# Presentation: 026021

## The NoFEAR Act

- Notification and Federal
- Employee Antidiscrimination and
- Retaliation Act (NoFEAR Act)
**Mandatory Training Module**
- DHHS/OS/ASAM
- Office of Diversity Management & EEO
- U.S. Department of Health and Human Services

## Introduction

- This training will inform you of the NoFEAR Act and will meet your new Employee or Biennial NoFear Training Requirement
- This session should take about 20 – 30 minutes to complete.
- At the conclusion of this training, you should:
- Understand the basic provisions of the NoFEAR Act
- Know what Antidiscrimination and Whistleblower Protection Laws protect you
- Understand how to file a complaint alleging discrimination, retaliation, or a violation of the Whistleblower Protection Laws

## What is the NoFEAR Act?

- Congress enacted the Notification and Federal Employee Antidiscrimination and Retaliation Act (NoFEAR Act) on May 15, 2002.
- The Act requires “...Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.”
- Intent is to prevent and reduce discrimination by helping to ensure federal agencies:
- Pay more attention to their EEO and Whistleblower activity
- Act more expeditiously to resolve complaints at the administrative level when it is appropriate to do so

## Background

- NoFEAR Act was prompted by:
- Allegations of discrimination at EPA
- Findings of a GAO Report
- Significant rise in discrimination complaints in past decades by federal employees
- Increase in allegations of retaliation against federal employees who had participated in complaint process

## NoFEAR Act Requirements

- Agencies must:
- Train and notify employees on their rights and protections under the antidiscrimination and whistleblower laws.
- Reimburse the Treasury Judgment Fund for payments made in Federal District court cases involving violations of discrimination and whistleblower laws.
- Post information on its public website relating to complaints of discrimination and annually report to Congress.

## General Provisions

- Agencies should not retaliate for court judgments or settlements relating to discrimination or whistleblower laws by targeting claimants or other employees with:
- Reductions in compensation, benefits for its workforce
- Using RIF’s or furloughs to fund agency reimbursement
- Agencies must ensure managers have adequate training in  managing a diverse workforce and in dispute resolution
- Prohibits agencies from taking unfounded disciplinary actions against, or violating procedural rights of managers accused of discrimination

## Cornerstones of NoFEAR Act

- Notification
- Accountability
- Reporting

## Cornerstones - Notification

- Agencies must provide Federal employees and applicants written notification of their rights and protections under discrimination and whistleblower laws.
- This includes:
- Posting information on the Internet site of agency
- Providing employees training on rights and remedies

## Cornerstones - Accountability

- The Act improves accountability by requiring agencies to pay for discrimination or whistleblower judgments out of their operating funds
- Must reimburse General Fund or Treasury
- May extend reimbursement over several years to avoid:
- RIF’s, Furloughs, Reduction in compensation or benefits, or any adverse effect on mission of agency
- Individuals are to be held accountable for their actions

## Cornerstones - Reporting

- Each Federal agency is required to post summary statistical data relating to EEO complaints filed by employees, former employees or applicants on their public website.
- EEOC is also required to post information relating to hearings requested and appeals filed from final agency actions on a public website.

## Cornerstones – Reporting (continued)

- Agencies must submit an annual report, not later than 180 days after the end of each fiscal year to Congress, EEOC and the Attorney General addressing:
- Number and status of cases
- Amount of money reimbursed for each case
- Number of employees disciplined for violation of laws/policies
- Specific disciplinary action(s) taken
- Policy implemented by agency relating to disciplinary actions taken against employees who discriminated or committed prohibited personnel practices
- Fiscal year end data relating to complaints filed and analysis of data

## Cornerstones – Reporting (continued)

- Reporting Agency information is used to:
- Examine trends
- Conduct causal analysis
- Gain practical knowledge through experience
- Develop action plans to improve complaint or civil rights programs

## You are Protected by Antidiscrimination Laws

- Illegal discrimination occurs when one employee is treated differently than another employee and treatment is based on race, color, religion, sex, national origin, age, and disability.
- As a Federal employee, you are protected from illegal discrimination in employment matters on the basis of your race, color, religion, sex, national origin, age, and disability.
- The Antidiscrimination Laws protect you from discrimination concerning the terms and conditions of your employment.

