Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002

Public Law 107-174

107th Congress


                                 An Act




   To require that Federal agencies be accountable for violations of

 antidiscrimination and whistleblower protection laws; to require that

   each Federal agency post quarterly on its public Web site, certain

statistical data relating to Federal sector equal employment opportunity

 complaints filed with such agency; and for other purposes.


    Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,


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 2002''.

    (b) Table of Contents.--The table of contents of this Act is as

follows:


Sec. 1. Short title; table of contents.


                       TITLE I--GENERAL PROVISIONS


Sec. 101. Findings.

Sec. 102. Sense of Congress.

Sec. 103. Definitions.

Sec. 104. Effective date.


        TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION


Sec. 201. Reimbursement requirement.

Sec. 202. Notification requirement.

Sec. 203. Reporting requirement.

Sec. 204. Rules and guidelines.

Sec. 205. Clarification of remedies.

Sec. 206. Studies by General Accounting Office on exhaustion of remedies

           and certain Department of Justice costs.


    TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE


Sec. 301. Data to be posted by employing Federal agencies.

Sec. 302. Data to be posted by the Equal Employment Opportunity

           Commission.

Sec. 303. Rules.


                       TITLE I--GENERAL PROVISIONS


SEC. 101. FINDINGS.


    Congress finds that--

            (1) Federal agencies cannot be run effectively if those

        agencies practice or tolerate discrimination;

            (2) Congress has heard testimony from individuals, including

        representatives of the National Association for the Advancement

        of Colored People and the American Federation of Government

        Employees, that point to chronic problems of discrimination and

        retaliation against Federal employees;

            (3) in August 2000, a jury found that the Environmental

        Protection Agency had discriminated against a senior social

        scientist, and awarded that scientist $600,000;

            (4) in October 2000, an Occupational Safety and Health

        Administration investigation found that the Environmental

        Protection Agency had retaliated against a senior scientist for

        disagreeing with that agency on a matter of science and for

        helping Congress to carry out its oversight responsibilities;

            (5) there have been several recent class action suits based

        on discrimination brought against Federal agencies, including

        the Federal Bureau of Investigation, the Bureau of Alcohol,

        Tobacco, and Firearms, the Drug Enforcement Administration, the

        Immigration and Naturalization Service, the United States

        Marshals Service, the Department of Agriculture, the United

        States Information Agency, and the Social Security

        Administration;

            (6) notifying Federal employees of their rights under

        discrimination and whistleblower laws should increase Federal

        agency compliance with the law;

            (7) requiring annual reports to Congress on the number and

        severity of discrimination and whistleblower cases brought

        against each Federal agency should enable Congress to improve

        its oversight over compliance by agencies with the law; and

            (8) requiring Federal agencies to pay for any discrimination

        or whistleblower judgment, award, or settlement should improve

        agency accountability with respect to discrimination and

        whistleblower laws.


SEC. 102. SENSE OF CONGRESS.


    It is the sense of Congress that--

            (1) Federal agencies should not retaliate for court

        judgments or settlements relating to discrimination and

        whistleblower laws by targeting the claimant or other employees

        with reductions in compensation, benefits, or workforce to pay

        for such judgments or settlements;

            (2) the mission of the Federal agency and the employment

        security of employees who are blameless in a whistleblower

        incident should not be compromised;

            (3) Federal agencies should not use a reduction in force or

        furloughs as means of funding a reimbursement under this Act;

            (4)(A) accountability in the enforcement of employee rights

        is not furthered by terminating--

                    (i) the employment of other employees; or

                    (ii) the benefits to which those employees are

                entitled through statute or contract; and

            (B) this Act is not intended to authorize those actions;

            (5)(A) nor is accountability furthered if Federal agencies

        react to the increased accountability under this Act by taking

        unfounded disciplinary actions against managers or by violating

        the procedural rights of managers who have been accused of

        discrimination; and

            (B) Federal agencies should ensure that managers have

        adequate training in the management of a diverse workforce and

        in dispute resolution and other essential communication skills;

        and

            (6)(A) Federal agencies are expected to reimburse the

        General Fund of the Treasury within a reasonable time under this

        Act; and

            (B) a Federal agency, particularly if the amount of

        reimbursement under this Act is large relative to annual

        appropriations for that agency, may need to extend reimbursement

        over several years in order to avoid--

                    (i) reductions in force;

                    (ii) furloughs;

                    (iii) other reductions in compensation or benefits

                for the workforce of the agency; or

                    (iv) an adverse effect on the mission of the agency.


