[Senate Report 116-176]
[From the U.S. Government Publishing Office]
Calendar No. 330
116th Congress } { Report
SENATE
1st Session } { 116-176
_______________________________________________________________________
FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2019
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
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
December 16, 2019.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
99-010 WASHINGTON : 2019
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
Gabrielle D'Adamo Singer, Staff Director
Joseph C. Folio III, Chief Counsel
Courtney Allen Rutland, Deputy Chief Counsel for Governmental Affairs
David M. Weinberg, Minority Staff Director
Zachary I. Schram, Minority Chief Counsel
Yelena L. Tsilker Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 330
116th Congress } { Report
SENATE
1st Session } { 116-176
======================================================================
FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2019
_______
December 16, 2019.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 135]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 135) to amend the
Notification and Federal Employee Anti-discrimination 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, having considered
the same, reports favorably thereon with an amendment (in the
nature of a substitute) and recommends that the bill (as
amended) do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and the Need for Legislation..........................2
III. Legislative History..............................................5
IV. Section-by-Section Analysis......................................5
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Act, as Reported.............8
I. Purpose and Summary
The purpose of H.R. 135, the Federal Employee
Antidiscrimination Act of 2019, is to amend Federal law to
strengthen Equal Employment Opportunity Protections for Federal
employees, strengthen prohibitions against discrimination and
retaliation against whistleblowers within the Federal workforce
and ensure Federal agencies and employees that violate the law
are held accountable.\1\
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\1\On July 12, 2016, the Committee approved H.R. 1557, Federal
Employee Antidiscrimination Act of 2015. That bill is substantially
similar to H.R. 135. Accordingly, this committee report is in large
part a reproduction of Chairman Johnson's committee report for H.R.
1557, S. Rep. No. 114-300.
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II. Background and the Need for Legislation
Federal Equal Employment Opportunity (EEO) programs, which
are required to identify and eliminate barriers to equal
opportunity, are vital to ensuring that Federal workplaces
provide the same guarantee of equal opportunity that is
required of other employers across the country. Federal
employees or applicants for employment in the Federal
Government who believe they have been discriminated against can
bring a complaint to their agency's EEO program, which
investigates these complaints. The Equal Employment Opportunity
Commission (EEOC) has released standards of a model EEO program
that Federal agencies should follow. However, some Federal
agencies' EEO programs have not met these standards.
Federal law prohibits discrimination against Federal
employees in their workplace, including against job applicants
and employees based on the ``person's race, color, religion,
sex (including pregnancy), national origin, age (40 or older),
disability or genetic information.''\2\
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\2\U.S. Equal Employment Opportunity Commission, About (Feb. 9,
2016), available at http://www.eeoc.gov/eeoc/.
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In addition to prohibiting discrimination, Federal law
prohibits retaliation against whistleblowers.\3\ Whistleblowers
remain a vital source of public accountability within the
Federal workforce. Federal employees who courageously step
forward to report instances of waste, fraud, abuse and
criminality within the Federal Government help ensure that the
Executive Branch is held accountable and assist the Congress
with its constitutional responsibility to conduct oversight.
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\3\5 U.S.C. Sec. 2302.
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Whistleblowers can identify problems that lead to reforms
that improve Federal agencies' performance and yield cost
savings for taxpayers. For example, the Office of Special
Counsel (OSC) reported that whistleblowers identifying problems
within the Department of Homeland Security resulted in $100
million in annual savings.\4\
---------------------------------------------------------------------------
\4\Nomination of Michael J. Missal to be Inspector General, U.S.
Department of Veterans Affairs, and the Honorable Carolyn N. Lerner to
be Special Counsel, Office of Special Counsel: Hearing Before the S.
Comm. on Homeland Sec. & Governmental Affairs 3, 114th Cong. (2016)
(statement of Carolyn Lerner, Special Counsel, Office of Special
Counsel), available at http://www.hsgac.senate.gov/hearings/nomination-
of-carolyn-lerner-to-be-special-counsel-of-the-office-of-special-
counsel-and-michael-missal-to-be-inspector-general-of-the-department-
of-veterans-affairs.
