The Federal Workforce: Observations on Protections From
Discrimination and Reprisal for Whistleblowing (09-MAY-01,
GAO-01-715T).
Federal employees must be able to pursue the missions of their
organizations free from discrimination and retaliation for
reporting waste, fraud, and abuse. Despite antidiscrimination
laws designed to protect federal employees, some have experienced
or believed that they have experienced reprisals for
whistleblowing. The proposed law, the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2001, provides
additional protections for federal employees and provides
important data to decisionmakers. First, the act would require
agencies to report the number of discrimination and whistleblower
reprisal cases. Currently, because of the lack of data, the
federal government lacks a clear picture of the volume of
discrimination and whistleblowing reprisal cases involving
federal employees. Such data could be a starting point for agency
managers to understand the nature and scope of issues in the
workplace involving reprisals and discrimination. Second, the act
would provide that agencies and their leaders be held accountable
for providing fair and equitable workplaces. In addition,
individuals would be held accountable for their actions in cases
where discrimination has occurred. Finally, the act provides that
agencies notify employees of the rights and protections available
to them under the laws in writing. This provision reinforces
existing requirements that employees be notified of the rights
and remedies concerning discrimination and whistleblower
protection.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-01-715T
ACCNO: A00968
TITLE: The Federal Workforce: Observations on Protections From
Discrimination and Reprisal for Whistleblowing
DATE: 05/09/2001
SUBJECT: Dispute settlement
Employment discrimination
Federal employees
Proposed legislation
Whistleblowers
Judgment Fund
******************************************************************
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GAO-01-715T
Testimony Before the Committee on the Judiciary, House of Representatives
United States General Accounting Office
GAO For Release on Delivery Expected at 10 a. m. EDT Wednesday, May 9, 2001
THE FEDERAL WORKFORCE
Observations on Protections From Discrimination and Reprisal for
Whistleblowing
Statement of J. Christopher Mihm Director, Strategic Issues
GAO- 01- 715T
Page 1 GAO- 01- 715T
Mr. Chairman and Members of the Committee: I am pleased to have this
opportunity to provide information for your deliberations on H. R. 169, the
Notification and Federal Employee Antidiscrimination and Retaliation Act of
2001, commonly referred to as the NoFEAR Act.
In a high- performing workplace, federal employees must be able to pursue
the missions of their organizations free from discrimination and should not
fear or experience retaliation or reprisal for reporting- blowing the
whistle on- waste, fraud, and abuse. To help achieve such a workplace,
federal antidiscrimination laws protect these employees from discrimination
based on their race, color, sex, religion, national origin, age, or
disability, as well as retaliation for filing a complaint of discrimination.
1 In addition, the Civil Service Reform Act of 1978 articulates the merit
system principles for the fair and equitable treatment of the federal
workforce and defined personnel practices that are prohibited. Among the
prohibited personnel practices is reprisal for whistleblowing. Several other
laws also protect employees from reprisal by prohibiting agencies? taking or
threatening to take- or not to take- a personnel action because of an
employee?s whistleblowing activities.
Unfortunately, despite these protections, some federal employees have
experienced or believe that they have been subject to workplace
discrimination or reprisal for whistleblowing. Such experiences or
perceptions- and the complaints and lawsuits they spur- not only disrupt the
lives of the affected employees, they can also undermine the efficient and
effective delivery of government services to the public and discourage a
diverse, pluralistic, and accountable workforce.
With these thoughts in mind, I have three points to make that relate to the
principles underlying the proposed act.
Reporting. Because data are not readily available, there is no clear
picture of the number of complaints of workplace discrimination and reprisal
for whistleblowing at agencies or governmentwide and the outcome of these
cases. Data of this nature are important because they can be a starting
point for agency managers to understand the nature and scope of issues in
the workplace involving discrimination, reprisal, and
1 Applicants for federal employment are also covered under these laws.
Page 2 GAO- 01- 715T
other conflicts and problems, and can help in developing strategies for
dealing with those issues.
