The Civil Rights Act of 1991
EDITOR'S NOTE: The text of the Civil Rights Act of 1991 (Pub. L. 102-166), as enacted on November 21, 1991, appears below with the following modifications:
1. The text of the sections of the CRA that amend the laws enforced by EEOC (i.e., Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990) is not printed below. Instead, these amendments are printed elsewhere in this publication.
2. The following portions of the CRA that are not enforced by EEOC are referenced, but not reprinted here:
- Section 117 (coverage of the U.S. House of Representatives and agencies of the Legislative Branch);
- Title II (The Glass Ceiling Act); and
- Portions of Title III (Establishing the Office of Senate Fair Employment Practices).
3. Title V, which amends the Civil War Sites Study Act of 1990 (Pub. L. 101-628) is not reprinted here.
4. Cross references to the U.S. Code, where applicable, appear in italics following each section heading. Editor's notes also appear in italics.
An Act
To amend the Civil Rights Act of 1964 to strengthen and improve Federal
civil rights laws, to provide for damages in cases of intentional
employment discrimination, to clarify provisions regarding disparate
impact actions, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, This Act may be cited as the
"Civil Rights Act of 1991".
* * *
FINDINGS
SEC. 2 [42 U.S.C. 1981 note]
The Congress finds that-
(1) additional remedies under Federal law are needed to deter
unlawful harassment and intentional discrimination in the workplace;
(2) the decision of the Supreme Court in Wards Cove Packing Co. v.
Atonio, 490 U.S. 642 (1989) has weakened the scope and effectiveness of
Federal civil rights protections; and
(3) legislation is necessary to provide additional protections
against unlawful discrimination in employment.
PURPOSES
SEC. 3 [42 U.S.C. 1981 note]
The purposes of this Act are-
(1) to provide appropriate remedies for intentional discrimination
and unlawful harassment in the workplace;
(2) to codify the concepts of "business necessity" and
"job related" enunciated by the Supreme Court in Griggs v. Duke
Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions
prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989);
(3) to confirm statutory authority and provide statutory guidelines
for the adjudication of disparate impact suits under title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and
(4) to respond to recent decisions of the Supreme Court by
expanding the scope of relevant civil rights statutes in order to provide
adequate protection to victims of discrimination.
PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN THE MAKING
AND ENFORCEMENT OF CONTRACTS
SEC. 101
Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended-
(1) by inserting "(a)" before "All persons
within"; and
(2) by adding at the end the following new subsections:
"(b) For purposes of this section, the term 'make and enforce
contracts' includes 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 and impairment under
color of State law."
DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION
SEC. 102
The Revised Statutes are amended by inserting after section 1977 (42
U.S.C. 1981) the following new section:
"SEC. 1977A. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION IN
EMPLOYMENT. [42 U.S.C. 1981a]
"(a) Right of Recovery. -
"(1) Civil Rights. - In an action brought by a complaining
party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-5) against a respondent who engaged in unlawful intentional
discrimination (not an employment practice that is unlawful because of its
disparate impact) prohibited under section 703, 704, or 717 of the Act (42
U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party cannot
recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the
complaining party may recover compensatory and punitive damages as allowed
in subsection (b), in addition to any relief authorized by section 706(g)
of the Civil Rights Act of 1964, from the respondent.
"(2) Disability. - In an action brought by a complaining party
under the powers, remedies, and procedures set forth in section 706 or 717
of the Civil Rights Act of 1964 (as provided in section 107(a) of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12117 (a)), and section
505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)),
respectively) against a respondent who engaged in unlawful intentional
discrimination (not an employment practice that is unlawful because of its
disparate impact) under section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791) and the regulations implementing section 501, or who violated
the requirements of section 501 of the Act or the regulations implementing
section 501 concerning the provision of a reasonable accommodation, or
section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C.
12112), or committed a violation of section 102(b)(5) of the Act, against
an individual, the complaining party may recover compensatory and punitive
damages as allowed in subsection (b), in addition to any relief authorized
by section 706(g) of the Civil Rights Act of 1964, from the respondent.
