Congratulations to the Justice Department for issuing a strong statement to help students combat bullying and discrimination. It is a long overdue commentary and plague on the nation that our children are victimized each and every day by bullies at school. The impact of which can have a long standing and far reaching effect. The press release can be found here.
However, as I reviewed the press release, one thing came to mind that stands in strong contrast to the statement message. That thing is the fact that the federal government engages in bullying its own workforce through whistleblower retaliation at an alarming rate. What message does it send to children if the federal government, a legally mandated model employer, is mistreating its employees through discriminatory practices and retaliation for whistleblowing.
This website has reported on the failure of the No Fear Act to have almost no impact on federal agencies and whether agencies are implementing the legal requirements, including the filing of Section 203 annual reports to Congress, showing the costs of litigation. Thus, let’s once again examine the purpose and intent of the legislation because from my read…it’s the strongest anti-bullying message on employment law ever enacted. I have drawn attention to certain sections of the law in bold type for emphasis.
PUBLIC LAW 107–174—MAY 15, 2002
NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2002
TITLE I—GENERAL PROVISIONS
SEC. 101. FINDINGS.
Congress finds that—
(1) Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination;
(2) 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;
(3) in August 2000, a jury found that the Environmental Protection Agency had discriminated against a senior social scientist, and awarded that scientist $600,000;
(4) 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;
(5) 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;
(6) notifying Federal employees of their rights under discrimination and whistleblower laws should increase Federal agency compliance with the law;
(7) 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
(8) 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—
(1)Federal agencies should not retaliate for court judgments or settlements relating to discrimination and whistle-blower laws by targeting the claimant or other employees with reductions in compensation, benefits, or workforce to pay for such judgments or settlements;
(2) the mission of the Federal agency and the employment security of employees who are blameless in a whistleblower incident should not be compromised;
(3) Federal agencies should not use a reduction in force or furloughs as means of funding a reimbursement under this Act;
(4)(A) accountability in the enforcement of employee rights is not furthered by terminating—
(i) the employment of other employees; or
(ii) the benefits to which those employees are entitled through statute or contract; and
(B) this Act is not intended to authorize those actions;
(5)(A) nor is accountability furthered if Federal agencies react to the increased accountability under this Act by taking unfounded disciplinary actions against managers or by violating the procedural rights of managers who have been accused of discrimination; and
(B) 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
(6)(A) Federal agencies are expected to reimburse the General Fund of the Treasury within a reasonable time under this Act; and
(B) 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—
(i) reductions in force;
(iii) other reductions in compensation or benefits for the workforce of the agency; or
(iv) an adverse effect on the mission of the agency.
Now let’s have a look at the current expenditures for 2012 from the Treasury Department Judgment Fund for No Fear Act litigation.
No FEAR Act Balances
|Partner Code||Agency Name||1310 Balance
as of 09/30/12
as of 09/30/12
|1700||Department of the Navy||15,000.00||(173,000.00)|
|2100||Department of the Army||0.00||(198,000.00)|
|5700||Department of the Air Force||0.00||(611,922.63)|
|9600||Corps of Engineers, Civil||0.00||(4,250.00)|
|9700||Department of Defense||0.00||(470,740.00)|
|1100||African Development Foundation||0.00||(55,000.00)|
|1200||Department of Agriculture||18,500.00||(608,000.00)|
|1300||Department of Commerce||0.00||(183,500.00)|
|1400||Department of the Interior||0.00||(96,524.16)|
|1500||Department of Justice||178,500.00||(746,800.00)|
|1600||Department of Labor||0.00||(272,500.00)|
|1900||Department of State||0.00||(111,000.00)|
|2000||Department of the Treasury||0.00||(155,000.00)|
|2700||Federal Communications Commission||0.00||(127,374.87)|
|2800||Social Security Administration||0.00||(351,143.12)|
|3600||Department of Veterans Affairs||1,262,168.19||(1,849,605.69)|
|4700||General Services Administration||0.00||(250,000.00)|
|6800||Environmental Protection Agency||0.00||(105,681.85)|
|6900||Department of Transportation||0.00||(544,880.76)|
|7000||Department of Homeland Security||0.00||(1,054,801.13)|
|7500||Health and Human Services||0.00||(915,000.00)|
|8000||National Aeronautic and Space Administration||0.00||(11,000.00)|
|8600||Department of Housing and Urban Development||0.00||(524,500.00)|
|8900||Department of Energy||0.00||(150,000.00)|
|9500||Broadcasting Board of Governors||0.00||(340,000.00)|
|9500||Court Services and Offender Supervision Agency||0.00||(22,685.00)|