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[House Report 114-117]
[From the U.S. Government Publishing Office]

114th Congress   }                                      {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {       114-117

======================================================================

 
            FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2015

                                _______
                                

  May 15, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Chaffetz, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 1557]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 1557) to amend the Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2002 
to strengthen Federal antidiscrimination laws enforced by the 
Equal Employment Opportunity Commission and expand 
accountability within the Federal government, and for other 
purposes, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     3
Explanation of Amendments........................................     5
Committee Consideration..........................................     5
Application of Law to the Legislative Branch.....................     5
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     5
Statement of General Performance Goals and Objectives............     5
Duplication of Federal Programs..................................     5
Disclosure of Directed Rule Makings..............................     5
Federal Advisory Committee Act...................................     6
Unfunded Mandate Statement.......................................     6
Earmark Identification...........................................     6
Committee Estimate...............................................     6
Budget Authority and Congressional Budget Office Cost Estimate...     6
Changes in Existing Law Made by the Bill, as Reported............     7

                     Committee Statement and Views

                          PURPOSE AND SUMMARY

    The Federal Employee Antidiscrimination Act of 2015 is 
intended to strengthen Equal Employment Opportunity (EEO) 
protections for federal employees.

                  BACKGROUND AND NEED FOR LEGISLATION

    Under current law, federal Equal Employment Opportunity 
(EEO) programs must identify and eliminate barriers to equal 
opportunity. These programs are essential to ensuring that 
federal workplaces uphold the guarantee of equal opportunity 
that is the right of every citizen in this nation. Federal 
employees or applicants for employment who believe they have 
been the victims of discrimination have the right to bring a 
complaint to their agency's EEO program, which is responsible 
for investigating these complaints. In fiscal year 2012, 
federal employees and job applicants filed nearly 16,000 
complaints alleging they were the victims of discrimination.
    While many federal agencies are implementing their EEO 
programs in accordance with the standards of a model EEO 
program set forth by the Equal Employment Opportunity 
Commission (EEOC), some federal agencies have not met these 
standards. For example, in 2014, the EEOC issued a report on 
the Social Security Administration's EEO program that found the 
program had failed to maintain the standards of a model 
program. The EEOC made 12 findings regarding the Social 
Security Administration's EEO program, including its failure to 
ensure efficient management of the various stages of the 
complaint process, provide uniform training to ensure equal 
opportunities, and implement effective and efficient anti-
harassment policies and procedures. The EEOC made more than 60 
recommendations for reform of that one program.
    H.R. 1557, the Federal Employee Antidiscrimination Act, 
would ensure that federal agencies are using best practices to 
manage their EEO programs. The Act would also strengthen the 
accountability mechanisms that are central to the effectiveness 
of the EEO process.
    By requiring that EEO programs be independent of an 
agency's human resources or general counsel offices--and by 
requiring that the head of the program report directly to the 
head of an agency--H.R. 1557 would ensure that EEO programs are 
focused solely on ensuring equal opportunity for all employees 
and applicants and that this focus is prioritized at the 
highest levels of an agency's leadership.
    H.R. 1557 would also strengthen accountability in EEO 
programs by expanding the notifications that agencies are 
required to provide when discrimination is found to have 
occurred, and it would require agencies to track and report 
whether such findings have resulted in any disciplinary action.
    Finally, H.R. 1557 would help ensure that federal employees 
and applicants feel confident that they can report 
discrimination--or waste, fraud, or abuse--without fear of 
retaliation. According to the 2014 Federal Employee Viewpoint 
Survey, only 60% of federal employees agreed that they could 
``disclose a suspected violation of any law, rule or regulation 
without fear of reprisal.'' H.R. 1557 would prohibit non-
disclosure agreements that bar or restrict an employee from 
informing Congress, the Office of Special Counsel (OSC), or an 
Office of the Inspector General about violations of law or 
instances of waste, fraud, or abuse.

