[Congressional Record Volume 147, Number 9 (Wednesday, January 24, 2001)]
[Senate]
[Pages S529-S531]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mr. Leahy, Mr. Kennedy, and Mr. 
        Torricelli):
  S. 163. A bill to amend certain Federal civil rights statutes to 
prevent the involuntary application of arbitration to claims that arise 
from unlawful employment discrimination based on race, color, religion, 
sex, national origin, age, or disability, and for other purposes; to 
the Committee on Health, Education, Labor, and Pensions.
  Mr. FEINGOLD. Mr. President, I rise today to introduce the Civil 
Rights Procedures Protection Act of 2001. I am pleased that my 
cosponsors in the 106th Congress--Senators Leahy, Kennedy and 
Torricelli--have joined with me again in support of this legislation.
  This bill addresses the rapidly growing and very troubling practice 
of employers conditioning employment or professional advancement upon 
the employees' willingness to submit claims of discrimination or 
harassment to arbitration. In other words, employees who raise claims 
of harassment or discrimination must submit those claims to 
arbitration, foregoing the right to go to court and any other remedies 
that may exist under the laws of this nation. The right to seek redress 
in a court of law--including 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. But employers are undermining 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, by requiring 
all employees to submit to mandatory, binding arbitration as a 
condition of employment or advancement before a claim has arisen.
  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: they 
require an employee to surrender

[[Page S530]]

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.
  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 2001 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. By amending 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.
  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, alternative methods of dispute 
resolution that allow the parties to choose whether to go to court. 
Rather, this bill targets only mandatory, binding arbitration clauses 
in employment contracts entered into by the employer and employee 
before a dispute has even arisen.
  The 107th Congress marks the fifth successive Congress in which I 
have introduced this important legislation. In recent years, we have 
made some advances in addressing the unfair use of mandatory, binding 
arbitration clauses. As a result of a hearing in the Banking Committee 
in 1998 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. Last spring, the Judiciary Subcommittee on Administrative 
Oversight and the Courts, chaired by my distinguished colleague from 
Iowa, Senator Grassley, held a hearing on contractual mandatory, 
binding arbitration and highlighted the problem in the employment area. 
These are positive developments, but the trend toward the use of 
mandatory, binding arbitration clauses continues. A legislative fix is 
needed.
  The Civil Rights Procedures Protection Act restores the right of 
working men and women to pursue their claims in the venue that they 
choose, which, in turn, restores the spirit of our nation's civil 
rights and sexual harassment laws. 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. 163

       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 2001''.

     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, or section 2105, 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 an amendment made by 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. 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

[[Page S531]]

     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 earlier than the date of enactment of this 
     Act.
                                 ______