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UNCLASSIFIED

By statute, the ODNI does not fall under the whistleblower framework described in the
No FEAR Act.! Congress amended the National Security Act of 1947 to include
whistleblower protections for ODNI and other IC employees and contractors who properly
disclose information that they reasonably believe evidences certain specified types of
wrongdoing, including for example violations of a federal law, rule, or regulation? These
statutory provisions are the foundation of an IC whistleblower protection framework, which
also includes the Presidential Policy Directive 19, Protecting Whistleblowers with Access to
Classified Information (October 2012), and Intelligence Community Directive 120,
Intelligence Community Whistleblower Protection (20 March 2014). The Inspector General of
the Intelligence Community (ICIG) also provides an independent review of whistleblower
allegations for ODNI employees and contractors to determine whether or not a reprisal has
occurred. The ICIG’s statutory authority originates in the National Security Act of 1947,
which also protects IC whistleblowers who intend to communicate “urgent concerns” to the
congressional intelligence committees relating to the funding, administration, or operation of
intelligence activities.? Together, these statutory authorities, and presidential and intelligence
community directives, provide IC employees with whistleblower protections similar to those
found in the No FEAR Act.

No FEAR Act web-based training, required for all ODNI employees, addresses the
rights and remedies available to IC employees via the EEO process. Protecting Whistleblowers
in the IC training, mandatory for all ODNI employees and contractors, addresses the rights and
remedies available to those who may disclose information through the appropriate channels as
set forth in the Presidential Policy Directive 19 and Intelligence Community Directive 120.

The ODNI is committed to preventing discrimination and retaliation in the ODNI and in the IC.

1 The No FEAR Act provides for Judgment Fund reimbursement of, and annual reporting related to,
proceedings brought under (1) any provision of law prohibiting any form of discrimination under the laws
interpreted by the EEOC, and (2) the whistleblower protection provisions of 5 U.S.C. § 2302(b)(8) and (9). See
Section 201(a) and (c) of the No FEAR Act. Congress expressly exempted the ODNI and other IC agencies from
the coverage of 5 U.S.C. § 2302. Instead, ODNI employees are subject to other whistleblower protections consistent
with the need to protect classified information. See Presidential Policy Directive 19 (October 10, 2012), Protecting
Whistleblowers with Access to Classified Information; Intelligence Community Directive 120 (March 20, 2014),
Intelligence Community Whistleblower Protection; 50 U.S.C. §§ 3234 and 3341()).

2 See 50 U.S.C. § 3234, Prohibited personnel practices in the intelligence community; and 50 U.S.C. § 3341(),
Retaliatory revocation of security clearances and access determinations. Other types of wrongdoing covered by
these statutes include mismanagement (if the whistleblower is an employee) or gross mismanagement (if the
whistleblower is a contractor); gross waste of funds; abuse of authority; a substantial and specific danger to public
health or safety; or matters of urgent concern. To obtain whistleblower protections, a whistleblower is required to
make disclosures in a manner consistent with the need to protect classified information. See also Presidential Policy
Directive 19 (October 10, 2012), Protecting Whistleblowers with Access to Classified Information and Intelligence
Community Directive 120 (March 20, 2014), Intelligence Community Whistleblower Protection.

3 See 50 U.S.C. § 3033(k)(5)(A). For purposes of this statute, an “urgent concern” is a serious or flagrant
problem, abuse, violation of law or Executive Order, or deficiency relating to the funding, administration, or
operation of an intelligence activity under the DNI’s jurisdiction; or a false statement or willfully omitted material
information to Congress, relating to the funding, administration, or operation of an intelligence activity within the
DNI’s jurisdiction; or an actual or threatened reprisal action for having previously reported an urgent concern. See
§ 3033(k)(5)(G).

5
UNCLASSIFIED


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UNCLASSIFIED

Issues in EEO Complaints

The most-frequently raised issues in discrimination complaints during FY 2020
concerned terms and conditions of employment. While there are no notable trends in the issues
raised given the small number of complaints, the number of issues raised in FY 2020 increased
from two to ten. This increase reveals the agency processed more intricate and complex cases of
discrimination during the reporting period.

Practical Knowledge Gained Through Experience

During FY 2020, EEO-ICD and the Employee Management Relations Officer (EMRO),
responsible for executing the ODNI’s anti-harassment program, maintained regular and frequent
communication, as appropriate to identify and address harassment and bullying occurring in the
workplace. EEO-ICD provided essential support to the EMRO in efforts to strengthen its
program administration by reviewing and updating agency policies and practices. IC employees
assigned to ODNI workspaces demonstrated a training need to better understand policies and
practices to address harassment in the workplace. Based on this need, EEO-ICD and EMRO
partnered to deliver quarterly training to identify and address ordinary workplace friction,
conflict, and disputes. This effort ensures that federal employees in ODNI facilities remain
aware of their EEO rights and timelines as well as ODNI resources and policies to prevent
harassment. This resulted in increased employee education and the proper routing and prompt
resolution of issues raised by employees.

