[Senate Report 114-300]
[From the U.S. Government Publishing Office]
Calendar No. 556
114th Congress } { Report
SENATE
2d Session } { 114-300
_______________________________________________________________________
FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2015
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 1557
TO AMEND THE NOTIFICATION AND FEDERAL EMPLOYEE
ANTIDISCRIMINATION AND RETALIATION ACT OF 2002 TO
STRENGTHEN FEDERAL ANTIDISCRIMINATION LAWS ENFORCED
BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND
EXPAND ACCOUNTABILITY WITHIN THE FEDERAL GOVERNMENT, AND FOR OTHER
PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
July 12, 2016.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
59-010 WASHINGTON : 2016
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Daniel P. Lips, Policy Director
Gabrielle A. Batkin, Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Mary Beth Schultz, Minority Chief Counsel
Katherine C. Sybenga, Minority Chief Counsel for Governmental Affairs
Laura W. Kilbride, Chief Clerk
Calendar No. 556
114th Congress } { Report
SENATE
2d Session } { 114-300
======================================================================
FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2015
_______
July 12, 2016.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 1557]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 1557), to amend
the Notification and Federal Employee Anti-discrimination and
Retaliation Act of 2002 to strengthen Federal administration
laws enforced by the Equal Employment Opportunity Commission
and expand accountability within the Federal government, and
for other purposes, having considered the same, reports
favorably thereon with an amendment in the nature of a
substitute and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
IV. Section-by-Section Analysis......................................6
V. Evaluation of Regulatory Impact..................................8
VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Act, as Reported.............9
I. Purpose and Summary
The purpose of H.R. 1557, the Federal Employee
Antidiscrimination Act of 2015, is to amend Federal laws to
strengthen Equal Employment Opportunity Protections for Federal
employees, strengthen prohibitions against discrimination and
retaliation against whistleblowers within the Federal workforce
and to ensure Federal agencies and supervisors that violate the
law are held accountable.
II. Background and the Need for Legislation
Federal Equal Employment Opportunity (EEO) programs, which
are required to identify and eliminate barriers to equal
opportunity, are vital to ensuring that Federal workplaces
provide the same guarantee of equal opportunity that is
required of other employers across the country. Federal
employees or applicants for employment in the Federal
Government who believe they have been discriminated against can
bring a complaint to their agency's EEO program, which
investigates these complaints. The Equal Employment Opportunity
Commission (EEOC) has released standards of a model EEO program
that Federal agencies should follow. However, some Federal
agencies' EEO programs have not met these standards.
Federal law prohibits discrimination against Federal
employees in their workplace, including against job applicants
and employees based on the ``person's race, color, religion,
sex (including pregnancy), national origin, age (40 or older),
disability or genetic information.''\1\
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\1\U.S. Equal Employment Opportunity Commission, About (Feb. 9,
2016), available at http://www.eeoc.gov/eeoc/.
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In addition to prohibiting discrimination, Federal law
prohibits retaliation against whistleblowers.\2\ Whistleblowers
remain a vital source of public accountability within the
Federal workforce. Federal employees who courageously step
forward to report instances of waste, fraud, abuse and
criminality within the Federal Government help ensure that the
Executive Branch is held accountable and assist the Congress
with its constitutional responsibility to conduct oversight.
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\2\5 U.S.C. Sec. 2302.
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Whistleblowers can identify problems that lead to reforms
that improve Federal agencies' performance and yield cost
savings for taxpayers. For example, the Office of Special
Counsel (OSC) reported that whistleblowers identifying problems
within the Department of Homeland Security resulted in $100
million in annual savings.\3\
---------------------------------------------------------------------------
\3\Nomination of Michael J. Missal to be Inspector General, U.S.
Department of Veterans Affairs, and the Honorable Carolyn N. Lerner to
be Special Counsel, Office of Special Counsel: Hearing Before the S.
Comm. on Homeland Sec. & Governmental Affairs 3, 114th Cong. (2016)
(statement of Carolyn Lerner, Special Counsel, Office of Special
Counsel), available at http://www.hsgac.senate.gov/hearings/nomination-
of-carolyn-lerner-to-be-special-counsel-of-the-office-of-special-
counsel-and-michael-missal-to-be-inspector-general-of-the-department-
of-veterans-affairs.
