[House Report 105-292]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 105-292
_______________________________________________________________________
DEPARTMENT OF VETERANS AFFAIRS EMPLOYMENT DISCRIMINATION RESOLUTION AND
ADJUDICATION ACT
_______________________________________________________________________
October 2, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Stump, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
[To accompany H.R. 1703]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred the
bill (H.R. 1703) to amend title 38, United States Code, to
provide for improved and expedited procedures for resolving
complaints of unlawful employment discrimination arising within
the Department of Veterans Affairs, having considered the same,
reports favorably thereon with amendments and recommends that
the bill as amended do pass.
The amendments are as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Department of Veterans Affairs
Employment Discrimination Resolution and Adjudication Act''.
SEC. 2. EQUAL EMPLOYMENT RESPONSIBILITIES IN THE DEPARTMENT OF VETERANS
AFFAIRS.
(a) In General.--(1) Chapter 5 of title 38, United States Code, is
amended by inserting at the end of subchapter I the following new
section:
``Sec. 516. Equal employment responsibilities
``(a) The Secretary shall provide that the employment discrimination
complaint resolution system within the Department be established and
administered so as to encourage timely and fair resolution of concerns
and complaints. The Secretary shall take steps to ensure that the
system is administered in an objective, fair, and effective manner and
in a manner that is perceived by employees and other interested parties
as being objective, fair, and effective.
``(b) The Secretary shall provide--
``(1) that employees responsible for counseling functions
associated with employment discrimination and for receiving,
investigating, and processing complaints of employment
discrimination shall be supervised in those functions by, and
report to, an Assistant Secretary or a Deputy Assistant
Secretary for complaint resolution management; and
``(2) that employees performing employment discrimination
complaint resolution functions at a facility of the Department
shall not be subject to the authority, direction, and control
of the Director of the facility with respect to those
functions.
``(c) The Secretary shall ensure that all employees of the Department
receive adequate education and training for the purposes of this
section and section 319 of this title.
``(d) The Secretary shall impose appropriate disciplinary measures,
as authorized by law, in the case of employees of the Department who
engage in unlawful employment discrimination, including retaliation
against an employee asserting rights under an equal employment
opportunity law.
``(e) The number of employees of the Department whose duties include
equal employment opportunity counseling functions as well as other,
unrelated functions may not exceed 40 full-time equivalent employees.
Any such employee may be assigned equal employment opportunity
counseling functions only at Department facilities in remote geographic
locations (as determined by the Secretary). The Secretary may waive the
limitation in the preceding sentence in specific cases.
``(f) The provisions of this section shall be implemented in a manner
consistent with procedures applicable under regulations prescribed by
the Equal Employment Opportunity Commission.''.
(2) The table of sections at the beginning of such chapter is amended
by inserting after the item relating to section 515 the following new
item:
``516. Equal employment responsibilities.''.
(b) Reports on Implementation.--The Secretary of Veterans Affairs
shall submit to Congress reports on the implementation and operation of
the equal employment opportunity system within the Department of
Veterans Affairs. The first such report shall be submitted not later
than April 1, 1998, and subsequent reports shall be submitted not later
than January 1, 1999, and January 1, 2000. Each such report shall set
forth the actions taken by the Secretary to implement section 516 of
title 38, United States Code, as added by subsection (a), and other
actions taken by the Secretary in relation to the equal employment
opportunity system within the Department of Veterans Affairs.
SEC. 3. DISCRIMINATION COMPLAINT ADJUDICATION AUTHORITY IN THE
DEPARTMENT OF VETERANS AFFAIRS.
(a) In General.--(1) Chapter 3 of title 38, United States Code, is
amended by adding at the end the following new section:
``Sec. 319. Office of Employment Discrimination Complaint Adjudication
``(a)(1) There is in the Department an Office of Employment
Discrimination Complaint Adjudication. There is at the head of the
Office a Director.
``(2) The Director shall be a career appointee in the Senior
Executive Service.
``(3) The Director reports directly to the Secretary or the Deputy
Secretary concerning matters within the responsibility of the Office.
