[Congressional Record Volume 148, Number 46 (Tuesday, April 23, 2002)]
[Senate]
[Pages S3226-S3231]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION 
                              ACT OF 2002

  Mr. REID. I ask consent the Senate proceed to the consideration of 
Calendar No. 346, H.R. 169.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (H.R. 169) 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.

  There being no objection, the Senate proceeded to consider the bill 
which had been reported from the Committee on Governmental Affairs, 
with amendments.
  (Omit the parts in black brackets and insert the part printed in 
italic.)

                                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] 2002''.
       (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 I--GENERAL PROVISIONS

Sec. 101. Findings.
Sec. 102. Sense of Congress.
Sec. 103. Definitions.
Sec. 104. 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.]
Sec. 206. Studies by General Accounting Office on exhaustion of 
              remedies and certain Department of Justice costs.

   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. 101. FINDINGS.

       Congress finds that--
       (1) Federal agencies cannot be run effectively if those 
     agencies practice or tolerate discrimination;
       (2) Congress 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, the United States 
     Marshals Service, the Department of Agriculture, the United 
     States Information Agency, and the Social Security 
     Administration;
       (6) notifying Federal employees of their rights under 
     discrimination and whistleblower laws should increase Federal 
     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 compliance by agencies with the law; 
     and
       (8) requiring Federal agencies to pay for any 
     discrimination or whistleblower judgment, award, or 
     settlement should improve agency accountability with respect 
     to discrimination and whistleblower laws.

     SEC. 102. SENSE OF CONGRESS.

       It is the sense of Congress that--
       (1) Federal agencies should not retaliate for court 
     judgments or settlements relating to discrimination and 
     whistleblower laws by targeting the claimant or other 
     employees with reductions in compensation, benefits, or 
     workforce to pay for such judgments or settlements;
       (2) the mission of the Federal agency and the employment 
     security of employees who are blameless in a whistleblower 
     incident should not be compromised;
       (3) Federal agencies should not use a reduction in force or 
     furloughs as means of funding a reimbursement under this Act;
       (4)(A) accountability in the enforcement of employee rights 
     is not furthered by terminating--
       (i) the employment of other employees; or
       (ii) the benefits to which those employees are entitled 
     through statute or contract; and
       (B) this Act is not intended to authorize those actions;
       (5)(A) nor is accountability furthered if Federal agencies 
     react to the increased accountability under this Act by 
     taking unfounded disciplinary actions against managers or by 
     violating the procedural rights of managers who have been 
     accused of discrimination; and
       (B) Federal agencies should ensure that managers have 
     adequate training in the management of a diverse workforce 
     and in dispute resolution and other essential communication 
     skills; and
       (6)(A) Federal agencies are expected to reimburse the 
     General Fund of the Treasury within a reasonable time under 
     this Act; and
       (B) a Federal agency, particularly if the amount of 
     reimbursement under this Act is large relative to annual 
     appropriations for that agency, may need to extend 
     reimbursement over several years in order to avoid--
       (i) reductions in force;
       (ii) furloughs;

[[Page S3227]]

       (iii) other reductions in compensation or benefits for the 
     workforce of the agency; or
       (iv) an adverse effect on the mission of the agency.

     SEC. [102]. 103. 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]. 104. 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] if, or 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 
     Committee on Governmental Affairs of the Senate, the 
     Committee on Government Reform of the House of 
     Representatives, each committee of Congress with jurisdiction 
     relating to the agency, 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.]
       (6) a detailed description of--
       (A) the policy implemented by that agency relating to 
     appropriate disciplinary actions against a Federal employee 
     who--
       (i) discriminated against any individual in violation of 
     any of the laws cited under section 201(a) (1) or (2); or
       (ii) committed another prohibited personnel practice that 
     was revealed in the investigation of a complaint alleging a 
     violation of any of the laws cited under section 201(a) (1) 
     or (2); 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;
       (7) an analysis of the information described under 
     paragraphs (1) through (6) (in conjunction with data provided 
     to the Equal Employment Opportunity Commission in compliance 
     with part 1614 of title 29 of the Code of Federal 
     Regulations) including--
       (A) an examination of trends;
       (B) causal analysis;
       (C) practical knowledge gained through experience; and
       (D) any actions planned or taken to improve complaint or 
     civil rights programs of the agency; and
       (8) any adjustment (to the extent the adjustment can be 
     ascertained in the budget of the agency) to comply with the 
     requirements under section 201.
       (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).] years (or, if data are not available for all 5 
     fiscal years, for each 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]
       (2) rules to require that a comprehensive study be 
     conducted in the executive branch to determine the best 
     practices relating to the appropriate disciplinary actions 
     against Federal employees who commit the actions described 
     under clauses (i) and (ii) of section 203(a)(6)(A); 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

