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-CITE-
5 USC Sec. 2302 01/03/05-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III - EMPLOYEES
Subpart A - General Provisions
CHAPTER 23 - MERIT SYSTEM PRINCIPLES-HEAD-
Sec. 2302. Prohibited personnel practices-STATUTE-
(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;
(ix) a decision concerning pay, benefits, or awards,
concerning education or training if the education or training
may reasonably be expected to lead to an appointment,
promotion, performance evaluation, or other action described in
this subparagraph;
(x) a decision to order psychiatric testing or examination;
and
(xi) any other significant change in duties,
responsibilities, or working conditions;with respect to an employee in, or applicant for, a covered
position in an agency, and in the case of an alleged prohibited
personnel practice described in subsection (b)(8), an employee or
applicant for employment in a Government corporation as defined
in section 9101 of title 31;
(B) "covered position" means, with respect to any personnel
action, any position in the competitive service, a career
appointee position in the Senior Executive Service, or a position
in the excepted service, but does not include any position which
is, prior to the personnel action -
(i) excepted from the competitive service because of its
confidential, policy-determining, policy-making, or
policy-advocating character; or
(ii) excluded from the coverage of this section by the
President based on a determination by the President that it is
necessary and warranted by conditions of good administration;
and(C) "agency" means an Executive agency and the Government
Printing Office, but does not include -
(i) a Government corporation, except in the case of an
alleged prohibited personnel practice described under
subsection (b)(8);
(ii) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National Security
Agency, and, as determined by the President, any Executive
agency or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities; or
(iii) the Government Accountability Office.(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not, with
respect to such authority -
(1) discriminate for or against any employee or applicant for
employment -
(A) on the basis of race, color, religion, sex, or national
origin, as prohibited under section 717 of the Civil Rights Act
of 1964 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under sections 12 and
15 of the Age Discrimination in Employment Act of 1967 (29
U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited under section 6(d) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition, as prohibited
under section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791); or
(E) on the basis of marital status or political affiliation,
as prohibited under any law, rule, or regulation;(2) solicit or consider any recommendation or statement, oral
or written, with respect to any individual who requests or is
under consideration for any personnel action unless such
recommendation or statement is based on the personal knowledge or
records of the person furnishing it and consists of -
(A) an evaluation of the work performance, ability, aptitude,
or general qualifications of such individual; or
(B) an evaluation of the character, loyalty, or suitability
of such individual;(3) coerce the political activity of any person (including the
providing of any political contribution or service), or take any
action against any employee or applicant for employment as a
reprisal for the refusal of any person to engage in such
political activity;
(4) deceive or willfully obstruct any person with respect to
such person's right to compete for employment;
(5) influence any person to withdraw from competition for any
position for the purpose of improving or injuring the prospects
of any other person for employment;
(6) grant any preference or advantage not authorized by law,
rule, or regulation to any employee or applicant for employment
(including defining the scope or manner of competition or the
requirements for any position) for the purpose of improving or
injuring the prospects of any particular person for employment;
(7) appoint, employ, promote, advance, or advocate for
appointment, employment, promotion, or advancement, in or to a
civilian position any individual who is a relative (as defined in
section 3110(a)(3) of this title) of such employee if such
position is in the agency in which such employee is serving as a
public official (as defined in section 3110(a)(2) of this title)
or over which such employee exercises jurisdiction or control as
such an official;
(8) take or fail to take, or threaten to take or fail to take,
a personnel action with respect to any employee or applicant for
employment because of -
(A) any disclosure of information by an employee or applicant
which the employee or applicant reasonably believes evidences -(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety,if such disclosure is not specifically prohibited by law and if
such information is not specifically required by Executive
order to be kept secret in the interest of national defense or
the conduct of foreign affairs; or
(B) any disclosure to the Special Counsel, or to the
Inspector General of an agency or another employee designated
by the head of the agency to receive such disclosures, of
information which the employee or applicant reasonably believes
evidences -
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety;(9) take or fail to take, or threaten to take or fail to take,
any personnel action against any employee or applicant for
employment because of -
(A) the exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation;
(B) testifying for or otherwise lawfully assisting any
individual in the exercise of any right referred to in
subparagraph (A);
(C) cooperating with or disclosing information to the
Inspector General of an agency, or the Special Counsel, in
accordance with applicable provisions of law; or
(D) for refusing to obey an order that would require the
individual to violate a law;(10) discriminate for or against any employee or applicant for
employment on the basis of conduct which does not adversely
affect the performance of the employee or applicant or the
performance of others; except that nothing in this paragraph
shall prohibit an agency from taking into account in determining
suitability or fitness any conviction of the employee or
applicant for any crime under the laws of any State, of the
District of Columbia, or of the United States;
(11)(A) knowingly take, recommend, or approve any personnel
action if the taking of such action would violate a veterans'
preference requirement; or
(B) knowingly fail to take, recommend, or approve any personnel
action if the failure to take such action would violate a
veterans' preference requirement; or
(12) take or fail to take any other personnel action if the
taking of or failure to take such action violates any law, rule,
or regulation implementing, or directly concerning, the merit
system principles contained in section 2301 of this title.This subsection shall not be construed to authorize the withholding
of information from the Congress or the taking of any personnel
action against an employee who discloses information to the
Congress.
