It is enacted by the General Assembly as follows:

SECTION 1. {ADD Legislative Findings. -- ADD} It is hereby found by the general assembly that:

(1) Since the enactment of chapter 149 of the Public Laws of 1988, equal employment opportunity and affirmative action toward its achievement has been the express, declared and mandatory policy of all units of state government.

(2) Despite the sincere efforts of many individuals throughout state government over a period of six (6) years to effect and implement that express policy, equal employment opportunity for minorities has not been achieved, and affirmative action during the same six (6) year period has been sporadic, isolated and largely ineffectual.

(3) As of May 1992, racial minorities remain under-represented in all departments of state government, with the exceptions of three (3) departments.

(4) Virtually all appointing authorities in state government agree that the inflexibility of the current merit system law operates as an institutional and systemic barrier to equal employment opportunity for minorities.

(5) Legislative action is necessary to provide some degree of flexibility in the state's merit system law and to encourage the infusion of some degree of flexibility into the state's several collective bargaining agreements. And:

(6) In the absence of such legislative action, equal employment opportunity within state government and affirmative action toward its achievement will remain an abstract and unachievable goal.

SECTION 2. Sections 28-5.1-1 of the General Laws in Chapter 28-5.1 entitled "Equal Opportunity and Affirmative Action" is hereby amended to read as follows:

{ADD 28-5.1-1. Declaration of policy. -- ADD} {ADD (a) ADD} Equal opportunity and affirmative action toward its achievement is the policy of all units of Rhode Island state government {ADD , including all public and quasi-public agencies, commissions, boards and authorities; and in the classified, unclassified and non-classified services of state employment ADD} . This policy shall apply in all areas where the state dollar is spent, in employment, public service, grants and financial assistance, and in state licensing and regulation. All policies, programs and activities of state government shall be periodically reviewed and revised to assure their fidelity to this policy. Each department head shall make a report to the governor and the general assembly not later than September 30 of each year on the statistical results of the implementation of this chapter and to the state equal opportunity office {ADD ; provided, that the mandatory provisions of this section shall not apply to the legislative branch of state government ADD} .

{ADD (b) The provisions of this chapter shall in no way impair any contract or collective bargaining agreement currently in effect. Any contract or collective bargaining agreements, entered into or renewed after the effective date of this chapter, shall be subject to the provisions of this chapter. ADD}

SECTION 3. Section 28-5.1-3 of Chapter 28-5.1 of the General Laws, entitled "Equal Opportunity and Affirmative Action" is hereby amended to read as follows:

{ADD 28-5.1-3. Affirmative action. -- ADD} (a) The state equal opportunity office shall assign an equal opportunity officer as a liaison to agencies of state government.

(b) Each state department or agency {ADD , excluding the legislative branch of state government, ADD} shall annually prepare an affirmative action plan. These plans shall be prepared in accordance with the criteria and deadlines set forth by the state equal opportunity office. These deadlines shall provide, without limitation, that affirmative action plans for each fiscal year be submitted to the state equal opportunity office and the house fiscal advisor no later than March 31st. These plans shall be submitted to and shall be subject to review and approval by the state equal opportunity office.

(c) Any affirmative action plan acquired under this section deemed unsatisfactory by the state equal opportunity office shall be withdrawn and amended according to equal opportunity office criteria, in order to attain positive measures for compliance. The state equal opportunity office shall make every effort by informal conference, conciliation and persuasion to achieve compliance with affirmative action requirements.

{ADD The state equal opportunity office shall effect and promote the efficient transaction of its business and the timely handling of complaints and other matters before it, and shall make recommendations to appropriate state officials for affirmative action steps towards the achievement of equal opportunity.

The state equal opportunity administrator shall serve as the chief executive officer of the state equal opportunity office, and shall be responsible for monitoring and enforcing all equal opportunity laws, programs and policies within state government. ADD}

(d) No later than July 1st each state department or agency {ADD , excluding the legislative branch of state government, ADD} shall submit to the state equal opportunity office and the house fiscal advisor sufficient data to enable the state equal opportunity office and the house fiscal advisor to determine whether the agency achieved the hiring goals contained in its affirmative action plan for the previous year. If the hiring goals contained in the previous year's plan were not met, the agency shall also submit with such data a detailed explanation as to why the goals were not achieved.

