[House Report 114-117]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-117
======================================================================
FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2015
_______
May 15, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 1557]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 1557) to amend the Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2002
to strengthen Federal antidiscrimination laws enforced by the
Equal Employment Opportunity Commission and expand
accountability within the Federal government, and for other
purposes, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 3
Explanation of Amendments........................................ 5
Committee Consideration.......................................... 5
Application of Law to the Legislative Branch..................... 5
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 5
Statement of General Performance Goals and Objectives............ 5
Duplication of Federal Programs.................................. 5
Disclosure of Directed Rule Makings.............................. 5
Federal Advisory Committee Act................................... 6
Unfunded Mandate Statement....................................... 6
Earmark Identification........................................... 6
Committee Estimate............................................... 6
Budget Authority and Congressional Budget Office Cost Estimate... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
Committee Statement and Views
PURPOSE AND SUMMARY
The Federal Employee Antidiscrimination Act of 2015 is
intended to strengthen Equal Employment Opportunity (EEO)
protections for federal employees.
BACKGROUND AND NEED FOR LEGISLATION
Under current law, federal Equal Employment Opportunity
(EEO) programs must identify and eliminate barriers to equal
opportunity. These programs are essential to ensuring that
federal workplaces uphold the guarantee of equal opportunity
that is the right of every citizen in this nation. Federal
employees or applicants for employment who believe they have
been the victims of discrimination have the right to bring a
complaint to their agency's EEO program, which is responsible
for investigating these complaints. In fiscal year 2012,
federal employees and job applicants filed nearly 16,000
complaints alleging they were the victims of discrimination.
While many federal agencies are implementing their EEO
programs in accordance with the standards of a model EEO
program set forth by the Equal Employment Opportunity
Commission (EEOC), some federal agencies have not met these
standards. For example, in 2014, the EEOC issued a report on
the Social Security Administration's EEO program that found the
program had failed to maintain the standards of a model
program. The EEOC made 12 findings regarding the Social
Security Administration's EEO program, including its failure to
ensure efficient management of the various stages of the
complaint process, provide uniform training to ensure equal
opportunities, and implement effective and efficient anti-
harassment policies and procedures. The EEOC made more than 60
recommendations for reform of that one program.
H.R. 1557, the Federal Employee Antidiscrimination Act,
would ensure that federal agencies are using best practices to
manage their EEO programs. The Act would also strengthen the
accountability mechanisms that are central to the effectiveness
of the EEO process.
By requiring that EEO programs be independent of an
agency's human resources or general counsel offices--and by
requiring that the head of the program report directly to the
head of an agency--H.R. 1557 would ensure that EEO programs are
focused solely on ensuring equal opportunity for all employees
and applicants and that this focus is prioritized at the
highest levels of an agency's leadership.
H.R. 1557 would also strengthen accountability in EEO
programs by expanding the notifications that agencies are
required to provide when discrimination is found to have
occurred, and it would require agencies to track and report
whether such findings have resulted in any disciplinary action.
Finally, H.R. 1557 would help ensure that federal employees
and applicants feel confident that they can report
discrimination--or waste, fraud, or abuse--without fear of
retaliation. According to the 2014 Federal Employee Viewpoint
Survey, only 60% of federal employees agreed that they could
``disclose a suspected violation of any law, rule or regulation
without fear of reprisal.'' H.R. 1557 would prohibit non-
disclosure agreements that bar or restrict an employee from
informing Congress, the Office of Special Counsel (OSC), or an
Office of the Inspector General about violations of law or
instances of waste, fraud, or abuse.
LEGISLATIVE HISTORY
H.R. 1557, the Federal Employee Antidiscrimination Act, was
introduced on March 24, 2015, by Rep. Elijah E. Cummings (D-MD)
and referred to the Committee on Oversight and Government
Reform. On March 25, 2015, the Committee ordered H.R. 1557
reported favorably, without amendment. Delegate Eleanor Holmes
Norton (D-DC) is an original cosponsor and Chairman Jason
Chaffetz (R-UT), Congressman James Sensenbrenner (R-WI) and
Congresswoman Sheila Jackson Lee (D-TX) are co-sponsors.
