[Senate Report 107-143]
[From the U.S. Government Publishing Office]
Calendar No. 346
107th Congress Report
SENATE
2d Session 107-143
_______________________________________________________________________
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION
ACT OF 2001
__________
REPORT
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 169
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
April 15, 2002.--Ordered to be printed
__________
U.S. GOVERNMENT PRINTING OFFICE
99-010 WASHINGTON : 2002
______________________________________________________________________
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COMMITTEE ON GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota JIM BUNNING, Kentucky
Joyce A. Rechtschaffen, Staff Director and Counsel
Michael L. Alexander, Professional Staff Member
Richard A. Hertling, Minority Staff Director
Alison E. Bean, Minority Professional Staff Member
Darla D. Cassell, Chief Clerk
Calendar No. 346
107th Congress Report
SENATE
2d Session 107-143
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NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION
ACT OF 2001
_______
April 15, 2002.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Governmental Affairs, submitted
the following
R E P O R T
[To accompany H.R. 169]
The Committee on Governmental Affairs, to which was
referred the bill (H.R. 169), an act to require that Federal
agencies be accountable for violations of antidiscrimination
and whistleblower protection laws; to require that each Federal
agency post quarterly on its public Web site, certain
statistical data relating to Federal sector equal employment
opportunity complaints filed with such agency; and for other
purposes, having considered the same, report favorably thereon
with amendments and recommends that the bill do pass.
CONTENTS
I. Purpose and Summary..............................................1
II. Background and Need for Legislation..............................2
III. Legislative History..............................................3
IV. Regulatory Impact................................................4
V. CBO Cost Estimate................................................4
VI. Section-by-Section Analysis and Discussion.......................6
VII. Changes to Existing Law.........................................12
I. Purpose and Summary
H.R. 169, the ``Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002,'' commonly
referred to as the No FEAR Act, seeks to hold Federal agencies
financially accountable for violations of discrimination and
whistleblower protection laws. The No FEAR Act requires Federal
agencies to reimburse the Treasury for settlements and
judgments paid to employees as a result of antidiscrimination
and whistleblower protection complaints. Agencies now pay these
costs when complaints are resolved administratively, but if a
lawsuit is filed, any subsequent monetary relief (whether by
settlement or judicial judgment) is generally paid by the
Judgment Fund, a permanently authorized fund administered by
the Treasury. The No FEAR Actmakes agencies financially
accountable for their actions by requiring each agency to reimburse the
Treasury for amounts paid from the Judgment Fund for settlements and
judgments against the agency in antidiscrimination and whistleblower
cases. The legislation also requires agencies to notify employees of
their rights under antidiscrimination and whistleblower protection
laws, and it strengthens agency reporting requirements. In short, the
intent of the No FEAR Act is that Federal agencies will pay more
attention to their EEO and whistleblower complaint activity and act
more expeditiously to resolve complaints at the administrative level
when it is appropriate to do so.
II. Background and Need for Legislation
H.R. 169 originated in response to an investigation
conducted by the House Science Committee into complaints of
discrimination and retaliation at the Environmental Protection
Agency. The Committee held hearings in March and October 2000
and concluded that problems at the agency stemmed primarily
from a lack of financial accountability, an absence of
awareness of the extent of discrimination problems, and a lack
of knowledge of the whistleblower and discrimination laws
protecting employees.\1\ The Committee discovered that
settlements and judgments against the agency--and against other
Federal agencies--were often paid out of the general treasury,
and not agency appropriations. The No FEAR Act (H.R. 169) was
introduced after the October hearing by Chairman James
Sensenbrenner and Representatives Sheila Jackson Lee and Connie
Morella to address the aforementioned problems.
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\1\ Committee on the Judiciary, United States House of
Representatives, Report [to accompany H.R. 169], ``Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2001,'' p.
7.
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On May 9, 2001 the House Judiciary Committee held a
legislative hearing on H.R. 169. Employees and several
organizations representing employees provided testimony in
support of the legislation. These included the National
Association for the Advancement of Colored People (NAACP), the
American Federation of Government Employees (AFGE), the
National Taxpayers Union (NTU), the National Treasury Employees
Union (NTEU) and the National Whistleblower Center. The AFGE
expressed concern about the possibility that, in meeting the
reimbursement requirements, agencies might penalize employees
through reductions in force, furloughs, or other actions which
impede their ability to fulfill their missions.\2\ The NTEU
submitted written testimony expressing a similar concern.\3\
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\2\ Bobby L. Harnage, Sr., President, American Federation of
Government Employees, before the House Judiciary Committee, on H.R.
