SEC. 209. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Commission such sums as may be necessary to carry out the provisions of this title. The sums shall remain available until expended, without fiscal year limitation.
SEC. 210. TERMINATION.
(a) COMMISSION- Notwithstanding section 15 of the Federal Advisory Committee Act (5 U.S.C. App.), the Commission shall terminate 4 years after the date of the enactment of this Act.
(b) AWARD- The authority to make awards under section 205 shall terminate 4 years after the date of the enactment of this Act.
TITLE III--GOVERNMENT EMPLOYEE RIGHTS
SEC. 301. GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991.
(a) SHORT TITLE- This title may be cited as the `Government Employee Rights Act of 1991'.
(b) PURPOSE- The purpose of this title is to provide procedures to protect the right of Senate and other government employees, with respect to their public employment, to be free of discrimination on the basis of race, color, religion, sex, national origin, age, or disability.
(c) DEFINITIONS- For purposes of this title:
(1) SENATE EMPLOYEE- The term `Senate employee' or `employee' means--
(A) any employee whose pay is disbursed by the Secretary of the Senate;
(B) any employee of the Architect of the Capitol who is assigned to the Senate Restaurants or to the Superintendent of the Senate Office Buildings;
(C) any applicant for a position that will last 90 days or more and that is to be occupied by an individual described in subparagraph (A) or (B); or
(D) any individual who was formerly an employee described in subparagraph (A) or (B) and whose claim of a violation arises out of the individual's Senate employment.
(2) HEAD OF EMPLOYING OFFICE- The term `head of employing office' means the individual who has final authority to appoint, hire, discharge, and set the terms, conditions or privileges of the Senate employment of an employee.
(3) VIOLATION- The term `violation' means a practice that violates section 302 of this title.
SEC. 302. DISCRIMINATORY PRACTICES PROHIBITED.
All personnel actions affecting employees of the Senate shall be made free from any discrimination based on--
(1) race, color, religion, sex, or national origin, within the meaning of section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
(2) age, within the meaning of section 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a); or
(3) handicap or disability, within the meaning of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) and sections 102-104 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112-14).
SEC. 303. ESTABLISHMENT OF OFFICE OF SENATE FAIR EMPLOYMENT PRACTICES.
(a) IN GENERAL- There is established, as an office of the Senate, the Office of Senate Fair Employment Practices (referred to in this title as the `Office'), which shall--
(1) administer the processes set forth in sections 305 through 307;
(2) implement programs for the Senate to heighten awareness of employee rights in order to prevent violations from occurring.
(1) IN GENERAL- The Office shall be headed by a Director (referred to in this title as the `Director') who shall be appointed by the President pro tempore, upon the recommendation of the Majority Leader in consultation with the Minority Leader. The appointment shall be made without regard to political affiliation and solely on the basis of fitness to perform the duties of the position. The Director shall be appointed for a term of service which shall expire at the end of the Congress following the Congress during which the Director is appointed. A Director may be reappointed at the termination of any term of service. The President pro tempore, upon the joint recommendation of the Majority Leader in consultation with the Minority Leader, may remove the Director at any time.
(2) SALARY- The President pro tempore, upon the recommendation of the Majority Leader in consultation with the Minority Leader, shall establish the rate of pay for the Director. The salary of the Director may not be reduced during the employment of the Director and shall be increased at the same time and in the same manner as fixed statutory salary rates within the Senate are adjusted as a result of annual comparability increases.
(3) ANNUAL BUDGET- The Director shall submit an annual budget request for the Office to the Committee on Appropriations.
(4) APPOINTMENT OF DIRECTOR- The first Director shall be appointed and begin service within 90 days after the date of enactment of this Act, and thereafter the Director shall be appointed and begin service within 30 days after the beginning of the session of the Congress immediately following the termination of a Director's term of service or within 60 days after a vacancy occurs in the position.
(c) STAFF OF THE OFFICE-
(1) APPOINTMENT- The Director may appoint and fix the compensation of such additional staff, including hearing officers, as are necessary to carry out the purposes of this title.
(2) DETAILEES- The Director may, with the prior consent of the Government department or agency concerned and the Committee on Rules and Administration, use on a reimbursable or nonreimbursable basis the services of any such department or agency, including the services of members or personnel of the General Accounting Office Personnel Appeals Board.
(3) CONSULTANTS- In carrying out the functions of the Office, the Director may procure the temporary (not to exceed 1 year) or intermittent services of individual consultants, or organizations thereof, in the same manner and under the same conditions as a standing committee of the Senate may procure such services under section 202(i) of the Legislative Reorganization Act of 1946 (2 U.S.C. 72a(i)).
