5 U.S.C. § 2301 — Merit system principles

Page 308 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2109 purposes of making an appointment in the competitive service, if the individual— (A) meets the definition of a veteran under section 2108(1), except for the requirement that the individual has been discharged or released from active duty in the armed forces under honorable conditions; and (B) submits a certification described under paragraph (2) to the Federal officer making the appointment. (2) CERTIFICATION.—A certification referred to under paragraph (1) is a certification that the individual is expected to be discharged or released from active duty in the armed forces under honorable conditions not later than 120 days after the date of the submission of the certification. (b) DISABLED VETERAN.— (1) IN GENERAL.—Except as provided under paragraph (3),1 an individual shall be treated as a disabled veteran defined under section 2108(2) for purposes of making an appointment in the competitive service, if the individual— (A) meets the definition of a disabled vet- eran under section 2108(2), except for the re- quirement that the individual has been sepa- rated from active duty in the armed forces under honorable conditions; and (B) submits a certification described under paragraph (2) to the Federal officer making the appointment. (2) CERTIFICATION.—A certification referred to under paragraph (1) is a certification that the individual is expected to be separated from active duty in the armed forces under honor- able conditions not later than 120 days after the date of the submission of the certification. (c) PREFERENCE ELIGIBLE.—Subsections (a) and (b) shall apply with respect to determining whether an individual is a preference eligible under section 2108(3) for purposes of making an appointment in the competitive service. (Added Pub. L. 112–56, title II, § 235(a)(1), Nov. 21, 2011, 125 Stat. 722.) § 2109. Air traffic controller; Secretary For the purpose of this title— (1) ‘‘air traffic controller’’ or ‘‘controller’’ means a civilian employee of the Department of Transportation or the Department of De- fense who, in an air traffic control facility or flight service station facility— (A) is actively engaged— (i) in the separation and control of air traffic; or (ii) in providing preflight, inflight, or airport advisory service to aircraft opera- tors; or (B) is the immediate supervisor of any em- ployee described in subparagraph (A); and (2) ‘‘Secretary’’, when used in connection with ‘‘air traffic controller’’ or ‘‘controller’’, means the Secretary of Transportation with respect to controllers in the Department of Transportation, and the Secretary of Defense with respect to controllers in the Department of Defense. (Added Pub. L. 92–297, § 1(a), May 16, 1972, 86 Stat. 141; amended Pub. L. 96–347, § 1(a), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 99–335, title II, § 207(b), June 6, 1986, 100 Stat. 594.) Editorial Notes AMENDMENTS 1986—Par. (1). Pub. L. 99–335 amended par. (1) gen- erally including within term ‘‘air traffic controller’’ or ‘‘controller’’ references to a flight service station facil- ity and to employment providing preflight, inflight, or airport advisory service to aircraft operators and strik- ing out provision that regulations prescribed by the Secretary be used in determining who is an air traffic controller. 1980—Pub. L. 96–347 substituted ‘‘controller; Sec- retary’’ for ‘‘controller’’ in section catchline, and in text included employees of the Department of Defense within the meaning of air traffic controller or con- troller and defined ‘‘Secretary’’ to mean Secretary of Transportation with respect to controllers in the De- partment of Transportation and Secretary of Defense with respect to controllers in the Department of De- fense. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effec- tive Date note under section 8401 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Pub. L. 96–347, § 3, Sept. 12, 1980, 94 Stat. 1151, provided that: ‘‘This Act [amending this section and sections 3307, 3381 to 3385, and 8335 of this title and enacting pro- visions set out as a note under section 8335 of this title] shall take effect on the later of— ‘‘(1) October 1, 1980, or ‘‘(2) the ninetieth day after the date of the enact- ment of this Act [Sept. 12, 1980].’’ EFFECTIVE DATE Section effective on 90th day after May 16, 1972, see, section 10 of Pub. L. 92–297, set out as a note under sec- tion 3381 of this title. CHAPTER 23—MERIT SYSTEM PRINCIPLES Sec. 2301. Merit system principles. 2302. Prohibited personnel practices. 2303. Prohibited personnel practices in the Federal Bureau of Investigation. 2304. Prohibited personnel practices affecting the Transportation Security Administration. 2305. Responsibility of the Government Account- ability Office. 2306. Coordination with certain other provisions of law. [2307. Repealed.] Editorial Notes AMENDMENTS 2017—Pub. L. 115–91, div. A, title X, § 1097(b)(1)(A), Dec. 12, 2017, 131 Stat. 1616, struck out item 2307 ‘‘Infor- mation on whistleblower protections’’. Pub. L. 115–73, title I, § 107(c), Oct. 26, 2017, 131 Stat. 1240, added item 2307. 