[House Report 107-101]
[From the U.S. Government Publishing Office]
107th Congress Rept. 107-101
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION
ACT OF 2001
_______
June 14, 2001.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 169]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 169) to require that Federal agencies be accountable
for violations of antidiscrimination and whistleblower
protection laws, and for other purposes, having considered the
same, reports favorably thereon with amendments and recommends
that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 6
Background and Need for the Legislation.......................... 7
Hearings......................................................... 9
Committee Consideration.......................................... 9
Vote of the Committee............................................ 10
Committee Oversight Findings..................................... 10
Performance Goals and Objectives................................. 10
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Constitutional Authority Statement............................... 12
Section-by-Section Analysis...................................... 12
Markup Transcript................................................ 20
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
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''.
(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 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
administrative remedies.
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.
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
Employees that point to chronic problems of discrimination and
retaliation against Federal employees,
(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, 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 whistleblower 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. 102. 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
or a military department (both as defined by 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. 103. 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 for the
enforcement of the laws cited in subsection (c) or laws relating to the
environment, to civil rights, to employment rights, to labor relations,
or to consumer protection) 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 322(a) of the Clean Air Act (42 U.S.C.
7622(a)).
(2) Section 110(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 9610(a)).
(3) Section 507(a) of the Federal Water Pollution Control
Act (33 U.S.C. 1367(a)).
(4) Section 1450(i)(1) of the Safe Drinking Water Act (42
U.S.C. 300j-9(i)(1)).
(5) Section 7001(a) of the Solid Waste Disposal Act (42
U.S.C. 6971(a)).
(6) Section 23(a) of the Toxic Substances Control Act (15
U.S.C. 2622(a)).
(7) 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 discriminatory conduct described in paragraphs (1)
and (8), of such section.
(8) The provisions of law specified in section 2302(d) of
title 5 of the 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 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.
(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 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,
(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)), and
(6) a detailed description of--
(A) the policy implemented by such agency to
discipline employees who are determined in any judicial
or administrative proceeding to have discriminated
against any individual in violation of any of the laws
cited in section 201(c), 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.
(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 not available for all 5
fiscal years, for however many of those 5 fiscal years for which data
are available).
SEC. 204. RULES AND GUIDELINES.
(a) Issuance 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 for Federal agencies to take appropriate disciplinary
actions against Federal employees who are determined in any
judicial or administrative proceeding to have discriminated
against any individual in violation of any of the laws cited in
section 201(c), 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 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 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. STUDY BY GENERAL ACCOUNTING OFFICE REGARDING EXHAUSTION OF
ADMINISTRATIVE REMEDIES.
(a) Study.--Not later than 180 days after the date of the 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 in
paragraphs (7) and (8) of section 201(c) exhaust administrative
remedies before filing complaints with the Equal Employment Opportunity
Commission. Such study shall include a detailed summary of matters
investigated, of information collected, and of conclusions formulated
that lead to determinations of how the elimination of such requirement
will--
(1) expedite handling of allegations of such violations
within Federal agencies and will streamline the complaint-
filing process,
(2) affect the workload of the Commission,
(3) affect established alternative dispute resolution
procedures in such agencies, and
(4) affect any other matters determined by the General
Accounting Office to be appropriate for consideration.
(b) Report.--Not later than 90 days after completion of the study
required by subsection (a), 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.
TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE
SEC. 301. 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--
(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).
SEC. 302. 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.
Amend the title so as to read:
A bill 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.
Purpose and Summary
H.R. 169, the ``Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2001,'' (No FEAR Act)
requires that Federal agencies be accountable for violations of
discrimination and whistleblower protection laws. H.R. 169
provides Federal employees throughout the Federal Government
with additional on-the-job protection from illegal
discrimination, retaliation, and other mistreatment by
deterring and punishing government misconduct toward them.
Background and Need for the Legislation
H.R. 169, the No FEAR Act, is in response to a year-long
congressional investigation under the direction of Chairman
Sensenbrenner as the Chairman of the Committee on Science. In
1999, the Science Committee began to receive complaints that a
particular Federal agency illegally discriminated and/or
retaliated against a number of its employees. The Committee on
Science held a hearing in March 2000, and a hearing in October
2000, on the issue of discrimination at the agency. The
evidence developed during the course of the investigation and
hearings substantiated some of the allegations and suggested
that the agency's apparent culture of intolerance stemmed from
a lack of accountability, an absence of awareness of the depth
of the problem, and a lack of knowledge of the whistleblower
and discrimination laws protecting employees. In fact, the
Department of Labor found the agency had retaliated against one
employee for helping the Science Committee with an oversight
hearing on the issue.
When the agency was questioned on its behavior, the agency
responded that it had a great diversity record. When questioned
about notifying employees of their rights under the various
whistleblower provisions, the agency responded that it was only
required to notify the employees under one of the laws, not the
others. When asked how the agency pays for judgments and
settlements for discriminating or retaliating, the agency
responded such payments were made out of the general treasury--
not by the Federal agencies. Following the hearings and the
investigation, Federal employees in other agencies began
contacting the Committee on Science with allegations of similar
problems.
Immediately after the October 2000 hearing, Chairman
Sensenbrenner and Representatives Sheila Jackson Lee and Connie
Morella introduced the No FEAR Act to rectify the three
problems highlighted in the investigation. The bill was
reintroduced on the first day of the 107th Congress.
On May 9, 2001, the Committee on the Judiciary held a
legislative hearing on H.R. 169, the NO FEAR Act. At the
hearing, Dr. Marsha Coleman-Adebayo, a social scientist, who
won a jury decision in August 2000 against the Environmental
Protection Agency for discrimination, testified that
``retaliation is an ever-present aspect of one's life once you
file a complaint of discrimination or when you win a jury
verdict.'' Dr. Coleman-Adebayo concluded that ``with the
passage of the N[o] FEAR bill the government will no longer be
able to abdicate its responsibility to seriously deal with the
problems of discrimination in the [F]ederal sector.''
Kweisi Mfume, President and Chief Executive Officer of the
National Advancement of Colored People, testified that
``[F]ederal employees today are often subjected to racial and
gender discrimination with little or no recourse. . . .
Discrimination, and retaliation against people who complain
about it and their supporters, is rampant in [F]ederal
departments and agencies across the nation.'' Mr. Mfume
concluded that:
[b]y requiring that [F]ederal agencies be held
accountable for violations of anti-discrimination and
whistleblower protection laws, H.R. 169 renews efforts
to address a problem that has been allowed to fester
far too long. Furthermore, by requiring that [F]ederal
agencies notify their employees of their rights under
discrimination and whistleblower statutes, H.R. 169
would require the [F]ederal government to send an
important message to all its employees that we are
serious about ensuring that peoples' rights are
protected. The portion of H.R. 169 that requires that
[F]ederal agencies report to Congress each year on the
number of discrimination complaints lodged against it,
as well as the disposition of such cases would also let
employees know that their rights are being monitored,
and that Congress is watching out for them. Finally,
the language in H.R. 169 requiring that [F]ederal
agencies pay out of their own budgets any
discrimination or whistleblower judgments, awards or
settlements against the agency, would clearly help make
agency administrators as well as Department Secretaries
more aware of what is happening and more interested in
taking steps to prevent these discriminatory practices.
The President of the American Federation of Government
Employees, Bobby L. Harnage, Sr., testified that ``the practice
of discrimination is invidious and pernicious. The toleration
of discrimination in the [F]ederal workplace is equally
invidious and pernicious and yet more harmful. Continued
complacency paves the way for continued evil and has a great
cost to our citizens, to our government and to the fabric of
our country.'' Mr. Harnage concluded that ``[t]his bill would
require that [F]ederal agencies be held accountable for
violations of employment discrimination and whistleblower
protection laws.''