SEC. 103. DEFINITIONS.


    For purposes of this Act--

            (1) the term ``applicant for Federal employment'' means an

        individual applying for employment in or under a Federal agency;

            (2) the term ``basis of alleged discrimination'' shall have

        the meaning given such term under section 303;

            (3) the term ``Federal agency'' means an Executive agency

        (as defined in section 105 of title 5, United States Code), the

        United States Postal Service, or the Postal Rate Commission;

            (4) the term ``Federal employee'' means an individual

        employed in or under a Federal agency;

            (5) the term ``former Federal employee'' means an individual

        formerly employed in or under a Federal agency; and

            (6) the term ``issue of alleged discrimination'' shall have

        the meaning given such term under section 303.


SEC. 104. EFFECTIVE DATE.


    This Act and the amendments made by this Act shall take effect on

the 1st day of the 1st fiscal year beginning more than 180 days after

the date of the enactment of this Act.


        TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION


SEC. 201. REIMBURSEMENT REQUIREMENT.


    (a) Applicability.--This section applies with respect to any payment

made in accordance with section 2414, 2517, 2672, or 2677 of title 28,

United States Code, and under section 1304 of title 31, United States

Code (relating to judgments, awards, and compromise settlements) to any

Federal employee, former Federal employee, or applicant for Federal

employment, in connection with any proceeding brought by or on behalf of

such employee, former employee, or applicant under--

            (1) any provision of law cited in subsection (c); or

            (2) any other provision of law which prohibits any form of

        discrimination, as identified under rules issued under section

        204.


    (b) Requirement.--An amount equal to the amount of each payment

described in subsection (a) shall be reimbursed to the fund described in

section 1304 of title 31, United States Code, out of any appropriation,

fund, or other account (excluding any part of such appropriation, of

such fund, or of such account available

for the enforcement of any Federal law) available for operating expenses

of the Federal agency to which the discriminatory conduct involved is

attributable as determined under section 204.

    (c) Scope.--The provisions of law cited in this subsection are the

following:

            (1) Section 2302(b) of title 5, United States Code, as

        applied to discriminatory conduct described in paragraphs (1)

        and (8), or described in paragraph (9) of such section as

        applied to discriminatory conduct described in paragraphs (1)

        and (8), of such section.

            (2) The provisions of law specified in section 2302(d) of

        title 5, United States Code.


SEC. 202. NOTIFICATION REQUIREMENT.


    (a) In General.--Written notification of the rights and protections

available to Federal employees, former Federal employees, and applicants

for Federal employment (as the case may be) in connection with the

respective provisions of law covered by paragraphs (1) and (2) of

section 201(a) shall be provided to such employees, former employees,

and applicants--

            (1) in accordance with otherwise applicable provisions of

        law; or

            (2) if, or to the extent that, no such notification would

        otherwise be required, in such time, form, and manner as shall

        under section 204 be required in order to carry out the

        requirements of this section.


    (b) Posting on the Internet.--Any written notification under this

section shall include, but not be limited to, the posting of the

information required under paragraph (1) or (2) (as applicable) of

subsection (a) on the Internet site of the Federal agency involved.

    (c) Employee Training.--Each Federal agency shall provide to the

employees of such agency training regarding the rights and remedies

applicable to such employees under the laws cited in section 201(c).


SEC. 203. REPORTING REQUIREMENT.


