Testimony

Before the Committee on the Judiciary, House of

Representatives

United States General Accounting Office

GAO

For Release on Delivery

Expected at

10 a.m. EDT

Wednesday,

May 9, 2001

THE FEDERAL

WORKFORCE

Observations on

Protections From

Discrimination and

Reprisal for

Whistleblowing

Statement of J. Christopher Mihm

Director, Strategic Issues

GAO-01-715T
Page 1 GAO-01-715T

Mr. Chairman and Members of the Committee:

I am pleased to have this opportunity to provide information for your

deliberations on H.R. 169, the Notification and Federal Employee

Antidiscrimination and Retaliation Act of 2001, commonly referred to as

the NoFEAR Act.

In a high-performing workplace, federal employees must be able to pursue

the missions of their organizations free from discrimination and should

not fear or experience retaliation or reprisal for reporting—blowing the

whistle on—waste, fraud, and abuse. To help achieve such a workplace,

federal antidiscrimination laws protect these employees from

discrimination based on their race, color, sex, religion, national origin, age,

or disability, as well as retaliation for filing a complaint of discrimination.1

In addition, the Civil Service Reform Act of 1978 articulates the merit

system principles for the fair and equitable treatment of the federal

workforce and defined personnel practices that are prohibited. Among the

prohibited personnel practices is reprisal for whistleblowing. Several other

laws also protect employees from reprisal by prohibiting agencies’ taking

or threatening to take—or not to take—a personnel action because of an

employee’s whistleblowing activities.

Unfortunately, despite these protections, some federal employees have

experienced or believe that they have been subject to workplace

discrimination or reprisal for whistleblowing. Such experiences or

perceptions—and the complaints and lawsuits they spur—not only disrupt

the lives of the affected employees, they can also undermine the efficient

and effective delivery of government services to the public and discourage

a diverse, pluralistic, and accountable workforce.

With these thoughts in mind, I have three points to make that relate to the

principles underlying the proposed act.

• Reporting. 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

 1

Applicants for federal employment are also covered under these laws.
Page 2 GAO-01-715T

other conflicts and problems, and can help in developing strategies for

dealing with those issues.

• Accountability. Accountability is a cornerstone of results-oriented

management. Agencies and their leaders and managers should be

accountable for providing fair and equitable workplaces, free from

discrimination and reprisal. In addition, individuals need to be held

accountable for their actions in cases where discrimination or reprisal for

whistleblowing has occurred.

• Notification. Finally, in order for the full benefit of laws protecting the

workforce to be realized, agencies need to take steps to make federal

employees sufficiently aware of their protections from discrimination and

reprisal for whistleblowing.

In making our observations today, and as agreed with the Committee, I

will draw upon our work examining discrimination and whistleblower

issues in the federal workplace and performance management principles

embodied in the Government Performance and Results Act, particularly in

regard to human capital.

The federal government lacks a clear picture of the volume of

discrimination and whistleblowing reprisal cases involving federal

employees. The lack of a complete accounting of cases is in part a byproduct of the complexity of the redress system for federal employees and

the different ways in which case data are reported. The NoFEAR Act

would require agencies to report the number of discrimination and

whistleblower reprisal cases.

Executive branch civil servants are afforded opportunities for redress of

complaints of discrimination or retaliation for whistleblowing at three

levels: first, within their employing agencies; next, at one of the

administrative bodies with sometimes overlapping jurisdictions that

investigate or adjudicate their complaints; and, finally, in the federal

courts.2

• Where discrimination is alleged, the Equal Employment Opportunity

Commission (EEOC) hears complaints employees file with their agencies

 2

We have previously reported that the redress system for federal employees has been

criticized for being adversarial, inefficient, time-consuming, and costly. See Federal

Employee Redress: A System in Need of Reform (GAO/T-GGD-96-110, Apr. 23, 1996) and

Federal Employee Redress: An Opportunity for Reform (GAO/T-GGD-96-42, Nov. 29, 1995).

Reporting: No Clear

Picture of Complaint

Activity
Page 3 GAO-01-715T

and reviews agencies’ decisions on these complaints.3 In a case in which

an employee alleges that discrimination was the motive for serious

personnel actions, such as dismissal or suspension for more than 14 days,

the employee can request a hearing before the Merit Systems Protection

Board (MSPB). MSPB’s decisions on such cases can then be reviewed by

EEOC.

