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[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 169 Enrolled Bill (ENR)]

        H.R.169

                      One Hundred Seventh Congress

                                 of the

                        United States of America

                          AT THE SECOND SESSION

         Begun and held at the City of Washington on Wednesday,
          the twenty-third day of January, two thousand and two

                                 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.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (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;
        (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
        (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 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.

    (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;
        (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 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 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 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. 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 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 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. 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--
            (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).

SEC. 302. 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.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.
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