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[Senate Report 107-143]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 346
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-143
_______________________________________________________________________

 NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION 
                              ACT OF 2001

                               __________

                                 REPORT

                                 of the

                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                H.R. 169

TO REQUIRE THAT FEDERAL AGENCIES BE ACCOUNTABLE FOR VIOLATIONS OF 
  ANTIDISCRIMINATION AND WHISTLEBLOWER PROTECTION LAWS; TO REQUIRE THAT 
  EACH FEDERAL AGENCY POST QUARTERLY ON ITS PUBLIC WEB SITE, CERTAIN 
  STATISTICAL DATA RELATING TO FEDERAL SECTOR EQUAL EMPLOYMENT 
  OPPORTUNITY COMPLAINTS FILED WITH SUCH AGENCY; AND FOR OTHER PURPOSES 

                 April 15, 2002.--Ordered to be printed

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
99-010                     WASHINGTON : 2002
______________________________________________________________________
             For sale by the Superintendent of Documents, 
                   U.S. Government Printing Office
    Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
             DC area (202) 512-1800 Fax: (202) 512-2250 
             Mail: Stop SSOP, Washington, DC 20402-0001

                   COMMITTEE ON GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois          SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey     GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia                 PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware           THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri              ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota               JIM BUNNING, Kentucky
           Joyce A. Rechtschaffen, Staff Director and Counsel
            Michael L. Alexander, Professional Staff Member
              Richard A. Hertling, Minority Staff Director
           Alison E. Bean, Minority Professional Staff Member
                     Darla D. Cassell, Chief Clerk
                                                       Calendar No. 346
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-143

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

 
 NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION 
                              ACT OF 2001

                                _______
                                

                 April 15, 2002.--Ordered to be printed

                                _______
                                

 Mr. Lieberman, from the Committee on Governmental Affairs, submitted 
                             the following

                              R E P O R T

                        [To accompany H.R. 169]

    The Committee on Governmental Affairs, to which was 
referred the bill (H.R. 169), an act to require that Federal 
agencies be accountable for violations of antidiscrimination 
and whistleblower protection laws; to require that each Federal 
agency post quarterly on its public Web site, certain 
statistical data relating to Federal sector equal employment 
opportunity complaints filed with such agency; and for other 
purposes, having considered the same, report favorably thereon 
with amendments and recommends that the bill do pass.

                                CONTENTS

  I. Purpose and Summary..............................................1
 II. Background and Need for Legislation..............................2
III. Legislative History..............................................3
 IV. Regulatory Impact................................................4
  V. CBO Cost Estimate................................................4
 VI. Section-by-Section Analysis and Discussion.......................6
VII. Changes to Existing Law.........................................12

                         I. Purpose and Summary

    H.R. 169, the ``Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002,'' commonly 
referred to as the No FEAR Act, seeks to hold Federal agencies 
financially accountable for violations of discrimination and 
whistleblower protection laws. The No FEAR Act requires Federal 
agencies to reimburse the Treasury for settlements and 
judgments paid to employees as a result of antidiscrimination 
and whistleblower protection complaints. Agencies now pay these 
costs when complaints are resolved administratively, but if a 
lawsuit is filed, any subsequent monetary relief (whether by 
settlement or judicial judgment) is generally paid by the 
Judgment Fund, a permanently authorized fund administered by 
the Treasury. The No FEAR Actmakes agencies financially 
accountable for their actions by requiring each agency to reimburse the 
Treasury for amounts paid from the Judgment Fund for settlements and 
judgments against the agency in antidiscrimination and whistleblower 
cases. The legislation also requires agencies to notify employees of 
their rights under antidiscrimination and whistleblower protection 
laws, and it strengthens agency reporting requirements. In short, the 
intent of the No FEAR Act is that Federal agencies will pay more 
attention to their EEO and whistleblower complaint activity and act 
more expeditiously to resolve complaints at the administrative level 
when it is appropriate to do so.

