In the Senate of the United States,

April 23, 2002.

Resolved, That the bill from the House of Representatives (H.R. 169) entitled ‘‘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.’’, do pass with the following

AMENDMENTS:

1 Ω1æPage 2, line 6, strike out ø2001¿ and insert: 2002

2 Ω2æPage 2, in the table of contents, strike out

øTITLE I—GENERAL PROVISIONS¿

øSec. 101. Findings.¿

øSec. 102 Definitions.¿

øSec. 103 Effective date.¿

3 and insert:

TITLE I—GENERAL PROVISIONS

Sec. 101. Findings.

Sec. 102. Sense of Congress.

Sec. 103. Definitions.

Sec. 104. Effective date.
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1 Ω3æPage 2, in the table of contents, strike out

øSec. 206 Study by the General Accounting Office regarding exhaustion of administrative remedies.¿

2 and insert:

Sec. 206. Studies by General Accounting Office on exhaustion of remedies and

certain Department of Justice costs.

3 Ω4æPage 2, strike out all after line 9 over to and including

4 line 13 on page 4 and insert:

5 SEC. 101. FINDINGS.

6 Congress finds that—

7 (1) Federal agencies cannot be run effectively if

8 those agencies practice or tolerate discrimination;

9 (2) Congress has heard testimony from individ10 uals, including representatives of the National Asso11 ciation for the Advancement of Colored People and

12 the American Federation of Government Employees,

13 that point to chronic problems of discrimination and

14 retaliation against Federal employees;

15 (3) in August 2000, a jury found that the Envi16 ronmental Protection Agency had discriminated

17 against a senior social scientist, and awarded that

18 scientist $600,000;

19 (4) in October 2000, an Occupational Safety and

20 Health Administration investigation found that the

21 Environmental Protection Agency had retaliated

22 against a senior scientist for disagreeing with that
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1 agency on a matter of science and for helping Con2 gress to carry out its oversight responsibilities;

3 (5) there have been several recent class action

4 suits based on discrimination brought against Federal

5 agencies, including the Federal Bureau of Investiga6 tion, the Bureau of Alcohol, Tobacco, and Firearms,

7 the Drug Enforcement Administration, the Immigra8 tion and Naturalization Service, the United States

9 Marshals Service, the Department of Agriculture, the

10 United States Information Agency, and the Social Se11 curity Administration;

12 (6) notifying Federal employees of their rights

13 under discrimination and whistleblower laws should

14 increase Federal agency compliance with the law;

15 (7) requiring annual reports to Congress on the

16 number and severity of discrimination and whistle17 blower cases brought against each Federal agency

18 should enable Congress to improve its oversight over

19 compliance by agencies with the law; and

20 (8) requiring Federal agencies to pay for any

21 discrimination or whistleblower judgment, award, or

22 settlement should improve agency accountability with

23 respect to discrimination and whistleblower laws.

24 SEC. 102. SENSE OF CONGRESS.

25 It is the sense of Congress that—
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1 (1) Federal agencies should not retaliate for

2 court judgments or settlements relating to discrimina3 tion and whistleblower laws by targeting the claimant

4 or other employees with reductions in compensation,

5 benefits, or workforce to pay for such judgments or

6 settlements;

7 (2) the mission of the Federal agency and the

8 employment security of employees who are blameless

9 in a whistleblower incident should not be com10 promised;

11 (3) Federal agencies should not use a reduction

12 in force or furloughs as means of funding a reim13 bursement under this Act;

14 (4)(A) accountability in the enforcement of em15 ployee rights is not furthered by terminating—

16 (i) the employment of other employees; or

17 (ii) the benefits to which those employees

18 are entitled through statute or contract; and

19 (B) this Act is not intended to authorize those

20 actions;

21 (5)(A) nor is accountability furthered if Federal

22 agencies react to the increased accountability under

23 this Act by taking unfounded disciplinary actions

24 against managers or by violating the procedural
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1 rights of managers who have been accused of discrimi2 nation; and

3 (B) Federal agencies should ensure that man4 agers have adequate training in the management of

5 a diverse workforce and in dispute resolution and

6 other essential communication skills; and

7 (6)(A) Federal agencies are expected to reimburse

8 the General Fund of the Treasury within a reasonable

9 time under this Act; and

10 (B) a Federal agency, particularly if the amount

11 of reimbursement under this Act is large relative to

12 annual appropriations for that agency, may need to

13 extend reimbursement over several years in order to

14 avoid—

15 (i) reductions in force;

16 (ii) furloughs;

17 (iii) other reductions in compensation or

18 benefits for the workforce of the agency; or

19 (iv) an adverse effect on the mission of the

20 agency.

21 Ω5æPage 4, line 14, strike out ø102.¿ and insert: 103.

