[House Report 117-35]
[From the U.S. Government Publishing Office]


117th Congress     }                                  {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session       }                                  {       117-35

======================================================================

 
      VA EQUAL EMPLOYMENT OPPORTUNITY COUNSELOR MODERNIZATION ACT

                                _______
                                

  May 17, 2021.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Takano, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2788]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 2788) to amend title 38, United States Code, to 
eliminate the cap on full-time employees of the Department of 
Veterans Affairs who provide equal employment opportunity 
counseling, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     3
Subcommittee Consideration.......................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Section-by-Section Description...................................     4
Congressional Budget Office Cost Estimate........................     4
Committee Oversight Findings.....................................     6
Constitutional Authority Statement...............................     6
Earmark Statement................................................     6
Federal Mandates Statement.......................................     6
Advisory Committee Statement.....................................     6
Performance Goals................................................     6
Supplemental, Additional, Dissenting, and Minority Views.........     7
Applicability to Legislative Branch..............................     7
Statement on Duplication of Federal Programs.....................     7
Ramseyer Submission..............................................     7

                          Purpose and Summary

    The purpose of H.R. 2788 is to remove a statutory limit on 
the number of Equal Employment Opportunity counselors at the 
Department of Veterans Affairs (VA). Under 39 U.S.C. Sec. 516 
(g) the Department is limited to no more than 40 full-time 
equivalents for such counselors. The bill also requires VA to 
report within 60 days on the effect of removing this statutory 
limit.

                  Background and Need for Legislation

    Under federal law, an employee, former employee, or 
applicant for employment, who believes that discrimination 
occurred on the basis of race, color, sex, sexual orientation, 
transgender orientation, national origin, age (40 and over), 
disability, genetic information, or retaliation for Equal 
Employment Opportunity (EEO) activities, may initiate a 
complaint of discrimination.\1\ This complaint goes through an 
informal stage, where counseling occurs, and then, if elected 
by the complainant, a formal stage where the Department 
processes and investigates a formal complaint.\2\
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    \1\Federal workplace anti-discrimination laws include, but are not 
limited to, Title VII of the Civil Rights Act of 1964, The Equal Pay 
Act of 1963, The Pregnancy Discrimination Act, The Age Discrimination 
in Employment Act of 1967, and Title I of the Americans with 
Disabilities Act of 1990.
    \2\Department of Veterans Affairs, Office of Resolution Management 
(ORM), Filing an EEO Complaint, https://www.va.gov/ORMDI/docs/
Filing_An_EEO_Complaint1.docx (accessed May 12, 2021).
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    Within VA, the Office of Resolution Management, Diversity 
and Inclusion is responsible for providing EEO complaint 
processing services, including confidential counseling, 
mediation, and investigation. Specifically, EEO counselors, who 
are placed in 6 district offices across the country, help 
process complaints in coordination with case managers and 
investigators that are also a part of the Office of Resolution 
Management, Diversity and Inclusion.\3\
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    \3\Government Accountability Office, Sexual Harassment: VA Needs to 
Better Protect Employees, GAO-20-654T, Washington, D.C.: Jul. 22, 
2020), https://www.gao.gov/products/gao-20-654t, (accessed May 12, 
2021), 5.
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    VA is one of the largest federal agencies with over 400,000 
employees and has among the most EEO complaints and counseling 
instances in the federal government. The Department currently 
has 38 full-time EEO counselors--or less than 1 counselor for 
every 10,000 employees. In 1998, the year after the statutory 
limit for counselors was enacted, VA had about 238,000 
employees. Twenty years later, in 2018, VA reported having over 
390,000 employees. With this significant growth, each counselor 
at VA serves significantly more employees and has a higher 
workload when compared to other cabinet-level departments in 
recent years. According to Equal Employment Opportunity 
Commission data from 2018, VA had 5,796 formal EEO complaints 
and provided 4,597 counseling sessions to employees.\4\
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    \4\U.S. Equal Employment Opportunity Commission, Annual Report on 
the Federal Workforce: Form 462 and MD-715 Data Tables for FY 2017 and 
FY 2018, https://www.eeoc.gov/federal-sector/reports/annual-report-
federal-workforce-form-462-and-md-715-data-tables-fy-2017-and (accessed 
May 12, 2021).
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    VA officials testified in the Subcommittee on Oversight and 
Investigations legislative hearing that ``VA's EEO counselors 
are a forward-facing team who engage individuals at the most 
sensitive time of their conflict or complaint. When staffed, 
properly, EEO counselors are instrumental in timely resolution 
of conflicts at the informal stage before they escalate into 
formal complaints.''\5\ According to VA data provided to the 
Committee, the resolution of informal contacts by counselors in 
2020, before they became formal complaints, was responsible for 
avoiding over $46 million in potential costs for investigating 
and litigating formal EEO complaints.
---------------------------------------------------------------------------
    \5\Statement of Jeffrey R. Mayo, Acting Assistant Secretary Human 
Resources and Administration/Operations, Security, and Preparedness, 
Department of Veterans Affairs (VA) Before the Committee on Veterans' 
Affairs Subcommittee on Oversight and Investigations, U.S. House of 
Representatives, April 21, 2021, https://docs.house.gov/meetings/VR/
VR08/20210421/111431/HHRG-117-VR08-Wstate-MayoJ-20210421.pdf (accessed 
May 12, 2021), 11.
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    Officials from VA's Office of Resolution Management, 
Diversity and Inclusion told Committee staff that current 
counselor staffing levels, as constrained by statute, are not 
sufficient to provide adequate and timely support to employees 
via EEO counseling activities.