                          LEGISLATIVE HISTORY

    H.R. 1557, the Federal Employee Antidiscrimination Act, was 
introduced on March 24, 2015, by Rep. Elijah E. Cummings (D-MD) 
and referred to the Committee on Oversight and Government 
Reform. On March 25, 2015, the Committee ordered H.R. 1557 
reported favorably, without amendment. Delegate Eleanor Holmes 
Norton (D-DC) is an original cosponsor and Chairman Jason 
Chaffetz (R-UT), Congressman James Sensenbrenner (R-WI) and 
Congresswoman Sheila Jackson Lee (D-TX) are co-sponsors.

                           Section by Section

Section 1. Short title

    Identifies the bill as the ``Federal Employee 
Antidiscrimination Act of 2015.''

Section 2. Sense of Congress

    Modifies the existing sense of Congress in the Notification 
and Federal Employee Antidiscrimination and Retaliation Act of 
2002 (No FEAR Act) (5 U.S.C. Sec. 2301 note) to affirm that 
accountability in the enforcement of federal employee rights is 
furthered when federal agencies take appropriate disciplinary 
action against federal employees who have acted in a 
discriminatory or retaliatory manner, while preserving all of 
their due process rights.

Section 3. Notification of violation

    Amends Section 202 of the No FEAR Act to require that when 
an agency or the EEOC finds that a discriminatory or 
retaliatory act has occurred, an agency must post the finding 
for at least one year on the agency's website.

Section 4. Reporting requirements

    Amends Section 203 of the No FEAR Act to require that 
annual reports mandated by that Act be submitted in electronic 
format.
    Requires a federal agency to submit a report to the EEOC 
within 60 days of the issuance of a finding that a 
discriminatory or retaliatory act has occurred, stating whether 
disciplinary action has been initiated against a federal 
employee as a result of the improper act.

Section 5. Data to be posted by employing federal agencies

    Amends Section 301 of the No FEAR Act to expand the 
information federal agencies are required to post on their 
websites regarding each finding of discrimination or 
retaliation to include the date of the finding, the affected 
agency, the law violated, and whether a decision has been made 
regarding necessary disciplinary action. Also requires that 
agencies provide specific data on each class action complaint 
filed against the agency alleging discrimination or 
retaliation.

Section 6. Data to be posted by the Equal Employment Opportunity 
        Commission

    Amends Section 302 of the No FEAR Act to apply to the EEOC 
the new requirements applied to federal agencies under Section 
5.

Section 7. Notification and Federal Employee Antidiscrimination and 
        Retaliation Act amendments

    Amends the No FEAR Act to add a new section requiring 
federal agencies to establish a system to track each complaint 
alleging that a discriminatory act has been committed from 
inception to resolution. The system must also track whether a 
decision has been made regarding necessary disciplinary action 
resulting from a finding that discrimination has occurred.
    Amends the No FEAR Act to add a new section requiring that 
if an agency takes adverse action against an employee for an 
act of discrimination or retaliation--and after all appeals 
arising from the adverse action have been exhausted--the agency 
shall make a notation of the adverse action and the reason for 
the action in the personnel record of the individual against 
whom the action was taken.
    Amends the No FEAR Act to add a new Title IV, Processing 
and Referral. This new Title would require each federal agency 
to implement a model EEO program that is not under the control 
of the agency's Human Capital or General Counsel offices, that 
is devoid of internal conflicts of interest, and that ensures 
the efficient and fair resolution of complaints alleging 
discrimination or retaliation.
    Provides that nothing in the Title prevents an agency's 
Human Capital or General Counsel office from providing advice 
or counsel to agency personnel on the processing or resolution 
of an EEO complaint.
    The new Title IV also would require the head of each EEO 
program in a federal agency to report directly to the head of 
the agency.
    The new Title IV also would require the EEOC to make a 
referral to the Office of Special Counsel (OSC) whenever the 
Commission issues a finding that a discriminatory or 
retaliatory act has occurred. Requires the OSC to accept and 
review referrals from the EEOC and to notify the EEOC whenever 
it initiates disciplinary action in response to a referral. 
Requires an agency to comply with 5 U.S.C. Sec. 1214(f) 
(prohibiting disciplinary action against an employee while an 
OSC investigation is on-going without OSC approval) before 
initiating disciplinary action against a federal employee for 
an alleged act of discrimination or retaliation referred to the 
OSC by the EEOC.

