[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.
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