[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 67 Introduced in House (IH)]







111th CONGRESS
  1st Session
                                 H. R. 67

 To amend and to strengthen accountability features introduced by the 
 Notification and Federal Employee Antidiscrimination and Retaliation 
                  Act of 2002, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 6, 2009

   Ms. Jackson-Lee of Texas introduced the following bill; which was 
 referred to the Committee on Oversight and Government Reform, and in 
    addition to the Committee on the Judiciary, for a period to be 
subsequently determined by the Speaker, in each case for consideration 
  of such provisions as fall within the jurisdiction of the committee 
                               concerned

_______________________________________________________________________

                                 A BILL


 
 To amend and to strengthen accountability features introduced by the 
 Notification and Federal Employee Antidiscrimination and Retaliation 
                  Act of 2002, 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 2009'' or 
the ``No FEAR Act of 2009''.
    (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. Amendments to Title I of the No FEAR Act of 2002.
      TITLE II--AMENDMENTS TO TITLE II OF THE NO FEAR ACT OF 2002

Sec. 201. Amendments relating to reimbursement requirement.
Sec. 202. Amendments relating to notification requirement.
Sec. 203. Amendments relating to reporting requirement.
Sec. 204. Training.
                  TITLE III--ACCOUNTABILITY PROVISIONS

Sec. 301. Disciplinary action requirement.
Sec. 302. Sanctions.
Sec. 303. Role of Department of Justice.
Sec. 304. No FEAR Oversight Office.
                      TITLE IV--DAMAGES AND RELIEF

Sec. 401. Clarification of Title VII liability caps, damages remedies.
Sec. 402. No immunity from individual liability for Federal officials.

                      TITLE I--GENERAL PROVISIONS

SEC. 101. FINDINGS.

    Congress finds that--
            (1) agencies that engage in discrimination, retaliation, 
        harassment, or violations of Federal discrimination or 
        whistleblower protection laws demonstrate a gross disregard for 
        taxpayer dollars, undermine the confidence of the American 
        people in the Government, put the public's safety and services 
        at risk, and reduce the Government's ability to timely and 
        adequately address vital public needs;
            (2)(A) Congress has heard testimony from individuals which 
        point to chronic problems of discrimination and retaliation 
        against Federal employees, and which, in turn, negatively 
        affect the Federal Government's efficiency and effectiveness;
            (B) in the case of Dr. Marsha Coleman-Adebayo, a jury found 
        in August 2000 that the Environmental Protection Agency had 
        discriminated against the scientist based on race, color, and a 
        hostile work environment; agency managers retaliated by 
        relieving the scientist of her duties after she reported that 
        an American company exposed its African miners and their 
        families to vanadium, a deadly substance; and the agency has 
        consistently retaliated against the employee since she 
        prevailed in her jury verdict and testified twice before 
        Congress; and
            (C) in the case of Matthew F. Fogg v. Janet Reno, Attorney 
        General of the United States, a case that was filed 21 years 
        ago--
                    (i) a Federal jury found that the United States 
                Marshals Service had discriminated against United 
                States Marshal Fogg, and was a ``hostile environment'' 
                for all African-Americans serving in the United States 
                Marshals Service; and
                    (ii) 10 years after that jury verdict, handed down 
                on April 28, 1998, the Department of Justice continued 
                to use taxpayer money to appeal this case; and
            (3)(A) Federal agencies should foster a workplace free of 
        discrimination and should timely resolve prima facie cases of 
        discrimination and retaliation, particularly in cases of class-
        wide allegations; and
            (B) in the case of Janet Howard, et al. v. Carlos M. 
        Gutierrez, Secretary, United States Department of Commerce, the 
        Department of Commerce allowed employee complaints to languish 
        and used taxpayer dollars to litigate a race-based 
        discrimination class action first filed in 1995; in fiscal year 
        2001, rather than resolve employee concerns, the Department 
        established the Class Action Project Fund (since renamed the 
        Complex Litigation Unit), which serves to defend a workforce 
        culture that perpetuates unlawful and intentional 
        discrimination in the workplace.

