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;
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(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
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(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
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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;
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(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
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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
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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
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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—
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(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).
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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.