Notification and Federal Employee Antidiscrimination Retaliation Act of
2002
[DOCID: f:publ174.107] [[Page
565]]
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT
OF 2002
[[Page 116 STAT. 566]]
Public Law 107-174
107th Congress
An Act to require that Federal
agencies be accountable for violations of antidiscrimination and whistleblower
protection laws; to require that each Federal agency post quarterly on
its public Web site, certain statistical data relating to Federal sector
equal employment opportunity complaints filed with such agency; and for
other purposes.
<<NOTE: May 15, 2002 - [H.R. 169]>>
Be it enacted by the Senate
and House of Representatives of the United States of America in Congress
assembled,
<<NOTE: Notification and Federal Employee Antidiscrimination and
Retaliation 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 and Federal Employee Antidiscrimination
and Retaliation Act of 2002''.
(b) Table of Contents.--The
table of contents of this Act is as follows:
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
of remedies and certain Department of Justice costs.
TITLE III--EQUAL EMPLOYMENT
OPPORTUNITY COMPLAINT DATA DISCLOSURE
Sec. 301.
Data to be posted by employing Federal agencies.
Sec. 302. Data to be posted by the Equal Employment Opportunity
Commission.
Sec. 303. Rules.
TITLE I--GENERAL PROVISIONS
SEC. 101.
FINDINGS.
Congress finds that--
(1) Federal agencies cannot be run effectively if those agencies practice
or tolerate discrimination;
(2) Congress has heard testimony from individuals, including representatives
of the National Association for the Advancement of Colored People and
the American Federation of Government Employees, that point to chronic
problems of discrimination and retaliation against Federal employees;
[[Page 116 STAT. 567]]
(3) in August 2000, a jury found that the Environmental Protection Agency
had discriminated against a senior social scientist, and awarded that
scientist $600,000;
(4) in October 2000, an Occupational Safety and Health Administration
investigation found that the Environmental Protection Agency had retaliated
against a senior scientist for disagreeing with that agency on a matter
of science and for helping Congress to carry out its oversight responsibilities;
(5) there have been several recent class action suits based on discrimination
brought against Federal agencies, including the Federal Bureau of Investigation,
the Bureau of Alcohol, Tobacco, and Firearms, the Drug Enforcement Administration,
the Immigration and Naturalization Service, the United States Marshals
Service, the Department of Agriculture, the United States Information
Agency, and the Social Security Administration;
(6) notifying Federal employees of their rights under discrimination
and whistleblower laws should increase Federal agency compliance with
the law;
(7) requiring annual reports to Congress on the number and severity
of discrimination and whistleblower cases brought against each Federal
agency should enable Congress to improve its oversight over compliance
by agencies with the law; and
(8) requiring Federal agencies to pay for any discrimination or whistleblower
judgment, award, or settlement should improve agency accountability
with respect to discrimination and whistleblower laws.
SEC. 102.
SENSE OF CONGRESS.
It is the sense of Congress
that--
(1) Federal agencies should not retaliate for court judgments or settlements
relating to discrimination and whistleblower laws by targeting the claimant
or other employees with reductions in compensation, benefits, or workforce
to pay for such judgments or settlements;
(2) the mission of the Federal agency and the employment security of
employees who are blameless in a whistleblower incident should not be
compromised;
(3) Federal agencies should not use a reduction in force or furloughs
as means of funding a reimbursement under this Act;
(4)(A) accountability in the enforcement of employee rights is not furthered
by terminating-- (i) the employment of other employees; or (ii) the
benefits to which those employees are entitled through statute or contract;
and (B) this Act is not intended to authorize those actions;
(5)(A) nor is accountability furthered if Federal agencies react to
the increased accountability under this Act by taking unfounded disciplinary
actions against managers or by violating the procedural rights of managers
who have been accused of discrimination; and (B) Federal agencies should
ensure that managers have adequate training in the management of a diverse
workforce and in dispute resolution and other essential communication
skills; and [[Page 116 STAT. 568]]
(6)(A) Federal agencies are expected to reimburse the General Fund of
the Treasury within a reasonable time under this Act; and (B) a Federal
agency, particularly if the amount of reimbursement under this Act is
large relative to annual appropriations for that agency, may need to
extend reimbursement over several years in order to avoid-- (i) reductions
in force; (ii) furloughs; (iii) other reductions in compensation or
benefits for the workforce of the agency; or (iv) an adverse effect
on the mission of the agency.