Section by Section
Section 1. Short title
Identifies the bill as the ``Federal Employee
Antidiscrimination Act of 2015.''
Section 2. Sense of Congress
Modifies the existing sense of Congress in the Notification
and Federal Employee Antidiscrimination and Retaliation Act of
2002 (No FEAR Act) (5 U.S.C. Sec. 2301 note) to affirm that
accountability in the enforcement of federal employee rights is
furthered when federal agencies take appropriate disciplinary
action against federal employees who have acted in a
discriminatory or retaliatory manner, while preserving all of
their due process rights.
Section 3. Notification of violation
Amends Section 202 of the No FEAR Act to require that when
an agency or the EEOC finds that a discriminatory or
retaliatory act has occurred, an agency must post the finding
for at least one year on the agency's website.
Section 4. Reporting requirements
Amends Section 203 of the No FEAR Act to require that
annual reports mandated by that Act be submitted in electronic
format.
Requires a federal agency to submit a report to the EEOC
within 60 days of the issuance of a finding that a
discriminatory or retaliatory act has occurred, stating whether
disciplinary action has been initiated against a federal
employee as a result of the improper act.
Section 5. Data to be posted by employing federal agencies
Amends Section 301 of the No FEAR Act to expand the
information federal agencies are required to post on their
websites regarding each finding of discrimination or
retaliation to include the date of the finding, the affected
agency, the law violated, and whether a decision has been made
regarding necessary disciplinary action. Also requires that
agencies provide specific data on each class action complaint
filed against the agency alleging discrimination or
retaliation.
Section 6. Data to be posted by the Equal Employment Opportunity
Commission
Amends Section 302 of the No FEAR Act to apply to the EEOC
the new requirements applied to federal agencies under Section
5.
Section 7. Notification and Federal Employee Antidiscrimination and
Retaliation Act amendments
Amends the No FEAR Act to add a new section requiring
federal agencies to establish a system to track each complaint
alleging that a discriminatory act has been committed from
inception to resolution. The system must also track whether a
decision has been made regarding necessary disciplinary action
resulting from a finding that discrimination has occurred.
Amends the No FEAR Act to add a new section requiring that
if an agency takes adverse action against an employee for an
act of discrimination or retaliation--and after all appeals
arising from the adverse action have been exhausted--the agency
shall make a notation of the adverse action and the reason for
the action in the personnel record of the individual against
whom the action was taken.
Amends the No FEAR Act to add a new Title IV, Processing
and Referral. This new Title would require each federal agency
to implement a model EEO program that is not under the control
of the agency's Human Capital or General Counsel offices, that
is devoid of internal conflicts of interest, and that ensures
the efficient and fair resolution of complaints alleging
discrimination or retaliation.
Provides that nothing in the Title prevents an agency's
Human Capital or General Counsel office from providing advice
or counsel to agency personnel on the processing or resolution
of an EEO complaint.
The new Title IV also would require the head of each EEO
program in a federal agency to report directly to the head of
the agency.
The new Title IV also would require the EEOC to make a
referral to the Office of Special Counsel (OSC) whenever the
Commission issues a finding that a discriminatory or
retaliatory act has occurred. Requires the OSC to accept and
review referrals from the EEOC and to notify the EEOC whenever
it initiates disciplinary action in response to a referral.
Requires an agency to comply with 5 U.S.C. Sec. 1214(f)
(prohibiting disciplinary action against an employee while an
OSC investigation is on-going without OSC approval) before
initiating disciplinary action against a federal employee for
an alleged act of discrimination or retaliation referred to the
OSC by the EEOC.
Section 8. Non-Disclosure agreement limitation
Amends 5 U.S.C. Sec. 2302(b) to prohibit the implementation
or enforcement of nondisclosure policies, forms, or agreements
that prohibit or restrict an employee from disclosing to
Congress, the OSC, or an Office of the Inspector General any
information that relates to any violation of any law, rule, or
regulation, or instance of mismanagement, a gross waste of
funds, abuse of authority, or a substantial and specific danger
to public health and safety, or any other whistleblower
protection.
Explanation of Amendments
No amendments were offered during Full Committee
consideration of H.R. 1557.
