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HR 67 IHCommentsClose CommentsPermalink

To amend and to strengthen accountability features introduced by the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, and for other purposes.CommentsClose CommentsPermalink

January 6, 2009CommentsClose CommentsPermalink

Ms. JACKSON-LEE of Texas introduced the following bill; which was referred to the Committee on Oversight and Government Reform, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concernedCommentsClose CommentsPermalink

To amend and to strengthen accountability features introduced by the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the ‘Notification and Federal Employee Antidiscrimination and Retaliation Act of 2009’ or the ‘No FEAR Act of 2009’.CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents of this Act is as follows:CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink

TITLE I--GENERAL PROVISIONS

Sec. 101. Findings.CommentsClose CommentsPermalink





Sec. 102. Sense of Congress.CommentsClose CommentsPermalink





Sec. 103. Definitions.CommentsClose CommentsPermalink





Sec. 104. Amendments to Title I of the No FEAR Act of 2002.CommentsClose CommentsPermalink

TITLE II--AMENDMENTS TO TITLE II OF THE NO FEAR ACT OF 2002

Sec. 201. Amendments relating to reimbursement requirement.CommentsClose CommentsPermalink





Sec. 202. Amendments relating to notification requirement.CommentsClose CommentsPermalink





Sec. 203. Amendments relating to reporting requirement.CommentsClose CommentsPermalink





Sec. 204. Training.CommentsClose CommentsPermalink

TITLE III--ACCOUNTABILITY PROVISIONS

Sec. 301. Disciplinary action requirement.CommentsClose CommentsPermalink





Sec. 302. Sanctions.CommentsClose CommentsPermalink





Sec. 303. Role of Department of Justice.CommentsClose CommentsPermalink





Sec. 304. No FEAR Oversight Office.CommentsClose CommentsPermalink

TITLE IV--DAMAGES AND RELIEF

Sec. 401. Clarification of Title VII liability caps, damages remedies.CommentsClose CommentsPermalink





Sec. 402. No immunity from individual liability for Federal officials.CommentsClose CommentsPermalink

TITLE I--GENERAL PROVISIONSCommentsClose CommentsPermalink

SEC. 101. FINDINGS.

Congress finds that--CommentsClose CommentsPermalink





(1) agencies that engage in discrimination, retaliation, harassment, or violations of Federal discrimination or whistleblower protection laws demonstrate a gross disregard for taxpayer dollars, undermine the confidence of the American people in the Government, put the public’s safety and services at risk, and reduce the Government’s ability to timely and adequately address vital public needs;CommentsClose CommentsPermalink





(2)(A) Congress has heard testimony from individuals which point to chronic problems of discrimination and retaliation against Federal employees, and which, in turn, negatively affect the Federal Government’s efficiency and effectiveness;CommentsClose CommentsPermalink





(B) in the case of Dr. Marsha Coleman-Adebayo, a jury found in August 2000 that the Environmental Protection Agency had discriminated against the scientist based on race, color, and a hostile work environment; agency managers retaliated by relieving the scientist of her duties after she reported that an American company exposed its African miners and their families to vanadium, a deadly substance; and the agency has consistently retaliated against the employee since she prevailed in her jury verdict and testified twice before Congress; andCommentsClose CommentsPermalink





(C) in the case of Matthew F. Fogg v. Janet Reno, Attorney General of the United States, a case that was filed 21 years ago--CommentsClose CommentsPermalink





(i) a Federal jury found that the United States Marshals Service had discriminated against United States Marshal Fogg, and was a ‘hostile environment’ for all African-Americans serving in the United States Marshals Service; andCommentsClose CommentsPermalink





(ii) 10 years after that jury verdict, handed down on April 28, 1998, the Department of Justice continued to use taxpayer money to appeal this case; andCommentsClose CommentsPermalink





(3)(A) Federal agencies should foster a workplace free of discrimination and should timely resolve prima facie cases of discrimination and retaliation, particularly in cases of class-wide allegations; andCommentsClose CommentsPermalink





