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 cer-
tain 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 agen-
cies 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;
H. R. 169—2
(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 Administra-
tion;
(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 judg-
ments or settlements relating to discrimination and whistle-
blower 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
H. R. 169—3
(6)(A) Federal agencies are expected to reimburse the Gen-
eral 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 appro-
priations 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 indi-
vidual 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
H. R. 169—4
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 protec-
tions 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 para-
graphs (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 Govern-
mental 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 Oppor-
tunity 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;
H. R. 169—5
(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 viola-
tion of any of the laws cited under section 201(a)
(1) or (2); or
(ii) committed another prohibited personnel prac-
tice that was revealed in the investigation of a com-
plaint 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 para-
graphs (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 con-
ducted 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 guide-
lines 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