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Whistleblowers also may report instances of wrongdoing and
criminality that have life and death consequences. Our nation's
veterans have earned the right to the finest health care
possible due to their service on behalf of the country. But in
some cases, Department of Veterans Affairs' (VA) centers are
not providing the highest standard of care, and whistleblowers
have come forward to highlight abuses. For example, through an
investigation and several hearings in the 114th Congress,\5\
the Committee learned about allegations of significant
wrongdoing that occurred at the VA Medical Center in Tomah,
Wisconsin. Several employees of the facility presented concerns
to VA management, the Office of Inspector General, or their VA
union representatives about overmedication that was occurring
at the facility.\6\ The VA's alleged retaliation against these
whistleblowers also had serious consequences. For example, in
testimony before the Committee, Dr. Christopher Kirkpatrick's
brother Sean Kirkpatrick testified that Dr. Kirkpatrick was a
psychologist and whistleblower at the Tomah VA facility.\7\ Mr.
Kirkpatrick testified that he believed his brother was fired
after raising questions about the large number of narcotics
prescribed to patients there, and committed suicide later that
same day.\8\
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\5\See, e.g., Improving VA Accountability: Examining First-Hand
Accounts of Department of Veterans Affairs Whistleblowers: Hearing
Before the Comm. on Homeland Sec. & Governmental Affairs, 114th Cong.
(2015), available at http://www.hsgac.senate.gov/hearings/improving-va-
accountability-examining-first-hand-accounts-of-department-of-veterans-
affairs-whistleblowers [hereinafter Improving VA Accountability]; Tomah
VAMC: Examining Quality, Access, and a Culture of Overreliance on High-
Risk Medications: Joint Field Hearing Before the Comm. of Homeland Sec.
& Governmental Affairs and the H. Comm. on Veterans' Affairs, 114th
Cong. (2015), available at http://www.hsgac.senate.gov/hearings/joint-
field-hearing-tomah-vamc-examining-quality-access-and-a-culture-of-
overreliance-on-high-risk-medications [hereinafter Tomah VAMC].
\6\Tomah VAMC at 2-3 (statement of Noelle Johnson); id. at 2
(statement of Ryan Honl); id. at 1 (statement of Heather Simcakoski);
see also Improving VA Accountability at 2 (statement of Sean
Kirkpatrick).
\7\Improving VA Accountability (statement of Sean Kirkpatrick).
\8\Id.
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Unfortunately, the problem of retaliation against
whistleblowers is not unique to the VA. In 2015, the Committee
heard testimony from whistleblowers who served with the United
States Army, United States Immigration and Customs Enforcement,
the Social Security Administration, and United States Customs
and Border Protection.\9\ Each described the challenges and
retaliation they believed they experienced from their agencies
after blowing the whistle on agency wrongdoing.\10\
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\9\Blowing the Whistle on Retaliation: Accounts of Current and
Former Federal Agency Whistleblowers: Hearing Before the S. Comm. on
Homeland Sec. & Governmental Affairs, 114th Cong. (2015) (statement of
Chairman Ron Johnson), available at http://www.hsgac.senate.gov/
hearings/blowing-the-whistle-on-retaliation-accounts-of-current-and-
former-federal-agency-whistleblowers [hereinafter Blowing the Whistle
on Retaliation].
\10\Id.
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Congress passed the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) to
strengthen laws prohibiting discriminatory or retaliatory acts
against Federal employees, including by creating new reporting
requirements to inform employees of their rights.\11\ The No
FEAR Act also made Federal agencies directly financially
accountable for violations of antidiscrimination and
whistleblower protections.\12\
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\11\Pub. L. No. 107-174, 107th Cong., (2002).
\12\Id.
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However, the No FEAR Act of 2002 did little to hold
supervisors or other employees directly accountable for
violating retaliation and discrimination laws. The law does not
require discipline against employees judged to have committed
acts of discrimination or retaliation, even though employees
may not come forward without a belief that their disclosure
will be heard and make a difference. As explained by the Legal
Director of the Government Accountability Project, ``[e]very
academic or government study has concluded that the primary
motivating, or chilling factor for would-be whistleblowers is
whether they can make a difference by bearing witness.''\13\
Unfortunately, only 66 percent of Federal employees have
confidence that they can blow the whistle without facing
reprisal.\14\ OSC has raised concerns about the inconsistent
use of discipline at the VA, in particular. In testimony before
this Committee, former Special Counsel Lerner noted numerous
examples of the VA failing to discipline officials found
responsible for posing significant risks to public health and
safety or engaging in other misconduct.\15\ Special Counsel
Lerner added that this lack of discipline ``stand[s] in stark
contrast to disciplinary actions taken against VA
whistleblowers . . . for minor indiscretions or for activity
directly related to the employee's whistleblowing.''\16\
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\13\Blowing the Whistle on Retaliation (statement of Thomas M.