• For federal employees who believe that they have been subject to

whistleblower reprisal, the Office of Special Counsel (OSC) will

investigate their complaints and seek corrective action when a complaint

is valid. When agencies fail to take corrective action, OSC or the employee

can take the case to MSPB for resolution. Alternatively, an employee can

file a whistleblower reprisal complaint directly with MSPB, if the

personnel action taken against the person is itself appealable to MSPB. In

addition, under certain environmental laws and the Energy Reorganization

Act, employees can ask the Department of Labor (DOL) and the Nuclear

Regulatory Commission to investigate their complaints.

• Employees who belong to collective bargaining units represented by

unions can also file grievances over discrimination and reprisal allegations

under the terms of collective bargaining agreements. In those situations,

the employee must choose to seek relief either under the statutory

procedure discussed above or under the negotiated grievance procedure,

but not both. If an employee files a grievance alleging discrimination under

the negotiated grievance procedure, the Federal Labor Relations Authority

(FLRA) can review any resulting arbitrator’s decision. A grievant may

appeal the final decision of the agency, the arbitrator, or FLRA to EEOC.

A complainant dissatisfied with the outcome of his or her whistleblower

reprisal case can file an appeal to have the case reviewed by a federal

appeals court.4

 An employee with a discrimination complaint who is

dissatisfied with a decision by MSPB or EEOC, however, can file a lawsuit

in a federal district court and seek a de novo trial. 5

 3

Discrimination complaints against federal agencies are processed in accordance with

regulations promulgated by EEOC. Complaints are filed with and investigated by agencies

with hearings conducted by EEOC administrative judges. EEOC also hears appeals of

agency and administrative judges’ decisions on cases.

4

In a whistleblower reprisal case decided by MSPB, an appeal can be filed with the U.S.

Court of Appeals for the Federal Circuit. For a case decided by DOL, an appeal can be filed

with the U.S. Court of Appeals for the circuit in which the alleged reprisal occurred.

5

In a de novo trial, a matter is tried anew as if it had not been heard before.
Page 4 GAO-01-715T

With reporting requirements and procedures varying among the

administrative agencies and the courts, data on the number of

discrimination and whistleblower reprisal cases are not readily available

to form a clear and reliable picture of overall case activity. However,

available data do provide some insights about caseloads and trends. These

data and our prior work show that most discrimination and whistleblower

reprisal cases involving federal employees are handled under EEOC,

MSPB, and OSC processes, with complaints filed under EEOC’s process by

far accounting for the largest volume of cases. In fiscal year 2000, federal

employees filed 24,524 discrimination complaints against their agencies

under EEOC’s process. In fiscal year 2000, MSPB received 991 appeals of

personnel actions that alleged discrimination. MSPB also received 414

appeals alleging whistleblower reprisal in fiscal year 2000, while OSC

received 773 complaints of whistleblower reprisal. There are two caveats I

need to offer about these statistics. The first is that because of

jurisdictional overlap among the three agencies, the statistics cannot be

added together to give a total number of discrimination and whistleblower

reprisal complaints. The second caveat is that in our past work, we found

some problems with the reliability and accuracy of data reported by

EEOC.6

Notwithstanding these caveats, the available data also show that the last

decade saw an overall increase in the number of cases, particularly

discrimination complaints under EEOC’s jurisdiction.7

 The number of

cases under EEOC’s jurisdiction, which stood at 17,696 in fiscal year 1991,

showed a fairly steady upward trend, peaking at 28,947 in fiscal year 1997.

Although the number of new cases each year has declined since fiscal year

1997, the number of cases in fiscal year 2000—24,524—is almost 40

percent greater than in fiscal year 1991, despite a smaller federal

workforce.

 6

For a further discussion about the reliability and accuracy of data reported by EEOC, see

Equal Employment Opportunity: Data Shortcomings Hinder Assessment of Conflicts in the

Federal Workplace (GAO/GGD-99-75, May 4, 1999).

