IIB

107TH CONGRESS

1ST SESSION H. R. 169

IN THE SENATE OF THE UNITED STATES

OCTOBER 3, 2001

Received; read twice and referred to the Committee on Governmental Affairs

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.
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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 2001’’.

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

8 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—GENERAL PROVISIONS

Sec. 101. Findings.

Sec. 102. Definitions.

Sec. 103. 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. Study by General Accounting Office regarding exhaustion of administrative remedies.

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.

9 TITLE I—GENERAL PROVISIONS

10 SEC. 101. FINDINGS.

11 The Congress finds that—

12 (1) Federal agencies cannot be run effectively if

13 they practice or tolerate discrimination,
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1 (2) the Committee on the Judiciary of the

2 House of Representatives has heard testimony from

3 individuals, including representatives of the National

4 Association for the Advancement of Colored People

5 and the American Federation of Government Em6 ployees that point to chronic problems of discrimina7 tion and retaliation against Federal employees,

8 (3) in August 2000, a jury found that the Envi9 ronmental Protection Agency had discriminated

10 against a senior social scientist, and awarded that

11 scientist $600,000,

12 (4) in October 2000, an Occupational Safety

13 and Health Administration investigation found that

14 the Environmental Protection Agency had retaliated

15 against a senior scientist for disagreeing with that

16 agency on a matter of science and for helping Con17 gress to carry out its oversight responsibilities,

18 (5) there have been several recent class action

19 suits based on discrimination brought against Fed20 eral agencies, including the Federal Bureau of Inves21 tigation, the Bureau of Alcohol, Tobacco, and Fire22 arms, the Drug Enforcement Administration, the

23 Immigration and Naturalization Service, and the

24 United States Marshals Service,
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1 (6) notifying Federal employees of their rights

2 under discrimination and whistleblower laws should

3 increase agency compliance with the law,

4 (7) requiring annual reports to Congress on the

5 number and severity of discrimination and whistle6 blower cases brought against each Federal agency

7 should enable Congress to improve its oversight over

8 agencies’ compliance with the law, and

9 (8) penalizing Federal agencies by requiring

10 them to pay for any discrimination or whistleblower

11 judgments, awards, and settlements should improve

12 agency accountability with respect to discrimination

13 and whistleblower laws.

14 SEC. 102. DEFINITIONS.

15 For purposes of this Act—

16 (1) the term ‘‘applicant for Federal employ17 ment’’ means an individual applying for employment

18 in or under a Federal agency,

19 (2) the term ‘‘basis of alleged discrimination’’

20 shall have the meaning given such term under sec21 tion 303,

22 (3) the term ‘‘Federal agency’’ means an Exec23 utive agency (as defined in section 105 of title 5,

24 United States Code), the United States Postal Serv25 ice, or the Postal Rate Commission,
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1 (4) the term ‘‘Federal employee’’ means an in2 dividual employed in or under a Federal agency,

3 (5) the term ‘‘former Federal employee’’ means

4 an individual formerly employed in or under a Fed5 eral agency, and

6 (6) the term ‘‘issue of alleged discrimination’’

7 shall have the meaning given such term under sec8 tion 303.

9 SEC. 103. EFFECTIVE DATE.

10 This Act and the amendments made by this Act shall

11 take effect on the 1st day of the 1st fiscal year beginning

12 more than 180 days after the date of the enactment of

13 this Act.

14 TITLE II—FEDERAL EMPLOYEE

15 DISCRIMINATION AND RETAL16 IATION

17 SEC. 201. REIMBURSEMENT REQUIREMENT.

18 (a) APPLICABILITY.—This section applies with re19 spect to any payment made in accordance with section

20 2414, 2517, 2672, or 2677 of title 28, United States

21 Code, and under section 1304 of title 31, United States

22 Code (relating to judgments, awards, and compromise set23 tlements) to any Federal employee, former Federal em24 ployee, or applicant for Federal employment, in connection
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1 with any proceeding brought by or on behalf of such em2 ployee, former employee, or applicant under—

3 (1) any provision of law cited in subsection (c),

4 or

5 (2) any other provision of law which prohibits

6 any form of discrimination, as identified under rules

7 issued under section 204.

