Notification and Federal Employee Antidiscrimination and RetaliationPuspan. L. 107–174, May 15, 2002, 116 Stat. 566, as amended by Puspan. L. 109–435, title VI, § 604(f), Dec. 20, 2006, 120 Stat. 3242; Puspan. L. 116–283, div. A, title XI, §§ 1132–1134(a)(1), (span), 1135–1137, Jan. 1, 2021, 134 Stat. 3900–3903, provided that:“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 2002’.
“(span)Table of Contents.— <span value="I" class="num">“TITLE I—</span><span>GENERAL PROVISIONS</span><section style="-uslm-lc:I580467;"><span value="101" class="num">“SEC. 101.</span><span> FINDINGS.</span><span class="indent0" style="-uslm-lc:I21;">“Congress finds that—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination;</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> Congress has heard testimony from individuals, including representatives of the National Association for the Advancement of Colored People and the American Federation of Government Employees, that point to chronic problems of discrimination and retaliation against Federal employees;</span></div><div class="paragraph"><span value="3" class="num">“(3)</span><span> in August 2000, a jury found that the Environmental Protection Agency had discriminated against a senior social scientist, and awarded that scientist $600,000;</span></div><div class="paragraph"><span value="4" class="num">“(4)</span><span> in October 2000, an Occupational Safety and Health Administration investigation found that the Environmental Protection Agency had retaliated against a senior scientist for disagreeing with that agency on a matter of science and for helping Congress to carry out its oversight responsibilities;</span></div><div class="paragraph"><span value="5" class="num">“(5)</span><span> there have been several recent class action suits based on discrimination brought against Federal agencies, including the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms, the Drug Enforcement Administration, the Immigration and Naturalization Service, the United States Marshals Service, the Department of Agriculture, the United States Information Agency, and the Social Security Administration;</span></div><div class="paragraph"><span value="6" class="num">“(6)</span><span> notifying Federal employees of their rights under discrimination and whistleblower laws should increase Federal agency compliance with the law;</span></div><div class="paragraph"><span value="7" class="num">“(7)</span><span> requiring annual reports to Congress on the number and severity of discrimination and whistleblower cases brought against each Federal agency should enable Congress to improve its oversight over compliance by agencies with the law; and</span></div><div class="paragraph"><span value="8" class="num">“(8)</span><span> requiring Federal agencies to pay for any discrimination or whistleblower judgment, award, or settlement should improve agency accountability with respect to discrimination and whistleblower laws.</span></div></section><section style="-uslm-lc:I580467;"><span value="102" class="num">“SEC. 102.</span><span> SENSE OF CONGRESS.</span><span class="indent0" style="-uslm-lc:I21;">“It is the sense of Congress that—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> Federal agencies should not retaliate for court judgments or settlements relating to discrimination and whistleblower laws by targeting the claimant or other employees with reductions in compensation, benefits, or workforce to pay for such judgments or settlements;</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> the mission of the Federal agency and the employment security of employees who are blameless in a whistleblower incident should not be compromised;</span></div><div class="paragraph"><span value="3" class="num">“(3)</span><span> Federal agencies should not use a reduction in force or furloughs as means of funding a reimbursement under this Act;</span></div><div class="paragraph"><span value="4" class="num">“(4)</span><span> 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;</span></div><div class="paragraph"><span value="5" class="num">“(5)</span><div class="subparagraph"><span value="A" class="num">(A)</span><span> 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</span></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span> 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</span></div></div><div class="paragraph"><span value="6" class="num">“(6)</span><div class="subparagraph"><span value="A" class="num">(A)</span><span> Federal agencies are expected to reimburse the General Fund of the Treasury within a reasonable time under this Act; and</span></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span> a Federal agency, particularly if the amount of reimbursement under this Act is large relative to annual appropriations for that agency, may need to extend reimbursement over several years in order to avoid—</span><div class="clause"><span value="i" class="num">“(i)</span><span> reductions in force;</span></div><div class="clause"><span value="ii" class="num">“(ii)</span><span> furloughs;</span></div><div class="clause"><span value="iii" class="num">“(iii)</span><span> other reductions in compensation or benefits for the workforce of the agency; or</span></div><div class="clause"><span value="iv" class="num">“(iv)</span><span> an adverse effect on the mission of the agency.