2012—Pub. L. 112–199, § 109(b), Nov. 27, 2012, 126 Stat. 1471, added items 2304 to 2306 and struck out former items 2304 ‘‘Responsibility of the Government Account- ability Office’’ and 2305 ‘‘Coordination with certain other provisions of law’’. 2004—Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814, substituted ‘‘Government Accountability Office’’ for ‘‘General Accounting Office’’ in item 2304. § 2301. Merit system principles (a) This section shall apply to— Page 309 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2301 (1) an Executive agency; and (2) the Government Publishing Office. (b) Federal personnel management should be implemented consistent with the following merit system principles: (1) Recruitment should be from qualified in- dividuals from appropriate sources in an en- deavor to achieve a work force from all seg- ments of society, and selection and advance- ment 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. (2) All employees and applicants for employ- ment should receive fair and equitable treat- ment 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 con- stitutional rights. (3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employ- ers in the private sector, and appropriate in- centives and recognition should be provided for excellence in performance. (4) All employees should maintain high standards of integrity, conduct, and concern for the public interest. (5) The Federal work force should be used ef- ficiently and effectively. (6) Employees should be retained on the basis of the adequacy of their performance, in- adequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet re- quired standards. (7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance. (8) Employees should be— (A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and (B) prohibited from using their official au- thority or influence for the purpose of inter- fering with or affecting the result of an elec- tion or a nomination for election. (9) Employees should be protected against reprisal for the lawful disclosure of informa- tion which the employees reasonably believe evidences— (A) a violation of any law, rule, or regula- tion, or (B) mismanagement, a gross waste of funds, an abuse of authority, or a substan- tial and specific danger to public health or safety. (c) In administering the provisions of this chapter— (1) with respect to any agency (as defined in section 2302(a)(2)(C) of this title), the Presi- dent shall, pursuant to the authority other- wise available under this title, take any ac- tion, including the issuance of rules, regula- tions, or directives; and (2) with respect to any entity in the execu- tive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise avail- able, 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 em- bodies the merit system principles. (Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1113; amended Pub. L. 101–474, § 5(c), Oct. 30, 1990, 104 Stat. 1099; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537.) Editorial Notes AMENDMENTS 1990—Subsec. (a). Pub. L. 101–474 redesignated par. (3) as (2) and struck out former par. (2) which provided that this section is applicable to Administrative Office of United States Courts. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Government Publishing Office’’ substituted for ‘‘Government Printing Office’’ in subsec. (a)(2) on au- thority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents. EFFECTIVE DATE Chapter effective 90 days after Oct. 13, 1978, see sec- tion 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title. TRAINING FOR SUPERVISORS Pub. L. 115–73, title I, § 106, Oct. 26, 2017, 131 Stat. 1238, provided that: ‘‘In consultation with the Special Coun- sel and the Inspector General of the agency (or senior ethics official of the agency for an agency without an Inspector General), the head of each agency shall pro- vide training regarding how to respond to complaints alleging a violation of whistleblower protections (as de- fined in [former] section 2307 of title 5, United States Code, as added by section 107) available to employees of the agency— ‘‘(1) to employees appointed to supervisory posi- tions in the agency who have not previously served as a supervisor; and ‘‘(2) on an annual basis, to all employees of the agency serving in a supervisory position.’’ [For definitions of ‘‘agency’’ and ‘‘employee’’ as used in section 106 of Pub. L. 115–73, set out above, see sec- tion 101 of Pub. L. 115–73, set out as a note under sec- tion 1212 of this title.] NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION Pub. L. 107–174, May 15, 2002, 116 Stat. 566, as amended by Pub. L. 109–435, title VI, § 604(f), Dec. 20, 2006, 120 Stat. 3242; Pub. L. 116–283, div. A, title XI, §§ 1132–1134(a)(1), (b), 1135–1137, Jan. 1, 2021, 134 Stat. 3900–3903, provided that: ‘‘SECTION 1. SHORT TITLE; TABLE OF CONTENTS. ‘‘(a) SHORT TITLE.—This Act may be cited as the ‘No- tification and Federal Employee Antidiscrimination and Retaliation Act of 2002’. ‘‘(b) TABLE OF CONTENTS.