[Congressional Record Volume 145, Number 8 (Tuesday, January 19, 1999)]
[Senate]
[Pages S550-S551]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 CIVIL RIGHTS PROCEDURES PROTECTION ACT

  Mr. FEINGOLD. Mr. President, I rise today to introduce the Civil 
Rights Procedures Protection Act of 1999. The 106th Congress will mark 
the fourth successive Congress in which I have introduced this 
legislation. Very simply Mr. President, this legislation addresses the 
rapidly growing and very troubling practice of employers conditioning 
employment or professional advancement upon their employees' 
willingness to submit claims of discrimination or harassment to 
arbitration, rather than pursuing them in the courts. In other words, 
employees raising claims of harassment or discrimination by their 
employers must submit the adjudication of those claims to arbitration, 
denying themselves any other remedies may exist under the laws of this 
Nation.
  The right to seek redress in a court of law--the right to a jury 
trial--is one of the most basic rights accorded to employees in this 
nation. In the Civil Rights Act of 1991, Congress expressly created 
this right to a jury trial for employees when it voted overwhelmingly 
to amend Title VII of the Civil Rights Act of 1964.
  The intent of the Civil Rights Act of 1991 and other civil rights and 
labor laws, such as the Age Discrimination in Employment Act of 1967, 
is being circumvented by companies that require all employees to submit 
to mandatory, binding arbitration. In other words, the company is 
compelling an agreement to arbitration without regard to basic civil 
rights of American workers or their right to secure final resolution of 
such disputes in a court of law under the rules of fairness and due 
process.
  How then does the practice of mandatory, binding arbitration comport 
with the purpose and spirit of our nation's civil rights and sexual 
harassment laws? The answer is simply that it does not.
  To address the growing incidents of compulsory arbitration, the Civil 
Rights Procedures Protection Act of 1999 amends seven civil rights 
statutes to guarantee that a federal civil rights or sexual harassment 
plaintiff can still seek the protection of the U.S. courts rather than 
be forced into mandatory, binding arbitration. Specifically, this 
legislation affects claims raised under Title VII of the Civil Rights 
Act of 1965, Section 505 of the Rehabilitation Act of 1973, the 
Americans with Disabilities Act, Section 1977 of the Revised Statutes, 
the Equal Pay Act, the Family and Medical Leave Act and the Federal 
Arbitration Act (FAA). In the context of the Federal Arbitration Act, 
the protections of this legislation are extended to claims of unlawful 
discrimination arising under State or local law and other Federal laws 
that prohibit job discrimination.
  Mr. President, this bill is not anti-arbitration, anti-mediation, or 
anti-alternative dispute resolution. I have long been and will remain a 
strong supporter of ``voluntary forms'' of alternative methods of 
dispute resolution that allow the parties to choose not to proceed to 
litigation. Rather, this bill targets only mandatory binding 
arbitration clauses in employment contracts. Increasingly, working men 
and women are faced with the choice of accepting a mandatory 
arbitration clause in their employment agreement or no employment at 
all. Despite the appearance of a freely negotiated contract, the 
reality often amounts to a non-negotiable requirement that prospective 
employees relinquish their rights to redress in a court of law. 
Mandatory arbitration allows employers to tell all current and 
prospective employees in effect, ``If you want to work for us, you will 
have to check your rights at the door.'' These requirements have been 
referred to as ``front door'' contracts;

[[Page S551]]

that is, they require an employee to surrender certain rights in order 
to ``get in the front door.'' As a nation which values work and 
deplores discrimination, we should not allow this practice to continue.
  As I noted Mr. President, the 106th Congress marks the fourth 
successive Congress in which I have introduced this important 
legislation. In the past year, we have made some advances addressing 
the unfair use of mandatory binding arbitration clauses. Due to the 
attention focused on this issue through this legislation, a hearing in 
the Banking Committee last session, and a series of articles and 
editorials in prominent periodicals, the National Association of 
Securities Dealers (NASD) agreed to remove the mandatory binding 
arbitration clause from its Form U-4, which all prospective securities 
dealers sign as a condition of employment. The NASD's decision to 
remove the binding arbitration clause, however, does not prohibit its 
constituent organizations from including a mandatory, binding 
arbitration clause in their own employment agreements, even if it is 
not mandated by the industry as a whole.
  These changes in the securities industry are a positive development, 
but the trend toward the use of mandatory, binding arbitration clauses 
in many industries continues. This bill restores the ability of working 
men and women to pursue their rights in a venue that they choose and 
therefore restores and reinvigorates the spirit of our nation's civil 
rights and sexual harassment laws in the context of these employment 
contracts. I ask my colleagues to join me in supporting this important 
legislation.
  Mr. President, I ask unanimous consent that the text of this 
legislation be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 121

       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 Procedures 
     Protection Act of 1999''.

     SEC. 2. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS ACT OF 
                   1964.

       Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e 
     et seq.) is amended by adding at the end the following new 
     section:

     ``SEC. 719. EXCLUSIVITY OF POWERS AND PROCEDURES.

       ``Notwithstanding any Federal law (other than a Federal law 
     that expressly refers to this title) that would otherwise 
     modify any of the powers and procedures expressly applicable 
     to a right or claim arising under this title, such powers and 
     procedures shall be the exclusive powers and procedures 
     applicable to such right or such claim unless after such 
     right or such claim arises the claimant voluntarily enters 
     into an agreement to enforce such right or resolve such claim 
     through arbitration or another procedure.''.

     SEC. 3. AMENDMENT TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT 
                   OF 1967.