Section 8. Non-Disclosure agreement limitation

    Amends 5 U.S.C. Sec. 2302(b) to prohibit the implementation 
or enforcement of nondisclosure policies, forms, or agreements 
that prohibit or restrict an employee from disclosing to 
Congress, the OSC, or an Office of the Inspector General any 
information that relates to any violation of any law, rule, or 
regulation, or instance of mismanagement, a gross waste of 
funds, abuse of authority, or a substantial and specific danger 
to public health and safety, or any other whistleblower 
protection.

                       Explanation of Amendments

    No amendments were offered during Full Committee 
consideration of H.R. 1557.

                        Committee Consideration

    On March 25, 2015, the Committee met in open session and 
ordered reported favorably the bill, H.R. 1557, by voice vote, 
a quorum being present.

                            Roll Call Votes

    No roll call votes were requested or conducted during Full 
Committee consideration of H.R. 1557.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill strengthens the management and implementation of 
Equal Employment Opportunity programs in federal agencies. As 
such this bill does not relate to employment or access to 
public services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective of this bill is to amend the Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2002 
to strengthen Federal antidiscrimination laws enforced by the 
Equal Employment Opportunity Commission and expand 
accountability within the Federal Government.

                    Duplication of Federal Programs

    No provision of this bill establishes or reauthorizes a 
program of the federal government known to be duplicative of 
another federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that enacting this bill does not 
direct the completion of any specific rule makings within the 
meaning of 5 U.S.C. Sec. 551.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement, the Committee 
has received a letter from the Congressional Budget Office 
included herein.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

H.R. 1557--Federal Employee Antidiscrimination Act of 2015

    H.R. 1557 would amend the Notification and Federal Employee 
Antidiscrimination and Retaliation Act to expand the current 
process used to investigate and resolve federal employee claims 
of discrimination by federal employees. The bill also would 
expand the amount of information that must be reported and made 
available concerning such discrimination cases.
    Based on information from the Office of Personnel 
Management and the U.S. Equal Employment Opportunity 
Commission, most of the provisions in the bill would expand 
current policies and practices of the federal government. 
Currently, the federal government, through laws, regulations, 
and agency policies, prohibits discrimination in all phases of 
employment. CBO expects that under the bill there would be some 
minor additional costs for agencies to track and report 
discriminatory acts and to notify the public of violations of 
antidiscrimination laws. Thus, CBO estimates that implementing 
H.R. 1557 would increase federal administrative costs by less 
than $500,000 annually, assuming the availability of 
appropriated funds.
    Enacting H.R. 1557 could affect direct spending by some 
agencies (such as the Tennessee Valley Authority) because they 
are authorized to use receipts from the sale of goods, fees, 
and other collections to cover their operating costs. 
Therefore, pay-as-you-go procedures apply. Because most of 
those agencies can make adjustments to the amounts collected, 
CBO estimates that any net changes in direct spending by those 
agencies would not be significant. Enacting the bill would not 
affect revenues.
    H.R. 1557 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Theresa Gullo, 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

 NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION 
                              ACT OF 2002

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (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:

     * * * * * * *

        TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

     * * * * * * *
Sec. 207. Complaint tracking.
Sec. 208. Notation in personnel record.
     * * * * * * *

                    TITLE IV--PROCESSING AND REFERRAL

Sec. 401. Processing and resolution of complaints.
Sec. 402. No limitation on Human Capital or General Counsel advice.
Sec. 403. Head of Program reports to head of agency.
Sec. 404. Referrals of findings of discrimination.

TITLE I--GENERAL PROVISIONS

           *       *       *       *       *       *       *

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;]
          (4) accountability in the enforcement of Federal 
        employee rights is furthered when Federal agencies take 
        appropriate disciplinary action against Federal 
        employees who have been found to have committed 
        discriminatory or retaliatory acts;
          (5)(A) [nor is accountability] but accountability is 
        not furthered if Federal agencies react to the 
        increased accountability under this Act for what by law 
        the agency is responsible 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
          (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.