{DEL (e) The state equal opportunity office is hereby authorized to initiate complaints against those agencies, administrators, agents or employees of any department or division within state government who wilfully fail to comply with the requirements of the affirmative action plan or of this chapter. Without limiting the foregoing, the state equal opportunity office shall notify the director of administration of any agency not in compliance with its affirmative action plan. DEL}

{DEL (f) DEL} {ADD (e) ADD} Standards for review of affirmative action plans shall be established by the state equal opportunity office, except where superseded by federal law.

{DEL (g) DEL} {ADD (f) ADD} For purposes of this section,"agency" shall include, without limitation, all departments, public and quasi-public agencies, authorities, boards and commissions of the state {ADD , excluding the legislative branch of state government ADD} .

{ADD (g) The state equal opportunity office shall continually review all policies, procedures, and practices for tendencies to discriminate and for institutional or systemic barriers for equal opportunity, and it shall make recommendations with reference to any such tendencies or barriers in its annual reports to the governor and the general assembly.

(h) Relevant provisions of this act shall also apply to expanding the pool of applicants for all positions wherein no list exists. The equal opportunity administrator is hereby authorized to develop and implement recruitment plans to assure that adequate consideration is given to qualified minority applicants in those job categories where a manifest imbalance exists excluding those job categories in the legislative branch of state government. ADD}

SECTION 4. Chapter 28-5.1 of the General Laws entitled "Equal Opportunity and Affirmative Action" is hereby amended by adding thereto the following section:

{ADD 28-5.1-3.2. Enforcement. -- ADD} {ADD (a) The state equal opportunity administrator is hereby authorized to initiate complaints against any agencies, administrators, or employees of any department or division within state government, excluding the legislative branch, who or which willfully fail to comply with the requirements of any applicable affirmative action plan or of this chapter or who or which fail to meet the standards of good faith effort, reasonable basis or reasonable action, as defined in guidelines promulgated by the federal Equal Employment Opportunity Commission as set forth in 29 CFR 1607.

(b) Whenever the equal employment opportunity administrator initiates such a complaint, he or she shall cause to be issued and served in the name of the equal employment opportunity office, a written notice, together with a copy of such complaint, requiring that the agency, administrator, agent or employee respond thereto and appear at a hearing at a time and place specified in such notice. The equal employment opportunity office shall follow its lawfully adopted rules and regulations concerning hearings of discrimination complaints.

(c) The equal employment opportunity office shall have the power, after hearing, to issue an order requiring a respondent to such a complaint to cease and desist from any unlawful discriminatory practice and/or to take such affirmative action, including but not limited to hiring, reinstatement, transfer or upgrading employees, with or without back pay, or dismissal, as may be necessary to secure compliance with any applicable affirmative action plan or with state or federal law.

(d) A final order of the equal employment opportunity office shall constitute an "order" within the meaning of section 42-35-1(j) of the general laws; shall be enforcible as such; shall be rendered in accordance with section 42-35-12 of the general laws; and shall be subject to judicial review in accordance with section 42-35-15 of the general laws. ADD}

SECTION 5. Section 28-5.1-5 of the General Laws in Chapter 28-5.1 entitled "Equal Opportunity and Affirmative Action" is hereby amended to read as follows:

{ADD 28-5.1-5. Department of administration. -- ADD} {ADD (a) ADD} The office of personnel administration of the department of administration shall prepare a comprehensive plan indicating the appropriate steps necessary to maintain and secure the equal opportunity responsibility and commitment of that division. The plan shall set forth attainable goals and target dates based upon a utilization study for achievement of such goals, together with operational assignment for each element of the plan to assure measurable progress. The office of personnel administration shall take positive steps to insure that the entire examination and testing process, including the development of job specifications and employment qualifications, is free from either conscious or inadvertent bias {ADD , and shall review all recruitment procedures for all state agencies covered by this chapter for compliance with federal and state law, and bring to the attention of the equal opportunity administrator matters of concern to its jurisdiction ADD} . The division of budget shall indicate in the annual personnel supplement, progress made toward the achievement of equal employment goals. The division of purchases shall cooperate in administering the state contract compliance programs. The division of statewide planning shall cooperate in assuring compliance from all recipients of federal grants.

