[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2016 Introduced in House (IH)]
103d CONGRESS
1st Session
H. R. 2016
To amend the Civil Rights Act of 1964 to encourage mediation of charges
filed under title VII of such Act and the Americans with Disabilities
Act of 1990, to amend the Revised Statutes to encourage mediation of
complaints filed under section 1977 of the Revised Statutes, and to
decrease resort to the courts.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 6, 1993
Mr. Gunderson (for himself, Mr. Penny, Mrs. Johnson of Connecticut, Mr.
Pete Geren of Texas, Mr. Boehner, Mr. Emerson, Mr. McCurdy, Mr. Lewis
of Florida, Mr. Clyburn, Mr. Canady, Mr. Fawell, Mr. Valentine, Mr.
Kolbe, Mr. Gingrich, Mr. Baker of Louisiana, Mr. Dornan, Mr. Hastings,
Mr. Filner, Mr. Clinger, Mr. Stenholm, Mr. Romero-Barcelo, Mr. Hancock,
and Ms. Pryce of Ohio) introduced the following bill; which was
referred jointly to the Committees on Education and Labor and the
Judiciary
_______________________________________________________________________
A BILL
To amend the Civil Rights Act of 1964 to encourage mediation of charges
filed under title VII of such Act and the Americans with Disabilities
Act of 1990, to amend the Revised Statutes to encourage mediation of
complaints filed under section 1977 of the Revised Statutes, and to
decrease resort to the courts.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Employment Dispute Resolution Act of
1993''.
SEC. 2. DEFINITION.
Section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e) is
amended by adding at the end the following:
``(o) The term `Service' means the Federal Mediation and
Conciliation Service.''.
SEC. 3. MEDIATION OF ACTIONS UNDER THE CIVIL RIGHTS ACT OF 1964 AND THE
AMERICANS WITH DISABILITIES ACT OF 1990.
Section 706 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) is
amended by adding at the end the following:
``(l)(1) Congress finds that cooperative mediation of charges is a
more time-saving and cost-effective method of resolving disputes than
litigation of civil actions.
``(2)(A)(i) If the Commission, or a State or local authority
described in subsection (c), determines that there is reasonable cause
to believe that the respondent has violated this title and that the
Commission or authority will file a civil action under this section
against the respondent, the Commission or authority shall inform the
respondent that the respondent may, within 14 days, request that the
charge be referred to the Service for mediation. The Commission or
authority shall not file such an action earlier than 14 days after the
date on which the respondent is so informed.
``(ii) If the time for a governmental entity described in clause
(i) to file an action described in clause (i) would otherwise lapse
during the 14-day period described in clause (i), the time for the
governmental entity to file such an action--
``(I) shall be tolled until 14 days after the end of the
period; or
``(II) in a case described in paragraph (9)(B), shall be
tolled as described in such paragraph.
``(B)(i) In lieu of receiving mediation services from the Service,
the Commission, or the State or local authority, and the respondent may
agree in writing to refer the charge to a mediator (other than a
mediator provided by the Service) that has been mutually agreed to by
the parties, for mediation in accordance with regulations promulgated
by the Director of the Service pursuant to this subsection. A copy of
the agreement to mediate shall be served upon the Director of the
Service.
``(ii) Before the commencement of mediation services under this
subparagraph, the mediator shall notify the parties and the Director of
the Service in writing of the per diem costs and any other fees and
expenses the mediator may reasonably be expected to incur in providing
such services. The cost of mediation services shall be shared as
mutually agreed by the parties.
``(C) The Director of the Service, within 14 days of receipt of the
mediation request, shall inform the Commission or the State or local
authority, as appropriate, that mediation has been requested. If the
respondent requests mediation by the Service under subparagraph (A) or
agrees to mediation by a mediator under subparagraph (B), neither the
Commission, or the State or local authority, may file a civil action
under this section against the respondent until the completion of the
mediation.
``(3)(A)(i) If the Commission, or a State or local authority
described in subsection (c), issues a right-to-sue letter to a charging
party, the Commission or authority shall inform the charging party and
the respondent that either the charging party or the respondent, may,
within 14 days, request that the charge be referred to the Service for
mediation. The charging party shall not file a civil action under this
section earlier than 14 days after the date on which the respondent is
so informed.
``(ii) If the time for the charging party, the Commission, or the
State or local authority, as appropriate, to file an action described
in clause (i) would otherwise lapse during the 14-day period described
in clause (i), the time for the charging party, the Commission, or the
State or local authority, as appropriate, to file such an action--
``(I) shall be tolled until 14 days after the end of the
period; or
``(II) in a case described in paragraph (9)(B), shall be
tolled as described in such paragraph.