All the witnesses testified that this bill would make
Federal agencies accountable for violations of
antidiscrimination and whistleblower protection laws. The need
for this bill has garnered wide and diverse support. The
National Taxpayers Union (NTU) sent testimony to the May 9,
2001 hearing which provided that NTU and ``its 300,000 members
strongly support the passage of H.R. 169. . . .'' The
President, Dr. John E. Berthoud, stated that:
[t]he No FEAR Act will hold individual government
agencies financially responsible for judgments they
lose by requiring financial settlements be taken from a
particular agency's budget, rather than using a slush
fund of taxpayer's money. By attacking the purse
strings of these offending government agencies, the No
FEAR Act can create a more fiscally responsible
[F]ederal government. Agencies will now have to act
more responsibly or else risk serious financial
consequences. The No FEAR Act will not only make
agencies more financially accountable, but it will
create incentives to improve relations with workers.
This is good news for the workers as they shouldn't
have to tolerate discrimination or face retribution for
whistle-blowing. This is also good news for taxpayers.
An unhappy [F]ederal workforce makes for less efficient
and more expensive government. And [F]ederal employees
should never feel intimidated to step forward and
expose waste, fraud or abuse where they see it
occurring.
The National Whistleblower Center also provided written
testimony to the Committee regarding the need for the bill to
protect whistleblowers. The Executive Director, Kris Kolesnik,
testified that ``[d]espite the major contributions
whistleblowers make on behalf of the public, management
invariably retaliates.'' He went on to state that the National
Whistleblower Center supports the legislation because it would
require employees to be fully informed of their rights and
require reporting that is needed because there ``are very few
statistics on discrimination and whistleblower cases [and]
[t]his data is important because, for Congress, it can be a
warning system as to whether protections are working
properly.'' He also identified accountability as ``the one true
deterrent against discrimination and retaliation. Without it,
managers feel it is open season on employees. Whistleblowers
often need to bring not just one case, but two or three.''
In a series of GAO reports prior to the hearing, GAO found
that the number of Federal employee discrimination complaints
grew during the 1990's, overwhelming both the Equal Employment
Opportunity Commission (EEOC) and the Federal agencies. \1\ In
1999, EEOC hearing requests increased by about 120 percent over
the number of requests in 1991. \2\ GAO also reported that
there ``has been an increase in the number of complaints
alleging reprisal, which, for the most part, involve claims of
retaliation by employees who have previously participated in
the complaint process.'' \3\ At the May 9, 2001 hearing, GAO
testified that there is a need for accountability, reporting,
and notification in regard to discrimination and retaliation
against Federal employees. H.R. 169 addresses these needs.
---------------------------------------------------------------------------
\1\ The United States General Accounting Office, Equal Employment
Opportunity: Discrimination Complaint Caseloads and Underlying Causes
Require EEOC's Sustained Attention, GGD-00-104 p. 1.
\2\ The United States General Accounting Office, Equal Employment
Opportunity: Discrimination Complaint Caseloads and Underlying Causes
Require EEOC's Sustained Attention, GGD-00-104 p. 3.
\3\ The United States General Accounting Office, Equal Employment
Opportunity: Data Shortcomings Hinder Assessment of Conflicts in the
Federal Workplace, GGD-99-75 p. 6.
---------------------------------------------------------------------------
Hearings
The Committee on the Judiciary held one hearing on H.R.
169, the ``Notification and Federal Employee Antidiscriminaiton
and Retaliation Act of 2001,'' on May 9, 2001. Testimony was
received from four witnesses, representing three organizations
and one private citizen. The witnesses were: Kweisi Mfume,
President & CEO of the National Association for the Advancement
of Colored People; J. Christopher Mihm, Director of Strategic
Issues for the General Accounting Office; Bobby L. Harnage,
Sr., National President of the American Federation of
Government Employees, AFL-CIO; and Marsha Coleman-Adebayo,
Ph.D, private citizen.
Committee Consideration
On May 23, 2001, the Committee met in open session and
ordered favorably reported the bill H.R. 169, as amended, by a
voice vote, a quorum being present.
Vote of the Committee
No recorded votes were taken on the bill H.R. 169 during
Committee consideration. However, an amendment in the nature of
a substitute offered by Chairman Sensenbrenner, on behalf of
himself, and Ranking Member John Conyers and Representative
Sheila Jackson Lee passed by voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
The bill is intended to require Federal agencies to prevent
and reduce discrimination and retaliation by notifying its
employees of their rights and responsibilities with regard to
antidiscrimination and whistleblower laws; by providing a
better assessment of the problem through the reporting of
adequate, consistent and reliable data; by making Federal
agencies and Federal employees accountable for their actions.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 169, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 8, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 169, the
Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Member
H.R. 169--Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2001.
H.R. 169 would require Federal agencies to train employees
and notify them of their rights and responsibilities in an
attempt to reduce incidents of discrimination and retaliation
in the Federal Government. Subject to the availability of
appropriated funds, CBO estimates that implementing H.R. 169
would cost up to $5 million each year. Enacting the bill could
slightly increase offsetting receipts (a form of direct
spending), so pay-as-you-go procedures would apply. This
legislation contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
Under current law, court-ordered monetary settlements in
favor of employees who sue Federal agencies in discrimination
or reprisal complaints are paid out of the judgment fund of the
Treasury. H.R. 169 would require agencies to reimburse the
Treasury for any such payments. Payments by most agencies to
the Treasury would be intragovernmental transfers and would
have no net effect on the Federal budget. However, agencies
that are not funded through annual appropriations, such as the
Bonneville Power Administration and the Tennessee Valley
Authority, would reimburse the Treasury by increasing
collections from the private sector. This could result in a
small net decrease in direct spending, so pay-as-you-go
procedures would apply; but CBO estimates that any such
decreases in direct spending would be less than $500,000 a
year.
The bill also would require agencies to notify and train
employees about their rights and protections under
discrimination law and to prepare annual statistical summaries
of the discrimination actions and equal employment opportunity
(EEO) complaints they face. H.R. 169 would direct the
Administration to conduct a study to determine the best ways to
discipline employees who engage in discriminatory actions. The
bill also would require the Equal Employment Opportunity
Commission (EEOC) to post on its Internet web site certain
statistics regarding EEO complaints. Finally, the legislation
would direct the General Accounting Office (GAO) to prepare a
report on the effects of eliminating the current requirement
that Federal employees exhaust administrative remedies before
filing complaints with the EEOC.
CBO estimates that it would cost the EEOC up to $500,000 in
each fiscal year to collect and post on its Internet web site
the statistics relating to EEO complaints. Based on information
from GAO, CBO estimates that it would cost that agency about
$300,000 over the 2002-2003 period to prepare the report
required by the bill. We estimate that it would cost about
$150,000 in fiscal year 2003 for the Administration, probably
led by the Office of Personnel Management (OPM), to complete
the study mandated by H.R. 169.
CBO expects that most agencies would meet the bill's
requirements to provide notification and training to employees
through their Internet web sites and would not incur
significant costs to do so. We expect that the cost to prepare
annual reports and statistical summaries for discrimination and
EEO cases would be minimal because much of this information is
already maintained, according to OPM and GAO. CBO estimates
that the total costs for the 100 or so Federal agencies to
comply with the bill's requirements would be no more than about
$5 million annually.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. The estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, of the Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title; Table of Contents
Section 1 of the bill states the short title of the bill as
the ``Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2001.'' This section also includes a table
of contents.
