[Congressional Record Volume 166, Number 117 (Thursday, June 25, 2020)]
[Senate]
[Pages S3521-S3522]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2077. Mr. JOHNSON submitted an amendment intended to be proposed
by him to the bill S. 4049, to authorize appropriations for fiscal year
2021 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. ANTIDISCRIMINATION.
(a) Short Title.--This section may be cited as the ``Elijah
E. Cummings Federal Employee Antidiscrimination Act of
2020''.
(b) Sense of Congress.--Section 102 of the Notification and
Federal Employee Antidiscrimination and Retaliation Act of
2002 (5 U.S.C. 2301 note) is amended--
(1) by striking paragraph (4) and inserting the following:
``(4) accountability in the enforcement of the rights of
Federal employees is furthered when Federal agencies agree to
take appropriate disciplinary action against Federal
employees who are found to have intentionally committed
discriminatory (including retaliatory) acts;''; and
(2) in paragraph (5)(A)--
(A) by striking ``nor is accountability'' and inserting
``accountability is not''; and
(B) by inserting ``for what, by law, the agency is
responsible'' after ``under this Act''.
(c) Notification of Violation.--Section 202 of the
Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by
adding at the end the following:
``(d) Notification of Final Agency Action.--
``(1) In general.--Not later than 90 days after the date on
which an event described in paragraph (2) occurs with respect
to a finding of discrimination (including retaliation), the
head of the Federal agency subject to the finding shall
provide notice--
``(A) on the public internet website of the agency, in a
clear and prominent location linked directly from the home
page of that website;
``(B) stating that a finding of discrimination (including
retaliation) has been made; and
``(C) which shall remain posted for not less than 1 year.
``(2) Events described.--An event described in this
paragraph is any of the following:
``(A) All appeals of a final action by a Federal agency
involving a finding of discrimination (including retaliation)
prohibited by a provision of law covered by paragraph (1) or
(2) of section 201(a) have been exhausted.
``(B) All appeals of a final decision by the Equal
Employment Opportunity Commission involving a finding of
discrimination (including if the finding included a finding
of retaliation) prohibited by a provision of law covered by
paragraph (1) or (2) of section 201(a) have been exhausted.
``(C) A court of jurisdiction issues a final judgment
involving a finding of discrimination (including retaliation)
prohibited by a provision of law covered by paragraph (1) or
(2) of section 201(a).
``(3) Contents.--A notification provided under paragraph
(1) with respect to a finding of discrimination (including
retaliation) shall--
``(A) identify the date on which the finding was made, the
date on which each discriminatory act occurred, and the law
violated by each such discriminatory act; and
``(B) advise Federal employees of the rights and
protections available under the provisions of law covered by
paragraphs (1) and (2) of section 201(a).''.
(d) Reporting Requirements.--
(1) Electronic format requirement.--
(A) In general.--Section 203(a) of the Notification and
Federal Employee Antidiscrimination and Retaliation Act of
2002 (5 U.S.C. 2301 note) is amended, in the matter preceding
paragraph (1)--
(i) by inserting ``Homeland Security and'' before
``Governmental Affairs'';
(ii) by striking ``on Government Reform'' and inserting
``on Oversight and Reform'';
(iii) by inserting ``any Member of Congress (upon request
to the agency),'' before ``the Equal Employment Opportunity
Commission''; and
(iv) by inserting ``(in an electronic format prescribed by
the Director of the Office of Personnel Management),'' after
``an annual report''.
(B) Effective date.--The amendment made by subparagraph
(A)(iii) shall take effect on the date that is 1 year after
the date of enactment of this Act.
(C) Transition period.--Notwithstanding the requirements of
section 203(a) of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301
note), the report required under such section 203(a) may be
submitted in an
[[Page S3522]]
electronic format, as prescribed by the Director of the
Office of Personnel Management, during the period beginning
on the date of enactment of this Act and ending on the
effective date in subparagraph (B).
(2) Reporting requirement for disciplinary action.--Section
203 of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301
note) is amended by adding at the end the following:
``(c) Disciplinary Action Report.--Not later than 120 days
after the date on which a Federal agency takes final action,
or a Federal agency receives a final decision issued by the
Equal Employment Opportunity Commission, involving a finding
of discrimination (including retaliation) in violation of a
provision of law covered by paragraph (1) or (2) of section
201(a), as applicable, the applicable Federal agency shall
submit to the Commission a report stating--
``(1) whether disciplinary action has been proposed against
a Federal employee as a result of the violation; and
``(2) the reasons for any disciplinary action proposed
under paragraph (1).''.
(e) Data to Be Posted by Employing Federal Agencies.--
Section 301(b) of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301
note) is amended--
(1) in paragraph (9)--
(A) in subparagraph (A), by striking ``and'' at the end;
(B) in subparagraph (B)(ii), by striking the period at the
end and inserting ``, and''; and
(C) by adding at the end the following:
``(C) with respect to each finding described in
subparagraph (A)--
``(i) the date of the finding,
``(ii) the affected Federal agency,
``(iii) the law violated, and
``(iv) whether a decision has been made regarding
disciplinary action as a result of the finding.''; and
(2) by adding at the end the following:
``(11) Data regarding each class action complaint filed
against the agency alleging discrimination (including
retaliation), including--
``(A) information regarding the date on which each
complaint was filed,
``(B) a general summary of the allegations alleged in the
complaint,
``(C) an estimate of the total number of plaintiffs joined
in the complaint, if known,
``(D) the current status of the complaint, including
whether the class has been certified, and
``(E) the case numbers for the civil actions in which
discrimination (including retaliation) has been found.''.
