[Congressional Record Volume 147, Number 130 (Tuesday, October 2, 2001)]
[House]
[Pages H6071-H6076]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION
ACT OF 2001
Mr. SENSENBRENNER. Madam Speaker, I move to suspend the rules and
pass the bill (H.R. 169) to require that Federal agencies be
accountable for violations of antidiscrimination and whistleblower
protection laws, and for other purposes, as amended.
[[Page H6072]]
The Clerk read as follows:
H.R. 169
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
[[Page H6073]]
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.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin (Mr. Sensenbrenner) and the gentlewoman from Texas (Ms.
Jackson-Lee) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
General Leave
Mr. SENSENBRENNER. Madam Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks on H.R. 169, as amended, the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, today is a historic day for the House, as we are about
to consider, and likely pass, what Jack White at Time Magazine called
``the first new civil rights law of the 21st century.''
I, along with the gentlewoman from Texas (Ms. Jackson-Lee),
introduced
[[Page H6074]]
H.R. 169, the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2001, or the No FEAR Act, to address an outrage in
the Federal Government. The Federal Government should serve as a model
of the best practices for a fair and open work environment. But after a
year-long investigation, I was surprised to discover that some Federal
agencies appear to be allowing discrimination and retaliation against
their own employees.
The General Accounting Office has also investigated discrimination in
the Federal workforce and found complaints grew tremendously in the
1990s. In fact, in fiscal year 1999, the number of complaints to the
Equal Employment Opportunities Commission was about 120 percent greater
than the number of complaints in 1991. The GAO also reported that
complaints alleging retaliation against employees who had participated
in the complaint process had increased as well.
That very type of retaliation is what has brought us here today. A
number of brave EPA employees and scientists came forward to tell the
Committee on Science, which I chaired in the last Congress, about a
culture of intolerance and hostility at the EPA. By assisting a
congressional investigation, those employees risked retaliation, and
some experienced it.
In fact, the Labor Department concluded that the EPA had retaliated
against a female scientist because the Committee on Science used a
memorandum she wrote 10 years prior to one of the hearings on the
issue. She did not even know the committee had obtained her memorandum,
but she was still punished by the agency.
The problem is threefold: first, many employees and managers are not
aware of their rights and responsibilities, due to inadequate
notification requirements. Second, Federal agencies in Congress cannot
assess the extent of the problem due to inadequate reporting. Third,
Federal agencies are not accountable for the misdeeds of their
employees, as Federal agencies found guilty of discrimination do not
have to pay judgment settlement costs.
The bill is aimed at preventing and reducing discrimination and
retaliation in the Federal workforce by requiring better notification,
reporting, and accountability from Federal agencies. The No FEAR Act
would require agencies to pay for all court settlements or judgments
for discrimination and retaliation cases, rather than allowing them to
use a government-wide slush fund. This will make the agencies more
accountable for their actions.
The bill's notification requirement is aimed at improving workforce
relations by increasing managers' and employees' knowledge of their
respective rights and responsibilities. The act's reporting requirement
will help determine if a pattern of misconduct exists within an agency
and, if so, whether an agency is taking appropriate action to address
the problem, such as disciplining those employees or managers involved
in the misconduct. Tracking this information is critical to
understanding whether a problem exists.
Finally, the bill ensures that the Federal agencies abide by the same
laws by which private citizens and businesses must operate. Just like
private sector employees, Federal employees are protected against
discrimination and retaliation. Just like the private sector, Federal
agencies must be held accountable.
Madam Speaker, H.R. 169 enjoys a broad show of diverse support. The
NAACP has endorsed this bill, as well as the National Taxpayers Union.
As the National Taxpayers Union stated in urging Congress to enact the
legislation, ``The No FEAR Act promotes the virtues of fiscal
responsibility and accountability in government.''
Madam Speaker, I urge my colleagues to support this bill.
Madam Speaker, I reserve the balance of my time.
Ms. JACKSON-LEE of Texas. Madam Speaker, I yield myself such time as
I may consume.
