELAURO, Mr. DICKS, Mr. DINGELL, Mr. DOWNEY, Mr. DURBIN, Mr. DWYER of New Jersey, Mr. FALEOMAVAEGA, Mr. FASCELL, Mr. FEIGHAN, Mr. FOGLIETTA, Mr. FRANK of Massachusetts, Mr. FROST, Mr. FUSTER, Mr. GEJDENSON, Mr. GIBBONS, Mr. GLICKMAN, Mr. GREEN of New York, Mr. HALL of Ohio, Mr. HAMILTON, Mr. HOAGLAND, Ms. HORN, Mr. JACOBS, Mr. JOHNSON of South Dakota, Mr. JONTZ, Ms. KAPTUR, Mrs. KENNELLY, Mr. KILDEE, Mr. KLECZKA, Mr. LANTOS, Mr. LEHMAN of Florida, Mr. LEVIN of Michigan, Mr. LEVINE of California, Mrs. LOWEY of New York, Mr. MARKEY, Mr. MARTINEZ, Mr. MAVROULES, Mr. MAZZOLI, Mr. MCCLOSKEY, Mr. MCDERMOTT, Mr. MCHUGH, Mr. MCMILLEN of Maryland, Mr. MCNULTY, Mr. MILLER of California, Mrs. MINK, Mr. MOODY, Mrs. MORELLA, Mr. MRAZEK, Mr. MURPHY, Mr. NAGLE, Mr. NEAL of Massachusetts, Ms. OAKAR, Mr. OBERSTAR, Mr. OWENS of Utah, Mr. PALLONE, Mr. PANETTA, Mr. PEASE, Ms. PELOSI, Mr. PENNY, Mr. PETERSON of Minnesota, Mr. PETERSON of Florida, Mr. POSHARD, Mr. PRICE, Mr. RAHALL, Mr. REED, Mr. RICHARDSON, Mr. ROYBAL, Mr. SABO, Mr. SANDERS, Mr. SAWYER, Mr. SCHEUER, Mr. SCHUMER, Mr. SERRANO, Mr. SHARP, Mr. SHAYS, Mr. SIKORSKI, Mr. SLATTERY, Ms. SLAUGHTER of New York, Mr. STARK, Mr. STUDDS, Mr. SWIFT, Mr. TALLON, Mr. TORRES, Mr. TORRICELLI, Mr. TRAFICANT, Mr. TRAXLER, Mr. UDALL, Mr. VENTO, Mr. VISCLOSKY, Mr. WAXMAN, Mr. WEISS, Mr. WILLIAMS, Mr. WOLPE, Mr. WYDEN, and Mr. Yates

April 24, 1991

Reported from the Committee on Education and Labor with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

May 17, 1991

Additional sponsors: Mr. HUGHES, Mr. KOPETSKI, Mr. SANGMEISTER, Mr. STAGGERS, Mr. SYNAR, Mr. BEILENSON, Mr. ENGEL, Mr. GONZALEZ, Mr. GUARINI, Mr. HOCHBRUECKNER, Mr. KENNEDY, Mr. KOSTMAYER, Mr. LEHMAN of California, Mr. MORAN, Mr. RINALDO, Mr. ROE, Mr. SMITH of Florida, Mr. SOLARZ, Mrs. UNSOELD, Mr. BOEHLERT, Mr. BONIOR, Mr. EVANS, Mr. GILMAN, Mr. ROEMER, and Mr. Wise

May 17, 1991

Reported from the Committee on the Judiciary, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

To amend the Civil Rights Act of 1964 to restore and 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,

[Struck out->] SECTION 1. SHORT TITLE. [<-Struck out]

[Struck out->] This Act may be cited as the `Civil Rights Act of 1991'. [<-Struck out]

[Struck out->] SEC. 2. FINDINGS AND PURPOSES. [<-Struck out]

[Struck out->] (a) FINDINGS- Congress finds that-- [<-Struck out]

[Struck out->] (1) in a series of recent decisions addressing employment discrimination claims under Federal law, the Supreme Court cut back dramatically on the scope and effectiveness of civil rights protections; and [<-Struck out]

[Struck out->] (2) existing protections and remedies under Federal law are not adequate to deter unlawful discrimination or to compensate victims of such discrimination. [<-Struck out]

[Struck out->] (b) PURPOSES- The purposes of this Act are to-- [<-Struck out]

[Struck out->] (1) respond to the Supreme Court's recent decisions by restoring the civil rights protections that were dramatically limited by those decisions; and [<-Struck out]

[Struck out->] (2) strengthen existing protections and remedies available under Federal civil rights laws to provide more effective deterrence and adequate compensation for victims of discrimination. [<-Struck out]

[Struck out->] SEC. 3. DEFINITIONS. [<-Struck out]

[Struck out->] 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: [<-Struck out]

[Struck out->] `(l) The term `complaining party' means the Commission, the Attorney General, or a person who may bring an action or proceeding under this title. [<-Struck out]

[Struck out->] `(m) The term `demonstrates' means meets the burdens of production and persuasion. [<-Struck out]

[Struck out->] `(n) The term `group of employment practices' means a combination of employment practices that produces one or more decisions with respect to employment, employment referral, or admission to a labor organization, apprenticeship or other training or retraining program. [<-Struck out]

[Struck out->] `(o)(1) The term `required by business necessity' means-- [<-Struck out]

[Struck out->] `(A) in the case of employment practices involving selection (such as hiring, assignment, transfer, promotion, training, apprenticeship, referral, retention, or membership in a labor organization), the practice or group of practices must bear a significant relationship to successful performance of the job; or [<-Struck out]

[Struck out->] `(B) in the case of employment practices that do not involve selection, the practice or group of practices must bear a significant relationship to a significant business objective of the employer. [<-Struck out]

[Struck out->] `(2) In deciding whether the standards in paragraph (1) for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The defendant may offer as evidence statistical reports, validation studies, expert testimony, 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. [<-Struck out]

[Struck out->] `(3) This subsection is meant to codify the meaning of `business necessity' as used in Griggs v. Duke Power Co. (401 U.S. 424 (1971)) and to overrule the treatment of business necessity as a defense in Wards Cove Packing Co., Inc. v. Atonio (109 S. Ct. 2115 (1989)). [<-Struck out]

[Struck out->] `(p) 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).'. [<-Struck out]

[Struck out->] SEC. 4. RESTORING THE BURDEN OF PROOF IN DISPARATE IMPACT CASES. [<-Struck out]

[Struck out->] 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: [<-Struck out]

