Text: H.R.169 — 107th Congress (2001-2002)All Information (Except Text)

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Public Law No: 107-174 (05/15/2002)

 
[107th Congress Public Law 174]
[From the U.S. Government Printing Office]


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[DOCID: f:publ174.107]


[[Page 565]]

NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT 
                                 OF 2002

[[Page 116 STAT. 566]]

Public Law 107-174
107th Congress

                                 An Act


 
   To require that Federal agencies be accountable for violations of 
 antidiscrimination and whistleblower protection laws; to require that 
   each Federal agency post quarterly on its public Web site, certain 
statistical data relating to Federal sector equal employment opportunity 
 complaints filed with such agency; and for other purposes. <<NOTE: May 
                        15, 2002 -  [H.R. 169]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Notification and 
Federal Employee Antidiscrimina- tion and Retaliation Act of 2002.>> 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. <<NOTE: 5 USC 2301 note.>> 

    (a) Short Title.--This Act may be cited as the ``Notification and 
Federal Employee Antidiscrimination and Retaliation Act of 2002''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.

                       TITLE I--GENERAL PROVISIONS

Sec. 101. Findings.
Sec. 102. Sense of Congress.
Sec. 103. Definitions.
Sec. 104. Effective date.

        TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

Sec. 201. Reimbursement requirement.
Sec. 202. Notification requirement.
Sec. 203. Reporting requirement.
Sec. 204. Rules and guidelines.
Sec. 205. Clarification of remedies.
Sec. 206. Studies by General Accounting Office on exhaustion of remedies 
           and certain Department of Justice costs.

    TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE

Sec. 301. Data to be posted by employing Federal agencies.
Sec. 302. Data to be posted by the Equal Employment Opportunity 
           Commission.
Sec. 303. Rules.

                       TITLE I--GENERAL PROVISIONS

SEC. 101. FINDINGS.

    Congress finds that--
            (1) Federal agencies cannot be run effectively if those 
        agencies practice or tolerate discrimination;
            (2) Congress has heard testimony from individuals, including 
        representatives of the National Association for the Advancement 
        of Colored People and the American Federation of Government 
        Employees, that point to chronic problems of discrimination and 
        retaliation against Federal employees;

[[Page 116 STAT. 567]]

            (3) in August 2000, a jury found that the Environmental 
        Protection Agency had discriminated against a senior social 
        scientist, and awarded that scientist $600,000;
            (4) in October 2000, an Occupational Safety and Health 
        Administration investigation found that the Environmental 
        Protection Agency had retaliated against a senior scientist for 
        disagreeing with that agency on a matter of science and for 
        helping Congress to carry out its oversight responsibilities;
            (5) there have been several recent class action suits based 
        on discrimination brought against Federal agencies, including 
        the Federal Bureau of Investigation, the Bureau of Alcohol, 
        Tobacco, and Firearms, the Drug Enforcement Administration, the 
        Immigration and Naturalization Service, the United States 
        Marshals Service, the Department of Agriculture, the United 
        States Information Agency, and the Social Security 
        Administration;
            (6) notifying Federal employees of their rights under 
        discrimination and whistleblower laws should increase Federal 
        agency compliance with the law;
            (7) requiring annual reports to Congress on the number and 
        severity of discrimination and whistleblower cases brought 
        against each Federal agency should enable Congress to improve 
        its oversight over compliance by agencies with the law; and
            (8) requiring Federal agencies to pay for any discrimination 
        or whistleblower judgment, award, or settlement should improve 
        agency accountability with respect to discrimination and 
        whistleblower laws.

