[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 135 Referred in Senate (RFS)]
<DOC>
116th CONGRESS
1st Session
H. R. 135
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 16, 2019
Received; read twice and referred to the Committee on Homeland
Security and Governmental Affairs
_______________________________________________________________________
AN ACT
To amend the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 to strengthen Federal antidiscrimination laws
enforced by the Equal Employment Opportunity Commission and expand
accountability within the Federal Government, 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.
This Act may be cited as the ``Federal Employee Antidiscrimination
Act of 2019''.
SEC. 2. SENSE OF CONGRESS.
Section 102 of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is
amended--
(1) in paragraph (4), to read as follows:
``(4) accountability in the enforcement of Federal employee
rights is furthered when Federal agencies take appropriate
disciplinary action against Federal employees who have been
found to have committed discriminatory or retaliatory acts;'';
and
(2) in paragraph (5)(A)--
(A) by striking ``nor is accountability'' and
inserting ``but accountability is not''; and
(B) by inserting ``for what by law the agency is
responsible'' after ``under this Act''.
SEC. 3. NOTIFICATION OF VIOLATION.
Section 202 of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is
amended by adding at the end the following:
``(d) Notification of Final Agency Action.--
``(1) Not later than 30 days after a Federal agency takes
final action or the Equal Employment Opportunity Commission
issues an appellate decision involving a finding of
discrimination or retaliation prohibited by a provision of law
covered by paragraph (1) or (2) of section 201(a), as
applicable, the head of the agency subject to the finding shall
provide notice for at least 1 year on the agency's internet
website in a clear and prominent location linked directly from
the agency's internet home page stating that a finding of
discrimination or retaliation has been made.
``(2) The notification shall identify the date the finding
was made, the date or dates on which the discriminatory or
retaliatory act or acts occurred, and the law or laws violated
by the discriminatory or retaliatory act or acts. The
notification shall also advise Federal employees of the rights
and protections available under the respective provisions of
law covered by paragraph (1) or (2) of section 201(a).''.
SEC. 4. REPORTING REQUIREMENTS.
(a) Electronic Format Requirement.--
(1) In general.--Section 203(a) of the Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2002
(5 U.S.C. 2301 note) is amended--
(A) by inserting ``Homeland Security and'' before
``Governmental Affairs'';
(B) by inserting ``Oversight and'' before
``Government Reform''; and
(C) by inserting ``(in an electronic format
prescribed by the Office of Personnel Management)''
after ``an annual report''.
(2) Effective date.--The amendment made by paragraph (1)(C)
shall take effect on the date that is 1 year after the date of
enactment of this Act.
(3) Transition period.--Notwithstanding the requirements of
section 203(a) of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301
note), the report required under such section may be submitted
in an electronic format, as prescribed by the Office of
Personnel Management, during the period beginning on the date
of enactment of this Act and ending on the effective date in
paragraph (2).
(b) Reporting Requirement for Disciplinary Action.--Section 203 of
such Act is amended by adding at the end the following:
``(c) Disciplinary Action Report.--Not later than 60 days after the
date on which a Federal agency takes final action or a Federal agency
receives an appellate decision issued by the Equal Employment
Opportunity Commission involving a finding of discrimination or
retaliation in violation of a provision of law covered by paragraph (1)
or (2) of section 201(a), as applicable, the employing Federal agency
shall submit to the Commission a report stating whether disciplinary
action has been initiated against a Federal employee as a result of the
violation.''.
SEC. 5. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.
Section 301(b) of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is
amended--
(1) in paragraph (9)--
(A) in subparagraph (A), by striking ``and'' at the
end;
(B) in subparagraph (B)(ii), by striking the period
at the end and inserting ``, and''; and
(C) by adding at the end the following:
``(C) for each such finding counted under
subparagraph (A), the agency shall specify--
``(i) the date of the finding;
``(ii) the affected agency;
``(iii) the law violated; and
``(iv) whether a decision has been made
regarding necessary disciplinary action as a
result of the finding.''; and
(2) by adding at the end the following:
``(11) Data regarding each class action complaint filed
against the agency alleging discrimination or retaliation,
including--
``(A) information regarding the date on which each
complaint was filed;
``(B) a general summary of the allegations alleged
in the complaint;
``(C) an estimate of the total number of plaintiffs
joined in the complaint if known;
``(D) the current status of the complaint,
including whether the class has been certified; and
``(E) the case numbers for the civil actions in
which discrimination or retaliation has been found.''.
SEC. 6. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION.
Section 302(b) of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is
amended by striking ``(10)'' and inserting ``(11)''.
SEC. 7. NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND
RETALIATION ACT AMENDMENTS.