Committee Consideration
On March 25, 2015, the Committee met in open session and
ordered reported favorably the bill, H.R. 1557, by voice vote,
a quorum being present.
Roll Call Votes
No roll call votes were requested or conducted during Full
Committee consideration of H.R. 1557.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill strengthens the management and implementation of
Equal Employment Opportunity programs in federal agencies. As
such this bill does not relate to employment or access to
public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to amend the Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2002
to strengthen Federal antidiscrimination laws enforced by the
Equal Employment Opportunity Commission and expand
accountability within the Federal Government.
Duplication of Federal Programs
No provision of this bill establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting this bill does not
direct the completion of any specific rule makings within the
meaning of 5 U.S.C. Sec. 551.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement, the Committee
has received a letter from the Congressional Budget Office
included herein.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
this bill. However, clause 3(d)(2)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for this bill from the Director of
Congressional Budget Office:
H.R. 1557--Federal Employee Antidiscrimination Act of 2015
H.R. 1557 would amend the Notification and Federal Employee
Antidiscrimination and Retaliation Act to expand the current
process used to investigate and resolve federal employee claims
of discrimination by federal employees. The bill also would
expand the amount of information that must be reported and made
available concerning such discrimination cases.
Based on information from the Office of Personnel
Management and the U.S. Equal Employment Opportunity
Commission, most of the provisions in the bill would expand
current policies and practices of the federal government.
Currently, the federal government, through laws, regulations,
and agency policies, prohibits discrimination in all phases of
employment. CBO expects that under the bill there would be some
minor additional costs for agencies to track and report
discriminatory acts and to notify the public of violations of
antidiscrimination laws. Thus, CBO estimates that implementing
H.R. 1557 would increase federal administrative costs by less
than $500,000 annually, assuming the availability of
appropriated funds.
Enacting H.R. 1557 could affect direct spending by some
agencies (such as the Tennessee Valley Authority) because they
are authorized to use receipts from the sale of goods, fees,
and other collections to cover their operating costs.
Therefore, pay-as-you-go procedures apply. Because most of
those agencies can make adjustments to the amounts collected,
CBO estimates that any net changes in direct spending by those
agencies would not be significant. Enacting the bill would not
affect revenues.
H.R. 1557 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Theresa Gullo,
Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) 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 (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION
ACT OF 2002
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
2002''.
(b) Table of Contents.--The table of contents of this Act is
as follows:
* * * * * * *
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
* * * * * * *
Sec. 207. Complaint tracking.
Sec. 208. Notation in personnel record.
* * * * * * *
TITLE IV--PROCESSING AND REFERRAL
Sec. 401. Processing and resolution of complaints.
Sec. 402. No limitation on Human Capital or General Counsel advice.
Sec. 403. Head of Program reports to head of agency.
Sec. 404. Referrals of findings of discrimination.
TITLE I--GENERAL PROVISIONS
* * * * * * *
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;]
(4) accountability in the enforcement of Federal
employee rights is furthered when Federal agencies take
appropriate disciplinary action against Federal
employees who have been found to have committed
discriminatory or retaliatory acts;
(5)(A) [nor is accountability] but accountability is
not furthered if Federal agencies react to the
increased accountability under this Act for what by law
the agency is responsible 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.
* * * * * * *
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
* * * * * * *
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, 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).
(d) Notification of Final Agency Action.--
(1) Not later than 30 days after a Federal agency
takes final action or the Equal Employment Opportunity
Commission issues an appellate decision involving a
finding of discrimination or retaliation prohibited by
a provision of law covered by paragraphs (1) or (2) of
section 201(a), as applicable, the head of the agency
subject to the finding shall provide notice for at
least 1 year on the agency's Internet Web site in a
clear and prominent location linked directly from the
agency's Internet home page stating that a finding of
discrimination or retaliation has been made.
(2) The notification shall identify the date the
finding was made, the date or dates on which the
discriminatory or retaliatory act or acts occurred, and
the law or laws violated by the discriminatory or
retaliatory act or acts. The notification shall also
advise Federal employees of the rights and protections
available under the respective provisions of law
covered by paragraphs (1) or (2) of section 201(a).
