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[House Report 115-79]
[From the U.S. Government Publishing Office]

115th Congress    }                                    {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                    {        115-79

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

 
            FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2017

                                _______
                                

 April 4, 2017.--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. 702]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 702) 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
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Section-by-Section...............................................     3
Explanation of Amendments........................................     5
Committee Consideration..........................................     5
Roll Call Votes..................................................     5
Application of Law to the Legislative Branch.....................     5
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     6
Statement of General Performance Goals and Objectives............     6
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     6
Federal Advisory Committee Act...................................     6
Unfunded Mandate Statement.......................................     6
Earmark Identification...........................................     6
Committee Estimate...............................................     7
Budget Authority and Congressional Budget Office Cost Estimate...     7
Changes in Existing Law Made by the Bill as Reported.............     8

                     Committee Statement and Views

                          Purpose and Summary

    H.R. 702, the Federal Employee Antidiscrimination Act of 
2017, amends the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 to strengthen 
Equal Employment Opportunity protections for federal employees.

                  Background and Need for Legislation

    The Notification and Federal Employee Antidiscrimination 
and Retaliation Act of 2002 (No FEAR Act) was enacted to 
address the ``need for accountability, reporting, and 
notification in regard to discrimination and retaliation 
against [f]ederal employees.''\1\ The No FEAR Act sought to 
ensure federal employees and applicants were aware of their 
rights and appropriately able to seek adjudication of claims of 
discrimination. The No FEAR Act was prompted in part by House 
Committee on Science investigations and reporting by the U.S. 
General Accounting Office.\2\
---------------------------------------------------------------------------
    \1\H.R. Rep. No. 107-101 pt. 1, at 9 (2001).
    \2\General Accounting Office, GGD-99-75, Equal Employment 
Opportunity: Data Shortcomings Hinder Assessment of Conflicts in the 
Federal Workplace (1999).
---------------------------------------------------------------------------
    The No FEAR Act was successful in improving employee and 
applicant awareness of Equal Employment Opportunity (EEO) 
protections and avenues for adjudication of complaints. 
However, challenges remain in preventing discrimination in the 
federal workplace and ensuring that claims of discrimination 
are adjudicated in a fair and timely manner. In 2014, for 
example, the EEO Commission released a Program Evaluation 
Report on the Social Security Administration (SSA), which 
concluded that SSA had failed to maintain the standards of a 
model EEO program. The Report made 12 findings and more than 60 
recommendations to reform SSA's EEO program.\3\
---------------------------------------------------------------------------
    \3\U.S. Equal Employment Opportunity Comm'n, Program Evaluation 
Report: Social Security Administration (May 14, 2014).
---------------------------------------------------------------------------
    H.R. 702 amends the No FEAR Act to ensure that appropriate 
entities investigate and report on allegations of 
discrimination in a timely manner. H.R. 702 accomplishes this 
objective by increasing the transparency surrounding EEO 
processes and outcomes. H.R. 702 adds a new title to the No 
FEAR Act to improve agency EEO programs across the federal 
government by ensuring that they function independent of agency 
human resource and general counsel offices. H.R. 702 also 
requires that the heads of agency EEO programs report directly 
to agency heads to prevent potential conflicts of interest 
within an agency.
    The legislation also requires that an agency post on its 
website a notation regarding any finding of discrimination or 
retaliation that includes the date of the finding, when the act 
or acts occurred, and what law(s) were violated. Such notices 
must be posted within 30 days of final agency action or the 
issuance by the EEO Commission of an appellate decision 
involving a finding of discrimination or retaliation and must 
remain on an agency's website for at least one year. 
Additionally, H.R. 702 requires agencies to disclose to the EEO 
Commission whether disciplinary action was initiated against an 
employee who was found to have discriminated or retaliated 
against another employee or an applicant for employment. The 
bill further requires agencies and the EEO Commission to 
release data regarding class action complaints alleging 
discrimination or retaliation against a federal agency.
    To improve EEO complaint accountability, federal agencies 
are required within one year of enactment to establish a system 
to track discrimination complaints through the EEO process from 
inception to resolution, including whether a decision has been 
made regarding possible disciplinary action based on a finding 
of discrimination. The legislation also requires federal 
agencies to make a notation in the personnel record of any 
employee who was subject to an adverse action as a result of a 
finding of discrimination or retaliation that includes the 
reason for the adverse action.
    According to the 2016 Federal Employee Viewpoint Survey, 
only 62 percent of respondents agreed with the statement that 
they could ``disclose a suspected violation of any law, rule, 
or regulation without fear of reprisal.''\4\ To help address 
the concerns raised in that survey, H.R. 702 bars the 
implementation or enforcement of non-disclosure agreements that 
would prohibit federal employees from disclosing waste, fraud, 
violations of laws or rules, or other forms of mismanagement or 
abuse to Congress, the Office of Special Counsel, or an Office 
of Inspector General.
---------------------------------------------------------------------------
    \4\U.S. Office of Personnel Mgmt., 2016 Government-wide Management 
Report (2016).
---------------------------------------------------------------------------

