Title: Elijah E. Cummings Federal Employee Antidiscrimination Act of 2019
Policy area: Government Operations and Politics

Summary:

Federal Employee Antidiscrimination Act of 2019
This bill requires each federal agency to establish a model Equal Employment Opportunity Program that is independent of the agency's Human Capital or General Counsel office, and it establishes requirements related to complaints of discrimination and retaliation in the workplace.
An agency must publish a notice of any final agency action or Equal Employment Opportunity Commission (EEOC) appellate decision involving a finding of prohibited discrimination or retaliation, and it must report certain data with respect to specified equal opportunity complaints. Each agency must establish a system to track complaints of discrimination and include a notation of any adverse action taken against an employee for discrimination or retaliation in the employee's personnel record.
The EEOC must refer to the Office of Special Counsel a matter about which it issues an appellate decision involving a finding of discrimination or retaliation within a federal agency, and the Office of Special Counsel shall accept and review such referral for purposes of seeking disciplinary action.
An employee who has authority to take, recommend, or approve any personnel action shall not implement or enforce a nondisclosure policy that prohibits or restricts an employee from disclosing information relating to (1) a violation of any law, rule, or regulation; (2) mismanagement, gross waste of funds, or abuse of authority; (3) a substantial and specific danger to public health or safety; or (4) any other whistle-blower protection.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 135 Introduced in House (IH)]

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116th CONGRESS
  1st Session
                                H. R. 135

 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.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 3, 2019

Mr. Cummings (for himself, Mr. Meadows, Ms. Norton, Mr. Sensenbrenner, 
and Ms. Jackson Lee) introduced the following bill; which was referred 
                to the Committee on Oversight and Reform

_______________________________________________________________________

                                 A BILL


 
 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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Employee Antidiscrimination 
Act of 2019''.

SEC. 2. SENSE OF CONGRESS.

    Section 102 of the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is 
amended--
            (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'' and 
                inserting ``but accountability is not''; and
                    (B) by inserting ``for what by law the agency is 
                responsible'' after ``under this Act''.

SEC. 3. NOTIFICATION OF VIOLATION.

    Section 202 of the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is 
amended by adding at the end the following:
    ``(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 
        website 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).''.

SEC. 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 note) is amended--
                    (A) by inserting ``Homeland Security and'' before 
                ``Governmental Affairs'';
                    (B) by inserting ``Oversight and'' before 
                ``Government Reform''; and
                    (C) by inserting ``(in an electronic format 
                prescribed by the Office of Personnel Management)'' 
                after ``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 
        note), the report required under such section may be submitted 
        in an electronic format, as prescribed by the Office of 
        Personnel Management, during the period beginning on the date 
        of enactment of this Act and ending on the effective date in 
        paragraph (2).
    (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.''.

SEC. 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 note) is 
amended--
            (1) in paragraph (9)--
                    (A) in subparagraph (A), by striking ``and'' at the 
                end;
                    (B) in subparagraph (B)(ii), by striking the period 
                at the end and inserting ``, and''; 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.''.

SEC. 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 note) is 
amended by striking ``(10)'' and inserting ``(11)''.

SEC. 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 
note) is amended by adding after section 206 the following:

``SEC. 207. COMPLAINT TRACKING.

    ``Not later than 1 year after the date of enactment of the Federal 
Employee Antidiscrimination Act of 2019, each Federal agency shall 
establish a system to track each complaint of discrimination arising 
under section 2302(b)(1) of title 5, United States Code, and 
adjudicated through the Equal Employment Opportunity process from 
inception to resolution of the complaint, including whether a decision 
has been made regarding necessary disciplinary action as the result of 
a finding of discrimination.

``SEC. 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 note) is 
amended by adding at the end the following:

                  ``TITLE IV--PROCESSING AND REFERRAL

``SEC. 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.

``SEC. 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.

``SEC. 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.

``SEC. 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 note) is amended--
            (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.''.

SEC. 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'' after ``Inspector General'';
                    (B) by striking ``implement'' and inserting ``(A) 
                implement''; and
                    (C) by striking the period that follows the quoted 
                material and inserting ``; or''; and
            (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.''.
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