``(b)(1) The Director is responsible for making the final agency
decision within the Department on the merits of any employment
discrimination complaint filed by an employee, or an applicant for
employment, with the Department. The Director shall make such decisions
in an impartial and objective manner.
``(2) No person may make any ex parte communication to the Director
or to any employee of the Office with respect to a matter on which the
Director has responsibility for making a final agency decision.
``(c) Whenever the Director has reason to believe that there has been
retaliation against an employee by reason of the employee asserting
rights under an equal employment opportunity law, the Director shall
report the suspected retaliatory action directly to the Secretary or
Deputy Secretary, who shall take appropriate action thereon.
``(d)(1) The Office shall employ a sufficient number of attorneys and
other personnel as are necessary to carry out the functions of the
Office. Attorneys shall be compensated at a level commensurate with
attorneys employed by the Office of General Counsel.
``(2) The Secretary shall ensure that the Director is furnished
sufficient resources in addition to personnel under paragraph (1) to
enable the Director to carry out the functions of the Office in a
timely manner.
``(3) The Secretary shall ensure that any performance appraisal of
the Director of the Office of Employment Discrimination Complaint
Adjudication or of any employee of the Office does not take into
consideration the record of the Director or employee in deciding cases
for or against the Department.''.
(2) The table of sections at the beginning of such chapter is amended
by adding at the end the following new item:
``319. Office of Employment Discrimination Complaint Adjudication.''.
(b) Reports on Implementation.--The Director of the Office of
Employment Discrimination Complaint Adjudication of the Department of
Veterans Affairs (established by section 319 of title 38, United States
Code, as added by subsection (a)) shall submit to the Secretary and to
Congress reports on the implementation and the operation of that
office. The first such report shall be submitted not later than April
1, 1998, and subsequent reports shall be submitted not later than
January 1, 1999, and January 1, 2000.
SEC. 4. EFFECTIVE DATE.
Sections 516 and 319 of title 38, United States Code, as added by
sections 2 and 3 of this Act, shall take effect 90 days after the date
of the enactment of this Act.
SEC. 5. INDEPENDENT PANEL TO REVIEW EQUAL EMPLOYMENT OPPORTUNITY AND
SEXUAL HARASSMENT PROCEDURES WITHIN THE DEPARTMENT
OF VETERANS AFFAIRS.
(a) Establishment.--There is hereby established a panel to review the
equal employment opportunity and sexual harassment practices and
procedures within the Department of Veterans Affairs and to make
recommendations on improvements to those practices and procedures.
(b) Panel Functions Relating to Equal Employment Opportunity and
Sexual Harassment.--The panel shall assess the culture of the
Department of Veterans Affairs in relationship to the issues of equal
employment opportunity and sexual harassment, determine the effect of
that culture on the operation of the Department overall, and provide
recommendations as necessary to change that culture. As part of the
review, the panel shall do the following:
(1) Determine whether laws relating to equal employment
opportunity and sexual harassment, as those laws apply to the
Department of Veterans Affairs, and regulations and policy
directives of the Department relating to equal employment
opportunity and sexual harassment have been consistently and
fairly applied throughout the Department and make
recommendations to correct any disparities.
(2) Review practices of the Department of Veterans Affairs,
relevant studies, and private sector training and reporting
concepts as those practices, studies, and concepts pertain to
equal employment opportunity, sexual misconduct, and sexual
harassment policies and enforcement.
(3) Provide an independent assessment of the Report on the
Equal Employment Opportunity Complaint Process Review Task
Force of the Department.
(c) Composition.--(1) The panel shall be composed of six members,
appointed as follows:
(A) Three members shall be appointed jointly by the chairman
and ranking minority party member of the Committee on Veterans'
Affairs of the House of Representatives.
(B) Three members shall be appointed jointly by the chairman
and ranking minority party member of the Committee on Veterans'
Affairs of the Senate.
(2) The members of the panel shall choose one of the members to chair
the panel.