Accountability. Accountability is a cornerstone of results- oriented
management. Agencies and their leaders and managers should be accountable
for providing fair and equitable workplaces, free from discrimination and
reprisal. In addition, individuals need to be held accountable for their
actions in cases where discrimination or reprisal for whistleblowing has
occurred.
Notification. Finally, in order for the full benefit of laws protecting
the workforce to be realized, agencies need to take steps to make federal
employees sufficiently aware of their protections from discrimination and
reprisal for whistleblowing.
In making our observations today, and as agreed with the Committee, I will
draw upon our work examining discrimination and whistleblower issues in the
federal workplace and performance management principles embodied in the
Government Performance and Results Act, particularly in regard to human
capital.
The federal government lacks a clear picture of the volume of discrimination
and whistleblowing reprisal cases involving federal employees. The lack of a
complete accounting of cases is in part a byproduct of the complexity of the
redress system for federal employees and the different ways in which case
data are reported. The NoFEAR Act would require agencies to report the
number of discrimination and whistleblower reprisal cases.
Executive branch civil servants are afforded opportunities for redress of
complaints of discrimination or retaliation for whistleblowing at three
levels: first, within their employing agencies; next, at one of the
administrative bodies with sometimes overlapping jurisdictions that
investigate or adjudicate their complaints; and, finally, in the federal
courts. 2
Where discrimination is alleged, the Equal Employment Opportunity
Commission (EEOC) hears complaints employees file with their agencies
2 We have previously reported that the redress system for federal employees
has been criticized for being adversarial, inefficient, time- consuming, and
costly. See Federal Employee Redress: A System in Need of Reform (GAO/ T-
GGD- 96- 110, Apr. 23, 1996) and Federal Employee Redress: An Opportunity
for Reform (GAO/ T- GGD- 96- 42, Nov. 29, 1995). Reporting: No Clear
Picture of Complaint Activity
Page 3 GAO- 01- 715T
and reviews agencies? decisions on these complaints. 3 In a case in which an
employee alleges that discrimination was the motive for serious personnel
actions, such as dismissal or suspension for more than 14 days, the employee
can request a hearing before the Merit Systems Protection Board (MSPB).
MSPB?s decisions on such cases can then be reviewed by EEOC.
For federal employees who believe that they have been subject to
whistleblower reprisal, the Office of Special Counsel (OSC) will investigate
their complaints and seek corrective action when a complaint is valid. When
agencies fail to take corrective action, OSC or the employee can take the
case to MSPB for resolution. Alternatively, an employee can file a
whistleblower reprisal complaint directly with MSPB, if the personnel action
taken against the person is itself appealable to MSPB. In addition, under
certain environmental laws and the Energy Reorganization Act, employees can
ask the Department of Labor (DOL) and the Nuclear Regulatory Commission to
investigate their complaints.
Employees who belong to collective bargaining units represented by unions
can also file grievances over discrimination and reprisal allegations under
the terms of collective bargaining agreements. In those situations, the
employee must choose to seek relief either under the statutory procedure
discussed above or under the negotiated grievance procedure, but not both.
If an employee files a grievance alleging discrimination under the
negotiated grievance procedure, the Federal Labor Relations Authority (FLRA)
can review any resulting arbitrator?s decision. A grievant may appeal the
final decision of the agency, the arbitrator, or FLRA to EEOC.
A complainant dissatisfied with the outcome of his or her whistleblower
reprisal case can file an appeal to have the case reviewed by a federal
appeals court. 4 An employee with a discrimination complaint who is
dissatisfied with a decision by MSPB or EEOC, however, can file a lawsuit in
a federal district court and seek a de novo trial. 5
3 Discrimination complaints against federal agencies are processed in
accordance with regulations promulgated by EEOC. Complaints are filed with
and investigated by agencies with hearings conducted by EEOC administrative
judges. EEOC also hears appeals of agency and administrative judges?
decisions on cases.
