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Civil Rights Act of 1991

EDITOR'S NOTE: The text of the Civil Rights Act of 1991 (Pub. L. 102-166), as enacted on November 21, 1991, appears below with the following modifications:

  1. The text of the sections of the CRA that amend the laws enforced by EEOC (i.e., Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990) is not printed below. Instead, these amendments are printed elsewhere in this publication.

  2. The following portions of the CRA that are not enforced by EEOC are referenced, but not reprinted here:

    • Section 117 (coverage of the U.S. House of Representatives and agencies of the Legislative Branch);

    • Title II (The Glass Ceiling Act); and

    • Portions of Title III (Establishing the Office of Senate Fair Employment Practices).

  3. Title V, which amends the Civil War Sites Study Act of 1990 (Pub. L. 101-628) is not reprinted here.

  4. Cross references to the U.S. Code, where applicable, appear in italics following each section heading. Editor's notes also appear in italics.

An Act

To amend the Civil Rights Act of 1964 to strengthen and improve Federalcivil rights laws, to provide for damages in cases of intentionalemployment discrimination, to clarify provisions regarding disparateimpact actions, and for other purposes.

Be it enacted by the Senate and House of Representatives of the UnitedStates of America in Congress assembled, This Act may be cited as the"Civil Rights Act of 1991".

* * *

FINDINGSSEC. 2 [42 U.S.C. 1981 note]

The Congress finds that-

(1) additional remedies under Federal law are needed to deterunlawful harassment and intentional discrimination in the workplace;

(2) the decision of the Supreme Court in Wards Cove Packing Co. v.Atonio, 490 U.S. 642 (1989) has weakened the scope and effectiveness ofFederal civil rights protections; and

(3) legislation is necessary to provide additional protectionsagainst unlawful discrimination in employment.

PURPOSESSEC. 3 [42 U.S.C. 1981 note]

The purposes of this Act are-

(1) to provide appropriate remedies for intentional discriminationand unlawful harassment in the workplace;

(2) to codify the concepts of "business necessity" and"job related" enunciated by the Supreme Court in Griggs v. DukePower Co., 401 U.S. 424 (1971), and in the other Supreme Court decisionsprior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989);

(3) to confirm statutory authority and provide statutory guidelinesfor the adjudication of disparate impact suits under title VII of theCivil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and

(4) to respond to recent decisions of the Supreme Court byexpanding the scope of relevant civil rights statutes in order to provideadequate protection to victims of discrimination.

TITLE I - FEDERAL CIVIL RIGHTS REMEDIES

PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN THE MAKING AND ENFORCEMENT OF CONTRACTS SEC. 101

Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended-

(1) by inserting "(a)" before "All personswithin"; and

(2) by adding at the end the following new subsections:

"(b) For purposes of this section, the term 'make and enforcecontracts' includes the making, performance, modification, and terminationof contracts, and the enjoyment of all benefits, privileges, terms, andconditions of the contractual relationship.

"(c) The rights protected by this section are protectedagainst impairment by nongovernmental discrimination and impairmentunder color of State law."

DAMAGES IN CASES OF INTENTIONAL DISCRIMINATIONSEC. 102

The Revised Statutes are amended by inserting after section 1977(42 U.S.C. 1981) the following new section:

"SEC. 1977A. DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION IN EMPLOYMENT. [42 U.S.C. 1981a]

"(a) Right of Recovery. -

"(1) Civil Rights. - In an action brought by a complainingparty under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C.2000e-5) against a respondent who engaged in unlawful intentionaldiscrimination (not an employment practice that is unlawful because of itsdisparate impact) prohibited under section 703, 704, or 717 of the Act (42U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief of the Civil Rights Act of 1964, from the respondent.

