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-CITE-
5 USC Sec. 2301 01/03/05-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III - EMPLOYEES
Subpart A - General Provisions
CHAPTER 23 - MERIT SYSTEM PRINCIPLES-HEAD-
Sec. 2301. Merit system principles-STATUTE-
(a) This section shall apply to -
(1) an Executive agency; and
(2) the Government Printing Office.(b) Federal personnel management should be implemented consistent
with the following merit system principles:
(1) Recruitment should be from qualified individuals from
appropriate sources in an endeavor to achieve a work force from
all segments of society, and selection and advancement 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 employment should receive
fair and equitable treatment 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 constitutional rights.
(3) Equal pay should be provided for work of equal value, with
appropriate consideration of both national and local rates paid
by employers in the private sector, and appropriate incentives
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 efficiently and
effectively.
(6) Employees should be retained on the basis of the adequacy
of their performance, inadequate performance should be corrected,
and employees should be separated who cannot or will not improve
their performance to meet required 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 authority or
influence for the purpose of interfering with or affecting the
result of an election or a nomination for election.(9) Employees should be protected against reprisal for the
lawful disclosure of information which the employees reasonably
believe evidences -
(A) a violation of any law, rule, or regulation, or
(B) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial 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 President shall, pursuant to
the authority otherwise available under this title, take any
action, including the issuance of rules, regulations, or
directives; and
(2) with respect to any entity in the executive branch which is
not such an agency or part of such an agency, the head of such
entity shall, pursuant to authority otherwise available, 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 embodies the
merit system principles.-SOURCE-
(Added Pub. L. 95-454, title I, Sec. 101(a), Oct. 13, 1978, 92
Stat. 1113; amended Pub. L. 101-474, Sec. 5(c), Oct. 30, 1990, 104
Stat. 1099.)-MISC1-
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.EFFECTIVE DATE
Chapter effective 90 days after Oct. 13, 1978, see section 907 of
Pub. L. 95-454, set out as an Effective Date of 1978 Amendment note
under section 1101 of this title.NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND
RETALIATION
Pub. L. 107-174, May 15, 2002, 116 Stat. 566, provided that:"SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
"(a) Short Title. - This Act may be cited as the 'Notification
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;
"(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 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 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;
"(ii) furloughs;
"(iii) other reductions in compensation or benefits for the
workforce of the agency; or
"(iv) an adverse effect on the mission of the agency."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 Rate Commission;
"(4) the term 'Federal employee' means an individual 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 beginning more than 180 days
after the date of the enactment of this Act [May 15, 2002]."TITLE II - FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION
"SEC. 201. REIMBURSEMENT REQUIREMENT.
"(a) Applicability. - This section applies with respect 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 settlements) to any Federal employee, former Federal
employee, or applicant for Federal employment, in connection 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 reimbursed 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 appropriation, 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 discriminatory conduct
involved is attributable as determined under section 204.
"(c) Scope. - The provisions of law cited in this subsection are
the following:
"(1) Section 2302(b) of title 5, United States Code, as applied
to discriminatory conduct described in paragraphs (1) and (8), or
described in paragraph (9) of such section as applied to
discriminatory conduct described 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 employment (as the case may
be) in connection with the respective provisions of law covered by
paragraphs (1) and (2) of section 201(a) shall be provided to such
employees, former employees, and applicants -
"(1) in accordance with otherwise applicable provisions 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 notification under
this section shall include, but not be limited to, the posting of
the information required under paragraph (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 regarding the rights and
remedies applicable to such employees under the laws cited in
section 201(c)."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 Governmental
Affairs [now Committee on Homeland Security and Governmental
Affairs] of the Senate, the Committee on Government Reform 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 report
which shall include, 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 aggregate amount of such
reimbursements attributable to the payment of attorneys' fees, if
any;
"(4) the number of employees disciplined for discrimination,
retaliation, harassment, or any other infraction of any provision
of law referred to in paragraph (1);
"(5) the final year-end data posted under section 301(c)(1)(B)
for such fiscal year (without regard to section 301(c)(2));
"(6) a detailed description of -
"(A) the policy implemented by that agency relating to
appropriate disciplinary actions against a Federal employee who
-
"(i) discriminated against any individual in violation 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 number of
employees who are disciplined in accordance with such policy
and the specific nature of the disciplinary action taken;
"(7) an analysis of the information described under paragraphs
(1) through (6) (in conjunction with data provided to the Equal
Employment Opportunity Commission 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 experience; 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 subsection (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)."SEC. 204. RULES AND GUIDELINES.
"(a) Issuance of Rules and Guidelines. - The President (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 Implementation of Guidelines.
- Not later than 30 days after the issuance of guidelines under
subsection (a), each Federal agency 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 written statement specifying 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 guidelines, the
reasons for the decision not to fully follow 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 OFFICE [now GOVERNMENT
ACCOUNTABILITY OFFICE] ON EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND ON ASCERTAINMENT OF CERTAIN DEPARTMENT OF JUSTICE COSTS.