                II. Background and Need for Legislation

    H.R. 169 originated in response to an investigation 
conducted by the House Science Committee into complaints of 
discrimination and retaliation at the Environmental Protection 
Agency. The Committee held hearings in March and October 2000 
and concluded that problems at the agency stemmed primarily 
from a lack of financial accountability, an absence of 
awareness of the extent of discrimination problems, and a lack 
of knowledge of the whistleblower and discrimination laws 
protecting employees.\1\ The Committee discovered that 
settlements and judgments against the agency--and against other 
Federal agencies--were often paid out of the general treasury, 
and not agency appropriations. The No FEAR Act (H.R. 169) was 
introduced after the October hearing by Chairman James 
Sensenbrenner and Representatives Sheila Jackson Lee and Connie 
Morella to address the aforementioned problems.
---------------------------------------------------------------------------
    \1\ Committee on the Judiciary, United States House of 
Representatives, Report [to accompany H.R. 169], ``Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2001,'' p. 
7.
---------------------------------------------------------------------------
    On May 9, 2001 the House Judiciary Committee held a 
legislative hearing on H.R. 169. Employees and several 
organizations representing employees provided testimony in 
support of the legislation. These included the National 
Association for the Advancement of Colored People (NAACP), the 
American Federation of Government Employees (AFGE), the 
National Taxpayers Union (NTU), the National Treasury Employees 
Union (NTEU) and the National Whistleblower Center. The AFGE 
expressed concern about the possibility that, in meeting the 
reimbursement requirements, agencies might penalize employees 
through reductions in force, furloughs, or other actions which 
impede their ability to fulfill their missions.\2\ The NTEU 
submitted written testimony expressing a similar concern.\3\
---------------------------------------------------------------------------
    \2\ Bobby L. Harnage, Sr., President, American Federation of 
Government Employees, before the House Judiciary Committee, on H.R. 
169, the Notification and Federal Employee Antidiscrimination Act of 
2001, May 9, 2001.
    \3\ Colleen M. Kelley, President, National Treasury Employees 
Union, Statement on the Notification and Federal Employee 
Antidiscrimination Act, May 9, 2001.
---------------------------------------------------------------------------
    The General Accounting Office (GAO) testified at the May 9, 
2001 hearing that there is a need for accountability, 
reporting, and notification in regard to discrimination and 
retaliation against Federal employees, and that H.R.169 
addresses these needs. With respect to the central 
accountability provision in the No FEAR Act, GAO testified that 
``another possible means for promoting accountability might be 
to have agencies bear more fully the costs of payments to 
complainants and their lawyers made in resolving cases of 
discrimination and reprisal for whistleblowing.'' GAO noted 
that in FY 2000, agencies made payments totaling about $26 
million for discrimination complaints. At the same time, 
agencies were relieved of paying almost $43 million for cases 
because of the existence of the Judgment Fund.
    GAO pointed out that, while it can be argued that the 
Judgment Fund provides a safety net to help ensure that agency 
operations are not disrupted in the event of a large financial 
settlement or judgment, it can also be argued that:

          the fund discourages accountability by being a 
        disincentive to agencies to resolve matters promptly in 
        the administrative processes; by not pursuing 
        resolution, an agency could shift the cost of 
        resolution from its budget to the Judgment Fund and 
        escape the scrutiny that would accompany a request for 
        a supplemental appropriation. Congress dealt with a 
        somewhat similar situation when it enacted the Contract 
        Disputes Act in 1978, which requires agencies to either 
        reimburse the Judgment Fund for judgments awarded in 
        contract claims from available appropriations or to 
        obtain an additional appropriation for such purposes. 
        This provision was intended to counter the incentive 
        for an agency to avoid settling and prolong litigation 
        in order to have the final judgment against the agency 
        in court. . . . In reconciling these viewpoints on 
        financial accountability, Congress will need to balance 
        accountability with the needs of the public to receive 
        expected services.\4\
---------------------------------------------------------------------------
    \4\ J. Christopher Mihm, General Accounting Office, Testimony 
Before the Committee on the Judiciary, House of Representatives, May 9, 
2001, p. 8.
---------------------------------------------------------------------------