"(2) Disability. - In an action brought by a complaining partyunder the powers, remedies, and procedures set forth in section 706 or 717of the Civil Rights Act of 1964 (as provided in section 107(a) of theAmericans with Disabilities Act of 1990 (42 U.S.C. 12117 (a)), and section505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C. 794a(a)(1)),respectively) against a respondent who engaged in unlawful intentionaldiscrimination (not an employment practice that is unlawful because of itsdisparate impact) under section 501 of the Rehabilitation Act of 1973 (29U.S.C. 791) and the regulations implementing section 501, or who violatedthe requirements of section 501 of the Act or the regulations implementingsection 501 concerning the provision of a reasonable accommodation, orsection 102 of the Americans with Disabilities Act of 1990 (42 U.S.C.12112), or committed a violation of section 102(b)(5) of the Act, againstan individual, the complaining party may recover compensatory and punitivedamages as allowed in subsection (b), in addition to any relief authorizedby section 706(g) of the Civil Rights Act of 1964, from the respondent.

"(3) Reasonable Accommodation and Good Faith Effort. - Incases where a discriminatory practice involves the provision of areasonable accommodation pursuant to section 102(b)(5) of the Americanswith Disabilities Act of 1990 or regulations implementing section 501 ofthe Rehabilitation Act of 1973, damages may not be awarded under thissection where the covered entity demonstrates good faith efforts, inconsultation with the person with the disability who has informed thecovered entity that accommodation is needed, to identify and make areasonable accommodation that would provide such individual with anequally effective opportunity and would not cause an undue hardship on theoperation of the business.

"(b) Compensatory and Punitive Damages. -

"(1) Determination of punitive damages. - A complaining partymay recover punitive damages under this section against a respondent(other than a government, government agency or political subdivision) ifthe complaining party demonstrates that the respondent engaged in adiscriminatory practice or discriminatory practices with malice or withreckless indifference to the federally protected rights of an aggrievedindividual.

"(2) Exclusions from compensatory damages. - Compensatorydamages awarded under this section shall not include backpay, interest onbackpay, or any other type of relief authorized under section 706(g) ofthe Civil Rights Act of 1964.

"(3) Limitations. - The sum of the amount of compensatorydamages awarded under this section for future pecuniary losses, emotionalpain, suffering, inconvenience, mental anguish, loss of enjoyment of life,and other nonpecuniary losses, and the amount of punitive damages awardedunder this section, shall not exceed, for each complaining party -

"(A) in the case of a respondent who has more than 14 andfewer than 101 employees in each of 20 or more calendar weeks in thecurrent or preceding calendar year, $50,000;

"(B) in the case of a respondent who has more than 100 andfewer than 201 employees in each of 20 or more calendar weeks in thecurrent or preceding calendar year, $100,000; and

"(C) in the case of a respondent who has more than 200 andfewer than 501 employees in each of 20 or more calendar weeks in thecurrent or preceding calendar year, $200,000; and

"(D) in the case of a respondent who has more than 500employees in each of 20 or more calendar weeks in the current or precedingcalendar year, $300,000.

"(4) Construction. - Nothing in this section shall beconstrued to limit the scope of, or the relief available under, section1977 of the Revised Statutes (42 U.S.C. 1981).

"(c) Jury Trial. - If a complaining party seeks compensatory orpunitive damages under this section -

"(1) any party may demand a trial by jury; and

"(2) the court shall not inform the jury of the limitationsdescribed in subsection (b)(3).

"(d) Definitions. - As used in this section:

"(1) Complaining party. - The term 'complaining party' means -"(A) in the case of a person seeking to bring an action undersubsection (a)(1), the Equal Employment Opportunity Commission, theAttorney General, or a person who may bring an action or proceeding undertitle VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or

"(B) in the case of a person seeking to bring an action undersubsection (a)(2), the Equal Employment Opportunity Commission, theAttorney General, a person who may bring an action or proceeding undersection 505(a)(1) of the Rehabilitation Act of 1973 (29 U.S.C.794a(a)(1)), or a person who may bring an action or proceeding under titleI of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 etseq.).