[[Page S3228]]

     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.]

     SEC. 206. STUDIES BY GENERAL ACCOUNTING OFFICE ON EXHAUSTION 
                   OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT 
                   OF CERTAIN DEPARTMENT OF JUSTICE COSTS.

       (a) Study on Exhaustion of Administrative Remedies.--
       (1) Study.--
       (A) In general.--Not later than 180 days after the date of 
     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 under section 201(c) exhaust 
     administrative remedies before filing complaints with the 
     Equal Employment Opportunity Commission.
       (B) Contents.--The study shall include a detailed summary 
     of matters investigated, information collected, and 
     conclusions formulated that lead to determinations of how the 
     elimination of such requirement will--
       (i) expedite handling of allegations of such violations 
     within Federal agencies and will streamline the complaint-
     filing process;
       (ii) affect the workload of the Commission;
       (iii) affect established alternative dispute resolution 
     procedures in such agencies; and
       (iv) affect any other matters determined by the General 
     Accounting Office to be appropriate for consideration.
       (2) Report.--Not later than 90 days after completion of the 
     study required by paragraph (1), 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.
       (b) Study on Ascertainment of Certain Costs of the 
     Department of Justice in Defending Discrimination and 
     Whistleblower Cases.--
       (1) Study.--Not later than 180 days after the date of 
     enactment of this Act, the General Accounting Office shall 
     conduct a study of the methods that could be used for, and 
     the extent of any administrative burden that would be imposed 
     on, the Department of Justice to ascertain the personnel and 
     administrative costs incurred in defending in each case 
     arising from a proceeding identified under section 201(a) (1) 
     and (2).
       (2) Report.--Not later than 90 days after completion of the 
     study required by paragraph (1), the General Accounting 
     Office shall submit to the Speaker of the House of 
     Representatives and the President pro tempore of the Senate a 
     report containing the information required to be included in 
     the 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.

  Mr. REID. Mr. President, I ask unanimous consent that the committee 
amendments be agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee amendments were agreed to.


                 Amendments Nos. 3327 and 3328, En Bloc

  Mr. REID. It is my belief that Senator Thompson has two amendments at 
the desk. I ask consent it be in order to consider these amendments en 
bloc and

[[Page S3229]]

that the amendments be considered agreed to.
  The PRESIDING OFFICER. The clerk will report the amendments.
  The legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid], for Mr. Thompson, 
     proposes amendments Nos. 3327 and 3328, en bloc.

  The amendments are as follows:


                           amendment no. 3327

   (Purpose: To provide for the General Accounting Office to conduct 
 studies on the effects of the Act and of the Contract Disputes Act of 
1978 (41 U.S.C. 601 note; Public Law 95-563) on operations of agencies)

