[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.
____________________