"(2) Discriminatory practice. - The term 'discriminatorypractice' means the discrimination described in paragraph (1), or thediscrimination or the violation described in paragraph (2), of subsection(a).

ATTORNEY'S FEES

[This section amends section 722 of the Revised Statutes (42U.S.C. 1988) by adding a reference to section 102 of the Civil Rights Actof 1991 to the list of civil rights actions in which reasonable attorney'sfees may be awarded to the prevailing party, other than the UnitedStates.]SEC. 103

The last sentence of section 722 of the Revised Statutes (42 U.S.C. 1988)is amended by inserting ",1977A" after "1977".

DEFINITIONSSEC. 104

[This section amends section 701 of the Civil Rights Act of 1964 (42U.S.C. 2000e) by adding the following new subsections: (l)"complaining party," (m) "demonstrates," and (n)"respondent".]

BURDEN OF PROOF IN DISPARATE IMPACT CASESSEC. 105

(a) [This subsection amends section 703 of the Civil Rights Act of 1964(42 U.S.C. 2000e-2) by adding a new subsection (k), on the burden of proofin disparate impact cases.]

(b) No statements other than the interpretive memorandum appearing atVol. 137 Congressional Record S 15276 (daily ed. Oct. 25, 1991) shall beconsidered legislative history of, or relied upon in any way aslegislative history in construing or applying, any provision of this Actthat relates to Wards Cove - Business necessity/ cumulation/alternativebusiness practice. [42 U.S.C. 1981 note]

PROHIBITION AGAINST DISCRIMINATORY USE OF TEST SCORESSEC. 106

[This section amends section 703 of the Civil Rights Act of 1964 (42U.S.C. 2000e-2) by adding a new subsection (l), on the prohibition againstdiscriminatory use of test scores.]

CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT PRACTICESSEC. 107

(a) In general. [This subsection amends section 703 of the Civil RightsAct of 1964 (42 U.S.C. 2000e-2) by adding a new subsection (m), clarifyingthe prohibition against consideration of race, color, religion, sex, ornational origin in employment practices.]

(b) Enforcement provisions. [This subsection amends section 706(g)of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g)) by renumberingexisting subsection (g), and adding at the end a new subparagraph (B) toprovide a limitation on available relief in "mixed motive" cases(where the employer demonstrates it would have made the same decision inthe absence of discrimination).]

FACILITATING PROMPT AND ORDERLY RESOLUTION OF CHALLENGESTO EMPLOYMENT PRACTICES IMPLEMENTING LITIGATED OR CONSENT JUDGMENTS OR ORDERSSEC. 108

[This section amends section 703 of the Civil Rights Act of 1964 (42U.S.C. 2000e-2) by adding a new subsection (n), on the resolution ofchallenges to employment practices implementing litigated or consentjudgments or orders.]

PROTECTION OF EXTRATERRITORIAL EMPLOYMENTSEC. 109

(a) Definition of Employee. [This subsection amends the definition of"employee" in section 701(f) of the Civil Rights Act of 1964 (42U.S.C. 2000e(f)) and section 101(4) of the Americans with Disabilities Actof 1990 (42 U.S.C. 12111(4)) by adding a sentence to the end of eachdefinition to include U.S. citizens employed abroad within the laws'protections.]

(b) Exemption. [This subsection amends section 702 of the CivilRights Act of 1964 (42 U.S.C. 2000e-1) by adding new subsections (b) (oncompliance with the statute if violative of foreign law) and (c) (on thecontrol of a corporation incorporated in a foreign country). Thissubsection similarly amends section 102 of the Americans with DisabilitiesAct of 1990 (42 U.S.C. 12112) by relettering the existing subsections andadding a new subsection (c) "Covered Entities in ForeignCountries."]

