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Notification and Federal Employee Antidiscrimination Retaliation Act of 2002

[DOCID: f:publ174.107] [[Page 565]]
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATIONACT OF 2002
[[Page 116 STAT. 566]]
Public Law 107-174
107th Congress
 

An Act to require that Federal agencies be accountable forviolations of antidiscrimination and whistleblower protection laws; torequire that each Federal agency post quarterly on its public Web site,certain statistical data relating to Federal sector equal employmentopportunity complaints filed with such agency; and for otherpurposes.
<<NOTE: May 15, 2002 - [H.R. 169]>>

Be it enacted by the Senate and House of Representatives of theUnited States of America in Congress assembled,
<<NOTE: Notification and Federal Employee Antidiscrimination andRetaliation Act of 2002.>>

 


SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
<<NOTE: 5 USC 2301 note.>>

(a) Short Title.--This Act may be cited as the "Notification andFederal Employee Antidiscrimination and Retaliation Act of 2002".

(b) Table of Contents.--The table of contents of this Act is asfollows:

 


 

Sec. 1. Short title; table of contents.

TITLE I--GENERAL PROVISIONS

Sec. 101. Findings.
Sec. 102. Sense of Congress.
Sec. 103. Definitions.
Sec. 104. Effective date.

TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

Sec. 201. Reimbursement requirement.
Sec. 202. Notification requirement.
Sec. 203. Reporting requirement.
Sec. 204. Rules and guidelines.
Sec. 205. Clarification of remedies.
Sec. 206. Studies by General Accounting Office on exhaustion ofremedies and certain Department of Justice costs.

TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATADISCLOSURE

Sec. 301. Data to be posted by employing Federal agencies.
Sec. 302. Data to be posted by the Equal Employment OpportunityCommission.
Sec. 303. Rules.


TITLE I--GENERAL PROVISIONS

SEC. 101. FINDINGS.

Congress finds that--

(1) Federal agencies cannot be run effectively if those agenciespractice or tolerate discrimination;

(2) Congress has heard testimony from individuals, includingrepresentatives of the National Association for the Advancement ofColored People and the American Federation of Government Employees,that point to chronic problems of discrimination and retaliationagainst Federal employees; [[Page 116 STAT. 567]]

(3) in August 2000, a jury found that the Environmental ProtectionAgency had discriminated against a senior social scientist, and awardedthat scientist $600,000;

(4) in October 2000, an Occupational Safety and Health Administrationinvestigation found that the Environmental Protection Agency hadretaliated against a senior scientist for disagreeing with that agencyon a matter of science and for helping Congress to carry out itsoversight responsibilities;

(5) there have been several recent class action suits based ondiscrimination brought against Federal agencies, including the FederalBureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms,the Drug Enforcement Administration, the Immigration and NaturalizationService, the United States Marshals Service, the Department ofAgriculture, the United States Information Agency, and the SocialSecurity Administration;

(6) notifying Federal employees of their rights under discriminationand whistleblower laws should increase Federal agency compliance withthe law;

(7) requiring annual reports to Congress on the number and severity ofdiscrimination and whistleblower cases brought against each Federalagency should enable Congress to improve its oversight over complianceby agencies with the law; and

(8) requiring Federal agencies to pay for any discrimination orwhistleblower judgment, award, or settlement should improve agencyaccountability with respect to discrimination and whistleblowerlaws.

SEC. 102. SENSE OF CONGRESS.

It is the sense of Congress that--

(1) Federal agencies should not retaliate for court judgments orsettlements relating to discrimination and whistleblower laws bytargeting the claimant or other employees with reductions incompensation, benefits, or workforce to pay for such judgments orsettlements;

(2) the mission of the Federal agency and the employment security ofemployees who are blameless in a whistleblower incident should not becompromised;

(3) Federal agencies should not use a reduction in force or furloughsas means of funding a reimbursement under this Act;

(4)(A) accountability in the enforcement of employee rights is notfurthered by terminating-- (i) the employment of other employees; or(ii) the benefits to which those employees are entitled through statuteor contract; and (B) this Act is not intended to authorize thoseactions;

(5)(A) nor is accountability furthered if Federal agencies react to theincreased accountability under this Act by taking unfoundeddisciplinary actions against managers or by violating the proceduralrights of managers who have been accused of discrimination; and (B)Federal agencies should ensure that managers have adequate training inthe management of a diverse workforce and in dispute resolution andother essential communication skills; and [[Page 116 STAT. 568]]

(6)(A) Federal agencies are expected to reimburse the General Fund ofthe Treasury within a reasonable time under this Act; and (B) a Federalagency, particularly if the amount of reimbursement under this Act islarge relative to annual appropriations for that agency, may need toextend reimbursement over several years in order to avoid-- (i)reductions in force; (ii) furloughs; (iii) other reductions incompensation or benefits for the workforce of the agency; or (iv) anadverse effect on the mission of the agency.