SEC. 102. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) Federal agencies should not retaliate for court 
        judgments or settlements relating to discrimination and 
        whistleblower laws by targeting the claimant or other employees 
        with reductions in compensation, benefits, or workforce to pay 
        for such judgments or settlements;
            (2) the mission of the Federal agency and the employment 
        security of employees who are blameless in a whistleblower 
        incident should not be compromised;
            (3) Federal agencies should not use a reduction in force or 
        furloughs as means of funding a reimbursement under this Act;
            (4)(A) accountability in the enforcement of employee rights 
        is not furthered by terminating--
                    (i) the employment of other employees; or
                    (ii) the benefits to which those employees are 
                entitled through statute or contract; and
            (B) this Act is not intended to authorize those actions;
            (5)(A) nor is accountability furthered if Federal agencies 
        react to the increased accountability under this Act by taking 
        unfounded disciplinary actions against managers or by violating 
        the procedural rights of managers who have been accused of 
        discrimination; and
            (B) Federal agencies should ensure that managers have 
        adequate training in the management of a diverse workforce and 
        in dispute resolution and other essential communication skills; 
        and

[[Page 116 STAT. 568]]

            (6)(A) Federal agencies are expected to reimburse the 
        General Fund of the Treasury within a reasonable time under this 
        Act; and
            (B) a Federal agency, particularly if the amount of 
        reimbursement under this Act is large relative to annual 
        appropriations for that agency, may need to extend reimbursement 
        over several years in order to avoid--
                    (i) reductions in force;
                    (ii) furloughs;
                    (iii) other reductions in compensation or benefits 
                for the workforce of the agency; or
                    (iv) an adverse effect on the mission of the agency.

SEC. 103. DEFINITIONS.

    For purposes of this Act--
            (1) the term ``applicant for Federal employment'' means an 
        individual applying for employment in or under a Federal agency;
            (2) the term ``basis of alleged discrimination'' shall have 
        the meaning given such term under section 303;
            (3) the term ``Federal agency'' means an Executive agency 
        (as defined in section 105 of title 5, United States Code), the 
        United States Postal Service, or the Postal Rate Commission;
            (4) the term ``Federal employee'' means an individual 
        employed in or under a Federal agency;
            (5) the term ``former Federal employee'' means an individual 
        formerly employed in or under a Federal agency; and
            (6) the term ``issue of alleged discrimination'' shall have 
        the meaning given such term under section 303.

SEC. 104. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall take effect on 
the 1st day of the 1st fiscal year beginning more than 180 days after 
the date of the enactment of this Act.

        TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

SEC. 201. REIMBURSEMENT REQUIREMENT.

    (a) Applicability.--This section applies with respect to any payment 
made in accordance with section 2414, 2517, 2672, or 2677 of title 28, 
United States Code, and under section 1304 of title 31, United States 
Code (relating to judgments, awards, and compromise settlements) to any 
Federal employee, former Federal employee, or applicant for Federal 
employment, in connection with any proceeding brought by or on behalf of 
such employee, former employee, or applicant under--
            (1) any provision of law cited in subsection (c); or
            (2) any other provision of law which prohibits any form of 
        discrimination, as identified under rules issued under section 
        204.

    (b) Requirement.--An amount equal to the amount of each payment 
described in subsection (a) shall be reimbursed to the fund described in 
section 1304 of title 31, United States Code, out of any appropriation, 
fund, or other account (excluding any part of such appropriation, of 
such fund, or of such account available

[[Page 116 STAT. 569]]

for the enforcement of any Federal law) available for operating expenses 
of the Federal agency to which the discriminatory conduct involved is 
attributable as determined under section 204.
    (c) Scope.--The provisions of law cited in this subsection are the 
following:
            (1) Section 2302(b) of title 5, United States Code, as 
        applied to discriminatory conduct described in paragraphs (1) 
        and (8), or described in paragraph (9) of such section as 
        applied to discriminatory conduct described in paragraphs (1) 
        and (8), of such section.
            (2) The provisions of law specified in section 2302(d) of 
        title 5, United States Code.

SEC. 202. NOTIFICATION REQUIREMENT.

    (a) In General.--Written notification of the rights and protections 
available to Federal employees, former Federal employees, and applicants 
for Federal employment (as the case may be) in connection with the 
respective provisions of law covered by paragraphs (1) and (2) of 
section 201(a) shall be provided to such employees, former employees, 
and applicants--
            (1) in accordance with otherwise applicable provisions of 
        law; or
            (2) if, or to the extent that, no such notification would 
        otherwise be required, in such time, form, and manner as shall 
        under section 204 be required in order to carry out the 
        requirements of this section.