[Struck out->] `(k) PROOF OF UNLAWFUL EMPLOYMENT PRACTICES IN DISPARATE IMPACT CASES- (1) An unlawful employment practice based on disparate impact is established under this section when-- [<-Struck out]

[Struck out->] `(A) a complaining party demonstrates that an employment practice results in 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; or [<-Struck out]

[Struck out->] `(B) a complaining party demonstrates that a group of employment practices results in a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such group of employment practices is required by business necessity, except that-- [<-Struck out]

[Struck out->] `(i) except as provided in clause (iii), if a complaining party demonstrates that a group of employment practices results in a disparate impact, such party shall not be required to demonstrate which specific practice or practices within the group results in such disparate impact; [<-Struck out]

[Struck out->] `(ii) if the respondent demonstrates that a specific employment practice within such group of employment practices does not contribute to the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity; and [<-Struck out]

[Struck out->] `(iii) if the court finds that the complaining party can identify, from records or other information of the respondent reasonably available (through discovery or otherwise), which specific practice or practices contributed to the disparate impact-- [<-Struck out]

[Struck out->] `(I) the complaining party shall be required to demonstrate which specific practice or practices contributed to the disparate impact; and [<-Struck out]

[Struck out->] `(II) the respondent shall be required to demonstrate business necessity only as to the specific practice or practices demonstrated by the complaining party to have contributed to the disparate impact; [<-Struck out]

[Struck out->] except that an employment practice or group of employment practices demonstrated to be required by business necessity shall be unlawful where a complaining party demonstrates that a different employment practice or group of employment practices with less disparate impact would serve the respondent as well. [<-Struck out]

[Struck out->] `(2) A demonstration that an employment practice is required by business necessity may be used as a defense only against a claim under this subsection. [<-Struck out]

[Struck out->] `(3) 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 or possession of a drug taken under the supervision of a licensed health care professional, or any other use or 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 the race, color, religion, sex, or national origin. [<-Struck out]

[Struck out->] `(4) The mere existence of a statistical imbalance in an employer's workforce on account of race, color, religion, sex, or national origin is not alone sufficient to establish a prima facie case of disparate impact violation.'. [<-Struck out]

[Struck out->] SEC. 5. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICES. [<-Struck out]

[Struck out->] (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: [<-Struck out]

[Struck out->] `(l) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING 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 contributing factor for any employment practice, even though other factors also contributed to such practice.'. [<-Struck out]

[Struck out->] (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 establishes that it would have taken the same action in the absence of any discrimination. In any case in which a violation is established under section 703(l), damages may be awarded only for injury that is attributable to the unlawful employment practice'. [<-Struck out]

[Struck out->] SEC. 6. FACILITATING PROMPT AND ORDERLY RESOLUTION OF CHALLENGES TO EMPLOYMENT PRACTICES IMPLEMENTING LITIGATED OR CONSENT JUDGMENTS OR ORDERS. [<-Struck out]

[Struck out->] 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: [<-Struck out]

[Struck out->] `(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 that implements and is within the scope of a litigated or consent judgment or order resolving a claim of employment discrimination under the United States Constitution or Federal civil rights laws may not be challenged in a claim under the United States Constitution or Federal civil rights laws-- [<-Struck out]

[Struck out->] `(A) by a person who, prior to the entry of such judgment or order, had-- [<-Struck out]

[Struck out->] `(i) actual notice from any source of the proposed judgment or order sufficient to apprise such person that such judgment or order might affect the interests of such person and that an opportunity was available to present objections to such judgment or order; and [<-Struck out]

[Struck out->] `(ii) a reasonable opportunity to present objections to such judgment or order; [<-Struck out]

[Struck out->] `(B) by a person with respect to whom the requirements of subparagraph (A) are not satisfied, if the court determines that the interests of such person were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order; or [<-Struck out]

[Struck out->] `(C) if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons. [<-Struck out]

[Struck out->] A determination under subparagraph (C) shall be made prior to the entry of the judgment or order, except that if the judgment or order was entered prior to the date of the enactment of this subsection, the determination may be made at any reasonable time. [<-Struck out]

[Struck out->] `(2) Nothing in this subsection shall be construed to-- [<-Struck out]

[Struck out->] `(A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which they intervened; [<-Struck out]

[Struck out->] `(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; [<-Struck out]

[Struck out->] `(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 [<-Struck out]

[Struck out->] `(D) authorize or permit the denial to any person of the due process of law required by the United States Constitution. [<-Struck out]

[Struck out->] `(3) Any action, not precluded under this subsection, that challenges an employment practice that implements and is within the scope of a litigated or consent judgment or order of the type referred to in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28, United States Code.'. [<-Struck out]

[Struck out->] SEC. 7. STATUTE OF LIMITATIONS; APPLICATION TO CHALLENGES TO SENIORITY SYSTEMS. [<-Struck out]

[Struck out->] (a) STATUTE OF LIMITATIONS- Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e)) is amended-- [<-Struck out]

[Struck out->] (1) by striking out `one hundred and eighty days' and inserting in lieu thereof `2 years'; [<-Struck out]

[Struck out->] (2) by inserting after `occurred' the first time it appears `or has been applied to affect adversely the person aggrieved, whichever is later,'; [<-Struck out]

[Struck out->] (3) by striking out `, except that in' and inserting in lieu thereof `. In'; and [<-Struck out]

[Struck out->] (4) by striking out `such charge shall be filed' and all that follows through `whichever is earlier, and'. [<-Struck out]

[Struck out->] (b) APPLICATION TO CHALLENGES TO SENIORITY SYSTEMS- Section 703(h) of such Act (42 U.S.C. 2000e-2) is amended by inserting after the first sentence the following new sentence: `Where a seniority system or seniority practice is part of a collective bargaining agreement and such system or practice was included in such agreement with the intent to discriminate on the basis of race, color, religion, sex, or national origin, the application of such system or practice during the period that such collective bargaining agreement is in effect shall be an unlawful employment practice.'. [<-Struck out]

[Struck out->] SEC. 8. PROVIDING FOR DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION. [<-Struck out]

[Struck out->] Section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: `With respect to an unlawful employment practice (other than an unlawful employment practice established in accordance with section 703(k)) or in the case of an unlawful employment practice under the Americans with Disabilities Act of 1990 (other than an unlawful employment practice established in accordance with paragraph (3)(A) or paragraph (6) of section 102 of that Act) as it relates to standards and criteria that tend to screen out individuals with disabilities)-- [<-Struck out]