Madam Speaker, I believe that this is an important day and a historic
day, and it is a reflection on the value of persistence and
determination.
I would like to thank the gentleman from Wisconsin (Mr.
Sensenbrenner), chairman of the Committee on the Judiciary, for having
both persistence and determination. Both of us served on the House
Committee on Science just a session ago when the gentleman chaired that
committee and we heard some very disturbing testimony. Out of that
testimony before the Committee on Science, together we worked on what
is now H.R. 169, the No FEAR Act. I would like to thank him for his
work, along with the gentleman from Michigan (Mr. Conyers), the ranking
member, and all of my colleagues from both sides of the aisle, for
working with us and supporting this important civil rights legislation.
This bill before us today, a substitute to H.R. 169, the No FEAR Act,
is a major step in our fight to end the insidious practice of
discrimination and retaliation in our Nation's Federal workplace. What
better timing than in the contrast of recognizing how important our
Federal workers are, how we are unified under one flag, hoping and
pushing forward the democracy and principles that we all believe in.
Madam Speaker, in fiscal year 2000, Federal employees filed nearly
25,000 complaints against Federal agencies through the EEOC process.
These complaints resulted in over $26 million in discrimination
complaint settlements and judgments, with an average process time of
384 days per complaint in 1998, while a case traveling through the
entire complaint process from filing through appeal could take up to 38
months. These numbers and process times indicate that discrimination is
pervasive in our Federal workplace.
Under the Civil Rights Act of 1964, it is illegal to discriminate
against Federal employees on the basis of race, color, sex, religion,
national origin, age or disability. These laws have taken us a long way
towards ensuring equality, job security, and the rule of law in the
Federal workplace by protecting Federal employees from retaliation for
filing complaints either against an agency or other employees of the
Federal Government who act in supervisory roles. The Federal Government
must be the national role model.
Currently, Federal whistleblowers may file reprisal complaints with
the Office of Special Counsel, OSC; the Merit Systems Protection Board,
MSPB; and the Department of Labor's Occupational Safety and Health
Administration, OSHA. Federal whistleblowers are protected under
several Federal laws, the primary one being the Whistleblower
Protection Act of 1989. But the numbers of actions and extensive
process time indicate that further legislation is greatly needed. I
believe many agencies and many groups saw fit for such, such as the
NAACP.
Since its introduction into the 106th Congress as H.R. 5516, the
Notification and Federal Employee Antidiscrimination Retaliation Act of
2000 has stood for the principles that Federal employees should have
``no fear'' in reporting discriminatory behavior by their Federal
agency employers. Like its predecessor, the legislation before us
today, H.R. 169 demands that agencies be held accountable for their
misdeeds; but it expands the accountability throughout the entire
Federal Government.
Let me put a face on this problem. On October 2, 2000, 1 year ago to
the day, the House Committee on Science held a hearing entitled
``Intolerance at EPA: Harming People, Harming Science?'' Dr. Marsha
Coleman-Adebayo, an EPA whistleblower, won a $600,000 jury decision
against EPA for race and sex discrimination under title VII of the
Civil Rights Act of 1964. During that hearing, the gentleman from
Wisconsin (Mr. Sensenbrenner), the then chairman of the Committee on
Science, illuminated the dangerous precedent set by the EPA, stating:
``While EPA has a clear policy on dealing with employees who
discriminate, harass, and retaliate against other EPA employees, no one
apparently involved in the Coleman-Adebayo or Nolan cases have yet to
be disciplined by the EPA.''
I note with concern that an internal EPA memo dated August 2, 2001,
praised the managers named in Dr. Coleman-Adebayo's case as
environmental leaders without a single mention of their role in
violating her civil rights. When coupled with the high-profile nature
of the case, I believe these actions send the wrong message to EPA and
Federal employees.
One manager was actually transferred from his original office, the
Office of International Activities, to Dr. Coleman-Adebayo's present
office. He
[[Page H6075]]
will now be the counselor to the assistant administrator for Pollution
Prevention, Pesticides and Toxic Substances.