4 In a whistleblower reprisal case decided by MSPB, an appeal can be filed
with the U. S. Court of Appeals for the Federal Circuit. For a case decided
by DOL, an appeal can be filed with the U. S. Court of Appeals for the
circuit in which the alleged reprisal occurred.
5 In a de novo trial, a matter is tried anew as if it had not been heard
before.
Page 4 GAO- 01- 715T
With reporting requirements and procedures varying among the administrative
agencies and the courts, data on the number of discrimination and
whistleblower reprisal cases are not readily available to form a clear and
reliable picture of overall case activity. However, available data do
provide some insights about caseloads and trends. These data and our prior
work show that most discrimination and whistleblower reprisal cases
involving federal employees are handled under EEOC, MSPB, and OSC processes,
with complaints filed under EEOC?s process by far accounting for the largest
volume of cases. In fiscal year 2000, federal employees filed 24,524
discrimination complaints against their agencies under EEOC?s process. In
fiscal year 2000, MSPB received 991 appeals of personnel actions that
alleged discrimination. MSPB also received 414 appeals alleging
whistleblower reprisal in fiscal year 2000, while OSC received 773
complaints of whistleblower reprisal. There are two caveats I need to offer
about these statistics. The first is that because of jurisdictional overlap
among the three agencies, the statistics cannot be added together to give a
total number of discrimination and whistleblower reprisal complaints. The
second caveat is that in our past work, we found some problems with the
reliability and accuracy of data reported by EEOC. 6
Notwithstanding these caveats, the available data also show that the last
decade saw an overall increase in the number of cases, particularly
discrimination complaints under EEOC?s jurisdiction. 7 The number of cases
under EEOC?s jurisdiction, which stood at 17,696 in fiscal year 1991, showed
a fairly steady upward trend, peaking at 28,947 in fiscal year 1997.
Although the number of new cases each year has declined since fiscal year
1997, the number of cases in fiscal year 2000- 24,524- is almost 40 percent
greater than in fiscal year 1991, despite a smaller federal workforce.
6 For a further discussion about the reliability and accuracy of data
reported by EEOC, see Equal Employment Opportunity: Data Shortcomings Hinder
Assessment of Conflicts in the Federal Workplace (GAO/ GGD- 99- 75, May 4,
1999). 7 In earlier reports, we discussed factors behind the increase in the
number of discrimination complaints in the forum under EEOC?s jurisdiction
and how rising caseloads have been accompanied by an increase in case
processing time. See Equal Employment Opportunity: Discrimination Complaint
Caseloads and Underlying Causes Require EEOC?s Sustained Attention (GAO/ T-
GGD- 00- 104, Mar. 29, 2000); Equal Employment Opportunity: Complaint
Caseloads Rising, With Effects of New Regulations on Future Trends Unclear
(GAO/ GGD- 99- 128, Aug. 16, 1999); and Equal Employment Opportunity: Rising
Trends in EEO Complaint Caseloads in the Federal Sector (GAO/ GGD- 98-
157BR, July 24, 1998).
Page 5 GAO- 01- 715T
Caseload data can be a starting point for agency managers to understand the
nature and scope of issues in the workplace involving discrimination,
reprisal, and other conflicts and problems, and can help in developing
strategies for dealing with these issues. However, caseload data can only be
a starting point because they obviously do not capture any discrimination or
reprisal that is not reported.
As I discussed above, most discrimination complaints are handled within the
process under EEOC?s jurisdiction. However, we have found in our past work
that EEOC does not collect data in a way needed by decisionmakers and
program managers to discern trends in workplace issues represented by
discrimination complaints, understand the issues underlying these
complaints, and plan corrective actions. 8 Although EEOC has initiatives
under way to deal with data shortcomings, relevant information is still
lacking on such matters as (1) the statutory basis (e. g., race, sex, or
disability discrimination) under which employees filed complaints and (2)
the kinds of issues, such as nonselection for promotion or harassment, that
were cited in the complaints. 9
The NoFEAR Act would also require agencies to report the status or
disposition of discrimination and whistleblower reprisal cases. The
available data show that most allegations of discrimination and reprisal for
whistleblowing are dismissed, withdrawn by the complainant, or closed
without a finding of discrimination. However, many other cases are settled.
