E6-18862. No FEAR Act Notice

AGENCY:

Government Accountability Office.

ACTION:

Notice.

SUMMARY:

The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) requires that each Federal agency provide notice to all employees, former employees, and applicants for employment about the rights and remedies available under antidiscrimination laws and whistleblower protection laws applicable to them. GAO's notice specifically describes the GAO processes and procedures for filing complaints alleging violations of these laws. This document fulfills GAO's requirement to publish the initial notice in the Federal Register.

DATES:

This notice is effective November 8, 2006.

FOR FURTHER INFORMATION CONTACT:

Barbara Simball, Assistant General Counsel; telephone [phone]; e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

The “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002” was passed to require that Federal agencies be accountable for violations of discrimination and whistleblower protection laws. The Act recognized that agencies cannot be run effectively if those agencies practice or tolerate discrimination. As defined in 5 U.S.C. 104, GAO is an independent establishment, and by extension an executive agency as defined in 5 U.S.C. 105, and thus is covered under this Act. The Act and regulations promulgated by Office of Personnel Management at 5 CFR 724.102 require that Federal employees, former employees, and applicants be notified in paper and/or electronic form of the rights and protections available to them under Antidiscrimination and Whistleblower Protection laws. GAO's notice will raise the awareness of its employees, former employees, and applicants for employment of the procedures to follow if they believe they have been subject to a violation of these laws.

No FEAR Act Notice

On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” Public Law 107-174, 116 Stat. 566, which is now known as the No FEAR Act. One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” Public Law 107-174, Summary. In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination.” Public Law 107-174, Title I, General Provisions, section 101(1).

The Act also requires that each Federal agency provide the following notice to its employees, former employees, and applicants for Federal employment to inform them of the rights and protections available to them 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 on the basis of race, color, religion, sex, national origin, age, disability, marital status, or political affiliation. Discrimination on these bases is prohibited by one or more of the following statutes: 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, 42 U.S.C. 2000e-16, and 42 U.S.C. 12101.

If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin, or disability, you must contact an Office of Opportunity and Inclusiveness (OOI) 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, before you can file a formal complaint of discrimination with your agency. See GAO Order 2713.2, “Discrimination Complaint Resolution Process” (July 10, 2006). If you believe that you have been the victim of unlawful discrimination on the basis of age, you must either contact an EEO counselor as noted above or give notice of intent to sue to OOI within 180 calendar days of the alleged discriminatory action. If you are alleging discrimination based on marital status or political affiliation, you may file a charge with the Personnel Appeals Board Office of General Counsel (PAB/OGC). See 4 CFR Part 28. In addition, in certain types of adverse and performance-based actions, such as removals, you may file a discrimination charge directly with the PAB/OGC within 30 days of the effective date of the action, instead of filing a complaint with OOI. See 4 CFR 28.98(c) for further information.

Whistleblower Protection Laws

A Federal 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 or fail to take, a personnel action against an employee or applicant because of 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 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 an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8), as made applicable to GAO by 31 U.S.C. 732(b)(2).

If you believe that you have been the victim of whistleblower retaliation, you may file a charge with the PAB/OGC. See 4 CFR part 28.

Retaliation for Engaging in Protected Activity

A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her 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 sections in order to pursue any legal remedy.

Disciplinary Actions

Under the existing laws, each agency retains the right, where appropriate, to discipline an employee for conduct that is inconsistent with Federal antidiscrimination and whistleblower protection laws up to and including removal. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination.

Additional Information

For further information regarding the No FEAR Act regulations, refer to 5 CFR Part 724, or contact the Office of Opportunity & Inclusiveness (OOI) or the Office of the General Counsel, Legal Services Group. OOI is located at 441 G Street, NW., Room 6123, Washington, DC 20548. The Office of the General Counsel, Legal Services, is located at 441 G Street, NW., Room 7838, Washington, DC 20548. Additional information regarding Federal antidiscrimination, whistleblower protection, and retaliation laws can be found at the Equal Employment Opportunity Commission Web site—http://www.eeoc.gov, the Office of Special Counsel Web site—http://www.osc.gov, and in GAO Order 2713.2, “Discrimination Complaint Resolution Process” (July 10, 2006), and Personnel Appeals Board regulations, 4 CFR Part 28. The PAB/OGC is located at Union Center Plaza II, Suite 580, 820 First Street, NE., Washington, DC 20002.

Existing Rights Unchanged

Pursuant to section 205 of the No FEAR Act, neither the 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).

Dated: November 3, 2006.

Gary L. Kepplinger,

General Counsel, Government Accountability Office.