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Withdrawal/Redaction Sheet
Clinton Library
.~~~'~
DOCUMENT NO .
AND TYPE ~.
DATE
SUBJECTffITLE
RESTRICTION
001. letter
Claire Gonzales to The Honorable Elton Gal\egly (partial) (2 pages)
n.d.
P6/b(6)
002. report
Confirmation Issues Outline (partial) (l page)
7/12/1994
P5
003. memo
Peter Yu to Robert Rubin re: Affirmative Action & Procurement
Reform (2 pages)
9/28/1993
P5
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number: 9592
FOLDER TITLE:
[Equal Employment Opportunity Commission Confirmation Briefing Materials] [2]
ds56
RESTRICTION CODES
Presidential Records Act· [44 U.S.C. 2204(a)]
Freedom of Information Act· [5 U.S.C. 552(b)]
PI National Security Classified Information [(a)(l) of the PRA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
P3 Release would violate a }<'ederal statute [(a)(3) of the PRA]
P4 Release would disclose trade secrets or confidential commercial or
financial information [(a)(4) of the I)RA]
P5 Release would disclose confidential advise between the President
arid his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
btl) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
.
.
.'
Washington. D.C. 20507
,
. 1ft
May N, 1994
,Donsia st~ong
White House Domestic Policy
Eric Senunas
White House Legislative Affairs
·$~'1
Dear 9enS18 BAB Er c:
-
This package includes a variety of pieces that I thought .
might be helpful to you both. The pieces produced by my 'office
are in draft .fo~ a~d will be revised as needed. I wanted to
qive you an idea of how ~e are proceeding in pulling together
briefing material for, . the nominees.
Included'in this package are the following:
•
EEOC's FY 1995 Budget Request -- this has a lot of basic
background info~ation about the agency.
•
Office of Legal Counsel's April 1993 Report to the Chairman
-- Thomasina Rogers prepared this for the Interim Chair: it
outlines some of the fundamental structural problems within
the agency.
.
•
July 1993 GAO Testimony on the EEOC's performance presented
.to Chairman OWen's· Subcommittee.
•
OCLA Draft of working plan for confirmation preparation.
•
OCLA Draft of Pending Legislative Issues -- summarizes the
active and pending legislative matters in which the EEOC is
in'!olved.
•
OCLA Draft of current agency workload profile. This should
gi1Te you some idea of the significant back~og and reS(iUr~.:;::'12
problems the agency is facing.
~
List of SES slots at the EEOC with important vacancies
noted.
I hope this information is helpful. Dolisia, I will lut~;k
fnrward to your call to discuss the agenda for Honday's meetin~~
i3incerely,
~
C~,aire
Gonzales
�CONFIRMATION PLAN
I.
SUBSTANTIVE BRIEFING
The substantive briefing should include an overview of
current and upc'oming legislative and policy matters facing the
EEOC, as well as information on internal organizational matters
that directly affect the ability of the EEOC to perform its
statutory missions. A review of the Tra~sition Report and recent
communications with key Congresstonal figures make it abundantly
clear that current complex policy issues are only a portion of
the many problems which the agency must address in order to
function effectively.
.
The oversight committees, and interested parties in the
civil rights community, are extremely interested in the agency's
many institutional problems that now severely impair its ability
to serve the public. These problems include a wide range of
issues related to structure, management, operations, and
programs/strategic planning.
,
The followirig plan is the first .step in identifying and
gathering pertinent information about the EEOC to prepare the
nominees. for thei·r courtesy calls and for hearings, if any. At
this point the plan is quite detailed. This was ¢tone for two
reasons. First, it is important for the nominees and their
handlers to have a thorough underst.anding of the complex problems
facing the EEOC because the principal House and Senate oversight
subcommittees are very involved with the agency, to the point of
micro-managing at times. Tbis is particularly important because
of the length of time that the agency has functioned without
leadership selected by this administration. Second, this initial
detail is intended to provide some background and context to
assist in the development of both a confirmation strategy for the
current and future nominees' an~ a long-term plan for the agency.
A.
External Eval ua tions
1.
Formal Reports on Agency - Prepare short summaries of
formal reports on the EEOC, including:
'
•
Transition Report
•
summary of pertinent issues found in appendices
•
1992 Seriate Oversight Hearing Testimony (Kristina
Zahorik of Simon's staff sending copies) (JP)~
•
Review House Oversight. Hearings for last five years
•
JP and JD denote Juli~ Pershan and John Dean, Schedule C's in
OCLA/EEOC; SA is sylvia Anderson, career legislative affairs specialist
in O C L A / E E O C . ·
.
1
�•
GAO reports & testimony from last five years
•
EEOC: An OVerview, Testimony before Subcommittee
on Select Education and Civil Rights July 27, 1993
(JP and JD)
.
2
�•
Equal Employment Opportunity: EEOC and State
Agencies Did Not Fully Investigate Discrimination
Charges, Oct. 11, 1988 (Owens/Cuprill interested
•
•
in this one)
JP to cQllect other pertinent GAO reports
u.s. Commission on Civil Rights reports from last five
.
yea~s
•
EEO Rights for Federal Employees
•
JP to
co~lect
other pertinent USCCR reports .
2.
Group Surveys - Develop comprehensive list of
·constituency groups to survey - Solicit input on principal issues
of concern to communities/groups affected .. Contact list should
be representative of communities and interests served.
a.
Contact List to include (in alpha) :
•
•
•
•
•
•
•
•
African American
Asian/Pacific American
Business/Employers
Hispanic/Latino
L.abor
Native'American
People with disabilities
Religious Community - (Catholic, Jewish, Moslem,
Protestant)
Women
•
b.
Survey Protocol - Develop questions to ask and
format for response (2-3 page limit); assign contacts to team
members.
c.
Summarize Responses - Prepare short summaries of
principal issues by communities/groups ..
B.
Internal Issues - Structural, Administrative, Programmatic &
Operational
The status of the agency's management and operations will be
a critical part of any discussion about the future 'o~ the agency
and the fulfillment of its mission. Nominees need to have a very
good idea of the current problems facing the agency, which may
call for the very structure of the agency to be re-examined and
redesigned.
.
1.
Summarize agency's structure, enforcement
responsibilities, and administrative processes
a.
Organizational Structure
•
Role of the Commissioners ~- Suggest .that this
issue be addressed by the Administration, rather
than leaving it to· the incoming Chair,
3
�,
particularly because of the timing and importance
of other Commissioner nominations.
.
•
Critical personnel issues -
i. Vacant SES' slots in critical positions that can be
filled with political appointees
Key Positions:
•
•
Director, Office of Management
Associate General Counsel for Systemic
Litigation'
,
,(also vacant - Information Resources
Management, Office of Management)
ii. Received unconfirmed report of extremely high SES
bonuses given recently (e.g., $15,000); based on
performance reviews which are tied to charge
processing record; rubber stamped by Performance
Review Board. This is a problem because the
agency is routinely criticized for 'the
inordinately high "no cause" finding/closur'e'
rates, but this practice indicates that the
agency/s leadership emphasizes quantity rather
than quality of investigations/charge processing.
•
This'personnel information is not
confidential; talk to EmilySheketoff at OPM
about gather specific data.
iii. Liberal use of non-reimbursable outside "details";
this is a very questionable practice because of
the severe staffing shortages in the most
important areas of the agencies (investigators);
also, some 'reports of burrowing.
.
b.
'Statutory Enforcement Responsibilities
c.
Administrative Processes
•
•
Private Sector -- note differences by statute
(Title VII v. ADEA)
Federal Sector
d.
Additional Agency Responsibilities
•
EEO Surveys -.reexamine collection methods and use
of data compiled
.,
Executive Order 12067 ~ EEOC to coordinate
development of federal EEO policy (see Legal
Counsel report discussing the need for EEOC to
reclaim its primary role)
4
�e.
•
Continuation of Thomas' policy of full
investigation --this is critical because many
interested parties attribute ever-increasing
backlog to this enforcement policy.
•
Lack of coordinated policy development plan or
process -- policy made on ad hoc basis, usually
from the ground (field) up, rather than top down
•
2.
Identify miscellaneous administrative policy
·issues affecting performance.
Lack of systemic litigation strategy-- would
affect charge processing from intake forward
Compile current performance data
a.
Review existing quarterly and annual reports' -
Summarize status of charge caseload, current and projected
problems related to charge processing; OGC - litigation issues;
federal sector inventory and issues; management, budget, and
planning issues.
b.
Current data' on charge an,d litigation caseload
Summarize recent data on receipts, cause/no cause determinations,
closures, litigation caseload, systemic litigation caseload,
litigation programs or plans (if any) .
c.
Pending or Upcoming Legislative and Policy Issues
The nominees should be briefed on all legislative issues
involving EEOC that are either currently' under active
consideration by Congress (e.g., the Federal Employees Fairness
Act) or that are pending without much activity, but are still
important (e.g., Justice for Wards Cove Workers Act and Equal
Remedies). Additionally, the nominees should be aware of all
pending policy issues within the Commission such as the
Consolidated.Workplace Harassment Guidelines (that the religious
right is mobilizing around because of the inclusion of religion) .
1.
Preparation of Legislative Update, including current
status, EEOC response, available sources of information. SA and
JP to prepare.
D.
Applicable Administra'tion Directives. (Executive Orders,
National Performance Review Direct~ves, etc.)
Some activity has occurred within the agency to respond to
·the various Administration directives that apply to or affect the
agency. A summary of applicable items with any agency activity
related thereto will be compiled for the nominees.
5
�II.
A.
HILL STRATEGY
Senate
1.
Past Confirmations
•
Review files of past EEOC confirmations -- hearing
testimony
•
Review Deval Patrick's confirmation for tips (Trasvifia)
•
Prepare bios for each Senator of the committee -
identify issues of concern from recent inquiries and
requests
I
2.
Labor & Human Resources Committee Staff -- Ongoing
.consultation about their preference for confirmation format,
3.
etc~
Identify Key Visits
a.
Labor & Human Resources Committee Members
•
•.
•
•
b.
committ~e
Non-L&BR
•
•
c.
Kennedy
Kassebaum
Simon, Chair, Employment and Productivity
Subcommittee (Oversight)
Thurmond, Ranking Minority Member, Employment
and Productivity Subcommittee (Oversigpt)
contacts
Governmental Affairs -- Glen/Roth [Federal
Sector Oversight]
Appropriations/Commerce, Justic~, State, The
Judiciary & Related Agencies -
Hollings/Domenici
Others
-
(Leadership?)
6
�•
B.
House
Contacts
1.
I~entifyKey
•
Major oWens, Chairman, House Select Subcommittee on
Civil Rights and Education, Committee on Education and
Labor
•
Maria .Cuprill, Staff Director of Select
Subcommittee (and
•
wife)
Caucuses
•
•
•
•
Owens~
Hispanic Caucus
.Black Caucus
Womens' Caucus
Other Committees/Subcommittees of Jurisdiction?
•
•
•
Judiciary (Brooks)/Civil & Constitutional Rights
. (Edwards)
Post Office & Civil Service (Clay)/Civil Service
(McCloskey) -- [Federal Sector]
~ppropriations (Obey)/Commerce, Justice, State and
JUdiciary (Mollohan)
/
"plan"
5/12/94 - 8:45/cg
7
�PBHDIBG LBGISLATrvB I88OB8 '
%he Federal Employee Fairness Act of 1993, B.R. 2721/S.404
Introduced'in the Senate on February 18, 1993 by Senator John
Glenn and in the Bouse on July 23, 1993 by Congressman Matthew G.
Martinez, the proposed legislation revises the administrative
procedures by which federal employees bring employment
discrimination claims. Under both the Bouse and Senate
proposals, responsibility for administrative ~eview of claims of
employment discrimination in the federal sector is· transferred
~romthe charged agency to EEOC.
~e
intent of the prop~sed legisiation is to: 1) eliminate the
real and perceived conflict of interest in the current process
whereby the agency reviews its own discriminatory conduct; 2)
expedite the process by streamlining proc~dures and providing
mandatory time limits for processing; and-3) deter future
discriminatory conduct by providing sanctions against federal
employees who have discriminated.
'~esenate bill, S. 404, was marked-up and approved by the
Committee on Governmental Affairs Qn June 24, 1993; the Committee
report was filed on october 27, 1993 (S. Rept. 103-167). The
,lIeasure is ;,now awaiting consideration by the full Senate.
In the Bouse, B.R. 2721 was jointly referred to the House
Committee on Education, and Labor and the Committee on Post Office
and Civil Service. The bill was marked-up on January 26, 1994 by
'the Subcommittee Qn Select Education and Civil Rights and cleared
by the full Committee on April 13, 1994. The Civil Service
Subcommittee marked-up the bill on April 20, 1994 and it was
cleared by the full Post Office and, civil Service Committee on
.May ~1, 1994.
Prior to the DArk-up of the bill by the full Committee on
Education and Labor, EEOC began working closely with the Office
of Manaqementand Budget and other agencies to develop principles
to be,included in any version of the legislation hoping to gain
the Administration's support. Negotiations between the
Administration and the staffs of both House Committees of
jurisdiction continued through the May 11 mark-up by the
Committee on Post Office and Civil Service.See'April 13 and May
~1 letters ~rom OMS Director Panetta to House Committees on
Education and Labor 'and Post 'Office and Civil Service.
Preliminary EEOC cost estimates for enforcing provisions such as
those contained in S.404 andH.R. 2721 range from $70 million and
more than 775 additional staff to $98 million and nearly 1100
additional staff.
f
�AGB
1)l:8caIXXD~l:OB
DT BKPLOYKBlft' I
Age Discrimination in Employment Amendments'of1993, H.B. 2722'
On MarCh 24, 1993, the House Subcommittee on Select Education and
Civil Rights conducted an oversight hearing on two sunsetting
provisions of the 19,86 Amendments to the Age Discrimination in
Employment ,Act -- scheduled to expire on December 31, 1993 -
which provided exemptions permitting age to be considered in
hiring and retiring public safety officials and tenured
university faculty.
~e
1986 Amendments to the ADEA also charged EEOC and the
Department of Labor to conduct a study to determine whether tests
were available to replace age as a predictor of job performance.
The Congressionally mandated study, Alternatives to Chronological
Age in Determining Standards of suitability for Public safety
Jobs, conducted by Penn State University Center for Applied
Behavioral Science, was transmitted to Congress in october 1992.
~e study concluded that valid and job-related tests are viable
alternatives to basing hiring and retirement decision on age
alone.
Members of the Penn State research team testified at the public
hearing on the findings of the study and recommended that the
temporary exemptions under the ADEA be allowed to expire.
Witnesses representing police and fire organizations, however,
were severely critical not only of the methodology used in the
Penn State study, but also cited the lack of specific tests and
guidelines by the EEOC. These organizations supported allowing
the public safety exemptions to continue.
Following the public hearing, congressman Major OWens introduced
B.R. 2722 ,on Juiy 23,1993.
The proposed-legislation would amend the ADEA by permitting all
state and local governments to use age permanently as a basis for
hiring and retiring law enforcement officers and firefighters.
In addition, H.B. 2722 requires that EEOC conduct a study
regarding tests that can be used by public safety departments in
lieu of ~ge and authorizes $5 million for the study.
B.R. 2722 was marked-up by the ~ubcommittee on Select Education
and Civil Rights on August 5, 1993 and approved by the full
Committee on Education and Labor on October 19, 1993. See H
Rept. 103-314. The measure was approved by the ,full House on
'November 8, 1993 and received in the Senate and referred to the
Committee on Labor and Human Resources on November 9, 1993.
"
on
April 14, 1994, provisions of H.R. 2722 were incorporated into
the House crime bill, the Violent Crime Control and Law
2
'
�",
..
Enforcement Act of 1994 (B.R. 4092/B.R. 3355) in the form of an
amendment by Rep. Brooks. The crime bill passed the Bouse on
April 21 'and is currently pending con(erence between the Bouse
and senate.
on April 19~'1994; the Senate Subcommittee on Labor held a public
hearing on'H.R. 2722. Subcommittee Chairman Metzenbaum publicly
stated bis "opposition to the measure and vowed that if the bill
was attached. to the House-passed crime bill in the Senate, ~e
would filibuaterfor its defeat.
.
..
EEOC declined the SUbcommittee's request to testify at this
hearing', not willing to officially oppose the bill while the
Administration'maintains rio official position ,on the legislation.
~n an April 19 letter to the Subcommittee, however, Chairman
Gallegos rebutted criticisms levied against the Penn state study.
If signed into law, H.R. 2722 would undercut years of EEOC
litigation (pre~1987) where the agency routinely challenged the
use of arbitrary age limitations by police and fire departments.
'Further, the study required under this bill is impractical and
redundant of the recently completed Penn state study. See EEOC
. report on H.R. 2,722 to House ,Education and Labor Committee
Chairman William Ford dated September 22, 1993.
currently, no fUrther Committee action has been scheduled on this
bill.
'
.elated Legislation:
B.R. 117, Government Organization and Employ••• , Titl. 5 USC,
.a.anbant.
Introduced in the House on' January 5, 1993 by 'congressman John
Duncan, Jr., the bill repeals provisions of Title 5 USC which
permit federal agencies to establish entry level age restrictions
£or federal law enforcement.officers and firefighters.
bill was referred to the House Committee on Post Office and
Civil Service. 'No further committee action has been scheduled on
this bill.
~e
B.R. 4227, Governm.nt organization and Employ•••, Titl. 5 USC,
banbeDt.
~ntroduced in th~ House on April 14, 1994 by Congressman Thomas
Hanton, the bill amends Title 5 USC to provide that mandatory
retirement age for members of the capitol Police be made the same
as that for law' enforcement officers.
.
Tbebill was jointly referred to the House committee on Post
3
�Office and Civil Servise and Committee on House Administration.
No £urther Committee ,action has been scheduled on this bill.
8.1984, GoverDa8llt orqaDi.atioD ADel _ploye••, Title 5
:,:...
.... : ..:.
usc,
;ii(>: ,a..Db8llt.
Xntroduced in the Senate on March 25, 1994 by Senator Howard
Ketzenbaum, the bill repeals provisions of Title 5 USC permitting
.andatory retirement age for federal law enforcement officers and
£ire~igbters, Capitol Police, and air traffic controllers.
~e bill vas referred to the Senate Committee on Governmental
Affairs. No further Committee action has been scheduled on this
bill,.
~%GIOUB
BARASSKEBTI
EEOC decided to issue proposed new guidelines on workplace
barassment because it believed that it would be helpful to
employers and employees to consolidate in one set of guidelines
the existing legal prohibitions against workplace harassment on
all of the bases covered by laws enforced by the Commissi~n.
commission also believed that because of recent public
attention on sexual harassment in the workplace, it was
particularly important at this time to reemphasize that
barassment on, all other bases protected by EEOC-enforced laws is
equally discriminatory.
~e
October 1, 1993, the Commission published its
proposed Guidelines on Harassment Based on Race, Color, Religion,
Gender, National origin, Age and Disability in the Federal
Register for public comment. Wben,the comment period closed on
November 30, 1993, EEOC had received a total 86 comments, of
'whi~h more than, 30 expressed concerns about the effect of the
proposed Guidelines on religious freedom'guaranteed by the First
, Amendment.
~erefore,on
7n December 1993, EEOC began to receive congressional inquiries
onbebalf of individuals seeking to remove religion from the
proposed Guidelines. In addition, by letter dated February 15,
1994, Congressman Howard (Buck) McKeon and 43 other Melnbers of
Congress wrote EEOC expressing concern about the inclusion of
religion in the consolidated Guidelines. Congressman Frank Wolf
£urther expressed his concerns at the March 24, 1994, House
Appropriations Subcommittee hearing on EEOC's fiscal year 1995
budget.
During this rulemaking process, the Commission has attempted to
learn of the concerns of groups opposed to the Guidelines.
~oward this end, EEOC has met with Christian legal groups and a
4
�'.
-.representative of the Americf1n civil Liberties Union, as well as
concerned Members of Congress. The Commission has also met with
representatives of,People for the American Way, the Baptist Joint
Committee, the American Jewish Congress, and other religious
groups who have stressed th~ importance of keeping religion. in
.the Guidelines.
.
EEOC continues to review all comments submitted, but has not made
any determinations concerning required changes to the Guidelines.
~e Commission is carefully studying this issue and will seek
expert advice, -if ~ecessary, before deciding whether religion
should be treated separately from other bases of harassment.
Because of the continued concerns expressed on the issue, the
co~ission recently voted to extend the official comment period
on the consolidated harassment. Guidelines an additional 3.0 days.
The notice of the extension will be published in the Federal
Register on May 13, 1994.
~e
comments that the commission has received between the close
of the first comment period on November 30, 1993 and the date the
comment period is officlally reopened on May 13 will be reviewed
informally and will be considered in any recommendation made to
the Commission on the Proposed Guidelines.
~BGISLA~O. ~OaDDRBSS
CBHWBR y. HICKS:
BUPRBKB COURT DBCISIOB IB ST. MARY'S HONOR
25, 1993 decision of the Supreme Court in st, Mary's
Honor center y. Hicks in~reased the burden of proof on plaintiffs
in employment discrimination cases •
.
~e ~une
~
' ' \
The Commission and the united States submitted an amicus curiae
brief in Hicks arguing that a showing in a Title VII case that
the employer's explanation for its actions is not credible is
sufficient to meet the plaintiff's burden of proof. The Supreme
Court in Hicks rejected this position.
7n a September 28, 1993. response to a request for the
Commission's views on the Hicks decision from the House
Committees on Education and Labor and the Judiciary, EEOC
Chairman·Galleg~s wrote that the commission had not changed its
position on this issue, and maintained that Hicks was wrongly
decided. The letter further stated that the Commission believed
the decision WOUld. have a negative effect on its enforcement
efforts and, therefore, should be overridden by appropriate
. legislation.
·The following bills introduced in the 103rd Congress would
restore the standard for proving discrimination to the pre-Hicks
standard:
.
5
�"
Civil Riah$s standards Restoration Act. H.R.3680/S. 1776
,
'
on Hovember' 22,1993 Congressman Major OWens introduced H.R. 3680·
in the House; the measure was jointly referred to the House
Committee on Education and Labor and Committee on the Judiciary.
on the same date, Senator Howard Metzenbaum introduced the Senate
companion bill, S. 1776; the bill was referred the Senate
'Committee on Labor and Human Resources.
'
, Employment Discrimination Eyidentiary Amendment of 1993. H.R.
2787
'
Xntroduced in'the House on July 28,1993 by Congressman David
Hann, the measure was referred to the Committee on Education' and
Labor.
Disparate Treatment Employment Discrimination Amendment of 1993.
H.R. 2867
Xntroduced on August 4,' 1993 by Congressman Alcee Hastings, H.R.
2867 was referred to the House Committee on Education and Labor.
,No further committee actions have been scheduled on these bills.
CIVIL RIGHTS ACT
aTOBIOa
O~
1tt1PROVISIONS RELATING TO WARDS COVE y.
.
Justice for Wards Cove Workers Act. H.R. 1172/S.1037
T.bis 1eqislation amends the Civil Rights Act of 1991 to eliminate
the exclusion from coverage of the Act to disparate impact cases
filed before Karch 1, 1975 and decided after October 30', 1983.
Xntroduced in the House· on 'March 2, 1993 by Congressman Jim
McDermott, H.R.1172 was 'jointly referred to the Committee on
Education and Labor and Committee on the Judiciary. The measure
wasaarked-up on March 17, 1993 by the House Subcommittee on
civi~ and Constitutional Rights.
.
'
Xn the senate, 'S. 1037 was introduced on May 27,: 1993 by Senator
Patty Murray and referred to the Committee on Labor and Human
Resources •
.
further Committee actions have been scheduled on these bills.
_0
�.
.
~
LBGI8LATIOB TO BBKOVB ~8.0. DAMAGES:
Equal Bemedies Act of 1993. H.R. 224{S.17
·The legislation removes provisions limiting the dollar amount of
damages awarded in cases of intentional employment
discrimination.
B.R. 224 was introduced in the House on January 5, 1993. by
Congresswoman Barbara Kennelly and jointly referred to the
Committee on Education and Labor and. Committee on the Judiciary.
The senate companion bill, S. 17, was introduced on January 21,
. 1993 by Senator Edward Kennedy and was referred to the Senate
Committee on Labor and Buman Resources.
No further committee
actio~s hav~
been scheduled on these bills.
LaBOlt LA. COVDJ\GB OP JlOREIGN VESSELS:
'Coyerage of lederal Labor Laws to Foreign Vessels. Extension.
