Elijah E. Cummings Federal Employee Antidiscrimination Act of 2019

II Calendar No. 330 116TH CONGRESS 1ST SESSION H. R. 135 [Report No. 116–176] IN THE SENATE OF THE UNITED STATES JANUARY 16, 2019 Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs DECEMBER 16, 2019 Reported by Mr. JOHNSON, 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 Anti- discrimination and Retaliation Act of 2002 to strengthen Federal antidiscrimination laws enforced by the Equal Employment Opportunity Commission and expand ac- countability within the Federal Government, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Federal Employee 4 Antidiscrimination Act of 2019’’. 5 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 2 •HR 135 RS SEC. 2. SENSE OF CONGRESS. 1 Section 102 of the Notification and Federal Em- 2 ployee Antidiscrimination and Retaliation Act of 2002 (5 3 U.S.C. 2301 note) is amended— 4 (1) in paragraph (4), to read as follows: 5 ‘‘(4) accountability in the enforcement of Fed- 6 eral employee rights is furthered when Federal agen- 7 cies take appropriate disciplinary action against 8 Federal employees who have been found to have 9 committed discriminatory or retaliatory acts;’’; and 10 (2) in paragraph (5)(A)— 11 (A) by striking ‘‘nor is accountability’’ and 12 inserting ‘‘but accountability is not’’; and 13 (B) by inserting ‘‘for what by law the 14 agency is responsible’’ after ‘‘under this Act’’. 15 SEC. 3. NOTIFICATION OF VIOLATION. 16 Section 202 of the Notification and Federal Em- 17 ployee Antidiscrimination and Retaliation Act of 2002 (5 18 U.S.C. 2301 note) is amended by adding at the end the 19 following: 20 ‘‘(d) NOTIFICATION OF FINAL AGENCY ACTION.— 21 ‘‘(1) Not later than 30 days after a Federal 22 agency takes final action or the Equal Employment 23 Opportunity Commission issues an appellate decision 24 involving a finding of discrimination or retaliation 25 prohibited by a provision of law covered by para- 26 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 3 •HR 135 RS graph (1) or (2) of section 201(a), as applicable, the 1 head of the agency subject to the finding shall pro- 2 vide notice for at least 1 year on the agency’s inter- 3 net website in a clear and prominent location linked 4 directly from the agency’s internet home page stat- 5 ing that a finding of discrimination or retaliation 6 has been made. 7 ‘‘(2) The notification shall identify the date the 8 finding was made, the date or dates on which the 9 discriminatory or retaliatory act or acts occurred, 10 and the law or laws violated by the discriminatory 11 or retaliatory act or acts. The notification shall also 12 advise Federal employees of the rights and protec- 13 tions available under the respective provisions of law 14 covered by paragraph (1) or (2) of section 201(a).’’. 15 SEC. 4. REPORTING REQUIREMENTS. 16 (a) ELECTRONIC FORMAT REQUIREMENT.— 17 (1) IN GENERAL.—Section 203(a) of the Notifi- 18 cation and Federal Employee Antidiscrimination and 19 Retaliation Act of 2002 (5 U.S.C. 2301 note) is 20 amended— 21 (A) by inserting ‘‘Homeland Security and’’ 22 before ‘‘Governmental Affairs’’; 23 (B) by inserting ‘‘Oversight and’’ before 24 ‘‘Government Reform’’; and 25 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 4 •HR 135 RS (C) by inserting ‘‘(in an electronic format 1 prescribed by the Office of Personnel Manage- 2 ment)’’ after ‘‘an annual report’’. 3 (2) EFFECTIVE DATE.—The amendment made 4 by paragraph (1)(C) shall take effect on the date 5 that is 1 year after the date of enactment of this 6 Act. 7 (3) TRANSITION PERIOD.—Notwithstanding the 8 requirements of section 203(a) of the Notification 9 and Federal Employee Antidiscrimination and Retal- 10 iation Act of 2002 (5 U.S.C. 2301 note), the report 11 required under such section may be submitted in an 12 electronic format, as prescribed by the Office of Per- 13 sonnel Management, during the period beginning on 14 the date of enactment of this Act and ending on the 15 effective date in paragraph (2). 16 (b) REPORTING REQUIREMENT FOR DISCIPLINARY 17 ACTION.—Section 203 of such Act is amended by adding 18 at the end the following: 19 ‘‘(c) DISCIPLINARY ACTION REPORT.