[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\
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\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).
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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.
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\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).
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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.
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\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).
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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:
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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 ``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.
* * * * * * *