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Whistleblowers also may report instances of wrongdoing and
criminality that have life and death consequences. Our nation's
veterans have earned the right to the finest health care
possible due to their service on behalf of the country. But in
some cases, Department of Veterans Affairs' (VA) centers are
not providing the highest standard of care, and whistleblowers
have come forward to highlight abuses. For example, through an
investigation and several hearings,\4\ the Committee learned
about allegations of significant wrongdoing that occurred at
the VA Medical Center in Tomah, Wisconsin. Several employees of
the facility presented concerns to VA management, the Office of
Inspector General, or their VA union representatives about
overmedication that was occurring at the facility.\5\ The VA's
alleged retaliation against these whistleblowers also had
serious consequences. For example, in testimony before the
Committee, Dr. Christopher Kirkpatrick's brother Sean
Kirkpatrick testified that Dr. Kirkpatrick was a psychologist
and whistleblower at the Tomah VA facility.\6\ Mr. Kirkpatrick
testified that he believed his brother was fired after raising
questions about the large number of narcotics prescribed to
patients there, and committed suicide later that same day.\7\
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\4\See, e.g., Improving VA Accountability: Examining First-Hand
Accounts of Department of Veterans Affairs Whistleblowers: Hearing
Before the Comm. on Homeland Sec. & Governmental Affairs, 114th Cong.
(2015), available at http://www.hsgac.senate.gov/hearings/improving-va-
accountability-examining-first-hand-accounts-of-department-of-veterans-
affairs-whistleblowers [hereinafter Improving VA Accountability]; Tomah
VAMC: Examining Quality, Access, and a Culture of Overreliance on High-
Risk Medications: Joint Field Hearing Before the Comm. of Homeland Sec.
& Governmental Affairs and the H. Comm. on Veterans' Affairs, 114th
Cong. (2015), available at http://www.hsgac.senate.gov/hearings/joint-
field-hearing-tomah-vamc-examining-quality-access-and-a-culture-of-
overreliance-on-high-risk-medications [hereinafter Tomah VAMC].
\5\Tomah VAMC at 2-3 (statement of Noelle Johnson); id. at 2
(statement of Ryan Honl); id. at 1 (statement of Heather Simcakoski);
see also Improving VA Accountability at 2 (statement of Sean
Kirkpatrick).
\6\Improving VA Accountability (statement of Sean Kirkpatrick).
\7\Id.
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Retaliation against whistleblowers has been particularly
concerning in recent years at the VA. Special Counsel Lerner
has publicly questioned the VA's handling of whistleblower
complaints, stating that ``it is clear that the workplace
culture in many VA facilities is hostile to whistleblowers and
actively discourages them from coming forward with what is
often critical information.''\8\ Indeed, OSC ``has seen a sharp
increase in the number of whistleblower cases from VA
employees.''\9\ VA cases averaged only 20 percent of all cases
in 2009, 2010, and 2011.\10\ As of September 2015, the
proportion of prohibited personnel practice complaints made to
OSC by VA employees was approximately 35 percent of all the
complaints received by OSC across the Federal Government.\11\
To put this number in context, 2014 was the first year on
record that cases filed with OSC by VA employees surpassed
those by Department of Defense (DoD) employees, despite the
fact that the DoD has two times more civilian employees than
the VA.\12\ The recent increase of whistleblower complaints
coming from the VA has forced OSC to reallocate staff and
resources and prioritize VA cases through an expedited review
process.\13\
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\8\VA Whistleblowers: Exposing Inadequate Service Provided to
Veterans and Ensuring Appropriate Accountability: Hearing Before the H.
Comm. on Veterans' Affairs, 113th Cong. (2014) (statement of Carolyn
Lerner, Special Counsel, Office of Special Counsel), available at
http://veterans.house.gov/hearing/va-whistleblowers-exposing-
inadequate-service-provided-to-veterans-and-ensuring-appropriate.
\9\Improving VA Accountability at 1 (statement of Carolyn Lerner,
Special Counsel, Office of Special Counsel).