I'd like to thank Judiciary chairman James Sensenbrenner, Ranking
Member John Conyers, and all my colleagues from both sides of the aisle
for supporting this important civil rights legislation. This bill
before us today, a substitute to H.R. 169 (the No Fear Act), is a major
step in our fight to end the insidious practice of discrimination and
retaliation in our Nation's Federal workplace.
My friends, in fiscal year 2000, Federal employees filed nearly
25,000 complaints against Federal agencies through the EEOC process.
The complaints resulted in over $26 million in discrimination complaint
settlements and judgments, with an average process time of 384 days per
complaint in 1998, while a case traveling through the entire complaint
process from filing through appeal could take up to 38 months. These
numbers and process times indicate that discrimination is pervasive in
our Federal workplace.
Under the Civil Rights Act of 1964, it is illegal to discriminate
against Federal employees on the basis of race, color, sex, religion,
national origin, age, or disability. These laws have taken us a long
way toward ensuring equality, job security, and the rule of law in the
Federal workplace by protecting Federal employees from retaliation for
filing complaints against either the agency or other employees of the
Federal Government who act in supervisory roles.
Currently, Federal whistleblowers may file reprisal complaints with
the Office of Special Counsel, (OSC), the Merit Systems Protection
Board, (MSPB), and the Department of Labor's Occupational Safety and
Health Administration, (OSHA). Federal whistleblowers are protected
under several Federal laws, the primary one being the Whistleblower
Protection Act of 1989. But the numbers of actions and extensive
process times indicate that further legislation is greatly needed.
Since its introduction in the 106th Congress as H.R. 5516, the
Notification and Federal Employee Anti-discrimination and Retaliation
Act of 2000 (No FEAR Act), has stood for the principle that Federal
employees should have ``no fear'' in reporting discriminatory behavior
by their federal agency employers. Like its predecessor, the
legislation before us today, H.R. 169, demands that agencies be held
accountable for their misdeeds, but H.R. 169 expands accountability
throughout the entire Federal Government.
Let me put a face on this problem. On October 2, 2000, 1 year ago to
the day, the House Science Committee held a hearing entitled
``Intolerance at EPA--Harming People, Harming Science?'' Dr. Marsha
Coleman-Adebayo, an EPA whistleblower, won a $600,000 jury decision
against EPA for race and sex discrimination under title VII of the
Civil Rights Act of 1964. During that hearing, then-chairman of the
Science Committee Sensenbrenner illuminated the dangerous precedent set
by the EPA, stating, ``While EPA has a clear policy on dealing with
employees that discriminate, harass and retaliate against other EPA
employees, no one apparently involved in the Coleman-Adebayo or Nolan
cases have yet [sic] to be disciplined by EPA.''
I note with concern that an internal EPA memo dated August 2, 2001,
praised the managers named in Dr. Coleman-Adebayo's case as
environmental leaders without a single mention of their role in
violating her civil rights. When coupled with the high profile nature
of the Dr. Coleman-Adebayo's case, I believe these actions send the
wrong message to EPA and Federal employees.
One manager was actually transferred from his original office (the
Office of International Activities) to Dr. Coleman-Adebayo's present
office. He will not be the counselor to the Assistant Administrator for
Pollution Prevention, Pesticides and Toxic Substances. This assignment
gives the appearance that such harassment and retaliation is tolerated
by the EPA, and raises the issue of whether such harassment,
intimidation, and violations of civil rights are ongoing.
This assignment gives the appearance that such harassment and
retaliation is tolerated by the EPA, and raises the issue of whether
such harassment, intimidation, and violation of civil rights is
ongoing.
This is a very serious matter of discrimination, and, I believe,
obstruction of justice.
No FEAR contains four major provisions which address this problem.
First, the bill requires accountability throughout our Federal
workplace. Disturbingly, under Federal law, Federal agencies are not
held liable when they lose judgments, awards, or compromise settlements
in whistleblower and discrimination cases.