[Struck out->] `(A) compensatory damages may be awarded; and [<-Struck out]

[Struck out->] `(B) if the respondent (other than a government, government agency, or a political subdivision) engaged in the unlawful employment practice with malice, or with reckless or callous indifference to the federally protected rights of others, punitive damages may be awarded against such respondent; [<-Struck out]

[Struck out->] in addition to the relief authorized by the preceding sentences of this subsection, except that compensatory damages shall not include backpay or any interest thereon. Compensatory and punitive damages and jury trials shall be available only for claims of intentional discrimination. If compensatory or punitive damages are sought with respect to a claim of intentional discrimination arising under this title, any party may demand a trial by jury.'. [<-Struck out]

[Struck out->] SEC. 9. CLARIFYING ATTORNEY'S FEES PROVISION. [<-Struck out]

[Struck out->] Section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)) is amended-- [<-Struck out]

[Struck out->] (1) by inserting `(1)' after `(k)'; [<-Struck out]

[Struck out->] (2) by inserting `(including expert fees and other litigation expenses) and' after `attorney's fee,'; [<-Struck out]

[Struck out->] (3) by striking out `as part of the'; and [<-Struck out]

[Struck out->] (4) by adding at the end thereof the following: [<-Struck out]

[Struck out->] `(2) No consent order or judgment settling a claim under this title shall be entered, and no stipulation of dismissal of a claim under this title shall be effective, unless the parties or their counsel attest to the court that a waiver of all or substantially all attorney's fees was not compelled as a condition of the settlement. [<-Struck out]

[Struck out->] `(3) In any action or proceeding in which any judgment or order granting relief under this title is challenged, the court, in its discretion and in order to promote fairness, may allow the prevailing party in the original action (other than the Commission or the United States) to recover from either an unsuccessful party challenging such relief or a party against whom relief was granted in the original action or from more than one such party under an equitable allocation determined by the court, a reasonable attorney's fee (including expert fees and other litigation expenses) and costs reasonably incurred in defending (as a party, intervenor or otherwise) such judgment or order. In determining whether to allow recovery of fees from the party challenging the initial judgment or order, the court should consider not only whether such challenge was unsuccessful, but also whether the award of fees against the challenging party promotes fairness, taking into consideration such factors as the reasonableness of the challenging party's legal and factual position and whether other special circumstances make an award unjust.'. [<-Struck out]

[Struck out->] SEC. 10. PROVIDING FOR INTEREST, AND EXTENDING THE STATUTE OF LIMITATIONS, IN ACTIONS AGAINST THE FEDERAL GOVERNMENT. [<-Struck out]

[Struck out->] Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) is amended-- [<-Struck out]

[Struck out->] (1) in subsection (c), by striking out `thirty days' and inserting in lieu thereof `ninety days'; and [<-Struck out]

[Struck out->] (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, except that prejudgment interest may not be awarded on compensatory damages'. [<-Struck out]

[Struck out->] SEC. 11. CONSTRUCTION. [<-Struck out]

[Struck out->] Title XI of the Civil Rights Act of 1964 (42 U.S.C. 2000h et seq.) is amended by adding at the end thereof the following new section: [<-Struck out]

[Struck out->] `SEC. 1107. RULES OF CONSTRUCTION FOR CIVIL RIGHTS LAWS. [<-Struck out]

[Struck out->] `(a) EFFECTUATION OF PURPOSE- All Federal laws protecting the civil rights of persons shall be interpreted consistent with the intent of such laws, and shall be broadly construed to effectuate the purpose of such laws to provide equal opportunity and provide effective remedies. [<-Struck out]

[Struck out->] `(b) NONLIMITATION- Except as expressly provided, no Federal law protecting the civil rights of persons shall be construed to repeal or amend by implication any other Federal law protecting such civil rights. [<-Struck out]

[Struck out->] `(c) INTERPRETATION- In interpreting Federal civil rights laws, including laws protecting against discrimination on the basis of race, color, national origin, sex, religion, age, and disability, courts and administrative agencies shall not rely on the amendments made by the Civil Rights Act of 1990 as a basis for limiting the theories of liability, rights, and remedies available under civil rights laws not expressly amended by such Act.'. [<-Struck out]

[Struck out->] SEC. 12. RESTORING PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN THE MAKING AND ENFORCEMENT OF CONTRACTS. [<-Struck out]

[Struck out->] Section 1977 of the Revised Statutes of the United States (42 U.S.C. 1981) is amended-- [<-Struck out]

[Struck out->] (1) by inserting `(a)' before `All persons within'; and [<-Struck out]

[Struck out->] (2) by adding at the end thereof the following new subsections: [<-Struck out]

[Struck out->] `(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 contractual relationship. [<-Struck out]

[Struck out->] `(c) The rights protected by this section are protected against impairment by nongovernmental discrimination as well as against impairment under color of State law.'. [<-Struck out]

[Struck out->] SEC. 13. LAWFUL COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION AND CONCILIATION AGREEMENTS NOT AFFECTED. [<-Struck out]

[Struck out->] Nothing in the amendments made by this Act shall be construed to require or encourage an employer to adopt hiring or promotion quotas on the basis of race, color, religion, sex or national origin: Provided, however, That nothing in the amendments made by this Act shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements that are otherwise in accordance with the law. [<-Struck out]

[Struck out->] SEC. 14. SEVERABILITY. [<-Struck out]

[Struck out->] 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. [<-Struck out]

[Struck out->] SEC. 15. APPLICATION OF AMENDMENTS AND TRANSITION RULES. [<-Struck out]

[Struck out->] (a) APPLICATION OF AMENDMENTS- The amendments made by-- [<-Struck out]

[Struck out->] (1) section 4 shall apply to all proceedings pending on or commenced after June 5, 1989; [<-Struck out]

[Struck out->] (2) section 5 shall apply to all proceedings pending on or commenced after May 1, 1989; [<-Struck out]

[Struck out->] (3) section 6 shall apply to all proceedings pending on or commenced after June 12, 1989; [<-Struck out]

[Struck out->] (4) sections 7(a)(1), 7(a)(3) and 7(a)(4), 7(b), 8, 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enactment of this Act; [<-Struck out]

[Struck out->] (5) section 7(a)(2) shall apply to all proceedings pending on or commenced after June 12, 1989; and [<-Struck out]

[Struck out->] (6) section 12 shall apply to all proceedings pending on or commenced after June 15, 1989. [<-Struck out]

[Struck out->] (b) TRANSITION RULES- [<-Struck out]

[Struck out->] (1) IN GENERAL- Any orders entered by a court between the effective dates described in subsection (a) and the date of enactment of this Act that are inconsistent with the amendments made by sections 4, 5, 7(a)(2), or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made. [<-Struck out]

[Struck out->] (2) SECTION 6- Any orders entered between June 12, 1989 and the date of enactment of this Act, that permit a challenge to an employment practice that implements a litigated or consent judgment or order and that is inconsistent with the amendment made by section 6, shall be vacated if, not later than 6 months after the date of enactment of this Act, a request for such relief is made. For the 1-year period beginning on the date of enactment of this Act, an individual whose challenge to an employment practice that implements a litigated or consent judgment or order is denied under the amendment made by section 6, or whose order or relief obtained under such challenge is vacated under such section, shall have the same right of intervention in the case in which the challenged litigated or consent judgment or order was entered as that individual had on June 12, 1989. [<-Struck out]

[Struck out->] (c) PERIOD OF LIMITATIONS- The period of limitations for the filing of a claim or charge shall be tolled from the applicable effective date described in subsection (a) until the date of enactment of this Act, on a showing that the claim or charge was not filed because of a rule or decision altered by the amendments made by sections 4, 5, 7(a)(2), or 12. [<-Struck out]

[Struck out->] SEC. 16. CONGRESSIONAL COVERAGE. [<-Struck out]

[Struck out->] Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) is amended by adding at the end thereof the following new section: [<-Struck out]

[Struck out->] `SEC. 719. CONGRESSIONAL COVERAGE. [<-Struck out]

[Struck out->] `Notwithstanding any other provision of this title, the provisions of this title shall apply to the Congress of the United States, and the means for enforcing this title as such applies to each House of Congress shall be as determined by such House of Congress.'. [<-Struck out]

[Struck out->] SEC. 17. STATUTE OF LIMITATIONS; NOTICE OF RIGHT TO SUE. [<-Struck out]

[Struck out->] (a) STATUTE OF LIMITATIONS- Section 7(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(d)) is amended-- [<-Struck out]

[Struck out->] (1) in paragraph (1)-- [<-Struck out]

[Struck out->] (A) by striking out `180 days' and inserting in lieu thereof `2 years'; and [<-Struck out]

[Struck out->] (B) by inserting `or has been applied to affect adversely the person aggrieved, whichever is later' after `occurred'; and [<-Struck out]

[Struck out->] (2) in paragraph (2), by striking out `within 300 days' and all that follows through `whichever is earlier' and inserting in lieu thereof `a copy of such charge shall be filed by the Commission with the State agency'. [<-Struck out]

[Struck out->] (b) NOTICE OF RIGHT TO SUE- Section 7(e) of such Act (29 U.S.C. 626(e)) is amended-- [<-Struck out]

[Struck out->] (1) by striking out paragraph (2); [<-Struck out]

[Struck out->] (2) by striking out the paragraph designation in paragraph (1); [<-Struck out]

[Struck out->] (3) by striking out `Sections 6 and' and inserting `Section'; and [<-Struck out]

[Struck out->] (4) by adding at the end thereof the following: `If a charge filed with the Commission is dismissed by the Commission, the Commission shall so notify the person aggrieved and within 90 days after the giving of such notice a civil action may be brought against the respondent named in the charge by a person defined in section 11 (29 U.S.C. 630).'. [<-Struck out]

[Struck out->] SEC. 18. ALTERNATIVE MEANS OF DISPUTE RESOLUTION. [<-Struck out]

[Struck out->] 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. [<-Struck out]

SECTION 1. SHORT TITLE.

This Act may be cited as the `Civil Rights and Women's Equity in Employment Act of 1991'.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- Congress finds that--

(1) in a series of recent decisions addressing employment discrimination claims under Federal law, the Supreme Court cut back dramatically on the scope and effectiveness of civil rights protections; and

(2) existing protections and remedies under Federal law are not adequate to deter unlawful discrimination or to compensate victims of such discrimination.

(b) PURPOSES- The purposes of this Act are to--

(1) respond to the Supreme Court's recent decisions by restoring the civil rights protections that were dramatically limited by those decisions; and

(2) strengthen existing protections and remedies available under Federal civil rights laws to provide more effective deterrence and adequate compensation for victims of discrimination.

TITLE I

SEC. 101. GLASS CEILING COMMISSION.

(a) FINDINGS AND PURPOSE-

(1) FINDINGS- Congress finds that--

(A) despite a dramatically growing presence in the workplace, women and minorities remain underrepresented in executive, management and senior decisionmaking positions in business;

(B) artificial barriers exist to the advancement of women and minorities in employment;

(C) enforcement of Federal equal employment opportunity laws by Federal agencies has not effectively addressed such underrepresentation or eliminated such artificial barriers;

(D) the `Glass Ceiling Initiative' recently undertaken by the Department of Labor has been instrumental in raising public awareness of--

(i) the underrepresentation of women and minorities at the executive, management and senior decisionmaking levels in the United States work force; and

(ii) the desirability of eliminating artificial barriers to the advancement of women and minorities to such levels;

(E) the establishment of a commission to examine issues raised by the Glass Ceiling Initiative would help--

(i) focus greater attention on the importance of eliminating artificial barriers to the advancement of women and minorities to executive, management and senior decisionmaking positions in business; and

(ii) promote work force diversity; and

(F) a comprehensive study that includes analysis of the manner in which executive, management and senior decisionmaking positions are filled, the developmental and skill-enhancing practices used to foster the necessary qualifications for advancement, and the compensation programs and reward structures utilized in the corporate sector would assist in the establishment of practices and policies promoting opportunities for, and eliminating artificial barriers to, the advancement of women and minorities to executive, management and senior decisionmaking positions.

(2) PURPOSE- The purpose of this section is to establish a Glass Ceiling Commission to study--

(A) the manner in which business fills executive, management and senior decisionmaking positions;

(B) the developmental and skill-enhancing practices used to foster the necessary qualifications for advancement into such positions; and

(C) the compensation programs and reward structures currently utilized in the workplace.

(b) ESTABLISHMENT- There is established a Glass Ceiling Commission (referred to in this section as the `Commission'), to conduct a study and prepare recommendations concerning--

(1) eliminating artificial barriers to the advancement of women and minorities in employment; and

(2) increasing the opportunities and developmental experiences of women and minorities to foster advancement of women and minorities to executive, management and senior decisionmaking positions in business.

