I 

111TH CONGRESS 

1ST SESSION H. R. 67 

To amend and to strengthen accountability features introduced by the Notification and Federal Employee Antidiscrimination and Retaliation Act 

of 2002, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 6, 2009 

Ms. JACKSON-LEE of Texas introduced the following bill; which was referred 

to the Committee on Oversight and Government Reform, and in addition 

to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions 

as fall within the jurisdiction of the committee concerned 

A BILL 

To amend and to strengthen accountability features introduced by the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Notification and Federal Employee Antidiscrimination 

6 and Retaliation Act of 2009’’ or the ‘‘No FEAR Act of 

7 2009’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents of 

2 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. Amendments to Title I of the No FEAR Act of 2002. 

TITLE II—AMENDMENTS TO TITLE II OF THE NO FEAR ACT OF 

2002 

Sec. 201. Amendments relating to reimbursement requirement. 

Sec. 202. Amendments relating to notification requirement. 

Sec. 203. Amendments relating to reporting requirement. 

Sec. 204. Training. 

TITLE III—ACCOUNTABILITY PROVISIONS 

Sec. 301. Disciplinary action requirement. 

Sec. 302. Sanctions. 

Sec. 303. Role of Department of Justice. 

Sec. 304. No FEAR Oversight Office. 

TITLE IV—DAMAGES AND RELIEF 

Sec. 401. Clarification of Title VII liability caps, damages remedies. 

Sec. 402. No immunity from individual liability for Federal officials. 

3 TITLE I—GENERAL PROVISIONS 

4 SEC. 101. FINDINGS. 

5 Congress finds that— 

6 (1) agencies that engage in discrimination, re7 taliation, harassment, or violations of Federal dis8 crimination or whistleblower protection laws dem9 onstrate a gross disregard for taxpayer dollars, un10 dermine the confidence of the American people in 

11 the Government, put the public’s safety and services 

12 at risk, and reduce the Government’s ability to time13 ly and adequately address vital public needs; 


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1 (2)(A) Congress has heard testimony from indi2 viduals which point to chronic problems of discrimi3 nation and retaliation against Federal employees, 

4 and which, in turn, negatively affect the Federal 

5 Government’s efficiency and effectiveness; 

6 (B) in the case of Dr. Marsha Coleman7 Adebayo, a jury found in August 2000 that the En8 vironmental Protection Agency had discriminated 

9 against the scientist based on race, color, and a hos10 tile work environment; agency managers retaliated 

11 by relieving the scientist of her duties after she re12 ported that an American company exposed its Afri13 can miners and their families to vanadium, a deadly 

14 substance; and the agency has consistently retaliated 

15 against the employee since she prevailed in her jury 

16 verdict and testified twice before Congress; and 

17 (C) in the case of Matthew F. Fogg v. Janet 

18 Reno, Attorney General of the United States, a case 

19 that was filed 21 years ago— 

20 (i) a Federal jury found that the United 

21 States Marshals Service had discriminated 

22 against United States Marshal Fogg, and was 

23 a ‘‘hostile environment’’ for all African-Ameri24 cans serving in the United States Marshals 

25 Service; and 


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1 (ii) 10 years after that jury verdict, hand2 ed down on April 28, 1998, the Department of 

3 Justice continued to use taxpayer money to ap4 peal this case; and 

5 (3)(A) Federal agencies should foster a work6 place free of discrimination and should timely re7 solve prima facie cases of discrimination and retalia8 tion, particularly in cases of class-wide allegations; 

9 and 

10 (B) in the case of Janet Howard, et al. v. Car11 los M. Gutierrez, Secretary, United States Depart12 ment of Commerce, the Department of Commerce 

13 allowed employee complaints to languish and used 

14 taxpayer dollars to litigate a race-based discrimina15 tion class action first filed in 1995; in fiscal year 

16 2001, rather than resolve employee concerns, the 

17 Department established the Class Action Project 

18 Fund (since renamed the Complex Litigation Unit), 

19 which serves to defend a workforce culture that per20 petuates unlawful and intentional discrimination in 

21 the workplace. 