    (b) Posting on the Internet.--Any written notification under this 
section shall include, but not be limited to, the posting of the 
information required under paragraph (1) or (2) (as applicable) of 
subsection (a) on the Internet site of the Federal agency involved.
    (c) Employee Training.--Each Federal agency shall provide to the 
employees of such agency training regarding the rights and remedies 
applicable to such employees under the laws cited in section 201(c).

SEC. 203. REPORTING REQUIREMENT. <<NOTE: Deadline.>> 

    (a) Annual Report.--Subject to subsection (b), not later than 180 
days after the end of each fiscal year, each Federal agency shall submit 
to the Speaker of the House of Representatives, the President pro 
tempore of the Senate, the Committee on Governmental Affairs of the 
Senate, the Committee on Government Reform of the House of 
Representatives, each committee of Congress with jurisdiction relating 
to the agency, the Equal Employment Opportunity Commission, and the 
Attorney General an annual report which shall include, with respect to 
the fiscal year--
            (1) the number of cases arising under each of the respective 
        provisions of law covered by paragraphs (1) and (2) of section 
        201(a) in which discrimination on the part of such agency was 
        alleged;
            (2) the status or disposition of cases described in 
        paragraph (1);
            (3) the amount of money required to be reimbursed by such 
        agency under section 201 in connection with each of such cases, 
        separately identifying the aggregate amount of such 
        reimbursements attributable to the payment of attorneys' fees, 
        if any;

[[Page 116 STAT. 570]]

            (4) the number of employees disciplined for discrimination, 
        retaliation, harassment, or any other infraction of any 
        provision of law referred to in paragraph (1);
            (5) the final year-end data posted under section 
        301(c)(1)(B) for such fiscal year (without regard to section 
        301(c)(2));
            (6) a detailed description of--
                    (A) the policy implemented by that agency relating 
                to appropriate disciplinary actions against a Federal 
                employee who--
                          (i) discriminated against any individual in 
                      violation of any of the laws cited under section 
                      201(a) (1) or (2); or
                          (ii) committed another prohibited personnel 
                      practice that was revealed in the investigation of 
                      a complaint alleging a violation of any of the 
                      laws cited under section 201(a) (1) or (2); and
                    (B) with respect to each of such laws, the number of 
                employees who are disciplined in accordance with such 
                policy and the specific nature of the disciplinary 
                action taken;
            (7) an analysis of the information described under 
        paragraphs (1) through (6) (in conjunction with data provided to 
        the Equal Employment Opportunity Commission in compliance with 
        part 1614 of title 29 of the Code of Federal Regulations) 
        including--
                    (A) an examination of trends;
                    (B) causal analysis;
                    (C) practical knowledge gained through experience; 
                and
                    (D) any actions planned or taken to improve 
                complaint or civil rights programs of the agency; and
            (8) any adjustment (to the extent the adjustment can be 
        ascertained in the budget of the agency) to comply with the 
        requirements under section 201.

    (b) First Report.--The 1st report submitted under subsection (a) 
shall include for each item under subsection (a) data for each of the 5 
immediately preceding fiscal years (or, if data are not available for 
all 5 fiscal years, for each of those 5 fiscal years for which data are 
available).

SEC. 204. RULES AND GUIDELINES.

    (a) Issuance <<NOTE: President.>> of Rules and Guidelines.--The 
President (or the designee of the President) shall issue--
            (1) rules to carry out this title;
            (2) rules to require that a comprehensive study be conducted 
        in the executive branch to determine the best practices relating 
        to the appropriate disciplinary actions against Federal 
        employees who commit the actions described under clauses (i) and 
        (ii) of section 203(a)(6)(A); and
            (3) based on the results of such study, advisory guidelines 
        incorporating best practices that Federal agencies may follow to 
        take such actions against such employees.