(c) MEMBERSHIP-

(1) COMPOSITION- The Commission shall be composed of 19 members--

(A) 3 individuals appointed by the President;

(B) 4 individuals appointed jointly by the Speaker of the House of Representatives and the majority leader of the Senate;

(C) 2 individuals appointed by the majority leader of the House of Representatives;

(D) 1 individual appointed by the minority leader of the House of Representatives;

(E) 2 individuals appointed by the majority leader of the Senate;

(F) 1 individual appointed by the minority leader of the Senate;

(G) 2 Members of the House of Representatives appointed jointly by the majority leader and the minority leader of the House of Representatives;

(H) 2 Members of the Senate appointed jointly by the majority leader and the minority leader of the Senate;

(I) the Secretary of Labor; and

(J) the Chairman of the Equal Employment Opportunity Commission.

(2) CONSIDERATIONS- In making appointments under subparagraphs (A) and (B) of paragraph (1), the appointing authority shall consider the background of the individuals, including whether the individuals--

(A) are members of organizations representing women and minorities, and other related interest groups;

(B) hold executive, management or senior decisionmaking positions in corporations or other business entities; and

(C) possess academic expertise or other recognized ability regarding employment and discrimination issues.

(d) CO-CHAIRPERSONS- The Secretary of Labor, and one individual appointed under subsection (c)(1)(B) who is designated jointly by the appointing authority, shall serve as the Co-chairpersons of the Commission.

(e) TERM OF OFFICE- Members and Co-chairpersons shall be appointed for the life of the Commission.

(f) VACANCIES- Any vacancy occurring in the membership of the Commission shall be filled in the same manner as the original appointment for the position being vacated. The vacancy shall not affect the power of the remaining members to execute the duties of the Commission.

(g) MEETINGS-

(1) MEETINGS PRIOR TO COMPLETION OF REPORT- The Commission shall meet not fewer than five times in connection with and pending the completion of the report described in subsection (j)(2). The Commission shall hold additional meetings if the Co-chairpersons or a majority of the members of the Commission request the additional meetings in writing.

(2) MEETINGS AFTER COMPLETION OF REPORT- The Commission shall meet once each year after the completion of the report described in subsection (j)(2). The Commission shall hold additional meetings if the Co-chairpersons or a majority of the members of the Commission request the additional meetings in writing.

(h) QUORUM- A majority of the Commission shall constitute a quorum for the transaction of business.

(i) COMPENSATION AND EXPENSES-

(1) COMPENSATION- Each member of the Commission who is not an employee of the Federal Government shall receive compensation at the daily equivalent of the rate specified for GS-18 of the General Schedule under section 5332 of title 5, United States Code, for each day the member is engaged in the performance of duties for the Commission, including attendance at meetings and conferences of the Commission and travel.

(2) TRAVEL EXPENSES- Each member of the Commission shall receive travel expenses, including per diem in lieu of subsistence, as authorized by sections 5702 and 5703 of title 5, United States Code.

(3) EMPLOYMENT STATUS- A member of the Commission, who is not otherwise an employee of the Federal Government, shall not be deemed to be an employee of the Federal Government except for the purposes of--

(A) the tort claims provisions of chapter 171 of title 28, United States Code, and

(B) subchapter I of chapter 81 of title 5, United States Code, relating to compensation for work injuries.

(j) STUDIES OF ADVANCEMENT OF WOMEN AND MINORITIES TO EXECUTIVE, MANAGEMENT AND SENIOR DECISIONMAKING POSITIONS IN BUSINESS-

(1) STUDY- The Commission shall conduct a study of opportunities for, and artificial barriers to, the advancement of women and minorities to executive, management and senior decisionmaking positions in business. In conducting the study, the Commission shall--

(A) examine the preparedness of women and minorities to advance to executive, management and senior decisionmaking positions in business;

(B) examine the opportunities for women and minorities to advance to executive, management and senior decisionmaking positions in business;

(C) conduct basic research into the practices, policies, and manner in which executive, management and senior decisionmaking positions in business are filled;

(D) conduct comparative research of businesses and industries in which women and minorities are promoted to executive, management and senior decisionmaking positions, and businesses and industries in which women and minorities are not promoted to executive, management and senior decisionmaking positions;

(E) evaluate the efficacy of enforcement (including, but not limited to, such enforcement techniques as litigation, complaint investigations, compliance reviews, conciliation, administrative regulations, policy guidance, technical assistance, training, and public education) of Federal equal employment opportunity laws by Federal agencies as a means of eliminating artificial barriers to the advancement of women and minorities in employment;

(F) compile a synthesis of available research on programs and practices that have successfully led to the advancement of women and minorities to executive, management and senior decisionmaking positions in business, including training programs, rotational assignments, developmental programs, reward programs, employee benefit structures, and family leave policies; and

(G) examine any other issues and information relating to the advancement of women and minorities to executive, management and senior decisionmaking positions in business.

(2) REPORT- Not later than 15 months after the date of the enactment of this Act, the Commission shall prepare and submit to the President and the appropriate committees of Congress a written report containing--

(A) the findings and conclusions of the Commission resulting from the study conducted under paragraph (1); and

(B) recommendations based on the findings and conclusions described in subparagraph (A) relating to the promotion of opportunities for, and elimination of artificial barriers to, the advancement of women and minorities to executive, management and senior decisionmaking positions in business, including recommendations for--

(i) policies and practices to fill vacancies at the executive, management and senior decisionmaking levels;

(ii) developmental practices and procedures to ensure that women and minorities have access to opportunities to gain the exposure, skills, and expertise necessary to assume executive, management and senior decisionmaking positions;

(iii) compensation programs and reward structures utilized to reward and retain key employees; and

(iv) strategies for enforcement of Federal equal employment opportunity laws by Federal agencies as a means of eliminating artificial barriers to the advancement of women and minorities in employment.

(3) ADDITIONAL STUDY- The Commission may conduct such additional study of the advancement of women and minorities to executive, management and senior decisionmaking positions in business as a majority of the members of the Commission determines to be necessary.

(k) POWERS OF THE COMMISSION- The Commission is authorized to--

(1) hold such hearings and sit and act at such times;

(2) take such testimony;

(3) have such printing and binding done;

(4) enter into such contracts and other arrangements in any fiscal year only to such extent or in such amounts as are provided in appropriations Acts;

(5) make such expenditures; and

(6) take such other actions;

as the Commission may determine to be necessary to carry out the duties of the Commission.

(l) OATHS- Any member of the Commission may administer oaths or affirmations to witnesses appearing before the Commission.