                                Hearings

    On April 21, 2021, the Subcommittee on Oversight and 
Investigations conducted a legislative hearing on various bills 
introduced during the 117th Congress, including a discussion 
draft of H.R. 2788. The following witnesses testified: Mr. 
Jeffrey R. Mayo, Acting Assistant Secretary, Human Resources 
and Administration/Operations, Security, and Preparedness (HRA/
OSP), U.S. Department of Veterans Affairs; Mr. Hansel Cordeiro, 
Acting Assistant Secretary, Office of Accountability and 
Whistleblower Protection (OAWP), U.S. Department of Veterans; 
Mr. Ed Murray, Principal Deputy Assistant Secretary and Deputy 
Chief Financial Officer, Office of Management (OM), U.S. 
Department of Veterans; Ms. Jessica Bonjorni, Chief, Human 
Capital Management (HCM), Veterans Health Administration (VHA), 
U.S. Department of Veterans; Mr. Christopher Wilber, Counsel to 
the Inspector General, Office of the Inspector General, U.S. 
Department of Veterans Affairs.

                       Subcommittee Consideration

    A discussion draft of H.R. 2788 was considered before the 
Subcommittee on Oversight and Investigations on April 21, 2021. 
The bill was subsequently considered by the Full Committee on 
May 4, 2021.

                        Committee Consideration

    On May 4, 2021, the full Committee met in an open session, 
a quorum being present, to consider H.R. 2788. The Committee 
ordered that H.R. 2788 be ordered favorably reported to the 
House of Representatives.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report the legislation and amendments 
thereto. The results of the record vote on an amendment or 
motion to transmit, together with the names of those voting for 
and against, are printed below.

Veterans' Affairs Committee record vote No. 3

    A motion to favorably report the en bloc package to the 
U.S. House of Representatives, agreed to by a roll call vote 
22-6. The vote was as follows:

------------------------------------------------------------------------
       Majority Members            Vote     Minority Members     Vote
------------------------------------------------------------------------
Mr. Takano....................        Aye   Mr. Bost........        Aye
Ms. Brownley..................        Aye   Ms. Radewagen...  ..........
Mr. Lamb......................        Aye   Mr. Bergman.....  ..........
Mr. Levin.....................        Aye   Mr. Banks.......        Nay
Mr. Pappas....................        Aye   Mr. Roy.........        Nay
Ms. Luria.....................        Aye   Mr. Murphy......        Aye
Mr. Mrvan.....................        Aye   Mr. Mann........        Nay
Mr. Sablan....................        Aye   Mr. Moore.......        Nay
Ms. Underwood.................        Aye   Ms. Mace........        Aye
Mr. Allred....................        Aye   Mr. Cawthorn....        Aye
Ms. Frankel...................        Aye   Mr. Nehls.......        Nay
Mr. Brown.....................        Aye   Mr. Rosendale...        Nay
Ms. Slotkin...................        Aye   Ms. Miller-Meeks        Aye
Mr. Trone.....................        Aye
Ms. Kaptur....................        Aye
Mr. Ruiz......................        Aye
Mr. Gallego...................        Aye
------------------------------------------------------------------------

                     Section-by-Section Description


Section 1--Short title

    This act may be cited as the ``VA Equal Employment 
Counselor Modernization Act.''

Section 2--Elimination of cap on full-time employees of the Department 
        of Veterans Affairs who provide equal employment opportunity 
        counseling

    Subsection (a) of the bill will remove the FTE limit by 
striking 39 U.S.C. Sec. 516 (g), which states: ``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.''
    Subsection (b) of the bill requires the Secretary of VA to 
submit a report within 60 days regarding the effect of the 
amendment in subsection (a).

               Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 2788 provided by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974:
    H.R. 2788 would remove the limit on the number of Equal 
Employment Opportunity (EEO) counselors employed by the 
Department of Veterans Affairs (VA). CBO estimates that VA 
would hire 40 additional EEO counselors. Using salary 
information from VA, CBO estimates those counselors would be 
paid an average of $131,000 annually. Accounting for gradual 
hiring, CBO estimates those counselors would cost $26 million 
over the 2021-2026 period; such spending would be subject to 
the availability of appropriated funds.
                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 13, 2021.
Hon. Mark Takano,
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. 2788, the VA Equal 
Employment Opportunity Counselor Modernization Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Logan Smith.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.



       
       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    
    
    Under current law, the Department of Veterans Affairs (VA) 
is prohibited from employing more than 40 counselors to provide 
Equal Employment Opportunity (EEO) counseling and dispute 
resolution services. H.R. 2788 would remove that limit.
    Businesses, government agencies, and other entities are 
prohibited from discriminating against job applicants or 
employees based on the person's race, color, religion, sex, 
national origin, age, disability or genetic information. EEO 
counselors at VA are responsible for reviewing complaints that 
may be related to such discrimination. Counselors support 
aggrieved parties and facilitate dispute resolution between 
affected parties, generally before formal complaints are filed 
with the Equal Employment Opportunity Commission, a federal 
agency charged with enforcing federal laws that prohibit 
employment discrimination.
    The current limit of 40 EEO counselors was set in 1997. 
Since then, VA's workforce has nearly doubled. As a result, CBO 
estimates that VA would hire 40 additional EEO counselors. 
Using salary information from VA, CBO estimates those 
counselors would be paid an average of $131,000 annually. 
Accounting for gradual hiring, CBO estimates those counselors 
would cost $26 million over the 2021-2026 period; such spending 
would be subject to the availability of appropriated funds.
    The costs of the legislation, detailed in Table 1, fall 
within budget function 700 (veterans' benefits and services).

               TABLE 1.--ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER H.R. 2788
----------------------------------------------------------------------------------------------------------------
                                                        By fiscal year, millions of dollars--
                                    ----------------------------------------------------------------------------
                                        2021       2022       2023       2024       2025       2026    2021-2026
----------------------------------------------------------------------------------------------------------------
EEO Counselors
    Estimated Authorization........          1          4          5          5          5          6         26
    Estimated Outlays..............          1          4          5          5          5          6         26
----------------------------------------------------------------------------------------------------------------
EEO = Equal Employment Opportunity

    The CBO staff contact for this estimate is Logan Smith. The 
estimate was reviewed by Leo Lex, Deputy Director of Budget 
Analysis.

