```

[Senate Report 114-300]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 556
114th Congress    }                                      {      Report
                                 SENATE
  2d Session      }                                      {     114-300

_______________________________________________________________________

                                     

            FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2015

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                               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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 July 12, 2016.--Ordered to be printed
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

59-010                         WASHINGTON : 2016                  
                 
                 
                 
                 
                 
                 
                 
                 
                 
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                    Daniel P. Lips, Policy Director
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
 Katherine C. Sybenga, Minority Chief Counsel for Governmental Affairs
                     Laura W. Kilbride, Chief Clerk

                                                      Calendar No. 556
114th Congress    }                                      {      Report
                                 SENATE
  2d Session      }                                      {     114-300
======================================================================

 
            FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2015

                                _______
                                

                 July 12, 2016.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 1557]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 1557), to amend 
the Notification and Federal Employee Anti-discrimination and 
Retaliation Act of 2002 to strengthen Federal administration 
laws enforced by the Equal Employment Opportunity Commission 
and expand accountability within the Federal government, and 
for other purposes, having considered the same, reports 
favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
 IV. Section-by-Section Analysis......................................6
  V. Evaluation of Regulatory Impact..................................8
 VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Act, as Reported.............9

                         I. Purpose and Summary

    The purpose of H.R. 1557, the Federal Employee 
Antidiscrimination Act of 2015, is to amend Federal laws to 
strengthen Equal Employment Opportunity Protections for Federal 
employees, strengthen prohibitions against discrimination and 
retaliation against whistleblowers within the Federal workforce 
and to ensure Federal agencies and supervisors that violate the 
law are held accountable.

              II. Background and the Need for Legislation

    Federal Equal Employment Opportunity (EEO) programs, which 
are required to identify and eliminate barriers to equal 
opportunity, are vital to ensuring that Federal workplaces 
provide the same guarantee of equal opportunity that is 
required of other employers across the country. Federal 
employees or applicants for employment in the Federal 
Government who believe they have been discriminated against can 
bring a complaint to their agency's EEO program, which 
investigates these complaints. The Equal Employment Opportunity 
Commission (EEOC) has released standards of a model EEO program 
that Federal agencies should follow. However, some Federal 
agencies' EEO programs have not met these standards.
    Federal law prohibits discrimination against Federal 
employees in their workplace, including against job applicants 
and employees based on the ``person's race, color, religion, 
sex (including pregnancy), national origin, age (40 or older), 
disability or genetic information.''\1\
---------------------------------------------------------------------------
    \1\U.S. Equal Employment Opportunity Commission, About (Feb. 9, 
2016), available at http://www.eeoc.gov/eeoc/.
---------------------------------------------------------------------------
    In addition to prohibiting discrimination, Federal law 
prohibits retaliation against whistleblowers.\2\ Whistleblowers 
remain a vital source of public accountability within the 
Federal workforce. Federal employees who courageously step 
forward to report instances of waste, fraud, abuse and 
criminality within the Federal Government help ensure that the 
Executive Branch is held accountable and assist the Congress 
with its constitutional responsibility to conduct oversight.
---------------------------------------------------------------------------
    \2\5 U.S.C. Sec. 2302.
---------------------------------------------------------------------------
    Whistleblowers can identify problems that lead to reforms 
that improve Federal agencies' performance and yield cost 
savings for taxpayers. For example, the Office of Special 
Counsel (OSC) reported that whistleblowers identifying problems 
within the Department of Homeland Security resulted in $100 
million in annual savings.\3\
---------------------------------------------------------------------------
    \3\Nomination of Michael J. Missal to be Inspector General, U.S. 
Department of Veterans Affairs, and the Honorable Carolyn N. Lerner to 
be Special Counsel, Office of Special Counsel: Hearing Before the S. 