(m) OBTAINING INFORMATION FROM FEDERAL AGENCIES- The Commission may secure directly from any Federal agency such information as the Commission may require to carry out its duties.

(n) VOLUNTARY SERVICE- Notwithstanding section 1342 of title 31, United States Code, the Co-chairpersons of the Commission may accept for the Commission voluntary services provided by a member of the Commission.

(o) GIFTS AND DONATIONS- The Commission may accept, use, and dispose of gifts or donations of property in order to carry out the duties of the Commission.

(p) USE OF MAIL- The Commission may use the United States mails in the same manner and under the same conditions as Federal agencies.

(q) Confidentiality of Information-

(1) INDIVIDUAL BUSINESS INFORMATION- Except as provided in paragraph (2), and notwithstanding section 552 of title 5, United States Code, in carrying out the duties of the Commission, including the duties described in subsection (j), the Commission shall maintain the confidentiality of all information that concerns--

(A) the employment practices and procedures of individual businesses; or

(B) individual employees of the businesses.

(2) CONSENT- The content of any information described in paragraph (1) may be disclosed with the prior written consent of the business or employee, as the case may be, with respect to which the information is maintained.

(3) AGGREGATE INFORMATION- In carrying out the duties of the Commission, the Commission may disclose--

(A) information about the aggregate employment practices or procedures of a class or group of businesses; and

(B) information about the aggregate characteristics of employees of the businesses, and related aggregate information about the employees.

(r) STAFF AND CONSULTANTS-

(1) STAFF-

(A) APPOINTMENT AND COMPENSATION- The Commission may appoint and determine the compensation of such staff as the Commission determines to be necessary to carry out the duties of the Commission.

(B) LIMITATIONS- The rate of compensation for each staff member shall not exceed the daily equivalent of the rate specified for GS-18 of the General Schedule under section 5332 of title 5, United States Code for each day the staff member is engaged in the performance of duties for the Commission. The Commission may otherwise appoint and determine the compensation of staff without regard to the provisions of title 5, United States Code, that govern appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, that relate to classification and General Schedule pay rates.

(s) EXPERTS AND CONSULTANTS- The Co-chairpersons of the Commission may obtain such temporary and intermittent services of experts and consultants and compensate the experts and consultants in accordance with section 3109(b) of title 5, United States Code, as the Commission determines to be necessary to carry out the duties of the Commission.

(t) DETAIL OF FEDERAL EMPLOYEES- On the request of the Co-chairpersons of the Commission, the head of any Federal agency shall detail, without reimbursement, any of the personnel of the agency to the Commission to assist the Commission in carrying out its duties. Any detail shall not interrupt or otherwise affect the civil service status or privileges of the Federal employee.

(u) TECHNICAL ASSISTANCE- On the request of the Co-chairpersons of the Commission, the head of a Federal agency shall provide such technical assistance to the Commission as the Commission determines to be necessary to carry out its duties.

(v) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Commission such sums as may be necessary to carry out this section. Such sums shall remain available until expended, without fiscal year limitation.

(w) TERMINATION- Notwithstanding section 15 of the Federal Advisory Committee Act (5 U.S.C. App.), the Commission shall terminate 4 years after the date of the enactment of this Act.

SEC. 102. PAY EQUITY TECHNICAL ASSISTANCE.

(a) STATEMENT OF PURPOSE- Recognizing that the identification and elimination of discriminatory wage-setting practices and discriminatory wage disparities is in the public interest, the purpose of this section is to help eliminate such practices and disparities by--

(1) providing for the development and utilization of techniques that will promote the establishment of wage rates based on the work performed and other appropriate factors, rather than the sex, race, national origin, or ethnicity of the employee; and

(2) providing for the public dissemination of information relating to the techniques described in paragraph (1), thereby encouraging and stimulating public and private employers, through the use of such techniques, to correct wage-setting practices and eliminate wage disparities, to the extent that they are based on the sex, race, national origin, or ethnicity of the employee, rather than the work performed and other appropriate factors.

(b) PROGRAM SPECIFICATIONS- In order to carry out the purpose of this section, the Secretary of Labor shall develop and carry out a continuing program relating to pay equity. Such program shall include--

(1) the dissemination of information on efforts being made in the private and public sectors to reduce or eliminate wage disparities, to the extent that they are based on the sex, race, national origin, or ethnicity of the employee, rather than the work performed and other appropriate factors;

(2) the undertaking and promotion of research into the development of techniques to reduce or eliminate wage disparities, to the extent that they are based on the sex, race, national origin, or ethnicity of the employee, rather than the work performed and other appropriate factors; and

(3) the provision of appropriate technical assistance to any public or private entity requesting such assistance to correct wage-setting practices or to eliminate wage disparities, to the extent that they are based on the sex, race, national origin, or ethnicity of the employee, rather than the work performed and other appropriate factors.

(c) DEFINITION- For the purpose of this section, the term `other appropriate factors' includes factors such as--

(1) the skill, effort, responsibilities, and qualification requirements for the work involved, taken in their totality;

(2) geographic location and working conditions; and

(3) seniority, merit, productivity, education, and work experience.

SEC. 103. SUBMISSION OF EEOC SUMMARY AND ANALYSIS OF EQUAL EMPLOYMENT OPPORTUNITY DATA.

Section 705(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4(e)) is amended by inserting after the first sentence the following: `The Commission shall include in each such report a summary and analysis of data submitted by employers concerning employment opportunities by sex, race, national origin, or ethnicity occurring among and within industries and occupational groups.'.

SEC. 104. EDUCATION AND OUTREACH.

Section 705(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4(h)) is amended--

(1) by inserting `(1)' after `(h)'; and

(2) by adding at the end the following:

`(2) In exercising its powers under this title, the Commission may make grants to State or local governmental entities or public or nonprofit private organizations to carry out educational and outreach activities (including dissemination of information in languages other than English) designed to inform the public (especially individuals who historically have been victims of employment discrimination) concerning rights and obligations under this title.'.

SEC. 105. ANNUAL REPORT BY OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS.

Section 718 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-17) is amended--

(1) by inserting `Programs' after `Compliance'; and

(2) by adding at the end the following:

`At the close of each fiscal year, the Office of Federal Contract Compliance Programs shall submit to the Congress and to the President a report that includes--

`(1) a summary and analysis of affirmative action reports submitted to such Office by employers who enter into Government contracts; and

`(2) an analysis of employment opportunities and wage differentials by sex, race, national origin, or ethnicity occurring among and within industries, occupations, job groups, and job titles.'.