Devine, Legal Director, Government Accountability Project).
\14\Office of Personnel Mgmt., Federal Employee Viewpoint Survey
Results, Governmentwide Management Report 9 (2018) available at https:/
/www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-
management-report/governmentwide-report/2018/2018-governmentwide-
management-report.pdf.
\15\Improving VA Accountability at 5-6 (statement of Carolyn
Lerner, Special Counsel, Office of Special Counsel).
\16\Id. at 6.
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Former Special Counsel Lerner testified to the Committee
that the OSC was projected to receive 4,000 Government-wide
prohibited personnel practice complaints in 2015, which include
many whistleblower retaliation complaints.\17\ The EEOC, the
Federal agency responsible for enforcing Federal employment
discrimination laws, says 14,343 Federal employees and
applicants filed 15,013 complaints alleging employment
discrimination during fiscal year (FY) 2014.\18\ In the same
year, agencies paid $44.8 million in monetary awards to
complainants.\19\
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\17\Id. at 2, 4.
\18\United States Equal Employment Opportunity Commission, Office
of Federal Operations, Annual Report on the Federal Workforce Part I,
EEO Complaints Processing, Fiscal Year 2014 (Dec. 15, 2015), available
at http://www.eeoc.gov/federal/reports/fsp2014/upload/Final-FY-2014-
Annual-Report-Part-I.pdf.
\19\Id.
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Additional measures to prevent retaliation against
whistleblowers and discrimination against Federal employees are
needed to protect Federal employees who report wrongdoing or
illegality within the Federal Government or experience
discrimination in the workplace.
H.R. 135 would require Federal agencies to adopt best
practices to manage their EEO programs. It would also
strengthen transparency and accountability for discrimination
and retaliation at Federal agencies. First, the Act updates the
sense of the Congress of the No FEAR Act to stress the need for
agencies to take appropriate disciplinary action against
Federal employees who have been found to have committed
discriminatory or retaliatory acts.
The Act also aims to reduce discrimination and retaliation
by mandating new transparency and reporting requirements for
Federal agencies to disclose EEOC findings of discrimination,
including through public reporting on agency websites. H.R. 135
also creates other new rules for agencies, such as requiring a
tracking system for complaints alleging discriminatory acts and
requiring that agency EEO program offices not be controlled by
agency general counsel or human capital offices.
The Act also creates a new whistleblower protection. It
amends Federal law to prohibit the implementation or
enforcement of nondisclosure agreements that would limit an
employee's ability to disclose certain information to OSC, the
Office of Inspector General, or Congress.
Finally, the Committee-reported amendment to the Act
renames the legislation after the late Congressman Elijah E.
Cummings, who first introduced this legislation in 2015.
Representative Cummings passed away on October 17, 2019.
III. Legislative History
Representative Elijah E. Cummings of Maryland introduced
H.R. 135, the Federal Employee Antidiscrimination Act, on
January 3, 2019. The Act was referred to the House Committee on
Oversight and Reform. On January 15, 2019, the House of
Representatives passed H.R. 135 by a vote of 424 to 0.
H.R. 135 was referred to the Senate Committee on Homeland
Security and Governmental Affairs on January 16, 2019. The
Committee considered H.R. 135 at a business meeting on November
6, 2019.
During the business meeting, Chairman Ron Johnson offered a
substitute amendment that was adopted by unanimous consent. The
substitute amendment changed the short title of the Act to the
Elijah E. Cummings Federal Employee Antidiscrimination Act in
memoriam of Representative Cummings. The substitute amendment
also modified reporting and referral deadlines in the Act to
ensure all appeals processes are exhausted before an agency
publishes a report of a finding of discrimination or
retaliation and clarified that an agency can receive advice and
counsel from the Department of Justice in the resolution of an
EEO complaint.
H.R. 135, as amended, was approved by voice vote en bloc
with Senators Johnson, Portman, Paul, Lankford, Romney, Scott,
Enzi, Hawley, Peters, Carper, Hassan, Sinema, and Rosen
present.
IV. Section-by-Section Analysis of the Act, as Reported
Section 1. Short title
This section establishes the short title of the Act as the
``Elijah E. Cummings Federal Employee Antidiscrimination Act of
2019.''
Section 2. Sense of the Congress
This section amends the No FEAR Act of 2002 by updating the
sense of the Congress. Specifically, the section states that
``accountability in the enforcement of the rights of Federal
employees is furthered when Federal agencies agree to take
appropriate disciplinary action against Federal employees who
are found to have intentionally committed discriminatory
(including retaliatory) acts.'' The section further amends the
existing sense of the Congress to reiterate that Federal
agencies should not violate employees' due process rights while
enforcing new accountability measures.
