Notification and Federal Employee Antidiscrimination 

Retaliation Act of 2002

[DOCID: f:publ174.107] [[Page 565]] 

NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND 

RETALIATION ACT OF 2002 

[[Page 116 STAT. 566]] 

Public Law 107-174

107th Congress 

An Act to require that Federal agencies be accountable for violations of 

antidiscrimination and whistleblower protection laws; to require that each Federal 

agency post quarterly on its public Web site, certain statistical data relating to Federal 

sector equal employment opportunity complaints filed with such agency; and for other 

purposes. 

<<NOTE: May 15, 2002 - [H.R. 169]>> 

Be it enacted by the Senate and House of Representatives of the United States of 

America in Congress assembled, 

<<NOTE: Notification and Federal Employee Antidiscrimination and Retaliation Act of 

2002.>> 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

<<NOTE: 5 USC 2301 note.>> 

(a) Short Title.--This Act may be cited as the ``Notification and Federal 

Employee Antidiscrimination and Retaliation Act of 2002''. 

(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. Sense of Congress.
Sec. 103. Definitions.

Sec. 104. 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. Studies by General Accounting Office on exhaustion of 

remedies and certain Department of Justice costs.

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. 

Congress finds that--

(1) Federal agencies cannot be run effectively if those agencies practice 

or tolerate discrimination; 

(2) Congress 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; [[Page 116 STAT. 567]] 

(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, the United States Marshals Service, the Department of 

Agriculture, the United States Information Agency, and the Social Security 

Administration; 

(6) notifying Federal employees of their rights under discrimination and 

whistleblower laws should increase Federal 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 compliance 

by agencies with the law; and 

(8) requiring Federal agencies to pay for any discrimination or 

whistleblower judgment, award, or settlement should improve agency 

accountability with respect to discrimination and whistleblower laws. 

SEC. 102. SENSE OF CONGRESS. 

It is the sense of Congress that--

(1) Federal agencies should not retaliate for court judgments or 

settlements relating to discrimination and whistleblower laws by targeting 

the claimant or other employees with reductions in compensation, 

benefits, or workforce to pay for such judgments or settlements; 

(2) the mission of the Federal agency and the employment security of 

employees who are blameless in a whistleblower incident should not be 

compromised; 

(3) Federal agencies should not use a reduction in force or furloughs as 

means of funding a reimbursement under this Act; 

(4)(A) accountability in the enforcement of employee rights is not furthered 

by terminating-- (i) the employment of other employees; or (ii) the benefits 

to which those employees are entitled through statute or contract; and (B) 

this Act is not intended to authorize those actions; 
(5)(A) nor is accountability furthered if Federal agencies react to the 

increased accountability under this Act by taking unfounded disciplinary 

actions against managers or by violating the procedural rights of 

managers who have been accused of discrimination; and (B) Federal 

agencies should ensure that managers have adequate training in the 

management of a diverse workforce and in dispute resolution and other 

essential communication skills; and [[Page 116 STAT. 568]] 

(6)(A) Federal agencies are expected to reimburse the General Fund of 

the Treasury within a reasonable time under this Act; and (B) a Federal 

agency, particularly if the amount of reimbursement under this Act is large 

relative to annual appropriations for that agency, may need to extend 

reimbursement over several years in order to avoid-- (i) reductions in 

force; (ii) furloughs; (iii) other reductions in compensation or benefits for 

the workforce of the agency; or (iv) an adverse effect on the mission of the 

agency. 

SEC. 103. 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 (as defined in 

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. 104. 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 [[Page 116 STAT. 569]] for the 

enforcement of any Federal law) 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 2302(b) of title 5, 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. (2) The provisions of 

law specified in section 2302(d) of title 5, 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, or 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. <<NOTE: Deadline.>> 

(a) Annual Report.--Subject to subsection (b), not later than 180 days after 

the end of each fiscal year, each Federal agency shall submit to the 

Speaker of the House of Representatives, the President pro tempore of 

the Senate, the Committee on Governmental Affairs of the Senate, the 

Committee on Government Reform of the House of Representatives, each 

committee of Congress with jurisdiction relating to the agency, the Equal 

Employment Opportunity Commission, and the Attorney General an 

annual report 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; [[Page 116 STAT. 570]] 

(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)); 

(6) a detailed description of-- (A) the policy implemented by 

that agency relating to appropriate disciplinary actions 

against a Federal employee who-- (i) discriminated against 

any individual in violation of any of the laws cited under 

section 201(a) (1) or (2); or (ii) committed another prohibited 

personnel practice that was revealed in the investigation of a 

complaint alleging a violation of any of the laws cited under 
section 201(a) (1) or (2); 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; 

(7) an analysis of the information described under 

paragraphs (1) through (6) (in conjunction with data provided 

to the Equal Employment Opportunity Commission in 

compliance with part 1614 of title 29 of the Code of Federal 

Regulations) including-- (A) an examination of trends; (B) 

causal analysis; (C) practical knowledge gained through 

experience; and (D) any actions planned or taken to improve 

complaint or civil rights programs of the agency; and 

(8) any adjustment (to the extent the adjustment can be 

ascertained in the budget of the agency) to comply with the 

requirements under section 201.

