[Senate Report 116-176]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 330


116th Congress   }                                           {   Report
                                    SENATE                          
1st Session      }                                           {   116-176

_______________________________________________________________________

                                     

                                                       


            FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2019

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                H.R. 135

             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
                                




               December 16, 2019.--Ordered to be printed
               
                           ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
 99-010                WASHINGTON : 2019              
 
 
 
               
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri

                Gabrielle D'Adamo Singer, Staff Director
                   Joseph C. Folio III, Chief Counsel
 Courtney Allen Rutland, Deputy Chief Counsel for Governmental Affairs
               David M. Weinberg, Minority Staff Director
               Zachary I. Schram, Minority Chief Counsel
          Yelena L. Tsilker Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
                     
                     

                                                       Calendar No. 330
                                                       
                                                       
116th Congress    }                                            {   Report
                                 SENATE
 1st Session      }                                            {  116-176

======================================================================



 
            FEDERAL EMPLOYEE ANTIDISCRIMINATION ACT OF 2019

                                _______
                                

               December 16, 2019.--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. 135]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 135) to amend the 
Notification and Federal Employee Anti-discrimination 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, 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 the Need for Legislation..........................2
III. Legislative History..............................................5
 IV. Section-by-Section Analysis......................................5
  V. Evaluation of Regulatory Impact..................................7
 VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Act, as Reported.............8

                         I. Purpose and Summary

    The purpose of H.R. 135, the Federal Employee 
Antidiscrimination Act of 2019, is to amend Federal law to 
strengthen Equal Employment Opportunity Protections for Federal 
employees, strengthen prohibitions against discrimination and 
retaliation against whistleblowers within the Federal workforce 
and ensure Federal agencies and employees that violate the law 
are held accountable.\1\
---------------------------------------------------------------------------
    \1\On July 12, 2016, the Committee approved H.R. 1557, Federal 
Employee Antidiscrimination Act of 2015. That bill is substantially 
similar to H.R. 135. Accordingly, this committee report is in large 
part a reproduction of Chairman Johnson's committee report for H.R. 
1557, S. Rep. No. 114-300.
---------------------------------------------------------------------------

              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.''\2\
---------------------------------------------------------------------------
    \2\U.S. Equal Employment Opportunity Commission, About (Feb. 9, 
2016), available at http://www.eeoc.gov/eeoc/.
---------------------------------------------------------------------------
    In addition to prohibiting discrimination, Federal law 
prohibits retaliation against whistleblowers.\3\ 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.
---------------------------------------------------------------------------
    \3\5 U.S.C. Sec. 2302.
---------------------------------------------------------------------------
    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.\4\
---------------------------------------------------------------------------
    \4\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.
---------------------------------------------------------------------------
    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 in the 114th Congress,\5\ 
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.\6\ 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.\7\ 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.\8\
---------------------------------------------------------------------------
    \5\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].
    \6\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).
    \7\Improving VA Accountability (statement of Sean Kirkpatrick).
    \8\Id.
---------------------------------------------------------------------------
    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.\9\ Each described the challenges and 
retaliation they believed they experienced from their agencies 
after blowing the whistle on agency wrongdoing.\10\
---------------------------------------------------------------------------
    \9\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].
    \10\Id.
---------------------------------------------------------------------------
    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.\11\ The No 
FEAR Act also made Federal agencies directly financially 
accountable for violations of antidiscrimination and 
whistleblower protections.\12\
---------------------------------------------------------------------------
    \11\Pub. L. No. 107-174, 107th Cong., (2002).
    \12\Id.
---------------------------------------------------------------------------
    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.''\13\ 
Unfortunately, only 66 percent of Federal employees have 
confidence that they can blow the whistle without facing 
reprisal.\14\ OSC has raised concerns about the inconsistent 
use of discipline at the VA, in particular. In testimony before 
this Committee, former 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.\15\ 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.''\16\
---------------------------------------------------------------------------
    \13\Blowing the Whistle on Retaliation (statement of Thomas M. 
Devine, Legal Director, Government Accountability Project).
    \14\Office of Personnel Mgmt., Federal Employee Viewpoint Survey 
Results, Governmentwide Management Report 9 (2018) available at https:/
/www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-
management-report/governmentwide-report/2018/2018-governmentwide-
management-report.pdf.
    \15\Improving VA Accountability at 5-6 (statement of Carolyn 
Lerner, Special Counsel, Office of Special Counsel).
    \16\Id. at 6.
---------------------------------------------------------------------------
    Former 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.\17\ 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.\18\ In the same 
year, agencies paid $44.8 million in monetary awards to 
complainants.\19\
---------------------------------------------------------------------------
    \17\Id. at 2, 4.
    \18\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.
    \19\Id.
---------------------------------------------------------------------------
    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. 135 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 Act 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.
    The Act 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. 135 
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 Act 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.
    Finally, the Committee-reported amendment to the Act 
renames the legislation after the late Congressman Elijah E. 
Cummings, who first introduced this legislation in 2015. 
Representative Cummings passed away on October 17, 2019.

