Federal Employee Antidiscrimination Act of 2017

To amend the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 to strengthen Federal antidiscrimination laws enforced by the Equal Employment Opportunity Commission and expand accountability within the Federal Government, and for other purposes. 1. Short title This Act may be cited as the Federal Employee Antidiscrimination Act of 2017 2. Sense of Congress Section 102 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 (1) in paragraph (4), to read as follows: (4) accountability in the enforcement of Federal employee rights is furthered when Federal agencies take appropriate disciplinary action against Federal employees who have been found to have committed discriminatory or retaliatory acts; ; and (2) in paragraph (5)(A)— (A) by striking nor is accountability but accountability is not (B) by inserting for what by law the agency is responsible under this Act 3. Notification of Violation Section 202 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 (d) Notification of final agency action (1) Not later than 30 days after a Federal agency takes final action or the Equal Employment Opportunity Commission issues an appellate decision involving a finding of discrimination or retaliation prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a), as applicable, the head of the agency subject to the finding shall provide notice for at least 1 year on the agency’s Internet Web site in a clear and prominent location linked directly from the agency’s Internet home page stating that a finding of discrimination or retaliation has been made. (2) The notification shall identify the date the finding was made, the date or dates on which the discriminatory or retaliatory act or acts occurred, and the law or laws violated by the discriminatory or retaliatory act or acts. The notification shall also advise Federal employees of the rights and protections available under the respective provisions of law covered by paragraph (1) or (2) of section 201(a). . 4. Reporting requirements (a) Electronic format requirement (1) In general Section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 (A) by inserting Homeland Security and Governmental Affairs (B) by inserting Oversight and Government Reform (C) by inserting (in an electronic format prescribed by the Office of Personnel Management) an annual report (2) Effective date The amendment made by paragraph (1)(C) shall take effect on the date that is 1 year after the date of enactment of this Act. (3) Transition period Notwithstanding the requirements of section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 (b) Reporting requirement for disciplinary action Section 203 of such Act is amended by adding at the end the following: (c) Disciplinary action report Not later than 60 days after the date on which a Federal agency takes final action or a Federal agency receives an appellate decision issued by the Equal Employment Opportunity Commission involving a finding of discrimination or retaliation in violation of a provision of law covered by paragraph (1) or (2) of section 201(a), as applicable, the employing Federal agency shall submit to the Commission a report stating whether disciplinary action has been initiated against a Federal employee as a result of the violation. . 5. Data to be posted by employing Federal agencies Section 301(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 (1) in paragraph (9)— (A) in subparagraph (A), by striking and (B) in subparagraph (B)(ii), by striking the period at the end and inserting , and (C) by adding at the end the following: (C) for each such finding counted under subparagraph (A), the agency shall specify— (i) the date of the finding; (ii) the affected agency; (iii) the law violated; and (iv) whether a decision has been made regarding necessary disciplinary action as a result of the finding. ; and (2) by adding at the end the following: (11) Data regarding each class action complaint filed against the agency alleging discrimination or retaliation, including— (A) information regarding the date on which each complaint was filed; (B) a general summary of the allegations alleged in the complaint; (C) an estimate of the total number of plaintiffs joined in the complaint if known; (D) the current status of the complaint, including whether the class has been certified; and (E) the case numbers for the civil actions in which discrimination or retaliation has been found. . 6. Data to be posted by the equal employment opportunity commission Section 302(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 (10) (11) 7. Notification and Federal Employee Antidiscrimination and Retaliation Act amendments (a) Notification requirements The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 207. Complaint tracking Not later than 1 year after the date of enactment of the Federal Employee Antidiscrimination Act of 2017 208. Notation in personnel record If a Federal agency takes an adverse action covered under section 7512 of title 5, United States Code, against a Federal employee for an act of discrimination or retaliation prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a), the agency shall, after all appeals relating to such action have been exhausted, include a notation of the adverse action and the reason for the action in the employee’s personnel record. . (b) Processing and Referral The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 IV Processing and referral 401. Processing and resolution of complaints Each Federal agency is responsible for the fair, impartial processing and resolution of complaints of employment discrimination and retaliation arising in the Federal administrative process and shall establish a model Equal Employment Opportunity Program that— (1) is not under the control, either structurally or practically, of a Human Capital or General Counsel office; (2) is devoid of internal conflicts of interest and ensures fairness and inclusiveness within the organization; and (3) ensures the efficient and fair resolution of complaints alleging discrimination or retaliation. 