22 Ω6æPage 4, line 18, strike out øagency,¿ and insert: agen23 cy;

24 Ω7æPage 4, line 21, strike out ø303,¿ and insert: 303;
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HR 169 EAS

1 Ω8æPage 4, line 25, strike out øCommission,¿ and insert:

2 Commission;

3 Ω9æPage 5, line 2, strike out øagency,¿ and insert: agency;

4 Ω10æPage 5, line 5, strike out øagency,¿ and insert: agen5 cy;

6 Ω11æPage 5, line 9, strike out ø103.¿ and insert: 104.

7 Ω12æPage 6, line 3, strike out ø(c),¿ and insert: (c);

8 Ω13æPage 6, line 19, strike out øof the¿ and insert: ,

9 Ω14æPage 7, line 2, strike out øof the¿ and insert: ,

10 Ω15æPage 7, strike out lines 3 and 4

11 Ω16æPage 7, line 14, strike out ølaw,¿ and insert: law;

12 Ω17æPage 7, line 15, strike out øif to the extent that¿

13 and insert: if, or to the extent that,

14 Ω18æPage 8, line 8, after ‘‘ate,’’ insert: the Committee on

15 Governmental Affairs of the Senate, the Committee on Gov16 ernment Reform of the House of Representatives, each com17 mittee of Congress with jurisdiction relating to the agency,

18 Ω19æPage 8, line 14, strike out øalleged,¿ and insert: al19 leged;

20 Ω20æPage 8, line 16, strike out ø(1),¿ and insert: (1);
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1 Ω21æPage 8, line 21, strike out øany,¿ and insert: any;

2 Ω22æPage 8, line 25, strike out ø(1),¿ and insert: (1);

3 Ω23æPage 9 , line 3, strike out ø, and¿ and insert: ;

4 Ω24æPage 9, strike out lines 4 through 14 and insert:

5 (6) a detailed description of—

6 (A) the policy implemented by that agency

7 relating to appropriate disciplinary actions

8 against a Federal employee who—

9 (i) discriminated against any indi10 vidual in violation of any of the laws cited

11 under section 201(a) (1) or (2); or

12 (ii) committed another prohibited per13 sonnel practice that was revealed in the in14 vestigation of a complaint alleging a viola15 tion of any of the laws cited under section

16 201(a) (1) or (2); and

17 (B) with respect to each of such laws, the

18 number of employees who are disciplined in ac19 cordance with such policy and the specific na20 ture of the disciplinary action taken;

21 (7) an analysis of the information described

22 under paragraphs (1) through (6) (in conjunction

23 with data provided to the Equal Employment Oppor24 tunity Commission in compliance with part 1614 of
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1 title 29 of the Code of Federal Regulations)

2 including—

3 (A) an examination of trends;

4 (B) causal analysis;

5 (C) practical knowledge gained through ex6 perience; and

7 (D) any actions planned or taken to im8 prove complaint or civil rights programs of the

9 agency; and

10 (8) any adjustment (to the extent the adjustment

11 can be ascertained in the budget of the agency) to

12 comply with the requirements under section 201.

13 Ω25æPage 9, strike out lines 18 and 19 and insert:

14 years (or, if data are not available for all 5 fiscal years,

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

16 Ω26æPage 9, line 23, strike out øtitle,¿ and insert: title;

17 Ω27æPage 9, strike out all after line 23 over to and includ18 ing line 6 on page 10 and insert:

19 (2) rules to require that a comprehensive study

20 be conducted in the executive branch to determine the

21 best practices relating to the appropriate disciplinary

22 actions against Federal employees who commit the ac23 tions described under clauses (i) and (ii) of section

24 203(a)(6)(A); and
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1 Ω28æPage 10, line 20, strike out øguidelines,¿ and insert:

2 guidelines;

3 Ω29æPage 10, lines 22 and 23, strike out øguidelines,¿

4 and insert: guidelines;

5 Ω30æPage 11, strike out all after line 9 over to and includ6 ing line 16 on page 12 and insert:

7 SEC. 206. STUDIES BY GENERAL ACCOUNTING OFFICE ON

8 EXHAUSTION OF ADMINISTRATIVE REMEDIES

9 AND ON ASCERTAINMENT OF CERTAIN DE10 PARTMENT OF JUSTICE COSTS.

11 (a) STUDY ON EXHAUSTION OF ADMINISTRATIVE REM12 EDIES.—

13 (1) STUDY.—

14 (A) IN GENERAL.—Not later than 180 days

15 after the date of enactment of this Act, the Gen16 eral Accounting Office shall conduct a study re17 lating to the effects of eliminating the require18 ment that Federal employees aggrieved by viola19 tions of any of the laws specified under section

20 201(c) exhaust administrative remedies before

21 filing complaints with the Equal Employment

22 Opportunity Commission.

23 (B) CONTENTS.—The study shall include a

24 detailed summary of matters investigated, infor25 mation collected, and conclusions formulated
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1 that lead to determinations of how the elimi2 nation of such requirement will—

3 (i) expedite handling of allegations of

4 such violations within Federal agencies and

5 will streamline the complaint-filing process;

6 (ii) affect the workload of the Commis7 sion;

8 (iii) affect established alternative dis9 pute resolution procedures in such agencies;

10 and

11 (iv) affect any other matters deter12 mined by the General Accounting Office to

13 be appropriate for consideration.