           *       *       *       *       *       *       *

TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

           *       *       *       *       *       *       *

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).
  (d) Notification of Final Agency Action.--
          (1) Not later than 30 days after a Federal agency 
        takes final action or the Equal Employment Opportunity 
        Commission issues an appellate decision involving a 
        finding of discrimination or retaliation prohibited by 
        a provision of law covered by paragraphs (1) or (2) of 
        section 201(a), as applicable, the head of the agency 
        subject to the finding shall provide notice for at 
        least 1 year on the agency's Internet Web site in a 
        clear and prominent location linked directly from the 
        agency's Internet home page stating that a finding of 
        discrimination or retaliation has been made.
          (2) The notification shall identify the date the 
        finding was made, the date or dates on which the 
        discriminatory or retaliatory act or acts occurred, and 
        the law or laws violated by the discriminatory or 
        retaliatory act or acts. The notification shall also 
        advise Federal employees of the rights and protections 
        available under the respective provisions of law 
        covered by paragraphs (1) or (2) of section 201(a).

SEC. 203. REPORTING REQUIREMENT.

  (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 (in an electronic format prescribed by the Office 
of Personnel Management) 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;
          (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).
  (c) Disciplinary Action Report.--Not later than 60 days after 
the date on which a Federal agency takes final action or an 
agency receives an appellate decision issued by the Equal 
Employment Opportunity Commission involving a finding of 
discrimination or retaliation in violation of a provision of 
law covered by paragraphs (1) or (2) of section 201(a), as 
applicable, the employing Federal agency shall submit to the 
Commission a report stating whether disciplinary action has 
been initiated against a Federal employee as a result of the 
violation.

           *       *       *       *       *       *       *

SEC. 207. COMPLAINT TRACKING.

  Not later than 1 year after the date of enactment of the 
Federal Employee Antidiscrimination Act of 2015, each Federal 
agency shall establish a system to track each complaint of 
discrimination arising under section 2302(b)(1) of title 5, 
United States Code, and adjudicated through the Equal 
Employment Opportunity process from inception to resolution of 
the complaint, including whether a decision has been made 
regarding necessary disciplinary action as the result of a 
finding of discrimination.

SEC. 208. NOTATION IN PERSONNEL RECORD.

  If an agency takes an adverse action covered under section 
7512 of title 5, United States Code, against an employee for an 
act of discrimination or retaliation prohibited by a provision 
of law covered by paragraphs (1) or (2) of section 201(a), the 
agency shall, after all appeals relating to such action have 
been exhausted, include a notation of the adverse action and 
the reason for the action in the employee's personnel record.

   TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE

SEC. 301. 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--
                  (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[.], 
                        and
                  (C) for each such finding counted under 
                subparagraph (A), the agency shall specify--
                          (i) the date of the finding,
                          (ii) the affected agency,
                          (iii) the law violated, and
                          (iv) whether a decision has been made 
                        regarding necessary disciplinary action 
                        as a result of the finding.
          (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.
          (11) Data regarding each class action complaint filed 
        against the agency alleging discrimination or 
        retaliation, including--
                  (A) information regarding the date on which 
                each complaint was filed,
                  (B) a general summary of the allegations 
                alleged in the complaint,
                  (C) an estimate of the total number of 
                plaintiffs joined in the complaint if known,
                  (D) the current status of the complaint, 
                including whether the class has been certified, 
                and
                  (E) the case numbers for the civil actions in 
                which discrimination or retaliation has been 
                found.
  (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).

SEC. 302. 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)] (11) 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.

           *       *       *       *       *       *       *

                   TITLE IV--PROCESSING AND REFERRAL

SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.

  Each Federal agency is responsible for the fair, impartial, 
processing and resolution of complaints of employment 
discrimination and retaliation arising in the Federal 
administrative process and shall establish a model Equal 
Employment Opportunity Program that--
          (1) is not under the control, either structurally or 
        practically, of a Human Capital or General Counsel 
        office;
          (2) is devoid of internal conflicts of interest and 
        ensures fairness and inclusiveness within the 
        organization; and
          (3) ensures the efficient and fair resolution of 
        complaints alleging discrimination or retaliation.

