[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 169 Enrolled Bill (ENR)]
H.R.169
One Hundred Seventh Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Wednesday,
the twenty-third day of January, two thousand and two
An Act
To require that Federal agencies be accountable for violations of
antidiscrimination and whistleblower protection laws; to require that
each Federal agency post quarterly on its public Web site, certain
statistical data relating to Federal sector equal employment opportunity
complaints filed with such agency; and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2002''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--GENERAL PROVISIONS
Sec. 101. Findings.
Sec. 102. Sense of Congress.
Sec. 103. Definitions.
Sec. 104. Effective date.
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
Sec. 201. Reimbursement requirement.
Sec. 202. Notification requirement.
Sec. 203. Reporting requirement.
Sec. 204. Rules and guidelines.
Sec. 205. Clarification of remedies.
Sec. 206. Studies by General Accounting Office on exhaustion of remedies
and certain Department of Justice costs.
TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE
Sec. 301. Data to be posted by employing Federal agencies.
Sec. 302. Data to be posted by the Equal Employment Opportunity
Commission.
Sec. 303. Rules.
TITLE I--GENERAL PROVISIONS
SEC. 101. FINDINGS.
Congress finds that--
(1) Federal agencies cannot be run effectively if those
agencies practice or tolerate discrimination;
(2) Congress has heard testimony from individuals, including
representatives of the National Association for the Advancement of
Colored People and the American Federation of Government Employees,
that point to chronic problems of discrimination and retaliation
against Federal employees;
(3) in August 2000, a jury found that the Environmental
Protection Agency had discriminated against a senior social
scientist, and awarded that scientist $600,000;
(4) in October 2000, an Occupational Safety and Health
Administration investigation found that the Environmental
Protection Agency had retaliated against a senior scientist for
disagreeing with that agency on a matter of science and for helping
Congress to carry out its oversight responsibilities;
(5) there have been several recent class action suits based on
discrimination brought against Federal agencies, including the
Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco,
and Firearms, the Drug Enforcement Administration, the Immigration
and Naturalization Service, the United States Marshals Service, the
Department of Agriculture, the United States Information Agency,
and the Social Security Administration;
(6) notifying Federal employees of their rights under
discrimination and whistleblower laws should increase Federal
agency compliance with the law;
(7) requiring annual reports to Congress on the number and
severity of discrimination and whistleblower cases brought against
each Federal agency should enable Congress to improve its oversight
over compliance by agencies with the law; and
(8) requiring Federal agencies to pay for any discrimination or
whistleblower judgment, award, or settlement should improve agency
accountability with respect to discrimination and whistleblower
laws.
SEC. 102. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) Federal agencies should not retaliate for court judgments
or settlements relating to discrimination and whistleblower laws by
targeting the claimant or other employees with reductions in
compensation, benefits, or workforce to pay for such judgments or
settlements;
(2) the mission of the Federal agency and the employment
security of employees who are blameless in a whistleblower incident
should not be compromised;
(3) Federal agencies should not use a reduction in force or
furloughs as means of funding a reimbursement under this Act;
(4)(A) accountability in the enforcement of employee rights is
not furthered by terminating--
(i) the employment of other employees; or
(ii) the benefits to which those employees are entitled
through statute or contract; and
(B) this Act is not intended to authorize those actions;
(5)(A) nor is accountability furthered if Federal agencies
react to the increased accountability under this Act by taking
unfounded disciplinary actions against managers or by violating the
procedural rights of managers who have been accused of
discrimination; and
(B) Federal agencies should ensure that managers have adequate
training in the management of a diverse workforce and in dispute
resolution and other essential communication skills; and
(6)(A) Federal agencies are expected to reimburse the General
Fund of the Treasury within a reasonable time under this Act; and
(B) a Federal agency, particularly if the amount of
reimbursement under this Act is large relative to annual
appropriations for that agency, may need to extend reimbursement
over several years in order to avoid--
(i) reductions in force;
(ii) furloughs;
(iii) other reductions in compensation or benefits for the
workforce of the agency; or
(iv) an adverse effect on the mission of the agency.