(d) EXPENSES OF THE OFFICE- In fiscal year 1992, the expenses of the Office shall be paid out of the Contingent Fund of the Senate from the appropriation account Miscellaneous Items. Beginning in fiscal year 1993, and for each fiscal year thereafter, there is authorized to be appropriated for the expenses of the Office such sums as shall be necessary to carry out its functions. In all cases, expenses shall be paid out of the Contingent Fund of the Senate upon vouchers approved by the Director, except that a voucher shall not be required for--
(1) the disbursement of salaries of employees who are paid at an annual rate;
(2) the payment of expenses for telecommunications services provided by the Telecommunications Department, Sergeant at Arms, United States Senate;
(3) the payment of expenses for stationery supplies purchased through the Keeper of the Stationery, United States Senate;
(4) the payment of expenses for postage to the Postmaster, United States Senate; and
(5) the payment of metered charges on copying equipment provided by the Sergeant at Arms, United States Senate.
The Secretary of the Senate is authorized to advance such sums as may be necessary to defray the expenses incurred in carrying out this title. Expenses of the Office shall include authorized travel for personnel of the Office.
(e) RULES OF THE OFFICE- The Director shall adopt rules governing the procedures of the Office, including the procedures of hearing boards, which rules shall be submitted to the President pro tempore for publication in the Congressional Record. The rules may be amended in the same manner. The Director may consult with the Chairman of the Administrative Conference of the United States on the adoption of rules.
(f) REPRESENTATION BY THE SENATE LEGAL COUNSEL- For the purpose of representation by the Senate Legal Counsel, the Office shall be deemed a committee, within the meaning of title VII of the Ethics in Government Act of 1978 (2 U.S.C. 288, et seq.).
SEC. 304. SENATE PROCEDURE FOR CONSIDERATION OF ALLEGED VIOLATIONS.
The Senate procedure for consideration of alleged violations consists of 4 steps as follows:
(1) Step I, counseling, as set forth in section 305.
(2) Step II, mediation, as set forth in section 306.
(3) Step III, formal complaint and hearing by a hearing board, as set forth in section 307.
(4) Step IV, review of a hearing board decision, as set forth in section 308 or 309.
SEC. 305. STEP I: COUNSELING.
(a) IN GENERAL- A Senate employee alleging a violation may request counseling by the Office. The Office shall provide the employee with all relevant information with respect to the rights of the employee. A request for counseling shall be made not later than 180 days after the alleged violation forming the basis of the request for counseling occurred. No request for counseling may be made until 10 days after the first Director begins service pursuant to section 303(b)(4).
(b) PERIOD OF COUNSELING- The period for counseling shall be 30 days unless the employee and the Office agree to reduce the period. The period shall begin on the date the request for counseling is received.
(c) EMPLOYEES OF THE ARCHITECT OF THE CAPITOL AND CAPITOL POLICE- In the case of an employee of the Architect of the Capitol or an employee who is a member of the Capitol Police, the Director may refer the employee to the Architect of the Capitol or the Capitol Police Board for resolution of the employee's complaint through the internal grievance procedures of the Architect of the Capitol or the Capitol Police Board for a specific period of time, which shall not count against the time available for counseling or mediation under this title.
SEC. 306. STEP II: MEDIATION.
(a) IN GENERAL- Not later than 15 days after the end of the counseling period, the employee may file a request for mediation with the Office. Mediation may include the Office, the employee, and the employing office in a process involving meetings with the parties separately or jointly for the purpose of resolving the dispute between the employee and the employing office.
(b) MEDIATION PERIOD- The mediation period shall be 30 days beginning on the date the request for mediation is received and may be extended for an additional 30 days at the discretion of the Office. The Office shall notify the employee and the head of the employing office when the mediation period has ended.
SEC. 307. STEP III: FORMAL COMPLAINT AND HEARING.
(a) FORMAL COMPLAINT AND REQUEST FOR HEARING- Not later than 30 days after receipt by the employee of notice from the Office of the end of the mediation period, the Senate employee may file a formal complaint with the Office. No complaint may be filed unless the employee has made a timely request for counseling and has completed the procedures set forth in sections 305 and 306.
(b) HEARING BOARD- A board of 3 independent hearing officers (referred to in this title as `hearing board'), who are not Senators or officers or employees of the Senate, chosen by the Director (one of whom shall be designated by the Director as the presiding hearing officer) shall be assigned to consider each complaint filed under this section. The Director shall appoint hearing officers after considering any candidates who are recommended to the Director by the Federal Mediation and Conciliation Service, the Administrative Conference of the United States, or organizations composed primarily of individuals experienced in adjudicating or arbitrating personnel matters. A hearing board shall act by majority vote.
(c) DISMISSAL OF FRIVOLOUS CLAIMS- Prior to a hearing under subsection (d), a hearing board may dismiss any claim that it finds to be frivolous.