                        III. Legislative History

    H.R. 169 was introduced on January 3, 2001 by Congressman 
James Sensenbrenner and was jointly referred to the Committees 
on Government Reform, the Transportation and Infrastructure 
Committee, the Energy and Commerce Committee and the Judiciary 
Committee. On May 23, 2001, the House Committee on the 
Judiciary ordered favorably reported the bill, as amended, by a 
voice vote. On October 2, 2001, the House unanimously (420-0) 
passed the legislation. On October 3, 2001, H.R. 169 was 
referred to the Senate Governmental Affairs Committee.
    Similar legislation, the Federal Employees Protection Act 
of 2001, was introduced on January 29, 2001 by Senator John 
Warner as S. 201 and was referred to the Governmental Affairs 
Committee. The Subcommittee on International Security, 
Proliferation, and Federal Services considered both bills and 
reported H.R. 169 and S. 201 to the full committee on March 19, 
2002.
    Senator Warner wrote to Senator Lieberman requesting that 
the Committee report out H.R.169, and, at its business meeting 
on March 21, 2002, the Committee considered H.R. 169.
    Four amendments offered by Senator Lieberman were adopted 
by voice vote. In addition to updating the findings, the first 
amendment also adds a new section expressing the sense of the 
Congress that agencies should not use a reduction in force or 
furloughs as a means of funding a reimbursement under the Act, 
and that accountability in enforcing employee rights is not 
furthered by terminating employment or employee benefits. The 
new section further states that accountability is also not 
furthered if agencies react to this Act by taking unfounded 
disciplinary actions against managers, and that agencies should 
ensure that managers have adequate training in the management 
of a diverse workforce and in communication skills. Finally, 
the new section recognizes that Federal agencies may need to 
extend reimbursement under the Act over several years to avoid 
reductions in force, furloughs, reductions in employee 
compensation or benefits, or other adverse effects on agency 
mission.
    The second amendment strengthens the bill's reporting 
requirements by: specifying that the reports must be sent to 
the Governmental Affairs Committee, the House Government Reform 
Committee, and other committees of jurisdiction; requiring 
agencies to report on their policies relating to disciplining 
employees who commit prohibited personnel practices revealed in 
the investigation of a discrimination complaint; requiring 
agencies to include in their annual reports an analysis of the 
complaint data; and requiring that agencies report on any 
budget adjustments (if ascertainable) to comply with the Act's 
requirements.
    The third amendment requires GAO to study the methods that 
could be used by the Justice Department to determine its costs 
of defending each discrimination and whistleblower case, and 
the extent of any administrative burden that making such 
determinations would entail. The final amendment makes a series 
of technical corrections.
    At the meeting, the Committee ordered the bill reported by 
voice vote, with no members present dissenting. Senators 
present were Levin, Akaka, Thompson, Stevens, Cochran, Bennett, 
Cleland, Voinovich, and Lieberman.

                         IV. REGULATORY IMPACT

    Paragraph 11(b)(1) of the Standing rules of the Senate 
requires that each report accompanying a bill evaluate the 
``regulatory impact which would be incurred in carrying out 
this bill.'' The Committee has determined that the enactment of 
this legislation will not have significant regulatory impact.

                          V. CBO COST ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 3, 2002.
Hon. Joseph I. Lieberman,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 169, the 
Notification and Federal Employee Antidiscrimination and 
Retaliation Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                          Barry B. Andersen
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 169--Notification and Federal Employee Antidiscrimination and 
        Retaliation Act of 2002