"(3) Reasonable Accommodation and Good Faith Effort. - In
cases where a discriminatory practice involves the provision of a
reasonable accommodation pursuant to section 102(b)(5) of the Americans
with Disabilities Act of 1990 or regulations implementing section 501 of
the Rehabilitation Act of 1973, damages may not be awarded under this
section where the covered entity demonstrates good faith efforts, in
consultation with the person with the disability who has informed the
covered entity that accommodation is needed, to identify and make a
reasonable accommodation that would provide such individual with an
equally effective opportunity and would not cause an undue hardship on the
operation of the business.
"(b) Compensatory and Punitive Damages. -
"(1) Determination of punitive damages. - A complaining party
may recover punitive damages under this section against a respondent
(other than a government, government agency or political subdivision) if
the complaining party demonstrates that the respondent engaged in a
discriminatory practice or discriminatory practices with malice or with
reckless indifference to the federally protected rights of an aggrieved
individual.
"(2) Exclusions from compensatory damages. - Compensatory
damages awarded under this section shall not include backpay, interest on
backpay, or any other type of relief authorized under section 706(g) of
the Civil Rights Act of 1964.
"(3) Limitations. - The sum of the amount of compensatory
damages awarded under this section for future pecuniary losses, emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other nonpecuniary losses, and the amount of punitive damages awarded
under this section, shall not exceed, for each complaining party -
"(A) in the case of a respondent who has more than 14 and
fewer than 101 employees in each of 20 or more calendar weeks in the
current or preceding calendar year, $50,000;
"(B) in the case of a respondent who has more than 100 and
fewer than 201 employees in each of 20 or more calendar weeks in the
current or preceding calendar year, $100,000; and
"(C) in the case of a respondent who has more than 200 and
fewer than 501 employees in each of 20 or more calendar weeks in the
current or preceding calendar year, $200,000; and
"(D) in the case of a respondent who has more than 500
employees in each of 20 or more calendar weeks in the current or preceding
calendar year, $300,000.
"(4) Construction. - Nothing in this section shall be
construed to limit the scope of, or the relief available under, section
1977 of the Revised Statutes (42 U.S.C. 1981).
"(c) Jury Trial. - If a complaining party seeks compensatory or
punitive damages under this section -
"(1) any party may demand a trial by jury; and
"(2) the court shall not inform the jury of the limitations
described in subsection (b)(3).
"(d) Definitions. - As used in this section:
"(1) Complaining party. - The term 'complaining party' means -
"(A) in the case of a person seeking to bring an action under
subsection (a)(1), the Equal Employment Opportunity Commission, the
Attorney General, or a person who may bring an action or proceeding under
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or
"(B) in the case of a person seeking to bring an action under
subsection (a)(2), the Equal Employment Opportunity Commission, the
Attorney General, a person who may bring an action or proceeding under
section 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C.
794a(a)(1)), or a person who may bring an action or proceeding under title
I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.).
"(2) Discriminatory practice. - The term 'discriminatory
practice' means the discrimination described in paragraph (1), or the
discrimination or the violation described in paragraph (2), of subsection
(a).
ATTORNEY'S FEES
[This section amends section 722 of the Revised Statutes (42
U.S.C. 1988) by adding a reference to section 102 of the Civil Rights Act
of 1991 to the list of civil rights actions in which reasonable attorney's
fees may be awarded to the prevailing party, other than the United
States.]
SEC. 103
The last sentence of section 722 of the Revised Statutes (42 U.S.C. 1988)
is amended by inserting ",1977A" after "1977".
DEFINITIONS
SEC. 104
[This section amends section 701 of the Civil Rights Act of 1964 (42
U.S.C. 2000e) by adding the following new subsections: (l)
"complaining party," (m) "demonstrates," and (n)
"respondent".]
BURDEN OF PROOF IN DISPARATE IMPACT CASES
SEC. 105
(a) [This subsection amends section 703 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-2) by adding a new subsection (k), on the burden of proof
in disparate impact cases.]
