CHAPTER 23 - MERIT SYSTEM PRINCIPLES
Title 5 > CHAPTER 23
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§ 2301 Merit system principles
(a) This section shall apply to— an Executive agency; and the Government Publishing Office.
(b) Federal personnel management should be implemented consistent with the following merit system principles: Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance. All employees should maintain high standards of integrity, conduct, and concern for the public interest. The Federal work force should be used efficiently and effectively. Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards. Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance. Employees should be— protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election. Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences— a 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.
(c) In administering the provisions of this chapter— with respect to any agency (as defined in section 2302(a)(2)(C) of this title ), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives; which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles.
“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’.
(“(b) Table of Contents.—
“SEC. 101 FINDINGS.
“Congress finds that— Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination; 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; in August 2000, a jury found that the Environmental Protection Agency had discriminated against a senior social scientist, and awarded that scientist $600,000; 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; 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; notifying Federal employees of their rights under discrimination and whistleblower laws should increase Federal agency compliance with the law; 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 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.
“SEC. 102 SENSE OF CONGRESS.
“It is the sense of Congress that— 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; the mission of the Federal agency and the employment security of employees who are blameless in a whistleblower incident should not be compromised; Federal agencies should not use a reduction in force or furloughs as means of funding a reimbursement under this Act; 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; 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 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 Federal agencies are expected to reimburse the General Fund of the Treasury within a reasonable time under this Act; and 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— reductions in force; furloughs; other reductions in compensation or benefits for the workforce of the agency; or an adverse effect on the mission of the agency.
“SEC. 103 DEFINITIONS.
“For purposes of this Act— the term ‘applicant for Federal employment’ means an individual applying for employment in or under a Federal agency; the term ‘basis of alleged discrimination’ shall have the meaning given such term under section 303; the term ‘Federal agency’ means an Executive agency (as defined in section 105 of title 5 , United States Code), the United States Postal Service, or the Postal Regulatory Commission; the term ‘Federal employee’ means an individual employed in or under a Federal agency; the term ‘former Federal employee’ means an individual formerly employed in or under a Federal agency; and the term ‘issue of alleged discrimination’ shall have the meaning given such term under section 303.
“SEC. 104 EFFECTIVE DATE.
“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 [ May 15, 2002 ].
“SEC. 201 REIMBURSEMENT REQUIREMENT.
(“(a) Applicability.— 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 section 1304 of title 31 , 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— any provision of law cited in subsection (c); or any other provision of law which prohibits any form of discrimination, as identified under rules issued under section 204.
(“(b) Requirement.— An amount equal to the amount of each payment described in subsection (a) shall be reimbursed to the fund described in section 1304 of title 31 , 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.
(“(c) Scope.— The provisions of law cited in this subsection are the following: Section 2302(b) of title 5 , 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. The provisions of law specified in section 2302(d) of title 5 , United States Code.
“SEC. 202 NOTIFICATION REQUIREMENT.
(“(a) In General.— 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— in accordance with otherwise applicable provisions of law; or 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.
(“(b) Posting on the Internet.— 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.
(“(c) Employee Training.— 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).
(“(d) Notification of Final Agency Action.— 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— on the public internet website of the agency, in a clear and prominent location linked directly from the home page of that website; stating that a finding of discrimination (including retaliation) has been made; and which shall remain posted for not less than 1 year. An event described in this paragraph is any of the following: 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. 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. 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). A notification provided under paragraph (1) with respect to a finding of discrimination (including retaliation) shall— 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 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. 203 REPORTING REQUIREMENT.
(“(a) Annual Report.— Subject to subsection (b), 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— 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; the status or disposition of cases described in paragraph (1); 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; the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1); the final year-end data posted under section 301(c)(1)(B) for such fiscal year (without regard to section 301(c)(2)); a detailed description of— the policy implemented by that agency relating to appropriate disciplinary actions against a Federal employee who— discriminated against any individual in violation of any of the laws cited under section 201(a)(1) or (2); or 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 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; 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— an examination of trends; causal analysis; practical knowledge gained through experience; and any actions planned or taken to improve complaint or civil rights programs of the agency; and any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201.