22 SEC. 102. SENSE OF CONGRESS. 

23 It is the sense of Congress that— 

24 (1) additional enforcement and remedies under 

25 Federal law are needed to make Federal agencies 


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1 more accountable for their violations of employment 

2 discrimination and whistleblower protection laws; 

3 (2) defining and prescribing timely, definitive 

4 disciplinary action for Federal managers and super5 visors found violating the No FEAR Act of 2002 

6 provides more accountability and consequences for 

7 discrimination and retaliation against whistle8 blowers; 

9 (3) establishing a definitive period for reimburs10 ing the Judgment Fund (as prescribed in section 

11 201 of the No FEAR Act of 2002) should encourage 

12 timely resolution or settlement of complaints; 

13 (4) extending notification of No FEAR provi14 sions to cover all employees, including employees of 

15 contractors receiving a majority of their funding 

16 from contracts with the United States Government, 

17 should increase Federal agency compliance with the 

18 law; 

19 (5) addressing damages and relief should clarify 

20 compensation available to complaining parties pursu21 ant to the 1991 amendments to Title VII; and 

22 (6) extending whistleblower protection to vet23 erans hospitals and physicians and other medical 

24 professionals who work in health care facilities that 

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1 eral Government should support and protect medical 

2 professionals from discrimination and retaliation. 

3 SEC. 103. DEFINITIONS. 

4 For the purposes of this Act— 

5 (1) the term ‘‘claim’’ means a cause of action 

6 or an alleged discriminatory or retaliatory act identi7 fied in a complaint; 

8 (2) the term ‘‘criminal violation’’ includes any 

9 of the offenses proscribed by section 241, 371, 373, 

10 or 1962 of title 18, United States Code, including 

11 fraud, perjury, bribery, witness tampering, and ob12 struction of justice; 

13 (3) the term ‘‘culpable official’’ means an indi14 vidual, currently or formerly employed by a Federal 

15 agency, whose conduct in the course of that employ16 ment is the basis for a final finding of discrimina17 tion; 

18 (4) the term ‘‘disciplinary action’’ includes a 

19 suspension, demotion, or termination; 

20 (5) the term ‘‘employee’’ means any Federal 

21 employee within the meaning of section 103 of the 

22 No FEAR Act of 2002 and any other individual, in23 cluding permanent, temporary, full- or part-time em24 ployees or independent contractors performing serv25 ices for an organization that in whole or in part is 


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1 a contractor or grantee or other entity that receives 

2 a majority of its funding from the Federal Govern3 ment; 

4 (6) the term ‘‘Federal official’’ means any man5 ager, supervisor, or senior policy official employed by 

6 a Federal agency and having any of the powers and 

7 responsibilities of management— 

8 (A) to give instructions or orders to subor9 dinates; 

10 (B) to be held responsible for the work and 

11 actions of other employees; or 

12 (C) to administer discipline and penalties; 

13 (7) the term ‘‘final finding of discrimination’’ 

14 means a finding of discrimination (as described in 

15 section 201(a) of the No FEAR Act of 2002) that 

16 is final and not appealable, and includes an order of 

17 settlement; 

18 (8) the term ‘‘immediately’’ means within less 

19 than 10 calendar days; 

20 (9) the term ‘‘Title VII’’ means title VII of the 

21 Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); 

22 and 

23 (10) the term ‘‘whistleblower’’ means an em24 ployee who discloses information which the employee 

25 reasonably believes evidences— 


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1 (A) a violation of Title VII or any other 

2 law, or of any rule or regulation; or 

3 (B) gross mismanagement, a gross waste 

4 of funds, an abuse of authority, or a substantial 

5 and specific danger to public health or safety. 

