2023-24446. Notice of Rights and Protections Available Under the Federal Antidiscrimination and Whistleblower Protection Laws

AGENCY:

Department of Transportation—Office of the Secretary.

ACTION:

No FEAR Act notice.

SUMMARY:

This Notice implements Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act of 2002). In doing so, the Department of Transportation notifies all employees, former employees, and applicants for Federal employment of the rights and protections available to them under the Federal Anti-discrimination and Whistleblower Protection Laws.

FOR FURTHER INFORMATION CONTACT:

Yvette Rivera, Associate Director, Equity and Access Division (S–32), Departmental Office of Civil Rights, Office of the Secretary, Department of Transportation, 1200 New Jersey Avenue SE, Room W78–306, Washington, DC 20590, 202–366–5131 or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

Electronic Access

You may retrieve this document online through the Federal Document Management System at http://www.regulations.gov. Electronic retrieval instructions are available under the help section of the website.

No FEAR Act Notice

On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” now recognized as the No FEAR Act (Pub. L. 107–174). The No FEAR Act was amended on January 1, 2021, by the “Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020,” now recognized as the Cummings Act. One purpose of the No FEAR Act, which was strengthened by the Cummings Act, is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” (Pub. L. 107–174, Summary). In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination.” (Pub. L. 107–174, Title I, General Provisions, section 101(1)). The No FEAR Act also requires the Department of Transportation (DOT) to issue this Notice to all DOT employees, former DOT employees, and applicants for DOT employment. This Notice informs such individuals of the rights and protections available under Federal antidiscrimination and whistleblower protection laws.

Antidiscrimination Laws

A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions, or privileges of employment because of race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, marital status, genetic information, political affiliation, or in retaliation for a protected activity. One or more of the following statutes prohibit discrimination on these bases: 5 U.S.C. 2302(b)(1), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 206(d), 29 U.S.C. 791, 42 U.S.C. 2000e–16, 2000ff, 2000gg.

If you believe you have experienced unlawful discrimination on the bases of race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, retaliation, genetic information, and/or disability and wish to pursue a legal remedy, you must contact a DOT Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or in the case of a personnel action, within 45 calendar days of the effective date of the action. A directory of DOT EEO counselors is available on the DOT Departmental Office of Civil Rights website at http://www.transportation.gov/​civil-rights; you can also contact the Departmental Office of Civil Rights by phone at 202–366–4648 for more information. Once you contact the EEO counselor, you will be offered the opportunity to resolve the matter through the informal complaint process; if you are unable to resolve the matter through the informal complaint process, you can file a formal complaint of discrimination with DOT (see, e.g.,29 CFR part 1614). Parties who complete the informal complaint process are provided with an electronic Individual Complaint of Employment Discrimination Form. The form can be submitted electronically at https://secure.dot.gov/​form/​eeoc or by email at [e-mail]. You may also contact the EEO Complaints and Investigations Division, Departmental Office of Civil Rights by phone at 202–366–9370 or by email at [e-mail] if you need additional assistance.

If you believe you experienced unlawful discrimination based on age, you must either contact an EEO counselor as noted above or file a civil action in a United States District Court under the Age Discrimination in Employment Act against the head of the alleged discriminating agency. If you choose to file a civil action, you must give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discriminatory action, and not less than 30 days before filing a civil action. You may file such notice in writing with the EEOC via mail at P.O. Box 77960, Washington, DC 20013, the EEOC Public Portal at https://www.eeoc.gov/​employees/​charge.cfm, hand delivery at 131 M St. NE, Washington, DC 20507, or Fax at 202–663–7022.

If you are alleging unlawful discrimination based on marital status or political affiliation, you may file a written discrimination complaint with the U.S. Office of Special Counsel (OSC) using Form OSC–14. Form OSC–14 can be submitted electronically at the OSC website http://www.osc.gov, under the tab “File a Complaint.” You also have the option to call the Case Review Division at 1–800–872–9855 for additional assistance. In the alternative (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through the DOT administrative or negotiated grievance procedures, if such procedures apply and are available.

If you are alleging unlawful compensation discrimination pursuant to the Equal Pay Act and wish to pursue your allegations through the administrative process, you must contact an EEO counselor within 45 calendar days of the alleged discriminatory action, as such complaints are processed under EEOC's regulations at 29 CFR part 1614. Alternatively, you can file a civil action in a court of competent jurisdiction within two years, or if the violation is willful, three years of the date of the alleged violation, regardless of whether you pursued any administrative complaint processing. The filing of a complaint or appeal pursuant to 29 CFR part 1614 shall not toll the time for filing a civil action.

Whistleblower Protection Laws

A DOT employee with authority to take, direct others to take, recommend, or approve any personnel action must not use that authority to take, or fail to take, or threaten to take a personnel action against an employee or applicant because of a disclosure of information by that individual that is reasonably believed to evidence violations of law, rule, or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless the disclosure of such information is specifically prohibited by law and such information is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.

Retaliation against a DOT employee or applicant for making a protected disclosure is prohibited (5 U.S.C. 2302(b)(8)). If you believe you are a victim of whistleblower retaliation, you may file a written complaint with the U.S. Office of Special Counsel using Form OSC–14. Form OSC–14 can be filed electronically at http://www.osc.gov. You may also contact the DOT Office of Inspector General Hotline by phone at 1–800–424–9071, by fax at 202–366–7749, by email at [e-mail], online at https://www.oig.dot.gov/​hotline, or by mail at 1200 New Jersey Avenue SE, West Bldg 7th Floor, Washington, DC 20590.

Retaliation for Engaging in Protected Activity

A Federal agency cannot retaliate against an employee or applicant because that individual exercises their rights under any of the Federal antidiscrimination or whistleblower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the Antidiscrimination Laws and Whistleblower Protection Laws sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy.

Disciplinary Actions

Under existing laws, DOT retains the right, where appropriate, to discipline a DOT employee who engages in conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection laws up to and including removal from Federal service. If DOT takes an adverse action under 5 U.S.C. 7512 against an employee for a discriminatory act, it must include a notation of the adverse action and the reason for the action in the employee's personnel record. If OSC initiates an investigation under 5 U.S.C. 1214, DOT must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation (5 U.S.C. 1214). Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a DOT employee, or to violate the procedural rights of a DOT employee accused of discrimination.

Additional Information

For more information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate office(s) within your agency ( e.g., EEO/civil rights offices, human resources offices, or legal offices). You can find additional information regarding Federal antidiscrimination, whistleblower protection, and retaliation laws at the EEOC website at http://www.eeoc.gov and the OSC website at http://www.osc.gov.

Existing Rights Unchanged

Pursuant to section 205 of the No FEAR Act, neither the No FEAR Act nor this notice creates, expands, or reduces any rights otherwise available to any employee, former employee, or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).

Issued in Washington, DC, on October 26, 2023.

Irene Marion,

Director, Departmental Office of Civil Rights, U.S. Department of Transportation.