(d) Qualifications.--Members of the panel shall be appointed from
among private United States citizens with knowledge and expertise in
one or more of the following:
(1) Extensive prior military experience, particularly in the
area of personnel policy management.
(2) Extensive experience with equal employment opportunity
complaint procedures, either within Federal or State government
or in the private sector.
(3) Extensive knowledge of the Department of Veterans
Affairs, and particularly knowledge of personnel practices
within the Department.
(e) Reports.--(1) Not later than six months after the members of the
panel are appointed, the panel shall submit an interim report on its
findings and conclusions to the Committees on Veterans' Affairs of the
Senate and House of Representatives.
(2) Not later than one year after establishment of the panel, the
panel shall submit a final report to the Committees on Veterans'
Affairs of the Senate and House of Representatives. The final report
shall include an assessment of the equal employment opportunity system
and the culture within the Department of Veterans Affairs, with
particular emphasis on sexual harassment. The panel shall include in
the report recommendations to improve the culture within the
Department.
(f) Pay and Expenses of Members.--(1) Each member of the panel shall
be paid at a rate equal to the daily equivalent of the annual rate of
basic pay payable for level IV of the Executive Schedule under section
5315 of title 5, United States Code, for each day (including travel
time) during which the member is engaged in the performance of the
duties of the panel.
(2) The members of the panel shall be allowed travel expenses,
including per diem in lieu of subsistence, at rates authorized for
employees of agencies under subchapter I of chapter 57 of title 5,
United States Code, while away from their homes or regular places of
business in the performance of services for the panel.
(g) Administrative Support.--The Chairman may hire such staff as
necessary to accomplish the duties outlined under this title.
(h) Funding.--The Secretary of Veterans Affairs shall, upon the
request of the panel, make available to the panel such amounts as the
panel may require, not to exceed $400,000, to carry out its duties
under this title.
(i) Termination of Panel.--The panel shall terminate 60 days after
the date on which it submits its final report under subsection (e)(2).
Amend the title so as to read:
A bill to amend title 38, United States Code, to provide
for improvements in the system of the Department of Veterans
Affairs for resolution and adjudication of complaints of
employment discrimination.
Introduction
On May 22, 1997, the Honorable Terry Everett was joined by
the Honorable Lane Evans, the Honorable Bob Stump, Chairman of
the Committee on Veterans' Affairs, the Honorable James
Clyburn, the Honorable Mike Bilirakis, and the Honorable
Stephen Buyer, in the introduction of H.R. 1703 to amend title
38, United States Code, to provide for improved and expedited
procedures for resolving complaints of unlawful employment
discrimination arising within the Department of Veterans
Affairs.
The full Committee met on September 30, 1997 and ordered
H.R. 1703, as amended, reported favorably to the House by
unanimous voice vote.
Summary of the Reported Bill
H.R 1703, as amended, would:
1. LRequire the Secretary of Veterans Affairs to establish
a new Department of Veterans Affairs (VA) employment
discrimination complaint resolution system whose employees are
supervised by and report to an Assistant Secretary or Deputy
Assistant Secretary for complaint resolution management.
2. LEstablish a VA Office of Employment Discrimination
Complaint Adjudication headed by a Director who would report
directly to the Secretary or Deputy Secretary.
3. LEstablish an independent commission to assess the
culture of VA in relationship toward sexual harassment and
other unlawful employment discrimination.
Background and Discussion
In 1992, the Veterans' Affairs Oversight and Investigations
Subcommittee conducted an oversight hearing on egregious cases
of sexual harassment at the Atlanta Veterans Affairs Medical
Center (VAMC) and elsewhere in VA. The following year, VA
implemented a ``zero tolerance'' policy against sexual
harassment and promised to improve its equal employment
opportunity (EEO) system. During the 105th Congress, the
Committee revisited the problem of sexual harassment at VA
facilities. The Subcommittee on Oversight and Investigations
convened two hearings on sexual harassment and other unlawful
employment discrimination. The first hearing on April 17, 1997,
focused on events which occurred at the Fayetteville, North
Carolina, VAMC from 1995 to 1997. Five current and former
medical center employees testified. In addition to their sworn
testimony that the medical center director, who has
subsequently retired, sexually harassed and abused them and
other subordinate employees, the Committee reviewed findings of
the VA Office of Inspector General (VA OIG). In the three cases
it investigated, the VA OIG found that the director of the
medical center engaged in sexual harassment in one case and was
abusive in the other two cases. At the second hearing on July
17, 1997, the Subcommittee received the results of a
Department-wide survey on sexual harassment and follow-up
testimony on the situation at the Fayetteville VAMC, as well as
testimony on VA's opposition to H.R. 1703 as originally
introduced.
The Subcommittee has concluded that a culture of tolerance
of sexual harassment and abusive behavior exists at certain VA
facilities, and that the policy of ``zero tolerance'' of sexual
harassment is insufficient to address these problems.
Consequently, the Committee believes it is critical for VA to
establish and maintain an EEO complaint resolution and
adjudication system that is both in fact and in the perception
of VA employees fair, impartial and objective. The complaint
process should be completely free and independent of undue
influence, and the appearance thereof, from supervisors, line
managers or directors. Objectivity and fairness should permeate
the complaint process, from its initial informal stages through
the Department's final agency decisions. Accordingly, the
Committee has concluded that the processing of unlawful
discrimination complaints should occur outside the particular
facility where the alleged discriminatory conduct was said to
have arisen, and that final agency decisions on the merits of a
complaint should be made by a quasi-independent entity, the
Office of Employment Discrimination Complaint Adjudication
(OEDCA). The OEDCA would be headed by a Director who would
report directly to the Secretary of Veterans Affairs or the
Deputy Secretary. In addition, the Secretary should provide a
work place free of harassment and discrimination by ensuring
that employees and managers alike receive the education and
training necessary for proper behavior in the workplace. The
Secretary should be held responsible for ensuring that
employees and managers are accountable for their conduct and
behavior.
Equal employment responsibilities in the Department of Veterans Affairs
H.R. 1703, as amended, would direct the Secretary to
establish a new employment discrimination complaint resolution
structure within VA, including a new Office of Resolution
Management (ORM). The ORM would be expected to achieve a
timely, high quality EEO complaint system built on fairness,
integrity and trust. The timely processing of employee
complaints is of critical concern to the Committee. The
Committee fully expects that the professional staff of the ORM
will administer the EEO system so as to encourage timely and
fair resolution of concerns and complaints. If significant
improvements are not made in this area, the Committee stands
ready to consider the imposition of tighter time limitations at
each step of the EEO process. The Committee anticipates the
establishment of customer service standards to focus on quality
of employee assistance, respect for privacy, and the responsive
and timely processing of employee complaints of discrimination.
Additionally, the ORM should commence its operation and
planning activities in full compliance with the Government
Performance and Results Act.
While the Secretary would be responsible for the structural
components of the ORM, the Committee anticipates that daily
operation of the ORM would be the responsibility of a Deputy
Assistant Secretary for Resolution Management reporting to the
Assistant Secretary for Human Resources and Administration. The
ORM would be supported by district managers, field offices,
full time EEO counselors and investigators, and a limited
number of collateral duty counselors. Collateral duty EEO
employees are VA employees who perform EEO functions, such as
serving as counselors and investigators, in addition to their
primary responsibilities at VA facilities. Such employees
currently manage the majority of EEO claims at local
facilities, with the facility director as the EEO officer
supervising those employees. In order to reduce the influence
of facility management over the EEO process at local facilities
and achieve greater professionalism among VA personnel assigned
to EEO complaints, the bill would limit the number of
collateral duty EEO employees to 40 full time employee
equivalent positions. Currently, there are 1,077 such employees
within VA. In practical terms, retaining some collateral duty
EEO employees would allow more geographically remote facilities
to function in an efficient manner. In another essential step
to remove facility management from the EEO process, medical
center, regional office, and other facility directors would no
longer perform the duties of EEO officer for the facility.
However, clear responsibility and accountability for
implementation of the Department's EEO policies and standards
would remain with the facility directors and management.
Currently, facility directors are the EEO officers at their
facilities, and therefore have a substantial amount of control
and influence over the EEO system. The Committee believes that
removing the facility director from such duties would address
the concern among VA employees that an employee who files an
EEO complaint is, in effect, making a claim against the
facility director. Some VA employees who have been
discriminated against believe that it would be futile to file
an EEO claim because the facility director would oppose the
claim as reflecting poorly on management. Consequently, too
many VA employees fear that if they file an EEO claim, not only
is it unlikely to be resolved in their favor, but they might be
punished by the facility management via transfer, demotion or
other forms of retaliation.
H.R. 1703, as amended, would also eliminate a clear
conflict of interest in the instances where an EEO claim is
filed against a facility director. In the situation at the
Fayetteville VA Medical Center, the complaints of sexual
harassment and other unlawful employment discrimination were in
fact against the facility director, who was also the EEO
officer. As a result, the complainants were required to pursue
EEO claims with collateral duty EEO employees who also worked
for the facility director. The bill would eliminate the
situation where a subordinate employee is charged with
investigating and assisting in the filing of formal complaints
against a facility manager or supervisor.
The Office of Resolution Management (ORM) would be
responsible for the development and implementation of
alternative dispute resolution programs at the facility level,
and guidance of aggrieved employees to an EEO program
coordinator who could recommend a series of informal resolution
strategies. The ORM would be expected to advise employees that
mediation or other forms of alternative dispute resolution may
be made available to employees as a means to more quickly
resolve discrimination complaints. In addition, the ORM would
be authorized to make certain final agency decisions on
procedural issues, including ``acceptability determinations''
based on timeliness, failure to state a claim, mootness, and
other reasons specified in the regulations of the Equal
Employment Opportunity Commission (EEOC). See 29 C.F.R.
1614.107. Final agency procedural decisions of the ORM would
only be made by a senior EEO specialist or field office
manager. Timely complaint processing is of critical importance
to the Committee. The Committee anticipates that allowing final
agency decisions on procedural issues to be made by the ORM
would significantly reduce complaint processing time within VA.
If it does not, the Committee will revisit this authority.
The bill would require the Secretary of Veterans Affairs to
submit reports to Congress on the implementation and operation
of the equal employment opportunity system within VA. The
Committee would expect to receive specific statistical data on
complaints received by the OEDCA. Such data should reflect the
number of complaints received in each region and the total
number of complaints, and should provide complete information
on the types and dispositions of cases, including those
settled. Reports would also provide an accounting of all
collateral duty EEO employees. The Committee also expects to
receive information on the transfer of authority to write final
agency decisions on procedural issues from the Office of
General Counsel (OGC) to the ORM. The Secretary would be
required to submit the first report on April 1, 1998, and
additional reports on January 1, 1999, and January 1, 2000.
Discrimination complaint adjudication authority in the Department of
Veterans Affairs
The second component of the reorganization of VA's EEO
system would result in a transfer of final agency decision
authority on substantive issues from the OGC to a newly
established Office of Employment Discrimination Complaint
Adjudication (OEDCA). The OEDCA, located in VA Central Office,
would be a quasi-independent complaint adjudication unit, the
head of which would report directly to the Secretary or Deputy
Secretary.
H.R. 1703, as amended, would establish a Director as the
head of the OEDCA. It would also require that the OEDCA be
staffed with an adequate number of attorneys and support
personnel, and that it operate as a quasi-independent unit
under the administrative supervision of the Secretary or Deputy
Secretary. The OEDCA is expected to enjoy a level of
independence comparable to that of administrative law judges
employed by other federal agencies. The bill specifies that the
Director of the OEDCA be a career appointee at the SES level,
assisted by an Associate Director at an appropriate grade. The
Committee expects that both the Director and Associate Director
would be attorneys with significant experience in EEO law. The
Committee anticipates that some, but not all, EEO attorneys in
OGC's Professional Staff Group IV may be reassigned to the
OEDCA. The OGC would retain some attorneys to meet its
remaining EEO responsibilities in advising and representing
management. The Director would be authorized to hire additional
attorneys and support personnel as are needed to issue
substantive decisions in a timely manner. The OEDCA would also
be responsible for creating an efficient and effective
complaint tracking system.