SEC. 402. NO LIMITATION ON HUMAN CAPITAL OR GENERAL COUNSEL ADVICE.

  Nothing in this title shall prevent a Federal agency's Human 
Capital or General Counsel office from providing advice or 
counsel to agency personnel on the processing and resolution of 
a complaint, including providing legal representation to an 
agency in any proceeding.

SEC. 403. HEAD OF PROGRAM REPORTS TO HEAD OF AGENCY.

  The head of each Federal agency's Equal Employment 
Opportunity Program shall report directly to the head of the 
agency.

SEC. 404. REFERRALS OF FINDINGS OF DISCRIMINATION.

  (a) EEOC Findings of Discrimination.--Not later than 30 days 
after the Equal Employment Opportunity Commission issues an 
appellate decision involving a finding of discrimination or 
retaliation within a Federal agency the Commission shall refer 
the matter to the Office of Special Counsel.
  (b) Referrals to Special Counsel.--The Office of Special 
Counsel shall accept and review a referral from the Commission 
under subsection (a) for purposes of seeking disciplinary 
action under its authority against an Federal employee who 
commits an act of discrimination or retaliation.
  (c) Notification.--The Office of Special Counsel shall notify 
the Commission in a case in which the Office of Special Counsel 
initiates disciplinary action.
  (d) Special Counsel Approval.--An agency may not take 
disciplinary action against a Federal employee for an alleged 
act of discrimination or retaliation referred by the Commission 
under this section except in accordance with the requirements 
of section 1214(f) of title 5, United States Code.
                              ----------                              

TITLE 5, UNITED STATES CODE

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PART III--EMPLOYEES

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Subpart A--GENERAL PROVISIONS