    (b) Agency Notification <<NOTE: Deadline.>>  Regarding 
Implementation of Guidelines.--Not later than 30 days after the issuance 
of guidelines under subsection (a), each Federal agency shall submit to 
the Speaker of the House of Representatives, the President pro tempore 
of the Senate, the Equal Employment Opportunity

[[Page 116 STAT. 571]]

Commission, and the Attorney General a written statement specifying in 
detail--
            (1) whether such agency has adopted and will fully follow 
        such guidelines;
            (2) if such agency has not adopted such guidelines; the 
        reasons for the failure to adopt such guidelines; and
            (3) if such agency will not fully follow such guidelines, 
        the reasons for the decision not to fully follow such guidelines 
        and an explanation of the extent to which such agency will not 
        follow such guidelines.

SEC. 205. CLARIFICATION OF REMEDIES.

    Consistent with Federal law, nothing in this title shall prevent any 
Federal employee, former Federal employee, or applicant for Federal 
employment from exercising any right otherwise available under the laws 
of the United States.

SEC. 206. <<NOTE: Deadlines.>>  STUDIES BY GENERAL ACCOUNTING OFFICE ON 
            EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT 
            OF CERTAIN DEPARTMENT OF JUSTICE COSTS.

    (a) Study on Exhaustion of Administrative Remedies.--
            (1) Study.--
                    (A) In general.--Not later than 180 days after the 
                date of enactment of this Act, the General Accounting 
                Office shall conduct a study relating to the effects of 
                eliminating the requirement that Federal employees 
                aggrieved by violations of any of the laws specified 
                under section 201(c) exhaust administrative remedies 
                before filing complaints with the Equal Employment 
                Opportunity Commission.
                    (B) Contents.--The study shall include a detailed 
                summary of matters investigated, information collected, 
                and conclusions formulated that lead to determinations 
                of how the elimination of such requirement will--
                          (i) expedite handling of allegations of such 
                      violations within Federal agencies and will 
                      streamline the complaint-filing process;
                          (ii) affect the workload of the Commission;
                          (iii) affect established alternative dispute 
                      resolution procedures in such agencies; and
                          (iv) affect any other matters determined by 
                      the General Accounting Office to be appropriate 
                      for consideration.
            (2) Report.--Not later than 90 days after completion of the 
        study required by paragraph (1), the General Accounting Office 
        shall submit to the Speaker of the House of Representatives, the 
        President pro tempore of the Senate, the Equal Employment 
        Opportunity Commission, and the Attorney General a report 
        containing the information required to be included in such 
        study.

    (b) Study on Ascertainment of Certain Costs of the Department of 
Justice in Defending Discrimination and Whistleblower Cases.--
            (1) Study.--Not later than 180 days after the date of 
        enactment of this Act, the General Accounting Office shall 
        conduct a study of the methods that could be used for, and the 
        extent of any administrative burden that would be imposed on, 
        the Department of Justice to ascertain the personnel and

[[Page 116 STAT. 572]]

        administrative costs incurred in defending in each case arising 
        from a proceeding identified under section 201(a) (1) and (2).
            (2) Report.--Not later than 90 days after completion of the 
        study required by paragraph (1), the General Accounting Office 
        shall submit to the Speaker of the House of Representatives and 
        the President pro tempore of the Senate a report containing the 
        information required to be included in the study.