</span></div></div></div></section><section style="-uslm-lc:I580467;"><span value="103" class="num">“SEC. 103.</span><span> DEFINITIONS.</span><span class="indent0" style="-uslm-lc:I21;">“For purposes of this Act—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> the term ‘applicant for Federal employment’ means an individual applying for employment in or under a Federal agency;</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> the term ‘basis of alleged discrimination’ shall have the meaning given such term under section 303;</span></div><div class="paragraph"><span value="3" class="num">“(3)</span><span> the term ‘Federal agency’ means an Executive agency (as defined in <span href="/us/usc/t5/s105" class="ref">section 105 of title 5</span>, United States Code), the United States Postal Service, or the Postal Regulatory Commission;</span></div><div class="paragraph"><span value="4" class="num">“(4)</span><span> the term ‘Federal employee’ means an individual employed in or under a Federal agency;</span></div><div class="paragraph"><span value="5" class="num">“(5)</span><span> the term ‘former Federal employee’ means an individual formerly employed in or under a Federal agency; and</span></div><div class="paragraph"><span value="6" class="num">“(6)</span><span> the term ‘issue of alleged discrimination’ shall have the meaning given such term under section 303.</span></div></section><section style="-uslm-lc:I580467;"><span value="104" class="num">“SEC. 104.</span><span> EFFECTIVE DATE.</span><span><p class="indent0" style="-uslm-lc:I21;">“This Act and the amendments made by this Act shall take effect on the 1st day of the 1st fiscal year beginning more than 180 days after the date of the enactment of this Act [<span date="2002-05-15" class="date">May 15, 2002</span>].</p></span></section><span value="II" class="num">“TITLE II—</span><span>FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION</span><section style="-uslm-lc:I580467;"><span value="201" class="num">“SEC. 201.</span><span> REIMBURSEMENT REQUIREMENT.</span><div class="subsection"><span value="a" class="num">“(a)</span><span><span class="small-caps">Applicability</span>.—</span><span>This section applies with respect to any payment made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under <span href="/us/usc/t31/s1304" class="ref">section 1304 of title 31</span>, United States Code (relating to judgments, awards, and compromise settlements) to any Federal employee, former Federal employee, or applicant for Federal employment, in connection with any proceeding brought by or on behalf of such employee, former employee, or applicant under—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> any provision of law cited in subsection (c); or</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> any other provision of law which prohibits any form of discrimination, as identified under rules issued under section 204.</span></div></div><div class="subsection"><span value="span" class="num">“(span)</span><span><span class="small-caps">Requirement</span>.—</span><span>An amount equal to the amount of each payment described in subsection (a) shall be reimbursed to the fund described in <span href="/us/usc/t31/s1304" class="ref">section 1304 of title 31</span>, United States Code, out of any appropriation, fund, or other account (excluding any part of such appropriation, of such fund, or of such account available for the enforcement of any Federal law) available for operating expenses of the Federal agency to which the discriminatory conduct involved is attributable as determined under section 204.</span></div><div class="subsection"><span value="c" class="num">“(c)</span><span><span class="small-caps">Scope</span>.—</span><span>The provisions of law cited in this subsection are the following:</span><div class="paragraph"><span value="1" class="num">“(1)</span><span><span href="/us/usc/t5/s2302/span" class="ref">Section 2302(span) of title 5</span>, United States Code, as applied to discriminatory conduct described in paragraphs (1) and (8), or described in paragraph (9) of such section as applied to discriminatory conduct described in paragraphs (1) and (8), of such section.</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> The provisions of law specified in <span href="/us/usc/t5/s2302/d" class="ref">section 2302(d) of title 5</span>, United States Code.</span></div></div></section><section style="-uslm-lc:I580467;"><span value="202" class="num">“SEC. 202.</span><span> NOTIFICATION REQUIREMENT.