       On page ____, insert between lines ____ and ____ the 
     following:
       (c) Studies on Statutory Effects on Agency Operations.--
       (1) In general.--Not later than 18 months after the date of 
     enactment of this Act, the General Accounting Office shall 
     conduct--
       (A) a study on the effects of section 201 on the operations 
     of Federal agencies; and
       (B) a study on the effects of section 13 of the Contract 
     Disputes Act of 1978 (41 U.S.C. 612) on the operations of 
     Federal agencies.
       (2) Contents.--Each study under paragraph (1) shall 
     include, with respect to the applicable statutes of the 
     study--
       (A) a summary of the number of cases in which a payment was 
     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;
       (B) a summary of the length of time Federal agencies used 
     to complete reimbursements of payments described under 
     subparagraph (A); and
       (C) conclusions that assist in making determinations on how 
     the reimbursements of payments described under subparagraph 
     (A) will affect--
       (i) the operations of Federal agencies;
       (ii) funds appropriated on an annual basis;
       (iii) employee relations and other human capital matters;
       (iv) settlements; and
       (v) any other matter determined by the General Accounting 
     Office to be appropriate for consideration.
       (3) Reports.--Not later than 90 days after the completion 
     of each study under paragraph (1), the General Accounting 
     Office shall submit a report on each study, respectively, to 
     the Speaker of the House of Representatives, the President 
     pro tempore of the Senate, the Committee on Governmental 
     Affairs of the Senate, the Committee on Government Reform of 
     the House of Representatives, and the Attorney General.
                                  ____



                           amendment no. 3328

  (Purpose: To provide for the General Accounting Office to conduct a 
    study on the administrative and personnel costs incurred by the 
 Department of the Treasury in the administration of the Judgment Fund)

       On page ____, insert between lines ____ and ____ the 
     following:
       (c) Study on Administrative and Personnel Costs Incurred by 
     the Department of the Treasury.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the General Accounting Office shall 
     conduct a study on the extent of any administrative and 
     personnel costs incurred by the Department of the Treasury to 
     account for payments 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, as a 
     result of--
       (A) this Act; and
       (B) the Contracts Dispute Act of 1978 (41 U.S.C. 601 note; 
     Public Law 95-563).
       (2) Report.--Not later than 90 days after the completion of 
     the study under paragraph (1), the General Accounting Office 
     shall submit a report on the study to the Speaker of the 
     House of Representatives, the President pro tempore of the 
     Senate, the Committee on Governmental Affairs of the Senate, 
     the Committee on Government Reform of the House of 
     Representatives, and the Attorney General.

  The PRESIDING OFFICER. The question is on agreeing to the amendments 
en bloc.
  The amendments (Nos. 3327 and 3328) were agreed to.
  Mr. REID. I ask unanimous consent the motion to reconsider be laid 
upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, I support H.R. 169, the Notification and 
Federal Employee Anti-Discrimination Act. This historic bill--the first 
civil rights bill of the new century--strengthens existing laws 
protecting Federal employees from discrimination and harassment in the 
workplace.
  H.R. 169 will create a more productive work environment by ensuring 
that agencies enforce the laws intended to protect Federal employees 
from harassment, discrimination and retaliation for whistleblowing.
  I thank the chairman of the Government Affairs Committee, Senator 
Lieberman, as well as Ranking Member Thompson and Senator Akaka for 
their leadership on this issue in committee. Their dedication to the 
passage of this ground-breaking initiative has proven to be of 
monumental importance.
  I applaud the leadership of Congressman Jim Sensenbrenner for 
introducing this important legislation. Working with Congressman 
Sensenbrenner, I introduced a similar bill in the Senate S. 201, the 
Federal Employee Protection Act. After the House passed H.R. 169 by a 
vote of 420 to 0, I urged the Senate Committee on Governmental Affairs 
to act on H.R. 169 rather than my bill in the interest of moving the 
process forward.
  Finally, I recognize the work of the No Fear Coalition led by Marsha-
Coleman Adebayo on this bill. Their efforts have been incredible.
  The Notification and Federal Employee Anti-discrimination Act 
contains three main provisions: one, when agencies lose judgments or 
make settlements in harassment, discrimination and whistleblower cases, 
the responsible Federal agency would pay any financial penalty out of 
its own budget, rather than out of a general Federal judgment fund; 
two, Federal agencies are required to notify their employees about any 
applicable discrimination, harassment and whistleblower protection 
laws; and three, each Federal agency is required to send an annual 
report to Congress and the Attorney General.
  Under current law, agencies are not accountable financially when they 
lose harassment, discrimination and retaliation cases because any 
financial penalties are paid out of a Government-wide fund and not the 
agency's budget. I firmly believe that because there is no financial 
consequence to their actions, Federal agencies are essentially able to 
escape responsibility when they fail to comply with the law and are 
unresponsive to their employees' concerns.
  Reports that Federal agencies are indifferent or hostile to 
complaints of sexual harassment and racial discrimination undermine the 
ability of the Federal Government to enforce civil rights laws, and 
hamper efforts to recruit talented individuals for Federal employment. 
Retaliation against whistleblowers creates a climate in which those 
people best able to provide accountability to the Government--and to 
the taxpayer--are unwilling to speak out.
  The Federal Government must set an example for the private sector by 
promoting a workplace that does not tolerate harassment or 
discrimination of any kind but encourages employees to report illegal 
activity and mismanagement without fear of reprisal. I urge my 
colleagues to support this meaningful legislation.
  Mr. REID. I ask unanimous consent the bill, as amended, be read the 
third time and passed, the motion to reconsider be laid upon the table, 
with no intervening action or debate, and any statements relating 
thereto be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (H.R. 169), as amended, was read the third time and passed, 
as follows:

         Resolved, That the bill from the House of Representatives 
     (H.R. 169) entitled ``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.'', do pass with the following amendments:
     (1)Page 2, line 6, strike out [2001] and insert: 2002

     (2)Page 2, in the table of contents, strike out

                     [TITLE I--GENERAL PROVISIONS]

[Sec. 101. Findings.]
[Sec. 102 Definitions.]
[Sec. 103 Effective date.]
     and insert:

                      TITLE I--GENERAL PROVISIONS

Sec. 101. Findings.
Sec. 102. Sense of Congress.
Sec. 103. Definitions.
Sec. 104. Effective date.

     (3)Page 2, in the table of contents, strike out

[Sec. 206 Study by the General Accounting Office regarding exhaustion 
              of administrative remedies.]
     and insert:

Sec. 206. Studies by General Accounting Office on exhaustion of 
              remedies and certain Department of Justice costs.

     (4)Page 2, strike out all after line 9 over to and including 
     line 13 on page 4 and insert:

[[Page S3230]]

     SEC. 101. FINDINGS.

       Congress finds that--
       (1) Federal agencies cannot be run effectively if those 
     agencies practice or tolerate discrimination;
       (2) Congress 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, the United States 
     Marshals Service, the Department of Agriculture, the United 
     States Information Agency, and the Social Security 
     Administration;
       (6) notifying Federal employees of their rights under 
     discrimination and whistleblower laws should increase Federal 
     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 compliance by agencies with the law; and
       (8) requiring Federal agencies to pay for any 
     discrimination or whistleblower judgment, award, or 
     settlement should improve agency accountability with respect 
     to discrimination and whistleblower laws.

     SEC. 102. SENSE OF CONGRESS.

       It is the sense of Congress that--
       (1) Federal agencies should not retaliate for court 
     judgments or settlements relating to discrimination and 
     whistleblower laws by targeting the claimant or other 
     employees with reductions in compensation, benefits, or 
     workforce to pay for such judgments or settlements;
       (2) the mission of the Federal agency and the employment 
     security of employees who are blameless in a whistleblower 
     incident should not be compromised;
       (3) Federal agencies should not use a reduction in force or 
     furloughs as means of funding a reimbursement under this Act;
       (4)(A) accountability in the enforcement of employee rights 
     is not furthered by terminating--
       (i) the employment of other employees; or
       (ii) the benefits to which those employees are entitled 
     through statute or contract; and
       (B) this Act is not intended to authorize those actions;
       (5)(A) nor is accountability furthered if Federal agencies 
     react to the increased accountability under this Act by 
     taking unfounded disciplinary actions against managers or by 
     violating the procedural rights of managers who have been 
     accused of discrimination; and
       (B) Federal agencies should ensure that managers have 
     adequate training in the management of a diverse workforce 
     and in dispute resolution and other essential communication 
     skills; and
       (6)(A) Federal agencies are expected to reimburse the 
     General Fund of the Treasury within a reasonable time under 
     this Act; and
       (B) a Federal agency, particularly if the amount of 
     reimbursement under this Act is large relative to annual 
     appropriations for that agency, may need to extend 
     reimbursement over several years in order to avoid--
       (i) reductions in force;
       (ii) furloughs;
       (iii) other reductions in compensation or benefits for the 
     workforce of the agency; or
       (iv) an adverse effect on the mission of the agency.

