The federal government lacks a clear picture of the volume of discrimination and whistleblowing reprisal cases involving federal employees. The lack of a complete accounting of cases is in part a by- product of the complexity of the redress system for federal employees and the different ways in which case data are reported. The NoFEAR Act would require agencies to report the number of discrimination and whistleblower reprisal cases. Executive branch civil servants are afforded opportunities for redress of complaints of discrimination or retaliation for whistleblowing at three levels: first, within their employing agencies; next, at one of the administrative bodies with sometimes overlapping jurisdictions that investigate or adjudicate their complaints; and, finally, in the federal courts. Where discrimination is alleged, the Equal Employment Opportunity Commission (EEOC) hears complaints employees file with their agencies and reviews agencies’ decisions on these complaints. In a case in which an employee alleges that discrimination was the motive for serious personnel actions, such as dismissal or suspension for more than 14 days, the employee can request a hearing before the Merit Systems Protection Board (MSPB). MSPB’s decisions on such cases can then be reviewed by EEOC. For federal employees who believe that they have been subject to whistleblower reprisal, the Office of Special Counsel (OSC) will investigate their complaints and seek corrective action when a complaint is valid. When agencies fail to take corrective action, OSC or the employee can take the case to MSPB for resolution. Alternatively, an employee can file a whistleblower reprisal complaint directly with MSPB, if the personnel action taken against the person is itself appealable to MSPB. In addition, under certain environmental laws and the Energy Reorganization Act, employees can ask the Department of Labor (DOL) and the Nuclear Regulatory Commission to investigate their complaints. Employees who belong to collective bargaining units represented by unions can also file grievances over discrimination and reprisal allegations under the terms of collective bargaining agreements. In those situations, the employee must choose to seek relief either under the statutory procedure discussed above or under the negotiated grievance procedure, but not both. If an employee files a grievance alleging discrimination under the negotiated grievance procedure, the Federal Labor Relations Authority (FLRA) can review any resulting arbitrator’s decision. A grievant may appeal the final decision of the agency, the arbitrator, or FLRA to EEOC. A complainant dissatisfied with the outcome of his or her whistleblower reprisal case can file an appeal to have the case reviewed by a federal appeals court. An employee with a discrimination complaint who is dissatisfied with a decision by MSPB or EEOC, however, can file a lawsuit in a federal district court and seek a de novo trial. With reporting requirements and procedures varying among the administrative agencies and the courts, data on the number of discrimination and whistleblower reprisal cases are not readily available to form a clear and reliable picture of overall case activity. However, available data do provide some insights about caseloads and trends. These data and our prior work show that most discrimination and whistleblower reprisal cases involving federal employees are handled under EEOC, MSPB, and OSC processes, with complaints filed under EEOC’s process by far accounting for the largest volume of cases. In fiscal year 2000, federal employees filed 24,524 discrimination complaints against their agencies under EEOC’s process. In fiscal year 2000, MSPB received 991 appeals of personnel actions that alleged discrimination. MSPB also received 414 appeals alleging whistleblower reprisal in fiscal year 2000, while OSC received 773 complaints of whistleblower reprisal. There are two caveats I need to offer about these statistics. The first is that because of jurisdictional overlap among the three agencies, the statistics cannot be added together to give a total number of discrimination and whistleblower reprisal complaints. The second caveat is that in our past work, we found some problems with the reliability and accuracy of data reported by EEOC. Notwithstanding these caveats, the available data also show that the last decade saw an overall increase in the number of cases, particularly discrimination complaints under EEOC’s jurisdiction. The number of cases under EEOC’s jurisdiction, which stood at 17,696 in fiscal year 1991, showed a fairly steady upward trend, peaking at 28,947 in fiscal year 1997. Although the number of new cases each year has declined since fiscal year 1997, the number of cases in fiscal year 2000—24,524—is almost 40 percent greater than in fiscal year 1991, despite a smaller federal workforce. Caseload data can be a starting point for agency managers to understand the nature and scope of issues in the workplace involving discrimination, reprisal, and other conflicts and problems, and can help in developing strategies for dealing with these issues. However, caseload data can only be a starting point because they obviously do not capture any discrimination or reprisal that is not reported. As I discussed