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SUMMARY OF AGENCY REQUIREMENTS AND RESPONSIBILITIES UNDER THE
NO FEAR ACT

Public Law 107-174

President Bush signed the Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002, commonly called the “No FEAR Act”, on May 15, 2002. The Act, which officially takes effect on October 1, 2003, mandates that Federal agencies shall be held individually accountable for violations of anti-discrimination and whistleblower protection laws. Following is a list of requirements and agency responsibilities under this Act:

1. Agencies should ensure that managers have adequate training in the management of a diverse workforce and in dispute resolution and other essential communication skills. (Refer to Title I, Section 102 of the Act)

2. Agencies that lose or settle discrimination and whistleblower cases must pay judgments out of their individual budgets. In the past, most settlements and judgments in favor of federal employees who sued agencies in discrimination and whistleblower cases were paid from a government-wide “judgment fund”. Under the new law, agencies must now reimburse the fund for court judgments and settlement payments to complainants. This payment shall be in the form of a reimbursement to the fund described in Section 1304 of Title 31, United States Code covering judgments, awards and settlements. (Refer to Title II, Section 201(a) through (c) of the Act)

3. Agencies must provide to their employees, former employees and applicants for employment written notification of discrimination and whistleblower protection laws. This written notification shall include, but not be limited to, the posting of the information on the Internet site of the agency involved. Agencies shall also provide to their employees training regarding the rights and remedies applicable to them under these laws. (Refer to Title II, Section 202(a) through (c) of the Act)

4. Not later than 180 days after the end of each fiscal year, each agency shall file an annual report with Congress detailing the number of discrimination or whistleblower cases filed with the individual agency; the status or disposition of each case; if resolved, how each case was resolved; the amount of monetary settlements made and the number of agency employees disciplined for discrimination, retaliation, harassment or for any other violation of the discrimination and/or whistleblower protection laws covered under this Act. Agencies shall also include in their report to Congress:

a. A detailed description of the policy implemented by that agency relating to appropriate disciplinary actions to take against Federal employees that violate the discrimination and/or whistleblower protection laws covered under this Act, or commit another prohibited personnel practice that was revealed in the investigation of such alleged violations;

b. The number of employees who are disciplined for violations of the discrimination and/or whistleblower protection laws covered under this Act and the specific nature of the disciplinary action taken against each employee;

c. An analysis providing an examination of trends and causes accompanied by practical knowledge gained through experience and any actions planned or taken to improve the complaint or civil rights program of the agency; and

d. Any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the reimbursement requirement under Section 201 of the Act. (Refer to Title II, Section 203(a) of the Act)

5. The first annual report submitted by each agency to Congress, referenced in item number 4 above, shall include data for each of the five immediately preceding fiscal years (or, if data is not available for all fiscal years, for each of those five years for which data is available). (Refer to Title II, Section 203(b) of the Act)

6. RULES AND GUIDELINES – The President, or designee of the President, shall issue rules to: (a) carry out the requirements of this Act; (b) require that a comprehensive study be conducted in the executive branch to determine the best practices relating to appropriate disciplinary actions against Federal employees who violate provisions under this Act; and (c) provide advisory guidelines incorporating the best practices that Federal agencies may follow to take such actions against such employees. (Refer to Title II, Section 204(a) of the Act)

7. IMPLEMENTATION OF GUIDELINES BY AGENCIES – Not later than 30 days after the issuance of the guidelines referenced in Item 6 above, each Federal agency shall submit to the Speaker of the House or Representatives, the President pro tempore of the Senate, the Equal Opportunity Commission (EEOC) and the Attorney General a written statement specifying in detail:

a. Whether such agency has adopted and will fully follow such guidelines;

b. If such agency has not adopted such guidelines, the reasons for the failure to adopt such guidelines; and

c. 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. (Refer to Title II, Section 204(b) of the Act)

8. DATA TO BE POSTED BY THE FEDERAL AGENCIES (available at http://www.dotcr.ost.dot.gov/asp/nofear.asp#2 ): Each agency shall post on its public web site, in the time and manner prescribed under Section 303 of this Act, summary statistical data relating to equal opportunity complaints filed with such agency by employee or former employees of, or applicants for employment with such agency. The data posted by the Federal agency shall include, for the then current fiscal year the following:

a. The number of complaints filed with such agency in such fiscal year;

b. The number of individuals filing those complaints;

c. The number of individuals who filed two or more of those complaints;

d. The number of complaints in which each of the various bases of alleged discrimination is alleged;

e. The number of complaints in which each of the various issues of alleged discrimination is alleged;

f. The average length of time it is taking the agency to process each complaint for each step of the process (this covers all complaints and includes complaints where an administrative hearing is requested and where it is not requested);

g. The total number of final agency decisions rendered in such fiscal year involving a finding of discrimination (the number and percentage that were rendered without a hearing before an EEOC administrative judge and the number and percentage rendered after a hearing before an EEOC administrative judge);

h. Of the total number of final agency decisions, the number and percentage involving a finding of discrimination based on the individual bases – the number and percentage that were rendered without a hearing before an EEOC administrative judge and the number and percentage that were issued after a hearing before an EEOC administrative judge;

i. Of the total number of final agency decisions, the number and percentage involving a finding of discrimination based on the individual issues – the number and percentage that were rendered without a hearing before an EEOC administrative judge and the number and percentage that were issues after a hearing before an EEOC administrative judge;

j. The total number of complaints pending in such fiscal year. This includes the number that were first filed before the start of the current fiscal year;

k. With respect to the complaints that were first filed before the start of the current fiscal year – the number of individuals who filed those complaints and the number of complaints which are at the various steps of the complaint process; and

l. Of the total number of complaints pending in such fiscal year, the total number of complaints in which the agency failed to complete an impartial investigation within 180 days from the date the complaint was filed. (Refer to Title II, Section 301(a) through (b) of the Act)

9. TIMING – Data referenced above in Item Number 8 and to be posted which covers the current fiscal year, shall include interim year-to-date date, updated quarterly and final year-end data. Data to be posted covering prior years shall include year-end data for each of the five immediately preceding fiscal years (or, if not available for all five fiscal years, for however many of those five years fiscal years for which data is available). (Refer to Section 301(c) of the Act)

Complete text of the statute is available at:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid;=f:publ174.107.pdf

More information and links to the required posted data can be obtained from the DOT website at: http://www.dotcr.ost.dot.gov /asp/nofear.asp.