TITLE I. GENERAL PROVISIONS
Section 101. Findings
Section 101 provides the following congressional findings:
(1) LFederal agencies cannot be run effectively if they
practice or tolerate discrimination;
(2) Lthe 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
Employees, that point to chronic problems of discrimination and
retaliation against Federal employees;
(3) Lin August 2000, a jury found that the Environmental
Protection Agency had discriminated against a senior social
scientist, and awarded that scientist $600,000;
(4) Lin 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) Lthere have been several recent class action suits based on
discrimination brought against Federal agencies, including the
Federal Bureau of Investigation; Alcohol, Tobacco, and
Firearms; the Drug Enforcement Administration; the Immigration
and Naturalization Service; and the U.S. Marshals Service;
(6) Lnotifying Federal employees of their rights under
discrimination and whistleblower statutes should increase
agency compliance with the law;
(7) Lrequiring 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 agencies' compliance with the law; and
(8) Lpenalizing Federal agencies by requiring them to pay for
any discrimination or whistleblower judgments, awards, or
settlements should improve agency accountability with respect
to whistleblower and discrimination laws.
Section 102. Definitions.
Section 102 defines ``Federal agency,'' ``Federal
employee,'' ``former Federal employee,'' and ``applicant for
Federal employment.'' The section also directs the Equal
Employment Opportunity Commission to define the terms ``basis
of alleged discrimination'' and ``issue of alleged
discrimination.''
Section 103. Effective date.
Section 103 provides that this act and the amendments made
by this act shall go into effect on the 1st day of the 1st
fiscal year beginning 180 days after the date of enactment of
the act.
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
Section 201. Reimbursement Requirement
Section 201 would change current law that allows a Federal
agency to be held financially harmless when it loses court
judgments, awards or compromise settlements for retaliating or
discriminating. Under current law, Federal employment
discrimination complaints are handled at two levels: the
administrative process and the courts.\4\ If the complaint is
resolved in the administrative process and the corrective
action includes monetary relief, the money is paid from the
offending agency's funds.\5\ When a complaint is resolved in
the courts, that same agency does not have to pay for the
monetary relief to the complainant.\6\ The money is paid from
the Judgment Fund,\7\ which is a general treasury account that
provides a permanent indefinite appropriation to pay certain
settlements and judgments. \8\
---------------------------------------------------------------------------
\4\ The United States General Accounting Office, Discrimination
Compalints: Monetary Wards in the Federal EEO Cases, GGD-95-23FS p. 2.
\5\ Id.
\6\ Id.
\7\ Id.
\8\ The United States General Accounting Office, Discrimination
Compalints: Monetary Wards in the Federal EEO Cases, GGD-95-23FS p. 1.
---------------------------------------------------------------------------
The Committee finds that allowing Federal agencies to use
the general treasury as a slush fund to pay court judgments and
settlements for discriminating and retaliating, has created:
(1) a lack of accountability among some of the Federal
agencies; and (2) a perverse incentive for agencies to prolong
the cases until they reach court. The Committee believes the
solution, in part, is to hold the agencies fiscally responsible
in both the administrative and court processes. This will help
promote agency accountability and remove the incentive to
prolong the cases. The Committee understands that there are two
ways to remove the incentive to prolong and delay these cases.
Congress could change the current system, which requires
agencies to pay for settlements in the administrative process,
to allow agencies to go to the general treasury for
administrative decisions as well as court decisions. However,
this alternative fails to promote accountability by the
offending agencies to prevent discrimination or retaliation in
the first place. The Committee's view is that requiring the
agencies themselves to pay for discrimination and retaliation
judgments and settlements in both the administrative and court
processes is necessary to encourage the agencies to work to
improve their dispute resolution procedures and promote
policies that encourage a fair and equitable workplace.
The Committee understands the concern that those agencies
that have shown a lack of interest to prevent discrimination or
retaliation may retaliate for court judgments by targeting the
claimant employee or employees with reductions in compensation
or benefits or workforce to pay for such judgments. The
Committee would remind Federal agencies that ``[s]alaries and
wages, [with the exception of the Postal Service and the
Tennessee Valley Authority], are paid under statutory systems,
such as the General Schedule, Foreign Service, Department of
Veterans Affairs Health Administration, Senior Executive
Service, and the Federal Wage System (blue collar). Agency
heads do not have the authority to reduce salary rates or to
refuse to compensate employees with pay raises which affect the
entire system under which the employees are paid. Nor do the
agency heads have the authority to reduce other statutory
benefits which are not direct compensation, such as health and
retirement benefits.'' \9\
---------------------------------------------------------------------------
\9\ Congressional Research Service, Memorandum on the Source of
Reimbursement Funds under Proposed H.R. 169, (May 2001).
---------------------------------------------------------------------------
It is also the intent of the Committee that the mission of
an agency, and the jobs of its other employees, who are
blameless in the incident, not be compromised. For this reason,
the Committee does not intend for this legislation to permit an
agency to use a Reduction in Force (RIF) or furloughs, as a
means for funding a payment due under this legislation. The
Committee does not believe that accountability in the
enforcement of employee rights is furthered by taking away the
jobs of other employees, or by taking away the benefits to
which those employees are already entitled by statute or
contract. The Committee does not intend, by this legislation,
to authorize it. Such actions are also plainly unnecessary. A
Federal agency has many ways other than RIFs or furloughs to
make such payments. First, the Federal agencies may seek
appropriations to reimburse the general treasury. Second, the
amounts paid by the general treasury for the Federal agencies
do not appear to be exorbitant amounts. In fact, the amounts
paid out of the general treasury for fiscal year 2000 was $42.7
million compared to the $1.8 trillion in Federal spending for
the same year. Additionally, agency heads have other cost-
saving management tools available to help offset any potential
judgment; tools that do not implicate RIFs or reductions in
salaries or benefits. Finally, H.R. 169 does not require the
agency to immediately reimburse the general treasury. The
Committee does expect an agency to reimburse the general
treasury within a reasonable time, but understands that a
Federal agency, particularly a smaller agency, may need to
spread out the reimbursement over a number of years if the
amount is large compared to an agency's annual appropriation.
Congress will be able to determine if an agency is reimbursing
the general treasury within a reasonable time through the
reporting requirements under the No FEAR Act.
The Committee believes the proposed amendment to prohibit
agencies from using their budgets allocated for salaries and
expenses could have proved over broad. While it is the
Committee's intent to protect the salaries, benefits and jobs
of agency employees, the salaries and expenses account is
generally the primary account that funds most agencies, there
is no uniform definition of the account.\10\ Moreover, although
salaries and expenses accounts are often associated with
personnel compensation and benefits, such accounts include
monies for other purposes.\11\ Without a standard definition
Federal agencies may fund all their activities under the
salaries and expenses accounts and avoid reimbursing the
general treasury for discrimination and whistleblower
judgments. Accordingly, the Committee finds that the best
alternative to ensure the Federal agencies do not retaliate is
through the reporting requirements of this act and
congressional oversight.
---------------------------------------------------------------------------
\10\ Congressional Research Service, Memorandum on the Breakout of
Compensation and Benefit Costs for Selected Federal Law Enforcement
Agencies, (May 2001) 2.
\11\ Id.
---------------------------------------------------------------------------
Section 201(b) excludes any part of such appropriation of
such fund, or of such account available for the enforcement of
the laws cited in subsection (c) or the enforcement of laws
relating to the environment, civil rights, employment, labor
relations and consumer protection. The appropriation or account
must designate the funding purpose as enforcement. It is the
Committee's view that a bill that is designed to protect civil
rights and whistleblower rights would be undercut if funds used
to enforce civil rights and whistleblower laws would be
affected. It is also the Committee's view that funds used to
enforce environmental and consumer protection laws should not
be affected. As a result, under the act, an agency cannot use
any funds designated for the enforcement of the civil rights,
whistleblower, employer, labor relations and consumer
protection laws to pay for judgments that arise under this act.