B.R. 1517{S. 1855
~be legislation extends coverage of the National Labor Relations
.Act and the lair Labor Standards Act to certain foreign vessels
transporting passengers to and from a place in the U.S.
H.R. 1517 was introduced in the Bouse on March 30, 1993 by
Congressman William Clay and was referred to the committee on
Education and Labor. The measure was marked-up by the
Subcommittee on Labor standards, Occupational Bealth and Safety
on October 28,1993 and approved by the full committee on
Education and Labor on April 13, 1994.
Tbe Senate counterpart, S. 1855, was introduced on February 11,
1994 by Senator Harris Wofford and was referred to the Senate
Committee on Foreign Relations. No further action has been
scheduled.
auuu, DBUSJIBlft':
Sexual Harassment Prevention Act of 1993. H.R. 2829{S. 1979
This legislation requires private, federal and congressional
employers to post notices concerning sexual harassment which are
approved or prepared by EEOC; to provide annual notices to
individual employees containing information to.resolve
allegations of sexual harassment; and requires that EEOC make
model notices and voluntary guidelines for procedures to address
sexual harassment allegations •
. B.R•.2829 was introduced in the House on August 2, 1993 by
',.
�George Killer and was jointly referred to the House
committees on Education and Labor, Committee on House'
Administration, and Committee on Post Office and civil 'Service.
~congressman
Senate companion bill, S. 1979, was introduced on Karch 24,
1994 by senator Patty Murray and was referred to the Senate
. Committee on Labor and Humanlesources. No further action has
.been scheduled.
~e
Harassment-free Workplace Act. S. 1864
bill amends Title VII of the Civil Rights Act of 1964 to
prohibit sexual harassment by employers of fewer than 15
eDiployees.
~e
Introduced in the Senate on February 24, 1994 by Senator Dianne
Feinstein,.the measure was referred to the Committee on Labor and
Human Resources.
Economic Equity Act of 1993
A comprehensive bill to ensure economic equity for American women
and their families by promoting fairness in the workplace;
creating new economic opportunities for women workers and women
business owners; helping workers better meet the competing
demand. of work and family; and enhancing economic self
.sufficiency through public and private reform and improved child
support enforcement. The legislation contains the provisions of
the Sexual Harassment Prevention Act and the Federal Employee
Fairness Act.
Introduced in the House on July 28, 1993 by Congresswoman Pat
Schroeder, the bill was jointly referred to the House Committees
on Armed Services; Banking, Finance and Urban Affairs; Education
and Labor; Foreign Affairs; House Administration; Natural
.
Resources; the Judiciary; Post Office and Civil Service; Rules;
Small Business; and Ways and Means. No further action has been
scheduled.on the bill. '
8UUAIt ORlmr.rATIOB:
Ciyil Rights Amendments Act of 1993. H.R. 423
'filis bill amends the Civil lights Act of 1964 and the Fair
Housing 'Act' to prohibit discrimination on the basis of sexual
,orientation.
Introduced in the House on January 5;'1993 by congressman'
Edolphus Towns, the measure was jointly referred to the Committee
on Education and Labor and the Committee on the Judiciary •
•
�I
........
"
Civil Bights Act of 1993, R.R. 431
R.B: 431,prohibits discrimination on the basis of sexual
orientation in employment, education, credit, housing, sale or
use afgoOds or services, orin federally assisted programs.
7ntrOduced.:in the House on January 5, 1993 by Congressman Henry
Waxman, the measure was'jointly referred to the Committee on
.Education and Labor and the Committee on the Judiciary.
Employment Dispute Resolution Act of 1993. H,B. 2016
This bill amends Title VII of the Civil Rights Act of 1964 and
the Americans with Disabilities Act to provide pre-suit mediation
of employment related disputes by the Federal Mediation and
Conciliation Service or other mediator.
.
7ntrOduced in the House on May 6, 1993 by Congressman steve
Gunderson, the measure was jointly referred to the Committee on
Education and Labor and the Committee on the Judiciary.
JlUJDATORY UBI'l'RATIOII:
Protection from-coerciye Employment Agreements Act. S. 2012
s. 2012 amends Title VII of the Civil Rights Act of 1964; the
Americans with Disabilities Act; and the Age Discrimination in
Emplo~ent Act to proh~bit employers from requiring employees to
submit employment discrimination claims to mandatory arbitration.
7ntrOduced in the Senate on April 13,'1994 by Senator Russell.
,Feingold, the measure was referred to the Senate Committee on
Labor and Human Resources. .
»AY JlQlJIftl
Pay Egyity Employment RefOrm Act of 1994. H.R. 3738
. (To be completed)
"1lUBRBI1!'IAL ftD'.rXBJ1T I
Civil Bights BestorationAct of 1993, S. 53
(To be completed)
,
�Aft01ll1BY8 .D81
CiVil Rights Act Of 1964, Amendment. U.B. 1215
(To be completed)
10·
�,
,~
-..
Context: In FY 1980, EEOC received 56,362 new private sector
charges to process with a tot~l staff of 3,390. In FY 1993, EEOC
received a record-breaking 87,942 charge receipts, with a staff
of 2,891 -- 559 fewer than ~n 1980.
Charge Reoeipts: EEOC's incoming work (receipts and net
transfers/deferral from FEPA1 ) has increased 41 percent from 1990
to 1993.' Receipts during FY 1993 were 21.6 percent higher than in
FY 1992. In FY 1993, charges filed under the ADA (15,274) or
17.4 percent of total receipts, greatly, contribut'ed to the
increase.
'
Despite higher closure rates, current staffing levels cannot
keep pace with the increase in charge receipts. EEOC now faces an
overall ratio of resolutions to receipts which is significantly
less than one-to-one. For every new charge EEOC receives, it
resolves, only .78 of its existing charges, (.94 in FY 91, .89 in
FY 92). This has led to an increasingly higher inventory of
pending charges.
EEOC had 73,124 private sector charges
pending at the end ·of FY 1993, the highest recorded in more than
10 years and '20,268 more than reported at the end of FY 1992.
If EEOC accepted no new charges and productivity levels remained
constant, it would take the Commission 12.2 months to resolve
this caseload (called "months of pending inventory") '. The
average EEOC workload equated to 92.8 charges per investigator,
up 25.2 cases from the, 67.6 average caseload in FY,1992.
Pending Inventory:
Without additional staff' these trends are expected to
continue. At the end of the second quarter of FY 1994, EEOC's
pending workload is 85,212, or 16.6 months of pending inventory.
By the end of FY 1994 pending charges are expected to reach over
the 100,000 mark, creating 18.6 months of inventory.
Systemios: During FY 1993, EEOC initiated 28 new systemic
charges, down from 50 charges in FY 1992. EEOC resolved 41
systemic charges FY 1993 compared to 42 resolutions in FY 1992.
'Systemics are increasing in FY 1994. According to
preliminary figures,' at the end of the second quarter, ,EEOC
approved 3J.. systeTl1ic charges and resolved 19.
1 Fair Employment Practice Agencies
(FEPAs) are
work-sharing agreements with EEOC.
age~cies
with
�·
.
FEDERAL SECTOR PROGRAMS
Charge Receipts: The increase in federal complaint receipts
coupled with the n'ew Regulation 1614 requirements of processing
hearings within 180 days ~trained the Commission's resources
during FY 1993 and is continuing to do so during the first five
months of FY 1994. EEOC received 8,892 requests for hearings on
Federal complaints during FY 1993, a 28.6 percent increase over
FY 1992. During the same period, requests for appeals of Federal
complaints increased 6 percent, over FY 1992, but are showing an
even greater rate of increase ·in FY 1994 (approximately 14
percent increase of the first five months of over the same period
in FY 1993), Hearing requests are up by 20 percent for the
comparable five-month period.
Pending Inventory: At the·end, of FY 1993 there were 3,991
pending charges or'5.4 months of inventory. In FY 1994 these
figures are expected to rise to 5,064 pending charges and 6.5
months of i n v e n t o r y , '
LITIGATION PROGRAM
Tracking: The Office of General Counsel's (OGC) tracking
systems are largely inadequate. Therefore, EEOC's data from FY
1993 and early estimates from FY 1994 are preliminary.
Suits Filed: OGC filed 481 suits in FY 1993, a 7.6 percent
increase from the 447 suits filed in FY'1992. By the end of FY
1993, OGC experienced a 24.1 increase from FY 1992 in the number
(825) of Presentation Memoranda {charges to be considered for
litigation} received from the field. The overall increase in
charge receipts should result in an increase in the number of
cases that field office will submit for litigation consideration
in the future.
I
, C~ass Action Suits: In FY 1993, the agency brought more
class action'lawsuits (63) than in FY 1992 {47}. In the first
,quarter of ' this fiscal year, the Commission has brought 24 class
action lawsuits.
APPROPRIATIONS
EEOC's budget request for FY 1995 is $245,720,000, a'6
percent increase or $15,720,000 over the fiscal year 1994
authorization of $230 million. This increase includes funding
for an additional. 170 FTE.
�.
-..1 :
..
.,..
~
I
,,'
SES Members
.
, Headquarters - 25 slotS/S vacancies
23 alm/D vacancies
Field TOTALSES
48 slots/6 vacancies
·1.
V8C31t
Chief of Staff
-2.
Vacart
(SES slot· no position classified)
- 3.
Vacart
Director. Office of Communications & Legislative Affairs
(G)
4.
WUliam D.Miller. II
Inspector General
(CR'
5.
James R. Neely. Jr.
Deputy General Counsel
CG)
Yacart
Associate General Counsel for Systemic Litigation
Services
'
(G)
Associate General Counsel for Appellate Litigation
Services
CG,
Associate General Counsel Litigation Management
Services
(G)
- 6.
7.
8.
9.
Gwendolyn, Y. Reams
Philip 8. Sldover
Thomasina V. Rogers
CDetalled to White House.
CG,
(G)
'Legal Counsel
10. Elizabeth M. Thomton
Deputy Legal Counsel
(G)
11. Nicholas M.lnzeo
Associate Legal Counsel
(G)
12-
Ronnie Blumenthal
Director. Office of Federal Operations
(G)
Daidra Flippen
Director. Federal Sector Programs. OFO
(G,
Director. Appellate Review Programs. OFO
(G)
·13.
14. Hilda Rodriguez'
0
15. James H. Troy
Director. Office of Program Operations
(G,
16. Paula Choate
Director. Field Management Programs· West. OPO
(CR)
17. Godfrey Dudley
Director. Field Management Programs- East. OPO
(CR)
18. R. Edison Elldns
COn'lPA'
Director. Operation. Research & Planning Program. OPO
CG,
19. James N. Finney
Director. Systemic 'n"e$tigation. & Review Programs. OPO
(G,
20. Michael J. Dougherty
.Director. Charge Resolution Review Program. OPO ,
(G)
21. Polly Mead
(Working on TAT..
-22. Y8CSIt
CBillingsley-Acting'
. CR • Caraer Reserved
G - General
. Special Assistant. OPO
Director. Office of Management
(G,
(G)
�-23.
Vacart
Information Resourcel Management. OM
(GJ
24.
Kassie A. Billingsley
Director. Financial & Resource Management Services. OM
(GJ
25.
Patricia Cornwell Johnson
Director, Human Resources Management Services. OM
CG)
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�Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
AND TYPE
001. letter
SUBJECTffITLE
DATE
Claire Gonzales to The Honorable Elton Gallegly (partial) (2 pages)
n.d.
RESTRICTION
P61b(6)
This nlarker identifies the original location of the withdrawn item listed above.
For a complete list of items withdrawn from this folder, see the
WithdrawallRedaction Sheet at the front of the folder.
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number: 9592
FOLDER TITLE:
[Equal Employment Opportunity Commission Confirmation Briefing Materials] [2]
ds56
RESTRICTION CODES
Presidential Records Act -[44 U.S.C. 2204(a)]
Freedom of Information Act· [5 U.S.C. 552(b)]
PI
P2
P3
P4
bel) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOlA]
b(3) Release would violate a Federal statute [(b)(3) of the FOlA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the "'OIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOlA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release would disclose geological or geophysical information
concerning wdls [(b)(9) of the FOIA]
National Security Classified Information [(ale}) ofthe PRA]
Relating to the appointment to Federal office [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential conmlercial or
financial information [(a)(4) of the PRA]
P5 Release would disclose confidential advise between the President
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Releascwould constitute a clearly unwarranted invasion of
personal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfde defined in accordance with 44 U.S.C.
2201(3).
RR. Document will be reviewed upon request.
�..
'
U.S. EQUAL EMPLOYMENT OPPORTUNIlY COMMISSION
Washington, D.C. 20507
U.s. House.of Representatives
Washington,' D.C.
205~5
Dear Congressman
This
behalf of
promotion
to YUUL inquiry dated June 6, ~994, on
garding his being passed over' for a
woman or minority.
'
The Equal Employment Opportunity Commission enforces Title
VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, t t
seg., which prohibits discrimination on ,the bases of race, color,
sex, religion. and ,national origin. As an initial matter, you
should note that the Commission can.p.ot assess the validity of
employment practices outside the context of a specific charge of
disc
There is insufficient information in the letter
from
to determine whether the conduct about which he
,
in the context of an EEOC investigation or
other resolution of a claim of discrimination. ' Thus, we are only
able to provide general information regarding the circumstances
under which an employer may target women or minorities for
employment opportunities.
'
.....
The goal of Title VII is equal employment opportunity. The
,and".the, courts have ",:z::ec::ognized that,- ,historically" ","
, ' ''', -,.:
employment -practi'ces,especially' hiring' and-' promoti'ons, have"been ","
skewed against women and minorities. To correct this problem,
courts have said that employers may engage in affirmative action
measures in which race or gender may be one factor in some
employment decisions. Under Title VII, however, race, gender, or
national origin cannot be the only basis for selection and rigid
otas are not permissible. , An employer may voluntarily adopt an
ffirmative action plan or may be required by court order to
institute an affirmative action plan after litigation or as
settlement of a claim of discrimination. See United Steel
Workers v. Weber, 443 U.S. ~93 (1979), and Johnson y.
,
'''Transportation Agency;" Santa'ClaraCounty,"Calffornia'," 480 U:8";"- , ","
6~6 (~987).
.
,EEOC
h
Three criteria must be met for a voluntary affirmative
action p~anto be legal under Title VII. See Weber, 443 U.S.
~93, and Johnson, 480 U.S~ 6~6.
First, the plan must be intended
to eliminate a manifest imbalance of women or minorities in the
employer's workforce in traditionally segregated job categories.
This means an employer must show that there is a disparity
between the representation of a targeted group in the employer's
workforce and in the relevant labor pool. An employer is not
,
'
�..
The Honorable Elton Gallegly
Page Two
required under Title VII to show that it discriminated in the
-past or that it is responsible for the disparity in its workforce
to justify implementing a voluntary plan.
Second, an affirmative action plan cannot unnecessarily
trammel the rights of the non-targeted group. Thus, the plan
cannot unduly bar non-targeted employees from employment ,
opportunities. For example, an employer cannot require ,that only
women be promoted to management ranks until the number of female
managers represents the 'number of female managers in the relevant
labor pool. However, an employer could hire members of the
protected group into a percentage of jobs as long as the employer
did not restrict hiring to only individuals of the protected
group. The courts have required that a targeted individual be
qualified for the position at issue, although that person need
not he the ,most qualified individual. Johnson, 480 U.S. at 638.
Finally, an affirmative action plan Inust be temporary and
designed oply to attain a balanced workforce, not to maintain a
racial balance. The plan need not have a specific te~ination
date when its requirements are flexible. After the goals of the
plan have ,been met, an employer cannot continue the plan to
maintain a balanced workforce.
b~
~'.;.:~:.
should also be aware that employers may be
subj
federal affirmative action requirements, such as
those for federal contractors under Executive Order 1i246. For
"~.:~ ..",£urther: inf.orinatI6n·:.a:b6U:t:·~,-a:Efi:rmatlvet'·action·,-requir~meIlt6 ',for"':.,,, ..:.' :~:,.:.: ..~ ......,..
federal contractors, he may wish to contact:
Office of Federal Contract Compliance Programs
Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
(202) 523-9475
We hope this information is helpful to you .
.
-,-~"""Sincerely ,
~~
Claire Gonzales
Director of Communications
and Legislative Affairs
CLINTON
LIBRARY PHOTOCOPY
�BRUCE FEIN
~
...
Bankrupting
The Religious Freedom Restoration Aut
. Last April, lhe US. oepanmenlof
Justice filed a brief urging a pinched
and thoroughly unpersuasive inter
pretation of the Religious Freedom Resto
ration Act. Signed by President Bill Clin
~n last year amidst hallelujahs of rejoic
mg, the act had elicited almost universal
'support from a panoramic array of reli
gious groups. But the brief submitted before the U.S. Court of Appeals for the 8th
Circuit in Christians v. Cryslal Evangeli·
cal Free Church-the maiden expression
of the Justice Department regarding the
. application of the RFRA-seems a be·
trayal descended from Judas Iscariot, an:
other campaign promise compromised by
"the Clinton administration.
The facts in Christians /Ire simple and
undisputed: Bruce and Nancy Young filed
a Chapter 7 bankruptcy petition Feb. 3,
1992. During the preceding year, the
couple had donated $/3,500 to Crystal
~vangelical Free Church when they were
IOsolvent. It is,undisputed that the gifts
w.er~ inspired by sincere religious con·
"',Icllons, not by a wrongful intent to
shortchange or defraud creditors. and fol
lowed the Church's tithing creed.
'
The trustee in the Chapter 1 proceeding
sued the cburch to recover the $13,500
contribution for the benefit of creditolS
under ~S48 of the Bankruptcy Code. That
proVISion empowers the trustee to "avoid
any transfer of an interest of the debtor in
Jpropeny . . • \hat was made or incurred on
or within one year before the date of the
filiog of the petition, if the debtor . • . re
ceived less than a reasonably equivalent
,value in exchange for such transfer .•.
, and was insolvent on the date such transfer
was made • ~ • or became insolvent as a
result of sucb transfer."
. 1bc: Bankruptcy Court ruled in favor of
,the trustee, and the U.S. District Court
:: affll1llCd; During the pendency of the lip
, pcallo the 8th Circuit, Pn:sident Clinton
rsigtKd. the
and both parties agn:e
to lIa
(0 the Christians
o
means·· of
?~.~i;g-;go;;;vemmeot in
;;:::r.::;:~~:~~;~~'~~ Department argues
,
YOWlgs' IIOO-fraudulent
'religious ,
contribution satisfieS the
exacting staiuIards of the law. But its ar
guments seem wildly misconceived.
The Justice Department concedes that
the gifts were made to discharge a sense of
religious obligation and were in accord
with the ch'urch's theology. It insists,
nevertheless, that to undo the gifts does
nol substantially burden the Youngs' free
,exen:ise of religion because the sums were
not theirs to give; the moneys were an as
set to be preserved for creditors.·
But tithing was an authentic component
of the Youngs' religious creed, To void a
Youogs did substantially burden their free
tithing is every bit as mucb a direct busdeo
exercise of religion. Additionally. that fl·
on religious practiee as reStraints on polit-'
nanCiaI gambit did nOl further a compel
icaI campaign contributions /Ire a busdeo
on the exercise of free speech. Although , liog government interest in the specific
bankruptcy proceeding of the Youngs,
such burdens may be constitutionally jus
which is what the RFRA demands.
tified by overriding government interests.
The object of §S48 is to prevent the lIth
as the Supreme Court declared in 8uc1Jey
hour depletion ,of a debtor's assets avail·
•• Valeo, 424 U.S. I (1916). they are
able 10 creditors through gratuitous trans·
nonetheless burdens.
felS. ThaI interest is rational, but far from
At the Iimc thai the YOWlgs' made their
compelling, at least in regard to the
gifta. the sums were held unencumbered
Youngs' hankruptcy. If the $13,500 in
and untainted by any Wrongdoing.. Oed
dispute is left .wi~ the church, the per
ilon> then had.PO claim to the donation.
Indeed, even after the Youngs declared centage reductton tn trustee payments to
banbupccy-whicb was no( an inevitabili 'individnal credilors would likely be mar
ginal. and the Justice Department does not
ty at the Iimc of the dooatioo--their cred
contend otherwise. To insist that burden
itors enjoyed no legal right to recapture the
ing the free exercise of religion to raise the
$13,500. Only the trustee of the estate is
percentage payment of creditolS' clliims in
entitled to sue under §54B, and whether to
a Chapter 7 proceeding from, for example,
seek avoidance of a transfer is entirely
20 to 25 seems the epitome of frivolily,
discretionary.
'
,
Such a trivial financial interest has never
To characterize the Youngs' financial
been accepted by the Supreme Coun as
gifts at the time of their making as bene·
ficially owned by their creditors is utter , compelling, Thus, in Sherbert v. Verner,
374 U.S. 398 (1963). the Coun denied
nonsense. The latter would have been
summarily laughed out of court if. they that the government interest in forestalling'
a (lrain on its unemployment compensa·
sued the church immediately'afterlhe gifts
lion fund waS compelling. Accordingly,
were made seeking a security or some
the Court concluded that payments could
olher property inEerest in lbe moneys.
not be withheld from an applicant whose
In sum, the trustee's avoidance of the
unemployment was attributable to her re·
religiously inspired donations of the
ligious/)' inspired refusal to ,work on Sat
urday. Moreover,the bankruplcy laws, by
exempting certsin propeny of the debtor
from creditor claims, tacitly acknowledge
that the interest in maximizing creditor
recoveries falls short of compelling.
The effort by the Justice Department to
surmount the compelling government
interest hurdle is sheer effrontery. It likens
the Youngs' $13,500 in religious gifts,
sums derived from legally irreproachable
tr.lIlsaclions, to the proceeds of criminal
ity. For instance, the Justice Department
urges that avoiding the gifts is no different
,than requiring forfeiture of property
traceable to federal drug or racketeering:
crimes. But the government interest in
punishing and deterring crime 'through
such forfeiture provisions is of far greater
urgency than recapturing a few pennies for
creditors in the Young bankruptcy pro
ceedings from transfers untouched by any
wrongdoing or misconducl. Moreover,
even in forfeiture proceedings, the Su
preme Court beld in Uniled States v. 92
Buena Visla Avenue, 113 S. Ct. 1126
(1993), that an owner's lack of knowledge
that the disputed property had been pur
chased from the proceeds of illegal trans
actions is a defense. In other words. even
assuming the $13,500 in church gifts were
, tainted by cnme--;lll ~umplion that even
the Justice Departme does not make-
the church's lack of owledge of the
putative wrongdoing haLgenerated
the sums would frustrate an~pted
forfeiture.
As a last resort. the Justice Department
embraces an argument that would fit
comfortably among the legal whimsies
recounted in Aleksandr Solzhenitsyn's
The Gulag Archipeligo. The department
characterizes the Youngs' religious gifts
as tantamount to theft-ll dissipation Of
property rightfully owned by their credi
tors. But if what was done was theft, why
do the laws provide neither a criminal nor
civil sanction against the Youngs? That
neglect would be incomprehensible if the
Justice Department's characterization of
the donation as thievery came within
shouting distance of truth. .
The RFRA may be imprudent legisla·
, tion: But it'is law that the Justice Depart
'ment is constitutionally obliged to en·
force.lts brief in the ,Christians appeal
defaults on that obligation' by seeking an
interpretation, of, the RFRA that would
make it as illUSOry as a munificent bequest
in a pauper's will:
It is a sophistry more \0 be marveled at
than imitated.
Bruce Fein of Greal Falls. Va.. was
geTU!ral counSel to the Federal Communi.
cations Commission from 1983 10 1984
and associale deputy al/orney general
from 1981/0 1982. He is now a partner in
Blaustein & Fein. specializing in advising
foreign governments in drafting' constitu.
lions, and a regular contributor /0 legal
Times.
'
�"
MEMORANDUM
C.
TO:
Stephen
FROM:
Willie Epps, Jr.
DATE:
July 13, 1994
RE:
Warnath
'Questions for EEOC Nominees, '
,
'
"
,
TITLE VII:
"
a
"
St. Mary's Hener Center v. Hicks,' .1.13 S.Ct. 2742'(1993), was
majer'setback fer plaintiffs attempting "to. preve disparate,
treatment under Title VII ef the Civil Rights Act ef 1964. In
Hicks, the Cour~' held that .the plaintiff dees not necessarily
prevail upen the shewing ef, pretext, and still ma'intains ,the
burden ef preving that the actien in questien was discriminatery.
,
,
01. ',De yeu agree with ,the Ceurt's he:J-ding in' H~cks?