(b) No statements other than the interpretive memorandum appearing at
Vol. 137 Congressional Record S 15276 (daily ed. Oct. 25, 1991) shall be
considered legislative history of, or relied upon in any way as
legislative history in construing or applying, any provision of this Act
that relates to Wards Cove - Business necessity/ cumulation/alternative
business practice. [42 U.S.C. 1981 note]
PROHIBITION AGAINST DISCRIMINATORY USE OF TEST SCORES
SEC. 106
[This section amends section 703 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-2) by adding a new subsection (l), on the prohibition against
discriminatory use of test scores.]
CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE
CONSIDERATION OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN IN
EMPLOYMENT PRACTICES
SEC. 107
(a) In general. [This subsection amends section 703 of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-2) by adding a new subsection (m), clarifying
the prohibition against consideration of race, color, religion, sex, or
national origin in employment practices.]
(b) Enforcement provisions. [This subsection amends section 706(g)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g)) by renumbering
existing subsection (g), and adding at the end a new subparagraph (B) to
provide a limitation on available relief in "mixed motive" cases
(where the employer demonstrates it would have made the same decision in
the absence of discrimination).]
FACILITATING PROMPT AND ORDERLY RESOLUTION OF CHALLENGES
TO EMPLOYMENT PRACTICES IMPLEMENTING LITIGATED OR CONSENT JUDGMENTS OR
ORDERS
SEC. 108
[This section amends section 703 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-2) by adding a new subsection (n), on the resolution of
challenges to employment practices implementing litigated or consent
judgments or orders.]
PROTECTION OF EXTRATERRITORIAL EMPLOYMENT
SEC. 109
(a) Definition of Employee. [This subsection amends the definition of
"employee" in section 701(f) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(f)) and section 101(4) of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12111(4)) by adding a sentence to the end of each
definition to include U.S. citizens employed abroad within the laws'
protections.]
(b) Exemption. [This subsection amends section 702 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-1) by adding new subsections (b) (on
compliance with the statute if violative of foreign law) and (c) (on the
control of a corporation incorporated in a foreign country). This
subsection similarly amends section 102 of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12112) by relettering the existing subsections and
adding a new subsection (c) "Covered Entities in Foreign
Countries."]
(c) Application of Amendments. - The amendments made by this section
shall not apply with respect to conduct occurring before the date of the
enactment of this Act. [42 U.S.C. 2000e note]
TECHNICAL ASSISTANCE TRAINING INSTITUTE
SEC. 110
(a) Technical Assistance. [This subsection amends section 705 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-4) by adding a new subsection
(j), establishing the Technical Assistance Training Institute.]
(b) Effective Date. - The amendment made by this section shall take
effect on the date of enactment of this Act. [42 U.S.C. 2000e-4 note]
EDUCATION AND OUTREACH
SEC. 111
[This section amends section 705(h) of the Civil Rights Act of 1964 (42
U.S.C. 2000e-4(h)) by renumbering the existing subsection and adding at
the end a paragraph requiring the EEOC to engage in certain educational
and outreach activities.]
EXPANSION OF RIGHT TO CHALLENGE DISCRIMINATORY
SENIORITY SYSTEMS
SEC. 112
[This section amends section 706(e) of the Civil Rights Act of 1964 (42
U.S.C. 2000e-5(e)) by renumbering the subsection and adding at the end a
paragraph to expand the right of claimants to challenge discriminatory
seniority systems.]
AUTHORIZING AWARD OF EXPERT FEES
SEC. 113
(a) Revised Statutes. - Section 722 of the Revised Statutes is amended-
(1) by designating the first and second sentences as subsections
(a) and (b), respectively, and indenting accordingly; and
(2) by adding at the end the following new subsection:
"(c) In awarding an attorney's fee under subsection (b) in any
action or proceeding to enforce a provision of section 1977 or 1977A of
the Revised Statutes, the court, in its discretion, may include expert
fees as part of the attorney's fee." [42 U.S.C. 1988]
(b) Civil Rights Act of 1964. [This section amends section 706(k)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)) to provide for
recovery of expert fees as part of an attorney's fees award.]