(c) Application of Amendments. - The amendments made by this sectionshall not apply with respect to conduct occurring before the date of theenactment of this Act. [42 U.S.C. 2000e note]

TECHNICAL ASSISTANCE TRAINING INSTITUTESEC. 110

(a) Technical Assistance. [This subsection amends section 705 of theCivil Rights Act of 1964 (42 U.S.C. 2000e-4) by adding a new subsection(j), establishing the Technical Assistance Training Institute.]

(b) Effective Date. - The amendment made by this section shall takeeffect on the date of enactment of this Act. [42 U.S.C. 2000e-4 note]

EDUCATION AND OUTREACHSEC. 111

[This section amends section 705(h) of the Civil Rights Act of 1964 (42U.S.C. 2000e-4(h)) by renumbering the existing subsection and adding atthe end a paragraph requiring the EEOC to engage in certain educationaland outreach activities.]

EXPANSION OF RIGHT TO CHALLENGE DISCRIMINATORYSENIORITY SYSTEMSSEC. 112

[This section amends section 706(e) of the Civil Rights Act of 1964 (42U.S.C. 2000e-5(e)) by renumbering the subsection and adding at the end aparagraph to expand the right of claimants to challenge discriminatoryseniority systems.]

AUTHORIZING AWARD OF EXPERT FEESSEC. 113

(a) Revised Statutes. - Section 722 of the Revised Statutes is amended-

(1) by designating the first and second sentences as subsections (a) and (b), respectively, and indenting accordingly; and

(2) by adding at the end the following new subsection:

"(c) In awarding an attorney's fee under subsection (b) in anyaction or proceeding to enforce a provision of section 1977 or 1977A ofthe Revised Statutes, the court, in its discretion, may include expertfees as part of the attorney's fee." [42 U.S.C. 1988]

(b) Civil Rights Act of 1964. [This section amends section 706(k)of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)) to provide forrecovery of expert fees as part of an attorney's fees award.]

PROVIDING FOR INTEREST AND EXTENDING THE STATUTE OFLIMITATIONS IN ACTIONS AGAINST THE FEDERAL GOVERNMENTSEC. 114

[This section amends section 717 of the Civil Rights Act of 1964 (42U.S.C. 2000e-16) by extending the time for federal employees or applicantsto file a civil action from 30 to 90 days (from receipt of notice of finalaction taken by a department, agency or unit), and allowing federalemployees or applicants the same interest to compensate for delay inpayments as is available in cases involving nonpublic parties.]

NOTICE OF LIMITATIONS PERIOD UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967SEC. 115

[This section amends section 7(e) of the Age Discrimination inEmployment Act of 1967 (ADEA) (29 U.S.C. 626(e)) by eliminating the two-and three-year statute of limitations and making ADEA suit- filingrequirements the same as those under Title VII, and requiring the EEOC toprovide notice to charging parties upon termination of the proceedings.]

LAWFUL, COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION, ANDCONCILIATION AGREEMENTS NOT AFFECTEDSEC. 116 [42 U.S.C. 1981 note]

Nothing in the amendments made by this title shall be construed toaffect court-ordered remedies, affirmative action, or conciliationagreements, that are in accordance with the law.

COVERAGE OF HOUSE OF REPRESENTATIVES AND THE AGENCIES OF THE LEGISLATIVE BRANCHSEC. 117

(a) Coverage of the House of Representatives. [This subsection extendsthe rights and protections of Title VII of the Civil Rights Act of 1964,as amended, to employees of the U.S. House of Representatives. Proceduresfor processing discrimination complaints are handled internally by theHouse, not by the EEOC.] [2 U.S.C. 60l]

(b) Instrumentalities of Congress. [This subsection extends therights and protections of the Civil Rights Act of 1991 and Title VII ofthe Civil Rights Act of 1964, as amended, to "Instrumentalities ofCongress," which are defined to include: the Architect of theCapitol, the Congressional Budget Office, the General Accounting Office,the Government Printing Office, the Office of Technology Assessment, andthe United States Botanic Garden. Each agency is to establish its ownremedies and procedures for enforcement.]