Section 202. Notification Requirement
Section 202(a) requires that Federal agencies notify their
employees in writing about any applicable discrimination and
whistleblower protection laws. It is not the Committee's
intention that agencies provide written notification to former
employees, web notification should suffice in that area.
Section 202(b) requires that such notifications include
postings on the Internet. Section 202(c) requires that each
Federal agency shall provide their respective employees
training regarding the rights and remedies applicable to such
employees under the laws cited in section 201(c).
It is the view of the Committee that existing requirements
must be reinforced and additional requirements included to
ensure that Federal employees are aware of their rights against
discrimination and reprisal. The Committee is concerned that
employees may not come forward without sufficient understanding
of their rights. The Committee believes that workforce
relations should improve if managers are more aware of their
responsibilities and employees of their rights. With regard to
training, it is the Committee's view that on-line training
would be an efficient and effective mechanism for the agencies
to use. The on-line training could provide the agencies with
the ability to monitor who is and is not participating in the
training and could provide a more affordable method.
Section 203. Reporting Requirement
Section 203(a) requires that each Federal agency send an
annual report to the Speaker of the House of Representatives
and the President pro tempore of the Senate (this language
allows each committee of jurisdiction to receive a copy), the
Equal Employment Opportunity Commission, and the Attorney
General listing:
(1) Lthe number of cases in which an agency was alleged to have
violated any of the discrimination or whistleblower statutes;
(2) Lthe disposition of each of these cases;
(3) Lthe total of all monetary awards charged against the
agency from these cases;
(4) Lthe number of employees disciplined for discrimination,
retaliation or harassment;
(5) Lthe final-year end data of title III; and
(6) La detailed description of the disciplinary policy of the
reporting agency and the number of employees who are
disciplined in accordance with such policy and the specific
nature of the disciplinary action taken.
It is the view of the Committee that this new reporting is
required in addition to existing reporting requirements. The
Committee believes that the lack of consistent reliable data
has made it difficult to understand the extent to which Federal
agencies are discriminating and retaliating against
whistleblowers. Agencies should view this reporting as an
opportunity to understand whether a problem exists within its
organization or to demonstrate that a problem does not exist.
In testimony at the May 9, 2001, hearing, General
Accounting Office concluded that ``[t]o help ensure economical,
efficient, and effective delivery of services for the benefit
of the American people, allegations of discrimination and
reprisal for whistleblowing in the [F]ederal workplace must be
dealt with in a fair, equitable, and timely manner. Doing so
requires, first, reliable and complete reporting of data as a
starting point to understand the nature and scope of issues in
the workplace involving discrimination, reprisal, and other
conflicts and problems, and to help develop strategies for
dealing with the issues.''
Section 203(b) requires that the first annual report
include data for each of the 5 immediately preceding fiscal
years or, if data are not available for all fiscal years, for
however many of those fiscal years for which data are
available. This is a one-time requirement to provide a baseline
of the situation at each reporting agency.
Section 204. Rules
Section 204 requires that any rules necessary to carry out
this act shall be prescribed by the President or his designee.
The section includes a requirement that the administration
conduct a study to determine a standard code of conduct and
establish government-wide guidelines for Federal agencies. In
addition, the section requires each Federal agency to notify
Congress as to whether it has adopted or will adopt the
guidelines, and if not, why.
Section 205. Clarification of Remedies
Section 205 clarifies that making a claim under this bill
does not affect remedies or rights under current law.
Section 206. Study by General Accounting Office Regarding Exhaustion of
Administrative Remedies
Section 206(a) requires the General Accounting Office to
conduct a study to determine the effects of eliminating the
requirement that Federal employees exhaust administrative
remedies within the Federal agency before filing complaints
with the Equal Employment Opportunity Commission (EEOC). The
exhaustion of administrative remedies under this section refers
only to the administrative remedies before filing with the
EEOC. Federal agencies must decide whether to dismiss or accept
complaints employees file with them and investigate accepted
complaints.\12\ After this investigation, a complainant may
then go to the EEOC.\13\ Agencies must decide whether to accept
a complaint, investigate it, and report the investigation
results within 180 days from the complaint's filing.\14\ The
average time to process a complaint at agencies, however, was
384 days in fiscal year 1998.\15\ A case that goes through the
entire complaint process including the EEOC hearing and appeal
could be expected to take 1,186 days or about 3 years and 2
months.\16\ The Committee believes this length of time is too
long and alternatives for improving this process need to be
investigated. Section 206(a) requires the General Accounting
Office to review how eliminating the administrative process at
the agencies would: (1) expedite the handling of allegations of
such violations within Federal agencies and streamline the
complaint-filing process; (2) affect the workload of the EEOC;
(3) affect the established alternative dispute resolution
procedures in such agencies; and (4) affect any other matters
determined by the GAO to be appropriate.
---------------------------------------------------------------------------
\12\ The United States General Accounting Office, Equal Employment
Opportunity: Complaint Caseloads Rising with Effects of New Regulations
on Future Trends Unclear, GGD-99-128 p. 3.
\13\ Ibid.
\14\ The United States General Accounting Office, Equal Employment
Opportunity: Complaint Caseloads Rising with Effects of New Regulations
on Future Trends Unclear, GGD-99-128 p. 30.
\15\ The United States General Accounting Office, Equal Employment
Opportunity: Complaint Caseloads Rising with Effects of New Regulations
on Future Trends Unclear, GGD-99-128 p. 2.
\16\ Id.
---------------------------------------------------------------------------
Section 206(b) requires the GAO to report the Speaker of
the House, the President pro tempore of the Senate, the Equal
Employment Opportunity Commission, and the Attorney General 90
days after the study is complete.
TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE
Section 301. Data to be Posted by Employing Federal Agencies
Section 301(a) requires that the following equal employment
opportunity complaint data filed with such agency by employees,
former employees and applicants for employment with such agency
be disclosed on each Federal agency's web site.
Section 301(b) list the contents to be included on the
posting of data for the then current fiscal year. The contents
include the following data:
(1) LThe number of complaints filed with such agency in such
fiscal year.
(2) LThe number of individuals filing those complaints
(including class actions).
(3) LThe number of individuals who filed 2 or more of those
complaints.
(4) LThe number of complaints (described in paragraph (1)) in
which each of the various statutory bases of alleged
discrimination is alleged.
(5) LThe number of complaints (described in paragraph (1)) in
which each of the various issues of alleged discrimination is
alleged.
(6) LThe average length of time, for each step of the process,
it is taking such agency to process EEOC complaints. The
average times under this paragraph shall be posted:
(A) Lfor all such complaints;
(B) Lfor all such complaints in which a hearing before an
administrative judge of the EEOC is not requested; and
(C) Lfor all such complaints in which a hearing before an
administrative judge of the EEOC is requested.
(7) LThe total number of final agency actions rendered in such
fiscal year involving a finding of discrimination and, of that
number--
(A) Lthe number and percentage that were rendered without a
hearing before an administrative judge of the EEOC; and
(B) Lthe number and percentage that were rendered after a
hearing before an administrative judge of the EEOC.
(8) LThe total number of final agency actions rendered in such
fiscal year involving a finding of discrimination--
(A) Lthe number and percentage involving a finding of
discrimination based on each of the respective bases of alleged
discrimination,
(B) Lof the number specified under paragraph (A) for each
of the respective bases of alleged discrimination--
(i) Lthe number and percentage that were
rendered without a hearing before an
administrative judge of the EEOC, and
(ii) Lthe number and percentage that rendered
after a hearing before an administrative judge
of the EEOC.
