### §3905. Personnel actions

#### (a) Merit principles; "personnel action" defined

(1) All personnel actions with respect to career members and career candidates in the Service (including applicants for career candidate appointments) shall be made in accordance with merit principles.

(2) For purposes of paragraph (1), the term "personnel action" means—

(A) any appointment, promotion, assignment (including assignment to any position or salary class), award of performance pay or special differential, within-class salary increase, separation, or performance evaluation, and

(B) any decision, recommendation, examination, or ranking provided for under this chapter which relates to any action referred to in subparagraph (A).

#### (b) Rules and regulations; discrimination; reprisals for disclosure of information; submission of reports, evaluations, or recommendations; freedom from prohibited personnel practices

The Secretary shall administer the provisions of this chapter and shall prescribe such regulations as may be necessary to ensure that members of the Service, as well as applicants for appointments in the Service—

(1) are free from discrimination on the basis of race, color, religion, sex, national origin, age, disability, marital status, geographic or educational affiliation within the United States, or political affiliation, as prohibited under section 2302(b)(1) of title 5;

(2) are free from reprisal for—

(A) a disclosure of information by a member or applicant which the member or applicant reasonably believes evidences—

(i) a violation of any law, rule, or regulation, or

(ii) 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) a disclosure to the Special Counsel of the Merit Systems Protection Board, or to the Inspector General of an agency (including the Inspector General of the Department of State and the Foreign Service) or another employee designated by the head of the agency to receive such disclosures, of information which the member or applicant reasonably believes evidences—

(i) a violation of any law, rule, or regulation, or

(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(3) are free to submit to officials of the Service and the Department any report, evaluation, or recommendation, including the right to submit such report, evaluation, or recommendation through a separate dissent channel, whether or not the views expressed therein are in accord with approved policy, unless the report, evaluation, or recommendation was submitted with the knowledge that it was false or with willful disregard for its truth or falsity; and

(4) are free from any personnel practice prohibited by section 2302 of title 5.

#### (c) Withholding or disclosure of information to Congress

This section shall not be construed as authorizing the withholding of information from the Congress or the taking of any action against a member of the Service who discloses information to the Congress.

#### (d) Minority recruitment program

(1) The Secretary shall establish a minority recruitment program for the Service consistent with section 7201 of title 5.

(2) Omitted.

#### (e) Applicability to other judicial or statutory rights or remedies

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 2000e–16 of title 42, prohibiting discrimination on the basis of race, color, religion, sex, or national origin;

(2) sections 631 and 633a of title 29, prohibiting discrimination on the basis of age;

(3) section 206(d) of title 29, prohibiting discrimination on the basis of sex;

(4) sections 791 and 794a of title 29, prohibiting discrimination on the basis of disability; or

(5) any provision of law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.

(Pub. L. 96–465, title I, §105, Oct. 17, 1980, 94 Stat. 2077; Pub. L. 100–204, title I, §185(a), Dec. 22, 1987, 101 Stat. 1365; Pub. L. 101–246, title I, §153(d), Feb. 16, 1990, 104 Stat. 43; Pub. L. 117–263, div. I, title XCII, §9219(2), Dec. 23, 2022, 136 Stat. 3879.)

#### **Editorial Notes**

#### Codification

Subsec. (d)(2) of this section, which required the Secretary to transmit at least once annually to the Chairman of the Committee on Foreign Relations of the Senate and the Speaker of the House of Representatives the Department's reports on equal employment opportunity, affirmative action, and minority recruitment programs, which reports are required by law, regulation, or directive to be submitted to the Equal Employment Opportunity Commission (EEOC) or the Office of Personnel Management (OPM), terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, page 129 of House Document No. 103–7.

#### Amendments

2022—Subsecs. (b)(1), (e)(4). Pub. L. 117–263 substituted "disability" for "handicapping condition".

1990—Subsec. (b)(1). Pub. L. 101–246 inserted "geographic or educational affiliation within the United States," after "marital status,".

1987—Subsec. (d)(2). Pub. L. 100–204 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Not later than January 31 of each year, the Secretary shall transmit to each House of the Congress a report, signed by the Secretary, on the activities of the Secretary under paragraph (1). Such report shall include any affirmative action plans submitted by the Secretary under section 2000e–16 of title 42 and any data necessary to evaluate the effectiveness of the program under paragraph (1) for the preceding fiscal year, together with recommendations for administrative or legislative action the Secretary considers appropriate."