PROVIDING FOR INTEREST AND EXTENDING THE STATUTE OF
LIMITATIONS IN ACTIONS AGAINST THE FEDERAL GOVERNMENT
SEC. 114
[This section amends section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16) by extending the time for federal employees or applicants
to file a civil action from 30 to 90 days (from receipt of notice of final
action taken by a department, agency or unit), and allowing federal
employees or applicants the same interest to compensate for delay in
payments as is available in cases involving nonpublic parties.]
NOTICE OF LIMITATIONS PERIOD UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967
SEC. 115
[This section amends section 7(e) of the Age Discrimination in
Employment Act of 1967 (ADEA) (29 U.S.C. 626(e)) by eliminating the two-
and three-year statute of limitations and making ADEA suit- filing
requirements the same as those under Title VII, and requiring the EEOC to
provide notice to charging parties upon termination of the proceedings.]
LAWFUL, COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION, AND
CONCILIATION AGREEMENTS NOT AFFECTED
SEC. 116 [42 U.S.C. 1981 note]
Nothing in the amendments made by this title shall be construed to
affect court-ordered remedies, affirmative action, or conciliation
agreements, that are in accordance with the law.
COVERAGE OF HOUSE OF REPRESENTATIVES AND THE AGENCIES OF THE
LEGISLATIVE BRANCH
SEC. 117
(a) Coverage of the House of Representatives. [This subsection extends
the rights and protections of Title VII of the Civil Rights Act of 1964,
as amended, to employees of the U.S. House of Representatives. Procedures
for processing discrimination complaints are handled internally by the
House, not by the EEOC.] [2 U.S.C. 60l]
(b) Instrumentalities of Congress. [This subsection extends the
rights and protections of the Civil Rights Act of 1991 and Title VII of
the Civil Rights Act of 1964, as amended, to "Instrumentalities of
Congress," which are defined to include: 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. Each agency is to establish its own
remedies and procedures for enforcement.]
ALTERNATIVE MEANS OF DISPUTE RESOLUTION
SEC. 118 [42 U.S.C. 1981 note]
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 or provisions of Federal law amended by this title.
[This title sets up a "Glass Ceiling Commission" to focus attention on, and complete a study relating to, the existence of artificial barriers to the advancement of women and minorities in the workplace, and to make recommendations for overcoming such barriers. The Commission is to be composed of 21 members, with the Secretary of Labor serving as the Chairperson of the Commission. This title does not directly impose any responsibilities or obligations on the EEOC except to provide information and technical assistance as requested by the new Commission.] [42 U.S.C. 2000e note]
GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991
SEC. 301 [2 U.S.C. 1201]
(a) Short title. - This title may be cited as the "Government
Employee Rights Act of 1991".
(b) Purpose. - The purpose of this title is to provide procedures to
protect the right of Senate and other government employees, with respect
to their public employment, to be free of discrimination on the basis of
race, color, religion, sex, national origin, age, or disability.
(c) Definitions. - For purposes of this title:
(1) Senate employee. - The term "Senate employee" or
"employee" means -
(A) any employee whose pay is disbursed by the Secretary of the
Senate;
(B) any employee of the Architect of the Capitol who is assigned to
the Senate Restaurants or to the Superintendent of the Senate Office
Buildings;
(C) any applicant for a position that will last 90 days or more and
that is to be occupied by an individual described in subparagraph (A) or
(B); or
(D) any individual who was formerly an employee described in
subparagraph (A) or (B) and whose claim of a violation arises out of the
individual's Senate employment.
(2) Head of employing office. - The term "head of employing
office" means the individual who has final authority to appoint,
hire, discharge, and set the terms, conditions or privileges of the Senate
employment of an employee.
(3) Violation. - The term "violation" means a practice
that violates section 302 of this title.