(9) LOf the total number of final agency actions rendered in
such fiscal year involving a finding of discrimination--
(A) Lthe number and percentage involving a finding of
discrimination in connection with each of the respective issues
of alleged discrimination, and
(B) Lof the number specified under subparagraph (A) for
each of the respective issues of alleged discrimination--
(i) Lthe number and percentage that were
rendered without a hearing before an
administrative judge of the EEOC, and
(ii) Lthe number and percentage that were
rendered after a hearing before an
administrative judge of the EEOC.
(10) (A) LOf 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) LWith respect to those pending complaints that were
first filed before the start of the then current fiscal year--
(i) Lthe number of individuals who filed those
complaints, and
(ii) Lthe number of those complaints which are
at the various steps of the complaint process.
(C) LOf 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.
Section 301(c) provides the timing and other requirements
for the Federal agencies to post the data for the then current
fiscal year. Section 301(c)(1) requires interim year-to-date
data to be posted quarterly and final year-end data to be
posted. Section 301(c)(2) requires that the data include year-
end data for each of the 5 immediately preceding fiscal years.
It is the view of the Committee that this additional
information will assist Congress and the agencies in assessing
the extent of the problem throughout the Federal Government,
and will allow particular agencies to better understand if a
problem exists within their organization that needs to be
corrected. GAO testified at the May 9, 2001, hearing ``because
data are not readily available, there is no clear picture of
the number of complaints of workplace discrimination and
reprisal for whistleblowing at agencies or governmentwide and
the outcome of these cases. Data of this nature are important
because they 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 those issues.'' The Committee agrees with the General
Accounting Office's assessment of the need for accurate
accounting. The lack of a complete accounting in the complex
EEOC process makes it impossible for the Congress, the Federal
agencies and the American public to have a clear picture of the
volume and nature of discrimination and retaliation that exists
within the Federal work place.
Section 302. Data to be Posted by the Equal Employment Opportunity
Commission
Section 302(a) requires that the Equal Employment
Opportunity Commission shall post on its Web site:
(1) Lthe hearings requested before an EEOC administrative judge
on the complaints described in section 301.
(2) Lthe appeals filed with the Commission from final agency
actions on complaints described in section 301.
Section 302(b) requires that the data with respect to the
hearings and appeals at the EEOC shall 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).
Section 302(c) requires that the data under this section
shall be in addition to the data the Commission is required to
post under section 301 as an employing Federal agency.
Section 303. Rules
Section 303 requires that the Equal Employment Opportunity
Commission issue any rules necessary to carry out this title.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, MAY 23, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order.
I'd like to recognize the gentleman from Michigan for a
couple of housekeeping matters first before we go to the
markup. The gentleman from Michigan?
Mr. Conyers. Thank you, Mr. Chairman.
In connection with the Democratic side of the Judiciary
Committee, I ask unanimous consent that Representative Weiner
be made a Member of the Subcommittee on Courts, the Internet,
and Intellectual Property, and that Representative Schiff be
made a Member of the Subcommittee on Crime.
Chairman Sensenbrenner. Without objection. Without
objection, with the understanding that Mr. Weiner comes off the
Crime Subcommittee. Without objection, so ordered.
The gentleman from Michigan, is that all?
Mr. Conyers. Well, I'd like to make my other statement
during--when we come to order.
Chairman Sensenbrenner. Pursuant to notice, the first item
on the agenda is H.R. 169, the Notification and Federal Act of
2001, and I move its favorable recommendation to the full
House.
[H.R. 169 follows:]
Without objection, the bill will be considered as read and
open for amendment at any point, and the amendment in the
nature of a substitute, which the Members have before them,
will be considered as read and considered as the original text
for purposes of amendment.
[The amendment in the nature of a substitute follows:]
Chairman Sensenbrenner. The Chair recognizes himself to
strike the last word.
Along with Representative Jackson Lee, I introduced H.R.
169, the ``Notification and Federal Employees
Antidiscrimination and Retaliation Act of 2001,'' to address an
outrage in the Federal Government. Federal agencies today are
not being held accountable for acts of discrimination and
retaliation against their employees. Because Federal agencies
do not have to pay for judgments and settlements if the case
goes to court, they are not accountable for the misdeeds of
their employees.
Because of inadequate notification requirements, many
employees are not aware of their rights and managers are not
aware of their responsibilities. Because of inadequate
reporting, Federal agencies and Congress cannot assess the
extent of the problem.
As the President of the NAACP, Mr. Kweisi Mfume, testified
on May 9th before this Committee, ``The problem is especially
disconcerting as the Federal Government should serve as a model
of best practices for fair employment and equal opportunity to
national and international companies.''
This bill requires notification, reporting, and
accountability from Federal agencies. The No FEAR Act would
require agencies to pay for all settlements or judgments
against them in whistleblower and discrimination cases. This
will make the agency more accountable for its actions. The bill
would also require notification to employees of their rights
under the various whistleblower and discrimination laws to
prevent discrimination and harassment in the first place. The
act would also require Federal agencies to report to Congress
on the number of cases alleging discrimination and retaliation,
the disposition of those cases, and the cost of judgments to
the American taxpayer and the number of employees disciplined
for discrimination, harassment, or retaliation. This
information will help determine if there is a pattern of
misconduct and whether an agency is disciplining those
employees or managers involved in that behavior.
As the GAO testified on May 9th, such tracking of
complaints, cases, and costs are not occurring. I am offering a
manager's amendment on behalf of myself, Mr. Conyers, the
Ranking Member, and Ms. Jackson Lee, the gentlewoman from
Texas. It is the result of close cooperation between the
majority and minority staffs. The amendment makes a number of
discrete changes to the bill that are designed to ensure that
all the discrimination and retaliation laws are covered and
that Congress receives complete information to assess the full
extent of the problem.
The most important of these changes are the following:
first, the amendment expands the scope of the bill to ensure
that all discrimination and retaliation laws for Federal
employees are covered; and, second, the amendment requires
additional reporting regarding claims before the Equal
Employment Opportunity Commission and agencies to increase
understanding of logjams of cases.
In summation, this bill will remind Federal agencies of a
fundamental principle some apparently have forgotten, that one
of the first priorities of our democracy is to respect
individuals and to protect their rights.
And with that I yield back the balance of my time and
recognize the gentleman from Michigan for an opening statement.
Mr. Conyers. Thank you, Mr. Chairman. You have covered it
very effectively, and so I want to merely say that we're all in
accord. And I think that we ought to say in addition that, to
the legislative matter that's before us, that we want to
compliment you as Chairman of Judiciary and your staff for the
efforts that you've engaged in in reaching out to all of us to
bring a bipartisan spirit to this Committee in a new way.
To be honest, I was inclined to vote against both the spam
and the No FEAR bills. I believe that technology can really
solve the spam problem, and I felt that simply making the
agencies pay the bill in whistleblower and discrimination suits
perhaps was not sufficient reform for discrimination in the
agencies. But because of you and the men and women on your
staff who have worked with us and with Sheila Jackson Lee on
both these measures to address our concerns, we've all been
together able to craft a sincere compromise on these matters.
And I appreciate your leadership and your friendship in regard
to this matter.
I ask that the rest of my statement be included in the
record.
Chairman Sensenbrenner. Without objection.
[The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
I am glad we were able to work together in a bipartisan fashion to
resolve many of the Minority's concerns with the underlying bill, and I
commend Chairman Sensenbrenner and Congresswoman Jackson Lee for their
leadership on this matter.