—[Omitted.] ‘‘TITLE I—GENERAL PROVISIONS ‘‘SEC. 101. FINDINGS. ‘‘Congress finds that— ‘‘(1) Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination; Page 310 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2301 ‘‘(2) Congress has heard testimony from individuals, including representatives of the National Association for the Advancement of Colored People and the Amer- ican Federation of Government Employees, that point to chronic problems of discrimination and re- taliation against Federal employees; ‘‘(3) in August 2000, a jury found that the Environ- mental 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 Con- gress to carry out its oversight responsibilities; ‘‘(5) there have been several recent class action suits based on discrimination brought against Fed- eral agencies, including the Federal Bureau of Inves- tigation, the Bureau of Alcohol, Tobacco, and Fire- arms, the Drug Enforcement Administration, the Im- migration and Naturalization Service, the United States Marshals Service, the Department of Agri- culture, 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 whistle- blower 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 dis- crimination 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 whistleblower 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 em- ployment 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 reimburse- ment under this Act; ‘‘(4) accountability in the enforcement of the rights of Federal employees is furthered when Federal agen- cies agree to take appropriate disciplinary action against Federal employees who are found to have in- tentionally committed discriminatory (including re- taliatory) acts; ‘‘(5)(A) 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 ‘‘(B) Federal agencies should ensure that managers have adequate training in the management of a di- verse 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 an- nual appropriations for that agency, may need to ex- tend reimbursement over several years in order to avoid— ‘‘(i) reductions in force; ‘‘(ii) furloughs; ‘‘(iii) other reductions in compensation or bene- fits for the workforce of the agency; or ‘‘(iv) an adverse effect on the mission of the agen- cy. ‘‘SEC. 103. DEFINITIONS. ‘‘For purposes of this Act— ‘‘(1) the term ‘applicant for Federal employment’ means an individual applying for employment in or under a Federal agency; ‘‘(2) the term ‘basis of alleged discrimination’ shall have the meaning given such term under section 303; ‘‘(3) 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; ‘‘(4) the term ‘Federal employee’ means an indi- vidual employed in or under a Federal agency; ‘‘(5) the term ‘former Federal employee’ means an individual formerly employed in or under a Federal agency; and ‘‘(6) 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 be- ginning more than 180 days after the date of the enact- ment of this Act [May 15, 2002]. ‘‘TITLE II—FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION ‘‘SEC. 201. REIMBURSEMENT REQUIREMENT. ‘‘(a) APPLICABILITY.—This section applies with re- spect 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 settle- ments) to any Federal employee, former Federal em- ployee, or applicant for Federal employment, in con- nection with any proceeding brought by or on behalf of such employee, former employee, or applicant under— ‘‘(1) any provision of law cited in subsection (c); or ‘‘(2) 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 re- imbursed 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 appropria- tion, 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 discrimi- natory conduct involved is attributable as determined under section 204. ‘‘(c) SCOPE.—The provisions of law cited in this sub- section are the following: ‘‘(1) Section 2302(b) of title 5, United States Code, as applied to discriminatory conduct described in para- graphs (1) and (8), or described in paragraph (9) of such section as applied to discriminatory conduct de- scribed in paragraphs (1) and (8), of such section. ‘‘(2) 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 employ- ment (as the case may be) in connection with the re- spective provisions of law covered by paragraphs (1) and (2) of section 201(a) shall be provided to such employ- ees, former employees, and applicants— ‘‘(1) in accordance with otherwise applicable provi- sions of law; or ‘‘(2) 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 notifica- tion under this section shall include, but not be limited Page 311 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2301 to, the posting of the information required under para- graph (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 re- garding the rights and remedies applicable to such em- ployees under the laws cited in section 201(c). ‘‘(d) NOTIFICATION OF FINAL AGENCY ACTION.— ‘‘(1) IN GENERAL.