ALTERNATIVE MEANS OF DISPUTE RESOLUTIONSEC. 118 [42 U.S.C. 1981 note]

Where appropriate and to the extent authorized by law, the use ofalternative means of dispute resolution, including settlementnegotiations, conciliation, facilitation, mediation, factfinding,minitrials, and arbitration, is encouraged to resolve disputes arisingunder the Acts or provisions of Federal law amended by this title.

TITLE II - GLASS CEILING

[This title sets up a "Glass Ceiling Commission" to focusattention on, and complete a study relating to, the existence ofartificial barriers to the advancement of women and minorities in theworkplace, and to make recommendations for overcoming such barriers. The Commission is to be composed of 21 members, with theSecretary of Labor serving as the Chairperson of the Commission. This title does not directly impose any responsibilities or obligations on the EEOC except to provide information and technical assistance as requested by the new Commission.] [42 U.S.C. 2000e note]

TITLE III - GOVERNMENT EMPLOYEE RIGHTS

GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991SEC. 301 [2 U.S.C. 1201]

(a) Short title. - This title may be cited as the "GovernmentEmployee Rights Act of 1991".

(b) Purpose. - The purpose of this title is to provide procedures toprotect the right of Senate and other government employees, with respectto their public employment, to be free of discrimination on the basis ofrace, color, religion, sex, national origin, age, or disability.

(c) Definitions. - For purposes of this title:

(1) Senate employee. - The term "Senate employee" or"employee" means -

(A) any employee whose pay is disbursed by the Secretary of theSenate;

(B) any employee of the Architect of the Capitol who is assigned tothe Senate Restaurants or to the Superintendent of the Senate OfficeBuildings;

(C) any applicant for a position that will last 90 days or more andthat is to be occupied by an individual described in subparagraph (A) or(B); or

(D) any individual who was formerly an employee described insubparagraph (A) or (B) and whose claim of a violation arises out of theindividual's Senate employment.

(2) Head of employing office. - The term "head of employingoffice" means the individual who has final authority to appoint,hire, discharge, and set the terms, conditions or privileges of the Senateemployment of an employee.

(3) Violation. - The term "violation" means a practicethat violates section 302 of this title.

DISCRIMINATORY PRACTICES PROHIBITEDSEC. 302 [2 U.S.C. 1202]

[Sections 320 and 321 (which protect Presidential appointees andpreviously exempt state employees who may file complaints ofdiscrimination with EEOC under this title) refer to the rights,protections and remedies of this section and section 307(h).]

All personnel actions affecting employees of the Senate shall be madefree from any discrimination based on -

(1) race, color, religion, sex, or national origin, within themeaning of section 717 of the Civil Rights Act of 1964 (42 U.S.C.2000e-16);

(2) age, within the meaning of section 15 of the Age Discriminationin Employment Act of 1967 (29 U.S.C. 633a); or

(3) handicap or disability, within the meaning of section 501 ofthe Rehabilitation Act of 1973 (29 U.S.C. 791) and sections 102-104 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112-14).

[SECTIONS 303 THROUGH 306: Section 303 (2 U.S.C. 1203) establishes theOffice of Senate Fair Employment Practices, which will administer theprocedures set forth in sections 304 through 307. Section 304 (2 U.S.C.1204) outlines the four-step procedure described in Sections 305 through309 for consideration of alleged violations. Section 305 (2 U.S.C. 1205)describes the Step I counseling procedures. Section 306 (2 U.S.C. 1206)describes the Step II mediation process. Section 307 (2 U.S.C. 1207),described fully below, sets forth the formal complaint and hearingprocedures.]

STEP III: FORMAL COMPLAINT AND HEARINGSEC. 307 [2 U.S.C. 1207]

[SECTION 307, SUBSECTIONS (a) THROUGH (g), AND (i): Subsections (a)through (g), and (i) of Section 307 describe the process from the formalcomplaint through the hearing stage.]