402. No limitation on Human Capital or General Counsel advice Nothing in this title shall prevent a Federal agency’s Human Capital or General Counsel office from providing advice or counsel to Federal agency personnel on the processing and resolution of a complaint, including providing legal representation to a Federal agency in any proceeding. 403. Head of Program reports to head of agency The head of each Federal agency’s Equal Employment Opportunity Program shall report directly to the head of the agency. 404. Referrals of findings of discrimination (a) EEOC findings of discrimination Not later than 30 days after the Equal Employment Opportunity Commission issues an appellate decision involving a finding of discrimination or retaliation within a Federal agency, the Commission shall refer the matter to the Office of Special Counsel. (b) Referrals to special counsel The Office of Special Counsel shall accept and review a referral from the Commission under subsection (a) for purposes of seeking disciplinary action under its authority against a Federal employee who commits an act of discrimination or retaliation. (c) Notification The Office of Special Counsel shall notify the Commission in a case in which the Office of Special Counsel initiates disciplinary action. (d) Special counsel approval A Federal agency may not take disciplinary action against a Federal employee for an alleged act of discrimination or retaliation referred by the Commission under this section except in accordance with the requirements of section 1214(f) of title 5, United States Code. . (c) Conforming amendments The table of contents in section 1(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( 5 U.S.C. 2301 (1) by inserting after the item relating to section 206 the following: Sec. 207. Complaint tracking. Sec. 208. Notation in personnel record. ; and (2) by adding at the end the following: Title IV—Processing and referral Sec. 401. Processing and resolution of complaints. Sec. 402. No limitation on Human Capital or General Counsel advice. Sec. 403. Head of Program reports to head of agency. Sec. 404. Referrals of findings of discrimination. . 8. Nondisclosure agreement limitation Section 2302(b) of title 5, United States Code, is amended— (1) in paragraph (13)— (A) by inserting or the Office of Special Counsel Inspector General (B) by striking implement (A) implement (C) by striking the period that follows the quoted material and inserting ; or (2) by adding after subparagraph (A), as added by paragraph (1)(B), and preceding the flush left matter that follows paragraph (13), the following: (B) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement prohibits or restricts an employee from disclosing to Congress, the Office of Special Counsel, or an Office of the Inspector General any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial, and specific danger to public health or safety, or any other whistleblower protection. . April 4, 2017 Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Summary: Federal Employee Antidiscrimination Act of 2017 (Sec. 2) This bill amends the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 to: (1) expand disclosure and enforcement requirements relating to findings of acts of discrimination and retaliation in the federal workplace, and (2) declare that accountability in the enforcement of federal employee rights is furthered when agencies take appropriate disciplinary action against employees who have been found to have committed discriminatory or retaliatory acts. (Sec. 3) With respect to disclosure of findings of discrimination or retaliation in an agency, the bill requires an agency to provide notice on its website for at least one year regarding any finding by the agency or the Equal Employment Opportunity Commission (EEOC) of discrimination or retaliation in the agency. (Sec. 4) With respect to agency reporting requirements, the bill requires agencies to: submit their annual reports to Congress, the EEOC, and the Department of Justice on discrimination and retaliation in an electronic format; report to the EEOC on whether disciplinary action has been initiated against an employee who has committed an act of discrimination or retaliation; and include in the data on equal employment opportunity complaints posted on their websites whether a decision has been made to pursue disciplinary action against an employee who has committed an act of discrimination or retaliation and additional data on each class action complaint filed against the agency alleging discrimination or retaliation. (Sec. 7) The bill also requires agencies to: (1) establish a system to track each complaint of discrimination adjudicated by the EEOC from inception to resolution, including whether a decision has been made on necessary disciplinary action as a result of a finding of discrimination, and (2) make a notation in an employee's personnel record of any adverse action taken against the employee for an act of discrimination or retaliation. The bill declares that each federal agency is responsible for the fair, impartial processing and resolution of complaints of employment discrimination and retaliation and requires each agency to establish a model Equal Employment Opportunity Program that is not under the control of a Human Capital or General Counsel Office, is devoid of internal conflicts of interest, and ensures fairness, inclusiveness, and the efficient resolution of complaints alleging discrimination or retaliation. Finally, the bill directs the EEOC to refer a finding of discrimination or retaliation within a federal agency to the Office of Special Counsel. The Special Counsel shall then pursue disciplinary action against any employee who commits an act of discrimination or retaliation. (Sec. 8) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action shall not with respect to such authority, implement or enforce any nondisclosure policy, form, or agreement if such policy, form, or agreement prohibits or restricts an employee from disclosing to Congress, the Office of Special Counsel, or an Office of the Inspector General any information that relates to any violation of any law, rule, regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection.