had the right to strike for offices that are inherently political. There has to be some slack given here to the White House, as we see, the State and local authorities, and to the Congress, where you are talking about inherently political bodies.

Now, I do believe that the Senate ought to move in the same direction that the House has been moving in, and that the House to move even more toward professionalizing the other operations under an administrator and have those operations-other than the political offices, which means the Committees and the personal staffs-operate in a professional fashion, and collective bargaining there can be handled the same as it is for other executive branch agencies, in my judgment.

Mr. LUND. With respect to the State and local governments, I am not sure exactly what exemptions or slack we are talking about, at least with respect to the antidiscrimination laws like title VII. State and local officials are actually treated more harshly than employers in the private sector.

I think this goes back to your point about the use in electoral campaigns of lawsuits. For many years since 1972, State and local officials have been exposed to exactly that risk, and I have never heard that it has been a serious problem with State and local government. I am not sure why we should expect it should be a serious problem for the Federal Government, either.

Chairman GLENN. Senator Lieberman.

Senator LIEBERMAN. Thank you, Mr. Chairman.

Again, I apologize that we were going through another frustration exercise in another fixture of life in Congress, namely the filibuster. We had a majority for product liability reform, but not 60 votes, so we are not going to be able to take up the bill.

I do not want to delay the panel or repeat ground that has been covered. I would say one thing in response to what the Chairman said, understandable concern about the so-called media circus effect of this. I would say two things. One is that I believe you have to balance the need for the change that we are advocating with the possible misuse of it by some, and I do think, for all the reasons that all of us have stated, that the need is so great that it greatly outweighs the possibility of somebody misusing the system and turning into a media circus in an election year, for instance.

But the other fact is that you do not need to pass this bill to create opportunities for a media circus. All that anybody has to do today is to go to the Ethics Committee and file a complaint against a Member of Congress based on employment matters or anything else and go outside the door and hold a press conference, and there you have got it.

Without going too far off the point, you have got the situation with the President now, allegations made by Ms. Jones that go back a ways. Yet, they are right there on the front pages and on the news every night. Unfortunately, it has become one of the perils of this business, and I do not think we are going to add to that peril substantially by creating this new set of rights and assuming this responsibility ourselves.

I apologize if you have covered this, but I was interested in something that you said, Norm, which is about the independence of the

the public approaches the Congress generally that I have found as I go about talking about this, that while people are encouraged, they are still mistrustful that this is going to be an in-house operation, that the Office of Compliance will in fact not be independent. I get questions like that from some of the media, as well.

What would you do to make sure that we make this as independent as possible?

Mr. ORNSTEIN. It seems to me that you have to be very careful about the procedures for appointing the members and for firing the members, and I would take that out of the hands of the leaders in terms of the capacity to fire as much as I could. I would limit the role that current Members of the institution have in running and dealing with the operation as much as possible.

I think the House at this point needs to stiffen its procedures. They give too much of a role for the leadership's ability to discipline or remove a Director of the Office. You have got to take that away, and it seems to me that the way in which the offices of fair employment practices have worked really would suggest that we need a lot more sensitivity to making sure that even the perception of independence from the Members of the institution to make it work. I think it is doable.

Just one comment on the circus effect, because I think the Paula Jones case is a very good example of where a trial or a judicial procedure elevates or moves the political impact to a different level. If you look at what happened when we simply had Ms. Jones out there making allegations, and then what happened once the lawsuit was filed, it was magnified to an enormous degree. And that is why I think I favor a process that goes through a number of steps inside, through the Office of Compliance, before one can get to a court, because it is different in terms of the political magnitude.

I would not have a problem with allowing a sizable role for the courts, if I were assured that it would not happen without really exhausting efforts to make sure that things were done the right way internally.

Mr. MANN. Senator Lieberman, your point about independence is absolutely crucial. This whole effort of having an Office of Compliance will work and satisfy the external world, only if you set up mechanisms that are credible, that the entity is independent, for example, no current Members sitting on the Board, the Board has fixed terms and are not removable by the leaders of the Congress, some procedures for removal due to malfeasance or misfeasance, the Director of the Office perhaps appointed by the Board, as opposed to the leaders of the House and the Senate, and then the Hearing Board's decisions on individual cases not subject to review by party leaders or officials in the Congress. I think you can structure this office so that its independence is clear to any fair-minded person looking on.

Senator LIEBERMAN. Those are good suggestions. I appreciate them.

Mr. Lund.

Mr. LUND. I have got a couple of comments. First, I think you have done essentially in your bill the most important, with the caveat I indicated in my testimony, the most important thing to

make the office act and be seen to act independently, which is to give complaining parties an alternative forum in an article III court, where they can go, if they mistrust the independence of it. So I think you have already done the most important thing.

Going back to the media circus thing, I want to point out another fact or two, other facts about the media circus point. First, challengers do not have insulation from the laws. Somebody can file a title VII suit against a businessman who is running against one of you for Senate and he does not have any protection from that. There is no exemption for him.

Second, everybody agrees, or at least they have up until now, that any insulation you have under the Constitution is only for your official duties. Anybody can go out and file a paternity suit or some other kind of suit that could be politically very dangerous, and there is no protection for that. I am not sure I see why it is adding so much to whatever danger there is to give employees of Congress the basic protections from discrimination enjoyed by other Americans.

Senator LIEBERMAN. That is a very good point which you do not think about. But if you are following political campaigns, often part of a campaign is the incumbent going after the challenger for something the challenger has done in his or her private life, particularly in a business, and I have seen that happen on several occasions, including one or two that I can remember immediately in Connecticut, where we had nongovernment officials. So you are right, there is a certain equity. Unfortunately, it is sometimes overused and misused but there is a certain equity there.