     (5)Page 4, line 14, strike out [102.] and insert: 103.

     (6)Page 4, line 18, strike out [agency,] and insert: agency;

     (7)Page 4, line 21, strike out [303,] and insert: 303;

     (8)Page 4, line 25, strike out [Commission,] and insert: 
     Commission;

     (9)Page 5, line 2, strike out [agency,] and insert: agency;

     (10)Page 5, line 5, strike out [agency,] and insert: agency;

     (11)Page 5, line 9, strike out [103.] and insert: 104.

     (12)Page 6, line 3, strike out [(c),] and insert: (c);

     (13)Page 6, line 19, strike out [of the] and insert: ,

     (14)Page 7, line 2, strike out [of the] and insert: ,

     (15)Page 7, strike out lines 3 and 4

     (16)Page 7, line 14, strike out [law,] and insert: law;

     (17)Page 7, line 15, strike out [if to the extent that] and 
     insert:  if, or to the extent that,

     (18)Page 8, line 8, after ``ate,'' insert: the Committee on 
     Governmental Affairs of the Senate, the Committee on 
     Government Reform of the House of Representatives, each 
     committee of Congress with jurisdiction relating to the 
     agency,

     (19)Page 8, line 14, strike out [alleged,] and insert: 
     alleged;

     (20)Page 8, line 16, strike out [(1),] and insert: (1);

     (21)Page 8, line 21, strike out [any,] and insert: any;

     (22)Page 8, line 25, strike out [(1),] and insert: (1);

     (23)Page 9 , line 3, strike out [, and] and insert: ;

     (24)Page 9, strike out lines 4 through 14 and insert:
       (6) a detailed description of--
       (A) the policy implemented by that agency relating to 
     appropriate disciplinary actions against a Federal employee 
     who--
       (i) discriminated against any individual in violation of 
     any of the laws cited under section 201(a) (1) or (2); or
       (ii) committed another prohibited personnel practice that 
     was revealed in the investigation of a complaint alleging a 
     violation of any of the laws cited under section 201(a) (1) 
     or (2); 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;
       (7) an analysis of the information described under 
     paragraphs (1) through (6) (in conjunction with data provided 
     to the Equal Employment Opportunity Commission in compliance 
     with part 1614 of title 29 of the Code of Federal 
     Regulations) including--
       (A) an examination of trends;
       (B) causal analysis;
       (C) practical knowledge gained through experience; and
       (D) any actions planned or taken to improve complaint or 
     civil rights programs of the agency; and
       (8) any adjustment (to the extent the adjustment can be 
     ascertained in the budget of the agency) to comply with the 
     requirements under section 201.

     (25)Page 9, strike out lines 18 and 19 and insert:
     years (or, if data are not available for all 5 fiscal years, 
     for each of those 5 fiscal years for which data are 
     available).

     (26)Page 9, line 23, strike out [title,] and insert: title;

     (27)Page 9, strike out all after line 23 over to and 
     including line 6 on page 10 and insert:
       (2) rules to require that a comprehensive study be 
     conducted in the executive branch to determine the best 
     practices relating to the appropriate disciplinary actions 
     against Federal employees who commit the actions described 
     under clauses (i) and (ii) of section 203(a)(6)(A); and

     (28)Page 10, line 20, strike out [guidelines,] and insert: 
     guidelines;

     (29)Page 10, lines 22 and 23, strike out [guidelines,] and 
     insert: guidelines;

     (30)Page 11, strike out all after line 9 over to and 
     including line 16 on page 12 and insert:

     SEC. 206. STUDIES BY GENERAL ACCOUNTING OFFICE ON EXHAUSTION 
                   OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT 
                   OF CERTAIN DEPARTMENT OF JUSTICE COSTS.