    (c) Studies on Statutory Effects on Agency Operations.--
            (1) In general.--Not later than 18 months after the date of 
        enactment of this Act, the General Accounting Office shall 
        conduct--
                    (A) a study on the effects of section 201 on the 
                operations of Federal agencies; and
                    (B) a study on the effects of section 13 of the 
                Contract Disputes Act of 1978 (41 U.S.C. 612) on the 
                operations of Federal agencies.
            (2) Contents.--Each study under paragraph (1) shall include, 
        with respect to the applicable statutes of the study--
                    (A) a summary of the number of cases in which a 
                payment was made in accordance with section 2414, 2517, 
                2672, or 2677 of title 28, United States Code, and under 
                section 1304 of title 31, United States Code;
                    (B) a summary of the length of time Federal agencies 
                used to complete reimbursements of payments described 
                under subparagraph (A); and
                    (C) conclusions that assist in making determinations 
                on how the reimbursements of payments described under 
                subparagraph (A) will affect--
                          (i) the operations of Federal agencies;
                          (ii) funds appropriated on an annual basis;
                          (iii) employee relations and other human 
                      capital matters;
                          (iv) settlements; and
                          (v) any other matter determined by the General 
                      Accounting Office to be appropriate for 
                      consideration.
            (3) Reports.--Not later than 90 days after the completion of 
        each study under paragraph (1), the General Accounting Office 
        shall submit a report on each study, respectively, to the 
        Speaker of the House of Representatives, the President pro 
        tempore of the Senate, the Committee on Governmental Affairs of 
        the Senate, the Committee on Government Reform of the House of 
        Representatives, and the Attorney General.

    (d) Study on Administrative and Personnel Costs Incurred by the 
Department of the Treasury.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the General Accounting Office shall 
        conduct a study on the extent of any administrative and 
        personnel costs incurred by the Department of the Treasury to 
        account for payments made in accordance with section 2414, 2517, 
        2672, or 2677 of title 28, United States Code, and under section 
        1304 of title 31, United States Code, as a result of--
                    (A) this Act; and
                    (B) the Contracts Dispute Act of 1978 (41 U.S.C. 601 
                note; Public Law 95-563).
            (2) Report.--Not later than 90 days after the completion of 
        the study under paragraph (1), the General Accounting Office 
        shall submit a report on the study to the Speaker of the

[[Page 116 STAT. 573]]

        House of Representatives, the President pro tempore of the 
        Senate, the Committee on Governmental Affairs of the Senate, the 
        Committee on Government Reform of the House of Representatives, 
        and the Attorney General.

    TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE

SEC. 301. <<NOTE: Internet. Public information.>> DATA TO BE POSTED BY 
            EMPLOYING FEDERAL AGENCIES.

    (a) In General.--Each Federal agency shall post on its public Web 
site, in the time, form, and manner prescribed under section 303 (in 
conformance with the requirements of this section), summary statistical 
data relating to equal employment opportunity complaints filed with such 
agency by employees or former employees of, or applicants for employment 
with, such agency.
    (b) Content Requirements.--The data posted by a Federal agency under 
this section shall include, for the then current fiscal year, the 
following:
            (1) The number of complaints filed with such agency in such 
        fiscal year.
            (2) The number of individuals filing those complaints 
        (including as the agent of a class).
            (3) The number of individuals who filed 2 or more of those 
        complaints.
            (4) The number of complaints (described in paragraph (1)) in 
        which each of the various bases of alleged discrimination is 
        alleged.
            (5) The number of complaints (described in paragraph (1)) in 
        which each of the various issues of alleged discrimination is 
        alleged.
            (6) The average length of time, for each step of the 
        process, it is taking such agency to process complaints (taking 
        into account all complaints pending for any length of time in 
        such fiscal year, whether first filed in such fiscal year or 
        earlier). Average times under this paragraph shall be posted--
                    (A) for all such complaints,
                    (B) for all such complaints in which a hearing 
                before an administrative judge of the Equal Employment 
                Opportunity Commission is not requested, and
                    (C) for all such complaints in which a hearing 
                before an administrative judge of the Equal Employment 
                Opportunity Commission is requested.
            (7) The total number of final agency actions rendered in 
        such fiscal year involving a finding of discrimination and, of 
        that number--
                    (A) the number and percentage that were rendered 
                without a hearing before an administrative judge of the 
                Equal Employment Opportunity Commission, and
                    (B) the number and percentage that were rendered 
                after a hearing before an administrative judge of the 
                Equal Employment Opportunity Commission.
            (8) Of the total number of final agency actions rendered in 
        such fiscal year involving a finding of discrimination--

[[Page 116 STAT. 574]]