Comm. on Homeland Sec. & Governmental Affairs 3, 114th Cong. (2016) 
(statement of Carolyn Lerner, Special Counsel, Office of Special 
Counsel), available at http://www.hsgac.senate.gov/hearings/nomination-
of-carolyn-lerner-to-be-special-counsel-of-the-office-of-special-
counsel-and-michael-missal-to-be-inspector-general-of-the-department-
of-veterans-affairs.
---------------------------------------------------------------------------
    Whistleblowers also may report instances of wrongdoing and 
criminality that have life and death consequences. Our nation's 
veterans have earned the right to the finest health care 
possible due to their service on behalf of the country. But in 
some cases, Department of Veterans Affairs' (VA) centers are 
not providing the highest standard of care, and whistleblowers 
have come forward to highlight abuses. For example, through an 
investigation and several hearings,\4\ the Committee learned 
about allegations of significant wrongdoing that occurred at 
the VA Medical Center in Tomah, Wisconsin. Several employees of 
the facility presented concerns to VA management, the Office of 
Inspector General, or their VA union representatives about 
overmedication that was occurring at the facility.\5\ The VA's 
alleged retaliation against these whistleblowers also had 
serious consequences. For example, in testimony before the 
Committee, Dr. Christopher Kirkpatrick's brother Sean 
Kirkpatrick testified that Dr. Kirkpatrick was a psychologist 
and whistleblower at the Tomah VA facility.\6\ Mr. Kirkpatrick 
testified that he believed his brother was fired after raising 
questions about the large number of narcotics prescribed to 
patients there, and committed suicide later that same day.\7\
---------------------------------------------------------------------------
    \4\See, e.g., Improving VA Accountability: Examining First-Hand 
Accounts of Department of Veterans Affairs Whistleblowers: Hearing 
Before the Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. 
(2015), available at http://www.hsgac.senate.gov/hearings/improving-va-
accountability-examining-first-hand-accounts-of-department-of-veterans-
affairs-whistleblowers [hereinafter Improving VA Accountability]; Tomah 
VAMC: Examining Quality, Access, and a Culture of Overreliance on High-
Risk Medications: Joint Field Hearing Before the Comm. of Homeland Sec. 
& Governmental Affairs and the H. Comm. on Veterans' Affairs, 114th 
Cong. (2015), available at http://www.hsgac.senate.gov/hearings/joint-
field-hearing-tomah-vamc-examining-quality-access-and-a-culture-of-
overreliance-on-high-risk-medications [hereinafter Tomah VAMC].
    \5\Tomah VAMC at 2-3 (statement of Noelle Johnson); id. at 2 
(statement of Ryan Honl); id. at 1 (statement of Heather Simcakoski); 
see also Improving VA Accountability at 2 (statement of Sean 
Kirkpatrick).
    \6\Improving VA Accountability (statement of Sean Kirkpatrick).
    \7\Id.
---------------------------------------------------------------------------
    Retaliation against whistleblowers has been particularly 
concerning in recent years at the VA. Special Counsel Lerner 
has publicly questioned the VA's handling of whistleblower 
complaints, stating that ``it is clear that the workplace 
culture in many VA facilities is hostile to whistleblowers and 
actively discourages them from coming forward with what is 
often critical information.''\8\ Indeed, OSC ``has seen a sharp 
increase in the number of whistleblower cases from VA 
employees.''\9\ VA cases averaged only 20 percent of all cases 
in 2009, 2010, and 2011.\10\ As of September 2015, the 
proportion of prohibited personnel practice complaints made to 
OSC by VA employees was approximately 35 percent of all the 
complaints received by OSC across the Federal Government.\11\ 
To put this number in context, 2014 was the first year on 
record that cases filed with OSC by VA employees surpassed 
those by Department of Defense (DoD) employees, despite the 
fact that the DoD has two times more civilian employees than 
the VA.\12\ The recent increase of whistleblower complaints 
coming from the VA has forced OSC to reallocate staff and 
resources and prioritize VA cases through an expedited review 
process.\13\
---------------------------------------------------------------------------
    \8\VA Whistleblowers: Exposing Inadequate Service Provided to 
Veterans and Ensuring Appropriate Accountability: Hearing Before the H. 