(d) HEARING- A hearing shall be conducted--
(1) in closed session on the record by a hearing board;
(2) no later than 30 days after filing of the complaint under subsection (a), except that the Office may, for good cause, extend up to an additional 60 days the time for conducting a hearing; and
(3) except as specifically provided in this title and to the greatest extent practicable, in accordance with the principles and procedures set forth in sections 554 through 557 of title 5, United States Code.
(e) DISCOVERY- Reasonable prehearing discovery may be permitted at the discretion of the hearing board.
(1) AUTHORIZATION- A hearing board may authorize subpoenas, which shall be issued by the presiding hearing officer on behalf of the hearing board, for the attendance of witnesses at proceedings of the hearing board and for the production of correspondence, books, papers, documents, and other records.
(2) OBJECTIONS- If a witness refuses, on the basis of relevance, privilege, or other objection, to testify in response to a question or to produce records in connection with the proceedings of a hearing board, the hearing board shall rule on the objection. At the request of the witness, the employee, or employing office, or on its own initiative, the hearing board may refer the objection to the Select Committee on Ethics for a ruling.
(3) ENFORCEMENT- The Select Committee on Ethics may make to the Senate any recommendations by report or resolution, including recommendations for criminal or civil enforcement by or on behalf of the Office, which the Select Committee on Ethics may consider appropriate with respect to--
(A) the failure or refusal of any person to appear in proceedings under this or to produce records in obedience to a subpoena or order of the hearing board; or
(B) the failure or refusal of any person to answer questions during his or her appearance as a witness in a proceeding under this section.
For purposes of section 1365 of title 28, United States Code, the Office shall be deemed to be a committee of the Senate.
(g) DECISION- The hearing board shall issue a written decision as expeditiously as possible, but in no case more than 45 days after the conclusion of the hearing. The written decision shall be transmitted by the Office to the employee and the employing office. The decision shall state the issues raised by the complaint, describe the evidence in the record, and contain a determination as to whether a violation has occurred.
(h) REMEDIES- If the hearing board determines that a violation has occurred, it shall order such remedies as would be appropriate if awarded under section 706 (g) and (k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5 (g) and (k)), and may also order the award of such compensatory damages as would be appropriate if awarded under section 1977 and section 1977A (a) and (b)(2) of the Revised Statutes (42 U.S.C. 1981 and 1981A (a) and (b)(2)). In the case of a determination that a violation based on age has occurred, the hearing board shall order such remedies as would be appropriate if awarded under section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)). Any order requiring the payment of money must be approved by a Senate resolution reported by the Committee on Rules and Administration. The hearing board shall have no authority to award punitive damages.
(i) PRECEDENT AND INTERPRETATIONS- Hearing boards shall be guided by judicial decisions under statutes referred to in section 302 and subsection (h) of this section, as well as the precedents developed by the Select Committee on Ethics under section 308, and other Senate precedents.
SEC. 308. REVIEW BY THE SELECT COMMITTEE ON ETHICS.
(a) IN GENERAL- An employee or the head of an employing office may request that the Select Committee on Ethics (referred to in this section as the `Committee'), or such other entity as the Senate may designate, review a decision under section 307, including any decision following a remand under subsection (c), by filing a request for review with the Office not later than 10 days after the receipt of the decision of a hearing board. The Office, at the discretion of the Director, on its own initiative and for good cause, may file a request for review by the Committee of a decision of a hearing board not later than 5 days after the time for the employee or employing office to file a request for review has expired. The Office shall transmit a copy of any request for review to the Committee and notify the interested parties of the filing of the request for review.
(b) REVIEW- Review under this section shall be based on the record of the hearing board. The Committee shall adopt and publish in the Congressional Record procedures for requests for review under this section.
(c) REMAND- Within the time for a decision under subsection (d), the Committee may remand a decision no more than one time to the hearing board for the purpose of supplementing the record or for further consideration.
(d) FINAL DECISION-
(1) HEARING BOARD- If no timely request for review is filed under subsection (a), the Office shall enter as a final decision, the decision of the hearing board.
(2) SELECT COMMITTEE ON ETHICS-
(A) If the Committee does not remand under subsection (c), it shall transmit a written final decision to the Office for entry in the records of the Office. The Committee shall transmit the decision not later than 60 calendar days during which the Senate is in session after the filing of a request for review under subsection (a). The Committee may extend for 15 calendar days during which the Senate is in session the period for transmission to the Office of a final decision.
(B) The decision of the hearing board shall be deemed to be a final decision, and entered in the records of the Office as a final decision, unless a majority of the Committee votes to reverse or remand the decision of the hearing board within the time for transmission to the Office of a final decision.
(C) The decision of the hearing board shall be deemed to be a final decision, and entered in the records of the Office as a final decision, if the Committee, in its discretion, decides not to review, pursuant to a request for review under subsection (a), a decision of the hearing board, and notifies the interested parties of such decision.