           *       *       *       *       *       *       *

CHAPTER 23--MERIT SYSTEM PRINCIPLES

           *       *       *       *       *       *       *

Sec. 2302. Prohibited personnel practices

  (a)(1) For the purpose of this title, ``prohibited personnel 
practice'' means any action described in subsection (b).
  (2) For the purpose of this section--
          (A) ``personnel action'' means--
                  (i) an appointment;
                  (ii) a promotion;
                  (iii) an action under chapter 75 of this 
                title or other disciplinary or corrective 
                action;
                  (iv) a detail, transfer, or reassignment;
                  (v) a reinstatement;
                  (vi) a restoration;
                  (vii) a reemployment;
                  (viii) a performance evaluation under chapter 
                43 of this title;
                  (ix) a decision concerning pay, benefits, or 
                awards, or concerning education or training if 
                the education or training may reasonably be 
                expected to lead to an appointment, promotion, 
                performance evaluation, or other action 
                described in this subparagraph;
                  (x) a decision to order psychiatric testing 
                or examination;
                  (xi) the implementation or enforcement of any 
                nondisclosure policy, form, or agreement; and
                  (xii) any other significant change in duties, 
                responsibilities, or working conditions;
        with respect to an employee in, or applicant for, a 
        covered position in an agency, and in the case of an 
        alleged prohibited personnel practice described in 
        subsection (b)(8), an employee or applicant for 
        employment in a Government corporation as defined in 
        section 9101 of title 31;
          (B) ``covered position'' means, with respect to any 
        personnel action, any position in the competitive 
        service, a career appointee position in the Senior 
        Executive Service, or a position in the excepted 
        service, but does not include any position which is, 
        prior to the personnel action--
                  (i) excepted from the competitive service 
                because of its confidential, policy-
                determining, policy-making, or policy-
                advocating character; or
                  (ii) excluded from the coverage of this 
                section by the President based on a 
                determination by the President that it is 
                necessary and warranted by conditions of good 
                administration;
          (C) ``agency'' means an Executive agency and the 
        Government Publishing Office, but does not include--
                  (i) a Government corporation, except in the 
                case of an alleged prohibited personnel 
                practice described under subsection (b)(8) or 
                section 2302(b)(9) (A)(i), (B), (C), or
          (D)
                  (ii)(I) the Federal Bureau of Investigation, 
                the Central Intelligence Agency, the Defense 
                Intelligence Agency, the National Geospatial-
                Intelligence Agency, the National Security 
                Agency, the Office of the Director of National 
                Intelligence, and the National Reconnaissance 
                Office; and
                  (II) as determined by the President, any 
                executive agency or unit thereof the principal 
                function of which is the conduct of foreign 
                intelligence or counterintelligence activities, 
                provided that the determination be made prior 
                to a personnel action; or
                  (iii) the Government Accountability Office; 
                and
          (D) ``disclosure'' means a formal or informal 
        communication or transmission, but does not include a 
        communication concerning policy decisions that lawfully 
        exercise discretionary authority unless the employee or 
        applicant providing the disclosure reasonably believes 
        that the disclosure evidences--
                  (i) any violation of any law, rule, or 
                regulation; or
                  (ii) gross mismanagement, a gross waste of 
                funds, an abuse of authority, or a substantial 
                and specific danger to public health or safety.
  (b) Any employee who has authority to take, direct others to 
take, recommend, or approve any personnel action, shall not, 
with respect to such authority--
          (1) discriminate for or against any employee or 
        applicant for employment--
                  (A) on the basis of race, color, religion, 
                sex, or national origin, as prohibited under 
                section 717 of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e-16);
                  (B) on the basis of age, as prohibited under 
                sections 12 and 15 of the Age Discrimination in 
                Employment Act of 1967 (29 U.S.C. 631, 633a);
                  (C) on the basis of sex, as prohibited under 
                section 6(d) of the Fair Labor Standards Act of 
                1938 (29 U.S.C. 206(d));
                  (D) on the basis of handicapping condition, 
                as prohibited under section 501 of the 
                Rehabilitation Act of 1973 (29 U.S.C. 791); or
                  (E) on the basis of marital status or 
                political affiliation, as prohibited under any 
                law, rule, or regulation;
          (2) solicit or consider any recommendation or 
        statement, oral or written, with respect to any 
        individual who requests or is under consideration for 
        any personnel action unless such recommendation or 
        statement is based on the personal knowledge or records 
        of the person furnishing it and consists of--
                  (A) an evaluation of the work performance, 
                ability, aptitude, or general qualifications of 
                such individual; or
                  (B) an evaluation of the character, loyalty, 
                or suitability of such individual;
          (3) coerce the political activity of any person 
        (including the providing of any political contribution 