                        III. Legislative History

    Representative Elijah E. Cummings of Maryland introduced 
H.R. 135, the Federal Employee Antidiscrimination Act, on 
January 3, 2019. The Act was referred to the House Committee on 
Oversight and Reform. On January 15, 2019, the House of 
Representatives passed H.R. 135 by a vote of 424 to 0.
    H.R. 135 was referred to the Senate Committee on Homeland 
Security and Governmental Affairs on January 16, 2019. The 
Committee considered H.R. 135 at a business meeting on November 
6, 2019.
    During the business meeting, Chairman Ron Johnson offered a 
substitute amendment that was adopted by unanimous consent. The 
substitute amendment changed the short title of the Act to the 
Elijah E. Cummings Federal Employee Antidiscrimination Act in 
memoriam of Representative Cummings. The substitute amendment 
also modified reporting and referral deadlines in the Act to 
ensure all appeals processes are exhausted before an agency 
publishes a report of a finding of discrimination or 
retaliation and clarified that an agency can receive advice and 
counsel from the Department of Justice in the resolution of an 
EEO complaint.
    H.R. 135, as amended, was approved by voice vote en bloc 
with Senators Johnson, Portman, Paul, Lankford, Romney, Scott, 
Enzi, Hawley, Peters, Carper, Hassan, Sinema, and Rosen 
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 
``Elijah E. Cummings Federal Employee Antidiscrimination Act of 
2019.''

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 the rights of Federal 
employees is furthered when Federal agencies agree to take 
appropriate disciplinary action against Federal employees who 
are found to have intentionally committed discriminatory 
(including 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 agency or EEOC finding 
of discrimination or retaliation on their website for at least 
one year. The report will be published after all appeals 
processes concerning the discriminatory or retaliatory act have 
been exhausted. 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 action has been proposed 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 of 2002 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 the agency's 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. Agency Human Capital and General Counsel offices, 
as well as the Department of Justice, may still provide advice 
or counsel to Federal agency personnel in the resolution of a 
complaint.
    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 pursues 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. Nondisclosure agreement 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.

                   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 Act and determined 
that the Act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the Act 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

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 18, 2019.
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. 135, the Elijah E. 
Cummings Federal Employee Antidiscrimination Act of 2019.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

     
    

    H.R. 135 would amend the Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002 to expand the 
current process used to investigate and resolve federal 
employees' claims of discrimination by other federal employees. 
The act also would increase the amount of information that must 
be reported and made available concerning such discrimination 
cases.
    Using information from the Office of Personnel Management 
and the Equal Employment Opportunity Commission, CBO expects 
that most of the provisions in the act would build on the 
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 agencies would incur costs to 
track and report discriminatory acts and to notify the public 
of any violations of antidiscrimination laws. Based on the 
costs of similar activities, CBO estimates that implementing 
H.R. 135 would cost $1 million over the 2020-2024 period; such 
spending would be subject to the availability of appropriated 
funds.
    Enacting H.R. 135 could affect direct spending by some 
agencies that are allowed to use fees, receipts from the sale 
of goods, and other collections to cover operating costs. CBO 
estimates that any net changes in direct spending by those 
agencies would be negligible because most of them can adjust 
amounts collected to reflect changes in operating costs.
    CBO has not reviewed H.R. 135 for intergovernmental or 
private-sector mandates. Section 4 of the Unfunded Mandates 
Reform Act excludes from the application of that act any 
legislative provisions that would establish or enforce 
statutory rights prohibiting discrimination. CBO has determined 
that this legislation falls within that exclusion because it 
would enforce protections for federal employees against 
discrimination based on race, color, religion, sex, national 
origin, age, or handicapped condition.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs) and Andrew Laughlin (for 
mandates). The estimate was reviewed 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):

UNITED STATES CODE

           *       *       *       *       *       *       *


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 the rights 
        of Federal employees is furthered when Federal agencies 
        agree to take appropriate disciplinary action against 
        Federal employees who are found to have intentionally 
        committed discriminatory (including retaliatory) acts;
          (5) (A) [nor is accountability] 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

           *       *       *       *       *       *       *


SEC. 202. NOTIFICATION REQUIREMENT.