TITLE II

SEC. 201. 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) The term `group of employment practices' means a combination of employment practices that produces one or more decisions with respect to employment, employment referral, or admission to a labor organization, apprenticeship or other training or retraining program.

`(o)(1) The term `required by business necessity' means--

`(A) in the case of employment practices involving selection (such as hiring, assignment, transfer, promotion, training, apprenticeship, referral, retention, or membership in a labor organization), the practice or group of practices must bear a significant relationship to successful performance of the job; or

`(B) in the case of employment practices that do not involve selection, the practice or group of practices must bear a significant relationship to a significant business objective of the employer.

`(2) In deciding whether the standards in paragraph (1) for business necessity have been met, unsubstantiated opinion and hearsay are not sufficient; demonstrable evidence is required. The defendant may offer as evidence statistical reports, validation studies, expert testimony, 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.

`(3) This subsection is meant to codify the meaning of `business necessity' as used in Griggs v. Duke Power Co. (401 U.S. 424 (1971)) and to overrule the treatment of business necessity as a defense in Wards Cove Packing Co., Inc. v. Atonio (109 S. Ct. 2115 (1989)).

`(p) 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. 202. RESTORING THE BURDEN OF PROOF IN 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 is established under this section when--

`(A) a complaining party demonstrates that an employment practice results in 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; or

`(B) a complaining party demonstrates that a group of employment practices results in a disparate impact on the basis of race, color, religion, sex, or national origin, and the respondent fails to demonstrate that such group of employment practices is required by business necessity, except that--

`(i) except as provided in clause (iii), if a complaining party demonstrates that a group of employment practices results in a disparate impact, such party shall not be required to demonstrate which specific practice or practices within the group results in such disparate impact;

`(ii) if the respondent demonstrates that a specific employment practice within such group of employment practices does not contribute to the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity; and

`(iii) if the court finds that the complaining party can identify, from records or other information of the respondent reasonably available (through discovery or otherwise), which specific practice or practices contributed to the disparate impact--

`(I) the complaining party shall be required to demonstrate which specific practice or practices contributed to the disparate impact; and

`(II) the respondent shall be required to demonstrate business necessity only as to the specific practice or practices demonstrated by the complaining party to have contributed to the disparate impact;

except that an employment practice or group of employment practices demonstrated to be required by business necessity shall be unlawful where a complaining party demonstrates that a different employment practice or group of employment practices with less disparate impact would serve the respondent as well.

`(2) A demonstration that an employment practice is required by business necessity may be used as a defense only against a claim under this subsection.

`(3) 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 or possession of a drug taken under the supervision of a licensed health care professional, or any other use or 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.

`(4) The mere existence of a statistical imbalance in an employer's workforce on account of race, color, religion, sex, or national origin is not alone sufficient to establish a prima facie case of disparate impact violation.'.

SEC. 203. 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 202) is further amended by adding at the end thereof the following new subsection:

`(l) DISCRIMINATORY PRACTICE NEED NOT BE SOLE CONTRIBUTING 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 contributing factor for any employment practice, even though other factors also contributed to 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. In any case in which a violation is established under section 703(l), damages may be awarded only for injury that is attributable to the unlawful employment practice'.

SEC. 204. 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 202 and 203) 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 that implements and is within the scope of a litigated or consent judgment or order resolving a claim of employment discrimination under the United States Constitution or Federal civil rights laws may not be challenged in a claim under the United States Constitution or Federal civil rights laws--

`(A) by a person who, prior to the entry of such judgment or order, had--

`(i) actual notice from any source of the proposed judgment or order sufficient to apprise such person that such judgment or order might affect the interests of such person and that an opportunity was available to present objections to such judgment or order; and

`(ii) a reasonable opportunity to present objections to such judgment or order;

`(B) by a person with respect to whom the requirements of subparagraph (A) are not satisfied, if the court determines that the interests of such person were adequately represented by another person who challenged such judgment or order prior to or after the entry of such judgment or order; or

`(C) if the court that entered the judgment or order determines that reasonable efforts were made to provide notice to interested persons.

A determination under subparagraph (C) shall be made prior to the entry of the judgment or order, except that if the judgment or order was entered prior to the date of the enactment of this subsection, the determination may be made at any reasonable time.

`(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 or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which they intervened;

`(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.

`(3) Any action, not precluded under this subsection, that challenges an employment practice that implements and is within the scope of a litigated or consent judgment or order of the type referred to in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28, United States Code.'.

SEC. 205. STATUTE OF LIMITATIONS; APPLICATION TO CHALLENGES TO SENIORITY SYSTEMS.

(a) STATUTE OF LIMITATIONS- Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e)) is amended--

(1) by striking out `one hundred and eighty days' and inserting in lieu thereof `2 years';

(2) by inserting after `occurred' the first time it appears `or has been applied to affect adversely the person aggrieved, whichever is later,';

(3) by striking out `, except that in' and inserting in lieu thereof `. In'; and

(4) by striking out `such charge shall be filed' and all that follows through `whichever is earlier, and'.

(b) APPLICATION TO CHALLENGES TO SENIORITY SYSTEMS- Section 703(h) of such Act (42 U.S.C. 2000e-2) is amended by inserting after the first sentence the following new sentence: `Where a seniority system or seniority practice is part of a collective bargaining agreement and such system or practice was included in such agreement with the intent to discriminate on the basis of race, color, religion, sex, or national origin, the application of such system or practice during the period that such collective bargaining agreement is in effect shall be an unlawful employment practice.'.

SEC. 206. PROVIDING FOR DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION.

Section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g)) is amended by inserting before the last sentence the following new sentences: `With respect to an unlawful employment practice (other than an unlawful employment practice established in accordance with section 703(k)) or in the case of an unlawful employment practice under the Americans with Disabilities Act of 1990 (other than an unlawful employment practice established in accordance with paragraph (3)(A) or paragraph (6) of section 102 of that Act) as it relates to standards and criteria that tend to screen out individuals with disabilities)--

`(A) compensatory damages may be awarded; and

`(B) if the respondent (other than a government, government agency, or a political subdivision) engaged in the unlawful employment practice with malice, or with reckless or callous indifference to the federally protected rights of others, punitive damages may be awarded against such respondent;

in addition to the relief authorized by the preceding sentences of this subsection, except that compensatory damages shall not include backpay or any interest thereon. Compensatory and punitive damages and jury trials shall be available only for claims of intentional discrimination. If compensatory or punitive damages are sought with respect to a claim of intentional discrimination arising under this title, any party may demand a trial by jury.'.

