Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020
| Published date | 06 January 2022 |
| Citation | 87 FR 736 |
| Record Number | 2021-28019 |
| Section | Proposed rules |
| Court | Personnel Management Office |
Federal Register, Volume 87 Issue 4 (Thursday, January 6, 2022)
[Federal Register Volume 87, Number 4 (Thursday, January 6, 2022)]
[Proposed Rules]
[Pages 736-745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28019]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 4 / Thursday, January 6, 2022 /
Proposed Rules
[[Page 736]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 724
RIN 3206-AO26
Elijah E. Cummings Federal Employee Anti-Discrimination Act of
2020
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed
regulations that would govern Federal antidiscrimination (including
retaliation) and whistleblower protection. The proposed rule would
implement statutory changes and amend the regulations to incorporate
technical revisions and other changes relating to these subjects to
make the rule more efficient and effective.
DATES: Comments must be received on or before February 7, 2022.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, by the
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for sending comments.
Instructions: All submissions must include the agency name and
docket number or RIN for this rulemaking. Please arrange and identify
your comments on the regulatory text by subpart and section number; if
your comments relate to the supplementary information, please refer to
the heading and page number. All comments received will be posted
without change, including any personal information provided. Please
ensure your comments are submitted within the specified open comment
period. Comments received after the close of the comment period will be
marked ``late,'' and OPM is not required to consider them in
formulating a final decision. Before acting on this proposal, OPM will
consider and respond to all comments within the scope of the
regulations that we receive on or before the closing date for comments.
Changes to this proposal may be made in light of the comments we
receive.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at
[email protected] or by telephone at (202) 606-2930
(voice) and 711 (TTY).
SUPPLEMENTARY INFORMATION: The Elijah E. Cummings Federal Employee
Antidiscrimination Act of 2020 (Cummings Act) became law on January 1,
2021. The law amends the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (``No FEAR Act''),
Public Law 107-174. In the No FEAR Act of 2002, Congress entrusted the
President with the authority to promulgate rules to carry out Title II
of the No FEAR Act and the President, in turn, delegated to OPM the
authority to issue regulations to implement these provisions. The
regulations at title 5, Code of Federal Regulations, part 724 carry out
that authority and, as modified by the proposed rule, will assist
agencies in carrying out, consistent with law, these No FEAR Act
amendments. First, OPM proposes to rename the title of this part to
state the current purpose and content of this part by removing
``Implementation of,'' which was appropriate for the initial
regulations established in 2006. We also propose to amend the authority
citation to add a reference to the Cummings Act.
The proposed regulations clarify procedures and add new
requirements. In particular, they require an agency to: Provide notice,
in an accessible format, of a finding of intentionally committed
discriminatory (including retaliatory) \1\ acts on the public internet
website (linked directly from the home page) of the agency after all
appeals have been exhausted; submit the annual report in an accessible,
electronic format prescribed by the Director of OPM; submit a
disciplinary action report, in an accessible, electronic format, to the
Equal Employment Opportunity Commission (EEOC); establish, or leverage,
a system to track each complaint of discrimination; and provide a
notation of any adverse action taken under section 7512 of title 5,
United States Code, for a covered act of discrimination (including
retaliation) in the personnel record of an agency employee found to
have intentionally committed discriminatory (including retaliatory)
acts, after all appeals are exhausted.
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\1\ Retaliation is a form of prohibited discrimination.
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The proposed regulations also will update references and language
due to statutory changes and clarify procedures and requirements to
support agencies in complying with the requirements of the No FEAR Act.
OPM will issue revised language for Notice obligations, Sec. 724.202,
which includes the model paragraphs for agency No FEAR notices, in a
separate rulemaking.
Finally, OPM proposes to remove references to requirements and
deadlines that were established when the law was initially implemented
and that have been fulfilled. As noted in the original final rule
implementing the No FEAR Act, Congress found that, ``[i]n order to
maintain a productive workplace that is fully engaged with the many
important missions before the Government, it is essential that the
rights of employees, former employees, and applicants for Federal
employment, under antidiscrimination and whistleblower protection laws,
be steadfastly protected and that agencies that violate these rights be
held accountable.'' 71 FR 27185 (May 10, 2006). Additionally, through
the No FEAR Act amendments, it was the sense of Congress that
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, but that
accountability is not furthered if Federal agencies react to increased
accountability for their lawful responsibility by taking unfounded
disciplinary actions against Federal employees or by violating the
procedural rights of managers who have been accused of discrimination.
Accordingly, disciplinary actions against Federal employees alleged to
have intentionally committed discriminatory (including retaliatory)
acts should not be taken reflexively, but rather as the result of
methodical consideration of all the facts and pursuant to the
prescribed processes.
[[Page 737]]
5 CFR Part 724--Implementation of Title II of the Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2002
Subpart A--Reimbursement of Judgment Fund
This subpart implements the portion of Title II of the No FEAR Act
of 2002 concerning the obligation of Federal agencies to reimburse the
Judgment Fund for payments. Key terms used throughout title 5, Code of
Federal Regulations (CFR), part 724 are defined in this subpart.
Currently in 5 CFR 724.102, the No FEAR Act is defined. OPM
proposes to remove the quotation marks from and revise the definition
of ``No FEAR Act'' to reflect that the term means the Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2002, as
amended by the Cummings Act. In addition, there are definitions of
``Antidiscrimination Laws'' and ``Payment.'' Congress enacted the
``Genetic Information Nondiscrimination Act (GINA) of 2008'', effective
November 21, 2009, after finding that ``Federal legislation
establishing a national and uniform basic standard is necessary to
fully protect the public from discrimination and allay their concerns
about the potential for discrimination, thereby allowing individuals to
take advantage of genetic testing, technologies, research, and new
therapies.'' Title II of GINA prohibits employment discrimination on
the basis of genetic information. OPM proposes to revise the
definitions of ``Antidiscrimination Laws'' and ``Payment'' in 5 CFR
724.102 to add sections 2000ff et seq. of title 42, United States Code,
which codifies GINA, to the list of statutes that comprise the
Antidiscrimination Laws. ``Antidiscrimination Laws'' is further revised
to make clear it applies to laws prohibiting discrimination (including
retaliation).
Subpart B--Notification of Rights and Protections and Training
This subpart implements the portion of Title II of the No FEAR Act
concerning the obligation of Federal agencies to notify all employees,
former employees, and applicants for Federal employment of the rights
and protections available to them under the Federal Antidiscrimination
Laws and Whistleblower Protection Laws. This subpart also implements
Title II concerning the obligation of agencies to train their employees
on such rights and remedies. The regulations describe agency
obligations and the procedures for written notification and training.