                    (A) the number and percentage involving a finding of 
                discrimination based on each of the respective bases of 
                alleged discrimination, and
                    (B) of the number specified under subparagraph (A) 
                for each of the respective bases of alleged 
                discrimination--
                          (i) the number and percentage that were 
                      rendered without a hearing before an 
                      administrative judge of the Equal Employment 
                      Opportunity Commission, and
                          (ii) the number and percentage that were 
                      rendered after a hearing before an administrative 
                      judge of the Equal Employment Opportunity 
                      Commission.
            (9) Of the total number of final agency actions rendered in 
        such fiscal year involving a finding of discrimination--
                    (A) the number and percentage involving a finding of 
                discrimination in connection with each of the respective 
                issues of alleged discrimination, and
                    (B) of the number specified under subparagraph (A) 
                for each of the respective issues of alleged 
                discrimination--
                          (i) the number and percentage that were 
                      rendered without a hearing before an 
                      administrative judge of the Equal Employment 
                      Opportunity Commission, and
                          (ii) the number and percentage that were 
                      rendered after a hearing before an administrative 
                      judge of the Equal Employment Opportunity 
                      Commission.
            (10)(A) Of the total number of complaints pending in such 
        fiscal year (as described in the parenthetical matter in 
        paragraph (6)), the number that were first filed before the 
        start of the then current fiscal year.
            (B) With respect to those pending complaints that were first 
        filed before the start of the then current fiscal year--
                    (i) the number of individuals who filed those 
                complaints, and
                    (ii) the number of those complaints which are at the 
                various steps of the complaint process.
            (C) Of the total number of complaints pending in such fiscal 
        year (as described in the parenthetical matter in paragraph 
        (6)), the total number of complaints with respect to which the 
        agency violated the requirements of section 1614.106(e)(2) of 
        title 29 of the Code of Federal Regulations (as in effect on 
        July 1, 2000, and amended from time to time) by failing to 
        conduct within 180 days of the filing of such complaints an 
        impartial and appropriate investigation of such complaints.

    (c) Timing and Other Requirements.--
            (1) Current year data.--Data posted under this section for 
        the then current fiscal year shall include both--
                    (A) interim year-to-date data, updated quarterly, 
                and
                    (B) final year-end data.
            (2) Data for prior years.--The data posted by a Federal 
        agency under this section for a fiscal year (both interim and 
        final) shall include, for each item under subsection (b), such 
        agency's corresponding year-end data for each of the 5 
        immediately preceding fiscal years (or, if not available for all 
        5 fiscal years, for however many of those 5 fiscal years for 
        which data are available).

[[Page 116 STAT. 575]]

SEC. 302. <<NOTE: Internet. Public information.>> DATA TO BE POSTED BY 
            THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

    (a) In General.--The Equal Employment Opportunity Commission shall 
post on its public Web site, in the time, form, and manner prescribed 
under section 303 for purposes of this section, summary statistical data 
relating to--
            (1) hearings requested before an administrative judge of the 
        Commission on complaints described in section 301, and
            (2) appeals filed with the Commission from final agency 
        actions on complaints described in section 301.

    (b) Specific Requirements.--The data posted under this section 
shall, with respect to the hearings and appeals described in subsection 
(a), include summary statistical data corresponding to that described in 
paragraphs (1) through (10) of section 301(b), and shall be subject to 
the same timing and other requirements as set forth in section 301(c).
    (c) Coordination.--The data required under this section shall be in 
addition to the data the Commission is required to post under section 
301 as an employing Federal agency.

SEC. 303. RULES.

    The Equal Employment Opportunity Commission shall issue any rules 
necessary to carry out this title.

    Approved May 15, 2002.

LEGISLATIVE HISTORY--H.R. 169:
---------------------------------------------------------------------------

HOUSE REPORTS: No. 107-101, Pt. 1 (Comm. on the Judiciary).
SENATE REPORTS: No. 107-143 (Comm. on Governmental Affairs).
CONGRESSIONAL RECORD, Vol. 147 (2001):
            Oct. 2, considered and passed House.
            Apr. 23, considered and passed Senate, amended.
            Apr. 30, House concurred in Senate amendments.

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