One does not have to look very hard to find examples of government
misconduct. From the late 1980's until today, pervasive patterns of
discrimination have been found to exist in numerous federal agencies,
including (1) the Federal Bureau of Investigation; (2) the Bureau of
Alcohol, Tobacco and Firearms; (3) the Drug Enforcement Administration;
and (4) the Immigration and Naturalization Service.
Last year alone, federal employees filed more than 24,000
discrimination complaints against their agencies. And they were forced
to pay a total of $26 million for discrimination complaint settlements
and judgments. The complaint process is so backlogged that on average
it takes more than 1,100 days to process.
I would have liked to think that our federal agencies would be the
models for the treatment of employees in America. But these figures
indicate beyond a shadow of a doubt that the agencies are miserably
falling short of this responsibility.
At the May 9th hearing on this bill, I made several suggestions as
to how it could be strengthened. Since then, I have worked with
Chairman Sensenbrenner on a number of additional provisions which we
both agree will create even more success in combating discrimination
and retaliation within our federal agencies. These additions include:
La requirement that the President create a uniform
model standard for disciplining managers who have discriminated
or retaliated;
La requirement that federal agencies train all
employees and managers in their rights and responsibilities
under the Civil Rights and Whistle blower laws;
La GAO study examining possible benefits of allowing
federal employees to seek remedy directly in the EEOC; and
Linsuring that discrimination and legal judgments do
not impair the agency's ability to enforce the Civil Rights
laws, Whistle blower laws, environmental laws, labor laws or
consumer protection laws.
The bill is still not perfect. However it does represent a good
starting point in my judgment, and I look forward to working with the
Chairman in making further improvement on this legislation as it moves
on to the floor.
Chairman Sensenbrenner. Are there amendments?
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas.
Ms. Jackson Lee. I'd like to strike the last word.
Chairman Sensenbrenner. The gentlewoman's recognized for 5
minutes.
Ms. Jackson Lee. I thank the Chairman very much, and let me
thank you again for what is a persistent commitment to this
issue. If I can recall for my colleagues very briefly--and, Mr.
Chairman, I'd like to put my entire statement--ask to put my--
ask unanimous consent to put my entire statement into the
record.
Chairman Sensenbrenner. Without objection.
[The statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
Thank you Mr. Chairman.
Mr. Chairman, I support this Manager's Amendment because it
improves the original bill, H.R. 169. The amendment corrects an error
in the original draft of H.R. 169 that limited the scope of the bill to
only six environmental laws with whistleblower protection provisions.
Under this amendment, the bill's scope is expanded to include civil
rights laws as well as the six environmental laws with whistleblower
protections--a greatly needed fix.
The amendment also adds a new title to the bill (Title III) which
mandates the collection and disclosure by agencies of statistical data
relevant to hiring and employment practices. This Title includes: (1)
the requirement that federal agencies to post on their websites data on
equal employment complaints filed against the agencies; and (2) the
requirement that the EEOC also post on its website statistical data on
equal employment complaints filed against federal agencies. Such
disclosure is necessary in order to facilitate regular overview of the
agencies, and is crucial in being able to identify the precise extent
and nature of the problem. As stated by J. Christopher Mihm of the GAO
``data fosters transparency, which in turn provides an incentive to
improve performance and enhance the image of the agency in the eyes of
both employees and the public.'' Finally, the Title requires the EEOC
to promulgate any rules necessary to carry out the Title.
I would also like to note the reaffirmation of both Congressman
Nadler and myself to seek to protect employees benefits and saleries,
and I look forward to working together towards this end.
Mr. Chairman, these corrections to the original bill that this
amendment provides are necessary to ensure accountability and swift
consequences for discrimination and retaliation in the federal
government.
Thank you.
Ms. Jackson Lee. If I can just recall very briefly for my
colleagues the history of this matter, it was, again, at the
call of Chairman Sensenbrenner when we both served together on
the Science Committee that this issue was first brought to
light dealing with the fair legislation, and now we have
bridged this legislation from the Science Committee and our
concern there having oversight over the EPA to the Judiciary
Committee. And I think this is a very vital piece of
legislation. As I listened to the hearing a couple of weeks
ago, Mr. Chairman, it was as much as what we heard in the
Committee room as what we heard afterward, which was the tragic
loss of one of the employees of the EPA who lost his life
because of the enormous stress and burden that he faced in
certain employment circumstances.
So this is a life-saving piece of legislation, and I'm
gratified that my colleagues have viewed it not as being
redundant because it is very important to have a law that would
require Federal agencies to notify employees about any
applicable discrimination and whistleblower protection laws and
to report to Congress and the Attorney General the number of
discrimination and whistleblower cases within each agency. It
gives an extra leverage and an extra, if you will, pressure
point for the agency individually to not hide under the arm or
under the cover of the Federal Government and hold the
individual agency responsible for how it treats its employees.
And all of us, of course, realize that none of us are
perfect, and we realize there will be interactions between
employers and employees. But we do know that it is important to
address those cases that have resulted in Dr. Coleman's
situation and others.
So, Mr. Chairman, we've come a long way in eliminating the
culture of discrimination and harassment that exists in our
Federal workplace, and I hope that as we support the manager's
amendment and clarify certain issues, particularly noting the
fact that the salaries and benefits are protected, that we
would have the full support of this Committee. And, again, I am
delighted to have been able to work with you and thank you for
working with us on this legislation.
I yield back the balance of my time.
Chairman Sensenbrenner. Are there amendments?
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Watt. For the purpose of asking a couple of questions.
I have reviewed the bill and certainly think the notification
requirements are important. I'm concerned, though, that by
taking monies away from agencies that enforce various laws and
regulations we may be visiting on the beneficiaries or intended
beneficiaries of those laws the bad actions of people who
within the agency--
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Watt. And I wanted to see what the response was to
that.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Watt. Yes, I'm happy to yield.
Chairman Sensenbrenner. First of all, if an agency under
this bill is stuck with a huge judgment as a result of a
whistleblower or an EEO--if an agency is stuck with a big
judgment as a result of a whistleblower or an EEO campaign,
this has absolutely no effect on the salaries and benefits of
the employees of that agency. Those salaries and benefits are
statutory, and the managers, including all the way up to the
top, whether it's the Secretary of the Department or the
Administrator of the Department, has no authority to change the
salaries or benefits of the employees.
The Postal Service, since postal reorganization, has had to
pay for claims and judgments for these types of cases out of
its own account, and the General Accounting Office specifically
testified last week when--or 2 weeks ago, when we had the
hearing on this, that the requirement that they have to pay for
the judgments out of their own account have not affected
salaries and benefits of employees, and as a matter of fact,
have reduced the number of EEO complaints dramatically because
of that fact and because they do have an alternative dispute
resolution mechanism. If you're--
Mr. Watt. Mr. Chairman, I--
Chairman Sensenbrenner. If you're concerned about salaries
and expenses--or benefits of employees being hit, the answer is
have no fear because those are statutory and the managers can't
affect that. Only Congress can.
Mr. Watt. That is not my concern.
Mr. Bachus. Would the gentleman yield?
Mr. Watt. Let me clarify my concern. I know that civil
service employees' and employees' salaries and benefits are
protected. I'm more concerned about the delivery of services to
the public and what impact this might have on the delivery of
services to the public, and in the postal context that you used
as an example, what implications that might have for the cost
of--cost of those services to the public.
I'll yield to Mr.--
Mr. Bachus. Bachus.
Mr. Watt. Bachus from Alabama.
Mr. Bachus. Presently, under present law, which this bill
would change, but presently, if a discrimination complaint is
settled at the administrative level, the agency pays that
monetary relief now. So there would be no change at the
administrative level.