</span><div class="subsection"><span value="a" class="num">“(a)</span><span><span class="small-caps">In General</span>.—</span><span>Written notification of the rights and protections available to Federal employees, former Federal employees, and applicants for Federal employment (as the case may be) in connection with the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) shall be provided to such employees, former employees, and applicants—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> in accordance with otherwise applicable provisions of law; or</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> if, or to the extent that, no such notification would otherwise be required, in such time, form, and manner as shall under section 204 be required in order to carry out the requirements of this section.</span></div></div><div class="subsection"><span value="span" class="num">“(span)</span><span><span class="small-caps">Posting on the Internet</span>.—</span><span>Any written notification under this section shall include, but not be limited to, the posting of the information required under paragraph (1) or (2) (as applicable) of subsection (a) on the Internet site of the Federal agency involved.</span></div><div class="subsection"><span value="c" class="num">“(c)</span><span><span class="small-caps">Employee Training</span>.—</span><span>Each Federal agency shall provide to the employees of such agency training regarding the rights and remedies applicable to such employees under the laws cited in section 201(c).</span></div><div class="subsection"><span value="d" class="num">“(d)</span><span><span class="small-caps">Notification of Final Agency Action.—</span></span><div class="paragraph"><span value="1" class="num">“(1)</span><span><span class="small-caps">In general</span>.—</span><span>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—</span><div class="subparagraph"><span value="A" class="num">“(A)</span><span> on the public internet website of the agency, in a clear and prominent location linked directly from the home page of that website;</span></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span> stating that a finding of discrimination (including retaliation) has been made; and</span></div><div class="subparagraph"><span value="C" class="num">“(C)</span><span> which shall remain posted for not less than 1 year.</span></div></div><div class="paragraph"><span value="2" class="num">“(2)</span><span><span class="small-caps">Events described</span>.—</span><span>An event described in this paragraph is any of the following:</span><div class="subparagraph"><span value="A" class="num">“(A)</span><span> 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.</span></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span> 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.</span></div><div class="subparagraph"><span value="C" class="num">“(C)</span><span> 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).</span></div></div><div class="paragraph"><span value="3" class="num">“(3)</span><span><span class="small-caps">Contents</span>.—</span><span>A notification provided under paragraph (1) with respect to a finding of discrimination (including retaliation) shall—</span><div class="subparagraph"><span value="A" class="num">“(A)</span><span> 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</span></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span> advise Federal employees of the rights and protections available under the provisions of law covered by paragraphs (1) and (2) of section 201(a).</span></div></div></div></section><section style="-uslm-lc:I580467;"><span value="203" class="num">“SEC. 203.</span><span> REPORTING REQUIREMENT.</span><div class="subsection"><span value="a" class="num">“(a)</span><span><span class="small-caps">Annual Report</span>.—</span><span>Subject to subsection (span), not later than 180 days after the end of each fiscal year, each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Reform [now Committee on Oversight and Accountability] 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—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on the part of such agency was alleged;</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> the status or disposition of cases described in paragraph (1);</span></div><div class="paragraph"><span value="3" class="num">“(3)</span><span> the amount of money required to be reimbursed by such agency under section 201 in connection with each of such cases, separately identifying the aggregate amount of such reimbursements attributable to the payment of attorneys’ fees, if any;</span></div><div class="paragraph"><span value="4" class="num">“(4)</span><span> the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1);</span></div><div class="paragraph"><span value="5" class="num">“(5)</span><span> the final year-end data posted under section 301(c)(1)(B) for such fiscal year (without regard to section 301(c)(2));</span></div><div