, 02. Or de,yeu a faver the eld scheme anneunced in McDonnell
Douglas,and Burdine where (1) plaintiff has burden te·shew prima
facie case; ,( 2) if plaintiff shews p~ima',facie case, the burden
shifts to. the' defendant to. artic",late seme legitimate,' ,
nendiscriminatery reasen fer the empleyee's rej'ectien; :( 3) sheuld
the defendant carry this burden, the plaintiff must 'then have 'the
eppertunity te'preve by,prependerance ef t:t).eevidence' that the,
legitimat~ reasens'effered by the defendant were,n6t true
reasens, but were,pretext fer discriminatien?
[~g,i-s-rat±en to. reverse Hicks has been :if'ntr.educed in beth the
Senate and Heuse.'Senaters' Metzenbaum,(principle' spensor), Simen
and Wefferd' are spensers." There are three bill~ in, all that have
been intreduced 'to. reve,rse Hicks. The principle ,biTl is Civil
Rights Standards Restoratien'Act, S. 1776"(Metzenbaum)/ H.R. 3680
( Owens) • ]
,
,
Title VII ef the Civil 'Rights Act ef 1964;' ~equiresthe
,eliminatien ef artificial, arbitrary, and unnecessary barriers
empleyment that eperate ipvidibusly to. discriminate enthe'basis
ef race and/er sex. If an empleyment practice that eperates to.
exclude racial minerities er wemen cannet be shewn to. be related
to. jeb per;ermance, it' 'is prehibited, netwi thstanding the
empleyer's lack ef discriminatery intent.
fa
03.,. As a member ef ,the EEOC, hew will yeu ensure, that
employer tests are valid and that ~mpleyer selectien procedure is
, predictive ef er significaritly cerrelated with impertant elements
ef jeb perfermance?'
1
.
,
/':
,/
-~
---_.__
._-.
�04.
If you use the Uniform'Guidelines on Emp~oyee Selection
Procedures (UGESP), how will you ensure that its .use will not
lead to quotas and undermine e'fforts to improve and emphasize
educational achievement?
In July 1993" the 9th Circuit rej,ected the EEOC National Origin
Discrimination Guidelines and held that English-only workplace
rules have 'no significant adverse impact on bilingual workers
because the bilingual workers could comply with the rule.
05~
What role, if any, should
the American workplace?
:English~only
rules have in
,
06. Do you believe that the EEOC ,should continue to enforce
the National Origin Discrimination Guidelines -- that state th~t
English-only rules are prima f,acie discriminatory, ~- despite the
9th Circ~it's decision?
'
[On June 1, 1994, the Solicitor General, together with the EEOC,
filed an amicus brief in support of granting certiorari 'in the
case. Cert was denied ,pn June 20, 1994.]
.
"
As you know,Gilmer v. Interstate/Johnson is a 1991 Supreme Court
decision which he;td that courts can compel arbitration of, Fe(jera1
discrimination claims brought by a broker against., his or her
employer pursuant to the mandatory arbitration policy of a stock
exchange;
07. As a member of the EEOC, will you support the use of
non..,.collectively bargained corporate personnel policies ,which
compel employees to arbitrate claims under an employer's
established procedures rather than using the administrative and
judicial procedures established under federal equal employment
statutes?
[Legislation to reverse Gilmer and address the use of mandatory
arbitra:tionis a high priority for AARP and other aging,'
'
organizations.]
, It is well documented that discrimination on multiple bases. is a
serious problem. 'For example, an employer may hire African
American and Hispanic men and Anglo women, but no African
American.'or Hispanic women. That employer may have a defense to
.'either a 'race or a sex claim ~nder a traditional view of the law
(i.e., he hires racial minorities and women and is, tnerefore,
not-riable under Title VII).
'
08. What types of policies should the EEOC implement to
address problems of -multiple discrimination which cut across
statutes (i.e., race arid ,disability or gender and age)?
�.:"'.,,, '
WOMEN'S ISSUES UNDER TITLE VII.:
09.Shotild the EEOC set aside sexual harassment for
separate"treatment on the grounds. tha't sexual harassment "rais·es .
issues about human interaction that are to some ext~nt unique in
comparison to other harassment·and, thus may warrant Separate
~mphasis?"
~
010.
Do you agre~ or disagree with the Supreme Court
holdings in Harris v. Forklift Systems (1993) and Meritor Savings
Bankv. Vinson'(1986) which provided that the same standards, for
determining liability and remedy shbuldbe applied to all types
of hostile work environment harassment, both sexual and non;...
sexual'harassn}ent?
Ql1.
Should employers have the right (and do they have the
responsibili ty,) to 'bar fertile women from jobs in which they
would be exposed to toxic substances t,hat could harm, the fetuses
that women might carry? ,
POST-CIVIL RIGHTS ACT "91 ISSUES:
The Civil Rights Act of 1991 placed caps on,dCimages for
intentional discrimination~'
012.
Do you support legislation to' remove the caps, on
damages for intentional discrimination as provided in the 'Civil
Rights Act of 1991?'
013.
Do you support legislation to delete special exemption
in. the Civil Rights ,Act of 1991 for the Wards Cove case, which
?ffects primarily Asian Pacific .Americans .who previously worked
or are. now employed by Wards Cove Packing Company?
'
As you know, the Civil Rights Act of 1991 amended only Title VII
and the ADA.
Application to the ADEA was not addressed.
This
means that expert witness'fees are not" available under ADEA.
014.
Do you support legislation that would make the Civil
Rights Act of 1991 applicable to ADEA?'
015.
Should the Civil Rights Act of 1991 be applied
retroactively to cases arising prior to passage'of the Act?
EQUAL PAY ACT:
The Equal Pay Act prohibits,unequal pay for equal or
"substantially equal" work.
In the past, 'the eriforcement of this
Act has not been a priority for the Commission.
016.
As a member of the EEOC, will- you make EPA enforcement
a priority?
3,
�017. Will you work with other agencies to encourage
compliance with the EPA?
018. Do you support using th~ concept "comparable worth"
when determining whether an employer'has compl~ed with the Equal
Pay Act?
019. What do you say to critics who argue that "comparable
worth" ignores market forces such as supply and demand?
020. Do you think that "comparable worth" focus too much on
equal results rather than on equal opportunity?
021.
Is !'comparable worth" work.able in practice.?
022.
Can jobs be evaluated by fixed standards?
023.
Is "worth" determined by wages or is it subject to
changes in competition,consumer preferences and newtechI1-ology?
024. Do you support legislation that prohibits pay
discrimination on the basis of sex, race, or national origin in
jobs of equivalent value?
025.
Is it legitimate to determine "equivalent value" by
comparing the skills, effort, responsibility, and working
conditions required of the jobs?
AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA·):
Age discrimination in employment continues to plague those older
Americans who want to continue to be productive members of
society in their later years. Too often employers base their
hiring and retirement decisions on age alone when valid ahd.job
related tests are viable alternatives.'
026. Do you support. calls for further study on the use of
testing in place of age?
027. What tests are available to replace age as a predictor
of job performance?
028. Should state and local governments be permitted to use
age as a basis for hiring and retaining law enforcement officers
and firefighters?
029.
Should there be a mandatory retirement age for federal
Law enforcement officers and firefighters, Capitol Police, and
air traffic controllers?
4
�030. How will you ensure that older' employees are:,not
treated differently or unfairly when employers reduce their
workforce? ,
031. Should the EEOC continue to apply the disparate impact
theory under the ADEA?
OLDER WORKERS BENEFIT PROTECTION ACT:
032.
In your opinion, does ADEA permit early retirement
incentive offering an incentive oniy to persons under a specified
age ("Capriano" plans)?
MORE NEEDED,
FEDERAL SECTOR ENFORCEMENT
Many ,in the Senate are·concerned with the Federal EEO complaint
process. Since Executive Order' 12067 gives EEOC lead
coordinating responsibility for. all federal EEO programs and
activities •••
033. What can be done to eliminate real and perceived
conflict of interest in the 'current process whereby the agency
reviews its own discriminatory conduct?
034. D6 you support efforts to both stre,amline complaint'
procedures and provide mandatory time limits for processing as
ways to improve the complaint process?
035. How can EEOC best deter future discriminatory conduct
by federal employees who have discriminated in the past?
036. How costly will the reform of the Federal EEO
complaint process 'be for the Amer~can taxpayer?
037. What can ,the EEOC do to eliminate discrimination in
federal employment on the basis of sexual orientation?
TESTERS:
As you know, 'testers have been used for' many, years in, the
housing area, and there is well 'established case law on the'
validity of tester standing in fair housing cases.
Now there is
talk of using tes,ters in the'employment area.
038. Do 'you support the concept of
employment discrimination context?
a
Utester" in the
Q39. Who would generally use testers when attempting to
establish that discrimination exists in a certain workplace?
5
�·, .
040. Have testers been, used intensively, in the emplqyment
area t,hus far?
041~ 'During your tenure at EEOC, do you anticipate the
intensive use of testers in the employment area?
042. . Since the concept of' tester,s in the employment area is
still unsettled, do you believe testers should have standing to
'file harges of employment discrimination,against employers,
c
employment agencies and/or labor organizations which h a v e ,
discriminated against them because of their rac~,; 'color,
reli~ion, sex or national origin?
043. Should standing under
constructed?
.
Titl~
VII be broadly
,
044. Sh6uld EEOC field ~ffices accept charges from
"testers" and/or ci~il rights rirganizations fil~ng charges on
'behalf of testers?"
045. Should EEOC administer an enforcement program which
includes 'the use of testers by private and "substantially
equivalent" state/local government fair employment agencies?
ISSUES INVOLVING COMMISSION OPERATIONS
,
.
046. As a m'ember of the EEOC, will you attempt to. provide
more adequate multicultural/sensitivity training for the EEOC
.staff?'
"
047. Will you require staff members to attend additiorial
training sessions in the areas of ,intake, investigation and
complex litigation?
048. What ',will you do. to make your staff more accessible' to '
minorities, physically and mentally disabled people, and those,
with limited reading skills?
049. What types or partnerships, if any, will you create
with civil rights' and , advocacy organizations? '
050. What insights, if any, do you have regarding improving
the. frequency, format and content of Commiss~on .meetings?
The Commission has been· characterized as a ."reactive" and closed
organization~
051'. What' will you do to make the Commission' ~ policymaking
process more centralized andpro.active?
6
�\'
,
.
.\
.'
I
052. What steps can th~";'C6minission .take to make sure good
policy is not undercut in implE':?mentation and that policy is made
in the open?
REL~GIOUS
FREEDOM:
.053. How will you ensure that EEOC Guid~lines on Harassment
do not interfere with religious freedom as guaranteed by the·
First Amendment?
,'.:
7
�s.
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gu I C K B ILL
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------------~~---------~-----------------------------------------------------~,8.2238 BytKENNEDY, EDWARD (D-MA) -- Employment Non-Discrimination Act of 1994
CURRENTLY:
26 Democrats
3
Republicans
29 Cosponsors
",-ADXA (D-HI)
ffBINGAMAN (D-NM)
BOXER (D-CA)
BRADLEY (D-NJ)
CHAFEE (R-RI)
'~DODD (D-CT)
FEINGOLD (D-WI:)
FEINSTEIN CD-CA)
As
As
As
As
As
As
As
As
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GLENN (D-OH)
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,~N (D-D)
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.INOUYE (D-BI)
',.tJEFFORDS (R-VT)
KERRY"
JOHN C
D-HA)
.LAUTENBERG CD-HJ)
LEAHY (D-VT)
LEVIN, CARL CD_HI)
LIEBERMAN (D-CT)
.jDTZENBAUK (D-OH)
,
:~~!laJLSta CD-MO)
KOSELEY-BRAUN CD-IL)
KOYNIHAN (D-NY)
,'MURRAY CD-WA)
~CKWOOD CR-O,R)
/
LL (D-RI) _
, lUEGLE (D-x(~,
ROBB CD-VA) -/i.'
SARBANES (D-MO)
As 7ntroduced 06/23/94
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',.
Ci.
. TONE (D-KN)
As 7ntroduced 06/23/94
�Questions And Answers For Public Schools On
. The Religious Freedom Restoration Act
, . Q. Whatis the purpose of the Religious Freedom Restoration Act (RFRA)?
A. The Act's purpose is to restore the standard for protection of religious liberty that
existed before the 1990 Supreme Court decision in Oregon v. Smith. In Smith, the
Supreme Court repudiated long-established First Anlendment doctrine to hold that the
government no longer needs a compelling reason when its laws or regulations substantiall y
burden religious practices. After Smith, governrrientallaws or practices of general
applicability which substantiall y burdened or restricted religious practices were
constitutionally permissible as long they were rational and did not expressly target
religion. Forexample, outside the public school context, the ruling in Smith would allow a
law banning alcoholic beverages to be applied so as to forbid communion, as long as that
law did not single out the religious consumption of wine for prohibition. By federal statute,
RFRAeffectively restores the pre-Smith standard for protecting religious freedom.
2. Q. WhatwastheruleoflawbeforeOregonv.Smith?
A. Under the Supreme Court's long-established intelpretation ofthe Free ExerciseClause
ofthe First Amendment, if a government law or practice substantiall y burdened a person's
religious practice, it was valid only if the government could show that (1) there was a
compelling governmental interest in applying the law to the religious practitioner and (2) it
was the least restrictive way for the state to pursue its compelling interest. This test, which
involves balancing the government's interest against the individ ual' s religious liberty
interest in a particularcase, is restored under the Religious Freedom Restoration Act.
3. Q. Did the pre-Smith rule apply to school districts as well?
A. Yes. Where courts found that government actions substantially burdened religious
freedom, the courts applied the compelling interest balancing test to school districts and
other government entities. In some cases, the courts ruled that school-related government
actions were unconstitutional as applied to particular religious adherents, as in Wisconsin
v. Yoder, w1!ere the Supreme Court ruled that the Amish should be exempted from laws
requiring school attendance beyond eighth grade. In other cases, the courts have upheld
government activities related to the schools. For example, in Fellowship Baptist Church v.
Benton, a federal appellate court upheld an Iowa state teacher certification requirement as .
applied to private religious schools, even assuming that the requirementsubstantially
burdened religious freedom. A list ofa number of other cases where the courts have
considered free exercise claims concerning the public schools is enclosed.
4. Q. How will the Religious Freedom Restoration Act affect public schools?
A. It will simply restore the legal test that applied for decades before 1990 in evaluating
claims that general school laws or rules should not apply to particular students or teachers
because oftheirreligion. Just as they did before Smith in 1990, such claimants would have
to prove that the law or rule substantially burdens their own exercise ofreligion. If so, then
the coinpelling interest balancing test would be used to determine whether the law or rule
could be applied to them. '
�5. Q. How will the courts determine whether applying public school or other
government laws or rules violates the Religious Freedom Restoration Ad?
A. In the same way that they detennined whether the First Amendment guarimtee of
religious liberty was violated before Smith. As the Act's legislative history states, the
courts should look to pre-Smith freedom of religion cases for guidance in detennining
whether religious ,exercise has been substantially burdened and whether the compelling
interest test has been met. Although the Act does not approve or disapprove of the
results,in any particular pre-Smith court decision, it is clear that the pre-Smith legal
standard should be applied.
6. Q. Is a court likely to throw out completelI a school law or rule because it
infringes on religious freedom under ~ Religious Freedom Restoration Ad?
A. No. Under RPRA, religious practitioners could claim that a general rule or law
, should not apply to them because it violates their religious freedom, as the Amish did
successfully in Yoder. Their claim would not affect application of the law or rule to
other people whose religious practices are not substantially burdened. In other words,
the remedy under RPRA, where a remedy is appropriate, would be an exemption from
the rule, as in Yoder.
7. Q. -Doesn't enactment of the Religious Freedom Restoration Act mean that all
kinds of strange, ostensibly religious complaints would be successfully raised
against otherwise unobjectionable government laws or rules?
A. No. This simply has not been a problem in the past, as Justice O'Connor observed
in her concurring opinion in Smith. To be subject to RPRA at all, an individual's
, objection must be grounded in a sincerely held religious belief, a requiremerit which
has and will continue to screen out many complaints. However, we live in a
religiously pluralistic society. When government laws or rules truly restrict religious
liberty, Congress has detennined that it is not asking too much for the government to
justify that restriction by showing it has a compelling state interest to protect.
Congress overwhelmingly enacted RFRA because it believed the First Amendment
was intended to protect the individual right to free exercise of religion from aU
government action which substantially burdens that right without proper justification.
8. Q. Will the Ad make it easier for advocates to ban books or cunicular
materials from the schools on religious grounds?
A. No. Under pre-Smith law, it was clear that a student's own religious freedom was
not substantially burdened if other students read particular books. Such advocates can
claim that their own children should not be required to use certain books or materials
on free exercise grounds, but not that books or curricula should be banned altogether.
In some cases, pre-Smith courts - rightly or wrongly -, ruled that simply requiring
that standard books be read by students in public schools did not constitute a
substantial burden on religion at all.
'
9. Q. How about parents' requests that their children be allowed to opt out of
classroom instruction or assignments that are religiously obiectional)le to them?
A. As would have been the case prior to Smith, if parents can prove that assignments
or instruction substantially burden their religious free exercise, and if a school cannot
meet the compelling futerest balancing test, then RPRA would require an opt-out or
2
�·
,
other satisfactory accommodation of their religious objections. If no substantial burden
can be proven or if a school can meet the compelling interest balancing test, then a
.claim under RFRA would fail.
.
10.
Q. What about ~uests to condud religious activities at school, such as prayer
at graduation, Bible clubs, and distribution of religious lilerature?
A. RFRA should not cause any change in these areas, because these issues are
generally governed by.the Establishment Clause, the federal Equal Access Act, and the
free speech protections of the First Amendment. The legislative history of RFRA
specifically states that where religious exercise involves speech, as in distribution of
literature, reasonable time, place and manner restrictions continue to be acceptable. As
to graduation prayer, the Supreme Court has ruled in Lee v. Weisman that school·
sponsored prayer at graduation is unconstitutional, and while lower courts are split on
so-called student-initiated prayer at graduation, the Act is not likely to affect that issue.
Religious clubs will continue to be governed primarily by the Equal Access Act.
11.Q. How about requests by school employees for accommodation of their
religious practices in the employment conlext? .
A. RFRA's legislative history makes cleat that it would not affect religious
accommodation and other issues under Title VII of the 1964 Civil Rights Act.
1 2.
What kinds of laws and rules would be affected by the Religious Freedom
Restoration Ad?
A. Only laws and rules that substantially burden religious practice and fail the
Q.
compelling interest balancing test. For example, prior to RFRA, one court ruled in
Church of God v. Amarillo Independent School District that a school district policy
which limited the number of excused absences for religious holidays to two days per
year. and provided that students be given a zero for all classwork and tests on days
when they had unexcused absences for religious holidays substantially burdened the
free exercise of religion. Since the school district could not meet the compelling
interest test, the policy was ruled unconstitutional as applied to students whose religion
required more absences from school. Similar analysis would be utilized in evaluating
such a policy under RFRA.
13.
I)c:)es the Religious Freedom Restoration Ad permit school officials to
promole religion or religious practices?
.
A. No. The Act specifically states. that it does not in any way affect the Establishment
Q.
Clause of the First Amendment, which prohibits school officials from promoting
religion or religious practices~ Thus, for example, school employees would still be
barred from proselytizing students or engaging in similar religious activities with
students during the school day.
1 4.
Q.
Where can I get more infonnation on how RFRA applies to public schools?
A. In addition to consulting with your attorneys, a number of national education and
other groups have prepared materials or are available to help answer questions,
including the organizations sponsoring this analysis. A list of these groups is enclosed.
3
�Examples Of FreeExercise Decisions
ConcerningThe Public Schools
PriorTo Oregon v. Smith
Wisconsin v. Yoder, 406 U.S. 205 (1972)(ruling that parents have the right to direct the
education and religious upbringing of their children and that the interest of Amish parents in the
Amish way of life, which includes ail adequate alternative mode of continuing informal vocational .
education, warranted exemption from state's compulsory education law on free exercise grounds) .
. FeUowship Baptist Church v. Beldon, 815 F.2d 485 (8th Cir. 1987)(upholding an Iowa state
teacher certification requirement and yearly student attendance reporting requirements, as applied
to private religious schools, and ruling that 'Amish exemption' from compulsory education law
should not be extended to fundamentalist Baptist students).
Murphy v. Arkansas, 852 F.2d 1039 (8th.Cir. 1988)(upholding State's requirement that home
schooled children take standardized tests against parents' .free exercise challenge).
People v. Dejonge, 501 N.W. 2d 127 (Mich. 1993Xpost-SmithXruling that state requirement that
parents who conduct home schooling for their children provide state-certified instructors violated
free exercise rights of parents whose religious convictions prohibited the use of such instructors).
Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987), <.:ert. denied, 484 U.S.
1066 (1988)(upholding school requirement that all students read the same Holt basic reading
. series against free exercise challenge).
Church of God v. Amarillo]ndep. School Dist., 511 F. Supp. 613 (N.D. Texas 1981), aff'd,
670 F.2d 46 (5th Cir. 1982) (ruling that school district policy which limited number of excused
absences for religious holidays to two days per year and provided that students be given zeros for
any c1asswork or tests on days when they had unexcused absences for religious reasons violated
free exercise rights of religious students).
Roberts v. Madigan, 702 F. Supp. 1505 (D.Ojlo. 1989), aff'd, 921 F.2d 1047 (10th Cir. 1990),
cert. denied, 120 S.O. 3025 (1992)(rejecting free exercise challenge by teacher to decisions to
remove religiously-oriented books from the classroom and to stop the teacher from reading the
Bible silently at his desk based on establishment clause).
Grove v. Mead School Dist., 753 F.2d 1528 (9th Cir. 1985), cert. denied, 474 U.S. 826
(1985)(niling that school board's refusal to remove book from its curriculum did not result in a
burden on free exercise rights, where student was given permission ~o avoid classroom discussions
of the offensive book and was assigned an alterriative book).
.
Spence v. Bailey, 465 F.2d797 (6th Cir. 1972Xholding that rule requiring either ROTC
participation or physical education classes as applied to schoo' which chose not to offer physical
education classes violated free exercise rights of conscientious objector).
.
Lewis v. Sobol, 710 F.Supp. 506 (S.D.N.Y. 1989Xruling that school officials violated free
exercise rights of parents by refusing to allow unimmunized child to attend kindergarten, where
state law allowed other religious exemptions to immunization requirement) .
. Moody v. Cronin, 484 F.Supp. 270 (C.D. HI. 1979)(ruling that requirement of coeducational
physical educational classes in which 'immodest apparel' was worn violated free exercise rights
of United Pentecostal students since less restrictive means were available to the school to further
the State's interest in physical education).
4
�r
Text Of The Religious Freedom Restoration Act,
Public Law No. 103-141
SECflON I. SHORT TITLE.
This Act may be cited as the "Religious Freedom Restoration Act of 1993".
SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES.
(a) FINDINGS.-The Congress finds that
(1 ) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its
protection in the First Amendment to the Constitution;
(2) laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with
religious exercise;
.
:(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement
that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
.
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible
balances between religious liberty and competing prior governmental interests.
(b) PURPOSES.-The purposes of this Act are
(1) to restore. the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398(1963) and Wisconsin v.
Yoder, 406 U.S. 205 (1972) and to guarantee its application in aU cases where free exercise of religion is
substantially burd~ned;and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
SEC. 3. FREE EXERCISE OF RELIGION PROTECTED.
(a) IN GENERAL.---Government shall not substantially burden a person's exercise ofreligion even if the burden
results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.---Governmeilt may substantially burden a person's exercise ofreligion only if it demonstrates that
application of the burden to the person
. (1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
,(c) JUDICIAL RELIEF.-A person whose religious exercise has been burdened in violation of this section may assert
that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.
. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under
article III of the ConstitUtion.
SEC.4. ATIORNEYS FEES.
(a) JUDICIAL PROCEEDINGS.-Section 722 of the Revised Statutes (42 U.S.c. 1988) is amended by inserting "the
Religious Freedom Restoration Act of 1993," before "or title VI of the Civil Rights Act of 1964".
(b) ADMINISTRATIVE PROCEEDINGS.-Section 504(b)(1)(C) of title 5, United States Code, is amended
(1) by striking "and" at the end of clause (ii);
(2) by striking the semicolon at the end of clause (iii) and inserting" ,and"; and
(3) by inserting "(iv) the Religious Freedom Restoration Act of 1993;" after clause (iii).
SEC. 5. DEFINITIONS.