What happens today, if that case is appealed to the courts,
then the agency, if there's monetary relief granted by the
courts, then the agency does not pay that judgment. So there's
really a disincentive today for legitimate discrimination
complaints to be settled at the administrative level. The
agency can actually not settle, allow it to go to the courts,
and then the judgment fund, which is from the general fund,
pays it.
So a good agency today, I'd say to the gentleman from North
Carolina, would be settling these meritorious cases at the
administrative level. It's only the agencies which have not
settled meritorious claims and allowed them to go to the courts
and shifted that financial burden onto the general fund, and
from the general fund that money is taken away from all the
agencies.
Mr. Watt. Okay. Then I understand that rationale a lot more
than I understood the Chairman's rationale. But if this is such
a great idea, why are we limiting it to certain particular acts
and agencies as opposed to applying it in the general context?
I mean, isn't that the effect of the language on page 4, lines
8 through 17, to limit it to specific--the Clean Air Act,
Comprehensive Environmental Response, Compensation, and
Liability Act--
Mr. Bachus. I would think the manager's amendment took some
of those restrictions out.
Chairman Sensenbrenner. Well, first of all, let me ask
unanimous consent the gentleman have 2 additional minutes. And
will the gentleman yield? Would the gentleman from North
Carolina yield?
Mr. Watt. Yes, I will.
Chairman Sensenbrenner. Those provisions that you're
referring to in the original bill were taken out by the
manager's amendment. So they're no longer--
Mr. Watt. Okay. I see. Okay. I'm sorry. I'm--I'm satisfied.
I will yield back the balance of my time.
Chairman Sensenbrenner. Are there amendments?
Mr. Watt. Thank you very much.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York.
Mr. Nadler. I do have an amendment, but I'd like to ask if
the Chairman will yield for a question. I'm really undecided
on--
Chairman Sensenbrenner. Would the gentleman strike the last
word? Because I've already been recognized.
Mr. Nadler. I will strike the last word, so long--
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Nadler. So long as I can offer my amendment in a
separate striking of the last word.
Chairman Sensenbrenner. Yes, you--you're protected on that.
Mr. Nadler. Thank you.
Mr. Chairman, the question I have on this bill is, granting
its good intent, I have two questions and I'd like to hear, you
know--one, if an agency is found guilty of either
discrimination or being against whistleblowers or whatever it
is, and let's say it's the--whatever agency it is, Social
Security agency or whatever, if the funds come from their
budget, wouldn't that jeopardize sending out the Social
Security checks or the agriculture assistance checks or the
workmen's comp checks? In other words, they don't have funds to
provide for this, and obviously you don't want to give them
special funds to provide for this. So wouldn't it of necessity
come out of the money that is supposed to go out in aid of
various things?
Chairman Sensenbrenner. Well, if the gentleman would yield,
first of all, Social Security is an entitlement, so there the
money, it comes out of the Social Security trust fund to
process and send out the Social Security payments. So I don't
think--
Mr. Nadler. Some other program, then. I was just using that
as an example. Let's say agriculture assistance or OSHA.
Wouldn't it come out--let's say OSHA, you would have less
labor, less factories inspected to make sure they're safe? I
mean--
Chairman Sensenbrenner. That is protected also in the
manager's amendment, and I would refer the gentleman
specifically to page 5, lines 12 through 23 in the manager's
amendment. So that is all protected.
Mr. Nadler. And what about--let's assume the Securities and
Exchange Commission. Is every agency protected? And if every
agency's protected, what's the point of the bill?
Chairman Sensenbrenner. If the gentleman would yield
further, it is just the enforcement that is protected. It is
not the non-enforcement functions that are protected. So the
thing is that if they are fined as a result of illegal
behavior, either by the EEOC or through judicial action, they
will have to pay for it out of their budget. But the
enforcement parts are protected. And hopefully this bill will
act as a deterrent so that no fines will be paid, which I think
is the goal that we all--
Mr. Nadler. Which brings up my second question. During a
past administration, which will go unnamed so no one can think
the question is partisan in nature, many members of one party
which didn't have the Presidency accused the then-President of
appointing people to enforcement and other positions who didn't
believe in the law they wanted to enforce.
Let's assume some future President were to do this.
Wouldn't it be an easy way, if you wanted to destroy the
effectiveness of the agency that you were appointed to lead
because you didn't believe in its purpose, to deliberately
incur large fines so that there was no money to do what you
didn't want to do in the first place?
Chairman Sensenbrenner. I would submit that's probably an
impeachable offense, and we'd have to take care of that here in
a different context.
If the gentleman will yield, the total number of fines or
amount of fines that were paid out of the Justice Department's
fine budget was $42 million out of a budget of a trillion 800
billion dollars. So even as it stands today, we're not talking
about a huge amount of money that is being paid in fines and
judgments and settlements. The fact is that if you get a ticket
for speeding or running a stop sign and you can send the fine
to somebody else to pay, I don't think that's going to be the
deterrent to illegal behavior that you're having to pay for it
yourself would have.
Mr. Bachus. Would the Chairman yield?
Chairman Sensenbrenner. The gentleman from New York has the
time.
Mr. Nadler. I'll yield.
Mr. Bachus. Let me stress again to the Members that at
the--under present law, under administrative settlement, it
comes out of the agency funds today. So the scenario you set up
would--if they actually wanted to incur fines to slow down
enforcement, they could do that under present law.
What this changes is if these discrimination claims are
appealed to the courts, it doesn't--presently, the agencies pay
administrative--claims that are settled at the administrative
level today. There's a two-level system today.
Mr. Nadler. Reclaiming my time, I understand that and I
understand the perverse incentive on the agencies not to
settle. And, obviously, there are two ways to rectify that, and
the question is which is the least harmful or most beneficial
way to settle that. And I wonder if it wouldn't be a better
idea to simply say that, whether it's a settlement or a
judgment, it should go to the special fund rather than the
agencies.
But I have taken enough time on this. Mr. Chairman, I have
an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment offered by Mr. Nadler to the amendment
in the nature of a substitute to H.R. 169. Page 5, line 12,
insert ``excluding any part of such appropriation of such fund
or of such account available for salaries and expenses of
employees'' after ``expenses.''
[The amendment follows:]
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Mr. Chairman, first of all, I ask unanimous
consent that it say ``page 5, line 21,'' instead of ``line
12,'' because--
Chairman Sensenbrenner. Without objection, the modification
is--
Mr. Nadler. Thank you. It's changed in the manager's
amendment.
Mr. Chairman, you have stated that that's the--that this is
the intent of the bill, that the bill, in fact, would not
affect employees' salaries. This would simply make it explicit.
During the--and I would hope you would accept the
amendment, therefore. This would simply make it very clear what
the Chairman has said already this morning.
During this Committee's hearing on this bill, the
representatives of the people who work for Federal agencies,
workers who would not be in any way implicated with the types
of abuses targeted in this bill, expressed the concern that by
taking funds from the agency's account, jobs might be lost or
employee benefits compromised. This concern was echoed by our
former colleague, Kweisi Mfume, President and CEO of the NAACP,
who testified in support of the bill.
It is often the case that employee benefits or jobs are the
first target of any cuts. That's just--that's true not just in
Congress but in the private sector. When the Republican
revolution was declared in 1995, one of the first targets was
the House day-care center which served congressional staff.
If the real target of the bill is discrimination and
retaliation and the institutionalized indifference or hostility
to the victims and reporters of that outrageous conduct, then
we should ensure that the employees of the agencies do not end
up paying a personal price for the indifference or venality of
their management.