{ADD (b) The office of labor relations shall propose in negotiations the inclusion of affirmative action language suitable to the need for attaining and maintaining a diverse workforce.

(c) There is hereby created a five (5) member committee which shall monitor negotiations with all collective bargaining units within state government specifically for equal opportunity and affirmative action interests. The members of that committee shall include the director of the Rhode Island commission for human rights, the equal opportunity administrator, the personnel administrator, one (1) member of the house of representatives appointed by the speaker, and one (1) member of the senate appointed by the senate majority leader. ADD}

SECTION 6. Section 36-11-13 of the General Laws in Chapter 36-11 entitled "Organization of State Employees" is hereby amended to read as follows:

{ADD 36-11-13. Affirmative action provisions. -- ADD} The director of the department of administration shall direct the associate director of human resources to include proposals for affirmative action provisions as a subject for all collective bargaining negotiations. The proposals shall include, at a minimum but not limited to, the following personnel actions: recruitment; new hires; promotions; transfers; terminations; training and education; layoffs and return from layoff.

{ADD The proposals shall also include a provision that all new and vacant positions shall be filled with due consideration to equal opportunity and affirmative action interests, especially when a manifest imbalance exists within a specific job category. Manifest imbalance, as used herein, shall mean the statistical under representation of minorities (as currently defined in federal employment law as Blacks, Hispanics, American Indians, including Alaskan Natives, and Asians including Pacific Islanders) in specific job categories. ADD}

SECTION 7. Sections 36-4-21 and 36-4-22 of the General Laws in Chapter 36-4 entitled "Merit System" are hereby amended to read as follows:

{ADD 36-4-21. Open continuous competitive tests. -- ADD} The personnel administrator may use open continuous competitive tests to establish lists and fill vacancies in an agency or agencies where there is a continued shortage of available qualified persons {ADD or where there is a manifest imbalance of minorities (as currently defined in employment law as Blacks, Hispanics, American Indians including Alaska Natives, and Asians including Pacific Islanders) in the job category. ADD} Open continuous competitive tests shall be subject to the conditions established in this chapter for the preparation of employment lists.

{ADD 36-4-22. Promotion examinations and lists. -- ADD} (a) Promotional examinations shall be conducted in the same manner as open competitive examinations subject to the following conditions:

(b) A person is eligible for promotional examination provided the employee is currently employed in the classified, unclassified, or nonclassified service as of the official closing date of the examination announcement or twenty one (21) calendar days prior to the administration of the first phase of the examination, whichever is later, and meets one or more of the following requirements:

(1) Any employee who holds or within three (3) years has held permanent status in the classified service; or

(2) Any employee who is serving in a probationary period as of the official closing date of the examination announcement; or

{ADD (3) A minority (as currently defined in federal employment law as Blacks, Hispanics, American Indians including Alaska Natives, and Asians including Pacific Islanders) who is a qualified exam applicant seeking entry to a classification where there is a manifest imbalance in the job category; or ADD}

{DEL (3) DEL} {ADD (4) ADD} Any employee who has served twelve (12) months service in the classified, unclassified, or nonclassified service; in addition, meets the minimum requirements established in the class specification.

(c) Promotion lists shall remain in effect for a period of {DEL four (4) years DEL} {ADD three (3) years ADD} or until exhausted or until combined with or replaced by a more recently prepared list {ADD ; or ADD}

{DEL (4) DEL} {ADD (d) ADD} This section shall not apply to the Rhode Island State Police {ADD or the legislative branch of state government ADD} .

{ADD (e) ADD} An employee who is not on the promotional list shall be eligible to take the promotional examination for the position the employee occupies.