As used in this Act
(1) the term "government" includes a branch, department, agency, instrumentality, and official (or other person
acting under color of law) of the United States, a State, or a subdivision of a State;
(2) the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and
'possession of the United States;
(3) the term "demonstrates" means meets the burdens of going forward with the evidence and of persuasion; and
(4) the term "exercise of religion" means the exercise of religion under the First Amendment to the Constitution.
SEC. 6. APPLICABILITY.
(a) IN GENERAL.~This Act applies to all Federal and State law, and the implementation of that law, whether
statutory or otherwise, and whether adopted before or after the enactment of this Act.
(b) RULE OF CONSTRUCfION.-Federal statutory law adopted after the date of the enactment of this Act is subject
to this Act unless such law explicitly excludes such application by reference to this Act,
(c) RELIGIOUS BELIEF UNAFFECfED.-Nothing in this Act shall be constTuedio authorize any government to
burden any religious belief.
.
SEC. 7. ESTABLISHMENT CLAUSE UNAFFECTED.
Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment
prohibiting laws respecting the establishnlent of religion (referred to in this section as the "Establishment Clause").
Granting government funding, benefits, or exemptions to. the extent permissible under the Establishment Clause, shall
not constitute a violation of this Act. As used in this section, the term "granting", used with respect to government
funding, benefits, or exemptions, does not include the denial of g~vernment funding, benefits, or exemptions.
5
�Questions 'And Answers
For Public Schools On
The Religious Freedom Restoration Act
Is Sponsored Jointly By:
. American Association of School Administrators
1801 North Moore Street
Arlington, VA 22209
(703) 528-0700
American CivU Uberties Union
122 Maryland Avenue, N.E.
Washington, DC 20002
· (202) 544-1681
Contact: Bob Peck
Christian Legal Society
Center for Law and Religious Freedom
4208 Evergreen Lane, Suite 222
Annandale, VA 22003
(703) 642-1070
Church of Scientology International
400 C Street, N.E.
Washington, DC 20002
(202) 543:'6404
Contact: Rev. Susan Taylor
American Jewish Committee
12th Floor
1156 15th Street, N.W.
Washington, DC 20005
(202) 785-4200 .
Contact: Richard Foltin
Lutheran Office for Governmental Affairs,
ECI.A
122 CSt., N.W., Suite 125
Washington, DC 20001
National Association of Evangelicals
1023 15th St., N.W., Suite 500
Washington, DC 20005
(202) 789-1011
Contact: Forest Montgomery
American Jewish Congress
15 E. 84th Street .
New York, NY 10028
'(212) 360-1500
Contact: Marc Stem
, National Jewish Community Relations
Advisory Council
443 Park Avenue South, 11th Floor .
New York, NY 10016
(212) 684-6950 .
Contact: Jerome Chanes
AmericansUnited for the Separation
·of Church and State
8120 Fenton Street
, SHver Spring, MD 20910
(301) 589-3707
Contact: Steve Green
People For the American Way
2000 M Street, Suite 400
Washington, DC 20036
(202) 467-4999
Contact: EUiot Mincberg
· Anti-Defamation League
1100 Connecticut Avenue, N.W.
Suite 1020
·Washington, DC 20036
(202) 452-8320
Contact: Michael Lieberman
Union of American Hebrew Congregations
2027 Massachusetts Avenue, N.W.
Washington, DC 20036
(202) 387-2800
Baptist Joint Committee
200 Maryland Avenue, N.E.
Washington, DC 20002
(202) 544-4226
Contact: Brent Walker
6
�CONFIRMATION ISSUES OUTLINE
(7/12/94)
Title VII
•
v,l',;{d,-
St Mary's Honor Center
June 1993 Supreme Court-decision_that made .
proof of disparate::treatment under Title VII b~Qfr<;i!CUms..tantiil;evii:tence:::mor~
difficult. Previously, the Court had set out a burden shifting approach to govern the
proof of disparate treatment where there was no direct proof of intent. In such cases,
the plaintiff had the burden of making out a prima facie case, whereupon the burden
of production shifted to the defendant to present a legitimate non-discriminatory
reason, If the plaintiff could show that the proffered reason was pretextual, the
plaintiff satisfied hislher burden and prevailed.
In Hicks, the Court held that the plaintiff does not necessarily prevail upon the
showing of pretext and still maintains the burden of proving that the complained of
action was discriminatory, Legislation to reverse Hicks has been intrOduced in both
the Senate and House; Metzenbaum (principal sponsor), Simon, and Wofford are
sponsors. There are'three bill in all that have been introduced to reverse Hicks, The
principal bill is the Civil Rights Standards Restoration Act, S,1776
(Metzenbaum)/H.R.3680 (Owens).
[For briefing material see Post-Civil Rights Act Issues I. (C)]
Garcia v. Spun Steak - July 1993~~, decision holding that .English=only.::u
workplace rules have no significant adverse impact on bilingual workers because the
bilingual workers could comply with the rule; therefore, such rules do not violate
Title VII.. Further,the 9th Circuit~~ the EEOC National Origin Discrimination
Gu~nes, which state that English-only rules are p<::rim~.lada-'!!§Criminatory, as
ultra vires.
.
In considering wbether_to_grant cert in the case, the Supreme Court solicited the
A"
position of ~drnInl~q.Oh) ~n June 1~,_~~licitor General, to~ether with
the EEOC~~an~Jgb\'~bne[m-::support=o[gran...Jm~ Cert was demed on June
20, 1994.
(!)e-1,MM-
NOTE: .This issue is of great importance to language-minority communities,
~ (t."t~.,;)
particularly the Latino and Asian Pacific American communities, It is a concern not
only because of the underlying principle, but also because language discrimination is
occurring with great and growing frequency, The Congressional Hispanic Caucus and
the new Congressional Asian Pacific American Caucus are considering developing
legislation to address the issue, [See attached briefing material]
.1
1-0
�.,
•
GilmerlPrQtectioJ1'from Coercive Employment Agreements Act of 1994 (Introduced
by SenatQr FeingQld) - Amends Title VII, ADEA, and ADA tQ prohibit emplQyers
frQm requiring emplQyees to submit claims relating to emplQyment discriminatiQn to
mandatory arbitratiQn. This legislatiQn is in resPQnse to the 1991 Supreme CQurt
decision in Gilmer v. Interstate/Johnson, which held that courts can compel
arbitratiQn Qf Federal discriminatiQn claims brQught by a brQker 'against his emplQyer
pursuant to the mandatQry arbitratiQn policy Qra stock exchange~
The issue fQr the EEOC is the use Qf nQn-collectively bargained corporate perso~el "
policies which compel emplQyees to arbitrate claims under an emplQyer's established
procedures rather than using the administrative and judicial procedures established
under federal equal employment statutes. It also ties in to the encQuraged use Qf
Alternative Dispute ResolutiQn, which is generally viewed favQrably.
"
~
In March, CQngressman William Ford, Chairman Qf the HQuse EducatiQn and LabQr
CQmmittee, and CQngres~man MajQr Owens, Chairman Qf the HQuse Ed & LabQr
Subcommittee Qn Select EducatiQn and Civil Rights, requested that the GAO conduct
a study, Qn the use Qf these policies. ,
NOTE: Gilmer was an AnEA case and' hasimplicatiQns Qn the waiver prQvisiQns Qf
OWBPAIADEA. LegislatiQn tQ revers(;! the decisiQn and address the use Qf
mandatQry ai'bitratiQn is a high priQrity fQr AARP, and Qther aging QrganizatiQns.
ISee additiQnal briefing material in sectiQn Qn ADEA.]
•
"UnifQrm Guidelines on EmpiQyee SelectiQn Procedures fUGESP) ..; UOESP were
adQpted in 1978 J:>y the EEOC, DOL, and DOJ as a unifQrm set of principles fQr :,
,evaluating tests and other selectiQn procedures which, are used as a basis fQr any
emplQyment decisiQn and which have Qr may have a disparate impact against
members Qf a prQtected class. There is a substantial body Qf caselaw interpreting the
Guidelines and, as is true with other Guidelines; some CQurts have been mQre inclined
to follQW them thal) o t h e r s . '
'
One Qf the ,principal points of UGEsP is that tes~'Qr Qther emplQyee selectiQn
practices 'must be valid, that is empirical data'shQuld be available that'demQnstrates
that the selectiQn procedure is predictive of Qr significantly correlated with important
elements of jQb perfQrmance. '
-
.-.-
---~,
-
~----
, • " J
"
't.""
�,
,
•
UGESP - cont.
UGESP have long been controversial. Opponents -- conservative business groups and
ideological conservatives, including former EEOC Chairs Thomas and Kemp -- argue
that they are based on impermissible group preferences, lead to quotas, and
undermine efforts to improve and emphasize educational achievement (by restricting
employers ability to rely simply on educational credentials). Proponents -- the civil
rights and employee-advocate communities - argue that UGESP go a long way
toward providing workable standards to evaluate employment selection devices.
There have been a series of efforts, none to date successful, to have the EEOC and
the other agencies review and revise UGESP. While no one argues that they cannot
be improved, there is substantial concern that if the Guidelines are oPened up to
revision, it will be extremely difficult, as a political matter, to control the process and
come up with anything better.
•
CoordinatiOn between EEOC & OFCCP -Several civil rights and women's groups are
urging the EEOC and OFCCP to develop a Memorandum of Understanding (MOU)
that would designate OFCCP as the EEOC's agent when OFCCP discovers intentional
discrimination by federal contractors in violation of Title vn in the course of a
compliance review. This would allow OFCCP to seek appropriate compensatory and
punitive damages (as provided by the Civil Rights Act '91) in its negotiation and
conciliation efforts involving intentional discrimination. There is already such a
MOU between EEOC and OFCCP regarding claims of disability discrimination
against federal contractors. This coordination would be appropriate for all covered
bases of discrimination.
•
Guidance Needed on Intersection of Bases -- RacelNational Origin & Gender and/or
Disability and/or Age - It is well-documented that discrimination on multiple bases is
a serious problem. For example, an employer may hire African American and
Hispanic men and Anglo women, but no African American or Hispanic women. That
employer may have a defense to either a race or a sex claim under a traditional view
.of the law (i.e., he hires racial minorities and women and is, therefore, not liable
under Title VTI).
.
There are, however, several cases which have found that the particular problems .
facing racial and ethnic minority women are cognizable under Title vn. See, e.g.,
Jefferies v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir.
1980) (Black women constitute a protected class under Title VII). No cases or policy
have addressed problems of multiple discrimination which cut across statutes (i.e.,
race and disability or gender and age). Civil rights and women's groups have
advocated the adoption of policy and a litigation strategy to develop these legal
theories.
3
�.\
WOMEN'S IsSUES UNDER TITLE Vll
•
Sexual Harassme~t Issues
•
EEOC;sPropOsed ConsOlidated Guidelines on Harassment - Women'sgroups
support the proposed consolidated guidelines, but argue against the
Commission setting sexual harassment' aside for separate treatment on the .
grounds that sexual harassment "raises issues about human interaction that are
to, some extent unique in comparison, to other .harassment and,thus may
warrant separate emphasis." '
'
These groups cite the Supreme Court's decisions in Harris 11. 'Forklift Systems
(1993) and Meritor Savings Bank 11. Vinson (1986) as providing that the same
standards for determining liability and remedy should be applied to all types of
hostile work environment harassment (as opposed to quid pro quo harassment),
both sexual and non-sexual harassment.
'This view is important in the context of the debate over the inclusion of
religioil ip. the Proposed. Consolidated' Guidelines on Harassment. Opponents
. '. f the inclusion of religion' argue that the same standards used in sexual .
o
'ha.rassment cases 'are inappropriate for and, therefore, should not be used in
,
religious harassment cases.
' .'
•
NOTE: Harris 11.' Forklift Systems was only the second case interpreting the
" law of sexual harassment heard by the Supreme Court. In an unanimous
decision, the Court ruled that a woman does not have to prove she suffered
, psychological injury to successfully challenge a sexually hostile work
environment. ,The Court held that a woman can establish illegal sexual
harassment "[s]o long as the environment would reasonably be perceived, and
is perceived, as hostile or abusive." The lower courts ruled that sexually'
degrading behavior was not bad enough' to be considered unlawful, in large
part because the victim did not show that she suffered psychologi~ damage as
a result of the harassment.
'
.
•
.
'
.
Coordination between EEOC and OFCCP on standards for employers
OFCCP' sguidelines on sex discrimination have not been revised for 15 years.
Women's groups urge. that the OFCCP guidelines be updated to reflect
regulatory arid legal developments such.3.s the enactment of the Pregnancy
Discrimination Act and the EEOC's Guidelines on Sexual Harassment.
.
,
.Additionally ,EEOC' and OFCCP are 'encouraged to work together to develop
standard~ for employers regarding sexual harassmen~ in the workplace;
clear
4
.,
�•
vm -
Pregnancy Discrimination Act of 1978 (PDA) [@ §701(k) of Title
PDA
amended the Civil Rights Act of 1964 to RrohibiLdiscrimination;::against::pregnant
!y'pme,...n. In pertinent part, PDA provides that "women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same for all employment
related purposes, including receipt of benefits under fringe benefit programs, as other
person not so affected but similar in their ability or inability to work."
In recent years, one of the most important issues involving pregnancy discrimination
has arisen from employer policies that have ~lu.de~Lwomenc:of child-bea.riJlg"age
from:::certaitt-jobsjn_which_they_might_be_exPQsed to toxic_substanc~s. Employers
defend these policies as protections for the fetuses·that women might carry.
Women's rights groups argue that because these policies are based on women's ability
to become pregnant, they violate Title VII as amended by the PDA.
The most significant recent Supreme Court decision regarding the PDA is
International Union, UAW v. Johnson Controls (1991). In an unanimous opinion, the
Courtcliel(bthat the cpmRany;,s",feta1:protectipn_PQlic;y=(which barred all fertile women
from jobs in which they would be exposed to lead above a certain level) ~iolate£LTi~e
VII as amended by the PD~ and stated that the policy "explicitly discriminates against
women on .the basis· of their sex. The policy excludes women with child-bearing
capacity from lead-exposed,jobs and so creates a facial classification based on
gender." In 1991, th~C;is~ue!hP.Qlicy=guidance in accordance with the holding
in Johnson Controls. ~
[For additional detail, see briefing material on Johnson Controls]
•
Pregnancy Discrimination Act of 1978 (PDA) - cont.
•
Abortion Exception - In a recent case, Turic v. Holland, 1994 U.S. Dist.
LEXIS 4997 (W.D. Mich., Mar. 7. 1994), a federal district court held that
discharging an employee because she is considering having an abortion is a
violation of the PDA. These cases are rare, but women's groups believe this
is a good example of how the PDA can apply to abortion.
5
l2>
�,
\
Civil Rights ,Act (l! 1991
•
,Summeuy Qf Principal ProvisiQns QfClvil Rights Act Qi'1991 - [See attached briefing
material] "
,
'
PoST-CIV1L'RIGHTS Acr'91 ISSUES ~' [See attached briefing material]
Pendine LegislatiQn:, . ' '
•
~u~~.Remi1js:Agt_~fd.;~gisl~tiQn tQ remo~.jll~_caps_on_~ama~~ " ",
mtentio~ ,hscnmmationas provIded m CRA'91. (j~etReno_testifioo=liLS:UPRPrt: of ~
, ERA at her confmnation hearing and Deval Patrick Has inoicatei.flfiaflieWilnestl.fy ,
in support of the bill at Senate hearings expected in the fall.
'
•
Formal Administration Position yet? ,.
for Wards Cove
- Legislation to delete special exemption in the
• 'Justice'91' for""'the"Wards Workers Actwhich affects primarily Asian'Pacific Americans
CRA'
Cove case,
". ,'who Rreviously' worked or are now employed by Wards Cove Packing Company.
'~eflauir?stratioiftas, already taken a position, tn;s4QP.,Q~~gislatiQ~ as
evidencea-Dyc'~C1993 letter from President Clinton!
.
.
.
~
Suggested Legislation:
.\
•
Make CRA '91 Applicable to ADEA':CRA '91 amended only Title vn and the
, ADA; application to the ADSA was not addressed. Experts witness fees not available
under ADEA; fix for Lorance on challenge to seniority system not applicable under
ADEA., [Refer to summary 'of cRA '91] ,
,•
RetroactIvity ~- Effect of Landgrafv. USl File Products - Apri11994 Supreme Court
decision that the damages p~ovision of CRA '91·cannot,be applied, retroactively to
case~ arising prior to pas,sage of the Act. '
Continuing PoliQy Issues:
'.
•
, Discriminatory Tests and Prohibition of "Race Normine" - Need to determine the
effect of the ra9C norming prohibition in CRA'91 on use of separate physical ability
. and psychological tests for different genders.
.
,
, EEOC Policy not to inform CPs of availability of damages and not to negotiate
damages in settlement:- Based on 'theory that settlements allow for "no fault" and,
therefore, there can be no intentional discrimination for which damages can be
recovered.
,.
�,
.
F
.---=
~U4J_P.ay_Ac.t-lEP~l
•
EPA Summary - EPA prohibits unequal pay for equal or. "substantially equal" work.
It does not prohibit pay differences "based on factors other than sex," such as
seniority, merit, or systems that determine wages based on the quantity or quality of
work. The term "factors other than sex" has been interpreted broadly by the courts to
include factors such as prior salary and profitability.
d~ision County of Washington v. Gunther, the Court held
that Title VII goes beyond the EPA to prohibit discrimination not only in pay between
jobs that are equal, but also between jobs thal' are different. Gunther has been
interpreted very narrowly. Most courts in non-equal pay for equal work wage
discrimination cases have required the plaintiff to prove discriminatory intent by the
employer and have required ~uch stronger evidence of this intent than in other- kinds
ofTitle VII cases.
-- -.
In the 1981 Supreme Court
/
NOTE: Equal pay for equal wor~must be distinguished from the controversial issue
of "comparable worth," which will be discussed below.
.
•
EEOC's Record on EPA - During the last 14 years, the EEOC has had a dismal
record on EPA enforcement. In 1980 under Eleanor Holmes Norton, the EEOC
brought 79 EPA cases compared to only 2 that the Commission brought in 1992.
•
Recommendations - The EEOC is urged by ",omen's·groups to make EPA
enforcement apriority, particularly in its systemic litigation efforts. EEOC is also .
encouraged to work with OFCCP to include EPA compliance in OFCCP'S compliance
reviews of federal contractors.
[See attached briefing material prepared by WLDF, includes use of Title VII in wage
discrimination cases.]
7
�,.
,"
!.. ~'.
Equtil Pay ,Act (EPA) - cont.'
' . ' Comparable Worth - Some of the arguments against "comparable, worth" include:
•
It ignores market forces/factors such as supply and demand; wage controls
disrupt the market and would adverselY,affect employment
•
'Worth is not deterrilined by wages; worth is' subject to changes in cOmpetition,
cons~mer preference, new technology; income is based, on society's valuation
of what is produced
"
•
Focuses on equal results not' eqwil opportunity; seen radical departu~e from
established anti-discrimination law ..:. group preferences rather than equal
. opportunity for individual
.
•
,Coq.cept is not workable
,standards ,
as
~
practice; jobs cannot be'evaluated by fixed
'
,
[See attached briefmg material.for further detail on arguments in opposition to
, com.parable worth.]' '
,'
'
'.
•
,Fair Pay Act of 1994 (FPA) to be introduced soon by Eleanor Holmes'
Norton. The FPA amends the Fair Labor Standards Act to prohibit pay.
discriminatiori on the basis of sex, race, or national origin in jobs of
. , equivalent value. Whether work is of"equivalent value" is determined by
, ,comparing the skills, effort, responsibility, and working conditions required of
thej~s."
"
[See attached briefing material prepared by WLDF]
•
The 'Women's Bureau of DOL is actively it:lvolved in this issue' and with this
legislation; Karen Nussbaum, Director of the Women's Bureau, has asked us
to proceed with caution in this area so that their long term plans will not b~ .'
compromised.' Administration coordination is needed. .
8
�,,
[Briefmg material is provided for each of the following issues]
•
Charge Processing - AARP argues that there is no statutory requirement of "cause"
determination under the ADEA. The EEOC processes age charges the same way it
does Titie VII charges with the overwhelming majority of charges dismissed through
"no cause" finding.
•
Age Discrimination Amendments of 1993 (BiR. 2722) - Police and frrefighters
exemption from the ADEA thereby allowing the use of mandatory retirement age;
sponsored by Owens, opposed by Metzenbaum... The bill seeks to extend permanently
the temporary exemption to ADEA granted to-police and firefighters in 1987. Owens
has attached the bill to the Crime Bill, which is stuck in conference. Metzenbaum has
threatened (promised) to·filibuster the Crime Bill if the arilendment stays on. (This is
the one issue that Metzenbaum and Thurmond are in complete agreement on.)
,l=:~ (articulated in letter hom DOJ on the Crime Bill,
f~xcerpt of letter is
\~ge and includes a
attached) Calls for further study on the use of testing in place of
compromise 4:::y'e!;:te.!IJRQrMY&~ten!~ of the 1aW allowing
ntindato1"f.,;-r~tirement age.
•
Effect of Reductions in Force (RIPs) on Older Workforce - Many ADEA charges are
related to RIFs. While the ADEA clearly prohibits targeting groups on the basis of
age or treating members of protected age group differently in a RIP, the issue
becomes more complex when "proxies for age" are used. The 1992 Supreme Court
decision in Hazen Paper has complicated the matter because it held that there is no
disparate treatment under the ADEA· when the factor motivating the ;employer is some
feature other than age, even when-the factor used is empirically correlated with age.
•
Disparate Impact Theory under ADEA - While the EEOC and most' courts of appeals
have applied disparate impact theory under the ADEA, there is no Supreme Court
decision on the issue. The Court's decision in Hazen Paper may be a signal that it
would not support the use of disparate impact theory under ADEA. A legislative fIX
is being considered by AARP.
•
Pension Benefit Accruals under the ADEA - ADEA was amended in 1978 to raise
maximum age limit from 65 to 70 and to forbid mandatory retirement under pension
plans. The legislative history for the amendment indicated that pension plans could
stop benefit accruals at normal retirement age. In 1986, Congress amended ADEA,
the Internal Revenue Code, and ERISA in the Omnibus Budget Reconciliation Act of
1986 (OBRA 86) to require pension accruals regardless of age-and required EEOC,
IRS, and DOL to coordinate regulatory efforts.
9
CLINTON LI8RAAv PHQrQsQPY
PHOTOCOPY
PRESERVATION
�OWii:R WOItKERS BENEFIT la>.ROTEC!lON
Acr - [See attached background memos]
..,
OWBPA Rulemalilllg Options - NOTE: Qn July 8, 1994, OCLAreceived verbal.
app~'oval from OMS to proceed with negotiated rulemaking provided that the agency
would not pr~ witliout the approval of or until the arrival of ~e new leadership.
•
meet
of Title I ·of OWBP,A on:
c
EarJ.v Retirement In(:e:dtives - OWBPA authorized many qualifying voluntary
early :!:€!tirement inqmtive,:plans.. 'Th~ hzsue.remains whethet ,AD:i;A, after
O'WJ3PA, perm;"!!; e.arly retirementjncentiyeoffering an in&entiveonly to
person und~r a,specifir..d age:("Cj,pgarlo·plans). EaOChaS, opposed an age
capped plan iIi litigatjon (lllIJicusbri~f) . . '
•
State and !A)eal Government DisaJ;>llitY,l,tetirement Plans ,- there is '
sl,lbstantialn~ for guidance in tbisru:~,becausemany public employers
apparently use a disability retirement plan that may now violate ADEA. (The
plan ~clllate~ disability retir~ment benefits llY projectingy~s,; of service until
normal retireme,nt age, which operates .to the disadvantage of oider .
individurus.)
. ,
.
•
•
..
Severance ar;d Pension Integration - OWBPA pr~vid~sthat' ~verance pay
~l be9n:set by:: (1) a.dditio~~l ;I>e.n~9P,)enefi~s ,l1lade'~yajJa~I~.tto"~"~lllployee,
pr (2) ,th~ valu~ 9f certain reti.fee ffie:<iiCA'\l Qenetits,The is~ue rem~ps;whether
OWBPA i~ disp(isitiv~ <qf aJJ,que,spons dealing· with, pension!severance
integration. EEOC ,guidance IS nec;:4¢~", .
., ,
.. En~g retireer~ealth ~~.vve~ge at n:tedi\~reeligibility ". OWBPA does,not
,address this ,~~~u~, whi~h wil1.lj.~ely,Qei1J1e subject of 'Utigation ,lJecause
employer-provided retiree health benefits are often more generous than
Medi~~.
