[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 801 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 801

  To amend title 38, United States Code, to provide for improved and 
 expedited procedures for resolving complaints of unlawful employment 
 discrimination arising within the Department of Veterans Affairs, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 23, 1997

Mr. Graham (for himself, Mr. Faircloth, and Mr. Hutchinson) introduced 
the following bill; which was read twice and referred to the Committee 
                          on Veterans' Affairs

_______________________________________________________________________

                                 A BILL


 
  To amend title 38, United States Code, to provide for improved and 
 expedited procedures for resolving complaints of unlawful employment 
 discrimination arising within the Department of Veterans Affairs, 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 ``Department of Veterans Affairs 
Employment Discrimination Prevention Act''.

SEC. 2. DEPARTMENT OF VETERANS AFFAIRS EMPLOYMENT DISCRIMINATION 
              RESOLUTION PROCEDURES.

    (a) In General.--Title 38, United States Code, is amended by 
inserting after chapter 7 the following new chapter:

                 ``CHAPTER 8--EMPLOYMENT DISCRIMINATION

``Sec.
``801. Scope of chapter.
``802. Office of Employment Discrimination Complaints Resolution.
``803. Informal complaint resolution.
``804. Investigation of complaints.
``805. Final agency decision; hearings.
``806. Review of final agency decisions.
``807. Unlawful employment discrimination defined.
``Sec. 801. Scope of chapter
    ``(a) The procedures established in this chapter shall be 
implemented in a manner consistent with procedures applicable under 
regulations prescribed by the Equal Employment Opportunity Commission.
    ``(b) In the case of an employee of the Department who alleges that 
the employee has been subjected to unlawful employment discrimination 
(as defined in section 807), the allegation shall be considered under 
the procedures applicable to the Merit Systems Protection Board under 
title 5 (rather than under the procedures set forth in this chapter) if 
the action (or failure to act) of which the employee complains is an 
employment action or practice that is otherwise appealable to the Merit 
Systems Protection Board.
    ``(c) Nothing in this chapter supersedes--
            ``(1) the rights and remedies available to employees under 
        title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
        seq.), including the rights and remedies provided in section 
        1977A of the Revised Statutes (42 U.S.C. 1981a); or
            ``(2) any right or obligation of an employee to elect (in 
        lieu of using procedures under this chapter) to raise an 
        allegation of unlawful employment discrimination under 
        grievance procedures established under a collective bargaining 
        agreement.
``Sec. 802. Office of Employment Discrimination Complaints Resolution
    ``(a)(1) There shall be in the Department an Office of Employment 
Discrimination Complaints Resolution (referred to in this chapter as 
the `Office'), which shall be headed by a Director. The Director shall 
report only to the Secretary and Deputy Secretary.
    ``(2) Subject to the direction of the Secretary and the Deputy 
Secretary, the Director shall have sole responsibility within the 
Department for administering the procedures under this chapter for 
resolving complaints of unlawful employment discrimination arising 
within the Department.
    ``(3) In addition to the functions of the Director described in 
paragraph (2), the Director shall perform such other functions as the 
Secretary may prescribe consistent with the functions of the Director 
described in paragraph (2).
    ``(b) The Secretary shall employ within the Office for the purposes 
of this chapter administrative law judges appointed in accordance with 
section 3105 of title 5 and such other personnel as the Office may 
require. In appointing administrative law judges, the Secretary shall 
consider the composition of the persons appointed, taken as a group, in 
terms of race, sex, and veterans status, compared with the composition 
of the total Department workforce in terms of race, sex, and veterans 
status.
    ``(c) The Secretary shall ensure that the Director is furnished 
sufficient resources to enable the Director to carry out the functions 
of the Office under this chapter in a timely manner.
    ``(d) The Secretary shall include in the documents submitted to 
Congress by the Secretary in support of the President's budget for each 
fiscal year--
            ``(1) detailed information on the budget for the Office;
            ``(2) the Secretary's opinion as to whether the resources 
        (including the number of employees) proposed in the budget for 
        that fiscal year are adequate to enable the Secretary to comply 
        with statutory and regulatory deadlines for the administration 
        of the procedures under this chapter and other provisions of 
        law relating to the resolution of complaints of unlawful 
        employment discrimination involving the Department; and
            ``(3) a report on the activities of the Office during the 
        preceding fiscal year, including--
                    ``(A) a statement of the number and nature of 
                complaints of unlawful employment discrimination 
                received and the number and nature of complaints 
                resolved, and the results of any appellate review of 
                proceedings involving the complaints, during the year;
                    ``(B) a description of the timeliness of the 
                resolution of the complaints during the year; and
                    ``(C) a statement of significant decisions and 
                trends affecting the work of the Office.
    ``(e)(1) The Director shall prescribe--
            ``(A) standards of timeliness for the expeditious 
        resolution of complaints of unlawful employment discrimination 
        under this chapter;
            ``(B) qualifications and training requirements for 
        employees of the Office; 
            ``(C) requirements for recordkeeping pertaining to 
