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[House Report 107-101]
[From the U.S. Government Publishing Office]

                                                                       
107th Congress                                            Rept. 107-101
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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

 
 NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION 
                              ACT OF 2001

                                _______
                                

                 June 14, 2001.--Ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 169]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 169) to require that Federal agencies be accountable 
for violations of antidiscrimination and whistleblower 
protection laws, and for other purposes, having considered the 
same, reports favorably thereon with amendments and recommends 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     6
Background and Need for the Legislation..........................     7
Hearings.........................................................     9
Committee Consideration..........................................     9
Vote of the Committee............................................    10
Committee Oversight Findings.....................................    10
Performance Goals and Objectives.................................    10
New Budget Authority and Tax Expenditures........................    10
Congressional Budget Office Cost Estimate........................    10
Constitutional Authority Statement...............................    12
Section-by-Section Analysis......................................    12
Markup Transcript................................................    20

    The amendments are as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2001''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.

                      TITLE I--GENERAL PROVISIONS

Sec. 101. Findings.
Sec. 102. Definitions.
Sec. 103. Effective date.

       TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

Sec. 201. Reimbursement requirement.
Sec. 202. Notification requirement.
Sec. 203. Reporting requirement.
Sec. 204. Rules and guidelines.
Sec. 205. Clarification of remedies.
Sec. 206. Study by General Accounting Office regarding exhaustion of 
administrative remedies.

   TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE

Sec. 301. Data to be posted by employing Federal agencies.
Sec. 302. Data to be posted by the Equal Employment Opportunity 
Commission.
Sec. 303. Rules.

                      TITLE I--GENERAL PROVISIONS

SEC. 101. FINDINGS.

    The Congress finds that--
            (1) Federal agencies cannot be run effectively if they 
        practice or tolerate discrimination,
            (2) the Committee on the Judiciary of the House of 
        Representatives has heard testimony from individuals, including 
        representatives of the National Association for the Advancement 
        of Colored People and the American Federation of Government 
        Employees that point to chronic problems of discrimination and 
        retaliation against Federal employees,
            (3) in August 2000, a jury found that the Environmental 
        Protection Agency had discriminated against a senior social 
        scientist, and awarded that scientist $600,000,
            (4) in October 2000, an Occupational Safety and Health 
        Administration investigation found that the Environmental 
        Protection Agency had retaliated against a senior scientist for 
        disagreeing with that agency on a matter of science and for 
        helping Congress to carry out its oversight responsibilities,
            (5) there have been several recent class action suits based 
        on discrimination brought against Federal agencies, including 
        the Federal Bureau of Investigation, the Bureau of Alcohol, 
        Tobacco, and Firearms, the Drug Enforcement Administration, the 
        Immigration and Naturalization Service, and the United States 
        Marshals Service,
            (6) notifying Federal employees of their rights under 
        discrimination and whistleblower laws should increase agency 
        compliance with the law,
            (7) 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 over agencies' compliance with the law, and
            (8) penalizing Federal agencies by requiring them to pay 
        for any discrimination or whistleblower judgments, awards, and 
        settlements should improve agency accountability with respect 
        to discrimination and whistleblower laws.

SEC. 102. DEFINITIONS.

    For purposes of this Act--
            (1) the term ``applicant for Federal employment'' means an 
        individual applying for employment in or under a Federal 
        agency,
            (2) the term ``basis of alleged discrimination'' shall have 
        the meaning given such term under section 303,
            (3) the term ``Federal agency'' means an Executive agency 
        or a military department (both as defined by section 105 of 
        title 5, United States Code), the United States Postal Service, 
        or the Postal Rate Commission,
            (4) the term ``Federal employee'' means an individual 
        employed in or under a Federal agency,
            (5) the term ``former Federal employee'' means an 
        individual formerly employed in or under a Federal agency, and
            (6) the term ``issue of alleged discrimination'' shall have 
        the meaning given such term under section 303.

SEC. 103. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall take effect on 
the 1st day of the 1st fiscal year beginning more than 180 days after 
the date of the enactment of this Act.

       TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

SEC. 201. REIMBURSEMENT REQUIREMENT.

    (a) Applicability.--This section applies with respect to any 
payment made in accordance with section 2414, 2517, 2672, or 2677 of 
title 28, United States Code, and under section 1304 of title 31, 
United States Code (relating to judgments, awards, and compromise 
settlements) to any Federal employee, former Federal employee, or 
applicant for Federal employment, in connection with any proceeding 
brought by or on behalf of such employee, former employee, or applicant 
under--
            (1) any provision of law cited in subsection (c), or
            (2) any other provision of law which prohibits any form of 
        discrimination, as identified under rules issued under section 
        204.
    (b) Requirement.--An amount equal to the amount of each payment 
described in subsection (a) shall be reimbursed to the fund described 
in section 1304 of title 31, United States Code, out of any 
appropriation, fund, or other account (excluding any part of such 
appropriation, of such fund, or of such account available for the 
enforcement of the laws cited in subsection (c) or laws relating to the 
environment, to civil rights, to employment rights, to labor relations, 
or to consumer protection) available for operating expenses of the 
Federal agency to which the discriminatory conduct involved is 
attributable, as determined under section 204.
    (c) Scope.--The provisions of law cited in this subsection are the 
following:
            (1) Section 322(a) of the Clean Air Act (42 U.S.C. 
        7622(a)).
            (2) Section 110(a) of the Comprehensive Environmental 
        Response, Compensation, and Liability Act (42 U.S.C. 9610(a)).
            (3) Section 507(a) of the Federal Water Pollution Control 
        Act (33 U.S.C. 1367(a)).
            (4) Section 1450(i)(1) of the Safe Drinking Water Act (42 
        U.S.C. 300j-9(i)(1)).
            (5) Section 7001(a) of the Solid Waste Disposal Act (42 
        U.S.C. 6971(a)).
            (6) Section 23(a) of the Toxic Substances Control Act (15 
        U.S.C. 2622(a)).
            (7) Section 2302(b) of title 5 of the United States Code, 
        as applied to discriminatory conduct described in paragraphs 
        (1) and (8), or described in paragraph (9) of such section as 
        applied to discriminatory conduct described in paragraphs (1) 
        and (8), of such section.
            (8) The provisions of law specified in section 2302(d) of 
        title 5 of the United States Code.

SEC. 202. NOTIFICATION REQUIREMENT.

    (a) In General.--Written notification of the rights and protections 
available to Federal employees, former Federal employees, and 
applicants for Federal employment (as the case may be) in connection 
with the respective provisions of law covered by paragraphs (1) and (2) 
of section 201(a) shall be provided to such employees, former 
employees, and applicants--
            (1) in accordance with otherwise applicable provisions of 
        law, or
            (2) if to the extent that no such notification would 
        otherwise be required, in such time, form, and manner as shall 
        under section 204 be required in order to carry out the 
        requirements of this section.
    (b) Posting on the Internet.--Any written notification under this 
section shall include, but not be limited to, the posting of the 
information required under paragraph (1) or (2) (as applicable) of 
subsection (a) on the Internet site of the Federal agency involved.
    (c) Employee Training.--Each Federal agency shall provide to the 
employees of such agency training regarding the rights and remedies 
applicable to such employees under the laws cited in section 201(c).

SEC. 203. REPORTING REQUIREMENT.

    (a) Annual Report.--Subject to subsection (b), not later than 180 
days after the end of each fiscal year, each Federal agency shall 
submit to the Speaker of the House of Representatives, the President 
pro tempore of the Senate, the Equal Employment Opportunity Commission, 
and the Attorney General an annual report which shall include, with 
respect to the fiscal year--
            (1) the number of cases arising under each of the 
        respective provisions of law covered by paragraphs (1) and (2) 
        of section 201(a) in which discrimination on the part of such 
        agency was alleged,
            (2) the status or disposition of cases described in 
        paragraph (1),
            (3) the amount of money required to be reimbursed by such 
        agency under section 201 in connection with each of such cases, 
        separately identifying the aggregate amount of such 
        reimbursements attributable to the payment of attorneys' fees, 
        if any,
            (4) the number of employees disciplined for discrimination, 
        retaliation, harassment, or any other infraction of any 
        provision of law referred to in paragraph (1),
            (5) the final year-end data posted under section 
        301(c)(1)(B) for such fiscal year (without regard to section 
        301(c)(2)), and
            (6) a detailed description of--
                    (A) the policy implemented by such agency to 
                discipline employees who are determined in any judicial 
                or administrative proceeding to have discriminated 
                against any individual in violation of any of the laws 
                cited in section 201(c), and
                    (B) with respect to each of such laws, the number 
                of employees who are disciplined in accordance with 
                such policy and the specific nature of the disciplinary 
                action taken.
    (b) First Report.--The 1st report submitted under subsection (a) 
shall include for each item under subsection (a) data for each of the 5 
immediately preceding fiscal years (or, if not available for all 5 
fiscal years, for however many of those 5 fiscal years for which data 
are available).

SEC. 204. RULES AND GUIDELINES.

