[107th Congress Public Law 174]
[From the U.S. Government Printing Office]
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NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT
OF 2002
[[Page 116 STAT. 566]]
Public Law 107-174
107th Congress
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. <<NOTE: May
15, 2002 - [H.R. 169]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Notification and
Federal Employee Antidiscrimina- tion and Retaliation Act of 2002.>>
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. <<NOTE: 5 USC 2301 note.>>
(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 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
Commission.
Sec. 303. Rules.
TITLE I--GENERAL PROVISIONS
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 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;
[[Page 116 STAT. 567]]
(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
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 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
judgments or settlements relating to discrimination 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 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
[[Page 116 STAT. 568]]
(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. 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 individual
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
[[Page 116 STAT. 569]]
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 protections
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 paragraphs (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. <<NOTE: Deadline.>>
(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 Governmental 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 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 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;
[[Page 116 STAT. 570]]
(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
violation of any of the laws cited under section
201(a) (1) or (2); or
(ii) committed another prohibited personnel
practice that was revealed in the investigation of
a complaint 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
paragraphs (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 <<NOTE: President.>> 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 conducted
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 <<NOTE: Deadline.>> Regarding
Implementation of Guidelines.--Not later than 30 days after the issuance
of guidelines 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
[[Page 116 STAT. 571]]
Commission, and the Attorney General a written statement specifying in
detail--
(1) whether such agency has adopted and will fully follow
such guidelines;
(2) if such agency has not adopted such guidelines; the
reasons for the failure to adopt such guidelines; and
(3) if such agency will not fully follow such guidelines,
the reasons for the decision not to fully follow such guidelines
and an explanation of the extent to which such agency will not
follow such guidelines.
SEC. 205. CLARIFICATION OF REMEDIES.
Consistent with Federal law, nothing in this title shall prevent any
Federal employee, former Federal employee, or applicant for Federal
employment from exercising any right otherwise available under the laws
of the United States.
SEC. 206. <<NOTE: Deadlines.>> STUDIES BY GENERAL ACCOUNTING OFFICE ON
EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT
OF CERTAIN DEPARTMENT OF JUSTICE COSTS.
(a) Study on Exhaustion of Administrative Remedies.--
(1) Study.--
(A) In general.--Not later than 180 days after the
date of enactment of this Act, the General Accounting
Office shall conduct a study relating to the effects of
eliminating the requirement that Federal employees
aggrieved by violations of any of the laws specified
under section 201(c) exhaust administrative remedies
before filing complaints with the Equal Employment
Opportunity Commission.
(B) Contents.--The study shall include a detailed
summary of matters investigated, information collected,
and conclusions formulated that lead to determinations
of how the elimination of such requirement will--
(i) expedite handling of allegations of such
violations within Federal agencies and will
streamline the complaint-filing process;
(ii) affect the workload of the Commission;
(iii) affect established alternative dispute
resolution procedures in such agencies; and
(iv) affect any other matters determined by
the General Accounting Office to be appropriate
for consideration.
(2) Report.--Not later than 90 days after completion of the
study required by paragraph (1), the General Accounting Office
shall submit to the Speaker of the House of Representatives, the
President pro tempore of the Senate, the Equal Employment
Opportunity Commission, and the Attorney General a report
containing the information required to be included in such
study.
(b) Study on Ascertainment of Certain Costs of the Department of
Justice in Defending Discrimination and Whistleblower Cases.--
(1) Study.--Not later than 180 days after the date of
enactment of this Act, the General Accounting Office shall
conduct a study of the methods that could be used for, and the
extent of any administrative burden that would be imposed on,
the Department of Justice to ascertain the personnel and
[[Page 116 STAT. 572]]
administrative costs incurred in defending in each case arising
from a proceeding identified under section 201(a) (1) and (2).
(2) Report.--Not later than 90 days after completion of the
study required by paragraph (1), the General Accounting Office
shall submit to the Speaker of the House of Representatives and
the President pro tempore of the Senate a report containing the
information required to be included in the study.
(c) Studies on Statutory Effects on Agency Operations.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act, the General Accounting Office shall
conduct--
(A) a study on the effects of section 201 on the
operations of Federal agencies; and
(B) a study on the effects of section 13 of the
Contract Disputes Act of 1978 (41 U.S.C. 612) on the
operations of Federal agencies.
(2) Contents.--Each study under paragraph (1) shall include,
with respect to the applicable statutes of the study--
(A) a summary of the number of cases in which a
payment was 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;
(B) a summary of the length of time Federal agencies
used to complete reimbursements of payments described
under subparagraph (A); and
(C) conclusions that assist in making determinations
on how the reimbursements of payments described under
subparagraph (A) will affect--
(i) the operations of Federal agencies;
(ii) funds appropriated on an annual basis;
(iii) employee relations and other human
capital matters;
(iv) settlements; and
(v) any other matter determined by the General
Accounting Office to be appropriate for
consideration.
(3) Reports.--Not later than 90 days after the completion of
each study under paragraph (1), the General Accounting Office
shall submit a report on each study, respectively, to the
Speaker of the House of Representatives, the President pro
tempore of the Senate, the Committee on Governmental Affairs of
the Senate, the Committee on Government Reform of the House of
Representatives, and the Attorney General.
(d) Study on Administrative and Personnel Costs Incurred by the
Department of the Treasury.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the General Accounting Office shall
conduct a study on the extent of any administrative and
personnel costs incurred by the Department of the Treasury to
account for payments 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, as a result of--
(A) this Act; and
(B) the Contracts Dispute Act of 1978 (41 U.S.C. 601
note; Public Law 95-563).