    (a) Annual Report.--Subject to subsection (b), not later than 180

days after the end of each fiscal year, each Federal agency shall submit

to the Speaker of the House of Representatives, the President pro

tempore of the Senate, the Committee on Governmental Affairs of the

Senate, the Committee on Government Reform of the House of

Representatives, each committee of Congress with jurisdiction relating

to the agency, the Equal Employment Opportunity Commission, and the

Attorney General an annual report which shall include, with respect to

the fiscal year--

            (1) the number of cases arising under each of the respective

        provisions of law covered by paragraphs (1) and (2) of section

        201(a) in which discrimination on the part of such agency was

        alleged;

            (2) the status or disposition of cases described in

        paragraph (1);

            (3) the amount of money required to be reimbursed by such

        agency under section 201 in connection with each of such cases,

        separately identifying the aggregate amount of such

        reimbursements attributable to the payment of attorneys' fees,

        if any;

            (4) the number of employees disciplined for discrimination,

        retaliation, harassment, or any other infraction of any

        provision of law referred to in paragraph (1);

            (5) the final year-end data posted under section

        301(c)(1)(B) for such fiscal year (without regard to section

        301(c)(2));

            (6) a detailed description of--

                    (A) the policy implemented by that agency relating

                to appropriate disciplinary actions against a Federal

                employee who--

                          (i) discriminated against any individual in

                      violation of any of the laws cited under section

                      201(a) (1) or (2); or

                          (ii) committed another prohibited personnel

                      practice that was revealed in the investigation of

                      a complaint alleging a violation of any of the

                      laws cited under section 201(a) (1) or (2); and

                    (B) with respect to each of such laws, the number of

                employees who are disciplined in accordance with such

                policy and the specific nature of the disciplinary

                action taken;

            (7) an analysis of the information described under

        paragraphs (1) through (6) (in conjunction with data provided to

        the Equal Employment Opportunity Commission in compliance with

        part 1614 of title 29 of the Code of Federal Regulations)

        including--

                    (A) an examination of trends;

                    (B) causal analysis;

                    (C) practical knowledge gained through experience;

                and

                    (D) any actions planned or taken to improve

                complaint or civil rights programs of the agency; and

            (8) any adjustment (to the extent the adjustment can be

        ascertained in the budget of the agency) to comply with the

        requirements under section 201.


    (b) First Report.--The 1st report submitted under subsection (a)

shall include for each item under subsection (a) data for each of the 5

immediately preceding fiscal years (or, if data are not available for

all 5 fiscal years, for each of those 5 fiscal years for which data are

available).


SEC. 204. RULES AND GUIDELINES.


    (a) Issuance of Rules and Guidelines.--The

President (or the designee of the President) shall issue--

            (1) rules to carry out this title;

            (2) rules to require that a comprehensive study be conducted

        in the executive branch to determine the best practices relating

        to the appropriate disciplinary actions against Federal

        employees who commit the actions described under clauses (i) and

        (ii) of section 203(a)(6)(A); and

            (3) based on the results of such study, advisory guidelines

        incorporating best practices that Federal agencies may follow to

        take such actions against such employees.


    (b) Agency Notification 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. STUDIES BY GENERAL ACCOUNTING OFFICE ON

          EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT

          OF CERTAIN DEPARTMENT OF JUSTICE COSTS.


    (a) Study on Exhaustion of Administrative Remedies.--

            (1) Study.--

                    (A) In general.--Not later than 180 days after the

                date of enactment of this Act, the General Accounting

                Office shall conduct a study relating to the effects of

                eliminating the requirement that Federal employees

                aggrieved by violations of any of the laws specified

                under section 201(c) exhaust administrative remedies

                before filing complaints with the Equal Employment

                Opportunity Commission.