(a) Notification Requirements.--The Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301
note) is amended by adding after section 206 the following:
``SEC. 207. COMPLAINT TRACKING.
``Not later than 1 year after the date of enactment of the Federal
Employee Antidiscrimination Act of 2019, each Federal agency shall
establish a system to track each complaint of discrimination arising
under section 2302(b)(1) of title 5, United States Code, and
adjudicated through the Equal Employment Opportunity process from
inception to resolution of the complaint, including whether a decision
has been made regarding necessary disciplinary action as the result of
a finding of discrimination.
``SEC. 208. NOTATION IN PERSONNEL RECORD.
``If a Federal agency takes an adverse action covered under section
7512 of title 5, United States Code, against a Federal employee for an
act of discrimination or retaliation prohibited by a provision of law
covered by paragraph (1) or (2) of section 201(a), the agency shall,
after all appeals relating to such action have been exhausted, include
a notation of the adverse action and the reason for the action in the
employee's personnel record.''.
(b) Processing and Referral.--The Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is
amended by adding at the end the following:
``TITLE IV--PROCESSING AND REFERRAL
``SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.
``Each Federal agency is responsible for the fair, impartial
processing and resolution of complaints of employment discrimination
and retaliation arising in the Federal administrative process and shall
establish a model Equal Employment Opportunity Program that--
``(1) is not under the control, either structurally or
practically, of a Human Capital or General Counsel office;
``(2) is devoid of internal conflicts of interest and
ensures fairness and inclusiveness within the organization; and
``(3) ensures the efficient and fair resolution of
complaints alleging discrimination or retaliation.
``SEC. 402. NO LIMITATION ON HUMAN CAPITAL OR GENERAL COUNSEL ADVICE.
``Nothing in this title shall prevent a Federal agency's Human
Capital or General Counsel office from providing advice or counsel to
Federal agency personnel on the processing and resolution of a
complaint, including providing legal representation to a Federal agency
in any proceeding.
``SEC. 403. HEAD OF PROGRAM REPORTS TO HEAD OF AGENCY.
``The head of each Federal agency's Equal Employment Opportunity
Program shall report directly to the head of the agency.
``SEC. 404. REFERRALS OF FINDINGS OF DISCRIMINATION.
``(a) EEOC Findings of Discrimination.--Not later than 30 days
after the Equal Employment Opportunity Commission issues an appellate
decision involving a finding of discrimination or retaliation within a
Federal agency, the Commission shall refer the matter to the Office of
Special Counsel.
``(b) Referrals to Special Counsel.--The Office of Special Counsel
shall accept and review a referral from the Commission under subsection
(a) for purposes of seeking disciplinary action under its authority
against a Federal employee who commits an act of discrimination or
retaliation.
``(c) Notification.--The Office of Special Counsel shall notify the
Commission in a case in which the Office of Special Counsel initiates
disciplinary action.
``(d) Special Counsel Approval.--A Federal agency may not take
disciplinary action against a Federal employee for an alleged act of
discrimination or retaliation referred by the Commission under this
section except in accordance with the requirements of section 1214(f)
of title 5, United States Code.''.
(c) Conforming Amendments.--The table of contents in section 1(b)
of the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended--
(1) by inserting after the item relating to section 206 the
following:
``Sec. 207. Complaint tracking.
``Sec. 208. Notation in personnel record.'';
and
(2) by adding at the end the following:
``TITLE IV--PROCESSING AND REFERRAL
``Sec. 401. Processing and resolution of complaints.
``Sec. 402. No limitation on Human Capital or General Counsel advice.
``Sec. 403. Head of Program reports to head of agency.
``Sec. 404. Referrals of findings of discrimination.''.
SEC. 8. NONDISCLOSURE AGREEMENT LIMITATION.
Section 2302(b) of title 5, United States Code, is amended--
(1) in paragraph (13)--
(A) by inserting ``or the Office of Special
Counsel'' after ``Inspector General'';
(B) by striking ``implement'' and inserting ``(A)
implement''; and
(C) by striking the period that follows the quoted
material and inserting ``; or''; and
(2) by adding after subparagraph (A), as added by paragraph
(1)(B), and preceding the flush left matter that follows
paragraph (13), the following:
``(B) implement or enforce any nondisclosure
policy, form, or agreement, if such policy, form, or
agreement prohibits or restricts an employee from
disclosing to Congress, the Office of Special Counsel,
or an Office of the Inspector General any information
that relates to any violation of any law, rule, or
regulation, or mismanagement, a gross waste of funds,
an abuse of authority, or a substantial, and specific
danger to public health or safety, or any other
whistleblower protection.''.
Passed the House of Representatives January 15, 2019.
Attest:
KAREN L. HAAS,
Clerk.