169, the Notification and Federal Employee Antidiscrimination Act of
2001, May 9, 2001.
\3\ Colleen M. Kelley, President, National Treasury Employees
Union, Statement on the Notification and Federal Employee
Antidiscrimination Act, May 9, 2001.
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The General Accounting Office (GAO) testified at the May 9,
2001 hearing that there is a need for accountability,
reporting, and notification in regard to discrimination and
retaliation against Federal employees, and that H.R.169
addresses these needs. With respect to the central
accountability provision in the No FEAR Act, GAO testified that
``another possible means for promoting accountability might be
to have agencies bear more fully the costs of payments to
complainants and their lawyers made in resolving cases of
discrimination and reprisal for whistleblowing.'' GAO noted
that in FY 2000, agencies made payments totaling about $26
million for discrimination complaints. At the same time,
agencies were relieved of paying almost $43 million for cases
because of the existence of the Judgment Fund.
GAO pointed out that, while it can be argued that the
Judgment Fund provides a safety net to help ensure that agency
operations are not disrupted in the event of a large financial
settlement or judgment, it can also be argued that:
the fund discourages accountability by being a
disincentive to agencies to resolve matters promptly in
the administrative processes; by not pursuing
resolution, an agency could shift the cost of
resolution from its budget to the Judgment Fund and
escape the scrutiny that would accompany a request for
a supplemental appropriation. Congress dealt with a
somewhat similar situation when it enacted the Contract
Disputes Act in 1978, which requires agencies to either
reimburse the Judgment Fund for judgments awarded in
contract claims from available appropriations or to
obtain an additional appropriation for such purposes.
This provision was intended to counter the incentive
for an agency to avoid settling and prolong litigation
in order to have the final judgment against the agency
in court. . . . In reconciling these viewpoints on
financial accountability, Congress will need to balance
accountability with the needs of the public to receive
expected services.\4\
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\4\ J. Christopher Mihm, General Accounting Office, Testimony
Before the Committee on the Judiciary, House of Representatives, May 9,
2001, p. 8.
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III. Legislative History
H.R. 169 was introduced on January 3, 2001 by Congressman
James Sensenbrenner and was jointly referred to the Committees
on Government Reform, the Transportation and Infrastructure
Committee, the Energy and Commerce Committee and the Judiciary
Committee. On May 23, 2001, the House Committee on the
Judiciary ordered favorably reported the bill, as amended, by a
voice vote. On October 2, 2001, the House unanimously (420-0)
passed the legislation. On October 3, 2001, H.R. 169 was
referred to the Senate Governmental Affairs Committee.
Similar legislation, the Federal Employees Protection Act
of 2001, was introduced on January 29, 2001 by Senator John
Warner as S. 201 and was referred to the Governmental Affairs
Committee. The Subcommittee on International Security,
Proliferation, and Federal Services considered both bills and
reported H.R. 169 and S. 201 to the full committee on March 19,
2002.
Senator Warner wrote to Senator Lieberman requesting that
the Committee report out H.R.169, and, at its business meeting
on March 21, 2002, the Committee considered H.R. 169.
Four amendments offered by Senator Lieberman were adopted
by voice vote. In addition to updating the findings, the first
amendment also adds a new section expressing the sense of the
Congress that agencies should not use a reduction in force or
furloughs as a means of funding a reimbursement under the Act,
and that accountability in enforcing employee rights is not
furthered by terminating employment or employee benefits. The
new section further states that accountability is also not
furthered if agencies react to this Act by taking unfounded
disciplinary actions against managers, and that agencies should
ensure that managers have adequate training in the management
of a diverse workforce and in communication skills. Finally,
the new section recognizes that Federal agencies may need to
extend reimbursement under the Act over several years to avoid
reductions in force, furloughs, reductions in employee
compensation or benefits, or other adverse effects on agency
mission.
The second amendment strengthens the bill's reporting
requirements by: specifying that the reports must be sent to
the Governmental Affairs Committee, the House Government Reform
Committee, and other committees of jurisdiction; requiring
agencies to report on their policies relating to disciplining
employees who commit prohibited personnel practices revealed in
the investigation of a discrimination complaint; requiring
agencies to include in their annual reports an analysis of the
complaint data; and requiring that agencies report on any
budget adjustments (if ascertainable) to comply with the Act's
requirements.