    H.R. 169 would require federal agencies to provide training 
to employees that notifies them of their employment rights and 
responsibilities in an attempt to reduce incidents of 
discrimination and retaliation in the federal government. 
Subject to the availability of appropriated funds, CBO 
estimates that implementing H.R. 169 would cost up to $5 
million a year. Enactment could cause an insignificant increase 
in offsetting receipts (a form of direct spending), so pay-as-
you-go procedures would apply. H.R. 169 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would not affect the 
budgets of state, local, or tribal governments.
    Under current law, court-ordered monetary settlements in 
favor of employees who sue federal agencies in discrimination 
or reprisal complaints are paid from the judgment fund of the 
Treasury. H.R. 169 would require agencies to reimburse the 
Treasury for any such payments. Payments by most agencies to 
the Treasury would be intragovernmental transfers and would 
have no net effect on the federal budget. However, agencies 
that are not funded through annual appropriations, such as the 
Bonneville Power Administration and the Tennessee Valley 
Authority, would reimburse the Treasury by increasing 
collections from the private sector. This could result in a 
small net decrease in direct spending, so pay-as-you-go 
procedures would apply; but CBO estimates that any such 
decreases in direct spending would be less than $500,000 a 
year.
    The act also would require agencies to notify and train 
employees about their rights and protections under 
discrimination law and to prepare annual statistical summaries 
of the discrimination actions and equal employment opportunity 
(EEO) complaints they face. H.R. 169 would direct the 
Administration to conduct a study to determine the best ways to 
discipline employees who engage in discriminatory actions. The 
act also would require the Equal Employment Opportunity 
Commission (EEOC) to post on its Internet web site certain 
statistics regarding EEO complaints. Finally, the legislation 
would direct the General Accounting Office (GAO) to prepare a 
report on the effects of eliminating the current requirement 
that federal employees exhaust administrative remedies before 
filing complaints with the EEOC, as well as, a study regarding 
costs to the Department of Justice of defending whistleblower 
and discrimination cases.
    CBO estimates that it would cost the EEOC up to $500,000 in 
each fiscal year to collect and post on its Internet web site 
the statistics relating to EEO complaints. Based on information 
from GAO, CBO estimates that it would cost that agency about 
$300,000 in 2003 to prepare the reports required by the 
legislation. We estimate that it would cost about $150,000 in 
fiscal year 2003 for the Administration, probably led by the 
Office of Personnel Management (OPM), to complete the study 
mandated by H.R. 169.
    CBO expects that most agencies would meet the act's 
requirements to provide notification and training to employees 
through their Internet web sites and would not incur 
significant costs to do so. We expect that the cost to prepare 
annual reports and statistical summaries for discrimination and 
EEO cases would be minimal because much of this information is 
already maintained, according to OPM and GAO. CBO estimates 
that the total costs for the 100 or so federal agencies to 
comply with the act's requirements would be no more than about 
$5 million annually.
    On June 8, 2001, CBO prepared a cost estimate for H.R. 169, 
as ordered reported by the House Committee on the Judiciary on 
May 23, 2001. The two versions of legislation are similar, and 
their estimated costs are the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

             VI. Section-by-Section Analysis and Discussion

Section 101. Findings

    Section 101 details the findings motivating the enactment 
of the legislation. These findings include: Federal agencies 
cannot be run effectively if they practice or tolerate 
discrimination; some agencies still face problems with 
discrimination and retaliation against Federal employees; and 
notifying Federal employees of their rights under 
discrimination and whistleblower statutes should increase 
agency compliance with the law.
    The findings also observe that requiring annual reports to 
Congress on the number and severity of discrimination and 
whistleblower cases brought against each Federal agency should 
enable Congress to improve its oversight of agencies' 
compliance with the law; requiring agencies to report on their 
analysis of the trends, patterns, and issues revealed in 
complaints should ensure that agencies systematically improve 
their complaint processes; and requiring Federal agencies to 
pay for any discrimination or whistleblower judgments, awards, 
or settlements should improve agency accountability with 
respect to whistleblower and discrimination laws.

Section 102. Sense of Congress

    Section 102 expresses the Sense of the Congress that 
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; the mission of the Federal agency and the 
employment security of employees who are blameless in a 
whistleblower incident should not be compromised; and Federal 
agencies should not use a reduction in force or furloughs as a 
means of funding a payment under this Act. Section 102 also 
expresses the Sense of the Congress that accountability in the 
enforcement of employee rights is not furthered by terminating 
the employment of other employees or the benefits to which 
those employees are entitled through statute or contract; and 
the No FEAR Act is not intended to authorize those actions.
    This section also expresses the Sense of the Congress that 
accountability is not furthered if Federal agencies react to 
the increased accountability under this Act by taking unfounded 
disciplinary actions against managers or by violating the 
procedural rights of managers who have been accused of 
discrimination; and 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.
    Finally, this section expresses the Sense of the Congress 
that Federal agencies are expected to reimburse the General 
Fund of the Treasury within a reasonable time under the Act; 
and a Federal agency, particularly if the amount of the 
reimbursement is large relative to annual appropriations for 
that agency, may need to extend the reimbursement over several 
years in order to avoid reductions in force, furloughs, other 
reductions in compensation or benefits for the workforce of the 
agency, or an adverse effect on the mission of the agency. 
Thus, there is nothing in the No FEAR Act that would cause an 
agency to compromise its employees' rights and benefits or the 
agency's mission.

