The 2002 No FEAR Act is supposed to hold managers accountable for equal employment opportunity violations and make federal employees more aware of their EEO and whistle-blower rights.
Managers should be aware of and wary of the No FEAR Act — the Notification and Federal Employee Antidiscrimination and Retaliation Act — and its requirements. Numerous provisions of the law are potential land mines for managers. For example, the law requires agencies to report to Congress annually about violations of anti-discrimination and whistle-blower reprisal laws, including such information as the number of offending managers who were disciplined, the nature of the discipline and the agency’s policy about taking discipline against managers who are found to have discriminated or retaliated against their subordinates.
This alone makes the threat to federal managers very real, but the rate of actual disciplinary action because of discrimination or reprisal seems low. This causes managers to relax a little too much and to not take seriously the threat of discipline because of the No FEAR Act. The cultural change that was supposed to have occurred because of No FEAR has simply not occurred.
This creates frustration and statements of outrage from civil rights groups who believe that managers regularly discriminate, but are almost never held accountable. The result of this pressure means that agencies will begin to take findings of discrimination in EEO cases seriously and may look for a manager to be a scapegoat.
The following is a brief list of the requirements of the No FEAR Act:
• Employees must be notified annually of their rights under anti-discrimination and whistle-blower protections statutes. Employee training must occur every two years.
• Any EEO judgments or settlements of EEO cases in federal court must be repaid by the agency to the Justice Department-administered Judgment Fund. The payment of a large settlement or jury verdict because of your management action will undoubtedly cause scrutiny by agency management.
• Annual reports must be submitted to Congress and the Office of Personnel Management detailing information about EEO cases in court, payments out of the Judgment Fund, the number of managers disciplined and the type of discipline and a detailed description of an agency’s disciplinary policy.
• OPM is obliged to develop best practices for disciplining managers who discriminate or retaliate. These best practices have been issued with advisory guidelines.
An examination of these advisory guidelines results in the unmistakable conclusion that agencies are under more pressure to pay attention to and make decisions about disciplining managers who have findings of discrimination.
The guidelines require the disciplinary process to address conduct inconsistent with anti-discrimination or whistle-blower protection laws and to ensure procedures are in place to promptly inform higher-level management of employee misconduct. This means that if you are a front-line manager who has a finding of discrimination against you or if a significant settlement of an EEO case occurs, a process should exist to make sure that someone at a higher level of authority will know about it. The guidelines specifically provide for the EEO office to be able to report what it believes to be potentially troublesome conduct.
Most managers think of the No FEAR Act as a law that mandates certain action or consideration if there is a finding of discrimination that requires repayment of the Judgment Fund. The relatively low number of EEO cases that go to federal court may have lulled many into a false sense of security. There is much more to No FEAR than just the Judgment Fund reimbursement. Congressional reports and advisory guidelines on discipline of managers are designed to change the culture. Change in whistle-blower reprisal laws pending in Congress may further increase the exposure of managers to disciplinary liabilities.
No FEAR means that managers should pay attention during their periodic No FEAR training and receive other training on how to avoid retaliatory conduct. This, and maintaining a mission-focused response to problem employees, will keep No FEAR goblins at a safe distance.