The third amendment requires GAO to study the methods that
could be used by the Justice Department to determine its costs
of defending each discrimination and whistleblower case, and
the extent of any administrative burden that making such
determinations would entail. The final amendment makes a series
of technical corrections.
At the meeting, the Committee ordered the bill reported by
voice vote, with no members present dissenting. Senators
present were Levin, Akaka, Thompson, Stevens, Cochran, Bennett,
Cleland, Voinovich, and Lieberman.
IV. REGULATORY IMPACT
Paragraph 11(b)(1) of the Standing rules of the Senate
requires that each report accompanying a bill evaluate the
``regulatory impact which would be incurred in carrying out
this bill.'' The Committee has determined that the enactment of
this legislation will not have significant regulatory impact.
V. CBO COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 3, 2002.
Hon. Joseph I. Lieberman,
Chairman, Committee on Governmental Affairs,
U.S. Senate, 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 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Barry B. Andersen
(For Dan L. Crippen, Director).
Enclosure.
H.R. 169--Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002
H.R. 169 would require federal agencies to provide training
to employees that notifies them of their employment 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 a year. Enactment could cause an insignificant increase
in offsetting receipts (a form of direct spending), so pay-as-
you-go procedures would apply. H.R. 169 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) 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 from 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 act 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
act 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, as well as, a study regarding
costs to the Department of Justice of defending whistleblower
and discrimination cases.
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 in 2003 to prepare the reports required by the
legislation. 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 act'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 act's requirements would be no more than about
$5 million annually.
On June 8, 2001, CBO prepared a cost estimate for H.R. 169,
as ordered reported by the House Committee on the Judiciary on
May 23, 2001. The two versions of legislation are similar, and
their estimated costs are the same.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
VI. Section-by-Section Analysis and Discussion
Section 101. Findings
Section 101 details the findings motivating the enactment
of the legislation. These findings include: Federal agencies
cannot be run effectively if they practice or tolerate
discrimination; some agencies still face problems with
discrimination and retaliation against Federal employees; and
notifying Federal employees of their rights under
discrimination and whistleblower statutes should increase
agency compliance with the law.
The findings also observe that 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 of agencies'
compliance with the law; requiring agencies to report on their
analysis of the trends, patterns, and issues revealed in
complaints should ensure that agencies systematically improve
their complaint processes; and requiring Federal agencies to
pay for any discrimination or whistleblower judgments, awards,
or settlements should improve agency accountability with
respect to whistleblower and discrimination laws.
Section 102. Sense of Congress
Section 102 expresses the Sense of the Congress that
Federal agencies should not retaliate for court judgments or
settlements relating to discrimination and whistleblower laws
by targeting the claimant or other employees with reductions in
compensation, benefits, or workforce to pay for such judgments
or settlements; the mission of the Federal agency and the
employment security of employees who are blameless in a
whistleblower incident should not be compromised; and Federal
agencies should not use a reduction in force or furloughs as a
means of funding a payment under this Act. Section 102 also
expresses the Sense of the Congress that accountability in the
enforcement of employee rights is not furthered by terminating
the employment of other employees or the benefits to which
those employees are entitled through statute or contract; and
the No FEAR Act is not intended to authorize those actions.
This section also expresses the Sense of the Congress that
accountability is not furthered if Federal agencies react to
the increased accountability under this Act by taking unfounded
disciplinary actions against managers or by violating the
procedural rights of managers who have been accused of
discrimination; and Federal agencies should ensure that
managers have adequate training in the management of a diverse
workforce and in dispute resolution and other essential
communication skills.
Finally, this section expresses the Sense of the Congress
that Federal agencies are expected to reimburse the General
Fund of the Treasury within a reasonable time under the Act;
and a Federal agency, particularly if the amount of the
reimbursement is large relative to annual appropriations for
that agency, may need to extend the reimbursement over several
years in order to avoid reductions in force, furloughs, other
reductions in compensation or benefits for the workforce of the
agency, or an adverse effect on the mission of the agency.
Thus, there is nothing in the No FEAR Act that would cause an
agency to compromise its employees' rights and benefits or the
agency's mission.
Section 103. Definitions
Section 103 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 104. Effective date
Section 104 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.