Section 103. Definitions

    Section 103 defines ``Federal agency,'' ``Federal 
employee,'' ``former Federal employee,'' and ``applicant for 
Federal employment.'' The section also directs the Equal 
Employment Opportunity Commission to define the terms ``basis 
of alleged discrimination'' and ``issue of alleged 
discrimination.''

Section 104. Effective date

    Section 104 provides that this Act and the amendments made 
by this Act shall go into effect on the 1st day of the 1st 
fiscal year beginning 180 days after the date of enactment.
            Title II--Federal employee discrimination and retaliation

Section 201. Reimbursement requirement

    Section 201 requires agencies to reimburse the Treasury for 
amounts paid from the Judgement Fund to employees and their 
attorneys as a result of antidiscrimination and whistleblower 
protection complaints. Currently, Federal agencies do not 
always bear the costs of settlements or judgments in 
discrimination or retaliation complaints. Agencies now pay 
these costs when a complaint is resolved administratively. But, 
in the case of most agencies, once a lawsuit is filed, any 
subsequent monetary relief is generally paid by the Judgment 
Fund. The Judgment Fund is a permanently authorized fund 
administered by the Treasury, created by Congress to avoid the 
need for a specific congressional appropriation for settlement 
and judgment costs and to allow for prompter payments.
    Section 201 changes this by requiring each agency to bear 
the costs of judgments against it. The intent of this provision 
is to promote agency accountability and remove any financial 
incentive that may exist to prolong cases: i.e. as noted by 
GAO, under the current system, by not pursuing an 
administrative solution, the agency can shift the costs from 
the agency's budget to the Judgment Fund. Further, requiring 
agencies to pay for complaints in the administrative and court 
processes will also encourage the agencies to work to improve 
their dispute resolution procedures and promote policies that 
encourage a fair and equitable workplace.\5\
---------------------------------------------------------------------------
    \5\ In the case of those agencies where settlements and judgments 
are not paid out of the Judgment Fund, the reimbursement requirement is 
not relevant.
---------------------------------------------------------------------------

Section 202. Notification requirement

    Section 202(a)(b) requires that Federal agencies notify 
their employees in writing, and through the Internet, about any 
applicable discrimination and whistleblower protection laws. 
Agencies are not expected to provide written notification to 
former employees. Section 202(c) requires that each Federal 
agency provide its employees training regarding the rights and 
remedies applicable to such employees under antidiscrimination 
and whistleblower laws. The intent is to ensure that employees 
do not shy away from reporting problems because they have 
insufficient understanding of their rights. At the same time, 
workforce relations will improve ifmanagers are more aware of 
their responsibilities and employees of their rights. To comply with 
this section, agencies should deploy a number of training techniques, 
including on-line training. Agencies should also measure the 
effectiveness of such training to ensure that it produces the desired 
results.
    The written notification requirement is not intended to 
supersede any other provision of law, including 5 U.S.C. 
2302(c).