    (a) Issuance of Rules and Guidelines.--The President (or the 
designee of the President) shall issue--
            (1) rules to carry out this title,
            (2) rules to require that a comprehensive study be 
        conducted in the Executive Branch to determine the best 
        practices for Federal agencies to take appropriate disciplinary 
        actions against Federal employees who are determined in any 
        judicial or administrative proceeding to have discriminated 
        against any individual in violation of any of the laws cited in 
        section 201(c), and
            (3) based on the results of such study, advisory guidelines 
        incorporating best practices that Federal agencies may follow 
        to take such actions against such employees.
    (b) Agency Notification Regarding Implementation of Guidelines.--
Not later than 30 days after the issuance of guidelines under 
subsection (a), each Federal agency shall submit to the Speaker of the 
House of Representatives, the President pro tempore of the Senate, the 
Equal Employment Opportunity Commission, and the Attorney General a 
written statement specifying in detail--
            (1) whether such agency has adopted and will fully follow 
        such guidelines,
            (2) if such agency has not adopted such guidelines, the 
        reasons for the failure to adopt such guidelines, and
            (3) if such agency will not fully follow such guidelines, 
        the reasons for the decision not to fully follow such 
        guidelines and an explanation of the extent to which such 
        agency will not follow such guidelines.

SEC. 205. CLARIFICATION OF REMEDIES.

    Consistent with Federal law, nothing in this title shall prevent 
any Federal employee, former Federal employee, or applicant for Federal 
employment from exercising any right otherwise available under the laws 
of the United States.

SEC. 206. STUDY BY GENERAL ACCOUNTING OFFICE REGARDING EXHAUSTION OF 
                    ADMINISTRATIVE REMEDIES.

    (a) Study.--Not later than 180 days after the date of the enactment 
of this Act, the General Accounting Office shall conduct a study 
relating to the effects of eliminating the requirement that Federal 
employees aggrieved by violations of any of the laws specified in 
paragraphs (7) and (8) of section 201(c) exhaust administrative 
remedies before filing complaints with the Equal Employment Opportunity 
Commission. Such study shall include a detailed summary of matters 
investigated, of information collected, and of conclusions formulated 
that lead to determinations of how the elimination of such requirement 
will--
            (1) expedite handling of allegations of such violations 
        within Federal agencies and will streamline the complaint-
        filing process,
            (2) affect the workload of the Commission,
            (3) affect established alternative dispute resolution 
        procedures in such agencies, and
            (4) affect any other matters determined by the General 
        Accounting Office to be appropriate for consideration.
    (b) Report.--Not later than 90 days after completion of the study 
required by subsection (a), the General Accounting Office shall submit 
to the Speaker of the House of Representatives, the President pro 
tempore of the Senate, the Equal Employment Opportunity Commission, and 
the Attorney General a report containing the information required to be 
included in such study.

   TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE

SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.

    (a) In General.--Each Federal agency shall post on its public Web 
site, in the time, form, and manner prescribed under section 303 (in 
conformance with the requirements of this section), summary statistical 
data relating to equal employment opportunity complaints filed with 
such agency by employees or former employees of, or applicants for 
employment with, such agency.
    (b) Content Requirements.--The data posted by a Federal agency 
under this section shall include, for the then current fiscal year, the 
following:
            (1) The number of complaints filed with such agency in such 
        fiscal year.
            (2) The number of individuals filing those complaints 
        (including as the agent of a class).
            (3) The number of individuals who filed 2 or more of those 
        complaints.
            (4) The number of complaints (described in paragraph (1)) 
        in which each of the various bases of alleged discrimination is 
        alleged.
            (5) The number of complaints (described in paragraph (1)) 
        in which each of the various issues of alleged discrimination 
        is alleged.
            (6) The average length of time, for each step of the 
        process, it is taking such agency to process complaints (taking 
        into account all complaints pending for any length of time in 
        such fiscal year, whether first filed in such fiscal year or 
        earlier). Average times under this paragraph shall be posted--
                    (A) for all such complaints,
                    (B) for all such complaints in which a hearing 
                before an administrative judge of the Equal Employment 
                Opportunity Commission is not requested, and
                    (C) for all such complaints in which a hearing 
                before an administrative judge of the Equal Employment 
                Opportunity Commission is requested.
            (7) The total number of final agency actions rendered in 
        such fiscal year involving a finding of discrimination and, of 
        that number--
                    (A) the number and percentage that were rendered 
                without a hearing before an administrative judge of the 
                Equal Employment Opportunity Commission, and
                    (B) the number and percentage that were rendered 
                after a hearing before an administrative judge of the 
                Equal Employment Opportunity Commission.
            (8) Of the total number of final agency actions rendered in 
        such fiscal year involving a finding of discrimination--
                    (A) the number and percentage involving a finding 
                of discrimination based on each of the respective bases 
                of alleged discrimination, and
                    (B) of the number specified under subparagraph (A) 
                for each of the respective bases of alleged 
                discrimination--
                            (i) the number and percentage that were 
                        rendered without a hearing before an 
                        administrative judge of the Equal Employment 
                        Opportunity Commission, and
                            (ii) the number and percentage that were 
                        rendered after a hearing before an 
                        administrative judge of the Equal Employment 
                        Opportunity Commission.
            (9) Of the total number of final agency actions rendered in 
        such fiscal year involving a finding of discrimination--
                    (A) the number and percentage involving a finding 
                of discrimination in connection with each of the 
                respective issues of alleged discrimination, and
                    (B) of the number specified under subparagraph (A) 
                for each of the respective issues of alleged 
                discrimination--
                            (i) the number and percentage that were 
                        rendered without a hearing before an 
                        administrative judge of the Equal Employment 
                        Opportunity Commission, and
                            (ii) the number and percentage that were 
                        rendered after a hearing before an 
                        administrative judge of the Equal Employment 
                        Opportunity Commission.
            (10)(A) Of the total number of complaints pending in such 
        fiscal year (as described in the parenthetical matter in 
        paragraph (6)), the number that were first filed before the 
        start of the then current fiscal year.
            (B) With respect to those pending complaints that were 
        first filed before the start of the then current fiscal year--
                    (i) the number of individuals who filed those 
                complaints, and
                    (ii) the number of those complaints which are at 
                the various steps of the complaint process.
            (C) Of the total number of complaints pending in such 
        fiscal year (as described in the parenthetical matter in 
        paragraph (6)), the total number of complaints with respect to 
        which the agency violated the requirements of section 
        1614.106(e)(2) of title 29 of the Code of Federal Regulations 
        (as in effect on July 1, 2000, and amended from time to time) 
        by failing to conduct within 180 days of the filing of such 
        complaints an impartial and appropriate investigation of such 
        complaints.
    (c) Timing and Other Requirements.--
            (1) Current year data.--Data posted under this section for 
        the then current fiscal year shall include both--
                    (A) interim year-to-date data, updated quarterly, 
                and
                    (B) final year-end data.
            (2) Data for prior years.--The data posted by a Federal 
        agency under this section for a fiscal year (both interim and 
        final) shall include, for each item under subsection (b), such 
        agency's corresponding year-end data for each of the 5 
        immediately preceding fiscal years (or, if not available for 
        all 5 fiscal years, for however many of those 5 fiscal years 
        for which data are available).

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

    (a) In General.--The Equal Employment Opportunity Commission shall 
post on its public Web site, in the time, form, and manner prescribed 
under section 303 for purposes of this section, summary statistical 
data relating to--
            (1) hearings requested before an administrative judge of 
        the Commission on complaints described in section 301, and
            (2) appeals filed with the Commission from final agency 
        actions on complaints described in section 301.
    (b) Specific Requirements.--The data posted under this section 
shall, with respect to the hearings and appeals described in subsection 
(a), include summary statistical data corresponding to that described 
in paragraphs (1) through (10) of section 301(b), and shall be subject 
to the same timing and other requirements as set forth in section 
301(c).
    (c) Coordination.--The data required under this section shall be in 
addition to the data the Commission is required to post under section 
301 as an employing Federal agency.

SEC. 303. RULES.

    The Equal Employment Opportunity Commission shall issue any rules 
necessary to carry out this title.

    Amend the title so as to read:

      A bill 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.

                          Purpose and Summary

    H.R. 169, the ``Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2001,'' (No FEAR Act) 
requires that Federal agencies be accountable for violations of 
discrimination and whistleblower protection laws. H.R. 169 
provides Federal employees throughout the Federal Government 
with additional on-the-job protection from illegal 
discrimination, retaliation, and other mistreatment by 
deterring and punishing government misconduct toward them.