(f) Data to Be Posted by the Equal Employment Opportunity
Commission.--Section 302(b) of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 (5
U.S.C. 2301 note) is amended by striking ``(10)'' and
inserting ``(11)''.
(g) Notification and Federal Employee Antidiscrimination
and Retaliation Act of 2002 Amendments.--
(1) Notification requirements.--Title II of the
Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by
adding at the end the following:
``SEC. 207. COMPLAINT TRACKING.
``Not later than 1 year after the date of enactment of the
Elijah E. Cummings Federal Employee Antidiscrimination Act of
2019, each Federal agency shall establish a system to track
each complaint of discrimination arising under section
2302(b)(1) of title 5, United States Code, and adjudicated
through the Equal Employment Opportunity process from the
filing of a complaint with the Federal agency to resolution
of the complaint, including whether a decision has been made
regarding disciplinary action as the result of a finding of
discrimination.
``SEC. 208. NOTATION IN PERSONNEL RECORD.
``If a Federal agency takes an adverse action covered under
section 7512 of title 5, United States Code, against a
Federal employee for an act of discrimination (including
retaliation) prohibited by a provision of law covered by
paragraph (1) or (2) of section 201(a), the agency shall,
after all appeals relating to that action have been
exhausted, include a notation of the adverse action and the
reason for the action in the personnel record of the
employee.''.
(2) Processing and referral.--The Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 (5
U.S.C. 2301 note) is amended by adding at the end the
following:
``TITLE IV--PROCESSING AND REFERRAL
``SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.
``Each Federal agency shall--
``(1) be responsible for the fair and impartial processing
and resolution of complaints of employment discrimination
(including retaliation) prohibited by a provision of law
covered by paragraph (1) or (2) of section 201(a); and
``(2) establish a model Equal Employment Opportunity
Program that--
``(A) is not under the control, either structurally or
practically, of the agency's Office of Human Capital or
Office of the General Counsel (or the equivalent);
``(B) is devoid of internal conflicts of interest and
ensures fairness and inclusiveness within the agency; and
``(C) ensures the efficient and fair resolution of
complaints alleging discrimination (including retaliation).
``SEC. 402. NO LIMITATION ON ADVICE OR COUNSEL.
``Nothing in this title shall prevent a Federal agency or a
subcomponent of a Federal agency, or the Department of
Justice, from providing advice or counsel to employees of
that agency (or subcomponent, as applicable) in the
resolution of a complaint.
``SEC. 403. HEAD OF PROGRAM SUPERVISED BY HEAD OF AGENCY.
``The head of each Federal agency's Equal Employment
Opportunity Program shall report directly to the head of the
agency.
``SEC. 404. REFERRALS OF FINDINGS OF DISCRIMINATION.
``(a) EEOC Findings of Discrimination.--
``(1) In general.--Not later than 30 days after the date on
which the Equal Employment Opportunity Commission (referred
to in this section as the `Commission') receives, or should
have received, a Federal agency report required under section
203(c), the Commission may refer the matter to which the
report relates to the Office of Special Counsel if the
Commission determines that the Federal agency did not take
appropriate action with respect to the finding that is the
subject of the report.
``(2) Notifications.--The Commission shall--
``(A) notify the applicable Federal agency if the
Commission refers a matter to the Office of Special Counsel
under paragraph (1); and
``(B) with respect to a fiscal year, include in the Annual
Report of the Federal Workforce of the Commission covering
that fiscal year--
``(i) the number of referrals made under paragraph (1)
during that fiscal year; and
``(ii) a brief summary of each referral described in clause
(i).
``(b) Referrals to Special Counsel.--The Office of Special
Counsel shall accept and review a referral from the
Commission under subsection (a)(1) for purposes of pursuing
disciplinary action under the authority of the Office against
a Federal employee who commits an act of discrimination
(including retaliation).
``(c) Notification.--The Office of Special Counsel shall
notify the Commission and the applicable Federal agency in a
case in which--
``(1) the Office of Special Counsel pursues disciplinary
action under subsection (b); and
``(2) the Federal agency imposes some form of disciplinary
action against a Federal employee who commits an act of
discrimination (including retaliation).
``(d) Special Counsel Approval.--A Federal agency may not
take disciplinary action against a Federal employee for an
alleged act of discrimination (including retaliation)
referred by the Commission under this section, except in
accordance with the requirements of section 1214(f) of title
5, United States Code.''.
(3) Conforming amendments.--The table of contents in
section 1(b) of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301
note) is amended--
(A) by inserting after the item relating to section 206 the
following:
``Sec. 207. Complaint tracking.
``Sec. 208. Notation in personnel record.''; and
(B) by adding at the end the following:
``TITLE IV--PROCESSING AND REFERRAL
``Sec. 401. Processing and resolution of complaints.
``Sec. 402. No limitation on advice or counsel.
``Sec. 403. Head of Program supervised by head of agency.
``Sec. 404. Referrals of findings of discrimination.''.
(h) Nondisclosure Agreement Limitation.--Section
2302(b)(13) of title 5, United States Code, is amended--
(1) by striking ``agreement does not'' and inserting the
following: ``agreement--
``(A) does not'';
(2) in subparagraph (A), as so designated, by inserting
``or the Office of Special Counsel'' after ``Inspector
General''; and
(3) by adding at the end the following:
``(B) prohibits or restricts an employee or applicant for
employment from disclosing to Congress, the Special Counsel,
the Inspector General of an agency, or any other agency
component responsible for internal investigation or review
any information that relates to any violation of any law,
rule, or regulation, or mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety, or any other whistleblower
protection; or''.
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