SEC. 102. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) additional enforcement and remedies under Federal law 
        are needed to make Federal agencies more accountable for their 
        violations of employment discrimination and whistleblower 
        protection laws;
            (2) defining and prescribing timely, definitive 
        disciplinary action for Federal managers and supervisors found 
        violating the No FEAR Act of 2002 provides more accountability 
        and consequences for discrimination and retaliation against 
        whistleblowers;
            (3) establishing a definitive period for reimbursing the 
        Judgment Fund (as prescribed in section 201 of the No FEAR Act 
        of 2002) should encourage timely resolution or settlement of 
        complaints;
            (4) extending notification of No FEAR provisions to cover 
        all employees, including employees of contractors receiving a 
        majority of their funding from contracts with the United States 
        Government, should increase Federal agency compliance with the 
        law;
            (5) addressing damages and relief should clarify 
        compensation available to complaining parties pursuant to the 
        1991 amendments to Title VII; and
            (6) extending whistleblower protection to veterans 
        hospitals and physicians and other medical professionals who 
        work in health care facilities that receive the majority of 
        their funding from the Federal Government should support and 
        protect medical professionals from discrimination and 
        retaliation.

SEC. 103. DEFINITIONS.

    For the purposes of this Act--
            (1) the term ``claim'' means a cause of action or an 
        alleged discriminatory or retaliatory act identified in a 
        complaint;
            (2) the term ``criminal violation'' includes any of the 
        offenses proscribed by section 241, 371, 373, or 1962 of title 
        18, United States Code, including fraud, perjury, bribery, 
        witness tampering, and obstruction of justice;
            (3) the term ``culpable official'' means an individual, 
        currently or formerly employed by a Federal agency, whose 
        conduct in the course of that employment is the basis for a 
        final finding of discrimination;
            (4) the term ``disciplinary action'' includes a suspension, 
        demotion, or termination;
            (5) the term ``employee'' means any Federal employee within 
        the meaning of section 103 of the No FEAR Act of 2002 and any 
        other individual, including permanent, temporary, full- or 
        part-time employees or independent contractors performing 
        services for an organization that in whole or in part is a 
        contractor or grantee or other entity that receives a majority 
        of its funding from the Federal Government;
            (6) the term ``Federal official'' means any manager, 
        supervisor, or senior policy official employed by a Federal 
        agency and having any of the powers and responsibilities of 
        management--
                    (A) to give instructions or orders to subordinates;
                    (B) to be held responsible for the work and actions 
                of other employees; or
                    (C) to administer discipline and penalties;
            (7) the term ``final finding of discrimination'' means a 
        finding of discrimination (as described in section 201(a) of 
        the No FEAR Act of 2002) that is final and not appealable, and 
        includes an order of settlement;
            (8) the term ``immediately'' means within less than 10 
        calendar days;
            (9) the term ``Title VII'' means title VII of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000e et seq.); and
            (10) the term ``whistleblower'' means an employee who 
        discloses information which the employee reasonably believes 
        evidences--
                    (A) a violation of Title VII or any other law, or 
                of any rule or regulation; or
                    (B) gross mismanagement, a gross waste of funds, an 
                abuse of authority, or a substantial and specific 
                danger to public health or safety.

SEC. 104. AMENDMENTS TO TITLE I OF THE NO FEAR ACT OF 2002.

    Section 102(6) of the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note), in 
this Act referred to as the ``No FEAR Act of 2002'', is amended--
            (1) in subparagraph (A), by striking ``within a reasonable 
        time'' and inserting ``no later than two years after the 
        Judgment Fund makes the payment''; and
            (2) in subparagraph (B), by striking ``agency, may need to 
        extend reimbursement over several years'' and inserting 
        ``agency, may need to make arrangements for a payment schedule 
        with the Treasury not to exceed two years''.

      TITLE II--AMENDMENTS TO TITLE II OF THE NO FEAR ACT OF 2002

SEC. 201. AMENDMENTS RELATING TO REIMBURSEMENT REQUIREMENT.

    Subsection (b) of section 201 of the No FEAR Act of 2002 is 
amended--
            (1) by making the text of such subsection a paragraph (1), 
        indented 2 ems and with a heading that reads as follows:
            ``(1) In general.--''; and
            (2) by adding at the end the following:
            ``(2) Notice to be provided by agency.--No later than 45 
        days after the date of the receipt of a final finding of 
        discrimination, the agency shall notify the Department of the 
        Treasury--
                    ``(A) of its responsibility to repay the Judgment 
                Fund; and
                    ``(B) to arrange payment of the full amount or to 
                make arrangements for a payment schedule in accordance 
                with paragraph (3).
            ``(3) Deadline for repayments generally.--The agency shall 
        repay the Judgment Fund in full no later than the close of the 
        second fiscal year beginning after the date on which the 
        Judgment Fund makes the payment (or, if made under a payment 
        schedule, the close of the second fiscal year beginning after 
        the date on which the Judgment Fund makes the final 
        payment).''.