       The Age Discrimination in Employment Act of 1967 (29 U.S.C. 
     621 et seq.) is amended--
       (1) by redesignating sections 16 and 17 as sections 17 and 
     18, respectively; and
       (2) by inserting after section 15 the following new section 
     16:

     ``SEC. 16. EXCLUSIVITY OF POWERS AND PROCEDURES.

       ``Notwithstanding any Federal law (other than a Federal law 
     that expressly refers to this Act) that would otherwise 
     modify any of the powers and procedures expressly applicable 
     to a right or claim arising under this Act, such powers and 
     procedures shall be the exclusive powers and procedures 
     applicable to such right or such claim unless after such 
     right or such claim arises the claimant voluntarily enters 
     into an agreement to enforce such right or resolve such claim 
     through arbitration or another procedure.''.

     SEC. 4. AMENDMENT TO THE REHABILITATION ACT OF 1973.

       Section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 
     794a) is amended by adding at the end the following new 
     subsection:
       ``(c) Notwithstanding any Federal law (other than a Federal 
     law that expressly refers to this title) that would otherwise 
     modify any of the powers and procedures expressly applicable 
     to a right or claim arising under section 501, such powers 
     and procedures shall be the exclusive powers and procedures 
     applicable to such right or such claim unless after such 
     right or such claim arises the claimant voluntarily enters 
     into an agreement to enforce such right or resolve such claim 
     through arbitration or another procedure.''.

     SEC. 5. AMENDMENT TO THE AMERICANS WITH DISABILITIES ACT OF 
                   1990.

       Section 107 of the Americans with Disabilities Act of 1990 
     (42 U.S.C. 12117) is amended by adding at the end the 
     following new subsection:
       ``(c) Notwithstanding any Federal law (other than a Federal 
     law that expressly refers to this Act) that would otherwise 
     modify any of the powers and procedures expressly applicable 
     to a right or claim based on a violation described in 
     subsection (a), such powers and procedures shall be the 
     exclusive powers and procedures applicable to such right or 
     such claim unless after such right or such claim arises the 
     claimant voluntarily enters into an agreement to enforce such 
     right or resolve such claim through arbitration or another 
     procedure.''.

     SEC. 6. AMENDMENT TO SECTION 1977 OF THE REVISED STATUTES.

       Section 1977 of the Revised Statutes (42 U.S.C. 1981) is 
     amended by adding at the end the following new subsection:
       ``(d) Notwithstanding any Federal law (other than a Federal 
     law that expressly refers to this section) that would 
     otherwise modify any of the powers and procedures expressly 
     applicable to a right or claim concerning making and 
     enforcing a contract of employment under this section, such 
     powers and procedures shall be the exclusive powers and 
     procedures applicable to such right or such claim unless 
     after such right or such claim arises the claimant 
     voluntarily enters into an agreement to enforce such right or 
     resolve such claim through arbitration or another 
     procedure.''.

     SEC. 7. AMENDMENT TO THE EQUAL PAY REQUIREMENT UNDER THE FAIR 
                   LABOR STANDARDS ACT OF 1938.

       Section 6(d) of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 206(d)) is amended by adding at the end the following 
     new paragraph:
       ``(5) Notwithstanding any Federal law (other than a Federal 
     law that expressly refers to this Act) that would otherwise 
     modify any of the powers and procedures expressly applicable 
     to a right or claim arising under this subsection, such 
     powers and procedures shall be the exclusive powers and 
     procedures applicable to such right or such claim unless 
     after such right or such claim arises the claimant 
     voluntarily enters into an agreement to enforce such right or 
     resolve such claim through arbitration or another 
     procedure.''.

     SEC. 8. AMENDMENT TO THE FAMILY AND MEDICAL LEAVE ACT OF 
                   1993.

       Title IV of the Family and Medical Leave Act of 1993 (29 
     U.S.C. 2651 et seq.) is amended--
       (1) by redesignating section 405 as section 406; and
       (2) by inserting after section 404 the following new 
     section:

     ``SEC. 405. EXCLUSIVITY OF REMEDIES.

       ``Notwithstanding any Federal law (other than a Federal law 
     that expressly refers to this Act or a provision of 
     subchapter V of chapter 63 of title 5, United States Code) 
     that would modify any of the powers and procedures expressly 
     applicable to a right or claim arising under this Act or 
     under such subchapter such powers and procedures shall be the 
     exclusive powers and procedures applicable to such right or 
     such claim unless after such right or such claim arises the 
     claimant voluntarily enters into an agreement to enforce such 
     right or resolve such claim through arbitration or another 
     procedure.''.

     SEC. 9. AMENDMENT TO TITLE 9, UNITED STATES CODE.

       Section 14 of title 9, United States Code, is amended--
       (1) by inserting ``(a)'' before ``This''; and
       (2) by adding at the end the following new subsection:
       ``(b) This chapter shall not apply with respect to a claim 
     of unlawful discrimination in employment if such claim arises 
     from discrimination based on race, color, religion, sex, 
     national origin, age, or disability.''.

     SEC. 10. APPLICATION OF AMENDMENTS.

       The amendments made by this Act shall apply with respect to 
     claims arising not later than the date of enactment of this 
     Act.
                                 ______
                                 
      By Mr. FEINGOLD:
  S. 122. A bill to amend title 37, United States Code, to ensure 
equitable treatment of members of the National Guard and the other 
reserve components of the United States with regard to eligibility to 
receive special duty assignment pay, and for other purposes; to the 
Committee on Armed Services.

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