                      Committee Oversight Findings

    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.

                   Constitutional Authority Statement

    Pursuant to Article I, section 8 of the United States 
Constitution, H.R. 2788 is authorized by Congress' power to 
``provide for the common Defense and general Welfare of the 
United States.''

                           Earmark Statement

    H.R. 2788 does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 2788 prepared by the Director of the 
Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act would be created by H.R. 
2788.

                           Performance Goals

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are to improve the Department of Veterans 
Affairs' ability to provide and effectively manage Equal 
Employment Opportunity related services to Department 
employees, former employees, and applicants for employment.

        Supplemental, Additional, Dissenting, and Minority Views

    There were no supplemental, additional, dissenting and 
minority views filed with this report.

                  Applicability to Legislative Branch

    The Committee finds that H.R. 2788 does not relate to the 
terms and condition of employment or access to public services 
or accommodations within the meaning of section 102(b)(3) of 
the Congressional Accountability Act.

              Statement on Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that no provision 
of H.R. 2788 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.

                          Ramseyer Submission


         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 italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 38, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--GENERAL PROVISIONS

           *       *       *       *       *       *       *


            CHAPTER 5--AUTHORITY AND DUTIES OF THE SECRETARY

SUBCHAPTER I--GENERAL AUTHORITIES

           *       *       *       *       *       *       *


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, when appropriate, impose 
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)(1)(A) Not later than 45 days after the end of each 
calendar quarter, the Assistant Secretary for Human Resources 
and Administration shall submit to the Committees on Veterans' 
Affairs of the Senate and House of Representatives a report 
summarizing the employment discrimination complaints filed 
against the individuals referred to in paragraph (2) during 
such quarter.
  (B) Subparagraph (A) shall apply in the case of complaints 
filed against individuals on the basis of such individuals' 
personal conduct and shall not apply in the case of complaints 
filed solely on the basis of such individuals' positions as 
officials of the Department.
  (2) Paragraph (1) applies to the following officers and 
employees of the Department:
          (A) The Secretary.
          (B) The Deputy Secretary of Veterans Affairs.
          (C) The Under Secretary for Health and the Under 
        Secretary for Benefits.
          (D) Each Assistant Secretary of Veterans Affairs and 
        each Deputy Assistant Secretary of Veterans Affairs.
          (E) The Under Secretary of Veterans Affairs for 
        Memorial Affairs.
          (F) The General Counsel of the Department.
          (G) The Chairman of the Board of Veterans' Appeals.
          (H) The Chairman of the Board of Contract Appeals of 
        the Department.
          (I) The director and the chief of staff of each 
        medical center of the Department.
          (J) The director of each Veterans Integrated Services 
        Network.
          (K) The director of each regional office of the 
        Department.
          (L) Each program director of the Central Office of 
        the Department.
  (3) Each report under this subsection--
          (A) may not disclose information which identifies the 
        individuals filing, or the individuals who are the 
        subject of, the complaints concerned or the facilities 
        at which the discrimination identified in such 
        complaints is alleged to have occurred;
          (B) shall summarize such complaints by type and by 
        equal employment opportunity field office area in which 
        filed; and
          (C) shall include copies of such complaints, with the 
        information described in subparagraph (A) redacted.
  (4) Not later than April 1 each year, the Assistant Secretary 
shall submit to the committees referred to in paragraph (1)(A) 
a report on the complaints covered by paragraph (1) during the 
preceding year, including the number of such complaints filed 
during that year and the status and resolution of the 
investigation of such complaints.
  (f) The Secretary shall ensure that an employee of the 
Department who seeks counseling relating to employment 
discrimination may elect to receive such counseling from an 
employee of the Department who carries out equal employment 
opportunity counseling functions on a full-time basis rather 
than from an employee of the Department who carries out such 
functions on a part-time basis.
  [(g) 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.]
  [(h)] (g) 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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