Section 724.203 Notification of Final Agency Action
Subpart B of the No FEAR Act, as amended by the Cummings Act, will
now provide for two different notices. The notice regulations already
existing at 5 CFR 724.202 were derived from section 202 of the original
text of the No FEAR Act; the new requirement implements section 1133 of
the Cummings Act. The existing regulation applies to the notice of
rights agencies are required to provide to current and former Federal
employees and applicants for Federal employment. OPM proposes to
redesignate Sec. 724.203 for notification of final agency action to
implement the new public disclosure obligations an agency must
undertake when there has been a finding of discrimination (including
retaliation) against the agency and all appeals have been exhausted.
(The Cummings Act refers to this as a ``notice of violation.'')
Specifically, an agency must provide notice in an accessible format
linked from its public-facing website of any final decision in which
there has been a finding of discrimination (including retaliation)
against the agency. Note that a claim of discrimination need not
include retaliation as a basis and retaliation can separately be raised
as a basis for a claim of discrimination.
Under the proposed Sec. 724.203, the head of the Federal agency
subject to the finding must provide notice on the agency's public
website within 90 days after the date on which any of the events
specified in section 1133 of the Cummings Act occur, that is, the date
on which--
all appeals of a final action by a Federal agency,
including when a Federal agency fails to take a final action and the
administrative judge's decision becomes final (see 29 CFR 1614.109(i)),
involving a finding of intentionally committed discriminatory
(including retaliatory) acts prohibited by a provision of law covered
by paragraph (1) or (2) of section 201(a) of the No FEAR Act have been
exhausted;
all appeals of a final decision by the EEOC involving a
finding of intentionally committed discriminatory (including
retaliatory) acts prohibited by a provision of law covered by paragraph
(1) or (2) of section 201(a) of the No FEAR Act have been exhausted; or
a court of jurisdiction issues a final judgment involving
a finding of intentionally committed discriminatory (including
retaliatory) acts prohibited by a provision of law covered by paragraph
(1) or (2) of section 201(a) of the No FEAR Act.
OPM interprets the phrase ``final judgment'' in the description of
the third event to mean the date on which the opportunity for further
appeal expires, either because the time for any further appeal elapses
or because the court issuing the final decision in the case is the
final reviewing court from which relief could be sought.
The agency's notification must identify the date on which the
finding was made, the date on which each discriminatory act was found
to have occurred, and the law found to have been violated by each such
discriminatory act, and, once again, advise Federal employees of the
rights and protections available under the provisions of law covered by
paragraphs (1) and (2) of section 201(a) of the No FEAR Act. Where an
EEOC decision fails to identify the date on which each act found by the
EEOC to be discriminatory occurred, the agency should affirmatively
note its inability to specify such dates, for that reason.
Section 724.204 Training Obligations
In OPM's current regulations, training obligations are addressed at
Sec. 724.203. However, due to the addition of the new requirement for
notification of final agency action as discussed above at Sec.
724.203, OPM proposes to add a new section designated as Sec. 724.204
for the training obligations. The proposed Sec. 724.204 describes the
training that each Federal agency must provide to all of its employees
(including supervisors and managers) about the rights and remedies
available under the Antidiscrimination Laws and Whistleblower
Protection Laws applicable to them. Agencies were required to provide
the initial training by December 17, 2006, and, thereafter, on a
training cycle of no longer than every two years. Because the deadline
for the initial training has passed, OPM proposes to remove that
deadline from Sec. 724.204(d) (formerly Sec. 724.203(d)).
Consistent with the No FEAR Act, however, the regulations continue
to require agencies to train new employees on the rights and remedies
available under the antidiscrimination and whistleblower protection
laws as part of its agency orientation program or other training
program. Any agency that does not use a new employee orientation
program for this purpose must train new employees within 90 calendar
days of the new employees' appointment. In this context, ``new
employees'' are those who are new to the agency, including those who
transfer from one Federal agency to another. In addition, each agency
must continue to train all
[[Page 738]]
existing employees on a training cycle of no longer than every two
years.
Subpart C--Annual Report
This subpart implements the portion of Title II of the No FEAR Act
concerning the obligation of Federal agencies to report on specific
topics concerning Federal Antidiscrimination Laws and Whistleblower
Protection Laws applicable to them, covering Federal employees, former
Federal employees, and applicants for Federal employment. Section
1134(b) of the Cummings Act adds a new reporting requirement to section
203 of the No FEAR Act for a disciplinary action report. To incorporate
the new disciplinary action report requirement into part 724, OPM
proposes to change the subpart C heading from ``Annual Report'' to
``Reporting Obligations.''
Section 724.302 Reporting Obligations
OPM proposes to change the heading for Sec. 724.302 from
``Reporting obligations'' to ``Annual report'' to clarify that the
provisions in Sec. 724.302(a) through (c) are specific to the annual
report required by section 203(a) of the No FEAR Act, which requires
Federal agencies to create annual reports on a number of items
concerning Federal Antidiscrimination Laws and Whistleblower Protection
Laws as defined in section 201 of the Act. The annual reports are to be
submitted to: The Speaker of the U.S. House of Representatives;
President Pro Tempore of the U.S. Senate; U.S. Senate Committee on
Homeland Security and Governmental Affairs; U.S. House of
Representatives Committee on Oversight and Reform; each committee of
Congress with jurisdiction relating to the agency; the EEOC; the
Attorney General; and OPM.
Section 1134(a) of the Cummings Act requires that the annual
reports mandated by section 203(a) of the No FEAR Act be submitted in
an electronic format prescribed by the Director of OPM. OPM proposes to
amend paragraphs (a) and (c) of Sec. 724.302 to require that each
agency submit its annual report in a Portable Document Format (PDF) or
other electronic file format that conforms with the standards of
Section 508 of the Rehabilitation Act, as amended (29 U.S.C. 794(d)),
and its implementing regulations (36 CFR part 1194). Section 508 of the
Rehabilitation Act requires Federal agencies to make their information
and communication technology accessible to people with disabilities in
a manner that is substantially equivalent to the access provided to
people without disabilities. The annual report must be formatted to
enable it to be attached to an electronic mail (email) message (or a
successor electronic delivery system identified by OPM) addressed to
the receiving Congressional office or agency. This electronic format
will be required for any annual report submitted under this provision
on or after January 1, 2022. Agencies may, however, begin use of the
OPM-prescribed electronic format requirements prior to January 1, 2022.
Annual report submissions to OPM should be sent to
[email protected]. Annual report submissions to the Equal
Employment Opportunity Commission, pursuant to 5 CFR 724.302(c)(6),
should be sent to [email protected].