``(B)(i) In lieu of receiving mediation services from the Service,
the charging party and the respondent may agree in writing to refer the
charge to a mediator (other than a mediator provided by the Service)
that has been mutually agreed to by the parties, for mediation in
accordance with regulations promulgated by the Director of the Service
pursuant to this subsection. A copy of the agreement to mediate shall
be served upon the Director of the Service and the Commission or
authority that issued the right-to-sue letter.
``(ii) Before the commencement of mediation services under this
subparagraph, the mediator shall notify the parties and the Director of
the Service in writing of the per diem costs and any other fees and
expenses the mediator may reasonably be expected to incur in providing
such services. The cost of mediation services shall be shared as
mutually agreed by the parties.
``(C) The Director of the Service, within 14 days of receipt of the
mediation request, shall inform the Commission or the State or local
authority issuing the right-to-sue letter that mediation has been
requested. If the charging party or the respondent requests mediation
by the Service under subparagraph (A), or agrees to mediation by a
mediator under subparagraph (B), neither the charging party, the
Commission, or the State or local authority may file a civil action
under this section against the respondent until the completion of the
mediation.
``(4)(A) After providing an opportunity for public comment, the
Director of the Service shall issue, and may amend or rescind,
regulations to carry out the provisions of this subsection relating to
mediation of charges. The Director of the Service shall issue the
regulations no later than 6 months after the date of enactment of this
subsection.
``(B) Mediation provided by the Service under subparagraph (A), or
by another mediator as described in subparagraph (B), of paragraph (2)
or (3), shall be provided in accordance with the regulations.
``(C) The regulations shall specify the form and manner of, and the
procedures for providing, the mediation services provided under this
subsection.
``(5) It shall be the duty of the mediator to communicate promptly
with the parties and use best efforts, by mediation, to reach an
agreement resolving the charge.
``(6) During mediation, the charging party and the respondent may
be represented by legal counsel or another representative of their
choice.
``(7)(A) If the charge is resolved through mediation, the charge
shall be resolved in a manner that is mutually agreeable to the
parties, including a settlement agreement, dismissal (by the Commission
or the State or local authority), or voluntary withdrawal (by the
charging party). The resolution of the charge shall be recorded in
writing. In no case shall the mediator have the power to dismiss a
charge.
``(B) Once the charging party and respondent have agreed on a
resolution of the charge, the mediator shall so advise the Service, and
shall so advise the Commission or the State or local authority, which
shall dismiss the charge with prejudice as to the charging party or
charging parties participating in the agreement. The Commission, or the
State or local authority, shall take no further action on the charge as
the charge affects the charging party or charging parties.
``(8)(A) The mediation shall be deemed to be completed on the date
that the resolution of the charge is recorded, as provided for in
paragraph (7)(A).
``(B) If a charge that has been referred to mediation has not been
resolved by settlement, withdrawal of charges, or otherwise within 90
days of receipt of the charge by the Service or other mediator, and the
parties do not agree in writing, with the consent of the mediator, to
further extend the mediation process, the mediation shall be deemed to
be completed.
``(9)(A) If mediation has been completed without resolution, as
described in paragraph (8)(B), the Commission, the State or local
authority, or the charging party, as appropriate, may file a civil
action under this section.
``(B) If--
``(i) mediation is initiated under paragraph (2) or (3);
and
``(ii) the time for the Commission, authority, or party to
file an action described in subparagraph (A) would otherwise
lapse--
``(I) not earlier than the first day of the 14-day
period described in paragraph (2)(A) or (3)(A), as
appropriate; and
``(II) not later than the completion of the
mediation,
the time for the Commission, authority, or party, as appropriate, to
file such an action shall be tolled until 14 days after the completion
of the mediation (including any referral under subparagraph (C)).
``(C) The court in which the action is filed shall have the
discretion to refer the charge to the Service or the other mediator
used by the charging party and respondent for an additional 90 days of
mediation pursuant to this subsection.
``(D) Nothing in this subsection shall be construed to limit the
authority of the court to attempt to resolve the case under the
authority of the court or dispute resolution procedures established by
the court.
``(10)(A) The charging party and the Service shall be provided a
copy of any settlement agreement, or other agreement resolving the
charge, between the Commission, or the State or local authority, and
the respondent. Except as provided in paragraph (15), any such
agreement shall be kept confidential by the mediator, the charging
party, other parties to the agreement, and the Service, unless all
parties to the mediation agree otherwise in writing.
