The NoFEAR Act

1
The NoFEAR Act

• Notification and Federal
• Employee Antidiscrimination and
• Retaliation Act (NoFEAR Act)
• Mandatory Training Module
• DHHS/OS/ASAM
• Office of Diversity Management EEO
• U.S. Department of Health and Human Services

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Introduction

• This training will inform you of the NoFEAR Act
  and will meet your new Employee or Biennial
  NoFear Training Requirement
• This session should take about 20 30 minutes to
  complete.
• At the conclusion of this training, you should
• Understand the basic provisions of the NoFEAR Act
• Know what Antidiscrimination and Whistleblower
  Protection Laws protect you
• Understand how to file a complaint alleging
  discrimination, retaliation, or a violation of
  the Whistleblower Protection Laws

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What is the NoFEAR Act?

• Congress enacted the Notification and Federal
  Employee Antidiscrimination and Retaliation Act
  (NoFEAR Act) on May 15, 2002.
• The Act requires Federal agencies be
  accountable for violations of antidiscrimination
  and whistleblower protection laws.
• Intent is to prevent and reduce discrimination by
  helping to ensure federal agencies
• Pay more attention to their EEO and Whistleblower
  activity
• Act more expeditiously to resolve complaints at
  the administrative level when it is appropriate
  to do so

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Background

• NoFEAR Act was prompted by
• Allegations of discrimination at EPA
• Findings of a GAO Report
• Significant rise in discrimination complaints in
  past decades by federal employees
• Increase in allegations of retaliation against
  federal employees who had participated in
  complaint process

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NoFEAR Act Requirements

• Agencies must
• Train and notify employees on their rights and
  protections under the antidiscrimination and
  whistleblower laws.
• Reimburse the Treasury Judgment Fund for payments
  made in Federal District court cases involving
  violations of discrimination and whistleblower
  laws.
• Post information on its public website relating
  to complaints of discrimination and annually
  report to Congress.

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General Provisions

• Agencies should not retaliate for court judgments
  or settlements relating to discrimination or
  whistleblower laws by targeting claimants or
  other employees with
• Reductions in compensation, benefits for its
  workforce
• Using RIFs or furloughs to fund agency
  reimbursement
• Agencies must ensure managers have adequate
  training in managing a diverse workforce and in
  dispute resolution
• Prohibits agencies from taking unfounded
  disciplinary actions against, or violating
  procedural rights of managers accused of
  discrimination

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Cornerstones of NoFEAR Act

• Notification
• Accountability
• Reporting

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Cornerstones - Notification

• Agencies must provide Federal employees and
  applicants written notification of their rights
  and protections under discrimination and
  whistleblower laws.
• This includes
• Posting information on the Internet site of
  agency
• Providing employees training on rights and
  remedies

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Cornerstones - Accountability

• The Act improves accountability by requiring
  agencies to pay for discrimination or
  whistleblower judgments out of their operating
  funds
• Must reimburse General Fund or Treasury
• May extend reimbursement over several years to
  avoid
• RIFs, Furloughs, Reduction in compensation or
  benefits, or any adverse effect on mission of
  agency
• Individuals are to be held accountable for their
  actions

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Cornerstones - Reporting

• Each Federal agency is required to post summary
  statistical data relating to EEO complaints filed
  by employees, former employees or applicants on
  their public website.
• EEOC is also required to post information
  relating to hearings requested and appeals filed
  from final agency actions on a public website.

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Cornerstones Reporting (continued)

• Agencies must submit an annual report, not later
  than 180 days after the end of each fiscal year
  to Congress, EEOC and the Attorney General
  addressing
• Number and status of cases
• Amount of money reimbursed for each case
• Number of employees disciplined for violation of
  laws/policies
• Specific disciplinary action(s) taken
• Policy implemented by agency relating to
  disciplinary actions taken against employees who
  discriminated or committed prohibited personnel
  practices
• Fiscal year end data relating to complaints filed
  and analysis of data

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Cornerstones Reporting (continued)

• Reporting Agency information is used to
• Examine trends
• Conduct causal analysis
• Gain practical knowledge through experience
• Develop action plans to improve complaint or
  civil rights programs

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You are Protected by Antidiscrimination Laws

• Illegal discrimination occurs when one employee
  is treated differently than another employee and
  treatment is based on race, color, religion, sex,
  national origin, age, and disability.
• As a Federal employee, you are protected from
  illegal discrimination in employment matters on
  the basis of your race, color, religion, sex,
  national origin, age, and disability.
• The Antidiscrimination Laws protect you from
  discrimination concerning the terms and
  conditions of your employment.