Under the provisions of the No FEAR Act, each agency's first annual
report was due on March 30, 2005, as explained in the current text at 5
CFR 724.302(b). Agencies that had submitted their reports before the
original regulations became final were instructed in Sec. 724.302(b)
to ensure that their reports contained data elements 1 through 8 of
paragraph (a) of this section and to provide any necessary supplemental
reports by April 25, 2007. Given that the March 2005 and April 2007
deadlines have passed and the instructions for reports submitted prior
to the finalization of the regulations are no longer relevant, OPM
proposes to remove those deadlines and instructions from the
regulations at Sec. 724.302(b).
Section 1134(a) of the Cummings Act amends Section 203(a) of the No
FEAR Act by updating the names of two Congressional committees that
must receive the annual report: The U.S. Senate ``Committee on
Governmental Affairs'' is now the U.S. Senate ``Committee on Homeland
Security and Governmental Affairs'', and the U.S. House ``Committee on
Government Reform'' is now the U.S. House ``Committee on Oversight and
Reform.'' Accordingly, OPM proposes to amend Sec. 724.302(c) to revise
the committee names, as well as to encompass any successor committees.
Section 724.303 Disciplinary Action Report
OPM proposes to add Sec. 724.303, a new section for ``Disciplinary
action report,'' in accordance with the establishment of the new
reporting requirement in section 1134(b) of the Cummings Act. The
provision tracks the statute to the effect that, not later than 120
days from the date on which a Federal agency takes final action (or
fails to take a final action and the administrative judge's decision
becomes final; see 29 CFR 1614.109(i)), or a Federal agency receives a
final decision issued by the EEOC (i.e., a decision from the EEOC's
Office of Federal Operations (OFO), or a decision as to which the time
to seek OFO review has elapsed) involving a finding of intentionally
committed discriminatory (including retaliatory) acts in violation of a
provision of law covered by paragraph (1) or (2) of section 201(a) of
the No FEAR Act, as applicable, the applicable Federal agency must
submit to the EEOC a report stating (1) whether disciplinary action has
been proposed against a Federal employee as a result of the violation;
and (2) the reasons for any disciplinary action.
Subpart D--Best Practices
Section 724.401 Purpose and Scope
As described in 5 CFR 724.401, current subpart D, titled ``Best
Practices,'' implements Title II of the No FEAR Act concerning the
obligation of the President or his designee (OPM) to conduct a
comprehensive study of best practices in the executive branch for
taking disciplinary actions against employees for conduct that is
inconsistent with Federal Antidiscrimination and Whistleblower
Protection Laws and the obligation to issue advisory guidelines for
agencies to follow in taking appropriate disciplinary actions in such
circumstances. As explained further below, the obligations under the
subpart have been fulfilled. Therefore, OPM proposes to revise subpart
D, by removing the heading and content in its entirety and renaming and
redesignating the subpart for new requirements under the Cummings Act.
OPM may elect in the future, under its statutory authority, to conduct
future studies if necessary.
Section 724.402 Best Practices Study
Section 724.403 Advisory Guidelines
Pursuant to current Sec. 724.402, OPM conducted a comprehensive
study in the executive branch to identify best practices for taking
appropriate disciplinary actions against Federal employees for conduct
that is inconsistent with Federal Antidiscrimination and Whistleblower
Protection Laws. As required by current Sec. 724.403, OPM developed
advisory guidelines for best practices that agencies may follow to take
appropriate disciplinary actions against employees for conduct that is
inconsistent with Federal Antidiscrimination Laws and Whistleblower
Laws. OPM compiled its best practices findings and advisory guidelines
and issued them in the report ``Disciplinary Best Practices and
Advisory Guidelines Under the No FEAR Act'' in September 2008. A copy
[[Page 739]]
of the report can be found on https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/nofearact.pdf or
provided upon a request to the Manager, Employee Accountability,
Accountability and Workforce Relations, Employee Services, Office of
Personnel Management, 1900 E Street NW, Washington, DC 20415. Given
that OPM fulfilled its one-time obligations under this subpart, these
sections are no longer needed in the regulations and will be removed.
Section 724.404 Agency Obligations
Under current Sec. 724.404, each Federal agency was required to
provide a written statement to Congress, the EEOC, the Attorney General
and OPM within 30 working days of the issuance of the advisory
guidelines. The written statement was to describe in detail whether the
agency had adopted the guidelines and would fully follow them; the
reasons for non-adoption, if such agency had not adopted the
guidelines; and the reasons for the decision not to fully follow the
guidelines, as well as an explanation of the extent to which the agency
would not follow them if such agency would not do so. Given that the
30-day deadline for the agency reports has expired and the No FEAR Act
does not envision an ongoing obligation for agency statements on the
advisory guidelines, this section is no longer needed in the part 724
regulations and will be removed.
Subpart D--Complaint Tracking and Notation in Personnel Record
[Redesignated]
Section 724.401 Purpose and Scope
The proposed removal of the Best Practices text (because those
requirements were previously fulfilled) allows OPM to redesignate
subpart D to address two new amendments to the No FEAR Act established
by the Cummings Act: A new section 207, concerning the obligation of
Federal agencies to track discrimination complaints from filing to
resolution (Complaint Tracking), and a new section 208, containing a
requirement to place a notation in the personnel record of a Federal
employee who is found, following an adverse action, and after all
appeals have been exhausted, to have intentionally committed
discriminatory (including retaliatory) acts (Notation in Personnel
Record). Proposed Sec. 724.401 explains that the purpose of subpart D
is to implement these new requirements.
Section 724.402 Complaint Tracking
Under proposed Sec. 724.402, OPM incorporates the requirement of
the Cummings Act that each agency create a tracking system for
discrimination complaints. Not later than January 1, 2022, each Federal
agency must establish or leverage an existing 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 the filing of a complaint with the Federal
agency to resolution of the complaint. In a case where there was a
finding of intentionally committed discriminatory (including
retaliatory) acts, the agency would also need to track whether a
decision has been made regarding any follow-up disciplinary action, and
what decision was reached.
