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99–010

" ! SENATE 107TH CONGRESS

2d Session

REPORT

2002

107–143

Calendar No. 346

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

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS

JOSEPH I. LIEBERMAN, Connecticut, Chairman

CARL LEVIN, Michigan

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

FRED THOMPSON, Tennessee

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

PETE V. DOMENICI, New Mexico

THAD COCHRAN, Mississippi

ROBERT F. BENNETT, Utah

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

2d Session " ! SENATE 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 adminVerDate 11-MAY-2000 13:34 Apr 17, 2002 Jkt 099010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR143.XXX pfrm11 PsN: SR143
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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. 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.

istratively, 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 Act makes 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.

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

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 reVerDate 11-MAY-2000 09:10 Apr 17, 2002 Jkt 099010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR143.XXX pfrm04 PsN: SR143
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4 J. Christopher Mihm, General Accounting Office, Testimony Before the Committee on the Judiciary, House of Representatives, May 9, 2001, p. 8.

spect 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

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 amendVerDate 11-MAY-2000 09:10 Apr 17, 2002 Jkt 099010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR143.XXX pfrm04 PsN: SR143
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ment 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.

5

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

6

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

7

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.

8

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.

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

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 if managers 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.

9

6Federal Sector Report on EEO Complaints Processing and Appeals, Fiscal Year 1999, United

States Equal Employment Opportunity Commission. 7The 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.

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

10

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.

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 the personnel 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 hearVerDate 11-MAY-2000 09:10 Apr 17, 2002 Jkt 099010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR143.XXX pfrm04 PsN: SR143
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ing 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.

12

VII. CHANGES TO EXISTING LAW

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

Æ