(3) ENTRY OF A FINAL DECISION- The entry of a final decision in the records of the Office shall constitute a final decision for purposes of judicial review under section 309.
(e) STATEMENT OF REASONS- Any decision of the Committee under subsection (c) or subsection (d)(2)(A) shall contain a written statement of the reasons for the Committee's decision.
SEC. 309. JUDICIAL REVIEW.
(a) IN GENERAL- Any Senate employee aggrieved by a final decision under section 308(d), or any Member of the Senate who would be required to reimburse the appropriate Federal account pursuant to the section entitled `Payments by the President or a Member of the Senate' and a final decision entered pursuant to section 308(d)(2)(B), may petition for review by the United States Court of Appeals for the Federal Circuit.
(b) LAW APPLICABLE- Chapter 158 of title 28, United States Code, shall apply to a review under this section except that--
(1) with respect to section 2344 of title 28, United States Code, service of the petition shall be on the Senate Legal Counsel rather than on the Attorney General;
(2) the provisions of section 2348 of title 28, United States Code, on the authority of the Attorney General, shall not apply;
(3) the petition for review shall be filed not later than 90 days after the entry in the Office of a final decision under section 308(d);
(4) the Office shall be an `agency' as that term is used in chapter 158 of title 28, United States Code; and
(5) the Office shall be the respondent in any proceeding under this section.
(c) STANDARD OF REVIEW- To the extent necessary to decision and when presented, the court shall decide all relevant questions of law and interpret constitutional and statutory provisions. The court shall set aside a final decision if it is determined that the decision was--
(1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law;
(2) not made consistent with required procedures; or
(3) unsupported by substantial evidence.
In making the foregoing determinations, the court shall review the whole record, or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. The record on review shall include the record before the hearing board, the decision of the hearing board, and the decision, if any, of the Select Committee on Ethics.
(d) ATTORNEY'S FEES- If an employee is the prevailing party in a proceeding under this section, attorney's fees may be allowed by the court in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
SEC. 310. RESOLUTION OF COMPLAINT.
If, after a formal complaint is filed under section 307, the employee and the head of the employing office resolve the issues involved, the employee may dismiss the complaint or the parties may enter into a written agreement, subject to the approval of the Director.
SEC. 311. COSTS OF ATTENDING HEARINGS.
Subject to the approval of the Director, an employee with respect to whom a hearing is held under this title may be reimbursed for actual and reasonable costs of attending proceedings under sections 307 and 308, consistent with Senate travel regulations. Senate Resolution 259, agreed to August 5, 1987 (100th Congress, 1st Session), shall apply to witnesses appearing in proceedings before a hearing board.
SEC. 312. PROHIBITION OF INTIMIDATION.
Any intimidation of, or reprisal against, any employee by any Member, officer, or employee of the Senate, or by the Architect of the Capitol, or anyone employed by the Architect of the Capitol, as the case may be, because of the exercise of a right under this title constitutes an unlawful employment practice, which may be remedied in the same manner under this title as is a violation.
SEC. 313. CONFIDENTIALITY.
(a) COUNSELING- All counseling shall be strictly confidential except that the Office and the employee may agree to notify the head of the employing office of the allegations.
(b) MEDIATION- All mediation shall be strictly confidential.
(c) HEARINGS- Except as provided in subsection (d), the hearings, deliberations, and decisions of the hearing board and the Select Committee on Ethics shall be confidential.
(d) FINAL DECISION OF SELECT COMMITTEE ON ETHICS- The final decision of the Select Committee on Ethics under section 308 shall be made public if the decision is in favor of the complaining Senate employee or if the decision reverses a decision of the hearing board which had been in favor of the employee. The Select Committee on Ethics may decide to release any other decision at its discretion. In the absence of a proceeding under section 308, a decision of the hearing board that is favorable to the employee shall be made public.
(e) RELEASE OF RECORDS FOR JUDICIAL REVIEW- The records and decisions of hearing boards, and the decisions of the Select Committee on Ethics, may be made public if required for the purpose of judicial review under section 309.
SEC. 314. EXERCISE OF RULEMAKING POWER.
The provisions of this title, except for sections 309, 320, 321, and 322, are enacted by the Senate as an exercise of the rulemaking power of the Senate, with full recognition of the right of the Senate to change its rules, in the same manner, and to the same extent, as in the case of any other rule of the Senate. Notwithstanding any other provision of law, except as provided in section 309, enforcement and adjudication with respect to the discriminatory practices prohibited by section 302, and arising out of Senate employment, shall be within the exclusive jurisdiction of the United States Senate.
SEC. 315. TECHNICAL AND CONFORMING AMENDMENTS.
Section 509 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12209) is amended--
(1) in subsection (a)--