SEC. 103. DEFINITIONS.

For purposes of this Act--

(1) the term "applicant for Federal employment" means an individualapplying for employment in or under a Federal agency;

(2) the term "basis of alleged discrimination" shall have the meaninggiven such term under section 303;

(3) the term "Federal agency" means an Executive agency (as defined insection 105 of title 5, United States Code), the United States PostalService, or the Postal Rate Commission;

(4) the term "Federal employee" means an individual employed in orunder a Federal agency;

(5) the term "former Federal employee" means an individual formerlyemployed in or under a Federal agency; and

(6) the term "issue of alleged discrimination" shall have the meaninggiven such term under section 303.

SEC. 104. EFFECTIVE DATE.

This Act and the amendments made by this Act shall take effect onthe 1st day of the 1st fiscal year beginning more than 180 days afterthe date of the enactment of this Act.

TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

SEC. 201. REIMBURSEMENTREQUIREMENT.

(a) Applicability.--This section applies with respect to any paymentmade in accordance with section 2414, 2517, 2672, or 2677 of title 28,United States Code, and under section 1304 of title 31, United StatesCode (relating to judgments, awards, and compromise settlements) to anyFederal employee, former Federal employee, or applicant for Federalemployment, in connection with any proceeding brought by or on behalfof such employee, former employee, or applicant under-- (1) anyprovision of law cited in subsection (c); or (2) any other provision oflaw which prohibits any form of discrimination, as identified underrules issued under section 204.

(b) Requirement.--An amount equal to the amount of each paymentdescribed in subsection (a) shall be reimbursed to the fund describedin section 1304 of title 31, United States Code, out of anyappropriation, fund, or other account (excluding any part of suchappropriation, of such fund, or of such account available [[Page 116STAT. 569]] for the enforcement of any Federal law) available foroperating expenses of the Federal agency to which the discriminatoryconduct involved is attributable as determined under section 204.

(c) Scope.--The provisions of law cited in this subsection are thefollowing: (1) Section 2302(b) of title 5, United States Code, asapplied to discriminatory conduct described in paragraphs (1) and (8),or described in paragraph (9) of such section as applied todiscriminatory conduct described in paragraphs (1) and (8), of suchsection. (2) The provisions of law specified in section 2302(d) oftitle 5, United States Code.

SEC. 202. NOTIFICATION REQUIREMENT.

(a) In General.--Written notification of the rights and protectionsavailable to Federal employees, former Federal employees, andapplicants for Federal employment (as the case may be) in connectionwith the respective provisions of law covered by paragraphs (1) and (2)of section 201(a) shall be provided to such employees, formeremployees, and applicants-- (1) in accordance with otherwise applicableprovisions of law; or (2) if, or to the extent that, no suchnotification would otherwise be required, in such time, form, andmanner as shall under section 204 be required in order to carry out therequirements of this section.

(b) Posting on the Internet.--Any written notification under thissection shall include, but not be limited to, the posting of theinformation required under paragraph (1) or (2) (as applicable) ofsubsection (a) on the Internet site of the Federal agencyinvolved.

(c) Employee Training.--Each Federal agency shall provide to theemployees of such agency training regarding the rights and remediesapplicable to such employees under the laws cited in section201(c).

SEC. 203. REPORTING REQUIREMENT.<<NOTE: Deadline.>>

(a) Annual Report.--Subject to subsection (b), not later than 180days after the end of each fiscal year, each Federal agency shallsubmit to the Speaker of the House of Representatives, the Presidentpro tempore of the Senate, the Committee on Governmental Affairs of theSenate, the Committee on Government Reform of the House ofRepresentatives, each committee of Congress with jurisdiction relatingto the agency, the Equal Employment Opportunity Commission, and theAttorney General an annual report which shall include, with respect tothe fiscal year--

(1) the number of cases arising under each of the respectiveprovisions of law covered by paragraphs (1) and (2) of section 201(a)in which discrimination on the part of such agency was alleged;

(2) the status or disposition of cases described in paragraph(1);

(3) the amount of money required to be reimbursed by such agency undersection 201 in connection with each of such cases, separatelyidentifying the aggregate amount of such reimbursements attributable tothe payment of attorneys' fees, if any; [[Page 116 STAT. 570]]

(4) the number of employees disciplined for discrimination,retaliation, harassment, or any other infraction of any provision oflaw referred to in paragraph (1);

(5) the final year-end data posted under section 301(c)(1)(B) for suchfiscal year (without regard to section 301(c)(2));

(6) a detailed description of-- (A) the policy implemented by thatagency relating to appropriate disciplinary actions against a Federalemployee who-- (i) discriminated against any individual in violation ofany of the laws cited under section 201(a) (1) or (2); or (ii)committed another prohibited personnel practice that was revealed inthe investigation of a complaint alleging a violation of any of thelaws cited under section 201(a) (1) or (2); and (B) with respect toeach of such laws, the number of employees who are disciplined inaccordance with such policy and the specific nature of the disciplinaryaction taken;

(7) an analysis of the information described under paragraphs (1)through (6) (in conjunction with data provided to the Equal EmploymentOpportunity Commission in compliance with part 1614 of title 29 of theCode of Federal Regulations) including-- (A) an examination of trends;(B) causal analysis; (C) practical knowledge gained through experience;and (D) any actions planned or taken to improve complaint or civilrights programs of the agency; and

(8) any adjustment (to the extent the adjustment can be ascertained inthe budget of the agency) to comply with the requirements under section201.

(b) First Report.--The 1st report submitted under subsection (a)shall include for each item under subsection (a) data for each of the 5immediately preceding fiscal years (or, if data are not available forall 5 fiscal years, for each of those 5 fiscal years for which data areavailable).

SEC. 204. RULES AND GUIDELINES.

(a) Issuance <<NOTE: President.>> of Rules andGuidelines.--The President (or the designee of the President) shallissue-- (1) rules to carry out this title; (2) rules to require that acomprehensive study be conducted in the executive branch to determinethe best practices relating to the appropriate disciplinary actionsagainst Federal employees who commit the actions described underclauses (i) and (ii) of section 203(a)(6)(A); and (3) based on theresults of such study, advisory guidelines incorporating best practicesthat Federal agencies may follow to take such actions against suchemployees.

(b) Agency Notification <<NOTE: Deadline.>> RegardingImplementation of Guidelines.--Not later than 30 days after theissuance of guidelines under subsection (a), each Federal agency shallsubmit to the Speaker of the House of Representatives, the Presidentpro tempore of the Senate, the Equal Employment Opportunity [[Page 116STAT. 571]] Commission, and the Attorney General a written statementspecifying in detail-- (1) whether such agency has adopted and willfully follow such guidelines; (2) if such agency has not adopted suchguidelines; the reasons for the failure to adopt such guidelines; and(3) if such agency will not fully follow such guidelines, the reasonsfor the decision not to fully follow such guidelines and an explanationof the extent to which such agency will not follow such guidelines.

SEC. 205. CLARIFICATION OFREMEDIES.

Consistent with Federal law, nothing in this title shall prevent anyFederal employee, former Federal employee, or applicant for Federalemployment from exercising any right otherwise available under the lawsof the United States.

SEC. 206. <<NOTE:Deadlines.>> STUDIES BY GENERAL ACCOUNTING OFFICE ON EXHAUSTIONOF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT OF CERTAIN DEPARTMENTOF JUSTICE COSTS.

(a) Study on Exhaustion of Administrative Remedies.--

(1) Study.-- (A) In general.--Not later than 180 days after the dateof enactment of this Act, the General Accounting Office shall conduct astudy relating to the effects of eliminating the requirement thatFederal employees aggrieved by violations of any of the laws specifiedunder section 201(c) exhaust administrative remedies before filingcomplaints with the Equal Employment Opportunity Commission. (B)Contents.--The study shall include a detailed summary of mattersinvestigated, information collected, and conclusions formulated thatlead to determinations of how the elimination of such requirementwill-- (i) expedite handling of allegations of such violations withinFederal agencies and will streamline the complaint-filing process; (ii)affect the workload of the Commission; (iii) affect establishedalternative dispute resolution procedures in such agencies; and (iv)affect any other matters determined by the General Accounting Office tobe appropriate for consideration.

(2) Report.--Not later than 90 days after completion of the studyrequired by paragraph (1), the General Accounting Office shall submitto the Speaker of the House of Representatives, the President protempore of the Senate, the Equal Employment Opportunity Commission, andthe Attorney General a report containing the information required to beincluded in such study.