Title II--Federal employee discrimination and retaliation
Section 201. Reimbursement requirement
Section 201 requires agencies to reimburse the Treasury for
amounts paid from the Judgement Fund to employees and their
attorneys as a result of antidiscrimination and whistleblower
protection complaints. Currently, Federal agencies do not
always bear the costs of settlements or judgments in
discrimination or retaliation complaints. Agencies now pay
these costs when a complaint is resolved administratively. But,
in the case of most agencies, once a lawsuit is filed, any
subsequent monetary relief is generally paid by the Judgment
Fund. The Judgment Fund is a permanently authorized fund
administered by the Treasury, created by Congress to avoid the
need for a specific congressional appropriation for settlement
and judgment costs and to allow for prompter payments.
Section 201 changes this by requiring each agency to bear
the costs of judgments against it. The intent of this provision
is to promote agency accountability and remove any financial
incentive that may exist to prolong cases: i.e. as noted by
GAO, under the current system, by not pursuing an
administrative solution, the agency can shift the costs from
the agency's budget to the Judgment Fund. Further, requiring
agencies to pay for complaints in the administrative and court
processes will also encourage the agencies to work to improve
their dispute resolution procedures and promote policies that
encourage a fair and equitable workplace.\5\
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\5\ In the case of those agencies where settlements and judgments
are not paid out of the Judgment Fund, the reimbursement requirement is
not relevant.
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Section 202. Notification requirement
Section 202(a)(b) requires that Federal agencies notify
their employees in writing, and through the Internet, about any
applicable discrimination and whistleblower protection laws.
Agencies are not expected to provide written notification to
former employees. Section 202(c) requires that each Federal
agency provide its employees training regarding the rights and
remedies applicable to such employees under antidiscrimination
and whistleblower laws. The intent is to ensure that employees
do not shy away from reporting problems because they have
insufficient understanding of their rights. At the same time,
workforce relations will improve ifmanagers are more aware of
their responsibilities and employees of their rights. To comply with
this section, agencies should deploy a number of training techniques,
including on-line training. Agencies should also measure the
effectiveness of such training to ensure that it produces the desired
results.
The written notification requirement is not intended to
supersede any other provision of law, including 5 U.S.C.
2302(c).
Section 203. Reporting requirement
Section 203(a) requires that each Federal agency send an
annual report to the Speaker of the House of Representatives,
the President Pro Tempore of the Senate, the relevant
appropriations and authorizing committees, the Senate
Governmental Affairs Committee, the House Government Reform
Committee, the Equal Employment Opportunity Commission, and the
Attorney General. Requiring agencies to report to their
respective appropriations and authorizing committees will
strengthen Congressional oversight and send a signal to
agencies that the committees with appropriate jurisdiction will
be reviewing their data.
Section 203(a) also requires agencies to report on the
number of cases in which an agency was alleged to have violated
any of the discrimination or whistleblower statutes; the
disposition of each of these cases; the total of all monetary
awards charged against the agency from these cases; the number
of employees disciplined for discrimination, retaliation, or
harassment; and a detailed description of the policy
implemented by the agency to take appropriate disciplinary
actions against any Federal employee who (1) discriminated
against any individual in violation of discrimination and
whistleblower statutes, or (2) committed another prohibited
personnel practice that was revealed in the investigation of a
complaint alleging a violation of any of the laws cited in
Section 201(a)(1) or (2). Agencies would be required to report
all cases that can be legally ascertained, including, for
example, prohibited personnel practice matters reported to the
agency by the U.S. Office of Special Counsel.
In addition, agencies are required to report on an analysis
of the data in this section (in conjunction with data provided
to the Equal Employment Opportunity Commission in compliance
with part 1614 of title 29 of the Code of Federal Regulations),
including: (a) an examination of trends, (b) causal analysis,
(c) practical knowledge gained through experience, and (d) any
actions planned or taken to improve complaint or civil rights
programs of the agency. This data, as well as the analysis, is
essential to ensure that agencies systematically improve their
processes. Agencies should view this reporting as an
opportunity to understand whether a problem exists within its
organization, to ascertain the nature and extent of the
problem, and to develop effective solutions. This section also
requires each agency to report on any adjustment (to the extent
the adjustment can be ascertained) made in the budget of the
agency to comply with the reimbursement requirements in Section
201.
Section 204. Rules and guidelines
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 a study be conducted by
the executive branch to determine best practices for
disciplining employees who discriminate or commit another
violation revealed in a discrimination case. 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 the remedies
Section 205 clarifies that making a claim under this bill
does not affect remedies or rights under current law.