The operating independence of the OEDCA would be its most
important feature. Under the current structure, if a VA
employee does not informally resolve his or her complaint at
the local level, then the claim is adjudicated on the merits by
the OGC. If the employee files an appeal of the decision to the
EEOC or the Merit Systems Protection Board (MSPB), then the
same OGC attorneys who made the earlier final agency decision
may participate in VA's defense of that decision on appeal at
the EEOC or MSPB. Consequently, the OGC is the adjudicator of
substantive issues at one level, and the advocate for the
Department on the same issues at another level. H.R. 1703, as
amended, would remove final agency decision-making
responsibility from OGC. With OEDCA as the final agency
decision maker on the merits of discrimination complaints, OGC
would continue to provide legal representation to VA at EEOC
and MSPB hearings, and assistance to U.S. Attorneys in federal
court litigation.
The final agency decision-making process in the OEDCA would
consist of staff attorneys writing proposed decisions which, if
approved, would be signed by the Director, or the Associate
Director in the Director's absence. Only the Director and
Associate Director would have actual decision-making authority.
The OEDCA decisions would not be subject to further review by
anyone within VA, including the Secretary or Deputy Secretary.
The Director and Associate Director would not be required to
justify or defend their decisions within the Department in any
case. In addition, H.R. 1703, as amended, would not permit any
ex parte communications by or to any employee of the OEDCA with
respect to a matter on which the Director has responsibility
for making a final agency decision. However, OEDCA staff
attorneys would be able to initiate contact with appropriate
elements within VA solely for the purposes of obtaining
documents missing from a complaint file, obtaining biographical
information, and other similar procedural reasons unrelated to
the merits of the complaint.
As discussed above, the Subcommittee on Oversight and
Investigations believes that some VA employees fear that they
would be retaliated against if they filed a complaint of
unlawful employment discrimination. The bill requires the
Director or any other employee of the OEDCA who receives
credible evidence of international discrimination or
retaliation to report such evidence to the Secretary and
recommend appropriate disciplinary measures to be imposed. For
example, the Director could recommend a stay of adverse
personnel actions where credible evidence of retaliation or
discrimination has been received. In addition, should any
employee of the OEDCA receive evidence of other unlawful
conduct arising from an investigation of a discrimination
complaint, then such evidence should be transmitted to the
Department of Justice. The bill would also prohibit annual
performance appraisals of the Director or any other employee of
the OEDCA based in any way on whether claims were granted or
denied. Finally, the bill would require the Director of the
OEDCA to submit reports to the Secretary and to Congress on the
implementation and operation of the OEDCA.
Independent panel to review equal employment opportunity and sexual
harassment procedures within the Department of Veterans Affairs
The bill would create an independent panel to assess the
culture of tolerance toward sexual harassment and other
unlawful employment discrimination at VA. In order to assess
the ``culture'', the Committee envisions that the panel would
examine the attitudes and perceptions of VA employees, as well
as practices within VA pertaining to the EEO system. The panel
would be required to examine laws, regulations, and policies
relating to sexual harassment and equal employment opportunity
in VA, and determine if they have been consistently and fairly
applied throughout VA. After such examination, the panel would
be required to recommend methods to correct any disparities it
found. The panel would also be required to provide an
independent review of the VA's internal Report of the Equal
Employment Opportunity Complaint Process Review Task Force.
Finally, the panel would be required to submit to Congress
an interim report on the panel's findings and conclusions six
months after the members of the panel are appointed, and a
final report one year after the establishment of the panel. The
panel would be composed of six members--three appointed jointly
by the chairman and ranking member of the House Committee on
Veterans' Affairs, and three appointed jointly by the chairman
and ranking member of the Senate Committee on Veterans'
Affairs.