Comm. on Veterans' Affairs, 113th Cong. (2014) (statement of Carolyn 
Lerner, Special Counsel, Office of Special Counsel), available at 
http://veterans.house.gov/hearing/va-whistleblowers-exposing-
inadequate-service-provided-to-veterans-and-ensuring-appropriate.
    \9\Improving VA Accountability at 1 (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel).
    \10\Addressing Continued Whistleblower Retaliation Within VA: 
Hearing Before H. Comm. on Veterans' Affairs, Subcomm. On Oversight & 
Investigations 1, 114th Cong. (2015) (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel), available at http://
veterans.house.gov/hearing/addressing-continued-whistleblower-
retaliation-within-va.
    \11\Improving VA Accountability at 2 (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel).
    \12\Id. at 2.
    \13\Id.
---------------------------------------------------------------------------
    Unfortunately, the problem of retaliation against 
whistleblowers is not unique to the VA. In 2015, the Committee 
heard testimony from whistleblowers who served with the United 
States Army, United States Immigration and Customs Enforcement, 
the Social Security Administration, and United States Customs 
and Border Protection.\14\ Each described the challenges and 
retaliation they believed they experienced from their agencies 
after blowing the whistle on agency wrongdoing.\15\
---------------------------------------------------------------------------
    \14\Blowing the Whistle on Retaliation: Accounts of Current and 
Former Federal Agency Whistleblowers: Hearing Before the S. Comm. on 
Homeland Sec. & Governmental Affairs, 114th Cong. (2015) (statement of 
Chairman Ron Johnson), available at http://www.hsgac.senate.gov/
hearings/blowing-the-whistle-on-retaliation-accounts-of-current-and-
former-federal-agency-whistleblowers [hereinafter Blowing the Whistle 
on Retaliation].
    \15\Id.
---------------------------------------------------------------------------
    Congress passed the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) to 
strengthen laws prohibiting discriminatory or retaliatory acts 
against Federal employees, including by creating new reporting 
requirements to inform employees of their rights.\16\ The No 
FEAR Act also made Federal agencies directly financially 
accountable for violations of antidiscrimination and 
whistleblower protections.\17\
---------------------------------------------------------------------------
    \16\Pub. L. No. 107-174, 107th Cong., (2002).
    \17\Id.
---------------------------------------------------------------------------
    However, the No FEAR Act of 2002 did little to hold 
supervisors or other employees directly accountable for 
violating retaliation and discrimination laws. The law does not 
require discipline against employees judged to have committed 
acts of discrimination or retaliation, even though employees 
may not come forward without a belief that their disclosure 
will be heard and make a difference. As explained by the Legal 
Director of the Government Accountability Project, ``[e]very 
academic or government study has concluded that the primary 
motivating, or chilling factor for would-be whistleblowers is 
whether they can make a difference by bearing witness.''\18\ 
Unfortunately, only 61 percent of Federal employees have 
confidence that they can blow the whistle without facing 
reprisal.\19\ OSC has raised concerns about the inconsistent 
use of discipline at the VA, in particular. In testimony before 
this Committee, Special Counsel Lerner noted numerous examples 
of the VA failing to discipline officials found responsible for 
posing significant risks to public health and safety or 
engaging in other misconduct.\20\ Special Counsel Lerner added 
that this lack of discipline ``stand[s] in stark contrast to 
disciplinary actions taken against VA whistleblowers . . . for 
minor indiscretions or for activity directly related to the 
employee's whistleblowing.''\21\
---------------------------------------------------------------------------
    \18\Blowing the Whistle on Retaliation (statement of Thomas M. 
Devine, Legal Director, Government Accountability Project).