SEC. 103. DEFINITIONS.
For purposes of this Act--
(1) the term ``applicant for Federal employment'' means an
individual applying for employment in or under a Federal agency;
(2) the term ``basis of alleged discrimination'' shall have the
meaning given such term under section 303;
(3) the term ``Federal agency'' means an Executive agency (as
defined in section 105 of title 5, United States Code), the United
States Postal Service, or the Postal Rate Commission;
(4) the term ``Federal employee'' means an individual employed
in or under a Federal agency;
(5) the term ``former Federal employee'' means an individual
formerly employed in or under a Federal agency; and
(6) the term ``issue of alleged discrimination'' shall have the
meaning given such term under section 303.
SEC. 104. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect on
the 1st day of the 1st fiscal year beginning more than 180 days after
the date of the enactment of this Act.
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
SEC. 201. REIMBURSEMENT REQUIREMENT.
(a) Applicability.--This section applies with respect to any
payment made in accordance with section 2414, 2517, 2672, or 2677 of
title 28, United States Code, and under section 1304 of title 31,
United States Code (relating to judgments, awards, and compromise
settlements) to any Federal employee, former Federal employee, or
applicant for Federal employment, in connection with any proceeding
brought by or on behalf of such employee, former employee, or applicant
under--
(1) any provision of law cited in subsection (c); or
(2) any other provision of law which prohibits any form of
discrimination, as identified under rules issued under section 204.
(b) Requirement.--An amount equal to the amount of each payment
described in subsection (a) shall be reimbursed to the fund described
in section 1304 of title 31, United States Code, out of any
appropriation, fund, or other account (excluding any part of such
appropriation, of such fund, or of such account available for the
enforcement of any Federal law) available for operating expenses of the
Federal agency to which the discriminatory conduct involved is
attributable as determined under section 204.
(c) Scope.--The provisions of law cited in this subsection are the
following:
(1) Section 2302(b) of title 5, United States Code, as applied
to discriminatory conduct described in paragraphs (1) and (8), or
described in paragraph (9) of such section as applied to
discriminatory conduct described in paragraphs (1) and (8), of such
section.
(2) The provisions of law specified in section 2302(d) of title
5, United States Code.
SEC. 202. NOTIFICATION REQUIREMENT.
(a) In General.--Written notification of the rights and protections
available to Federal employees, former Federal employees, and
applicants for Federal employment (as the case may be) in connection
with the respective provisions of law covered by paragraphs (1) and (2)
of section 201(a) shall be provided to such employees, former
employees, and applicants--
(1) in accordance with otherwise applicable provisions of law;
or
(2) if, or to the extent that, no such notification would
otherwise be required, in such time, form, and manner as shall
under section 204 be required in order to carry out the
requirements of this section.
(b) Posting on the Internet.--Any written notification under this
section shall include, but not be limited to, the posting of the
information required under paragraph (1) or (2) (as applicable) of
subsection (a) on the Internet site of the Federal agency involved.
(c) Employee Training.--Each Federal agency shall provide to the
employees of such agency training regarding the rights and remedies
applicable to such employees under the laws cited in section 201(c).
SEC. 203. REPORTING REQUIREMENT.