(B) in the case of Janet Howard, et al. v. Carlos M. Gutierrez, Secretary, United States Department of Commerce, the Department of Commerce allowed employee complaints to languish and used taxpayer dollars to litigate a race-based discrimination class action first filed in 1995; in fiscal year 2001, rather than resolve employee concerns, the Department established the Class Action Project Fund (since renamed the Complex Litigation Unit), which serves to defend a workforce culture that perpetuates unlawful and intentional discrimination in the workplace.CommentsClose CommentsPermalink

SEC. 102. SENSE OF CONGRESS.

It is the sense of Congress that--CommentsClose CommentsPermalink





(1) additional enforcement and remedies under Federal law are needed to make Federal agencies more accountable for their violations of employment discrimination and whistleblower protection laws;CommentsClose CommentsPermalink





(2) defining and prescribing timely, definitive disciplinary action for Federal managers and supervisors found violating the No FEAR Act of 2002 provides more accountability and consequences for discrimination and retaliation against whistleblowers;CommentsClose CommentsPermalink





(3) establishing a definitive period for reimbursing the Judgment Fund (as prescribed in section 201 of the No FEAR Act of 2002) should encourage timely resolution or settlement of complaints;CommentsClose CommentsPermalink





(4) extending notification of No FEAR provisions to cover all employees, including employees of contractors receiving a majority of their funding from contracts with the United States Government, should increase Federal agency compliance with the law;CommentsClose CommentsPermalink





(5) addressing damages and relief should clarify compensation available to complaining parties pursuant to the 1991 amendments to Title VII; andCommentsClose CommentsPermalink





(6) extending whistleblower protection to veterans hospitals and physicians and other medical professionals who work in health care facilities that receive the majority of their funding from the Federal Government should support and protect medical professionals from discrimination and retaliation.CommentsClose CommentsPermalink

SEC. 103. DEFINITIONS.

For the purposes of this Act--CommentsClose CommentsPermalink





(1) the term ‘claim’ means a cause of action or an alleged discriminatory or retaliatory act identified in a complaint;CommentsClose CommentsPermalink





(2) the term ‘criminal violation’ includes any of the offenses proscribed by section 241, 371, 373, or 1962 of title 18, United States Code, including fraud, perjury, bribery, witness tampering, and obstruction of justice;CommentsClose CommentsPermalink





(3) the term ‘culpable official’ means an individual, currently or formerly employed by a Federal agency, whose conduct in the course of that employment is the basis for a final finding of discrimination;CommentsClose CommentsPermalink





(4) the term ‘disciplinary action’ includes a suspension, demotion, or termination;CommentsClose CommentsPermalink





(5) the term ‘employee’ means any Federal employee within the meaning of section 103 of the No FEAR Act of 2002 and any other individual, including permanent, temporary, full- or part-time employees or independent contractors performing services for an organization that in whole or in part is a contractor or grantee or other entity that receives a majority of its funding from the Federal Government;CommentsClose CommentsPermalink





(6) the term ‘Federal official’ means any manager, supervisor, or senior policy official employed by a Federal agency and having any of the powers and responsibilities of management--CommentsClose CommentsPermalink





(A) to give instructions or orders to subordinates;CommentsClose CommentsPermalink





(B) to be held responsible for the work and actions of other employees; orCommentsClose CommentsPermalink





(C) to administer discipline and penalties;CommentsClose CommentsPermalink





(7) the term ‘final finding of discrimination’ means a finding of discrimination (as described in section 201(a) of the No FEAR Act of 2002) that is final and not appealable, and includes an order of settlement;CommentsClose CommentsPermalink





(8) the term ‘immediately’ means within less than 10 calendar days;CommentsClose CommentsPermalink





(9) the term ‘Title VII’ means title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); andCommentsClose CommentsPermalink





(10) the term ‘whistleblower’ means an employee who discloses information which the employee reasonably believes evidences--CommentsClose CommentsPermalink





(A) a violation of Title VII or any other law, or of any rule or regulation; orCommentsClose CommentsPermalink





(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.CommentsClose CommentsPermalink

SEC. 104. AMENDMENTS TO TITLE I OF THE NO FEAR ACT OF 2002.