DISCRIMINATORY PRACTICES PROHIBITED
SEC. 302 [2 U.S.C. 1202]
[Sections 320 and 321 (which protect Presidential appointees and
previously exempt state employees who may file complaints of
discrimination with EEOC under this title) refer to the rights,
protections and remedies of this section and section 307(h).]
All personnel actions affecting employees of the Senate shall be made
free from any discrimination based on -
(1) race, color, religion, sex, or national origin, within the
meaning of section 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16);
(2) age, within the meaning of section 15 of the Age Discrimination
in Employment Act of 1967 (29 U.S.C. 633a); or
(3) handicap or disability, within the meaning of section 501 of
the Rehabilitation Act of 1973 (29 U.S.C. 791) and sections 102-104 of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12112-14).
[SECTIONS 303 THROUGH 306: Section 303 (2 U.S.C. 1203) establishes the
Office of Senate Fair Employment Practices, which will administer the
procedures set forth in sections 304 through 307. Section 304 (2 U.S.C.
1204) outlines the four-step procedure described in Sections 305 through
309 for consideration of alleged violations. Section 305 (2 U.S.C. 1205)
describes the Step I counseling procedures. Section 306 (2 U.S.C. 1206)
describes the Step II mediation process. Section 307 (2 U.S.C. 1207),
described fully below, sets forth the formal complaint and hearing
procedures.]
STEP III: FORMAL COMPLAINT AND HEARING
SEC. 307 [2 U.S.C. 1207]
[SECTION 307, SUBSECTIONS (a) THROUGH (g), AND (i): Subsections (a)
through (g), and (i) of Section 307 describe the process from the formal
complaint through the hearing stage.]
[Sections 320 and 321 (which protect Presidential appointees and
previously exempt state employees who may file complaints of
discrimination with EEOC under this title) refer to the rights,
protections and remedies of section 302 and the following subsection.]
(h) Remedies. - If the hearing board determines that a violation has
occurred, it shall order such remedies as would be appropriate if awarded
under section 706 (g) and (k) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-5 (g) and (k)), and may also order the award of such compensatory
damages as would be appropriate if awarded under section 1977 and section
1977A (a) and (b)(2) of the Revised Statutes (42 U.S.C. 1981 and 1981A (a)
and (b)(2)). In the case of a determination that a violation based on age
has occurred, the hearing board shall order such remedies as would be
appropriate if awarded under section 15(c) of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 633a(c)). Any order requiring the
payment of money must be approved by a Senate resolution reported by the
Committee on Rules and Administration. The hearing board shall have no
authority to award punitive damages.
[SECTIONS 308 THROUGH 313: Section 308 (2 U.S.C. 1208) describes the
procedures by which a Senate employee or head of an employing office may
request a review by the Select Committee on Ethics of a decision issued
under Section 307. Section 309 (2 U.S.C. 1209) describes the
circumstances under which a Senate employee or Member of the Senate may
petition for a review by the United States Court of Appeals for the
Federal Circuit. Section 310 (2 U.S.C. 1210) describes the procedures by
which a complaint may be resolved. Section 311 (2 U.S.C. 1211) enumerates
reimbursable costs of attending hearings. Section 312 (2 U.S.C. 1212)
prohibits intimidation or reprisal against any employee because of the
exercise of a right under this title. Section 313 (2 U.S.C. 1213)
outlines confidentiality requirements for counseling, mediation, hearings,
final decisions, and records.]
EXERCISE OF RULEMAKING POWER
SEC. 314 [2 U.S.C. 1214]
The provisions of this title, except for sections 309, 320, 321, and
322, 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. Notwithstanding any other provision of law,
except as provided in section 309, enforcement and adjudication with
respect to the discriminatory practices prohibited by section 302, and
arising out of Senate employment, shall be within the exclusive
jurisdiction of the United States Senate.
TECHNICAL AND CONFORMING AMENDMENTS
SEC. 315
[This section makes technical and conforming amendments to section 509
of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12209)
with respect to Senate employees.]