—Not later than 90 days after the date on which an event described in paragraph (2) oc- curs with respect to a finding of discrimination (in- cluding retaliation), the head of the Federal agency subject to the finding shall provide notice— ‘‘(A) on the public internet website of the agency, in a clear and prominent location linked directly from the home page of that website; ‘‘(B) stating that a finding of discrimination (in- cluding retaliation) has been made; and ‘‘(C) which shall remain posted for not less than 1 year. ‘‘(2) EVENTS DESCRIBED.—An event described in this paragraph is any of the following: ‘‘(A) All appeals of a final action by a Federal agency involving a finding of discrimination (in- cluding retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) have been exhausted. ‘‘(B) 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. ‘‘(C) A court of jurisdiction issues a final judg- ment involving a finding of discrimination (includ- ing retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a). ‘‘(3) CONTENTS.—A notification provided under para- graph (1) with respect to a finding of discrimination (including retaliation) shall— ‘‘(A) identify the date on which the finding was made, the date on which each discriminatory act occurred, and the law violated by each such dis- criminatory act; and ‘‘(B) 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 re- port (in an electronic format prescribed by the Director of the Office of Personnel Management), which shall in- clude, with respect to the fiscal year— ‘‘(1) 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; ‘‘(2) the status or disposition of cases described in paragraph (1); ‘‘(3) the amount of money required to be reimbursed by such agency under section 201 in connection with each of such cases, separately identifying the aggre- gate amount of such reimbursements attributable to the payment of attorneys’ fees, if any; ‘‘(4) the number of employees disciplined for dis- crimination, retaliation, harassment, or any other in- fraction of any provision of law referred to in para- graph (1); ‘‘(5) the final year-end data posted under section 301(c)(1)(B) for such fiscal year (without regard to sec- tion 301(c)(2)); ‘‘(6) a detailed description of— ‘‘(A) the policy implemented by that agency re- lating to appropriate disciplinary actions against a Federal employee who— ‘‘(i) discriminated against any individual in vio- lation of any of the laws cited under section 201(a)(1) or (2); or ‘‘(ii) 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 ‘‘(B) with respect to each of such laws, the num- ber of employees who are disciplined in accordance with such policy and the specific nature of the dis- ciplinary action taken; ‘‘(7) an analysis of the information described under paragraphs (1) through (6) (in conjunction with data provided to the Equal Employment Opportunity Com- mission in compliance with part 1614 of title 29 of the Code of Federal Regulations) including— ‘‘(A) an examination of trends; ‘‘(B) causal analysis; ‘‘(C) practical knowledge gained through experi- ence; and ‘‘(D) any actions planned or taken to improve complaint or civil rights programs of the agency; and ‘‘(8) 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 sub- section (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 deci- sion issued by the Equal Employment Opportunity Commission, involving a finding of discrimination (in- cluding retaliation) in violation of a provision of law covered by paragraph (1) or (2) of section 201(a), as ap- plicable, the applicable Federal agency shall submit to the Commission a report stating— ‘‘(1) whether disciplinary action has been proposed against a Federal employee as a result of the viola- tion; and ‘‘(2) the reasons for any disciplinary action pro- posed under paragraph (1). ‘‘SEC. 204. RULES AND GUIDELINES. ‘‘(a) ISSUANCE OF RULES AND GUIDELINES.—The Presi- dent (or the designee of the President) shall issue— ‘‘(1) rules to carry out this title; ‘‘(2) 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 ‘‘(3) 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 IMPLEMENTA- TION OF GUIDELINES.—Not later than 30 days after the issuance of guidelines under subsection (a), each Fed- eral agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Sen- ate, the Equal Employment Opportunity Commission, and the Attorney General a written statement speci- fying in detail— ‘‘(1) whether such agency has adopted and will fully follow such guidelines; ‘‘(2) if such agency has not adopted such guidelines; the reasons for the failure to adopt such guidelines; and ‘‘(3) if such agency will not fully follow such guide- lines, the reasons for the decision not to fully follow Page 312 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2301 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. STUDIES BY GENERAL ACCOUNTING OF- FICE [now GOVERNMENT ACCOUNTABILITY OF- FICE] ON EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT OF CER- TAIN DEPARTMENT OF JUSTICE COSTS. ‘‘(a) STUDY ON EXHAUSTION OF ADMINISTRATIVE REM- EDIES.— ‘‘(1) STUDY.— ‘‘(A) IN GENERAL.—Not later than 180 days after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Ac- countability 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 ad- ministrative remedies before filing complaints with the Equal Employment Opportunity Commission. ‘‘(B) CONTENTS.