To amend the Civil Rights Act of 1964 to restore and
strengthen civil rights laws that ban discrimination in
employment, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
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. Faleomaveaga, 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
A BILL
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,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Civil Rights 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.
SEC.3. DEFINITIONS
Section 701 of the Civil Rights Act of 1964 (42 U.S.C.
2000e) is amended by adding at the end thereof the following new
subsections:
"(1) 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. 4. 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 the 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. 5. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE
CONSIDERATION OF RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN IN
EMPLOYMENT PRACTICES.
(a) IN GENERAL.--Section 703 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-2) (as amended by section 4) is further amended
by adding at the end thereof the following new subsection:
"(1) 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(1), 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(1), damages may be awarded only
for injury that is attributable to the unlawful employment
practice."
SEC. 6. FACILITATING PROMPT AND ORDERLY RESOLUTION OF CHALLENGES
TO EMPLOYMENT PRACTICES IMPLEMENTING LITIGATED OR CONSENT
JUDGMENTS OR ORDERS.
Section 703 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-2) (as amended by sections 4 and 5) is further amended by
adding at the end thereof the following new subsection:
"(m) FINALITY OF LITIGATED OR CONSENT JUDGMENTS OR ORDERS.--
(1) Notwithstanding any other provision of law, and except as
provided in paragraph (2), an employment practice 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
[sic] 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. 7. 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. 8. 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. 9. CLARIFYING ATTORNEY'S FEES PROVISION.
Section 706(k) of the Civil Rights Acts 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 attorney's 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. 10. 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. 11. 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 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."
SEC. 12. 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. 13. 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 court-
ordered remedies, affirmative action, or conciliation agreements
that are otherwise in accordance with the law.
SEC. 14. 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. 15. APPLICATION OF AMENDMENTS AND TRANSITION RULES.
(a) APPLICATION OF AMENDMENTS.--The amendments made by--
(1) section 4 shall apply to all proceedings pending on
or commenced after June 5, 1989;
(2) section 5 shall apply to all proceedings pending on
or commenced after May 1, 1989;
(3) section 6 shall apply to all proceedings pending on
or commenced after June 12, 1989;
(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;
(5) section 7(a)(2) shall apply to all proceedings
pending on or commenced after June 12, 1989; and
(6) section 12 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 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.
(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.
(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.
SEC. 16. 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. 17. 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 such Act (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 (29 U.S.C. 630).".
SEC. 18. 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.