Section 724.403 Notation in Personnel Record
Under proposed Sec. 724.403, OPM addresses a new requirement for
agencies to document any adverse action taken against a Federal
employee found to have intentionally committed discriminatory
(including retaliatory) acts. If a Federal agency takes an adverse
action covered under section 7512 of title 5, United States Code,
against a Federal employee for intentionally committed discriminatory
(including retaliatory) acts prohibited by a provision of law covered
by paragraph (1) or (2) of section 201(a) of the Act, the agency must,
after all appeals relating to that action have been exhausted and the
finding remains, include a notation of the adverse action, and the
reason for the action, in the personnel record of the employee. This
requirement of the statute underscores agencies' current responsibility
to notate an employee's personnel record if a chapter 75 adverse action
is taken and the reason for the action. The obligation for such a
notation is fulfilled when the agency processes the Standard Form (SF)
50, ``Notification of Personnel Action,'' which is located at https://www.opm.gov/forms/pdfimage/sf50.pdf, or equivalent for agencies with an
OPM-approved exception to the SF 50, which is required documentation
for section 7512 adverse actions. The SF 50 creates a permanent record
of the adverse action taken by recording the ``Nature of Action'' and
``Remarks.'' OPM uses nature of action and remarks to identify the
different types of personnel actions to facilitate certain payroll/
personnel processes and Agency unique requirements. The Nature of
Action is the required phrase that explains the action that is
occurring (e.g., suspension, reduction in grade or pay, or removal).
Under the Remarks section of the SF 50, the agency must provide the
reason for the action. OPM will establish a new nature of action code
and new remark code for actions taken against a Federal employee for
intentionally committing discriminatory (including retaliatory) acts
identified by the No FEAR Act as amended by the Cummings Act.
Instructions for processing the SF 50 are found in OPM's Guide to
Processing Personnel Actions at https://www.opm.gov/policy-data-oversight/data-analysis-documentation/personnel-documentation/#url=Processing-Personnel-Actions.
Technical Amendments
OPM proposes to correct the spelling of ``Judgment'' in the table
of contents and the regulatory heading for subpart A. The proposed rule
corrects the quotation marks by removing them in the definition of the
No FEAR Act in Sec. 724.102. The proposed rule corrects the
capitalization in ``antidiscrimination'' and ``whistleblower protection
laws'' in the Disciplinary Actions model paragraph in Sec. 724.202(g)
for consistency with the capitalization of the terms elsewhere in the
model paragraphs. Also, the proposed rule adds a period at the end of
the last sentence in the Disciplinary Actions model paragraph. Within
Sec. 724.202, OPM proposes to revise all references to ``web sites''
to read ``websites'' and references to ``Web site'' to read
``website''. Within Sec. 724.302(a)(4), OPM proposes to correctly
identify the citation to the Equal Employment Opportunity regulations
at subpart G of part 1614 of title 29, Code of Federal Regulations. In
724.302(b) OPM proposes to correct March 30th to appear as March 30.
Expected Impact of This Proposed Rule
A. Statement of Need
OPM is issuing the proposed rule to implement the Elijah E.
Cummings Federal Employee Antidiscrimination Act of 2020 (hereafter,
the Cummings Act), which amends the No FEAR Act of 2002. The No FEAR
Act of 2002 states that ``[t]he President (or the designee of the
President) shall issue--(1) rules to carry out this title [Pub. L. 107-
174, Title II Sec. Sec. 201-206, May 15, 2002, 116 Stat. 568].'' See 5
U.S.C.A. 2301 note, Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002, sec. 204 (emphasis
supplied). President George W. Bush designated OPM as the entity that
would carry out
[[Page 740]]
the President's obligation to issue rules to carry out title II of the
No FEAR Act. Accordingly, OPM has an obligation to promulgate
amendments necessary to implement the new requirements created by the
Cummings Act and incorporate them into the regulatory scheme.
The Cummings Act added five new requirements to the original No
FEAR Act. (1) Each Federal agency must now post a notice, on a public-
facing website, of any final finding of discrimination or retaliation
by the agency in violation of applicable law. (2) Agencies will be
required to submit their annual reports in a uniform manner to be
prescribed by OPM in its regulations. (3) An agency that has been found
to have committed discrimination or retaliation must notify the Equal
Employment Opportunity Commission (EEOC) whether disciplinary action
has been proposed against any agency employee as a result of the
finding. (4) Every agency must establish a system to track each
complaint of discrimination, arising under one of the statutes listed
in 5 U.S.C. 2302(b)(1), through its conclusion, including whether a
decision has been made regarding disciplinary action. (5) Each agency
that takes an adverse action against an employee under 5 U.S.C. 7512 in
relation to a finding of discrimination or retaliation by the agency
must add a notation about that action to the employee's personnel
record. OPM is implementing these statutory requirements in the least
burdensome way it can while still effectuating the congressional
purposes of the No FEAR Act, as amended by the Cummings Act.
The rulemaking proposes new regulations that require an agency to
provide notice of a finding of discrimination (including retaliation)
on the public internet website (linked directly from the home page) of
the agency after all appeals have been exhausted; submit the annual
report in an accessible, electronic format prescribed by the Director
of the OPM; submit a disciplinary action report, in an accessible,
electronic format, to the EEOC; establish, or leverage, a system to
track each complaint of discrimination; and provide a notation of any
adverse action taken under section 7512 of title 5, United States Code,
for a covered act of discrimination (including retaliation) in the
personnel record of an agency employee found to have intentionally
engaged in an act of discrimination, after all appeals are exhausted.
B. Impact
The purpose of the OPM regulations is largely to conform existing
regulations to the new statutory requirements. OPM regulations do fill
in some policy gaps, but any regulatory decisions will have a marginal
impact on transfers, costs, and benefits, and the regulatory amendments
proposed in this rulemaking go no further than is necessary to
implement the statutory changes. Without these amendments, it will be
impossible for OPM to comply with its own obligations under the No FEAR
Act, as amended, and agencies will lack guidance concerning how to
effectuate their own obligations under the Cummings Act.
Under the existing regulations, it is difficult for members of the
public to determine whether an agency has been the subject of a finding
of discrimination (including retaliation) against the agency, because
such findings are posted only in physical form on agency bulletin
boards. The statute now requires an electronic posting on a public-
facing website. Agencies already provide notice on their public
websites related to No FEAR, so the additional burden should be
minimal.
Currently, there is not a uniform method for agencies to submit
annual No FEAR Act reports. An agency may submit its annual report in
any format and via any means of delivery, which means there is room for
improvement in consistency and efficiency in the agency reporting
process. OPM aims to provide a format that will simplify reporting for
agencies and better enable Congress to review and grasp results from
across the Government. The ongoing burden should be minimal once new
regulations are published and the new format is adopted at each agency.
OPM assumes that agencies currently have some system for tracking
complaint information, if for no other purpose than compiling and
preparing the annual report of No FEAR Act data. Agencies with simpler
systems may need to develop a more robust tool to meet the statutory
requirement for a system that tracks each complaint from filing through
resolution and including disciplinary action, if taken as a consequence
of a finding of discrimination, but we do not expect that the
additional effort will be very burdensome.