SEC. 202. AMENDMENTS RELATING TO NOTIFICATION REQUIREMENT.

    Section 202 of the No FEAR Act of 2002 is amended--
            (1) in subsection (a), by striking ``to Federal 
        employees,'' and inserting ``to Federal employees (including 
        any employee of a contractor receiving more than 50 percent of 
        its annual gross revenues from Federal contracts),'';
            (2) in subsection (b), by adding at the end the following: 
        ``Within 3 days after the date of the enactment of the No FEAR 
        Act of 2009, and annually thereafter, each Federal agency shall 
        notify its employees, by e-mail or voice mail, of the Internet 
        site used by such agency in compliance with the preceding 
        sentence.''; and
            (3) by amending subsection (c) to read as follows:
    ``(c) Employee Training.--Each Federal agency shall ensure that 
employees of such agency receive training regarding the rights and 
remedies applicable to such employees under the respective provisions 
of law covered by paragraphs (1) and (2) of section 201(a).''.

SEC. 203. AMENDMENTS RELATING TO REPORTING REQUIREMENT.

    (a) In General.--Section 203(a) of the No FEAR Act of 2002 is 
amended--
            (1) by striking ``and'' at the end of paragraph (7);
            (2) by striking the period at the end of paragraph (8) and 
        inserting a semicolon; and
            (3) by adding after paragraph (8) the following:
            ``(9) data on all class actions filed, including size, 
        status, filing date, number of suits filed against the agency, 
        and demographic make-up;
            ``(10) request for counseling by race or sex, as well as 
        individuals who fall within both categories;
            ``(11) total workforce and ethnic representation, including 
        race and national origin data;
            ``(12) number and nature of personnel grievances alleging 
        prohibited personnel practices;
            ``(13) the total dollar amount by fiscal years that the 
        agency owes the Judgment Fund;
            ``(14) total costs associated with processing and 
        litigating cases, including salaries and travel costs of all 
        personnel involved;
            ``(15) number of plaintiffs that prevailed in jury trials 
        or administrative proceedings; and
            ``(16) specific agency office where discrimination was 
        found.''.
    (b) Additional Reports.--Section 203 of the No FEAR Act of 2002 is 
amended by adding at the end the following:
    ``(c) Reports by GAO.--The Government Accountability Office shall, 
within 90 days after the end of each fiscal year, prepare and submit to 
Speaker of the House of Representatives, the President pro tempore of 
the Senate, and each of the committees named or described in subsection 
(a), a report on the total costs incurred during such fiscal year which 
are associated with processing and litigating cases arising under each 
of the respective provisions of law covered by paragraphs (1) and (2) 
of section 201(a), including costs associated with Department of 
Justice litigation.
    ``(d) Reports by Agencies.--
            ``(1) In general.--Effective with respect to agency 
        performance plans for fiscal years beginning not later than 6 
        months after the date of the enactment of this subsection, each 
        Federal agency shall establish performance goals reflective of 
        its efforts to implement this Act.
            ``(2) Definitions.--For purposes of this subsection--
                    ``(A) the term `agency performance plan' refers to 
                an agency performance plan under section 1115 of title 
                31, United States Code (or, for purposes of the United 
                States Postal Service, section 2803 of title 39, United 
                States Code); and
                    ``(B) the term `performance goal' has the meaning 
                given such term by section 1115(g)(4) of title 31, 
                United States Code (or, for purposes of the United 
                States Postal Service, section 2801(3) of title 39, 
                United States Code).''.

SEC. 204. TRAINING.

    (a) The No FEAR Institute, a nonprofit, non-Federal Government 
entity, is hereby specified as a source of training and counseling for 
Federal employees that is mandated by this Act with regard to their 
rights and remedies under antidiscrimination, retaliation, and 
harassment, as well as whistleblower protection laws.
    (b) The No FEAR Institute shall be recognized as an official 
Federal Government training institute and receive annual funding, in 
accordance with such agreements as agencies and contractors may enter 
into with the No FEAR institute, in order to provide training to 
Federal employees and contractors receiving more than 50 percent of 
their annual budget from the Federal Government.

                  TITLE III--ACCOUNTABILITY PROVISIONS

SEC. 301. DISCIPLINARY ACTION REQUIREMENT.