7

In earlier reports, we discussed factors behind the increase in the number of

discrimination complaints in the forum under EEOC’s jurisdiction and how rising caseloads

have been accompanied by an increase in case processing time. See Equal Employment

Opportunity: Discrimination Complaint Caseloads and Underlying Causes Require EEOC’s

Sustained Attention (GAO/T-GGD-00-104, Mar. 29, 2000); Equal Employment Opportunity:

Complaint Caseloads Rising, With Effects of New Regulations on Future Trends Unclear

(GAO/GGD-99-128, Aug. 16, 1999); and Equal Employment Opportunity: Rising Trends in

EEO Complaint Caseloads in the Federal Sector (GAO/GGD-98-157BR, July 24, 1998).
Page 5 GAO-01-715T

Caseload data 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 these issues. However, caseload data can only

be a starting point because they obviously do not capture any

discrimination or reprisal that is not reported.

As I discussed above, most discrimination complaints are handled within

the process under EEOC’s jurisdiction. However, we have found in our

past work that EEOC does not collect data in a way needed by

decisionmakers and program managers to discern trends in workplace

issues represented by discrimination complaints, understand the issues

underlying these complaints, and plan corrective actions.8

 Although EEOC

has initiatives under way to deal with data shortcomings, relevant

information is still lacking on such matters as (1) the statutory basis (e.g.,

race, sex, or disability discrimination) under which employees filed

complaints and (2) the kinds of issues, such as nonselection for promotion

or harassment, that were cited in the complaints.9

The NoFEAR Act would also require agencies to report the status or

disposition of discrimination and whistleblower reprisal cases. The

available data show that most allegations of discrimination and reprisal for

whistleblowing are dismissed, withdrawn by the complainant, or closed

without a finding of discrimination. However, many other cases are

settled. Of the discrimination cases within EEOC’s jurisdiction, 5,794 (21.3

percent) of the 27,176 cases were closed through a settlement. At MSPB,

279 (28.5 percent) of the 980 appeals that alleged discrimination were

settled. With regard to the 440 whistleblower cases at MSPB, 93 (21

percent) were settled. While settlements are made when evidence may

point to discrimination or reprisal, at other times an agency may make a

business decision and settle for a variety of reasons, including that

pursuing a case may be too costly, even if the agency believes it would

have ultimately prevailed. Finally, in some cases, discrimination or reprisal

is found. Of the 27,176 cases within the discrimination complaint process

under EEOC’s jurisdiction that were closed in fiscal year 2000, 325 (about

1 percent) contained a finding of discrimination. At MSPB, of the 980 cases

alleging discrimination, discrimination was found in 4 (four-tenths of a

 8

GAO/GGD-99-75.

9

See GAO/T-GGD-00-104 for a discussion of EEOC initiatives to deal with data

shortcomings.
Page 6 GAO-01-715T

percent). In 440 cases alleging whistleblower reprisal it reviewed, MSPB

found that a prohibited personnel practice occurred in 2 (five-tenths of a

percent) of the cases. At OSC, favorable actions were obtained in 47 of 671

(7 percent) whistleblower reprisal matters closed in fiscal year 2000.10

It is important to note that agencies have responded to the rise in the

number of complaints and the costs associated with them by adopting

alternative means of dispute resolution (ADR). Using ADR processes, such

as mediation, agencies intervene in the early stages of conflicts in an

attempt to resolve or settle them before positions harden, workplace

relationships deteriorate, and resolution becomes more difficult and

costly. A premise behind a requirement EEOC put in place in 1999 that

agencies make ADR available was that the complaint system was

burdened with many cases that reflected basic workplace communications

problems and not necessarily discrimination. Some agencies, most notably

the Postal Service, have reported reductions in discrimination complaint

caseloads through the use of ADR. In fact the Postal Service, from fiscal

year 1997 through fiscal year 2000, saw a 26 percent decline in the number

of discrimination complaints that the agency largely attributes to its

mediation program.11 Because ADR prevents some disputes from rising to

formal complaints, a reduction in the number of formal complaints should

not necessarily be looked at as a reduction in workplace conflict, but it

can indicate that an agency is more effectively dealing with workplace

conflict.

 10Favorable actions include actions taken directly to benefit the complaining employee;

actions taken to punish, by disciplinary or corrective action, the supervisor involved in the

personnel action; and systemic action, such as training or educational programs, to prevent

future questionable personnel actions.