                    (B) Contents.--The study shall include a detailed

                summary of matters investigated, information collected,

                and conclusions formulated that lead to determinations

                of how the elimination of such requirement will--

                          (i) expedite handling of allegations of such

                      violations within Federal agencies and will

                      streamline the complaint-filing process;

                          (ii) affect the workload of the Commission;

                          (iii) affect established alternative dispute

                      resolution procedures in such agencies; and

                          (iv) affect any other matters determined by

                      the General Accounting Office to be appropriate

                      for consideration.

            (2) Report.--Not later than 90 days after completion of the

        study required by paragraph (1), the General Accounting Office

        shall submit to the Speaker of the House of Representatives, the

        President pro tempore of the Senate, the Equal Employment

        Opportunity Commission, and the Attorney General a report

        containing the information required to be included in such

        study.


    (b) Study on Ascertainment of Certain Costs of the Department of

Justice in Defending Discrimination and Whistleblower Cases.--

            (1) Study.--Not later than 180 days after the date of

        enactment of this Act, the General Accounting Office shall

        conduct a study of the methods that could be used for, and the

        extent of any administrative burden that would be imposed on,

        the Department of Justice to ascertain the personnel and

        administrative costs incurred in defending in each case arising

        from a proceeding identified under section 201(a) (1) and (2).

            (2) Report.--Not later than 90 days after completion of the

        study required by paragraph (1), the General Accounting Office

        shall submit to the Speaker of the House of Representatives and

        the President pro tempore of the Senate a report containing the

        information required to be included in the study.


    (c) Studies on Statutory Effects on Agency Operations.--

            (1) In general.--Not later than 18 months after the date of

        enactment of this Act, the General Accounting Office shall

        conduct--

                    (A) a study on the effects of section 201 on the

                operations of Federal agencies; and

                    (B) a study on the effects of section 13 of the

                Contract Disputes Act of 1978 (41 U.S.C. 612) on the

                operations of Federal agencies.

            (2) Contents.--Each study under paragraph (1) shall include,

        with respect to the applicable statutes of the study--

                    (A) a summary of the number of cases in which a

                payment was made in accordance with section 2414, 2517,

                2672, or 2677 of title 28, United States Code, and under

                section 1304 of title 31, United States Code;

                    (B) a summary of the length of time Federal agencies

                used to complete reimbursements of payments described

                under subparagraph (A); and

                    (C) conclusions that assist in making determinations

                on how the reimbursements of payments described under

                subparagraph (A) will affect--

                          (i) the operations of Federal agencies;

                          (ii) funds appropriated on an annual basis;

                          (iii) employee relations and other human

                      capital matters;

                          (iv) settlements; and

                          (v) any other matter determined by the General

                      Accounting Office to be appropriate for

                      consideration.

            (3) Reports.--Not later than 90 days after the completion of

        each study under paragraph (1), the General Accounting Office

        shall submit a report on each study, respectively, to the

        Speaker of the House of Representatives, the President pro

        tempore of the Senate, the Committee on Governmental Affairs of

        the Senate, the Committee on Government Reform of the House of

        Representatives, and the Attorney General.


    (d) Study on Administrative and Personnel Costs Incurred by the

Department of the Treasury.--

            (1) In general.--Not later than 1 year after the date of

        enactment of this Act, the General Accounting Office shall

        conduct a study on the extent of any administrative and

        personnel costs incurred by the Department of the Treasury to

        account for payments made in accordance with section 2414, 2517,

        2672, or 2677 of title 28, United States Code, and under section

        1304 of title 31, United States Code, as a result of--

                    (A) this Act; and

                    (B) the Contracts Dispute Act of 1978 (41 U.S.C. 601

                note; Public Law 95-563).

            (2) Report.--Not later than 90 days after the completion of

        the study under paragraph (1), the General Accounting Office

        shall submit a report on the study to the Speaker of the

        House of Representatives, the President pro tempore of the

        Senate, the Committee on Governmental Affairs of the Senate, the

        Committee on Government Reform of the House of Representatives,

        and the Attorney General.


    TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE


SEC. 301. 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.


    Approved May 15, 2002.