    \19\Office of Personnel Mgmt., Federal Employee Viewpoint Survey 
Results, Governmentwide Management Report 28 (2016) available at http:/
/www.fedview.opm.gov/2015FILES/2015_FEVS_Gwide_Final_Report.PDF.
    \20\Improving VA Accountability at 5-6 (statement of Carolyn 
Lerner, Special Counsel, Office of Special Counsel).
    \21\Id. at 6.
---------------------------------------------------------------------------
    Special Counsel Lerner testified to the Committee that the 
OSC was projected to receive 4,000 Government-wide prohibited 
personnel practice complaints in 2015, which include many 
whistleblower retaliation complaints.\22\ The EEOC, the Federal 
agency responsible for enforcing Federal employment 
discrimination laws, says 14,343 Federal employees and 
applicants filed 15,013 complaints alleging employment 
discrimination during fiscal year (FY) 2014.\23\ In the same 
year, agencies paid $44.8 million in monetary awards to 
complainants.\24\
---------------------------------------------------------------------------
    \22\Id. at 2, 4.
    \23\United States Equal Employment Opportunity Commission, Office 
of Federal Operations, Annual Report on the Federal Workforce Part I, 
EEO Complaints Processing, Fiscal Year 2014 (Dec. 15, 2015), available 
at http://www.eeoc.gov/federal/reports/fsp2014/upload/Final-FY-2014-
Annual-Report-Part-I.pdf.
    \24\Id.
---------------------------------------------------------------------------
    Additional measures to prevent retaliation against 
whistleblowers and discrimination against Federal employees are 
needed to protect Federal employees who report wrongdoing or 
illegality within the Federal Government or experience 
discrimination in the workplace.
    H.R. 1557 would require Federal agencies to adopt best 
practices to manage their EEO programs. It would also 
strengthen transparency and accountability for discrimination 
and retaliation at Federal agencies. First, the bill updates 
the sense of the Congress of the No FEAR Act to stress the need 
for agencies to take appropriate disciplinary action against 
Federal employees who have been found to have committed 
discriminatory or retaliatory acts. As amended, the bill 
enforces this Sense of Congress by requiring a suspension of 
not less than 12 days for a first offense and removal for a 
second offense for employees found to have committed a 
discriminatory or retaliatory act. In these cases, Federal 
employees facing disciplinary action related to an alleged act 
of retaliation or discrimination are still afforded rights 
under Federal law to appeal the judgment.
    The bill also aims to reduce discrimination and retaliation 
by mandating new transparency and reporting requirements for 
Federal agencies to disclose EEOC findings of discrimination, 
including through public reporting on agency websites. H.R. 
1557 also creates other new rules for agencies, such as 
requiring a tracking system for complaints alleging 
discriminatory acts and requiring that agency EEO program 
offices not be controlled by agency general counsel or human 
capital offices.
    The Committee also amended the legislation to remove a 
provision requiring the head of each Federal agency's EEO 
program to report directly to the head of the agency. This 
provision was removed to grant agencies and their Congressional 
authorizers flexibility to determine how best to organize the 
agency's management and reporting structure for these offices.
    The bill also creates a new whistleblower protection. It 
amends Federal law to prohibit the implementation or 
enforcement of nondisclosure agreements that would limit an 
employee's ability to disclose certain information to OSC, the 
Office of Inspector General, or Congress.

                        III. Legislative History

    Representative Elijah E. Cummings of Maryland introduced 
H.R. 1557, the Federal Employee Antidiscrimination Act, on 
March 24, 2015. The Committee on Oversight and Government 
Reform in the House of Representatives favorably reported the 
bill on March 25, 2015. On a motion to suspend the rules and 
pass, the House of Representatives passed H.R. 1557 by a vote 
of 403 to 0.
    H.R. 1557 was referred to the Senate Committee on Homeland 
Security and Governmental Affairs on July 22, 2015. The 
Committee considered H.R. 1557 at a business meeting on 
December 9, 2015.
