It's been more than a year since President Bush signed the
Notification of Federal Employees Anti-Discrimination and
Retaliation Act, or No FEAR, on May 15, 2002. The law, which
requires agencies to pay for discrimination and whistleblower
settlements and judgments from their own budgets, is the first
major civil rights bill of the new millennium.
No FEAR contains reporting requirements designed to expose any
pattern of misconduct at agencies and their actions to address it.
The law requires agencies to notify employees and managers of
their rights and responsibilities and strengthens protections for
whistleblowers.
Working under the umbrella of the No FEAR Coalition, hundreds
of federal employees and organizations worked tirelessly for the
bipartisan support and passage of the legislation. Despite the
odds, both the House and Senate approved the bill unanimously. On
the heels of No FEAR is the 2003 Civil Rights Tax Relief Act,
designed to eliminate the taxation of emotional distress awards
and attorneys fees from personal income.
Standing Still
No FEAR goes into effect in two months—on Oct. 1. But where are
the regulations?
It appears that agencies have done nothing to develop No FEAR
regulations or to plan systems for reporting data to Congress. Out
of 15 agencies contacted this spring about their plans to
implement No FEAR, few responded.
Agriculture officials said they didn't expect any change in the
way the agency litigates or settles equal employment opportunity
complaints. At Interior, officials said they hadn't assessed the
impact of No FEAR because they are awaiting guidance from the
Office of Personnel Management, Justice Department and Equal
Employment Opportunity Commission.
There could be a number of reasons for the general
foot-dragging and bureaucratic lethargy in addressing No FEAR:
- A general lack of understanding and support of the No FEAR
Act among agencies.
- A tendency to leave it to OPM and OMB to define regulations
and procedures for the executive branch.
- A wait-and-see approach to determine what enforcement
mechanisms will be used to uphold the law and what the penalties
will be for noncompliance, if any.
- A general hope that the law will drop off the government's
radar screen
Matthew Fogg, executive director for Congress Against Racism
and Corruption in Law Enforcement, sees entrenched resistance to
No FEAR. “Culture in the federal system protects the old way—the
way things have always been,” Fogg says. “No FEAR talks about
exposure—exposing discriminators and making agencies pay the bill.
We can expect that people vested in the old system will dig in and
fight No FEAR on all fronts.”
Federal agencies are likely to continue waiting for No FEAR
regulations, at least for a while.
Great Expectations
Reactions range from cynical to idealistic among organizations,
coalitions and people that have a tremendous stake in the outcome
of No FEAR. Given the mixed results of the 1964 Civil Rights Act,
some believe people and organizations are incapable of change.
“The track record at the U.S. Department of Agriculture and
other federal agencies regarding discrimination is poor and will
continue to be until the lethargy of the bureaucracy is shocked
and challenged,” says Rudy Arredondo, president of the Hispanic
Organizations Leadership Alliance. “The joke at USDA is that if
you discriminate, you get promoted. The challenge of No FEAR will
be to turn that around.”
Lawrence Lucas, president of USDA's Coalition of Minority
Employees, says it will take some time before No FEAR will make a
difference. “We have an antebellum system that took decades to put
together and won't be dismantled in a year,” says Lucas. “Since
the federal system is entrenched with bigots, racists, predators
and poor managers, it's not going to change overnight.”
The No FEAR Act is a response to the way agencies handle
discrimination cases, says Janet Cooper, president of Federally
Employed Women's Legal and Education Fund. Instead of just
settling cases, agencies had every incentive to push their
discrimination cases up to the Justice Department because they
didn't have to pay the cost of litigation, settlements and
verdicts. Justice even provided attorneys at taxpayer expense to
defend agency actions and protect managers.
Cooper says now it will be harder to settle in court. Before No
FEAR, the U.S. Attorney's Office had strong control of
negotiations and settlements, which came out of its budget. Now
that funds come from agency budgets, they will want to control
negotiations. Frugality could set in since the law of averages
works in favor of agencies. For every court verdict made against a
federal agency, hundreds and thousands of litigants fall by the
wayside—victims of attrition due to financial, emotional or mental
hardship. Some just give up, while others may quit or retire. A
few even die along the way.
When taxpayer funds are used to defend discriminating agencies,
incentives are misplaced. “When no ‘Monopoly' money is involved,
cases get settled on merit,” Cooper says.
Not Ready
When No FEAR kicks in, it appears federal accountants won't
have accounting codes to track discrimination costs, EEO
counselors won't know what to do or how to handle new cases, and
agency budget officers won't be budgeting contingency funds to
cover No FEAR requirements. It's unclear whether departments will
be tracking data on discriminating officials and actions for
reports to Congress. And if so, what standards and definitions
would they use?
Victims of discrimination and whistleblowers have awaited
proposed regulations from the administration for more than a year.
Regulations require a one-month public comment period, but as of
July, guidance had yet to be issued on No FEAR. Activists involved
in the struggle for the passage of No FEAR are concerned about the
future of the law and whether agencies intend to enforce it.
Some wonder whether the law will suffer the same fate as the
1964 Civil Rights Act, which many argue has lost its edge. As a
result, the No FEAR Institute was established to ensure that
citizens play an active role in oversight and implementation.
A number of things must happen:
- No FEAR must be funded.
- Standard definitions for required data must be in place to
prevent creative interpretations.
- Oversight requires a central coordinator for implementation
and enforcement.
- Penalties for noncompliance must exist and be uniformly
administered.
- Discriminating managers named in complaints must be
disciplined or fired.
- Congress must provide oversight and review of federal
agencies.
The success of the No FEAR Act ultimately lies with the same
constituency that fought for its passage—federal employees. They
will have to report discrepancies and mismanagement to Congress,
if there is to be accountability and consequences for agencies
that violate personnel practices. If enforced, the No FEAR Act
could be the most progressive and transparent workplace law in
U.S. history.
Paralyzed with No FEAR