        or service), or take any action against any employee or 
        applicant for employment as a reprisal for the refusal 
        of any person to engage in such political activity;
          (4) deceive or willfully obstruct any person with 
        respect to such person's right to compete for 
        employment;
          (5) influence any person to withdraw from competition 
        for any position for the purpose of improving or 
        injuring the prospects of any other person for 
        employment;
          (6) grant any preference or advantage not authorized 
        by law, rule, or regulation to any employee or 
        applicant for employment (including defining the scope 
        or manner of competition or the requirements for any 
        position) for the purpose of improving or injuring the 
        prospects of any particular person for employment;
          (7) appoint, employ, promote, advance, or advocate 
        for appointment, employment, promotion, or advancement, 
        in or to a civilian position any individual who is a 
        relative (as defined in section 3110(a)(3) of this 
        title) of such employee if such position is in the 
        agency in which such employee is serving as a public 
        official (as defined in section 3110(a)(2) of this 
        title) or over which such employee exercises 
        jurisdiction or control as such an official;
          (8) take or fail to take, or threaten to take or fail 
        to take, a personnel action with respect to any 
        employee or applicant for employment because of--
                  (A) any disclosure of information by an 
                employee or applicant which the employee or 
                applicant reasonably believes evidences--
                          (i) any violation of any law, rule, 
                        or regulation, or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety,
                if such disclosure is not specifically 
                prohibited by law and if such information is 
                not specifically required by Executive order to 
                be kept secret in the interest of national 
                defense or the conduct of foreign affairs; or
                  (B) any disclosure to the Special Counsel, or 
                to the Inspector General of an agency or 
                another employee designated by the head of the 
                agency to receive such disclosures, of 
                information which the employee or applicant 
                reasonably believes evidences--
                          (i) any violation (other than a 
                        violation of this section) of any law, 
                        rule, or regulation, or
                          (ii) gross mismanagement, a gross 
                        waste of funds, an abuse of authority, 
                        or a substantial and specific danger to 
                        public health or safety;
          (9) take or fail to take, or threaten to take or fail 
        to take, any personnel action against any employee or 
        applicant for employment because of--
                  (A) the exercise of any appeal, complaint, or 
                grievance right granted by any law, rule, or 
                regulation--
                          (i) with regard to remedying a 
                        violation of paragraph (8); or
                          (ii) other than with regard to 
                        remedying a violation of paragraph (8);
                  (B) testifying for or otherwise lawfully 
                assisting any individual in the exercise of any 
                right referred to in subparagraph (A)(i) or 
                (ii);
                  (C) cooperating with or disclosing 
                information to the Inspector General of an 
                agency, or the Special Counsel, in accordance 
                with applicable provisions of law; or
                  (D) for refusing to obey an order that would 
                require the individual to violate a law;
          (10) discriminate for or against any employee or 
        applicant for employment on the basis of conduct which 
        does not adversely affect the performance of the 
        employee or applicant or the performance of others; 
        except that nothing in this paragraph shall prohibit an 
        agency from taking into account in determining 
        suitability or fitness any conviction of the employee 
        or applicant for any crime under the laws of any State, 
        of the District of Columbia, or of the United States;
          (11)(A) knowingly take, recommend, or approve any 
        personnel action if the taking of such action would 
        violate a veterans' preference requirement; or
          (B) knowingly fail to take, recommend, or approve any 
        personnel action if the failure to take such action 
        would violate a veterans' preference requirement;
          (12) take or fail to take any other personnel action 
        if the taking of or failure to take such action 
        violates any law, rule, or regulation implementing, or 
        directly concerning, the merit system principles 
        contained in section 2301 of this title; or
          (13) [implement] (A) implement or enforce any 
        nondisclosure policy, form, or agreement, if such 
        policy, form, or agreement does not contain the 
        following statement: ``These provisions are consistent 
        with and do not supersede, conflict with, or otherwise 
        alter the employee obligations, rights, or liabilities 
        created by existing statute or Executive order relating 
        to (1) classified information, (2) communications to 
        Congress, (3) the reporting to an Inspector General or 
        the Office of Special Counsel of a violation of any 
        law, rule, or regulation, or mismanagement, a gross 
        waste of funds, an abuse of authority, or a substantial 
        and specific danger to public health or safety, or (4) 
        any other whistleblower protection. The definitions, 
        requirements, obligations, rights, sanctions, and 
        liabilities created by controlling Executive orders and 
        statutory provisions are incorporated into this 
        agreement and are controlling.''[.]; or
                  (B) implement or enforce any nondisclosure 
                policy, form, or agreement, if such policy, 