                Background and Need for the Legislation

    H.R. 169, the No FEAR Act, is in response to a year-long 
congressional investigation under the direction of Chairman 
Sensenbrenner as the Chairman of the Committee on Science. In 
1999, the Science Committee began to receive complaints that a 
particular Federal agency illegally discriminated and/or 
retaliated against a number of its employees. The Committee on 
Science held a hearing in March 2000, and a hearing in October 
2000, on the issue of discrimination at the agency. The 
evidence developed during the course of the investigation and 
hearings substantiated some of the allegations and suggested 
that the agency's apparent culture of intolerance stemmed from 
a lack of accountability, an absence of awareness of the depth 
of the problem, and a lack of knowledge of the whistleblower 
and discrimination laws protecting employees. In fact, the 
Department of Labor found the agency had retaliated against one 
employee for helping the Science Committee with an oversight 
hearing on the issue.
    When the agency was questioned on its behavior, the agency 
responded that it had a great diversity record. When questioned 
about notifying employees of their rights under the various 
whistleblower provisions, the agency responded that it was only 
required to notify the employees under one of the laws, not the 
others. When asked how the agency pays for judgments and 
settlements for discriminating or retaliating, the agency 
responded such payments were made out of the general treasury--
not by the Federal agencies. Following the hearings and the 
investigation, Federal employees in other agencies began 
contacting the Committee on Science with allegations of similar 
problems.
    Immediately after the October 2000 hearing, Chairman 
Sensenbrenner and Representatives Sheila Jackson Lee and Connie 
Morella introduced the No FEAR Act to rectify the three 
problems highlighted in the investigation. The bill was 
reintroduced on the first day of the 107th Congress.
    On May 9, 2001, the Committee on the Judiciary held a 
legislative hearing on H.R. 169, the NO FEAR Act. At the 
hearing, Dr. Marsha Coleman-Adebayo, a social scientist, who 
won a jury decision in August 2000 against the Environmental 
Protection Agency for discrimination, testified that 
``retaliation is an ever-present aspect of one's life once you 
file a complaint of discrimination or when you win a jury 
verdict.'' Dr. Coleman-Adebayo concluded that ``with the 
passage of the N[o] FEAR bill the government will no longer be 
able to abdicate its responsibility to seriously deal with the 
problems of discrimination in the [F]ederal sector.''
    Kweisi Mfume, President and Chief Executive Officer of the 
National Advancement of Colored People, testified that 
``[F]ederal employees today are often subjected to racial and 
gender discrimination with little or no recourse. . . . 
Discrimination, and retaliation against people who complain 
about it and their supporters, is rampant in [F]ederal 
departments and agencies across the nation.'' Mr. Mfume 
concluded that:

        [b]y requiring that [F]ederal agencies be held 
        accountable for violations of anti-discrimination and 
        whistleblower protection laws, H.R. 169 renews efforts 
        to address a problem that has been allowed to fester 
        far too long. Furthermore, by requiring that [F]ederal 
        agencies notify their employees of their rights under 
        discrimination and whistleblower statutes, H.R. 169 
        would require the [F]ederal government to send an 
        important message to all its employees that we are 
        serious about ensuring that peoples' rights are 
        protected. The portion of H.R. 169 that requires that 
        [F]ederal agencies report to Congress each year on the 
        number of discrimination complaints lodged against it, 
        as well as the disposition of such cases would also let 
        employees know that their rights are being monitored, 
        and that Congress is watching out for them. Finally, 
        the language in H.R. 169 requiring that [F]ederal 
        agencies pay out of their own budgets any 
        discrimination or whistleblower judgments, awards or 
        settlements against the agency, would clearly help make 
        agency administrators as well as Department Secretaries 
        more aware of what is happening and more interested in 
        taking steps to prevent these discriminatory practices.

    The President of the American Federation of Government 
Employees, Bobby L. Harnage, Sr., testified that ``the practice 
of discrimination is invidious and pernicious. The toleration 
of discrimination in the [F]ederal workplace is equally 
invidious and pernicious and yet more harmful. Continued 
complacency paves the way for continued evil and has a great 
cost to our citizens, to our government and to the fabric of 
our country.'' Mr. Harnage concluded that ``[t]his bill would 
require that [F]ederal agencies be held accountable for 
violations of employment discrimination and whistleblower 
protection laws.''
    All the witnesses testified that this bill would make 
Federal agencies accountable for violations of 
antidiscrimination and whistleblower protection laws. The need 
for this bill has garnered wide and diverse support. The 
National Taxpayers Union (NTU) sent testimony to the May 9, 
2001 hearing which provided that NTU and ``its 300,000 members 
strongly support the passage of H.R. 169. . . .'' The 
President, Dr. John E. Berthoud, stated that:

        [t]he No FEAR Act will hold individual government 
        agencies financially responsible for judgments they 
        lose by requiring financial settlements be taken from a 
        particular agency's budget, rather than using a slush 
        fund of taxpayer's money. By attacking the purse 
        strings of these offending government agencies, the No 
        FEAR Act can create a more fiscally responsible 
        [F]ederal government. Agencies will now have to act 
        more responsibly or else risk serious financial 
        consequences. The No FEAR Act will not only make 
        agencies more financially accountable, but it will 
        create incentives to improve relations with workers. 
        This is good news for the workers as they shouldn't 
        have to tolerate discrimination or face retribution for 
        whistle-blowing. This is also good news for taxpayers. 
        An unhappy [F]ederal workforce makes for less efficient 
        and more expensive government. And [F]ederal employees 
        should never feel intimidated to step forward and 
        expose waste, fraud or abuse where they see it 
        occurring.

    The National Whistleblower Center also provided written 
testimony to the Committee regarding the need for the bill to 
protect whistleblowers. The Executive Director, Kris Kolesnik, 
testified that ``[d]espite the major contributions 
whistleblowers make on behalf of the public, management 
invariably retaliates.'' He went on to state that the National 
Whistleblower Center supports the legislation because it would 
require employees to be fully informed of their rights and 
require reporting that is needed because there ``are very few 
statistics on discrimination and whistleblower cases [and] 
[t]his data is important because, for Congress, it can be a 
warning system as to whether protections are working 
properly.'' He also identified accountability as ``the one true 
deterrent against discrimination and retaliation. Without it, 
managers feel it is open season on employees. Whistleblowers 
often need to bring not just one case, but two or three.''
    In a series of GAO reports prior to the hearing, GAO found 
that the number of Federal employee discrimination complaints 
grew during the 1990's, overwhelming both the Equal Employment 
Opportunity Commission (EEOC) and the Federal agencies. \1\ In 
1999, EEOC hearing requests increased by about 120 percent over 
the number of requests in 1991. \2\ GAO also reported that 
there ``has been an increase in the number of complaints 
alleging reprisal, which, for the most part, involve claims of 
retaliation by employees who have previously participated in 
the complaint process.'' \3\ At the May 9, 2001 hearing, GAO 
testified that there is a need for accountability, reporting, 
and notification in regard to discrimination and retaliation 
against Federal employees. H.R. 169 addresses these needs.
---------------------------------------------------------------------------
    \1\ The United States General Accounting Office, Equal Employment 
Opportunity: Discrimination Complaint Caseloads and Underlying Causes 
Require EEOC's Sustained Attention, GGD-00-104 p. 1.
    \2\ The United States General Accounting Office, Equal Employment 
Opportunity: Discrimination Complaint Caseloads and Underlying Causes 
Require EEOC's Sustained Attention, GGD-00-104 p. 3.
    \3\ The United States General Accounting Office, Equal Employment 
Opportunity: Data Shortcomings Hinder Assessment of Conflicts in the 
Federal Workplace, GGD-99-75 p. 6.
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held one hearing on H.R. 
169, the ``Notification and Federal Employee Antidiscriminaiton 
and Retaliation Act of 2001,'' on May 9, 2001. Testimony was 
received from four witnesses, representing three organizations 
and one private citizen. The witnesses were: Kweisi Mfume, 
President & CEO of the National Association for the Advancement 
of Colored People; J. Christopher Mihm, Director of Strategic 
Issues for the General Accounting Office; Bobby L. Harnage, 
Sr., National President of the American Federation of 
Government Employees, AFL-CIO; and Marsha Coleman-Adebayo, 
Ph.D, private citizen.

                        Committee Consideration

    On May 23, 2001, the Committee met in open session and 
ordered favorably reported the bill H.R. 169, as amended, by a 
voice vote, a quorum being present.

                         Vote of the Committee

    No recorded votes were taken on the bill H.R. 169 during 
Committee consideration. However, an amendment in the nature of 
a substitute offered by Chairman Sensenbrenner, on behalf of 
himself, and Ranking Member John Conyers and Representative 
Sheila Jackson Lee passed by voice vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    The bill is intended to require Federal agencies to prevent 
and reduce discrimination and retaliation by notifying its 
employees of their rights and responsibilities with regard to 
antidiscrimination and whistleblower laws; by providing a 
better assessment of the problem through the reporting of 
adequate, consistent and reliable data; by making Federal 
agencies and Federal employees accountable for their actions.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 169, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, June 8, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, 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 2001.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Member
H.R. 169--Notification and Federal Employee Antidiscrimination and 
        Retaliation Act of 2001.
    H.R. 169 would require Federal agencies to train employees 
and notify them of their 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 each year. Enacting the bill could 
slightly increase offsetting receipts (a form of direct 
spending), so pay-as-you-go procedures would apply. This 
legislation 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.
    Under current law, court-ordered monetary settlements in 
favor of employees who sue Federal agencies in discrimination 
or reprisal complaints are paid out of 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 bill 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 
bill 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.
    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 over the 2002-2003 period to prepare the report 
required by the bill. 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 bill'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 bill's requirements would be no more than about 
$5 million annually.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. The estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8, of the Constitution.

               Section-by-Section Analysis and Discussion

Section 1. Short Title; Table of Contents
    Section 1 of the bill states the short title of the bill as 
the ``Notification and Federal Employee Antidiscrimination and 
Retaliation Act of 2001.'' This section also includes a table 
of contents.