Section 203. Reporting requirement

    Section 203(a) requires that each Federal agency send an 
annual report to the Speaker of the House of Representatives, 
the President Pro Tempore of the Senate, the relevant 
appropriations and authorizing committees, the Senate 
Governmental Affairs Committee, the House Government Reform 
Committee, the Equal Employment Opportunity Commission, and the 
Attorney General. Requiring agencies to report to their 
respective appropriations and authorizing committees will 
strengthen Congressional oversight and send a signal to 
agencies that the committees with appropriate jurisdiction will 
be reviewing their data.
    Section 203(a) also requires agencies to report on the 
number of cases in which an agency was alleged to have violated 
any of the discrimination or whistleblower statutes; the 
disposition of each of these cases; the total of all monetary 
awards charged against the agency from these cases; the number 
of employees disciplined for discrimination, retaliation, or 
harassment; and a detailed description of the policy 
implemented by the agency to take appropriate disciplinary 
actions against any Federal employee who (1) discriminated 
against any individual in violation of discrimination and 
whistleblower statutes, or (2) committed another prohibited 
personnel practice that was revealed in the investigation of a 
complaint alleging a violation of any of the laws cited in 
Section 201(a)(1) or (2). Agencies would be required to report 
all cases that can be legally ascertained, including, for 
example, prohibited personnel practice matters reported to the 
agency by the U.S. Office of Special Counsel.
    In addition, agencies are required to report on an analysis 
of the data in this section (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. This data, as well as the analysis, is 
essential to ensure that agencies systematically improve their 
processes. Agencies should view this reporting as an 
opportunity to understand whether a problem exists within its 
organization, to ascertain the nature and extent of the 
problem, and to develop effective solutions. This section also 
requires each agency to report on any adjustment (to the extent 
the adjustment can be ascertained) made in the budget of the 
agency to comply with the reimbursement requirements in Section 
201.

Section 204. Rules and guidelines

    Section 204 requires that any rules necessary to carry out 
this Act shall be prescribed by the President or his designee. 
The section includes a requirement that a study be conducted by 
the executive branch to determine best practices for 
disciplining employees who discriminate or commit another 
violation revealed in a discrimination case. In addition, the 
section requires each Federal agency to notify Congress as to 
whether it has adopted or will adopt the guidelines, and if 
not, why.

Section 205. Clarification of the remedies

    Section 205 clarifies that making a claim under this bill 
does not affect remedies or rights under current law.

Section 206. Studies by the General Accounting Office on exhaustion of 
        administrative remedies and on ascertainment of certain 
        Department of Justice costs

    Section 206(a)(1) requires, not later than 180 days after 
enactment of the Act, the GAO to conduct a study to determine 
the effects of eliminating the requirement that Federal 
employees exhaust administrative remedies within the Federal 
agency before filing complaints with the Equal Employment 
Opportunity Commission (EEOC). Under present law and 
regulations, Federal agencies must decide whether to dismiss or 
accept complaints employees file with them and investigate 
accepted complaints. After this investigation, a complainant 
has the option of requesting a hearing before an EEOC 
administrative judge, and the agency must render a final 
decision. The average time to process a complaint in FY 1999 
was 423 days, up from 384 days in FY 1998.\6\ In FY 1998, a 
case that goes through the entire EEOC hearing and appeal 
process could be expected to take 1,186 days or about three 
years and two months.\7\ This length of time is too long and 
alternatives for improving this process need to be 
investigated. Therefore, section 206(a) requires the GAO to 
review how eliminating the requirement that the complainant 
exhaust the administrative process at the agencies before being 
allowed to file a complaint with the EEOC would: (1) expedite 
the handling of allegations of such violations within Federal 
agencies and streamline the complaint-filing process; (2) 
affect the workload of the EEOC; (3) affect the established 
alternative dispute resolution procedures in such agencies; and 
(4) affect any other matters determined by the GAO to be 
appropriate.
---------------------------------------------------------------------------
    \6\ Federal Sector Report on EEO Complaints Processing and Appeals, 
Fiscal Year 1999, United States Equal Employment Opportunity 
Commission.
    \7\ The United States General Accounting Office, Equal Employment 
Opportunity : Complaint Caseloads Rising with Effects of New 
Regulations on Future Trends Unclear, GGD-99-128 p.2.
---------------------------------------------------------------------------
    Section 206(a)(2) requires the GAO to report to the Speaker 
of the House, the President Pro Tempore, the President Pro 
Tempore of the Senate, and the Attorney General 90 days after 
the study is complete.
    Section 206(b)(1) requires that not later than 180 days 
after the date of enactment of this Act, the GAO shall conduct 
a study of the methods that could be used for, and the extent 
of any administrative burden that would be imposed on, the 
Department of Justice to ascertain thepersonnel and 
administrative costs incurred in defending agencies in 
antidiscrimination and whistleblower cases. Section 206(b)(2) requires 
that the report be completed not later than 90 days after the 
completion of the study and submitted to the Speaker of the House of 
Representatives and the President Pro Tempore of the Senate.
            Title III--Equal employment opportunity complaint 
                    disclosure