Section-by-Section Analysis
Section 1 provides that the title of this Act is the
``Department of Veterans Affairs Employment Discrimination
Resolution and Adjudication Act.''
Section 2(a) would amend chapter 5 of title 38, United
States Code, by adding a new section 516, ``Equal employment
responsibilities.'' Section 2(a) would establish in VA Central
Office a new Office of Resolution Management to carry out equal
employment responsibilities of the Department.
Section 2(b) would require the Secretary of Veterans
Affairs to report to Congress on the implementation and
operation of the equal employment opportunity system under
section 516 of title 38, United States Code. The reports would
be due on April 1, 1998, January 1, 1999, and January 1, 2000.
Section 3(a) would amend chapter 3 of title 38, United
States Code, by adding a new section 319, ``Office of
Employment Discrimination Complaint Adjudication.'' Section
3(a) would establish in VA Central Office, a new Office of
Employment Discrimination Complaint Adjudication to issue final
agency decisions on the merits of claims of unlawful employment
discrimination.
Section 3(b) would require the Director of the Office of
Employment Discrimination Complaint Adjudication to report to
Congress and the Secretary of Veterans Affairs on the
implementation and operation of the Office of Employment
Discrimination Complaint Adjudication. The reports would be due
on April 1, 1998, January 1, 1999, and January 1, 2000.
Section 4 would establish an independent panel to assess
the culture of VA in relationship to issues of sexual
harassment and other unlawful employment discrimination,
determine the effect of that culture on VA's operation overall
and provide recommendations as necessary.
Oversight Findings
No oversight findings have been submitted to the Committee
by the Committee on Government Reform and Oversight.
Congressional Budget Office Cost Estimate
The following letter was received from the Congressional
Budget Office concerning the cost of the reported bill:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 30, 1997.
Hon. Bob Stump,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1703, the
Department of Veterans Affairs Employment Discrimination
Resolution and Adjudication Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Valerie
Barton, who can be reached at 226-2840.
Sincerely,
June E. O'Neill,
Director
Enclosure
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
H.R. 1703--Department of Veterans Affairs Employment Discrimination
Resolution and Adjudication Act
As ordered reported by the House Committee on Veterans' Affairs
on September 30, 1997
H.R. 1703 would restructure authority and responsibility
for overseeing equal employment opportunities within the
Department of Veterans Affairs (VA). CBO estimates that the
costs of implementing this legislation would have an
insignificant budgetary impact. The bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act of 1995 and would not affect the
budgets of State, local, or tribal governments. Because it
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply.
H.R. 1703 would create the Office of Employment
Discrimination Complaint Adjudication within VA to adjudicate
complaints by employees of VA of employment discrimination. The
bill would also reallocate responsibilities within VA so that
more employees would have duties related only to matters of
employment discrimination, and it would require that such
employees be outside of the control of the director of the
facility where they work. In addition, the bill would establish
a panel to provide an independent assessment of the agency's
practices and procedures in relation to equal employment
opportunity and sexual harassment and to make recommendations
for their improvement. The bill would authorize the
appropriation of $400,000 for the costs of the panel.
VA is currently revising its system for processing and
adjudicating claims of employment discrimination, and CBO
expects that many changes required by the bill would probably
occur under current law. Other changes in procedures would not
add significant costs.
The CBO staff contact for this estimate is Valerie Barton,
who can be reached at 226-2840. This estimate was approved by
Robert A. Sunshine, Deputy Assistant Director for Budget
Analysis.
Inflationary Impact Statement
The enactment of the reported bill would have no
inflationary impact.
Applicability to Legislative Branch
The reported bill would not be applicable to the
legislative branch under the Congressional Accountability Act,
Public Law 104-1, because it would apply only to employees and
facilities of the Department of Veterans Affairs.
Statement of Federal Mandates
The reported bill would not establish a federal mandate
under the Unfunded Mandates Reform Act, Public Law 104-4.
Statement of Constitutional Authority
Pursuant to Article I, section 8 of the U.S. Constitution,
the reported bill would be authorized by Congress' power to
``provide for the common Defence and general Welfare of the
United States.''