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Title VII of the Civil Rights Act

• Title VII of the 1964 Civil Rights Act, as
  amended, protects employees from employment
  discrimination on the basis of sex, race, color,
  national origin, or religion.
• While not covered under Title VII, sexual
  orientation is a prohibited basis of
  discrimination under Executive Order 13087,
  issued May 1998
• Sexual harassment and pregnancy discrimination
  are considered forms of sex discrimination and
  are prohibited by Title VII.
• In addition to protection against discrimination
  because of religion, Title VII also establishes
  the agencys duty to provide reasonable
  accommodation for an employees religious beliefs
  unless doing so would impose an undue hardship on
  the employer.

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The Age Discrimination in Employment Act

• The Age Discrimination in Employment Act (ADEA)
  prohibits discrimination against Federal
  employees who are 40 years of age or older.
• The Act protects older employees from employment
  actions based on stereotypes or stigmas
  associated with age.

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The Rehabilitation Act

• The Rehabilitation Act of 1973 prohibits
  employment discrimination against Federal
  employees with disabilities.
• In addition, agencies must provide reasonable
  accommodation for an employee or applicant with a
  disability.
• A disability is a physical or mental impairment
  that substantially limits a major life activity
  (breathing, walking, seeing, hearing, performing
  manual task).

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The Rehabilitation Act (continued)

• A temporary or short term illness is not a
  disability. An inability to work in only one
  type of job, for one particular supervisor, or in
  one location is not a disability.
• You must be qualified for your position.
• If you cannot perform the essential functions of
  the job, with or without reasonable
  accommodation, you are not qualified.

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The Rehabilitation Act (continued)

• The Federal government has an obligation to
  provide reasonable accommodation to individuals
  with disabilities.
• A reasonable accommodation is an adjustment to
  the work situation or environment to enable you
  to perform your job, as long as it is not an
  undue hardship to the agency.
• The accommodation does not have to be specific to
  what is being requested by the employee. It does
  have to be a reasonable, effective accommodation.
• The Agency has no obligation to change
  performance standards or to eliminate essential
  functions of your position as a reasonable
  accommodation.

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The Equal Pay Act

• The Equal Pay Act of 1963 prohibits federal
  agencies from paying employees of one sex lower
  wages than those of the opposite sex for
  performing substantially equal work.

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Protection Against Reprisal or Retaliation

• The Antidiscrimination laws protect you from
  reprisal for exercising your rights under those
  Acts.
• Protected activities may include filing a
  complaint of discrimination, requesting
  reasonable accommodation, giving evidence or
  testimony to an investigator or in a hearing,
  participating in the EEO process, or complaining
  about or protesting perceived discrimination
  against you or another employee.

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If You Believe You Have Been Discriminated
Against

• You must contact your EEO Office for the
  assignment of an EEO Counselor within 45 calendar
  days from when you first became aware of the
  alleged discrimination.
• Employees complaining about age discrimination
  may give notice of intent to sue to the Equal
  Employment Opportunity Commission within 180 days
  of the alleged discrimination.

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If You Believe You Have Been Discriminated
Against(continued)

• The EEO Counselor will try to resolve the
  complaint and will offer you an opportunity to
  use the Alternative Dispute Resolution (ADR) to
  resolve your complaint.
• If the complaint is not resolved, you will be
  provided a Notice of Right to File a Complaint.
  You must file within 15 calendar days from
  receipt of the Notice.
• Employees covered by a negotiated bargaining
  agreement which permits allegations of
  discrimination, may elect to proceed under the
  negotiated bargaining agreement, rather than
  filing a formal complaint of discrimination. You
  cannot do both.

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If You Believe You Have Been Discriminated
Against(continued)

• In some cases, extensions of the time frames for
  contacting an EEO Counselor or filing a complaint
  are possible, if a valid reason is presented.
• You should fully explain any delays for untimely
  EEO Counselor contact or complaint filing.
• The Agency EEO Official, not the EEO Counselor,
  will make the decision if the time limits may be
  extended

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If You Believe You Have Been Discriminated
Against(continued)

• You are entitled to a reasonable amount of time
  to
• Prepare and present your complaint
• Meet with a counselor, an investigator or to
  participate in the hearing
• While there is no set amount of time, it is
  normally granted in terms of hours, not days.

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Marital Status Political Affiliation
Discrimination

• Federal law makes it illegal to discriminate
  against Federal employees because of their
  marital status or political affiliation, or to
  retaliate against employees for exercising their
  rights.
• If you believe discrimination has occurred on one
  of these bases, you may file a written complaint
  with the U.S. Office of Special Counsel.
• You may also pursue such a complaint through your
  administrative grievance system, or the
  negotiated grievance procedures, if applicable.