The requirement that an agency notify the EEOC whether the agency
has proposed disciplinary action against any agency employee as a
result of a finding that the agency has violated one or more of the
Antidiscrimination or Whistleblower Protection Laws, will add a new
burden to agencies, but this burden has been imposed by Congress, and
OPM is merely aligning its regulations to the statute to incorporate
the new requirement.
The regulation also provides that an agency must include a notation
of the adverse action and the reason for the action in the personnel
record of the employee if the agency takes an adverse action covered
under section 7512 of title 5, U.S. Code, against the employee for an
intentional act of discrimination (including retaliation). In order to
ease agencies' compliance with this statutory requirement, OPM proposes
to establish a new nature of action code and new remark code for
agencies to notate and provide the reason for the adverse action. This
will enhance transparency as to the basis for agency action and serve
the congressional purpose by providing a deterrent to prohibited
behavior.
C. Regulatory Alternatives
For the most part, the changes reflected in OPM's implementing
regulations are required by statute and cannot be avoided or further
simplified. The Cummings Act requires that an agency provide notice of
a finding of discrimination (including retaliation) on the public
internet website (linked directly from the home page) of the agency
after all appeals have been exhausted; agencies were already posting
physical copies at their agency worksites, and now OPM has modified its
regulations to incorporate the new electronic posting requirement. In
addition, the statute requires that the Director of OPM prescribe an
electronic format for agencies to submit annual reports about cases in
Federal court pending or resolved in each fiscal year and arising under
the Federal Antidiscrimination Laws and Whistleblower Protection Laws
applicable to them in which an employee, former Federal employee, or
applicant alleged a violation(s) of these laws. We have laid out an
approach that we believe is minimally burdensome for agencies. The
Cummings Act imposed on agencies a new obligation to submit a
disciplinary action report to the Equal Employment Opportunity
Commission (EEOC) whenever the agency is found to have violated one of
the anti-discrimination or whistleblowing provisions. Our proposed
regulations incorporate this new obligation. The Cummings Act requires
an agency to track each complaint of discrimination or retaliation; we
assume agencies already do this in some fashion, but we now instruct
them how to fulfill all the terms of the statutory requirement, which
should cause minimal additional burden. Similarly, the statute provides
the requirement that the agency insert a
[[Page 741]]
notation of any adverse action taken under section 7512 of title 5,
United States Code, for a covered act of discrimination (including
retaliation) in the personnel record of an agency employee found to
have intentionally engaged in an act of discrimination, after all
appeals are exhausted, and we believe this can be accomplished with
relatively minimal burden.
OPM considered alternatives with respect to the electronic format
for the annual report. Currently, agencies submit their annual reports
electronically or via hard copy. One option was to require agencies to
submit the annual report as a Portable Document Format (PDF) via email.
The other option was to give agencies flexibility to determine the
electronic file format, as long as the format conforms with the
standards of Section 508 of the Rehabilitation Act, as amended (29
U.S.C. 794(d) and 36 CFR part 1194), and the means of submission. Under
this option, which is preferred by OPM, the regulation would give the
agency authority to determine a format within their available means.
Submission via another avenue, such as fax or U.S. Postal Service,
would require use of more resources, including staff time, than
submission via email.
OPM also considered alternatives with regard to the complaint
tracking system. One option was for agencies to establish a new system
to track complaints. Alternatively, agencies could leverage an existing
system. Currently, the existing annual report requirement involves the
collection of data elements that are closely related to the data
elements agencies must capture in a complaint tracking system as
required by the Cummings Act. For example, among other elements,
agencies must report annually on the number of cases; the status or
disposition (including settlement) of each case; and the number of
employees disciplined and the nature of discipline for conduct that is
inconsistent with Antidiscrimination Laws and Whistleblower Protection
Laws. Similarly, agencies must now 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 the filing of a complaint with the Federal agency to
resolution of the complaint. In a case where there was a finding of
intentional discrimination, the agency would also need to track whether
a decision has been made regarding any follow-up disciplinary action,
and what decision was reached. In considering the options for a
tracking system, OPM weighed the burden of an agency developing or
procuring a new system and determined that regulations should not
mandate establishment of a new system if an agency can leverage an
existing system.
In considering the regulation for disciplinary action reports, OPM
tracked the statute to the effect that, not later than 120 days from
the date on which a Federal agency takes final action, or a Federal
agency receives a final decision issued by the EEOC (i.e., a decision
from the EEOC's Office of Federal Operations (OFO), or a decision as to
which the time to seek OFO review has elapsed) involving a finding of
intentional discrimination (including retaliation) in violation of a
provision of law covered by paragraph (1) or (2) of section 201(a) of
the No FEAR Act, as applicable, the applicable Federal agency must
submit to the EEOC a report stating (1) whether disciplinary action has
been proposed against a Federal employee as a result of the violation;
and (2) the reasons for any disciplinary action. OPM proposes to
require that agencies submit the disciplinary action report in an
accessible, electronic format. As is the case with the annual report,
this option gives agencies flexibility to determine the electronic file
format, as long as the format conforms with the standards of Section
508 of the Rehabilitation Act, as amended (29 U.S.C. 794(d) and 36 CFR
part 1194). This preferred option gives agencies authority to determine
a format within their available means. OPM did not prescribe the means
of submission for the disciplinary action reports. Given that the
report is to be submitted only to the EEOC, OPM defers to the EEOC and
agencies to determine the best delivery method for disciplinary action
reports.
Regarding the statutory requirement that an agency provide notice
linked from its public-facing website of any final decision in which
there has been a finding of discrimination (including retaliation)
against the agency, OPM has not specified any design requirements.
Agencies have the discretion to lay out the required information and
links in the most beneficial and cost-effective manner to achieve the
outcome of public notice about agency efforts at accountability for
applicable violations. In adopting this approach, OPM assumes that
covered agencies have public websites that they update regularly with
information for the public and that these updates will occur with no
more frequency than other changes that an agency may make to its
public-facing website.
Finally, there is the statutory requirement that an agency document
any adverse action taken against a Federal employee found to have
engaged in an act of discrimination. If a Federal agency takes an
adverse action covered under section 7512 of title 5, United States
Code, against a Federal employee for an act of intentional
discrimination (including retaliation) prohibited by a provision of law
covered by paragraph (1) or (2) of section 201(a) of the Act, the
agency must, after all appeals relating to that action have been
exhausted and the finding remains, include a notation of the adverse
action, and the reason for the action, in the personnel record of the
employee. OPM considered that this requirement could be met by the
agency preparing a written statement that describes the adverse action
and the reason for the action and filing the written statement in the
employee's Official Personnel Folder. A potential disadvantage to this
approach is a lack of consistency across agencies on how documentation
is prepared. OPM determined that an alternative, more effective
approach is to establish a new nature of action code and new remark
code for agencies to notate and provide the reason for the adverse
action. This preferred option promotes consistency and transparency
across Federal agencies in documenting adverse actions taken for acts
of intentional discrimination (including retaliation). In addition,
establishment of new processing codes specifically for adverse actions
that result from violations of the antidiscrimination laws will help to
distinguish these actions from adverse actions taken for other types of
misconduct. This will facilitate data collection and thereby improve
the efficiency of agency reporting processes.
