[House Report 117-35]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 117-35
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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.
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\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:
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Majority Members Vote Minority Members Vote
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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
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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
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By fiscal year, millions of dollars--
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2021 2022 2023 2024 2025 2026 2021-2026
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EEO Counselors
Estimated Authorization........ 1 4 5 5 5 6 26
Estimated Outlays.............. 1 4 5 5 5 6 26
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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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