•
•
Admi~ist~tion
position?
Title n e! O""R'PA - ADEA Waivers - Title llprovides t1,)at uns:upervised waivers
may be valid and enforceable if they meet several requirements and are otherwise
knO~~viHg and voluntary.
•
Must C()~i4eration be,Returoed to Challenge Wai,ver - Remaining issue is
whethe,r individual may challenge a waiver while re~ning th~ con~deration
. given m.return for signing agreemenL .' Courts andtite. Congr~~s are spliJ on
the issue. .
an
PHOTOCOPY
PRESERVATION
C
.
10
"):~
.
"
CLINlPf::I U~~~Yi·f'tt,?~OCOPY
\
.
\,
"
'"
�.
'
•
Title n of OWBPA - ADEA Waivers- cont.
•
~ericans
Arbitration Agreements under ADEAJOWBPA (Gilmer) - Title n of
OWBPA, which became effective after Gilmer, prohibits prospective waivers
of rights or claims under ADEA and it requires that waiver agreements be
supported with valuable consideration to which an individual is not already
entitled. Issue remains for Commission whether Title n applies to mandatory
arbitration agreements.
With E!sabilities Act
(~~):::S
7itle One
[Briefing material is attached for each of the following issues]
•
ADA Fact Sheets on:
•
•
.•
•
•
Defmition of Disability
Employment Provisions
Coverage of Drub and Alcohol Users
Remedies
Existing EEOC ADA Guidances:
•
•
•
Preemployment Disability-Related Inquiries and Medical Examinations
under the ADA
.
Interim Enforcement Guidance on the Application of ADA to Disability
Based Distinctions in Employer Provided Health Insurance - States that a
different level of benefits in an employer-provided health insurance plan for
"mental/nervous" conditions is not a "disability-based distinction" that violates
ADA.
Future EEOC ADA Guidances Currently Under Development:
•
Defmition of the Term "Disability" - A draft EEOC Compliance Manual
section is in the fmal stages of development. The draft provides an.analytical
framework for determining whether an individual has a "disability" as defmed
by the ADA.
.
ADA protects a qualified individual who: (1) has a physical or mental
impairment that substantially limits a maj or life activity, (2) has a record of
such an impairment, or (3) is regarded as having such an impairment.
11
�.
,
•
,
,Future GuidanceslDermition of the Term "Disability" - cont.
,1be draft EEOC Compliance' Manual section on this issue includes several
proyi~ions addressing psychiatric disabilities, includ,ing listing mental activities,
as examples of major life activities; a sta~ement that episodi~ disorders may be
substantially limiting; and a statement that mental disabilities that may be
ameliorated with medication may still be substantially limiting.
•
•
•
The ADA and Psychiatric Disabilities - [Sumrqary attached]
' Reasonable Accommodation and Undue Hardship'; A draft EEOC '
Compliance Manual section is being reviewed within OLC. 'Outstanding issues,
include reasonable accomm()dation for people with mental disabilities, which
may involve "significant difficulty" rather than "significant expense."
'
Unresolved' Issues:
•
•
"Mental/Nervous" Distinctions in Long Term Disability ,(LTD) Plans (wage
replaceme'nt) - LTDs usually limit benefits for "mentall.nervous" conditions to
two years, but do not similarly limit benefits for phySical conditions. Does,
this violate ADA as a "disability-based distinction" ,unless shown not to be a
subterfuge to evade the, Act? Unlike health insurance which provides for
treatment, LTD is wage replacement and is available only to people with
actual disabilities. An options paper is being developed on this issue by OLC.
Interaction Between AD~ Reasonable Accommodation Requirements and
Collective Bargaining Agreements - Is it an undue hardship for an employer
., to provide a reasonable accommodation that is inconsistent with the terms of
the applicable collective bargaining agreement? ' This issue includes the
conflict between issues relatCd to seniority and reasonable accommodation.
Employers are caught in the middle.
'
•
Coordination of the ADA and the Family and Medical Leave Act (FMLA)- The .
ADA and FMLA both impose leave-related obligations on Covered employers. The
EEOC has been working 'with DOL during its 'FMLArulemaking, to coordinate
implementation of both laws. when DOL issues its final FMLA rule, EEOC's OLC
, will fmalize an enforcement. guidaIlcecm the ADAlTitle vn and FMLA.
•
Coordination of the ADA and the Family and ,Medical Leave Act (FMLAl - A hot
political issue in the DOL FMLA rulemaking was/is whether an employee entitled to
leave under both ADA and FMLAmust take FMLA and ADA leave sequentially or,is
.
, entitled to simultaneously ~njoy'the best of both laws.'
12
"
�..
•
Coordination· of the ADA" and the Family and Medical Leave Act (FMLA) - cont.
Senators Harkin and Dodd wrote to the EEOC in November 1993 to express their
strong support for permitting employees to enjoy the best of both laws. DOL has
indicated that it will follow this path in its fmal rule.
•
Relationship Between Section 501 of the Rehabilitation Act of 1973 (Federal Sector)
and the ADA - Section 501 prohibits federal sector discrimination based on disability
and also requires the federal government to engage in affIrmative action based on
disability. In 1992, the Rehab Act was amended to apply ADA legal standards in
complaints alleging ilon,.affirmative action employment discrimination. The change to
ADA standards changes the usual federal sector practices, particularly regarding
disability-related inquiries and medical examinations. This may be opposed by federal
law enforcement agencies.
.
Civil Rights Issues in Health Care Re/onn
This issue is included because of an amendment proposed by Senator Kassebaum
during the L&HR Committee's. consideration of the health care reform legislation, which
would have eliminated much of the civil rights protections in the bill. Senator Kassebaum
argued that the protections were duplicative and unnecessary because of existing. civil rights
protections. Since health care is so closely tied to employment, some felt. the issue may
come up.
•
For a short summary of the issues see the attached Questions and Answers About
Civil Rights Issues in Health Care Refonn; for more detail, see the attached' Gaps
in Existing Civil Rights Laws.
.
..
[See attached briefing material for summary of Kassebaum amendment]
13
�Federal Secto,r, Enforcement
" ',[please refer ,to briefmg f!1aterial previously
.,
Part 1614 - New EEOC''federal
distri~uted]
~tor' equa1employ~ent ~ppOrtunity complaint
" processing regulations, issued pursuant to' Section 717 of Title VII. Part .1614 ,
, ': ," attempts to make t:be, prOCess more fair and timely by, among other things, limiting to
180 days the length of time in ~hichthe Complaint is solely within, the agency,
'
',', the~ebyreducing the, d(jminanc~ of the agency in the process.
,
• "
t,'
~
.
,
•
Federal Employee Faimess Act (FEFAi ~ S. 404 (Glenn)/H.R. 2721 (Ed &
LaborlPost Office & Civil Service) - ,Legislation to change the federal sector'
CQmplaint process by significantly reducing Ute authority of federal agencies over, '
, internal eeo complaints and by transferring the majority of the prOcess to the EEOC. ,
This legislation is in response to many, years 'of Congressional concern and discussion
about the unfairness of allOWing fedetal agencies, to retain jurisdiction over the,
processing 'of eeo complaints brought by their own employees. Issues of fainless, due
process~ and,timeliness are the principal issues raised from time, to,. time by ongress
€
"
about the fede~ sector eeo process."
'
EEOC estimates thatthe incl,'ease in responsibilities ~ouJd cost'between,$60to $100
million. Additionally, EEOC has, pre-conditioned its approval of the lI:gislation on the
requirement that there be no "transfer of function, "which .is a required transfer of ',"
staff from agency giving up responsibility to agency gaining new responsibility. '
, EEOC's view is that the proposed legislati()}'~ does not involve a transfer of function.
, (In the past, ~sfers of functions have been used to dump bad staff.)
,
,
'"
,. Administration Position - See attached May 11, 1994,' letter to Chairman William
Clay, House Committee on Post Office and Civil Service, from 40n Panetta, then
Director of. O;MB, setting forth the Administration',s position on H.R~ 2721.
.
.
.'
,'"
Federal Sector EEO LeaderShip Responsibilitie,s- Executive Order'12067 , '
.
'
Executive Order 12067 gave EEOC lead c~rdin~ting responsibility for all federal
EEO prog~s and activities. The EEOC is als9 charged' with reviewing and '
approving the affrrmative employment plans which Section 717 of Title VII requires
all federal agenCies to keep.
"
, 'Most interested ~es --, civil ,rights community, business community, 'and good
EEOC staff --urge the Commission to resume,~ts leadership roie to allow for
, coordination, uniformity, and . in federal sector eeomatters.
action '
.
.
."
.
[S~
attached briefmg material]
,
�..
.
Miscello.neous
•
Affirmative Action/Quotas
[Briefmg material is attached for each of the following issues]
•
The Current State of the Law on Affirmative Action, including:
•
.•
•
•
•
Case Summaries of Pertinent Supreme Court Decisions Affecting Affirmative
Action in Employment, including:
•
•
•
•
•
•
•
•
•
•
•
•
•
lie
•
Voluntary Afrll'Dlative Action Plans under Title vn
Court-Ordered AfrU'Dlative Action under Title vn
Voluntary Afrll'Dlative Action under the Equal Protection Clause
Court-Ordered Afrll'Dlative Action under the Equal Protection
Clause
McDonald v. Santa Fe Trail Transp. Co. (1976)
United Steelworkers 'of America, AFL-CIO-CLC v. Weber (1979)
Firefighters Local Union No. 1784 v. Stotts (1984)
Local 28 ofSheet Metal Workers v. EEOC (1986)
Local Number 93, Internal 'I Assoc. of Firefighters v. City of Cleveland .
(1986)
Johnson v. Transportation Agency, Santa Clara County (1987)
Marnn v. Wilks (1989)
.
.
Regents of the Univ. of California v. Bakke (1978)
Fullilove v. KlUlznick (1980)
"KYgant v. Jackson Board ofEducation (1986)
U.S. v. Paradise (1987)
City ofRichmond v. J.A. Croson Co. (1989)
Metro Broadcasting, Inc. v. F. C. C. (1989)
Also refer to previously distributed Q&A's used by Deval Patrick
Inclusion of Religion in the Proposed ConSolidated
"
Haras~n(ent Guidelines
.
[See attached EEQC oral testimony presented at the June 9, 1994, Senate Hearing]
will
• Additional briermg material
be provided as needed based upon our .
discussion of the appropriate response to the issue
15
�'.
•
Religious Harassment Guidelines ,- cont.
•
•
. Religious Freedom Restoratio~ Act of i993 (R,FRA) - Many members of
Congress' have expressed' concern about the interaction between RFRA and the
Religious Harassment Guidelines .. Generally, RFRA provides that the
government may not substantially burden free exercise, even by a neutral
.rule, unless the government has a compelling interest and does so using the
least restrictive means. Many of the priricipal sponsors of RFRA do not think
that the Religious Harassment Guideliqes conflict in any way with RFRA.
Employment Non-Discrimination Act of 1994 (ENDA) - Legislation introduced June
23, 1994, by principal sponsors Senator Edward Kennedy and Representatives Gerry .
Studdsand Barney Frank, prohibits diScrimination in employment on basis of sexual
. . orientation .
•. {See attached briefing material- fact sheet on ENDA and copy of the bill]
• Any. indication of Administration position? According to representatives of
the G & L cOiDInunity, there have been positive discussions with WH Counsel.
•
EEOC's Poli~ on the Use of Testers in Enforcement - In 1990, the EEOC issued a
policy guidance on the standing of "testers" to ·flle charges under Title VII. "Testers"
are defmed by th~ guidance as individuals who apply for employment which they do
not intend to accept, for the sole purpose of uncovering unlawful discriminatory
hiring practices. The EEOC's position is that "testers are aggrieved, parties under
Title VII where they have been unlawfully discriminated against ~henapplying for
employment. "
.
,
Administration Position! Activities involving the use of testers '" DOJ and HUD
currently have or are con~emplatingprograms using testers. EEOC's OMB
Examiner, Daryl Hennessy, called CEG on 7/8/94 to inquire about EEOC's use of or
· plans to use testers in enforcement programs. Daryl said that Chris Edley has advised.
· that resources are availat»le to launch an aggressive civil rights' enforcement effort
using testers. (Edley has been a strong supporter of testing for a long time and Peter
Edelman was formerly the Chair of the Fair Employment Council, the leading civil
· rights organization in the development of employment testing.) Cheryl Cashin of the
National Economic Council has also talked to Edley about developing an interagency
effort using testers.
16
.
..
,
�..
I
•
Use of TesterS - cont.
Currently, HUD has a $9 million private enforcement program which includes the use
of testers by private and "substantially equivalent" state/local goVernment fair housing
agencies. (festers were first used, and granted standing to sue, in the fair housing
context.) Kerry Scanlon, Deputy Assistant AG for Civil Rights, has discussed with
OMB a $500,000 testing program for the FY'96 DOJ budget.
[See attached briefing material summarizing the area of employment testing]
•
EEOC's Responsibilities Under Immigration Reform and Control Act of 1986 CIRCA)
* Memo on Meinorandum of Understanding between EEOC and DOJ's Office of
Special Counsel for Immigration-Related Unfair Employment Practices in Process
•
Glass Ceiling - This issue is of particular concern to women's groups and the Asian
Pacific American community (especially Japanese Americans). Information is needed
on the current status of Administration's efforts within federal government,
specifically the Glass Ceiling Commission at Labor.
Issues involving Commission Operations
This section is provided primarily for reference and as an outline for discussion;
briefing material not provided.
•
Charge Processing - The current EEOC policy of full investigation of all charges is
principally responsible for the huge backlog of cases. The Commission is urged by
all interested parties (civil rights community, business community, Congressional
oversight committees) to develop an innovative approach to dealing with the backlog
and making the administrative process more effective and efficient. Some suggestions
include:
.
•
AIm. - An ADR pilot program was conducted by the EEOC in FY 93 and is
currently being evaluated.
•
Triage- e.g., Identify strong cases or cases with potential for broad impact
early (like Eleanor Holmes Norton's Early Litigation Identification program);
identify cases for early mediation by neutral party
•
"Opt out" alternative - NELA suggestion allowing Title VII CPs to opt out
.
after 60 days instead of 180 days, as with ADA.
17
�'"
Issues ilivolving Commission' Operations.
•
Chaige Processing - cont. . ,',
Variation of Rapid Charge Processing (RCP) and Early Litigation
Idenitification (PLD '
•
•
Commonly Cited Problems with. Charge Processing
•
The Charging'party (CP) must verify her/his statement; the respondent's
'.
statement does not have to be sworn to ... '
•
Lack of training, iric1udingmulticulturallsensitivity tndning, of intake and
investigation staff; cannot address complex cases and, therefore, discourage
CPs from filing thelll
.
•
Royko Issues - Mike. Royko has written a series of articles criticizing the
EEOC's administrative process, particularly the confidentiality restrictions
(Medici ADEAcase) which prevent the parties from seeing the file during the
.. investigation, and'the failure to s~reen out apparently meritless charges (the
micrtlChip in the molar case) .
.. : [Briefing materihl' previously: provided]
•
AcCessibility Issues - discouraging, obstacles routinely encountered in the
administrative process by language minorities (monolingual and limited-English
, proficient), physically and' mentally disabled people, those with limited reading skills,
and those without access to legal counsel
•
'. Systemic Litigation ~'need to develop and bring major impact cases early to send
,message; need coordination, with other civil rights agencies with regard to targeting
.:
.
:
.
'"
'
•
Roles/Relationships of Chair, COmmissioners, General Counsel
,
.
•
Commission Meetings"; frequency, format, content
•
Policsmaking 'ProceSs - currently no formal process, no centralization; tends to be
reaCtive, in response to issues arising in the field; any good policy isuIidercut in
implementation; policy is not made "in the sunshine. "
'
,
,
,"
,
" ' ,
.
.
"
,
18
,
"
'
'
..
'.
�Issues involving Commission OPerations - cont.
)
•
Controversial 'Enforcement Policies
•
Full Investigation
•
Full Relief (v. lesser voluntary settlements)
•
Emphasis of Individual ChargeS over Systemic/Class
•
Mission of the Agency - current view is, solely law enforcement focus, no education
, loutreach'focus and no assertion~6f federal eeo leadership role
'
•
JurisdictioniAutonomyof Field Offices - all litigation decisions have to be made by
HQ,field offices' cannot proceed ,!g their own
'
'
•
State & Local FEPA v\Torksharlng Contracts - Under :Title VII, the EEOC must
coritract with qualIfying State'aildLoCal Fair Employment Practices Agencies '
(FEPAs) to process charges within the FEPAsjurisdictions.The qUality'ofFEPA
, performance is a constant issue in Congressional oyersight., As noted in tbe
Transition Report; new FEPAs charge thatcontract$ are not awarded competitively
,and,therefore, there is little incentive for the FEPAs with contracts to peifbrm well.
ThQse FEPAsin turn charge thatthey are provided Witli madequater~sOu:rcesto
perform their responsibilities.
"'"
)
,
.. [MEMO ON FEPAs TO COME]'
,
.'
,'.
•
Tribal Employment Rights Organizations (fER Os) - EEOC contracts with TEROs,
which ate akin to FEPAs, to process charges on Indian Reservations. The program is
relatively new and small, with little attention having been given to it until Acting
Chairman Gallegos.
[See attached memorandum on TEROs]
•
Computer Capacity - Charge/Litigation Tracking Systems
[See' attached memorandum on EEOC's Computer Systems]
19
CLINTON
LIBRARY ~HOTOCOPY
�Withdrawal/Redaction Marker
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DOCUMENT NO.
AND TYPE
002. report
DATE
SUBJECTffITLE
711211994
Confirmation Issues Outline (partial) (l page)
RESTRICTION
P5
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For a complete list of items withdrawn from this folder, see the
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~'
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number: 9592
FOLDER TITLE:
[Equal Employment Opportunity Commission Confirmation Briefing Materials] [2]
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RR. Document will be reviewed upon request.
�Issues involving Commission Operations - cont..
•
Perfonnance Reviews!Awards - Chairman Major Owens' staff has, complained about
the reportedly large performance awards given to favored Commission staff . despite
'
record poor perfotinance by the agency.
•
Improving Commission Servi£e to Tra~itionaJly Underserved,Co~munities - Refer to
Serrano Amendment of the Civil Rights Act of 1991, which mandates that the EEOC
conduct an edu~ti9n and Qu~ch program for:hi~~orically;'yng~f$~f!:d communities.
•
CqmmIssit)?'s ~echnical ~,ssis,~ce Role., ::r.heTechpicali\~s~s~~1F-~X9~vt~g Fund
was a~thonzed ~ 1~92 .to,~~tablish,a,~~o~ving ~n~ to (lAan~ tllecos,LQfprQviding
education, technical asSIstance, and traimng. The Fund's corpus was authorized
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appropriation. The activities spons<?.redpy,ihe.Fund ror,8;'tee,3.r~(mean,ti():' 'i '
supplement basic infonnational materials and services' provided free by the EEOC.
'I'~e Fync;l b~e operatio~al, in FY 199;3 ,and $llppor{:ed over 40 'f:~Anical Assistance
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CLINTON LIBRARY PHOTOCOPY
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�Senator Edward M. Kennedy (MA),
Chair; member of Subcommittee on Labor
Senator Kennedy will be concerned with any issues related to the Civil Rights Act of
1991 -- Equal Remedies Act, which seeks to eliminate the caps on damages; Justice for
Wards Cove Workers Act, which seeks to eliminate the special interest exemption for the
Wards Cove case from CRA '91; the Landgraf decision on the retroactive application of
CRA'91.
Kennedy is more interested in the substantive policy questions than in the operational
issues at the Commission.
RECENT ISSUES:
•
As Chair of the Technology Assessment Board (a joint Senate and House body),
Kennedy requested that the Congressional Office of Technology Assessment (OTA)
conduct a study to assess the effect of the Americans with Disabilities Act (ADA) on
individuals with psychiatric disabilities. From January through March 1993, OTA
collected data and information from EEOC on the effect of the ADA on increasing
employment opportunities for individuals with psychiatric disabilities; OTA issued its
report in March 1994.
•
In 1992, Kennedy expressed concern about the legality of the 1992 Massachusetts
Police Consolidation bill that reduced mandatory retirement age of police officers
from 65 to 55. This is the central issue of the Age Discrimination Amendments of
1993, the police and firefighters exemption from the Age Discrimination in
Employment Act (ADEA) that Owen and Metzenbaum are fighting over.
(There was EEOC litigation involving this legislation; we will provide update.)
•
In a November 23, 1993, letter to the EEOC cosigned by Senators Metzenbaum and
Dodd, discussed potential gender bias of weight standards for airline flight attendants
and stressed the need for any standards to be gender neutral and job related.
(On April 7, 1994, the EEOC announced the settlement of a lawsuit against USAir
that included the elimination of flight attendant weight standards for a three-year
period. The proposed settlement also provides a total of $90,000 in damages to
certain female flight attendants and applicants for flight attendant positions. The suit,
fued on May 6, 1992 in Greensboro, N.C., alleged that Piedmont and USAir's weight
standards violated Title VII and the ADEA.)
PHOTOCOPY
PRESERVATION
�. Kennedy- .cont.
,•
During 1990 reconfmnation of Commissioner Silberman, questioned the agency's
interpretation and administration of ADEA policy issues, including: cost as a factor
in employee benefit plans under the ADEA; EEOC/FEPA relationship in monitoring
and safeguarding federal suit rights under the ADEA; and measures for avoiding
future confrontation on ADEA issues on which the Committee and the agency differ.
•. In Clarence Thomas' 1986 reconfmnation hearing and 1990 nomination to D. C.
Circuit Court, Kennedy brought up the following issues:
•
•
•
Strengthening Title VII remedies in cases of intentional discrimination.
EEOC enforcement in disparate impact cases ..
Use of statistics in disparate impact cases and revision of the Uniform
Guidelines on Employee Selection Procedures.
PERTINENT LEGISLATION:
Civil Rights Act of 1991 (eRA '91)
.'
ennedy was a principal sponsor of the CRA '91. He is, therefore, very concerned
K
about the Equal Remedies Act of 1993 (S. 17), which would remove the cap on,
damages provided under the Civil Rights Act of 1991, and, to a lesser extent, the
Justice for Wards Cove Workers Act (S. 1037), which would delete the special
exemption for the Wards Cove case from coverage of CRA 1991 (this is a principal
civil rights issue for the Asian/Pacific AmeriCan community).
Kennedy would also bea principal sponsor of any legislation to address the recent
Landgraf decision, which held that the damages provision of CRA '91 are not
applicable to pre,.CRA '91 cases., .
MisceUaneous
•
Kennedy was a principal sponsor of the Religious Freedom Restoration Act of 1993,
passed November 16, 1993. RFRA is being used by opponents of the inclusion of
religion in EEOC's Proposed Harassment Guidelines.
�Senator Paul Simon (IL)
Chair, Subcommittee on Employment and Productivity·
Senator Simon is interested in both substantive policy issues and operational/service
issues. As Chair of the Subcommittee with primary oversight authority, he has been active
in monitoring the agency's performanCe .. The nominees shoUld be prepared to speak about
speCific problems at the agency such as the large and growing inventory (or "backlog") and
ways in which it can be addressed, the need for a systemic litigation plan, and the need for a
comprehensive evaluation of ~e organization and operations of the agency.
.
NOTE:
.
.
. Senator Simon's staff is very well acquainted with EEOC's Chicago DistriCt
Office and very supportive of its Director Jack Rowe. There is some negative
history between Rowe and Jim Troy, Director of Program Operations (perhaps
the most powerful non-political position in the agency). Simon's office is well
aware of this. .
RECENT ISSUES:
•
June 7, 1994, request that EEOC'testify at a June 21, 1994 Subcommittee on
Employment and Productivity oversight hearing .. At the 1992 EEOC oversight
hearing, Simon had promised to'hold regUlar agency oversight hearings. The
Subcommittee had initially scheduled a hearing for April 12, 1994. That hearing .was
cancelled, however, in ~ticipation of confmning a new agency chair.
•
January 26, 1994, inquiry on beha.If of constituent who believed that the
Commission's lawsuit against the Sheraton Chicago Hotel was frivolous. EEOC filed
suit against the Hotel for failing to accommodate the religious beliefs of a receptionist
-- as required under the religious accommodations provisions of Title VII -- whose
religious beliefs (Jehovah's'Witness) prohibited her from answering the employer's
phone with a holiday greeting prescribed by the employer.