D. Costs
This proposed rule will affect the operations of the Federal
agencies in the Executive branch--ranging from cabinet-level
departments to small independent agencies. Regarding implementation of
the Cummings Act requirements, this proposed rule will require
individuals employed by these agencies to revise and rescind policies
and procedures to implement certain portions of this proposed rule. The
proposed rule mandates that agencies establish or leverage an existing
system to track discrimination complaints arising under section 5
U.S.C. 2302(b)(1) and adjudicated through the EEO process from filing
through resolution and including disciplinary action, if taken as a
consequence of a finding of discrimination.
In order to estimate the costs to implement this requirement, OPM
collected information from one large
[[Page 742]]
agency; one medium size agency; and one small agency. Each agency
provided to OPM estimates for establishing a new complaint tracking
system and estimates for annual maintenance for any new complaint
tracking system which will permit the agency to track discrimination
complaints arising under 5 U.S.C. 2302(b)(1) and adjudicated through
the EEO process from filing through resolution and including
disciplinary action (if applicable). For example, the large agency
reported to OPM that it would cost approximately $1,000,000 to
establish a new complaint tracking system and incur annual maintenance
costs of approximately $375,000. There are at least 34 large agencies
impacted by this requirement. The medium size agency reported to OPM
that it would cost approximately $804,000 to establish a new complaint
tracking system and incur annual maintenance costs of approximately
$160,000. There are at least 31 medium size agencies impacted by this
requirement. Finally, the small agency reported to OPM that it would
cost approximately $61,000 to establish a new complaint tracking system
and incur annual maintenance costs of approximately $23,000. There are
at least 50 small agencies impacted by this requirement. Thus, based on
the information provided by these agencies, the average cost for
establishment of a complaint tracking system is estimated to be
$622,000. The average annual cost of maintenance of a complaint
tracking system is estimated to be $186,000. OPM anticipates these
costs may vary depending on agency size and whether the agency is able
to leverage existing complaint tracking systems in lieu of purchasing a
new complaint tracking system.
The remaining requirements of the proposed rule will require no
additional costs for agencies or only negligible costs. With respect to
the requirement to provide notice on the agency's public website of a
finding of discrimination (including retaliation), the additional cost
to agencies will be negligible if there are any costs at all. As noted
above, agencies already provide notice on their public websites related
to No FEAR and thus an additional notice does not present a greater
cost. The regulation also requires that agencies report to Congress,
the EEOC, Attorney General, and OPM annually in an electronic format
via email on cases arising under each of the respective provisions of
the Antidiscrimination Laws and Whistleblower Protection Laws in which
an employee, former Federal employee, or applicant alleged a
violation(s) of these laws. This regulatory change mandates the format
of the existing annual report requirement. Currently, agencies
primarily submit annual reports electronically. We expect that those
few agencies which submit their reports in paper format will experience
less cost with the required electronic format given there will be less
handling involved in printing and preparing a paper copy for mailing,
as well as avoidance of the mailing costs.
Further, the proposed rule requires that agencies submit to the
EEOC a report stating whether disciplinary action has been proposed
against a Federal employee for a violation of the Antidiscrimination
and Whistleblower Protection Laws not later than 120 days after the
date on which a Federal agency takes final action, or 120 days after a
Federal agency receives a final decision from the EEOC's Office of
Federal Operations (OFO) or the time to seek OFO review has elapsed. No
additional costs for agencies are required as they already report to
the EEOC on discrimination and the report required by the proposed rule
does not require additional cost. Similarly, no additional cost is
needed to include a notation of the adverse action and the reason for
the action in the personnel record of the employee if the agency takes
an adverse action covered under section 7512 of title 5, U.S. Code,
against the employee for an intentional act of discrimination
(including retaliation). Agencies regularly make required notations of
adverse actions and the reason in the personnel record of employees.
E. Benefits
A significant way the regulation achieves transparency and
accountability is through the requirements for agencies to provide
notice linked directly from the home page of their public website of a
finding of discrimination (including retaliation) and maintain the
notice there for one year. Additionally, the regulation's requirement
for publication of findings of discrimination (including retaliation)
on agency websites gives employees and the general public greater
confidence that action is taken for violations. These requirements meet
a need for greater accountability and transparency. FY 2020 data show
that retaliation remains the most frequently cited claim in
discrimination charges.\2\ Nonetheless, studies consistently have found
that retaliation has low reporting rates and factors that contribute to
this include that victims feel it is not likely the harasser will be
found responsible. These studies also have found that another factor in
the lack of reporting of retaliation is that victims believe the
employer will disregard the finding or shield the harasser from
consequences.\3\ Agency websites are highly visible and valuable
channels of communication. Thus, the regulation's requirement for
notifications on the Federal agency websites should help employees and
the public become more aware that actions are being taken to address
discrimination (including retaliation).
---------------------------------------------------------------------------
\2\ See https://www.eeoc.gov/fiscal-year-2021-congressional-budget-justification.
\3\ See https://hbr.org/2020/10/do-your-employees-feel-safe-reporting-abuse-and-discrimination.
---------------------------------------------------------------------------
Another way that the regulation provides transparency and
accountability is through mandating that agencies establish a system or
leverage an existing system to track discrimination complaints arising
under section 5 U.S.C. 2302(b)(1) and adjudicated through the EEO
process from filing through resolution, including disciplinary action,
if taken as a result of a finding of discrimination. Agencies can
greatly benefit by such a change to a digital infrastructure. Using
web-based data collection and analytic capabilities can diminish
agencies' risks of errors, duplication of effort, and lack of
transparency.
In another reporting requirement--the annual report to Congress,
the EEOC, Attorney General, and OPM--the regulation instructs that
submission of data be made in an accessible, electronic format via
email. This improved format for the annual report should facilitate
submission, receipt, and review of the data for oversight purposes.
The provision implementing the requirement for a notation in the
personnel record of an employee if the agency takes an action covered
under 5 U.S.C. 7512 relates to Congress's finding that accountability
is furthered when agencies take action against employees found to have
committed discriminatory (including retaliatory) acts. In addition,
Congress's requirement is no doubt intended to deter such employees
from further engaging in activities that are in violation of the
antidiscrimination and whistleblower protection laws.