                form, or agreement prohibits or restricts an 
                employee from disclosing to Congress, the 
                Office of Special Counsel, or an Office of the 
                Inspector General any information that relates 
                to any violation of any law, rule, or 
                regulation, or mismanagement, a gross waste of 
                funds, an abuse of authority, or a substantial, 
                and specific danger to public health or safety, 
                or any other whistleblower protection.
This subsection shall not be construed to authorize the 
withholding of information from Congress or the taking of any 
personnel action against an employee who discloses information 
to Congress. For purposes of paragraph (8), (i) any presumption 
relating to the performance of a duty by an employee whose 
conduct is the subject of a disclosure as defined under 
subsection (a)(2)(D) may be rebutted by substantial evidence, 
and (ii) a determination as to whether an employee or applicant 
reasonably believes that such employee or applicant has 
disclosed information that evidences any violation of law, 
rule, regulation, gross mismanagement, a gross waste of funds, 
an abuse of authority, or a substantial and specific danger to 
public health or safety shall be made by determining whether a 
disinterested observer with knowledge of the essential facts 
known to and readily ascertainable by the employee or applicant 
could reasonably conclude that the actions of the Government 
evidence such violations, mismanagement, waste, abuse, or 
danger.
  (c) The head of each agency shall be responsible for the 
prevention of prohibited personnel practices, for the 
compliance with and enforcement of applicable civil service 
laws, rules, and regulations, and other aspects of personnel 
management, and for ensuring (in consultation with the Office 
of Special Counsel) that agency employees are informed of the 
rights and remedies available to them under this chapter and 
chapter 12 of this title, including how to make a lawful 
disclosure of information that is specifically required by law 
or Executive order to be kept classified in the interest of 
national defense or the conduct of foreign affairs to the 
Special Counsel, the Inspector General of an agency, Congress, 
or other agency employee designated to receive such 
disclosures. Any individual to whom the head of an agency 
delegates authority for personnel management, or for any aspect 
thereof, shall be similarly responsible within the limits of 
the delegation.
  (d) This section shall not be construed to extinguish or 
lessen any effort to achieve equal employment opportunity 
through affirmative action or any right or remedy available to 
any employee or applicant for employment in the civil service 
under--
          (1) section 717 of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e-16), prohibiting discrimination on the 
        basis of race, color, religion, sex, or national 
        origin;
          (2) sections 12 and 15 of the Age Discrimination in 
        Employment Act of 1967 (29 U.S.C. 631, 633a), 
        prohibiting discrimination on the basis of age;
          (3) under section 6(d) of the Fair Labor Standards 
        Act of 1938 (29 U.S.C. 206(d)), prohibiting 
        discrimination on the basis of sex;
          (4) section 501 of the Rehabilitation Act of 1973 (29 
        U.S.C. 791), prohibiting discrimination on the basis of 
        handicapping condition; or
          (5) the provisions of any law, rule, or regulation 
        prohibiting discrimination on the basis of marital 
        status or political affiliation.
  (e)(1) For the purpose of this section, the term ``veterans' 
preference requirement'' means any of the following provisions 
of law:
          (A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 
        3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 
        3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with 
        respect to a preference eligible referred to in section 
        7511(a)(1)(B)) subchapter II of chapter 75 and section 
        7701.
          (B) Sections 943(c)(2) and 1784(c) of title 10.
          (C) Section 1308(b) of the Alaska National Interest 
        Lands Conservation Act.
          (D) Section 301(c) of the Foreign Service Act of 
        1980.
          (E) Sections 106(f), 7281(e), and 7802(5) of title 
        38.
          (F) Section 1005(a) of title 39.
          (G) Any other provision of law that the Director of 
        the Office of Personnel Management designates in 
        regulations as being a veterans' preference requirement 
        for the purposes of this subsection.
          (H) Any regulation prescribed under subsection (b) or 
        (c) of section 1302 and any other regulation that 
        implements a provision of law referred to in any of the 
        preceding subparagraphs.
  (2) Notwithstanding any other provision of this title, no 
authority to order corrective action shall be available in 
connection with a prohibited personnel practice described in 
subsection (b)(11). Nothing in this paragraph shall be 
considered to affect any authority under section 1215 (relating 
to disciplinary action).
  (f)(1) A disclosure shall not be excluded from subsection 
(b)(8) because--
          (A) the disclosure was made to a supervisor or to a 
        person who participated in an activity that the 
        employee or applicant reasonably believed to be covered 
        by subsection (b)(8)(A)(i) and (ii);
          (B) the disclosure revealed information that had been 
        previously disclosed;
          (C) of the employee's or applicant's motive for 
        making the disclosure;
          (D) the disclosure was not made in writing;
          (E) the disclosure was made while the employee was 
        off duty; or
          (F) of the amount of time which has passed since the 
        occurrence of the events described in the disclosure.
  (2) If a disclosure is made during the normal course of 
duties of an employee, the disclosure shall not be excluded 
from subsection (b)(8) if any employee who has authority to 
take, direct others to take, recommend, or approve any 
personnel action with respect to the employee making the 
disclosure, took, failed to take, or threatened to take or fail 
to take a personnel action with respect to that employee in 
reprisal for the disclosure.

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