(a) Annual Report.--Subject to subsection (b), not later than 180
days after the end of each fiscal year, each Federal agency shall
submit to the Speaker of the House of Representatives, the President
pro tempore of the Senate, the Committee on Governmental Affairs of the
Senate, the Committee on Government Reform of the House of
Representatives, each committee of Congress with jurisdiction relating
to the agency, the Equal Employment Opportunity Commission, and the
Attorney General an annual report which shall include, with respect to
the fiscal year--
(1) the number of cases arising under each of the respective
provisions of law covered by paragraphs (1) and (2) of section
201(a) in which discrimination on the part of such agency was
alleged;
(2) the status or disposition of cases described in paragraph
(1);
(3) the amount of money required to be reimbursed by such
agency under section 201 in connection with each of such cases,
separately identifying the aggregate amount of such reimbursements
attributable to the payment of attorneys' fees, if any;
(4) the number of employees disciplined for discrimination,
retaliation, harassment, or any other infraction of any provision
of law referred to in paragraph (1);
(5) the final year-end data posted under section 301(c)(1)(B)
for such fiscal year (without regard to section 301(c)(2));
(6) a detailed description of--
(A) the policy implemented by that agency relating to
appropriate disciplinary actions against a Federal employee
who--
(i) discriminated against any individual in violation
of any of the laws cited under section 201(a) (1) or (2);
or
(ii) committed another prohibited personnel practice
that was revealed in the investigation of a complaint
alleging a violation of any of the laws cited under section
201(a) (1) or (2); and
(B) with respect to each of such laws, the number of
employees who are disciplined in accordance with such policy
and the specific nature of the disciplinary action taken;
(7) an analysis of the information described under paragraphs
(1) through (6) (in conjunction with data provided to the Equal
Employment Opportunity Commission in compliance with part 1614 of
title 29 of the Code of Federal Regulations) including--
(A) an examination of trends;
(B) causal analysis;
(C) practical knowledge gained through experience; and
(D) any actions planned or taken to improve complaint or
civil rights programs of the agency; and
(8) any adjustment (to the extent the adjustment can be
ascertained in the budget of the agency) to comply with the
requirements under section 201.
(b) First Report.--The 1st report submitted under subsection (a)
shall include for each item under subsection (a) data for each of the 5
immediately preceding fiscal years (or, if data are not available for
all 5 fiscal years, for each of those 5 fiscal years for which data are
available).
SEC. 204. RULES AND GUIDELINES.
(a) Issuance of Rules and Guidelines.--The President (or the
designee of the President) shall issue--
(1) rules to carry out this title;
(2) rules to require that a comprehensive study be conducted in
the executive branch to determine the best practices relating to
the appropriate disciplinary actions against Federal employees who
commit the actions described under clauses (i) and (ii) of section
203(a)(6)(A); and
(3) based on the results of such study, advisory guidelines
incorporating best practices that Federal agencies may follow to
take such actions against such employees.
(b) Agency Notification Regarding Implementation of Guidelines.--
Not later than 30 days after the issuance of guidelines under
subsection (a), each Federal agency shall submit to the Speaker of the
House of Representatives, the President pro tempore of the Senate, the
Equal Employment Opportunity Commission, and the Attorney General a
written statement specifying in detail--
(1) whether such agency has adopted and will fully follow such
guidelines;
(2) if such agency has not adopted such guidelines; the reasons
for the failure to adopt such guidelines; and
(3) if such agency will not fully follow such guidelines, the
reasons for the decision not to fully follow such guidelines and an
explanation of the extent to which such agency will not follow such
guidelines.
SEC. 205. CLARIFICATION OF REMEDIES.
Consistent with Federal law, nothing in this title shall prevent
any Federal employee, former Federal employee, or applicant for Federal
employment from exercising any right otherwise available under the laws
of the United States.
SEC. 206. STUDIES BY GENERAL ACCOUNTING OFFICE ON EXHAUSTION OF
ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT OF CERTAIN
DEPARTMENT OF JUSTICE COSTS.
(a) Study on Exhaustion of Administrative Remedies.--
(1) Study.--
(A) In general.--Not later than 180 days after the date of
enactment of this Act, the General Accounting Office shall
conduct a study relating to the effects of eliminating the
requirement that Federal employees aggrieved by violations of
any of the laws specified under section 201(c) exhaust
administrative remedies before filing complaints with the Equal
Employment Opportunity Commission.
(B) Contents.--The study shall include a detailed summary
of matters investigated, information collected, and conclusions
formulated that lead to determinations of how the elimination
of such requirement will--
(i) expedite handling of allegations of such violations
within Federal agencies and will streamline the complaint-
filing process;
(ii) affect the workload of the Commission;
(iii) affect established alternative dispute resolution
procedures in such agencies; and
(iv) affect any other matters determined by the General
Accounting Office to be appropriate for consideration.