                      TITLE I. GENERAL PROVISIONS

Section 101. Findings
    Section 101 provides the following congressional findings:

(1) LFederal agencies cannot be run effectively if they 
practice or tolerate discrimination;

(2) Lthe Committee on the Judiciary of the House of 
Representatives has heard testimony from individuals, including 
representatives of the National Association for the Advancement 
of Colored People and the American Federation of Government 
Employees, that point to chronic problems of discrimination and 
retaliation against Federal employees;

(3) Lin August 2000, a jury found that the Environmental 
Protection Agency had discriminated against a senior social 
scientist, and awarded that scientist $600,000;

(4) Lin October 2000, an Occupational Safety and Health 
Administration investigation found that the Environmental 
Protection Agency had retaliated against a senior scientist for 
disagreeing with that agency on a matter of science and for 
helping Congress to carry out its oversight responsibilities;

(5) Lthere have been several recent class action suits based on 
discrimination brought against Federal agencies, including the 
Federal Bureau of Investigation; Alcohol, Tobacco, and 
Firearms; the Drug Enforcement Administration; the Immigration 
and Naturalization Service; and the U.S. Marshals Service;

(6) Lnotifying Federal employees of their rights under 
discrimination and whistleblower statutes should increase 
agency compliance with the law;

(7) Lrequiring 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 over agencies' compliance with the law; and

(8) Lpenalizing Federal agencies by requiring them to pay for 
any discrimination or whistleblower judgments, awards, or 
settlements should improve agency accountability with respect 
to whistleblower and discrimination laws.
Section 102. Definitions.
    Section 102 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 103. Effective date.
    Section 103 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 of 
the act.

       TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

Section 201. Reimbursement Requirement
    Section 201 would change current law that allows a Federal 
agency to be held financially harmless when it loses court 
judgments, awards or compromise settlements for retaliating or 
discriminating. Under current law, Federal employment 
discrimination complaints are handled at two levels: the 
administrative process and the courts.\4\ If the complaint is 
resolved in the administrative process and the corrective 
action includes monetary relief, the money is paid from the 
offending agency's funds.\5\ When a complaint is resolved in 
the courts, that same agency does not have to pay for the 
monetary relief to the complainant.\6\ The money is paid from 
the Judgment Fund,\7\ which is a general treasury account that 
provides a permanent indefinite appropriation to pay certain 
settlements and judgments. \8\
---------------------------------------------------------------------------
    \4\ The United States General Accounting Office, Discrimination 
Compalints: Monetary Wards in the Federal EEO Cases, GGD-95-23FS p. 2.
    \5\ Id.
    \6\ Id.
    \7\ Id.
    \8\ The United States General Accounting Office, Discrimination 
Compalints: Monetary Wards in the Federal EEO Cases, GGD-95-23FS p. 1.
---------------------------------------------------------------------------
    The Committee finds that allowing Federal agencies to use 
the general treasury as a slush fund to pay court judgments and 
settlements for discriminating and retaliating, has created: 
(1) a lack of accountability among some of the Federal 
agencies; and (2) a perverse incentive for agencies to prolong 
the cases until they reach court. The Committee believes the 
solution, in part, is to hold the agencies fiscally responsible 
in both the administrative and court processes. This will help 
promote agency accountability and remove the incentive to 
prolong the cases. The Committee understands that there are two 
ways to remove the incentive to prolong and delay these cases. 
Congress could change the current system, which requires 
agencies to pay for settlements in the administrative process, 
to allow agencies to go to the general treasury for 
administrative decisions as well as court decisions. However, 
this alternative fails to promote accountability by the 
offending agencies to prevent discrimination or retaliation in 
the first place. The Committee's view is that requiring the 
agencies themselves to pay for discrimination and retaliation 
judgments and settlements in both the administrative and court 
processes is necessary to encourage the agencies to work to 
improve their dispute resolution procedures and promote 
policies that encourage a fair and equitable workplace.
    The Committee understands the concern that those agencies 
that have shown a lack of interest to prevent discrimination or 
retaliation may retaliate for court judgments by targeting the 
claimant employee or employees with reductions in compensation 
or benefits or workforce to pay for such judgments. The 
Committee would remind Federal agencies that ``[s]alaries and 
wages, [with the exception of the Postal Service and the 
Tennessee Valley Authority], are paid under statutory systems, 
such as the General Schedule, Foreign Service, Department of 
Veterans Affairs Health Administration, Senior Executive 
Service, and the Federal Wage System (blue collar). Agency 
heads do not have the authority to reduce salary rates or to 
refuse to compensate employees with pay raises which affect the 
entire system under which the employees are paid. Nor do the 
agency heads have the authority to reduce other statutory 
benefits which are not direct compensation, such as health and 
retirement benefits.'' \9\
---------------------------------------------------------------------------
    \9\ Congressional Research Service, Memorandum on the Source of 
Reimbursement Funds under Proposed H.R. 169, (May 2001).
---------------------------------------------------------------------------
    It is also the intent of the Committee that the mission of 
an agency, and the jobs of its other employees, who are 
blameless in the incident, not be compromised. For this reason, 
the Committee does not intend for this legislation to permit an 
agency to use a Reduction in Force (RIF) or furloughs, as a 
means for funding a payment due under this legislation. The 
Committee does not believe that accountability in the 
enforcement of employee rights is furthered by taking away the 
jobs of other employees, or by taking away the benefits to 
which those employees are already entitled by statute or 
contract. The Committee does not intend, by this legislation, 
to authorize it. Such actions are also plainly unnecessary. A 
Federal agency has many ways other than RIFs or furloughs to 
make such payments. First, the Federal agencies may seek 
appropriations to reimburse the general treasury. Second, the 
amounts paid by the general treasury for the Federal agencies 
do not appear to be exorbitant amounts. In fact, the amounts 
paid out of the general treasury for fiscal year 2000 was $42.7 
million compared to the $1.8 trillion in Federal spending for 
the same year. Additionally, agency heads have other cost-
saving management tools available to help offset any potential 
judgment; tools that do not implicate RIFs or reductions in 
salaries or benefits. Finally, H.R. 169 does not require the 
agency to immediately reimburse the general treasury. The 
Committee does expect an agency to reimburse the general 
treasury within a reasonable time, but understands that a 
Federal agency, particularly a smaller agency, may need to 
spread out the reimbursement over a number of years if the 
amount is large compared to an agency's annual appropriation. 
Congress will be able to determine if an agency is reimbursing 
the general treasury within a reasonable time through the 
reporting requirements under the No FEAR Act.
    The Committee believes the proposed amendment to prohibit 
agencies from using their budgets allocated for salaries and 
expenses could have proved over broad. While it is the 
Committee's intent to protect the salaries, benefits and jobs 
of agency employees, the salaries and expenses account is 
generally the primary account that funds most agencies, there 
is no uniform definition of the account.\10\ Moreover, although 
salaries and expenses accounts are often associated with 
personnel compensation and benefits, such accounts include 
monies for other purposes.\11\ Without a standard definition 
Federal agencies may fund all their activities under the 
salaries and expenses accounts and avoid reimbursing the 
general treasury for discrimination and whistleblower 
judgments. Accordingly, the Committee finds that the best 
alternative to ensure the Federal agencies do not retaliate is 
through the reporting requirements of this act and 
congressional oversight.
---------------------------------------------------------------------------
    \10\ Congressional Research Service, Memorandum on the Breakout of 
Compensation and Benefit Costs for Selected Federal Law Enforcement 
Agencies, (May 2001) 2.
    \11\ Id.
---------------------------------------------------------------------------
    Section 201(b) excludes any part of such appropriation of 
such fund, or of such account available for the enforcement of 
the laws cited in subsection (c) or the enforcement of laws 
relating to the environment, civil rights, employment, labor 
relations and consumer protection. The appropriation or account 
must designate the funding purpose as enforcement. It is the 
Committee's view that a bill that is designed to protect civil 
rights and whistleblower rights would be undercut if funds used 
to enforce civil rights and whistleblower laws would be 
affected. It is also the Committee's view that funds used to 
enforce environmental and consumer protection laws should not 
be affected. As a result, under the act, an agency cannot use 
any funds designated for the enforcement of the civil rights, 
whistleblower, employer, labor relations and consumer 
protection laws to pay for judgments that arise under this act.
Section 202. Notification Requirement
    Section 202(a) requires that Federal agencies notify their 
employees in writing about any applicable discrimination and 
whistleblower protection laws. It is not the Committee's 
intention that agencies provide written notification to former 
employees, web notification should suffice in that area. 
Section 202(b) requires that such notifications include 
postings on the Internet. Section 202(c) requires that each 
Federal agency shall provide their respective employees 
training regarding the rights and remedies applicable to such 
employees under the laws cited in section 201(c).
    It is the view of the Committee that existing requirements 
must be reinforced and additional requirements included to 
ensure that Federal employees are aware of their rights against 
discrimination and reprisal. The Committee is concerned that 
employees may not come forward without sufficient understanding 
of their rights. The Committee believes that workforce 
relations should improve if managers are more aware of their 
responsibilities and employees of their rights. With regard to 
training, it is the Committee's view that on-line training 
would be an efficient and effective mechanism for the agencies 
to use. The on-line training could provide the agencies with 
the ability to monitor who is and is not participating in the 
training and could provide a more affordable method.
Section 203. Reporting Requirement
    Section 203(a) requires that each Federal agency send an 
annual report to the Speaker of the House of Representatives 
and the President pro tempore of the Senate (this language 
allows each committee of jurisdiction to receive a copy), the 
Equal Employment Opportunity Commission, and the Attorney 
General listing:

(1) Lthe number of cases in which an agency was alleged to have 
violated any of the discrimination or whistleblower statutes;

(2) Lthe disposition of each of these cases;

(3) Lthe total of all monetary awards charged against the 
agency from these cases;

(4) Lthe number of employees disciplined for discrimination, 
retaliation or harassment;

(5) Lthe final-year end data of title III; and

(6) La detailed description of the disciplinary policy of the 
reporting agency and the number of employees who are 
disciplined in accordance with such policy and the specific 
nature of the disciplinary action taken.