Of the discrimination cases within EEOC?s jurisdiction, 5,794 (21.3 percent)
of the 27, 176 cases were closed through a settlement. At MSPB, 279 (28.5
percent) of the 980 appeals that alleged discrimination were settled. With
regard to the 440 whistleblower cases at MSPB, 93 (21 percent) were settled.
While settlements are made when evidence may point to discrimination or
reprisal, at other times an agency may make a business decision and settle
for a variety of reasons, including that pursuing a case may be too costly,
even if the agency believes it would have ultimately prevailed. Finally, in
some cases, discrimination or reprisal is found. Of the 27,176 cases within
the discrimination complaint process under EEOC?s jurisdiction that were
closed in fiscal year 2000, 325 (about 1 percent) contained a finding of
discrimination. At MSPB, of the 980 cases alleging discrimination,
discrimination was found in 4 (four- tenths of a
8 GAO/ GGD- 99- 75. 9 See GAO/ T- GGD- 00- 104 for a discussion of EEOC
initiatives to deal with data shortcomings.
Page 6 GAO- 01- 715T
percent). In 440 cases alleging whistleblower reprisal it reviewed, MSPB
found that a prohibited personnel practice occurred in 2 (five- tenths of a
percent) of the cases. At OSC, favorable actions were obtained in 47 of 671
(7 percent) whistleblower reprisal matters closed in fiscal year 2000. 10
It is important to note that agencies have responded to the rise in the
number of complaints and the costs associated with them by adopting
alternative means of dispute resolution (ADR). Using ADR processes, such as
mediation, agencies intervene in the early stages of conflicts in an attempt
to resolve or settle them before positions harden, workplace relationships
deteriorate, and resolution becomes more difficult and costly. A premise
behind a requirement EEOC put in place in 1999 that agencies make ADR
available was that the complaint system was burdened with many cases that
reflected basic workplace communications problems and not necessarily
discrimination. Some agencies, most notably the Postal Service, have
reported reductions in discrimination complaint caseloads through the use of
ADR. In fact the Postal Service, from fiscal year 1997 through fiscal year
2000, saw a 26 percent decline in the number of discrimination complaints
that the agency largely attributes to its mediation program. 11 Because ADR
prevents some disputes from rising to formal complaints, a reduction in the
number of formal complaints should not necessarily be looked at as a
reduction in workplace conflict, but it can indicate that an agency is more
effectively dealing with workplace conflict.
10 Favorable actions include actions taken directly to benefit the
complaining employee; actions taken to punish, by disciplinary or corrective
action, the supervisor involved in the personnel action; and systemic
action, such as training or educational programs, to prevent future
questionable personnel actions.
11 For a further discussion of ADR initiatives, see Alternative Dispute
Resolution: Employers? Experiences With ADR in the Workplace (GAO/ GGD- 97-
157, Aug. 12, 1997). Agency Movement Toward
Alternative Dispute Resolution
Page 7 GAO- 01- 715T
Meaningful data along the lines I discussed earlier are useful in helping to
measure an agency?s success in adhering to merit system principles, treating
its people in a fair and equitable way, and achieving a diverse and
inclusive workforce. We encourage such assessments of agencies? workplaces
and human capital systems to help them align their people policies to
support organizational performance goals. 12 In addition, data foster
transparency, which in turn provides an incentive to improve performance and
enhance the image of the agency in the eyes of both its employees and the
public.