EEO-ICD also increased training opportunities for the workforce, to include a Brown
Bag Series and virtual No FEAR training offerings. The Brown Bag Series offered small group
information sessions, some tailored to specific topics, such as disability and religious
accommodations, as well as retaliation. To meet the needs of the ODNI workforce during the
agency’s COVID-19 posture, EEO-ICD ensured compliance with No FEAR training
requirements by developing and offering No FEAR training virtually for those employees who
were on Weather Safety Leave or working remotely.

Improvements in the Complaint Program

The ODNI’s training office ensures that all ODNI employees receive reminders of the No
FEAR Act mandatory training requirement and complete the training biennially. New employees are
required to take the No FEAR Act training within 90 days of entering on duty, and all employees
must take the training biennially. Completion of biennial No FEAR training and annual Protecting
Whistleblowers in the IC training are required for employees and detailees.

The ODNI continues to offer an EEO briefing during new employee orientation.
Throughout the year, EEO-ICD educates ODNI managers and employees on a range of matters such
as preventing and mitigating EEO violations, the importance of confidentiality in the EEO process,
identifying actions that constitute unlawful retaliation, disability rights, and other EEO compliance
issues. In addition, ODNI provides mandatory Unconscious Bias training for all senior managers
and supervisors who participate in the ODNI’s Career Advisory Boards (career development and
promotion boards). In meeting the commitment outlined in A Pledge to Our People, signed by
the heads of each IC element in 2019, EEO-ICD created and directed the production of
substantive media content related to a forthcoming web-based training for the ODNI and the IC

7
UNCLASSIFIED


UNCLASSIFIED

REPORTING OBLIGATIONS

During FY 2020, the ODNI had one case pending review in the Fourth Circuit Court of
Appeals in which the plaintiff petitioned for certiorari to the United States Supreme Court. The
case alleged violations of the Rehabilitation Act of 1973. The United States Supreme Court
denied certiorari, which affirmed the Fourth Circuit’s dismissal of the plaintiff's Rehabilitation
Act claims. The case was remanded by the Fourth Circuit to the United States District Court for
the Eastern District of Virginia for resolution of a single remaining claim, which does not arise
under the scope of 5 C.F.R. Section 734.602(a)(1).

ODNI has made no reimbursements to the Judgment Fund for payments as defined in 5
C.F.R. §724.102.

During FY 2020, there were no disciplinary actions taken against ODNI employees
pursuant to 5 C.F.R. §724.302(a)(3).

The ODNI is committed to providing a workplace that promotes productivity and
professionalism and an inclusive environment that protects the dignity of the entire workforce.
ODNI Instructions 20.04 and 120.02, Whistleblower Protections and Review of Allegations of
Reprisal Against Whistleblowers and ODNI Equal Employment Opportunity Discrimination
Complaint System, respectively, describe and outline protections offered to employees, as well as
disciplinary actions for conduct that constitutes prohibited personnel practices.

No FEAR FY 2016 — FY 2020, Year-End Data Report

Appendix I contains the ODNI’s year-end FY 2020 EEO complaint data and the data
from preceding fiscal years, in accordance with 5 C.F.R. § 724.302(a)(4) and 29 C.F.R. §
1614.705.

Analysis of EEO Complaint Trends and Causality
EEO Complaint Activity and Causality

For the last five years, the baseline number of complaints has continued to remain small,
as is reflected in Appendix I. Following attempts at resolution during EEO counseling,
aggrieved individuals filed seven formal complaints during FY 2020. The number of complaints
increased from four formal complaints filed in FY 2019, and five in FY 2018. Factors such as
the agency’s adjustment to a new organizational structure and operational changes due to the
COVID-19 pandemic may have contributed to the increase in the number of complaints filed in
FY 2020 as compared with FY 2019.

Bases of Discrimination in EEO Complaints

During FY 2020, the ODNI’s most-frequently alleged basis of discrimination in formal
EEO complaints was sex, followed by disability.

6
UNCLASSIFIED


UNCLASSIFIED

APPENDIX

e Appendix I: ODNI Equal Employment Opportunity Data Posted Pursuant to Title HI of
the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002
(No FEAR Act) Pub. L. 107-174

9
UNCLASSIFIED


UNCLASSIFIED

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

Fiscal Year 2020 Annual Report to Congress
on the Notification and Federal Employee
Antidiscrimination and Retaliation
Act of 2002

April 2021

UNCLASSIFIED


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UNCLASSIFIED

regarding Anti-Harassment, The studio-produced training will be available online and will train
employees to recognize, respond, report, and resolve instances of harassment before they cause
irreparable harm to the work environment.

During FY 2020, while the agency was ina COVID-19 posture, ODNI continued to process
all EEO complaints in accordance with EEOC timelines. Additionally, all investigations of formal
complaints were timely conducted in accordance with EEOC’s regulations. See Appendix I, Table
11. By implementing innovative approaches to investigations, such as employing the use of court
reporters and stenographers to conduct virtual live interviews in processing EEO complaints, EEO-
ICD was able to increase efficiencies and ensure thorough and timely Reports of Investigations.
During FY 2020, EEO-ICD also established and piloted a Mediator Corps collaboration with the
Federal Bureau of Investigation, leading to case resolution and increased employee satisfaction with
the complaints process.