Section 3. Notification of violation
This section amends Section 202 of the No FEAR Act to
require that agencies publicly report an agency or EEOC finding
of discrimination or retaliation on their website for at least
one year. The report will be published after all appeals
processes concerning the discriminatory or retaliatory act have
been exhausted. The notification shall include information
about the finding, including the law or laws violated by the
discriminatory or retaliatory act or acts. The notification
shall also advise employees of their rights.
Section 4. Reporting requirements
This section mandates that forms required by the No FEAR
Act be submitted in an electronic format. The section also
requires the agency to report to the EEOC on whether
disciplinary action has been proposed against a Federal
employee as a result of a finding of discrimination or
retaliation.
Section 5. Data to be posted by employing Federal agencies
This section amends the No FEAR Act to expand what data
must be reported on agency websites regarding findings of
discrimination or retaliation. Data must now include the date
of the finding, the affected agency, the law violated, and
whether a decision has been made regarding necessary
disciplinary actions as a result of the finding. The section
also requires reporting on data pertaining to class action
complaints filed against Federal agencies.
Section 6. Data to be posted by the Equal Employment Opportunity
Commission
This section amends the No FEAR Act to apply the reporting
requirements amended by Section 5 to the EEOC.
Section 7. Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 amendments
This section makes several changes to the NO FEAR Act.
First, it requires Federal agencies to establish a system for
tracking discrimination complaints and the outcomes of the
complaints. Second, it requires that a Federal agency make a
notation in an employee's personnel record if the employee has
been found to commit an act of discrimination or retaliation
after all appeals have been exhausted. Third, it requires that
each Federal agency is responsible for establishing a model EEO
program that is not under the control of the agency's Human
Capital or General Counsel office, is devoid of internal
conflicts of interest, and ensures the efficient and fair
resolution of complaints alleging discrimination or
retaliation. Agency Human Capital and General Counsel offices,
as well as the Department of Justice, may still provide advice
or counsel to Federal agency personnel in the resolution of a
complaint.
Finally, the No FEAR Act is amended to establish a process
for EEOC referrals to OSC. The EEOC may refer matters to OSC if
it determines that the Federal agency did not take appropriate
action. The EEOC must include information about the number of
these referrals in its annual report. The OSC must accept and
review referrals from the EEOC and notify the EEOC in a case
that it pursues disciplinary action. It clarifies that agencies
may not initiate disciplinary actions against an employee for
an alleged act of discrimination or retaliation while the
matter is referred to the OSC.
Section 8. Nondisclosure agreement limitation
This section prohibits agencies from implementing or
enforcing any nondisclosure policy, form, or agreement, if such
policy, form, or agreement prohibits or restricts an employee
from disclosing to Congress, the OSC, or an Office of 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
protections.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this Act and determined
that the Act will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the Act contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 18, 2019.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 135, the Elijah E.
Cummings Federal Employee Antidiscrimination Act of 2019.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
H.R. 135 would amend the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 to expand the
current process used to investigate and resolve federal
employees' claims of discrimination by other federal employees.
The act also would increase the amount of information that must
be reported and made available concerning such discrimination
cases.
Using information from the Office of Personnel Management
and the Equal Employment Opportunity Commission, CBO expects
that most of the provisions in the act would build on the
current policies and practices of the federal government.
Currently, the federal government, through laws, regulations,
and agency policies, prohibits discrimination in all phases of
employment. CBO expects that agencies would incur costs to
track and report discriminatory acts and to notify the public
of any violations of antidiscrimination laws. Based on the
costs of similar activities, CBO estimates that implementing
H.R. 135 would cost $1 million over the 2020-2024 period; such
spending would be subject to the availability of appropriated
funds.
Enacting H.R. 135 could affect direct spending by some
agencies that are allowed to use fees, receipts from the sale
of goods, and other collections to cover operating costs. CBO
estimates that any net changes in direct spending by those
agencies would be negligible because most of them can adjust
amounts collected to reflect changes in operating costs.
CBO has not reviewed H.R. 135 for intergovernmental or
private-sector mandates. Section 4 of the Unfunded Mandates
Reform Act excludes from the application of that act any
legislative provisions that would establish or enforce
statutory rights prohibiting discrimination. CBO has determined
that this legislation falls within that exclusion because it
would enforce protections for federal employees against
discrimination based on race, color, religion, sex, national
origin, age, or handicapped condition.