    (a) * * *

           *       *       *       *       *       *       *

    (d) Notification of Final Agency Action.--
          (1) In general.--Not later than 90 days after the 
        date on which an event described in paragraph (2) 
        occurs with respect to a finding of discrimination 
        (including retaliation), the head of the Federal agency 
        subject to the finding shall provide notice--
                  (A) on the public internet website of the 
                agency, in a clear and prominent location 
                linked directly from the home page of that 
                website;
                  (B) stating that a finding of discrimination 
                (including retaliation) has been made; and
                  (C) which shall remain posted for not less 
                than 1 year.
          (2) Events described.--An event described in this 
        paragraph is any of the following:
                  (A) All appeals of a final action by a 
                Federal agency involving a finding of 
                discrimination (including retaliation) 
                prohibited by a provision of law covered by 
                paragraph (1) or (2) of section 201(a) have 
                been exhausted.
                  (B) All appeals of a final decision by the 
                Equal Employment Opportunity Commission 
                involving a finding of discrimination 
                (including if the finding included a finding of 
                retaliation) prohibited by a provision of law 
                covered by paragraph (1) or (2) of section 
                201(a) have been exhausted.
                  (C) A court of jurisdiction issues a final 
                judgment involving a finding of discrimination 
                (including retaliation) prohibited by a 
                provision of law covered by paragraph (1) or 
                (2) of section 201(a).
          (3) Contents.--A notification provided under 
        paragraph (1) with respect to a finding of 
        discrimination (including retaliation) shall--
                  (A) identify the date on which the finding 
                was made, the date on which each discriminatory 
                act occurred, and the law violated by each such 
                discriminatory act; and
                  (B) advise Federal employees of the rights 
                and protections available under the provisions 
                of law covered by paragraphs (1) and (2) of 
                section 201(a).

SEC. 203. REPORTING REQUIREMENT.

    (a) 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 Government Reform] on Oversight and 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 Director of the Office of 
Personnel Management) which shall include, with respect to the 
fiscal year--

           *       *       *       *       *       *       *

    (c) Disciplinary Action Report.--Not later than 120 days 
after the date on which a Federal agency takes final action, or 
a Federal agency receives a final decision issued by the Equal 
Employment Opportunity Commission, involving a finding of 
discrimination (including retaliation) in violation of a 
provision of law covered by paragraph (1) or (2) of section 
201(a), as applicable, the applicable Federal agency shall 
submit to the Commission a report stating--
          (1) whether disciplinary action has been proposed 
        against a Federal employee as a result of the 
        violation; and
          (2) the reasons for any disciplinary action proposed 
        under paragraph (1).

           *       *       *       *       *       *       *


SEC. 207. COMPLAINT TRACKING.

    Not later than 1 year after the date of enactment of the 
Elijah E. Cummings Federal Employee Antidiscrimination Act of 
2019, 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 the 
filing of a complaint with the Federal agency to resolution of 
the complaint, including whether a decision has been made 
regarding 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 a Federal 
employee for an act of discrimination (including retaliation) 
prohibited by a provision of law covered by paragraph (1) or 
(2) of section 201(a), the agency shall, after all appeals 
relating to that action have been exhausted, include a notation 
of the adverse action and the reason for the action in the 
personnel record of the employee.

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   TITLE III--EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE


SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.