    It is the view of the Committee that this new reporting is 
required in addition to existing reporting requirements. The 
Committee believes that the lack of consistent reliable data 
has made it difficult to understand the extent to which Federal 
agencies are discriminating and retaliating against 
whistleblowers. Agencies should view this reporting as an 
opportunity to understand whether a problem exists within its 
organization or to demonstrate that a problem does not exist.
    In testimony at the May 9, 2001, hearing, General 
Accounting Office concluded that ``[t]o help ensure economical, 
efficient, and effective delivery of services for the benefit 
of the American people, allegations of discrimination and 
reprisal for whistleblowing in the [F]ederal workplace must be 
dealt with in a fair, equitable, and timely manner. Doing so 
requires, first, reliable and complete reporting of data as a 
starting point to understand the nature and scope of issues in 
the workplace involving discrimination, reprisal, and other 
conflicts and problems, and to help develop strategies for 
dealing with the issues.''
    Section 203(b) requires that the first annual report 
include data for each of the 5 immediately preceding fiscal 
years or, if data are not available for all fiscal years, for 
however many of those fiscal years for which data are 
available. This is a one-time requirement to provide a baseline 
of the situation at each reporting agency.
Section 204. Rules
    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 the administration 
conduct a study to determine a standard code of conduct and 
establish government-wide guidelines for Federal agencies. 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 Remedies
    Section 205 clarifies that making a claim under this bill 
does not affect remedies or rights under current law.
Section 206. Study by General Accounting Office Regarding Exhaustion of 
        Administrative Remedies
    Section 206(a) requires the General Accounting Office 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). The 
exhaustion of administrative remedies under this section refers 
only to the administrative remedies before filing with the 
EEOC. Federal agencies must decide whether to dismiss or accept 
complaints employees file with them and investigate accepted 
complaints.\12\ After this investigation, a complainant may 
then go to the EEOC.\13\ Agencies must decide whether to accept 
a complaint, investigate it, and report the investigation 
results within 180 days from the complaint's filing.\14\ The 
average time to process a complaint at agencies, however, was 
384 days in fiscal year 1998.\15\ A case that goes through the 
entire complaint process including the EEOC hearing and appeal 
could be expected to take 1,186 days or about 3 years and 2 
months.\16\ The Committee believes this length of time is too 
long and alternatives for improving this process need to be 
investigated. Section 206(a) requires the General Accounting 
Office to review how eliminating the administrative process at 
the agencies 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.
---------------------------------------------------------------------------
    \12\ 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. 3.
    \13\ Ibid.
    \14\ 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. 30.
    \15\ 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.
    \16\ Id.
---------------------------------------------------------------------------
    Section 206(b) requires the GAO to report the Speaker of 
the House, the President pro tempore of the Senate, the Equal 
Employment Opportunity Commission, and the Attorney General 90 
days after the study is complete.

   TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE

Section 301. Data to be Posted by Employing Federal Agencies
    Section 301(a) requires that the following 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.
    Section 301(b) list the contents to be included on the 
posting of data for the then current fiscal year. The contents 
include the following data:

 (1) LThe number of complaints filed with such agency in such 
fiscal year.

 (2) LThe number of individuals filing those complaints 
(including class actions).

 (3) LThe number of individuals who filed 2 or more of those 
complaints.

 (4) LThe number of complaints (described in paragraph (1)) in 
which each of the various statutory bases of alleged 
discrimination is alleged.

 (5) LThe number of complaints (described in paragraph (1)) in 
which each of the various issues of alleged discrimination is 
alleged.

 (6) LThe average length of time, for each step of the process, 
it is taking such agency to process EEOC complaints. The 
average times under this paragraph shall be posted:

    (A) Lfor all such complaints;

    (B) Lfor all such complaints in which a hearing before an 
administrative judge of the EEOC is not requested; and

    (C) Lfor all such complaints in which a hearing before an 
administrative judge of the EEOC is requested.

 (7) LThe total number of final agency actions rendered in such 
fiscal year involving a finding of discrimination and, of that 
number--

    (A) Lthe number and percentage that were rendered without a 
hearing before an administrative judge of the EEOC; and
    (B) Lthe number and percentage that were rendered after a 
hearing before an administrative judge of the EEOC.

 (8) LThe total number of final agency actions rendered in such 
fiscal year involving a finding of discrimination--

    (A) Lthe number and percentage involving a finding of 
discrimination based on each of the respective bases of alleged 
discrimination,

    (B) Lof the number specified under paragraph (A) for each 
of the respective bases of alleged discrimination--

                 (i) Lthe number and percentage that were 
                rendered without a hearing before an 
                administrative judge of the EEOC, and

                 (ii) Lthe number and percentage that rendered 
                after a hearing before an administrative judge 
                of the EEOC.

 (9) LOf the total number of final agency actions rendered in 
such fiscal year involving a finding of discrimination--

    (A) Lthe number and percentage involving a finding of 
discrimination in connection with each of the respective issues 
of alleged discrimination, and
    (B) Lof the number specified under subparagraph (A) for 
each of the respective issues of alleged discrimination--

                 (i) Lthe number and percentage that were 
                rendered without a hearing before an 
                administrative judge of the EEOC, and

                 (ii) Lthe number and percentage that were 
                rendered after a hearing before an 
                administrative judge of the EEOC.

(10) (A) LOf the total number of complaints pending in such 
fiscal year (as described in the parenthetical matter in 
paragraph (6)), the number that were first filed before the 
start of the then current fiscal year.

    (B) LWith respect to those pending complaints that were 
first filed before the start of the then current fiscal year--

                 (i) Lthe number of individuals who filed those 
                complaints, and

                 (ii) Lthe number of those complaints which are 
                at the various steps of the complaint process.

    (C) LOf the total number of complaints pending in such 
fiscal year (as described in the parenthetical matter in 
paragraph (6)), the total number of complaints with respect to 
which the agency violated the requirements of section 
1614.106(e)(2) of title 29 of the Code of Federal Regulations 
(as in effect on July 1, 2000, and amended from time-to-time) 
by failing to conduct within 180 days of the filing of such 
complaints an impartial and appropriate investigation of such 
complaints.

    Section 301(c) provides the timing and other requirements 
for the 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 5 immediately preceding fiscal years.
    It is the view of the Committee that 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. GAO testified at the May 9, 2001, hearing ``because 
data are not readily available, there is no clear picture of 
the number of complaints of workplace discrimination and 
reprisal for whistleblowing at agencies or governmentwide and 
the outcome of these cases. Data of this nature are important 
because they can be a starting point for agency managers to 
understand the nature and scope of issues in the workplace 
involving discrimination, reprisal, and other conflicts and 
problems, and can help in developing strategies for dealing 
with those issues.'' The Committee agrees with the General 
Accounting Office's assessment of the need for accurate 
accounting. 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 picture of the 
volume and nature of discrimination and retaliation that exists 
within the Federal work place.
Section 302. Data to be Posted by the Equal Employment Opportunity 
        Commission
    Section 302(a) requires that the Equal Employment 
Opportunity Commission shall post on its Web site:

(1) Lthe hearings requested before an EEOC administrative judge 
on the complaints described in section 301.

(2) Lthe 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 in paragraphs 
(1) through (10) of section 301(b) and shall be subject to the 
same timing and other requirements as set forth in section 
301(c).
    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.
Section 303. Rules
    Section 303 requires that the Equal Employment Opportunity 
Commission issue any rules necessary to carry out this title.