\10\Addressing Continued Whistleblower Retaliation Within VA:
Hearing Before H. Comm. on Veterans' Affairs, Subcomm. On Oversight &
Investigations 1, 114th Cong. (2015) (statement of Carolyn Lerner,
Special Counsel, Office of Special Counsel), available at http://
veterans.house.gov/hearing/addressing-continued-whistleblower-
retaliation-within-va.
\11\Improving VA Accountability at 2 (statement of Carolyn Lerner,
Special Counsel, Office of Special Counsel).
\12\Id. at 2.
\13\Id.
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Unfortunately, the problem of retaliation against
whistleblowers is not unique to the VA. In 2015, the Committee
heard testimony from whistleblowers who served with the United
States Army, United States Immigration and Customs Enforcement,
the Social Security Administration, and United States Customs
and Border Protection.\14\ Each described the challenges and
retaliation they believed they experienced from their agencies
after blowing the whistle on agency wrongdoing.\15\
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\14\Blowing the Whistle on Retaliation: Accounts of Current and
Former Federal Agency Whistleblowers: Hearing Before the S. Comm. on
Homeland Sec. & Governmental Affairs, 114th Cong. (2015) (statement of
Chairman Ron Johnson), available at http://www.hsgac.senate.gov/
hearings/blowing-the-whistle-on-retaliation-accounts-of-current-and-
former-federal-agency-whistleblowers [hereinafter Blowing the Whistle
on Retaliation].
\15\Id.
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Congress passed the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) to
strengthen laws prohibiting discriminatory or retaliatory acts
against Federal employees, including by creating new reporting
requirements to inform employees of their rights.\16\ The No
FEAR Act also made Federal agencies directly financially
accountable for violations of antidiscrimination and
whistleblower protections.\17\
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\16\Pub. L. No. 107-174, 107th Cong., (2002).
\17\Id.
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However, the No FEAR Act of 2002 did little to hold
supervisors or other employees directly accountable for
violating retaliation and discrimination laws. The law does not
require discipline against employees judged to have committed
acts of discrimination or retaliation, even though employees
may not come forward without a belief that their disclosure
will be heard and make a difference. As explained by the Legal
Director of the Government Accountability Project, ``[e]very
academic or government study has concluded that the primary
motivating, or chilling factor for would-be whistleblowers is
whether they can make a difference by bearing witness.''\18\
Unfortunately, only 61 percent of Federal employees have
confidence that they can blow the whistle without facing
reprisal.\19\ OSC has raised concerns about the inconsistent
use of discipline at the VA, in particular. In testimony before
this Committee, Special Counsel Lerner noted numerous examples
of the VA failing to discipline officials found responsible for
posing significant risks to public health and safety or
engaging in other misconduct.\20\ Special Counsel Lerner added
that this lack of discipline ``stand[s] in stark contrast to
disciplinary actions taken against VA whistleblowers . . . for
minor indiscretions or for activity directly related to the
employee's whistleblowing.''\21\
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\18\Blowing the Whistle on Retaliation (statement of Thomas M.
Devine, Legal Director, Government Accountability Project).
\19\Office of Personnel Mgmt., Federal Employee Viewpoint Survey
Results, Governmentwide Management Report 28 (2016) available at http:/
/www.fedview.opm.gov/2015FILES/2015_FEVS_Gwide_Final_Report.PDF.
\20\Improving VA Accountability at 5-6 (statement of Carolyn
Lerner, Special Counsel, Office of Special Counsel).
\21\Id. at 6.
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Special Counsel Lerner testified to the Committee that the
OSC was projected to receive 4,000 Government-wide prohibited
personnel practice complaints in 2015, which include many
whistleblower retaliation complaints.\22\ The EEOC, the Federal
agency responsible for enforcing Federal employment
discrimination laws, says 14,343 Federal employees and
applicants filed 15,013 complaints alleging employment
discrimination during fiscal year (FY) 2014.\23\ In the same
year, agencies paid $44.8 million in monetary awards to
complainants.\24\
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\22\Id. at 2, 4.