Second, No FEAR requires Federal agencies to notify employees about
any applicable discrimination and whistleblower protection laws, and to
report to Congress and the Attorney General on the number of
discrimination and whistleblower cases within each agency.
Third, No FEAR recognizes Congress' intent that such legislation is
necessary, but should not otherwise limit the ability of Federal
employees to exercise other rights under Federal law.
Finally, No FEAR requires each Federal agency to send an annual
report to Congress listing, among other things, the number of cases and
the disposition of the cases.
I am glad that the manager's amendment corrected the source of funds
from which the recovery should come. It excludes all agency enforcement
funds from being used to reimburse the general Treasury for
discrimination or whistleblower judgments against the agency.
This is a timely piece of legislation. I would like to thank Kweisi
Mfume, the President of NAACP, for taking the leadership in helping us
to promote this legislation, and for testifying before our respective
committees.
Again, let me thank the gentleman from Wisconsin (Mr. Sensenbrenner)
and the gentleman from Michigan (Mr. Conyers), and all of our
colleagues. I ask that this House unanimously support the No FEAR
legislation in this very special time to promote our civil rights and
civil liberties.
Madam Speaker, let me simply, again, offer my thanks and
appreciation, and on behalf of the other Members, let me just mention
that I know that several Members, the gentlewoman from Maryland (Mrs.
Morella) and the gentleman from Maryland (Mr. Wynn), will have
statements and have offered their support.
Mrs. MORELLA. Madam Speaker, I rise today in strong support of H.R.
169, the NO FEAR legislation. This bill provides essential help to
whistleblowers and those that suffer discrimination, and it penalizes
agencies that attempt to practice discrimination or punish
whistleblowers. Under current law, most judgments or awards against the
federal government, including federal agencies, are paid out of a
general judgment fund and are not attributed to, or accounted for, by
the agency responsible for the claim. This bill requires federal
agencies to reimburse the government's judgment fund for amounts paid
out in response to a court settlement, award or judgment against an
agency in a discrimination or whistleblower protection lawsuit.
Hopefully, by making agencies responsible for their actions, we can
further decrease the reprehensible practice of discrimination and the
needless punishing of whistleblowers.
This bill has several other important provisions which my colleague
from Wisconsin has mentioned and so I would just like to take this
opportunity to point out and recognize two individuals, who are here in
the gallery today, Dr. Marsha Coleman-Adebayo and Mr. Leroy Warren, Jr.
Both of these individuals live in my district, Montgomery County,
Maryland and played an instrumental role in helping this legislation
come to the floor today.
Mr. Warren is Chairman of the NAACP Federal Sector Task Force and was
asked to investigate and address the ever-growing number of complaints
of discrimination within the federal government. Mr. Warren's task
force did an admirable job in bringing to light much of the
discrimination that federal employees faced.
Dr. Coleman-Adebayo has become well known for her courageous fight
against discrimination by the EPA.
She is someone who suffered terribly from her battle but preserved
and won her case against the EPA. She has testified in front of both
the Science and Judiciary Committees to alert all of us to the
seriousness of what transpired in her case. And now, hopefully, because
of the NO FEAR bill, the first civil rights bill of the 21st Century,
victims of racial, sexual, and hostile work environments, and
whistleblowers, will not have to suffer the pain and abuse that Dr.
Coleman-Adebayo endured. Let us hope instead that H.R. 169 will push
federal agencies to spend their time devising effective plans to
address all forms of discrimination in the workplace.
I urge my colleagues to support this bill.
Mrs. JACKSON-LEE of Texas. Madam Speaker, I yield back the balance of
my time.
Mr. SENSENBRENNER. Madam Speaker, I yield back the balance of my
time.
The SPEAKER pro tempore (Mrs. Biggert). The question is on the motion
offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that the
House suspend the rules and pass the bill, H.R. 169, as amended.
The question was taken.
[[Page H6076]]
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mr. SENSENBRENNER. Madam Speaker, on that I demand the yeas and nays.
The SPEAKER pro tempore. Pursuant to clause 8, rule XX, and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
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