                           Markup Transcript

                            BUSINESS MEETING

                        WEDNESDAY, MAY 23, 2001

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order.
    I'd like to recognize the gentleman from Michigan for a 
couple of housekeeping matters first before we go to the 
markup. The gentleman from Michigan?
    Mr. Conyers. Thank you, Mr. Chairman.
    In connection with the Democratic side of the Judiciary 
Committee, I ask unanimous consent that Representative Weiner 
be made a Member of the Subcommittee on Courts, the Internet, 
and Intellectual Property, and that Representative Schiff be 
made a Member of the Subcommittee on Crime.
    Chairman Sensenbrenner. Without objection. Without 
objection, with the understanding that Mr. Weiner comes off the 
Crime Subcommittee. Without objection, so ordered.
    The gentleman from Michigan, is that all?
    Mr. Conyers. Well, I'd like to make my other statement 
during--when we come to order.
    Chairman Sensenbrenner. Pursuant to notice, the first item 
on the agenda is H.R. 169, the Notification and Federal Act of 
2001, and I move its favorable recommendation to the full 
House.
    [H.R. 169 follows:]
    
    
    Without objection, the bill will be considered as read and 
open for amendment at any point, and the amendment in the 
nature of a substitute, which the Members have before them, 
will be considered as read and considered as the original text 
for purposes of amendment.
    [The amendment in the nature of a substitute follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes himself to 
strike the last word.
    Along with Representative Jackson Lee, I introduced H.R. 
169, the ``Notification and Federal Employees 
Antidiscrimination and Retaliation Act of 2001,'' to address an 
outrage in the Federal Government. Federal agencies today are 
not being held accountable for acts of discrimination and 
retaliation against their employees. Because Federal agencies 
do not have to pay for judgments and settlements if the case 
goes to court, they are not accountable for the misdeeds of 
their employees.
    Because of inadequate notification requirements, many 
employees are not aware of their rights and managers are not 
aware of their responsibilities. Because of inadequate 
reporting, Federal agencies and Congress cannot assess the 
extent of the problem.
    As the President of the NAACP, Mr. Kweisi Mfume, testified 
on May 9th before this Committee, ``The problem is especially 
disconcerting as the Federal Government should serve as a model 
of best practices for fair employment and equal opportunity to 
national and international companies.''
    This bill requires notification, reporting, and 
accountability from Federal agencies. The No FEAR Act would 
require agencies to pay for all settlements or judgments 
against them in whistleblower and discrimination cases. This 
will make the agency more accountable for its actions. The bill 
would also require notification to employees of their rights 
under the various whistleblower and discrimination laws to 
prevent discrimination and harassment in the first place. The 
act would also require Federal agencies to report to Congress 
on the number of cases alleging discrimination and retaliation, 
the disposition of those cases, and the cost of judgments to 
the American taxpayer and the number of employees disciplined 
for discrimination, harassment, or retaliation. This 
information will help determine if there is a pattern of 
misconduct and whether an agency is disciplining those 
employees or managers involved in that behavior.
    As the GAO testified on May 9th, such tracking of 
complaints, cases, and costs are not occurring. I am offering a 
manager's amendment on behalf of myself, Mr. Conyers, the 
Ranking Member, and Ms. Jackson Lee, the gentlewoman from 
Texas. It is the result of close cooperation between the 
majority and minority staffs. The amendment makes a number of 
discrete changes to the bill that are designed to ensure that 
all the discrimination and retaliation laws are covered and 
that Congress receives complete information to assess the full 
extent of the problem.
    The most important of these changes are the following: 
first, the amendment expands the scope of the bill to ensure 
that all discrimination and retaliation laws for Federal 
employees are covered; and, second, the amendment requires 
additional reporting regarding claims before the Equal 
Employment Opportunity Commission and agencies to increase 
understanding of logjams of cases.
    In summation, this bill will remind Federal agencies of a 
fundamental principle some apparently have forgotten, that one 
of the first priorities of our democracy is to respect 
individuals and to protect their rights.
    And with that I yield back the balance of my time and 
recognize the gentleman from Michigan for an opening statement.
    Mr. Conyers. Thank you, Mr. Chairman. You have covered it 
very effectively, and so I want to merely say that we're all in 
accord. And I think that we ought to say in addition that, to 
the legislative matter that's before us, that we want to 
compliment you as Chairman of Judiciary and your staff for the 
efforts that you've engaged in in reaching out to all of us to 
bring a bipartisan spirit to this Committee in a new way.
    To be honest, I was inclined to vote against both the spam 
and the No FEAR bills. I believe that technology can really 
solve the spam problem, and I felt that simply making the 
agencies pay the bill in whistleblower and discrimination suits 
perhaps was not sufficient reform for discrimination in the 
agencies. But because of you and the men and women on your 
staff who have worked with us and with Sheila Jackson Lee on 
both these measures to address our concerns, we've all been 
together able to craft a sincere compromise on these matters. 
And I appreciate your leadership and your friendship in regard 
to this matter.
    I ask that the rest of my statement be included in the 
record.
    Chairman Sensenbrenner. Without objection.
    [The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress From the State of Michigan
    I am glad we were able to work together in a bipartisan fashion to 
resolve many of the Minority's concerns with the underlying bill, and I 
commend Chairman Sensenbrenner and Congresswoman Jackson Lee for their 
leadership on this matter.
    One does not have to look very hard to find examples of government 
misconduct. From the late 1980's until today, pervasive patterns of 
discrimination have been found to exist in numerous federal agencies, 
including (1) the Federal Bureau of Investigation; (2) the Bureau of 
Alcohol, Tobacco and Firearms; (3) the Drug Enforcement Administration; 
and (4) the Immigration and Naturalization Service.
    Last year alone, federal employees filed more than 24,000 
discrimination complaints against their agencies. And they were forced 
to pay a total of $26 million for discrimination complaint settlements 
and judgments. The complaint process is so backlogged that on average 
it takes more than 1,100 days to process.
    I would have liked to think that our federal agencies would be the 
models for the treatment of employees in America. But these figures 
indicate beyond a shadow of a doubt that the agencies are miserably 
falling short of this responsibility.
    At the May 9th hearing on this bill, I made several suggestions as 
to how it could be strengthened. Since then, I have worked with 
Chairman Sensenbrenner on a number of additional provisions which we 
both agree will create even more success in combating discrimination 
and retaliation within our federal agencies. These additions include:

         La requirement that the President create a uniform 
        model standard for disciplining managers who have discriminated 
        or retaliated;

         La requirement that federal agencies train all 
        employees and managers in their rights and responsibilities 
        under the Civil Rights and Whistle blower laws;

         La GAO study examining possible benefits of allowing 
        federal employees to seek remedy directly in the EEOC; and

         Linsuring that discrimination and legal judgments do 
        not impair the agency's ability to enforce the Civil Rights 
        laws, Whistle blower laws, environmental laws, labor laws or 
        consumer protection laws.

    The bill is still not perfect. However it does represent a good 
starting point in my judgment, and I look forward to working with the 
Chairman in making further improvement on this legislation as it moves 
on to the floor.

    Chairman Sensenbrenner. Are there amendments?
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Texas.
    Ms. Jackson Lee. I'd like to strike the last word.
    Chairman Sensenbrenner. The gentlewoman's recognized for 5 
minutes.
    Ms. Jackson Lee. I thank the Chairman very much, and let me 
thank you again for what is a persistent commitment to this 
issue. If I can recall for my colleagues very briefly--and, Mr. 
Chairman, I'd like to put my entire statement--ask to put my--
ask unanimous consent to put my entire statement into the 
record.
    Chairman Sensenbrenner. Without objection.
    [The statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas
    Thank you Mr. Chairman.
    Mr. Chairman, I support this Manager's Amendment because it 
improves the original bill, H.R. 169. The amendment corrects an error 
in the original draft of H.R. 169 that limited the scope of the bill to 
only six environmental laws with whistleblower protection provisions. 
Under this amendment, the bill's scope is expanded to include civil 
rights laws as well as the six environmental laws with whistleblower 
protections--a greatly needed fix.
    The amendment also adds a new title to the bill (Title III) which 
mandates the collection and disclosure by agencies of statistical data 
relevant to hiring and employment practices. This Title includes: (1) 
the requirement that federal agencies to post on their websites data on 
equal employment complaints filed against the agencies; and (2) the 
requirement that the EEOC also post on its website statistical data on 
equal employment complaints filed against federal agencies. Such 
disclosure is necessary in order to facilitate regular overview of the 
agencies, and is crucial in being able to identify the precise extent 
and nature of the problem. As stated by J. Christopher Mihm of the GAO 
``data fosters transparency, which in turn provides an incentive to 
improve performance and enhance the image of the agency in the eyes of 
both employees and the public.'' Finally, the Title requires the EEOC 
to promulgate any rules necessary to carry out the Title.
    I would also like to note the reaffirmation of both Congressman 
Nadler and myself to seek to protect employees benefits and saleries, 
and I look forward to working together towards this end.
    Mr. Chairman, these corrections to the original bill that this 
amendment provides are necessary to ensure accountability and swift 
consequences for discrimination and retaliation in the federal 
government.
    Thank you.