Finally, the regulation will support the Administration's priority
to advance comprehensive equity as discussed in E.O. 13985, Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government at https://www.federalregister.gov/documents/2021/
01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-
communities-through-the-
[[Page 743]]
federal-government. As described in E.O. 13985, ``a first step to
promoting equity in Government action is to gather the data necessary
to inform that effort.'' By striving for the transparency and
accountability as previously described, this regulation helps
``recognize and work to redress inequities in their policies and
programs that serve as barriers to equal opportunity'' so that the
Federal government can continue to serve as a model employer described
in E.O. 14035, Diversity, Equity, Inclusion, and Accessibility in the
Federal Workforce, at https://www.federalregister.gov/documents/2021/06/30/2021-14127/diversity-equity-inclusion-and-accessibility-in-the-federal-workforce.
E.O. 14035 establishes an initiative on diversity, equity,
inclusion, and accessibility (DEIA) in the federal workforce. As part
of OPM's work, a Government-Wide Strategic Plan To Advance Diversity,
Equity, and Accessibility In The Federal Workforce was released in
November 2021, available at https://www.whitehouse.gov/wp-content/uploads/2021/11/Strategic-Plan-to-Advance-Diversity-Equity-Inclusion-and-Accessibility-in-the-Federal-Workforce-11.23.21.pdf. This plan
directs agencies to prioritize a number of efforts to support
sustainability and continued improvement on DEIA matters. This includes
tracking complaints related to discrimination, harassment, and
retaliation and collecting data on complaints of discrimination,
harassment (including sexual harassment), and retaliation. The data
collection requirements under this proposed rule compliment and support
the objectives of the DEIA strategic plan and the data collected will
help inform decision-making and policy development.
In practice, our current system often places the primary
responsibility for enforcing antidiscrimination laws on individual
workers, who must file complaints with their employer or a government
agency. There is often an asymmetry of information and resources
between employers and employees, which can create hurdles for workers
to defend their rights. Discrimination should not be tolerated in
workplaces. By implementing these new statutory measures, the
regulations will help achieve greater accountability in identifying and
addressing discrimination (including retaliation) in the Federal
workplace, helping to promote a Federal workplace free from
discrimination that will attract well-qualified individuals to Federal
service and help agencies to retain their employees, regardless of
their background. This proposed rule is consistent with the
Administrations' efforts to promote equity within the Federal
workforce. By enhancing data collection and reducing harm for
transparency requirements, the Federal government may be able to better
identify patterns and protect those at risk of discrimination,
including members of underserved communities. OPM will make data
available to the reporting agencies and EEOC under the new nature of
action code and new remark code which require agencies to notate and
provide the reason for the adverse action as a way of monitoring agency
progress. This proposed rule also helps position the Federal Government
as a model workplace in its commitment to remove barriers to equal
employment opportunity.
F. List of Studies Considered
Equal Employment Opportunity Commission Fiscal Year 2020 Congressional
Budget Justification, Section VIII--February 2020, https://www.eeoc.gov/fiscal-year-2021-congressional-budget-justification
``Do Your Employees Feel Safe Reporting Abuse and Discrimination?''
Harvard Business Review--October 8, 2020, https://hbr.org/2020/10/do-your-employees-feel-safe-reporting-abuse-and-discrimination
Regulatory Flexibility Act
I certify that this regulation will not have a significant impact
on a substantial number of small entities because it applies only to
Federal agencies and employees.
E.O. 13563 and E.O. 12866, Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This proposed rule has been designated a ``significant
regulatory action'' under Executive Order 12866.
E.O. 13132, Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this proposed rule does not have
sufficient federalism implications to warrant preparation of a
Federalism Assessment.
E.O. 12988, Civil Justice Reform
This regulation meets the applicable standards set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local or tribal governments of more than $100 million annually. Thus,
no written assessment of unfunded mandates is required.
Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules
(as defined in 5 U.S.C. 804) to be submitted to Congress before taking
effect. OPM will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of this action before its
effective date, as required by 5 U.S.C. 801. OMB's Office of
Information and Regulatory Affairs has determined that this proposed
rule is not a ``major rule'' as defined by the Congressional Review Act
(5 U.S.C. 804(2)).
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in Title 5 CFR Part 724
Government employees.
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM proposes
to amend 5 CFR part 724 as follows:
PART 724--TITLE II OF THE NOTIFICATION AND FEDERAL EMPLOYEE
ANTIDISCRIMINATION AND RETALIATION ACT OF 2002
0
1. Revise the authority citation for part 724 to read as follows:
Authority: Sec. 204 of Pub. L. 107-174, 116 Stat. 566;
Presidential Memorandum dated July 8, 2003, ``Delegation of
Authority Under Section 204(a) of the Notification and Federal
Employee Antidiscrimination Act of 2002''; Sec. 1131-1138 of Pub. L.
116-283.
[[Page 744]]
0
2. Revise the heading for part 724 to read as set forth above.
0
3. Revise the heading for subpart A to read as follows:
Subpart A--Reimbursement of Judgment Fund
0
4. In Sec. 724.102, revise the definitions of ``Antidiscrimination
Laws'' and ``No FEAR Act'', and the first sentence of the definition of
``Payment'' to read as follows:
Sec. 724.102 Definitions.
* * * * *
Antidiscrimination Laws refers to 5 U.S.C. 2302(b)(1), 5 U.S.C.
2302(b)(9) as applied to conduct described in 5 U.S.C. 2302(b)(1), 29
U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791, and 42
U.S.C. 2000ff et seq. These laws prohibit discrimination, including
retaliatory acts.\1\
---------------------------------------------------------------------------
\1\ Retaliation is a form of prohibited discrimination.
---------------------------------------------------------------------------
* * * * *
No FEAR Act means the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002, as amended by the
Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020;
* * * * *
Payment, subject to the following exception, means a disbursement
from the Judgment Fund on or after October 1, 2003, to an employee,
former employee, or applicant for Federal employment, in accordance
with 28 U.S.C. 2414, 2517, 2672, 2677 or with 31 U.S.C. 1304, that
involves alleged discriminatory or retaliatory conduct described in 5
U.S.C. 2302(b)(1) and (b)(8) or (b)(9) as applied to conduct described
in 5 U.S.C. 2302(b)(1) and/or (b)(8) or conduct described in 29 U.S.C.
206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791, and 42 U.S.C.
2000ff et seq. * * *
* * * * *
Subpart B--Notification of Rights and Protections and Training
Sec. 724.203 [REDESIGNATED AS Sec. 724.204]
0
5. Redesignate Sec. 724.203 as Sec. 724.204.
0
6. Add a new Sec. 724.203 to read as follows:
Sec. 724.203 Notification of final agency action.
