Washington Post
Law Now Requires Agencies to Pay Up for Bias, Whistle-Blower Cases
By Stephen Barr
Wednesday, October 1, 2003; Page B02 Federal agencies can no longer escape the cost of settlements and judgments in discrimination and whistle-blower reprisal cases brought by their employees.Under the No Fear Act, agencies must reimburse the Judgment Fund at the Treasury Department when they settle or lose bias and reprisal cases, effective today, the start of fiscal 2004. Previously, agencies were not required to reimburse the fund, and critics argued that let agencies avoid accountability for acts of discrimination or reprisal against their employees.
"It is pretty significant," Mark A. Robbins, general counsel at the Office of Personnel Management, said yesterday. "A small agency with a big judgment is going to have to figure out how to pay for it."The White House has directed OPM to write the regulations implementing the law, and Robbins said the rules would be issued in stages. The first, being published this week, lays out the reimbursement procedures that agencies must follow when they tap the Treasury fund to pay legal bills in bias and whistle-blower cases.
The law does not specify how agencies are to make the reimbursements, except to say that they cannot raid employee pension funds or law enforcement accounts to come up with the money.Robbins said the OPM's regulations will give agencies a deadline for paying back funds, such as 45 days. If an agency cannot meet the reimbursement deadline, it will be asked to submit a plan to the Treasury Department showing how it intends to pay back the money.
The law has raised concerns in numerous agencies, in part because of the reimbursement requirement. Officials have asked whether they could reduce spending on a program, furlough employees or take some other drastic step because they lose a big case. The law also raises difficult questions about whether agencies must take stronger and swifter steps to discipline managers found at fault in such cases.
The law, the Notification and Federal Anti-Discrimination and Retaliation Act of 2002, grew out of a House investigation into what congressional aides called a disturbing pattern of intolerance, harassment and discrimination at the Environmental Protection Agency. During the probe, federal employees at other agencies complained of similar problems.In the past, agencies could avoid financial penalties in bias and reprisal cases by turning to the Judgment Fund to cover their legal costs. Congress created the general fund to avoid having to approve specific appropriations for such legal bills and, in theory, to allow for prompter payment.But the No Fear Act removes that shield and hits them in their pocketbooks.
"There is anxiety out in the departments and agencies over how this will play out over time," Robbins said.Other regulations to implement the law will be issued during the next two months, he said. The law requires agencies to file reports with Congress and the attorney general on the number of complaints filed against them by employees, the disposition of each case, the total of all monetary awards charged against the agency and the number of employees disciplined for discrimination or harassment.
Marsha Coleman-Adebayo, the leader of a coalition of federal employees who have suffered from discrimination, said yesterday that her group would urge the White House to become more involved in ensuring that agencies obey the No Fear Act and that they tighten up their handling of bias complaints.Robbins said he plans to get feedback on No Fear regulations from the coalition. He also noted that OPM has been consulting with the Equal Employment Opportunity Commission and the Office of Special Counsel on how to fashion the regulations.