Section 102(6) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note), in this Act referred to as the ‘No FEAR Act of 2002’, is amended--CommentsClose CommentsPermalink





(1) in subparagraph (A), by striking ‘within a reasonable time’ and inserting ‘no later than two years after the Judgment Fund makes the payment’; andCommentsClose CommentsPermalink





(2) in subparagraph (B), by striking ‘agency, may need to extend reimbursement over several years’ and inserting ‘agency, may need to make arrangements for a payment schedule with the Treasury not to exceed two years’.CommentsClose CommentsPermalink

TITLE II--AMENDMENTS TO TITLE II OF THE NO FEAR ACT OF 2002CommentsClose CommentsPermalink

SEC. 201. AMENDMENTS RELATING TO REIMBURSEMENT REQUIREMENT.

Subsection (b) of section 201 of the No FEAR Act of 2002 is amended--CommentsClose CommentsPermalink





(1) by making the text of such subsection a paragraph (1), indented 2 ems and with a heading that reads as follows:CommentsClose CommentsPermalink





‘(1) IN GENERAL- ’; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





‘(2) NOTICE TO BE PROVIDED BY AGENCY- No later than 45 days after the date of the receipt of a final finding of discrimination, the agency shall notify the Department of the Treasury--CommentsClose CommentsPermalink





‘(A) of its responsibility to repay the Judgment Fund; andCommentsClose CommentsPermalink





‘(B) to arrange payment of the full amount or to make arrangements for a payment schedule in accordance with paragraph (3).CommentsClose CommentsPermalink





‘(3) DEADLINE FOR REPAYMENTS GENERALLY- The agency shall repay the Judgment Fund in full no later than the close of the second fiscal year beginning after the date on which the Judgment Fund makes the payment (or, if made under a payment schedule, the close of the second fiscal year beginning after the date on which the Judgment Fund makes the final payment).’.CommentsClose CommentsPermalink

SEC. 202. AMENDMENTS RELATING TO NOTIFICATION REQUIREMENT.

Section 202 of the No FEAR Act of 2002 is amended--CommentsClose CommentsPermalink





(1) in subsection (a), by striking ‘to Federal employees,’ and inserting ‘to Federal employees (including any employee of a contractor receiving more than 50 percent of its annual gross revenues from Federal contracts),’;CommentsClose CommentsPermalink





(2) in subsection (b), by adding at the end the following: ‘Within 3 days after the date of the enactment of the No FEAR Act of 2009, and annually thereafter, each Federal agency shall notify its employees, by e-mail or voice mail, of the Internet site used by such agency in compliance with the preceding sentence.’; andCommentsClose CommentsPermalink





(3) by amending subsection (c) to read as follows:CommentsClose CommentsPermalink





‘(c) Employee Training- Each Federal agency shall ensure that employees of such agency receive training regarding the rights and remedies applicable to such employees under the respective provisions of law covered by paragraphs (1) and (2) of section 201(a).’.CommentsClose CommentsPermalink

SEC. 203. AMENDMENTS RELATING TO REPORTING REQUIREMENT.