8 (b) REQUIREMENT.—An amount equal to the amount

9 of each payment described in subsection (a) shall be reim10 bursed to the fund described in section 1304 of title 31,

11 United States Code, out of any appropriation, fund, or

12 other account (excluding any part of such appropriation,

13 of such fund, or of such account available for the enforce14 ment of any Federal law) available for operating expenses

15 of the Federal agency to which the discriminatory conduct

16 involved is attributable as determined under section 204.

17 (c) SCOPE.—The provisions of law cited in this sub18 section are the following:

19 (1) Section 2302(b) of title 5 of the United

20 States Code, as applied to discriminatory conduct

21 described in paragraphs (1) and (8), or described in

22 paragraph (9) of such section as applied to discrimi23 natory conduct described in paragraphs (1) and (8),

24 of such section.
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1 (2) The provisions of law specified in section

2 2302(d) of title 5 of the United States Code.

3 (3) The Whistleblower Protection Act of 1986

4 and the amendments made by such Act.

5 SEC. 202. NOTIFICATION REQUIREMENT.

6 (a) IN GENERAL.—Written notification of the rights

7 and protections available to Federal employees, former

8 Federal employees, and applicants for Federal employ9 ment (as the case may be) in connection with the respec10 tive provisions of law covered by paragraphs (1) and (2)

11 of section 201(a) shall be provided to such employees,

12 former employees, and applicants—

13 (1) in accordance with otherwise applicable pro14 visions of law, or

15 (2) if to the extent that no such notification

16 would otherwise be required, in such time, form, and

17 manner as shall under section 204 be required in

18 order to carry out the requirements of this section.

19 (b) POSTING ON THE INTERNET.—Any written noti20 fication under this section shall include, but not be limited

21 to, the posting of the information required under para22 graph (1) or (2) (as applicable) of subsection (a) on the

23 Internet site of the Federal agency involved.

24 (c) EMPLOYEE TRAINING.—Each Federal agency

25 shall provide to the employees of such agency training re-
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1 garding the rights and remedies applicable to such employ2 ees under the laws cited in section 201(c).

3 SEC. 203. REPORTING REQUIREMENT.

4 (a) ANNUAL REPORT.—Subject to subsection (b), not

5 later than 180 days after the end of each fiscal year, each

6 Federal agency shall submit to the Speaker of the House

7 of Representatives, the President pro tempore of the Sen8 ate, the Equal Employment Opportunity Commission, and

9 the Attorney General an annual report which shall include,

10 with respect to the fiscal year—

11 (1) the number of cases arising under each of

12 the respective provisions of law covered by para13 graphs (1) and (2) of section 201(a) in which dis14 crimination on the part of such agency was alleged,

15 (2) the status or disposition of cases described

16 in paragraph (1),

17 (3) the amount of money required to be reim18 bursed by such agency under section 201 in connec19 tion with each of such cases, separately identifying

20 the aggregate amount of such reimbursements at21 tributable to the payment of attorneys’ fees, if any,

22 (4) the number of employees disciplined for dis23 crimination, retaliation, harassment, or any other in24 fraction of any provision of law referred to in para25 graph (1),
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1 (5) the final year-end data posted under section

2 301(c)(1)(B) for such fiscal year (without regard to

3 section 301(c)(2)), and

4 (6) a detailed description of—

5 (A) the policy implemented by such agency

6 to discipline employees who are determined in

7 any judicial or administrative proceeding to

8 have discriminated against any individual in

9 violation of any of the laws cited in section

10 201(c), and

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

12 number of employees who are disciplined in ac13 cordance with such policy and the specific na14 ture of the disciplinary action taken.

15 (b) FIRST REPORT.—The 1st report submitted under

16 subsection (a) shall include for each item under subsection

17 (a) data for each of the 5 immediately preceding fiscal

18 years (or, if not available for all 5 fiscal years, for however

19 many of those 5 fiscal years for which data are available).

20 SEC. 204. RULES AND GUIDELINES.

21 (a) ISSUANCE OF RULES AND GUIDELINES.—The

22 President (or the designee of the President) shall issue—

23 (1) rules to carry out this title,

24 (2) rules to require that a comprehensive study

25 be conducted in the Executive Branch to determine
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1 the best practices for Federal agencies to take ap2 propriate disciplinary actions against Federal em3 ployees who are determined in any judicial or admin4 istrative proceeding to have discriminated against

5 any individual in violation of any of the laws cited

6 in section 201(c), and

7 (3) based on the results of such study, advisory

8 guidelines incorporating best practices that Federal

9 agencies may follow to take such actions against

10 such employees.