class="paragraph"><span value="6" class="num">“(6)</span><span> a detailed description of—</span><div class="subparagraph"><span value="A" class="num">“(A)</span><span> the policy implemented by that agency relating to appropriate disciplinary actions against a Federal employee who—</span><div class="clause"><span value="i" class="num">“(i)</span><span> discriminated against any individual in violation of any of the laws cited under section 201(a)(1) or (2); or</span></div><div class="clause"><span value="ii" class="num">“(ii)</span><span> committed another prohibited personnel practice that was revealed in the investigation of a complaint alleging a violation of any of the laws cited under section 201(a)(1) or (2); and</span></div></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span> with respect to each of such laws, the number of employees who are disciplined in accordance with such policy and the specific nature of the disciplinary action taken;</span></div></div><div class="paragraph"><span value="7" class="num">“(7)</span><span> an analysis of the information described under paragraphs (1) through (6) (in conjunction with data provided to the Equal Employment Opportunity Commission in compliance with part 1614 of title 29 of the Code of Federal Regulations) including—</span><div class="subparagraph"><span value="A" class="num">“(A)</span><span> an examination of trends;</span></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span> causal analysis;</span></div><div class="subparagraph"><span value="C" class="num">“(C)</span><span> practical knowledge gained through experience; and</span></div><div class="subparagraph"><span value="D" class="num">“(D)</span><span> any actions planned or taken to improve complaint or civil rights programs of the agency; and</span></div></div><div class="paragraph"><span value="8" class="num">“(8)</span><span> any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201.</span></div></div><div class="subsection"><span value="span" class="num">“(span)</span><span><span class="small-caps">First Report</span>.—</span><span>The 1st report submitted under subsection (a) shall include for each item under subsection (a) data for each of the 5 immediately preceding fiscal years (or, if data are not available for all 5 fiscal years, for each of those 5 fiscal years for which data are available).</span></div><div class="subsection"><span value="c" class="num">“(c)</span><span><span class="small-caps">Disciplinary Action Report</span>.—</span><span>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—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> whether disciplinary action has been proposed against a Federal employee as a result of the violation; and</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> the reasons for any disciplinary action proposed under paragraph (1).</span></div></div></section><section style="-uslm-lc:I580467;"><span value="204" class="num">“SEC. 204.</span><span> RULES AND GUIDELINES.</span><div class="subsection"><span value="a" class="num">“(a)</span><span><span class="small-caps">Issuance of Rules and Guidelines</span>.—</span><span>The President (or the designee of the President) shall issue—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> rules to carry out this title;</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> rules to require that a comprehensive study be conducted in the executive branch to determine the best practices relating to the appropriate disciplinary actions against Federal employees who commit the actions described under clauses (i) and (ii) of section 203(a)(6)(A); and</span></div><div class="paragraph"><span value="3" class="num">“(3)</span><span> based on the results of such study, advisory guidelines incorporating best practices that Federal agencies may follow to take such actions against such employees.</span></div></div><div class="subsection"><span value="span" class="num">“(span)</span><span><span class="small-caps">Agency Notification Regarding Implementation of Guidelines</span>.—</span><span>Not later than 30 days after the issuance of guidelines under subsection (a), each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Equal Employment Opportunity Commission, and the Attorney General a written statement specifying in detail—</span><div class="paragraph"><span value="1" class="num">“(1)</span><span> whether such agency has adopted and will fully follow such guidelines;</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span> if such agency has not adopted such guidelines; the reasons for the failure to adopt such guidelines; and</span></div><div class="paragraph"><span value="3" class="num">“(3)</span><span> if such agency will not fully follow such guidelines, the reasons for the decision not to fully follow such guidelines and an explanation of the extent to which such agency will not follow such guidelines.</span></div></div></section><section style="-uslm-lc:I580467;"><span value="205" class="num">“SEC. 205.