\23\United States Equal Employment Opportunity Commission, Office
of Federal Operations, Annual Report on the Federal Workforce Part I,
EEO Complaints Processing, Fiscal Year 2014 (Dec. 15, 2015), available
at http://www.eeoc.gov/federal/reports/fsp2014/upload/Final-FY-2014-
Annual-Report-Part-I.pdf.
\24\Id.
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Additional measures to prevent retaliation against
whistleblowers and discrimination against Federal employees are
needed to protect Federal employees who report wrongdoing or
illegality within the Federal Government or experience
discrimination in the workplace.
H.R. 1557 would require Federal agencies to adopt best
practices to manage their EEO programs. It would also
strengthen transparency and accountability for discrimination
and retaliation at Federal agencies. First, the bill updates
the sense of the Congress of the No FEAR Act to stress the need
for agencies to take appropriate disciplinary action against
Federal employees who have been found to have committed
discriminatory or retaliatory acts. As amended, the bill
enforces this Sense of Congress by requiring a suspension of
not less than 12 days for a first offense and removal for a
second offense for employees found to have committed a
discriminatory or retaliatory act. In these cases, Federal
employees facing disciplinary action related to an alleged act
of retaliation or discrimination are still afforded rights
under Federal law to appeal the judgment.
The bill also aims to reduce discrimination and retaliation
by mandating new transparency and reporting requirements for
Federal agencies to disclose EEOC findings of discrimination,
including through public reporting on agency websites. H.R.
1557 also creates other new rules for agencies, such as
requiring a tracking system for complaints alleging
discriminatory acts and requiring that agency EEO program
offices not be controlled by agency general counsel or human
capital offices.
The Committee also amended the legislation to remove a
provision requiring the head of each Federal agency's EEO
program to report directly to the head of the agency. This
provision was removed to grant agencies and their Congressional
authorizers flexibility to determine how best to organize the
agency's management and reporting structure for these offices.
The bill also creates a new whistleblower protection. It
amends Federal law to prohibit the implementation or
enforcement of nondisclosure agreements that would limit an
employee's ability to disclose certain information to OSC, the
Office of Inspector General, or Congress.
III. Legislative History
Representative Elijah E. Cummings of Maryland introduced
H.R. 1557, the Federal Employee Antidiscrimination Act, on
March 24, 2015. The Committee on Oversight and Government
Reform in the House of Representatives favorably reported the
bill on March 25, 2015. On a motion to suspend the rules and
pass, the House of Representatives passed H.R. 1557 by a vote
of 403 to 0.
H.R. 1557 was referred to the Senate Committee on Homeland
Security and Governmental Affairs on July 22, 2015. The
Committee considered H.R. 1557 at a business meeting on
December 9, 2015.
During the business meeting, Chairman Ron Johnson offered a
substitute amendment that was adopted by unanimous consent. The
substitute amendment included two substantive changes. First,
the amendment struck section 403 of the act that would have
required the head of each agency's EEO program to report
directly to the head of the agency. Second, the amendment
modified the original section 404 to codify the current
memorandum of understanding between the EEOC and the OSC
regarding referrals of EEOC findings. The amendment clarifies
that the EEOC may refer findings to OSC if the Commission
determines that the Federal agency did not take appropriate
action. The amendment made other technical and conforming
changes.
Senator James Lankford offered an amendment adding a new
provision to the act to require that agencies discipline
supervisors found to have discriminated or retaliated against
whistleblowers: for the first offense, not less than a 12-day
suspension, and for the second offense, removal. The amendment
also includes a process for notifying an employee of these
disciplinary actions, and allows a two-week period when the
employee can appeal the action. The amendment was adopted by
voice vote with Senators Johnson, Portman, Lankford, Ayotte,
Ernst, Carper, Tester, Baldwin, and Booker present.
H.R. 1557, as amended by both the Johnson and Lankford
amendments, was approved by voice vote with Senators Johnson,
Portman, Lankford, Ayotte, Ernst, Carper, Tester, Baldwin, and
Booker present.
IV. Section-by-Section Analysis of the Act, as Reported
Section 1. Short title
This section establishes the short title of the Act as the
``Federal Employee Antidiscrimination Act of 2015.''