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs) and Andrew Laughlin (for
mandates). The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Act, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the Act, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
SECTION 2301. MERIT SYSTEM PRINCIPLES
* * * * * * *
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION
ACT OF 2002
SEC. 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
* * * * * * *
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
Sec. 201. Reimbursement Requirement.
* * * * * * *
Sec. 207. Complaint tracking.
Sec. 208. Notation in personnel record.
* * * * * * *
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. Referrals of findings of discrimination.
* * * * * * *
TITLE I--GENERAL PROVISIONS
SEC. 101. * * *
Sec. 102. Sense of Congress.--It is the sense of Congress
that--
(1) * * *
(2) * * *
(3) * * *
[(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;
(4) accountability in the enforcement of the rights
of Federal employees is furthered when Federal agencies
agree to take appropriate disciplinary action against
Federal employees who are found to have intentionally
committed discriminatory (including retaliatory) acts;
(5) (A) [nor is accountability] accountability is not
furthered if Federal agencies react to the increased
accountability under this Act for what, by law, the
agency is responsible 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
* * * * * * *
SEC. 202. NOTIFICATION REQUIREMENT.
(a) * * *
* * * * * * *
(d) Notification of Final Agency Action.--
(1) In general.--Not later than 90 days after the
date on which an event described in paragraph (2)
occurs with respect to a finding of discrimination
(including retaliation), the head of the Federal agency
subject to the finding shall provide notice--
(A) on the public internet website of the
agency, in a clear and prominent location
linked directly from the home page of that
website;
(B) stating that a finding of discrimination
(including retaliation) has been made; and
(C) which shall remain posted for not less
than 1 year.
(2) Events described.--An event described in this
paragraph is any of the following:
(A) All appeals of a final action by a
Federal agency involving a finding of
discrimination (including retaliation)
prohibited by a provision of law covered by
paragraph (1) or (2) of section 201(a) have
been exhausted.
(B) All appeals of a final decision by the
Equal Employment Opportunity Commission
involving a finding of discrimination
(including if the finding included a finding of
retaliation) prohibited by a provision of law
covered by paragraph (1) or (2) of section
201(a) have been exhausted.
(C) A court of jurisdiction issues a final
judgment involving a finding of discrimination
(including retaliation) prohibited by a
provision of law covered by paragraph (1) or
(2) of section 201(a).
(3) Contents.--A notification provided under
paragraph (1) with respect to a finding of
discrimination (including retaliation) shall--
(A) identify the date on which the finding
was made, the date on which each discriminatory
act occurred, and the law violated by each such
discriminatory act; and
(B) advise Federal employees of the rights
and protections available under the provisions
of law covered by paragraphs (1) and (2) of
section 201(a).
SEC. 203. REPORTING REQUIREMENT.
(a) 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 Homeland
Security and Governmental Affairs of the Senate, the Committee
[on Government Reform] on Oversight and Reform of the House of
Representatives, each committee of Congress with jurisdiction
relating to the agency, the Equal Employment Opportunity
Commission, and the Attorney General an annual report (in an
electronic format prescribed by the Director of the Office of
Personnel Management) which shall include, with respect to the
fiscal year--
* * * * * * *
(c) Disciplinary Action Report.--Not later than 120 days
after the date on which a Federal agency takes final action, or
a Federal agency receives a final decision issued by the Equal
Employment Opportunity Commission, involving a finding of
discrimination (including retaliation) in violation of a
provision of law covered by paragraph (1) or (2) of section
201(a), as applicable, the applicable Federal agency shall
submit to the Commission a report stating--
(1) whether disciplinary action has been proposed
against a Federal employee as a result of the
violation; and
(2) the reasons for any disciplinary action proposed
under paragraph (1).
* * * * * * *
SEC. 207. COMPLAINT TRACKING.
Not later than 1 year after the date of enactment of the
Elijah E. Cummings 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 the
filing of a complaint with the Federal agency to resolution of
the complaint, including whether a decision has been made
regarding 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 (including 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 that action have been exhausted, include a notation
of the adverse action and the reason for the action in the
personnel record of the employee.
* * * * * * *
TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE
SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.