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 (in an electronic format prescribed by the Office
of Personnel Management) 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));
(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 data
are not available for all 5 fiscal years, for each of those 5
fiscal years for which data are available).
(c) Disciplinary Action Report.--Not later than 60 days after
the date on which a Federal agency takes final action or an
agency receives an appellate decision issued by the Equal
Employment Opportunity Commission involving a finding of
discrimination or retaliation in violation of a provision of
law covered by paragraphs (1) or (2) of section 201(a), as
applicable, the employing Federal agency shall submit to the
Commission a report stating whether disciplinary action has
been initiated against a Federal employee as a result of the
violation.
* * * * * * *
SEC. 207. COMPLAINT TRACKING.
Not later than 1 year after the date of enactment of the
Federal Employee Antidiscrimination Act of 2015, 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 inception to resolution of
the complaint, including whether a decision has been made
regarding necessary disciplinary action as the result of a
finding of discrimination.
SEC. 208. NOTATION IN PERSONNEL RECORD.
If an agency takes an adverse action covered under section
7512 of title 5, United States Code, against an employee for an
act of discrimination or retaliation prohibited by a provision
of law covered by paragraphs (1) or (2) of section 201(a), the
agency shall, after all appeals relating to such action have
been exhausted, include a notation of the adverse action and
the reason for the action in the employee's personnel record.
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[.],
and
(C) for each such finding counted under
subparagraph (A), the agency shall specify--
(i) the date of the finding,
(ii) the affected agency,
(iii) the law violated, and
(iv) whether a decision has been made
regarding necessary disciplinary action
as a result of the finding.
(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.
(11) Data regarding each class action complaint filed
against the agency alleging discrimination or
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 or retaliation has been
found.
(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)] (11) 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.
* * * * * * *
TITLE IV--PROCESSING AND REFERRAL
SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.
Each Federal agency is responsible for the fair, impartial,
processing and resolution of complaints of employment
discrimination and retaliation arising in the Federal
administrative process and shall establish a model Equal
Employment Opportunity Program that--
(1) is not under the control, either structurally or
practically, of a Human Capital or General Counsel
office;
(2) is devoid of internal conflicts of interest and
ensures fairness and inclusiveness within the
organization; and
(3) ensures the efficient and fair resolution of
complaints alleging discrimination or retaliation.
SEC. 402. NO LIMITATION ON HUMAN CAPITAL OR GENERAL COUNSEL ADVICE.
Nothing in this title shall prevent a Federal agency's Human
Capital or General Counsel office from providing advice or
counsel to agency personnel on the processing and resolution of
a complaint, including providing legal representation to an
agency in any proceeding.
SEC. 403. HEAD OF PROGRAM REPORTS TO 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.--Not later than 30 days
after the Equal Employment Opportunity Commission issues an
appellate decision involving a finding of discrimination or
retaliation within a Federal agency the Commission shall refer
the matter to the Office of Special Counsel.
(b) Referrals to Special Counsel.--The Office of Special
Counsel shall accept and review a referral from the Commission
under subsection (a) for purposes of seeking disciplinary
action under its authority against an Federal employee who
commits an act of discrimination or retaliation.
(c) Notification.--The Office of Special Counsel shall notify
the Commission in a case in which the Office of Special Counsel
initiates disciplinary action.
(d) Special Counsel Approval.--An agency may not take
disciplinary action against a Federal employee for an alleged
act of discrimination or retaliation referred by the Commission
under this section except in accordance with the requirements
of section 1214(f) of title 5, United States Code.
----------
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart A--GENERAL PROVISIONS
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
Sec. 2302. Prohibited personnel practices
(a)(1) For the purpose of this title, ``prohibited personnel
practice'' means any action described in subsection (b).