—Not later 20 than 60 days after the date on which a Federal agency 21 takes final action or a Federal agency receives an appel- 22 late decision issued by the Equal Employment Oppor- 23 tunity Commission involving a finding of discrimination 24 or retaliation in violation of a provision of law covered by 25 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 5 •HR 135 RS paragraph (1) or (2) of section 201(a), as applicable, the 1 employing Federal agency shall submit to the Commission 2 a report stating whether disciplinary action has been initi- 3 ated against a Federal employee as a result of the viola- 4 tion.’’. 5 SEC. 5. DATA TO BE POSTED BY EMPLOYING FEDERAL 6 AGENCIES. 7 Section 301(b) of the Notification and Federal Em- 8 ployee Antidiscrimination and Retaliation Act of 2002 (5 9 U.S.C. 2301 note) is amended— 10 (1) in paragraph (9)— 11 (A) in subparagraph (A), by striking 12 ‘‘and’’ at the end; 13 (B) in subparagraph (B)(ii), by striking 14 the period at the end and inserting ‘‘, and’’; 15 and 16 (C) by adding at the end the following: 17 ‘‘(C) for each such finding counted under 18 subparagraph (A), the agency shall specify— 19 ‘‘(i) the date of the finding; 20 ‘‘(ii) the affected agency; 21 ‘‘(iii) the law violated; and 22 ‘‘(iv) whether a decision has been 23 made regarding necessary disciplinary ac- 24 tion as a result of the finding.’’; and 25 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 6 •HR 135 RS (2) by adding at the end the following: 1 ‘‘(11) Data regarding each class action com- 2 plaint filed against the agency alleging discrimina- 3 tion or retaliation, including— 4 ‘‘(A) information regarding the date on 5 which each complaint was filed; 6 ‘‘(B) a general summary of the allegations 7 alleged in the complaint; 8 ‘‘(C) an estimate of the total number of 9 plaintiffs joined in the complaint if known; 10 ‘‘(D) the current status of the complaint, 11 including whether the class has been certified; 12 and 13 ‘‘(E) the case numbers for the civil actions 14 in which discrimination or retaliation has been 15 found.’’. 16 SEC. 6. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT 17 OPPORTUNITY COMMISSION. 18 Section 302(b) of the Notification and Federal Em- 19 ployee Antidiscrimination and Retaliation Act of 2002 (5 20 U.S.C. 2301 note) is amended by striking ‘‘(10)’’ and in- 21 serting ‘‘(11)’’. 22 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 7 •HR 135 RS SEC. 7. NOTIFICATION AND FEDERAL EMPLOYEE ANTI- 1 DISCRIMINATION AND RETALIATION ACT 2 AMENDMENTS. 3 (a) NOTIFICATION REQUIREMENTS.—The Notifica- 4 tion and Federal Employee Antidiscrimination and Retal- 5 iation Act of 2002 (5 U.S.C. 2301 note) is amended by 6 adding after section 206 the following: 7 ‘‘SEC. 207. COMPLAINT TRACKING. 8 ‘‘Not later than 1 year after the date of enactment 9 of the Federal Employee Antidiscrimination Act of 2019, 10 each Federal agency shall establish a system to track each 11 complaint of discrimination arising under section 12 2302(b)(1) of title 5, United States Code, and adjudicated 13 through the Equal Employment Opportunity process from 14 inception to resolution of the complaint, including whether 15 a decision has been made regarding necessary disciplinary 16 action as the result of a finding of discrimination. 17 ‘‘SEC. 208. NOTATION IN PERSONNEL RECORD. 18 ‘‘If a Federal agency takes an adverse action covered 19 under section 7512 of title 5, United States Code, against 20 a Federal employee for an act of discrimination or retalia- 21 tion prohibited by a provision of law covered by paragraph 22 (1) or (2) of section 201(a), the agency shall, after all 23 appeals relating to such action have been exhausted, in- 24 clude a notation of the adverse action and the reason for 25 the action in the employee’s personnel record.’’. 26 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 8 •HR 135 RS (b) PROCESSING AND REFERRAL.—The Notification 1 and Federal Employee Antidiscrimination and Retaliation 2 Act of 2002 (5 U.S.C. 2301 note) is amended by adding 3 at the end the following: 4 ‘‘TITLE IV—PROCESSING AND 5 REFERRAL 6 ‘‘SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS. 7 ‘‘Each Federal agency is responsible for the fair, im- 8 partial processing and resolution of complaints of employ- 9 ment discrimination and retaliation arising in the Federal 10 administrative process and shall establish a model Equal 11 Employment Opportunity Program that— 12 ‘‘(1) is not under the control, either structurally 13 or practically, of a Human Capital or General Coun- 14 sel office; 15 ‘‘(2) is devoid of internal conflicts of interest 16 and ensures fairness and inclusiveness within the or- 17 ganization; and 18 ‘‘(3) ensures the efficient and fair resolution of 19 complaints alleging discrimination or retaliation. 