(a) In General- Section 203(a) of the No FEAR Act of 2002 is amended--CommentsClose CommentsPermalink





(1) by striking ‘and’ at the end of paragraph (7);CommentsClose CommentsPermalink





(2) by striking the period at the end of paragraph (8) and inserting a semicolon; andCommentsClose CommentsPermalink





(3) by adding after paragraph (8) the following:CommentsClose CommentsPermalink





‘(9) data on all class actions filed, including size, status, filing date, number of suits filed against the agency, and demographic make-up;CommentsClose CommentsPermalink





‘(10) request for counseling by race or sex, as well as individuals who fall within both categories;CommentsClose CommentsPermalink





‘(11) total workforce and ethnic representation, including race and national origin data;CommentsClose CommentsPermalink





‘(12) number and nature of personnel grievances alleging prohibited personnel practices;CommentsClose CommentsPermalink





‘(13) the total dollar amount by fiscal years that the agency owes the Judgment Fund;CommentsClose CommentsPermalink





‘(14) total costs associated with processing and litigating cases, including salaries and travel costs of all personnel involved;CommentsClose CommentsPermalink





‘(15) number of plaintiffs that prevailed in jury trials or administrative proceedings; andCommentsClose CommentsPermalink





‘(16) specific agency office where discrimination was found.’.CommentsClose CommentsPermalink





(b) Additional Reports- Section 203 of the No FEAR Act of 2002 is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(c) Reports by GAO- The Government Accountability Office shall, within 90 days after the end of each fiscal year, prepare and submit to Speaker of the House of Representatives, the President pro tempore of the Senate, and each of the committees named or described in subsection (a), a report on the total costs incurred during such fiscal year which are associated with processing and litigating cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a), including costs associated with Department of Justice litigation.CommentsClose CommentsPermalink





‘(d) Reports by Agencies-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Effective with respect to agency performance plans for fiscal years beginning not later than 6 months after the date of the enactment of this subsection, each Federal agency shall establish performance goals reflective of its efforts to implement this Act.CommentsClose CommentsPermalink





‘(2) DEFINITIONS- For purposes of this subsection--CommentsClose CommentsPermalink





‘(A) the term ‘agency performance plan’ refers to an agency performance plan under section 1115 of title 31, United States Code (or, for purposes of the United States Postal Service, section 2803 of title 39, United States Code); andCommentsClose CommentsPermalink





‘(B) the term ‘performance goal’ has the meaning given such term by section 1115(g)(4) of title 31, United States Code (or, for purposes of the United States Postal Service, section 2801(3) of title 39, United States Code).’.CommentsClose CommentsPermalink

SEC. 204. TRAINING.

(a) The No FEAR Institute, a nonprofit, non-Federal Government entity, is hereby specified as a source of training and counseling for Federal employees that is mandated by this Act with regard to their rights and remedies under antidiscrimination, retaliation, and harassment, as well as whistleblower protection laws.CommentsClose CommentsPermalink





(b) The No FEAR Institute shall be recognized as an official Federal Government training institute and receive annual funding, in accordance with such agreements as agencies and contractors may enter into with the No FEAR institute, in order to provide training to Federal employees and contractors receiving more than 50 percent of their annual budget from the Federal Government.CommentsClose CommentsPermalink

TITLE III--ACCOUNTABILITY PROVISIONSCommentsClose CommentsPermalink

SEC. 301. DISCIPLINARY ACTION REQUIREMENT.

(a) Final Finding of Discrimination Where Mental or Physical Health Is Harmed- Upon a final finding of discrimination with respect to a culpable official in a case in which such official’s discriminatory or retaliatory acts are determined to have contributed to a loss of life or limb or any other substantial diminishment of an employee’s mental or physical health, the culpable official shall immediately--CommentsClose CommentsPermalink





(1) be terminated from Federal service;CommentsClose CommentsPermalink





(2) be debarred from Federal employment for a period not to exceed 5 years; andCommentsClose CommentsPermalink





(3) forfeit any right to serve as a worker employed under any Federal contract.CommentsClose CommentsPermalink





(b) Final Finding of Discrimination Not Covered by Subsection (a)-CommentsClose CommentsPermalink





(1) APPLICABILITY- This subsection applies in the case of any final finding of discrimination, with respect to a culpable official, which is not subject to subsection (a).CommentsClose CommentsPermalink





(2) INITIAL FINDING- Upon an initial finding of discrimination as described in paragraph (1)--CommentsClose CommentsPermalink