Section 2. Sense of the Congress
This section amends the No FEAR Act of 2002 by updating the
sense of the Congress. Specifically, the section states that
``accountability in the enforcement of Federal employee rights
is furthered when agencies take appropriate disciplinary action
against Federal employees who have been found to have committed
discriminatory or retaliatory acts.'' The section further
amends the existing sense of the Congress to reiterate that
Federal agencies should not violate employees' due process
rights while enforcing new accountability measures.
Section 3. Notification of violation
This section amends Section 202 of the No FEAR Act to
require that agencies publicly report an EEOC finding of
discrimination or retaliation on their website for at least one
year. The notification shall include information about the
finding, including the law or laws violated by the
discriminatory or retaliatory act or acts. The notification
shall also advise employees of their rights.
Section 4. Reporting requirements
This section mandates that forms required by the No FEAR
Act be submitted in an electronic format. The section also
requires the agency to report to the EEOC on whether
disciplinary actions have been initiated against a Federal
employee as a result of a finding of discrimination or
retaliation.
Section 5. Data to be posted by employing Federal agencies
This section amends the No FEAR Act to expand what data
must be reported on agency websites regarding findings of
discrimination or retaliation. Data must now include the date
of the finding, the affected agency, the law violated, and
whether a decision has been made regarding necessary
disciplinary actions as a result of the finding. The section
also requires reporting on data pertaining to class action
complaints filed against Federal agencies.
Section 6. Data to be posted by the Equal Employment Opportunity
Commission
This section amends the No FEAR Act to apply the reporting
requirements amended by Section 5 to the EEOC.
Section 7. Notification and Federal Employee Antidiscrimination and
Retaliation Act amendments
This section makes several changes to the NO FEAR Act.
First, it requires Federal agencies to establish a system for
tracking discrimination complaints and the outcomes of the
complaints. Second, it requires that a Federal agency make a
notation in an employee's personnel record if the employee has
been found to commit an act of discrimination or retaliation
after all appeals have been exhausted. Third, it requires that
each Federal agency is responsible for establishing a model EEO
program that is not under the control of a Human Capital or
General Counsel office, is devoid of internal conflicts of
interest, and ensures the efficient and fair resolution of
complaints alleging discrimination or retaliation. Human
Capital and General Counsel offices may still provide advice or
counsel to Federal agency personnel in the processing or
resolution of a complaint, including providing legal
representation to an agency in any proceeding.
Finally, the No FEAR Act is amended to establish a process
for EEOC referrals to OSC. The EEOC may refer matters to OSC if
it determines that the Federal agency did not take appropriate
action. The EEOC must include information about the number of
these referrals in its annual report. The OSC must accept and
review referrals from the EEOC and notify the EEOC in a case
that it initiates disciplinary action. It clarifies that
agencies may not initiate disciplinary actions against an
employee for an alleged act of discrimination or retaliation
while the matter is referred to the OSC.
Section 8. Non-disclosure agreements limitation
This section prohibits agencies from implementing or
enforcing any nondisclosure policy, form, or agreement, if such
policy, form, or agreement prohibits or restricts an employee
from disclosing to Congress, the OSC, or an Office of Inspector
General any information that relates to any violation of any
law, rule, or regulation, or mismanagement, a gross waste of
funds, an abuse of authority, or a substantial, and specific
danger to public health or safety, or any other whistleblower
protections.
Section 9. Discipline of supervisors based on retaliation against
whistleblowers or discrimination
This section requires that supervisors be disciplined based
on discrimination or retaliation against whistleblowers. The
head of an agency is required to propose a disciplinary action
against a supervisor who is determined to have committed a
prohibited personnel action, including discrimination or
retaliation, by the head of that agency, an administrative law
judge, the Merit System Protection Board, OSC, an adjudicating
body provided under a union contract, a Federal judge, or the
inspector general of the agency. The disciplinary action must
be at least a 12-day suspension for the first offense and
removal for the second offense. It establishes a process for
supervisors to be notified and to respond to the proposed
disciplinary action.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
January 8, 2016.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1557, the Federal
Employee Antidiscrimination Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall.
Enclosure.