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (new matter is printed
in italics and existing law in which no change is proposed is
shown in roman):
TITLE 38, UNITED STATES CODE
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PART I--GENERAL PROVISIONS
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CHAPTER 3--DEPARTMENT OF VETERANS AFFAIRS
Sec.
301. Department.
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319. Office of Employment Discrimination Complaint Adjudication.
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Sec. 319. Office of Employment Discrimination Complaint Adjudication
(a)(1) There is in the Department an Office of Employment
Discrimination Complaint Adjudication. There is at the head of
the Office a Director.
(2) The Director shall be a career appointee in the Senior
Executive Service.
(3) The Director reports directly to the Secretary or the
Deputy Secretary concerning matters within the responsibility
of the Office.
(b)(1) The Director is responsible for making the final
agency decision within the Department on the merits of any
employment discrimination complaint filed by an employee, or an
applicant for employment, with the Department. The Director
shall make such decisions in an impartial and objective manner.
(2) No person may make any ex parte communication to the
Director or to any employee of the Office with respect to a
matter on which the Director has responsibility for making a
final agency decision.
(c) Whenever the Director has reason to believe that there
has been retaliation against an employee by reason of the
employee asserting rights under an equal employment opportunity
law, the Director shall report the suspected retaliatory action
directly to the Secretary or Deputy Secretary, who shall take
appropriate action thereon.
(d)(1) The Office shall employ a sufficient number of
attorneys and other personnel as are necessary to carry out the
functions of the Office. Attorneys shall be compensated at a
level commensurate with attorneys employed by the Office of
General Counsel.
(2) The Secretary shall ensure that the Director is furnished
sufficient resources in addition to personnel under paragraph
(1) to enable the Director to carry out the functions of the
Office in a timely manner.
(3) The Secretary shall ensure that any performance appraisal
of the Director of the Office of Employment Discrimination
Complaint Adjudication or of any employee of the Office does
not take into consideration the record of the Director or
employee in deciding cases for or against the Department.
CHAPTER 5--AUTHORITY AND DUTIES OF THE SECRETARY
subchapter i--general authorities
Sec.
501. Rules and regulations.
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516. Equal employment responsibilities.
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SUBCHAPTER I--GENERAL AUTHORITIES
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Sec. 516. Equal employment responsibilities
(a) The Secretary shall provide that the employment
discrimination complaint resolution system within the
Department be established and administered so as to encourage
timely and fair resolution of concerns and complaints. The
Secretary shall take steps to ensure that the system is
administered in an objective, fair, and effective manner and in
a manner that is perceived by employees and other interested
parties as being objective, fair, and effective.
(b) The Secretary shall provide--
(1) that employees responsible for counseling
functions associated with employment discrimination and
for receiving, investigating, and processing complaints
of employment discrimination shall be supervised in
those functions by, and report to, an Assistant
Secretary or a Deputy Assistant Secretary for complaint
resolution management; and
(2) that employees performing employment
discrimination complaint resolution functions at a
facility of the Department shall not be subject to the
authority, direction, and control of the Director of
the facility with respect to those functions.
(c) The Secretary shall ensure that all employees of the
Department receive adequate education and training for the
purposes of this section and section 319 of this title.
(d) The Secretary shall impose appropriate disciplinary
measures, as authorized by law, in the case of employees of the
Department who engage in unlawful employment discrimination,
including retaliation against an employee asserting rights
under an equal employment opportunity law.
(e) The number of employees of the Department whose duties
include equal employment opportunity counseling functions as
well as other, unrelated functions may not exceed 40 full-time
equivalent employees. Any such employee may be assigned equal
employment opportunity counseling functions only at Department
facilities in remote geographic locations (as determined by the
Secretary). The Secretary may waive the limitation in the
preceding sentence in specific cases.
(f) The provisions of this section shall be implemented in a
manner consistent with procedures applicable under regulations
prescribed by the Equal Employment Opportunity Commission.
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