``(B) The Service shall be provided a copy of any settlement
agreement, or other agreement resolving the charge, between the
charging party and the respondent. Except as provided in paragraph
(15), any such agreement shall be kept confidential by the mediator,
the charging party, the respondent, and the Service, and shall not be
provided to the Commission, the State or local authority, or any other
person, unless all parties to the mediation agree otherwise in writing.
``(11)(A) Whether or not a charge that has been referred to
mediation is resolved, all communications, oral or written, (including
memoranda, work product, transcripts, notes, or other materials) made
by the Commission, the State or local authority, the charging party,
the respondent, or the mediator in or in connection with the mediation
that relate to the controversy being mediated shall be kept
confidential by the participants in the mediation.
``(B) Such communications shall not be made available by the
mediator, or parties to the mediation, to any person not participating
in the mediation, including the Commission or the State or local
authority in any case in which the Commission or the State or local
authority is not a participant.
``(C) Communications referred to in subparagraph (A) shall not be
disclosed voluntarily, and, pursuant to this subsection, shall not be
subject to disclosure through discovery or compulsory process, and
shall not be used as evidence, in any investigatory, arbitral,
judicial, administrative or other proceedings, unless--
``(i) all parties to the mediation agree, in writing, to
waive the confidentiality of such communications; or
``(ii) the communications involve statements, materials,
and other tangible evidence, that--
``(I) are otherwise not privileged and subject to
discovery; and
``(II) were not prepared specifically for use in
mediation.
``(D) If any demand for disclosure, including a request pursuant to
discovery or other legal process, is made upon the mediator, the
Service, the Commission, or the State or local authority, regarding the
mediation of a charge, the mediator, Service, the Commission, or the
State or local authority, as appropriate, shall immediately make
reasonable efforts to notify all other parties to the mediation of the
demand.
``(E) Any person, including any official of the Commission, the
State or local authority, or the Service, who discloses information in
violation of this subsection shall be fined not more than $5,000.
``(12) Except as provided in paragraph (15)--
``(A) agreements referred to in paragraph (10) and
communications referred to in paragraph (11) are exempted from
disclosure under section 552 of title 5, United States Code, in
accordance with subsection (b)(3) of such section; and
``(B) the Service and the Commission shall have no
discretion to disclose such agreements or communication under
such section.
``(13)(A) Any agreement between the Commission and any such State
or local authority relating to carrying out their respective functions
under this subchapter, including worksharing agreements for the
processing of charges, shall include a provision requiring the State or
local authority to implement the provisions of this subsection for the
mediation of charges by the Service or other provider of mediation
services.
``(B) Any such State or local authority that does not agree to
implement the provisions of this subsection shall not be eligible to
enter into an agreement with the Commission for the processing of
charges under the subsection and also shall be ineligible to receive
any payment or reimbursement pursuant to section 709(b).
``(C) Unless the Commission and the State and local authorities
amend any such agreement to comply with this subsection within 6 months
after the date of enactment of this subsection, the agreement shall be
considered rescinded.
``(14) A party to an agreement made pursuant to mediation under
this subsection may bring any action to enforce the agreement in a
Federal district court of competent jurisdiction as described in
subsection (f)(3).
``(15)(A) The Director of the Service shall establish a database
containing, with respect to each mediation conducted under this
subsection, information indicating--
``(i) whether the respondent involved employs--
``(I) fewer than 50 employees;
``(II) not fewer than 50 employees and fewer than
250 employees;
``(III) not fewer than 250 employees and fewer than
1000 employees; or
``(IV) not fewer than 1000 employees;
``(ii) the type of industry in which the respondent is
employed;
``(iii) whether the charge that is the subject of the
mediation is brought on the basis of--
``(I) race or color;
``(II) sex;
``(III) religion;
``(IV) national origin; or
``(V) disability;
``(iv) whether the charge was resolved by settlement,
withdrawal of charges, or otherwise; and
``(v) whether the charging party--
``(I) recovered any monetary compensation
(including damages, equitable monetary relief, and
interest) as a result of the mediation;
``(II) was reinstated to employment as a result of
the mediation; or
``(III) received any equitable relief, other than
relief described in subclause (I) or (II), as a result
of the mediation.
``(B) The Director of the Service shall make information about
mediations described in subparagraph (A) available to the public
through the database.
``(C) Not later than 1 year after the date of enactment of this
subsection, and every 6 months thereafter, the Director of the Service
shall prepare and submit to the Commission a report containing--
``(i) the information described in subparagraph (A); and
``(ii) crosstabulations of the information described in
each clause of subparagraph (A) against--
``(I) the information described in each other such
clause; and
``(II) crosstabulations of such information.
