[House Report 117-36]
[From the U.S. Government Publishing Office]


117th Congress   }                                            {    Report
                          HOUSE OF REPRESENTATIVES
 1st Session     }                                            {    117-36

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



 
     IMPROVING VA ACCOUNTABILITY TO PREVENT SEXUAL HARASSMENT AND 
                       DISCRIMINATION ACT OF 2021

                                _______
                                

  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. 2704]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 2704) to amend title 38, United States Code, to 
improve the equal employment opportunity functions of 
Department of Veterans Affairs, and for other purposes, 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........................     5
Committee Oversight Findings.....................................     6
Constitutional Authority Statement...............................     7
Earmark Statement................................................     7
Federal Mandates Statement.......................................     7
Advisory Committee Statement.....................................     7
Performance Goals................................................     7
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

    This bill would require the Department of Veterans Affairs 
(VA) to improve its ability to track and address sexual 
harassment and discrimination allegations and cases. It would 
realign several Equal Employment Opportunity (EEO) related 
positions by prohibiting the VA EEO Director from also serving 
in a position with responsibility over personnel functions. The 
bill would also require that the EEO Director report to the 
Deputy Secretary. EEO program managers would be realigned so 
that each EEO program manager, at VA facilities, reports to the 
head of the Office of Resolution Management.
    The bill also requires that any manager of the Department 
who receives a report of sexual or other harassment, or 
employment discrimination, report that complaint to the Office 
of Resolution Management within two business days. Additional 
training on identifying and addressing sexual, and other 
harassment, and employment discrimination will be made 
mandatory. The bill also requires the Secretary to regularly 
review harassment and discrimination policies, as well as issue 
a final directive and handbook for the Department's Harassment 
Prevention Program.
    VA is also required to provide to Congress semiannual 
reports on progress the Secretary has made in carrying out the 
legislation.

                  Background and Need for Legislation

    This bill addresses issues of harassment and discrimination 
at VA. The Subcommittee on Oversight and Investigations 
discussed these issues at a hearing on July 22, 2020, Safety 
for All: Ending Sexual Harassment in the Department of Veterans 
Affairs.\1\ The hearing testimony included findings from a 
Government Accountability Office (GAO) report released in June 
of that year.\2\
---------------------------------------------------------------------------
    \1\Hearing by the House Veterans' Affairs Committee, Safety for 
All: Ending Sexual Harassment In The Department Of Veterans Affairs, 
July 22, 2020, https://veterans.house.gov/events/hearings/safety-for-
all-ending-sexual-harassment-in-the-department-of-veterans-affairs 
(accessed on May 12, 2021).
    \2\U.S. Government Accountability Office, Sexual Harassment: 
Inconsistent and Incomplete Policies and Information Hinder VA's 
Efforts to Protect Employees, June 15, 2020, https://www.gao.gov/
products/gao-20-387 (accessed on May 12, 2021).
---------------------------------------------------------------------------
    Women VA employees experience high levels of sexual and 
gender harassment. A 2016 Merit System Protection Board survey 
found that VA had the second-highest rate of sexual harassment 
of women employees in the executive branch, at 26 percent.\3\ 
Only the Department of the Navy had a higher rate (27 percent). 
Further, unlike the Department of the Navy, which is heavily 
male-dominated (72 percent), the VA has a workforce that is 60 
percent women, and also the third-highest rate of sexual 
harassment of male employees across all of the federal 
government. Therefore, VA has one of the highest rates of 
sexual harassment in the executive branch.
---------------------------------------------------------------------------
    \3\U.S. Merit System Protection Board, Office of Policy and 
Evaluation. Update on Sexual Harassment in the Federal Workplace, March 
2018, https://www.mspb.gov/MSPBSEARCH/
viewdocs.aspx?docnumber=1500639&version=1506232&application=ACROBAT 
(accessed on May 12, 2021).
---------------------------------------------------------------------------
    In January 2019, VA released an empirical study that found 
that at least one in four women veterans experienced sexual or 
gender-based harassment at VA facilities.\4\ These experiences 
negatively impact women's health care experiences and caused 
women veterans to delay or miss care. The study focused on 
women veterans within a sampling of 12 VA facilities. An 
average of 25 percent of women veterans in the study 
experienced harassment at the selected VA facilities, with 
facilities ranging from 10 to over 40 percent of subjects 
reporting harassment.
---------------------------------------------------------------------------
    \4\Ruth Klap, et al, Prevalence of Stranger Harassment of Women 
Veterans at Veterans Affairs Medical Centers and Impacts on Delayed and 
Missed Care, January 25, 2019, https://pubmed.ncbi.nlm.nih.gov/
30686577/ (accessed on May 12, 2021).
---------------------------------------------------------------------------
    GAO testified about the need to prevent conflicts of 
interest in the EEO process at VA. GAO also testified for the 
need to realign the EEO Director and EEO Program Managers in 
order for them to report to higher-level officials and avoid 
facility-level or personnel conflicts. Additionally, GAO stated 
the need to require VA managers to report all complaints of 
harassment or discrimination to Office of Resolution Management 
to facilitate oversight for those complaints.

                                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. 2704. 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. 2704 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. 2704. The Committee 
ordered that H.R. 2704 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 ``Improving VA Accountability 
to Prevent Sexual Harassment and Discrimination Act of 2021.''