H.R. 1557--Federal Employee Antidiscrimination Act of 2015
H.R. 1557 would amend the Notification and Federal Employee
Antidiscrimination and Retaliation Act to expand the current
process used to investigate and resolve federal employees'
claims of discrimination by other federal employees. The act
also would expand the amount of information that must be
reported and made available concerning such discrimination
cases.
Based on information from the Office of Personnel
Management and the U.S. Equal Employment Opportunity
Commission, most of the provisions in the act would expand
current policies and practices of the federal government.
Currently, the federal government, through laws, regulations,
and agency policies, prohibits discrimination in all phases of
employment. CBO expects that under the act there would be some
minor additional costs for agencies to track and report
discriminatory acts and to notify the public of violations of
antidiscrimination laws. However, CBO estimates that
implementing H.R. 1557 would increase federal administrative
costs by less than $500,000 annually; such spending would be
subject to the availability of appropriated funds.
Enacting H.R. 1557 could affect direct spending by some
agencies (such as the Tennessee Valley Authority) because they
are authorized to use receipts from the sale of goods, fees,
and other collections to cover their operating costs.
Therefore, pay-as-you-go procedures apply. Because most of
those agencies can make adjustments to the amounts collected,
CBO estimates that any net changes in direct spending by those
agencies would not be significant. Enacting the legislation
would not affect revenues.
CBO estimates that enacting H.R. 1557 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2026.
H.R. 1557 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
On May 8, 2015, CBO transmitted a cost estimate for H.R.
1557, as ordered reported by the House Committee on Oversight
and Government Reform on March 25, 2015. The two pieces of
legislation are similar and CBO's estimates of their costs are
the same.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Act, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the Act, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
SECTION 2301. MERIT SYSTEM PRINCIPLES
* * * * * * *
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION
ACT OF 2002
SEC. 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
* * * * * * *
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
Sec. 201. Reimbursement Requirement.
* * * * * * *
Sec. 207. Complaint tracking.
Sec. 208. Notation in personnel record.
* * * * * * *
TITLE IV--PROCESSING AND REFERRAL
Sec. 401. Processing and resolution of complaints.
Sec. 402. No limitation on Human Capital or General Counsel advice.
Sec. 403. Referrals of findings of discrimination.
* * * * * * *
TITLE I--GENERAL PROVISIONS
SEC. 101. * * *
SEC. 102. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) * * *
(2) * * *
(3) * * *
[(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;]
(4) accountability in the enforcement of Federal
employee rights is furthered when Federal agencies take
appropriate disciplinary action against Federal
employees who have been found to have committed
discriminatory or retaliatory acts;
(5)
(A) [nor is accountability] but
accountability is not furthered if Federal
agencies react to the increased accountability
under this Act for what by law the agency is
responsible 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
* * * * * * *
TITLE II--FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
SEC. 201. * * *
SEC. 202. NOTIFICATION REQUIREMENT.
(a) * * *
* * * * * * *
(d) Notification of Final Agency Action.--
(1) Not later than 30 days after a Federal agency
takes final action or the Equal Employment Opportunity
Commission issues an appellate decision involving a
finding of discrimination or retaliation prohibited by
a provision of law covered by paragraphs (1) or (2) of
section 201(a), as applicable, the head of the Federal
agency subject to the finding shall provide notice for
at least 1 year on the Federal agency's Internet Web
site in a clear and prominent location linked directly
from the Federal agency's Internet home page stating
that a finding of discrimination or retaliation has
been made.
(2) The notification shall identify the date the
finding was made, the date or dates on which the
discriminatory or retaliatory act or acts occurred, and
the law or laws violated by the discriminatory or
retaliatory act or acts. The notification shall also
advise Federal employees of the rights and protections
available under the respective provisions of law
covered by paragraphs (1) or (2) of section 201(a).
SEC. 203. REPORTING REQUIREMENTS.