    During the business meeting, Chairman Ron Johnson offered a 
substitute amendment that was adopted by unanimous consent. The 
substitute amendment included two substantive changes. First, 
the amendment struck section 403 of the act that would have 
required the head of each agency's EEO program to report 
directly to the head of the agency. Second, the amendment 
modified the original section 404 to codify the current 
memorandum of understanding between the EEOC and the OSC 
regarding referrals of EEOC findings. The amendment clarifies 
that the EEOC may refer findings to OSC if the Commission 
determines that the Federal agency did not take appropriate 
action. The amendment made other technical and conforming 
changes.
    Senator James Lankford offered an amendment adding a new 
provision to the act to require that agencies discipline 
supervisors found to have discriminated or retaliated against 
whistleblowers: for the first offense, not less than a 12-day 
suspension, and for the second offense, removal. The amendment 
also includes a process for notifying an employee of these 
disciplinary actions, and allows a two-week period when the 
employee can appeal the action. The amendment was adopted by 
voice vote with Senators Johnson, Portman, Lankford, Ayotte, 
Ernst, Carper, Tester, Baldwin, and Booker present.
    H.R. 1557, as amended by both the Johnson and Lankford 
amendments, was approved by voice vote with Senators Johnson, 
Portman, Lankford, Ayotte, Ernst, Carper, Tester, Baldwin, and 
Booker present.

        IV. Section-by-Section Analysis of the Act, as Reported

Section 1. Short title

    This section establishes the short title of the Act as the 
``Federal Employee Antidiscrimination Act of 2015.''

Section 2. Sense of the Congress

    This section amends the No FEAR Act of 2002 by updating the 
sense of the Congress. Specifically, the section states that 
``accountability in the enforcement of Federal employee rights 
is furthered when agencies take appropriate disciplinary action 
against Federal employees who have been found to have committed 
discriminatory or retaliatory acts.'' The section further 
amends the existing sense of the Congress to reiterate that 
Federal agencies should not violate employees' due process 
rights while enforcing new accountability measures.

Section 3. Notification of violation

    This section amends Section 202 of the No FEAR Act to 
require that agencies publicly report an EEOC finding of 
discrimination or retaliation on their website for at least one 
year. The notification shall include information about the 
finding, including the law or laws violated by the 
discriminatory or retaliatory act or acts. The notification 
shall also advise employees of their rights.

Section 4. Reporting requirements

    This section mandates that forms required by the No FEAR 
Act be submitted in an electronic format. The section also 
requires the agency to report to the EEOC on whether 
disciplinary actions have been initiated against a Federal 
employee as a result of a finding of discrimination or 
retaliation.

Section 5. Data to be posted by employing Federal agencies

    This section amends the No FEAR Act to expand what data 
must be reported on agency websites regarding findings of 
discrimination or retaliation. Data must now include the date 
of the finding, the affected agency, the law violated, and 
whether a decision has been made regarding necessary 
disciplinary actions as a result of the finding. The section 
also requires reporting on data pertaining to class action 
complaints filed against Federal agencies.

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

    This section amends the No FEAR Act to apply the reporting 
requirements amended by Section 5 to the EEOC.

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

    This section makes several changes to the NO FEAR Act. 
First, it requires Federal agencies to establish a system for 
tracking discrimination complaints and the outcomes of the 
complaints. Second, it requires that a Federal agency make a 
notation in an employee's personnel record if the employee has 
been found to commit an act of discrimination or retaliation 
after all appeals have been exhausted. Third, it requires that 
each Federal agency is responsible for establishing a model EEO 
program that is not under the control of a Human Capital or 
General Counsel office, is devoid of internal conflicts of 
interest, and ensures the efficient and fair resolution of 
complaints alleging discrimination or retaliation. Human 
Capital and General Counsel offices may still provide advice or 
counsel to Federal agency personnel in the processing or 
resolution of a complaint, including providing legal 
representation to an agency in any proceeding.
