Elijah E. Cummings Federal Employee Antidiscrimination Act (Elijah E. Cummings Act) of 2020

EDITOR’S NOTE: The following is the text of the Elijah E. Cummings Federal Employee Antidiscrimination Act (Elijah E. Cummings Act) of 2020, which amends the Notification and Federal Employee Antidiscrimination and Retaliation Act (No FEAR Act) of 2002 (5 U.S.C. 2301 note). The Elijah E. Cummings Act appears as Subtitle B of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (2020).

Subtitle B—Elijah E. Cummings Federal Employee Antidiscrimination

Act of 2020

SEC. 1131. SHORT TITLE.

This subtitle may be cited as the ‘‘Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020’’.

SEC. 1132. SENSE OF CONGRESS.

Section 102 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1) by striking paragraph (4) and inserting the following:

‘‘(4) 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;’’; and

(2) in paragraph (5)(A)—

(A) by striking ‘‘nor is accountability’’ and inserting ‘‘accountability is not’’; and

(B) by inserting ‘‘for what, by law, the agency is responsible’’ after ‘‘under this Act’’.

SEC. 1133. NOTIFICATION OF VIOLATION.

Section 202 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding at the end the following:

‘‘(d) NOTIFICATION OF FINAL AGENCY ACTION—

‘‘(1) IN GENERAL—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—

‘‘(A) on the public internet website of the agency, in a clear and prominent location linked directly from the home page of that website;

‘‘(B) stating that a finding of discrimination (including retaliation) has been made; and

‘‘(C) which shall remain posted for not less than 1 year.

‘‘(2) EVENTS DESCRIBED—An event described in this paragraph is any of the following:

‘‘(A) 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.

‘‘(B) 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.

‘‘(C) 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).

‘‘(3) CONTENTS—A notification provided under paragraph (1) with respect to a finding of discrimination (including retaliation) shall—

‘‘(A) 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

‘‘(B) advise Federal employees of the rights and protections available under the provisions of law covered by paragraphs (1) and (2) of section 201(a).’’.

SEC. 1134. REPORTING REQUIREMENTS.

(a) ELECTRONIC FORMAT REQUIREMENT—

(1) IN GENERAL—Section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended in the matter preceding paragraph (1)—

(A) by inserting ‘‘Homeland Security and’’ before ‘‘Governmental Affairs’’;

(B) by striking ‘‘on Government Reform’’ and inserting ‘‘on Oversight and Reform’’; and

(C) by inserting ‘‘(in an electronic format prescribed by the Director of the Office of Personnel Management),’’ after ‘‘an annual report’’.

(2) EFFECTIVE DATE—The amendment made by paragraph (1)(C) shall take effect on the date that is 1 year after the date of enactment of this Act.

(3) TRANSITION PERIOD—Notwithstanding the requirements of section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note), the report required under such section 203(a) may be submitted in an electronic format, as prescribed by the Director of the Office of Personnel Management, during the period beginning on the date of enactment of this Act

and ending on the effective date in paragraph (2).

(b) REPORTING REQUIREMENT FOR DISCIPLINARY ACTION—Section 203 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended

by adding at the end the following:

‘‘(c) DISCIPLINARY ACTION REPORT—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—

‘‘(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 under paragraph (1).’’.

SEC. 1135. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.

Section 301(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1) in paragraph (9)—

(A) in subparagraph (A), by striking ‘‘and’’ at the end;

(B) in subparagraph (B)(ii), by striking the period at the end and inserting ‘‘, and’’; and

(C) by adding at the end the following:

‘‘(C) with respect to each finding described in subparagraph

(A)—

‘‘(i) the date of the finding,

‘‘(ii) the affected Federal agency,

‘‘(iii) the law violated, and

‘‘(iv) whether a decision has been made regarding disciplinary action as a result of the finding.’’; and

(2) by adding at the end the following:

‘‘(11) Data regarding each class action complaint filed against the agency alleging discrimination (including retaliation), including—

‘‘(A) information regarding the date on which each complaint was filed,

‘‘(B) a general summary of the allegations alleged in the complaint,

‘‘(C) an estimate of the total number of plaintiffs joined in the complaint, if known,

‘‘(D) the current status of the complaint, including whether the class has been certified, and

‘‘(E) the case numbers for the civil actions in which discrimination (including retaliation) has been found.’’.

SEC. 1136. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION.

Section 302(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by striking ‘‘(10)’’ and inserting ‘‘(11)’’.

SEC. 1137. NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION

AND RETALIATION ACT OF 2002 AMENDMENTS.

(a) NOTIFICATION REQUIREMENTS—Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding at the end the following:

‘‘SEC. 207. COMPLAINT TRACKING.

‘‘Not later than 1 year after the date of enactment of the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020, each Federal agency shall establish a 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, including whether a decision has been made regarding disciplinary action as the result of a finding of discrimination.

‘‘SEC. 208. 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 an act of discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a), 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.’’.

(b) PROCESSING AND REFERRAL—The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended by adding at the end the following:

TITLE IV—PROCESSING AND REFERRAL

‘‘SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.

‘‘Each Federal agency shall—

‘‘(1) be responsible for the fair and impartial processing and resolution of complaints of employment discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a); and

‘‘(2) establish a model Equal Employment Opportunity Program that—

‘‘(A) is not under the control, either structurally or practically, of the agency’s Office of Human Capital or Office of the General Counsel (or the equivalent);

‘‘(B) is devoid of internal conflicts of interest and ensures fairness and inclusiveness within the agency; and

‘‘(C) ensures the efficient and fair resolution of complaints alleging discrimination (including retaliation).

‘‘SEC. 402. NO LIMITATION ON ADVICE OR COUNSEL.

‘‘Nothing in this title shall prevent a Federal agency or a subcomponent of a Federal agency, or the Department of Justice, from providing advice or counsel to employees of that agency (or subcomponent, as applicable) in the resolution of a complaint.

‘‘SEC. 403. HEAD OF PROGRAM SUPERVISED BY HEAD OF AGENCY.

‘‘The head of each Federal agency’s Equal Employment Opportunity Program shall report directly to the head of the agency.

‘‘SEC. 404. REFERRALS OF FINDINGS OF DISCRIMINATION.

‘‘(a) EEOC FINDINGS OF DISCRIMINATION—

‘‘(1) IN GENERAL.—Not later than 30 days after the date on which the Equal Employment Opportunity Commission (referred to in this section as the ‘Commission’) receives, or should have received, a Federal agency report required under section 203(c), the Commission may refer the matter to which the report relates to the Office of Special Counsel if the Commission determines that the Federal agency did not take appropriate action with respect to the finding that is the subject of the report.

‘‘(2) NOTIFICATIONS—The Commission shall—

‘‘(A) notify the applicable Federal agency if the Commission refers a matter to the Office of Special Counsel under paragraph (1); and

‘‘(B) with respect to a fiscal year, include in the Annual Report of the Federal Workforce of the Commission covering that fiscal year—

‘‘(i) the number of referrals made under paragraph (1) during that fiscal year; and

‘‘(ii) a brief summary of each referral described in clause (i).

‘‘(b) REFERRALS TO SPECIAL COUNSEL—The Office of Special Counsel shall accept and review a referral from the Commission under subsection (a)(1) for purposes of pursuing disciplinary action under the authority of the Office against a Federal employee who commits an act of discrimination (including retaliation).

‘(c) NOTIFICATION—The Office of Special Counsel shall notify the Commission and the applicable Federal agency in a case in which—

‘‘(1) the Office of Special Counsel pursues disciplinary action under subsection (b); and

‘‘(2) the Federal agency imposes some form of disciplinary action against a Federal employee who commits an act of discrimination (including retaliation).

‘‘(d) SPECIAL COUNSEL APPROVAL—A Federal agency may not take disciplinary action against a Federal employee for an alleged act of discrimination (including retaliation) referred by the Commission under this section, except in accordance with the requirements of section 1214(f) of title 5, United States Code.’’.

(c) CONFORMING AMENDMENTS—The table of contents in section 1(b) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (5 U.S.C. 2301 note) is amended—

(1) by inserting after the item relating to section 206 the following:

‘‘Sec. 207. Complaint tracking.

‘‘Sec. 208. Notation in personnel record.’’; and

(2) by adding at the end the following:

‘‘TITLE IV—PROCESSING AND REFERRAL

‘‘Sec. 401. Processing and resolution of complaints.

‘‘Sec. 402. No limitation on advice or counsel.

‘‘Sec. 403. Head of Program supervised by head of agency.

‘‘Sec. 404. Referrals of findings of discrimination.’’.

SEC. 1138. NONDISCLOSURE AGREEMENT LIMITATION.

Section 2302(b)(13) of title 5, United States Code, is amended—

(1) by striking ‘‘agreement does not’’ and inserting the following: ‘‘agreement—

‘‘(A) does not’’;

(2) in subparagraph (A), as so designated, by inserting ‘‘or the Office of Special Counsel’’ after ‘‘Inspector General’’; and

(3) by adding at the end the following:

‘‘(B) prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection; or’’.