Section 301--Data to be posted by employing Federal agencies

    Section 301(a) requires that certain equal employment 
opportunity complaint data filed with such agency by employees, 
former employees and applicants for employment with such agency 
be disclosed on each Federal agency's web site in the time, 
form, and manner prescribed under the section.
    Section 301(b) lists the contents to be included on the 
posting of data for the then-current fiscal year.
    The data posted by a Federal agency under this section 
shall include, for the then current fiscal year: the number of 
complaints filed with the agency; the number of individuals 
filing those complaints (including as the agent of a class); 
the number of individuals who filed two or more complaints; the 
number of complaints in which each of the various bases of 
alleged discrimination is alleged; the number of complaints in 
which each of the various issues of alleged discrimination is 
alleged; and the average length of time, for each step of the 
process, it is taking the agency to process complaints (taking 
into account all complaints pending for any length of time in 
the fiscal year, whether first filed in the fiscal year or 
earlier).
    Average times shall be posted for all such complaints, 
including all complaints for which a hearing before an 
administrative judge of the EEOC is, or is not, requested; the 
total number of final agency actions in the fiscal year 
involving a finding of discrimination, and of that number, the 
number rendered after or without a hearing at EEOC. Of the 
total number of final agency actions rendered involving 
findings of discrimination, agencies must also post the number 
and percentage involving a finding of discrimination based on 
each of the respective bases of alleged discrimination, and the 
number and percentage that were rendered after or without a 
hearing before an administrative judge of EEOC. Similarly, of 
the total number of final agency actions involving a finding of 
discrimination, agencies are required to post the number and 
percentage involving a finding of discrimination in connection 
with each of the respective issues of alleged discrimination, 
and the number and percentage that were rendered after or 
without a hearing before the EEOC.
    Of the total number of complaints pending in each fiscal 
year, agencies are required to post the number that were first 
filed before the start of the then current fiscal year. With 
respect to those pending complaints that were first filed 
before the start of the then current fiscal year, the agencies 
are to post the number of individuals who filed those 
complaints, and the number of those complaints which are at the 
various steps of the complaint process.
    Agencies are also to post 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 the complaints an impartial and appropriate 
investigation.
    Section 301(c) provides the timing and other requirements 
for Federal agencies to post the data for the then current 
fiscal year. Section 301(c)(1) requires interim year-to-date 
data to be posted quarterly and final year-end data to be 
posted. Section 301(c)(2) requires that the data include year-
end data for each of the five immediately preceding fiscal 
years, or, if not available, for however many of those five 
years for which data are available.

Section 302. Data to be posted by the Equal Employment Opportunity 
        Commission

    Section 302(a) requires the EEOC to post on its Web site 
summary statistical data related to the hearings requested 
before an EEOC administrative judge and the appeals filed with 
the Commission from final agency actions on complaints 
described in section 301. Section 302(b) requires that the data 
with respect to the hearings and appeals at the EEOC shall 
include summary statistical data corresponding to that 
described earlier. Section 302(c) requires that the data under 
this section shall be in addition to the data the Commission is 
required to post under section 301 as an employing Federal 
agency.
    The lack of a complete accounting in the complex EEOC 
process makes it impossible for the Congress, the Federal 
agencies and the American public to have a clear and complete 
picture of the volume and nature of discrimination and 
retaliation that exists within the Federal workplace. This 
additional information will assist Congress and the agencies in 
assessing the extent of the problem throughout the Federal 
government, and will allow particular agencies to better 
understand if a problem exists within their organization that 
needs to be corrected.

Section 303. Rules

    Section 303 requires that the Equal Employment Opportunity 
Commission issue any rules necessary to carry out this title.

                      VII. CHANGES TO EXISTING LAW

    H.R. 169 does not repeal or amend an existing statute.

                                  
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