    Finally, the No FEAR Act is amended to establish a process 
for EEOC referrals to OSC. The EEOC may refer matters to OSC if 
it determines that the Federal agency did not take appropriate 
action. The EEOC must include information about the number of 
these referrals in its annual report. The OSC must accept and 
review referrals from the EEOC and notify the EEOC in a case 
that it initiates disciplinary action. It clarifies that 
agencies may not initiate disciplinary actions against an 
employee for an alleged act of discrimination or retaliation 
while the matter is referred to the OSC.

Section 8. Non-disclosure agreements limitation

    This section prohibits agencies from implementing or 
enforcing any nondisclosure policy, form, or agreement, if such 
policy, form, or agreement prohibits or restricts an employee 
from disclosing to Congress, the OSC, or an Office of 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 
protections.

Section 9. Discipline of supervisors based on retaliation against 
        whistleblowers or discrimination

    This section requires that supervisors be disciplined based 
on discrimination or retaliation against whistleblowers. The 
head of an agency is required to propose a disciplinary action 
against a supervisor who is determined to have committed a 
prohibited personnel action, including discrimination or 
retaliation, by the head of that agency, an administrative law 
judge, the Merit System Protection Board, OSC, an adjudicating 
body provided under a union contract, a Federal judge, or the 
inspector general of the agency. The disciplinary action must 
be at least a 12-day suspension for the first offense and 
removal for the second offense. It establishes a process for 
supervisors to be notified and to respond to the proposed 
disciplinary action.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                   January 8, 2016.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1557, the Federal 
Employee Antidiscrimination Act of 2015.
    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. 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 employees' 
claims of discrimination by other federal employees. The act 
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 act 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 act 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. However, CBO estimates that 
implementing H.R. 1557 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. 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 legislation 
would not affect revenues.
    CBO estimates that enacting H.R. 1557 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2026.
    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.
    On May 8, 2015, CBO transmitted a cost estimate for H.R. 
1557, as ordered reported by the House Committee on Oversight 
and Government Reform on March 25, 2015. The two pieces of 
legislation are similar and CBO's estimates of their costs are 
the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Act, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *

PART III--EMPLOYEES

           *       *       *       *       *       *       *

CHAPTER 23--MERIT SYSTEM PRINCIPLES

           *       *       *       *       *       *       *

SECTION 2301. MERIT SYSTEM PRINCIPLES

           *       *       *       *       *       *       *

 NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION 
                              ACT OF 2002

SEC. 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) * * *

           *       *       *       *       *       *       *

       TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

Sec. 201.  Reimbursement Requirement.
     * * * * * * *
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. Referrals of findings of discrimination.
     * * * * * * *

                      TITLE I--GENERAL PROVISIONS

SEC. 101. * * *

SEC. 102. SENSE OF CONGRESS.

    It is the sense of Congress that--
          (1) * * *
          (2) * * *
          (3) * * *
          [(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

           *       *       *       *       *       *       *

       TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

SEC. 201. * * *

SEC. 202. NOTIFICATION REQUIREMENT.

    (a) * * *

           *       *       *       *       *       *       *

    (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 Federal 
        agency subject to the finding shall provide notice for 
        at least 1 year on the Federal agency's Internet Web 
        site in a clear and prominent location linked directly 
        from the Federal 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 REQUIREMENTS.

    (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----

           *       *       *       *       *       *       *

    (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 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 a Federal 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 Federal 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) * * *
    (b) Content Requirements.--The data posted by a Federal 
agency under this section shall include, for the then current 
fiscal year, the following:
          (1) * * *

           *       *       *       *       *       *       *

          (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 Federal agency,
                          (iii) the law violated, and
                          (iv) whether a decision has been made 
                        regarding necessary disciplinary action 
                        as a result of the finding.