SEC. 207. CLARIFYING ATTORNEYS' FEES PROVISION.

Section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)) is amended--

(1) by inserting `(1)' after `(k)';

(2) by inserting `(including expert fees and other litigation expenses) and' after `attorney's fee';

(3) by striking out `as part of the'; and

(4) by adding at the end thereof the following:

`(2) No consent order or judgment settling a claim under this title shall be entered, and no stipulation of dismissal of a claim under this title shall be effective, unless the parties or their counsel attest to the court that a waiver of all or substantially all attorneys' fees was not compelled as a condition of the settlement.

`(3) In any action or proceeding in which any judgment or order granting relief under this title is challenged, the court, in its discretion and in order to promote fairness, may allow the prevailing party in the original action (other than the Commission or the United States) to recover from either an unsuccessful party challenging such relief or a party against whom relief was granted in the original action or from more than one such party under an equitable allocation determined by the court, a reasonable attorney's fee (including expert fees and other litigation expenses) and costs reasonably incurred in defending (as a party, intervenor or otherwise) such judgment or order. In determining whether to allow recovery of fees from the party challenging the initial judgment or order, the court should consider not only whether such challenge was unsuccessful, but also whether the award of fees against the challenging party promotes fairness, taking into consideration such factors as the reasonableness of the challenging party's legal and factual position and whether other special circumstances make an award unjust.'.

SEC. 208. PROVIDING FOR INTEREST, AND EXTENDING THE STATUTE OF LIMITATIONS, IN ACTIONS AGAINST THE FEDERAL GOVERNMENT.

Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) 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, except that prejudgment interest may not be awarded on compensatory damages'.

SEC. 209. CONSTRUCTION.

Title XI of the Civil Rights Act of 1964 (42 U.S.C. 2000h et seq.) is amended by adding at the end thereof the following new section:

`SEC. 1107. RULES OF CONSTRUCTION FOR CIVIL RIGHTS LAWS.

`(a) EFFECTUATION OF PURPOSE- All Federal laws protecting the civil rights of persons shall be interpreted consistent with the intent of such laws, and shall be broadly construed to effectuate the purpose of such laws to provide equal opportunity and provide effective remedies.

`(b) NONLIMITATION- Except as expressly provided, no Federal law protecting the civil rights of persons shall be construed to repeal or amend by implication any other Federal law protecting such civil rights.

`(c) INTERPRETATION- In interpreting Federal civil rights laws, including laws protecting against discrimination on the basis of race, color, national origin, sex, religion, age, and disability, courts and administrative agencies shall not rely on the amendments made by the Civil Rights and Women's Equity in Employment Act of 1991 as a basis for limiting the theories of liability, rights, and remedies available under civil rights laws not expressly amended by such Act.'.

SEC. 210. RESTORING PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN THE MAKING AND ENFORCEMENT 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 contractual relationship.

`(c) The rights protected by this section are protected against impairment by nongovernmental discrimination as well as against impairment under color of State law.'.

SEC. 211. LAWFUL COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION AND CONCILIATION AGREEMENTS NOT AFFECTED.

Nothing in the amendments made by this Act shall be construed to require or encourage an employer to adopt hiring or promotion quotas on the basis of race, color, religion, sex or national origin: Provided, however, That nothing in the amendments made by this Act shall be construed to affect otherwise lawful affirmative action, conciliation agreements, or court-ordered remedies.

SEC. 212. 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. 213. APPLICATION OF AMENDMENTS AND TRANSITION RULES.

(a) APPLICATION OF AMENDMENTS- The amendments made by--

(1) section 202 shall apply to all proceedings pending on or commenced after June 5, 1989;

(2) section 203 shall apply to all proceedings pending on or commenced after May 1, 1989;

(3) section 204 shall apply to all proceedings pending on or commenced after June 12, 1989;

(4) sections 205(a)(1), 205(a)(3), 205(a)(4), 205(b), 206, 207, 208, and 209 shall apply to all proceedings pending on or commenced after the date of enactment of this Act;

(5) section 205(a)(2) shall apply to all proceedings pending on or commenced after June 12, 1989; and

(6) section 210 shall apply to all proceedings pending on or commenced after June 15, 1989.

(b) TRANSITION RULES-

(1) IN GENERAL- Any orders entered by a court between the effective dates described in subsection (a) and the date of enactment of this Act that are inconsistent with the amendments made by sections 202, 203, 205(a)(2), or 210, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.

(2) SECTION 204- Any orders entered between June 12, 1989, and the date of enactment of this Act, that permit a challenge to an employment practice that implements a litigated or consent judgment or order and that is inconsistent with the amendment made by section 204, shall be vacated if, not later than 6 months after the date of enactment of this Act, a request for such relief is made. For the 1-year period beginning on the date of enactment of this Act, an individual whose challenge to an employment practice that implements a litigated or consent judgment or order is denied under the amendment made by section 204, or whose order or relief obtained under such challenge is vacated under such section, shall have the same right of intervention in the case in which the challenged litigated or consent judgment or order was entered as that individual had on June 12, 1989.

(c) PERIOD OF LIMITATIONS- The period of limitations for the filing of a claim or charge shall be tolled from the applicable effective date described in subsection (a) until the date of enactment of this Act, on a showing that the claim or charge was not filed because of a rule or decision altered by the amendments made by sections 202, 203, 205(a)(2), or 210.

SEC. 214. CONGRESSIONAL COVERAGE.

Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) is amended by adding at the end thereof the following new section:

`SEC. 719. CONGRESSIONAL COVERAGE.

`Notwithstanding any other provision of this title, the provisions of this title shall apply to the Congress of the United States, and the means for enforcing this title as such applies to each House of Congress shall be as determined by such House of Congress.'.

SEC. 215. STATUTE OF LIMITATIONS; NOTICE OF RIGHT TO SUE.

(a) STATUTE OF LIMITATIONS- Section 7(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(d)) is amended--

(1) in paragraph (1)--

(A) by striking out `180 days' and inserting in lieu thereof `2 years'; and

(B) by inserting `or has been applied to affect adversely the person aggrieved, whichever is later' after `occurred'; and

(2) in paragraph (2), by striking out `within 300 days' and all that follows through `whichever is earlier' and inserting in lieu thereof `a copy of such charge shall be filed by the Commission with the State agency'.

(b) NOTICE OF RIGHT TO SUE- 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 by the Commission, the Commission shall so notify the person aggrieved and within 90 days after the giving of such notice a civil action may be brought against the respondent named in the charge by a person defined in section 11.'.

SEC. 216. 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.

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