(A) the culpable official shall immediately--CommentsClose CommentsPermalink





(i) be removed from service as a Federal official; andCommentsClose CommentsPermalink





(ii) be demoted at least 1 pay grade (or the equivalent); andCommentsClose CommentsPermalink





(B) the employing agency shall include in the culpable official’s official personnel record a notation to the effect that such a finding against such official was made.CommentsClose CommentsPermalink





(3) SUBSEQUENT FINDING- Upon a subsequent finding of any discrimination with respect to the same official, such official shall immediately--CommentsClose CommentsPermalink





(A) be terminated from Federal service;CommentsClose CommentsPermalink





(B) be debarred from Federal employment for a period not to exceed 5 years; andCommentsClose CommentsPermalink





(C) forfeit any right to serve as a worker employed under any Federal contract.CommentsClose CommentsPermalink

SEC. 302. SANCTIONS.

The Secretary of the Treasury shall impose a monetary penalty of $10,000 on an agency of the United States for each week that agency fails to take action against employees who falsify evidence in a proceeding under Title VII.CommentsClose CommentsPermalink

SEC. 303. ROLE OF DEPARTMENT OF JUSTICE.

(a) Referral- The Equal Employment Opportunity Commission and any agency that becomes aware of a criminal violation shall refer the matter to the Department of Justice for prosecution when agency officials are found liable for intimidating or harassing employees that testify before Congress. If an employee alleges that intimidation or harassment has occurred as a result of congressional testimony by that employee, Congress should work in collaboration with the No FEAR Oversight office to investigate the allegation and refer it to the Department of Justice for prosecution if appropriate.CommentsClose CommentsPermalink





(b) Report- Not later than 180 days after a determination not to prosecute a matter referred under this section, the Department of Justice shall provide to Congress a justification for that determination.CommentsClose CommentsPermalink

SEC. 304. NO FEAR OVERSIGHT OFFICE.

The Comptroller General shall take such measures as may be necessary to ensure that an office, to be known as the ‘No FEAR Oversight Office’, shall be created within the Government Accountability Office. The No FEAR Oversight Office shall be the official clearinghouse for the Federal Government and provide written information to Congress, the executive branch, and the public on the enforcement of the No FEAR Act of 2002. The No FEAR Oversight Office shall be established within 30 days after the date of the enactment of this Act.CommentsClose CommentsPermalink

TITLE IV--DAMAGES AND RELIEFCommentsClose CommentsPermalink

SEC. 401. CLARIFICATION OF TITLE VII LIABILITY CAPS, DAMAGES REMEDIES.

(a) Clarify Title VII Liability Limits- For Federal Government Title VII cases, the liability limits for Federal workplace discrimination cases under Title VII is $300,000 per each claim or alleged violation of said law adjudicated in favor of the claimant, whether or not said violation sustains one or more additional claims when considered in conjunction with other unlawful activity. Therefore, claimants are not limited to $300,000 compensatory damage cap per case as currently being interpreted by the Federal courts, but rather $300,000 per each claim awarded in favor of the plaintiff in the entire case. Furthermore, Title VII is only the exclusive remedy for workforce discrimination claims. Title VII is not the exclusive source of Federal statutory, workforce rights or exclusive remedy for their violation.CommentsClose CommentsPermalink





(b) Relief- Should an administrative agency or court find for the employee in a subsequent claim and that the relief requested some or all was appropriate, the employee shall be entitled to liquidated damages (after taxes) plus all reasonable fees to attorneys. This shall not be considered a part of compensatory damages. Entitlement to damages under this provision is a post judgment proceeding.CommentsClose CommentsPermalink

SEC. 402. NO IMMUNITY FROM INDIVIDUAL LIABILITY FOR FEDERAL OFFICIALS.

It shall not be a defense to a civil action against an individual arising out of a violation of Title VII that the individual was acting in the capacity of a Government officer and employee at the time of the violation.CommentsClose CommentsPermalink