6 SEC. 104. AMENDMENTS TO TITLE I OF THE NO FEAR ACT 

7 OF 2002. 

8 Section 102(6) of the Notification and Federal Em9 ployee Antidiscrimination and Retaliation Act of 2002 (5 

10 U.S.C. 2301 note), in this Act referred to as the ‘‘No 

11 FEAR Act of 2002’’, is amended— 

12 (1) in subparagraph (A), by striking ‘‘within a 

13 reasonable time’’ and inserting ‘‘no later than two 

14 years after the Judgment Fund makes the pay15 ment’’; and 

16 (2) in subparagraph (B), by striking ‘‘agency, 

17 may need to extend reimbursement over several 

18 years’’ and inserting ‘‘agency, may need to make ar19 rangements for a payment schedule with the Treas20 ury not to exceed two years’’. 


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1 TITLE II—AMENDMENTS TO 

2 TITLE II OF THE NO FEAR 

3 ACT OF 2002 

4 SEC. 201. AMENDMENTS RELATING TO REIMBURSEMENT 

5 REQUIREMENT. 

6 Subsection (b) of section 201 of the No FEAR Act 

7 of 2002 is amended— 

8 (1) by making the text of such subsection a 

9 paragraph (1), indented 2 ems and with a heading 

10 that reads as follows: 

11 ‘‘(1) IN GENERAL.—’’; and 

12 (2) by adding at the end the following: 

13 ‘‘(2) NOTICE TO BE PROVIDED BY AGENCY.— 

14 No later than 45 days after the date of the receipt 

15 of a final finding of discrimination, the agency shall 

16 notify the Department of the Treasury— 

17 ‘‘(A) of its responsibility to repay the 

18 Judgment Fund; and 

19 ‘‘(B) to arrange payment of the full 

20 amount or to make arrangements for a pay21 ment schedule in accordance with paragraph 

22 (3). 

23 ‘‘(3) DEADLINE FOR REPAYMENTS GEN24 ERALLY.—The agency shall repay the Judgment 

25 Fund in full no later than the close of the second 


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1 fiscal year beginning after the date on which the 

2 Judgment Fund makes the payment (or, if made 

3 under a payment schedule, the close of the second 

4 fiscal year beginning after the date on which the 

5 Judgment Fund makes the final payment).’’. 

6 SEC. 202. AMENDMENTS RELATING TO NOTIFICATION RE7 QUIREMENT. 

8 Section 202 of the No FEAR Act of 2002 is amend9 ed— 

10 (1) in subsection (a), by striking ‘‘to Federal 

11 employees,’’ and inserting ‘‘to Federal employees 

12 (including any employee of a contractor receiving 

13 more than 50 percent of its annual gross revenues 

14 from Federal contracts),’’; 

15 (2) in subsection (b), by adding at the end the 

16 following: ‘‘Within 3 days after the date of the en17 actment of the No FEAR Act of 2009, and annually 

18 thereafter, each Federal agency shall notify its em19 ployees, by e-mail or voice mail, of the Internet site 

20 used by such agency in compliance with the pre21 ceding sentence.’’; and 

22 (3) by amending subsection (c) to read as fol23 lows: 

24 ‘‘(c) EMPLOYEE TRAINING.—Each Federal agency 

25 shall ensure that employees of such agency receive training 


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1 regarding the rights and remedies applicable to such em2 ployees under the respective provisions of law covered by 

3 paragraphs (1) and (2) of section 201(a).’’. 

4 SEC. 203. AMENDMENTS RELATING TO REPORTING RE5 QUIREMENT. 

6 (a) IN GENERAL.—Section 203(a) of the No FEAR 

7 Act of 2002 is amended— 

8 (1) by striking ‘‘and’’ at the end of paragraph 

9 (7); 

10 (2) by striking the period at the end of para11 graph (8) and inserting a semicolon; and 

12 (3) by adding after paragraph (8) the following: 

13 ‘‘(9) data on all class actions filed, including 

14 size, status, filing date, number of suits filed against 

15 the agency, and demographic make-up; 

16 ‘‘(10) request for counseling by race or sex, as 

17 well as individuals who fall within both categories; 

18 ‘‘(11) total workforce and ethnic representation, 

19 including race and national origin data; 

20 ‘‘(12) number and nature of personnel griev21 ances alleging prohibited personnel practices; 

22 ‘‘(13) the total dollar amount by fiscal years 

23 that the agency owes the Judgment Fund; 


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1 ‘‘(14) total costs associated with processing and 

2 litigating cases, including salaries and travel costs of 

3 all personnel involved; 

4 ‘‘(15) number of plaintiffs that prevailed in jury 

5 trials or administrative proceedings; and 

6 ‘‘(16) specific agency office where discrimina7 tion was found.’’. 

