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H.R. 1557 (114th): Federal Employee Antidiscrimination Act of 2015

The text of the bill below is as of Jul 12, 2016 (Reported by Senate Committee).


II

Calendar No. 556

114th CONGRESS

2d Session

H. R. 1557

[Report No. 114–300]

IN THE SENATE OF THE UNITED STATES

July 22, 2015

Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs

July 12, 2016

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

AN ACT

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.


1.

Short title

This Act may be cited as the Federal Employee Antidiscrimination Act of 2015.

2.

Sense of Congress

Section 102 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1)

in paragraph (4), to read as follows:

(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;

; and

(2)

in paragraph (5)(A)—

(A)

by striking nor is accountability and inserting but accountability is not; and

(B)

by inserting for what by law the agency is responsible after under this Act.

3.

Notification of Violation

Section 202 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding at the end the following:

(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 agency subject to the finding shall provide notice for at least 1 year on the agency’s Internet Web site in a clear and prominent location linked directly from the 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).

.

4.

Reporting requirements

(a)

Electronic format requirement

(1)

In general

Section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by inserting (in an electronic format prescribed by the Office of Personnel Management) after an annual report.

(2)

Effective date

The amendment made by paragraph (1) shall take effect on the date that is 1 year after the date of enactment of this Act.

(3)

Transition period

Notwithstanding the requirements of section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note), the report required under such section may be submitted in an electronic format, as prescribed by the Office of Personnel Management, during the period beginning on the date of enactment of this Act and ending on the effective date in paragraph (2).

(b)

Reporting requirement for disciplinary action

Section 203 of such Act is amended by adding at the end the following:

(c)

Disciplinary action report

Not later than 60 days after the date on which a Federal agency takes final action or an 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.

.

5.

Data to be posted by employing Federal agencies

Section 301(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1)

in paragraph (9)—

(A)

in subparagraph (A), by striking and at the end;

(B)

in subparagraph (B)(ii), by striking the period at the end and inserting , and; and

(C)

by adding at the end the following:

(C)

for each such finding counted under subparagraph (A), the agency shall specify—

(i)

the date of the finding;

(ii)

the affected agency;

(iii)

the law violated; and

(iv)

whether a decision has been made regarding necessary disciplinary action as a result of the finding.

; and

(2)

by adding at the end the following:

(11)

Data regarding each class action complaint filed against the 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.

.

6.

Data to be posted by the equal employment opportunity commission

Section 302(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by striking (10) and inserting (11).

7.

Notification and Federal Employee Antidiscrimination and Retaliation Act amendments

(a)

Notification requirements

The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding after section 206 the following:

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.

208.

Notation in personnel record

If an 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 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.

.

(b)

Processing and Referral

The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding at the end the following:

IV

Processing and referral

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.

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.

403.

Head of Program reports to head of agency

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

404.

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.

(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.

.

(c)

Conforming amendments

The table of contents in section 1(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1)

by inserting after the item relating to section 206 the following:

Sec. 207. Complaint tracking.

Sec. 208. Notation in personnel record.

;

and
(2)

by adding at the end the following:

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. Head of Program reports to head of agency.

Sec. 404. Referrals of findings of discrimination.

.

8.

Nondisclosure agreement limitation

Section 2302(b) of title 5, United States Code is amended—

(1)

in paragraph (13)—

(A)

by inserting or the Office of Special Counsel after Inspector General;

(B)

by striking implement and inserting (A) implement; and

(C)

by striking the period that follows the quoted material and inserting ; or;

(2)

by adding after subparagraph (A), as added by paragraph (1)(B), and preceding the flush left matter that follows paragraph (13), the following:

(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.

.

1.

Short title

This Act may be cited as the Federal Employee Antidiscrimination Act of 2015.

2.

Sense of Congress

Section 102 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1)

in paragraph (4), to read as follows:

(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;

; and

(2)

in paragraph (5)(A)—

(A)

by striking nor is accountability and inserting but accountability is not; and

(B)

by inserting for what by law the Federal agency is responsible after under this Act.

3.

Notification of Violation

Section 202 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding at the end the following:

(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 paragraph (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 paragraph (1) or (2) of section 201(a).

.

4.

Reporting requirements

(a)

Electronic format requirement

(1)

In general

Section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(A)

by inserting Homeland Security and before Governmental Affairs;

(B)

by inserting Oversight and before Government Reform; and

(C)

by inserting (in an electronic format prescribed by the Office of Personnel Management) after an annual report.

(2)

Effective date

The amendment made by paragraph (1)(C) shall take effect on the date that is 1 year after the date of enactment of this Act.

(3)

Transition period

Notwithstanding the requirements of section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note), the report required under such section may be submitted in an electronic format, as prescribed by the Office of Personnel Management, during the period beginning on the date of enactment of this Act and ending on the effective date in paragraph (2).

(b)

Reporting requirement for disciplinary action

Section 203 of such Act is amended by adding at the end the following:

(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 paragraph (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.

.

5.

Data to be posted by employing Federal agencies

Section 301(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1)

in paragraph (9)—

(A)

in subparagraph (A), by striking and at the end;

(B)

in subparagraph (B)(ii), by striking the period at the end and inserting , and; and

(C)

by adding at the end the following:

(C)

for each such finding counted under subparagraph (A), the Federal 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.

; and

(2)

by adding at the end the following:

(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.

.

6.

Data to be posted by the equal employment opportunity commission

Section 302(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by striking (10) and inserting (11).

7.

Notification and Federal Employee Antidiscrimination and Retaliation Act amendments

(a)

Notification requirements

The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding after section 206 the following:

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.

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 paragraph (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.

.

(b)

Processing and Referral

The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding at the end the following:

IV

Processing and referral

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.

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 Federal agency personnel on the processing and resolution of a complaint, including providing legal representation to a Federal agency in any proceeding.

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 may 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 Work Force 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 a 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

A Federal 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.

.

(c)

Conforming amendments

The table of contents in section 1(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1)

by inserting after the item relating to section 206 the following:

Sec. 207. Complaint tracking.

Sec. 208. Notation in personnel record.

;

and
(2)

by adding at the end the following:

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.

.

8.

Nondisclosure agreement limitation

Section 2302(b) of title 5, United States Code is amended—

(1)

in paragraph (13)—

(A)

by inserting or the Office of Special Counsel after Inspector General;

(B)

by striking implement and inserting (A) implement; and

(C)

by striking the period that follows the quoted material and inserting ; or;

(2)

by adding after subparagraph (A), as added by paragraph (1)(B), and preceding the flush left matter that follows paragraph (13), the following:

(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.

.

9.

Discipline of supervisors based on retaliation against whistleblowers or discrimination

(a)

In general

Subchapter II of chapter 75 of title 5, United States Code, is amended by adding at the end the following:

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 an agency; or

(B)

accessing the medical record of another employee for the purpose of retaliation for a disclosure or activity protected under paragraph (8) or (9) of section 2302(b); and

(3)

the term supervisor means a supervisor, as defined under section 7103(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 who 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 such 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)

Limitation 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.

.

(b)

Technical and conforming amendment

The table of sections for subchapter II of chapter 75 of title 5, United States Code, is amended by adding at the end the following:

7515. Discipline of supervisors based on retaliation against whistleblowers or discrimination.

.

July 12, 2016

Reported with an amendment