SEC. 103.
DEFINITIONS.
For purposes of this Act--
(1) the term ``applicant for Federal employment'' means an individual
applying for employment in or under a Federal agency;
(2) the term ``basis of alleged discrimination'' shall have the meaning
given such term under section 303;
(3) the term ``Federal agency'' means an Executive agency (as defined
in section 105 of title 5, United States Code), the United States Postal
Service, or the Postal Rate Commission;
(4) the term ``Federal employee'' means an individual employed in or
under a Federal agency;
(5) the term ``former Federal employee'' means an individual formerly
employed in or under a Federal agency; and
(6) the term ``issue of alleged discrimination'' shall have the meaning
given such term under section 303.
SEC. 104.
EFFECTIVE DATE.
This Act and the amendments
made by this Act shall take effect on the 1st day of the 1st fiscal
year beginning more than 180 days after the date of the enactment of
this Act.
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
SEC. 201.
REIMBURSEMENT REQUIREMENT.
(a) Applicability.--This
section applies with respect to any payment made in accordance with
section 2414, 2517, 2672, or 2677 of title 28, United States Code, and
under section 1304 of title 31, United States Code (relating to judgments,
awards, and compromise settlements) to any Federal employee, former
Federal employee, or applicant for Federal employment, in connection
with any proceeding brought by or on behalf of such employee, former
employee, or applicant under-- (1) any provision of law cited in subsection
(c); or (2) any other provision of law which prohibits any form of discrimination,
as identified under rules issued under section 204.
(b) Requirement.--An amount equal to the amount of each payment described
in subsection (a) shall be reimbursed to the fund described in section
1304 of title 31, United States Code, out of any appropriation, fund,
or other account (excluding any part of such appropriation, of such
fund, or of such account available [[Page 116 STAT. 569]] for the enforcement
of any Federal law) available for operating expenses of the Federal
agency to which the discriminatory conduct involved is attributable
as determined under section 204.
(c) Scope.--The provisions of law cited in this subsection are the following:
(1) Section 2302(b) of title 5, United States Code, as applied to discriminatory
conduct described in paragraphs (1) and (8), or described in paragraph
(9) of such section as applied to discriminatory conduct described in
paragraphs (1) and (8), of such section. (2) The provisions of law specified
in section 2302(d) of title 5, United States Code.
SEC. 202.
NOTIFICATION REQUIREMENT.
(a) In General.--Written
notification of the rights and protections available to Federal employees,
former Federal employees, and applicants for Federal employment (as
the case may be) in connection with the respective provisions of law
covered by paragraphs (1) and (2) of section 201(a) shall be provided
to such employees, former employees, and applicants-- (1) in accordance
with otherwise applicable provisions of law; or (2) if, or to the extent
that, no such notification would otherwise be required, in such time,
form, and manner as shall under section 204 be required in order to
carry out the requirements of this section.
(b) Posting on the Internet.--Any written notification under this section
shall include, but not be limited to, the posting of the information
required under paragraph (1) or (2) (as applicable) of subsection (a)
on the Internet site of the Federal agency involved.
(c) Employee Training.--Each Federal agency shall provide to the employees
of such agency training regarding the rights and remedies applicable
to such employees under the laws cited in section 201(c).
SEC. 203.