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this
title or other disciplinary or corrective
action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter
43 of this title;
(ix) a decision concerning pay, benefits, or
awards, or concerning education or training if
the education or training may reasonably be
expected to lead to an appointment, promotion,
performance evaluation, or other action
described in this subparagraph;
(x) a decision to order psychiatric testing
or examination;
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties,
responsibilities, or working conditions;
with respect to an employee in, or applicant for, a
covered position in an agency, and in the case of an
alleged prohibited personnel practice described in
subsection (b)(8), an employee or applicant for
employment in a Government corporation as defined in
section 9101 of title 31;
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) excepted from the competitive service
because of its confidential, policy-
determining, policy-making, or policy-
advocating character; or
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration;
(C) ``agency'' means an Executive agency and the
Government Publishing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under subsection (b)(8) or
section 2302(b)(9) (A)(i), (B), (C), or
(D)
(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security
Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance
Office; and
(II) as determined by the President, any
executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
provided that the determination be made prior
to a personnel action; or
(iii) the Government Accountability Office;
and
(D) ``disclosure'' means a formal or informal
communication or transmission, but does not include a
communication concerning policy decisions that lawfully
exercise discretionary authority unless the employee or
applicant providing the disclosure reasonably believes
that the disclosure evidences--
(i) any violation of any law, rule, or
regulation; or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) discriminate for or against any employee or
applicant for employment--
(A) on the basis of race, color, religion,
sex, or national origin, as prohibited under
section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under
sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited under
section 6(d) of the Fair Labor Standards Act of
1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition,
as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or
political affiliation, as prohibited under any
law, rule, or regulation;
(2) solicit or consider any recommendation or
statement, oral or written, with respect to any
individual who requests or is under consideration for
any personnel action unless such recommendation or
statement is based on the personal knowledge or records
of the person furnishing it and consists of--
(A) an evaluation of the work performance,
ability, aptitude, or general qualifications of
such individual; or
(B) an evaluation of the character, loyalty,
or suitability of such individual;
(3) coerce the political activity of any person
(including the providing of any political contribution
or service), or take any action against any employee or
applicant for employment as a reprisal for the refusal
of any person to engage in such political activity;
(4) deceive or willfully obstruct any person with
respect to such person's right to compete for
employment;
(5) influence any person to withdraw from competition
for any position for the purpose of improving or
injuring the prospects of any other person for
employment;
(6) grant any preference or advantage not authorized
by law, rule, or regulation to any employee or
applicant for employment (including defining the scope
or manner of competition or the requirements for any
position) for the purpose of improving or injuring the
prospects of any particular person for employment;
(7) appoint, employ, promote, advance, or advocate
for appointment, employment, promotion, or advancement,
in or to a civilian position any individual who is a
relative (as defined in section 3110(a)(3) of this
title) of such employee if such position is in the
agency in which such employee is serving as a public
official (as defined in section 3110(a)(2) of this
title) or over which such employee exercises
jurisdiction or control as such an official;
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) any violation of any law, rule,
or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety,
if such disclosure is not specifically
prohibited by law and if such information is
not specifically required by Executive order to
be kept secret in the interest of national
defense or the conduct of foreign affairs; or
(B) any disclosure to the Special Counsel, or
to the Inspector General of an agency or
another employee designated by the head of the
agency to receive such disclosures, of
information which the employee or applicant
reasonably believes evidences--
(i) any violation (other than a
violation of this section) of any law,
rule, or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(9) take or fail to take, or threaten to take or fail
to take, any personnel action against any employee or
applicant for employment because of--
(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation--
(i) with regard to remedying a
violation of paragraph (8); or
(ii) other than with regard to
remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in subparagraph (A)(i) or
(ii);
(C) cooperating with or disclosing
information to the Inspector General of an
agency, or the Special Counsel, in accordance
with applicable provisions of law; or
(D) for refusing to obey an order that would
require the individual to violate a law;
(10) discriminate for or against any employee or
applicant for employment on the basis of conduct which
does not adversely affect the performance of the
employee or applicant or the performance of others;
except that nothing in this paragraph shall prohibit an
agency from taking into account in determining
suitability or fitness any conviction of the employee
or applicant for any crime under the laws of any State,
of the District of Columbia, or of the United States;
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement;
(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title; or
(13) [implement] (A) implement or enforce any
nondisclosure policy, form, or agreement, if such
policy, form, or agreement does not contain the
following statement: ``These provisions are consistent
with and do not supersede, conflict with, or otherwise
alter the employee obligations, rights, or liabilities
created by existing statute or Executive order relating
to (1) classified information, (2) communications to
Congress, (3) the reporting to an Inspector General or
the Office of Special Counsel of a 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 (4)
any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and
liabilities created by controlling Executive orders and
statutory provisions are incorporated into this
agreement and are controlling.''[.]; or
(B) implement or enforce any nondisclosure
policy, form, or agreement, if such policy,
form, or agreement prohibits or restricts an
employee from disclosing to Congress, the
Office of Special Counsel, or an Office of the
Inspector General 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.