11 (b) AGENCY NOTIFICATION REGARDING IMPLEMEN12 TATION OF GUIDELINES.—Not later than 30 days after

13 the issuance of guidelines under subsection (a), each Fed14 eral agency shall submit to the Speaker of the House of

15 Representatives, the President pro tempore of the Senate,

16 the Equal Employment Opportunity Commission, and the

17 Attorney General a written statement specifying in

18 detail—

19 (1) whether such agency has adopted and will

20 fully follow such guidelines,

21 (2) if such agency has not adopted such guide22 lines, the reasons for the failure to adopt such guide23 lines, and

24 (3) if such agency will not fully follow such

25 guidelines, the reasons for the decision not to fully
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1 follow such guidelines and an explanation of the ex2 tent to which such agency will not follow such guide3 lines.

4 SEC. 205. CLARIFICATION OF REMEDIES.

5 Consistent with Federal law, nothing in this title shall

6 prevent any Federal employee, former Federal employee,

7 or applicant for Federal employment from exercising any

8 right otherwise available under the laws of the United

9 States.

10 SEC. 206. STUDY BY GENERAL ACCOUNTING OFFICE RE11 GARDING EXHAUSTION OF ADMINISTRATIVE

12 REMEDIES.

13 (a) STUDY.—Not later than 180 days after the date

14 of the enactment of this Act, the General Accounting Of15 fice shall conduct a study relating to the effects of elimi16 nating the requirement that Federal employees aggrieved

17 by violations of any of the laws specified in paragraphs

18 (7) and (8) of section 201(c) exhaust administrative rem19 edies before filing complaints with the Equal Employment

20 Opportunity Commission. Such study shall include a de21 tailed summary of matters investigated, of information

22 collected, and of conclusions formulated that lead to deter23 minations of how the elimination of such requirement

24 will—
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1 (1) expedite handling of allegations of such vio2 lations within Federal agencies and will streamline

3 the complaint-filing process,

4 (2) affect the workload of the Commission,

5 (3) affect established alternative dispute resolu6 tion procedures in such agencies, and

7 (4) affect any other matters determined by the

8 General Accounting Office to be appropriate for con9 sideration.

10 (b) REPORT.—Not later than 90 days after comple11 tion of the study required by subsection (a), the General

12 Accounting Office shall submit to the Speaker of the

13 House of Representatives, the President pro tempore of

14 the Senate, the Equal Employment Opportunity Commis15 sion, and the Attorney General a report containing the in16 formation required to be included in such study.

17 TITLE III—EQUAL EMPLOYMENT

18 OPPORTUNITY COMPLAINT

19 DATA DISCLOSURE

20 SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL

21 AGENCIES.

22 (a) IN GENERAL.—Each Federal agency shall post

23 on its public Web site, in the time, form, and manner pre24 scribed under section 303 (in conformance with the re25 quirements of this section), summary statistical data relat-
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1 ing to equal employment opportunity complaints filed with

2 such agency by employees or former employees of, or ap3 plicants for employment with, such agency.

4 (b) CONTENT REQUIREMENTS.—The data posted by

5 a Federal agency under this section shall include, for the

6 then current fiscal year, the following:

7 (1) The number of complaints filed with such

8 agency in such fiscal year.

9 (2) The number of individuals filing those com10 plaints (including as the agent of a class).

11 (3) The number of individuals who filed 2 or

12 more of those complaints.

13 (4) The number of complaints (described in

14 paragraph (1)) in which each of the various bases of

15 alleged discrimination is alleged.

16 (5) The number of complaints (described in

17 paragraph (1)) in which each of the various issues

18 of alleged discrimination is alleged.

19 (6) The average length of time, for each step of

20 the process, it is taking such agency to process com21 plaints (taking into account all complaints pending

22 for any length of time in such fiscal year, whether

23 first filed in such fiscal year or earlier). Average

24 times under this paragraph shall be posted—

25 (A) for all such complaints,
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1 (B) for all such complaints in which a

2 hearing before an administrative judge of the

3 Equal Employment Opportunity Commission is

4 not requested, and

5 (C) for all such complaints in which a

6 hearing before an administrative judge of the

7 Equal Employment Opportunity Commission is

8 requested.