above, most discrimination complaints are handled within the process under EEOC’s jurisdiction. However, we have found in our past work that EEOC does not collect data in a way needed by decisionmakers and program managers to discern trends in workplace issues represented by discrimination complaints, understand the issues underlying these complaints, and plan corrective actions. Although EEOC has initiatives under way to deal with data shortcomings, relevant information is still lacking on such matters as (1) the statutory basis (e.g., race, sex, or disability discrimination) under which employees filed complaints and (2) the kinds of issues, such as nonselection for promotion or harassment, that were cited in the complaints. The NoFEAR Act would also require agencies to report the status or disposition of discrimination and whistleblower reprisal cases. The available data show that most allegations of discrimination and reprisal for whistleblowing are dismissed, withdrawn by the complainant, or closed without a finding of discrimination. However, many other cases are settled. Of the discrimination cases within EEOC’s jurisdiction, 5,794 (21.3 percent) of the 27,176 cases were closed through a settlement. At MSPB, 279 (28.5 percent) of the 980 appeals that alleged discrimination were settled. With regard to the 440 whistleblower cases at MSPB, 93 (21 percent) were settled. While settlements are made when evidence may point to discrimination or reprisal, at other times an agency may make a business decision and settle for a variety of reasons, including that pursuing a case may be too costly, even if the agency believes it would have ultimately prevailed. Finally, in some cases, discrimination or reprisal is found. Of the 27,176 cases within the discrimination complaint process under EEOC’s jurisdiction that were closed in fiscal year 2000, 325 (about 1 percent) contained a finding of discrimination. At MSPB, of the 980 cases alleging discrimination, discrimination was found in 4 (four-tenths of a percent). In 440 cases alleging whistleblower reprisal it reviewed, MSPB found that a prohibited personnel practice occurred in 2 (five-tenths of a percent) of the cases. At OSC, favorable actions were obtained in 47 of 671 (7 percent) whistleblower reprisal matters closed in fiscal year 2000. It is important to note that agencies have responded to the rise in the number of complaints and the costs associated with them by adopting alternative means of dispute resolution (ADR). Using ADR processes, such as mediation, agencies intervene in the early stages of conflicts in an attempt to resolve or settle them before positions harden, workplace relationships deteriorate, and resolution becomes more difficult and costly. A premise behind a requirement EEOC put in place in 1999 that agencies make ADR available was that the complaint system was burdened with many cases that reflected basic workplace communications problems and not necessarily discrimination. Some agencies, most notably the Postal Service, have reported reductions in discrimination complaint caseloads through the use of ADR. In fact the Postal Service, from fiscal year 1997 through fiscal year 2000, saw a 26 percent decline in the number of discrimination complaints that the agency largely attributes to its mediation program. Because ADR prevents some disputes from rising to formal complaints, a reduction in the number of formal complaints should not necessarily be looked at as a reduction in workplace conflict, but it can indicate that an agency is more effectively dealing with workplace conflict. Meaningful data along the lines I discussed earlier are useful in helping to measure an agency’s success in adhering to merit system principles, treating its people in a fair and equitable way, and achieving a diverse and inclusive workforce. We encourage such assessments of agencies’ workplaces and human capital systems to help them align their people policies to support organizational performance goals. In addition, data foster transparency, which in turn provides an incentive to improve performance and enhance the image of the agency in the eyes of both its employees and the public. Another possible means of promoting accountability might be to have organizations bear more fully the costs of payments to complainants and their lawyers made in resolving cases of discrimination and reprisal for whistleblowing. Currently, federal agencies do not always bear the costs of settlements or judgments in discrimination or reprisal complaints. Agencies will pay these costs when a complaint is resolved by administrative procedures, such as the discrimination complaint process. However, when a lawsuit is filed, any subsequent monetary relief is generally paid by the Judgment Fund. (One exception is the Postal Service, which is responsible for settlement and judgment costs.) The Judgment Fund provides a permanent indefinite appropriation to pay settlements and judgments against the federal government. Congress created the Judgment Fund to avoid the need for a specific congressional appropriation for settlement and judgment costs and to allow for prompter payments. The NoFEAR Act would require that agencies reimburse the Judgment Fund for payments made for discrimination and whistleblower reprisal cases.