(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the compliance
with and enforcement of applicable civil service laws, rules, and
regulations, and other aspects of personnel management, and for
ensuring (in consultation with the Office of Special Counsel) that
agency employees are informed of the rights and remedies available
to them under this chapter and chapter 12 of this title. Any
individual to whom the head of an agency delegates authority for
personnel management, or for any aspect thereof, shall be similarly
responsible within the limits of the delegation.
(d) This section shall not be construed to extinguish or lessen
any effort to achieve equal employment opportunity through
affirmative action or any right or remedy available to any employee
or applicant for employment in the civil service under -
(1) section 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16), prohibiting discrimination on the basis of race,
color, religion, sex, or national origin;
(2) sections 12 and 15 of the Age Discrimination in Employment
Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on
the basis of age;
(3) under section 6(d) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d)), prohibiting discrimination on the basis of
sex;
(4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), prohibiting discrimination on the basis of handicapping
condition; or
(5) the provisions of any law, rule, or regulation prohibiting
discrimination on the basis of marital status or political
affiliation.(e)(1) For the purpose of this section, the term "veterans'
preference requirement" means any of the following provisions of
law:
(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314,
3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b),
3504, and 4303(e) and (with respect to a preference eligible
referred to in section 7511(a)(1)(B)) subchapter II of chapter 75
and section 7701.
(B) Sections 943(c)(2) and 1784(c) of title 10.
(C) Section 1308(b) of the Alaska National Interest Lands
Conservation Act.
(D) Section 301(c) of the Foreign Service Act of 1980.
(E) Sections 106(f),(!1) 7281(e), and 7802(5) (!1) of title 38.(F) Section 1005(a) of title 39.
(G) Any other provision of law that the Director of the Office
of Personnel Management designates in regulations as being a
veterans' preference requirement for the purposes of this
subsection.
(H) Any regulation prescribed under subsection (b) or (c) of
section 1302 and any other regulation that implements a provision
of law referred to in any of the preceding subparagraphs.(2) Notwithstanding any other provision of this title, no
authority to order corrective action shall be available in
connection with a prohibited personnel practice described in
subsection (b)(11). Nothing in this paragraph shall be considered
to affect any authority under section 1215 (relating to
disciplinary action).-SOURCE-
(Added Pub. L. 95-454, title I, Sec. 101(a), Oct. 13, 1978, 92
Stat. 1114; amended Pub. L. 101-12, Sec. 4, Apr. 10, 1989, 103
Stat. 32; Pub. L. 101-474, Sec. 5(d), Oct. 30, 1990, 104 Stat.
1099; Pub. L. 102-378, Sec. 2(5), Oct. 2, 1992, 106 Stat. 1346;
Pub. L. 103-94, Sec. 8(c), Oct. 6, 1993, 107 Stat. 1007; Pub. L.
103-359, title V, Sec. 501(c), Oct. 14, 1994, 108 Stat. 3429; Pub.
L. 103-424, Sec. 5, Oct. 29, 1994, 108 Stat. 4363; Pub. L. 104-197,
title III, Sec. 315(b)(2), Sept. 16, 1996, 110 Stat. 2416, Pub. L.
104-201, div. A, title XI, Sec. 1122(a)(1), title XVI, Sec.