    (a) * * *
    (b) * * *
          (1) * * *

           *       *       *       *       *       *       *

          (9) * * *
                  (A) the number and percentage involving a 
                finding of discrimination in connection with 
                each of the respective issues of alleged 
                discrimination, [and]
                  (B) * * *
                          (i) * * *
                          (ii) the number and percentage that 
                        were rendered after a hearing before an 
                        administrative judge of the Equal 
                        Employment Opportunity Commission[.], 
                        and;
                  (C) with respect to each finding described in 
                subparagraph (A)--
                          (i) the date of the finding;
                          (ii) the affected Federal agency;
                          (iii) the law violated, and
                          (iv) whether a decision has been made 
                        regarding disciplinary action as a 
                        result of the finding.

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          (11) Data regarding each class action complaint filed 
        against the agency alleging discrimination (including 
        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 (including retaliation) 
                has been found.

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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).

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                   TITLE IV--PROCESSING AND REFERRAL

SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.

    Each Federal agency shall--
          (1) be responsible for the fair and impartial 
        processing and resolution of complaints of employment 
        discrimination (including retaliation) prohibited by a 
        provision of law covered by paragraph (1) or (2) of 
        section 201(a); and
          (2) establish a model Equal Employment Opportunity 
        Program that--
                  (A) is not under the control, either 
                structurally or practically, of the agency's 
                Office of Human Capital or Office of the 
                General Counsel (or the equivalent);
                  (B) is devoid of internal conflicts of 
                interest and ensures fairness and inclusiveness 
                within the agency; and
                  (C) ensures the efficient and fair resolution 
                of complaints alleging discrimination 
                (including retaliation).

SEC. 402. NO LIMITATION ON ADVICE OR COUNSEL.

    Nothing in this title shall prevent a Federal agency or a 
subcomponent of a Federal agency, or the Department of Justice, 
from providing advice or counsel to employees of that agency 
(or subcomponent, as applicable) in the resolution of a 
complaint.

SEC. 403. HEAD OF PROGRAM SUPERVISED BY HEAD OF AGENCY.

    The head of each Federal agency's Equal Employment 
Opportunity Program shall report directly to the head of the 
agency.

SEC. 404. REFERRALS OF FINDINGS OF DISCRIMINATION.

    (a) EEOC Findings of Discrimination.--
          (1) In general.--Not later than 30 days after the 
        date on which the Equal Employment Opportunity 
        Commission (referred to in this section as the 
        ``Commission'') receives, or should have received, a 
        Federal agency report required under section 203(c), 
        the Commission may refer the matter to which the report 
        relates to the Office of Special Counsel if the 
        Commission determines that the Federal agency did not 
        take appropriate action with respect to the finding 
        that is the subject of the report.
          (2) Notifications.--The Commission shall--
                  (A) notify the applicable Federal agency if 
                the Commission refers a matter to the Office of 
                Special Counsel under paragraph (1); and
                  (B) with respect to a fiscal year, include in 
                the Annual Report of the Federal Workforce of 
                the Commission covering that fiscal year--
                          (i) the number of referrals made 
                        under paragraph (1) during that fiscal 
                        year; and
                          (ii) a brief summary of each referral 
                        described in clause (i).
    (b) Referrals to Special Counsel.--The Office of Special 
Counsel shall accept and review a referral from the Commission 
under subsection (a)(1) for purposes of pursuing disciplinary 
action under the authority of the Office against a Federal 
employees who commits an act of discrimination (including 
retaliation).
    (c) Notification.--The Office of Special Counsel shall 
notify the Commission and the applicable Federal agency in a 
case in which--
          (1) the Office of Special Counsel pursues 
        disciplinary action under subsection (b); and
          (2) the Federal agency imposes some form of 
        disciplinary action against a Federal employee who 
        commits an act of discrimination (including 
        retaliation).
    (d) Special Counsel Approval.--A Federal agency may not 
take disciplinary action against a Federal employee for an 
alleged act of discrimination (including retaliation) referred 
by the Commission under this section, except in accordance with 
the requirements of section 1214(f) of title 5, United States 
Code.

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SECTION 2302. PROHIBITED PERSONNEL PRACTICES

    (a) * * *
    (b) * * *
          (1) * * *

           *       *       *       *       *       *       *

          (13) implement or enforce any nondisclosure policy, 
        form, or agreement, if such policy, form, or [agreement 
        does not] agreement--
                  (A) 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 and 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) prohibits or restricts an employee or 
                applicant for employment from disclosing to 
                Congress, the Special Counsel, the Inspector 
                General of an agency, or any other agency 
                component responsible for internal 
                investigation or review 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; or

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