—The study shall include a de- tailed summary of matters investigated, informa- tion collected, and conclusions formulated that lead to determinations of how the elimination of such requirement will— ‘‘(i) expedite handling of allegations of such vio- lations within Federal agencies and will stream- line the complaint-filing process; ‘‘(ii) affect the workload of the Commission; ‘‘(iii) affect established alternative dispute res- olution procedures in such agencies; and ‘‘(iv) affect any other matters determined by the General Accounting Office [now Government Accountability Office] to be appropriate for con- sideration. ‘‘(2) REPORT.—Not later than 90 days after comple- tion of the study required by paragraph (1), the Gen- eral Accounting Office [now Government Account- ability 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 con- taining the information required to be included in such study. ‘‘(b) STUDY ON ASCERTAINMENT OF CERTAIN COSTS OF THE DEPARTMENT OF JUSTICE IN DEFENDING DISCRIMINA- TION AND WHISTLEBLOWER CASES.— ‘‘(1) STUDY.—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 administra- tive burden that would be imposed on, the Depart- ment of Justice to ascertain the personnel and ad- ministrative costs incurred in defending in each case arising from a proceeding identified under section 201(a)(1) and (2). ‘‘(2) REPORT.—Not later than 90 days after comple- tion of the study required by paragraph (1), the Gen- eral Accounting Office [now Government Account- ability Office] shall submit to the Speaker of the House of Representatives and the President pro tem- pore of the Senate a report containing the informa- tion required to be included in the study. ‘‘(c) STUDIES ON STATUTORY EFFECTS ON AGENCY OP- ERATIONS.— ‘‘(1) IN GENERAL.—Not later than 18 months after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Ac- countability Office] shall conduct— ‘‘(A) a study on the effects of section 201 on the operations of Federal agencies; and ‘‘(B) 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. ‘‘(2) CONTENTS.—Each study under paragraph (1) shall include, with respect to the applicable statutes of the study— ‘‘(A) 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; ‘‘(B) a summary of the length of time Federal agencies used to complete reimbursements of pay- ments described under subparagraph (A); and ‘‘(C) conclusions that assist in making determina- tions on how the reimbursements of payments de- scribed under subparagraph (A) will affect— ‘‘(i) the operations of Federal agencies; ‘‘(ii) funds appropriated on an annual basis; ‘‘(iii) employee relations and other human cap- ital matters; ‘‘(iv) settlements; and ‘‘(v) any other matter determined by the Gen- eral Accounting Office [now Government Ac- countability Office] to be appropriate for consid- eration. ‘‘(3) REPORTS.—Not later than 90 days after the completion of each study under paragraph (1), the General Accounting Office [now Government Ac- countability 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 Account- ability] of the House of Representatives, and the At- torney General. ‘‘(d) STUDY ON ADMINISTRATIVE AND PERSONNEL COSTS INCURRED BY THE DEPARTMENT OF THE TREASURY.— ‘‘(1) IN GENERAL.—Not later than 1 year after the date of enactment of this Act [May 15, 2002], the Gen- eral Accounting Office [now Government Account- ability Office] shall conduct a study on the extent of any administrative and personnel costs incurred by the Department of the Treasury to account for pay- ments 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— ‘‘(A) this Act; and ‘‘(B) 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). ‘‘(2) REPORT.—Not later than 90 days after the com- pletion 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 Presi- dent 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 Com- mittee 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 Anti- discrimination Act of 2020 [Jan. 1, 2021], each Federal agency shall establish a system to track each com- plaint 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 resolu- tion 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 Page 313 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2301 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. ‘‘TITLE III—EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE ‘‘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 pre- scribed under section 303 (in conformance with the re- quirements of this section), summary statistical data relating to equal employment opportunity complaints filed with such agency by employees or former employ- ees 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: ‘‘(1) The number of complaints filed with such agen- cy in such fiscal year. ‘‘(2) The number of individuals filing those com- plaints (including as the agent of a class). ‘‘(3) The number of individuals who filed 2 or more of those complaints. ‘‘(4) The number of complaints (described in para- graph (1)) in which each of the various bases of