    Ms. Jackson Lee. If I can just recall very briefly for my 
colleagues the history of this matter, it was, again, at the 
call of Chairman Sensenbrenner when we both served together on 
the Science Committee that this issue was first brought to 
light dealing with the fair legislation, and now we have 
bridged this legislation from the Science Committee and our 
concern there having oversight over the EPA to the Judiciary 
Committee. And I think this is a very vital piece of 
legislation. As I listened to the hearing a couple of weeks 
ago, Mr. Chairman, it was as much as what we heard in the 
Committee room as what we heard afterward, which was the tragic 
loss of one of the employees of the EPA who lost his life 
because of the enormous stress and burden that he faced in 
certain employment circumstances.
    So this is a life-saving piece of legislation, and I'm 
gratified that my colleagues have viewed it not as being 
redundant because it is very important to have a law that would 
require Federal agencies to notify employees about any 
applicable discrimination and whistleblower protection laws and 
to report to Congress and the Attorney General the number of 
discrimination and whistleblower cases within each agency. It 
gives an extra leverage and an extra, if you will, pressure 
point for the agency individually to not hide under the arm or 
under the cover of the Federal Government and hold the 
individual agency responsible for how it treats its employees.
    And all of us, of course, realize that none of us are 
perfect, and we realize there will be interactions between 
employers and employees. But we do know that it is important to 
address those cases that have resulted in Dr. Coleman's 
situation and others.
    So, Mr. Chairman, we've come a long way in eliminating the 
culture of discrimination and harassment that exists in our 
Federal workplace, and I hope that as we support the manager's 
amendment and clarify certain issues, particularly noting the 
fact that the salaries and benefits are protected, that we 
would have the full support of this Committee. And, again, I am 
delighted to have been able to work with you and thank you for 
working with us on this legislation.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Watt. For the purpose of asking a couple of questions. 
I have reviewed the bill and certainly think the notification 
requirements are important. I'm concerned, though, that by 
taking monies away from agencies that enforce various laws and 
regulations we may be visiting on the beneficiaries or intended 
beneficiaries of those laws the bad actions of people who 
within the agency--
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Watt. And I wanted to see what the response was to 
that.
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Watt. Yes, I'm happy to yield.
    Chairman Sensenbrenner. First of all, if an agency under 
this bill is stuck with a huge judgment as a result of a 
whistleblower or an EEO--if an agency is stuck with a big 
judgment as a result of a whistleblower or an EEO campaign, 
this has absolutely no effect on the salaries and benefits of 
the employees of that agency. Those salaries and benefits are 
statutory, and the managers, including all the way up to the 
top, whether it's the Secretary of the Department or the 
Administrator of the Department, has no authority to change the 
salaries or benefits of the employees.
    The Postal Service, since postal reorganization, has had to 
pay for claims and judgments for these types of cases out of 
its own account, and the General Accounting Office specifically 
testified last week when--or 2 weeks ago, when we had the 
hearing on this, that the requirement that they have to pay for 
the judgments out of their own account have not affected 
salaries and benefits of employees, and as a matter of fact, 
have reduced the number of EEO complaints dramatically because 
of that fact and because they do have an alternative dispute 
resolution mechanism. If you're--
    Mr. Watt. Mr. Chairman, I--
    Chairman Sensenbrenner. If you're concerned about salaries 
and expenses--or benefits of employees being hit, the answer is 
have no fear because those are statutory and the managers can't 
affect that. Only Congress can.
    Mr. Watt. That is not my concern.
    Mr. Bachus. Would the gentleman yield?
    Mr. Watt. Let me clarify my concern. I know that civil 
service employees' and employees' salaries and benefits are 
protected. I'm more concerned about the delivery of services to 
the public and what impact this might have on the delivery of 
services to the public, and in the postal context that you used 
as an example, what implications that might have for the cost 
of--cost of those services to the public.
    I'll yield to Mr.--
    Mr. Bachus. Bachus.
    Mr. Watt. Bachus from Alabama.
    Mr. Bachus. Presently, under present law, which this bill 
would change, but presently, if a discrimination complaint is 
settled at the administrative level, the agency pays that 
monetary relief now. So there would be no change at the 
administrative level.
    What happens today, if that case is appealed to the courts, 
then the agency, if there's monetary relief granted by the 
courts, then the agency does not pay that judgment. So there's 
really a disincentive today for legitimate discrimination 
complaints to be settled at the administrative level. The 
agency can actually not settle, allow it to go to the courts, 
and then the judgment fund, which is from the general fund, 
pays it.
    So a good agency today, I'd say to the gentleman from North 
Carolina, would be settling these meritorious cases at the 
administrative level. It's only the agencies which have not 
settled meritorious claims and allowed them to go to the courts 
and shifted that financial burden onto the general fund, and 
from the general fund that money is taken away from all the 
agencies.
    Mr. Watt. Okay. Then I understand that rationale a lot more 
than I understood the Chairman's rationale. But if this is such 
a great idea, why are we limiting it to certain particular acts 
and agencies as opposed to applying it in the general context? 
I mean, isn't that the effect of the language on page 4, lines 
8 through 17, to limit it to specific--the Clean Air Act, 
Comprehensive Environmental Response, Compensation, and 
Liability Act--
    Mr. Bachus. I would think the manager's amendment took some 
of those restrictions out.
    Chairman Sensenbrenner. Well, first of all, let me ask 
unanimous consent the gentleman have 2 additional minutes. And 
will the gentleman yield? Would the gentleman from North 
Carolina yield?
    Mr. Watt. Yes, I will.
    Chairman Sensenbrenner. Those provisions that you're 
referring to in the original bill were taken out by the 
manager's amendment. So they're no longer--
    Mr. Watt. Okay. I see. Okay. I'm sorry. I'm--I'm satisfied. 
I will yield back the balance of my time.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Watt. Thank you very much.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York.
    Mr. Nadler. I do have an amendment, but I'd like to ask if 
the Chairman will yield for a question. I'm really undecided 
on--
    Chairman Sensenbrenner. Would the gentleman strike the last 
word? Because I've already been recognized.
    Mr. Nadler. I will strike the last word, so long--
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Nadler. So long as I can offer my amendment in a 
separate striking of the last word.
    Chairman Sensenbrenner. Yes, you--you're protected on that.
    Mr. Nadler. Thank you.
    Mr. Chairman, the question I have on this bill is, granting 
its good intent, I have two questions and I'd like to hear, you 
know--one, if an agency is found guilty of either 
discrimination or being against whistleblowers or whatever it 
is, and let's say it's the--whatever agency it is, Social 
Security agency or whatever, if the funds come from their 
budget, wouldn't that jeopardize sending out the Social 
Security checks or the agriculture assistance checks or the 
workmen's comp checks? In other words, they don't have funds to 
provide for this, and obviously you don't want to give them 
special funds to provide for this. So wouldn't it of necessity 
come out of the money that is supposed to go out in aid of 
various things?
    Chairman Sensenbrenner. Well, if the gentleman would yield, 
first of all, Social Security is an entitlement, so there the 
money, it comes out of the Social Security trust fund to 
process and send out the Social Security payments. So I don't 
think--
    Mr. Nadler. Some other program, then. I was just using that 
as an example. Let's say agriculture assistance or OSHA. 
Wouldn't it come out--let's say OSHA, you would have less 
labor, less factories inspected to make sure they're safe? I 
mean--
    Chairman Sensenbrenner. That is protected also in the 
manager's amendment, and I would refer the gentleman 
specifically to page 5, lines 12 through 23 in the manager's 
amendment. So that is all protected.
    Mr. Nadler. And what about--let's assume the Securities and 
Exchange Commission. Is every agency protected? And if every 
agency's protected, what's the point of the bill?
    Chairman Sensenbrenner. If the gentleman would yield 
further, it is just the enforcement that is protected. It is 
not the non-enforcement functions that are protected. So the 
thing is that if they are fined as a result of illegal 
behavior, either by the EEOC or through judicial action, they 
will have to pay for it out of their budget. But the 
enforcement parts are protected. And hopefully this bill will 
act as a deterrent so that no fines will be paid, which I think 
is the goal that we all--
    Mr. Nadler. Which brings up my second question. During a 
past administration, which will go unnamed so no one can think 
the question is partisan in nature, many members of one party 
which didn't have the Presidency accused the then-President of 
appointing people to enforcement and other positions who didn't 
believe in the law they wanted to enforce.
    Let's assume some future President were to do this. 
Wouldn't it be an easy way, if you wanted to destroy the 
effectiveness of the agency that you were appointed to lead 
because you didn't believe in its purpose, to deliberately 
incur large fines so that there was no money to do what you 
didn't want to do in the first place?
    Chairman Sensenbrenner. I would submit that's probably an 
impeachable offense, and we'd have to take care of that here in 
a different context.
    If the gentleman will yield, the total number of fines or 
amount of fines that were paid out of the Justice Department's 
fine budget was $42 million out of a budget of a trillion 800 
billion dollars. So even as it stands today, we're not talking 
about a huge amount of money that is being paid in fines and 
judgments and settlements. The fact is that if you get a ticket 
for speeding or running a stop sign and you can send the fine 
to somebody else to pay, I don't think that's going to be the 
deterrent to illegal behavior that you're having to pay for it 
yourself would have.
    Mr. Bachus. Would the Chairman yield?
    Chairman Sensenbrenner. The gentleman from New York has the 
time.
    Mr. Nadler. I'll yield.
    Mr. Bachus. Let me stress again to the Members that at 
the--under present law, under administrative settlement, it 
comes out of the agency funds today. So the scenario you set up 
would--if they actually wanted to incur fines to slow down 
enforcement, they could do that under present law.
    What this changes is if these discrimination claims are 
appealed to the courts, it doesn't--presently, the agencies pay 
administrative--claims that are settled at the administrative 
level today. There's a two-level system today.
    Mr. Nadler. Reclaiming my time, I understand that and I 
understand the perverse incentive on the agencies not to 
settle. And, obviously, there are two ways to rectify that, and 
the question is which is the least harmful or most beneficial 
way to settle that. And I wonder if it wouldn't be a better 
idea to simply say that, whether it's a settlement or a 
judgment, it should go to the special fund rather than the 
agencies.
    But I have taken enough time on this. Mr. Chairman, I have 
an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment offered by Mr. Nadler to the amendment 
in the nature of a substitute to H.R. 169. Page 5, line 12, 
insert ``excluding any part of such appropriation of such fund 
or of such account available for salaries and expenses of 
employees'' after ``expenses.''
    [The amendment follows:]
    