(“(b) First Report.— 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).
(“(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— whether disciplinary action has been proposed against a Federal employee as a result of the violation; and the reasons for any disciplinary action proposed under paragraph (1).
“SEC. 204 RULES AND GUIDELINES.
(“(a) Issuance of Rules and Guidelines.— The President (or the designee of the President) shall issue— rules to carry out this title; 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 based on the results of such study, advisory guidelines incorporating best practices that Federal agencies may follow to take such actions against such employees.
(“(b) Agency Notification Regarding Implementation of Guidelines.— 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— whether such agency has adopted and will fully follow such guidelines; if such agency has not adopted such guidelines; the reasons for the failure to adopt such guidelines; and 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.
“SEC. 205 CLARIFICATION OF REMEDIES.
“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.
“SEC. 206
(“(a) Study on Exhaustion of Administrative Remedies.— Not later than 180 days after the date of enactment of this Act [ May 15, 2002 ], 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. 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— expedite handling of allegations of such violations within Federal agencies and will streamline the complaint-filing process; affect the workload of the Commission; affect established alternative dispute resolution procedures in such agencies; and affect any other matters determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration. 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.
(“(b) Study on Ascertainment of Certain Costs of the Department of Justice in Defending Discrimination and Whistleblower Cases.— Not later than 180 days after the date of enactment of this Act [ May 15, 2002 ], 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). 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.
(“(c) Studies on Statutory Effects on Agency Operations.— Not later than 18 months after the date of enactment of this Act [ May 15, 2002 ], the General Accounting Office [now Government Accountability Office] shall conduct— a study on the effects of section 201 on the operations of Federal agencies; and a study on the effects of section 13 of the Contract Disputes Act of 1978 ( 41 U.S.C. 612 ) [now 41 U.S.C. 7108 ] on the operations of Federal agencies. Each study under paragraph (1) shall include, with respect to the applicable statutes of the study— a summary of the number of cases in which a payment was made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31 , United States Code; a summary of the length of time Federal agencies used to complete reimbursements of payments described under subparagraph (A); and conclusions that assist in making determinations on how the reimbursements of payments described under subparagraph (A) will affect— the operations of Federal agencies; funds appropriated on an annual basis; employee relations and other human capital matters; settlements; and any other matter determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration. Not later than 90 days after the completion of each study under paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit a report on each study, respectively, to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Attorney General.
(“(d) Study on Administrative and Personnel Costs Incurred by the Department of the Treasury.— Not later than 1 year after the date of enactment of this Act [ May 15, 2002 ], the General Accounting Office [now Government Accountability Office] shall conduct a study on the extent of any administrative and personnel costs incurred by the Department of the Treasury to account for payments made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31 , United States Code, as a result of— this Act; and the Contracts Dispute [Contract Disputes] Act of 1978 ( 41 U.S.C. 601 note [see 41 U.S.C. 7101 et seq.]; Public Law 95–563 ). Not later than 90 days after the completion of the study under paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit a report on the study to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Attorney General.
“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 [ Jan. 1, 2021 ], 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.
“SEC. 301 DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.
(“(a) In General.— Each Federal agency shall post on its public Web site, in the time, form, and manner prescribed under section 303 (in conformance with the requirements of this section), summary statistical data relating to equal employment opportunity complaints filed with such agency by employees or former employees of, or applicants for employment with, such agency.
