[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2327 Introduced in Senate (IS)]

103d CONGRESS
  2d Session
                                S. 2327

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 SENATE OF THE UNITED STATES

                July 27 (legislative day, July 20), 1994

 Mr. Danforth introduced the following bill; which was read twice and 
         referred to the Committee on Labor and Human Resources

_______________________________________________________________________

                                 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 
1994''.

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 
1995 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.
                                 <all>
S 2327 IS----2