                          LEGISLATIVE HISTORY

    On January 27, 2017, Ranking Member Elijah Cummings (D-MD) 
introduced H.R. 702, the Federal Employee Antidiscrimination 
Act of 2017, with Chairman Jason Chaffetz (R-UT), 
Representatives Sheila Jackson Lee (D-TX), James Sensenbrenner, 
Jr. (R-WI), and Delegate Eleanor Holmes Norton (D-DC) as 
original cosponsors. H.R. 702 was referred to the Committee on 
Oversight and Government Reform. The Committee considered H.R. 
702 at a business meeting on February 2, 2017 and ordered the 
bill favorably reported, without amendment, by voice vote.
    In the 114th Congress, Representative Cummings introduced a 
bill similar to H.R. 702, H.R. 1557, the Federal Employee 
Antidiscrimination Act of 2015. On March 25, 2015, the House 
Committee on Oversight and Government Reform ordered H.R. 1557 
favorably reported. On July 21, 2015, the House of 
Representatives passed H.R. 1557 under suspension of the rules 
by a recorded vote of 403-0. The bill was referred to the 
Senate Committee on Homeland Security and Governmental Affairs, 
which ordered the bill favorably reported, as amended, on 
December 9, 2015. No further action was taken in the Senate.

                           Section-by-Section

Section 1. Short title

    This section identifies the bill as the ``Federal Employee 
Antidiscrimination Act of 2017.''

Section 2. Sense of Congress

    This section 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

    This section amends Section 202 of the No FEAR Act to 
require that notification be posted for at least one year on an 
agency's internal website when an agency or the Equal 
Employment Opportunity Commission (EEOC) finds that a 
discriminatory or retaliatory act has occurred.

Section 4. Reporting requirements

    This section amends Section 203 of the NO FEAR Act to 
require that annual reports mandated by the NO FEAR Act be 
submitted in electronic format.
    This section also requires a federal agency to submit a 
report to the EEOC within 60 days 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

    This section 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 date of the 
violation, the affected agency, the law violated, and whether a 
decision has been made regarding necessary disciplinary action 
as a result of the violation. This section 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

    This section amends Section 302 of the NO FEAR Act to apply 
to the EEOC new requirements applied to federal agencies under 
Section 5 of the bill.

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

    This section amends the NO FEAR Act to add a new section 
requiring federal agencies to establish a system to track from 
inception to resolution each complaint alleging that a 
discriminatory act has been committed. The system must also 
track whether a decision has been made regarding disciplinary 
action pursuant to a finding that a discriminatory act 
occurred.
    The section 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, the 
agency shall make a notation of the adverse action in the 
personnel record of the individual against whom the action was 
taken after all appeals arising from the adverse action have 
been exhausted.
    This section further amends the NO FEAR Act to add a new 
title (``Title IV, Processing and Referral''). This title 
requires each federal agency to implement a model Equal 
Employment Opportunity Program that is not under the control of 
the agency's Human Capital or General Counsel office, is devoid 
of internal conflicts of interest, and ensures efficient and 
fair resolution of complaints alleging discrimination or 
retaliation. This section 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.
    Title IV requires the head of each Equal Employment 
Opportunity Program in a federal agency to report directly to 
the head of the agency.
    Title IV also requires the EEOC to make a referral to the 
Office of Special Counsel (OSC) whenever the EEOC issues a 
finding that a discriminatory or retaliatory act has occurred. 
This Title 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. Title IV 
requires an agency to comply with section 1214(f) of title 5, 
United States Code, 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. Nondisclosure agreement limitation

    This section amends section 2302(b) of title 5, United 
States Code, 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; instance of 
mismanagement, 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 to H.R. 702 were offered or adopted during 
Committee consideration of the bill.

                        Committee Consideration

    On February 2, 2017, the Committee met in open session and 
ordered reported favorably the bill, H.R. 702, by voice vote, a 
quorum being present.

                            Roll Call Votes

    No roll call votes were requested or conducted during 
Committee consideration of H.R. 702.

              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 amends the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 to strengthen 
Equal Employment Opportunity protections for federal employees. 
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, and for other 
purposes.

                    Duplication of Federal Programs

    In accordance with clause 2(c)(5) of rule XIII, 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 section 551 or title 5, United States Code.

                     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 Section 5(b) of the appendix to title 5, 
United States Code.

                       Unfunded Mandate Statement

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

                         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, which the Committee has included below.

     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:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 10, 2017.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 702, the Federal 
Employee Antidiscrimination Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 702--Federal Employee Antidiscrimination Act of 2017

    H.R. 702 would amend the Notification and Federal Employee 
Antidiscrimination and Retaliation Act to expand the current 
process used to investigate and resolve federal employees' 
claims of discrimination by other 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, CBO expects that most of the provisions in the bill 
would build on the 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. Based on 
the costs of similar activities, CBO estimates that 
implementing H.R. 702 would increase federal administrative 
costs by less than $500,000 annually; such spending would be 
subject to the availability of appropriated funds.
    Enacting H.R. 702 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 be negligible. Enacting the legislation would 
not affect revenues.
    CBO estimates that enacting H.R. 702 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 702 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 H. Samuel Papenfuss, 
Deputy 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 paragraph (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 paragraph (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 
Homeland Security and Governmental Affairs of the Senate, the 
Committee on Oversight and 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 a 
Federal 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 paragraph (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 2017, 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 a Federal agency takes an adverse action covered under 
section 7512 of title 5, United States Code, against a Federal 
employee for an act of discrimination or retaliation prohibited 
by a provision of law covered by paragraph (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.

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                   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 Federal agency personnel on the processing and 
resolution of a complaint, including providing legal 
representation to a Federal 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 a 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.--A Federal 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

           *       *       *       *       *       *       *
PART III--EMPLOYEES

           *       *       *       *       *       *       *

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 or under title 38;
                  (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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