## Title VII of the Civil Rights Act

- Title VII of the 1964 Civil Rights Act, as amended, protects employees from employment discrimination on the basis of sex, race, color, national origin, or religion.
- While not covered under Title VII, sexual orientation is a prohibited basis of discrimination under Executive Order 13087, issued May 1998
- Sexual harassment and pregnancy discrimination are considered forms of sex discrimination and are prohibited by Title VII.
- In addition to protection against discrimination because of religion, Title VII also establishes the agency’s duty to provide reasonable accommodation for an employee’s religious beliefs unless doing so would impose an undue hardship on the employer.

## The Age Discrimination in Employment Act

- The Age Discrimination in Employment Act (ADEA) prohibits discrimination against Federal employees who are 40 years of age or older.
- The Act protects older employees from employment actions based on stereotypes or stigmas associated with age.

## The Rehabilitation Act

- The Rehabilitation Act of 1973 prohibits employment discrimination against Federal employees with disabilities.
- In addition, agencies must provide reasonable accommodation for an employee or applicant with a disability.
- A “disability” is a physical or mental impairment that substantially limits a major life activity (breathing, walking, seeing, hearing, performing manual task).

## The Rehabilitation Act (continued)

- A temporary or short term illness is not a disability.  An inability to work in only one type of job, for one particular supervisor, or in one location is not a disability.
- You must be qualified for your position.
- If you cannot perform the essential functions of the job, with or without reasonable accommodation, you are not qualified.

## The Rehabilitation Act (continued)

- The Federal government has an obligation to provide reasonable accommodation to individuals with disabilities.
- A reasonable accommodation is an adjustment to the work situation or environment to enable you to perform your job, as long as it is not an undue hardship to the agency.
- The accommodation does not have to be specific to what is being requested by the employee.  It does have to be a reasonable, effective accommodation.
- The Agency has no obligation to change performance standards or to eliminate essential functions of your position as a reasonable accommodation.

## The Equal Pay Act

- The Equal Pay Act of 1963 prohibits federal agencies from paying employees of one sex lower wages than those of the opposite sex for performing substantially equal work.

## Protection Against Reprisal or Retaliation

- The Antidiscrimination laws protect you from reprisal for exercising your rights under those Acts.
- Protected activities may include filing a complaint of discrimination, requesting reasonable accommodation, giving evidence or testimony to an investigator or in a hearing, participating in the EEO process, or complaining about or protesting perceived discrimination against you or another employee.

## If You Believe You Have Been Discriminated Against...

- You must contact your EEO Office for the assignment of an EEO Counselor within 45 calendar days from when you first became aware of the alleged discrimination.
- Employees complaining about age discrimination may give notice of intent to sue to the Equal Employment Opportunity Commission within 180 days of the alleged discrimination.

## If You Believe You Have Been Discriminated Against...(continued)

- The EEO Counselor will try to resolve the complaint and will offer you an opportunity to use the Alternative Dispute Resolution (ADR) to resolve your complaint.
- If the complaint is not resolved, you will be provided a Notice of Right to File a Complaint.  You must file within 15 calendar days from receipt of the Notice.
- Employees covered by a negotiated bargaining agreement which permits allegations of discrimination, may elect to proceed under the negotiated bargaining agreement, rather than filing a formal complaint of discrimination.  You cannot do both.

## If You Believe You Have Been Discriminated Against...(continued)

- In some cases, extensions of the time frames for contacting an EEO Counselor or filing a complaint are possible, if a valid reason is presented.
- You should fully explain any delays for untimely EEO Counselor contact or complaint filing.
- The Agency EEO Official, not the EEO Counselor, will make the decision if the time limits may be extended

## If You Believe You Have Been Discriminated Against...(continued)

- You are entitled to a reasonable amount of time to:
- Prepare and present your complaint
- Meet with a counselor, an investigator or to participate in the hearing
- While there is no set amount of time, it is normally granted in terms of hours, not days.

## Marital Status & Political Affiliation Discrimination

- Federal law makes it illegal to discriminate against Federal employees because of their marital status or political affiliation, or to retaliate against employees for exercising their rights.
- If you believe discrimination has occurred on one of these bases, you may file a written complaint with the U.S. Office of Special Counsel.
- You may also pursue such a complaint through your administrative grievance system, or the negotiated grievance procedures, if applicable.