20 ‘‘SEC. 402. NO LIMITATION ON HUMAN CAPITAL OR GEN- 21 ERAL COUNSEL ADVICE. 22 ‘‘Nothing in this title shall prevent a Federal agency’s 23 Human Capital or General Counsel office from providing 24 advice or counsel to Federal agency personnel on the proc- 25 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 9 •HR 135 RS essing and resolution of a complaint, including providing 1 legal representation to a Federal agency in any pro- 2 ceeding. 3 ‘‘SEC. 403. HEAD OF PROGRAM REPORTS TO HEAD OF 4 AGENCY. 5 ‘‘The head of each Federal agency’s Equal Employ- 6 ment Opportunity Program shall report directly to the 7 head of the agency. 8 ‘‘SEC. 404. REFERRALS OF FINDINGS OF DISCRIMINATION. 9 ‘‘(a) EEOC FINDINGS OF DISCRIMINATION.—Not 10 later than 30 days after the Equal Employment Oppor- 11 tunity Commission issues an appellate decision involving 12 a finding of discrimination or retaliation within a Federal 13 agency, the Commission shall refer the matter to the Of- 14 fice of Special Counsel. 15 ‘‘(b) REFERRALS TO SPECIAL COUNSEL.—The Office 16 of Special Counsel shall accept and review a referral from 17 the Commission under subsection (a) for purposes of seek- 18 ing disciplinary action under its authority against a Fed- 19 eral employee who commits an act of discrimination or re- 20 taliation. 21 ‘‘(c) NOTIFICATION.—The Office of Special Counsel 22 shall notify the Commission in a case in which the Office 23 of Special Counsel initiates disciplinary action. 24 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 10 •HR 135 RS ‘‘(d) SPECIAL COUNSEL APPROVAL.—A Federal 1 agency may not take disciplinary action against a Federal 2 employee for an alleged act of discrimination or retaliation 3 referred by the Commission under this section except in 4 accordance with the requirements of section 1214(f) of 5 title 5, United States Code.’’. 6 (c) CONFORMING AMENDMENTS.—The table of con- 7 tents in section 1(b) of the Notification and Federal Em- 8 ployee Antidiscrimination and Retaliation Act of 2002 (5 9 U.S.C. 2301 note) is amended— 10 (1) by inserting after the item relating to sec- 11 tion 206 the following: 12 ‘‘Sec. 207. Complaint tracking. ‘‘Sec. 208. Notation in personnel record.’’; and 13 (2) by adding at the end the following: 14 ‘‘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.’’. SEC. 8. NONDISCLOSURE AGREEMENT LIMITATION. 15 Section 2302(b) of title 5, United States Code, is 16 amended— 17 (1) in paragraph (13)— 18 (A) by inserting ‘‘or the Office of Special 19 Counsel’’ after ‘‘Inspector General’’; 20 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 11 •HR 135 RS (B) by striking ‘‘implement’’ and inserting 1 ‘‘(A) implement’’; and 2 (C) by striking the period that follows the 3 quoted material and inserting ‘‘; or’’; and 4 (2) by adding after subparagraph (A), as added 5 by paragraph (1)(B), and preceding the flush left 6 matter that follows paragraph (13), the following: 7 ‘‘(B) implement or enforce any nondisclo- 8 sure policy, form, or agreement, if such policy, 9 form, or agreement prohibits or restricts an em- 10 ployee from disclosing to Congress, the Office of 11 Special Counsel, or an Office of the Inspector 12 General any information that relates to any vio- 13 lation of any law, rule, or regulation, or mis- 14 management, a gross waste of funds, an abuse 15 of authority, or a substantial, and specific dan- 16 ger to public health or safety, or any other 17 whistleblower protection.’’. 18 SECTION 1. SHORT TITLE. 19 This Act may be cited as the ‘‘Elijah E. Cummings 20 Federal Employee Antidiscrimination Act of 2019’’. 21 SEC. 2. SENSE OF CONGRESS. 22 Section 102 of the Notification and Federal Employee 23 Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 24 2301 note) is amended— 25 VerDate Sep 11 2014 21:35 Dec 16, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H135.RS H135 kjohnson on DSK79L0C42 with BILLS 12 •HR 135 RS (1) by striking paragraph (4) and inserting the 1 following: 2 ‘‘(4) accountability in the enforcement of the 3 rights of Federal employees is furthered when Federal 4 agencies agree to take appropriate disciplinary action 5 against Federal employees who are found to have in- 6 tentionally committed discriminatory (including re- 7 taliatory) acts;’’; and 8 (2) in paragraph (5)(A)— 9 (A) by striking ‘‘nor is accountability’’ and 10 inserting ‘‘accountability is not’ [Text truncated for display. Full text available on Congress.gov.]