Section 2.--Improvements to equal employment opportunity functions of 
        Department of Veterans Affairs

    Alignment of Equal Employment Opportunity (EEO) Director--
The Secretary will ensure that the Department official who 
serves as the EEO Director of the Department reports directly 
to the Deputy Secretary and does not serve in another position 
that has responsibilities for personnel functions or other 
functions that may conflict with the role of EEO Director, 
within 90 days of enactment.
    Alignment of EEO program managers--The Secretary will 
ensure that each EEO program manager at the facility level will 
report to the head of the Office of Resolution Management with 
respect to the EEO functions of their positions, by December 
31, 2021.
    Reporting harassment and employment discrimination 
complaints--The Secretary will ensure that the employment 
discrimination complaint resolution system requires that any 
manager who receives a sexual or other harassment, or 
employment discrimination complaint reports the complaint to 
the Office of Resolution Management immediately. If immediate 
reporting is impracticable, the complaint must be reported 
within two business days following the date on which the 
manager received the complaint.
    Training--The Secretary will provide each Department 
employee a mandatory annual training on identifying and 
addressing sexual and other harassment or employment 
discrimination, including processes under the Harassment 
Prevention Program, by September 30, 2021. Employees hired on 
or after such date must receive this training within 60 days of 
being hired.
    Harassment and employment discrimination policies and 
directives--By no later than September 30, 2021, and on a 
regular basis thereafter, the Secretary will review Department 
policies related to sexual and other harassment and employment 
discrimination to ensure that such policies are complete and in 
accordance with the sexual and other harassment and employment 
discrimination policies established by the Office of Resolution 
Management.
    The Secretary will issue a final directive and handbook for 
the Department's Harassment Prevention Program, within 180 days 
of enactment.
    Reports--Within 180 days of enactment, and semiannually 
thereafter for one year, the Secretary will issue a report to 
the House and Senate Committees on Veterans' Affairs on the 
progress made in carrying out this section and 38 U.S.C. 
Sec. 516, as amended, including with respect to reporting 
sexual and other harassment and employment discrimination 
complaints pursuant to subsection (a)(2).

               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. 2704 provided by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974:
    H.R. 2704 would change the way the Department of Veterans 
Affairs (VA) reviews and processes complaints of sexual 
harassment. According to the Government Accountability Office, 
VA already is implementing many of the bill's requirements and 
most should be completed by the end of fiscal year 2021. 
Because VA already is implementing most of the bill's 
requirements, any incremental changes required would increase 
costs by insignificant amounts, CBO estimates. 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. 2704, the 
Improving VA Accountability to Prevent Sexual Harassment and 
Discrimination Act of 2021.
    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.

    
    

    H.R. 2704 would change the way the Department of Veterans 
Affairs (VA) reviews and processes complaints of sexual 
harassment. Complaints of all forms of workplace harassment and 
discrimination are processed and investigated by VA's Equal 
Employment Opportunity (EEO) office.
    The bill would stipulate that VA's EEO Director cannot also 
oversee other personnel functions, and it would change the 
official to whom EEO program managers at VA's subagencies 
report. In addition, VA managers who receive any complaint 
related to sexual harassment, other harassment, or employment 
discrimination would be required to report such cases within 
two business days. The bill also would require VA to provide 
annual training on identifying and addressing all forms of 
workplace harassment and employment discrimination. Finally, VA 
would be directed to review its policies relating to harassment 
and employment discrimination each year and report to the 
Congress on progress toward meeting the bill's requirements.
    According to the Government Accountability Office, VA 
already is implementing many of the bill's requirements and 
most should be completed by the end of fiscal year 2021.
    Because VA already is implementing most of the bill's 
requirements, any incremental changes required would increase 
costs by insignificant amounts, CBO estimates. Such spending 
would be subject to the availability of appropriated funds.
    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. 2704, as amended is authorized by Congress' 
power to ``provide for the common Defense and general Welfare 
of the United States.''

                           Earmark Statement

    H.R. 2704 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. 2704 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. 
2704.

                           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's ability to 
track and address sexual harassment and discrimination 
allegations and cases.

        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. 2704 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. 2704 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] (1) 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.
  (2) The Secretary shall ensure that the employment 
discrimination complaint resolution system established under 
paragraph (1) requires that any manager of the Department who 
receives a sexual or other harassment or employment 
discrimination complaint reports such complaint to the Office 
of Resolution Management, or such successor office, 
immediately, or if such immediate reporting is impracticable, 
not later than two business days after the date on which the 
manager receives the complaint.
  (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, in 
        accordance with subsection (h)(2), 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. 
Beginning not later than September 30, 2021, the Secretary 
shall provide to each employee of the Department mandatory 
annual training on identifying and addressing sexual and other 
harassment and employment discrimination, including with 
respect to processes under the Harassment Prevention Program of 
the Department, or such successor program. An employee of the 
Department who is hired on or after such date shall receive the 
first such mandatory annual training not later than 60 days 
after being hired.
  (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] the Secretary 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) [The provisions] (1) The provisions  of this section 
shall be implemented in a manner consistent with procedures 
applicable under regulations prescribed by the Equal Employment 
Opportunity Commission.
  (2) Beginning not later than 90 days after the date of the 
enactment of this paragraph, in carrying out paragraph (1), the 
Secretary shall ensure that the official of the Department who 
serves as the Equal Employment Opportunity Director of the 
Department--
          (A) reports directly to the Deputy Secretary with 
        respect to the functions under this section; and
          (B) does not also serve in a position that has 
        responsibility over personnel functions of the 
        Department or other functions that conflict with the 
        functions under this section.
  (i) In accordance with subsection (b), not later than 
December 31, 2021, the Secretary of Veterans Affairs shall 
ensure that each Equal Employment Opportunity program manager 
of the Department at the facility level reports to the head of 
the Office of Resolution Management, or such successor office 
established pursuant to subsection (a), with respect to the 
equal employment functions of the program manager.

           *       *       *       *       *       *       *