(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 Homeland Security and Governmental Affairs of the
Senate, the Committee on Oversight and 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 (in an electronic format prescribed by the Office of
Personnel Management) which shall include, with respect to the
fiscal year----
* * * * * * *
(c) Disciplinary Action Report.--Not later than 60 days
after the date on which a Federal agency takes final action or
a Federal agency receives an appellate decision issued by the
Equal Employment Opportunity Commission involving a finding of
discrimination or retaliation in violation of a provision of
law covered by paragraphs (1) or (2) of section 201(a), as
applicable, the employing Federal agency shall submit to the
Commission a report stating whether disciplinary action has
been initiated against a Federal employee as a result of the
violation.
* * * * * * *
SEC. 207. COMPLAINT TRACKING.
Not later than 1 year after the date of enactment of the
Federal Employee Antidiscrimination Act of 2015, each Federal
agency shall establish a system to track each complaint of
discrimination arising under section 2302(b)(1) of title 5,
United States Code, and adjudicated through the Equal
Employment Opportunity process from inception to resolution of
the complaint, including whether a decision has been made
regarding necessary disciplinary action as the result of a
finding of discrimination.
SEC. 208. NOTATION IN PERSONNEL RECORD.
If a Federal agency takes an adverse action covered under
section 7512 of title 5, United States Code, against an
employee for an act of discrimination or retaliation prohibited
by a provision of law covered by paragraphs (1) or (2) of
section 201(a), the Federal agency shall, after all appeals
relating to such action have been exhausted, include a notation
of the adverse action and the reason for the action in the
employee's personnel record.
TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE
SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.
(a) * * *
(b) Content Requirements.--The data posted by a Federal
agency under this section shall include, for the then current
fiscal year, the following:
(1) * * *
* * * * * * *
(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[.],
and
(C) for each such finding counted under
subparagraph (A), the agency shall specify--
(i) the date of the finding,
(ii) the affected Federal agency,
(iii) the law violated, and
(iv) whether a decision has been made
regarding necessary disciplinary action
as a result of the finding.
(10) * * *
(11) Data regarding each class action complaint filed
against the Federal agency alleging discrimination or
retaliation, including--
(A) information regarding the date on which
each complaint was filed,
(B) a general summary of the allegations
alleged in the complaint,
(C) an estimate of the total number of
plaintiffs joined in the complaint if known,
(D) the current status of the complaint,
including whether the class has been certified,
and
(E) the case numbers for the civil actions in
which discrimination or retaliation has been
found.
* * * * * * *
SEC. 302. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION.
(a) * * *
(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)] (11) of section 301(b), and shall be subject to the same
timing and other requirements as set forth in section 301(c).
* * * * * * *
TITLE IV--PROCESSING AND REFERRAL
SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.
Each Federal agency is responsible for the fair, impartial
processing and resolution of complaints of employment
discrimination and retaliation arising in the Federal
administrative process and shall establish a model Equal
Employment Opportunity Program that--
(1) is not under the control, either structurally or
practically, of a Human Capital or General Counsel
office;
(2) is devoid of internal conflicts of interest and
ensures fairness and inclusiveness within the
organization; and
(3) ensures the efficient and fair resolution of
complaints alleging discrimination or retaliation.
SEC. 402. NO LIMITATION ON HUMAN CAPITAL OR GENERAL COUNSEL ADVICE.
Nothing in this title shall prevent a Federal agency's
Human Capital or General Counsel office from providing advice
or counsel to agency personnel on the processing and resolution
of a complaint, including providing legal representation to an
agency in any proceeding.
SEC. 403. REFERRALS OF FINDINGS OF DISCRIMINATION.
(a) EEOC Findings of Discrimination.--Not later than 30
days after the Equal Employment Opportunity Commission issues
an appellate decision involving a finding of discrimination or
retaliation within a Federal agency the Commission shall refer
the matter to the Office of Special Counsel, if the Commission
determines that the Federal agency did not take appropriate
action. The Commission shall include the number and a brief
summary of such referrals in the Annual Report on the Federal
Workforce of the Commission.
(b) Referrals to Special Counsel.--The Office of Special
Counsel shall accept and review a referral from the Commission
under subsection (a) for purposes of seeking disciplinary
action under its authority against an Federal employee who
commits an act of discrimination or retaliation.
(c) Notification.--The Office of Special Counsel shall
notify the Commission in a case in which the Office of Special
Counsel initiates disciplinary action.