    (a) Final Finding of Discrimination Where Mental or Physical Health 
Is Harmed.--Upon a final finding of discrimination with respect to a 
culpable official in a case in which such official's discriminatory or 
retaliatory acts are determined to have contributed to a loss of life 
or limb or any other substantial diminishment of an employee's mental 
or physical health, the culpable official shall immediately--
            (1) be terminated from Federal service;
            (2) be debarred from Federal employment for a period not to 
        exceed 5 years; and
            (3) forfeit any right to serve as a worker employed under 
        any Federal contract.
    (b) Final Finding of Discrimination Not Covered by Subsection 
(a).--
            (1) Applicability.--This subsection applies in the case of 
        any final finding of discrimination, with respect to a culpable 
        official, which is not subject to subsection (a).
            (2) Initial finding.--Upon an initial finding of 
        discrimination as described in paragraph (1)--
                    (A) the culpable official shall immediately--
                            (i) be removed from service as a Federal 
                        official; and
                            (ii) be demoted at least 1 pay grade (or 
                        the equivalent); and
                    (B) the employing agency shall include in the 
                culpable official's official personnel record a 
                notation to the effect that such a finding against such 
                official was made.
            (3) Subsequent finding.--Upon a subsequent finding of any 
        discrimination with respect to the same official, such official 
        shall immediately--
                    (A) be terminated from Federal service;
                    (B) be debarred from Federal employment for a 
                period not to exceed 5 years; and
                    (C) forfeit any right to serve as a worker employed 
                under any Federal contract.

SEC. 302. SANCTIONS.

    The Secretary of the Treasury shall impose a monetary penalty of 
$10,000 on an agency of the United States for each week that agency 
fails to take action against employees who falsify evidence in a 
proceeding under Title VII.

SEC. 303. ROLE OF DEPARTMENT OF JUSTICE.

    (a) Referral.--The Equal Employment Opportunity Commission and any 
agency that becomes aware of a criminal violation shall refer the 
matter to the Department of Justice for prosecution when agency 
officials are found liable for intimidating or harassing employees that 
testify before Congress. If an employee alleges that intimidation or 
harassment has occurred as a result of congressional testimony by that 
employee, Congress should work in collaboration with the No FEAR 
Oversight office to investigate the allegation and refer it to the 
Department of Justice for prosecution if appropriate.
    (b) Report.--Not later than 180 days after a determination not to 
prosecute a matter referred under this section, the Department of 
Justice shall provide to Congress a justification for that 
determination.

SEC. 304. NO FEAR OVERSIGHT OFFICE.

    The Comptroller General shall take such measures as may be 
necessary to ensure that an office, to be known as the ``No FEAR 
Oversight Office'', shall be created within the Government 
Accountability Office. The No FEAR Oversight Office shall be the 
official clearinghouse for the Federal Government and provide written 
information to Congress, the executive branch, and the public on the 
enforcement of the No FEAR Act of 2002. The No FEAR Oversight Office 
shall be established within 30 days after the date of the enactment of 
this Act.

                      TITLE IV--DAMAGES AND RELIEF

SEC. 401. CLARIFICATION OF TITLE VII LIABILITY CAPS, DAMAGES REMEDIES.

    (a) Clarify Title VII Liability Limits.--For Federal Government 
Title VII cases, the liability limits for Federal workplace 
discrimination cases under Title VII is $300,000 per each claim or 
alleged violation of said law adjudicated in favor of the claimant, 
whether or not said violation sustains one or more additional claims 
when considered in conjunction with other unlawful activity. Therefore, 
claimants are not limited to $300,000 compensatory damage cap per case 
as currently being interpreted by the Federal courts, but rather 
$300,000 per each claim awarded in favor of the plaintiff in the entire 
case. Furthermore, Title VII is only the exclusive remedy for workforce 
discrimination claims. Title VII is not the exclusive source of Federal 
statutory, workforce rights or exclusive remedy for their violation.
    (b) Relief.--Should an administrative agency or court find for the 
employee in a subsequent claim and that the relief requested some or 
all was appropriate, the employee shall be entitled to liquidated 
damages (after taxes) plus all reasonable fees to attorneys. This shall 
not be considered a part of compensatory damages. Entitlement to 
damages under this provision is a post judgment proceeding.

SEC. 402. NO IMMUNITY FROM INDIVIDUAL LIABILITY FOR FEDERAL OFFICIALS.

    It shall not be a defense to a civil action against an individual 
arising out of a violation of Title VII that the individual was acting 
in the capacity of a Government officer and employee at the time of the 
violation.
                                 <all>