11For a further discussion of ADR initiatives, see Alternative Dispute Resolution:

Employers’ Experiences With ADR in the Workplace (GAO/GGD-97-157, Aug. 12, 1997).

Agency Movement Toward

Alternative Dispute

Resolution
Page 7 GAO-01-715T

Meaningful data along the lines I discussed earlier are useful in helping to

measure an agency’s success in adhering to merit system principles,

treating its people in a fair and equitable way, and achieving a diverse and

inclusive workforce. We encourage such assessments of agencies’

workplaces and human capital systems to help them align their people

policies to support organizational performance goals.12 In addition, data

foster transparency, which in turn provides an incentive to improve

performance and enhance the image of the agency in the eyes of both its

employees and the public.

Another possible means of promoting accountability might be to have

organizations bear more fully the costs of payments to complainants and

their lawyers made in resolving cases of discrimination and reprisal for

whistleblowing. Currently, federal agencies do not always bear the costs

of settlements or judgments in discrimination or reprisal complaints.

Agencies will pay these costs when a complaint is resolved by

administrative procedures, such as the discrimination complaint process.

However, when a lawsuit is filed, any subsequent monetary relief is

generally paid by the Judgment Fund. (One exception is the Postal Service,

which is responsible for settlement and judgment costs.) The Judgment

Fund provides a permanent indefinite appropriation to pay settlements

and judgments against the federal government. Congress created the

Judgment Fund to avoid the need for a specific congressional

appropriation for settlement and judgment costs and to allow for prompter

payments. The NoFEAR Act would require that agencies reimburse the

Judgment Fund for payments made for discrimination and whistleblower

reprisal cases.

Table 1 below shows payments made by agencies for discrimination

complaint cases processed under administrative procedures within

EEOC’s jurisdiction and payments from the Judgment Fund for

employment discrimination lawsuits (these were the only readily available

data). In addition to attorney fees and expenses, payments made to

complainants include back pay, compensatory damages, and lump sum

payments. As the table shows, agencies made payments totaling about

$26 million in fiscal year 2000 for discrimination complaint settlements

 12We have prepared Human Capital: A Self-Assessment Checklist for Agency Leaders

(GAO/OGC-00-14G, Sept. 2000) to help make this assessment.

Accountability: A

Cornerstone of

Performance

Management
Page 8 GAO-01-715T

and judgments. At the same time, agencies were relieved of paying almost

$43 million in cases because of the existence of the Judgment Fund.13

Table 1: Payments Made in Discrimination Cases by Agencies and the Judgment

Fund, Fiscal Years 1998-2000 (Dollars in Millions)

FY 1998 FY 1999 FY 2000

Agencies $24.4 $26.3 $26.1

Judgment Fund 37.1 41.8 42.7

Total $61.5 $68.1 $68.8

Source: EEOC and Treasury Department Judgment Fund Data.

The availability of the Judgment Fund to pay settlement and judgment

costs has brought about debate with regard to agency accountability. On

one hand, it could be argued that the Judgment Fund provides a safety net

to help ensure that agency operations are not disrupted in the event of a

large financial settlement or judgment. It can also be argued, however, that

the fund discourages accountability by being a disincentive to agencies to

resolve matters promptly in the administrative processes; by not pursuing

resolution, an agency could shift the cost of resolution from its budget to

the Judgment Fund and escape the scrutiny that would accompany a

request for a supplemental appropriation.14 Congress dealt with a

somewhat similar situation when it enacted the Contract Disputes Act15 in

1978, which requires agencies to either reimburse the Judgment Fund for

judgments awarded in contract claims from available appropriations or to

obtain an additional appropriation for such purposes. This provision was

intended to counter the incentive for an agency to avoid settling and

prolong litigation in order to have the final judgment against the agency

occur in court. In reconciling these viewpoints on financial accountability,

Congress will need to balance accountability with the needs of the public

to receive expected services.

 13For additional discussion about payments made by agencies and from the Judgment Fund

for discrimination cases, see Discrimination Complaints: Monetary Awards in Federal EEO

Cases (GAO/GGD-95-28FS, Jan. 3, 1995).

14In most lawsuits, the Department of Justice is responsible for handling the litigation and

safeguarding the Judgment Fund by approving all settlements.

