National Employment Dispute Resolution Act of 2001 (NEDRA)

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(Introduced in the House)

HR 820 IH

107th CONGRESS

1st Session

H. R. 820

To amend title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, the Americans with Disabilities Act of
1990, the Vocational Rehabilitation Act of 1973, and the Civil Rights Act of
1991 to require the Equal Employment Opportunity Commission to mediate employee
claims arising under such Acts; and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

March 1, 2001

Mrs. CLAYTON introduced the following bill; which was referred to the
Committee on Education and the Workforce

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A BILL

To amend title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, the Americans with Disabilities Act of
1990, the Vocational Rehabilitation Act of 1973, and the Civil Rights Act of
1991 to require the Equal Employment Opportunity Commission to mediate employee
claims arising under such Acts; 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 `National Employment Dispute Resolution Act
of 2001 (NEDRA)’.

SEC. 2. FINDINGS.

The Congress finds the following:

(1) The prohibitive costs and emotional toll of litigation as well as
the growing backlog of employment civil rights claims and lawsuits has
impeded the protection and enforcement of workplace civil rights.

(2) Mediation is an
economical, participatory, and expeditious alternative to traditional, less
cooperative methods of resolving employment disputes.

(3) Mediation enables
disputants to craft creative solutions and settlements, surpassing the reach
of traditional remedies, thereby possibly protecting the continuity of the
employment relationship.

(4) As we enter the new millennium, a national program of directed or
required participation in mediation where any settlement is
voluntary mandated mediation
for certain employment and contract disputes, will help fulfill the goal of
equal opportunity in work and business places of the United States.

(5) Overt and subtle discrimination still exists in our society and in
the workplace.

(6) Overt and subtle forms of discrimination cause substantial
measurable economic and noneconomic costs to employers and the American
workforce, create a barrier to fully realizing equal opportunity in the
workplace, and are contrary to public policy promoting equal opportunity in
the workplace.

(b) PURPOSES- The purposes of this Act are–

(1) to establish a fair and effective alternative means by which
employees and covered employers may have an increased likelihood of
resolving both alleged overt and subtle forms or acts of discrimination
without the necessity of the employee taking some form of legal action
against the employer,

(2) in accordance with the various public policies encouraging the use
of mediation , to make mediation available at an early
stage of an employment dispute, thus–

(A) possibly reducing economic and noneconomic costs,

(B) preserving the employment relationship and decreasing acrimony,
and

(C) decreasing the filing of a number of formal discrimination
complaints, charges, and lawsuits and further burdening our public justice
system, and

(3) to provide that the participation in mediation shall not preclude either
the employee-disputant or covered employer-disputant from having access to
the public justice system.

SEC. 3. AMENDMENTS TO TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.

(a) FEDERAL EMPLOYEES- Title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) is amended–

(1) in section 706(a) by inserting after the 7th sentence the
following:

`Regardless of whether the Commission makes an investigation under this
subsection, the Commission shall provide counseling services regarding, and
endeavor to responsibly address and resolve, claims of unlawful discrimination
using certified contract mediators.’, and

(2) in section 711(a) by adding at the end the following:

`Every employer, employment agency, and labor organization shall provide
to each employee and each member, individually, a copy of the materials
required by this section to be so posted.’.

(b) OFFICE OF FEDERAL CONTRACT COMPLIANCE- Section 718 of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-17) is amended–

(1) by inserting `(a)’ after `SEC. 718′, and

(2) by adding at the end the following:

`(b) The Office of Federal Contract Compliance shall endeavor to
responsibly address and resolve any alleged discrimination using mediation with respect to which this
section applies.

`(c) An employer who establishes, implements an approved internal conflict
management program or system providing the use of a certified mediator
participates in mediation under
this section shall be given preferred status in contract bidding for
additional and for maintaining current Federal Government contracts.

`(d) An employer who is a party to a Government contract or the agency of
the United States shall assume the costs of mediation under this section,
including the fees of the mediator and any travel and lodging expenses of the
employee, if such travel exceeds 25 miles, one way. Any settlement shall
include, among other things, any appropriate and reasonable attorney fees.

`(e) Retaliation by an employer who is a party to a Government contract or
the agency of the United States, or the destruction of evidence, shall result
in the imposition of appropriate civil or criminal sanctions. The
participation in mediation shall
be at the option of the employee. The participation in mediation shall not preclude the
employee’s access to any State, local, or Federal EEO enforcement agency or
any State or Federal court.

`(f) The Office of Federal Contract Compliance shall have authority over
employers who are parties to Government contracts that fail to comply with
this section. Failure to comply shall result in the loss of a current
Government contract and disqualification from consideration for future
Government contracts.

`(g) No resolution by the disputants may contravene the provisions of a
valid collective bargaining agreement between an employer who is a part to a
Government contract and a labor union or certified bargaining representative.
Any voluntary settlement outcome and agreement may not be in conflict with the
collective bargaining agreement.’.