(2) Report.--Not later than 90 days after completion of the
study required by paragraph (1), the General Accounting Office
shall submit to the Speaker of the House of Representatives, the
President pro tempore of the Senate, the Equal Employment
Opportunity Commission, and the Attorney General a report
containing the information required to be included in such study.
(b) Study on Ascertainment of Certain Costs of the Department of
Justice in Defending Discrimination and Whistleblower Cases.--
(1) Study.--Not later than 180 days after the date of enactment
of this Act, the General Accounting Office shall conduct a study of
the methods that could be used for, and the extent of any
administrative burden that would be imposed on, the Department of
Justice to ascertain the personnel and administrative costs
incurred in defending in each case arising from a proceeding
identified under section 201(a) (1) and (2).
(2) Report.--Not later than 90 days after completion of the
study required by paragraph (1), the General Accounting Office
shall submit to the Speaker of the House of Representatives and the
President pro tempore of the Senate a report containing the
information required to be included in the study.
(c) Studies on Statutory Effects on Agency Operations.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act, the General Accounting Office shall
conduct--
(A) a study on the effects of section 201 on the operations
of Federal agencies; and
(B) a study on the effects of section 13 of the Contract
Disputes Act of 1978 (41 U.S.C. 612) on the operations of
Federal agencies.
(2) Contents.--Each study under paragraph (1) shall include,
with respect to the applicable statutes of the study--
(A) a summary of the number of cases in which a payment was
made in accordance with section 2414, 2517, 2672, or 2677 of
title 28, United States Code, and under section 1304 of title
31, United States Code;
(B) a summary of the length of time Federal agencies used
to complete reimbursements of payments described under
subparagraph (A); and
(C) conclusions that assist in making determinations on how
the reimbursements of payments described under subparagraph (A)
will affect--
(i) the operations of Federal agencies;
(ii) funds appropriated on an annual basis;
(iii) employee relations and other human capital
matters;
(iv) settlements; and
(v) any other matter determined by the General
Accounting Office to be appropriate for consideration.
(3) Reports.--Not later than 90 days after the completion of
each study under paragraph (1), the General Accounting Office shall
submit a report on each study, respectively, to the Speaker of the
House of Representatives, the President pro tempore of the Senate,
the Committee on Governmental Affairs of the Senate, the Committee
on Government Reform of the House of Representatives, and the
Attorney General.
(d) Study on Administrative and Personnel Costs Incurred by the
Department of the Treasury.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the General Accounting Office shall conduct
a study on the extent of any administrative and personnel costs
incurred by the Department of the Treasury to account for payments
made in accordance with section 2414, 2517, 2672, or 2677 of title
28, United States Code, and under section 1304 of title 31, United
States Code, as a result of--
(A) this Act; and
(B) the Contracts Dispute Act of 1978 (41 U.S.C. 601 note;
Public Law 95-563).
(2) Report.--Not later than 90 days after the completion of the
study under paragraph (1), the General Accounting Office shall
submit a report on the study to the Speaker of the House of
Representatives, the President pro tempore of the Senate, the
Committee on Governmental Affairs of the Senate, the Committee on
Government Reform of the House of Representatives, and the Attorney
General.
TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE
SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.
(a) In General.--Each Federal agency shall post on its public Web
site, in the time, form, and manner prescribed under section 303 (in
conformance with the requirements of this section), summary statistical
data relating to equal employment opportunity complaints filed with
such agency by employees or former employees of, or applicants for
employment with, such agency.
(b) Content Requirements.--The data posted by a Federal agency
under this section shall include, for the then current fiscal year, the
following:
(1) The number of complaints filed with such agency in such
fiscal year.
(2) The number of individuals filing those complaints
(including as the agent of a class).
(3) The number of individuals who filed 2 or more of those
complaints.
(4) The number of complaints (described in paragraph (1)) in
which each of the various bases of alleged discrimination is
alleged.
(5) The number of complaints (described in paragraph (1)) in
which each of the various issues of alleged discrimination is
alleged.