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Manager Supervisor Responsibilities

• A manager or supervisor is required to
• Ensure they have legitimate, non-discriminatory
  reasons for the actions they take
• Ensure they treat employees fairly and equitably
• Fully consider reasonable accommodation to
  individuals with disabilities
• Check with your EEO Office with questions on
  whether reasonable accommodation is appropriate
• Only disclose medical information to officials
  with a need to know and keep medical information
  separate from personnel files

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Manager Supervisor Responsibilities (continued)

• Provide a reasonable amount of time to an
  employee to work on an EEO complaint
• Cooperate with an EEO Counselor or EEO
  Investigator
• Failure to do so may result in disciplinary
  action
• Ensure employees are not subjected to a hostile
  work environment because of their race, color,
  national origin, age, religion, sex or
  disability. Act on all complaints of alleged
  discrimination or harassment

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Whistleblower Protection Laws

• 5 U.S.C. 2302(b)(8) prohibits retaliation against
  an employee or applicant for disclosing
  information 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
• Employees may not disclose information if
  disclosure is specifically prohibited by law or
  if the information is required under Executive
  Order to be protected from disclosure in the
  interest of national security.

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Whistleblower Protection Laws (continued)

• A Federal agency cannot retaliate against an
  employee or applicant (through personnel action
  or otherwise) because that individual exercises
  his or her rights under the Whistleblower
  Protection Act
• If an employee believes he/she has been subjected
  to retaliation via a personnel action within the
  jurisdiction of the Merit System Protection Board
  (MSPB), the employee may
• File a complaint with the Office of the Special
  Counsel (OSC) before filing an appeal with MSPB
  or
• File an appeal directly with the MSPB

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Filing a Whistleblower Protection Complaint

• If the employee chooses to go directly to the
  MSPB
• The appeal must be filed no later than 30 days
  after the effective date of the action being
  appealed, or 30 days after receipt of the
  agencys decision, whichever is later.
• If an Alternate Dispute Resolution (ADR) process
  is used, the employee may extend the filing
  period by 30 days, for a total of 60 days.
• If the personnel actions do not fall under the
  MSPB jurisdiction, the employee must first file a
  complaint with the OSC before filing an appeal
  with the MSPB.

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Filing a Whistleblower Protection Complaint
(continued)

• A complaint may be filed with OSC by using Form
  OSC-11 (Complaint of Possible Prohibited
  Personnel Practice or other Prohibited Activity)
• Form OSC-11 can be obtained by contacting
• Office of Special Counsel (OSC)
• Complaints Examining Unit
• 1730 M Street, NW, Suite 218
• Washington, DC 20036-4505
• 1-800-872-9855 (toll free) or [phone]
• http//www.osc.gov/

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Filing a Whistleblower Protection Complaint
(continued)

• After the OSC complaint process is exhausted, the
  appellant may file an appeal with the MSPB
• No later than 65 days after the date that OSCs
  written notification was issued terminating the
  investigation or
• If notification was received more than 5 days
  after the date of issuance, the MSPB appeal must
  be filed within 60 days after the date the date
  OSCs notification was received.
• If OSC has not notified the appellant that it
  will seek corrective action within 120 days of
  the filing date, the appellant may file an MSPB
  appeal at any time after the 120 day period
  expires.

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Where Do I go For More Information?

• Discrimination Laws
• Contact your local EEO Manager or the Director,
  DM/EEO Indian Health Service
• EEO Complaint process
• http//www.hhs.gov/eeo/complaint.html
• Whistleblower Act and Protections
• Local HR Office or visit http//www.osc.gov

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NoFEAR Act Notice

• HHS NoFEAR Act Notice
• http//www.hhs.gov/eeo/about_no_fear.html
• Public Law 107-174 (NoFEAR Act)
• http//www.hhs.gov/eeo/no_fear_act_of_2001.html
• HHS Equal Employment Opportunity Data Posted
  Pursuant to NoFEAR Act
• http//www.hhs.gov/eeo/no_fear_bullet_3.html

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NoFEAR Act Training

• Thank you for completing
• the NoFEAR Act Training
• The training certificate will not print
  automatically on the last page, so you will need
  to print, then type or write in your name and
  date. Please submit your certificate to your
  supervisor to verify your training completion of
  this course.

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Certificate of Completion for NoFEAR Act Training

• Office of Diversity Management and Equal
  Employment Opportunity
• This certifies that
• has completed the online
• training module for
• NoFEAR Act Training
• (Date)