[SECTIONS 316 THROUGH 319: Section 316 (2 U.S.C. 1215) states that the
consideration of political affiliation, domicile, and political
compatibility with the employing office in an employment decision shall
not be considered a violation of this title. Section 317 (2 U.S.C. 1216)
states that a Senate employee may not commence a judicial proceeding to
redress a prohibited discriminatory practice, except as provided in this
title. Sec. 318 (2 U.S.C. 1217) expresses the Senate's view that
legislation should be enacted to provide the same or comparable rights and
remedies as are provided under this title to Congressional employees
lacking such rights and remedies. Section 319 (2 U.S.C. 1218) reaffirms
the Senate's commitment to Rule XLII of the Standing Rules of the Senate.]
COVERAGE OF PRESIDENTIAL APPOINTEES.
SEC. 320 [2 U.S.C. 1219]
(a) In General. -
(1) Application. - The rights, protections, and remedies provided
pursuant to section 302 and 307(h) of this title shall apply with respect
to employment of Presidential appointees.
(2) Enforcement by administrative action. - Any Presidential
appointee may file a complaint alleging a violation, not later than 180
days after the occurrence of the alleged violation, with the Equal
Employment Opportunity Commission, or such other entity as is designated
by the President by Executive Order, which, in accordance with the
principles and procedures set forth in sections 554 through 557 of title
5, United States Code, shall determine whether a violation has occurred
and shall set forth its determination in a final order. If the Equal
Employment Opportunity Commission, or such other entity as is designated
by the President pursuant to this section, determines that a violation has
occurred, the final order shall also provide for appropriate relief.
(3) Judicial review. -
(A) In general. - Any party aggrieved by a final order under
paragraph (2) may petition for review by the United States Court of
Appeals for the Federal Circuit.
(B) Law applicable. - Chapter 158 of title 28, United States Code,
shall apply to a review under this section except that the Equal
Employment Opportunity Commission or such other entity as the President
may designate under paragraph (2) shall be an "agency" as that
term is used in chapter 158 of title 28, United States Code.
(C) Standard of review. - To the extent necessary to decision and
when presented, the reviewing court shall decide all relevant questions of
law and interpret constitutional and statutory provisions. The court
shall set aside a final order under paragraph (2) if it is determined that
the order was -
(i) arbitrary, capricious, an abuse of discretion, or otherwise not
consistent with law;
(ii) not made consistent with required procedures; or
(iii) unsupported by substantial evidence.
In making the foregoing determinations, the court shall review the
whole record or those parts of it cited by a party, and due account shall
be taken of the rule of prejudicial error.
(D) Attorney's fees. - If the presidential appointee is the
prevailing party in a proceeding under this section, attorney's fees may
be allowed by the court in accordance with the standards prescribed under
section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
(b) Presidential appointee. - For purposes of this section, the term
"Presidential appointee" means any officer or employee, or an
applicant seeking to become an officer or employee, in any unit of the
Executive Branch, including the Executive Office of the President, whether
appointed by the President or by any other appointing authority in the
Executive Branch, who is not already entitled to bring an action under any
of the statutes referred to in section 302 but does not include any
individual -
(1) whose appointment is made by and with the advice and consent of
the Senate;
(2) who is appointed to an advisory committee, as defined in
section 3(2) of the Federal Advisory Committee Act (5 U.S.C. App.); or
(3) who is a member of the uniformed services.
COVERAGE OF PREVIOUSLY EXEMPT STATE EMPLOYEES
SEC. 321 [2 U.S.C. 1220]
(a) Application. - The rights, protections, and remedies provided
pursuant to section 302 and 307(h) of this title shall apply with respect
to employment of any individual chosen or appointed, by a person elected
to public office in any State or political subdivision of any State by the
qualified voters thereof -
(1) to be a member of the elected official's personal staff;
(2) to serve the elected official on the policymaking level; or
(3) to serve the elected official as an immediate advisor with
respect to the exercise of the constitutional or legal powers of the
office.
