[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 169 Referred in Senate (RFS)]
1st Session
H. R. 169
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 3, 2001
Received; read twice and referred to the Committee on Governmental
Affairs
_______________________________________________________________________
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 2001''.
(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. Definitions.
Sec. 103. 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. Study by General Accounting Office regarding exhaustion of
administrative remedies.
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.
The Congress finds that--
(1) Federal agencies cannot be run effectively if they
practice or tolerate discrimination,
(2) the Committee on the Judiciary of the House of
Representatives 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, and the United States
Marshals Service,
(6) notifying Federal employees of their rights under
discrimination and whistleblower laws should increase 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 agencies' compliance with the law, and
(8) penalizing Federal agencies by requiring them to pay
for any discrimination or whistleblower judgments, awards, and
settlements should improve agency accountability with respect
to discrimination and whistleblower laws.
SEC. 102. 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. 103. 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 of the 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 of the United States Code.
(3) The Whistleblower Protection Act of 1986 and the
amendments made by such Act.
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 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 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)), and
(6) a detailed description of--
(A) the policy implemented by such agency to
discipline employees who are determined in any judicial
or administrative proceeding to have discriminated
against any individual in violation of any of the laws
cited in section 201(c), 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.
(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 not available for all 5
fiscal years, for however many 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 for Federal agencies to take appropriate disciplinary
actions against Federal employees who are determined in any
judicial or administrative proceeding to have discriminated
against any individual in violation of any of the laws cited in
section 201(c), 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. STUDY BY GENERAL ACCOUNTING OFFICE REGARDING EXHAUSTION OF
ADMINISTRATIVE REMEDIES.
(a) Study.--Not later than 180 days after the date of the 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 in
paragraphs (7) and (8) of section 201(c) exhaust administrative
remedies before filing complaints with the Equal Employment Opportunity
Commission. Such study shall include a detailed summary of matters
investigated, of information collected, and of conclusions formulated
that lead to determinations of how the elimination of such requirement
will--
(1) expedite handling of allegations of such violations
within Federal agencies and will streamline the complaint-
filing process,
(2) affect the workload of the Commission,
(3) affect established alternative dispute resolution
procedures in such agencies, and
(4) affect any other matters determined by the General
Accounting Office to be appropriate for consideration.
(b) Report.--Not later than 90 days after completion of the study
required by subsection (a), 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.
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.
Passed the House of Representatives October 2, 2001.
Attest:
JEFF TRANDAHL,
Clerk.