The employer forced the employee into five weeks of involuntary layoff for refuSing
to offer the holiday greeting. The case was resolved on December 15, 1993 through
a consent decree which resulted in an accommodation of the employee's religious
beliefs.
•
November 4, 1993, letter requesting that EEOC prohibit the·use of weight standards
as a measure of job performance, or as an appearance requirement because such
practices· constitu't7 sexual stereotyping.
Simon - cont.
•
November 9, 1992, letter requesting EEOC's assistance in assuring that gypsies ~e
�recognized as a minority eligible for protections guaranteed by laws enforced by
EEOC.
•
On October 22, 1992, EEOC sent a copy of the Executive Summary of the Penn State
Study on the use of chronological age for public safety positions to Members of the
Committee on Labor and Human Resources. A copy of the complete 8-volume study
was hand-delivered to the Committee Chairman and Ranking Minority Member.
On June 11, 1992, Simon requested a copy of the Penn State report for himself, as
well as a constituent.
'
•
1992 EEOC Oversight Hearing on General EEOC Operations
On January 22, 1992 Chairman Simon requested data and information as part of the
Subcommitte~ on Employment and Productivitiy's oversight responsibility for EEOC.
Information requested included charge data for FY 1989 through 1991; copies of
charges flIed by testers; explanation of EEOC/state and local agency worksharing
agreements and contracts; copies of all policy guidance relating to enforcement and a
list of developing and planned guidance.
February 11, 1992 follow-up request for copies of documents from 90 no-cause
charges processed by EEOC and State and local agencies.
On March 10, 1992 copies of all Chairman Kemp's testimony and speeches provided
to Subcommittee, as requested by staff.
March 10; 1992 request that EEOC testify 'at April 28, 1992 oversight hearing before
the Subcommittee on Employment and Productivity.
April 7, 1992 Subcommittee request for information in preparation for the April 28
hearing. Issues included:
1.
Potential EEOC revisions to the Uniform Guidelines on Employee
Selection Procedures.
2. Charge data 'regarding UGESP violations
3.
4.
Charge and litigation data on cases raising fetal protection'issues (UAW
v. Johnson Controls).
Charge and litigation data on Pregnancy Dis,crimination Act disparate
.. impact cases.
�5.
Charge and litigation data on sexual harassment cases.
6.
Charge data on cases filed by testers.
7.
Breakdown of systemic charge and litigation data.
8.
Information on open and
hold vote decisions.
clos~d
Commission meetings and notice and
On May 15, 1992, June 3, 1992 and June 11, 1992 submission of additional
information for inclusion in April 28 hearing record. Issues included glass ceiling
charges, EEOC funding, Kemp Commissioner charges, EEOC annual reports, early
retirement incentives under the ADEA, RIFs under the ADEA, EEOC's advance
rulemaking on the Older Workers ..Benefit Protection Act.
.
,
~
•
November 19, 1991 letter on behalf of Joann De Grosa who contacted Simon
following a hearing he conducted on women and the workplace. Requested status of
EEOC v. Yellow Freight Systems. '.
•
'October 4. 1990 letter on behalf of constituent Michael WeIbel, President of Daniel
Lamp Co. regarding EEOC's investigation of charge filed against the Daniel Lamp
Co. EEOC subsequently filed suit against the company. '
'
No pertinent legislation sponsored by Simon that relates to EEOC.
�Senator Tom Harkin (lA)
Chair, Subcommittee on Disability Policy·; member of Subcommittee on
Employment and Productivity, and Subcommittee on Labor
Senator Harkin's principal issues of concern will be the ADA and matters related to
disability .
RECENT ISSUES:
eDuring the agency's development of guidance on the relationship of the Family and
Medical Leave Act (FMLA) and the ADA, Harkin joined Dodd in a November 22, .
1993 letter to the EEOC to clarify the intent of Congress in applying overlapping'
provisions of the two laws. Harkin stressed that c;ongress intended to allow the
statute providing the ,greatest coverage or protection to govern in such instances.
EEOC's response assured Dodd and Harkin that the agency is coordinating with
Labor during the rulemaking on FMLA to ensure that existing ADA/Title VII rights
are preserved. Additionally, EEOC indicated that it will issue enforcement guidance
on the issues related to ADA, Title VII, andFMLA after discussions with Labor.
eHarkin joined seven other senators, including Mikulski, in a November 12, 1993,
letter urging the EEOC to prohibit the use of weight standards by employers as a
measure of flight atb?ndant performance or appropriate appearance.
(On April 7. 1994, the EEOC announced the settlement of a lawsuit against USAir
that included the elimination of flight attendant weight standards for a ~e-year '
period. The proposed settlement also provides a total of $90,000 in damages to ,
certain female flight attendants and applicants for flight attendant positions. The suit,
ftled on May 6. 1992 in Greensboro, N.C., alleged that Piedmont and USAir's weight
standards violated Title VII and the ADEA.)
e
To evaluate EEOC's progress in implementing employment provisions of the ADA,
Harkin made a November 3, 1992 request for documents and data, including ADA
charge data, technical assistance materials developed; text of all ADA speeches, ~d a
narrative summary of EEOC's implementation efforts from enactment.
Harkin did not intend the request to lead to an oversight hearing or a formal report.
The request Was simply for use by. the Subcommittee in tracking ADA .
implementation..
. 'eFebruary 22, 1991, letter to President Bush requesting reconsideration of funding
le~els for implementing the ADA.
�Harkin - cont.
PERTINENT LEGISLATION:
Rehabilitation Act Amendments of 1993 (P.L. 103-73, passed 8/11/93). The Act amended
the R,ehabilitation Act of <1973 and the.Education of the Deaf Act of 1986 to make teclmical
and confonning amendments, making them confonn to the ADA.
�:Senator Barbara A. Mikulski .(MD)
Chair; Subcommittee on Aging·; member of Subcommittee on Employment and
Productivity
OCLA review found no special issues of concern. Mikulski has been at the forefront
of the issue involving the Architect of the Capitol's' discriminatory hiring patterns and she is
usually very vocal on women's issues.
RECENT ISSUES:
•
Mikulski joined Eleanor HolmeS ·Norton in a May 19, 1994, letter to the President
expressing concern· about lack of appointment for EEOC Chair, particularly because
of EEO problems in federal governmep.t agencies. The letter notes that sexual and
racial discrimination are widespread throughout the federal government and that the
Senators have received numerous requests for assistance from federal employees
complaining of discrimination and. harassment.
•
Mikulski joined with seven other senators,inc1uding Harkin, in a November 12,
1993, letter urging the EEOC to prohibit the use of weight standards by employers as
a measure of flight attendant performance or appropriate appearance.
(On April 7, 1994, the EEOC announced the settlement of a lawsuit against USAir
that included the elimination of flight attendant weight standards for a three-year
period. The proposed settlement also provides a total of $90,000 in damages to
certain female flight attendants and applicants for flight attendant positions. The suit,
filed on May 6, 1992 in Greensboro, N.C., alleged that Piedmont and USAir's weight
standards violated Title VII and the ADEA.)
�.Senator Howard M. Metzenbaum (OB);
Chair, Subcommittee on Labor-; memJ>er of Subcommittee· on Aging and
Subcommittee on Disability Policy.
Senator Metzenbaum has been very supportive of the EEOC on almost every issue.
He is especially particularly interested in age and religion.
RECENT ISSUES:
eMetzenbalim made a strong statement in. support of EEOC's proposed harassment
guidelines (particularly the inclusion pf religion in the guidelines) at June 9, 1994,
hearing before Senate Judiciary Subcommittee on Courts and Administrative Practices
(HeflinlGrassley).
.
e
Metzenbaum is adamantly opposed to mandatory retirement ages for public safety
officers and to extending the exemption provided to public safety officers in the 1986
. Amendments to the ADEA. The Age piscrimination in Employment Act
. Amendments (H.R. 2722), for which Major Owens is principal sponsor and which
passed in the House last fall, would permanently extend the exemption:
Metzenbaum's Labor Subcommittee held a hearing on April 19, 1994, on the
legislation; Owens joined the panel. Metzenbaum and Pryor were involved in the·
1986 compromise that provided for 'a temporary exemption to allow state and local
governments additional time to comply with the ADEA.
Owens was successful in attaching H.R. 2722 to the Crime Bill. Metzenbaumfeels
so strongly about this issue that he threatened to filibuster the Crime Bill rather than
let H.R. 2722 pass.
e
In a November 23, 1993 letter to EEOC, Metzenbaum expressed his opposition to
allowing weight standards for flight attendants ..
e
Older Workers Benefit Protection Act (OWBPA):
* SEE ATTACHMENT FOR SUMMARY OF OWBPA
- Subcommittee with Oversight Authority over EEOC (either full or limited)
�Metzenbaum -cont.
Relevant MetzenbaumlEEOC Activity on OWBPA
September 1, 1992, letter cosigned by Senators Metzenbaum and Pryor and'
Representatives Matthew Martinez, Edward Roybal, Pat Williams and William Ford
requestfug that EEOC provide guidance to the Coalition on State· and Local Employee
Pension and Benefit Issues in complying with provisionS of OWBPA.
May 13, 1992, letter from Senate Subcommittee on Employment and Productivity
Chairman Simon submitting ADEA questions from Senator Metzenbaum to EEOC
(e.g., data on lawsuits filed involving early retirement incentive programs; RIFs
under the ADEA; EEOC's Advance Notice of Proposed Rulemaking under OWBPA).
On December 4, 1989, EEOC transmitted draft language to the Labor Subcommittee
for tolling the ADEA's statute of limitations for employee benefit claims, as requested
by Metzenbaum at the Subcommittee's hearing on S. 1511" Older Workers Benefit
Protection Act of 1988, legislation to address the Supreme Court decision in Betts.
On September 27, 1989, EEOC Vice Chairman Silberman and General Counsel
Shanor testified at a joint hearing, before the' Senate Labor Subcommittee and Special
'
Committee on Aging on S. 1511 and S. 1293.
On September 11, 1989, EEOC provided its views on questions relating to S. 1511 in
response to an August 18, 1989 request from Senators Metzenbaum, Pryor and
Jeffords.
On Apri119, 1989, in response to request from Metzenbaum, EEOC provided
suggested language changes to S. 54, the Age J)iscrimination in Employment
Waiver Protection Act of 1989 (introduced by Metzenbaum), for the committee's
report on the legislation, as well as options for EEOC sqpervision of waivers under
the bill.
"
On March' 16, 1989, EEOC Chairman Thomas testified at the Senate Labor
Subcommittee hearing on S. 54.
... SEE ATTACHED FACT SHEET ON WAIVERS
eDecember 11, 1987, letter expressing concern about EEOC's delay in conducting,
study mandated under the 1986 Amendments to the ADEA signed bY.Senators
Metzenbaum, Kennedy, Bradley. Heinz, Melcher and Wendell Ford.
�Metzenbaum - cont.
•
Dwing 1990 reconfIrmation of Commissioner Silberman, Metzenbaum questioned the
agency's interpretation and administration of ADEA policy issues, including cost as a
factor in employee benefit plans under the ADEA; EEOC/FEPA relationship in
monitoring and safeguarding federal suit rights under the ADEA; and measures for
avoiding future confrontation on issues where the Committee and the agency differ.
.•
Issues raised during 1986 reconfrrmation hearing of Thomas as EEOC Chair and 1990
nomination hearing for district court judge:
'-
Lack of EEOC regulations implementing the accrual of pension benefits
beyond normal retirement age. (SEE ATIACHED FACT SHEET ON
PENSION ACCRUAL)
-EEOC's handling of lapsed ADEA charges, including' EEOC/FEPA
relationship.
Waivers under the ADEA.
Early Retirement Incentive programs under the ADEA.
\PERTINENT LEGISLATION:
S. 1776
Civil Rights Standards Restoration Act, addresses' the Supreme Court decision
,in St. Maa's Honor Center v. Hicks..
S. 1984
Government Organization and Employees, Title 5 U.S.C., Amendment,
repeals provision of Title 5 which permits mandatory retirement age for
.federallaw enforcement and other federal safety positions.
.
�Senator Clairborne Pell (RI)
Member of Subcommittee on Aging
OCLA review of files fmds no issues of concern and few constituent inquiries.
Senator Pell has not expressed much interest in. the agency, but, because of his membership
on Aging Subcommittee, he is likely to be attentive to ADEA and aging issues:
�Senator Christopher J. Dodd (CT)
Member of Subcommittee on Aging and Subcommittee on Labor
RECENT ISSUES:
.
.
.
•
Joined Kennedy and Metzenbaum in November 23, .1993, letter to EEOC concerning
weight standards for flight attendants and urging that EEOC prohibit the use of such
standards.
•
During the agency's development of guidance on the relationship of the Family and
Medical Leave Act (FMLA) and the ADA, Dodd joined Harkin in a Jl{ovember 22,
1993 letter to the EEOC to clarify the intent of Congress in applying overlapping
provisions of the two laws. Dodd stressed that Congress intended to allow -the statute
providing the greatest coverage or protection to govern in such instances.
EEOC's response assured Dodd and Harkin that the agency is coordinating with
Labor during the rulemaking on FMLA to ensure that existing ADA/Title VII rights
are preserved. Additionally, EEOC indicated that it will issue enforcement guidance
on the issues related to ADA, Title VII, and FMLA after discussions with Labor.
�,SenatQr Jeff Bingaman (NM) ,
Member of Subcommittee on Disability Policy and Subcommittee on Employment and
Productivity
OCLA review fmds no issues of conCern and limited constituent inquiries. 'May note '
'that the Albuquerque, NM, office was expanded from an Area Office to a District Office in '
January 1994.
'
NOTE:
,
.,
&cau~,of:-Bmgainari'-Ufrge Hispamc aiUfNative-American-constituencies, it
is likel(
that he will be concerned with language-minority issues, SUcll-'a-~the
Sp~,{ Steak case involving the EEOC's national origin guidelines and the
prk~b.ition ·speak-Englis~_onlY·
~ghts ~
of
';'Ih:s; Tribal Employment
, OrgaruzatIons (TEROs), which are sundar to state and local !!!r_employment
practi~gen~s;-~and'_8:cces~seI'Y.ice_issues.~
,
�Senator Paul D. Wellstone (MN)
Member of Subcommittee on Labor.
NOTE:
Wellstone is also on'Committee on Indian Affairs
OCLA review fmds no issues of concern. Some constituency inquiries dealing with
poor/delayed service and effect on employees ·claims if company is sold to foreign interests:
. (No EEOC reply yet to last issue.)
•
.In January, 1994, Minneapolis EEOC office was expanded from Local Office to Area
Office, indicating greater caseload.
�· Senator Harris Wofford (pA)
Member of Subqmnnittee on Aging and Subcommittee on Employment and
Productivity
a
OCLA review fmds no issues of concern. In connection with constituent inquiry,
Senator Wofford raised his own questions about protections afforded by federal anti
discrimination laws for permanent residents.
�Senator Nancy L.Kassebaum (KS),
Ranking Minority Member; member of Subcommittee on Labor
Senator Kassebaum will probably most interested in operational/service issues at the
Commission.
RECENT ISSUES
Only correspondence has been constituent inquiries, no requests for information or
~iscussion of specific issues.
•
In the April 28, 1992, oversight hearing before Simon's subcommittee, Kassebaum
mentioned the following: .
•
Lack/poor quality of agency's responsiveness to charging parties. Expr$!ssed
great frustration with the EEOC's lengthy administrative process and that her
constituents feel "lost" in it.
4
Kassebaum was particularly 'concerned with a case dually filed with the Kansas
Human Rights Commission and the EEOC in 1987, voluntarily withdrawn
later that same year, and yet it was not until 1991 that the parties were notified
by the EEOC of its disposition.
'.
Kassebaum asked about the poor coordination between EEOC and the state and
local Fair Employment Practices Agencies (FEPAs) with which it contracts to
process charges. She was told by EEOC that State and Local programs had
just been raised to the division level within the agency, so it would receive
more attention. Improvement expected by 1993.
�Senator Strom Thurmond (SC)
Ranking Minority Member, Subcomritittee on Employment and Productivity·;
member of Subcommittee on Labor
..
Senator Thurmond has been a bit more involved than most other senators in his
constituent inquiries, so service issues may be a concern to him. There is also
correspondence from former Chair Kemp to Thurmond acknowledging the Senator's support
for the elimiml:tion of w.ferential-polic~ the workplace.
�. ,Senator Dave Durenberger (MN)
Ranking Minority Member, Subcommittee on Disability Policy·; member of
Subcommittee on Aging
OCLA review found no specific issues of concern.. Senator Durenberger has usually
been supportive of Civil Rights legislation.
RECENT ISSUES
•
The only correspondence of note was letter from Kemp to Durenberger regarding' a
Durenberger, Kemp, and Silbennan meeting, at which the following issues were
discussed:
•
•
•
Heavy investigator workload and need for additional resources.
Iie4er~~:;E.m.p'IQy..ee.,;Eairness-Achof 1992 (FEFA) and the lack of additional
,resoW-res necessary to implement transfer of responsibilities to EEOC.
In January 1994, Minneapolis EEOC office was expanded from Local Office to Area
Office, indicating greater caseload ..
�,Senator Judd Gregg (NH) - [elected 1992]
Ranking Minority Member, Subcommittee on Aging"'; member of Sucommittee on
Employment and Productivity
OCLA review fmds no issues of note. The Senator has been in office only about a
year and a half.
�Senator Orrin G. Hatch (UT)
Ranking Minority Member, StiJ>committee on Labor"'; member of Subcommittee
on Disability Policy, and Subcommittee on Employment and Productivity.
OCLA review fmds no issues of note in either individual correspondence file or in the
Subcommittee on Labor fIle. There is correspondence from former Chair Kemp to Hatch
acknowledging the Senator's support for efforts to eliminate preferential policies in the
workplace.
RECENT ISSUES
•
.Hatch participated In the April 9, 1994, hearing on the inclusion of Religion in the
Proposed Consolidated Harassment Guidelines. Most of his statements. addressed the
Justice Department's first brief filed on the application of the Religious Freedom
Restoration Act of 1993 (RFRA). Hatch believes that Justice has adopted an
extremely low standard for RFRA.
.
•
. Hatch was a key player in the negotiations on the Civil Rights Act of 1991. He
WOUld, therefore, be important on any "clean up" legislation related to CRA'91 .
(Equal Remedies, Justice for Wards Cove Workers, Retroactivity). .
�Senator James M. Jeffords (VT)
Member of Subcommittee on Disability Policy and Subcommittee on Labor.
Senator Jeffords is concerned with the ADEA and older workers issues. He was also
very involved and helpful on the Civil Rights Act of 1991.
RECENT ISSUES
•
·OCLA review found that last correspondence from Jeffords ·to the Commission was in
.1991. His most recent substantive correspondence was in 1989 and involved the
ADEA.
•
In June 1989, Jeffords proposed an amendment to S. 54, the Age Discrimination in
Employment Waiver Protection Act of 1989, which would require employers
~eeking waivers of ADEA rights or claims in connection with grouptennination
~rograms to reimburse employees for "reasonable". @.ttorneys. fees for advice on
~hether to accept or reject. Jeffords suggested that EEOC establish standards for
freasonableness to limit· amounts paid by employers.
11
•
Concerned about protecting older workers from age-based discrimination in the area
of employee benefit plans. Jeffords joined Pryor and Metzenbaum in August 1989
letter to Commission inquiring about agency's views on Older Workers Benefit
Protection Act and the Betts decision.
•
It appears that Jeffords' concerns with AnEA waivers and pension benefits were
addressed in the Older Workers Benefit Protection Act.
.
�Senator Dan Coats (IN)
Member of Subcommittee on Aging and Subcommittee on Employment and
Productivity
OCLA' s review found only one item in Coats' me -- a draft of a letter from Evan
Kemp regarding a meeting between Coats, Thurmond, Kemp. and a "steering committee" to
discuss EEO issues. Kemp mentions Coats' offer to support efforts to eliminate pr.eferential
~:"~,",.r:;!.Ji£i,ns~i)
nnlicies in the workplace.
~~.
PHOTOCOPY
PRESERVATION
�The Older Workers Benefit Protection Act of 1990
In Public Employees Retirement System of Ohio v. Betts, 492 U.S.
158 (1989), the Supreme Court interpreted the Age Discrimination in
Employment,Act of 1967, as amended (ADEA), 29 U~S.C. § 621 et seq.,
with regard to the legality of employee benefit pl,ans.
.
.
One ~ajor effect of the Betts case was the rejection by the Court
of longstanding interpretations (developed by the Department of
Labor and adopted by the Commission) relating to employee benefit
plans.
In 1979, the Department of. Labor issued an Interpretive
.Bulletin (I.B.) on employee benefit plans and the ADEA, and the
Commission adopted the I.B. when it took over.enforcement of the
.ADEA in 1979. The I.B. stated that it is permissible to offer a
lower level of employee benefits to older workers as long as the
lower level of benefits is justified by age-related cost
considerations.
(If, for example,' life insurance cost twice as
·much for a 60-year-old as for a 55-year-old, it is permissible to'
give' the older worker half' as much insurance as the younger
worker). '
'
In Betts, the Supreme Court determined, among 'other things, that
.the "equal cost or equal benefit" interpretation set forth in the
I. B. was not consistent with the ADEA, and was an incorrect
interpretation of the ADEA's "subterfuge" provision.
The Court further declared in Betts that employee benefit plans
were exempt from the purview of the ADEA as long, as such plans were
not a method for discriminating in non-fringe benefit aspects of
employment. The effect of this decision was to permit virtually
any age-based differential in treatment. in the area of fringe
benefits; for example, an employer could decide to deny sick leave
or vacation pay for persons over the age of SO, as long as the
decision was not taken to force such persons to retire or to
retaliate for prior EEO activity.
Congress decided that the· ruling in Betts warranted a legislative
response.
On October 16, 1990,' the Older Workers Benefit
Protection Act of 1990 (OWBPA) became law, amending the .ADEA in
significant detail. In brief, OWBPA (Title I) overturned the legal
analysis in Betts with regard to employee benefit plans and (Title
II) addressed the minimum criteria necessary for a "knowing and
voluntary" waiver of ADEA rights or claims.
In principal part, Title I of OWBPA took the following steps:
(1)
OWBPA amended section 11 of the ADEA to make it·
clear that "employee benefits" would be included in the definition
of "compensation, terms, conditions, or privilege,s of employment"
in sect~on 4(a) (1)- of the ADEA.
�(2)
OWBPA amended section 4 (f) (2) -to incorporate the
equal cost, ,or equal benefit principle et:nbodied in the regulations
'at C.F.R. § 1625.10, as in effect on June 22, 1989, and stated
29
that the provisions of section 4(f) (2) constitute an affirmative
defense, with the employer bearing the burden of proof under that
section.
.(3)
OWBPA provided exceptions and "safe harbors" for
voluntary early retirement plans, severance pay plans, and long
term disability plans.
(4) OWBPA addressed special concerns of State and local
governments regarding potential cost increases in two ways: (a) by
providing for a two-year delayed effective date; and (b) by
aliowing current employees to elect to retain their present long- .
term disability coverage when a new plan is implemented even though
such present coverage may not comply with the ADEA.
-Title I'! of OWBPA amended section 7 of the ADEA by adding
subsection(f} concerning waivers of rights or claims under the
Act. Title II expressly provides that unsupervised waivers may be
valid and enforceable if they meet certain enumerated requirements
and are otherwise knowing and voluntary ..
On March 27, 1992, the Commission published a Request for Comments
in the Federal Register, 57 FR 10628 (March 27, 1992).
The
Commissionreceived approximately 40 comments from. members of
Congress and from the public. Among the commentors-were Senators
PrYor, Metzenbaum, and Hatch; Representatives Goodling, Martinez,
Roybal, Clay, and ,Ford; the American Association of Retired
Persons; the Equal Employment Advisory Council; and the Coalition
on State and Local Employee Pension and Benefit Issues (Coalition).
�•
FACT SHEET
Waivers and Releases of Private Rights
under the Age-Discrimination in Employment Act
Equal EmploYment Opportunity Commission'adopted a final rule on July
30* 1987 ,which set forth guidance for employers and employees entering
i.nto waiver agreements and settlements of ADEA rights without supervision
and approval by EEOC. Waivers may release the employer from liability
under the ADEA in exchange for money or other benefits. An amendment to
Public Law 100-202 states " . . . . the final rule regarding unsupervised
waivers under the Age Discrimination i~ Employment Act • • • shall not
have effect during fisca~, year 1988." The amendment further provides that
no Commission funds could be used during fiscal year 1988 to give effect
to any policy or practice pertaining'to unsupervised waivers under ADEA.