Another possible means of promoting accountability might be to have
organizations bear more fully the costs of payments to complainants and
their lawyers made in resolving cases of discrimination and reprisal for
whistleblowing. Currently, federal agencies do not always bear the costs of
settlements or judgments in discrimination or reprisal complaints. Agencies
will pay these costs when a complaint is resolved by administrative
procedures, such as the discrimination complaint process. However, when a
lawsuit is filed, any subsequent monetary relief is generally paid by the
Judgment Fund. (One exception is the Postal Service, which is responsible
for settlement and judgment costs.) The Judgment Fund provides a permanent
indefinite appropriation to pay settlements and judgments against the
federal government. Congress created the Judgment Fund to avoid the need for
a specific congressional appropriation for settlement and judgment costs and
to allow for prompter payments. The NoFEAR Act would require that agencies
reimburse the Judgment Fund for payments made for discrimination and
whistleblower reprisal cases.
Table 1 below shows payments made by agencies for discrimination complaint
cases processed under administrative procedures within EEOC?s jurisdiction
and payments from the Judgment Fund for employment discrimination lawsuits
(these were the only readily available data). In addition to attorney fees
and expenses, payments made to complainants include back pay, compensatory
damages, and lump sum payments. As the table shows, agencies made payments
totaling about $26 million in fiscal year 2000 for discrimination complaint
settlements
12 We have prepared Human Capital: A Self- Assessment Checklist for Agency
Leaders (GAO/ OGC- 00- 14G, Sept. 2000) to help make this assessment.
Accountability: A
Cornerstone of Performance Management
Page 8 GAO- 01- 715T
and judgments. At the same time, agencies were relieved of paying almost $43
million in cases because of the existence of the Judgment Fund. 13
Table 1: Payments Made in Discrimination Cases by Agencies and the Judgment
Fund, Fiscal Years 1998- 2000 (Dollars in Millions)
FY 1998 FY 1999 FY 2000
Agencies $24.4 $26.3 $26.1 Judgment Fund 37.1 41.8 42.7
Total $61.5 $68.1 $68.8
Source: EEOC and Treasury Department Judgment Fund Data.
The availability of the Judgment Fund to pay settlement and judgment costs
has brought about debate with regard to agency accountability. On one hand,
it could be argued that the Judgment Fund provides a safety net to help
ensure that agency operations are not disrupted in the event of a large
financial settlement or judgment. It can also be argued, however, that the
fund discourages accountability by being a disincentive to agencies to
resolve matters promptly in the administrative processes; by not pursuing
resolution, an agency could shift the cost of resolution from its budget to
the Judgment Fund and escape the scrutiny that would accompany a request for
a supplemental appropriation. 14 Congress dealt with a somewhat similar
situation when it enacted the Contract Disputes Act 15 in 1978, which
requires agencies to either reimburse the Judgment Fund for judgments
awarded in contract claims from available appropriations or to obtain an
additional appropriation for such purposes. This provision was intended to
counter the incentive for an agency to avoid settling and prolong litigation
in order to have the final judgment against the agency occur in court. In
reconciling these viewpoints on financial accountability, Congress will need
to balance accountability with the needs of the public to receive expected
services.
13 For additional discussion about payments made by agencies and from the
Judgment Fund for discrimination cases, see Discrimination Complaints:
Monetary Awards in Federal EEO Cases (GAO/ GGD- 95- 28FS, Jan. 3, 1995).
14 In most lawsuits, the Department of Justice is responsible for handling
the litigation and safeguarding the Judgment Fund by approving all
settlements. 15 41 U. S. C. sect. 612( c).
Page 9 GAO- 01- 715T
Certainly, just as it is important for agencies to be held accountable in
cases where discrimination or reprisal for whistleblowing is found, so must
individuals be held accountable for engaging in such misconduct. The NoFEAR
Act would require agencies to report the number of employees disciplined for
discrimination, retaliation, or harassment. 16 Published statistical data
can be important for agencies to send a message to their employees that
individuals will be held accountable for their actions in cases involving
discrimination, retaliation, or harassment.