al- leged discrimination is alleged. ‘‘(5) The number of complaints (described in para- graph (1)) in which each of the various issues of al- leged discrimination is alleged. ‘‘(6) The average length of time, for each step of the process, it is taking such agency to process com- plaints (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— ‘‘(A) for all such complaints, ‘‘(B) for all such complaints in which a hearing before an administrative judge of the Equal Em- ployment Opportunity Commission is not re- quested, and ‘‘(C) for all such complaints in which a hearing before an administrative judge of the Equal Em- ployment Opportunity Commission is requested. ‘‘(7) The total number of final agency actions ren- dered in such fiscal year involving a finding of dis- crimination and, of that number— ‘‘(A) the number and percentage that were ren- dered without a hearing before an administrative judge of the Equal Employment Opportunity Com- mission, and ‘‘(B) the number and percentage that were ren- dered after a hearing before an administrative judge of the Equal Employment Opportunity Com- mission. ‘‘(8) Of the total number of final agency actions rendered in such fiscal year involving a finding of dis- crimination— ‘‘(A) the number and percentage involving a find- ing of discrimination based on each of the respec- tive bases of alleged discrimination, and ‘‘(B) of the number specified under subparagraph (A) for each of the respective bases of alleged dis- crimination— ‘‘(i) the number and percentage that were ren- dered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and ‘‘(ii) the number and percentage that were ren- dered after a hearing before an administrative judge of the Equal Employment Opportunity Commission. ‘‘(9) Of the total number of final agency actions rendered in such fiscal year involving a finding of dis- crimination— ‘‘(A) the number and percentage involving a find- ing of discrimination in connection with each of the respective issues of alleged discrimination, ‘‘(B) of the number specified under subparagraph (A) for each of the respective issues of alleged dis- crimination— ‘‘(i) the number and percentage that were ren- dered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and ‘‘(ii) the number and percentage that were ren- dered after a hearing before an administrative judge of the Equal Employment Opportunity Commission, and ‘‘(C) with respect to each finding described in sub- paragraph (A)— ‘‘(i) the date of the finding, ‘‘(ii) the affected Federal agency, ‘‘(iii) the law violated, and ‘‘(iv) whether a decision has been made regard- ing disciplinary action as a result of the finding. ‘‘(10)(A) 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. ‘‘(B) With respect to those pending complaints that were first filed before the start of the then current fiscal year— ‘‘(i) the number of individuals who filed those complaints, and ‘‘(ii) the number of those complaints which are at the various steps of the complaint process. ‘‘(C) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the total number of com- plaints 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 com- plaints an impartial and appropriate investigation of such complaints. ‘‘(11) Data regarding each class action complaint filed against the agency alleging discrimination (in- cluding retaliation), including— ‘‘(A) information regarding the date on which each complaint was filed, ‘‘(B) a general summary of the allegations alleged in the complaint, ‘‘(C) an estimate of the total number of plaintiffs joined in the complaint, if known, ‘‘(D) the current status of the complaint, includ- ing whether the class has been certified, and ‘‘(E) the case numbers for the civil actions in which discrimination (including retaliation) has been found. ‘‘(c) TIMING AND OTHER REQUIREMENTS.— ‘‘(1) CURRENT YEAR DATA.—Data posted under this section for the then current fiscal year shall include both— ‘‘(A) interim year-to-date data, updated quar- terly, and ‘‘(B) final year-end data. ‘‘(2) DATA FOR PRIOR YEARS.—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 EM- PLOYMENT OPPORTUNITY COMMISSION. ‘‘(a) IN GENERAL.—The Equal Employment Oppor- tunity 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— ‘‘(1) hearings requested before an administrative judge of the Commission on complaints described in section 301, and ‘‘(2) appeals filed with the Commission from final agency actions on complaints described in section 301. Page 314 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2302 ‘‘(b) SPECIFIC REQUIREMENTS.