(6) The average length of time, for each step of the process,
it is taking such agency to process complaints (taking into account
all complaints pending for any length of time in such fiscal year,
whether first filed in such fiscal year or earlier). Average times
under this paragraph shall be posted--
(A) for all such complaints,
(B) for all such complaints in which a hearing before an
administrative judge of the Equal Employment Opportunity
Commission is not requested, and
(C) for all such complaints in which a hearing before an
administrative judge of the Equal Employment Opportunity
Commission is requested.
(7) The total number of final agency actions rendered in such
fiscal year involving a finding of discrimination and, of that
number--
(A) the number and percentage that were rendered without a
hearing before an administrative judge of the Equal Employment
Opportunity Commission, and
(B) the number and percentage that were rendered after a
hearing before an administrative judge of the Equal Employment
Opportunity Commission.
(8) Of the total number of final agency actions rendered in
such fiscal year involving a finding of discrimination--
(A) the number and percentage involving a finding of
discrimination based on each of the respective bases of alleged
discrimination, and
(B) of the number specified under subparagraph (A) for each
of the respective bases of alleged discrimination--
(i) the number and percentage that were rendered
without a hearing before an administrative judge of the
Equal Employment Opportunity Commission, and
(ii) the number and percentage that were rendered after
a hearing before an administrative judge of the Equal
Employment Opportunity Commission.
(9) Of the total number of final agency actions rendered in
such fiscal year involving a finding of discrimination--
(A) the number and percentage involving a finding of
discrimination in connection with each of the respective issues
of alleged discrimination, and
(B) of the number specified under subparagraph (A) for each
of the respective issues of alleged discrimination--
(i) the number and percentage that were rendered
without a hearing before an administrative judge of the
Equal Employment Opportunity Commission, and
(ii) the number and percentage that were rendered after
a hearing before an administrative judge of the Equal
Employment Opportunity Commission.
(10)(A) Of the total number of complaints pending in such
fiscal year (as described in the parenthetical matter in paragraph
(6)), the number that were first filed before the start of the then
current fiscal year.
(B) With respect to those pending complaints that were first
filed before the start of the then current fiscal year--
(i) the number of individuals who filed those complaints,
and
(ii) the number of those complaints which are at the
various steps of the complaint process.
(C) Of the total number of complaints pending in such fiscal
year (as described in the parenthetical matter in paragraph (6)),
the total number of complaints with respect to which the agency
violated the requirements of section 1614.106(e)(2) of title 29 of
the Code of Federal Regulations (as in effect on July 1, 2000, and
amended from time to time) by failing to conduct within 180 days of
the filing of such complaints an impartial and appropriate
investigation of such complaints.
(c) Timing and Other Requirements.--
(1) Current year data.--Data posted under this section for the
then current fiscal year shall include both--
(A) interim year-to-date data, updated quarterly, and
(B) final year-end data.
(2) Data for prior years.--The data posted by a Federal agency
under this section for a fiscal year (both interim and final) shall
include, for each item under subsection (b), such agency's
corresponding year-end data for each of the 5 immediately preceding
fiscal years (or, if not available for all 5 fiscal years, for
however many of those 5 fiscal years for which data are available).
SEC. 302. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION.
(a) In General.--The Equal Employment Opportunity Commission shall
post on its public Web site, in the time, form, and manner prescribed
under section 303 for purposes of this section, summary statistical
data relating to--
(1) hearings requested before an administrative judge of the
Commission on complaints described in section 301, and
(2) appeals filed with the Commission from final agency actions
on complaints described in section 301.
(b) Specific Requirements.--The data posted under this section
shall, with respect to the hearings and appeals described in subsection
(a), include summary statistical data corresponding to that described
in paragraphs (1) through (10) of section 301(b), and shall be subject
to the same timing and other requirements as set forth in section
301(c).
(c) Coordination.--The data required under this section shall be in
addition to the data the Commission is required to post under section
301 as an employing Federal agency.
SEC. 303. RULES.
The Equal Employment Opportunity Commission shall issue any rules
necessary to carry out this title.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.