[Sections 320 and 321 (which protect Presidential appointees andpreviously exempt state employees who may file complaints ofdiscrimination with EEOC under this title) refer to the rights,protections and remedies of section 302 and the following subsection.]

(h) Remedies. - If the hearing board determines that a violation hasoccurred, it shall order such remedies as would be appropriate if awardedunder section 706 (g) and (k) of the Civil Rights Act of 1964 (42 U.S.C.2000e-5 (g) and (k)), and may also order the award of such compensatorydamages as would be appropriate if awarded under section 1977 and section1977A (a) and (b)(2) of the Revised Statutes (42 U.S.C. 1981 and 1981A (a)and (b)(2)). In the case of a determination that a violation based on age has occurred, the hearing board shall order such remedies as would be appropriate if awarded under section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)). Any order requiring the payment of money must be approved by a Senate resolution reported by theCommittee on Rules and Administration. The hearing board shall have no authority to award punitive damages.

[SECTIONS 308 THROUGH 313: Section 308 (2 U.S.C. 1208) describes theprocedures by which a Senate employee or head of an employing office mayrequest a review by the Select Committee on Ethics of a decision issuedunder Section 307. Section 309 (2 U.S.C. 1209) describes thecircumstances under which a Senate employee or Member of the Senate maypetition for a review by the United States Court of Appeals for theFederal Circuit. Section 310 (2 U.S.C. 1210) describes the procedures bywhich a complaint may be resolved. Section 311 (2 U.S.C. 1211) enumeratesreimbursable costs of attending hearings. Section 312 (2 U.S.C. 1212)prohibits intimidation or reprisal against any employee because of theexercise of a right under this title. Section 313 (2 U.S.C. 1213)outlines confidentiality requirements for counseling, mediation, hearings,final decisions, and records.]

EXERCISE OF RULEMAKING POWERSEC. 314 [2 U.S.C. 1214]

The provisions of this title, except for sections 309, 320, 321, and322, are enacted by the Senate as an exercise of the rulemaking power ofthe Senate, with full recognition of the right of the Senate to change itsrules, in the same manner, and to the same extent, as in the case of anyother rule of the Senate. Notwithstanding any other provision of law,except as provided in section 309, enforcement and adjudication withrespect to the discriminatory practices prohibited by section 302, andarising out of Senate employment, shall be within the exclusivejurisdiction of the United States Senate.

TECHNICAL AND CONFORMING AMENDMENTSSEC. 315

[This section makes technical and conforming amendments to section 509of the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12209)with respect to Senate employees.]

[SECTIONS 316 THROUGH 319: Section 316 (2 U.S.C. 1215) states that the consideration of political affiliation, domicile, and politicalcompatibility with the employing office in an employment decision shallnot be considered a violation of this title. Section 317 (2 U.S.C. 1216)states that a Senate employee may not commence a judicial proceeding toredress a prohibited discriminatory practice, except as provided in thistitle. Sec. 318 (2 U.S.C. 1217) expresses the Senate's view thatlegislation should be enacted to provide the same or comparable rights andremedies as are provided under this title to Congressional employeeslacking such rights and remedies. Section 319 (2 U.S.C. 1218) reaffirmsthe Senate's commitment to Rule XLII of the Standing Rules of the Senate.]

COVERAGE OF PRESIDENTIAL APPOINTEES.SEC. 320 [2 U.S.C. 1219]

(a) In General. -

(1) Application. - The rights, protections, and remedies providedpursuant to section 302 and 307(h) of this title shall apply with respectto employment of Presidential appointees.

(2) Enforcement by administrative action. - Any Presidentialappointee may file a complaint alleging a violation, not later than 180days after the occurrence of the alleged violation, with the EqualEmployment Opportunity Commission, or such other entity as is designatedby the President by Executive Order, which, in accordance with theprinciples and procedures set forth in sections 554 through 557 of title5, United States Code, shall determine whether a violation has occurredand shall set forth its determination in a final order. If the EqualEmployment Opportunity Commission, or such other entity as is designatedby the President pursuant to this section, determines that a violation hasoccurred, the final order shall also provide for appropriate relief.