"(a) Study on Exhaustion of Administrative Remedies. -
"(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 Accountability 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 administrative
remedies before filing complaints with the Equal Employment
Opportunity Commission.
"(B) Contents. - The study shall include a detailed summary
of matters investigated, information collected, and conclusions
formulated that lead to determinations of how the elimination
of such requirement will -
"(i) expedite handling of allegations of such violations
within Federal agencies and will streamline the
complaint-filing process;
"(ii) affect the workload of the Commission;
"(iii) affect established alternative dispute resolution
procedures in such agencies; and
"(iv) affect any other matters determined by the General
Accounting Office [now Government Accountability Office] to
be appropriate for consideration.
"(2) Report. - Not later than 90 days after completion of the
study required by paragraph (1), the General Accounting Office
[now Government Accountability 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 containing the
information required to be included in such study.
"(b) Study on Ascertainment of Certain Costs of the Department of
Justice in Defending Discrimination 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 administrative burden that would be imposed on, the
Department of Justice to ascertain the personnel and
administrative 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 completion of the
study required by paragraph (1), the General Accounting Office
[now Government Accountability Office] shall submit to the
Speaker of the House of Representatives and the President pro
tempore of the Senate a report containing the information
required to be included in the study.
"(c) Studies on Statutory Effects on Agency Operations. -
"(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 Accountability 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) 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 payments described under
subparagraph (A); and
"(C) conclusions that assist in making determinations on how
the reimbursements of payments described under subparagraph (A)
will affect -
"(i) the operations of Federal agencies;
"(ii) funds appropriated on an annual basis;
"(iii) employee relations and other human capital matters;
"(iv) settlements; and
"(v) any other matter determined by the General Accounting
Office [now Government Accountability Office] to be
appropriate for consideration.
"(3) Reports. - Not later than 90 days after the completion of
each study under paragraph (1), the General Accounting Office
[now Government Accountability 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 of the House of Representatives, and the
Attorney 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 General Accounting
Office [now Government Accountability Office] shall conduct a
study on the extent of any administrative and personnel costs
incurred by the Department of the Treasury to account for
payments 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 Act of 1978 (41 U.S.C. 601 note
[41 U.S.C. 601 et seq.]; Public Law 95-563).
"(2) Report. - Not later than 90 days after the completion 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
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 of the House of Representatives, and the Attorney General."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 prescribed under section
303 (in conformance with the requirements of this section), summary
statistical data relating to equal employment opportunity
complaints filed with such agency by employees or former employees
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 agency in such
fiscal year.
"(2) The number of individuals filing those complaints
(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 paragraph (1)) in
which each of the various bases of alleged discrimination is
alleged.
"(5) The number of complaints (described in paragraph (1)) in
which each of the various issues of alleged discrimination is
alleged.
"(6) The average length of time, for each step of the process,
it is taking such agency to process complaints (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 Employment Opportunity
Commission is not requested, and
"(C) for all such complaints in which a hearing before an
administrative judge of the Equal Employment Opportunity
Commission is requested.
"(7) The total number of final agency actions rendered in such
fiscal year involving a finding of discrimination and, of that
number -
"(A) the number and percentage that were rendered without a
hearing before an administrative judge of the Equal Employment
Opportunity Commission, and
"(B) the number and percentage that were rendered after a
hearing before an administrative judge of the Equal Employment
Opportunity Commission.
"(8) Of the total number of final agency actions rendered in
such fiscal year involving a finding of discrimination -
"(A) the number and percentage involving a finding of
discrimination based on each of the respective bases of alleged
discrimination, and
"(B) of the number specified under subparagraph (A) for each
of the respective bases of alleged discrimination -
"(i) the number and percentage that were rendered without a
hearing before an administrative judge of the Equal
Employment Opportunity Commission, and
"(ii) the number and percentage that were rendered 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 discrimination -
"(A) the number and percentage involving a finding of
discrimination in connection with each of the respective issues
of alleged discrimination, and
"(B) of the number specified under subparagraph (A) for each
of the respective issues of alleged discrimination -
"(i) the number and percentage that were rendered without a
hearing before an administrative judge of the Equal
Employment Opportunity Commission, and
"(ii) the number and percentage that were rendered after a
hearing before an administrative judge of the Equal
Employment Opportunity Commission.
"(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 complaints 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 complaints an impartial and
appropriate investigation of such complaints.
"(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 quarterly, 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 EMPLOYMENT OPPORTUNITY
COMMISSION.
"(a) In General. - The Equal Employment Opportunity 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.
"(b) Specific Requirements. - The data posted under this section
shall, with respect to the hearings and appeals described in
subsection (a), include summary statistical data corresponding to
that described in paragraphs (1) through (10) 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 section shall
be in addition to the data the Commission is required to post under
section 301 as an employing Federal agency."SEC. 303. RULES.
"The Equal Employment Opportunity Commission shall issue any
rules necessary to carry out this title."
[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.]
[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.]