Section 206. Studies by the General Accounting Office on exhaustion of
administrative remedies and on ascertainment of certain
Department of Justice costs
Section 206(a)(1) requires, not later than 180 days after
enactment of the Act, the GAO 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). Under present law and
regulations, Federal agencies must decide whether to dismiss or
accept complaints employees file with them and investigate
accepted complaints. After this investigation, a complainant
has the option of requesting a hearing before an EEOC
administrative judge, and the agency must render a final
decision. The average time to process a complaint in FY 1999
was 423 days, up from 384 days in FY 1998.\6\ In FY 1998, a
case that goes through the entire EEOC hearing and appeal
process could be expected to take 1,186 days or about three
years and two months.\7\ This length of time is too long and
alternatives for improving this process need to be
investigated. Therefore, section 206(a) requires the GAO to
review how eliminating the requirement that the complainant
exhaust the administrative process at the agencies before being
allowed to file a complaint with the EEOC 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.
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\6\ Federal Sector Report on EEO Complaints Processing and Appeals,
Fiscal Year 1999, United States Equal Employment Opportunity
Commission.
\7\ 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.
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Section 206(a)(2) requires the GAO to report to the Speaker
of the House, the President Pro Tempore, the President Pro
Tempore of the Senate, and the Attorney General 90 days after
the study is complete.
Section 206(b)(1) requires that not later than 180 days
after the date of enactment of this Act, the GAO shall conduct
a study of the methods that could be used for, and the extent
of any administrative burden that would be imposed on, the
Department of Justice to ascertain thepersonnel and
administrative costs incurred in defending agencies in
antidiscrimination and whistleblower cases. Section 206(b)(2) requires
that the report be completed not later than 90 days after the
completion of the study and submitted to the Speaker of the House of
Representatives and the President Pro Tempore of the Senate.
Title III--Equal employment opportunity complaint
disclosure
Section 301--Data to be posted by employing Federal agencies
Section 301(a) requires that certain 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 in the time,
form, and manner prescribed under the section.
Section 301(b) lists the contents to be included on the
posting of data for the then-current fiscal year.
The data posted by a Federal agency under this section
shall include, for the then current fiscal year: the number of
complaints filed with the agency; the number of individuals
filing those complaints (including as the agent of a class);
the number of individuals who filed two or more complaints; the
number of complaints in which each of the various bases of
alleged discrimination is alleged; the number of complaints in
which each of the various issues of alleged discrimination is
alleged; and the average length of time, for each step of the
process, it is taking the agency to process complaints (taking
into account all complaints pending for any length of time in
the fiscal year, whether first filed in the fiscal year or
earlier).
Average times shall be posted for all such complaints,
including all complaints for which a hearing before an
administrative judge of the EEOC is, or is not, requested; the
total number of final agency actions in the fiscal year
involving a finding of discrimination, and of that number, the
number rendered after or without a hearing at EEOC. Of the
total number of final agency actions rendered involving
findings of discrimination, agencies must also post the number
and percentage involving a finding of discrimination based on
each of the respective bases of alleged discrimination, and the
number and percentage that were rendered after or without a
hearing before an administrative judge of EEOC. Similarly, of
the total number of final agency actions involving a finding of
discrimination, agencies are required to post the number and
percentage involving a finding of discrimination in connection
with each of the respective issues of alleged discrimination,
and the number and percentage that were rendered after or
without a hearing before the EEOC.
Of the total number of complaints pending in each fiscal
year, agencies are required to post the number that were first
filed before the start of the then current fiscal year. With
respect to those pending complaints that were first filed
before the start of the then current fiscal year, the agencies
are to post the number of individuals who filed those
complaints, and the number of those complaints which are at the
various steps of the complaint process.
Agencies are also to post 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 the complaints an impartial and appropriate
investigation.
Section 301(c) provides the timing and other requirements
for 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 five immediately preceding fiscal
years, or, if not available, for however many of those five
years for which data are available.
Section 302. Data to be posted by the Equal Employment Opportunity
Commission
Section 302(a) requires the EEOC to post on its Web site
summary statistical data related to the hearings requested
before an EEOC administrative judge and the 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 earlier. 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.
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 and complete
picture of the volume and nature of discrimination and
retaliation that exists within the Federal workplace. 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.
Section 303. Rules
Section 303 requires that the Equal Employment Opportunity
Commission issue any rules necessary to carry out this title.
VII. CHANGES TO EXISTING LAW
H.R. 169 does not repeal or amend an existing statute.