REPORTING REQUIREMENT. <<NOTE: Deadline.>>
(a) Annual Report.--Subject
to subsection (b), not later than 180 days after the end of each fiscal
year, each Federal agency shall submit to the Speaker of the House of
Representatives, the President pro tempore of the Senate, the Committee
on Governmental Affairs of the Senate, the Committee on Government Reform
of the House of Representatives, each committee of Congress with jurisdiction
relating to the agency, the Equal Employment Opportunity Commission,
and the Attorney General an annual report which shall include, with
respect to the fiscal year--
(1) the number of cases
arising under each of the respective provisions 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 under
section 201 in connection with each of such cases, separately identifying
the aggregate amount of such reimbursements attributable to the 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 of law referred
to in paragraph (1);
(5) the final year-end data posted under section 301(c)(1)(B) for
such fiscal year (without regard to section 301(c)(2));
(6) a detailed description of-- (A) the policy implemented by that
agency relating to appropriate disciplinary actions against a Federal
employee who-- (i) discriminated against any individual in violation
of any of the laws cited under section 201(a) (1) or (2); or (ii)
committed another prohibited personnel practice that was revealed
in the investigation of a complaint alleging a violation of any of
the laws cited under section 201(a) (1) or (2); and (B) with respect
to each of such laws, the number of employees who are disciplined
in accordance with such policy and the specific nature of the disciplinary
action taken;
(7) an analysis of the information described under paragraphs (1)
through (6) (in conjunction with data provided to the Equal Employment
Opportunity Commission in compliance with part 1614 of title 29 of
the Code 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 civil rights programs of the agency; and
(8) any adjustment (to the extent the adjustment can be ascertained
in the budget of the agency) to comply with the requirements under
section 201.
(b) First Report.--The 1st report submitted under subsection (a) shall
include for each item under subsection (a) data for each of the 5 immediately
preceding fiscal years (or, if data are not available for all 5 fiscal
years, for each of those 5 fiscal years for which data are available).
SEC. 204.
RULES AND GUIDELINES.
(a) Issuance <<NOTE:
President.>> of Rules and Guidelines.--The President (or the designee
of the President) shall issue-- (1) rules to carry out this title; (2)
rules to require that a comprehensive study be conducted in the executive
branch to determine the best practices relating to the appropriate disciplinary
actions against Federal employees who commit the actions described under
clauses (i) and (ii) of section 203(a)(6)(A); and (3) based on the results
of such study, advisory guidelines incorporating best practices that
Federal agencies may follow to take such actions against such employees.
(b) Agency Notification <<NOTE: Deadline.>> Regarding Implementation
of Guidelines.--Not later than 30 days after the issuance of guidelines
under subsection (a), each Federal agency shall submit to the Speaker
of the House of Representatives, the President pro tempore of the Senate,
the Equal Employment Opportunity [[Page 116 STAT. 571]] Commission,
and the Attorney General a written statement specifying in detail--
(1) whether such agency has adopted and will fully follow such guidelines;
(2) if such agency has not adopted such guidelines; the reasons for
the failure to adopt such guidelines; and (3) if such agency will not
fully follow such guidelines, the reasons for the decision not to fully
follow such guidelines and an explanation of the extent to which such
agency will not follow such guidelines.
SEC. 205.
CLARIFICATION OF REMEDIES.
Consistent with Federal
law, nothing in this title shall prevent any Federal employee, former
Federal employee, or applicant for Federal employment from exercising
any right otherwise available under the laws of the United States.
SEC. 206.
<<NOTE: Deadlines.>> STUDIES BY GENERAL ACCOUNTING OFFICE
ON EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT OF CERTAIN
DEPARTMENT OF JUSTICE COSTS.
(a) Study on Exhaustion
of Administrative Remedies.--
(1) Study.-- (A) In general.--Not
later than 180 days after the date of enactment of this Act, the General
Accounting Office shall conduct a study relating to the effects of
eliminating the requirement that Federal employees aggrieved by violations
of any of the laws specified under section 201(c) exhaust administrative
remedies before filing complaints with the Equal Employment Opportunity
Commission. (B) Contents.--The study shall include a detailed summary
of matters investigated, information collected, and conclusions formulated
that lead to determinations of how the elimination of such requirement
will-- (i) expedite handling of allegations of such violations within
Federal agencies and will streamline the complaint-filing process;
(ii) affect the workload of the Commission; (iii) affect established
alternative dispute resolution procedures in such agencies; and (iv)
affect any other matters determined by the General Accounting Office
to be appropriate for consideration.
(2) Report.--Not later
than 90 days after completion of the study required by paragraph (1),
the General Accounting Office shall submit to the Speaker of the House
of Representatives, the President pro tempore of the Senate, the Equal
Employment Opportunity Commission, and the Attorney General a report
containing the information required to be included in such study.