Congress extended the suspension of the EEOC rule for another year as part
of the EEOC's fiscal year 1989 appropriation bill. The same suspension
~anguage has been attached to EEOC's,fiscal year 1990 appropriation ,bill
currently awaiting Bouse and Senate conference.
~he
o
·D
o
'D
The EEOC has never supervised ADEA waivers on a routine basis.
.In promulgating the waiver rule, the EEOC acted to promote the
interests of the vast majority of older workers ·for whom private,
voluntary and expeditious ADEA settl'ements are desirable. At the
same time the rule protects any worker who wishes EEOC supervision.
The rule provides safeguards against coerced waivers and allows EEOC
to focus its resources on waivers that are challenged as not knowing
and voluntary.
The rule requires that all unsupervised waivers must be knowing,
voluntary, supported by consideration, and not waive prospective
'rights.
~he
EEOC rule on unsupervised waivers furthers the goals of the ADEA.
An employee can always ask for government help before or after the
signing of a waiver.·. Under the rule all challenged waivers will be
closely scrutinized by the Commission. No waiver can prevent an
employee from coming to the Commission"and employees are protected
£rom retaliation if they seek to challenge a waiver.
,D
The Commission retains its right and its responsibility' to enforce the
ADEA.
o
Requiring routine supervision of private, volun,tary ADEA waivers and
settlements made each year would impose needless burea~cratic
oversight and delay even when such waivers are in the mutual interests
of employees and employers.
Government'superVision would at best delay -- and more likely
discourage -- employers from providing valuable benefits or.additional
comp~nsation to older employees who freely choose to release their
rights or claims. It is likely government supervision would
discourage employers from offering enhanced bepefits to older workers
altogether.
over
�.
•
o
Six circuit co~rts of appeals have decided that voluntary,
unsupervised waivers under the ADEA are permissible. The EEOC's rule
.is in accord with these decisions, provides additional safeguards that
waivers be knowing and voluntary and is iritended to,extend this
,protection to other' circuits.
o
~it1e VII
voluntary
voluntary
therefore
of the Civil Rights Act permits unsupervised knowing and
waivers. ' Title VII.and the ADEA both seek to promote
and expeditious resolution of disputes. The EEOC's rule
applies the same Title VII standard to the ADEA.
ADEA and the FLSA are silent on the issue of waivers. Yet
,opponents of the EEOC's rule ,argued that case law under the Fair
Labor Standards Act requiring government supervision of waivers
should apply to the Age Act because the Age Act incorporates the
ELSA's enforcement provisions.
' ,
o~he
argument has in effect been rejected by six circuit courts of
appeals. in Runyan v. NCR Corp., the initial case ori ADEA waivers, the
,Sixth Circuit, sitting en bane, held that unsupervised waivers are
permitted where there are bonafide factual disputes. Notably, it
found signifiparit differences between the purposes of ADEA and the
wage and hour protections afforded by the,PLSA..
.
~his
o. Through suspension of EEOC's waiver 'rule during fiscal years 1988 and
1989 and 'the introduction of two bills limiting the use of waivers
under the ADEA, Congress has indicated its interest in exploring
'alternative
approaches to the EEOC rule. S. 54, the "Age
Discrimination in Employment Waiver Protection Act of 1989",
introduced by Senator Howard Metzenbaum (D-Ohio), would prohibit the
use of waivers without supervison of EEOC or a court, except in
settlement ofa bona fide claim under the ADEA. A similar measure
introduced by Rep. Augustus Hawkins (D-Calif.),H.R. 1432, prohibits
the use of waivers except as part of a settlement of a bona fide claim
of age discrimination made by a worker against the employer. Both
bills await floor action.
.
�.
•
.,
.
FACT SHEET ON PENSION BENEFIT ACCRUALS .
1967 ., The Age Discrimination In Employment Act Is ~ssed. '
exception In section 4(f)(2) permitted an employer to 'observe
the terms of a bona fide employee benefit plan....whlch II not a
aubte!"uge to evade the purposes of the Act. II
'*
1978 • The AOEA Is amencledto Increase age cap from 65 to '
70 and expressly prohibit Involuntary retirement.
' '
,
May 1979 • The Department of Labor Issues an Interpretive
bulretln stating that the AOEA does not require pension
accruals for employees working past normal retirement age.
July,1979 • Jurladlctlon over the ADEA II transferred to
EEOC.
"
AprD 1980 - EEOC approves proposed regulations to reverse
the position taken by DOL on pension accruals. , '
.'
'* ,.
Sept. 1980 - Pr~posed final regulations to amend DOL
Interpretive bulletIn are removed from EEOC agenda.
'* May 1982 • Clarence Thomas becomes chairman.'
* Dec. 1982 • Chairman Clarence Thomas decides to reopen
question of replacing Interpretive bulletin.,
.
'*
the
March 1985 - EEOC approves pr~ rules to mand8te the
continuation of pension,accruals beyond normal retirement age.
Feb. '1986 • The AmerICan Association of Retired Persons '
(AARP), files petition asking EEOC to rescind Interpretive
'
bulletin and Issue final rules. Petition Is denied June 29. 1986.
*
June 1986 - AARP files suit agaInst EEOC ,alleging
unreasonable 'delay In promulgating regulations.
- pubnc Law 89·905 (OBRA) adds
'* Oct. 1986requirIng pension accruals regardless new aactlon.4(1)
to ADEA
of age. .
'*
Nov. 1986 - EEOC votes to terminate prior rulemaklng project
and devote agency resources to promulgating regulations under
OBRA.
.
�.
..
•
.
.
*
Feb. 1987· Dlslrl;l court rules against EEOC In AARP lult
and orders Commlaslon to Issue frnal rules. EEOC appeals.
*
July 1987 .. EEOC wi~s appeal.
*
Nov. 1987 - EEOC approves notice of
under . O B R A . ·
..
Jan. 1988 .' EEOC, with .concurrence of DOL and Treasury
(IRS), develops final regulations under OBRA but final vote .'
proposed' rulemaklng
."
. postponed at request of IRS. .,
*
.
Jan. 1989 • EEOC publishes pubJlc notice on final regulations
. under OBRA In accordance wlth public notice Issued by IRS.
Notices Indicated that final regulations of the two agenCies
regarding the effective date of OBRA would provide that
noncontributory defined benefit plans would be required to .
count all years of credited servlee, regardless of whe'~her such
.
years occurred prior t~ 1988. .
EEOC final regulations under OBRA are awaiting action by
IRS, the lead agency under OBRA.
.•\
.
�SENT
BY:
6-28-94 ;12:50PM
EEOC....
202 456 7028:# 3
QUESTIONS FROM. SENATOR THtTRMOND FOR THE EEOC:
10
Although it was not required by law, i t seems clear that the
comment period for the proposed guidelines has been vital to air
issues of qreat concern to a large segment of Americans.
If the
EEOC substantively modifies the proposed guidelines, will you
. commit to providing another period for comments on the
modifications before issuing final guidelines?
2.
If an employer requires a "religion free" workplace, do you
~h~k
that the
EEOC
would challenge that position as violating
employees' rights to religious freedom?
3.
If it'is t:ue that the
EEOC
intends to maintain separate
guidelines for sexual harassment, does that indicate that
requests for individualized quidelines for religious harassment
are not unreasonable, especially given that religious freedoms
are specifically protected by the Constitution?
-1
�,
.
EEOC...
6-28.,.94 ;12:50PM
SENT BY:
202 456 7028:# 2
JOSEPH A. alD£~. J... DELAWARE. CHAlAN.AJI
COWARD
'II. II:EMJII1lDY. MAS8AC:HUSETTS
MOWAIIO M. Mm9lBAUM. 0",0
nl!ItNl$ DtICONCINI. AIIIIZONA
'AlRICIIC J. LlAHY. VERMOHT
ttOWIiU. H!A.IN. ALoiSAM"
"AU!.. SIMON. ILLINOIS
Hfll8EfCT I(OHL WISCONSIN
OIAHNl! fIllHS1'ElN. CAUFOfINIA
CAACIL M05ELl't'4AAYN. ILUNOIS
OftRING, KATC:H.UT"H
SmOM TMIIRMONO. sOUTH CAROLINA
AIoAN IC. IIMPSO... W'fONIMG
CHAllUS i. GRASSLEY.IOWA
ARLEN SPE:C'nR, P!MMS"'~VANIA
HANI( .IIOWN. COLOIIADO
WIl.LI"'''' S. COlia.. MAINE
tlnitm ~tattl ~matt
LAIUI1' P'RISSLEII, SOUTH OAAOT A.
Cl'1ITMlA C. Il00• . ttlllJ COU"1m.
U,....lIllll ... 1lU&8EU.ITAFJ DIRlCTDII
_ I t MUll ......ORln ITlI1f ~CTOII
,.......,..PIIQ8T. _Ollln' CIIII' COUIIIEL
CQMMlliEe ON THE JUDICIARY
WASHINGTON. DC 20&10-8275
June 15, 1994:
Douglas Ad Gallegos
Executive Director
Equal Employment Opportunity Commission'
1801 L Street, N.W.
'
lOth Floor
Washington, D.C. 20507
Dear Hr. Gallegos:
~hank you for testifying on June 9, 1994, at the Senate Judiciary
Subcommittee on Courts and Administrative Practice'. hearing on EEOC
Proposed Guidelines to Reliq10us Harassment. Your tast~ony was very
helpful to the Subcommittee's understanding of this complex issue. ,On
behalf of the mamberso~ the Subcommittee I wish to express our
appreciation for your participation in this hearing.
Sincerely,
%~
p • S.
Attached. are written questions wbi!ch I would appreciate your
ansnrinq and retumLlw to me by PAX at (,02) 224-3149. I will. distribute
tbem to the appropri.Ate Senator when ygDI respond. Please PAX "!O!lX'
respgnses to me by Prida.%. June 24, 1994'.
Bli/cc
Enclosure
�6-28-94 ;12:49PM ;
SENT BY:
v.e.
Of~10.
202 456 7028:# 1
EEOC'"
Wqual Bmploraeat opportuait! comai••loD
of ComauDloatioaa .at Leql.1.tlv. Aff.ir.
1801 L .t~•• t, aw, Rooa IOJ4
. W.lh1IlgtOD, DC 20507
~AZ f CIDI) .I,-t.12
au
I
lt212:CJ/~v
~Dma
____________
a'SftA&uJ~
..u DLZa-aon nKB.BI_% ~_-....
__ 1..;;.O~28....;;;;..._ _ _ _ _ _ _ _ __
eazCK ODI
D.uaVZY8
(202) "3 - _ __
OaK
(102) . , , -_ __
DOGe
(202) '1' - _ __
0
0 1'0
, (202) , . , -_ _""'--
DOLe
(202) 1'3-_ __
Douo
(202) " , -____
~~I------_ _ _--------~-------------------DXID DJ' .aul S'1WIDJft'BD (JlItCL'ODIRQ COVBI.IDZT) 1_,_3;;:;..____
1'1•••• t.l.pbo•• til. appropri.te offlo. DoV. If 70\1 40 Dot r."el"e
all lIoCl1lllezaa.
�Wit11drawal/Redactio11 Marker
Clinton Library
DOCUMENT NO.
AND TYPE
003. memo
DATE
SUB.JECTffITLE
Peter Yu to Robert Rubin re: Affirmative Action & Procurement
Reform (2 pages)
9/28/1993
RESTRICTION
P5
This marker identifies the original location of the withdrawn item listed above.
For a complete list of items withdrawn from this folder, see the
WithdrawaVRedaction Sheet at the front of the folder.
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number: 9592
FOLDER TITLE:
[Equal Employment Opportunity Commission Confirmation Briefing Materials] [2]
ds56
RESTRICTION CODES
Presidential Records Act- [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
PI
P2
P3
P4
b(l) National security classified information [(b)(l) of the FOIA]
b(2) Release would disclose internal personnel rules and practices of
an agency [(b)(2) of the FOIA]
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
b(4) Release would disclose trade secrets or confidential or financial
information [(b)(4) of the FOIA]
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
b(7) Release would disclose infonnation compiled for law enforcement
purposes [(b)(7) of the FOIA]
b(8) Release would disclose information concerning the regulation of
financial institutions [(b)(8) of the FOIA]
b(9) Release' would disclose geological or geopbysical information
concerning wells [(b)(9) of tbe FOIA]
National Security Classified Information [(a)(l) of the PRA]
Relating to the appointment to Federal offiee [(a)(2) of the PRA]
Release would violate a Federal statute [(a)(3) of the PRA]
Release would disclose trade secrets or confidential commercial or
financial infonnation [(a)(4) of the PRA]
P5 Release would disclose confidential advise between the Prcsident
and his advisors, or between such advisors [a)(5) of the PRA]
P6 Release would constitute a clearly unwarranted invasion of
pcrsonal privacy [(a)(6) of the PRA]
C. Closed in accordance with restrictions contained in donor's deed
of gift.
PRM. Personal record misfile defined in accordance with 44 U.S.c.
2201(3).
RR. Document will be revi,ewed upon request.
�EEOC's Attorney-of-the-Day
Both OLC and OFO offer an "Attomey-of-the-Day" as a resource for EEOC field and
headquarters staff. The Attomey-of-the-Day program operates in each office on a daily basis
and is staffed by attorneys according to a rotating schedule. Occasionally, inquiries from the
public may also be referred to the Attomey-of-the-Day for response .. "
.
Attomeys-of-the-Day answer calls according to the jurisdiction of their office. OLC's
Attorney-of-the-Dayaddresses questions on all EEOC-enfprCed statutes. OFO's Attorney-of-the
Day responds to inquiries about the federal EEO pr<>q!ss. .,
"
PHOTOCOPY
PRESERVATION
�• i
WHAT HAPPENS TO CHARGING PARTIES 1
A potential 'charging party calls" writes, and/or visits. His/her first point of contact is
the Investigative Support Assistants (ISAs)2in the Charge Receipt/Technical Infonnation
Villt who screen the matter to detennine whether EEOC has jurisdiction. If EEOC does not, .'
they refer the individual elsewhere. If EEOC has jurisdiction, 'the ISA discusses the merits
of the case with the individuaL At that point, some individuals will choose not to file.
Individuals who choose to file and who have walked in are then seen by an investigator who
is rotated to the intake process, generally on a weekly basis. 3
An investigator drafts a charge and affidavit for the charging party's signature. ISA's
draft these documents for the charging parties who call or write in; they will also draft
charges and affidavits for walk-ins when the investigators are overwhelmed. The charging
party leaves the office with a copy of his/her charge, a fact sheet, and a copy of a Privacy
Act statement. EEOC sends the respondent a Notice of Charge within ten days of the filing.
In most instances, EEOC is required to defer charges to state.or local human rights agency
. meeting federal standards if they have jurisdiction. Either EEOC or the deferral agency will
process the charge.
If EEOC is processing the charge, the case is usually assigned to the enforcement
team to which the investigator belongs. Currently, unless the case is a priority, it is assigned
to the enforcement team supervisor while awaiting assignment to an investigator. 4 Other
than the notification to the respondent and occasional requests for infonnation, the
investigative process is not begun until the case is assigned to ail investigator. Typically, the
charge is eventually assigned to the investigator who took it. Priority cases may be assigned
within a few weeks. 5 Generally, cases ~re not assigned for several months.
Once the case is assigned, it is actively investigated or settled. An iQ-vestigation may'
include Requests for Infonnation (RFIs), On-Site Interviews, and Witness Interviews. After
the evidence has been analyzed, the investigator conducts a Pre-Detennination Interview
(PDI), typically with the charging party in those cases in which a "no cause" finding is likely
1
There is some variation among field offices.
2
Positions and salary levels for ISAs range from GS-5 to GS-7.
.
.
There are no specific hiring requirements for incoming investigators. Applicants are evaluated based on
educational training and/or work experience. Position levels for investigators range from GS-5 to GS-12.
Supervisory investigators range from GS-13 to GS-15. '
.
3
4 Because of hislher existing workload, the investigator taking the charge is not immediately assigned the new
charge. The enforcement supervisor holds all new charges and later distributes them equally among all the
.
investigators as dictated by workload levels.
5 Priority' status is given to charging parties who are terminally ill or who are experiencing harassment or
retaliation. EPA cases where the statute of limitations is running are, also prioritized.
�..
..
and with the respondent in those cases in which a finding of "cause" is likely. During the
PDI, the party interviewed has the opportunity to provide' additional evidence. Once the PDI
is completed, the investigator writes an Investigator Memorandum (1M) for the approval of .
the Supervisory Investigator. Based on the 1M and the analysis of the secured evidence, the
Office Director issues a Letter of Determination to the charging party and respondent.
Where there is a "no cause" determination in a Title VII, ADEA6 and/or ADA case, the.
charging party also receives, Notice of Right to Sue. Because of statutory differences, in
EPA cases complainants are reminded of their private suit rights.
a
In cases in which "cause" is found, conciliation is attempted. If conciliation fails, the
field office submits the case to headquarters with a recommendation regarding litigation.' In
Title VII, ADEA7 , and ADA cases where conciliation is unsuccessful and the Commission
does not authorize an EEOC law suit, a Notice of Right to Sue is issued to the charging
party. In EPA cases, complainants. are reminded of their private suit rights.
See Appendix A for a flow chart of EEOC's charge process.
See Appendix B for a list of'documents given to charging parties in the Washington,
Field Office.
p.C.
Revised 7/13/94:JP
6 In ADEA cases, the charging party receives a letter with similar language to the Notice of Right to Sue
required by Title VII and ADA.
'
7
See Footnote 5.
�'.'
,
THE EQUAL EMPWYMENT OPPORTUNITY COMMISSION CHARGE PROCESS
TITLE vn . Prohibits
AG E DISCRIMINATION IN EMPLOYMENT ACT AMERICAN WIlli DISABILITIES ACT
EQUAL PAY ACT
dilc.rim.ination on basis of
ADEA· Prolu"bits di.scrimination on
ADA· Prohibits di.saixnination against
EPA - Prohibits discrim.ina.tion i.e
buis of age-protects 40 and older
iDdivid ual with a disability
payment of wages
basedonlle.J:
origin and religion
ACTS OF DISCRIMINATION PROHIBIlED:
Hiring. Asaignmcot, Promotion, Discipline, Wages
Layoffs, Discharge, Be:odiu, and Terms and
Condition of Employment
180da)'ll
3OOda)'ll
(Juri1idiction without FEPA)
(J wisdiction with FEPA)
Employee, Fonner Employee or Job Applicant
FILES CHARGE
State or Local
deferred to
Fair Employmcot
Practioe Agency .
(If EEOC Processes)
Notify Res~dent·
(Employer, Union, Employment Agency)
Within 10 Da)'ll of Charge
.
Interview Cb.argins party and CP Witnesses
Possible On.Qte Imcrview
..........f - - - -
Possible Subpoena of
....... - - - ' - -Respoodcot for Information
,
Analyze Reaponde!l1's Documents and
Interview Respondent's Witnesses
I
Investigator analyzes all
EvidCDoe and drafts Investigative
MemOfllJlda Summarizlng Evide:ooe
OVER
�·.
APPENDIX B
The following documents are given to charging parties at the Washington D.C. Field Office:
Attachment A:
Preliminary Information for Intake (walk-ins only)
Attachment B:
Form 283 (English and Spanish versions)
Attachment C:
Fact Sheet and Privacy Act Statement
Attachment D:
Letter sent to the Charging Party after the case is assigned to an investigator
Attachment E:
Letter sent to the Charging Party after the case is assigned to an investigator
�SOO BY:WASHI'JGTON FIELD
orc
7- 5-94
3:41PM
EEOC'"
EEOC;# 3
Ii]
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington Field Office
1100 L Street, N.W., suire 2011
W3Ahingron, JJ ,c. 2000:s
l'Ii; (ZOZ) 2"N·T;~n
TOD; (.l02) 27';-"NtA
fAX; (20l)
27~-68H
Please Read this Memo Befo~e Filling out the Attached ,Form
Welcome to the Washington Field Office of the U.S. Equal Employment OpportunitY
Commission. In order for us to assist you quickly and effectively, please completely fiU out thC(
questionnaire that you received. from the receptionist. 'Once you have cOmpleted the
questionnaire, one of our staff members will conduct a preliminary interview. to determine
whether your employment problem is one which falls within the jurisdiction of the Commission.
If ours is not the appropriate agency, we will attempt to refer you to the appropriate agency or
organization, if ally. Ir the problem you describe appears to be within our jurisdiction, an
investigator will conduct a m~re detailed interview with you in order to determine whether a
charge of discrimination is warranted.
Please be patient, as all interviews are conducted on a rust-come first..,served basis'.. Because
other persons may have arrived before you, you may have to wait for an interview. Be prepared
to spend up to three hours here today if you proceed to the fmal step of filing a charge of
discrimination. This is only an estimate. It is not possible to predict how long the process will
take in your particular case. For this reason, we ask that you rerrain from asking the
receptionist or any other staff member when you will be interviewed or how II!-uch longer you
will have to wait.
~
While you are waiting, please keep in mind that you will be given the same careful attention that
those persons ahead of you are receiving.
.
Thank you for your cooperation .and patience.
�7-
SENf BY: WASH INGTOf' flEW Of'C
="--,
5-~
t.tuc..,
._-,
Th,s form 1$ .. lfeCled bv rr.a Pfl"~CV Act. of 1914: ~(tj! Privacy' A.~ SI~t~mlll1t 0'1 reverse tletofe
complem'<J {hi!'; lorm.
EEoc USE
-
."
~
..
.
/3
Ol\ll'y
Nllmo Iintoa Officer I
I
in employment.
Please answer the fallowing questions, telling us liriefly why y~u haw; bflef1 discriminated i#Jlilin:sr
An officer of the EEOC will talk with 'fDU ~ftef you complete th,s form.
(Please Print)
DATE
ILa,llitl
TELEPHONE NO. (Include area code I
NAME
(Middle Name or
IFi,stl
Iflltl8il
ADDRESS
STATE
CITY
ZIP CODE
COUNTY
" Please provide the name of an individual at a different address. who is in the local area and who would knuw how
to reach you.
RELATIONSHIP
TEL.EPHONE IInclude area code)
NAME
-
STATE
CITY
ADDRESS
ZIP CODE
What action was taken against you (hat you believe to be discriminatory? Whst harm, if any, wes caused to you
or others in your work situltio,. as a result of that action? (If mare spacs ilS required. use revers8,~
.'
-.
~
00 YO,u believe this action was taken agein$t you beCaL.l$8 of: (Check the one(s) that apply and specify your face,
. '
DRACE 0
SEX D ReLIGION. 0 NATIONAL ORIGIN DAGE D RETALIATION 0
COLOR
CJ OTHER, eXPLAIN BRIEFLY BELOW
CJ DISABiLITY
Sf,)X, age, religion or 6thnic identity.1
..
I WAS DISCAIM'NATED AGAINST BY: (Check the ooe(&' that apply)
EMPLOYER
D UNION fGi~. Local No;' 0 EMPLOYMENT AGENCY
o
c:J OTHER (Specify)
.
NAME
NAME
..
' ADDRESS
ADDRESS
CITY. STATE, ZIP
CITY. STArE., ZIP
tPh2rltl
APPROXIMATE NUM6EA EMPlOVED BY THIS eMPLOYiR
"~
!fI~""
-
Ifhgnll
below.
OR I WAS Et.4PLQVED AS
NO, , APPUID FOR
lpo.mona
leI.te'
ON
CURRENT POSITION
,
WHAT WAS rHE MOST RECENT DATE THE HARM YOU ALLEGED
TOOK PLACE?
Are yoL.l new employed bV the EmplQyet that harmed you1 Answer
YES, FROM
,
lpo ••tionl
UNTIL
'WAS
lOAm
ILA/o QFII. FlIIID. ETC.!
.
Normal'v, your idenlity will be dllclosed to the orgonindon which allegedly diScriminated eg""'t you.
Do vou D cons8nt Of D not consent to such disclosure 7
Have you sought assistance about the action you think was discriminitory ftom any Government agency, from
your union, an attorney. Of rrom any other source)'
0 Yea (if answer;$
NAME OF SDUFlCe OF ASSISTANCE
c::J No
Y.,
.
complete belowl
' DATE
"
AESU1..T, IF ANY:
Have you filed an EEOC Chlrge in the past1
,
APPROX. OATE F!I.ED
SIGNATURE
DNO
Yea (If answer is
.