8
UNCLASSIFIED


UNCLASSIFIED

INTRODUCTION

Following the tragic events of 11 September 2001, Congress saw the need for sweeping
change in the Intelligence Community (IC), resulting in the passage of the /ntelligence Reform
and Terrorism Prevention Act of 2004 (IRTPA), signed on 17 December 2004. The IRTPA
created the ODNI to lead the 18 member IC and improve information sharing, strategically
promote a unified direction, and ensure integration across the IC. The ODNI began operations
on 22 April 2005.

The Director of National Intelligence (DNI) serves as the head of the IC, acts as the
principal advisor to the President and the National Security Council on intelligence matters
related to national security, and oversees and directs the implementation of the National
Intelligence Program. In addition to her IC-wide mission, the DNI also leads the ODNI
workforce and organization.

In accordance with 29 C.F.R. § 1614.102(b)(4), the Chief of the Equal Employment
Opportunity and IC Diversity Office (EEO-ICD) directs the agency’s EEO program and
reports directly to the DNI. The EEO-ICD Chief serves as the principal advisor to the DNI on
issues related to EEO compliance, equity, and inclusion. EEO-ICD educates and trains ODNI
managers, supervisors, and employees about their responsibility to maintain a workplace free
of unlawful discrimination and harassment; processes informal and formal complaints of
discrimination in accordance with EEOC guidelines and timeframes; and promotes the
understanding of diversity and inclusion as mission-critical.

During Fiscal Year (FY) 2020, the ODNI and IC partners pioneered the 2020-2023
Joint Strategy to Advance Equal Employment Opportunity, Diversity, and Inclusion within the
United States Intelligence Community (Joint Strategy). The Joint Strategy communicates a
shared vision, mission, and plan to: improve the IC’s ability to hire, retain, and promote a
more diverse workforce, especially regarding underrepresented demographic groups; cultivate
an inclusive workplace; and continue important compliance work with greater efficiency and
impact. Goal Two of the Joint Strategy, Strengthen Compliance with Laws and Eliminate
Discriminatory Behavior, seeks to promote workplace equality by ensuring the right resources
and trained personnel are in place to eliminate barriers to equal access, and swiftly respond to
allegations of employment discrimination and harassment, wherever it occurs. To this end,
EEO-ICD established the IC EEO Compliance Support Group in FY 2020. This group serves
as a resource for IC EEO professionals to gain training, share best practices and find solutions
to challenges in EEO compliance case processing within the IC. Since its inception, the
Support Group has worked with the EEOC Office of Federal Operations (OFO) to present case
law updates tailored to the IC; compiled common concerns and challenges in the IC during the
pandemic for consideration by OFO; and led other training efforts. EEO-ICD also continued
the development of training resources, in topic areas such as anti-harassment and empathy, in
efforts to implement the recommendations of the 2019 Sexual Harassment and Prevention
Response Task Force.

4
UNCLASSIFIED


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UNCLASSIFIED

EXECUTIVE SUMMARY

To support the Federal Government's longstanding obligation to provide a work
environment free of discrimination and retaliation, the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), Public Law 107-174, requires
annual reports to Congress on the number and severity of discrimination and whistleblower cases
brought against each federal agency. The Office of the Director of National Intelligence (ODNI)
submits this annual report in compliance with Section 203 of the No FEAR Act, covering Fiscal
Year (FY) 2020. The No FEAR Act Annual Report contains information relating to the ODNI’s
Equal Employment Opportunity (EEO) complaints activity (including federal district court
cases), as well as any resulting disciplinary actions and Judgment Fund reimbursements. The
agency’s reporting obligations contained in Title § Code of Federal Regulations Part 724 have
been incorporated into the ODNI’s No FEAR FY 2020 Year-End Data report (Appendix 1),
concerning EEO complaints.

As directed by Section 203, ODNI provides this report to the Speaker of the House of
Representatives, the President Pro Tempore of the Senate, the Committee on Homeland Security
and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of
the House of Representatives, each committee of Congress with jurisdiction relating to the ODNI,
the Equal Employment Opportunity Commission (EEOC), the Attorney General, and the Director
of the Office of Personnel Management.

3
UNCLASSIFIED


UNCLASSIFIED

Table of Contents

EXECUTIVE SUMMARY
INTRODUCTION
REPORTING OBLIGATIONS ..
No FEAR FY 2016 — FY 2020, Year-End Data Report
Analysis of EEO Complaint Trends and Causality .......sssssesssssecssssesssssesessnsssssnessssnseesnnnseennns

APPENDIX .vssesscssseccsssssossssssssssssssessssssssssssssssscscsssesessssscsssusccesseseccsussensssvessssnsesssssesssnecsensesenssnessenneees

2
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