(a) * * *
(b) * * *
(1) * * *
* * * * * * *
(9) * * *
(A) the number and percentage involving a
finding of discrimination in connection with
each of the respective issues of alleged
discrimination, [and]
(B) * * *
(i) * * *
(ii) the number and percentage that
were rendered after a hearing before an
administrative judge of the Equal
Employment Opportunity Commission[.],
and;
(C) with respect to each finding described in
subparagraph (A)--
(i) the date of the finding;
(ii) the affected Federal agency;
(iii) the law violated, and
(iv) whether a decision has been made
regarding disciplinary action as a
result of the finding.
* * * * * * *
(11) Data regarding each class action complaint filed
against the agency alleging discrimination (including
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 (including retaliation)
has been found.
* * * * * * *
SEC. 302. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION.
(a) * * *
(b) Specific Requirements.--The data posted under this
section shall, with respect to the hearings and appeals
described in subsection (a), include summary statistical data
corresponding to that described in paragraphs (1) through
[(10)] (11) of section 301(b), and shall be subject to the same
timing and other requirements as set forth in section 301(c).
* * * * * * *
TITLE IV--PROCESSING AND REFERRAL
SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.
Each Federal agency shall--
(1) be responsible for the fair and impartial
processing and resolution of complaints of employment
discrimination (including retaliation) prohibited by a
provision of law covered by paragraph (1) or (2) of
section 201(a); and
(2) establish a model Equal Employment Opportunity
Program that--
(A) is not under the control, either
structurally or practically, of the agency's
Office of Human Capital or Office of the
General Counsel (or the equivalent);
(B) is devoid of internal conflicts of
interest and ensures fairness and inclusiveness
within the agency; and
(C) ensures the efficient and fair resolution
of complaints alleging discrimination
(including retaliation).
SEC. 402. NO LIMITATION ON ADVICE OR COUNSEL.
Nothing in this title shall prevent a Federal agency or a
subcomponent of a Federal agency, or the Department of Justice,
from providing advice or counsel to employees of that agency
(or subcomponent, as applicable) in the resolution of a
complaint.
SEC. 403. HEAD OF PROGRAM SUPERVISED BY 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.--
(1) In general.--Not later than 30 days after the
date on which the Equal Employment Opportunity
Commission (referred to in this section as the
``Commission'') receives, or should have received, a
Federal agency report required under section 203(c),
the Commission may refer the matter to which the report
relates to the Office of Special Counsel if the
Commission determines that the Federal agency did not
take appropriate action with respect to the finding
that is the subject of the report.
(2) Notifications.--The Commission shall--
(A) notify the applicable Federal agency if
the Commission refers a matter to the Office of
Special Counsel under paragraph (1); and
(B) with respect to a fiscal year, include in
the Annual Report of the Federal Workforce of
the Commission covering that fiscal year--
(i) the number of referrals made
under paragraph (1) during that fiscal
year; and
(ii) a brief summary of each referral
described in clause (i).
(b) Referrals to Special Counsel.--The Office of Special
Counsel shall accept and review a referral from the Commission
under subsection (a)(1) for purposes of pursuing disciplinary
action under the authority of the Office against a Federal
employees who commits an act of discrimination (including
retaliation).
(c) Notification.--The Office of Special Counsel shall
notify the Commission and the applicable Federal agency in a
case in which--
(1) the Office of Special Counsel pursues
disciplinary action under subsection (b); and
(2) the Federal agency imposes some form of
disciplinary action against a Federal employee who
commits an act of discrimination (including
retaliation).
(d) Special Counsel Approval.--A Federal agency may not
take disciplinary action against a Federal employee for an
alleged act of discrimination (including retaliation) referred
by the Commission under this section, except in accordance with
the requirements of section 1214(f) of title 5, United States
Code.
* * * * * * *
SECTION 2302. PROHIBITED PERSONNEL PRACTICES
(a) * * *
(b) * * *
(1) * * *
* * * * * * *
(13) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or [agreement
does not] agreement--
(A) does not contain the following statement:
``These provisions are consistent with and do
not supersede, conflict with, or otherwise
alter the employee obligations, rights, or
liabilities created by existing statute or
Executive order relating to (1) classified
information, (2) communications to Congress,
(3) the reporting to an Inspector General or
the Office of Special Counsel of a 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 and safety, or (4) any other
whistleblower protection. The definitions,
requirements, obligations, rights, sanctions,
and liabilities created by controlling
Executive orders and statutory provisions are
incorporated into this agreement and are
controlling.''; or
(B) prohibits or restricts an employee or
applicant for employment from disclosing to
Congress, the Special Counsel, the Inspector
General of an agency, or any other agency
component responsible for internal
investigation or review 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; or
* * * * * * *