II
Calendar No. 346
107TH CONGRESS
2D SESSION
H. R. 169
[Report No. 107–143]
IN THE SENATE OF THE UNITED STATES
OCTOBER 3, 2001
Received; read twice and referred to the Committee on Governmental Affairs
APRIL 15, 2002
Reported by Mr. LIEBERMAN, with amendments
[Omit the part struck through and insert the part printed in italic]
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 Representa-
tives 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 2001 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. Definitions.
Sec. 103. Effective date.
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. Study by General Accounting Office regarding exhaustion of adminis-
trative 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 Commis-
sion.
Sec. 303. Rules.
TITLE I—GENERAL PROVISIONS
SEC. 101. FINDINGS.
The Congress finds that—
(1) Federal agencies cannot be run effectively if
they practice or tolerate discrimination,
(2) the Committee on the Judiciary of the
House of Representatives has heard testimony from
individuals, including representatives of the National
Association for the Advancement of Colored People
and the American Federation of Government Em-
ployees that point to chronic problems of discrimina-
tion and retaliation against Federal employees,
(3) in August 2000, a jury found that the Envi-
ronmental
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 Con-
gress to carry out its oversight responsibilities,
(5) there have been several recent class action
suits based on discrimination brought against Fed-
eral agencies, including the Federal Bureau of Inves-
tigation, the Bureau of Alcohol, Tobacco, and Fire-
arms, the Drug Enforcement Administration, the
Immigration and Naturalization Service, and the
United States Marshals Service,
(6) notifying Federal employees of their rights
under discrimination and whistleblower laws should
increase agency compliance with the law,
(7) requiring annual reports to Congress on the
number and severity of discrimination and whistle-
blower cases brought against each Federal agency
should enable Congress to improve its oversight over
agencies’ compliance with the law, and
(8) penalizing Federal agencies by requiring
them to pay for any discrimination or whistleblower
judgments, awards, and settlements should improve
agency accountability with respect to discrimination
and whistleblower laws.
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 individ-
uals, including representatives of the National Asso-
ciation 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 Envi-
ronmental 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 Con-
gress 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 Investiga-
tion, the Bureau of Alcohol, Tobacco, and Firearms,
the Drug Enforcement Administration, the Immigra-
tion and Naturalization Service, the United States
Marshals Service, the Department of Agriculture, the
United States Information Agency, and the Social Se-
curity 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 whistle-
blower 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 discrimina-
tion 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 com-
promised;
(3) Federal agencies should not use a reduction
in force or furloughs as means of funding a reim-
bursement under this Act;
(4)(A) accountability in the enforcement of em-
ployee 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 discrimi-
nation; and
(B) Federal agencies should ensure that man-
agers 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. 102. 103. DEFINITIONS.
For purposes of this Act—
(1) the term ‘‘applicant for Federal employ-
ment’’ 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 sec-
tion 303, ;
(3) the term ‘‘Federal agency’’ means an Exec-
utive agency (as defined in section 105 of title 5,
United States Code), the United States Postal Serv-
ice, or the Postal Rate Commission, ;
(4) the term ‘‘Federal employee’’ means an in-
dividual employed in or under a Federal agency, ;
(5) the term ‘‘former Federal employee’’ means
an individual formerly employed in or under a Fed-
eral agency, ; and
(6) the term ‘‘issue of alleged discrimination’’
shall have the meaning given such term under sec-
tion 303.
SEC. 103. 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 RETAL-
IATION
SEC. 201. REIMBURSEMENT REQUIREMENT.
(a) APPLICABILITY.—This section applies with re-
spect 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 set-
tlements) to any Federal employee, former Federal em-
ployee, or applicant for Federal employment, in connection
with any proceeding brought by or on behalf of such em-
ployee, 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 reim-
bursed 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 enforce-
ment 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 sub-
section are the following:
(1) Section 2302(b) of title 5 of the, 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 discrimi-
natory conduct described in paragraphs (1) and (8),
of such section.
(2) The provisions of law specified in section
2302(d) of title 5 of the, United States Code.
(3) The Whistleblower Protection Act of 1986
and the amendments made by such Act.
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 employ-
ment (as the case may be) in connection with the respec-
tive provisions of law covered by paragraphs (1) and (2)
resentatives, 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 para-
graphs (1) and (2) of section 201(a) in which dis-
crimination 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 reim-
bursed by such agency under section 201 in connec-
tion with each of such cases, separately identifying
the aggregate amount of such reimbursements at-
tributable to the payment of attorneys’ fees, if any, ;
(4) the number of employees disciplined for dis-
crimination, retaliation, harassment, or any other in-
fraction of any provision of law referred to in para-
graph (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)), and ;
(6) a detailed description of—
(A) the policy implemented by such agency
to discipline employees who are determined in