(b) Study on Ascertainment
of Certain Costs of the Department of Justice in Defending Discrimination
and Whistleblower Cases.--
(1) Study.--Not later
than 180 days after the date of enactment of this Act, the General
Accounting Office shall conduct a study of the methods that could
be used for, and the extent of any administrative burden that would
be imposed on, the Department of Justice to ascertain the personnel
and [[Page 116 STAT. 572]] administrative costs incurred in defending
in each case arising from a proceeding identified under section 201(a)
(1) and (2).
(2) Report.--Not later than 90 days after completion of the study
required by paragraph (1), the General Accounting Office shall submit
to the Speaker of the House of Representatives and the President pro
tempore of the Senate a report containing the information required
to be included in the study.
(c) Studies on Statutory
Effects on Agency Operations.--
(1) In general.--Not later
than 18 months after the date of enactment of this Act, the General
Accounting Office shall conduct-- (A) a study on the effects of section
201 on the operations of Federal agencies; and (B) a study on the
effects of section 13 of the Contract Disputes Act of 1978 (41 U.S.C.
612) on the operations of Federal agencies.
(2) Contents.--Each study under paragraph (1) shall include, with
respect to the applicable
statutes of the study-- (A) a summary of the number of cases in which
a payment was made in accordance with section 2414, 2517, 2672, or
2677 of title 28, United States Code, and under section 1304 of title
31, United States Code; (B) a summary of the length of time Federal
agencies used to complete reimbursements of payments described under
subparagraph (A); and (C) conclusions that assist in making determinations
on how the reimbursements of payments described under subparagraph
(A) will affect-- (i) the operations of Federal 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 to be appropriate for
consideration.
(3) Reports.--Not later than 90 days after the completion of each
study under paragraph (1), the General Accounting Office shall submit
a report on each study, respectively, to the Speaker of the House
of Representatives, the President pro tempore of the Senate, the Committee
on Governmental Affairs of the Senate, the Committee on Government
Reform of the House of Representatives, and the Attorney General.
(d) Study on Administrative and Personnel Costs Incurred by the Department
of the Treasury.--
(1) In general.--Not later
than 1 year after the date of enactment of this Act, the General Accounting
Office shall conduct a study on the extent of any administrative and
personnel costs incurred by the Department of the Treasury to account
for payments made in accordance with section 2414, 2517, 2672, or
2677 of title 28, United States Code, and under section 1304 of title
31, United States Code, as a result of-- (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 study
under paragraph (1), the General Accounting Office shall submit a
report on the study to the Speaker of the [[Page 116 STAT. 573]] House
of Representatives, the President pro tempore of the Senate, the Committee
on Governmental Affairs of the Senate, the Committee on Government
Reform of the House of Representatives, and the Attorney General.
TITLE III--EQUAL EMPLOYMENT
OPPORTUNITY COMPLAINT DATA DISCLOSURE
SEC. 301.
<<NOTE: Internet. Public information.>> DATA TO BE POSTED
BY EMPLOYING FEDERAL AGENCIES.
(a) In General.--Each Federal
agency shall post on its public Web site, in the time, form, and manner
prescribed under section 303 (in conformance with the requirements of
this section), summary statistical data relating to equal employment
opportunity complaints filed with such agency by employees or former
employees of, or applicants for employment with, such agency.
(b) Content Requirements.--The data posted by a Federal agency under
this section shall include, for the then current fiscal year, the following:
(1) The number of complaints
filed with such agency in such fiscal year.
(2) The number of individuals filing those complaints (including as
the agent of a class).
(3) The number of individuals who filed 2 or more of those complaints.
(4) The number of complaints (described in paragraph (1)) in which
each of the various bases of alleged discrimination is alleged.
(5) The number of complaints (described in paragraph (1)) in which
each of the various issues of alleged discrimination is alleged.
(6) The average length of time, for each step of the process, it is
taking such agency to process complaints (taking into account all
complaints pending for any length of time in such fiscal year, whether
first filed in such fiscal year or earlier). Average times under this
paragraph shall be posted-- (A) for all such complaints, (B) for all
such complaints in which a hearing before an administrative judge
of the Equal Employment Opportunity Commission is not requested, and
(C) for all such complaints in which a hearing before an administrative
judge of the Equal Employment Opportunity Commission is requested.