``(D) In making information available through the database
described in subparagraph (B), and in preparing the reports described
in subparagraph (C), the Director of the Service shall not identify by
name parties participating in mediations described in subparagraph (A).
The database and reports shall present information collected under
subparagraph (A) in the aggregate.
``(16) As used in this subsection:
``(A) The term `charging party' means an individual filing
a charge under subsection (b).
``(B) The term `party' does not include the Service, or a
mediator provided by the Service, or any other person, acting
in the capacity of a mediator.
``(17) There are authorized to be appropriated such sums as may be
necessary to carry out the purposes of this subsection for fiscal year
1994 and each subsequent fiscal year.''.
SEC. 4. MEDIATION OF ACTIONS UNDER SECTION 1977 OF THE REVISED
STATUTES.
The Revised Statutes are amended by inserting after section 1977A
(42 U.S.C. 1981a) the following new section:
``SEC. 1977B. ALTERNATIVE MEDIATION PRIOR TO FILING A CIVIL ACTION.
``(a) Mediation by Service.--
``(1) In general.--No plaintiff shall bring a civil action
to make or enforce any contract relating to employment under
section 1977 (42 U.S.C. 1981) unless the plaintiff has given
the defendant at least 60 days written notice that the
plaintiff intends to file such action and informed the
defendant in the action that either party may request that the
complaint be referred to the Service for mediation.
``(2) Notice period.--If the time for the plaintiff to file
an action described in paragraph (1) would otherwise lapse
during the 60-day period described in paragraph (1), the time
for the plaintiff to file such an action--
``(A) shall be tolled until 14 days after the end
of the period; or
``(B) in a case described in subsection (e), shall
be tolled as described in such subsection.
``(b) Alternative Mediator.--In lieu of receiving mediation
services from the Service, the plaintiff and the defendant may agree in
writing to refer the charge to a mediator (other than a mediator
provided by the Service) as described in section 706(l)(3)(B) of the
Civil Rights Act of 1964.
``(c) Limitations.--If the plaintiff or the defendant requests
mediation by the Service under subsection (a), or if the parties agree
to mediation by a mediator under subsection (b), the plaintiff may not
file a civil action described in subsection (a) against the defendant
until the completion of the mediation.
``(d) Conduct of Mediation.--
``(1) In general.--If either party to the action requests
such mediation, the mediation, and any subsequent civil action
filed relating to the matter, shall be conducted in accordance
with paragraphs (4) through (8), and (10) through (12), of
section 706(l) of the Civil Rights Act of 1964. Information
related to the mediation shall be included in the database
described in section 706(l)(15) of such Act, and made available
in accordance with such section.
``(2) Application.--For purposes of the application of the
provisions described in paragraph (1) to this section--
``(A) references to the charging party and the
respondent shall be deemed to be references to the
plaintiff and the defendant, respectively;
``(B) references to the Commission, or to a State
or local authority, shall not apply; and
``(C) references to a charge shall be deemed to be
references to the complaint referred to in subsection
(a).
``(e) Civil Action.--
``(1) In general.--If mediation has been completed without
resolution, as described in section 706(l)(8)(B) of the Civil
Rights Act of 1964, the plaintiff may file a civil action under
this section.
``(2) Limitations.--If--
``(A) the plaintiff or the defendant requests
mediation by the Service under subsection (a), or the
parties agree to mediation by a mediator under
subsection (b); and
``(B) the time for the plaintiff to file an action
described in paragraph (1) would otherwise lapse--
``(i) not earlier than the first day of the
60-day period described in subsection (a)(1);
and
``(ii) not later than the completion of the
mediation,
the time for the plaintiff to file such an action shall be
tolled until 14 days after the completion of the mediation
(including any referral under paragraph (3)).
``(3) Referral.--The court in which the action is filed
shall have the discretion to refer the complaint to the Service
or the other mediator used by the plaintiff and defendant for
an additional 90 days of mediation pursuant to section 706(l)
of the Civil Rights Act of 1964.
``(4) Nothing in this section shall be construed to limit
the authority of the court to attempt to resolve the case under
the authority of the court or dispute resolution procedures
established by the court.
``(f) Action To Enforce Agreement.--A party to an agreement made
pursuant to mediation under this section may bring any action to
enforce the agreement in any Federal district court of competent
jurisdiction in which an action under section 1977 may be brought.
``(g) Definition.--For purposes of this section, and the
application of the provisions described in subsection (d)(1) to this
section, the term `Service' means the Federal Mediation and
Conciliation Service.''.
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act shall apply only to charges and
complaints filed more than 6 months after the date of enactment of this
Act.
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