</span><span> CLARIFICATION OF REMEDIES.</span><span><p class="indent0" style="-uslm-lc:I21;">“Consistent with Federal law, nothing in this title shall prevent any Federal employee, former Federal employee, or applicant for Federal employment from exercising any right otherwise available under the laws of the United States.</p></span></section><section style="-uslm-lc:I580467;"><span value="206" class="num">“SEC. 206.</span><span> STUDIES BY GENERAL ACCOUNTING OFFICE [now GOVERNMENT ACCOUNTABILITY OFFICE] ON EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT OF CERTAIN DEPARTMENT OF JUSTICE COSTS.</span><div class="subsection"><span value="a" class="num">“(a)</span><span><span class="small-caps">Study on Exhaustion of Administrative Remedies.—</span></span><div class="paragraph"><span value="1" class="num">“(1)</span><span><span class="small-caps">Study.—</span></span><div class="subparagraph"><span value="A" class="num">“(A)</span><span><span class="small-caps">In general</span>.—</span><span>Not later than 180 days after the date of enactment of this Act [<span date="2002-05-15" class="date">May 15, 2002</span>], the General Accounting Office [now Government Accountability Office] shall conduct a study relating to the effects of eliminating the requirement that Federal employees aggrieved by violations of any of the laws specified under section 201(c) exhaust administrative remedies before filing complaints with the Equal Employment Opportunity Commission.</span></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span><span class="small-caps">Contents</span>.—</span><span>The study shall include a detailed summary of matters investigated, information collected, and conclusions formulated that lead to determinations of how the elimination of such requirement will—</span><div class="clause"><span value="i" class="num">“(i)</span><span> expedite handling of allegations of such violations within Federal agencies and will streamline the complaint-filing process;</span></div><div class="clause"><span value="ii" class="num">“(ii)</span><span> affect the workload of the Commission;</span></div><div class="clause"><span value="iii" class="num">“(iii)</span><span> affect established alternative dispute resolution procedures in such agencies; and</span></div><div class="clause"><span value="iv" class="num">“(iv)</span><span> affect any other matters determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.</span></div></div></div><div class="paragraph"><span value="2" class="num">“(2)</span><span><span class="small-caps">Report</span>.—</span><span>Not later than 90 days after completion of the study required by paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Equal Employment Opportunity Commission, and the Attorney General a report containing the information required to be included in such study.</span></div></div><div class="subsection"><span value="span" class="num">“(span)</span><span><span class="small-caps">Study on Ascertainment of Certain Costs of the Department of Justice in Defending Discrimination and Whistleblower Cases.—</span></span><div class="paragraph"><span value="1" class="num">“(1)</span><span><span class="small-caps">Study</span>.—</span><span>Not later than 180 days after the date of enactment of this Act [<span date="2002-05-15" class="date">May 15, 2002</span>], the General Accounting Office [now Government Accountability Office] shall conduct a study of the methods that could be used for, and the extent of any administrative burden that would be imposed on, the Department of Justice to ascertain the personnel and administrative costs incurred in defending in each case arising from a proceeding identified under section 201(a)(1) and (2).</span></div><div class="paragraph"><span value="2" class="num">“(2)</span><span><span class="small-caps">Report</span>.—</span><span>Not later than 90 days after completion of the study required by paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit to the Speaker of the House of Representatives and the President pro tempore of the Senate a report containing the information required to be included in the study.</span></div></div><div class="subsection"><span value="c" class="num">“(c)</span><span><span class="small-caps">Studies on Statutory Effects on Agency Operations.—</span></span><div class="paragraph"><span value="1" class="num">“(1)</span><span><span class="small-caps">In general</span>.—</span><span>Not later than 18 months after the date of enactment of this Act [<span date="2002-05-15" class="date">May 15, 2002</span>], the General Accounting Office [now Government Accountability Office] shall conduct—</span><div class="subparagraph"><span value="A" class="num">“(A)</span><span> a study on the effects of section 201 on the operations of Federal agencies; and</span></div><div class="subparagraph"><span value="B" class="num">“(B)</span><span></span></div></div></div></section>