    
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, first of all, I ask unanimous 
consent that it say ``page 5, line 21,'' instead of ``line 
12,'' because--
    Chairman Sensenbrenner. Without objection, the modification 
is--
    Mr. Nadler. Thank you. It's changed in the manager's 
amendment.
    Mr. Chairman, you have stated that that's the--that this is 
the intent of the bill, that the bill, in fact, would not 
affect employees' salaries. This would simply make it explicit.
    During the--and I would hope you would accept the 
amendment, therefore. This would simply make it very clear what 
the Chairman has said already this morning.
    During this Committee's hearing on this bill, the 
representatives of the people who work for Federal agencies, 
workers who would not be in any way implicated with the types 
of abuses targeted in this bill, expressed the concern that by 
taking funds from the agency's account, jobs might be lost or 
employee benefits compromised. This concern was echoed by our 
former colleague, Kweisi Mfume, President and CEO of the NAACP, 
who testified in support of the bill.
    It is often the case that employee benefits or jobs are the 
first target of any cuts. That's just--that's true not just in 
Congress but in the private sector. When the Republican 
revolution was declared in 1995, one of the first targets was 
the House day-care center which served congressional staff.
    If the real target of the bill is discrimination and 
retaliation and the institutionalized indifference or hostility 
to the victims and reporters of that outrageous conduct, then 
we should ensure that the employees of the agencies do not end 
up paying a personal price for the indifference or venality of 
their management.
    This amendment would simply exclude that part of the 
agency's appropriation called salaries and expenses of 
employees from the funds available to pay a judgment. It would 
protect Federal workers from the consequences of the misdeeds 
of their superiors and ensure that an agency does not reduce 
staffing by eliminating FTEs, full-time equivalents, and 
thereby undermine its ability to carry out its mission assigned 
to it by Congress on behalf of the American people.
    The stated purpose of this bill is to provide swift justice 
for Federal employees who have been victimized. It eliminates--
it eliminates the perverse incentive to drag out a proceeding 
in court rather than settle it expeditiously. While there are 
many things we should be doing to eliminate employment 
discrimination in both the public and private workplace that 
the people who represent victims of discrimination tell us need 
to be done, such as allowing an employee to go directly to the 
EEOC without exhausting the many administrative hoops set out 
by an agency, we are not doing that today.
    It's my hope that we can provide a measure of justice 
without undermining the lawful and beneficial mission of 
Federal agencies, whether they supervise the fairness of our 
markets or the soundness of our financial system. I am grateful 
to the Chairman and Mr. Armey for their interest in this, in 
civil rights and employment discrimination. And, again, as I 
said, this amendment would simply make very explicit what the 
Chairman has already said is--is, in fact, part of this bill, 
so I hope that this amendment can be adopted without any 
problems.
    I yield back.
    Chairman Sensenbrenner. I rise in opposition to the 
amendment. This amendment is unnecessary and will have the 
effect of delaying consideration of this bill on the floor of 
the House. And I would ask the gentleman from New York to think 
twice about proceeding with this amendment.
    First, it is unnecessary because salaries and wages, in all 
but a few Federal organizations, are paid under statutory 
systems, such as the General Schedule, Foreign Service, 
Department of Veterans Affairs, Health Administration, Senior 
Executive Service, and Federal Wage System.
    Agency heads do not have the authority to reduce salary 
rates or to refuse to compensate employees with pay raises 
which affect the entire system under which the employees are 
paid. Nor do the agency heads have the authority to reduce 
other statutory benefits which are not direct compensation, 
such as health benefits and retirement benefits.
    So the types of benefits that are included in the amendment 
of the gentleman from New York are already protected by other 
laws which are not amended or affected in any respect by the 
legislation that is in front of us.
    Ms. Jackson Lee. Would the gentleman yield?
    Chairman Sensenbrenner. I am going to--let me finish. I 
would be very happy to include in the Committee report language 
that expressly reiterates what I have just stated on the record 
so that anybody who looks at what the intent of Congress is is 
absolutely clear that these types of benefits are protected.
    Now, from a practical matter, if this amendment is adopted, 
I do not think we will be able to persuade Chairman Burton in 
the Government Reform Committee to waive its opportunity for a 
sequential referral or a joint referral. I think I can bring 
this bill up on the floor of the House of Representatives 
without this amendment sometime in the month of June. If it 
leaves our Committee and goes off to another committee, it may 
very well stay there forever and ever, and as a result, we do 
not get an important bill brought up in the House of 
Representatives and passed.
    Ms. Jackson Lee. Would the gentleman yield?
    Chairman Sensenbrenner. I yield to the gentlelady from 
Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. I thank the gentleman very much.
    I think we're discussing two very important points. I thank 
the Chairman, as I mentioned to you this possibility of report 
language, and I appreciate your willingness to do that.
    We obviously can just state the point that this will be in 
the report language and refer to the existing law. Or if the 
gentleman from New York would accept a substitute to his 
amendment that indicates that the report language would include 
such caveat or such clarification, we would certainly have on 
record in this Committee that we have confirmed that we do not 
want the salaries and expenses to be utilized.
    But I would say to the Chairman and say to my colleagues, 
it has been so difficult moving this legislation, that if we 
could have that clarification--I am equally sensitive to 
violating anyone's salary or benefits, and I believe if we can 
do it in a manner that ensures that this important piece of 
legislation moves, we could do so.
    So I offer a substitute to Mr. Nadler's to focus on 
including such language in the report language. And I yield 
back to the Chairman.
    Chairman Sensenbrenner. Well--
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. I yield to the gentleman from New 
York.
    Mr. Nadler. Thank you. Two things.
    First of all, Mr. Chairman, what is not covered in the 
current bill or by any other law which would directly affect 
and does directly affect employees' salaries and jobs are RIFs, 
reductions in force. If an agency loses money, they may have to 
cut staff.
    Now, that is--that is included in the amendment because any 
part of the appropriation that goes for salaries and expenses 
of employees would preclude a RIF. So that's--that's a very 
substantive difference and what really worries me.
    My second question, sir, is I don't understand why adoption 
of this amendment would necessitate referral to another 
committee if the bill doesn't have to go to that committee in 
any event.
    Chairman Sensenbrenner. If the gentleman will yield 
further, if you look at the reference clause of the bill, it is 
in the jurisdiction of Government Reform and Oversight, and 
we've been negotiating with that committee to get them to waive 
jurisdiction so we could bring the bill up--up on the floor.
    Now, you know, the thing is that we're not talking about a 
huge amount of money out of agency budgets. And I've got some 
figures here that indicate that during fiscal year 2000 there 
were 3 million plus payments. There was one for a million point 
seven in Justice and two in the State Department for one a 
little bit more--two for a little bit more than a million. 
There were 23 settlements of 300,000 plus, and there was an 
analysis of the data that indicates that there were 
approximately 24 settlements of 100,000 to 299,000 dollars. 
We're talking about agencies that have billions and billions of 
dollars appropriation, and, you know, to think that if they--
that these judgments, if they have to pay for them out of their 
own appropriation would end up decimating the agency has simply 
been not borne out in fact. But even if the history was to that 
extent, having it come out of their own budget rather than the 
slush fund over in the Justice Department would act as a 
deterrent for illegal behavior, as it has in the Postal 
Service, where they've had to do this for the last 30 years out 
of their own budget.
    Mr. Nadler. Mr. Chairman, reclaiming--reclaiming my time, 
in asking this question--in other words, what you're saying, as 
I understand it, is that for some reason you think that you can 
negotiate with the Government Reform Committee to give up their 
jurisdiction as long as we don't put in language protecting 
employees, but that the Government Reform leadership or maybe 
the Republican leadership of the House or somebody would be so 
opposed to making explicit the protection of employees' 
salaries that then they wouldn't give up jurisdiction? I don't 
understand that. But let--
    Chairman Sensenbrenner. Well, if the--
    Mr. Nadler. Let me suggest one other thing.
    Chairman Sensenbrenner. If the gentleman would yield 
further--
    Mr. Nadler. Not just yet. I'll yield in a moment because I 
want to add one thing. I would pull back the amendment--I would 
pull back the amendment, Mr. Chairman, if--I think the 
gentlelady from--from Texas made a good point about report 
language, if you would agree to ask--to include in report 
language that the bill does not authorize and--as a result of 
these--of anything it does, a reduction in force caused by any 
of these judgments. Then we would have real protection for the 
employees.
    Chairman Sensenbrenner. If the gentleman would yield?
    Mr. Nadler. I will yield.
    Chairman Sensenbrenner. I'll be happy to put that in the 
Committee report because it's not the intention that people be 
RIF'd.
    Mr. Nadler. In that case, I thank the Chairman and I 
withdraw the amendment.
    Chairman Sensenbrenner. The amendment is withdrawn.
    Are there further amendments?
    Ms. Jackson Lee. I thank the gentleman.
    Chairman Sensenbrenner. Hearing none, the question is on 
the amendment in the nature of a substitute. Those in favor 
will say aye. Opposed, no. The ayes appear to have it. The ayes 
have it.
    The question now occurs on the motion to report the bill 
H.R. 169, favorably, as amended by the amendment in the nature 
of a substitute. The Chair notes the presence of a reporting 
quorum. Those in favor will signify by saying aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the bill 
is favorably reported.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes. 
And pursuant to the rule, all Members will be given 2 days, as 
provided by House rules, in which to submit additional 
dissenting supplemental or minority views.

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