—The data posted under this section shall, with respect to the hearings and ap- peals described in subsection (a), include summary sta- tistical data corresponding to that described in para- graphs (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 sec- tion shall be in addition to the data the Commission is required to post under section 301 as an employing Fed- eral agency. ‘‘SEC. 303. RULES. ‘‘The Equal Employment Opportunity Commission shall issue any rules necessary to carry out this title. ‘‘TITLE IV—PROCESSING AND REFERRAL ‘‘SEC. 401. PROCESSING AND RESOLUTION OF COM- PLAINTS. ‘‘Each Federal agency shall— ‘‘(1) be responsible for the fair and impartial proc- essing and resolution of complaints of employment discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of sec- tion 201(a); and ‘‘(2) establish a model Equal Employment Oppor- tunity Program that— ‘‘(A) is not under the control, either structurally or practically, of the agency’s Office of Human Cap- ital or Office of the General Counsel (or the equiva- lent); ‘‘(B) is devoid of internal conflicts of interest and ensures fairness and inclusiveness within the agen- cy; and ‘‘(C) ensures the efficient and fair resolution of complaints alleging discrimination (including re- taliation). ‘‘SEC. 402. NO LIMITATION ON ADVICE OR COUN- SEL. ‘‘Nothing in this title shall prevent a Federal agency or a subcomponent of a Federal agency, or the Depart- ment of Justice, from providing advice or counsel to employees of that agency (or subcomponent, as applica- ble) in the resolution of a complaint. ‘‘SEC. 403. HEAD OF PROGRAM SUPERVISED BY HEAD OF AGENCY. ‘‘The head of each Federal agency’s Equal Employ- ment Opportunity Program shall report directly to the head of the agency. ‘‘SEC. 404. REFERRALS OF FINDINGS OF DISCRIMI- NATION. ‘‘(a) EEOC FINDINGS OF DISCRIMINATION.— ‘‘(1) IN GENERAL.—Not later than 30 days after the date on which the Equal Employment Opportunity Commission (referred to in this section as the ‘Com- mission’) receives, or should have received, a Federal agency report required under section 203(c), the Com- mission may refer the matter to which the report re- lates to the Office of Special Counsel if the Commis- sion determines that the Federal agency did not take appropriate action with respect to the finding that is the subject of the report. ‘‘(2) NOTIFICATIONS.—The Commission shall— ‘‘(A) notify the applicable Federal agency if the Commission refers a matter to the Office of Special Counsel under paragraph (1); and ‘‘(B) with respect to a fiscal year, include in the Annual Report of the Federal Workforce of the Commission covering that fiscal year— ‘‘(i) the number of referrals made under para- graph (1) during that fiscal year; and ‘‘(ii) 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— ‘‘(1) the Office of Special Counsel pursues discipli- nary action under subsection (b); and ‘‘(2) the Federal agency imposes some form of dis- ciplinary action against a Federal employee who commits an act of discrimination (including retalia- tion). ‘‘(d) SPECIAL COUNSEL APPROVAL.—A Federal agency may not take disciplinary action against a Federal em- ployee for an alleged act of discrimination (including retaliation) referred by the Commission under this sec- tion, except in accordance with the requirements of section 1214(f) of title 5, United States Code.’’ [Pub. L. 116–283, div. A, title XI, § 1134(a)(2), Jan. 1, 2021, 134 Stat. 3901, provided that: ‘‘The amendment made by paragraph (1)(C) [amending section 203(a) of Pub. L. 107–174, set out above] shall take effect on the date that is 1 year after the date of enactment of this Act [Jan. 1, 2021].’’] [For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of Title 8, Aliens and Nationality.] [For transfer of authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, including the related functions of the Secretary of the Treasury, to the Department of Justice, see section 531(c) of Title 6, Domestic Security, and section 599A(c)(1) of Title 28, Judiciary and Judicial Proce- dure.] [Pub. L. 116–283, div. A, title XI, § 1134(a)(3), Jan. 1, 2021, 134 Stat. 3901, provided that: ‘‘Notwithstanding the requirements of section 203(a) of the Notification and Federal Employee Antidiscrimination and Retalia- tion Act of 2002 [Pub. L. 107–174] (5 U.S.C. 2301 note) [set out above], the report required under such section 203(a) may be submitted in an electronic format, as pre- scribed by the Director of the Office of Personnel Man- agement, during the period beginning on the date of en- actment of this Act [Jan. 1, 2021] and ending on the ef- fective date in paragraph (2) [1 year after the date of enactment of this Act].’’] [Memorandum of President of the United States, July 8, 2003, 68 F.R. 45155, delegated to Director of Office of Personnel Management authority of President under section 204(a) of Public Law 107–174, set out above.] § 2302. Prohibited personnel practices (a)(1) For the purpose of this title, ‘‘prohibited personnel practice’’ means any action described in subsection (b). (2) For the purpose of this section— (A) ‘‘personnel action’’ means— (i) an appointment; (ii) a promotion; (iii) an action under chapter 75 of this title or other disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under chapter 43 of this title or under title 38; (ix) 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, pro- motion, performance evaluation, or other action described in this subparagraph; (x) a decision to order psychiatric testing or examination; (xi) the implementation or enforcement of any nondisclosure policy, form, or agree- ment; and