(2) Report.--Not later than 90 days after the completion of
the study under paragraph (1), the General Accounting Office
shall submit a report on the study to the Speaker of the
[[Page 116 STAT. 573]]
House of Representatives, the President pro tempore of the
Senate, the Committee on Governmental Affairs of the Senate, the
Committee on Government Reform of the House of Representatives,
and the Attorney General.
TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE
SEC. 301. <<NOTE: Internet. Public information.>> DATA TO BE POSTED BY
EMPLOYING FEDERAL AGENCIES.
(a) In General.--Each Federal agency shall post on its public Web
site, in the time, form, and manner prescribed under section 303 (in
conformance with the requirements of this section), summary statistical
data relating to equal employment opportunity complaints filed with such
agency by employees or former employees of, or applicants for employment
with, such agency.
(b) Content Requirements.--The data posted by a Federal agency under
this section shall include, for the then current fiscal year, the
following:
(1) The number of complaints filed with such agency in such
fiscal year.
(2) The number of individuals filing those complaints
(including as the agent of a class).
(3) The number of individuals who filed 2 or more of those
complaints.
(4) The number of complaints (described in paragraph (1)) in
which each of the various bases of alleged discrimination is
alleged.
(5) The number of complaints (described in paragraph (1)) in
which each of the various issues of alleged discrimination is
alleged.
(6) The average length of time, for each step of the
process, it is taking such agency to process complaints (taking
into account all complaints pending for any length of time in
such fiscal year, whether first filed in such fiscal year or
earlier). Average times under this paragraph shall be posted--
(A) for all such complaints,
(B) for all such complaints in which a hearing
before an administrative judge of the Equal Employment
Opportunity Commission is not requested, and
(C) for all such complaints in which a hearing
before an administrative judge of the Equal Employment
Opportunity Commission is requested.
(7) The total number of final agency actions rendered in
such fiscal year involving a finding of discrimination and, of
that number--
(A) the number and percentage that were rendered
without a hearing before an administrative judge of the
Equal Employment Opportunity Commission, and
(B) the number and percentage that were rendered
after a hearing before an administrative judge of the
Equal Employment Opportunity Commission.
(8) Of the total number of final agency actions rendered in
such fiscal year involving a finding of discrimination--
[[Page 116 STAT. 574]]
(A) the number and percentage involving a finding of
discrimination based on each of the respective bases of
alleged discrimination, and
(B) of the number specified under subparagraph (A)
for each of the respective bases of alleged
discrimination--
(i) the number and percentage that were
rendered without a hearing before an
administrative judge of the Equal Employment
Opportunity Commission, and
(ii) the number and percentage that were
rendered after a hearing before an administrative
judge of the Equal Employment Opportunity
Commission.
(9) Of the total number of final agency actions rendered in
such fiscal year involving a finding of discrimination--
(A) the number and percentage involving a finding of
discrimination in connection with each of the respective
issues of alleged discrimination, and
(B) of the number specified under subparagraph (A)
for each of the respective issues of alleged
discrimination--
(i) the number and percentage that were
rendered without a hearing before an
administrative judge of the Equal Employment
Opportunity Commission, and
(ii) the number and percentage that were
rendered after a hearing before an administrative
judge of the Equal Employment Opportunity
Commission.
(10)(A) Of the total number of complaints pending in such
fiscal year (as described in the parenthetical matter in
paragraph (6)), the number that were first filed before the
start of the then current fiscal year.
(B) With respect to those pending complaints that were first
filed before the start of the then current fiscal year--
(i) the number of individuals who filed those
complaints, and
(ii) the number of those complaints which are at the
various steps of the complaint process.
(C) Of the total number of complaints pending in such fiscal
year (as described in the parenthetical matter in paragraph
(6)), the total number of complaints with respect to which the
agency violated the requirements of section 1614.106(e)(2) of
title 29 of the Code of Federal Regulations (as in effect on
July 1, 2000, and amended from time to time) by failing to
conduct within 180 days of the filing of such complaints an
impartial and appropriate investigation of such complaints.
(c) Timing and Other Requirements.--
(1) Current year data.--Data posted under this section for
the then current fiscal year shall include both--
(A) interim year-to-date data, updated quarterly,
and
(B) final year-end data.
(2) Data for prior years.--The data posted by a Federal
agency under this section for a fiscal year (both interim and
final) shall include, for each item under subsection (b), such
agency's corresponding year-end data for each of the 5
immediately preceding fiscal years (or, if not available for all
5 fiscal years, for however many of those 5 fiscal years for
which data are available).
[[Page 116 STAT. 575]]
SEC. 302. <<NOTE: Internet. Public information.>> DATA TO BE POSTED BY
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
(a) In General.--The Equal Employment Opportunity Commission shall
post on its public Web site, in the time, form, and manner prescribed
under section 303 for purposes of this section, summary statistical data
relating to--
(1) hearings requested before an administrative judge of the
Commission on complaints described in section 301, and
(2) appeals filed with the Commission from final agency
actions on complaints described in section 301.
(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) of section 301(b), and shall be subject to
the same timing and other requirements as set forth in section 301(c).
(c) Coordination.--The data required under this section shall be in
addition to the data the Commission is required to post under section
301 as an employing Federal agency.
SEC. 303. RULES.
The Equal Employment Opportunity Commission shall issue any rules
necessary to carry out this title.
Approved May 15, 2002.
LEGISLATIVE HISTORY--H.R. 169:
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HOUSE REPORTS: No. 107-101, Pt. 1 (Comm. on the Judiciary).
SENATE REPORTS: No. 107-143 (Comm. on Governmental Affairs).
CONGRESSIONAL RECORD, Vol. 147 (2001):
Oct. 2, considered and passed House.
Apr. 23, considered and passed Senate, amended.
Apr. 30, House concurred in Senate amendments.
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