(“(b) Content Requirements.— The data posted by a Federal agency under this section shall include, for the then current fiscal year, the following: The number of complaints filed with such agency in such fiscal year. The number of individuals filing those complaints (including as the agent of a class). The number of individuals who filed 2 or more of those complaints. The number of complaints (described in paragraph (1)) in which each of the various bases of alleged discrimination is alleged. The number of complaints (described in paragraph (1)) in which each of the various issues of alleged discrimination is alleged. The average length of time, for each step of the process, it is taking such agency to process complaints (taking into account all complaints pending for any length of time in such fiscal year, whether first filed in such fiscal year or earlier). Average times under this paragraph shall be posted— for all such complaints, for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is not requested, and for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is requested. The total number of final agency actions rendered in such fiscal year involving a finding of discrimination and, of that number— the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission. Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination— the number and percentage involving a finding of discrimination based on each of the respective bases of alleged discrimination, and of the number specified under subparagraph (A) for each of the respective bases of alleged discrimination— the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission. Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination— the number and percentage involving a finding of discrimination in connection with each of the respective issues of alleged discrimination, of the number specified under subparagraph (A) for each of the respective issues of alleged discrimination— the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission, and with respect to each finding described in subparagraph (A)— the date of the finding, the affected Federal agency, the law violated, and whether a decision has been made regarding disciplinary action as a result of the finding. Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the number that were first filed before the start of the then current fiscal year. With respect to those pending complaints that were first filed before the start of the then current fiscal year— the number of individuals who filed those complaints, and the number of those complaints which are at the various steps of the complaint process. Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the total number of complaints with respect to which the agency violated the requirements of section 1614.106(e)(2) of title 29 of the Code of Federal Regulations (as in effect on July 1, 2000 , and amended from time to time) by failing to conduct within 180 days of the filing of such complaints an impartial and appropriate investigation of such complaints. Data regarding each class action complaint filed against the agency alleging discrimination (including retaliation), including— information regarding the date on which each complaint was filed, a general summary of the allegations alleged in the complaint, an estimate of the total number of plaintiffs joined in the complaint, if known, the current status of the complaint, including whether the class has been certified, and the case numbers for the civil actions in which discrimination (including retaliation) has been found.
(“(c) Timing and Other Requirements.— Data posted under this section for the then current fiscal year shall include both— interim year-to-date data, updated quarterly, and final year-end data. The data posted by a Federal agency under this section for a fiscal year (both interim and final) shall include, for each item under subsection (b), such agency’s corresponding year-end data for each of the 5 immediately preceding fiscal years (or, if not available for all 5 fiscal years, for however many of those 5 fiscal years for which data are available).
“SEC. 302 DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
(“(a) In General.— The Equal Employment Opportunity Commission shall post on its public Web site, in the time, form, and manner prescribed under section 303 for purposes of this section, summary statistical data relating to— hearings requested before an administrative judge of the Commission on complaints described in section 301, and appeals filed with the Commission from final agency actions on complaints described in section 301.
(“(b) Specific Requirements.— The data posted under this section shall, with respect to the hearings and appeals described in subsection (a), include summary statistical data corresponding to that described in paragraphs (1) through (11) of section 301(b), and shall be subject to the same timing and other requirements as set forth in section 301(c).
(“(c) Coordination.— The data required under this section shall be in addition to the data the Commission is required to post under section 301 as an employing Federal agency.
“SEC. 303 RULES.
“The Equal Employment Opportunity Commission shall issue any rules necessary to carry out this title.
“SEC. 401 PROCESSING AND RESOLUTION OF COMPLAINTS.
“Each Federal agency shall— 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 establish a model Equal Employment Opportunity Program that— 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); is devoid of internal conflicts of interest and ensures fairness and inclusiveness within the agency; and 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.— 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. The Commission shall— notify the applicable Federal agency if the Commission refers a matter to the Office of Special Counsel under paragraph (1); and with respect to a fiscal year, include in the Annual Report of the Federal Workforce of the Commission covering that fiscal year— the number of referrals made under paragraph (1) during that fiscal year; and 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— the Office of Special Counsel pursues disciplinary action under subsection (b); and 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.”
§ 2302 Prohibited personnel practices
(a) For the purpose of this title, “prohibited personnel practice” means any action described in subsection (b). For the purpose of this section— “personnel action” means— an appointment; a promotion; an action under chapter 75 of this title or other disciplinary or corrective action; a detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment; a performance evaluation under chapter 43 of this title or under title 38; a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; a decision to order psychiatric testing or examination; the implementation or enforcement of any nondisclosure policy, form, or agreement; and any other significant change in duties, responsibilities, or working conditions; with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31 ; “covered position” means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action— excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration; “agency” means an Executive agency and the Government Publishing Office, but does not include— a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D); the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or the Government Accountability Office; and “disclosure” means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences— any violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority— discriminate for or against any employee or applicant for employment— on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–16 ); on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 631 , 633a); on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(d) ); on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. 791 ); or on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation; solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of— an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or an evaluation of the character, loyalty, or suitability of such individual; coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity; deceive or willfully obstruct any person with respect to such person’s right to compete for employment; influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment; grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment; appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title ) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title ) or over which such employee exercises jurisdiction or control as such an official; take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of— any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences— any violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences— any violation (other than a violation of this section) of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or any disclosure to Congress (including any committee of Congress) by any employee of an agency or applicant for employment at an agency of information described in subparagraph (B) that is— not classified; or if classified— has been classified by the head of an agency that is not an element of the intelligence community (as defined by section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 )); and does not reveal intelligence sources and methods. 1 take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of— the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation— with regard to remedying a violation of paragraph (8); or other than with regard to remedying a violation of paragraph (8); testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii); cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or refusing to obey an order that would require the individual to violate a law, rule, or regulation; discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States; knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement; take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title ; implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement— does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General or the Office of Special Counsel of a 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 (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”; or 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 access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13). This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.
(c) In this subsection— the term “new employee” means an individual— appointed to a position as an employee on or after the date of enactment of this subsection; and who has not previously served as an employee; and the term “whistleblower protections” means the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b). The head of each agency shall be responsible for— preventing prohibited personnel practices; complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and ensuring, in consultation with the Special Counsel and the Inspector General of the agency, that employees of the agency are informed of the rights and remedies available to the employees under this chapter and chapter 12, including— information with respect to whistleblower protections available to new employees during a probationary period; the role of the Office of Special Counsel and the Merit Systems Protection Board with respect to whistleblower protections; and the means by which, with respect to information that is otherwise required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, an employee may make a lawful disclosure of the information to— the Special Counsel; the Inspector General of an agency; Congress (including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods); or another employee of the agency who is designated to receive such a disclosure. The head of each agency shall ensure that the information described in paragraph (2) is provided to each new employee of the agency not later than 180 days after the date on which the new employee is appointed. The head of each agency shall make available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to employees of the agency, if such portal exists. Any employee to whom the head of an agency delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2).
(d) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under— section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–16 ), prohibiting discrimination on the basis of race, color, religion, sex, or national origin; sections 12 and 15 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 631 , 633a), prohibiting discrimination on the basis of age; under section 6(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(d) ), prohibiting discrimination on the basis of sex; section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. 791 ), prohibiting discrimination on the basis of handicapping condition; or the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.
(e) For the purpose of this section, the term “veterans’ preference requirement” means any of the following provisions of law: Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701. Sections 943(c)(2) and 1784(c) of title 10. Section 1308(b) of the Alaska National Interest Lands Conservation Act. Section 301(c) of the Foreign Service Act of 1980. Sections 106(f), 2 7281(e), and 7802(5) 2 of title 38. Section 1005(a) of title 39 . Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans’ preference requirement for the purposes of this subsection. Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs. Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action).
(f) A disclosure shall not be excluded from subsection (b)(8) because— the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii); the disclosure revealed information that had been previously disclosed; of the employee’s or applicant’s motive for making the disclosure; the disclosure was not made in writing; the disclosure was made while the employee was off duty; the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or of the amount of time which has passed since the occurrence of the events described in the disclosure. If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the “disclosing employee”), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.
§ 2303 Prohibited personnel practices in the Federal Bureau of Investigation
(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information— made— in the case of an employee, to a supervisor in the direct chain of command of the employee, up to and including the head of the employing agency; to the Inspector General; to the Office of Professional Responsibility of the Department of Justice; to the Office of Professional Responsibility of the Federal Bureau of Investigation; to the Inspection Division of the Federal Bureau of Investigation; as described in section 7211; to the Office of Special Counsel; or to an employee designated by any officer, employee, office, or division described in subparagraphs (A) through (G) for the purpose of receiving such disclosures; and which the employee or applicant reasonably believes evidences— any violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. For the purpose of this subsection, “personnel action” means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of this title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character).
(b) The Attorney General shall prescribe regulations to ensure that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information described in subsection (a) of this section.
(c) The President shall provide for the enforcement of this section in a manner consistent with applicable provisions of sections 1214 and 1221 of this title.
(d) An employee of the Federal Bureau of Investigation who makes an allegation of a reprisal under regulations promulgated under this section may appeal a final determination or corrective action order by the Bureau under those regulations to the Merit Systems Protection Board pursuant to section 1221. If no final determination or corrective action order has been made or issued for an allegation described in paragraph (1) before the expiration of the 180-day period beginning on the date on which the allegation is received by the Federal Bureau of Investigation, the employee described in that paragraph may seek corrective action directly from the Merit Systems Protection Board pursuant to section 1221.
§ 2304 Prohibited personnel practices affecting the Transportation Security Administration
(a) In General.— Notwithstanding any other provision of law, any individual holding or applying for a position within the Transportation Security Administration shall be covered by— the provisions of section 2302(b)(1), (8), and (9); any provision of law implementing section 2302(b)(1), (8), or (9) by providing any right or remedy available to an employee or applicant for employment in the civil service; and any rule or regulation prescribed under any provision of law referred to in paragraph (1) or (2).
(b) Rule of Construction.— Nothing in this section shall be construed to affect any rights, apart from those described in subsection (a), to which an individual described in subsection (a) might otherwise be entitled under law.
§ 2305 Responsibility of the Government Accountability Office
If requested by either House of the Congress (or any committee thereof), or if considered necessary by the Comptroller General, the Government Accountability Office shall conduct audits and reviews to assure compliance with the laws, rules, and regulations governing employment in the executive branch and in the competitive service and to assess the effectiveness and soundness of Federal personnel management. (Added Pub. L. 95–454, title I, § 101(a) , Oct. 13, 1978 , 92 Stat. 1118 , § 2304; amended Pub. L. 102–378, § 2(6) , Oct. 2, 1992 , 106 Stat. 1346 ; Pub. L. 104–66, title II, § 2181(e) , Dec. 21, 1995 , 109 Stat. 732 ; Pub. L. 108–271, § 8(b) , July 7, 2004 , 118 Stat. 814 ; renumbered § 2305, Pub. L. 112–199, title I, § 109(a)(1) , Nov. 27, 2012 , 126 Stat. 1470 .)
§ 2306 Coordination with certain other provisions of law
No provision of this chapter, or action taken under this chapter, shall be construed to impair the authorities and responsibilities set forth in section 102 of the National Security Act of 1947 ( 61 Stat. 495 ; 50 U.S.C. 403 ), 1 the Central Intelligence Agency Act of 1949 ( 63 Stat. 208 ; 50 U.S.C. 403a and following), 1 the Act entitled “An Act to provide certain administrative authorities for the National Security Agency, and for other purposes”, approved May 29, 1959 ( 73 Stat. 63 ; 50 U.S.C. 402 note), 1 and the Act entitled “An Act to amend the Internal Security Act of 1950”, approved March 26, 1964 ( 78 Stat. 168 ; 50 U.S.C. 831–835 ). (Added Pub. L. 95–454, title I, § 101(a) , Oct. 13, 1978 , 92 Stat. 1118 , § 2305; renumbered § 2306, Pub. L. 112–199, title I, § 109(a)(1) , Nov. 27, 2012 , 126 Stat. 1470 .)