SEC. 4. AMENDMENTS 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) in section 7(e) by inserting after the 2d sentence the
following:

`The Commission shall provide counseling services regarding, and endeavor
to responsibly address and resolve, claims of unlawful discrimination using
certified contract mediators.’, and

(2) in section 8 by adding at the end the following:

`Every employer, employment agency, and labor organization shall provide
to each employee and each member, individually, a copy of the materials
required by this section to be so posted.’.

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

Section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C.
12117(a)) is amended by adding at the end the following: `The Commission shall
provide counseling services regarding, and endeavor to responsibly address and
resolve, claims of unlawful discrimination using certified contract
mediators.’.

SEC. 6. MEDIATION .

(a) DEFINITIONS- For purposes of this section:

(1) The term `employer’ means any Federal agency (including Federal
courts) or business enterprise receiving Federal funds of $200,000 or
greater or having 20 or more employees.

(2) The term `mediator’ means any neutral, third-party, including an
attorney and a nonattorney, who is trained in the mediation process and has a
demonstrable working knowledge in relevant EEO and employment law, including
a third party who is–

(A) appointed or approved by a competent court, the Equal Employment
Opportunity Commission, a certified mediation center, or a university,
or

(B) jointly chosen by the disputants.

(3) The term `trained mediation professional’ means a
person who–

(A) has participated in employment mediation training of 40 or more
hours, or

(B) has co-mediated with or been supervised by another trained
certified mediation
professional for at least three employment or contract dispute cases of no
fewer than 15 hours.

(4) The term `certified mediation center’ includes any
private or public entity that is qualified to facilitate the employment or
contract mediation process and
provide training on employment and contract dispute resolution, including,
but not limited to, the American Arbitration Association, the American Bar
Association, the Center for Employment Dispute Resolution, CPR Conflict
Institute, JAMS/Endispute, United States Arbitration and Mediation , Inc., Institute on
Conflict Resolution at Cornell University, and the Society of Professionals
in Dispute Resolution.

(b) REQUIREMENTS- (1) All employers shall–

(A) establish an internal dispute resolution program or system that
provides, as a voluntary option, employee-disputant access to external
third-party certified mediators,

(B) participate in mediation if the employee has
exhausted the internal dispute resolution program or system and has formally
requested mediation without
the filing of a charge or lawsuit, and

(C) participate in mediation if the claimant has filed
a charge or lawsuit and the claimant formally requests mediation .

(2) While the mediation
settlement outcome would be voluntary, the employer shall participate in mediation where the employee-disputant
has expressed a desire to mediate.

(3) Under all circumstances, the employee-disputant is entitled to legal
representation.

(4) Employers shall inform employee-disputants of the mediation alternative and their
respective rights thereof, and the employee-disputant would have 30 days in
which to decide whether to participate in mediation .

(5) When an employee-disputant voluntarily agrees to participate in the
mediation process, any
applicable statute of limitations shall be tolled, and the private tolling
agreement shall be enforceable in any court of competent jurisdiction.

(6) The employee and employer disputants shall not have more than 90 days
within which to resolve the dispute.

(7) Should mediation prove
unsuccessful, the employer shall again inform the employee-disputant of their
rights, in writing including the right to pursue the matter under any
applicable State, county, local ordinance, or Federal statutes.

(8) Consistent with section 705 of the Civil Rights Act of 1964, the Equal
Employment Opportunity Commission, and any State or local authority involved
in proceedings described in section 706, shall offer technical assistance to
any unrepresented or self-represented party, provided that a formal complaint
has been filed with the Commission or such authority. Such assistance shall
include, but not be limited to–

(A) pre-mediation
counseling,

(B) assistance in understanding the status of relevant case law,

(C) assistance in what would be the appropriate remedy if the instant
claim were to be found to have merit, and

(D) assistance in drafting any post-mediation settlement agreement or
resolution.

(9) Submission of a claim for mediation shall not preclude either
the claimant or respondent from seeking other appropriate relief on that
claim, except that neither party shall seek other relief until the mediation process has concluded.

(10) Any settlement as a result of themediation process shall be strictly
voluntary and remain confidential except for research and evaluation
purposes.

(11) In every case, the privacy, privilege, and confidentiality of all
parties to the dispute shall be preserved, including complaint intake
personnel and mediation
consultations.

(c) ATTORNEY’S OBLIGATION TO ADVISE CLIENTS OF MEDIATION – For the purposes of this
Act and all of the other related statutes, attorneys and consultants are
legally obliged to advise their clients of the existence of the mediation alternative and their
obligations under the Act to participate in mediation in `good faith’.

(d) JUDICIAL ENFORCEMENT- Either party to a mediation agreement to bring an action
of enforcement in a Federal district court of competent jurisdiction, however
any matter discussed or material presented during mediation shall not be used in any
subsequent local, State, or Federal administrative or court proceeding. The
confidential provisions of any internal conflict management program or system
or agreement to mediations shall be immune from attack by any third
party.