1615(b), Sept. 23, 1996, 110 Stat. 2687, 2741; Pub. L. 105-339,
Sec. 6(a), (b), (c)(2), Oct. 31, 1998, 112 Stat. 3187, 3188; Pub.
L. 108-136, div. A, title IX, Sec. 921(g), Nov. 24, 2003, 117 Stat.
1570; Pub. L. 108-271, Sec. 8(b), July 7, 2004, 118 Stat. 814.)-REFTEXT-
REFERENCES IN TEXT
The civil service laws, referred to in subsec. (c), are set out
in this title. See, particularly, section 3301 et seq. of this
title.
Section 1308(b) of the Alaska National Interest Lands
Conservation Act, referred to in subsec. (e)(1)(C), is classified
to section 3198(b) of Title 16, Conservation.
Section 301(c) of the Foreign Service Act of 1980, referred to in
subsec. (e)(1)(D), is classified to section 3941(c) of Title 22,
Foreign Relations and Intercourse.
Section 106(f) of title 38, referred to in subsec. (e)(1)(E), was
enacted subsequent to the enactment of subsec. (e) of this section.
Section 7802(5) of title 38, referred to in subsec. (e)(1)(E),
was redesignated section 7802(e) of title 38 by Pub. L. 108-170,
title III, Sec. 304(b)(3), Dec. 6, 2003, 117 Stat. 2059.-MISC1-
AMENDMENTS
2004 - Subsec. (a)(2)(C)(iii). Pub. L. 108-271 substituted
"Government Accountability Office" for "General Accounting Office".
2003 - Subsec. (a)(2)(C)(ii). Pub. L. 108-136 substituted
"National Geospatial-Intelligence Agency" for "National Imagery and
Mapping Agency".
1998 - Subsec. (a)(1). Pub. L. 105-339, Sec. 6(c)(2), amended
par. (1) generally. Prior to amendment, par. (1) read as follows:
"For purposes of this title, 'prohibited personnel practice' means
the following:
"(A) Any action described in subsection (b) of this section.
"(B) Any action or failure to act that is designated as a
prohibited personnel action under section 1599c(a) of title 10."
Subsec. (b)(10) to (12). Pub. L. 105-339, Sec. 6(a), struck out
"or" at end of par. (10), added par. (11), and redesignated former
par. (11) as (12).
Subsec. (e). Pub. L. 105-339, Sec. 6(b), added subsec. (e).
1996 - Subsec. (a)(1). Pub. L. 104-201, Sec. 1615(b), amended
par. (1) generally. Prior to amendment, par. (1) read as follows:
"For the purpose of this title, 'prohibited personnel practice'
means any action described in subsection (b) of this section."
Subsec. (a)(2)(C)(ii). Pub. L. 104-201, Sec. 1122(a)(1),
substituted "National Imagery and Mapping Agency" for "Central
Imagery Office".
Subsec. (b)(2). Pub. L. 104-197 amended par. (2) generally. Prior
to amendment, par. (2) read as follows: "solicit or consider any
recommendation or statement, oral or written, with respect to any
individual who requests or is under consideration for any personnel
action except as provided under section 3303(f);".
1994 - Subsec. (a)(2)(A). Pub. L. 103-424, Sec. 5(a)(3), in
concluding provisions, inserted before semicolon ", and in the case
of an alleged prohibited personnel practice described in subsection
(b)(8), an employee or applicant for employment in a Government
corporation as defined in section 9101 of title 31".
Subsec. (a)(2)(A)(x), (xi). Pub. L. 103-424, Sec. 5(a)(1), (2),
added cls. (x) and (xi) and struck out former cl. (x) which read as
follows: "any other significant change in duties or
responsibilities which is inconsistent with the employee's salary
or grade level;".
Subsec. (a)(2)(B). Pub. L. 103-424, Sec. 5(b), amended subpar.
(B) generally. Prior to amendment, subpar. (B) read as follows: "
'covered position' means any position in the competitive service, a
career appointee position in the Senior Executive Service, or a
position in the excepted service, but does not include -
"(i) a position which is excepted from the competitive service
because of its confidential, policy-determining, policy-making,
or policy-advocating character; or
"(ii) any position excluded from the coverage of this section
by the President based on a determination by the President that
it is necessary and warranted by conditions of good
administration."