(7) The total number of final agency actions rendered in such fiscal
year involving a finding of discrimination and, of that number-- (A)
the number and percentage that were rendered without a hearing before
an administrative judge of the Equal Employment Opportunity Commission,
and (B) the number and percentage that were rendered after a hearing
before an administrative judge of the Equal Employment Opportunity
Commission.
(8) Of the total number of final agency actions rendered in such fiscal
year involving a finding of discrimination-- [[Page 116 STAT. 574]]
(A) the number and percentage involving a finding of discrimination
based on each of the respective bases of alleged discrimination, and
(B) of the number specified under subparagraph (A) for each of the
respective bases of alleged discrimination-- (i) the number and percentage
that were rendered without a hearing before an administrative judge
of the Equal Employment Opportunity Commission, and (ii) the number
and percentage that were rendered after a hearing before an administrative
judge of the Equal Employment Opportunity Commission.
(9) Of the total number of final agency actions rendered in such fiscal
year involving a finding of discrimination-- (A) the number and percentage
involving a finding of discrimination in connection with each of the
respective issues of alleged discrimination, and (B) of the number
specified under subparagraph (A) for each of the respective issues
of alleged discrimination-- (i) the number and percentage that were
rendered without a hearing before an administrative judge of the Equal
Employment Opportunity Commission, and (ii) the number and percentage
that were rendered after a hearing before an administrative judge
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 number
that were first filed before the start of the then current fiscal
year. (B) With respect to those pending complaints that were first
filed before the start of the then current fiscal year-- (i) the number
of individuals who filed those complaints, and (ii) the number of
those complaints which are at the various steps of the complaint process.
(C) Of the total number of complaints pending in such fiscal year
(as described in the parenthetical matter in paragraph (6)), the total
number of complaints with respect to which the agency violated the
requirements of section 1614.106(e)(2) of title 29 of the Code of
Federal Regulations (as in effect on July 1, 2000, and amended from
time to time) by failing to conduct within 180 days of the filing
of such complaints an impartial and appropriate investigation of such
complaints.
(c) Timing and Other Requirements.--
(1) Current year data.--Data posted under this section for the then
current fiscal year shall include both-- (A) interim year-to-date data,
updated quarterly, and (B) final year-end data. (2) Data for prior years.--The
data posted by a Federal agency under this section for a fiscal year
(both interim and final) shall include, for each item under subsection
(b), such agency's corresponding year-end data for each of the 5 immediately
preceding fiscal years (or, if not available for all 5 fiscal years,
for however many of those 5 fiscal years for which data are available).
[[Page 116 STAT. 575]]
SEC. 302.
<<NOTE: Internet. Public information.>> DATA TO BE POSTED
BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
(a) In General.--The Equal
Employment Opportunity Commission shall post on its public Web site,
in the time, form, and manner prescribed under section 303 for purposes
of this section, summary statistical data relating to-- (1) hearings
requested before an administrative judge of the Commission on complaints
described in section 301, and (2) appeals filed with the Commission
from final agency actions on complaints 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 in
paragraphs (1) through (10) of section 301(b), and shall be subject
to the same timing and other requirements as set forth in section 301(c).
(c) Coordination.--The data required under this section shall be in
addition to the data the Commission is required to post under section
301 as an employing Federal agency.
SEC. 303.
RULES.
The Equal Employment Opportunity
Commission shall issue any rules necessary to carry out this title.
Approved May 15, 2002. LEGISLATIVE HISTORY--H.R. 169:
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HOUSE REPORTS: No. 107-101, Pt. 1 (Comm. on the Judiciary). SENATE REPORTS:
No. 107-143 (Comm. on Governmental Affairs). CONGRESSIONAL RECORD, Vol.
147 (2001): Oct. 2, considered and passed House. Apr. 23, considered
and passed Senate, amended. Apr. 30, House concurred in Senate amendments.
Source: http://www.gpoaccess.gov/
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