008:
1:1:0(,; t"URM 2I:Ja
D
ORGANIZ.A.TION CHARGEe
JUNto 1t:fS4
SSI:
ves,
camp/ert: below)
CHARGE NUMBER (IF KNOWN~
"
,"
�SEI\'T
BY;~ASHl:\GTO:\
fIELD Ofe
7- 5-94
3:42PM
EEOC:# 5
EEOC....
CUESTIONARIO
La informaci6n solicitada eli este cuestionario sera utilizada como parte de
la investigaciOn. Por tavor lea la declaraci6n de la Ley de Privacidad enel
rev~s de esta pdgina antes de Ihmar 81 cue5tiomnio.
usa EXClUSIVO DE
eEOC
NOMBRE DEL
fNTREVISTADOR:
--favor conteste Ills si(JuePtes p regun18s, describiendo brevemente como hll sido discriminado en su emp/ea.
Por
Un investigsdar cle III Comi:sidn 10 entrevistar6 cuando haya camp/erado este cuestionaria.
(Por favor use letra de imprental
NOMBRE
(Primer Nombre)
FECHA
(Apellidol
)
NUMERO DE TELEFONO (
(Segundo Nombre)
DlRECCION
ZONA POSTAL
ESTAOO
CIUDAD
-
CONDAOO
Par favor prove a al nombre de.una persona a quien lIamar si usted no 58 encuentra:
RELACION
NUMERO DE TELEFONO L
NOMBRE
CIUDAD
DIRECCION
l
ESTADO
ZONA POSTAL
Describa brevemente las acciol'1es Que usted cree fuerol'l discriminatorias. Incluya ejemplos de las personas que
segun su criteria recibieron un treto major.
Creo que lui victima de discriminaci6n a causa de mi: (Solamente marque los que sean aplicables)
DSEXO
ORAZA
o
EDAD
0
D.RELIGION
REPRESALIA
CJ ORIGEN
CJ COLOR D
NAC!ONAL _ _ _ _ _~M
IMPEOIMENTC FISICO
FUI DISCRIMINADO POR: (Marque los que sean apllcablesl
UNION (Provaa el numero loc)!)
CJ EMPLEADOR
o
NOMBRE
OIRECCION
CIUOAO
CJ OlRO,
explique brevemente:
CJ AGENCIA DE EMPLEO CJ OTRO (Especifique)
TEL!;FQt\!Q I
ESTADO
I
CODIGO POSTAL
~
NUMERO
LA FECliA!S) DE LA OISCAIMiNACION AlEGAOA:
APROXIMADO DE PEASON.S
EMP\..eADAS POR SU EMPLEAOOA;
,Sigue usted trebajando can 61 miarno empleador que 10 disarimin6? Conteste aba;o:
,
NO, YO APUQuE PARA
0: FUI EMPLEADO COMO:
Iposiei6n)
(posici6nl
(fechsl
r
hasta
sn
Fui
Posicion aetual:
I
(fechal
(suspendido temporalmente.'
despedido, etc.)
Sit DESDE·
..
Usualmente esta oflcine no1ifica a Ie orgsnizaci6n 5U idenddad. lUsted 81.1toriza que se comunique au identldad a
18organizacion?
Autorizo D o N o autorizo 0
tHe consultado a un abogado con referellcia a este problema 0 ha registrado una Queja con otro grupo 0 Clgencia?
DNo
CJsr
, .
FECHA:
NOMBRE OEL ABOGADO 0 AGENeIA:
ReSULTADO:
tHe registraClo una querella con nu88trs oficina 8nterlormel"lte? DNO
CONTRA:
LA rECHA DE LA aUERELLA:
OS)
EL NllMERO DE LA QUERELlA:
FIRMA
EEOC FORM 283 (SPANiSH VERSION)
Fecha de nacimiento
JUNia 1994
Numero de segura social
,.
�SENT BY:WASHINGTON fIELD ofe
teOC"'"
.PIUVACY ACt ST ATEMENT
(TItia (orm ill «I~ by tfae Pm.} Act of 1974, PuLlin taw 93-519: Aalhority (or recrueAinc th~ peno.w data and the u_ue pen
below.)
.
,
l
FORM NUMBERrrITLE/DATE. EtOe ForbI 5. CHARGE OF DlSCRIMTNATlON, Mart:h 1984.
2. ..\UTIIOBITY. 42 U.S.CO § 200(k·S(b}. 29 U.S.C. §:n 1,29 U.S.c. § 626.
iI. PRINCIPAL PURPOSE(S). TIM p ..rpoee of the mll.lP. whether recorded initi.aUy uA thi.w {onn ar iIl80fhe other wly ~«.d to
writing
lakorr record.d on thiS form, Ie to jpToke the jurisdidiob or tilt' WRluUMioa. .
.
all.
4. ROUTINE USES, This form is ued to determine the ~i.doenct.' of beta which fall within t1at": COI:IIII\iMio!t'8 jurildittion to
inwBtiga~. detenuiM, eonciliau !Ihd ~&te eh.~es of w.J.awful etnployment JUllCtice&. Inrwmlllion provided on thb fonn
will be u..eed by Commillioia empJoyeea to guide tJIe Commialion'" iD,efligatory jlethitiea. This fonn ml)' be cIiacIoeed 10 ather
State, loeaJ ADd (eden( ageacies aa may be Appropriate or Decr.:saar")' to carryint; out the (,ornmjseion'. fundiona. A cop1 of th..
c;h"""l~ wiD ordinaril:y be ""eel u.pon the perrott ~1IinaI Whom the dtargc ie 1U4de.
'.
5, WHETHER DISCLOSUK£ IS MANDATORY OR VOLlINTARY AND EFFECT ON INDIVIDUAL FOil NOT PROVIDING
IN FOR'" ATION. Ch~ mull be ia writing and shQuid idr"tif'y the parties and actiQn or polity compbiaed of. .'aW~ fb
haye a charcf: wb:h identifIeS the pvtie!! in ~ rna, ,eauh in thf' ComroissM!n nolKc:epting the t!hargt. Charg4!t under
Title VII must be 1W0fb to'Of affi,.ftu~d. ("l\~, UDder the AO[A !!howd ordinarily be ,iped. C~ may be tlarif'roed or
, amplified. later ~)' __adment. It ~ not .,.."nlJ.ilJry that tn. form 1M! ,•..,d to plOVlde the tfMJuaetMllhfonnaoon.
6. [1 Und« S«tion 106 of Tille VII of tM Civil Ridtta Act of 1964. u &lDetWJed, thas ..hargt will be det'ened t(l and 'WiD be
proe-elMd by the Sta~ 01' local ageney ibd.ieated. tlPon oornrletion of the ar;~"'B PfO(!eBns. YOIl wiD be notif"ted ot ita
final reMllutioA in your cue. If you wish EEOC to give Substantial Weight Remw to the agel1ey'. rd~.tI, you mUtt aend
UI. requflll to do to. in 1'Iriting. within fift~ (15) days of yOW' r~t of Ute .encY·8 fmdine. Olherw_. we. wiD Idop'
the agelW:y'. fia\diltc
.. IEOe', aut el<* yOUt <:Me.
NOTICE OF NON·RET AlJATION REQll1 REMENTS
Section 104(a) of the Civil ft.lJbb Ad 011964, .. ameDded. ad Seetion4(d) of the Ace Discrit,u.ation i1a.Emplo)'ll'lellt Aet of 1967.
as JrOeA4Ied. date:
' .
.
It BhaB be .. tmJawful employment prartiee for all employer to flieeritniute aj!\ainst 0)' of Ju. ""pIoyeee or .,plicaata for
ernploymeat, for all anpl(lymen1 -raily 10 diaeriminate ,,11tt any iDdiYidual, Of' for a WIOf org.miu.tinn to cli8erlninate apbut . y
"'otnber theJ'it'Ol or apptit'ARt {Of" I1H:t'fILer.dp, becaulM! hR R.l1I &pPo8led II pra.etb made an uaalawfnJ employment prac~ by tbiA
~
be ItQ INde • ~harge. tt'ttiiied, ~. or pArticipated in any mann~ III Ilh ioveSti;atio.n. pro~ or hearing
&t':'
'I"be F.q\1.al Pay ~d of 196a eoutaiaus llimilar prowW6ne. Pt'l1IOftl filin! clwJet of dillcrirnirl..tion art' advi5t.d of am- Non-RetaUation
Re-ptiraMnb ... ~ iMtnIete4 to DOtify EEOC if uy atftolnpt at ft't.lilltio.. illlaack!.
�SEl'{T BY:WASHlNGfON FIELD OFC
7-5-94
3:43PM
EEOC...
[EO(:# 7
LEY DE PRIVACIDAD
(Estll formularioata romprendido pur Ia I.e), de Princidad de 1974, Ley PUbHca No. 91-.579: La fllcultad para requerir
diilO! persona1e1 y su utilizad6n se
d~(ribeD
11 c:ontinuaciOn)
I.
l<nR..\fULA,RIO NlJME.ROffITULOIFRCHA. EEOC Furm 5, Querella dt! Diserimioac16n. Marzo 1984.
2.
AVTORIDAD. 42 U.S.C. § Jooee-S(b). 19 U.S.C. t2U, 29 U.S.(:.
1.
PROPOSITOS PRlNCIPAr .K"'. P.!I propMlto de la quereUa, tanto transcrita iniclliimente en este formulario 0
lu~ tnlnserita ell este fotmulaxio. es invocar \a jurudicci6n de la ComisiOn.
escritll de cualqu;u Ofra manera y
usa RUI'INARJO. FAte formulario se wUlri plIrll determinar 18 C"isltl\cla de hechos que cntral\ delltro de hi
4.
jurisditci6n de la Co1llliliion pard iDvestigjr. entltir d~illiooe!l. conciliar y litigar querellas de practic.::.ts de empleo i1egales.
La inlormllf,.iOn propercionada en este formulario sera usada por empleados de EEOC para gumr 11.'1 actividades
investigatir..lS de la ComisiOn. E1 conlenido de eSle COmJularlo p~ellC ser dJvUlgado II otras agendas estatnles. locales y
rc:deralcs scgliD sea apropiloldo 0 ncusatw para el cunlpllmiento de Ia.q funci(Wle.... de Ilia Com.lsJ6b. Una. copla de eslll
querella .sed nonnalmeoleootltkada a fa persoo,8 contra quim se rormula 11& 4luet'e1lll.
S.
CARA<..,'ER OBLIGATORIO 0 VOLUNTARIO DE LA DIVULGACION Y CONSEClIENCIAS PARA LOS
INDIVIDUOS QL"R NO PMOVEEN LA NECESARIA INFORMACION. Lall qllerell.il8 debeniD tuic:erse pur escrito y
deberm identif'lCar III querelknte y al quereUado )' .. aec:i60 4) poHtlca presuntamente discriminatoria. La omisi6n del
oO.!llbre de las partes en la quereJla PUe.1e resultar en III no auptacioo de Ia quereUa pot la ComIsl6n•. Todas las quereUas
bY, TRuro VII deberan hac:erse ba,io jurMmento 4) prOftlCiIl.. Las qlluellDs iniciodllll I)~o lit. Ley de Discriminacioo eo 81
EmpllKl por F.dad (ADEA) llormalDlcnte deberlin ser rll'JDad~ por eilinerellaote. Las querellas purdl:D ser clarificad85
.0 ampliadas posttriormente mediante ewnleudas. I!J WlO de ute fOnDulario 00 es obliptorlo para proporcionar Ll
infDrmHCiOO requerida.
6.
8ujo la Secci6n 706 del 'Titulo VII de Ia I.ey de Dr. "ocltos Ci'rlIes de 1964, eomendada, esta querclla pod" ser
lransferlda :v pr0C6ada por Ia llg~nc:i4il estatal 0 local ~·lIlT.,.tlt)ndiellte. AI fma.lizar el procesam1euM de Ia querIDa, lISted
serli nutifielildo de la resoluc:i6n fmll1 de su I:WW. Si ~U:u uc.,.:a que 18 COmisiOD (t:~OC) efec:tUe ana RevisiOn SubstaDc.ial
de las conclusion:es de la agenc,... Illted deberD eaviar'lIl1& solkttud eStrataa la ( :omisi6n dentro de quince (1S) diu del
redho de la relJowci6n de III agtRcia. De]o coot.rariu, \aCI"~iOO adoptara Is rc~f)llldOn de III Blenda J urrarli 8U taIIo.
AV1SO SOBRE LA PROIUBICION DE REPRESALIAS
La Seccl6n 704(a) de Ia Ley de Derecbcs Civiles de l~. cnmendada, y la Secc:ioo 4(d) de Is Ley de Dhcriminaaoo en .
el Empleo pelf £dad de 1967. enmendada, estableceD:
.
.
. ~
.
Sera um« pr'cUca de empleo Decal para Io.i patrOftos d&criminar contra walqulera de sus emplead08 0
soJidtantH de emp1eo. pan una agencia de empleo discriminar centt;a eualquier penODll, 0 para uaa org&Wi&acUn laboral
dbcrlmLnar contra cUaiquier miembro u lMIIic:iaaate, )MIrque 51!: bayan opuato Ii uaA pr6c:tica iJeiaI de empleo establecida
por elite titulo 0 pOI:' halJer 1l1ieiado \lila quereUa, test!fictldo, 1I11idido, 0 pardclpado de cualQ_ manera en una
investip.ci60, prGCtdlmle.nto, 0 audiilada b";o ate titulo.
.
,
.
. La Ley de Ipaldad en el Pago de 1961 etdttitne fllmllares provisiones. Las ptJ'SOIIIlS que iWciaD querellas por
dlserlmlnlld6n SOIl notirlCidos de e5W Problbkl6n de RcpresaUas y Ie Ies uplica que deberliD Doane..r a EEOC Ii SOD
!lojetos a cuaJquier acd6n do represw.
�SE~T BY:WASHfNGTO~
FJELD OFe
7- 5-94
3:43PM
EEOC....
EEOC;# 8
INFORMATION SHEET FOR CHARGING PARTIES (QgV ON OR AFTER 11/21/91)
EEOC PROCEDURES:
The EEOC will investiga,tethe allegations you have made. Our
investigator will ask you questions, will ask, the respondent
questions, may ask witnesSes questions, and may review recoras.
Based on -th.e evidence gathered, the investiqat.or will prepare a
recommendation for the Office Director on whether discrimination
has occurred. You and the respondent you have named will be given
a Letter of Determination which,will say whether there is reason or
not to believe that discrimination has occurred. If you filea a
complaint rather than a charge, or if you had a charge filed on
your behalf, your identity as a complainant will bf.:l kept in
confidence throughout EEOC's handling of your case.
o
If the Director believes that the alleqations in your charge
are supported by the evidence, the Letter of Determination
will say this and will ask the respondent to meet with EEOC to
reach an agreement which will provide reli~t for the harm
caused by the discrimination.
If an agreement cannot be
. reached,
the investigation will be reviewQd in EEOC
Headquarters and EEOC (or the Department of 3ust~ce if your
charge is against a state or local government) will either sue
on your behalf or notify you of your right· to sue (see
information on reverse side about Vour private,Suit Rights).
o
If the Director believes that the alleg)tions in your charge
are root supported by the evidence, the Letter of Determination
will say this. The letter will also notify youo! your right
to sue.
You can then decide if you want to file a private
-law-sui t to enforce your. rights in court (see reverse side
about Your Private Suit _Rights) .
YOUR RESPONSIBILITIES:
Please inform EEOC of any prolonged absence or change of
address. Please claim any certified mail Which EEOC may send you.
If EEOC oannot locate you, or if EEOC asks you to do something
necessary to its investigation and you decline, EEOC 'may
discontinue the investiqation and notify you of your right to sue.
~ou may retain a lawyer while EEOC investigates your charge, but
you are not required to do so.
YOUR PRIVATE SUIT RIGHTS UNDER TITLE VIr OF THE CIVIL RIGHTS ACT:
A Title VII charge preserves your right to sue the respondent
named in your charge. Upon receipt of a notice of right to sue,
aggrieved persons can SUe for backpay, cocpensatory and punitive
damages, appropriate make-whole relief or other injurictive relief,
and attorneys' fees (including e~pert fees} and costs.
�S~T
BY: WASH INGTON fIELD OPe
7- 5-94
3:44PM
EEOC...;
EEOC:# :3
There are a number of circumstances in which we will give 'you
a Notice of Right to Sue. You must then file a lawsuit in U.s.
District court within 90 days from the Notice if you wish to to
enforce your rights in court.
once this90-day period is over,
your r.ight to sue is lost. EEOC may give you a Notice to Sue in
the following circumstances:
o
If You Ask for a Notice of Right to Sue. You. may not wish to
wait for EEOC to complete its inves1;iqat.ion or you may have
retained an attorney who is recommendi.ng that you sue now.·
You can obtain a Notice of Right to Sue by asking the Office
where you filed your charge to issue a Notice to you/ even
though we have not completed the investigation.
EEOC will
issue a Notice to:you 180 days after you filed your charge.
(In some cases, if you ask, we can issue the Notice to you
earlier, if we know the.investigation will take a long time to
complete. )
o
If EEOC Finds No Violation with Respect to the Allegations in
'{our Charge.
Before this happens , ....e will give you an
opportunity to provide additional evidence. . When the
investigation is over I the Direct.or may issue a Letter of
Determination stating that there are no violat ions.
This.
Letter will notify you of your right to sue within 90 days.
o
If EEOC Finds a Violation, Canhot Obtain Relief, and Decides
Not to Sue on Your Behalf. ~n eEOC fmds a viol'I:;·)D and does not succeed in obWniog
relief from the respoo.dent. the iove6tigatioa is reviewed by EEOC-:· I.:ommissioael'$ to determine whether
a suit will be filed. Sometimes Ibe Commission~rs decide that a la.l.suit will DQt be filed. in whi<:h case .
you will be given notice of your right (0 sue within 90 days.
IJ
_
If Your Cha.rge is Dismjssed. EEOC Regulations require a charge tIl btl dismissed when the law does not
apply to y,lUt cas.: Or when it is not possible to continue due 10 an mabllily CO locate you. beause you did
not COOperate in some way necessary to tbe cast, Or you did not accept a settlement offer WrucD affordoo
you full relief for the han:u you alleged. EEOC's dismissal t.mcr will notify you of your right to sue wichirl
90 days.
YOUR PRIVATE SUIT RIGHTS UNDER THE AGE D1SCRlM[NATlON IN EMPLOYMENT ACT (ADEA):
If you filed a cb.a.tie witbi.a 180 days of the a.lleged discrimination noo days in states witb a state age
Illy time 60 days after you filed your charge unlit 90 days after you
receive a notice from EEOC (NiJ:!Clty-d..ay Notice) that it has cQmpl¢te4 p(\Xelising of your charge. Any person
aurieved covered by· the charge may sue for recovery of backpay. an equal amount as liquidated. damages.
appropriate lDllke·wbol~ relir:f or injunctive relief. and attorn~ys' fce~ and coun. costs.
di.Sl:riminatioQ law). you may file a lawsuit at
ONCE 90 D.J\YS H;I\VI!PASSED FROM YOUR RECEIPT OF A !'-llNETY-DAY NOTtCE. YOUR
.RIGHT TO ~UE IS LOsT. The rea.<i.On" der.cribed abov~ undei "TITLE. vu surt RIGHTS" i.lt to why you miSh!
rec.:iv~ nOlice or your suit rights apply to ADSA charges. eicepr for the first Ott'L'l, O[f you 15k: for a nght to sue"
(llus one does Dot apply to AOEA •• you may Sue a.s early as 60 days after flIiDi yo~t' charae ~. DQ "right to sue"
kthlf
is needed.)
�55\[ BY:WASHINGTON fiELD Ofe
rete:rred
7- 5-94
3:45PM
teUC'"
I±UC:ljtlU
(If you filed a complain. rather than I cbarg~. or if)'out charge wu filed .fter the 180 or 300 day period
above. )"O\U' right lo sue was not Pre.IioCrved.)
10
YOUR PRlVATE SUIT RlGHTS UNDER THE EQUAL PAY ACT (EPA):
[f you have a claim under the EPA. you Inl.1St file wit within 2)'ait5 ot'the alle,l!id diJ;criminatiQQ (3 yurs
in ..:.ties or wHIM violatioas) to enforce your ri,hts ta cowt. Da.<:lr.pay you believe is due for wort.: perfon:tllOd more
than Zyears ago 1llIi)' be I.1.Qcollectible. You may briD, suit oa your own behalf I.Ild 011 bebtl( of other similuly
situaled employees for the amoUnt of WISes UDderpaid. lin equallllDllWlt as 1iquida~ dAmajfeIJ. plus attomeys' f~
and court costs. You uo not b.&ve 10 wllit lor EEOC to act before you wo.
If you have any qUl!:Slions. please call tbe EEOC offive whiC',h last handled your case and ref!! :0 )'our
charge Dumber. [f you me YOW" 0"11 la.wsuit, please Dotify the EEOC office which last handled your CII.SC;; by
selldin~ II copy of YOUr court complaint.
.
�SENT
BY:ViASHIl':GTON FIELD Of(
7- 5-94
,EEOC...;
3:45PM
E'EOC;#l1
r£)
u.s. EQUAL EMPLOYMENT OPPORTIJNI'IY COMMISSION
Washington Field Oflke
1400 L Street, N.W., Suite:zoo
"r.IShlt18tOtl, D.C. Z~
PH: (202) 27H377
TOD: (204l) 275·7518
IIAX: (202) 'l7)-6/I34
July 5, 1994
Charge Number:
100 94 0000
Jane Doe
VS.
XYZ Company
Jane Doe
1 Main street
Washington, D.C.
20009
Dear charging Party:
This is to notify you that the or9anization against whom you filed
your charge (Respondent) has been advised of your allegations.
Your charge of discrimination has been assigned to m.y unit tor
investigation. This office currently has a pending inventory of
approximately 1200 cases / , a.nd, with few exceptions, we must
investigate charges in the order they are received.
Therefore,
your case will be placed on hold temporarily until I am able to
assiqn it to an investiqator. You will be informed in writing when
we begin the investigation.
If the Respondent ofters a settlement directly to' you, and you wish
to withdraw the charge or you wish to file suit in federal court,
please contaot us. otherwise, we ask that you refrain from callinq
our ottice for status reports.
The high volume of phone calls
received detracts from the time available for process~9 cases.
If you have any additional information, documentation, or witness
statements that you wish to provide in the interim regarding your
charge, please send such material to my attention at the address
shown above. Please inolude the charqe number with any documents
you submit.
Be assured that our agency understands the importance of each
charge and will strive to complete the investigation of your charge
in the most timely manner possible. Tha~k you for your patience.
Sincerely,
Denise C. Anderson
Enforcement supervisor
Enforcement Team II
�.
SENT
,
BY:~ASHI~GTON
fIELD Oft
7- 5-94
3:45PM
EEOC"".'
U.S. EQUAl EMPLOYMENT OPPORTIJNI1Y' COMMISSION
Washington ·Field Office
1 "00 LStt:eeL, N,W., Suite 200
~hlng.lOn, P.C. 2~
• PH: (lol) 27'5--7377
TOO: (202) ~7!H8
FAJ(:(Z02)2~"
Charge Number:
100-95-0000
Jane Doe
VS.
Xyz.company
Jane Doe
1 Main street
Washington, D.C.
Dear Charging
2.0010
Party:
This is to notify you that I have been assigned the investigation ,'"
of your charge of discrimination.
If you have any additional' information, documentation, or witness
statements that you wish to provide reqardinq the' oharqe, please
send it to my attention at the address shown above. Please include
tbe charge number with any information you submit.
You may call me at telephone number (202) 275-2222 between the
hours of, 8:30 a.m. and 5;00 p.m., Monday through Friday. If ram
not available when' you oall, please leave your name., telephone
number, and the time(s) :when you may be reached at that· number, so
I can return your call.
Sinoerely,
Investigator
��
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Stephen Warnath - Civil Rights Series
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Stephen Warnath
Civil Rights Series
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-1997
Is Part Of
A related resource in which the described resource is physically or logically included.
<a href="http://clinton.presidentiallibraries.us/items/show/36406" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Description
An account of the resource
Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
An entity responsible for making the resource available
Clinton Presidential Library & Museum
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Extent
The size or duration of the resource.
134 folders in 13 boxes
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Original Format
The type of object, such as painting, sculpture, paper, photo, and additional data
Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
[Equal Employment Opportunity Commission Confirmation Briefing Materials] [2]
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Steven Warnath
Civil Rights Series
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 8
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/Warnath-DPC-Civil-Rights.pdf" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
Date Created
Date of creation of the resource.
2/8/2012
Source
A related resource from which the described resource is derived
641686-equal-employ-opp-comm-conf-briefing-materials-2
641686