SECTION 8. Section 36-4-26 of the General Laws in Chapter 36-4 entitled "Merit System" is hereby amended to read as follows:

{ADD 36-4-26. Certification and appointment to positions in classified service. -- ADD} If the appointing authority has designated the employment list, the personnel administrator shall immediately certify the names of the six (6) persons standing highest thereon who are available for appointment, if there are as many as six (6) such names thereon, or all the names on the list if there are less than six (6). If any of the eligibles notifies the personnel administrator that he or she is unavailable for appointment, another name shall be certified to the appointing authority. The appointing authority shall appoint one of the persons so certified to the position {DEL in accordance with the provisions of the personnel rules. DEL} {ADD from the appropriate list, or in accordance with the special certification provided for in section 36-4-26.1 of this chapter. ADD} If he or she has designated the promotional list, certification shall be made in the manner prescribed for the employment list. If he or she has designated the reemployment list, the names of all available eligibles on such list shall be certified to him or her for appointment. He or she may choose from any of the names so certified. If there are as many as three (3) available eligibles certified from an employment list, a promotion list, or a reemployment list the appointing authority shall make an appointment from one of these lists. If there are less than three (3) available eligibles certified from any of these lists, the appointing authority may choose to appoint one of the persons so certified. If the appointing authority decides not to make an appointment from any of the names so certified when there are less than three (3) available eligibles, the personnel administrator shall certify the names of three (3) available eligibles from any list which he or she shall declare to be appropriate and the appointing authority shall appoint one of the persons so certified. If there are less than three (3) available eligibles certified from an appropriate list the appointing authority may elect to appoint one of the names so certified or may make a temporary appointment of some other person as hereinafter provided. Whenever the personnel administrator is requested to certify names to fill more than one vacancy in a given class, he or she shall certify to each of the appointing authorities concerned one additional name for each additional vacancy.

SECTION 9. Chapter 36-4 of the General Laws entitled "Merit System" is hereby amended by adding thereto the following section:

{ADD 36-4-26.1. Supplemental certification in the civil service -- Expanded certification for equal opportunity and affirmative action. -- ADD} {ADD (a) To eliminate the overall adverse impact of systemic barriers to the employment of minorities as a protected class, the office of personnel administration shall provide all appointing authorities the necessary flexibility to remedy the effects of systemic discriminatory practices. Supplemental certification does not guarantee employment of protected classes; it guarantees the appointing authority increased opportunities, where possible, to appoint qualified employees from an expanded eligibility list whenever a department can demonstrate that there is statistical underrepresentation based on demographic analysis, otherwise called a "manifest imbalance" elsewhere in this chapter.

(b) Wherever a manifest imbalance exists, as substantiated by the appointing authority and certified by the equal opportunity administrator in conjunction with the state personnel administrator, a supplemental certification list of minorities may be called for in addition to the appropriate employment or promotion list, except in the following instances:

(1) The absence of statistical data or reasonable evidence to show significant past discrimination or patterns of possible discrimination and/or adverse impact on the protected classes;

(2) The presence of at least one minority ranked among the three persons standing highest on the list of persons certified by the personnel administrator for the position in question;

(3) The absence of any minorities on the appropriate eligibility list; or

(4) Any instance in which the department or agency is subject to a contradictory or inconsistent court order.

(c) Supplemental certifications based on race or color as a protected class shall be made by an appointing authority whenever:

(1) The appointing authority shall make requisition to fill one (1) or more positions included in said appointing authority's affirmative action plan on file with the equal opportunity administrator;

(2) The equal opportunity administrator has made a written determination substantiating that previous practices of the department and/or of said appointing authority with respect to the filling of such position or positions have discriminated against minorities in contravention of any provision of the Constitution of the United States or the Constitution of the state of Rhode Island and Providence Plantations, title VII of the federal Civil Rights Act of 1964 (42 U.S.C. 2000e) or any other federal or state statute; and

(3) Eligible minorities have passed an examination for the classification being recruited and/or other list deemed appropriate by the personnel administrator.

(d) At least seven (7) days prior to certifying names under this section, the appointing authority shall post a notice of intention to do so in the offices of the personnel administrator and of the equal opportunity administrator, and shall mail a copy of such notice to the applicable union, if any, with instructions to post copies of such notice at all locations where persons whose names may be certified under the provisions of this section may, if employed, be assigned.

(e) In certifying names for appointment to a classification for which supplemental certification is required the personnel administrator shall include upon the applicable list the names of six (6) persons certified pursuant to this section. ADD}

SECTION 10. {ADD Severability. ADD} If any provision of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act, which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.

SECTION 11. This act shall take effect upon passage.