9 (7) The total number of final agency actions

10 rendered in such fiscal year involving a finding of

11 discrimination and, of that number—

12 (A) the number and percentage that were

13 rendered without a hearing before an adminis14 trative judge of the Equal Employment Oppor15 tunity Commission, and

16 (B) the number and percentage that were

17 rendered after a hearing before an administra18 tive judge of the Equal Employment Oppor19 tunity Commission.

20 (8) Of the total number of final agency actions

21 rendered in such fiscal year involving a finding of

22 discrimination—

23 (A) the number and percentage involving a

24 finding of discrimination based on each of the

25 respective bases of alleged discrimination, and
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1 (B) of the number specified under sub2 paragraph (A) for each of the respective bases

3 of alleged discrimination—

4 (i) the number and percentage that

5 were rendered without a hearing before an

6 administrative judge of the Equal Employ7 ment Opportunity Commission, and

8 (ii) the number and percentage that

9 were rendered after a hearing before an

10 administrative judge of the Equal Employ11 ment Opportunity Commission.

12 (9) Of the total number of final agency actions

13 rendered in such fiscal year involving a finding of

14 discrimination—

15 (A) the number and percentage involving a

16 finding of discrimination in connection with

17 each of the respective issues of alleged discrimi18 nation, and

19 (B) of the number specified under sub20 paragraph (A) for each of the respective issues

21 of alleged discrimination—

22 (i) the number and percentage that

23 were rendered without a hearing before an

24 administrative judge of the Equal Employ25 ment Opportunity Commission, and
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1 (ii) the number and percentage that

2 were rendered after a hearing before an

3 administrative judge of the Equal Employ4 ment Opportunity Commission.

5 (10)(A) Of the total number of complaints

6 pending in such fiscal year (as described in the par7 enthetical matter in paragraph (6)), the number that

8 were first filed before the start of the then current

9 fiscal year.

10 (B) With respect to those pending complaints

11 that were first filed before the start of the then cur12 rent fiscal year—

13 (i) the number of individuals who filed

14 those complaints, and

15 (ii) the number of those complaints which

16 are at the various steps of the complaint proc17 ess.

18 (C) Of the total number of complaints pending

19 in such fiscal year (as described in the parenthetical

20 matter in paragraph (6)), the total number of com21 plaints with respect to which the agency violated the

22 requirements of section 1614.106(e)(2) of title 29 of

23 the Code of Federal Regulations (as in effect on

24 July 1, 2000, and amended from time to time) by

25 failing to conduct within 180 days of the filing of
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1 such complaints an impartial and appropriate inves2 tigation of such complaints.

3 (c) TIMING AND OTHER REQUIREMENTS.—

4 (1) CURRENT YEAR DATA.—Data posted under

5 this section for the then current fiscal year shall in6 clude both—

7 (A) interim year-to-date data, updated

8 quarterly, and

9 (B) final year-end data.

10 (2) DATA FOR PRIOR YEARS.—The data posted

11 by a Federal agency under this section for a fiscal

12 year (both interim and final) shall include, for each

13 item under subsection (b), such agency’s cor14 responding year-end data for each of the 5 imme15 diately preceding fiscal years (or, if not available for

16 all 5 fiscal years, for however many of those 5 fiscal

17 years for which data are available).

18 SEC. 302. DATA TO BE POSTED BY THE EQUAL EMPLOY19 MENT OPPORTUNITY COMMISSION.

20 (a) IN GENERAL.—The Equal Employment Oppor21 tunity Commission shall post on its public Web site, in

22 the time, form, and manner prescribed under section 303

23 for purposes of this section, summary statistical data re24 lating to—
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1 (1) hearings requested before an administrative

2 judge of the Commission on complaints described in

3 section 301, and

4 (2) appeals filed with the Commission from

5 final agency actions on complaints described in sec6 tion 301.

7 (b) SPECIFIC REQUIREMENTS.—The data posted

8 under this section shall, with respect to the hearings and

9 appeals described in subsection (a), include summary sta10 tistical data corresponding to that described in paragraphs

11 (1) through (10) of section 301(b), and shall be subject

12 to the same timing and other requirements as set forth

13 in section 301(c).

14 (c) COORDINATION.—The data required under this

15 section shall be in addition to the data the Commission

16 is required to post under section 301 as an employing Fed17 eral agency.

18 SEC. 303. RULES.

19 The Equal Employment Opportunity Commission

20 shall issue any rules necessary to carry out this title.

Passed the House of Representatives October 2,

2001.

Attest: JEFF TRANDAHL,

Clerk.