(d) Special Counsel Approval.--An agency may not take
disciplinary action against a Federal employee for an alleged
act of discrimination or retaliation referred by the Commission
under this section except in accordance with the requirements
of section 1214(f) of title 5, United States Code.
* * * * * * *
SEC. 2302. PROHIBITED PERSONNEL PRACTICES.
(a) * * *
(b) * * *
(1) * * *
(13) [implement]
(A) implement or enforce any nondisclosure
policy, form, or agreement, if such policy,
form, or agreement does not contain the
following statement: ``These provisions are
consistent with and do not supersede, conflict
with, or otherwise alter the employee
obligations, rights, or liabilities created by
existing statute or Executive order relating to
(1) classified information, (2) communications
to Congress, (3) the reporting to an Inspector
General or the Office of Special Counsel of a
violation of any law, rule, or regulation, or
mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific
danger to public health or safety, or (4) any
other whistleblower protection. The
definitions, requirements, obligations, rights,
sanctions, and liabilities created by
controlling Executive orders and statutory
provisions are incorporated into this agreement
and are controlling[.]; or
(B) implement or enforce any nondisclosure
policy, form, or agreement, if such policy,
form, or agreement prohibits or restricts an
employee from disclosing to Congress, the
Office of Special Counsel, or an Office of the
Inspector General any information that relates
to any violation of any law, rule, or
regulation, or Mismanagement, a gross waste of
funds, an abuse of authority, or a substantial,
and specific danger to public health or safety,
or any other whistleblower protection.
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
* * * * * * *
Subchapter II--Removal, Suspension for More Than 14 Days, Reduction in
Grade or Pay, or Furlough for 30 Days or Less
* * * * * * *
SEC. 7515. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION AGAINST
WHISTLEBLOWERS OR DISCRIMINATION.
(a) Definitions.--In this section--
(1) The term `agency' has the meaning given that term
under section 2302;
(2) The term `prohibited personnel action' means--
(A) taking or failing to take an action in
violation of paragraph (1), (8), or (9) of
section 2302(b) against an employee of the
agency; or
(B) accessing the medical records of another
employee for the purpose of retaliation for a
disclosure or activity protected under
paragraphs (8) or (9) of subsection 2302(b);
and
(C) the term `supervisor' means a supervisor,
as defined under section 7104(a), who is
employed by an agency, as defined under
paragraph (1) of this subsection.
(b) Proposed Adverse Actions.--
(1) In general.--In accordance with paragraph (2),
the head of an agency shall propose against a
supervisor whom the head of that agency, an
administrative law judge, the Merit Systems Protection
Board, the Office of Special Counsel, the Equal
Employment Opportunity Commission, an adjudicating body
provided under a union contract, a Federal judge, or
the Inspector General of the agency determines
committed a prohibited personnel action the following
adverse actions:
(A) With respect to the first prohibited
personnel action, an adverse action that is not
less than a 12-day suspension.
(B) With respect to the second prohibited
personnel action, removal.
(2) Procedures.--
(A) Notice.--A supervisor against whom an
adverse action under paragraph (1) is proposed
is entitled to written notice.
(B) Answer and evidence.--
(i) In general.--A supervisor is
notified under subparagraph (A) that
the supervisor is the subject of a
proposed adverse action under paragraph
(1) is entitled to 14 days following
the notification to answer and furnish
evidence in support of the answer.
(ii) No evidence.--After the end of
the 14-day period described in clause
(i), if a supervisor does not furnish
evidence as described in clause (i) or
if the head of the agency determines
that such evidence is not sufficient to
reverse the proposed adverse action,
the head of the agency shall carry out
the adverse action.
(C) Scope of procedures.--Paragraphs (1) and
(2) of subsection (b) of section 7513,
subsection (c) of such section, paragraphs (1)
and (2) of subsection (b) of section 7543, and
subsection (c) of such section shall not apply
with respect to an adverse action carried out
under this subsection.
(c) Limitations on Other Adverse Actions.--With respect to
a prohibited personnel action, if the head of the agency
carries out an adverse action against a supervisor under
another provision of law, the head of the agency may carry out
an additional adverse action under this section based on the
same prohibited personnel action.
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