The Federal Workforce: Answers to Questions Related to the
Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2001 (26-JUN-01, GAO-01-844R).
This report responds to congressional questions regarding GAO's
hearing on the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2001. Specifically,
this report discusses the (1) importance of disciplining managers
and employees who engage in discriminatory practices, (2)
settlement process, and (3) U.S. Postal Service's
antidiscrimination programs.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-01-844R
ACCNO: A01343
TITLE: The Federal Workforce: Answers to Questions Related to
the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2001
DATE: 06/26/2001
SUBJECT: Employment discrimination
Federal employees
Fair employment programs
Dispute settlement
Postal service employees
USPS Resolve Employment Disputes, Reach
Equitable Solutions Swiftly Program
Judgment Fund
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GAO-01-844R
GAO- 01- 844R Responses to Questions on the NoFEAR Act
United States General Accounting Office Washington, DC 20548
June 26, 2001 The Honorable F. James Sensenbrenner, Jr. Chairman, Committee
on the Judiciary House of Representatives
Subject: The Federal Workforce: Answers to Questions Related to the
Notification and Federal Employee Antidiscrimination and Retaliation Act of
2001
Dear Mr. Chairman: This letter responds to your request for additional
information following the Committee?s May 9, 2001, hearing on the
Notification and Federal Employee Antidiscrimination and Retaliation
(NoFEAR) Act of 2001, at which I testified. 1 Because our responses to your
questions are based primarily on our previous work and the knowledge we have
gained in doing this work, we did not seek agency comments on a draft of
this letter. Your questions and our responses follow.
1. Please describe what kind of message an agency sends to its employees
when its managers and employees who discriminate are not disciplined.
Under regulations promulgated by the Equal Employment Opportunity Commission
(EEOC) governing the discrimination complaint process for federal employees,
agencies are to take appropriate disciplinary action against employees who
engage in discriminatory practices. 2 Not taking action- or the appearance
that action is not taken- can send a message that the agency is indifferent
to unlawful discrimination or, worse, tolerant of such behavior. We believe
that transparency is important with regard to reporting actions taken in
cases in which discrimination is found, lest the agency send an unintended
message that it is not committed to treating its workforce fairly and
holding individuals accountable for their actions. Therefore, in addition to
an unambiguous policy of zero tolerance, an agency should have clearly
defined and transparent policies and procedures for identifying and
determining the culpability of individuals involved in discrimination cases.
In other words, employees should be
1 The Federal Workforce: Observations on Protections From Discrimination and
Reprisal for Whistleblowing (GAO- 01- 715T, May 9, 2001). 2 29 C. F. R.
1614.102( a)( 6).
GAO- 01- 844R Responses to Questions on the NoFEAR Act Page 2 fully aware of
what conduct is not allowed, the consequences for misconduct, and
how a determination of misconduct will be made.
2. Under the current system, federal agencies must pay out of their own
budgets if they settle in the administrative process. If the agencies fight
the case through the courts, however, the agencies do not have to pay for
any settlement or court decision. Instead, as you know, the money comes out
of the general fund.
a. Under this current system, would you agree that there is a financial
incentive to prolong the case regardless of the merits of the government?s
position? b. Do you believe that the current system is beneficial or
detrimental to
federal employees? c. Do you believe that the current system discourages
federal employees
from coming forward with concerns?
As I described in my testimony, federal agencies bear the cost of judgments
and settlements when a case is resolved by administrative procedures, such
as the procedures for discrimination complaints under the jurisdiction of
EEOC. However, when a lawsuit is filed, any subsequent relief (except in the
case of the Postal Service) is generally paid by the Judgment Fund. The
Judgment Fund, created to avoid the need for a specific congressional
appropriation for settlement and judgment costs, provides a permanent
indefinite appropriation for paying settlements and judgments against the
federal government. In this way, 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 and that monetary awards are paid in a
timely fashion. The availability of the Judgment Fund as a source for paying
settlement and judgment costs also gives agencies the opportunity to shift
financial accountability for paying these costs from their own budgets to
the Judgment Fund. However, we have no information regarding the extent to
which agencies intentionally have or have not avoided resolving
discrimination complaints through administrative procedures to shift the
burden of payment to the Judgment Fund. Similarly, we have no information
regarding the extent to which the current system is beneficial or
detrimental to federal employees or the extent to which it discourages them
from coming forward with their concerns.
3. At the hearing, you testified that the Postal Service was not negatively
impacted by the fact that the Postal Service is required by law to pay
discrimination judgments and cannot dip into the general treasury?s Judgment
Fund.
a. How has the Postal Service responded to the responsibility of paying for
such judgments? b. Has the number of Postal Service discrimination
complaints increased?
GAO- 01- 844R Responses to Questions on the NoFEAR Act Page 3 Prior to the
Postal Reorganization Act of 1970, the Post Office Department (as the
Postal Service was then called) had a permanent appropriation of postal
revenues to pay judgments. With the passage of the Reorganization Act, the
law changed to provide that judgments against the Postal Service be paid out
of any funds available to the Service. Unlike other federal agencies, the
Postal Service does not have the safety net that the Judgment Fund provides
for paying the costs of settlements and judgments. This appears consistent
with a goal of the Reorganization Act to bring private- sector business
practices to the Service. Although we have not formally studied this issue,
we are not aware of any situation in which Postal Service operations were
disrupted as a result of paying the cost of a settlement of judgment.
Like other federal agencies, the Postal Service faced an increase in the
number of discrimination complaints filed by its workers under the complaint
process within EEOC?s jurisdiction. 3 After rising during most of the last
decade, however, the number of postal workers? discrimination complaints has
declined recently, as table 1 shows.
Table 1: Discrimination Complaints Filed by Postal Workers, Fiscal Years
1991-2000 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
7,772 8,469 8,858 10,221 13,322 13,252 14,326 14,397 12,027 10,553 Source:
EEOC.
The decline in the number of discrimination complaints in fiscal years 1999
and 2000 coincides with the Postal Service?s agencywide deployment of its
alternative dispute resolution (ADR) program in fiscal year 1999. The
program called REDRESS (Resolve Employment Disputes, Reach Equitable
Solutions Swiftly), which uses mediation as the exclusive ADR technique,
began with pilot sites in 1994 and expanded to other sites because of the
high number of discrimination complaints and the sense that many complaints
are rooted in personality conflicts.
We are sending copies of this letter to the Ranking Minority Member,
Committee on the Judiciary; the Chairman, Subcommittee on Civil Service and
Agency Organization, House Committee on Government Reform; the Ranking
Minority Member, Subcommittee on Civil Service and Agency Organization; the
Chairman, Subcommittee on Proliferation, International Security, and Federal
Services, Senate Committee on Government Affairs; and the Ranking Minority
Member, Subcommittee on Proliferation, International Security, and Federal
Services.
3 Equal Employment Opportunity: Complaint Caseloads Rising, With Effects of
New Regulations Unclear (GGD/ GAO- 99- 128, Aug. 16, 1999).
GAO- 01- 844R Responses to Questions on the NoFEAR Act Page 4 If you have
any questions concerning this letter, please contact me or Anthony Lofaro
at (202) 512- 6806. Sincerely yours,
J. Christopher Mihm Director, Strategic Issues
(450053)
*** End of document. ***