          (10) * * *
          (11) Data regarding each class action complaint filed 
        against the Federal 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.

           *       *       *       *       *       *       *

SEC. 302. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY 
                    COMMISSION.

    (a) * * *
    (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).

           *       *       *       *       *       *       *

                   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. 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, if the Commission 
determines that the Federal agency did not take appropriate 
action. The Commission shall include the number and a brief 
summary of such referrals in the Annual Report on the Federal 
Workforce of the Commission.
    (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.

           *       *       *       *       *       *       *

SEC. 2302. PROHIBITED PERSONNEL PRACTICES.

    (a) * * *
    (b) * * *
          (1) * * *
          (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.

           *       *       *       *       *       *       *

CHAPTER 75--ADVERSE ACTIONS

           *       *       *       *       *       *       *

Subchapter II--Removal, Suspension for More Than 14 Days, Reduction in 
Grade or Pay, or Furlough for 30 Days or Less

           *       *       *       *       *       *       *

SEC. 7515. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION AGAINST 
                    WHISTLEBLOWERS OR DISCRIMINATION.

    (a) Definitions.--In this section--
          (1) The term `agency' has the meaning given that term 
        under section 2302;
          (2) The term `prohibited personnel action' means--
                  (A) taking or failing to take an action in 
                violation of paragraph (1), (8), or (9) of 
                section 2302(b) against an employee of the 
                agency; or
                  (B) accessing the medical records of another 
                employee for the purpose of retaliation for a 
                disclosure or activity protected under 
                paragraphs (8) or (9) of subsection 2302(b); 
                and
                  (C) the term `supervisor' means a supervisor, 
                as defined under section 7104(a), who is 
                employed by an agency, as defined under 
                paragraph (1) of this subsection.
    (b) Proposed Adverse Actions.--
          (1) In general.--In accordance with paragraph (2), 
        the head of an agency shall propose against a 
        supervisor whom the head of that agency, an 
        administrative law judge, the Merit Systems Protection 
        Board, the Office of Special Counsel, the Equal 
        Employment Opportunity Commission, an adjudicating body 
        provided under a union contract, a Federal judge, or 
        the Inspector General of the agency determines 
        committed a prohibited personnel action the following 
        adverse actions:
                  (A) With respect to the first prohibited 
                personnel action, an adverse action that is not 
                less than a 12-day suspension.
                  (B) With respect to the second prohibited 
                personnel action, removal.
          (2) Procedures.--
                  (A) Notice.--A supervisor against whom an 
                adverse action under paragraph (1) is proposed 
                is entitled to written notice.
                  (B) Answer and evidence.--
                          (i) In general.--A supervisor is 
                        notified under subparagraph (A) that 
                        the supervisor is the subject of a 
                        proposed adverse action under paragraph 
                        (1) is entitled to 14 days following 
                        the notification to answer and furnish 
                        evidence in support of the answer.
                          (ii) No evidence.--After the end of 
                        the 14-day period described in clause 
                        (i), if a supervisor does not furnish 
                        evidence as described in clause (i) or 
                        if the head of the agency determines 
                        that such evidence is not sufficient to 
                        reverse the proposed adverse action, 
                        the head of the agency shall carry out 
                        the adverse action.
                  (C) Scope of procedures.--Paragraphs (1) and 
                (2) of subsection (b) of section 7513, 
                subsection (c) of such section, paragraphs (1) 
                and (2) of subsection (b) of section 7543, and 
                subsection (c) of such section shall not apply 
                with respect to an adverse action carried out 
                under this subsection.
    (c) Limitations on Other Adverse Actions.--With respect to 
a prohibited personnel action, if the head of the agency 
carries out an adverse action against a supervisor under 
another provision of law, the head of the agency may carry out 
an additional adverse action under this section based on the 
same prohibited personnel action.

                                  [all]
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