1541 U.S.C. § 612(c).
Page 9 GAO-01-715T

Certainly, just as it is important for agencies to be held accountable in

cases where discrimination or reprisal for whistleblowing is found, so

must individuals be held accountable for engaging in such misconduct.

The NoFEAR Act would require agencies to report the number of

employees disciplined for discrimination, retaliation, or harassment.16

Published statistical data can be important for agencies to send a message

to their employees that individuals will be held accountable for their

actions in cases involving discrimination, retaliation, or harassment.

Although we have not done any formal work in this area, we know of two

agencies—the Department of Agriculture and the Internal Revenue Service

(IRS)—that systematically review outcomes of discrimination cases to

determine if any individual should be disciplined. Since January 1998,

Agriculture has been reviewing cases in which discrimination was found

or in which there were settlement agreements to determine if an employee

should be disciplined for discrimination or misconduct related to civil

rights. An Agriculture official said that a formal policy on accountability

and discipline in civil rights-related cases was currently pending approval.

Since July 1998, IRS has been reviewing cases in which discrimination was

found or in which there were settlement agreements to determine if the

discrimination was intentional. Where an employee has been found to

have discriminated against another employee of IRS (or a taxpayer or a

taxpayer’s representative), the IRS Restructuring and Reform Act of 1998

provides that the individual be terminated for his or her actions. Only the

IRS Commissioner has the authority to mitigate termination to a lesser

penalty.

I would also add that besides traditional forms of discipline—such as

termination, suspension, or letter of reprimand—employees can be held

accountable for their behavior through an agency’s performance

management system. For example, an employee whose behavior does not

rise to the level of discrimination but otherwise demonstrates insensitivity

or poor communication skills can and should have that fact reflected in his

or her performance appraisal.

 16EEOC’s regulations (29 C.F.R. 1614.102(a)(6)) require that agencies take appropriate

action against employees who engage in discriminatory conduct.

Individual Accountability
Page 10 GAO-01-715T

The NoFEAR Act provides that agencies notify employees of the rights and

protections available to them under the antidiscrimination and

whistleblower statutes in writing and post this information on their

Internet sites. This provision reinforces existing requirements that

employees be notified of rights and remedies concerning discrimination

and whistleblower protection.17

There has been a concern that federal employees were not sufficiently

aware of their protections, particularly about protections from reprisal for

whistleblowing, and without sufficient knowledge of these protections,

may not come forward to report misconduct or inefficiencies for fear of

reprisal. We first pointed this out in a report issued in 1992.18 Now, almost

a decade later, OSC has identified “widespread ignorance” in the federal

workforce concerning OSC and the laws it enforces, even though agencies

are to inform their employees of these protections. According to OSC’s

fiscal year 2000 Performance Report, responses to an OSC survey

indicated that few federal agencies have comprehensive education

programs for their employees and mangers.

To 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 federal 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 these issues. Second, agencies and individuals must be accountable

for their actions. Third, the workforce must be aware of laws prohibiting

discrimination and whistleblower reprisal to deter this kind of conduct but

also so that they know what course of action they can take when

misconduct has occurred.

 17The 1994 amendments to the Whistleblower Protection Act require federal agencies to

ensure that their employees are informed of the rights and remedies concerning

whistleblower protection. In addition, EEOC’s regulations (29 C.F.R. 1614.102(b)(5))

require agencies to make written materials available to all employees and applicants

informing them of the variety of equal employment opportunity program and administrative

and judicial remedies available to them.

18Whistleblower Protection: Survey of Federal Employees on Misconduct and Protection

From Reprisal (GAO/GGD-92-120FS, July 14, 1992).

Notification: Making

Employees Aware of

Their Protections

Concluding

Observations
Page 11 GAO-01-715T

Mr. Chairman, this concludes my prepared statement. I would be pleased

to answer any questions you or other Members of the Committee may have

at this time.

For further information regarding this statement, please contact

J. Christopher Mihm, Director, Strategic Issues, at (202) 512-6806.

Individuals making key contributions to this testimony included Stephen

Altman, Robert J. Heitzman, Anthony P. Lofaro, and Michael R. Volpe.

Contact and

Acknowledgments

(450037)