Subsec. (a)(2)(C)(i). Pub. L. 103-424, Sec. 5(c), inserted before
semicolon ", except in the case of an alleged prohibited personnel
practice described under subsection (b)(8)".
Subsec. (a)(2)(C)(ii). Pub. L. 103-359 inserted "the Central
Imagery Office," after "Defense Intelligence Agency,".
Subsec. (c). Pub. L. 103-424, Sec. 5(d), inserted before period
at end of first sentence ", and for ensuring (in consultation with
the Office of Special Counsel) that agency employees are informed
of the rights and remedies available to them under this chapter and
chapter 12 of this title".
1993 - Subsec. (b)(2). Pub. L. 103-94 amended par. (2) generally.
Prior to amendment, par. (2) read as follows: "solicit or consider
any recommendation or statement, oral or written, with respect to
any individual who requests or is under consideration for any
personnel action unless such recommendation or statement is based
on the personal knowledge or records of the person furnishing it
and consists of -
"(A) an evaluation of the work performance, ability, aptitude,
or general qualifications of such individual; or
"(B) an evaluation of the character, loyalty, or suitability of
such individual;".
1992 - Subsec. (b)(8)(B). Pub. L. 102-378 substituted "Special
Counsel" for "Special Counsel of the Merit Systems Protection
Board".
1990 - Subsec. (a)(2)(C). Pub. L. 101-474 struck out ", the
Administrative Office of the United States Courts," after "means an
Executive agency".
1989 - Subsec. (b)(8). Pub. L. 101-12, Sec. 4(a), in introductory
provision inserted ", or threaten to take or fail to take," after
"fail to" and substituted "because of" for "as a reprisal for", in
subpar. (A) substituted "any disclosure" for "a disclosure", in
subpar. (A)(ii) inserted "gross" before "mismanagement", in subpar.
(B) substituted "any disclosure" for "a disclosure", and in subpar.
(B)(ii) inserted "gross" before "mismanagement".
Subsec. (b)(9). Pub. L. 101-12, Sec. 4(b), amended par. (9)
generally. Prior to amendment, par. (9) read as follows: "take or
fail to take any personnel action against any employee or applicant
for employment as a reprisal for the exercise of any appeal right
granted by any law, rule, or regulation;".EFFECTIVE DATE OF 1996 AMENDMENTS
Amendment by section 1122(a)(1) of Pub. L. 104-201 effective Oct.
1, 1996, see section 1124 of Pub. L. 104-201, set out as a note
under section 193 of Title 10, Armed Forces.
Section 315(c) of Pub. L. 104-197 provided that: "This section
[amending this section and section 3303 of this title] shall take
effect 30 days after the date of the enactment of this Act [Sept.
16, 1996]."EFFECTIVE DATE OF 1993 AMENDMENT; SAVINGS PROVISION
Amendment by Pub. L. 103-94 effective 120 days after Oct. 6,
1993, but not to release or extinguish any penalty, forfeiture, or
liability incurred under amended provision, which is to be treated
as remaining in force for purpose of sustaining any proper
proceeding or action for enforcement of that penalty, forfeiture,
or liability, and no provision of Pub. L. 103-94 to affect any
proceedings with respect to which charges were filed on or before
120 days after Oct. 6, 1993, with orders to be issued in such
proceedings and appeals taken therefrom as if Pub. L. 103-94 had
not been enacted, see section 12 of Pub. L. 103-94, set out as an
Effective Date; Savings Provision note under section 7321 of this
title.EFFECTIVE DATE OF 1989 AMENDMENT
Amendment by Pub. L. 101-12 effective 90 days following Apr. 10,
1989, see section 11 of Pub. L. 101-12, set out as a note under
section 1201 of this title.SAVINGS PROVISION
Pub. L. 105-339, Sec. 6(d), Oct. 31, 1998, 112 Stat. 3188,
provided that: "This section [amending this section and repealing
section 1599c of Title 10, Armed Forces] shall be treated as if it
had never been enacted for purposes of any personnel action (within
the meaning of section 2302 of title 5, United States Code)
preceding the date of enactment of this Act [Oct. 31, 1998]."-FOOTNOTE-
(!1) See References in Text note below.