(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 data are not available for all 5 

fiscal years, for each of those 5 fiscal years for which data are available). 

SEC. 204. RULES AND GUIDELINES. 

(a) Issuance <<NOTE: President.>> 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 relating to the 

appropriate disciplinary actions against Federal employees who commit 

the actions described under clauses (i) and (ii) of section 203(a)(6)(A); 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 <<NOTE: Deadline.>> 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 [[Page 116 STAT. 571]] 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. <<NOTE: Deadlines.>> STUDIES BY GENERAL ACCOUNTING OFFICE 

ON EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT 

OF CERTAIN DEPARTMENT OF JUSTICE COSTS. 

(a) Study on Exhaustion of Administrative Remedies.--

(1) Study.-- (A) In general.--Not later than 180 days after the 

date of 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 under section 201(c) exhaust 

administrative remedies before filing complaints with the 

Equal Employment Opportunity Commission. (B) Contents.--

The study shall include a detailed summary of matters 

investigated, information collected, and conclusions 

formulated that lead to determinations of how the elimination 

of such requirement will-- (i) expedite handling of allegations 

of such violations within Federal agencies and will streamline 

the complaint-filing process; (ii) affect the workload of the 

Commission; (iii) affect established alternative dispute 

resolution procedures in such agencies; and (iv) affect any 

other matters determined by the General Accounting Office 

to be appropriate for consideration. 

(2) Report.--Not later than 90 days after completion of the 

study required by paragraph (1), 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. 

(b) Study on Ascertainment of Certain Costs of the Department of Justice 

in Defending Discrimination and Whistleblower Cases.--
(1) Study.--Not later than 180 days after the date of 

enactment of this Act, the General Accounting Office shall 

conduct a study of the methods that could be used for, and 

the extent of any administrative burden that would be 

imposed on, the Department of Justice to ascertain the 

personnel and [[Page 116 STAT. 572]] administrative costs 

incurred in defending in each case arising from a proceeding 

identified under section 201(a) (1) and (2). 

(2) Report.--Not later than 90 days after completion of the 

study required by paragraph (1), the General Accounting 

Office shall submit to the Speaker of the House of 

Representatives and the President pro tempore of the 

Senate a report containing the information required to be 

included in the study. 

(c) Studies on Statutory Effects on Agency Operations.--

(1) In general.--Not later than 18 months after the date of 

enactment of this Act, the General Accounting Office shall 

conduct-- (A) a study on the effects of section 201 on the 

operations of Federal agencies; and (B) a study on the 

effects of section 13 of the Contract Disputes Act of 1978 (41 

U.S.C. 612) on the operations of Federal agencies. 

(2) Contents.--Each study under paragraph (1) shall include, 

with respect to the applicable statutes of the study-- (A) a 

summary of the number of cases in which a payment was 

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; (B) a summary of the length of 

time Federal agencies used to complete reimbursements of 

payments described under subparagraph (A); and (C) 

conclusions that assist in making determinations on how the 

reimbursements of payments described under subparagraph 

(A) will affect-- (i) the operations of Federal agencies; (ii) 

funds appropriated on an annual basis; (iii) employee 

relations and other human capital matters; (iv) settlements; 

and (v) any other matter determined by the General 

Accounting Office to be appropriate for consideration. 

(3) Reports.--Not later than 90 days after the completion of 

each study under paragraph (1), the General Accounting 

Office shall submit a report on each study, respectively, to 

the Speaker of the House of Representatives, the President 

pro tempore of the Senate, the Committee on Governmental 
Affairs of the Senate, the Committee on Government Reform 

of the House of Representatives, and the Attorney General. 

(d) Study on Administrative and Personnel Costs Incurred by the 

Department of the Treasury.--

(1) In general.--Not later than 1 year after the date of 

enactment of this Act, the General Accounting Office shall 

conduct a study on the extent of any administrative and 

personnel costs incurred by the Department of the Treasury 

to account for payments 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, as a 

result of-- (A) this Act; and (B) the Contracts Dispute Act of 

1978 (41 U.S.C. 601 note; Public Law 95-563). 

(2) Report.--Not later than 90 days after the completion of 

the study under paragraph (1), the General Accounting 

Office shall submit a report on the study to the Speaker of 

the [[Page 116 STAT. 573]] House of Representatives, the 

President pro tempore of the Senate, the Committee on 

Governmental Affairs of the Senate, the Committee on 

Government Reform of the House of Representatives, and 

the Attorney General. 

TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA 

DISCLOSURE 

SEC. 301. <<NOTE: Internet. Public information.>> 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-- [[Page 

116 STAT. 574]] (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). [[Page 116 STAT. 575]] 

SEC. 302. <<NOTE: Internet. Public information.>> 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. Approved May 15, 2002. LEGISLATIVE 

HISTORY--H.R. 169: 

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HOUSE REPORTS: No. 107-101, Pt. 1 (Comm. on the Judiciary). 

SENATE REPORTS: No. 107-143 (Comm. on Governmental Affairs). 

CONGRESSIONAL RECORD, Vol. 147 (2001): Oct. 2, considered and 

passed House. Apr. 23, considered and passed Senate, amended. Apr. 

30, House concurred in Senate amendments.

Source: http://www.gpoaccess.gov