The final decisions in cases of discrimination and retaliation against federal employees would have to be posted to the agency website to increase accountability, under a proposed rule issued Jan. 5 by the Office of Personnel Management.
“Specifically, an agency must provide notice in an accessible format linked from its public-facing website of any final decision in which there has been a finding of discrimination (including retaliation) against the agency,” the proposed rule says.
“The agency’s notification must identify the date on which the finding was made, the date on which each discriminatory act was found to have occurred, and the law found to have been violated by each such discriminatory act, and, once again, advise federal employees of the rights and protections available under the provisions of law.”
The proposed rule stems from requirements in the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, which was signed into law at the beginning of 2021 and brings changes to how discrimination and retaliation cases are managed by federal agencies.
Prior to that, such cases were governed by the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002.
Currently, Subpart B of the No FEAR Act requires agencies to notify all potential, current and former employees of their rights and protections under federal whistleblower and antidiscrimination laws.
The requirements for public disclosure of finalized discrimination cases double down on this requirement by providing such employees with evidence of how those protections are put into practice at the agency within 90 days of a case being finalized.
Finalization of a discrimination or retaliation case can mean all appeals have been expended, the agency has not chosen to exercise its appeal rights within the allotted time or a court of jurisdiction issues a final judgement finding that there was intentionally committed discriminatory action.
The new rule also lays out requirements for agencies to produce their legally mandated annual reports in an electronic format that is machine readable and accessible to people with disabilities. Agencies will be required to submit a report to the Equal Employment Opportunity Commission on the disciplinary action taken as a result of the discrimination findings.
Agencies will also be required to submit a statement to Congress, the EEOC, the Attorney General and OPM on how they intend to adopt OPM-issued guidelines on the best ways to approach disciplinary actions against federal employees that violate whistleblower and antidiscrimination laws.
Comments on the proposed rule must be received by Feb. 5 through the federal eRulemaking portal.
Jessie Bur covers federal IT and management.