(b) Study on Ascertainment of Certain Costs of the Department ofJustice in Defending Discrimination and Whistleblower Cases.--

(1) Study.--Not later than 180 days after the date of enactment ofthis Act, the General Accounting Office shall conduct a study of themethods that could be used for, and the extent of any administrativeburden that would be imposed on, the Department of Justice to ascertainthe personnel and [[Page 116 STAT. 572]] administrative costs incurredin defending in each case arising from a proceeding identified undersection 201(a) (1) and (2).

(2) Report.--Not later than 90 days after completion of the studyrequired by paragraph (1), the General Accounting Office shall submitto the Speaker of the House of Representatives and the President protempore of the Senate a report containing the information required tobe included in the study.

(c) Studies on Statutory Effects on Agency Operations.--

(1) In general.--Not later than 18 months after the date ofenactment of this Act, the General Accounting Office shall conduct--(A) a study on the effects of section 201 on the operations of Federalagencies; and (B) a study on the effects of section 13 of the ContractDisputes Act of 1978 (41 U.S.C. 612) on the operations of Federalagencies.

(2) Contents.--Each study under paragraph (1) shall include, withrespect to the applicable statutes of the study-- (A) a summary of thenumber of cases in which a payment was made in accordance with section2414, 2517, 2672, or 2677 of title 28, United States Code, and undersection 1304 of title 31, United States Code; (B) a summary of thelength of time Federal agencies used to complete reimbursements ofpayments described under subparagraph (A); and (C) conclusions thatassist in making determinations on how the reimbursements of paymentsdescribed under subparagraph (A) will affect-- (i) the operations ofFederal agencies; (ii) funds appropriated on an annual basis; (iii)employee relations and other human capital matters; (iv) settlements;and (v) any other matter determined by the General Accounting Office tobe appropriate for consideration.

(3) Reports.--Not later than 90 days after the completion of each studyunder paragraph (1), the General Accounting Office shall submit areport on each study, respectively, to the Speaker of the House ofRepresentatives, the President pro tempore of the Senate, the Committeeon Governmental Affairs of the Senate, the Committee on GovernmentReform of the House of Representatives, and the Attorney General.

(d) Study on Administrative and Personnel Costs Incurred by theDepartment of the Treasury.--

(1) In general.--Not later than 1 year after the date of enactmentof this Act, the General Accounting Office shall conduct a study on theextent of any administrative and personnel costs incurred by theDepartment of the Treasury to account for payments made in accordancewith section 2414, 2517, 2672, or 2677 of title 28, United States Code,and under section 1304 of title 31, United States Code, as a resultof-- (A) this Act; and (B) the Contracts Dispute Act of 1978 (41 U.S.C.601 note; Public Law 95-563).

(2) Report.--Not later than 90 days after the completion of the studyunder paragraph (1), the General Accounting Office shall submit areport on the study to the Speaker of the [[Page 116 STAT. 573]] Houseof Representatives, the President pro tempore of the Senate, theCommittee on Governmental Affairs of the Senate, the Committee onGovernment Reform of the House of Representatives, and the AttorneyGeneral.

TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATADISCLOSURE

SEC. 301. <<NOTE: Internet. Publicinformation.>> DATA TO BE POSTED BY EMPLOYING FEDERALAGENCIES.

(a) In General.--Each Federal agency shall post on its public Website, in the time, form, and manner prescribed under section 303 (inconformance with the requirements of this section), summary statisticaldata relating to equal employment opportunity complaints filed withsuch agency by employees or former employees of, or applicants foremployment with, such agency.

(b) Content Requirements.--The data posted by a Federal agency underthis section shall include, for the then current fiscal year, thefollowing:

(1) The number of complaints filed with such agency in such fiscalyear.

(2) The number of individuals filing those complaints (including as theagent of a class).

(3) The number of individuals who filed 2 or more of thosecomplaints.

(4) The number of complaints (described in paragraph (1)) in which eachof the various bases of alleged discrimination is alleged.

(5) The number of complaints (described in paragraph (1)) in which eachof the various issues of alleged discrimination is alleged.

(6) The average length of time, for each step of the process, it istaking such agency to process complaints (taking into account allcomplaints pending for any length of time in such fiscal year, whetherfirst filed in such fiscal year or earlier). Average times under thisparagraph shall be posted-- (A) for all such complaints, (B) for allsuch complaints in which a hearing before an administrative judge ofthe Equal Employment Opportunity Commission is not requested, and (C)for all such complaints in which a hearing before an administrativejudge of the Equal Employment Opportunity Commission isrequested.