8 (b) ADDITIONAL REPORTS.—Section 203 of the No 

9 FEAR Act of 2002 is amended by adding at the end the 

10 following: 

11 ‘‘(c) REPORTS BY GAO.—The Government Account12 ability Office shall, within 90 days after the end of each 

13 fiscal year, prepare and submit to Speaker of the House 

14 of Representatives, the President pro tempore of the Sen15 ate, and each of the committees named or described in 

16 subsection (a), a report on the total costs incurred during 

17 such fiscal year which are associated with processing and 

18 litigating cases arising under each of the respective provi19 sions of law covered by paragraphs (1) and (2) of section 

20 201(a), including costs associated with Department of 

21 Justice litigation. 

22 ‘‘(d) REPORTS BY AGENCIES.— 

23 ‘‘(1) IN GENERAL.—Effective with respect to 

24 agency performance plans for fiscal years beginning 

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1 ment of this subsection, each Federal agency shall 

2 establish performance goals reflective of its efforts to 

3 implement this Act. 

4 ‘‘(2) DEFINITIONS.—For purposes of this sub5 section— 

6 ‘‘(A) the term ‘agency performance plan’ 

7 refers to an agency performance plan under 

8 section 1115 of title 31, United States Code 

9 (or, for purposes of the United States Postal 

10 Service, section 2803 of title 39, United States 

11 Code); and 

12 ‘‘(B) the term ‘performance goal’ has the 

13 meaning given such term by section 1115(g)(4) 

14 of title 31, United States Code (or, for purposes 

15 of the United States Postal Service, section 

16 2801(3) of title 39, United States Code).’’. 

17 SEC. 204. TRAINING. 

18 (a) The No FEAR Institute, a nonprofit, non-Federal 

19 Government entity, is hereby specified as a source of train20 ing and counseling for Federal employees that is man21 dated by this Act with regard to their rights and remedies 

22 under antidiscrimination, retaliation, and harassment, as 

23 well as whistleblower protection laws. 

24 (b) The No FEAR Institute shall be recognized as 

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1 ceive annual funding, in accordance with such agreements 

2 as agencies and contractors may enter into with the No 

3 FEAR institute, in order to provide training to Federal 

4 employees and contractors receiving more than 50 percent 

5 of their annual budget from the Federal Government. 

6 TITLE III—ACCOUNTABILITY 

7 PROVISIONS 

8 SEC. 301. DISCIPLINARY ACTION REQUIREMENT. 

9 (a) FINAL FINDING OF DISCRIMINATION WHERE

10 MENTAL OR PHYSICAL HEALTH IS HARMED.—Upon a 

11 final finding of discrimination with respect to a culpable 

12 official in a case in which such official’s discriminatory 

13 or retaliatory acts are determined to have contributed to 

14 a loss of life or limb or any other substantial diminishment 

15 of an employee’s mental or physical health, the culpable 

16 official shall immediately— 

17 (1) be terminated from Federal service; 

18 (2) be debarred from Federal employment for a 

19 period not to exceed 5 years; and 

20 (3) forfeit any right to serve as a worker em21 ployed under any Federal contract. 

22 (b) FINAL FINDING OF DISCRIMINATION NOT COV23 ERED BY SUBSECTION (a).— 

24 (1) APPLICABILITY.—This subsection applies in 

25 the case of any final finding of discrimination, with 


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1 respect to a culpable official, which is not subject to 

2 subsection (a). 

3 (2) INITIAL FINDING.—Upon an initial finding 

4 of discrimination as described in paragraph (1)— 

5 (A) the culpable official shall imme6 diately— 

7 (i) be removed from service as a Fed8 eral official; and 

9 (ii) be demoted at least 1 pay grade 

10 (or the equivalent); and 

11 (B) the employing agency shall include in 

12 the culpable official’s official personnel record a 

13 notation to the effect that such a finding 

14 against such official was made. 