## Manager & Supervisor Responsibilities

- A manager or supervisor is required to:
- Ensure they have legitimate, non-discriminatory reasons for the actions they take
- Ensure they treat employees fairly and equitably
- Fully consider reasonable accommodation to individuals with disabilities
- Check with your EEO Office with questions on whether reasonable accommodation is appropriate
- Only disclose medical information to officials with a need to know and keep medical information separate from personnel files

## Manager & Supervisor Responsibilities (continued)

- Provide a reasonable amount of time to an employee to work on an EEO complaint
- Cooperate with an EEO Counselor or EEO Investigator
- Failure to do so may result in disciplinary action
- Ensure employees are not subjected to a hostile work environment because of their race, color, national origin, age, religion, sex or disability. Act on all complaints of alleged discrimination or harassment

## Whistleblower Protection Laws

- 5 U.S.C. 2302(b)(8) prohibits retaliation against an employee or applicant for disclosing information reasonably believed to evidence:
- Violations of law, rule or regulation
- Gross mismanagement
- Gross waste of funds
- An abuse of authority or
- A substantial and specific danger to public health or safety
- Employees may not disclose information if disclosure is specifically prohibited by law or if the information is required under Executive Order to be protected from disclosure in the interest of national security.

## Whistleblower Protection Laws (continued)

- A Federal agency cannot retaliate against an employee or applicant (through personnel action or otherwise) because that individual exercises his or her rights under the Whistleblower Protection Act
- If an employee believes he/she has been subjected to retaliation via a personnel action within the jurisdiction of the Merit System Protection Board (MSPB), the employee may:
- File a complaint with the Office of the Special Counsel (OSC) before filing an appeal with MSPB or
- File an appeal directly with the MSPB

## Filing a Whistleblower Protection Complaint

- If the employee chooses to go directly to the MSPB:
- The appeal must be filed no later than 30 days after the effective date of the action being appealed, or 30 days after receipt of the agency’s decision, whichever is later.
- If an Alternate Dispute Resolution (ADR) process is used, the employee may extend the filing period by 30 days, for a total of 60 days.
- If the personnel actions do not fall under the MSPB jurisdiction, the employee must first file a complaint with the OSC before filing an appeal with the MSPB.

## Filing a Whistleblower Protection Complaint (continued)

- A complaint may be filed with OSC by using Form OSC-11 (Complaint of Possible Prohibited Personnel Practice or other Prohibited Activity)
- Form OSC-11 can be obtained by contacting:
- Office of Special Counsel (OSC)
- Complaints Examining Unit
- 1730 M Street, NW, Suite 218
- Washington, DC  20036-4505
- 1-800-872-9855 (toll free) or (202) 653-7188
_**http://www.osc.gov/**_

## Filing a Whistleblower Protection Complaint (continued)

- After the OSC complaint process is exhausted, the appellant may file an appeal with the MSPB:
- No later than 65 days after the date that OSC’s written notification was issued terminating the investigation; or
- If notification was received more than 5 days after the date of issuance, the MSPB appeal must be filed within 60 days after the date the date OSC’s notification was received.
- If OSC has not notified the appellant that it will seek corrective action within 120 days of the filing date, the appellant may file an MSPB appeal at any time after the 120 day period expires.

## Where Do I go For More Information?

- Discrimination Laws
- Contact your local EEO Manager or the Director, DM/EEO Indian Health Service
- EEO Complaint process:
- _[http://www.hhs.gov/eeo/complaint.html](http://www.hhs.gov/eeo/complaint.html)_
- Whistleblower Act and Protections:
- Local HR Office or visit **http://www.osc.gov**

## NoFEAR Act Notice

- HHS NoFEAR Act Notice
- _[http://www.hhs.gov/eeo/about_no_fear.html](http://www.hhs.gov/eeo/about_no_fear.html)_
- Public Law 107-174 (NoFEAR Act)
- _[http://www.hhs.gov/eeo/no_fear_act_of_2001.html](http://www.hhs.gov/eeo/no_fear_act_of_2001.html)_
- HHS Equal Employment Opportunity Data Posted Pursuant to NoFEAR Act
- _[http://www.hhs.gov/eeo/no_fear_bullet_3.html](http://www.hhs.gov/eeo/no_fear_bullet_3.html)_

## NoFEAR Act Training

- Thank you for completing
- the NoFEAR Act Training
- The training certificate will not print automatically on the last page, so you will need to print, then type or write in your name and date.  Please submit your certificate to your supervisor to verify your training completion of this course.

## Certificate of Completion for NoFEAR Act Training

***Office of Diversity Management and Equal Employment Opportunity***
***This certifies that***
*has completed the online*
*training module for *
**NoFEAR Act Training**
- (Date)