        counseling and investigations by employees of the Office; and
            ``(D) standards for the conduct of investigations under 
        section 804.
    ``(2) Regulations prescribed under paragraph (1) shall be 
consistent with regulations prescribed by the Equal Employment 
Opportunity Commission, except that, in the interest of the expeditious 
resolution of complaints, the Director may prescribe shorter time 
periods than the periods specified in such regulations with respect to 
any deadline or administrative period that is applicable only to the 
time within which the Government may (or is required to) act.
``Sec. 803. Informal complaint resolution
    ``Employees of the Office shall counsel employees of the 
Department, and applicants for employment with the Department, who file 
a complaint with the Department stating that the employees of the 
Department and applicants have been subject to unlawful employment 
discrimination by an officer or employee of the Department. The Office 
shall seek to resolve such complaints in an expeditious and impartial 
manner through informal investigation and conciliation using procedures 
prescribed by the Director.
``Sec. 804. Investigation of complaints
    ``(a) If a complaint of unlawful employment discrimination is filed 
with the Department under section 803 and the complaint is not resolved 
through the informal resolution process under section 803, the Director 
shall assign the complaint to an administrative law judge, who shall 
determine whether the complaint shall be accepted for investigation.
    ``(b)(1) The administrative law judge assigned to a complaint shall 
make the determination in accordance with regulations of the Equal 
Employment Opportunity Commission, except that if the administrative 
law judge determines that the complaint is without merit, the 
administrative law judge may determine that the complaint is not to be 
accepted for investigation.
    ``(2) A decision that a complaint is not to be accepted for 
investigation is a final agency decision of the matter.
    ``(c)(1) If the administrative law judge determines that the 
complaint is to be accepted, the Director shall promptly provide for an 
investigation of the complaint, which shall be carried out by employees 
of the Office (or by contract personnel acquired by the Director). The 
employee (or contractor) conducting the investigation shall submit to 
the Director a complete written report of the results of the 
investigation.
    ``(2) If a portion of a complaint is accepted for investigation and 
a portion is not accepted, the individual filing the complaint or the 
Department may request the administrative law judge to direct the 
suspension of the investigation of the portion of the complaint 
accepted for investigation pending the results of any review of the 
decision not to accept the other portion.
    ``(3) The Director shall furnish a copy of the investigative report 
(including a copy of the investigative file involved) to the 
administrative law judge, the individual who filed the complaint, and 
the Secretary. The administrative law judge may direct that an 
additional investigation be made if the administrative law judge 
determines that an additional investigation is warranted.
``Sec. 805. Final agency decision; hearings
    ``(a) The final agency decision on a complaint of unlawful 
employment discrimination filed under section 803, in a case not 
resolved through informal procedures under section 803 of this title, 
shall be made by an administrative law judge.
    ``(b) The individual filing the complaint may request a hearing on 
the matter involved. Any such request shall be made in such time and 
manner as may be prescribed by the Director. The administrative law 
judge shall grant the request for a hearing unless, after giving 
appropriate notice and allowing an opportunity to respond to such 
notice, the administrative law judge determines that there is no 
genuine dispute as to a material fact.
    ``(c) If the administrative law judge grants a request of the 
individual filing the complaint for a hearing, the administrative law 
judge--
            ``(1) may conduct the hearing on the matter; or
            ``(2) may refer the matter for a hearing by a hearing 
        examiner.
    ``(d) In any hearing under this section, the administrative law 
judge or hearing examiner presiding at the hearing shall have the 
authorities set forth in section 556(c) of title 5.
``Sec. 806. Review of final agency decisions
    ``(a) If the final agency decision in a case involving a complaint 
filed under section 803 of unlawful employment discrimination by an 
officer or employee of the Department is adverse to the individual 
filing the complaint, the individual may appeal the decision to the 
Equal Employment Opportunity Commission or may institute an action 
regarding the complaint in the appropriate United States district 
court, as provided by law.
    ``(b) If the final agency decision in such a case is adverse to the 
Department, the Secretary may appeal the decision to the Equal 
Employment Opportunity Commission. Any such appeal shall be made within 
30 days after the date of the receipt by the Secretary of the decision. 
The Equal Employment Opportunity Commission may act on such an appeal 
in the same manner as in the case of an appeal by a Federal employee or 
an applicant for Federal employment against a final agency decision 
regarding unlawful employment discrimination.
``Sec. 807. Unlawful employment discrimination defined
    ``For purposes of this chapter, the term `unlawful employment 
discrimination' means any action, or failure to act, that is a 
violation of any of the following:
            ``(1) Title VII of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e et seq.).
            ``(2) The Age Discrimination in Employment Act of 1967 (29 
        U.S.C. 621 et seq.).
            ``(3) Section 6(d) of the Fair Labor Standards Act of 1938 
        (29 U.S.C. 206(d)).
            ``(4) Section 501 of the Rehabilitation Act of 1973 (29 
        U.S.C. 791).''.
    (b) Clerical Amendment.--The tables of chapters at the beginning of 
title 38, United States Code, and at the beginning of part I of such 
title, are amended by inserting after the item relating to chapter 7 
the following new item:

``8. Employment Discrimination..............................     801''.

SEC. 3. TRANSITION.

    Chapter 8 of title 38, United States Code, as added by section 2, 
shall apply with respect to complaints of unlawful employment 
discrimination that are filed after the end of the 6-month period 
beginning on the date of enactment of this Act. Any complaint filed 
before the end of such period shall be resolved in accordance with the 
procedures in effect on the date of enactment of this Act.

SEC. 4. WHISTLEBLOWER PROTECTION FOR TITLE 38 EMPLOYEES.

    (a) In General.--
            (1) Application.--Chapter 74 of title 38, United States 
        Code, is amended by inserting at the end of subchapter V the 
        following new section:
``Sec. 7465. Disclosures of violations of law, gross mismanagement, and 
              certain other matters: protection of employees
    (a) Section 2302(b)(8) of title 5 shall apply with respect to an 
employee, or applicant for employment, in a position covered by this 
chapter in the same manner as if that position were a `covered 
position' within the meaning of section 2302(a)(2)(B) of title 5.
    ``(b) Subsection (a) shall apply for purposes of applying to such 
an employee or applicant the provisions of subchapters II and III of 
chapter 12 of title 5 that relate to any authority to conduct 
investigations, or to seek or administer any corrective action, 
disciplinary action, or other remedy in connection with a prohibited 
personnel practice described in section 2302(b)(8) of such title.''.
            (2) Table of sections.--The table of sections at the 
        beginning of such chapter is amended by inserting after the 
        item relating to section 7464 the following new item:

``7465. Disclosures of violations of law, gross mismanagement, and 
                            certain other matters: protection of 
                            employees.''.
    (b) Effective Date.--
            (1) Application.--Subject to paragraph (2), section 7465 of 
        title 38, United States Code, as added by subsection (a), shall 
        apply with respect to personnel actions occurring before, on, 
        or after the date of enactment of this Act, if an action for 
        relief relating to the personnel action is commenced prior to 
        the applicable deadline.
            (2) Administrative proceedings.--Such section shall not 
        affect any administrative proceeding pending on the date of 
        enactment of this Act, and orders shall be issued in any such 
        proceeding, and appeals shall be taken from the orders, as if 
        such section had not been enacted.
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