(3) Judicial review. -

(A) In general. - Any party aggrieved by a final order underparagraph (2) may petition for review by the United States Court ofAppeals for the Federal Circuit.

(B) Law applicable. - Chapter 158 of title 28, United States Code,shall apply to a review under this section except that the EqualEmployment Opportunity Commission or such other entity as the Presidentmay designate under paragraph (2) shall be an "agency" as thatterm is used in chapter 158 of title 28, United States Code.

(C) Standard of review. - To the extent necessary to decision andwhen presented, the reviewing court shall decide all relevant questions oflaw and interpret constitutional and statutory provisions. The courtshall set aside a final order under paragraph (2) if it is determined thatthe order was -

(i) arbitrary, capricious, an abuse of discretion, or otherwise notconsistent with law;

(ii) not made consistent with required procedures; or

(iii) unsupported by substantial evidence.

In making the foregoing determinations, the court shall review thewhole record or those parts of it cited by a party, and due account shallbe taken of the rule of prejudicial error.

(D) Attorney's fees. - If the presidential appointee is theprevailing party in a proceeding under this section, attorney's fees maybe allowed by the court in accordance with the standards prescribed undersection 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).

(b) Presidential appointee. - For purposes of this section, the term"Presidential appointee" means any officer or employee, or anapplicant seeking to become an officer or employee, in any unit of theExecutive Branch, including the Executive Office of the President, whetherappointed by the President or by any other appointing authority in theExecutive Branch, who is not already entitled to bring an action under anyof the statutes referred to in section 302 but does not include anyindividual -

(1) whose appointment is made by and with the advice and consent ofthe Senate;

(2) who is appointed to an advisory committee, as defined insection 3(2) of the Federal Advisory Committee Act (5 U.S.C. App.); or

(3) who is a member of the uniformed services.

COVERAGE OF PREVIOUSLY EXEMPT STATE EMPLOYEESSEC. 321 [2 U.S.C. 1220]

(a) Application. - The rights, protections, and remedies providedpursuant to section 302 and 307(h) of this title shall apply with respectto employment of any individual chosen or appointed, by a person electedto public office in any State or political subdivision of any State by thequalified voters thereof -

(1) to be a member of the elected official's personal staff;

(2) to serve the elected official on the policymaking level; or

(3) to serve the elected official as an immediate advisor withrespect to the exercise of the constitutional or legal powers of theoffice.

(b) Enforcement by administrative action. -

(1) In general. - Any individual referred to in subsection (a) mayfile a complaint alleging a violation, not later than 180 days after theoccurrence of the alleged violation, with the Equal Employment OpportunityCommission, which, in accordance with the principles and procedures setforth in sections 554 through 557 of title 5, United States Code, shalldetermine whether a violation has occurred and shall set forth itsdetermination in a final order. If the Equal Employment OpportunityCommission determines that a violation has occurred, the final order shallalso provide for appropriate relief.

(2) Referral to state and local authorities. -

(A) Application. - Section 706(d) of the Civil Rights Act of 1964(42 U.S.C. 2000e-5(d)) shall apply with respect to any proceeding underthis section.

(B) Definition. - For purposes of the application described insubparagraph (A), the term "any charge filed by a member of theCommission alleging an unlawful employment practice" means acomplaint filed under this section.

(c) Judicial review. - Any party aggrieved by a final order undersubsection (b) may obtain a review of such order under chapter 158 oftitle 28, United States Code. For the purpose of this review, the EqualEmployment Opportunity Commission shall be an "agency" as thatterm is used in chapter 158 of title 28, United States Code.

(d) Standard of review. - To the extent necessary to decision and whenpresented, the reviewing court shall decide all relevant quest

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