Although we have not done any formal work in this area, we know of two
agencies- the Department of Agriculture and the Internal Revenue Service
(IRS)- that systematically review outcomes of discrimination cases to
determine if any individual should be disciplined. Since January 1998,
Agriculture has been reviewing cases in which discrimination was found or in
which there were settlement agreements to determine if an employee should be
disciplined for discrimination or misconduct related to civil rights. An
Agriculture official said that a formal policy on accountability and
discipline in civil rights- related cases was currently pending approval.
Since July 1998, IRS has been reviewing cases in which discrimination was
found or in which there were settlement agreements to determine if the
discrimination was intentional. Where an employee has been found to have
discriminated against another employee of IRS (or a taxpayer or a taxpayer?s
representative), the IRS Restructuring and Reform Act of 1998 provides that
the individual be terminated for his or her actions. Only the IRS
Commissioner has the authority to mitigate termination to a lesser penalty.
I would also add that besides traditional forms of discipline- such as
termination, suspension, or letter of reprimand- employees can be held
accountable for their behavior through an agency?s performance management
system. For example, an employee whose behavior does not rise to the level
of discrimination but otherwise demonstrates insensitivity or poor
communication skills can and should have that fact reflected in his or her
performance appraisal.
16 EEOC?s regulations (29 C. F. R. 1614. 102( a)( 6)) require that agencies
take appropriate action against employees who engage in discriminatory
conduct. Individual Accountability
Page 10 GAO- 01- 715T
The NoFEAR Act provides that agencies notify employees of the rights and
protections available to them under the antidiscrimination and whistleblower
statutes in writing and post this information on their Internet sites. This
provision reinforces existing requirements that employees be notified of
rights and remedies concerning discrimination and whistleblower protection.
17
There has been a concern that federal employees were not sufficiently aware
of their protections, particularly about protections from reprisal for
whistleblowing, and without sufficient knowledge of these protections, may
not come forward to report misconduct or inefficiencies for fear of
reprisal. We first pointed this out in a report issued in 1992. 18 Now,
almost a decade later, OSC has identified ?widespread ignorance? in the
federal workforce concerning OSC and the laws it enforces, even though
agencies are to inform their employees of these protections. According to
OSC?s fiscal year 2000 Performance Report, responses to an OSC survey
indicated that few federal agencies have comprehensive education programs
for their employees and mangers.
To help ensure economical, efficient, and effective delivery of services for
the benefit of the American people, allegations of discrimination and
reprisal for whistleblowing in the federal workplace must be dealt with in a
fair, equitable, and timely manner. Doing so requires, first, reliable and
complete reporting of data as a starting point to understand the nature and
scope of issues in the workplace involving discrimination, reprisal, and
other conflicts and problems, and to help develop strategies for dealing
with these issues. Second, agencies and individuals must be accountable for
their actions. Third, the workforce must be aware of laws prohibiting
discrimination and whistleblower reprisal to deter this kind of conduct but
also so that they know what course of action they can take when misconduct
has occurred.
17 The 1994 amendments to the Whistleblower Protection Act require federal
agencies to ensure that their employees are informed of the rights and
remedies concerning whistleblower protection. In addition, EEOC?s
regulations (29 C. F. R. 1614. 102( b)( 5)) require agencies to make written
materials available to all employees and applicants informing them of the
variety of equal employment opportunity program and administrative and
judicial remedies available to them.
18 Whistleblower Protection: Survey of Federal Employees on Misconduct and
Protection From Reprisal (GAO/ GGD- 92- 120FS, July 14, 1992). Notification:
Making
Employees Aware of Their Protections
Concluding Observations
Page 11 GAO- 01- 715T
Mr. Chairman, this concludes my prepared statement. I would be pleased to
answer any questions you or other Members of the Committee may have at this
time.
For further information regarding this statement, please contact J.
Christopher Mihm, Director, Strategic Issues, at (202) 512- 6806.
Individuals making key contributions to this testimony included Stephen
Altman, Robert J. Heitzman, Anthony P. Lofaro, and Michael R. Volpe. Contact
and
Acknowledgments
(450037)
*** End of document. ***