This amendment would simply exclude that part of the
agency's appropriation called salaries and expenses of
employees from the funds available to pay a judgment. It would
protect Federal workers from the consequences of the misdeeds
of their superiors and ensure that an agency does not reduce
staffing by eliminating FTEs, full-time equivalents, and
thereby undermine its ability to carry out its mission assigned
to it by Congress on behalf of the American people.
The stated purpose of this bill is to provide swift justice
for Federal employees who have been victimized. It eliminates--
it eliminates the perverse incentive to drag out a proceeding
in court rather than settle it expeditiously. While there are
many things we should be doing to eliminate employment
discrimination in both the public and private workplace that
the people who represent victims of discrimination tell us need
to be done, such as allowing an employee to go directly to the
EEOC without exhausting the many administrative hoops set out
by an agency, we are not doing that today.
It's my hope that we can provide a measure of justice
without undermining the lawful and beneficial mission of
Federal agencies, whether they supervise the fairness of our
markets or the soundness of our financial system. I am grateful
to the Chairman and Mr. Armey for their interest in this, in
civil rights and employment discrimination. And, again, as I
said, this amendment would simply make very explicit what the
Chairman has already said is--is, in fact, part of this bill,
so I hope that this amendment can be adopted without any
problems.
I yield back.
Chairman Sensenbrenner. I rise in opposition to the
amendment. This amendment is unnecessary and will have the
effect of delaying consideration of this bill on the floor of
the House. And I would ask the gentleman from New York to think
twice about proceeding with this amendment.
First, it is unnecessary because salaries and wages, in all
but a few Federal organizations, are paid under statutory
systems, such as the General Schedule, Foreign Service,
Department of Veterans Affairs, Health Administration, Senior
Executive Service, and Federal Wage System.
Agency heads do not have the authority to reduce salary
rates or to refuse to compensate employees with pay raises
which affect the entire system under which the employees are
paid. Nor do the agency heads have the authority to reduce
other statutory benefits which are not direct compensation,
such as health benefits and retirement benefits.
So the types of benefits that are included in the amendment
of the gentleman from New York are already protected by other
laws which are not amended or affected in any respect by the
legislation that is in front of us.
Ms. Jackson Lee. Would the gentleman yield?
Chairman Sensenbrenner. I am going to--let me finish. I
would be very happy to include in the Committee report language
that expressly reiterates what I have just stated on the record
so that anybody who looks at what the intent of Congress is is
absolutely clear that these types of benefits are protected.
Now, from a practical matter, if this amendment is adopted,
I do not think we will be able to persuade Chairman Burton in
the Government Reform Committee to waive its opportunity for a
sequential referral or a joint referral. I think I can bring
this bill up on the floor of the House of Representatives
without this amendment sometime in the month of June. If it
leaves our Committee and goes off to another committee, it may
very well stay there forever and ever, and as a result, we do
not get an important bill brought up in the House of
Representatives and passed.
Ms. Jackson Lee. Would the gentleman yield?
Chairman Sensenbrenner. I yield to the gentlelady from
Texas, Ms. Jackson Lee.
Ms. Jackson Lee. I thank the gentleman very much.
I think we're discussing two very important points. I thank
the Chairman, as I mentioned to you this possibility of report
language, and I appreciate your willingness to do that.
We obviously can just state the point that this will be in
the report language and refer to the existing law. Or if the
gentleman from New York would accept a substitute to his
amendment that indicates that the report language would include
such caveat or such clarification, we would certainly have on
record in this Committee that we have confirmed that we do not
want the salaries and expenses to be utilized.
But I would say to the Chairman and say to my colleagues,
it has been so difficult moving this legislation, that if we
could have that clarification--I am equally sensitive to
violating anyone's salary or benefits, and I believe if we can
do it in a manner that ensures that this important piece of
legislation moves, we could do so.
So I offer a substitute to Mr. Nadler's to focus on
including such language in the report language. And I yield
back to the Chairman.
Chairman Sensenbrenner. Well--
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. I yield to the gentleman from New
York.
Mr. Nadler. Thank you. Two things.
First of all, Mr. Chairman, what is not covered in the
current bill or by any other law which would directly affect
and does directly affect employees' salaries and jobs are RIFs,
reductions in force. If an agency loses money, they may have to
cut staff.
Now, that is--that is included in the amendment because any
part of the appropriation that goes for salaries and expenses
of employees would preclude a RIF. So that's--that's a very
substantive difference and what really worries me.
My second question, sir, is I don't understand why adoption
of this amendment would necessitate referral to another
committee if the bill doesn't have to go to that committee in
any event.
Chairman Sensenbrenner. If the gentleman will yield
further, if you look at the reference clause of the bill, it is
in the jurisdiction of Government Reform and Oversight, and
we've been negotiating with that committee to get them to waive
jurisdiction so we could bring the bill up--up on the floor.
Now, you know, the thing is that we're not talking about a
huge amount of money out of agency budgets. And I've got some
figures here that indicate that during fiscal year 2000 there
were 3 million plus payments. There was one for a million point
seven in Justice and two in the State Department for one a
little bit more--two for a little bit more than a million.
There were 23 settlements of 300,000 plus, and there was an
analysis of the data that indicates that there were
approximately 24 settlements of 100,000 to 299,000 dollars.
We're talking about agencies that have billions and billions of
dollars appropriation, and, you know, to think that if they--
that these judgments, if they have to pay for them out of their
own appropriation would end up decimating the agency has simply
been not borne out in fact. But even if the history was to that
extent, having it come out of their own budget rather than the
slush fund over in the Justice Department would act as a
deterrent for illegal behavior, as it has in the Postal
Service, where they've had to do this for the last 30 years out
of their own budget.
Mr. Nadler. Mr. Chairman, reclaiming--reclaiming my time,
in asking this question--in other words, what you're saying, as
I understand it, is that for some reason you think that you can
negotiate with the Government Reform Committee to give up their
jurisdiction as long as we don't put in language protecting
employees, but that the Government Reform leadership or maybe
the Republican leadership of the House or somebody would be so
opposed to making explicit the protection of employees'
salaries that then they wouldn't give up jurisdiction? I don't
understand that. But let--
Chairman Sensenbrenner. Well, if the--
Mr. Nadler. Let me suggest one other thing.
Chairman Sensenbrenner. If the gentleman would yield
further--
Mr. Nadler. Not just yet. I'll yield in a moment because I
want to add one thing. I would pull back the amendment--I would
pull back the amendment, Mr. Chairman, if--I think the
gentlelady from--from Texas made a good point about report
language, if you would agree to ask--to include in report
language that the bill does not authorize and--as a result of
these--of anything it does, a reduction in force caused by any
of these judgments. Then we would have real protection for the
employees.
Chairman Sensenbrenner. If the gentleman would yield?
Mr. Nadler. I will yield.
Chairman Sensenbrenner. I'll be happy to put that in the
Committee report because it's not the intention that people be
RIF'd.
Mr. Nadler. In that case, I thank the Chairman and I
withdraw the amendment.
Chairman Sensenbrenner. The amendment is withdrawn.
Are there further amendments?
Ms. Jackson Lee. I thank the gentleman.
Chairman Sensenbrenner. Hearing none, the question is on
the amendment in the nature of a substitute. Those in favor
will say aye. Opposed, no. The ayes appear to have it. The ayes
have it.
The question now occurs on the motion to report the bill
H.R. 169, favorably, as amended by the amendment in the nature
of a substitute. The Chair notes the presence of a reporting
quorum. Those in favor will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the bill
is favorably reported.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
And pursuant to the rule, all Members will be given 2 days, as
provided by House rules, in which to submit additional
dissenting supplemental or minority views.
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