(a) Not later than 90 days after the date on which an event
described in paragraph (b) of this section occurs with respect to a
finding of discrimination (including retaliation), the head of the
Federal agency subject to the finding shall provide notice, in an
accessible format:
(1) On the public website of the agency, in a clear and prominent
location linked directly from the home page of that website;
(2) Stating that a finding of discrimination (including
retaliation) has been made; and
(3) Which shall remain posted for not less than one year.
(b) An event described in this paragraph is any of the following:
(1) All appeals of a final action by a Federal agency, including
when a Federal agency fails to take a final action and the
administrative judge's decision becomes final (see 29 CFR 1614.109(i)),
involving a finding of intentionally committed discriminatory
(including retaliatory) acts prohibited by a provision of law covered
by paragraph (1) or (2) of section 201(a) of the No FEAR Act have been
exhausted.
(2) All appeals of a final decision by the Equal Employment
Opportunity Commission (EEOC) involving a finding of intentionally
committed discriminatory (including retaliatory) acts prohibited by a
provision of law covered by paragraph (1) or (2) of section 201(a) of
the No FEAR Act have been exhausted.
(3) A court of jurisdiction issues a final judgment involving a
finding of intentionally committed discriminatory (including
retaliatory) acts prohibited by a provision of law covered by paragraph
(1) or (2) of section 201(a) of the No FEAR Act. ``Final judgment''
under this event means the date on which the opportunity for further
appeal expires, either because the time for any further appeal elapses
or because the court issuing the final decision was the final reviewing
court from which relief could be sought.
(c) A notification provided under paragraph (a) of this section
with respect to a finding of discrimination (including retaliation)
shall--
(1) 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
(2) Advise Federal employees of the rights and protections
available under the provisions of law covered by paragraphs (1) and (2)
of section 201(a) of the No FEAR Act.
0
7. Amend newly redesignated Sec. 724.204 by revising paragraph (d) and
removing paragraph (e) and to read as follows:
Sec. 724.204 Training obligations.
* * * * *
(d) Each agency must train new employees as part of its agency
orientation program or other training program. Any agency that does not
use a new employee orientation program for this purpose must train each
new employee within 90 calendar days of the new employees' appointment.
Each agency must train all employees on a training cycle of no longer
than every two years.
0
8. Revise the heading of subpart C to read as follows:
Subpart C--Reporting Obligations
* * * * *
0
9. Amend Sec. 724.302 by:
0
a. Revising the section heading;
0
b. Revising the introductory text of paragraph (a);
0
c. Revising paragraph (a)(4);
0
d. Revising paragraph (b);
0
e. Revising the introductory text of paragraph (c); and
0
f. Revising paragraphs (c)(3) and (4).
The revisions read as follows:
Sec. 724.302 Annual report.
(a) Except as provided in paragraph (b) of this section, each
agency must report in an electronic format as prescribed in paragraph
(c) of this section no later than 180 calendar days after the end of
each fiscal year the following items:
* * * * *
(4) The final year-end data about discrimination complaints for
each fiscal year that was posted in accordance with Equal Employment
Opportunity Regulations at subpart G of part 1614 of title 29 of the
Code of Federal Regulations (implementing section 301(c)(1)(B) of the
No FEAR Act);
* * * * *
(b) The first report also must provide information for the data
elements in paragraph (a) of this section for each of the five fiscal
years preceding the fiscal year on which the first report is based to
the extent that such data is available. Under the provisions of the No
FEAR Act, agency reports are due annually on March 30. Reports must
include data elements 1 through 9 of paragraph (a) of this section.
(c) Agencies must submit the annual report as an attachment in an
accessible, electronic format (i.e., Portable Document Format (PDF) or
other electronic file format) via electronic mail. The PDF or other
electronic format must conform with the standards of section 508 of the
Rehabilitation Act, as amended (29 U.S.C. 794(d), and its implementing
regulations at 36 CFR part 1194). This electronic format will be
[[Page 745]]
required for any annual report submitted on or after January 1, 2022.
Agencies must provide copies of each report to the following:
* * * * *
(3) U.S. Senate Committee on Homeland Security and Governmental
Affairs, or any successor Committee;
(4) U.S. House of Representatives Committee on Oversight and
Reform, or any successor Committee;
* * * * *
0
9. Add Sec. 724.303 to read as follows:
Sec. 724.303 Disciplinary action report.
Not later than 120 days after the date on which a Federal agency
takes final action (including when a Federal agency fails to take a
final action and the administrative judge's decision comes final; see
29 CFR 1614.109(i)), or 120 days after a Federal agency receives a
final decision from the EEOC's Office of Federal Operations (OFO) or
the time to seek OFO review has elapsed, involving a finding of
intentionally committed discriminatory (including retaliatory) acts, in
violation of a provision of law covered by paragraph (1) or (2) of
section 201(a) of the No FEAR Act, as applicable, the applicable
Federal agency shall submit to the EEOC a report stating--
(1) whether disciplinary action has been proposed against a Federal
employee as a result of the violation; and
(2) the reasons for any disciplinary action proposed as a result of
the violation.
10. Revise subpart D to read as follows:
Subpart D--Complaint Tracking and Notation in Personnel Record
Sec.
724.401 Purpose and scope.
724.402 Complaint tracking.
724.403 Notation in personnel record.
Sec. 724.401 Purpose and scope.
This subpart implements Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 concerning the
obligation of Federal agencies to track discrimination complaints from
filing to resolution and notate adverse actions in the personnel record
of a Federal employee for intentionally committed discriminatory
(including retaliatory) acts.
Sec. 724.402 Complaint tracking.
Not later than January 1, 2022 (one year after the date of
enactment of the Elijah E. Cummings Federal Employee Antidiscrimination
Act of 2020), each Federal agency shall establish or leverage an
existing 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 the filing of a
complaint with the Federal agency to resolution of the complaint; where
there is a finding of intentionally committed discriminatory (including
retaliatory) acts, the agency shall also track whether a decision has
been made regarding disciplinary action as a consequence of this
finding.
Sec. 724.403 Notation in personnel record.
If a Federal agency takes an adverse action covered under section
7512 of title 5, United States Code, against a Federal employee for
intentionally committed discriminatory (including retaliatory) acts
prohibited by a provision of law covered by paragraph (1) or (2) of
section 201(a) of the No FEAR Act, the agency shall, after all appeals
relating to that action have been exhausted, include a notation of the
adverse action and the reason for the action in the personnel record of
the employee.
[FR Doc. 2021-28019 Filed 1-5-22; 8:45 am]
BILLING CODE 6325-39-P