Mr. Chairman, knowing that the witnesses have been on for a while and we have other witnesses to come on, I am going to stop my questioning and thank them for their leadership in this and their support. I probably would like to address some questions to the panel in writing after the hearing.

Chairman GLENN. Thank you. We might have additional ques

tions.

One thing here, I mentioned State and local coverage, where State and local governments are exempted from certain things. I have a copy of a chart on this, and if you want a copy of it, I would be glad to give you this one. But on the chart, State and local governments are not covered under National Labor Relations Act, of course, they are not covered under OSHA, Occupational Safety and Health, they are not covered under the Employee Retirement Income Security Act, the Federal Labor-Management Relations statute, Worker Adjustment the Retraining and Notification Act, and Americans With Disabilities Act, as far as antidiscrimination goes. Mr. LUND. Under the principal antidiscrimination cases, though, they are covered and in some cases treated more harshly than people in the private sector.

Chairman GLENN. These are just a few of those examples. If you want a copy of this, you are welcome to it.

Mr. LUND. Thank you.

Chairman GLENN. Thank you very much, gentlemen. We appreciate you being here. We will look forward to your early reply to

Chairman GLENN. Our next panel is Dr. Harriett C. Jenkins, Director of the Office of Senate Fair Employment Practices, and Michael Davidson, legal counsel for the Senate.

TESTIMONY OF HARRIETT G. JENKINS,1 DIRECTOR, OFFICE OF SENATE FAIR EMPLOYMENT PRACTICES, ACCOMPANIED BY CARL D. MOORE, DEPUTY DIRECTOR

Ms. JENKINS. Good morning, Mr. Chairman and Senator Lieberman. Thanks very, very much for inviting us to testify before your Committee on such a complex issue.

We were invited to talk about the Government Employee Rights Act, which is title III of the Civil Rights Act of 1991. So our remarks will focus on what has been happening in the process since we started.

Chairman GLENN. Pull those mikes up very close. They are very directional, and they do not hear very well unless you are right close.

Ms. JENKINS. OK.

I have with me Carl Moore, the Deputy Director of the Office of Senate Fair Employment Practices. He has been very instrumental in reviewing several of the legislative bills, and he as brought to the implementation of GERA, as well as the review of the legislation, very important direct experience, having served as the general counsel for the Personnel Appeals Board of the General Accounting Office, and then an additional 9 years as a labor/management attorney in three other significant kinds of appointments or assignments.

We are going to try to respond to your request that we make suggestions about how GERA can be improved, about the feasibility of expanding it to the House or other instrumentalities of Congress, and also our thoughts on alternate dispute resolution systems.

I think it would be important for me to at least review what has happened in the process. We opened the Office in June of 1992. GERA provides a five-step process that starts with counseling, goes on to mediation, and then the formal complaint can be filed if the person pursues the complaint.

I appoint a three-member external independent Hearing Board who decides whether there is discrimination; and the decision of that Hearing Board can be appealed to the Senate Select Committee on Ethics. The Ethics Committee decision can be appealed to the U.S. Court of Appeals for the Federal circuit.

While our statutory responsibilities actually charged us with managing that process, it also charged us with heightening awareness so discrimination would not occur. And we think that latter part is just as important as providing for the adjudication of allegations of discrimination.

During the 2 years that we have been managing the process, some 337 persons have come to us for advice and help; 26 of those were not covered by title III. Some 224 did come on in to our procedures and received advice only; 87 entered our five-step process, by starting counseling; 58 of those 87 went on to mediation; 26 of the 58 went on to file formal complaints; and three have arrived at the

1 The prepared statement of Ms. Jenkins appears on page 250.

appellate court level. One appealed to the court, another elected not to do so, and one still has the opportunity of appealing to the court.

Chairman GLENN. If I can interrupt just a second, 337 out of what total employment?

Ms. JENKINS. The Senate has approximately 7,800 to 8,000 em.ployees.

Chairman GLENN. So it is about 337 out of 8,000.

Ms. JENKINS. Right.

I think it would be important to note, when you have the spare time, on page 3 of our statement, that we share with you the kinds of discrimination alleged in descending order of frequency and also the kinds of personnel actions and practices that were being complained about.

In essence, though, our bottom line is that we feel that the GERA process has been proceeding very, very well; and it has been effective in providing to Senate employees the kinds of protections envisioned and fair and objective review of their allegations.

I want to point out that we have fuller testimony that we ask to be entered into the record. It contains additional comments on the GERA process and suggested language for the Senate bill 2071 in appendix A.1

We were reviewing that particular piece of legislation when we were invited to appear here, so we are sharing it with you as appendix A. We will be reviewing the other legislation within the next few days, and we would be happy to share that as well.2

Our suggestions for improving the GERA process are summarized on pages 4 and 5 of our testimony. We would like to suggest that more time be provided for the hearing phase. As it currently stands, there are 90 days in that process to hold the hearing wit an additional 45 days for the Board to issue its decision.

We would like to hold to the 90 days, but give flexibility and an option to the Director, if the presiding hearing officer asks for it, with good cause, to be able to extend that 90 days for an additional 60 days.

In terms of the 45 days for writing the decision or issuing the decision, we would recommend that 45 days be extended to no more than 75 days, if posthearing briefs have been required by the Hearing Board or were permitted by the Hearing Board.

Additional suggestions are to give factfinding or investigative authority to the Director of the Office, especially in those cases where one or both parties do not have enough information to evaluate their respective positions.

We recommend providing an award of attorneys' fees in age discrimination cases, which has been overlooked. GERA does not provide for an award of attorneys' fees, even if the Senate employee prevails in an age discrimination case. However awards are available in non-Federal-sector age discrimination claims; and public and private-sector employees do have that right in all of the other kinds of employment discrimination cases.

1 See page 257.