       (a) Study on Exhaustion of Administrative Remedies.--
       (1) Study.--
       (A) In general.--Not later than 180 days after the date of 
     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 under section 201(c) exhaust 
     administrative remedies before filing complaints with the 
     Equal Employment Opportunity Commission.
       (B) Contents.--The study shall include a detailed summary 
     of matters investigated, information collected, and 
     conclusions formulated that lead to determinations of how the 
     elimination of such requirement will--
       (i) expedite handling of allegations of such violations 
     within Federal agencies and will streamline the complaint-
     filing process;
       (ii) affect the workload of the Commission;
       (iii) affect established alternative dispute resolution 
     procedures in such agencies; and
       (iv) affect any other matters determined by the General 
     Accounting Office to be appropriate for consideration.
       (2) Report.--Not later than 90 days after completion of the 
     study required by paragraph (1), 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.
       (b) Study on Ascertainment of Certain Costs of the 
     Department of Justice in Defending Discrimination and 
     Whistleblower Cases.--
       (1) Study.--Not later than 180 days after the date of 
     enactment of this Act, the General Accounting Office shall 
     conduct a study of the methods that could be used for, and 
     the extent of any administrative burden that would be imposed 
     on, the Department of Justice to ascertain the personnel and 
     administrative costs incurred in defending in each case 
     arising from a proceeding identified under section 201(a) (1) 
     and (2).
       (2) Report.--Not later than 90 days after completion of the 
     study required by paragraph (1), the General Accounting 
     Office shall submit to the Speaker of the House of 
     Representatives and the President pro tempore of the Senate a 
     report containing the information required to be included in 
     the study.

     (31)Page 12, after line 16, insert:
       (c) Studies on Statutory Effects on Agency Operations.--
       (1) In general.--Not later than 18 months after the date of 
     enactment of this Act, the General Accounting Office shall 
     conduct--

[[Page S3231]]

       (A) a study on the effects of section 201 on the operations 
     of Federal agencies; and
       (B) a study on the effects of section 13 of the Contract 
     Disputes Act of 1978 (41 U.S.C. 612) on the operations of 
     Federal agencies.
       (2) Contents.--Each study under paragraph (1) shall 
     include, with respect to the applicable statutes of the 
     study--
       (A) a summary of the number of cases in which a payment was 
     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;
       (B) a summary of the length of time Federal agencies used 
     to complete reimbursements of payments described under 
     subparagraph (A); and
       (C) conclusions that assist in making determinations on how 
     the reimbursements of payments described under subparagraph 
     (A) will affect--
       (i) the operations of Federal agencies;
       (ii) funds appropriated on an annual basis;
       (iii) employee relations and other human capital matters;
       (iv) settlements; and
       (v) any other matter determined by the General Accounting 
     Office to be appropriate for consideration.
       (3) Reports.--Not later than 90 days after the completion 
     of each study under paragraph (1), the General Accounting 
     Office shall submit a report on each study, respectively, to 
     the Speaker of the House of Representatives, the President 
     pro tempore of the Senate, the Committee on Governmental 
     Affairs of the Senate, the Committee on Government Reform of 
     the House of Representatives, and the Attorney General.

     (32)Page 12, after line 16, insert:
       (d) Study on Administrative and Personnel Costs Incurred by 
     the Department of the Treasury.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the General Accounting Office shall 
     conduct a study on the extent of any administrative and 
     personnel costs incurred by the Department of the Treasury to 
     account for payments 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, as a 
     result of--
       (A) this Act; and
       (B) the Contracts Dispute Act of 1978 (41 U.S.C. 601 note; 
     Public Law 95-563).
       (2) Report.--Not later than 90 days after the completion of 
     the study under paragraph (1), the General Accounting Office 
     shall submit a report on the study to the Speaker of the 
     House of Representatives, the President pro tempore of the 
     Senate, the Committee on Governmental Affairs of the Senate, 
     the Committee on Government Reform of the House of 
     Representatives, and the Attorney General.

                          ____________________