(7) The total number of final agency actions rendered in such fiscalyear involving a finding of discrimination and, of that number-- (A)the number and percentage that were rendered without a hearing beforean administrative judge of the Equal Employment Opportunity Commission,and (B) the number and percentage that were rendered after a hearingbefore an administrative judge of the Equal Employment OpportunityCommission.

(8) Of the total number of final agency actions rendered in such fiscalyear involving a finding of discrimination-- [[Page 116 STAT. 574]] (A)the number and percentage involving a finding of discrimination basedon each of the respective bases of alleged discrimination, and (B) ofthe number specified under subparagraph (A) for each of the respectivebases of alleged discrimination-- (i) the number and percentage thatwere rendered without a hearing before an administrative judge of theEqual Employment Opportunity Commission, and (ii) the number andpercentage that were rendered after a hearing before an administrativejudge of the Equal Employment Opportunity Commission.

(9) Of the total number of final agency actions rendered in such fiscalyear involving a finding of discrimination-- (A) the number andpercentage involving a finding of discrimination in connection witheach of the respective issues of alleged discrimination, and (B) of thenumber specified under subparagraph (A) for each of the respectiveissues of alleged discrimination-- (i) the number and percentage thatwere rendered without a hearing before an administrative judge of theEqual Employment Opportunity Commission, and (ii) the number andpercentage that were rendered after a hearing before an administrativejudge of the Equal Employment Opportunity Commission.

(10)(A) Of the total number of complaints pending in such fiscal year(as described in the parenthetical matter in paragraph (6)), the numberthat were first filed before the start of the then current fiscal year.(B) With respect to those pending complaints that were first filedbefore the start of the then current fiscal year-- (i) the number ofindividuals who filed those complaints, and (ii) the number of thosecomplaints which are at the various steps of the complaint process. (C)Of the total number of complaints pending in such fiscal year (asdescribed in the parenthetical matter in paragraph (6)), the totalnumber of complaints with respect to which the agency violated therequirements of section 1614.106(e)(2) of title 29 of the Code ofFederal Regulations (as in effect on July 1, 2000, and amended fromtime to time) by failing to conduct within 180 days of the filing ofsuch complaints an impartial and appropriate investigation of suchcomplaints.

(c) Timing and Other Requirements.-- (1) Current year data.--Dataposted under this section for the then current fiscal year shallinclude both-- (A) interim year-to-date data, updated quarterly, and(B) final year-end data. (2) Data for prior years.--The data posted bya Federal agency under this section for a fiscal year (both interim andfinal) shall include, for each item under subsection (b), such agency'scorresponding year-end data for each of the 5 immediately precedingfiscal years (or, if not available for all 5 fiscal years, for howevermany of those 5 fiscal years for which data are available). [[Page 116STAT. 575]]

SEC. 302. <<NOTE: Internet. Publicinformation.>> DATA TO BE POSTED BY THE EQUAL EMPLOYMENTOPPORTUNITY COMMISSION.

(a) In General.--The Equal Employment Opportunity Commission shallpost on its public Web site, in the time, form, and manner prescribedunder section 303 for purposes of this section, summary statisticaldata relating to-- (1) hearings requested before an administrativejudge of the Commission on complaints described in section 301, and (2)appeals filed with the Commission from final agency actions oncomplaints described in section 301.

(b) Specific Requirements.--The data posted under this section shall,with respect to the hearings and appeals described in subsection (a),include summary statistical data corresponding to that described inparagraphs (1) through (10) of section 301(b), and shall be subject tothe same timing and other requirements as set forth in section301(c).

(c) Coordination.--The data required under this section shall be inaddition to the data the Commission is required to post under section301 as an employing Federal agency.

SEC. 303. RULES.

The Equal Employment Opportunity Commission shall issue any rulesnecessary to carry out this title. Approved May 15, 2002. LEGISLATIVEHISTORY--H.R. 169:
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HOUSE REPORTS: No. 107-101, Pt. 1 (Comm. on the Judiciary). SENATEREPORTS: No. 107-143 (Comm. on Governmental Affairs). CONGRESSIONALRECORD, Vol. 147 (2001): Oct. 2, considered and passed House. Apr. 23,considered and passed Senate, amended. Apr. 30, House concurred inSenate amendments.

Source: http://www.gpoaccess.gov/