14 (2) REPORT.—Not later than 90 days after com15 pletion of the study required by paragraph (1), the

16 General Accounting Office shall submit to the Speaker

17 of the House of Representatives, the President pro

18 tempore of the Senate, the Equal Employment Oppor19 tunity Commission, and the Attorney General a re20 port containing the information required to be in21 cluded in such study.

22 (b) STUDY ON ASCERTAINMENT OF CERTAIN COSTS OF

23 THE DEPARTMENT OF JUSTICE IN DEFENDING DISCRIMI24 NATION AND WHISTLEBLOWER CASES.—
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1 (1) STUDY.—Not later than 180 days after the

2 date of enactment of this Act, the General Accounting

3 Office shall conduct a study of the methods that could

4 be used for, and the extent of any administrative bur5 den that would be imposed on, the Department of

6 Justice to ascertain the personnel and administrative

7 costs incurred in defending in each case arising from

8 a proceeding identified under section 201(a) (1) and

9 (2).

10 (2) REPORT.—Not later than 90 days after com11 pletion of the study required by paragraph (1), the

12 General Accounting Office shall submit to the Speaker

13 of the House of Representatives and the President pro

14 tempore of the Senate a report containing the infor15 mation required to be included in the study.

16 Ω31æPage 12, after line 16, insert:

17 (c) STUDIES ON STATUTORY EFFECTS ON AGENCY OP18 ERATIONS.—

19 (1) IN GENERAL.—Not later than 18 months

20 after the date of enactment of this Act, the General

21 Accounting Office shall conduct—

22 (A) a study on the effects of section 201 on

23 the operations of Federal agencies; and
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1 (B) a study on the effects of section 13 of

2 the Contract Disputes Act of 1978 (41 U.S.C.

3 612) on the operations of Federal agencies.

4 (2) CONTENTS.—Each study under paragraph

5 (1) shall include, with respect to the applicable stat6 utes of the study—

7 (A) a summary of the number of cases in

8 which a payment was made in accordance with

9 section 2414, 2517, 2672, or 2677 of title 28,

10 United States Code, and under section 1304 of

11 title 31, United States Code;

12 (B) a summary of the length of time Fed13 eral agencies used to complete reimbursements of

14 payments described under subparagraph (A);

15 and

16 (C) conclusions that assist in making deter17 minations on how the reimbursements of pay18 ments described under subparagraph (A) will

19 affect—

20 (i) the operations of Federal agencies;

21 (ii) funds appropriated on an annual

22 basis;

23 (iii) employee relations and other

24 human capital matters;

25 (iv) settlements; and
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1 (v) any other matter determined by the

2 General Accounting Office to be appropriate

3 for consideration.

4 (3) REPORTS.—Not later than 90 days after the

5 completion of each study under paragraph (1), the

6 General Accounting Office shall submit a report on

7 each study, respectively, to the Speaker of the House

8 of Representatives, the President pro tempore of the

9 Senate, the Committee on Governmental Affairs of the

10 Senate, the Committee on Government Reform of the

11 House of Representatives, and the Attorney General.

12 Ω32æPage 12, after line 16, insert:

13 (d) STUDY ON ADMINISTRATIVE AND PERSONNEL

14 COSTS INCURRED BY THE DEPARTMENT OF THE TREAS15 URY.—

16 (1) IN GENERAL.—Not later than 1 year after

17 the date of enactment of this Act, the General Ac18 counting Office shall conduct a study on the extent of

19 any administrative and personnel costs incurred by

20 the Department of the Treasury to account for pay21 ments made in accordance with section 2414, 2517,

22 2672, or 2677 of title 28, United States Code, and

23 under section 1304 of title 31, United States Code, as

24 a result of—

25 (A) this Act; and
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1 (B) the Contracts Dispute Act of 1978 (41

2 U.S.C. 601 note; Public Law 95–563).

3 (2) REPORT.—Not later than 90 days after the

4 completion of the study under paragraph (1), the

5 General Accounting Office shall submit a report on

6 the study to the Speaker of the House of Representa7 tives, the President pro tempore of the Senate, the

8 Committee on Governmental Affairs of the Senate, the

9 Committee on Government Reform of the House of

10 Representatives, and the Attorney General.

Attest:

Secretary.
107TH CONGRESS

2D SESSION H. R. 169

AMENDMENTS