15 (3) SUBSEQUENT FINDING.—Upon a subse16 quent finding of any discrimination with respect to 

17 the same official, such official shall immediately— 

18 (A) be terminated from Federal service; 

19 (B) be debarred from Federal employment 

20 for a period not to exceed 5 years; and 

21 (C) forfeit any right to serve as a worker 

22 employed under any Federal contract. 

23 SEC. 302. SANCTIONS. 

24 The Secretary of the Treasury shall impose a mone25 tary penalty of $10,000 on an agency of the United States 


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1 for each week that agency fails to take action against em2 ployees who falsify evidence in a proceeding under Title 

3 VII. 

4 SEC. 303. ROLE OF DEPARTMENT OF JUSTICE. 

5 (a) REFERRAL.—The Equal Employment Oppor6 tunity Commission and any agency that becomes aware 

7 of a criminal violation shall refer the matter to the Depart8 ment of Justice for prosecution when agency officials are 

9 found liable for intimidating or harassing employees that 

10 testify before Congress. If an employee alleges that intimi11 dation or harassment has occurred as a result of congres12 sional testimony by that employee, Congress should work 

13 in collaboration with the No FEAR Oversight office to in14 vestigate the allegation and refer it to the Department of 

15 Justice for prosecution if appropriate. 

16 (b) REPORT.—Not later than 180 days after a deter17 mination not to prosecute a matter referred under this 

18 section, the Department of Justice shall provide to Con19 gress a justification for that determination. 

20 SEC. 304. NO FEAR OVERSIGHT OFFICE. 

21 The Comptroller General shall take such measures as 

22 may be necessary to ensure that an office, to be known 

23 as the ‘‘No FEAR Oversight Office’’, shall be created 

24 within the Government Accountability Office. The No 

25 FEAR Oversight Office shall be the official clearinghouse 


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1 for the Federal Government and provide written informa2 tion to Congress, the executive branch, and the public on 

3 the enforcement of the No FEAR Act of 2002. The No 

4 FEAR Oversight Office shall be established within 30 

5 days after the date of the enactment of this Act. 

6 TITLE IV—DAMAGES AND 

7 RELIEF 

8 SEC. 401. CLARIFICATION OF TITLE VII LIABILITY CAPS, 

9 DAMAGES REMEDIES. 

10 (a) CLARIFY TITLE VII LIABILITY LIMITS.—For 

11 Federal Government Title VII cases, the liability limits for 

12 Federal workplace discrimination cases under Title VII is 

13 $300,000 per each claim or alleged violation of said law 

14 adjudicated in favor of the claimant, whether or not said 

15 violation sustains one or more additional claims when con16 sidered in conjunction with other unlawful activity. There17 fore, claimants are not limited to $300,000 compensatory 

18 damage cap per case as currently being interpreted by the 

19 Federal courts, but rather $300,000 per each claim 

20 awarded in favor of the plaintiff in the entire case. Fur21 thermore, Title VII is only the exclusive remedy for work22 force discrimination claims. Title VII is not the exclusive 

23 source of Federal statutory, workforce rights or exclusive 

24 remedy for their violation. 


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1 (b) RELIEF.—Should an administrative agency or 

2 court find for the employee in a subsequent claim and that 

3 the relief requested some or all was appropriate, the em4 ployee shall be entitled to liquidated damages (after taxes) 

5 plus all reasonable fees to attorneys. This shall not be con6 sidered a part of compensatory damages. Entitlement to 

7 damages under this provision is a post judgment pro8 ceeding. 

9 SEC. 402. NO IMMUNITY FROM INDIVIDUAL LIABILITY FOR 

10 FEDERAL OFFICIALS. 

11 It shall not be a defense to a civil action against an 

12 individual arising out of a violation of Title VII that the 

13 individual was acting in the capacity of a Government offi14 cer and employee at the time of the violation. 

Æ 


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