This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses information
to Congress. For purposes of paragraph (8), (i) any presumption
relating to the performance of a duty by an employee whose
conduct is the subject of a disclosure as defined under
subsection (a)(2)(D) may be rebutted by substantial evidence,
and (ii) a determination as to whether an employee or applicant
reasonably believes that such employee or applicant has
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to
public health or safety shall be made by determining whether a
disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee or applicant
could reasonably conclude that the actions of the Government
evidence such violations, mismanagement, waste, abuse, or
danger.
(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management, and for ensuring (in consultation with the Office
of Special Counsel) that agency employees are informed of the
rights and remedies available to them under this chapter and
chapter 12 of this title, including how to make a lawful
disclosure of information that is specifically required by law
or Executive order to be kept classified in the interest of
national defense or the conduct of foreign affairs to the
Special Counsel, the Inspector General of an agency, Congress,
or other agency employee designated to receive such
disclosures. Any individual to whom the head of an agency
delegates authority for personnel management, or for any aspect
thereof, shall be similarly responsible within the limits of
the delegation.
(d) This section shall not be construed to extinguish or
lessen any effort to achieve equal employment opportunity
through affirmative action or any right or remedy available to
any employee or applicant for employment in the civil service
under--
(1) section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16), prohibiting discrimination on the
basis of race, color, religion, sex, or national
origin;
(2) sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a),
prohibiting discrimination on the basis of age;
(3) under section 6(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d)), prohibiting
discrimination on the basis of sex;
(4) section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), prohibiting discrimination on the basis of
handicapping condition; or
(5) the provisions of any law, rule, or regulation
prohibiting discrimination on the basis of marital
status or political affiliation.
(e)(1) For the purpose of this section, the term ``veterans'
preference requirement'' means any of the following provisions
of law:
(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312,
3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351,
3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with
respect to a preference eligible referred to in section
7511(a)(1)(B)) subchapter II of chapter 75 and section
7701.
(B) Sections 943(c)(2) and 1784(c) of title 10.
(C) Section 1308(b) of the Alaska National Interest
Lands Conservation Act.
(D) Section 301(c) of the Foreign Service Act of
1980.
(E) Sections 106(f), 7281(e), and 7802(5) of title
38.
(F) Section 1005(a) of title 39.
(G) Any other provision of law that the Director of
the Office of Personnel Management designates in
regulations as being a veterans' preference requirement
for the purposes of this subsection.
(H) Any regulation prescribed under subsection (b) or
(c) of section 1302 and any other regulation that
implements a provision of law referred to in any of the
preceding subparagraphs.
(2) Notwithstanding any other provision of this title, no
authority to order corrective action shall be available in
connection with a prohibited personnel practice described in
subsection (b)(11). Nothing in this paragraph shall be
considered to affect any authority under section 1215 (relating
to disciplinary action).
(f)(1) A disclosure shall not be excluded from subsection
(b)(8) because--
(A) the disclosure was made to a supervisor or to a
person who participated in an activity that the
employee or applicant reasonably believed to be covered
by subsection (b)(8)(A)(i) and (ii);
(B) the disclosure revealed information that had been
previously disclosed;
(C) of the employee's or applicant's motive for
making the disclosure;
(D) the disclosure was not made in writing;
(E) the disclosure was made while the employee was
off duty; or
(F) of the amount of time which has passed since the
occurrence of the events described in the disclosure.
(2) If a disclosure is made during the normal course of
duties of an employee, the disclosure shall not be excluded
from subsection (b)(8) if any employee who has authority to
take, direct others to take, recommend, or approve any
personnel action with respect to the employee making the
disclosure, took, failed to take, or threatened to take or fail
to take a personnel action with respect to that employee in
reprisal for the disclosure.
* * * * * * *
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