(b) Enforcement by administrative action. -
(1) In general. - Any individual referred to in subsection (a) may
file a complaint alleging a violation, not later than 180 days after the
occurrence of the alleged violation, with the Equal Employment Opportunity
Commission, which, in accordance with the principles and procedures set
forth in sections 554 through 557 of title 5, United States Code, shall
determine whether a violation has occurred and shall set forth its
determination in a final order. If the Equal Employment Opportunity
Commission determines that a violation has occurred, the final order shall
also provide for appropriate relief.
(2) Referral to state and local authorities. -
(A) Application. - Section 706(d) of the Civil Rights Act of 1964
(42 U.S.C. 2000e-5(d)) shall apply with respect to any proceeding under
this section.
(B) Definition. - For purposes of the application described in
subparagraph (A), the term "any charge filed by a member of the
Commission alleging an unlawful employment practice" means a
complaint filed under this section.
(c) Judicial review. - Any party aggrieved by a final order under
subsection (b) may obtain a review of such order under chapter 158 of
title 28, United States Code. For the purpose of this review, the Equal
Employment Opportunity Commission shall be an "agency" as that
term is used in chapter 158 of title 28, United States Code.
(d) Standard of review. - To the extent necessary to decision and when
presented, the reviewing court shall decide all relevant questions of law
and interpret constitutional and statutory provisions. The court shall
set aside a final order under subsection (b) if it is determined that the
order was -
(1) arbitrary, capricious, an abuse of discretion, or otherwise not
consistent with law;
(2) not made consistent with required procedures; or
(3) unsupported by substantial evidence.
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be
taken of the rule of prejudicial error.
(e) Attorney's fees. - If the individual referred to in subsection (a) is
the prevailing party in a proceeding under this subsection, attorney's
fees may be allowed by the court in accordance with the standards
prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-5(k)).
SEVERABILITY
SEC. 322 [2 U.S.C. 1221]
Notwithstanding section 401 of this Act, if any provision of section
309 or 320(a)(3) is invalidated, both sections 309 and 320(a)(3) shall
have no force and effect.
PAYMENTS BY THE PRESIDENT OR A MEMBER OF THE SENATE
SEC. 323 [2 U.S.C. 1222]
The President or a Member of the Senate shall reimburse the
appropriate Federal account for any payment made on his or her behalf out
of such account for a violation committed under the provisions of this
title by the President or Member of the Senate not later than 60 days
after the payment is made.
REPORTS OF SENATE COMMITTEES
SEC. 324 [2 U.S.C. 1223]
(a) Each report accompanying a bill or joint resolution of a public
character reported by any committee of the Senate (except the Committee on
Appropriations and the Committee on the Budget) shall contain a listing of
the provisions of the bill or joint resolution that apply to Congress and
an evaluation of the impact of such provisions on Congress.
(b) The provisions of this section 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.
INTERVENTION AND EXPEDITED REVIEW OF CERTAIN APPEALS
SEC. 325 [2 U.S.C. 1224]
(a) Intervention. - Because of the constitutional issues that may be
raised by section 309 and section 320, any Member of the Senate may
intervene as a matter of right in any proceeding under section 309 for the
sole purpose of determining the constitutionality of such section.
(b) Threshold Matter. - In any proceeding under section 309 or section
320, the United States Court of Appeals for the Federal Circuit shall
determine any issue presented concerning the constitutionality of such
section as a threshold matter.
(c) Appeal. -
(1) In general. - An appeal may be taken directly to the Supreme
Court of the United States from any interlocutory or final judgment,
decree, or order issued by the United States Court of Appeals for the
Federal Circuit ruling upon the constitutionality of section 309 or 320.
(2) Jurisdiction. - The Supreme Court shall, if it has not
previously ruled on the question, accept jurisdiction over the appeal
referred to in paragraph (1), advance the appeal on the docket and
expedite the appeal to the greatest extent possible.
SEVERABILITY SEC. 401 [42 U.S.C. 1981 note] 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. EFFECTIVE DATE SEC. 402 [42 U.S.C. 1981 note] (a) In General. - Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment. (b) Certain Disparate Impact Cases. Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983. Approved November 21, 1991.